Wisconsin Lawyer
Vol. 81, No. 2, February 2008

Court of Appeals Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Civil Procedure Criminal Law Criminal Procedure Evidence Insurance Motor Vehicle Law

Municipal Law Real Property Sexually Violent Persons Torts Worker's Compensation

Civil Procedure

Keene v. Sippel, 2007 WI App 261 (filed 14 Nov. 2007) (ordered published 19 Dec. 2007)

The plaintiffs filed suit against the defendant claiming damages resulting from the defendant's alleged improper work in building the plaintiffs' home. The defendant was served with an authenticated copy of the summons and complaint; the summons advised him that he had 45 days to respond. The defendant did not file his answer and counterclaim until 58 days after service and 65 days after the filing of the summons and complaint. Subsequently he filed a notice of motion and motion for enlargement of time. Finding no excusable neglect, the circuit court denied the defendant's motion and granted the plaintiffs' motion for default judgment. However, the court never specifically struck the defendant's answer from the record.

The primary issue on appeal was whether granting a default judgment in favor of the plaintiffs because of the defendant's late service of his answer was proper given that the circuit court denied the defendant's motion to enlarge time but did not strike his late answer from the record. In a decision authored by Judge Anderson, the court of appeals concluded that the default judgment was properly granted.

The court held that "default judgment is proper when the circuit court has denied a defendant's motion to enlarge time to serve a late answer based upon its finding of no excusable neglect even if a plaintiff has not filed a motion to strike because the court's denial of the motion to enlarge effectively strikes the late answer. Put another way, if the motion to enlarge time to serve is properly denied, a responsive pleading is not joined and effectively is stricken from the record" (¶ 17).

Said the court, "The result of our analysis is that a motion for default judgment under Wis. Stat. § 806.02(2) is properly granted when the court effectively erases any responsive pleading either by granting a motion to strike or by denying a motion to enlarge time. The effect of granting either motion is to `strike' a responsive pleading from the court record. Here, the circuit court effectively struck [the defendant's] answer by denying his motion to enlarge time and, thus, properly granted default judgment in favor of the [plaintiffs]" (¶ 18).

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Ten Mile Investments v. Sherman, 2007 WI App 253 (filed 29 Nov. 2007) (ordered published 19 Dec. 2007)

This lawsuit arose out of a real estate transaction gone awry. Ten Mile sued Siciliano for specific performance, and she counterclaimed. Siciliano prevailed on the merits and sought sanctions against four opposing parties; the circuit court sanctioned only one, Nauman. Both sides appealed, raising issues about the applicability of current Wis. Stat. section 802.05 and its safe harbor provisions to an action filed before the new rule became effective.

The court of appeals, in an opinion written by Judge Higginbotham, reversed a supplemental judgment that imposed sanctions on Nauman. The case raised three issues that clarify the supreme court's decision in Trinity Petroleum Inc. v. Scott Oil Co., 2007 WI 88: "(1) whether the new Wis. Stat. § 802.05 should be applied retroactively on the facts of this case; (2) whether a motion for sanctions that is filed after judgment complies with the new statute's `safe-harbor' provision, which allows recipients of a motion to alter their potentially sanctionable conduct and avoid sanctions; and (3) whether Siciliano substantially complied with that provision by warning Ten Mile and Nauman earlier that their conduct may be sanctionable" (¶ 2).

The court held in Trinity Petroleum that the retroactivity of section 802.05 must be decided on a case-by-case basis if, as here, there is an issue about whether application of the statute would unreasonably burden the party who must comply (Siciliano). In both this case and Trinity Petroleum, "the lawsuit was commenced before the effective date of new Wis. Stat. § 802.05, judgment was rendered on the merits after the effective date, and the sanctions motion was filed after the judgment" (¶ 7). Siciliano charged that her opponents both commenced and maintained a frivolous lawsuit, but she did not seek sanctions for 11 weeks while the new statute was in effect. In light of her failure to explain why she could not comply with section 802.05's safe harbor provisions during that period, the court held that the statute would apply retroactively to her claim.

Next, the court held that Siciliano failed to comply with section 802.05 in the context of a postjudgment motion for sanctions. Of particular importance, the court of appeals ruled that the supreme court's decision in Trinity Petroleum did not vitiate the court of appeals' own holding in Trinity that section 802.05 applies to postjudgment sanctions motions (see ¶ 15). "The supreme court did not reverse our earlier holding, and did not reach as far as that step of the analysis because it remanded for further proceedings on retroactivity. Accordingly, we conclude that our Trinity Petroleum opinion retains its precedential value in holding that a postjudgment sanctions motion does not comply with the safe-harbor provision. See Trinity Petroleum, 296 Wis. 2d 666, ¶¶ 26-35. Applying that holding to the instant case, there is no dispute that Siciliano did not file her sanctions motion until after judgment was entered. Therefore, under our holding in Trinity Petroleum, we conclude that her postjudgment sanctions motion does not comply with the safe-harbor provision" (¶ 16).

Finally, the court of appeals rejected Siciliano's contention that her repeated warnings about the lawsuit's frivolousness complied with section 802.05. "Warnings are not motions," the court reminded (¶ 18).

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Criminal Law

State v. Hubbard, 2007 WI App 240 (filed 24 Oct. 2007) (ordered published 28 Nov. 2007)

As a result of a car accident that caused serious injury to a child, the defendant was charged with the felony of causing injury by the intoxicated use of a vehicle (Wis. Stat. § 940.25 (1)(a)). The state's theory was that the defendant caused the injury while driving "under the influence" of prescription medication. At trial the court instructed the jury that "under the influence" means that the defendant's "ability to operate a vehicle was materially impaired because of consumption of a prescription medication" (¶ 3). [Editors' Note: The "materially impaired" standard is derived from the definition of "under the influence of an intoxicant" that is codified in the Criminal Code. See Wis. Stat. § 939.22(42).]

