Vol. 75, No. 12, December
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
Indispensable Parties - Indian Tribes
Dairyland Greyhound Park
Inc. v. McCallum, 2002 WI App 259 (filed 19 Sept. 2002)
(ordered published 30 Oct. 2002)
Dairyland Greyhound Park sought to enjoin Gov. Scott McCallum from
renewing gaming compacts with Indian tribes in Wisconsin. The circuit
court dismissed the action on the ground that the tribes are "necessary
parties" under Wis. Stat. section 803.03(1), and because they cannot be
joined as parties, the injunctive action cannot proceed.
The court of appeals, in an opinion written by Judge Deininger,
reversed. At the outset the court emphasized that the merits of an
injunction were not before it. The sole question was whether the claim
for relief may be heard in a Wisconsin court despite Dairyland's
inability to join the tribes as parties.
The court looked to case law "discussing the nature of the interest
required for intervention as a matter of right for guidance" in
resolving this issue, an interest that is "defined broadly" and extends
"well beyond the concept of 'legally protected' interest" (¶14). It
was "not necessary for the tribes to have an enforceable right to
continue conducting casino gambling in order for them to have a
sufficient interest in this litigation to be deemed necessary parties."
Rather, their mere "opportunity to convince the Governor" to extend the
compacts beyond their current expiration dates sufficed. (¶16)
Turning next to whether the tribes' absence impaired or impeded their
ability to protect that interest, the court observed that neither the
governor's participation as a party nor the tribes' status as "amicus"
resolved the matter.
Since the tribes cannot be made parties, the "final question" was
whether "in equity and good conscience the action should proceed among
the parties now before the court, or alternatively, whether the action
should be dismissed, as the circuit court concluded" (¶20). The
court elected to apply a de novo standard of review, and looked at four
questions: 1) Will the tribes be prejudiced by the rendering of a
judgment in this action in their absence? 2) Can any such prejudice be
lessened or avoided by protective provisions in the judgment or other
measures? 3) Will a judgment in the absence of the tribes be "adequate"
with respect to the governor and Dairyland? 4) Will Dairyland have an
adequate remedy if this action is dismissed for non-joinder?
The court of appeals held that the circuit court erred by giving
undue, "if not controlling, weight" to the tribes' status as sovereign
nations and by placing too much emphasis on the "prejudice" element of
section 803.03(3)(a), "without giving proper consideration to whether
the remaining factors might outweigh the prejudice inherent to the
tribes if Dairyland were to prevail" (¶26). In weighing these other
factors, especially the "adequacy" of a judgment and a remedy absent the
tribes' participation, the court found "persuasive the reasoning of two
state courts [New York and California] which each concluded Indian
tribes were not indispensable parties in light of facts and
circumstances closely analogous to those now before us" (¶32). On
balance, the court held, the action should proceed in the absence of the
tribes, "notwithstanding the potential prejudice to their interests"
UCC - Added Terms - Interest Rates
Mid-State Contracting Inc.
v. Superior Floor Co., 2002 WI App 257 (filed 17 Sept. 2002)
(ordered published 30 Oct. 2002)
Superior Floor Company contracted with Mid-State Contracting Inc. to
install a dust collection system and truck loading system at Superior's
plant. The payment terms were 20 percent down, 70 percent over the
course of the project, and 10 percent due 30 days after completion;
there was no contractual provision regarding interest rates. Superior
paid for the systems.
Later Superior contacted Mid-State regarding additional items that
needed to be repaired or installed. A notation on the invoices specified
a 1.5 percent monthly service charge (an 18 percent annual rate) for all
accounts due. After Superior refused to pay for the items, Mid-State
sued to recover the amounts due plus interest, and Superior
counterclaimed for breach of implied and express warranties. A jury
returned a verdict in Mid-State's favor and the trial court entered
judgment for about $25,000 on the verdict plus $34,600 interest.
