Vol. 79, No. 6, June
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
Child Abuse - Reconsideration - Recantation
Jay M.H. v. Winnebago
County Dep't of Health & Human Servs., 2006 WI App 66
(filed 29 March 2006) (ordered published 26 April 2006)
The Winnebago County Department of Health and Human Services
determined that allegations of child abuse against a doctor had been
substantiated. The doctor requested an evidentiary hearing before an
administrative law judge (ALJ), who issued a "final determination"
pursuant to Wis. Stat. section 68.12(1). The circuit court affirmed the
final determination. Several months later the doctor filed a motion to
reconsider on the ground that the complainant had recanted her
allegations. The circuit court denied the motion to reconsider, stating
that it lacked authority to order a remand.
The court of appeals, in an opinion written by Judge Snyder,
reversed. "We are satisfied that Wis. Stat. § 68.13 unambiguously
provides authority for the remand of the agency final order for further
proceedings necessary to insure the legislative purpose set forth in
Wis. Stat. § 68.001. Accordingly, we next address whether the
circuit court had authority to remand the Wis. Stat. § 68.12 final
determination to the ALJ based upon a reconsideration motion that
presents newly discovered recantation evidence" (¶ 7).
Reconsideration based on recanted evidence is primarily a feature of
criminal law, which provides standards that also should govern in Wis.
Stat. chapter 68 cases: recantation "evidence [is] potentially
sufficient for relief if the following criteria [are] shown by clear and
convincing evidence: (1) the evidence was discovered after the
conviction, (2) the defendant was not negligent in seeking evidence, (3)
the evidence is material to an issue in the case, (4) the evidence is
not merely cumulative, and (5) the recantation evidence is corroborated
by other newly discovered evidence" (¶ 12). The court of appeals
remanded the matter to the circuit court for a determination of whether
the recantation evidence met these standards.
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Default Judgment - Excusable Neglect
Mohns Inc. v. TCF Nat'l
Bank, 2006 WI App 65 (filed 28 March 2006) (ordered published
26 April 2006)
Mohns had a business checking account with TCF Bank. Mohns reported
that various checks had been stolen, forged, and cashed without its
consent, but TCF ignored Mohns' repeated requests for reimbursement.
Mohns filed this lawsuit against TCF seeking reimbursement, but TCF
never answered. Service was properly made. Mohns then moved for, and
received, a default judgment. Three weeks after receiving Mohns' demand
letter, which was based on the default judgment, TCF moved to vacate on
the ground of excusable neglect. TCF claimed that the pleadings were
"lost in transit" when TCF moved its legal department. The circuit court
granted the motion to vacate.
The court of appeals, in a decision authored by Judge Fine, reversed.
Excusable neglect, the court explained, "is not synonymous with
carelessness or inattentiveness, and it is not sufficient that the
failure to answer in a timely manner be unintentional and in that sense
a mistake or inadvertent, `since nearly any pattern of conduct resulting
in default could alternatively be cast as due to mistake or inadvertence
or neglect'" (¶ 9). The record failed to disclose any proper excuse
for TCF's lapse. Although TCF claimed that it had "well-established
procedures" that ensured the "orderly and timely handling of legal
process," it failed to "demonstrate either why those procedures, if as
efficacious as it implies, did not alert TCF that a suit was potentially
imminent (as it was told by Mohns's many letters, which TCF does not
deny receiving), or why those `well-established procedures' could not
accommodate what the Record reflects was a routine move of an office,
albeit alleged by TCF to be `a complicated procedure involving the
transfer of many documents and equipment,' not caused by some
catastrophe" (¶ 12).
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Advertisement - Deception
Meyer v. Laser Vision Inst., 2006 WI App __ (filed 1 March
2006) (ordered published 26 April 2006)
Meyer brought a class action suit against Laser Vision Institute
(LVI). In the suit, Meyer alleged that LVI's newspaper advertisement
that offered a Lasik procedure for $299 per eye was untrue and deceptive
within the meaning of Wis. Stat. section 100.18(1) and constituted a
scheme not to sell at the advertised price, contrary to Wis. Stat.
section 100.18(9). The circuit court dismissed the complaint.
