Vol. 78, No. 9, September
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
Consumer Law - Deficient
Bank One, NA v.
Ofojebe, 2005 WI App 151 (filed 1 June 2005) (ordered published
29 July 2005)
The court of appeals, in a decision written by Judge Fine, reversed a
summary judgment order that granted foreclosure to Bank One for a home
owned by Ofojebe. The court held that the bank's complaint failed to
comply with the pleading requirement of the Wisconsin Consumer Act, Wis.
Stat. § 425.109; specifically, the complaint failed to include the
figures necessary to compute what Ofojebe owed the bank. The bank
claimed that Ofajebe waived the defense because she first raised it on
appeal (see ¶ 8).
The court of appeals disagreed. "Wis. Stat. § 425.109(3) by its
plain language bars entry of judgment if the pleading requirements of
§ 425.109(1) are not met: `A judgment may not be entered upon a
complaint which fails to comply with this section.' Bank One thus had
to supply in its complaint the figures necessary for the
computation of the amount Jacqueline Ofojebe allegedly owed. The statute
is self-executing" (¶ 10) (citations omitted). The court examined
the complaint, including attached documents, and concluded that the
complaint failed to meet the statute's requirements. The court of
appeals ordered the circuit court to dismiss the complaint without
Defaults - Service of Process
Richards v. First Union
Secs., 2005 WI App 164 (filed 1 June 2005) (ordered published
29 July 2005)
Richards filed an action to recover investment losses he incurred as
a result of alleged securities law violations by First Union Securities.
The circuit court granted a default judgment to Richards and later
denied First Union's motion to reopen the matter despite First Union's
contention that it had not received proper service. The court ruled that
First Union had waived this jurisdictional defect.
The court of appeals, in a decision written by Judge Anderson,
reversed. First, there was no waiver. "Here, First Union did not file
any motions or answers prior to the entry of the default judgment. Thus,
in its motion to vacate the default judgment, its first action before
the court in this case, First Union properly raised its jurisdictional
defense" (¶ 11).
Second, the record showed that the service of process on First Union,
a foreign corporation, was insufficient. Richards had not complied with
the "personal delivery service option." Although Richards personally
served a First Union "employee" in a Wisconsin office, because the
employee "was not an officer, director, or managing agent, she was not
one within the class of persons upon whom corporate service could be
made" (¶ 15).
The court next addressed the "alternative service option" under Wis.
Stat. section 801.11(5)(a). Determining whether a party has complied
with this option "presents two questions: (1) Objectively, was the
location where the summons and complaint were presented `the office of
[an] officer, director or managing agent'? and (2) Subjectively, was it
reasonable for the process server to conclude that the person presented
with the summons and complaint was `the person who is apparently in
charge of the office'?" (¶ 15). Here the issue concerned the status
of the office's "branch manager" as a "managing agent." The court held
that Richards presented insufficient ("scant") evidence under the
objective standard (see ¶ 22).
Judge Brown dissented. He argued that First Union, not Richards, bore
the burden of proof on the issue of whether the branch manager was a
managing agent. Moreover, evidence in the record showed the employee to
be a "managing agent."
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Truth-in-Sentencing - Challenges to
Conditions of Extended
Fisher, 2005 WI App 175 (filed 15 June 2005) (ordered published
29 July 2005)
The defendant was convicted of delivering 5 or fewer grams of
cocaine. Using Wisconsin's truth-in-sentencing laws, the circuit court
imposed a bifurcated sentence of seven years of initial confinement
followed by five years of extended supervision. The court provided as a
condition of extended supervision that the defendant was not to consume
any alcohol-like beverages, go into any taverns or liquor stores, or
have any containers for alcoholic beverages in his residence.
After the defendant's motion for postconviction relief in the circuit
court was unsuccessful, he appealed. The defendant contended, among
other issues, that the supervision conditions described above violate
his constitutional due process rights because they are vague, are
overbroad, and are unrelated to his offense.
