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    Wisconsin Lawyer
    June 01, 1999

    Wisconsin Lawyer June 1999: Court of Appeals Digest

    Court of Appeals Digest


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

    | Civil Procedure | Contracts | Criminal Law | Criminal Procedure | Family Law | Insurance | Municipal Law | Paternity | Open Records Law | Real Property |


    Civil Procedure

    Motion to Dismiss for Failure to State a Claim - Filing the Motion After Filing of the Answer

    Eternalist Foundation Inc. v. City of Platteville, No. 98-1944 (filed 18 March 1999) (ordered published 21 April 1999)

    Wis. Stat. section 802.06(2)(a) provides among other things that every defense in law or fact to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that certain defenses may at the option of the pleader be made by motion. These include the defense of failure to state a claim upon which relief can be granted and the statute of limitations. Section 802.06(2)(b) provides that a motion making any of the defenses listed in section 802.06(2)(a)1 shall be made before pleading if a further pleading is permitted. In this case the plaintiffs argued that the language of this statute means that a defendant may not file a motion to dismiss for failure to state a claim and on statute of limitations grounds once the defendant has filed an answer.

    In a decision authored by Judge Deininger, the court of appeals rejected the plaintiffs' interpretation. The court acknowledged that the statute's language cited above is somewhat confusing if read in isolation. When read in the context of other subsections of section 802.06, however, it becomes apparent that the provisions of section 802.06(2) serve simply to indicate which defenses a defendant may raise prior to, and in lieu of, filing an answer to a complaint. Other subsections of the statute make clear that a defendant who includes the defenses of failure to state a claim or statute of limitations in an answer does not forfeit the right to bring those defenses on for disposition by motion thereafter. Accordingly, the court concluded that the defendants' motion to dismiss for failure to state a claim and on statute of limitations grounds was properly before the circuit court, despite the defendants' having previously filed an answer.

    Statute of Limitations - Section 803(5) - "Same Occurrence"

    Strassman v. Muranyi, No. 98-3039 (filed 18 March 1999) (ordered published 21 April 1999)

    Strassman was injured in a golf cart mishap in August 1994. In May 1995 she and her health insurer sued the golf pro who had rented the cart and his insurer, alleging some kind of defect in the cart. The defendants in turn filed an amended third-party claim against Strassman's husband and his insurer, General Casualty, alleging that Strassman's injuries occurred because of the husband's negligent driving. This third-party claim was filed in July 1996. In October 1997 Strassman and her health insurer also filed a claim against the husband and General Casualty alleging the husband's negligent driving. The trial court granted summary judgment to General Casualty dismissing Strassman's complaint because it was time barred under the statute of limitations.

    The court of appeals, in an opinion written by Judge Dykman, affirmed. Under section 893.54(1) of the Wisconsin Statutes, tort actions must be brought within three years of the injury or its discovery. Strassman brought her claim against General Casualty (and her husband) in October 1997, more than three years since the August 1994 injury. She argued, however, that section 803.05(1) permitted her to bring the claim because another party had asserted the same claim within the statute of limitations (the July 1996 claim) and all parties had notice. The court rejected the argument because Wisconsin's statutes of limitation "serve a much different purpose than simply providing notice and repose." More precisely, they completely "extinguish" the right to bring a claim.


    Contracts

    Store Lease - Repairs - Termination - Economic Loss

    Decade 80-1 Ltd. v. PDQ Food Stores Inc., No. 98-0810 (filed 24 March 1999) (ordered published 21 April 1999)

    A tenant in a mall operated a convenience store. When the landlord failed to repair potholes in the parking lot, the tenant stopped paying rent and vacated the premises. The landlord sued the tenant for the lost rent. The trial judge found that the potholes constituted a breach of the lease.

    The court of appeals, in an opinion written by Judge Brown, affirmed. The court framed the main question as whether the tenant had "to show substantial damages to its business in order to establish a breach that justified terminating the lease." It observed that this was not a constructive eviction action. Rather, the landlord breached a "specific provision requiring maintenance of the parking lot, not the covenant of quiet use which is the basis of constructive eviction cases." The maintenance provision was part of the bargain struck between the parties. Nothing in the lease established that the tenant had to demonstrate actual economic loss before invoking its remedies. Thus, the court refused to grant a "free pass to landlords to ignore contractual agreements."


