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    This column summarizes selected published opinions of the Wisconsin Court of Appeals.


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    Vol. 79, No. 3, March 2006

    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

    * *

    Administrative Law

    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 commission's clerk.

    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" (¶¶ 17-18).

    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 ¶¶ 19-23).

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    Civil Procedure

    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 truly, GKF.'"

    (¶ 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

    Tietsworth v. 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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    Commercial Law
    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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    Criminal Procedure
    Stop and Frisk - Protective Search of Vehicle

    State v. 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. 1032 (1983).

    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

    State v. 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 (see id.).

    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

    State v. 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 conclusion.

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    Education Law
    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" (¶ 2).

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    Family Law
    Domestic Abuse Injunctions - Extension of Injunctions Issued for Less Than Four Years

    Switzer v. 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 petitioner's contention.

    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 v. 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." (¶ 8).

    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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    Guardianships
    Medical Records - Release - "Patient Believed Incompetent"

    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 records.

    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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    Property
    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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