The court of appeals, in a decision authored by Judge Hoover,
affirmed. Wisconsin statutes set the legal interest rate at five percent
but permit parties to contract at different rates. Wis. Stat. §
138.04. Superior argued that it never agreed to an 18 percent interest
rate, while Mid-State claimed that its notation at the bottom of the
invoices constituted an "additional term" as provided by Wis. Stat.
section 402.207. A Seventh Circuit case had held that the statute
applies "where there is a previous agreement between the parties and one
or both sends written confirmation of terms discussed adding terms
not discussed" (¶9, emphasis added).
The court of appeals explained that "[w]hile interest may not have
been discussed originally, adding it to the bottom of the invoice
constitutes the addition of a term not previously discussed between the
parties. Thus, § 402.207 applies to make the interest an additional
part of the agreement between merchants unless one of the exceptions in
§ 402.207(2) applies" (¶10). Only the third exception, which
bars the unilateral addition of a term to a contract if notification of
and objection to the term is made, was arguably applicable. Since
Superior never objected to the additional terms, this exception did not
preclude the 18 percent interest rate. (The jury had found Superior
liable for the bills and declined to find that Mid-State had failed to
Self-defense - Instructions
State v. Peters,
2002 WI App 243 (filed 18 Sept. 2002) (ordered published 30 Oct.
Shirley Peters was convicted of first-degree intentional homicide for
shooting her husband to death. The court of appeals, in an opinion
written by Judge Brown, reversed. The court relied on the supreme
court's recent decision in State v. Head, 2002 WI 99, which
held that a defendant need not satisfy an objective threshold showing
for imperfect self-defense. In Peters' case, the court found that the
real controversy of imperfect self-defense had not been fully tried and
that discretionary reversal was appropriate under Wis. Stat. section
752.35. "[I]n order for Peters to be entitled to a jury instruction on
imperfect self-defense, she would need to present only 'some' evidence
that she actually believed that she was in imminent danger of
death or great bodily harm and actually believed that the force
she used was necessary to defend herself" (¶19) (emphasis in
Reversible error also occurred because the trial court refused to
instruct the jury on perfect self-defense, thereby contravening the
supreme court's "clarification" in Head of the "some evidence"
standard. The credibility of the defendant's version of events was for
the jury to decide (¶28).
Bail Jumping - Sufficiency of Evidence - Confession
State v. Hauk, 2002
WI App 226 (filed 1 Aug. 2002) (ordered published 25 Sept. 2002)
The defendant was charged with interference with custody and was
released on bond. One of the conditions of release was that she not
"commit any crimes or engage in any criminal activity." While free on
bond she allegedly solicited a third party to murder her ex-boyfriend
and his current wife. However, the defendant subsequently called off the
"hit" after telling a friend about it and being counseled by the friend
to abandon the plan. The state charged the defendant with bail jumping
on a theory that she intentionally failed to comply with the bond
condition described above when she solicited the murders. No charges
were filed in connection with the solicitation, but the defendant was
convicted of bail jumping.
On appeal, the defendant argued that the evidence presented to the
jury was insufficient because she was never convicted of any underlying
crimes related to her solicitation of murder. In a decision authored by
Judge Dykman, the court of appeals disagreed. It concluded that as long
as there was sufficient evidence to allow a reasonable jury to conclude
beyond a reasonable doubt that the defendant intentionally violated her
bond by soliciting murder, that evidence was not required to be in the
form of a conviction for the solicitation.
This case also raised issues regarding the confession corroboration
rule. In Wisconsin there is a common law rule that a criminal conviction
may not be grounded solely on the admission or confession of the
accused. Instead, to sustain a conviction, corroboration of a
"significant fact" is required. The defendant argued that all the
evidence the state relied on to convict her consisted of extrajudicial
statements that she made either to a detective or to her friend, and
therefore there was insufficient evidence to convict her. The state
responded that the corroboration rule for confessions applies only to
statements made to the police.
