Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Civil Procedure | Criminal Procedure | Insurance | Motor Vehicle Law | Municipal Law
Appellate procedure
Stipulations - Reserving Rights - Waiver
Cascade Mountain Inc. v.
Capitol Indemnity Corp., No. 96-2562 (filed 3 July 1997)
(ordered published 26 Aug. 1997)
The plaintiffs sued the defendants for the settlement amount, costs
and attorney fees plaintiff paid in defending a personal injury action
in federal court. The trial judge granted defendants' summary judgment
dismissing most of the claims but denied it on a "relatively minor
component of one claim." To avoid the expense of trial, the parties
agreed to enter a $20,000 judgment against the defendants and further
stipulated that plaintiffs retained the right to appeal the partial
summary judgment. If the dismissal of the principal claims was affirmed,
plaintiffs could execute on the $20,000 judgment. If the summary
judgment rulings were reversed, however, the parties would expunge the
judgment and try all claims.
In a per curium decision, the court of appeals held that plaintiffs
waived the right to appeal by stipulating to the entry of a conditional
judgment. (The court raised the issue sua sponte.) A party
waives the right to appeal in civil cases "where that party has caused
or induced a judgment to be entered or has consented or stipulated to
the entry of judgment." In this case if the court reversed the summary
judgment findings, the plaintiffs could try their entire case, including
the claim they could have tried earlier but elected not to. Thus, the
court of appeals could be forced to review the same issue twice where
only one appeal should suffice. The court was concerned that by
condoning such stipulations parties would circumvent waiver and finality
rules, "thereby converting discretionary, interlocutory appeals into
appeals as a matter of right from 'final' orders or judgments."
Civil procedure
Default Judgments - Reopening - Dismissals with Prejudice
Haselow v.
Gauthier, No. 96-3589 (filed 31 July 1997)(ordered published 26
Aug. 1997)
Plaintiff obtained a default judgment against the defendant. The
trial judge later granted the defendant's motion to reopen the judgment
and to dismiss the action with prejudice. Plaintiff appealed on the
ground that the default judgment should not have been reopened and that
his claim should not have been dismissed with prejudice.
The court of appeals, in an opinion written by Judge LaRocque,
affirmed in part and reversed in part. The trial judge properly
exercised his discretion in reopening the default judgment. The record
established that the plaintiff's process server made just one
unsuccessful effort at personal service. Although the process server was
told that the defendant was living or working in Hawaii, there were no
further efforts to locate the defendant. The single effort to obtain
personal service justified the trial judge's finding of a lack of due
diligence.
The trial judge did not, however, have the authority to dismiss the
action with prejudice. The motion was presented and heard ex parte,
without notice to the plaintiff. First, "a motion to dismiss with
prejudice cannot be heard ex parte." Second, the judge abused his
discretion in dismissing the case with prejudice. A "drastic sanction"
is appropriate only on finding egregious conduct or bad faith, which
this record failed to demonstrate.
Incarcerated Litigants - Case Management
Schmidt v.
Schmidt, No. 96-3699 (filed 16 July 1997) (ordered published 26
Aug. 1997)
This case concerns the management of civil litigation when one of the
parties is incarcerated. In an opinion authored by Judge Brown, the
court of appeals examined how a circuit court should resolve the problem
of moving a civil case towards resolution considering that the
incarcerated party may not be able to appear personally at the
proceedings.
When a court faces a case in which one of the litigants is
incarcerated, a preliminary question it must resolve is whether the case
still can move toward resolution or if it must be held in abeyance until
the incarcerated party is released. If the court finds that the case
should proceed and that to do so the incarcerated party must appear in
person, it has the authority to order that the incarcerated person be
brought to court. This is achieved by issuing a writ of habeas corpus
ad testificandum.
These two determinations - if the case should proceed and how it
should proceed - are discretionary choices that rest on a variety of
factors. The court of appeals concluded that the trial judge needs to
inquire on three different issues: 1) the nature of the case; 2) the
practical concerns raised by having the prisoner appear; and 3) the
alternative methods of providing the prisoner with access to the
hearings.
