Vol. 78, No. 2, February
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer
invite comments and questions about the digests. They can be reached at
the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee,
WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Tender of Defense - Fees and Costs
Williams v. Rexworks
Inc., 2004 WI App 228 (filed 2 Nov. 2004) (ordered published 21
After being injured by an allegedly defective machine in 1997,
Williams sued several parties, including RHI and Rexworks Inc. In 1982,
RHI's predecessor corporation had sold the division that made the
machine to Rexworks pursuant to an agreement that, among other things,
allocated responsibility for any personal injury claims that might
arise. After Williams filed suit, RHI tendered its defense to Rexworks
and later filed a cross-claim against Rexworks. Rexworks subsequently
accepted the tender subject to a "factual investigation." Later, RHI
withdrew its tender to the insurer, arguing that it had never "acceded
to representation by Rexworks because of the underlying conflicts of
interest between the parties" (¶ 9). Eventually, the circuit court
dismissed RHI's cross-claim, finding "no legal authority for RHI's claim
that it had to consent to representation by Rexworks after tendering the
defense, or for the claim that it had a right to control its own
defense" (¶ 10).
The court of appeals, in an opinion authored by Judge Curley,
affirmed. "Both parties agree that, pursuant to the 1982 agreement,
Rexworks was obligated to defend RHI in the underlying suit commenced by
Williams. Both parties also agree that Rexworks accepted tender of the
defense on June 29, 2001. They disagree, however, as to whether it was
necessary for RHI to consent to Rexworks' representation after Rexworks
accepted the tender, and how Rexworks was to satisfy its obligations
under the 1982 agreement" (¶ 12).
Under the 1982 agreement, the "scope of the `responsibility'
allocated is, to say the least, not painstakingly defined" (¶ 15).
Yet it did not follow that RHI therefore must control its own defense,
subject to reimbursement by Rexworks.
"RHI never established that a conflict existed, nor did it request
the trial court to determine as much. RHI never unequivocally informed
Rexworks that it believed there to be a conflict and therefore was
proceeding with independent counsel as of right, and fully expected to
be reimbursed since, under the agreement, Rexworks was responsible for
the defense. Absent a conflict, Rexworks has performed under the
contract by accepting the tender of defense and agreeing to pay RHI for
the attorney's fees it incurred from the time it gave notice of its
intent to tender and Rexworks' acceptance of the tender" (¶
Finally, the court also rejected RHI's contention that the Supreme
Court Rules governing professional responsibility somehow entitled it to
separate counsel and reimbursement for attorney fees.
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Interlocutory Appeals - Briefing Limited to Issues Presented in
Petition for Leave to Appeal
Aufderhaar, 2004 WI App 208 (filed 6 Oct. 2004) (ordered
published 17 Nov. 2004)
The appellant raised three issues in his petition for leave to file
an interlocutory appeal. After the court of appeals accepted the appeal,
the appellant added two additional issues in his court brief.
In a decision authored by Judge Brown, the court of appeals held that
"when this court accepts an interlocutory appeal, the appellant is
limited to briefing only those issues presented in the petition for
leave to appeal and may not raise additional issues without the prior
consent of the court" (¶ 1).
Wis. Stat. section 808.03(2) specifies the circumstances under which
the court of appeals will grant a petition for leave to appeal a
nonfinal order: "(1) if the issue or issues will materially advance
termination of the litigation or materially clarify further proceedings,
(2) will protect the petitioner from irreparable injury, or (3) will
clarify an issue of general importance in the administration of justice
... [I]mplicit in our consideration of each factor is the question
of whether the petition shows a substantial likelihood of success on the
merits ... It therefore stands to reason that we are only interested
in determining issues that have a likelihood of success. For a party to
add issues after a petition is granted where we have not had the
opportunity to assess the likelihood of success of that issue is
counterproductive to the process and undermines the rationale for our
approach to nonfinal orders" (¶ 14).
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Home Improvements - Corporate Veil
Rayner v. Reeves Custom
Builders Inc., 2004 WI
App 231 (filed 10 Nov. 2004) (ordered published 21 Dec. 2004)
In this case the court of appeals addressed an "issue of first
impression, namely, whether consumer protection regulations pierce the
corporate veil and allow for personal liability against individual
wrongdoers." It held "that they do if it is shown that the individual -
rather than the entity - is responsible for devising the unfair method
of selling home improvements. The purpose of these laws is to protect
homeowners from unfair dealings and practices in areas such as the home
improvement arena" (¶ 1).
The Rayners had entered into a home improvement contract. The seller
of the home improvement services ostensibly was Reeves Custom Builders
Inc. The Rayners negotiated with Arthur Reeves, the president of Reeves
Custom Builders. Certain documents, including the contract itself,
suggested that Reeves in his individual capacity was the contractor.
Dissatisfied with the work done on their home, the Rayners sued the
corporate entity as well as Reeves himself and his wife. The circuit
court refused to dismiss the claims against either Reeves or his wife as
individuals, which gave rise to this appeal from a nonfinal order.
The court of appeals, in an opinion written by Judge Brown, mostly
affirmed but reversed as to the wife, whose only involvement in the
company was as a corporate officer. Arthur Reeves unsuccessfully argued
that Wisconsin Administrative Code section ATCP 110.01(5) imposed only
vicarious liability on him.
The court distinguished cases involving the Americans with
Disabilities Act and other "personnel decisions, which involve purely
internal business practices, [because] the home improvement industry
involves individuals interacting with people on the outside. Many of
these contacts and negotiations occur out in the field and in the
customer's home. Where the individual's employer has not instructed him
or her to engage in improper conduct, the employer has little
opportunity to exercise direct oversight of its agents to prevent such
conduct. On the other hand, the individual clearly does possess
the power to ensure fair dealing and practices. Allowing a corporate
agent to use the corporate form to shield malfeasance of his or her own
design inadequately deters such practices.... Accordingly, we construe
`and their officers, representatives, agents and employees,'
see Wis. Admin Code §ATCP 110.01(5), to have its plain
meaning: all of the named individuals and entities are
potential sources of the unfair methods of dealing that Wis. Stat.
§100.20 meant to stamp out. To the extent individuals have the
power to prevent unfair dealings with consumers, individuals will incur
liability for noncompliance" (¶ 14). In short, the circuit court
properly refused to grant summary judgment in favor of Arthur Reeves in
his individual capacity.
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Sexual Assault - Mentally Ill Victim - Experts
State v. Perkins,
2004 WI App 213 (filed 12 Oct. 2004) (ordered published 17 Nov.
The court of appeals affirmed the defendant's conviction for the
sexual assault of a 78-year-old patient in a residential care facility.
The victim allegedly had Alzheimer's disease. Writing for the court,
Judge Curley's opinion was chiefly concerned with the sufficiency of the
evidence. Of special note, however, the court rejected the defendant's
contention that the state was required to introduce expert medical or
psychological testimony of the victim's mental condition: "The jury is
not asked to diagnose the victim's mental illness or deficiency - the
State only has to prove that the victim suffered from a mental illness
or deficiency that rendered the victim incapable of appraising his or
her conduct" (¶ 19). Neither the case law nor statutes required the
use of expert testimony. Moreover, the record revealed sufficient "lay
opinion testimony" from which the jury could find that the victim
suffered from a severe mental deficiency.