The court of appeals, in an opinion written by Judge Anderson,
affirmed. The court of appeals said that there was no violation of
section 100.18(1). The promise of providing a "free counselor" was not
misleading, if only because the ad never described the counselor's role;
thus, the fact that the counselor was a "commissioned sales
representative" with an incentive to sell higher priced procedures did
not violate the statute (see ¶¶ 9-12). The fact that
many consumers would not qualify for the low-cost procedure advertised
in the paper did not make the ad deceptive (see ¶ 13).
Nor did the ad constitute a "bait-and-switch" scheme in violation of
Wis. Stat. section 100.18(9). Nowhere in the complaint did Meyer allege
an "overt act" as required by case law and statute: "[T]he complaint
fails to allege that the low-cost procedure was not made available to
consumers who qualified for the procedure and who wanted it.
Specifically, it fails to allege that Meyer qualified for the low-cost
procedure and was wrongfully denied it. The complaint does not allege
that the counselor disparaged the low-cost procedure to Meyer in an
effort to discourage her from purchasing it and then switched to the
higher-cost procedure" (¶ 19).
Finally, the court also rejected the plaintiff's "unjust enrichment"
claims. The court held that her equitable claims were barred by the
contract that she entered into (see ¶ 26). Further, the
transaction did not violate Wis. Stat. section 448.30, which requires
physicians to inform patients about alternative modes of treatment,
because Meyer failed to allege any such omission.
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Remedial Contempt - Requirement that Contempt Sanction Be Purgeable
Through Compliance with Original Court Order
Henrichs, 2006 WI App 64 (filed 1 March 2006) (ordered
published 26 April 2006)
The respondent appealed from a postdivorce judgment finding him in
contempt of court for fraudulently failing to timely provide copies of
his income tax returns to his ex-wife as required by a 1996 stipulation
and a family court order. Although the respondent had belatedly supplied
the returns, the family court nonetheless found him in contempt and
ordered him to pay a substantial sanction because the returns showed a
level of income higher than that previously claimed by the respondent.
In a decision authored by Judge Nettesheim, the court of appeals
concluded that the family court's use of remedial contempt was
"Contempt of court is disobedience to the very authority, process or
order of a court, and includes acts such as the refusal to produce a
record or document. Wis. Stat.§ 785.01(1)(b), (d)" (¶ 26).
Contempt can be punished in two ways. One is with a punitive, or
criminal, sanction that punishes a past contempt of court for the
purpose of upholding the authority of the court. See Wis.
Stat.§ 785.01(2). The other is with a remedial, or civil, sanction
that is imposed to ensure compliance with court orders for the purpose
of terminating a continuing contempt of court. See Wis. Stat.
§ 785.01(3). "[A] remedial contempt sanction must be purgeable
through compliance with the original court order" (¶ 27).
In this case it was clear to the appellate court that the family
court used remedial contempt against the respondent. "However, we
disagree that remedial contempt was properly employed in this case. As
noted, a remedial sanction is imposed to ensure compliance with court
orders for the purpose of terminating a continuing contempt of
court. Here, [the respondent's] contempt was his failure to furnish
accurate income information by way of timely produced copies of tax
returns. But the undisputed fact is that the returns were produced,
albeit belatedly, prior to any pronouncement of contempt. Thus, any
prior contempt was no longer ongoing .... Moreover, this contempt ...
lacked one indispensable feature of remedial contempt: that it be
purgeable" (¶ 30) (citations omitted).
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Witness Intimidation - Sufficiency of Evidence - Multiplicity
Moore, 2006 WI App 61 (filed 21 March 2006) (ordered published
26 April 2006)
The defendant was convicted of 14 counts of attempting to intimidate
a witness, contrary to Wis. Stat. section 940.42. This statute provides
as follows: "Except as provided in s. 940.43, whoever knowingly and
maliciously prevents or dissuades, or who attempts to so
prevent or dissuade any witness from attending or giving testimony at
any trial, proceeding or inquiry authorized by law, is guilty of a Class
A misdemeanor" (emphasis added). On appeal the defendant challenged six
of the seven counts involving one victim, T.P., as being multiplicitous;
he contested all seven counts involving T.P.'s daughter on the basis of
insufficiency of evidence. In a decision authored by Judge Kessler, the
court of appeals affirmed.
