Vol. 79, No. 3, March
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
Wis. Stat. chapter 227 - Petition for Rehearing Not "Filed"
in Timely Manner - Meaning of "File"
Currier v. Wisconsin
Dep't of Revenue, 2006 WI App 12 (filed 14 Dec. 2005) (ordered
published 25 Jan. 2006)
On June 16, 2004, the Wisconsin Tax Appeals Commission (the
commission) served Currier with a decision and order upholding a tax
assessment imposed against him by the Wisconsin Department of Revenue
(DOR). Currier sent a petition for rehearing to the commission by mail
on July 6, 2004. The petition was received the next day by the
On July 13, 2004 the commission issued an order denying the petition
for rehearing on the ground that the petition was untimely under Wis.
Stat. section 227.49(1). The commission stated, "The 20-day period for
filing a timely petition for rehearing expired on July 6, 2004.
Petitioner filed his petition for rehearing on July 7, 2004, one day
late. [See Wis. Stat. § 227.49(1)]" (¶ 5).
On Aug. 11, 2004, Currier filed a petition for review in the circuit
court pursuant to Wis. Stat. section 227.53(1), the statutory provision
authorizing judicial review of agency decisions. On Sept. 1, 2004, the
DOR moved to dismiss the petition. The DOR argued that section
227.53(1)(a)2. requires a party to file a petition for judicial review
within 30 days of service of the commission's decision and that Currier
had filed his petition for judicial review on August 11, which was more
than 30 days after service of the commission's June 16 decision. The DOR
said that it recognized that section 227.53(1)(a)2. expands the time for
filing of a petition for judicial review if the party has requested a
rehearing but alleged that Currier's untimely petition for rehearing did
not serve to extend the deadline. The circuit court granted the DOR's
motion and dismissed the petition. In a decision authored by Reserve
Judge LaRocque, the court of appeals affirmed.
With regard to Currier's petition for rehearing before the
commission, Wis. Stat. section 227.49(1) expressly requires a person
petitioning for rehearing from an agency decision to "file" the petition
within 20 days of service of the agency's decision. The appellate court
concluded that "the filing of a petition for rehearing under §
227.49(1) is not accomplished upon its mailing. Rather, a petition is
filed when it is physically delivered to and received by the relevant
authority. Here, the Commission served its decision on June 16, which
would mean that the twenty-day time limit for filing a petition for
rehearing expired on July 6. See Wis. Stat. § 227.49(1).
While Currier's petition was postmarked July 6, the petition was not
delivered to and received by the Commission until July 7. Because
Currier's petition was not delivered to and received by the Commission
until twenty-one days after service of the Commission's original
decision, Currier's petition was not timely filed" (¶¶
The court further concluded that, because Currier's petition for
rehearing was not timely filed, the 30-day time period for filing a
petition for judicial review (see Wis. Stat. §
227.53(1)(a)2.) was not extended. Currier was therefore required to file
his petition for circuit court review within 30 days after service of
the commission's original adverse decision. The commission served its
original decision on June 16, and Currier did not file his petition
until August 11, which was clearly outside the confines of the 30-day
period. Accordingly, the circuit court lacked competency to proceed and
correctly dismissed the petition for judicial review (see
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Settlement Proposal - Attorney's Initials
Waite v. Easton-White
Creek Lions Inc.,
2006 WI App 19 (filed 22 Dec. 2005) (ordered published 25 Jan. 2006)
Waite (the plaintiff) and Easton-White Creek Lions (the defendant)
were in a will dispute. The plaintiff's lawyer received a written
settlement offer from the defendant's lawyer. The next day the
plaintiff's lawyer sent to the defendant's lawyer a "FAX TRANSMITTAL
LETTER" that stated that the plaintiff accepted the offer. "The faxed
acceptance bore the letterhead of Waite's counsel but not his signature.