The state urged that the appellate court did not need to reach the
merits regarding the supervision conditions because the defendant
prematurely brought his motion to modify those conditions. The state
relied on Wis. Stat. section 302.113(7m)(e)1., which provides in
pertinent part that "an inmate may not petition the court to modify the
conditions of extended supervision earlier than one year before the date
of the inmate's scheduled date of release to extended supervision." The
state also relied on Wis. Stat. section 809.30(1)(c), which expressly
defines "postconviction relief" to exclude petitions under section
In a decision authored by Judge Brown, the court of appeals concluded
that section 302.113(7m)(e)1. unambiguously applies only when an inmate
seeks to make changes to conditions of supervision. In this case the
defendant did not seek merely to make changes to the conditions; he
wanted to abolish them entirely. Said the court, the defendant "does not
ask us to alter the conditions of his supervision by substituting new
terms. He wants us to void them. If a condition of supervision violates
the state or federal constitution, striking that condition is not a
better option but a mandate. To impose a waiting requirement merely
delays the inevitable" (¶ 14).
Having concluded that the defendant's motion was not premature under
the statute cited above, the court reached the merits of his appeal and
concluded that the extended supervision conditions imposed by the
circuit court are unambiguous and reasonably related to the defendant's
rehabilitative needs. Accordingly, the appellate court affirmed the
circuit court judgment and order.
County Jail Time as Condition of
Probation - Power of
Sheriff to Order Home Detention
Galecke, 2005 WI App 172 (filed 30 June 2005) (ordered
published 29 July 2005)
The defendant was convicted of forgery and theft. The Portage County
Circuit Court withheld sentence on each conviction and placed the
defendant on probation with the condition that he serve 270 days in the
county jail. The court granted work release privileges. It also allowed
the defendant to serve his confinement in Outagamie County or any other
county jail that is close to his employment.
Shortly thereafter the Portage County judge learned that the
defendant had been placed on home detention by the Outagamie County
sheriff. The sheriff was acting pursuant to Wis. Stat. section
302.425(2), which provides that subject to certain limitations, a county
sheriff may place on home detention any person confined in jail who has
been arrested for, charged with, convicted of, or sentenced for a
The Portage County judge ordered a probation review and held a
hearing, at which he expressed surprise at the sheriff's decision to
place the defendant on home monitoring and specifically observed that
the court did not authorize home detention. The defendant argued that,
pursuant to State v. Schell, 2003 WI App 78, 261 Wis. 2d 841,
661 N.W.2d 503, the circuit court had no authority to tell a sheriff
whether the sheriff can put a person on home detention. The circuit
court agreed and then ordered the defendant, as a condition of
probation, to refuse home detention. Alternatively, the circuit court
ordered that the defendant be returned to the Portage County jail to
serve 270 days in confinement. The defendant appealed.
In a majority decision authored by Judge Higginbotham, the court of
appeals reversed the circuit court. It concluded, relying on its holding
in Schell, that "the circuit court erred by ordering [the
defendant], as a condition of probation, to refuse participation in the
home detention program" (¶ 7). Section 302.425(2) gives the county
sheriff the discretion to place a defendant in the home detention
program, including defendants ordered to serve jail time as a condition
of probation. "The statute plainly does not give any authority to the
circuit court to determine which defendant is permitted to participate
in the home detention program; the sheriff manages the jail, not the
court" (¶ 10) (citation omitted). Nor can the circuit court avoid
the holding in Schell by ordering the defendant to refuse home
monitoring as a condition of probation (see ¶ 9).
The appellate court also concluded that the circuit court lacked
authority under section 302.45 to order the intrastate transfer of a
jail inmate. The circuit court thus erred by ordering, in the
alternative, the transfer of the defendant from the Outagamie County
jail to the Portage County jail (see ¶ 7).
Judge Dykman filed a dissenting opinion.