The charges were based on a series of seven letters that the
defendant sent to T.P. in which he indicated that pending charges in
other cases would be dismissed if T.P. and her daughter failed to show
up in court. For example, one letter stated: "Now all I need is for you
and [the daughter], to continue not to show up in any and all court
dates concerning us. I will handle the rest" (¶ 2). The defendant
argued that the evidence was insufficient with respect to the counts
involving the daughter as a victim because, in the defendant's view, the
state had to prove that the daughter was shown, or apprised of, the
letters sent to her mother before he could be found guilty.
Said the court, "[u]nder the circumstances of this case, we disagree.
Regardless of whether the letters were addressed to [the daughter] or
whether she was aware of their contents, it is obvious that [the
defendant] attempted to dissuade [the daughter] through her mother,
[T.P.]. [T.P.], as the parent of the minor child, had the parental
responsibility and practical authority to monitor communications by
third parties with her child, and to influence whether [the daughter]
cooperated with the court proceedings. We conclude that there was
sufficient evidence to convict Moore of attempting to intimidate [the
daughter]" (¶ 13).
The defendant conceded liability for one count of attempting to
intimidate T.P., but he claimed that the other six counts involving her
as a victim were multiplicitous. A similar claim was made with respect
to the multiple counts involving the daughter. Charges are
multiplicitous if they charge a single criminal offense in more than one
count. Claims of multiplicity are analyzed using a two-prong test that
requires an examination of 1) whether the charged offenses are identical
in law and fact; and 2) if they are not, whether the legislature
intended the multiple offenses to be brought as a single count.
The defendant conceded that the claims were not identical in fact and
so the court's analysis shifted to the second prong, under which four
factors are relevant to determine legislative intent: 1) statutory
language, 2) legislative history and context, 3) the nature of the
proscribed conduct, and 4) the appropriateness of multiple punishment.
Using these factors the appellate court held that the several
intimidation charges were not multiplicitous. Among other things the
court concluded that "the context of Wis. Stat. § 940.42 supports
charging a person with a separate count for each letter sent, and/or
each other act performed, for the purpose of attempting to `dissuade'
any witness from attending or giving testimony at a court proceeding or
trial" (¶ 25).
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Sentencing - Calculating Maximum Term of Probation under
Truth-in-Sentencing - Banishment from Township as Condition of Probation
and Extended Supervision
Stewart, 2006 WI App 67 (filed 15 March 2006) (ordered
published 26 April 2006)
The defendant was convicted of felony bail jumping and felony
fleeing. Bail jumping is a Class H felony, which is punishable by a
maximum of three years of initial confinement plus three years of
extended supervision for an overall maximum term of imprisonment of six
years. The circuit court sentenced the defendant to eight years'
probation for the bail jumping conviction. The court came up with this
total by determining that the maximum term of probation equals the
maximum term of imprisonment (in this case six years) and that two
additional years could be added because the defendant was convicted of
two felonies at the same time. (Under Wis. Stat. section 973.09(2)(b)2.,
"if the probationer is convicted of 2 or more crimes, including at least
one felony, at the same time, the maximum original term of probation may
be increased by one year for each felony conviction.")
On appeal the court of appeals agreed with the parties that the
circuit court erred in imposing an eight-year term of probation for the
defendant's felony bail jumping conviction. Wis. Stat. section
973.09(2)(b) expressly provides that the maximum term of probation for
felonies in Classes B through H is linked to the maximum initial term of
confinement - not the maximum term of imprisonment - for the crimes in
those classes. Felony bail jumping is a Class H felony, and the maximum
initial term of confinement for a Class H felony is three years. Because
the defendant was convicted of two felonies at the same time, the
maximum period of probation under section 973.09(2)(b) is five years.
Accordingly, the appellate court commuted the eight-year term of
probation to a five-year term (see ¶ 9).
The defendant also claimed that the circuit court erred in imposing
as a condition of probation for the felony bail jumping conviction and
as a condition of extended supervision for the felony fleeing conviction
that he not enter the township of Richmond (in Walworth County). The
appellate court concluded that this geographical limitation does not
comply with the requirements that it be narrowly drawn and not unduly
restrictive of the defendant's liberties. "[T]he record reveals that the
majority of [the defendant's] inappropriate, criminal and threatening
behavior took place in and around his home. It was directed towards his
wife, children and neighbors and not the Richmond township community at
large. The court could have fashioned a more narrowly drawn condition
banishing [the defendant] from his residence and the immediate
neighborhood surrounding it. Further, the no contact condition of his
probation and supervision, a more narrowly drawn restriction on [the
defendant], already offers protection to his victims and facilitates his
rehabilitation" (¶¶ 16-17).