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Seizures - Show of Authority
State v. Young,
2004 WI App 227 (filed 17 Nov. 2004) (ordered published 21 Dec.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed the circuit court's denial of a motion to suppress evidence
based on an allegedly unlawful search and seizure. The court itself used
the opportunity to criticize prevailing U.S. Supreme Court authority on
what constitutes a "seizure" under the Fourth Amendment.
An officer attempted to stop a vehicle that raised his (articulated)
suspicions. Young left the car's back seat, started walking away, and
then ran when the officer ordered him back into the car. The officer
pursued Young, who struggled with the officer and then "discarded his
coat" by throwing it toward a house. After subduing Young, the officer
retrieved and searched the coat and found marijuana in it. The circuit
court denied Young's suppression motion, and a jury convicted him of
possession of marijuana, resisting arrest, and obstructing an
In affirming, the court of appeals relied on the U.S. Supreme Court's
decision in California v. Hodari D., 499 U.S. 621 (1991) in
concluding that the officer's reasons for the stop were immaterial
because Young was not "seized" when he threw away the coat. Hodari
D. held that a Fourth Amendment seizure does not occur until the
suspect submits to a show of police authority.
The court also broached an argument not raised by Young in attempting
to distinguish Hodari D., namely, "Hodari threw the cocaine
away moments before the police captured him, whereas Young rid
himself of the coat containing the drugs during the capture.
However, we do not think the application of the Fourth Amendment should
turn upon such temporal hairsplitting that allows for the admission of
evidence discarded at a certain moment, but requires suppression of
evidence discarded a split second later. Instead, it is the core holding
of Hodari D. that governs this case: unless the suspect has
yielded to the show of police authority, thereby producing a seizure
under the Fourth Amendment, the suspect will not be heard to argue for
suppression of evidence as a remedy for an illegal Terry
detention. Here, as in Hodari D., Young failed to so yield,
resulting in a pursuit that prompted him to discard the contraband.
Under those circumstances, Hodari D. holds that the illegal
police conduct under Terry does not bar the introduction of
evidence resulting from the ensuing pursuit" (¶ 18).
The court of appeals criticized Hodari D., which "seems to
fly in the face of established Wisconsin law governing" the crimes of
resisting an officer and obstructing an officer, both of which require
proof that the officer acted in an official capacity with lawful
authority. More precisely, "if an officer is acting outside the law,
such activity constitutes a defense to the charge of resisting or
obstructing an officer. If a defendant's resistance to an officer is
excused under those circumstances, we are left to wonder why a defendant
may not rely on similar police conduct to assert a suppression of
evidence claim based on a Fourth Amendment violation" (¶ 23). The
court of appeals closed with the plaintive request that the Wisconsin
Supreme Court "take a further look at Hodari D." (¶
Truth-in-Sentencing - Earned Release Program - Power of Court to
Delay Defendant's Participation in Program
State v. White,
2004 WI App 237 (filed 16 Nov. 2004) (ordered published 21 Dec.
The defendant was convicted of two counts of delivery of cocaine. The
circuit court imposed bifurcated sentences of confinement and extended
supervision under Wisconsin's truth-in-sentencing laws. It further
determined that the defendant was eligible for the earned release
program (ERP) but added that he could not participate in the ERP until
he completed two years of his initial confinement terms. [Editors' note:
The ERP was added to Wis. Stat. section 973.01 by 2003 Wis. Act 33. A
defendant's successful completion of the intensive drug and alcohol
treatment program results in the defendant's release from confinement to
On appeal the defendant argued that the trial court erroneously
exercised its discretion when it imposed the waiting period because the
court had the statutory authority to determine whether he was
eligible for the ERP, but not when he could become eligible. In
a decision authored by Chief Judge Cane, the court of appeals affirmed.
It concluded that "trial courts have the authority both to decide
whether defendants are ERP eligible and to determine when the period of
eligibility will begin" (¶ 2). The court reached this conclusion by
applying State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677
N.W.2d 644, which reached a like conclusion with regard to eligibility
determinations for the challenge incarceration ("boot camp")
Truth-in-Sentencing - Reconfinement Following Revocation of Extended
Supervision - Availability of Rule 809.30 Postconviction Relief from
State v. Swiams,
2004 WI App 217 (filed 19 Oct. 2004) (ordered published 17 Nov.
After conviction for a drug delivery, the defendant was sentenced to
a bifurcated truth-in-sentencing term of 15 months in prison followed by
27 months of extended supervision. At sentencing, he formally indicated
that he did not intend to seek postconviction relief.
After serving the confinement portion of his sentence, the defendant
was released to extended supervision. The Department of Corrections
subsequently revoked his extended supervision, and the defendant was
returned to court for imposition of a period of reconfinement. The
circuit court ordered the defendant returned to prison for 18
The defendant sought review of the trial court's reconfinement order
by filing a notice of intent to pursue postconviction relief under Wis.
Stat. Rule 809.30. The circuit court denied the motion for
postconviction relief, ruling that the defendant's postconviction rights
under the rule had long expired.
As described by the court of appeals, the question presented by this
case "is whether persons sentenced to a bifurcated term of imprisonment
whose extended supervision is revoked may seek relief under Wis. Stat.
Rule 809.30 from the trial court's reconfinement order" (¶ 4). In a
decision authored by Judge Fine, the court concluded that they may.
Rule 809.30(2)(b) requires that a defendant filing a notice of intent
to pursue postconviction relief must do so "within 20 days after the
date of sentencing." The trial court ruled that Rule 809.30 did not
apply because the 20 days specified in the rule was triggered long ago
when the original sentence was imposed. The defendant contended that the
reconfinement proceeding also was a "sentencing" within the meaning of
Rule 809.30 and that his notice of intent to pursue postconviction
relief, which was filed approximately one week after the reconfinement
proceeding, was timely.
In the view of the appellate court, the principal disagreement
between the parties was whether the reconfinement proceeding was a
"sentencing." The court recognized that the word "sentencing" has
various and conflicting meanings in Wisconsin law. However, in light of
the need for meaningful assessment of decisions that deprive persons of
their liberty, the appellate court could "perceive no reason why a
`sentencing' under Wis. Stat. Rule 809.30 should not encompass
reconfinement [following revocation of extended supervision]. Indeed,
other than a concern expressed at oral argument that to require the
trial courts to fully explain a reconfinement order might take too much
time, the State does not point to any adverse consequences that could
possibly flow from permitting defendants to seek review of reconfinement
orders via Rule 809.30, and we see none. We reject the State's attempted
expediency-based justification for any truncation of the sentencing
explanation to which every defendant deprived of his or her liberty is
entitled" (¶ 23).
Accordingly, the court reversed the order dismissing the defendant's
motion for postconviction relief and remanded the case for further
Speedy Trial - Detainers
State v. Lewis,
2004 WI App 211 (filed 27 Oct. 2004) (ordered published 17 Nov.
A complaint charged Lewis with sexual assault. After dismissing two
appointed counsels, on June 4 Lewis signed a "Detainer Acknowledgment"
and requested a prompt disposition of his case. The court set a trial
date for Sept. 30, but at a pretrial hearing Lewis's third lawyer agreed
to reschedule the trial for Dec. 2. Lewis was not present at the
pretrial hearing. On Oct. 21, he filed a motion to dismiss because the
case had not been tried within 120 days. The trial court denied the
motion. A jury convicted Lewis on two of three counts at the Dec. 2
The court of appeals, in a decision written by Judge Snyder, reversed
and remanded. "The State does not dispute that it failed to bring
Lewis's case to trial within 120 days after the district attorney's
office received his request for prompt disposition of his case" (¶
10). Section 971.11 of the Wisconsin Statutes "mandates that when the
case is not brought to trial within 120 days, it `shall be dismissed'
unless the defendant escapes or otherwise prevents the trial from taking
place. Here, two factors influenced the trial court's decision to
reschedule the trial: the court's crowded trial calendar for the week of
September 30, and the prosecutor's vacation plans. Either of these
factors may be an appropriate reason to reschedule a trial within the
statutory time limit; however, they do not justify violating a
defendant's statutory right to prompt disposition under the [Interstate
Detainer Act]" (¶ 11).