During deliberations the jury sent a written question to the court asking whether the judge could further explain the notion of "materially impaired." Out of the presence of the jury the court heard arguments from counsel and considered whether to use language from State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986) in its response to the jury's question. In Waalen, the supreme court stated that material impairment exists "when a person is incapable of driving safely, or `is without proper control of all those faculties … necessary to avoid danger to others'" (¶ 9). The trial judge decided not to use the Waalen language to respond to the jury's question and instead instructed the jury to apply an ordinary meaning to all words in the jury instruction that were not otherwise defined therein. The jury returned a guilty verdict.

In a decision authored by Judge Snyder, the court of appeals reversed. "We conclude that the supreme court has defined the term `materially impaired' as used in the criminal code jury instruction by stating that material impairment `exists when a person is incapable of driving safely, or "is without proper control of all those faculties … necessary to avoid danger to others.'" See Waalen, 130 Wis. 2d at 27. We further conclude that under the facts of this case, specifically in light of the jury's request for clarification of the term `materially impaired,' the circuit court erred when it failed to give the jury the guidance it needed to perform its task. Where a jury does not comprehend the law it is asked to apply, the controversy is not fully tried and a new trial is required in the interest of justice. We therefore reverse the judgment and orders of the circuit court and remand for a new trial in accordance with this decision" (¶ 20).

State v. Ebersold, 2007 WI App 232 (filed 25 Oct. 2007) (ordered published 28 Nov. 2007)

The state charged the defendant with one count of verbally communicating a harmful description or narrative account to a child, in violation of Wis. Stat. section 948.11(2)(am). The complaint alleged that sometime in early 2004 the defendant, a high school teacher, sent sexually explicit messages to one of his students in an Internet chat room. The student was 16 or 17 years old at the time. The state alleged that during the Internet chat, the defendant described to the victim his favorite sexual acts and his desire to have sex simultaneously with her and another female.

The defendant moved to dismiss the charge, arguing that the complaint did not allege a violation of Wis. Stat. section 948.11(2)(am) because he did not "verbally communicate" with the student when he sent chat messages to her online. The circuit court granted the motion to dismiss, concluding that section 948.11(2)(am) prohibits only oral descriptions or narrative accounts of a harmful nature and that the defendant's Internet messages to the student were written descriptions outside the scope of the statute, which specifically uses the "verbally communicates" language. The state appealed.

In a decision authored by Judge Higginbotham, the court of appeals reversed. After finding the statute facially ambiguous because its language may reasonably be read to support either party's conclusion, the court concluded that the statutory term "verbally" is "most reasonably read here as proscribing communication to children of harmful matter in words, whether oral or written…" (¶ 14). The court found support for this position in the legislative history of the statute, in which the Legislative Reference Bureau described the import of the bill that became section 948.11(2)(am) as follows: "`This bill prohibits a person from verbally communicating to a child an explicit and detailed description or narrative account of [material defined by the statute as harmful to children]. The communication to the child may be done by any means.' Drafting file, 1997 Wis. Act 82, 1997 A.B. 189 (emphasis added)" (¶ 16).

In a footnote the court noted that the defendant's chat message was directed at a particular child (his student). "The instant case does not address whether Wis. Stat. § 948.11(2)(am) proscribes a person who has attained the age of seventeen from posting in a chat room or other electronic forum a written harmful description or narrative account that is not targeted at a particular minor. For example, it is not apparent to us how § 948.11(2)(am) would apply to a scenario where a defendant wrote a harmful description or narrative account such as a `dirty' story and distributed that story on the Internet to a broad audience rather than to a specific person the defendant knew or reasonably should have known was a minor. However, the facts of this case plainly fall under the prohibitions of § 948.11(2)(am), thus we do not address that situation" (¶ 18 n.5).

State v. Bowden, 2007 WI App 234 (filed 31 Oct. 2007) (ordered published 28 Nov. 2007)

Two brothers, ages 11 and 5, were walking home from school when they had to stop to allow a train to pass. The defendant, who the boys did not know, crossed the street to where they were waiting and asked if he could walk with them. He showed the boys a ring and engaged them in sports talk. He asked the boys several times to come to his house with him. More than once they said they had to get home, because, they said, their mother had a rule that they had to be home by four o'clock. The defendant repeatedly said, "No, come to my house," and the boys eventually went with him. The older boy testified that because he was scared, he did not try to run away. The house to which the defendant led the boys was not on their route home. Once inside the premises the defendant introduced the boys as "my babies" to other adults who were there. Though the older boy insisted that he and his brother had to leave, the defendant kept saying that they should stay and he would give them a ride home. Ultimately, they were permitted to leave but only after being in the house for at least 10 minutes and perhaps as long as 45 minutes (according to the estimates of the other adults who were present).

The defendant was convicted of interfering with child custody, contrary to Wis. Stat. section 948.31(2), which provides that "[w]hoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child's mother … is guilty of a Class I felony." Under this statute one can interfere with custody of a parent in one of three ways: 1) causing a child to leave, 2) taking a child away, or 3) withholding a child for more than 12 hours (see ¶ 13). This case was prosecuted on a theory that the defendant caused a child to leave his parent.

The defendant argued that he could not have caused the children to leave their mother because the boys were not with her when the incident occurred. He contended that the statutory language defining the third method of interference, "withholds a child for more than 12 hours," supports his logic, because the legislature's use of the phrase shows that the legislature contemplated situations in which the child is not with the parent. Therefore, by implication, the other two methods of interference must apply only to those situations in which the child initially is with the parent.

The state responded that the withholding method of interference focuses on permission - not on being in the parent's presence. In a decision authored by Judge Nettesheim, the court of appeals agreed. "The withholding method addresses a situation where the person who takes the child has some initial permission to do so. The other two methods speak to situations where the parent has given no permission to the person who `causes a child to leave' or `takes a child away.' See Wis. Stat. § 948.31(2). [The defendant's] argument that `causes … to leave' means from the parent's actual presence suggests that parental custody ends when the child is out of the parent's presence. Without commenting on the merit of that position, to adopt it would require that we add words to the statute that are not there. We decline to do so" (¶ 18).