The 'MESSAGE' portion of the document concluded as follows: 'Yours very
(¶ 3). When the plaintiff later changed her mind and refused to
honor the settlement, the circuit court granted the defendant's motion
to enforce the agreement, "concluding that Waite's counsel's typewritten
initials were the equivalent of the rubber stamp signature held by the
supreme court to be 'subscription' for purposes of Wis. Stat. §
807.05" (¶ 4) (citation omitted).
The court of appeals, in an opinion written by Judge Deininger,
affirmed. Because the offer was in writing, also as required by section
807.05, the dispositive issue was whether "the typewritten initials of
Waite's counsel at the conclusion of the acceptance letter satisf[ied]
the requirement that a writing evidencing an agreement be 'subscribed by
the party to be bound thereby or the party's attorney'"(¶ 7).
Applying case law and construing the statute, the court held that the
lawyer's initials sufficed, especially since "Waite does not claim that
her counsel's initials were affixed to the acceptance without
[counsel's] authority" (¶ 13).
Remittitur - Amending Claims - Reopening Case
Harley-Davidson Inc., 2006 WI App 5
(filed 13 Dec. 2005) (ordered published 25 Jan. 2006)
The plaintiffs filed a class action lawsuit against Harley-Davidson
in 2001. In 2004 the supreme court ruled in favor of Harley-Davidson by
affirming a judgment dismissing the case (see Tietsworth v.
Harley-Davidson Inc., 2004 WI 32), but the court also "explicitly
recognized that the plaintiffs had contract and warranty remedies that
had not been asserted in the complaint[.]" (¶ 5) The remittitur
order stated that "the decision of the court of appeals is reversed" but
included no further instructions. Following remittitur, the plaintiffs
moved to reopen the case and asked to amend their complaint, but the
circuit court denied the motion on the ground that a circuit court may
not allow amendments of pleadings when the supreme court affirms the
dismissal of a case (see ¶ 8).
The court of appeals, in an opinion authored by Judge Wedemeyer,
reversed. "The mandate by the supreme court in this case simply
'reversed the decision of the court of appeals' and remanded the matter
to the trial court. The supreme court's decision did not affirm a
judgment of dismissal or direct that a judgment of dismissal be entered.
The only trial court order, which this court reversed on appeal, was
dismissal of the tort claims" (¶ 14). The supreme court's mandate
"left open the opportunity for the plaintiffs to pursue contract and
warranty claims. The opinion itself suggested this option was available
as a remedy to the plaintiffs" (¶ 15). Thus, the circuit court
should have granted the motion to reopen.
The court of appeals also held that the plaintiffs should have been
granted leave to amend their complaint. "Here, we conclude that, based
on the language of the supreme court's decision remanding this matter to
the trial court, justice requires that the trial court allow Tietsworth
to file the amended complaint asserting the contract/warranty claims and
proceed to litigate the merits of those claims. There is no dispute that
the amended complaint arises out of the same transaction or set of
facts. There is no dispute that Harley-Davidson is well aware of the
transactions at issue here and what Tietsworth's claims are. It has
known since the date of the supreme court's decision in this case, March
26, 2004, that these claims exist and that the highest court in this
state concluded that Tietsworth is entitled to pursue them. Thus, we
conclude that the trial court should have permitted the amendment 'so as
to remove the technical obstacles to a litigation of the merits of the
controversy'" (¶ 24) (citation omitted).
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Gasoline Prices - Unfair Practices
22 Shawano LLC v. Dr.
R.C. Samanta Roy Inst. of Sci. & Tech., 2006 WI App 14
(filed 28 Dec. 2005) (ordered published 25 Jan. 2006)
Six gas stations brought a private enforcement action against the
Institute, which also operated a local gas station. The stations alleged
that the Institute unlawfully set its gasoline prices. The court of
appeals, in an opinion written by Judge Peterson, reversed the circuit
court's judgment against the Institute.