Lewis was not obligated to advise the court of his prompt disposition
request. Nor could defense counsel waive the request on Lewis's behalf
simply by acknowledging that the Dec. 2 trial date was "fine,"
especially when the prosecutor mistakenly asserted that no request for a
prompt disposition had been filed. Rather, waivers of statutory rights
must be made knowingly, voluntarily, and intelligently by the defendant
(¶ 14). In short, Lewis's request placed the responsibility for a
timely trial squarely on the district attorney (¶ 15). The case was
remanded for a determination of whether the dismissal will be with or
The court of appeals also determined that Lewis had been correctly
sentenced to life in prison without the possibility of parole under the
"two strikes" law (¶ 17).
Stops - Auto Search
State v. Sherry,
2004 WI App 207 (filed 7 Oct. 2004) (ordered published 17 Nov. 2004)
During the course of a traffic stop, police discovered marijuana in
Sherry's car. The trial court denied Sherry's motion to suppress
evidence of the marijuana, ruling that the police had reasonable
suspicion for the stop and the necessary probable cause for the search
of the car.
The court of appeals, in a decision authored by Judge Lundsten,
affirmed. First, the reasonable stop was properly based on an anonymous
tip to a Crime Stoppers hotline. "The anonymous caller in this case
provided predictive information which, if true, demonstrated `a special
familiarity with [Sherry's] affairs.' The general public would have had
no way of knowing that Sherry would soon be leaving the Readstown area
in a particular car, no way of knowing that a man might accompany Sherry
on that trip, and no way of knowing that if the man did accompany Sherry
he would be driving her car. When the Crawford County officer verified
this predictive information, it was reasonable for the officer to
believe that a person with access to such information also had access to
reliable information about Sherry's illegal activities" (¶ 13).
Second, probable cause supported the search of the car. The issue in
this case concerned "the existence of probable cause in the context of
information provided by an anonymous tipster" (¶ 17). "The
anonymous caller said that Sherry would be traveling from Readstown to
Soldiers Grove with `a large amount of marijuana.' Prior to the stop,
the officer had verified the following details: the make of the car, the
license plate number of the car, the approximate time of travel, the
direction of travel, the car's likely general starting point
(Readstown), its apparent destination (Soldiers Grove), the number of
occupants, and, since there were two occupants, that a male appeared to
be driving. After the stop, but before the search, the officer
corroborated additional details of the anonymous tip. The passenger was
identified as Tabitha Sherry, and the driver as Ryan Saint. The car was
Sherry's car; Sherry told the officer that the owner was her mother's
boyfriend and that he had given her the car as a present. Thus, the
officer corroborated these additional details: Sherry was the female
passenger, the car was her car, a man named Ryan Saint was in the car,
and Saint was driving" (¶¶ 21-22). The corroboration of these
details provided sufficient information for police, "applying the
common-sense probable cause standard, to believe there was a fair
probability that Sherry was transporting marijuana in her car" (¶
Sentencing - DNA Surcharge
State v. Jones,
2004 WI App 212 (filed 12 Oct. 2004) (ordered published 17 Nov.
The defendant was convicted of delivering cocaine. At the sentencing
hearing, the trial court ordered him to submit a DNA sample and to pay
the DNA surcharge. Section 973.047 of the Wisconsin Statutes obligates
the trial court to require anyone convicted of a felony to provide a DNA
specimen. Section 973.046 gives the trial court discretion to impose a
DNA surcharge of $250 on persons convicted of most felonies and mandates
the surcharge for specified sexual assault convictions.
In a postconviction motion, the defendant moved the court to vacate
the order requiring him to submit a DNA sample because he had already
submitted one. [Although the court did not rule on this request, all
parties and the circuit court appeared to believe that this part of the
postconviction motion was granted.] The defendant also claimed that the
court had no authority to require him to pay the DNA surcharge since no
DNA sample was required. The circuit judge refused to rescind the order
requiring payment of the surcharge unless the defendant could prove that
he had paid the surcharge in an earlier case.
In a decision authored by Judge Curley, the court of appeals
affirmed. It agreed that the trial court had the authority to impose a
DNA surcharge without ordering a DNA sample. "The language of the
statute plainly states that the trial court has the discretion to order
a DNA surcharge upon the entry of a judgment in this felony case.
Nothing in sec. 973.046(1g) requires a DNA sample to be collected before
the court can order the payment of the surcharge" (¶ 7).
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Criminal Procedure/Motor Vehicle Law
Arrest - PBT Tests - Refusals
State v. Repenshek,
2004 WI App 229 (filed 18 Nov. 2004) (ordered published 21 Dec.
Following a head-on collision, the defendant was charged with
homicide by intoxicated use of a motor vehicle and other offenses. The
judge suppressed blood alcohol evidence obtained by police without a
warrant. The state appealed.
The court of appeals, in an opinion authored by Judge Lundsten,
reversed. First, the defendant's arrest was not illegal simply because
the police officer arrested him for a "nonexistent crime." "Generally
speaking, the legality of an arrest does not depend on whether the
arresting officer articulates the correct legal basis for the arrest.
Stated differently, in general, the legality of an arrest does not
depend on the subjective motivation of the arresting officer" (¶
10). The only "pertinent question," said the court, was whether the
arrest was supported by probable cause (¶ 12). Because the
defendant did not dispute that the officer had probable cause, the
officer's inability to articulate the crime's actual title did not
render the arrest unlawful.
Second, case law supported the warrantless seizure of blood despite
the defendant's contention that he was not arrested for a "drunk-driving
related violation or crime." "In short, nothing in [State v.
Bohling, 173 Wis.2d 529 (1993)] overrules the [State v.
Seibel, 163 Wis.2d 164 (1991)] holding that `blood may be drawn in
a search incident to an arrest [for a non-drunk-driving offense] if the
police reasonably suspect that the defendant's blood contains evidence
of a crime'" (¶ 17).
Third, the defendant's refusal to take a preliminary breath test
(PBT) could be properly considered in determining whether the officer
had "reasonable suspicion." The court of appeals specifically held that
Wis. Stat. section 343.303 "does not contain a general prohibition on
police requesting a PBT. Rather, the statute only imposes a limitation
on the use of a PBT result in a particular situation, that is, where the
requesting officer wants to use the PBT result to support a
drunk driving arrest or to support a non-consent blood draw" (¶
25). Since the defendant refused the PBT, there was no result and the
statute had no application.