Reviewing the evidence in the light most favorable to the verdict, the appellate court concluded that the defendant caused the boys to leave their mother within the meaning of the statute. "[The defendant] approached the boys, drew them into conversation by means aimed at disarming children and, despite being told they had to go home, insisted they deviate from their route and follow him. The boys complied out of fear, a fear that was evident to the four occupants of the house. The brothers reiterated their mother's rule about being home on time and that they would be grounded. [The defendant] overrode their resistance and persuaded them to act counter to their mother's directives and authority. It is undisputed that their mother neither gave the boys permission to deviate from this directive nor [the defendant] permission to cause the boys to deviate from it. Regardless of whether [the defendant's] conduct was sweetened with sports talk and basketballs, it amounts to mental manipulation of a child by doing things to persuade the child to leave the parent" (¶ 19).

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Criminal Procedure

State v. Newer, 2007 WI App 236 (filed 10 Oct. 2007) (ordered published 28 Nov. 2007)

After learning that a vehicle being operated on a highway was registered to Newer and that Newer's operating privilege was revoked, a police officer stopped the vehicle and arrested the driver (Newer, the defendant) for operating while intoxicated. The defendant moved to suppress evidence gathered during the traffic stop, claiming that the officer lacked reasonable suspicion to make the stop because the officer had no information about who was driving the vehicle before the stop (even though the officer knew that the vehicle's owner had a revoked license). The circuit court agreed with the defendant and entered a suppression order.

In a decision authored by Chief Judge Brown, the court of appeals reversed the circuit court. "We adopt the view articulated by the supreme court of Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996): that an officer's knowledge that a vehicle's owner's license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving" (¶ 2).

Said the court, "[I]t is indeed a reasonable assumption that the person driving a particular vehicle is that vehicle's owner. It is not, of course, an infallibly true assumption, but that is not what is required for reasonable suspicion.… However, the reasonable suspicion inquiry considers the totality of the circumstances. If an officer comes upon information suggesting that the assumption is not valid in a particular case, for example[,] that the vehicle's driver appears to be much older, much younger, or of a different gender than the vehicle's registered owner, reasonable suspicion would, of course, dissipate. There would simply be no reason to think that the nonowner driver had a revoked license" (¶¶ 7-8) (citation omitted).

In this case the officer did not observe the driver of the vehicle and had no reason to think at any time during the stop that the driver was anyone other than the vehicle's owner. The officer was entitled to rely on the reasonable assumption that the owner of a vehicle was most likely the driver (see ¶ 9).

State v. Jones, 2007 WI App 248 (filed 23 Oct. 2007) (ordered published 28 Nov. 2007)

Jones was convicted of committing several crimes. The trial court denied his postconviction motion, which alleged he was unable to communicate effectively with counsel because the defendant had a severe hearing impairment. The court of appeals, in an opinion written by Judge Fine, reversed the postconviction order and remanded the case for a retrospective evidentiary hearing on Jones's impairment and its effect on his trial. "Although an indigent defendant does not have the right to pick his or her trial lawyer, the indigent defendant is entitled to a lawyer with whom he or she can communicate; anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court" (¶ 13) (citations omitted). The trial court was aware of Jones's "apparent substantial hearing problems" and his "repeated and non-dilatory pleas to get the lawyer off the case" (¶ 14). Other case-specific facts justified the remand for an evidentiary hearing.

State v. Gralinski, 2007 WI App 233 (filed 5 Sept. 2007) (ordered published 28 Nov. 2007)

Police officers obtained a search warrant for Gralinski's home, where they found evidence of child pornography on his computer. Gralinski asserted that the affidavit did not support probable cause, because the information relied on in the affidavit was more than two years old. The circuit court denied his motion to suppress.

The court of appeals, in an opinion written by Judge Curley, affirmed the circuit court. "[T]he affidavit detailed the fact that Gralinski's credit card had been used to purchase a membership that afforded him access to websites containing child pornography. In addition, the affidavit contained information relating to the special agent's experience and knowledge of individuals who are involved with child pornography and of the longevity of images viewed through the Internet to remain on a computer" (¶ 19). In particular, the affidavit recounted the propensity of such individuals to retain images of child pornography as well as the technology by which such images may be traced on a computer.

The court of appeals also held that the credit card information was not impermissibly stale despite being more than two years old. "[H]ere, the issue of staleness depends, in part, upon the tendencies of collectors of child pornography, as detailed in the special agent's affidavit. Gralinski does not contest the special agent's description of the habits of collectors of child pornography in the affidavit supporting the search warrant. In this regard, the affidavit provided `that individuals who are involved with child pornography are unlikely to ever voluntarily dispose of the images they possess, as those images are viewed as prized and valuable materials.' Given the specific factual information obtained when Regpay's customer databases were seized that Gralinski's credit card had been used to purchase a membership to sites containing child pornography, it was reasonable for the magistrate to infer that Gralinski downloaded visual child pornography from the websites to his computer. Because possession of child pornography on one's computer differs from possession of other contraband in the sense that the images remain even after they have been deleted, and, given the proclivity of pedophiles to retain this kind of information, as set forth in the affidavit supporting the request for the search warrant, there was a fair probability that Gralinski's computer had these images on it at the time the search warrant was issued and executed" (¶¶ 30-31).

State v. Markwardt, 2007 WI App 242 (filed 31 Oct. 2007) (ordered published 28 Nov. 2007)

While being interrogated by police officers, the defendant at first waived her Miranda rights and responded to police questioning. About one hour into the interrogation, she said, "`Then put me in jail. Just get me out of here. I don't want to sit here anymore, alright. I've been through enough today'" (¶ 16). The questioning nonetheless continued. The circuit court later suppressed the statements on the ground that they were involuntary and that the defendant's right to remain silent was violated.