As succinctly stated by the court, "The Wisconsin Unfair Sales Act,
Wis. Stat. § 100.30, generally prohibits a retailer from selling
gasoline below cost. However, the Act does not apply when a retailer
acts in good faith to meet a competitor's price. In this case, the
circuit court concluded the retailer did not act in good faith when it
sold gasoline below cost and entered judgment accordingly. The court
appeared to interpret the Act to require retailers to survey
competitors' prices at least every twenty-four hours. Because the Act
imposes no such requirement, we conclude the court erred when it found
the retailer violated the Act" (¶ 1). The stations conceded that
the Institute filed the requisite notice with the appropriate state
agency on the date it lowered prices, so the only issue concerned
whether it acted in good faith (see ¶ 9). The court of
appeals said that there was no evidence that the Institute delayed a
price survey or set its price with the intent to defraud or seek an
unconscionable advantage (see ¶ 15).
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Stop and Frisk - Protective Search of Vehicle
Johnson, 2006 WI App 15 (filed 14 Dec. 2005) (ordered published
25 Jan. 2006)
The defendant, while driving a car with an emissions suspension,
failed to signal a turn. Two police officers stopped the vehicle. It was
dark when the stop occurred, but streetlights illuminated the inside of
the vehicle. One officer observed the driver "lean forward" and "his
head go lower and come back up" (see ¶ 3). Although the
officer could not see the driver's hands, the officer stated that the
driver appeared to be reaching underneath his seat. The officer observed
no other "suspicious movements" (see id.). The second officer
testified that he saw "the driver of the vehicle make a strong furtive
movement bending down as if he was reaching for underneath the seat that
he was sitting at" (see id.). Both officers testified that, in
their experience, the driver's activity was consistent with efforts to
conceal contraband or weapons in the course of a traffic stop. Neither
officer had had any prior contact with the driver. At some point, the
officers also noticed that there was a passenger in the car.
One of the officers asked the driver to step out of the vehicle "due
to the furtive movement that [he] had seen upon stopping the vehicle"
(¶ 4). Police testimony indicated that this was done "for officer
safety, not knowing what maybe he had been reaching for to either grab
or to put down thinking it could possibly be a weapon that could injure
us. We had him exit from the vehicle so we could see [the driver's]
movements, hands, anything on his possession at that time"
(id.). The officers then frisked the driver for weapons. During
this procedure he fell down. The driver claimed this was due to a "bad
leg" and the officers accommodated him by having him sit on the curb.
One of the officers then looked under the driver's seat of the vehicle
and found a baggie of marijuana.
In the subsequent drug prosecution the defendant-driver moved to
suppress the drugs seized from his vehicle. The circuit court denied the
motion, and the defendant entered a plea of no contest. On appeal the
defendant argued that the protective search of his vehicle following the
routine traffic stop was unlawful because the record did not establish a
sufficient specific and articulable basis for an objectively reasonable
belief that he was armed and dangerous. In a decision authored by Judge
Anderson, the court of appeals agreed.
Under Terry v. Ohio, 392 U.S. 1 (1968), a police officer may
conduct a protective frisk for weapons in a situation in which the
officer has reason to believe that he or she is dealing with an armed
and dangerous individual. Courts have subsequently expanded the scope of
a Terry frisk to include a search of the passenger compartment
of the individual's vehicle. See Michigan v. Long, 463 U.S.
In this case the state emphasized two factors as supporting the
reasonableness of the officers' suspicion that the defendant was armed:
the "furtive" movement described above and the defendant's falling down
during the frisk of his person. Both officers testified that in their
experience such movements may be connected with attempts to conceal
contraband or weapons.
The appellate court agreed that suspicious gestures are certainly
important factors to consider in determining whether a protective search
of a vehicle was reasonable. "However, 'furtive' or suspicious movements
do not automatically give rise to an objectively reasonable suspicion
that the occupant of the vehicle is armed and dangerous. See,
e.g., [State v.] Kyles, 269 Wis. 2d 1,
¶¶48-50 (refusing to adopt per se rules that if certain facts
are present - such as 'hands in pockets' - reasonable suspicion exists
as a matter of law). We must consider such movements in light of the
totality of the circumstances" (¶ 17).