Sentencing - Earned Release Program - Sentencing Discretion
Owens, 2006 WI App 75 (filed 7 March 2006) (ordered published
26 April 2006)
The defendant appealed from judgments of conviction for burglary and
robbery and orders denying his motion seeking participation in the
earned release program (ERP). The ERP is a substance abuse program
administered by the Department of Corrections. See Wis. Stat.
§ 302.05. An inmate serving the confinement portion of a
truth-in-sentencing bifurcated sentence who successfully completes an
ERP will have his or her remaining confinement period converted to
extended supervision, although the total length of the sentence will not
change. Wis. Stat. § 302.05(3)(c)2. When imposing a bifurcated
sentence, "the court shall, as part of the exercise of its
sentencing discretion, decide whether the person being sentenced is
eligible or ineligible to participate in the earned release program
...." Wis. Stat. § 973.01(3g) (emphasis added). The defendant
argued that the trial court failed to adequately explain why it denied
his request for ERP eligibility. In a decision authored by Judge Hoover,
the court of appeals affirmed.
The defendant contended that even though the trial court set forth an
explanation for its sentence, it failed to separately explain its
rationale for denying his ERP participation request. The appellate court
disagreed. Wis. Stat. section 973.01(3g) explicitly states that the ERP
eligibility decision is part of the court's exercise of sentencing
discretion. "Thus, while the trial court must state whether the
defendant is eligible or ineligible for the program, we do not read the
statute to require completely separate findings on the reasons for the
eligibility decision, so long as the overall sentencing rationale also
justifies the ERP determination" (¶ 9). In a footnote the court
specifically declined the defendant's invitation to "come up with
factors judges might use" for ERP eligibility decisions (see
¶ 9 n.3).
The appellate court further concluded that the sentencing transcript
revealed that the trial court more than adequately explained its
decision. When the defendant asserted that he had a drug problem and
needed assistance, the court observed that treatment had been made
available to the defendant for years, but he never availed himself of
those opportunities. Accordingly, to the extent that the defendant
complained that the court failed to assess the likelihood of his success
in the ERP, "it is evident the court inferred, from [the defendant's]
past apathy and failure to seek help, that [the defendant] was neither
sincere about wanting substance abuse treatment nor likely to succeed in
the treatment program" (¶ 10). After assessing the defendant's
criminal record and the particularly aggravated nature of the robbery,
the circuit court determined that protection of the community was the
paramount sentencing objective, although punishment was also important.
Ultimately, the circuit court found that the defendant's participation
in the ERP would be inconsistent with the protection and punishment
objectives and would not provide sufficiently "close rehabilitative
control." Said the appellate court, "[t]his is not an erroneous exercise
of discretion" (¶ 11).
Sentencing - Modification of "Unduly Harsh" Sentences - Role
of Circumstances Occurring After Sentence Imposed
Klubertanz, 2006 WI App 71 (filed 16 March 2006) (ordered
published 26 April 2006)
The defendant pleaded guilty to one count of repeated sexual assault
of a child on three or more occasions, in violation of Wis. Stat.
section 948.025(1). The court sentenced him to three years of
confinement in prison followed by 12 years of extended supervision. The
defendant later asked the circuit court to modify the sentence on the
basis that the sentence became unduly harsh because the defendant was
sexually assaulted while in prison. The circuit court concluded there
was no authority for the proposition that a defendant's subjection to a
criminal act in prison could render the defendant's sentence unduly
harsh and, thus, be a basis for sentence modification. In the circuit
court's view, it had the authority to modify the sentence based on the
sexual assault only if the assault were a "new factor" under the case
law, and the circuit court concluded it was not (see ¶
In a decision authored by Judge Vergeront, the court of appeals
affirmed. It held that "the circuit court's authority to review its
decision to determine whether the sentence it imposed is unduly harsh
does not include the authority to reduce a sentence based on events that
occurred after sentencing. Rather, in deciding whether a
sentence is unduly harsh, the circuit court's inquiry is confined to
whether it erroneously exercised its sentencing discretion based on the
information it had at the time of sentencing" (¶ 40)
A circuit court's authority to modify a sentence based on events that
occur after sentencing is defined by "new factor" jurisprudence"
(see id.). A "new factor" is "a fact or set of facts highly
relevant to the imposition of sentence, but not known to the trial judge
at the time of original sentencing, either because it was not then in
existence or ... was unknowingly overlooked by all of the parties."
Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The
definition has been refined to add that a new factor is "an event or
development which frustrates the purpose of the original sentence."
State v. Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681
In this case the defendant did not argue that the sexual assault that
occurred in prison was a new factor as defined in Crochiere.
"This implicit concession is appropriate because there is no basis in
the record for arguing the sexual assault in prison was highly relevant
to the circuit court's sentencing decision or an event or development
that frustrates the purpose of the sentence the court imposed" (¶
41). "Because the sexual assault in prison is not a new factor under the
case law, the circuit court correctly decided that it did not have the
authority to modify the sentence based on the assault" (¶ 1).
When a defendant claims that the conditions of confinement have
rendered a sentence unduly harsh, the remedy is not modification of the
sentence, but, if the requisite standards are met, a change in the
confinement conditions. See State v. Krieger, 163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991). "Although it is not critical to our
analysis, we observe that in this case, [the defendant's] own testimony
showed that the prison officials took steps to protect [him] from
another assault by his cellmate" (¶ 43).
Postconviction Relief - Procedural Bars
Mikulance, 2006 WI App 69 (filed 15 March 2006) (ordered
published 26 April 2006)
Writing for the court of appeals, Judge Anderson stated the issue,
holding, and reasoning with admirable clarity in the opinion's opening
paragraph: "In this appeal from orders dismissing his most recent
postconviction motion, Thomas A. Mikulance wrongly attempts to use Wis.
Stat. § 973.13 (2003-04) as a vehicle to make an end-run around the
procedural bar to successive postconviction motions articulated in Wis.
Stat. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis.
2d 168, 185, 517 N.W.2d 157 (1994). Section 973.13, as it pertains to
sentencing a repeat offender, applies only where the defendant files a
motion alleging that the State has failed to prove the prior conviction
necessary to sustain the habitual criminal status (by proof or by
admission) or when the penalty imposed is longer than permitted by law
for a repeater. Mikulance, however, advances neither of the above
arguments and therefore § 973.13 and its attendant exception to the
procedural bar do not apply. Mikulance instead raises constitutional
questions concerning the circuit court's procedure in accepting his no
contest pleas that could have been raised in his previous postconviction
motion. Section 974.06 and Escalona-Naranjoprohibit his present
claim for relief" (¶ 1).
Evidence - Other Acts - Defense Proffer
Missouri, 2006 WI App 74 (filed 14 March 2006) (ordered
published 26 April 2006)
The defendant was convicted of possessing cocaine and resisting
arrest. He appealed, arguing that the circuit court erred by not
allowing him to present certain evidence. The court of appeals, in an
opinion authored by Judge Wedemeyer, reversed the circuit court and
remanded this matter with directions.
The defendant sought to have admitted at trial "other acts" evidence
that one of the arresting officers had mistreated another suspect on two
occasions. The trial court excluded the evidence on the ground that its
probative value was outweighed by other considerations. During a
postconviction hearing, the defendant offered evidence that the same
officer had mistreated four other individuals. The court ruled that this
other acts proof was also inadmissible because its probative value was
also outweighed by other considerations, and therefore the proof failed
to meet the fifth standard governing newly discovered evidence, namely,
a showing of a reasonable probability of a different outcome.
The court of appeals applied the Sullivan test, which
governs the admissibility of other acts proof. See State v.
Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). The court of
appeals first addressed the evidence that the defendant sought to have
admitted at trial. Because the defense offered this evidence to show the
officer's racial prejudice toward blacks and his motive to falsify
evidence, beat blacks, etc., it clearly satisfied the "other purpose"
element of Wis. Stat. section 904.04(2). The proof was also relevant and
carried sufficient probative value to satisfy section 904.03.