    Criminal Law

    Self-defense - Retreat - McMorris Evidence

    State v. Wenger, No. 98-1739-CR (filed 21 Jan. 1999) (ordered published 21 April 1999)

    The court of appeals, in an opinion written by Judge Cane, affirmed the defendant's conviction for second-degree reckless injury with a dangerous weapon. One of the key issues concerned the accuracy of the trial court's instruction on self-defense and retreat, Wis JI - Criminal 810. Although the self-defense statute does not mention retreat, case law recognizes the proposition that "whether the opportunity to retreat was available may be a consideration regarding whether the defendant reasonably believed the force used was necessary to prevent or terminate the interference." The evidence revealed that the defendant "may have been able to retreat safely into his house and lock the door." The feasibility of these measures was a jury issue.

    A second issue concerned the trial court's exclusion of certain McMorris evidence; that is, prior acts of violence by the victim, known to the defendant, offered to show the reasonableness of the defendant's behavior. In this case the defense wanted to offer some evidence about the victim's prior violent behavior that the defendant was unaware of at the time of the offense. Several cases "seem to indicate that evidence concerning the reality or actuality of the victim's prior specific violent acts is admissible to prove the reasonableness of the defendant's knowledge and lend credibility to his assertions about his state of mind." The same cases indicate that "the witnesses need not have communicated these observations to the defendant." The court of appeals held, however, that any error was harmless because the excluded evidence was essentially cumulative.


    Criminal Procedure

    Exculpatory Evidence - Failure to Disclose - Gunshot Residue Tests

    State v. DelReal, No. 97-1480-CR (filed 9 March 1999) (ordered published 21 April 1999)

    The court of appeals, in an opinion written by Judge Wedemeyer, reversed the defendant's conviction for second-degree recklessly endangering safety, while armed, and remanded the case for a new trial. The error consisted of the state's failure to dis-close that following the shooting, swabs had been taken of the defendant's hands that could have been tested for gunshot residue. A detective had testified that no such swabs had been taken. Thus, the existence of the swabs was relevant to attack the detective's credibility and shed light on the quality of the investigation. Moreover, the results of the gunshot residue test were negative. Although this did not conclusively prove the defendant's innocence, it was relevant and exculpatory. The court also declined to find that the error was harmless.

    Guilty Plea Hearings - Advice to Defendant Regarding the Setting of Parole Eligibility

    State v. Byrge, No. 97-3217-CR (filed 17 March 1999) (ordered published 21 April 1999)

    Under present law a court sentencing a defendant to life imprisonment is required to make a parole eligibility determination. Pursuant to Wis. Stat. section 973.014(1) the court has three options: 1) determine that the defendant is eligible for parole using the ordinary calculations established in Wis. Stat. section 304.06(1); 2) determine a parole eligibility date that is later than that calculated under section 304.06(1); or 3) determine that the defendant is not eligible for parole. In this case the court selected the second option and fixed the defendant's parole eligibility date at July 2, 2095, after he had been convicted of first-degree intentional homicide and various related felonies. The judgment followed the entry of no-contest pleas.

    While the court's plea colloquy with the defendant was extensive and otherwise complete, it did not advise the defendant of the court's options regarding the setting of parole eligibility or the court's power to fix a parole eligibility date. The defendant contended that this failure was error.

    In a decision authored by Judge Nettesheim, the court of appeals disagreed. It held that a defendant is not statutorily or constitutionally entitled to a forewarning about parole eligibility as part of the plea colloquy process in a case governed by section 973.014(1). Though the court of appeals recommended the practice, it held that a valid plea colloquy does not require that the court advise a defendant that it may set a parole eligibility date.


    Family Law

    Child Support - Arrearages - Equitable Credit

    Monicken v. Monicken, No. 98-2922 (filed 30 March 1999) (ordered published 21 April 1999)

    The original judgment of divorce in this case, which approved and incorporated a marital settlement agreement, provided that the husband should pay to his ex-wife for the support of their minor children the sum of $500 each month to be deducted from his income pursuant to an assignment of income. That judgment was later amended to provide that the monthly payments were to be made directly by the husband to his ex-wife without the involvement of the local clerk of court. Only two such payments were made. However, the parties had orally agreed to a different child support arrangement whereby money would be paid by the husband directly to the children or to a third party. Several years later the wife filed a contempt motion alleging that her ex-husband failed to pay his child support as agreed to by the parties and requested the payment of child support arrearages.

    The circuit court denied the contempt motion. It concluded that no arrearages existed because the husband had, on average, expended $448 per month for the children by making cash and noncash payments directly to them and to third parties. The court further held that neither Wis. Stat. sections 767.32(1m) nor (1r) precluded it from recognizing the payments that the husband had made. Further, the court concluded that the extrajudicial oral agreement between the parties was enforceable under the doctrine of equitable estoppel.