The court concluded that "the two key factors the State emphasizes,
[the defendant's] 'furtive' movement in the car and his falling down
during the pat down of his person, when considered under the totality of
the circumstances, were not sufficient to create an objectively
reasonable suspicion that [the defendant] harbored a weapon and
presented a threat to the safety of the officers. The officers pulled
[the defendant] over for traffic violations - an emissions suspension,
perhaps, a turn without a signal - and not for a crime. In response,
[the defendant] produced documentation that the vehicle had passed the
emissions test. The officers had no prior contacts with [the defendant]
that would suggest that he would be armed or otherwise dangerous. While
it was dark out when the officers conducted the stop, it was only late
afternoon and the streetlights provided adequate illumination of the
vehicle. Also, the State does not argue that the location of the stop
was a high crime area. While [the defendant] did fall down when [the
officer] frisked him, the record does not demonstrate that the officers
considered this suspicious. [The defendant] claimed this was due to a
'bad leg' and the officers accommodated him by having him sit on the
curb. Further, although [the defendant] was 'upset' during the stop, he
made no other suspicious movements in the car and was otherwise
cooperative and complied with the officers' directions" (¶ 18).
Accordingly, the court of appeals concluded that the protective search
of the vehicle was unlawful.
Impeaching Verdict - Confrontation
Searcy, 2006 WI App 8 (filed 21 Dec. 2006) (ordered published
25 Jan. 2006)
The defendant was charged with and convicted of two counts of
burglary. The court of appeals, in an opinion authored by Judge
Anderson, affirmed the conviction.
The defendant alleged that jurors improperly became aware of his
prior burglary convictions because of one juror's research on the
Consolidated Court Automation Programs (CCAP) Web site. "Under Wis.
Stat. § 906.06(2), the party seeking to impeach the verdict must
demonstrate that a juror's testimony is admissible by establishing that:
(1) the juror's testimony concerns extraneous information (rather than
the deliberative process of the jurors), (2) the extraneous information
was improperly brought to the jury's attention, and (3) the extraneous
information was potentially prejudicial" (¶ 32). The state did not
challenge the trial court's implicit determination that this standard
had been met and that a juror could thus testify about the matter
The court of appeals held that the trial judge properly determined
that the defendant "failed to establish by clear and convincing evidence
that jurors were exposed to prejudicial information concerning [his]
prior burglary convictions through a juror's research on CCAP" (¶
34). Testimony by this juror, who later came to "regret" her decision to
convict, was "ambiguous, indefinite, and equivocal"; thus, there was
insufficient proof that the jury had been exposed to "extraneous
prejudicial information" (¶ 39).
The defendant also argued that his confrontation rights were violated
by the admission into evidence of statements made by his cousin, Adams,
at the time of the defendant's arrest. Adams told police, in effect,
that the defendant was her cousin and was staying with her. The
prosecution used this statement to tie the defendant to stolen property
later recovered in the cousin's house.
The court of appeals held that the statement was admissible under the
rules of evidence as an excited utterance, and that the statement was
nontestimonial within the meaning of Crawford v. Washington,
541 U.S. 36 (2004) and State v. Manuel, 2005 WI 75. "There is
no evidence in the record demonstrating that the statements were made in
response to a tactically structured police interrogation, or in response
to any questioning at all. Given the informal, unstructured nature of
the interaction, Adams could not have reasonably anticipated that she
was bearing witness and her utterances could impact future legal
proceedings" (¶ 53). The introduction of the statement also
satisfied the reliability analysis established by Ohio v.
Roberts, 448 U.S. 56 (1980), which Manuel held applicable
to nontestimonial hearsay (see ¶ 56). (The court of
appeals addressed several other hearsay issues, which it dispatched
under a harmless error analysis, and also dealt with an issue concerning
sufficiency of evidence.)
Confrontation - Expert Testimony
Barton, 2006 WI App 18 (filed 28 Dec. 2005) (ordered published
25 Jan. 2006)
The court of appeals, in an opinion written by Chief Judge Cane,
affirmed the defendant's conviction for arson. The main issue concerned
the admissibility of expert testimony to the effect that the defendant
had intentionally set the fire. The crime laboratory technician who
performed the original chemical analyses retired before the trial and
did not appear to testify. The state instead called the crime lab's
technical unit leader who had performed peer reviews of the technician's
tests and who presented to the jury his own conclusions regarding the
tests (see ¶ 4).