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Permissive User - Financial
Bauman, 2005 WI App 165 (filed 22 June 2005) (ordered published
29 July 2005)
Bauman allegedly gave permission to Ohlfs to drive Bauman's Chevy
Tahoe. While Ohlfs was driving the Tahoe on property owned by McKillip,
the vehicle started a fire, which destroyed more than 14,000 trees on
McKillip's property. McKillip sued Bauman and Ohlfs for trespass and
negligence. The circuit court ruled that Ohlfs was not a "permissive
user" of the Tahoe under Bauman's insurance policy and therefore
dismissed Bauman's insurer, Guaranty National. It also ruled that the
financial responsibility statutes did not mandate that the insurer
extend such coverage.
The court of appeals, in a decision written by Judge Anderson,
affirmed. First, by the terms of the policy itself, Ohlfs was not a
permissive user, nor did the policy or other documents - particularly
the wording of the renewal notice - generate any ambiguity. "[T]he
provision in the renewal notice when read in the context of the
entire policy would reasonably lead an insured to only one
conclusion - that the specific conditions set forth in the non-owner
endorsement have to be met for the policy to cover permissive users of
owned vehicles. Because Bauman never notified Guaranty National that he
purchased the Tahoe, Guaranty National never agreed to cover the Tahoe
and Bauman never paid any additional premiums for coverage of the Tahoe,
the policy, as written, does not provide coverage for Ohlfs as a
permissive user of the Tahoe" (¶ 16).
Nor did the financial responsibility statutes mandate that the policy
extend coverage not only to Bauman but also to Ohlfs as a permissive
user of the Tahoe (see ¶ 18). "First, the financial
responsibility statutes, as amended by 1999 Wis. Act 80, §§
62-63, clearly do not require an insurer to issue an owner's policy and
an operator's policy to each insured in every case" (¶ 19).
"Second, the appellants have a fundamental misconception about the
financial responsibility statutes. It is incumbent upon the person
seeking insurance to inform the insurance company of whether he or she
wants an operator's policy, an owner's policy, or both. It is not the
insurer's duty, absent instruction from the insured, to issue both types
of policies" (¶ 20). Thus "[i]t was not Guaranty National's duty to
issue him a policy covering all his owned vehicles and their permissive
users - especially when Bauman had not informed Guaranty National of the
acquisition of any vehicles and had not paid any additional premiums for
coverage of any vehicles. We will not now rewrite Guaranty National's
policy to bind it to a risk it was unwilling to cover, and for which it
was not paid" (¶ 21).
Homeowner's Insurance - Riding
Acuity, 2005 WI App 167 (filed 1 June 2005) (ordered published
29 July 2005)
Quella was cutting grass on a riding mower when the mower threw a
rock that struck the plaintiff in the eye. The plaintiff sued Quella and
Stezenski, the owner of the rental property where the grass was being
cut. Stezenski's home-owner's insurance carrier, Ellington Mutual, filed
a motion for summary judgment, arguing that it provided no coverage for
the accident because Quella was not performing "domestic duties" when
the accident occurred. The circuit court denied Ellington's motion. The
court, however, granted summary judgment dismissing Acuity, which
insured Quella, on the ground that the riding mower fell within an
exclusion to Quella's policy. Ellington Insurance appealed the denial of
its motion and the plaintiff cross-appealed the dismissal of Acuity.
The court of appeals, in an opinion authored by Chief Judge Cane,
affirmed. Quella was an "insured" under Stezenski's homeowner's policy.
"The policy defines insured premises as both the family dwelling shown
on the declarations page and all other premises shown on that page. The
declarations page of Stezenski's policy lists two addresses in Appleton
as insured premises: one is the family's residential address; the other
is the Lawe Street rental property. Finally, the policy states that
liability and medical coverage is extended to `cover the additional
family dwelling(s) described in the declarations.' Despite Ellington's
arguments, therefore, the policy's plain language requires no connection
between domestic duties and the Stezenski family or its convenience. The
policy simply requires that the duty be related to the insured premises
and, in this case, the insured premises include the Lawe Street house
where the accident occurred" (¶ 12).
