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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 78, No. 2, February 2005

    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

    * *

    Attorneys

    Tender of Defense - Fees and Costs

    Williams v. Rexworks Inc., 2004 WI App 228 (filed 2 Nov. 2004) (ordered published 21 Dec. 2004)

    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" (¶ 18).

    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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    Appellate Procedure

    Interlocutory Appeals - Briefing Limited to Issues Presented in Petition for Leave to Appeal

    State v. 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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    Consumer Law

    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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    Criminal Law

    Sexual Assault - Mentally Ill Victim - Experts

    State v. Perkins, 2004 WI App 213 (filed 12 Oct. 2004) (ordered published 17 Nov. 2004)

    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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    Criminal Procedure

    Seizures - Show of Authority

    State v. Young, 2004 WI App 227 (filed 17 Nov. 2004) (ordered published 21 Dec. 2004)

    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 officer.

    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." (¶ 26).

    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. 2004)

    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 extended supervision.]

    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") program.

    Truth-in-Sentencing - Reconfinement Following Revocation of Extended Supervision - Availability of Rule 809.30 Postconviction Relief from Reconfinement Order

    State v. Swiams, 2004 WI App 217 (filed 19 Oct. 2004) (ordered published 17 Nov. 2004)

    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 months.

    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 proceedings.

    Speedy Trial - Detainers

    State v. Lewis, 2004 WI App 211 (filed 27 Oct. 2004) (ordered published 17 Nov. 2004)

    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 trial.

    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 without prejudice.

    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" (¶ 23).

    Sentencing - DNA Surcharge

    State v. Jones, 2004 WI App 212 (filed 12 Oct. 2004) (ordered published 17 Nov. 2004)

    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. 2004)

    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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    Election Laws

    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 ¶ 3.

    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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    Family Law

    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. 2004)

    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 custody.

    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 behavior.

    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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    Insurance

    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" (¶ 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 (¶ 26).

    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" (¶ 22).

    UIM Coverage - Malpractice Judgment

    Degenhardt-Wallace v. 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. 2004)

    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 blood test.

    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"
    (¶ 30).

    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 bench trial.

    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 Misconduct

    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 disclosure.

    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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    Real Property

    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. 2004)

    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 omitted).

    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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    Torts

    Defamation - Abuse of Process - Privilege

    Ackerman v. 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. 2004)

    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 omitted).

    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 circumstances.

    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" (¶ 12).

    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" (¶ 13).

    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 Sovereignty

    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 Hosts.

    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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