In affirming the conviction, the court of appeals applied State
v. Williams, 2002 WI 58, and rejected the defendant's argument that
Williams was effectively undone by Crawford v.
Washington, 541 U.S. 36 (2004). "A defendant's confrontation right
is satisfied if a qualified expert testifies as to his or her
independent opinion, even if the opinion is based in part on the work of
another. We do not see, and [the defendant] fails to explain, how
Crawfordprevents a qualified expert from testifying in place of
an unavailable expert and is presenting his or her own opinion"
(¶ 20). Case law from other jurisdictions supported the court's
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Student Misconduct - Power of School District to Review
Hearing Officer's Decision Not to Expel Student
Madison Metro. Sch.
Dist. v. Burmaster, 2006 WI App 17 (filed 15 Dec. 2005)
(ordered published 25 Jan. 2006)
A sixth-grade student was charged by the Madison Metropolitan School
District with violating district policy by possessing an object (a
pencil) that might be used as a weapon and by using it to stab another
student in the arm while on school property. After a hearing on the
charges took place, the hearing officer concluded that the student had
violated district policy by stabbing the other pupil with a pencil, but
that the interest of the school did not require the student's expulsion.
The officer entered an order that the student not be expelled.
The district board of education reversed the hearing officer's
decision and ordered that the student be expelled. The student appealed
the board's decision to the state superintendent of public instruction.
The superintendent concluded that the district did not have the
statutory authority to expel the student after the hearing officer
appointed pursuant to Wis. Stat. section 120.13(1)(e) to hear expulsion
cases decided not to order expulsion. The circuit court affirmed the
superintendent's decision, and the district appealed.
In a decision authored by Judge Vergeront, the court of appeals
affirmed the circuit court. It concluded that "the only reasonable
construction of Wis. Stat. § 120.13(1)(e)3. is that, if a school
district elects to have a hearing officer conduct an expulsion hearing,
the District must comply with the procedures specified in that
paragraph. Because para. (e)3. provides for review by the board of a
hearing officer's decision only if the officer has ordered expulsion,
the board did not have the authority to review and reverse the hearing
officer's decision not to order [the student's] expulsion" (¶
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Domestic Abuse Injunctions - Extension of Injunctions Issued
for Less Than Four Years
Switzer, 2006 WI App 10 (filed 22 Dec. 2005) (ordered published
25 Jan. 2006)
The petitioner, who was seeking protection from her husband,
requested that a domestic abuse injunction be issued. She did not
indicate on the petition the period of time for which she wished to have
the injunction in effect. The circuit court issued the injunction. The
duration of the injunction was less than the statutory maximum duration
of four years. On the petitioner's request, the circuit court
subsequently extended the duration for an additional 60 days. The
circuit court denied a second request for extension on the ground that
the court had lost personal jurisdiction over the respondent because the
first extension order had expired before "any further injunction [being]
duly moved ...." (¶ 8).
The petitioner appealed. Among her claims on appeal was that the
circuit court erred by denying her request for an extension. In a
decision authored by Judge Higginbotham, the court of appeals agreed
with the petitioner.
Under Wis. Stat. section 813.12(4)(c)2., "[w]hen an injunction
granted for less than 4 years expires, the court shall extend the
injunction if the petitioner states that an extension is necessary to
protect him or her. This extension shall remain in effect until 4 years
after the date the court first entered the injunction." The petitioner
argued that under the clear and unambiguous language of section
813.12(4)(c)2., the circuit court was required to extend the injunction,
even after it expired. The court of appeals concluded that the only
reasonable interpretation of section 813.12(4)(c)2. supports the
The Wisconsin statutes create the option of obtaining an injunction
for up to four years at an initial injunction hearing. "However, in
those instances when a victim, for whatever reason, decides at the
injunction hearing to forego the full four years, under this statutory
framework a victim may return to court and obtain an extension for up to
the remaining four years. See Wis. Stat. § 813.12(4)(c)2.