When a court assesses the nature of a case, it should be concerned
with two matters. First, it must gauge how the incarcerated party's
confinement may affect the case outcome. For instance, the intensity of
discovery might be important. An incarcerated person faces obvious
impediments to conducting discovery. Thus, if the case involves complex
factual details, the only solution may be to hold the case. Moreover,
even if the factual disputes are comparatively simple and narrow, the
court still must consider how much of the evidence will consist of the
incarcerated person's testimony and how his or her presence might
otherwise affect the fact finder's ability to make its credibility
determination. Second, the court should be concerned with the effects of
the litigation on the nonincarcerated party and third parties. For
example, in an action affecting the family, such as a divorce or custody
hearing, a decision to hold the matter in abeyance until the
incarcerated party is released might have negative effects on the family
as a whole.
With respect to concerns raised by having the prisoner appear, the
state has a strong interest in maintaining the confinement of
incarcerated persons. Transporting an incarcerated individual to the
courthouse and having that person attend a proceeding creates a risk to
public safety and of escape. Thus, the trial court must measure whether
moving the incarcerated person will significantly increase these risks.
In fact, transporting a specific individual might so increase these
risks that the possible benefits of being present during a proceeding
would not outweigh those risks. In such a scenario, the court should
especially consider the alternative means through which that person can
present his or her case to the court while remaining in confinement.
With respect to those alternatives, Wisconsin recognizes the utility
of using technology in the trial process; and the court of appeals
expects that judges will rely heavily upon these advances to keep these
kinds of cases progressing to resolution. For example, the incarcerated
party may be able to conduct discovery by telephone. The incarcerated
party also may be afforded access to evidentiary hearings and arguments
through a telephone link or through an audiovisual link. Technology,
however, is not the only alternative to consider. Even if these tools
are not available, the incarcerated party's counsel (if he or she has
counsel) can help move the case. The trial court must determine if
counsel can effectively develop the incarcerated party's case without
that party's attendance.
In applying the factors described above, the judge must recognize
that the Wisconsin Rules of Civil Procedure are forward-looking. The
goal underlying these rules is to move litigation to resolution. Should
either party believe that the proceedings must be adjourned, that party
has the burden of establishing the grounds for such delay. Of course,
both parties may agree that the litigation should proceed. In that case,
the court will focus on solving how the case should proceed.
The other important factor the court must consider is that the
incarcerated person should remain in confinement. Accordingly, the party
seeking the incarcerated person's presence must show why his or her
presence is necessary and why the possible alternatives to having him or
her appear in person are not appropriate. In those cases where both
parties want the incarcerated person to appear, the court must protect
the state's interest in having the incarcerated person remain in
confinement.
As a result of advances in communication technology, the court of
appeals anticipates that a trial judge rarely will determine that the
incarcerated party must be brought to the proceedings. Nonetheless, in
that rare occasion, the appeals court recognizes that the costs of
transporting the incarcerated person to the proceeding will be an
important issue to the court and litigants because the incarcerated
party likely will be indigent. The rules relating to the costs
associated with transporting incarcerated persons to proceedings are set
forth in section 782.45(1) of the Wisconsin Statutes. The court's
opinion in this case concludes by analyzing those rules and other issues
relating to payment of transportation costs.
Criminal procedure
Forfeitures - "Excessive Fines" Analysis
State v. Hammad,
No. 95-2669 (filed 15 July 1997) (ordered published 26 Aug. 1997)
The State of Wisconsin brought a statutory civil forfeiture action
(Wis. Stat. 973.075 et seq.) claiming that a vehicle owned by
the defendant was used to transport property received in the commission
of a felony. The forfeiture action evolved out of a police "sting"
operation and the defendant used the vehicle to transport some of the
"stolen" items he purchased from the police. The circuit court granted
the state's demand for forfeiture of the car, finding that the vehicle
had been used to transport property received in the commission of a
felony.
On appeal the critical issue was whether forfeiture of the vehicle
violated the Excessive Fines Clause of the Eighth Amendment to the U.S.
Constitution. The Eighth Amendment provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." Though the U.S. Supreme Court has never held
that the Excessive Fines Clause applies to the states through the
Fourteenth Amendment, the court in this case proceeded on the assumption
that it does.