In a decision authored by Judge Anderson, the court of appeals reversed the suppression order. Wisconsin courts have adopted a "clear articulation rule" that governs assertions of the right to remain silent and that parallels the doctrine governing assertions of the right to counsel. "A suspect must unequivocally invoke his or her right to remain silent before police are required either to stop an interview or to clarify equivocal remarks by the suspect" (¶ 26). The clear-articulation rule "allows no room for an assertion that permits even the possibility of reasonable competing inferences: there is no invocation of the right to remain silent if any reasonable competing inference can be drawn. Accordingly, an assertion that permits reasonable competing inferences demonstrates that a suspect did not sufficiently invoke the right to remain silent. We therefore reverse the circuit court because Markwardt's comments permit reasonable competing inferences. A reasonable interpretation of Markwardt's comments could be that she was invoking her right to remain silent. However, an equally reasonable understanding of her comments could be that she was merely fencing with Clark as he kept repeatedly catching her in either lies or at least differing versions of the events. Markwardt's comments are equivocal as a matter of law because there are reasonable competing inferences to be drawn from them" (¶ 36).

The court also reversed the finding that the defendant's statements were involuntary for due process purposes. Examining a plethora of factors, the court held that there was no showing of coercive police conduct, which is a predicate for a finding of involuntariness.

State v. Ramel, 2007 WI App 271 (filed 14 Nov. 2007) (ordered published 19 Dec. 2007)

The defendant was convicted of third-degree sexual assault, and the trial court sentenced him to five years of initial confinement followed by five years of extended supervision. It also imposed a fine of $1,000. Although the court made a detailed analysis of the incarceration and supervision components of the sentence, "[t]he record is devoid of any information about [the defendant's] financial condition at the time of sentencing, with the exception of a brief reference in the presentence report of `a vague employment history, which was unverifiable'" (¶ 3). The report describes the defendant's employment as consisting of a mason job in which he earned $10 per hour but is silent as to whether this employment was full-time, part-time, or only occasional. There is no identification of any assets the defendant might have had from which a fine could be paid. Neither party mentioned the defendant's financial or employment status at the sentencing hearing.

The circuit court denied the defendant's postconviction motion to vacate the fine. One of the reasons given in support of the motion was that the circuit judge gave no explanation for imposing the fine. In a decision authored by Judge Kessler, the court of appeals agreed with the defendant and reversed the circuit court. It began its analysis by noting that "[a] fine is a substantially different form of sentence than incarceration. Our supreme court [has] observed … that a fine can be a useful sentencing alternative, particularly when incarceration or rehabilitation is unnecessary or when, because of the financial resources of the offender, a fine may have a deterrent effect. If an offender has no ability to pay a fine, or no ability to pay the particular fine imposed, it is difficult to comprehend how a fine can be a useful sentencing alternative" (¶ 13) (citations omitted).

Said the court, "A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives, we are left to guess as to what those objectives might be in relation to the fine. [State v.] Gallion [2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197] requires that we do more than guess. While we do not hold that Gallion requires a trial court to explain the reason for a specific amount of a fine (as it is likewise not required to explain a specific time of incarceration), we do conclude that under Gallion some explanation of why the court imposes a fine is required" (¶ 14) (citations omitted).

"It is also necessary that a sentencing court determine at the time of sentencing whether a defendant has the ability to pay a fine if the court intends to impose one. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant's ability to pay than is required as part of an order of restitution. See State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781 ([w]hen court orders restitution at sentencing under Wis. Stat. § 973.20(13)(a), it must set `an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,' which includes imprisonment, extended supervision and probation.). A fine is part of the sentence. Failure to complete one's sentence by full payment of the ordered fine may have significant collateral consequences, such as a delay in restoration of certain civil rights. See Wis. Stat. §§ 304.078; 6.03(1)(b). A trial court must consider the defendant's ability to pay the fine during the total sentence, that is, any term of probation, imprisonment and extended supervision" (¶ 15). There being an insufficient record in this case of the defendant's ability to pay a fine, the court of appeals vacated the fine and remanded with directions that the judgment be corrected accordingly.

State v. Ndina, 2007 WI App 268 (filed 20 Nov. 2007) (ordered published 19 Dec. 2007)

The defendant was charged with attempting to kill his nephew. During the course of the jury trial there was a disturbance in the courtroom involving the defendant's family members. The judge instructed the individuals to remain silent. The following day there was another disturbance in the courtroom involving the defendant's family members. "The trial court noted that family members were walking in and out during testimony and disrupting the process. The trial court then ordered the exclusion of all family members from the courtroom, with the exception of the defendant's mother. The court expressed concern that the family members were disturbing the process, violating the sequestration order, and disobeying the order of the court by discussing the case with each other" (¶ 4). The defense did not object to the trial court's order excluding the family members or dispute the court's observations.

The jury convicted the defendant and, on postconviction motion for a new trial, the circuit court (presided over by a different judge due to judicial rotation) ruled that the defendant's public trial right had been violated by the exclusion of his family members from the courtroom. It issued an order granting a new trial. The state appealed. In a decision authored by Judge Wedemeyer, the court of appeals reversed and ordered the judgment of conviction reinstated.

The appellate court first addressed the issue of whether the defendant's objection to the exclusion of his family members from the courtroom was waived. Said the court, "In order to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs. Here, it is undisputed that there was no objection from the defense, when the trial court ordered [the defendant's] family members out of the courtroom. Thus, we agree that [the defendant's] right to raise the merits of this issue on appeal was waived" (¶ 11) (citation omitted).

Waiver having been thus established, the court of appeals concluded that the public trial right violation could only be reviewed under the lens of ineffective assistance of counsel. To prove ineffective assistance of counsel, the defendant would need to establish deficient performance by his attorney as well as prejudice to his case. See Strickland v. Washington, 466 U.S. 668 (1984). Trial counsel conceded that failure to object to the exclusion of the family members from the courtroom constituted deficient performance but, on the facts of this case, the appellate court concluded that the defendant failed to demonstrate prejudice as a result thereof. The court declined to presume prejudice (see ¶ 18).