This is so even where the injunction has expired. This statutory scheme
affords victims flexibility by tailoring the initial injunction to fit
their own unique circumstances at the time; the degree of risk he or she
perceives at the initial injunction hearing may not warrant a four-year
injunction. On the other hand, should those circumstances change such
that longer protection is required, victims may, by simply requesting in
a letter or other writing, obtain an injunction for up to the duration
they were initially entitled to receive" (¶ 15).
Physical Placement Enforcement Proceedings - Award of
Guardian ad Litem Fees to Prevailing Petitioner
Bernier, 2006 WI App 2 (filed 15 Dec. 2005) (ordered published
25 Jan. 2006)
This appeal arose from a circuit court judgment and order dividing
equally the guardian ad litem fees in a physical placement enforcement
action brought under Wis. Stat. section 767.242. The appellant, the
ex-husband, argued that the circuit court erred by ordering him to pay
50% of the guardian ad litem fees. The court of appeals framed this
particular issue as "whether a circuit court is required to award
guardian ad litem fees to a prevailing petitioner in a § 767.242
physical placement enforcement proceeding as part of the 'cost of
maintaining an action under this section....' Section 767.242(5)(b)1.b."
In a majority decision authored by Judge Higginbotham, the court
concluded that "a successful party in a Wis. Stat. § 767.242
proceeding is entitled to recover the guardian ad litem fees
attributable to him or her as part of the 'cost of maintaining an action
under' § 767.242(5)(b)1.b. This reading of the statute [e]nsures
that the full cost of enforcing physical placement rights falls on the
interfering parent, not on the aggrieved parent" (¶ 17). Said the
court, "[t]he result of our analysis is that, pursuant to Wis. Stat.
§ 767.045(6), a circuit court may allocate guardian ad litem fees
between the parties when it makes a finding that a respondent has
intentionally and unreasonably denied physical placement or interfered
with the petitioner's periods of physical placement. But when it makes
one or both of those findings, the court must then award the petitioner
whatever amount it has allocated to the petitioner" (¶ 21).
The court recognized that "this procedure may prove cumbersome in
some cases but it preserves the legislative intent behind both Wis.
Stat. §§ 767.045(6) and 767.242(5)(b). Admittedly, this
procedure may burden a wronged petitioner where a respondent will not
pay ordered guardian ad litem fees. In that instance a contempt order
may issue, protecting the wronged parent to the greatest extent possible
under the circumstances. However, this approach assists in protecting,
where possible, fees a guardian ad litem reasonably expects will be
paid" (¶ 22).
Judge Deininger filed a dissenting opinion.
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Medical Records - Release - "Patient Believed
Szymczak v. Terrace at
St. Francis, 2006 WI App 3 (filed 28 Dec. 2005) (ordered
published 25 Jan. 2006)
James (the son) sued to compel a nursing home to release his mother's
medical records and sought monetary damages pursuant to Wis. Stat.
section 146.84(1)(b) (2003-04). Previously, the mother had given the son
power of attorney for her health care decisions. The litigation arose
out of a petition for guardianship and protective placement of the
mother that was filed by a hospital. The son was not permitted to
intervene in that action. The record presents the tangled story of the
son's attempts to prevent his mother's commitment to an assisted living
facility. The nursing home (Terrace) contended that the mother was
incompetent to make health care decisions, but the son thought that she
was competent. The circuit court granted summary judgment in favor of
the nursing home, thus refusing the son access to his mother's medical
In a decision authored by Judge Curley, the court of appeals
reversed. The son argued that he complied with Wis. Stat. section
146.81(2), which authorizes disclosure, when he presented a document
containing the requisite information "in an attempt to learn who
authorized his mother's admission" into the nursing home (¶ 17).