Finally, the police had reasonable suspicion that the defendant's
blood contained evidence of a crime. First, police properly considered
the facts relating to the collision itself. Second, the defendant
refused the PBT, "saying he had a prior `OWI' and a PBT `got him in
trouble the last time'" (¶ 29). "In this case, it is self-evident
that a reasonable officer who knows that Repenshek has likely caused a
serious vehicle accident by the negligent operation of his truck, and
who knows that Repenshek has refused to cooperate with a test designed
to detect alcohol consumption, would reasonably suspect that Repenshek
was refusing to take the PBT to conceal the fact that he had been
drinking alcohol. Stated in converse, it is hard to conceive how a
reasonable officer faced with these facts would not suspect that
Repenshek was trying to conceal alcohol consumption" (¶ 30).
Judge Dykman concurred because he did not agree with the majority's
analysis of section 343.303.
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Appeals of Recounts - Service on Other Candidates Required
Logic v. City of South
Milwaukee Bd. of Canvassers, 2004 WI App 219 (filed 19 Oct.
2004) (ordered published 17 Nov. 2004)
The plaintiff ran against the incumbent for the office of mayor of
the city of South Milwaukee. The initial tally of the vote count
resulted in a tie. The plaintiff sought a recount under Wis. Stat.
section 9.01. As a result of that recount, the Board of Canvassers
determined that the incumbent won by one vote. Claiming error in the
recount, the plaintiff sought review by the circuit court.
Section 9.01(6)(a) provides inter alia that the appeal of the recount
to the circuit court "shall commence by serving a written notice of
appeal on the other candidates." The plaintiff did not serve the
incumbent either personally or by certified mail, and the circuit court
therefore dismissed the appeal. In a decision authored by Judge Fine,
the court of appeals affirmed.
A failure to follow statutory requirements in commencing an action,
serving a party, or taking an appeal deprives the court of jurisdiction
over the action, party, or appeal if the defect of process is
"fundamental" rather than merely "technical." A defect is deemed
"fundamental" if it defeats "the purpose of the rule." See
The appellate court concluded that the purpose of the statutory
requirement that notice of a recount appeal to the circuit court be
served "on the other candidates" is to allow them to seek to protect
their interests. A failure to comply with this requirement defeats that
purpose and would thereby be "fundamental." See ¶ 4. The
court further concluded that the statutory command that "other
candidates" be served with notice of the appeal is mandatory rather than
directory. See ¶ 7.
The plaintiff also argued that service of the notice of appeal was in
fact made on the incumbent because notice was served on the city clerk
for the city of South Milwaukee. The plaintiff contended that service on
the clerk was service on the mayor. The appellate court disagreed. "[The
incumbent mayor's] persona in the contested election was qua
candidate, not mayor; he was running for office in his personal, not his
official, capacity. Although [the city clerk] might have been a proper
person to serve if [the mayor] were being sued in his official capacity
for some act done or not done as mayor, she was not the proper person to
serve here because there is nothing in the record that indicates that
[the incumbent mayor] had either authorized or appointed her to accept
service for him in his capacity as a candidate" (¶ 8).
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Child Custody - Primary Physical Placement Awarded to Mother - Power
to Make School Enrollment Decision Awarded to Father
Greene v. Hahn,
2004 WI App 214 (filed 28 Oct. 2004) (ordered published 17 Nov.
Linda and Richard were married in 1981, and they divorced in 1990.
Their Minnesota divorce judgment awarded them "permanent joint legal
custody" of their two minor sons, and Linda was awarded "permanent
physical custody" of the boys. In Wisconsin terminology, the sons'
primary physical placement was with the mother, which means that she had
the right to have them physically placed with her and the right and
responsibility to make routine daily decisions regarding the sons' care,
consistent with major decisions made by a person having legal
After the divorce, Linda moved with the sons to Wisconsin and Richard
moved to Illinois. In 1992 Linda filed the Minnesota divorce judgment
with the La Crosse County Circuit Court in conjunction with a motion
seeking increased child support. Richard later filed a motion with the
La Crosse County court for an order allowing him to enroll the younger
son at St. John's Northwestern Military Academy. The court granted the
motion and gave Richard the responsibility for enrolling the younger son
in school. According to the appellate opinion, the son was 15, was
failing at the public high school he attended in La Crosse, was using
marijuana, and had engaged in other illegal or other inappropriate
The mother appealed the order, claiming that the grant of authority
to her ex-husband to determine the son's place of school enrollment
interfered with her right, as the child's primary physical custodian, to
determine the son's place of residence. In a decision authored by Judge
Deininger, the court of appeals affirmed.
A circuit court is specifically empowered under Wis. Stat. section
767.24(6)(b) to allocate decision-making authority regarding school
enrollment between joint legal custodians: "the court may give one party
sole power to make specific decisions, while both parties retain equal
rights and responsibilities for other decisions." While the appellate
court recognized that the son's change in school enrollment to a
residential academy three hours away from his mother's home greatly
affects the amount of time that he will actually spend in his mother's
home, it did not accept the mother's implicit argument that a court may
never allocate sole educational decision-making authority to a parent
other than the one having primary physical placement. In this case the
precise nature and location of the school in which Richard intended to
enroll the son was well known to the parties, the guardian ad litem, and
the court. "We conclude that, because Wis. Stat. sec. 767.325(1) permits
a court to modify both the legal custody and physical placement
provisions of a divorce judgment, the court may modify the terms of the
parties' joint legal custody in a manner that results in a change in the
amount of time the child spends in the home of the parent having primary
physical placement" (¶ 16).
In a footnote, the appellate court emphasized that the record before
it showed that the trial court was well aware of the school placement
Richard intended for his son and its impact on the amount of time the
son would thereafter spend in Linda's home. "We do not intend to suggest
that a parent possessing the sole right to determine a child's school
enrollment is necessarily free to exercise that right in an
unanticipated way that significantly undermines the other parent's
allocated placement time" (¶ 16 n.3).
The court concluded its opinion by examining the record to determine
whether the trial judge erroneously exercised discretion in granting
Richard sole authority to decide the son's school enrollment. It
concluded that the judge did not.
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Statute of Limitation - Tolling
Wieting Funeral Home of
Chilton Inc. v. Meridian Mut. Ins. Co., 2004 WI 218 (filed 13 Oct.
2004) (ordered published 17 Nov. 2004)
The insured, a funeral home, sustained extensive property damage
because of a storm on May 12, 2000. The funeral home filed a claim for
coverage under its business owners policy, which gave it two years
"after the date on which the direct physical loss or damage occurred" to
sue for coverage (¶ 2). The insurer made payments on the claim
until May 14, 2001, when it denied coverage for structural damage to the
roof as nonstorm related. It did, however, cover damage to other parts
of the roof. On April 11, 2003, the funeral home brought a breach of
contract action because of the insurer's denial of the roof claim. The
trial court granted the insurer's motion to dismiss based on a statute
of limitation defense.
The court of appeals, in a decision written by Judge Nettesheim,
affirmed. The primary issue was whether the insurer's payments tolled
the statute of limitation. The one-year statute of limitation provided
by Wis. Stat. section 631.83 was extended to two years by the policy.
Although Wis. Stat. section 893.12 tolls the statute of limitation when
payments are made under some policies, "Wis. Stat. § 631.83(2)
clearly and unambiguously excepts the time limitations for fire
insurance claims from the application of Wis. Stat. § 893.12"
Estoppel also did not bar the insurer's reliance on this defense. The
trial court properly determined that the insurer did not engage in
unfair or misleading behavior. It was "up front" about its denial of
coverage and expressly reserved its rights and defenses in every letter
Finally, the statute of limitation was not tolled pursuant to Wis.