    In a decision authored by Chief Judge Cane, the court of appeals reversed. First, it concluded that because the judgment only provides for direct cash payments to the ex-wife, the circuit court erred when it concluded that the husband fully complied with the judgment by making cash and noncash payments directly to the children and third parties. The appellate court next considered whether the statutes cited above allowed the circuit court to modify the amended judgment and credit the husband for the direct payments he made to his children and third parties that do not comply with the amended judgment. The court agreed with the wife that recently amended section 767.32(1r) limits a circuit court's authority to modify an existing child support arrearage to the specific circumstances enumerated in that statute. Accordingly, the appellate court remanded this matter so that the circuit judge could consider whether under section 767.32(1r), the husband should receive credit for expenditures made in a manner other than as prescribed in the amended judgment of divorce.

    Grandparent Visitation - Wis. Stat. section 880.155 - "Best Interest of the Child"

    F.R. v. T.B., No. 98-0819 (filed 11 March 1999) (ordered published 21 April 1999)

    This case involves grandparent visitation privileges under Wis. Stat. section 880.155. This statute provides that if one or both parents of a minor child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the child, whether or not the person with custody is married. The statute further provides that the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child has notice of the hearing on the matter and if the court determines that visitation is in "the best interest of the child."

    Among the critical issues in this case was the meaning of the phrase "best interest of the child." In a decision authored by Judge Dykman, the court of appeals began its analysis by noting that nothing in the statute's language defines the meaning of this phrase. Nor is there anything in the legislative history that suggests how the phrase should be interpreted. The court therefore looked to other statutes in which this language is used. It found that section 767.245, which addresses visitation rights of nonparents, contains language strikingly similar to section 880.155. Though section 767.245 does not define its use of the phrase "best interest of the child," the court looked for guidance on how to interpret this language in other provisions of chapter 767. In section 767.24(5) the court found the most extensive explanation of what a trial court should consider when it determines the "best interest of the child." The court of appeals was satisfied that this definition also sets out an appropriate standard for determining the "best interest of the child" under section 880.155.

    Divorce - Maintenance - Comparable Standard of Living

    Johnson v. Johnson, No. 98-2141 (filed 3 Feb. 1999) (ordered published 21 April 1999)

    William Johnson appealed from an order modifying the amount of maintenance he must pay to his former wife. He contended that the trial court erred in setting maintenance above 50 percent of the total household income at the time of the divorce. In a decision authored by Judge Brown, the court of appeals concluded that the trial court's decision on maintenance was reasonable and in accordance with the law.

    While the appellate court recognized that it is reasonable to consider an equal division of total income as a starting point in determining maintenance, an equal division of income is not the only starting point. In this case the trial court looked at the type of lifestyle the parties maintained during the marriage, considering such factors as home ownership, insurance coverage, vacation time, and hobbies. It then determined the amount necessary for Johnson's wife to maintain a comparable lifestyle and based its maintenance award on this determination. This type of analysis may very well come much closer to a realistic approximation of the maintenance necessary to support the predivorce standard of living than a rote calculation based on income.

    The court also noted the fact that maintaining two households is more expensive than maintaining one means that 50 percent of the total income at the time of the divorce will rarely allow either of the parties to maintain the marital standard of living. In most cases, both parties will take a cut in lifestyle as a result of the divorce. Fifty percent of the predivorce income often is taken as a starting point because maintenance of the payee spouse at the predivorce standard of living is not feasible - the payer cannot afford it. But the goal is that standard of living enjoyed during the marriage, not 50 percent of the total predivorce income. In this case the trial court's analysis was an attempt to approximate the predivorce standard of living and the payor's increase in income allows maintenance of that standard of living without undue hardship.

    The court felt compelled to clarify what this opinion did not say. A payee spouse is not entitled to maintenance allowing a lifestyle above and beyond the predivorce standard of living. Just because the payor has achieved a position that enables him or her to live a richer lifestyle than that enjoyed during the marriage does not mean that the payee may share this lifestyle as well through maintenance. The court also pointed out that this was not a case where the maintenance award was based on the payor's anticipated increase in salary. See Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).


    Insurance

    Exclusions - "Drive Other Car" - UM Coverage

    Blazekovic v. City of Milwaukee, No. 98-1821-FT (filed 23 March 1999) (ordered published 21 April 1999)

    The plaintiff was a firefighter who was injured when an uninsured motorist struck her fire truck. She filed suit against her auto insurers, American Family and American Standard, alleging that she was entitled to uninsured motorist coverage. Both insurers denied coverage based on identical exclusions governing "nonowned emergency type automobiles." The trial court ruled that the endorsement was invalid.