The appellate court noted that no Wisconsin case has explicitly
decided whether the corroboration rule applies to all extrajudicial
statements made by the accused or only to those made to the police. It
observed that the main concern underlying the corroboration rule is that
an accused will feel coerced or induced when he or she is under the
pressure of a police investigation and may make a false confession as a
result. Concerns about police pressure are not implicated, however, when
a confession is made to a friend before a police investigation has been
initiated, as occurred in this case. The court therefore concluded that
the corroboration rule did not apply to those statements.
Attempted Child Enticement - Attempted Second-degree Sexual Assault
- Liability When Intended Victim is an Adult Posing as a Child
State v. Grimm,
2002 WI App 242 (filed 19 Sept. 2002) (ordered published 30 Oct.
The defendant was charged with attempted child enticement (Wis. Stat.
section 948.07(1)) and attempted second-degree sexual assault of a child
(sections 939.32 and 948.02(2)). These crimes allegedly occurred during
online communications between the defendant and a Division of Criminal
Investigation special agent who posed as a 14-year-old boy. The
defendant was arrested when he arrived at the location where he was to
pick up the "child" for their planned journey to a hotel.
The defendant moved to dismiss the charges, asserting that commission
of the crimes was legally impossible because the alleged victim was
actually an adult. The circuit court granted the motion.
In a decision authored by Judge Vergeront, the court of appeals
reversed. It held that under State v. Robins, 2002 WI 65, 253
Wis. 2d 298, 646 N.W.2d 287, and State v. Koenck, 2001 WI App
93, 242 Wis. 2d 693, 626 N.W.2d 359, the state may properly charge
attempted child enticement and attempted second-degree sexual assault of
a child when the intended victim is actually an adult whom the
complainant believes to be a child.
Search and Seizure - Warrantless Entry of Home - Exigent
Circumstances - Domestic Violence Investigation
State v. Mielke,
2002 WI App 251 (filed 4 Sept. 2002) (ordered published 30 Oct.
Deputy sheriffs responded to a domestic violence report that the
defendant had struck his female companion at their home and that she was
spitting blood. Deputies had been to the defendant's house several times
in the past for domestic abuse calls.
When the officers arrived, the woman came out onto the front porch
and told them that there was nothing wrong. She did not appear to have
any injuries. Although the scene was calm at the time, the officers
observed that the woman was crying, shaking, and cowering in a corner.
She then turned to go back into the house, telling the police not to
follow her. One of the deputies prevented the woman from closing the
door behind her. Believing the woman to be in danger, the deputy
continued to talk with her for a brief period. The deputy then looked
through the open door and saw the defendant, who granted the police
permission to enter the premises.
The defendant was charged with recklessly endangering another
person's safety, being armed while under the influence of alcohol,
battery, and felony bail jumping. Upon a motion by the defendant, the
circuit court suppressed evidence found inside the house. The court
stated that although there was probable cause to enter, there were not
sufficient exigent circumstances to justify entering the home without a
The court of appeals, in a decision authored by Judge Peterson,
reversed. The court held that the police entry of the home was permitted
by exigent circumstances. This exception to the warrant requirement
arises when the state can demonstrate both probable cause and exigent
circumstances that overcome the individual's right to be free from
governmental interference. Whether the officers acted reasonably in
entering the house without a warrant is measured against the totality of
the circumstances. The test applied is an objective one: what would a
reasonable police officer reasonably believe under the
Here the police believed the woman's safety was threatened. Under all
the circumstances as described above, the court concluded that this
belief was reasonable and that the police were entitled to infer that
exigent circumstances existed.