Stat. section 631.83(5), which applies to situations in which: "(1) the
parties entered into an arbitration procedure prescribed by the
insurance policy, (2) the parties entered into an appraisal procedure
prescribed by the insurance policy, or (3) the parties otherwise agreed
to an appraisal procedure" (¶ 29). The court held "that an
`agreement' by the parties to engage in an appraisal procedure under
Wis. Stat. § 631.83(5) requires something more than a mere
agreement to meet and discuss a dispute between the parties. If that
were the law then most negotiations between an insured and an insurer
over a disputed claim would serve to toll the statute of limitations.
Given the public interest in setting a limitation on bringing lawsuits,
[cite omitted] we decline to elevate such loose, uncertain and tentative
`agreements to possibly agree' to the level of the formal agreement
contemplated by § 631.83(5)" (¶ 33).
Offers to Settle - Enforcement
American Nat'l Prop. Cas.
Co. v. Nersesian, 2004 WI App 215 (filed 20 Oct. 2004) (ordered
published 17 Nov. 2004)
Nersesian was injured in an automobile accident and retained a law
firm to represent him. After protracted negotiations, the parties agreed
to settle Nersesian's claim for about $18,000. In January 2002 the
insurer, American National Property Casualty Co. (ANPAC), sent the
checks and releases contemplated by the settlement agreement. A short
time later, however, Nersesian told his lawyer about medical
complications that had arisen and that had culminated in several
surgeries. In July his lawyer wrote ANPAC that he was "formally
withdrawing" the settlement offer and returning the checks, which were
uncashed. ANPAC filed this declaratory judgment action to enforce the
settlement and prevailed before the circuit court.
The court of appeals, in a decision written by Judge Anderson,
reversed. "Because a settlement agreement is a contract by nature, a
valid settlement agreement requires an offer, an acceptance and
consideration all resulting from a meeting of the minds" (¶ 16). On
this record, it was clear that "the mere issuance of the checks and
delivery of the release to the Nersesians did not effect a contract.
ANPAC's ... January 4 offer expressly specified that the Nersesians were
to sign and return the release to ANPAC prior to negotiating the
settlement checks it enclosed with the offer. Thus, by its plain
language, the offer was conditioned on the execution and return of the
release to ANPAC. While the Nersesians did sign the release and the
Nersesians did receive the two checks for the agreed upon amount, the
Nersesians neither presented the checks for payment nor delivered the
signed release to ANPAC. Furthermore, within one month of receiving the
settlement paperwork, the Nersesians' attorney contacted the parties and
explained that the Nersesians were putting the release `on hold' due to
[Nersesian's] complications, thereby communicating an unwillingness to
accept the offer at the time. Having failed to properly accept ANPAC's
offer by both signing and delivering the release, the Nersesians did not
bind themselves to the settlement agreement" (¶ 17).
The law firm's earlier letter, although expressing a "willingness to
settle the Nersesians' claims" for $18,000, represented "nothing more
than a mere continuation of the lengthy negotiations between the parties
and not acceptance of an offer" (¶ 19).
Finally, the Nersesians' retention of the settlement checks for seven
months was not unreasonable and did not constitute accord and
satisfaction. In particular, the Nersesians "did not remain silent nor
did they otherwise acquiesce in the benefits of ANPAC's offer. Instead,
the Nersesians chose not to return the release, a condition of
acceptance ANPAC imposed. Then, within weeks of receiving the settlement
paperwork, they contacted ANPAC and the worker's compensation carrier
and notified them that [Nersesian's] condition had changed and the
Nersesians were putting the settlement `on hold.' This communication,
coupled with the failure of the Nersesians to return the release and
cash the checks, put ANPAC on notice that the Nersesians were not
willing to accept its offer of settlement. ANPAC then could have
requested the return of the checks and release or availed itself of its
right to stop payment on the checks. Instead, ANPAC acquiesced to the
Nersesians' retention of all of the settlement paperwork. Because the
Nersesians fully explained the grounds for their retention of the check
and release within weeks of receiving them and ANPAC acquiesced in that
retention, we see no reason to hold that the Nersesians had agreed to
accept an offer of accord which they had expressly rejected" (¶
UIM Coverage - Malpractice Judgment
Hoskins, Kalnins, McNamara & Day, 2004 WI App 209 (filed 28
Oct. 2004) (ordered published 17 Nov. 2004)
The plaintiff was injured in an automobile accident in 1999. She
later filed this legal malpractice claim against her attorney, who had
failed to file a personal injury action against the tortfeasor before
the statute of limitation expired. Since the plaintiff's own automobile
policy contained underinsured motorist (UIM) coverage, the insurer
intervened in the malpractice action. The circuit court ruled that the
UIM coverage was not triggered by any potential settlement or judgment
paid by the defendant lawyer on the malpractice claim; thus, it
dismissed the insurer.
The court of appeals, in a decision written by Judge Higginbotham,
reversed because it found that the "exhaustion" clause was ambiguous.
"The exhaustion clause in the insurance policy sets forth these
requirements for UIM coverage: (1) the limits of liability (2) of all
applicable bodily injury liability bonds or policies (3) must be used up
(4) by payment of judgments or settlements. The phrase `limits of
liability' clearly refers to the total amount of liability coverage
available under the tortfeasor's bodily injury liability insurance
policy" (¶ 13).
The other driver in the accident carried $50,000 of liability
insurance. The defendants in this case argued that "nothing in the
exhaustion clause mandates that the liability limits to be exhausted
must be paid by a particular party before UIM is triggered"
(¶ 16). Stated differently, if the plaintiff "receives a payment
from a settlement or judgment of $50,000, then the liability policy
limits will have been `used up'"
(¶ 16). The insurer argued that the phrase "bodily injury liability
insurance does not include legal malpractice insurance" (¶ 17).
Finding that "reasonable minds" may differ, the court concluded that
both interpretations were "reasonable" and "thus the language of the
insurance contract language [sic] is ambiguous" (¶ 18).
Judge Dykman concurred. He agreed with the majority's construction of
"used up," but observed that this case really turned on whether the
other driver's bodily injury coverage "applied" to the plaintiff's UIM
coverage, within the meaning of her policy. Only if the question is
whether the plaintiff "could have recovered" from the other driver's
liability policy is the answer "yes." (¶ 23) In short, Judge Dykman
found ambiguity in the phrase "that apply." The finding of ambiguity
would in turn trigger the UIM coverage.
Motor Vehicle Law
Implied Consent Law - Timing of Defendant's Request for Additional
Test for Intoxication
State v. Schmidt,
2004 WI App 235 (filed 11 Nov. 2004) (ordered published 21 Dec.
The defendant was arrested for operating a motor vehicle while
intoxicated and then was informed by the officer that he was going to be
transported to a hospital to have a blood draw performed. The defendant
stated several times that he would rather have a breath test. The
officer subsequently read to him the "Informing the Accused" form, which
explains the penalties for refusing to take the test requested by the
officer and explains that a driver can take an alternative test provided
by the law enforcement agency free of charge after taking the requested
test. The defendant then cooperated in having his blood drawn but made
no further request for another test.