Turning to the cross-appeal, the court held that a riding lawn mower
unambiguously fell within the exclusion for "motorized land
conveyances." As in an Iowa case, "the Quellas' Acuity policy includes
an exception to the exclusion for motorized land conveyances for
vehicles `not subject to motor vehicle registration ... [u]sed to
service an insured's residence.' The Acuity policy would thus also have
provided coverage if Quella had been mowing his own lawn when an
accident happened. But there would be no need for an exception that
restored coverage for riding lawn mowers that service the insured's
residence unless the motorized land conveyance exclusion applied to the
larger class of riding mowers" (¶ 20). (The court also rebuffed the
plaintiff's argument that the riding mower nonetheless fell within an
exclusion exception for "recreational" vehicles.)
Finally, the plaintiff unsuccessfully argued that her injury was
caused not by the riding mower's operation but by the "operation of the
mower's cutting deck," which thereby constituted an "independent
concurrent cause" (see ¶ 23). "When an insurance policy
expressly insures against loss caused by one risk, but excludes loss
caused by another risk, coverage is extended to a loss caused by the
insured risk even though the excluded risk is a contributory cause. ...
Without the operation of the excluded risk, the riding mower, the
cutting deck could not have caused the stone to fly up and injure
[plaintiff]. ... [I]n this case, the cutting deck could not have
turned a stone into a dangerous projectile unless it was part of the
riding mower, an excluded risk" (¶¶ 24-25).
Umbrella Policy - Permissive
Dorbritz v. American
Family Mut. Ins. Co., 2005 WI 154 (filed 17 May 2005) (ordered
published 29 July 2005)
Dorbritz was seriously injured when his car was struck by a vehicle
driven by Lember. The car's owner, Lisa Habersbrunner, carried $100,000
in personal liability insurance issued by American Family. Lisa also was
listed on a special endorsement in her parents' personal liability
umbrella policy, also issued by American Family. Lember, the driver,
carried $100,000 in liability coverage issued by Prudential. American
Family paid the $100,000 under Lisa's liability coverage but denied that
Lember (the driver) was an "insured" under the parents' umbrella
On motions for summary judgment, the circuit court found: "(1) the
umbrella policy covered Lisa Habersbrunner's car; (2) Lember was covered
by the umbrella policy under Wis. Stat. § 632.32 as a permissive
user; and (3) after the limits of American Family's umbrella policy were
exhausted, the Dorbritzes could recover under the Prudential policy"
The court of appeals, in a decision written by Judge Fine, affirmed.
The umbrella policy's special endorsement included Lisa's name; thus, it
covered her car. The next issue was whether Wis. Stat. section
632.32(3)(a) extended this coverage to Lember as a permissive user of
Lisa's car. "Here, the statute by its plain language provides coverage
for Lember. The policy was issued to `owner[s]' Albert and Mary
Habers-brunner. Lember was `any person,' and Lisa Habersbrunner's car
was `any motor vehicle described in the policy'" (¶ 14).
American Family next argued that the circuit court erred when the
court found that its umbrella policy was primary to Prudential's
coverage, but the court of appeals found that American Family waived
this argument by not raising it during the summary judgment hearing.
Specifically, "American Family's lawyer neither objected to the trial
court's ordering of the policies nor the Dorbritzes' lawyer's assertion
that insurance policies covering the car are applied first" (¶ 17).
Nor did American Family's lawyer timely object to the proposed wording
of the court order. Finally, asserting that this case was not
"exceptional," the court refused to visit the issue under its
discretionary reversal authority provided by Wis. Stat. section 752.35
(see ¶ 19).