The state also argued that the entry was permissible under the
emergency doctrine and on the basis of the owner's consent. However,
because the appellate court held that there were sufficient exigent
circumstances justifying the entry, it did not address those additional
Habitual Criminality - Proof of Prior Conviction - Timing of Prior
State v. Watson,
2002 WI App 247 (filed 15 Aug. 2002) (ordered published 30 Oct.
The defendant pleaded guilty to possession of a firearm as a felon,
which plea was accepted by the circuit court on May 9, 1997. The written
judgment of conviction for this offense was dated July 23, 1997. On May
20, 1997, the defendant committed a substantial battery and was charged
with being a repeater because of the prior firearms conviction. The
defendant argued that he was not a repeater within the meaning of the
habitual criminality statute because the judgment of conviction for the
firearms charge was entered after he committed the battery.
In a decision authored by Judge Dykman, the court of appeals held
that once the circuit court has accepted a guilty plea or verdict, the
conviction becomes sufficiently final to trigger the operation of the
repeater statute. It thus concluded that for purposes of applying the
habitual criminality statute in the battery case, the defendant had been
"convicted" of the firearms charge when he was found guilty of the
firearms offense, even though the judgment of conviction for that crime
had not yet been entered.
This case also raised questions concerning the sufficiency of the
state's evidence as to the defendant's repeater status. Although the
appellate court concluded that the defendant admitted the prior
conviction for purposes of repeater enhancement, the court had to look
to the totality of the record to draw that conclusion. Once again, it
encouraged prosecutors seeking repeater enhancement to either: "(1) seek
an oral admission from the defendant at the plea or sentencing hearing
that he or she was convicted of a particular crime on a particular date;
or (2) present at the hearing a certified judgment of conviction. As we
have noted before, these are the best (and simplest) ways to ensure that
the sentence enhancement will be sustained on appeal" (¶ 8).
Finally, in a footnote, the court addressed the question of whether
factual allegations supporting a habitual criminality charge must be
included in both the criminal complaint and the information. Wis. Stat.
section 973.12(1) permits the repeater allegation to be included in
either the complaint or the information. The court concluded that as
long as the two documents are not factually inconsistent with each
other, the defendant is put on sufficient notice if either the complaint
or the information alleges the necessary factual background.
Hearsay - Statements Against Penal Interest - Third-party
State v. Joyner,
2002 WI App 250 (filed 24 Sept. 2002) (ordered published 30 Oct.
The court of appeals, in an opinion written by Judge Fine, affirmed
the defendant's conviction for robbery with use of force. Judge Schudson
dissented. One of the issues raised concerned the admissibility of an
alleged "confession" to the same offense by the defendant's sister. The
sister, who made the statement to the defendant's attorney, in effect
said that the defendant was not in the vicinity at the time of the purse
snatching, which was carried out by another individual while the sister
waited in a nearby car. The attorney withdrew from representation so
that he could testify at the defendant's trial.
The court of appeals found no grounds for reversible error in the
trial court's decision to exclude the sister's statement. When examined
assertion by assertion, as required by the case law, the statements were
not against the sister's penal interest. In one part of the statement
the sister said only that the defendant "wasn't there." In another part,
the sister pointed the finger at two other people and did not inculpate
herself. (¶¶19-20) [In postconviction proceedings, the defense
presented additional information about the alleged "confession," which
the court analyzed and rejected under the newly discovered evidence
Whistleblower Law - Disclosure of Information Involving Alleged
Hutson v. Wisconsin
Personnel Comm'n, 2002 WI App 249 (filed 10 Sept. 2002)
(ordered published 30 Oct. 2002)
Wisconsin's Whistleblower Law is codified as part of the Wisconsin
State Employment Relations Act, Wis. Stat. chapter 230. The act's
statement of policy provides that it is the policy of Wisconsin to
encourage disclosure of certain information by governmental employees
and to ensure that employees are protected from retaliatory action for
disclosing that information.
In this case a probation and parole agent wrote a memo to her
supervisor and sent copies to her supervisor's superior and to union
officials. In the memo, the agent claimed she had to handle an excessive
caseload and referred to a "lack of clarity under a supervisory style
that is extremely arbitrary and capricious."