"The defense here argued that [the officer] had a bias or prejudice
against black people who were not immediately compliant with his orders.
Thus, that bias/prejudice can be explored through extrinsic evidence to
attack [the officer's] character. As long as this evidence is direct and
positive and not remote and uncertain, it may be received to discredit
the testimony of the witness. Here, we are convinced that the ...
testimony satisfies these requisites. Thus, we conclude that the trial
court erroneously exercised its discretion in refusing to allow the
defense to present its witnesses who would have attacked the credibility
of [the officer]" (¶ 22). The court applied the same analysis and
holding to the other acts evidence raised at the postconviction
Prosecutors - Conflicts of Interest
Medina, 2006 WI App 76 (filed 30 March 2006) (ordered published
26 April 2006)
The court of appeals, in an opinion written by Judge Vergeront,
affirmed the defendant's conviction on several burglary counts. The
principal issue on appeal concerned the motion made by the defendant on
the morning of jury selection to disqualify the prosecutor on the ground
that he had represented the defendant in a criminal matter about three
years earlier. The prosecutor testified that he had not remembered the
defendant until the matter was raised, and he asserted that he had
acquired no confidences that were relevant to this case. The trial court
denied the motion.
Wisconsin courts have set forth a "substantial relationship"
standard, based on SCR 20:1.9, for determining when a prosecutor should
be disqualified because he or she had previously represented a criminal
defendant (see ¶ 15). Such claims may be deemed waived if
they are raised too late (see ¶ 18).
"We conclude the circuit court may, in the proper exercise of its
discretion, deny a motion to disqualify a prosecutor under the
substantial relationship standard if the motion is untimely. The circuit
court properly exercises its discretion when it applies the correct
legal standard to the relevant facts of record and reaches a reasonable
result using a rational process .... In the context of a motion to
disqualify a prosecutor under the substantial relationship standard, a
non-exclusive list of factors to consider in deciding if the motion is
timely brought include: when the defendant knew who the prosecutor was
and that the prosecutor had previously represented the defendant;
whether and when the prosecutor realized he or she had previously
represented the defendant; applicable time periods established in
scheduling orders; at what stage in the proceeding the motion is
brought; reasons why the motion was not brought sooner; prejudice to the
State because of the timing of the motion if the motion is granted; and
prejudice to the defendant if the motion is denied" (¶ 24).
The court of appeals said that the record supported the trial judge's
ruling. "Although defense counsel had just learned of the prior
representation a few days earlier, the court could reasonably infer that
[the defendant] knew much earlier in this case who the district attorney
was and knew he was the same person who represented [the defendant] at a
sentencing three years earlier. In the absence of any explanation why
[the defendant] did not bring this to the attention of his attorney
earlier, the court could reasonably infer that [the defendant] was
raising it just before jury selection for purposes of delay. The court
implicitly credited the district attorney's statement that he had not
remembered the prior representation before defense counsel told him,
which the court could properly do. The court also properly considered
the scheduling orders it had entered and that the jury panel had been
called. Finally, nothing presented to the circuit court indicated that
there would be any prejudice to [the defendant] in denying the motion:
the district attorney could not remember anything from the prior
representation and [the defendant] presented little detail about the
prior case. We recognize that ... the substantial relationship standard
inquires into the relationship between the two cases, and not into
whether confidential information was actually given to the attorney and
whether the attorney remembers that information. Nonetheless, the
likelihood of an actual conflict of interest is an appropriate factor to
take into account in deciding whether to deny as untimely a
disqualification motion against a prosecutor based on the substantial
relationship standard" (¶ 25).
Finally, addressing the defendant's postconviction motion, the court
of appeals held that when a disqualification motion is denied as
untimely, the proper standard is whether an "actual conflict" occurred
during the trial. Put differently, it is inappropriate to apply the
standard governing "potential conflicts" in such a setting. "[The
defendant] is correct that under this standard a substantial
relationship may exist even if there is no evidence that confidential
information relevant to the later case was communicated to the attorney"
(¶ 37). Nonetheless, on this record the defendant failed to meet
his burden of proof.
Judge Lundsten concurred but wrote separately to emphasize that the
defendant's conviction could have been affirmed without deciding the
propriety of the pretrial ruling.