The defendant moved to suppress the results of the blood test,
arguing that he was entitled to suppression because he was not given a
breath test after the blood test, as required by Wis. Stat. section
343.305(5)(a). The circuit court denied the motion. It construed the
statute to require that a person must first submit to the test requested
by the officer before making a request for an additional test. Because
the defendant did not make a request for the breath test after taking
the blood test, the motion to suppress had to be denied.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. Agreeing with the defendant's interpretation of the statute,
the court of appeals held that "an accused's request for an additional
chemical test under Wis. Stat. § 343.05(5)(a) is not invalid solely
because that request was made before and not after submitting to the
test the law enforcement officer asked the accused to take. However, we
nonetheless conclude that the circuit court properly denied Schmidt's
motion because, based on the facts as found by the circuit court,
Schmidt did not request an additional test" (¶ 2). Instead, his
repeated requests were to take a breath test rather than a
The appellate court indicated that, although the statute does not
impose a requirement that the request for an additional test be made
after the first test is completed, it was not suggesting that the timing
of the request is irrelevant. Said the court, "[a]n accused who requests
an additional test before submitting to the first test and still wants
an additional test after the first test is completed will likely repeat
the request after the first test to make sure an additional test is
administered. Certainly the absence of a request made after the first
test is relevant to deciding as a factual matter whether the accused
requested an additional test. However, there may be situations where an
accused clearly requests an additional test before taking the first
test, takes the first test, and then is prevented by circumstances, such
as the absence of law enforcement personnel, from repeating to an
officer the request for an additional test"
OWI - Prior Out of State Violation of OWI Law
State v. List, 2004
WI App 230 (filed 24 Nov. 2004) (ordered published 21 Dec. 2004)
The defendant was arrested for operating a motor vehicle while
intoxicated (OWI) and charged as a second offender. The basis for the
repeat offender charge was a prior drunk driving offense in Illinois for
which the Illinois court placed the defendant on 18 months' supervision.
Under Illinois law, a discharge and dismissal upon successful conclusion
of a disposition of supervision "shall be deemed without adjudication of
guilt and shall not be termed a conviction for purposes of
disqualification or disabilities imposed by law upon conviction of a
crime." See 730 Ill. Comp. Stat. 5/5-6-3.1(f) (2002).
The defendant challenged the prosecution's claim that he was a repeat
offender, arguing that his prior Illinois offense that resulted in a
disposition of supervision should not be counted as a prior offense in
Wisconsin. The circuit court denied his motion and convicted him at a
In a decision authored by Judge Dykman, the court of appeals
affirmed. As stated by the appellate court, the issue before it was
whether an Illinois court's placement of an OWI offender under court
supervision is a "conviction" that should be counted as a prior offense
when charging an OWI suspect in Wisconsin.
In Wisconsin the penalty structure for OWI offenses is based on the
individual's record of prior OWI convictions. Among other things, courts
count "[c]onvictions under the law of another jurisdiction that
prohibits ... use of a motor vehicle while intoxicated ... or with an
excess or specified range of alcohol concentration ... as those or
substantially similar terms are used in that jurisdiction's laws." Wis.
Stat. § 343.307(1)(d). The word "conviction" is defined in the
Wisconsin Motor Vehicle Code as "an unvacated adjudication of guilt, or
a determination that a person has violated or failed to comply with
the law in a court of original jurisdiction or an authorized
administrative tribunal, an unvacated forfeiture of property deposited
to secure the person's appearance in court, the payment of a fine or
court cost, or violation of a condition of release without the deposit
of property, regardless of whether or not the penalty is rebated,
suspended, or probated, in this state or any other jurisdiction." Wis.
Stat. § 340.01(9r) (emphasis added).
In the defendant's case, his placement under court supervision was a
result of "a determination that [he] violated or failed to comply with
the law in a court of original jurisdiction." Accordingly, the court
held that the Illinois sentence was a conviction as defined by Wisconsin
law, and therefore it counts toward the determination of the penalty for
the defendant's new OWI offense in Wisconsin.
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Open Records Law
Access to Public Employee Records - Exception for Records Pertaining
to Current Investigation of Possible Criminal Offense or Other Employee
Local 2489, AFSCME, AFL-CIO
v. Rock County, 2004 WI App 210 (filed 7 Oct. 2004) (ordered
published 17 Nov. 2004)
In 2003 the Wisconsin Legislature enacted various changes to
Wisconsin's open records law. Among other things, 2003 Wis. Act 47
provides that if a public authority decides to release certain
employee-related records to someone who has requested access to them
under the open records law, before doing so, the authority must notify
the "record subject," who may then commence an action in circuit court
to prevent their release. The types of records that trigger the notice
and right-of-action provisions include records containing information
relating to an employee that are created or kept by the authority and
that are the result of an investigation into a disciplinary matter
involving the employee or a possible employment-related violation by the
employee of a statute, ordinance, rule, regulation, or policy of the
employee's employer. See Wis. Stat. § 19.356.
Act 47 also created several new statutory exceptions to the general
requirement of public access to public records. Pertinent to this case
is a new exception for "information relating to the current
investigation of a possible criminal offense or possible
misconduct connected with employment by an employee prior to
disposition of the investigation." See Wis. Stat.
§ 19.36(10)(b) (emphasis added). If a record falls within this
exception from disclosure, an authority shall not provide access to the
record, regardless of the public interests weighing in favor of
In this case, the Rock County sheriff notified 13 employees of his
department that, based on an investigation of their conduct, they would
be disciplined for "using Department computers to view inappropriate
internet images." Three employees were discharged, and 10 employees
received written reprimands. The local newspaper made an open records
request to the sheriff seeking reports generated by the investigation.
The sheriff responded by notifying each of the employees of his intent
to release the records after redacting their names and other identifying
information. The sheriff also informed the employees of their right to
commence an action to prevent the release of the records in question.
Joined by their union, they did just that.
The employees argued that because they had filed grievances pursuant
to their collective bargaining agreement with the county regarding the
discipline imposed by the sheriff, the "investigation" into their
alleged misconduct had not been completed. They also argued that even if
the exception for records of current investigations did not apply,
public interest considerations weighed against releasing these records.
The circuit court concluded that the relevant investigation was
completed and that the public interest in disclosure outweighed any
public interest in protecting the privacy of the affected employees.
In a decision authored by Judge Deininger, the court of appeals
affirmed. "We conclude that, in keeping with the mandate for narrow
construction of excepting language, the term `investigation' in §
19.36(10)(b) includes only that conducted by the public authority itself
as a prelude to possible employee disciplinary action. We also conclude
that an authority's investigation achieves its `disposition' when the
authority acts to impose discipline on an employee as a result of the
investigation, regardless of whether an employee elects to pursue
grievance arbitration or another review mechanism that may be available
under applicable statutes, ordinances, regulations or a collective
bargaining agreement" (¶ 15).
In a footnote, the court observed that "it is relatively easy to
conclude that the investigation reached its `disposition' because the
sheriff concluded employee misconduct had occurred and imposed
discipline accordingly. A similar discrete ending point, or
`disposition,' of an investigation into `a possible criminal offense or
possible misconduct connected with employment' may not be as easy to
discern when the investigation fails to substantiate a basis for the
filing of criminal charges against an employee or the imposition of
discipline by a public employer. We need not, and thus do not, decide
when an investigation that does not result in such actions has reached
its disposition" (¶ 15 n.4).
The court did note, however, that if the sheriff collects additional
information or generates additional records while preparing his defense
of his disciplinary actions, public access to these new items might
arguably be prohibited under the exception at issue in this case or
another exception. Said the court, "that possibility, however, does not
alter the status of the records currently at issue" (¶ 20).