The agent subsequently filed a complaint with the Wisconsin Personnel
Commission (the commission) against the Department of Corrections,
alleging, among other things, unlawful retaliation against her for
having submitted the memo. The commission concluded that the memo was
not a protected disclosure under the Whistleblower Law because it did
not disclose a "series" of incompetent management actions.
The Whistleblower Law protects the disclosure of information gained
by an employee that he or she reasonably believes demonstrates
mismanagement. "Mismanagement" is statutorily defined as "a pattern of
incompetent management actions which are wrongful, negligent or
arbitrary and capricious and which adversely affect the efficient
accomplishment of an agency function...." See Wis. Stat. §
The commission conceded that this statutory language reflects a clear
legislative intent to provide the protections of the Whistleblower Law
only to those employees who identify a "series" of incompetent
management actions, that is, more than an isolated instance of alleged
In a decision authored by Judge Schudson, the court of appeals
disagreed. The court looked to ordinary dictionary definitions for a
meaning of the term "pattern," which is used in the statute. It found
that "pattern" is defined as "a fully realized form, original, or model
accepted or proposed for imitation: something regarded as a normative
example to be copied." It believed that a "pattern" could be triggered
or established by a single act and thus held that the commission erred
in determining that the agent's memo was not a protected disclosure of
"information" under the Whistleblower Law.
Divorce - Property Division - Division of 401(k) Plan - Fluctuations
in Value of Plan Assets Prior to Redemption
Taylor v. Taylor,
2002 WI App 253 (filed 26 Sept. 2002) (ordered published 30 Oct.
The parties were divorced in September 2000. At that time, they
entered into a marital settlement agreement, which was approved by the
court and incorporated into the divorce judgment. As part of the
property division set forth in the agreement, the husband's 401(k) plan,
consisting primarily of stocks, was divided between the parties. The
husband received 65 percent and the wife received 35 percent, to be
divided through a qualified domestic relations order (QDRO).
Six months after the date of the divorce, the wife's attorney
forwarded a draft QDRO to the husband, the trial court, and the 401(k)
plan administrator. The draft called for a transfer to the wife of 35
percent of the plan's value as of September 2000, with no adjustment
made for changes in the value of plan assets occurring between September
2000 and the date on which the transfer was to occur. The husband
objected, noting that the stock market had declined since the date of
the divorce, causing his 401(k) plan to lose value. He argued that if
his ex-wife were to receive a transferred amount that did not reflect a
proportionate share of the post-divorce losses, absorbing the losses on
both his and his wife's portions of the plan would penalize him. The
wife argued that she was entitled to receive a sum in dollars equal to
35 percent of the value of the plan as of the divorce date, with no
adjustment for subsequent losses. The circuit court agreed with the
In a decision authored by Judge Deininger, the court of appeals
affirmed. The court concluded that the language in the marital
settlement was not ambiguous and that the only reasonable interpretation
of that language is that it granted the husband a 65 percent share and
the wife a 35 percent share of the 401(k) plan as of the date of the
agreement and divorce. The wife's share, like the husband's, was subject
to market gains and losses from that date until such time as she
withdraws her share from the plan.
Responding to one of the wife's additional arguments, the court
concluded that judicial economy would be ill served by permitting any
party who suffers a loss upon liquidation of an asset awarded to him or
her in a divorce to seek a judicial reallocation of the loss. "If a
party desires the comfort and security of a fixed dollar sum from a
divorce property division, that is what he or she should bargain for -
or ask the court to order" (¶ 14).
UM Coverage - Emotional Injuries
Mullen v. Walczak,
2002 WI App 254 (filed 10 Sept. 2002) (ordered published 30 Oct.
Joseph Mullen and his wife were in an accident caused by Douglas
Walczak, who was uninsured. Mullen suffered severe injuries and his wife
died. He brought a wrongful death claim on behalf of the estate.