Physical Placement - Attorney Fees
Yunto, 2006 WI App 63 (filed 23 March 2006) (ordered published
26 April 2006)
In an action to enforce a physical placement order, the circuit court
found that the child's mother had unreasonably denied to the father
periods of placement. The court, however, denied the father's request
for attorney fees.
The court of appeals, in an opinion written by Judge Dykman,
reversed. Under Wis. Stat. section 767.242(5)(b), a court must award
attorney fees "to a petitioner seeking enforcement of a placement order
when the court finds the respondent `intentionally and unreasonably
denied the petitioner' physical placement" (¶ 9). In short, the
statute is mandatory. The court of appeals held that the circuit court's
award of guardian ad litem fees instead of attorney fees to the
petitioner's lawyer was not sufficient (see ¶ 13).
The court next addressed when and how the petitioner's attorney fees
must be proved. It held that the proof need not be introduced at the
hearing itself; rather, the petitioner may offer the evidence "at some
point after the conclusion of the hearing" (¶ 15). The record here
revealed that the father's lawyer "diligently," but unsuccessfully,
tried on several occasions to introduce proof of attorney fees at the
hearing, but the circuit court rejected the offers for various reasons
(see ¶ 17).
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Time-Shares - Rescission of Time-Share Purchase Contract -
Time-Share Ownership Act
Ott v. Peppertree
Resort Villas Inc., 2006 WI App 77 (filed 23 March 2006)
(ordered published 26 April 2006)
Peppertree Resort Villas appealed an order granting relief to Richard
and Judy Ott for Peppertree's violations of the Time-Share Ownership Act
(Wis. Stat. ch. 707) and the Consumer Credit Transaction Act (Wis. Stat.
ch. 422). In a majority decision authored by Judge Deininger, the court
of appeals affirmed in part and reversed in part.
Peppertree owns and operates a resort near Wisconsin Dells, and it
sells time-share ownership interests in resort units to the public. The
Otts attended a sales presentation at Peppertree's resort in 1994 and
purchased a time-share interest in a unit. The Otts signed a time-share
contract that was prepared by Peppertree on a preprinted form approved
by the Wisconsin Department of Regulation and Licensing. They also
signed a document entitled "Interval Ownership Condominium Land
Contract," which also was a preprinted form prepared by Peppertree. No
Peppertree representative ever signed either of these documents.
The circuit court found that the Otts used the time-share unit for
about five years "without any substantial complaint." During that time,
they made monthly payments of principal and interest on their land
contract and paid annual maintenance fees to Peppertree. In 1999,
however, the Otts planned a move to Florida, and they attempted, without
success, to sell their time-share unit. They then filed a complaint with
the Wisconsin Department of Agriculture, Trade and Consumer Protection
(DATCP) and ultimately filed this action alleging numerous violations of
Wis. Stat. chapters 422 and 707 and certain other consumer protection
statutes and regulations. A year after commencing suit, the Otts
notified Peppertree by letter that they wished to cancel their
time-share purchase contract. The circuit court entered an order
rescinding the contract and awarding damages.
Peppertree claimed that the circuit court should not have ordered the
Otts' time-share purchase contract rescinded, because their statutory
right to cancel it expired years before they notified Peppertree of
their desire to cancel. The appellate court upheld the circuit court.
"Because Peppertree never signed the time-share purchase contract, and
it was thus not a valid and enforceable contract, we conclude the
circuit court was empowered to order it rescinded" (¶ 2).
"[A]lthough Peppertree's failure to sign the time-share contract may not
have served to indefinitely extend the Otts' statutory five-day right to
`cancel' it, Peppertree's failure to sign resulted in there being no
valid time-share purchase contract between the parties. A contract to
purchase a time-share creates an interest in real estate, see
Wis. Stat. § 707.03(2), which, under Wis. Stat.§ 706.02(1),
must be `signed by or on behalf of' the grantor in order to be valid"
(¶ 14). "[I]rrespective of any statutory right to `cancel' a valid
contract, a party to an invalid contract may, under the common law, have
it rescinded and be restored to the status quo ante" (¶
15). Accordingly, the court of appeals held, the circuit court did not
err as a matter of law in ordering rescission and directing Peppertree
to refund the Otts' payments (see ¶ 16).