The appellate court next considered whether the trial judge correctly
concluded that the public interest in disclosure was not outweighed by
any public interest in their nondisclosure. On the facts of this case
the court concluded that the public interest in protecting the privacy
and reputations of the employees was not a compelling one that would, by
itself, override the strong public interest in obtaining information
regarding their activities while on duty. The court found "that the
union has not established any genuine public interest in keeping the
records in question away from public view, beyond the generalized
interest in not injuring the reputation or privacy interests of any
citizen. As in most other instances where that generalized interest is
weighed against the overriding public interest in obtaining information
regarding the activities of public servants, it quickly yields to the
greater weight of the latter interest" (¶ 31).
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Easements - Changed Conditions - Purpose of Easement Obsolete
AKG Real Estate LLC v.
Kosterman, 2004 WI App 232 (filed 3 Nov. 2004) (ordered
published 21 Dec. 2004)
This case involved an easement, the original purpose of which was to
provide access to and from a landlocked piece of property. The question
before the court was whether an easement may continue even after changed
conditions (in this case access by a public road) make the purpose of
the easement obsolete. In a decision authored by Judge Brown, the court
of appeals answered in the negative.
In Millen v. Thomas, 201 Wis. 2d 675, 679, 550 N.W.2d 134
(Ct. App. 1996), the court had said in dicta that an easement may be
terminated by completion or cessation of the particular purpose for
which it was granted. "With the issue squarely before us, we now hold
this to be the law. In this case, allowing continued existence of an
easement, whose original purpose was ingress and egress to a landlocked
property - and which is no longer necessary - would unreasonably
restrict the beneficial use of vacant land. As a matter of public
policy, courts cannot endorse allowing the easement holder to `hold out'
for reasons not contemplated by the easement. To do so would be to
sanction economic waste" (¶ 1).
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Sexually Violent Persons Law
Chapter 980 Examiners - Qualifications
State v. Thiel,
2004 WI App 225 (filed 17 Nov. 2004) (ordered published 21 Dec.
Thiel appealed from a nonfinal order relating to his pending Wis.
Stat. chapter 980 commitment as a sexually violent person. The court of
appeals, in an opinion authored by Judge Snyder, reversed the circuit
court. There were three principal holdings by the court of appeals.
First, the court of appeals held that the circuit judge erred by
appointing a single examiner, ostensibly "for" Thiel, and not appointing
another examiner for the court. "The parties agree that the language of
Wis. Stat. § 980.08(3) requires the circuit court to appoint an
examiner for the court, and we concur. Unlike the examiner for the
court, Thiel's examiner reports directly to him or, as in this case, his
attorney, and his examiner's opinions are not discoverable unless the
examiner is called to testify. Also, a petitioner's examiner
participates in the proceeding `on the person's behalf.' Because the two
examiners clearly serve different purposes, we conclude that the
appointment of Thiel's examiner under § 980.03(4) did not satisfy
the mandate of § 980.08(3); therefore, the circuit court erred when
it refused to appoint an examiner for the court" (¶ 17) (citations
Second, the court of appeals held that Thiel did not have the right
"to request an examiner of his own choice" (¶ 18). Parsing the
statutory language and recognizing the "unique and distinct" nature of
chapter 980 commitments, the court held that "the plain language of Wis.
Stat. § 980.03(4) affords Thiel the right to a `qualified and
available expert or professional person' who will be appointed by the
court and paid for by the county. The court's refusal to adopt Thiel's
broad reading of the right to an expert of choice was a proper
interpretation of the statute" (¶ 23).
Third, the trial court abused its discretion in appointing the named
expert on Thiel's behalf. Although this expert was familiar with the
case in a general sense, he lacked expertise in the specific type of
test used to evaluate Thiel. The court remanded with instructions to the
circuit court to appoint a suitably qualified expert.
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Defamation - Abuse of Process - Privilege
Hatfield, 2004 WI App 236 (filed 24 Nov. 2004) (ordered
published 21 Dec. 2004)
Suffice to say, this appeal builds on a "ten-year history of
litigation involving these two parties" (¶ 2). The vitriol
originated when Ackerman, a psychologist retained by a guardian ad litem
(GAL) for purposes of Hatfield's then-pending divorce, reported that
Hatfield had engaged in "inappropriate family behavior" involving his
minor daughter. Hatfield later attacked Ackerman's "competence and
ethics" in various published materials. In 2002 Hatfield paid Ackerman
$90,000 to settle a lawsuit arising from the alleged libels. Hatfield
also complained to licensing authorities about Ackerman's conduct, but
no violations were found.
This case involves a September 2002 letter written by Hatfield that
he sent to the GAL and other persons. Hatfield's letter, the purpose of
which ostensibly was to protest various fees, asserted that Ackerman had
admitted committing malpractice. Ackerman filed this defamation action
and also alleged abuse of process and malicious prosecution regarding
Hatfield's complaint to the licensing board (which had been dismissed).
The circuit court granted summary judgment in Hatfield's favor.
The court of appeals, in an opinion written by Judge Snyder,
reversed. First, although Hatfield relied on the statutory immunity that
attaches to complaints filed with examining and licensing boards
(see Wis. Stat.§ 440.042(2)), the summary judgment record
raised material issues of fact regarding Hatfield's "good faith." In
particular, "Dr. Hatfield's reliance on discredited experts may
demonstrate his lack of good faith, or at the least raises a disputed
issue of fact regarding good faith" (¶ 14).
Second, the court held that the statements in Hatfield's September
2002 letter did not qualify under the "quasi-judicial absolute
privilege," which requires that "the statement `must be made in a
procedural context that is recognized as affording absolute privilege,
and it must be relevant to the matter under consideration.' Furthermore,
to invoke the privilege, the statement's maker and recipient must be
involved in and closely connected to the proceeding" (¶ 16). There
was an "insufficient connection" between Ackerman's alleged admission to
committing malpractice and the contested GAL bill (¶ 20).
Moreover, Hatfield sent the letter to, among others, a state
representative who was not involved in the divorce proceeding. "To
invoke the privilege, both the sender and the recipient must be involved
in and closely connected to the procedural context" (¶ 21).
In summary, the court's "application of the relevant factors to the
record facts clearly demonstrates that the letter sent by Dr. Hatfield
lacked the required nexus between the judicial proceeding and the
statements made. Further, the circulation of the letter outside that
circle of individuals who might arguably be connected to the judicial
proceeding takes the letter beyond the boundaries of absolute privilege.
Defamatory statements that are plainly irrelevant, impertinent and
voluntarily made are not privileged" (¶ 22).
Governmental Immunity - Ministerial Duty Exception
Meyers v. Schultz,
2004 WI App 234 (filed 24 Nov. 2004) (ordered published 21 Dec.
The plaintiff was injured when she sat in a chair that had been
inexpertly assembled by a state employee. The circuit court dismissed
her negligence claim against the employee on the ground that his
discretionary act of assembling the chair made him immune from suit.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. The court rejected the contention that the employee was
somehow obligated to follow the chair manufacturer's assembly
instructions. Such an obligation would in turn have rendered his act
ministerial, not discretionary, in nature.
"The principle we discern from [case law] for permitting liability
for injuries when a ministerial duty is involved is that individuals
have a right to expect public officers and employees to perform the
duties that have been specifically mandated by the government. This
principle does not support the imposition of liability for breach of a
ministerial duty in this case, where there is no governmental mandate,
but, rather, the instructions of a private manufacturer" (¶ 17).