    The court of appeals, in an opinion written by Judge Curley, affirmed. The court tracked case law that had struck down various exclusions and the subsequent statutes that had effectively overturned these cases. The court concluded "that while the legislature's statutory amendments to sec. 632.32 loosened what was previously a complete ban against 'drive other car' exclusions, the amendments did not make all 'drive other car' exclusions permissible." In particular, these "drive other car" exclusions are now valid in three limited instances: "(1) the vehicle is owned by the named insured or the spouse of the named insured or a relative living with the named insured; and (2) the vehicle is not listed in the policy; and (3) the vehicle meets neither the policy definition of a newly acquired vehicle nor the policy definition of a replacement vehicle."


    Municipal Law

    Annexation - Challenge by Objecting Municipality - Notice of Claim

    Town of Burke v. City of Madison, Nos. 98-0108 and 98-1362 (filed 11 March 1999) (ordered published 21 April 1999)

    Owners and electors of certain properties located in the Town of Burke filed petitions for direct annexation by the City of Madison. The city responded with ordinances effecting the annexations. The town filed actions for declaratory judgment seeking to invalidate the annexations. The city filed timely responses and then moved to dismiss because the town had not filed notices of claim against the city pursuant to Wis. Stat. section 893.80.

    The issue before the court of appeals was whether a notice of claim is required when a town files a lawsuit pursuant to Wis. Stat. section 66.021 objecting to a city's annexation of the town's land. In a decision authored by Judge Roggensack, the court concluded that because the Town of Burke brought its claims pursuant to a specific statutory scheme devised by the Legislature to effect and to resolve objections to annexations in a timely fashion and because the policies that underlie the notice of claims statute would not be furthered by requiring that a notice of claim be filed prior to the town's commencing suit, the town was excused from complying with the notice of claims statute prior to bringing suit to contest the validity of the annexations.

    Zoning - Termination of Nonconforming Uses

    Village of Menomonee Falls v. Preuss, No. 98-0384 (filed 17 March 1999) (ordered published 21 April 1999)

    The Village of Menomonee Falls appealed from a judgment ordering the defendant to remove a commercial addition to his residence, but allowing him to continue to use the residence as such. The defendant's residence is a nonconforming use because his neighborhood is now zoned industrial. After he modified his use by adding a commercial garage, the village requested that the court terminate the entire use. The trial court refused to do so, viewing the decision as discretionary.

    The court of appeals, in a decision authored by Judge Brown, disagreed. As a matter of law, when an owner of a nonconforming use modifies that use, the municipality is entitled to terminate the entire non-conforming use. See generally Waukesha County v. Pewaukee Marina Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994) (holding that a violation of the nonconforming use by expansion or enlargement that changes the use invalidates the legal nonconforming use as well as the illegal change).

    In this case the defendant's property was exclusively residential prior to the addition. He changed it to a mixed commercial/residential establishment. This was a change in the nonconforming use. The court of appeals therefore affirmed that part of the judgment ordering the defendant to remove the commercial addition to his property. It modified the circuit court's judgment so as to terminate the defendant's residential nonconforming use as well.

    Notice of Claim - Complaint Based on Continuing Course of Conduct

    Probst v. Winnebago County, No. 98-0451 (filed 17 March 1999) (ordered published 21 April 1999)

    This appeal involves Wisconsin's notice of claim statute. Section 893.80(1)(a) provides that, within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim must be served on the "governmental subdivision or agency and on the officer, official, agent or employee." A notice of claim that complies with this statute and a denial of the claim by the government are prerequisites to the commencement of a circuit court action.

    In this case the notice of claim filed against Winnebago County by the plaintiffs did not allege any acts occurring within 120 days of the notice date. The plaintiffs argued that this is not the standard and that the notice and subsequent complaint alleged a continuing course of conduct by the county. However, the plaintiffs cited no legal authority for the proposition that alleging an on-going course of conduct without identifying a specific circumstance or example of that conduct occurring within 120 days of the notice of claim satisfies the requirements of the statute. Nor could the court of appeals locate any such authority. Accordingly, the court concluded that the notice of claim did not satisfy the requirements of section 893.80.