In summary the court noted that "[t]he key distinction as to the issue in this case is that when a defendant makes a timely objection at trial raising a public trial challenge, a defendant receives the benefit of automatic reversal without having to prove prejudice if the public trial violation is proven. [H]owever, if a defendant fails to make a timely objection at trial on a public trial challenge, then the issue can only be reviewed in the context of ineffective assistance and prejudice must be established. To conclude otherwise would result in potential improper manipulation of the justice system by encouraging defense counsel to not object so as to ensure automatic reversal on appeal" (¶¶ 21-22) (citations omitted).

State v. Rodriguez, 2007 WI App 252 (filed 2 Oct. 2007) (ordered published 19 Dec. 2007)

The defendant was convicted of battery as well as charges of intimidating a victim and a witness (among others). Although the court of appeals had previously affirmed the convictions, the supreme court remanded the case for reconsideration in light of its decision in State v. Jensen, 2007 WI 26.

The court of appeals, in an opinion authored by Judge Kessler, affirmed. First, the court assumed but did not decide that the hearsay at issue was testimonial within the meaning of the confrontation right. Testimonial hearsay is generally inadmissible, according to Jensen, unless the declarant is shown to be unavailable and the defendant had a prior opportunity to cross-examine the declarant. The case law nonetheless also holds that a defendant may forfeit these procedural rights because of his or her wrongdoing. Here, two key witnesses did not appear at trial. The trial judge was convinced by a preponderance of the evidence that the defendant had procured their absence through his misconduct. More important, the trial judge's findings were confirmed by the jury's verdict convicting the defendant of intimidating a victim and a witness. "We hold that where the jury finds beyond a reasonable doubt that the defendant intimidated the person who was a witness, the defendant has forfeited, by his own misconduct, his right to confront that witness" (¶ 19).

Judge Fine filed a concurring opinion, in which he contended that because the statements were nontestimonial for confrontation purposes there was no need to decide whether forfeiture by wrongdoing applied in this case.

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Evidence

State v. Burton, 2007 WI App 237 (filed 31 Oct. 2007) (ordered published 28 Nov. 2007)

The defendant was tried on 14 charges arising from his alleged involvement in three separate shootings. Several witnesses testified to his role as the shooter. The state also called a "gang expert" for the following purposes: "to explain why certain witnesses might change their stories between the time of the incident and the trial, and to explain that the shootings might have been motivated by Burton's desire to regain respect that he had lost when one of the shooting victims allegedly robbed him and took his pants" (¶ 1).

The court of appeals, in an opinion written by Chief Judge Brown, reversed the convictions and remanded the case for a new trial because the expert testimony was irrelevant and highly prejudicial. As succinctly explained by the court, "[T]he expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping" (¶ id.).

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Insurance

Zurich Am. Ins. Co. v. Wisconsin Physicians Servs. Ins. Corp., 2007 WI App 259 (filed 14 Nov. 2007) (ordered published 19 Dec. 2007)

Beebe left his job at Michels Corp. in November 2000. Because of an administrative error, however, Michels did not terminate his health care coverage. Essentially, Michels covered the first $40,000 of an employee's health care costs, and a stop-loss policy that Michels obtained from Wisconsin Physicians Services Insurance Corp. (WPS) covered amounts over that limit. Michels continued to pay premiums to WPS for Beebe following his departure. In May 2001 Beebe was seriously injured in a car accident, which necessitated extensive hospitalization. The hospital verified that Beebe had health insurance through Michels. In September 2001 Michels finally notified Beebe that he was no longer covered under its plan and informed him of his COBRA rights, which Beebe ultimately elected. In November 2001 WPS denied coverage for Beebe's hospital bills because of Michels' delinquency in providing Beebe with his COBRA continuation rights. Eventually, Michels' liability carrier, Zurich, paid the $350,000 in hospital bills. In later litigation, the circuit court ruled that Zurich had a subrogation interest, that WPS was contractually obligated to pay Beebe's hospital bills, that Zurich was entitled to five percent prejudgment interest, and that Zurich could not recover its costs for digital imaging (creating PDFs) as "photocopying" expenses. Both WPS and Zurich appealed.

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. First, summary judgment was properly granted against WPS on the health care coverage issue. The "key issue" concerned whether Beebe's eventual COBRA election related "back to the date of termination or whether continuation coverage starts on the date of election" (¶ 25). The policy language was clear: "[O]nce a participant elects COBRA coverage, it relates back to the qualifying event" (¶ 26). "[O]nce Beebe received notice and timely elected continuation coverage, his coverage was retroactive to the date of the qualifying event" (¶ 29). Second, Zurich had a subrogated right against WPS, which was contractually obligated to pay the hospital costs but failed to do so. Zurich effectively stepped into Michels' shoes by paying the delinquent bills and thus had "superior equity" over WPS (see ¶ 34).

On cross-appeal, the court of appeals held that Zurich was entitled to only five percent prejudgment interest, not 12 percent. Zurich had compromised with the hospital and paid somewhat less than the full bill. "Thus, Zurich is entitled to reimbursement from WPS for the extent of the payment it made, but is not entitled to recover prejudgment interest under Wis. Stat. § 628.46 [the 12 percent provision]" (¶ 40). Finally, the court held that Zurich could not recover its costs of about $500 for making digital images of records. The pertinent statute, Wis. Stat. section 814.04(2), applies only to photocopies (hard copies), not to such imaging. "[U]nless the legislature revises the statute to add electronic reproduction/imaging to the statute as an item of cost, imaging costs do not fall within the costs statutes..." (¶ 43).

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Motor Vehicle Law

State v. Machgan, 2007 WI App 263 (filed 28 Nov. 2007) (ordered published 19 Dec. 2007)

Machgan was charged with operating a motor vehicle while intoxicated (OWI) as a fourth offense. As a basis for one of the three prior convictions, the state listed a 2004 administrative suspension of Machgan's driver's license by the state of Missouri. The Missouri arrest was based on probable cause that Machgan was operating while under the influence of alcohol there. Machgan filed a motion to dismiss on the ground that the court lacked jurisdiction because the criminal complaint failed to set forth sufficient facts to allege a fourth-offense OWI and therefore was defective. In support of the motion he asserted that his driving record lists only two prior convictions, both in Wisconsin, and that the event listed as occurring in Missouri indicating an OWI arrest did not list an adjudication or conviction and thus could not be counted as a prior conviction under Wisconsin's graduated penalty structure for OWI offenses. See Wis. Stat. §§ 346.65(2c), 343.307. The circuit court held that the defendant's administrative suspension in Missouri cannot be counted as a prior conviction for Wisconsin penalty enhancement purposes. In a decision authored by Judge Anderson, the court of appeals affirmed.