Put differently, "a ministerial duty is one that is imposed by law. . .
. `Law' includes `statutes, administrative rules, policies or orders[,];
it includes plans adopted by a governmental unit; it includes contracts
entered into by a governmental unit. `Law' does not include the private
manufacturer's instructions on the chair" (¶ 19) (citations
Predicting Violence - Public Policy
Estate of Paswaters v.
American Family Ins. Co., 2004 WI App 233 (filed 10 Nov.
2004) (ordered published 21 Dec. 2004)
In early 2001 David killed Kim, his former girlfriend, at a local
fire station. Kim's estate and her minor children sued David's brother,
Harold. Harold had arranged to meet Kim at the fire station. Harold knew
that David was secretly present and that David intended to eavesdrop on
Harold and Kim. Harold had hoped that the contrived meeting would help
the couple work through problems in their relationship. Harold was
unaware that David was armed, and Harold did not foresee the murder. The
circuit court granted summary judgment in favor of Harold, finding that
public policy considerations precluded imposing liability under these
On appeal, the sole issue was whether public policy precluded
liability for Harold's alleged negligence. (The parties had stipulated
to all material facts.) The court of appeals, in an opinion written by
Judge Brown, affirmed in an opinion that particularly focused on two
policy considerations. First, the court held that imposing liability
"would shoulder Harold with the unreasonable burden of predicting human
nature, which in David's case was highly erratic and irrational. Harold
expected David to yell, scream, and verbally assault both Kim and
himself. This result was consistent with the David that Harold knew. To
expect Harold to avoid the unexpected actual result - murder in his
presence - would require him to ignore the facts he knew
to be true at the time of the shooting: (1) David was a nonviolent
person who had never hurt anyone before; (2) in fact, despite the
tumultuous nature of his relationship with Kim, there was no history
whatsoever of domestic violence; (3) expressing a desire to kill others
and himself was David's characteristic and harmless way of expressing
anger; and (4) David had asked for Harold's help in
understanding what went wrong with the relationship. In short, Harold
would have had to thoroughly discount years of familiarity and
experience with David's personality and behavior and guessed that his
brother unwittingly planned to use him as a pawn in a scheme to murder
someone" (¶ 15).
Second, "we conclude that Harold's culpability is grossly out of
proportion to the result of murder. Harold expected his brother to yell
and scream, essentially to `shoot his mouth off' as was his habit. He
should not have exposed Kim to this sort of unpleasantness. However, he
was merely attempting to resolve a dispute between David and Kim in a
way he thought would allow Kim to feel comfortable about being honest
about her feelings. He was trying to help his brother resolve
his relationship problems, not to set Kim up so David could end the
relationship with fatal violence, an extraordinary result he could not
have anticipated" (¶ 16).
Statute of Limitation - Minors - Disabilities
Haferman v. St. Clare
Healthcare Found. Inc., 2004 WI App 206 (filed 2 Sept. 2004)
(ordered published 17 Nov. 2004)
Toby was born in February 1991. In September 2002, Toby and his
parents sued the doctor who delivered him for negligently causing
injuries that left him disabled. The defendants made a motion to dismiss
on the ground that the statute of limitation had run. The trial court
denied the motion.
The court of appeals, in a decision written by Judge Higginbotham,
reversed because it found that the action was not timely under Wis.
Stat. section 893.55(1). The real issue before the court, however, was
which statute of limitation governed the action. The court of appeals
held that the circuit court erroneously relied on Wis. Stat. section
893.16, the general tolling statute for persons under disability.
"Section 893.16(1) plainly provides that its tolling limitation period
does not apply to those under the age of 18 who sue health care
providers" (¶ 10). Moreover, 893.16(2) expressly provides that the
disability must be one that exists at the time of the plaintiff's
injury, "not where the disability resulted from the incident causing the
plaintiff's injury" (¶ 11). The parties also agreed that the
statute of limitation in Wis. Stat. section 893.56 (minors' actions
against healthcare providers) did not apply: "It is undisputed that Toby
Jr. was more than ten years of age and under disability by reason of a
developmental disability when this action was commenced" (¶
For these reasons, the court concluded that "the three-year statute
of limitation in § 893.55(1)(a) is the only statute of limitation
applicable to this case. The Hafermans seek to recover damages for
injury caused to Toby Jr. arising from [a doctor's] negligent handling
of Toby Jr.'s birth. The Hafermans' cause of action accrued, according
to their complaint, on the day of Toby Jr.'s birth, February 10, 1991.
This action was filed on September 4, 2002, long past the three-year
expiration of the statute of limitations of § 893.55(1)(a), and
thus is time-barred. In the absence of any other applicable tolling
statute, § 893.55(1)(a) applies to the facts of this case" (¶
In a footnote, the majority conceded that the holding seemed "absurd
and illogical," but it left the problem's solution to the legislature
(¶ 13 n.5).
Judge Dykman dissented. He thought there was no need to refer the
matter to the legislature because existing statutes, properly construed,
provided the remedy sought by the plaintiffs. "From the statutes
examined here, I conclude that the legislature intended that children
who are insane, developmentally disabled or imprisoned have until age
eighteen or a later time permitted by Wis. Stat. § 893.55 to bring
their negligence action against health care providers" (¶ 24).
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Tribal Purchase of Existing For-Profit Corporation - No Tribal
Immunity for Corporation
McNally CPA's &
Consultants S.C. v. DJ Hosts Inc., 2004 WI App 221 (filed 24
Nov. 2004) (ordered published 21 Dec. 2004)
In 1990, Carley Development Co. was organized as a for-profit
Wisconsin corporation. Its name was changed to DJ Hosts in 1995. Two
months after the name change the Ho-Chunk Nation, a federally recognized
Indian tribe, purchased all of the stock in DJ Hosts.
The plaintiff sued DJ Hosts in 2000, claiming that the latter owed
the plaintiff $29,000 plus interest for accounting, consulting, and
other professional services. The circuit court dismissed the action
based on tribal sovereign immunity. The court reasoned that because the
Ho-Chunk tribe wholly owns DJ Hosts, the tribe's immunity extends to DJ
In a decision authored by Judge Lundsten, the court of appeals
reversed. Among the issues before the appellate court was the question
of whether tribal immunity is conferred on a corporation when all of the
shares of that corporation are purchased by an Indian tribe.Calling its
holding a "narrow" one, the court concluded that "when the sole facts
are that an Indian tribe purchases all of the shares of an existing
for-profit corporation and takes control over the operations of the
corporation, tribal immunity is not conferred on the corporation. It
follows that DJ Hosts does not enjoy tribal sovereign immunity from the
suit brought by [the plaintiff]" (¶ 18).
In a footnote the court noted that it was "uncertain what practical
effect this decision has on the ability of tribes to acquire companies
and extend tribal immunity to them. At oral argument, the attorney for
DJ Hosts seemed to suggest that the transaction in this case could have
been structured as an asset purchase and the dissolution of DJ Hosts,
the result being that the Ho-Chunk tribe would have directly owned the
assets of DJ Hosts, rather than owning shares in a distinct corporate
entity. If the purchase had proceeded in that fashion, the assertion of
immunity from suit might be stronger. But, of course, we have no
occasion to address that situation" (¶ 18 n.7).
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