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Motor Vehicle Law
OWI - Implied Consent - No Right to
Alternative Test After
Driver Released from Custody
Fahey, 2005 WI App 171 (filed 30 June 2005) (ordered published
29 July 2005)
The defendant was arrested for operating a vehicle while intoxicated
(OWI). Pursuant to the implied consent law he submitted to breath
testing. He also was advised of his right to an alternative test at the
expense of the police agency. He did not request an alternative test and
was released from police custody to the custody of his wife.
Approximately 15 minutes later the defendant returned to the police
station and, for the first time, told police that he wanted an
alternative test. The officer declined to provide such a test at
government expense, telling the defendant that he could go to the
hospital and get a blood test done at his own expense.
The defendant moved the circuit court to suppress the results of his
breath test, alleging that the arresting officer failed to abide by the
implied consent law when the officer declined the defendant's request
for an alternative chemical test at agency expense. The circuit court
denied the suppression motion. The defendant subsequently was convicted
In a decision authored by Judge Lundsten, the court of appeals
affirmed. Said the court, "we hold that, where police have informed a
suspect of his or her right to an alternative test at agency expense,
the suspect has ample opportunity to make a request, the suspect makes
no request, and the suspect is released from custody and leaves the
presence of custodial police, a subsequent request for an alternative
test at agency expense is not a request within the meaning of sec.
343.305(5)(a) [the implied consent law]" (¶ 1). The court observed
that its construction of the statute does not prevent suspects from
obtaining evidence; rather, it places a reasonable limit on their
ability to do so at taxpayer expense. "[The defendant] was free to
obtain an alternative test, but it was too late to ask for one provided
at agency expense" (¶ 17).
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Town Roads - Power to Name Town
Liberty Grove Town
Bd. v. Door County Bd. of Supervisors, 2005 WI App 166 (filed 7
June 2005) (ordered published 29 July 2005)
In 2000 Door County passed an ordinance that established a naming and
numbering system for roads in unincorporated portions of the county. The
county sought to eliminate duplicate road names within the county
because duplication presents problems for emergency services,
particularly the 911 emergency dispatch system. The county requested the
town of Liberty Grove to change 20 road names. Liberty Grove refused to
change seven of them and commenced this action seeking a declaratory
judgment that towns, not counties, have the exclusive right to name town
roads. The circuit court granted the county's motion for summary
judgment and dismissed the town's complaint.
In a decision authored by Judge Peterson, the court of appeals
affirmed. "We conclude that a town has initial authority to name town
roads by virtue of Wis. Stat. § 81.01(11). However, the town's
authority is subject to the county's discretionary authority, under Wis.
Stat. § 59.54(4), to establish a road naming and numbering system
for the specific purpose of aiding in fire protection, emergency
services and civil defense. A county may cooperate with a town regarding
road name changes. See Wis. Stat. § 59.54(4m). Ultimately,
however, a county has authority to implement name changes, even if a
town does not consent, when the name changes are made under the system
pursuant to Wis. Stat. § 59.54" (¶ 15).
Conditional Use Permits - Revocation of
CUP Not a Regulatory
Rainbow Springs Golf
Co. v. Town of Mukwonago, 2005 WI App 163 (filed 1 June 2005)
(ordered published 29 July 2005)
In 2003 the town of Mukwonago revoked a conditional use permit (CUP)
and three addenda thereto that permitted various uses of land owned by
the Rainbow Springs Golf Company Inc. Rainbow Springs argued that the
CUP was a vested property right and that the deprivation of that right
through the town's revocation was an unconstitutional taking without
just compensation. The circuit court dismissed the takings claim.
In a decision authored by Judge Brown, the court of appeals affirmed.
It concluded that "a CUP merely represents a species of zoning
designations. Because landowners have no property interest in zoning
designations applicable to their properties, we hold that a CUP is not
property and affirm the circuit court's determination that no taking
occurred by virtue of the Town's revocation" (¶ 1).