The OWI penalties provided for in Wis. Stat. section 346.65 are determined (in relevant part) by "the total number of suspensions, revocations and other convictions under s. 343.307(1)." Wis. Stat. section 343.307 contains two subsections that specifically pertain to "the law of another jurisdiction" and to determination of which events under the out-of-state law will be counted as prior convictions for the purpose of penalty enhancement. See Wis. Stat. § 343.307(1)(d), (e). Administrative suspensions like the one in this case are not included among the events that count. Said the court, "If the legislature wishes to count other out-of-state suspensions for penalty enhancement purposes, it is for the legislature to express, not for this court to surmise when the statutory language provides otherwise" (¶ 14).

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Municipal Law

Village of Hobart v. Brown County, 2007 WI App 250 (filed 18 Oct. 2007) (ordered published 28 Nov. 2007)

This dispute arose from Brown County's construction of a waste transfer station in the village of Hobart without having first obtained approval or permits from the village. In injunction proceedings the circuit court concluded that the county did not violate any village ordinances and that, even if it did, equitable principles justified denial of the injunction. In a decision authored by Judge Dykman, the court of appeals reversed.

Among the issues on appeal was whether the county violated the Hobart zoning ordinance by constructing the waste transfer station. The official zoning map that was adopted in 1986 and is referred to in the ordinance zones the parcel of land in question as an "exclusive agricultural district," which would not permit a waste transfer station. Nonetheless, the county argued that the last sentence of the zoning ordinance, which states that "[t]he said [1986] map, together with everything shown thereon and all amendments thereto, shall be as much a part of this ordinance as though fully set forth and described herein," establishes that the other purported official zoning maps, several of which are posted in the village's municipal building and one of which was provided to the county, are incorporated into the zoning ordinance. The parties agreed that the other versions of the zoning map designate the waste transfer station site as "public use." The county argued that the village's other versions of the zoning map are "amendments" to its official map, and thus the waste transfer station site has been re-zoned to public use. (The record establishes that the village did not adopt a new official map after 1986. See ¶ 13 n.4.)

The court of appeals disagreed. Said the court, "[T]he problem with the County's argument is that it is asking us to equate the printing of a map with zoning. But the Village may not effect a zoning change by simply printing a new map. See Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988) (explaining that `ordinances which change the zoning classification of a specific parcel of land must comport with statutory notice requirements' because `the public ha[s] a right to appear and voice objections to the proposed ordinance'). Further, even accepting the County's argument that the Village may re-zone land through amendments to its official zoning map, we do not agree that printing a map labeled `official map' is equivalent to amending an official map. If the County's argument is carried to its logical conclusion, then anyone seeking a permit would be subject to the Village's arbitrary changing of its zoning, since all the Village would have to do is print a map with new zoning districts and call that an `amendment' to its official map. This would be contrary to law in Wisconsin establishing safeguards to protect the public from unnoticed or secret changes in zoning. See, e.g., Gloudeman, 143 Wis. 2d at 784-85" (¶ 13).

Another issue on appeal was whether the county could avoid the village's permit requirements for the construction of the waste transfer station because it relied on the advice of its corporation counsel, who had rendered an opinion that the county could legally proceed with construction without any approval or permits from the village (see ¶ 4). "The County argues that it was advised by its corporation counsel that it could legally construct the waste transfer station without a building permit from the Village, and that it should not be punished for exercising its right to be represented by counsel. The County does not argue that it was not subject to the Village's permit requirements, only that it was justified in relying on its counsel's advice in proceeding without one. While we agree that it would be improper to punish the County for acting on the advice of legal counsel, we do not agree that the County is entitled to immunity for acting on that advice. That is, the fact that the County's corporation counsel erroneously advised it to proceed with constructing a waste transfer station does not mean that the County is not subject to the Village's permit requirements" (¶ 18).

In sum, because the circuit court's findings that the county did not violate the village zoning ordinance and that equity prevented an injunction were not supported by the record, the court of appeals reversed the circuit court and remanded the matter for further proceedings in the circuit court (see ¶ 24).

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Real Property

Countrywide Home Loans v. Schmidt, 2007 WI App 243 (filed 10 Oct. 2007) (ordered published 28 Nov. 2007)

"In this case, Countrywide Home Loans, Inc. lent Gary Schmidt $360,000 secured by a home mortgage. There was a problem, though - at the time Countrywide lent Schmidt the money, the house was no longer Schmidt's to mortgage. Jeanne Mayer had contracted to buy it for $300,000 and had sued Schmidt for specific performance when he tried to back out on the deal, all before Countrywide entered the picture. Eventually, realizing that Mayer's superior claim on the property rendered its $360,000 mortgage worthless, Countrywide fell back on the fact that it had paid off two prior mortgages totaling about $260,000. The circuit court allowed Countrywide to recoup the $260,000, but Countrywide claims it is entitled to more: it wants Mayer to pay interest on the old mortgages, along with taxes and insurance that it paid, all adding up to $320,000 _ or $20,000 more than Mayer's purchase price for the property" (¶ 1).