"The Terrace counter[ed] that it had a right to refuse to release the
medical records because there exists an underlying assumption in the
informed consent law that the person giving consent has the mental
capacity to do so, and here, there was no informed consent because the
Terrace had reason to believe that [the mother] was possibly
incompetent" (¶ 18).
The issue here concerned whether the son could access the mother's
medical records even though she had not been declared incompetent (and
despite the Terrace's contention that she was incompetent). Thus, the
court looked to Wis. Stat. section 146.81(5), which concerns a "patient
believed incompetent to consent to the release of records" and provides
that "'[a] court may appoint a temporary guardian for a patient believed
incompetent to consent to the release of records under this section as
the person authorized by the patient to decide upon the release of
records, if no guardian has been appointed for the patient.' Although a
guardian had been appointed for [the mother] in the guardianship
proceeding, it is clear that the trial court gave the guardian no
authority to release [the mother's] medical records. Moreover, no one
petitioned the trial court presiding over the guardianship to appoint a
guardian for the purpose of deciding who could obtain the medical
records" (¶ 21).
The court held that under these circumstances the Terrace had the
burden of notifying the court, because it deemed the mother incompetent.
"Thus, we conclude that the Terrace should have done more than simply
deny [the son's] request for his mother's medical records. As the
statute directs, the Terrace should have petitioned the court for the
appointment of a temporary guardian. We are also of the opinion that
giving the medical records custodian decision-making power over who is
entitled to medical records is poor public policy. If the records
contain information damaging to the custodian or others associated with
the custodian, including colleagues, they may deny access for fear of
disclosure" (¶ 24).
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Renters - Standing
Zehner v. Village of
Marshall, 2006 WI App 6 (filed 8 Dec. 2006) (ordered published
25 Jan. 2006)
Mobile home renters sued their landlord and their municipality. In
essence, they claimed that the municipality charged unreasonably high
water and sewer fees, which the landlord passed on to them in the form
of higher rents. The circuit court dismissed the renters' declaratory
judgment action against the village because the plaintiffs lacked
standing. The court dismissed the renters' claim against the landlord
for failure to state a claim.
The court of appeals, in an opinion written by Judge Lundsten,
affirmed. First, as to the action against the village, the court of
appeals held that the renters lacked standing. "Taking the facts alleged
in the complaint as true, they do not establish the sort of direct
effect on the renters necessary to confer standing. In particular, the
renters have not alleged that, if they prevail, [the landlord] would be
required to reduce their rent. Thus, declaratory relief against the
Village may or may not have an effect on the renters. A beneficial
effect to the renters is, therefore, speculative" (¶ 13).
"We note that if the renters here have standing to obtain declaratory
relief, it would seem that renters have standing in a wide variety of
situations where landlords are arguably overcharged. For example,
renters in an apartment building could go to court and challenge the
property value assessment of the building for property tax purposes
because of an alleged effect on rent. For that matter, it would seem
that renters could obtain declaratory relief if they proved that a
building owner was paying higher costs because the owner was not getting
all the owner was entitled to under a service contract with a private
company. We think it apparent that a more direct connection is required
to confer standing" (¶ 14).
Second, the court of appeals held that the complaint did not state a
valid claim against the landlord under the common law, the
administrative code, or pertinent landlord-tenant statutes. The court of
appeals found scant support for the first two theories. Likewise, the
renters' theory that Wis. Stat. section 704.07 supported their claim
also failed. "The renters contend that subsection (2) [of § 704.07]
authorizes an independent cause of action for defective conditions that
do not rise to the level of a health or safety hazard, but are
nonetheless the result of the failure of a landlord to maintain
equipment in a reasonable state of repair. [The landlord] responds that
subsection (4) is an exclusive remedy clause for violations of
subsection (2), and that [case law] supports this view. We agree with
[the landlord]"(¶ 29). "[T]o maintain an action under Wis. Stat.
§ 704.07, the renters needed to allege that the condition of the
sewer pipes either made the property untenantable or that the failure to
maintain the sewer pipes affected the renters' health or safety. They
alleged neither" (¶ 32).
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