Peppertree also contended that the circuit court erred in concluding
that Peppertree's failure to comply with the Time-Share Ownership Act
"adversely affected" the Otts despite finding that the Otts' purchase
decision was not influenced by Peppertree's failure to comply with the
Act. Wis. Stat. section 707.57(1)(a) provides that "any person ...
by the failure to comply [with this chapter]
has a claim for appropriate relief ..." (emphasis added).
The appellate court agreed with the circuit court that Peppertree's
violations of the Time-Share Act "adversely affected" the Otts within
the meaning of Wis. Stat. section 707.57(1) because the violations were
contrary to the Otts' interests (see ¶ 3). "We thus
conclude that any violations by a time-share seller of the purchaser
protections enacted in Wis. Stat. ch. 707 `act upon' the prospective
purchaser and are `opposed' or `contrary' to the prospective purchaser's
'interests,' even when the violations cannot be shown to have
specifically influenced a purchase decision" (¶ 21). "In sum, the
Otts were `adversely affected' by Peppertree's violations of Wis. Stat.
ch. 707 because the Otts entered into a transaction with Peppertree to
purchase a time-share, and, in the course of the parties' dealings,
Peppertree did not provide the Otts with all of the purchaser
protections to which they were statutorily entitled. The violations thus
acted upon the Otts in a manner that was contrary to their interests,
and no further showing was required" (¶ 26).
The court of appeals also concluded that in order to restore the
parties to the positions they were in before entering the contract, the
circuit court should have allowed Peppertree an offset for the
reasonable charges for the Otts' occupancy of the time-share unit before
rescission of the contract (see ¶ 4). It further held that
the circuit court erred in awarding damages for a violation of Wis.
Stat. chapter 422 because the transaction at issue was a "first lien
real estate mortgage loan," and was thus governed by Wis. Stat. chapter
428 (First Lien Real Estate and Other Mortgage Loans) and excluded from
the applicability of chapter 422 (see ¶ 5).
Judge Lundsten filed a dissenting opinion.
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Negligence - Hot Water
Kessel v. Stansfield
Vending Inc., 2006 WI App 68 (filed 16 March 2006) (ordered
published 26 April 2006)
A 15-month-old child was burned by hot water from a dispenser
provided by a vendor at a medical center. The plaintiffs alleged that
the defendants, the vendor and the medical center, were negligent for
failing to warn of the danger and for not providing lids for cups
supplied for hot drinks. The circuit court granted summary judgment in
favor of the defendants.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed, although its analysis differed from that of the circuit court.
The court of appeals noted that the failure to warn claim was governed
by Restatement (Second) of Torts § 388 (1965), and that both the
medical center and the vendor were "suppliers" of the hot water
dispenser within the meaning of § 388 (see ¶ 22).
Thus, the issue was whether the defendants had "no reason to believe
that those for whose use the hot water dispenser was supplied would
realize its dangerous condition" (¶ 23).
"The dangerous condition in this case is the steaming hot water: it
is dangerous because water that is steaming hot can cause injury when it
comes into contact with skin. This danger is common knowledge. Because
the user of the dispenser will see that the water is steaming hot, the
supplier has every reason to believe that the user will realize the
danger that the hot water can injure skin; the supplier has no reason to
believe that the user will not understand this. Because the user can see
the dangerous condition by a casual inspection, the user is able to take
the measures necessary to protect against the dangerous condition. The
degree of the injury that may result from the dangerous condition will
vary - based on how much is spilled, the length of contact with the
skin, whether over clothing or on bare skin, etc. However, the supplier
has no reason to know the degree of injury that may result in particular
cases. We do not read § 388(b) and cmt. k to require that the
supplier warn of the most severe injuries that may result from a
dangerous condition that is readily apparent to the user. Rather, under
the exception in [§ 388] cmt. k `a warning is not necessary to
satisfy the standard of ordinary care when the condition at
issue is known to the user'" (¶ 31).
The court of appeals also held that the defendants were not negligent
for failing to provide lids for the hot cups. The court predicated this
conclusion on public policy grounds that are fact-intensive. In
particular, the child's injury was remote from the negligence; the
injury occurred when the father "misjudged how quickly his child could
get to the place he put the cup while he turned his back to get ice"
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