In a decision authored by Chief Judge Brown, the court of appeals affirmed the circuit court's determination that Countrywide was not entitled to equitable subrogation for the additional monies. Countrywide relied on a strained reading of a 1926 case as establishing a bright-line rule along the following lines: "had Countrywide not paid off the two earlier mortgages, they would still be in place and accumulating interest at their old rates. Thus, Countrywide being subrogated to those loans leaves Mayer no worse off than she was before the old mortgages were refinanced. But the facts remain that the mortgages were refinanced, and that, until fairly recently, the total amount `due' on those mortgages has been less than Mayer's $300,000 purchase price. Because of these two facts, during Mayer's legal battles of the past four years, she has been operating under the reasonable assumption that if she were successful in her specific performance case, she could get what she bargained for" (¶ 19). In particular, Mayer might "well have conducted herself differently throughout the proceedings had she known that interest was `accumulating' on mortgages that no longer existed: for example, she could have walked away from the transaction, or asked the court to order Schmidt to make the necessary payments to preserve the status quo. It is simply not true that Mayer is no worse off if Countrywide is allowed equitable subrogation that exceeds her bargained-for purchase price"

(¶ 20). Balancing these equities, including the indisputable fact that Mayer was "blameless," the circuit court properly permitted "Mayer to enforce her contract as written, and not pay Countrywide more than the purchase price of the property for mortgages it did not hold" (¶ 21).

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Sexually Violent Persons

State v. Budd, 2007 WI App 245 (filed 4 Oct. 2007) (ordered published 28 Nov. 2007)

The court of appeals, in an opinion written by Judge Dykman, reversed Budd's commitment as a sexually violent person under Wis. Stat. chapter 980. The court said that reversible error occurred when the state introduced evidence of the Department of Correction's screening process, conducted by the End of Confinement Review Board (ECRB), for persons potentially subject to chapter 980.

Said the court, "[t]he problem with the screening evidence admitted in this case is that it did not establish why Budd was selected for ch. 980 proceedings. The evidence only explained that most sex offenders scheduled for release are not selected for ch. 980 proceedings, without explaining why a select few are so chosen. There was no testimony as to the qualification of the ECRB or its chairman, or explanation of the evaluation process used by either. From the record, the ECRB's process could be random, or based on irrelevant criteria. As Budd points out, all the evidence served to do in this case was to inform the jury that Budd was selected as one of the 4.5% of sex offenders recommended for ch. 980 proceedings. Without explaining why, we do not see how that information is relevant to whether Budd is a sexually violent person under our analysis in [prior case law]" (¶ 16). The court of appeals concluded that the error was not harmless.

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Torts

Krier v. Vilione, 2007 WI App 235 (filed 2 Oct. 2007) (ordered published 28 Nov. 2007)

Several plaintiffs, including several corporations and an investor, sued an accounting firm for malpractice and related claims after financial irregularities, including misappropriations, occurred. The circuit court granted summary judgment in favor of the accounting firm and dismissed the claims.

The court of appeals, in a decision authored by Judge Curley, reversed. The opinion features an extended discussion of accounting malpractice and harm to third parties who rely on financial statements, a determination crucial to assessing the plaintiffs' standing. The court found that the "client-based relationships" among the accounting firm and the plaintiffs (entities and individuals) was "closer" than that observed in two prior cases that involved "accounting firms and third parties" (¶ 21). In sum, the plaintiffs had asserted valid claims.

The court next assessed the range of potential damages in light of the accounting firm's duty toward the plaintiffs. Whereas the trial court had restricted damages to $7,000, the court of appeals found issues of fact that justified a trial on potentially millions of dollars in damages.

Godoy v. E.I. DuPont de Nemours, 2007 WI App 239 (filed 16 Oct. 2007) (ordered published 28 Nov. 2007)

The plaintiff, a minor, brought claims for strict-liability and negligence defective-design against manufacturers of white-lead-carbonate pigment. The circuit court dismissed the claims. The "crux of the appeal center[ed] on whether [the] complaint sufficiently alleges that white-lead-carbonate pigment was defectively designed" (¶ 1).

The court of appeals, in an opinion written by Judge Fine, affirmed the circuit court's determination that the claim was insufficient. The "bottom-line here … is that one cannot make white-lead carbonate without using lead" (¶ 9). Turning for edification to the Restatement (Third) of Torts: Product Liability (1998), § 5, the court concluded that "the only possible definition of `defective' that could be applicable here is subsection (b), which requires that `the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.' Putting aside the fact that in Wisconsin `foreseeability' is not an element of a strict-liability claim (but is of a claim asserting negligence), as we have seen there is no `alternative design' to make white-lead carbonate without using lead. Thus, the Restatement (Third) of Torts: Products Liability § 5(a) (1998) does not sanction imposing liability on the defendants. As expressed by § 5 cmt. C: `[R]aw-materials sellers are not subject to liability for harm caused by defective design of the end-product'" (¶ 8).

DeFever v. City of Waukesha, 2007 WI App 266 (filed 28 Nov. 2007) (ordered published 19 Dec. 2007)

In January 2004 a water main ruptured under an entranceway into an underground parking structure; the flood destroyed property belonging to apartment residents who used the garage. The pipes froze because they were buried only three feet beneath the surface. The plaintiffs sued the city of Waukesha for its role in designing and installing the water main. The circuit court granted summary judgment in the city's favor based on governmental immunity.

The court of appeals, in a decision authored by Judge Snyder, affirmed. Various administrative regulations imposed a ministerial (nondiscretionary) duty on the city to properly install the water main to prevent freezing. It was not disputed that the water main, when originally installed, was in compliance with these requirements. Later modifications, however, left the water main with only three feet of cover, which was insufficient. "Here, administrative code provisions, `acts of government,' imposed a ministerial duty on Waukesha to place the water main at a specified depth. However, we have located no statutes or rules regarding post installation inspections or modifications that would impose a ministerial duty on Waukesha under the circumstances presented. Waukesha installed the water main at an appropriate depth to prevent freezing. It was not until the surface was graded down to allow for the entrance ramp to the underground parking garage that the water main was no longer at the required depth…. We conclude that the design of the overall development, including the soil grading performed to place an entrance ramp for the underground parking garage, was a discretionary act and enjoys governmental immunity" (¶ 13).

The court also rejected the plaintiffs' argument that the court should recognize an exception for engineering services that is akin to one governing the "medical context." The argument was "misdirected" because the supreme court had previously refused to recognize a "`professional' exception beyond the medical context" (¶ 16).