American Family, the Mullens' insurer, paid $100,000 under the wife's
"each person" uninsured motorist (UM) coverage limit. Mullen and
American Family stipulated that his own injuries, physical and
emotional, totaled $50,000. American Family refused to cover Mullen's
emotional injuries stemming from his wife's death, on the ground that
they arose from his wife's injuries, the coverage for which had been
exhausted. The circuit court granted summary judgment to American
The court of appeals, in a decision authored by Chief Judge Cane,
affirmed. "[B]ut for the death of his wife, Mullen would not have an
emotional distress claim based on witnessing her death. That he suffered
his own injuries is irrelevant to the issue of how the policy covers
claims that result from bodily injury to another person" (¶9). Case
law supported Mullen's contention that he was entitled to recover for
his emotional distress in witnessing his wife's death. Yet the precise
issue was how such damages were treated under the UM policy. "Here, the
emotional distress Mullen suffered by witnessing his wife's death arose
from her bodily injury. Undoubtedly, this distress was severe.
Nonetheless, American Family has already exhausted [his wife's] 'each
person' limit and is not required to provide coverage for any other
damages that arose from her death" (¶14).
UM Coverage - Murder - Vehicular "Use"
Van Dyn Hoven v. Pekin Ins.
Co., 2002 WI App 256 (filed 17 Sept. 2002) (ordered published
30 Oct. 2002)
In June 2002 Shanna Van Dyn Hoven was jogging when Kenneth Hudson
approached her in his truck, "pushed" her into the vehicle, stabbed her
to death, and fled in the truck. Her body was left at the scene. Van Dyn
Hoven's parents and her estate filed this action against the parents'
insurer, alleging that their uninsured motorist (UM) coverage extended
to their damages. The circuit court entered judgment in favor of the
insurer. First, there was insufficient evidence that Hudson was
uninsured. Second, there was no causal nexus between Van Dyn Hoven's
injuries and Hudson's "use" of his truck, as the term "use" is
understood in the policy.
The court of appeals, in an opinion written by Judge Peterson,
affirmed. Case law construes the term "use" to mean "'the use of a
vehicle as such and does not include a use which is completely foreign
to a vehicle's inherent purpose'" (¶8). Since Hudson's "actions
were not consistent with the inherent use of a vehicle" (¶12),
there was no UM coverage. In a footnote, the court distinguished case
law involving injuries caused by the "force from the vehicle's movement"
Unmarried Cohabitants - Unjust Enrichment - Real Estate
Ulrich v. Zemke,
2002 WI App 246 (filed 19 Sept. 2002) (ordered published 30 Oct.
Glenn Zemke and Susan Ulrich lived together from 1989 to 1997, during
which time they had two children together. They had comparable incomes
and separate checking accounts, they shared living expenses, and they
acquired three parcels of land, designated "Homestead," "Buttercup," and
"Badger." Ulrich requested that the circuit court partition the parties'
real and personal property based on unjust enrichment. The court awarded
Ulrich Homestead and Buttercup but ordered her to make an equalization
payment of $36,000. It rejected her unjust enrichment claim as to
The court of appeals, in an opinion authored by Judge Roggensack,
affirmed in part and reversed in part. Under Wisconsin law, "[o]nce a
party demonstrates the existence of a joint enterprise, equity
principles demand that the parties be treated fairly and all assets
accumulated as part of the joint enterprise be divided accordingly. A
division of property otherwise would allow one party to benefit by
retaining an unreasonable amount of property acquired through the
efforts of both" (¶11). The court of appeals held that the circuit
court thus erred when it analyzed Ulrich's unjust enrichment claim
"asset by asset" (¶12).
Functioning as a "family unit," the two "maintained a house, raised
four children, shared living expenses, and continually acquired real and
personal property" (¶14). Indeed, Ulrich's "contribution to the
relationship enabled Zemke to purchase Badger" (¶15). The court
remanded the case for the purpose of dividing Badger. It also remanded
for a recalculation of the equalization payment that will take into
account the value of Badger (¶19).
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