    Paternity

    Personal Jurisdiction - UCCJA

    Paula M.S. v. Neal A.R., No. 98-1158 (filed 25 March 1999) (ordered published 21 April 1999)

    In this paternity action, the court of appeals reversed the circuit court's determination that it had personal jurisdiction over the alleged father. Writing for the court, Judge Roggensack concluded "that the UCCJA [the Uniform Child Custody Jurisdiction Act], which may confer subject matter jurisdiction in custody disputes, does not establish, in and of itself, a sufficient statutory basis of personal jurisdiction over a nonresident defendant in a paternity proceeding." The court was particularly concerned with the child support implications that stem from a determination of paternity. On this record the court held it lacked personal jurisdiction over the putative father. The alleged father, a Michigan resident, lacked the sufficient contacts required by the due process clause. His sole links to Wisconsin consisted of attending two funerals. He did not conduct any business nor did he contact the mother or the child. The child was conceived in Illinois and born in Minnesota.


    Open Records Law

    Challenge to Release of Records - Standards for Circuit and Appellate Court Review

    Kailin v. Rainwater, No. 98-0870 (filed 31 March 1999) (ordered published 21 April 1999)

    In Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the Wisconsin Supreme Court grafted onto the open records law a procedure whereby the custodian of public records who has decided to release those records must first notify the target of the release decision and then allow the target a reasonable amount of time to appeal the decision to the circuit court. Pursuant to Woznicki, the role of the circuit court in this review process is two-pronged. First, the court must determine if the custodian performed the appropriate balancing test in deciding to release the records. Second, if the custodian acted correctly, the circuit court must then review de novo the decision of the custodian.

    In this case the court of appeals, in a decision authored by Judge Nettesheim, developed standards of review for the circuit court and court of appeals in dealing with Woznicki-type issues. [With regard to the first prong, case law already establishes a de novo standard of review of the custodian's open records decision.] With regard to the second prong of the circuit court's review, the appellate court read Woznicki to mean that the circuit court is required to conduct an independent review akin to a trial de novo that permits the taking of additional evidence beyond that which was before the records custodian. This approach will also allow the target to present arguments to the court that the records custodian did not consider.

    With regard to the standard of review to be applied by the court of appeals, the appellate court concluded that, as to the custodian's decision, the law is clear that appellate courts conduct their reviews under the de novo standard. And, as to the circuit court's independent trial de novo review under the second prong of Woznicki, review by the court of appeals should be conducted under the usual standards applicable to a trial conducted in the circuit court. Thus, the court of appeals should apply the appropriate standard, depending on whether the question at hand is one of fact, law, or discretion.


    Real Property

    Easements by Necessity - Ingress and Egress - Utilities

    Richards v. Land Star Group Inc., No. 98-1983 (filed 23 Feb. 1999) (ordered published 31 March 1999)

    In 1946 Peterson purchased property in Pierce County, which the court referred to as parcels 1 and 2. In 1947 Peterson forfeited parcel 1 to the county as a result of failing to pay real estate taxes. At a public auction held that year, the county purchased this parcel and later issued itself a tax deed for the property. In 1963 the county conveyed parcel 1 to plaintiff Richards by quitclaim deed which stated: the "grantor herein having no ingress or egress privileges to said property."

    Parcel 1 is approximately 34 acres in size, has no access to a public road and, as a whole, is landlocked. No written easement exists for access to parcel 1 from any public road. In this case, among other things, the plaintiff requested an easement over parcel 2 to access his property. The trial court granted the plaintiff an easement of necessity for "ingress and egress" but denied him the right to install utilities along the easement.

    In a decision authored by Chief Judge Cane, the court of appeals began its analysis by articulating certain definitions. An easement, said the court, is an interest in land in possession of another. It creates two distinct property interests: the dominant estate and the servient estate. The dominant estate enjoys the privileges an easement grants, while the servient estate permits the dominant estate to exercise those privileges. To establish an easement of necessity, the party seeking the easement has the burden to prove: 1) common ownership or unity of title of the two parcels; and 2) that the property is "landlocked," meaning that a piece of land is surrounded by land belonging to other persons so that it cannot be reached by a public roadway.

    In this case the trial court granted to the plaintiff an easement of necessity for "ingress and egress" to the property but denied him the right to install utilities along the easement. With regard to the latter, the court of appeals reversed. A way of necessity is coextensive with reasonable needs, present and future, of the dominant estate and varies with the necessity, insofar as may be consistent with the full reasonable enjoyment of the servient estate. In current times, the reasonable use and enjoyment of property, at a minimum, requires utilities, as long as it does not overburden the servient estate. Accordingly, the appellate court reversed that portion of the judgment denying utility installation and remanded to the circuit court for its determination whether utility installation would overburden the servient estate and, if not, to determine a reasonable method for the installation of utilities.

    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.


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