Hardy v. Hoefferle, 2007 WI App 264 (filed 6 Nov. 2007) (ordered published 19 Dec. 2007)

Hoefferle and a minor, Aaron Hardy, were operating all-terrain vehicles (ATVs) on land owned by Aaron's mother. Aaron suffered serious head injuries when the ATVs collided. Aaron was not wearing a helmet. Aaron later sued Hoefferle to recover damages for his personal injuries. One year before these claims were filed, Hoefferle had accepted $50,000 from Aaron's parents' (the Hardys') insurer, signing a document entitled "Loy Release/Covenant Not to Sue." The circuit court ruled that Hoefferle's counterclaims against the Hardys for their alleged negligent supervision were barred by statute as well as by the release.

The court of appeals, in an opinion written by Judge Brunner, affirmed. According to Hoefferle's counterclaim, the Hardys were negligent in failing to ensure that Aaron wore a helmet and because he lacked an ATV safety certificate. The court held that because Aaron was injured on land owned and managed by his mother, he fell within an exception to the helmet requirement as provided by Wis. Stat. section 23.33(1)(if). For this reason, "Wis. Stat. § 895.049 prohibited Aaron's failure to wear a helmet from reducing his damages" (¶ 11).

Moreover, the court rejected the argument that section 895.049 applies only to damages, not negligence. "We conclude that where § 895.049 applies to prohibit a reduction of damages, it necessarily also precludes a person's failure to wear a helmet from being considered a form of negligence" (¶ 12). For much the same reason, the parents could not be negligent for failing to require that Aaron obtain ATV safety certification. "Here, Aaron was not required to obtain the safety certificate because he was operating the ATV on property under the management and control of his mother …" (¶ 17). "The safety certificate requirement of Wis. Stat. § 23.33(5) is a creation of the legislature, and the legislature has specified who is required to comply with the requirement. Where a person is not required to obtain a safety certificate, we conclude that person cannot be negligent for failing to do so. Hoefferle essentially implies that a jury should be given the opportunity to supplant the legislature's policy judgment on who should obtain a safety certificate. We disagree" (¶ 18).

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Worker's Compensation

Lloyd Frank Logging v. Healy, 2007 WI App 249 (filed 30 Oct. 2007) (ordered published 28 Nov. 2007)

An insurance carrier appealed a circuit court order affirming a Labor and Industry Review Commission determination that Healy was an employee "because he did not fulfill the statutory definition of an employer" (¶ 1). The insurer argued that Healy "was an employer primarily because he purchased a worker's compensation insurance policy" (id.).

The court of appeals, in an opinion written by Judge Hoover, affirmed the circuit court and rejected the argument. The argument was rooted in Stapleton v. Industrial Commission, 249 Wis. 133 (1946) (Stapleton I); there was no contention that Healy was an employer as defined by statute. See Wis. Stat. § 102.04 (defining "employer"). "Read in context, then, it is apparent that when the Stapleton I court and Wis. Stat. § 102.04(3) (1943) refer to any `person, firm, and[/or] private corporation,' they are describing types of entities that may be employers. Nothing about the court's decision or the statute implies that individuals who are not also employers may opt into the Worker's Compensation Act's jurisdiction. Ultimately, [the insurer] is bootstrapping, arguing that because Healy `bought a worker's compensation policy, he is considered an employer under the Act,' even though to elect to come under the Act by purchasing a policy, Healy had to be an employer in the first place" (¶ 14). Moreover, Healy "never had individuals in his service as employees" (¶ 15). "The Commission correctly concluded that because Healy is not excluded from the definition of employee, he is entitled to benefits from [the insurer]" (id.).

County of Dane v. Labor & Indus. Review Comm'n, 2007 WI App 262 (filed 29 Nov. 2007) (ordered published 19 Dec. 2007)

An employee slipped and fell on a wet floor while at work. One of her legs twisted behind her back and her knee was injured. As a result, she has a limp, persistent pain, strength loss in her joints, and poor balance when walking without a cane. In worker's compensation proceedings the administrative law judge (ALJ) found that the employee was entitled to a special benefit for disfigurement because of the limp. The Labor and Industry Review Commission (LIRC) affirmed the ALJ; the circuit court thereafter affirmed the LIRC. In a decision authored by Judge Lundsten, the court of appeals affirmed the circuit court. The county appealed.

Wis. Stat. section 102.56(1) authorizes compensation for permanent disfigurement, subject to the qualification that the disfigurement involve "areas of the body that are exposed in the normal course of employment." With regard to limps, LIRC has been inconsistent in deciding whether they constitute a disfigurement (ruling in 1986 that they do and in 1994 that they don't). In light of this inconsistency, the court of appeals decided in this case that the applicable standard to be applied in the review of LIRC's decision is due weight deference (see ¶ 18).

Applying that standard the court concluded that LIRC's position in this case that a limp is a disfigurement is a reasonable interpretation of the law (see ¶ 19) The text of the statute does not limit the notion of disfigurement to things like amputations, scars, and burns. Dictionary definitions of the term "disfigure" are indeed broader, for example, "to make less complete, perfect, or beautiful in appearance or character" (¶ 20) (citing Webster's Third New International Dictionary (1993)). Further, the court concluded that "LIRC's present interpretation comports with the manifest purpose of disfigurement awards: to compensate an employee for potential wage loss resulting from negative perceptions about a physical abnormality when those perceptions are not justified by any corresponding functional limitations. Undoubtedly, potential employers may have negative perceptions of a limp such as [the employee's in this case], and those perceptions may negatively impact wage-earning potential beyond what any corresponding functional limitations justify. The circumstances of [the present] case are illustrative. The facts found by the ALJ show that at least one potential employer was concerned that [the employee] had multiple sclerosis or had suffered a stroke" (¶ 22) (citations omitted).

Finally, the appellate court concluded that "LIRC's present interpretation comports with the primary purpose of the worker's compensation act, to compensate injured workers for loss of wage-earning power, and with the general principle that the act is liberally construed to effectuate this purpose"
(¶ 23) (citations omitted).

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