The U.S. Supreme Court has expanded the breadth of the Excessive
Fines Clause to include civil forfeiture actions that are commenced by a
government and that are, in whole or in part, driven by a desire to
punish a person. It has set forth a two-part test to determine whether a
forfeiture violates the Excessive Fines Clause: 1) whether the
forfeiture can be considered a punishment, and 2) whether the forfeiture
is constitutionally "excessive."
The court of appeals, in a decision authored by Judge Curley,
concluded that forfeiture of a vehicle used to transport property used
or to be used or received in the commission of a felony has a punitive
purpose because the Legislature has chosen to tie forfeiture directly to
the commission of felony offenses. With respect to whether the
forfeiture in this case was "excessive" within the meaning of the Eighth
Amendment, the court applied the standards articulated in State v.
Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), wherein the
Wisconsin Supreme Court considered whether a fine violated Article I,
section 6 of the Wisconsin Constitution:
"In determining whether a fine authorized by statute is excessive in
the constitutional sense, due regard must be had to the object designed
to be accomplished, to the importance and magnitude of the public
interest sought to be protected, to the circumstances and nature of the
act for which it is imposed, and in some instances, to the ability of
the accused to pay. In order to justify the court in interfering and
setting aside a judgment for a fine authorized by statute, the fine
imposed must be so excessive and unusual, and so disproportionate to the
offense committed, as to shock public sentiment and violate the judgment
of reasonable people concerning what is right and proper under the
circumstances."
When measured against the Seraphine standard, the court
concluded that the forfeiture of the defendant's automobile in this case
was not "excessive." One of the clear objects of the statute authorizing
forfeiture is to deter and punish those who would commit felonies and
use their vehicles to accomplish their criminal purpose. The public
interest, said the court, is both obvious and significant because the
use of a vehicle in the course of a felony frustrates law enforcement by
permitting the guilty to quickly exit, or, as here, to abscond with the
stolen goods. Other factors in the court's analysis included the fact
that the vehicle's value was significantly less than the maximum fine
allowable for the underlying felony (attempting to receive stolen
property). The forfeiture was neither disproportionate to the crime nor
unusual in nature. As such, it does not shock public sentiment nor does
it violate a reasonable person's sense of justice.
Confessions - Search and Seizure - Exclusionary Rule
State v.
Kiekhefer, No. 96-2052-CR (filed 23 July 1997) (ordered
published 26 Aug. 1997)
The defendant was arrested and prosecuted for a variety of drug
offenses after police entered and searched his home. The trial court
denied his motion to suppress evidence. The court of appeals, in an
opinion written by Judge Anderson, reversed the defendant's conviction
for possession of marijuana. The court's opinion reads like a veritable
catalogue of how not to conduct a criminal investigation. And like all
such cases, the opinion is extremely fact-intensive and only a summary
of the court's principal conclusions is possible.
First, police violated the defendant's Miranda rights. Upon
entering his bedroom, they handcuffed him and asked about the location
of drugs in the room. Only after police had searched the room and found
incriminating evidence (drugs and guns) did they advise him of his
Miranda rights. The state argued that under Oregon v.
Elstad (1985) the court should suppress only the defendant's
statements to police, not the physical evidence recovered as a result of
the Miranda-defective statements. Although this posed an issue
of "first impression" in Wisconsin, the court declined the invitation
because it also found that the statements were obtained involuntarily in
violation of the defendant's due process rights. The involuntariness
arose from a host of factors including the officers' show of force, the
failure to advise the defendant of his right to withhold consent to
search and their "posturing" about occupying his house while they
obtained a search warrant. In particular, "the agents had no right to
imply that they could sit in [the defendant's] home for two hours while
a warrant was obtained." Since the consent was obtained involuntarily,
all physical evidence seized during the search was suppressed.
The court also suppressed the defendant's subsequent "warned" written
confession. Only a two-hour break separated the coerced oral statements
from the written statement. They both took place at the site of the
arrest (his home) and were conducted by the same group of officers.
Thus, the state failed to demonstrate a valid waiver of Miranda
rights.
Second, the court held that besides the Fifth Amendment violation,
the evidence was obtained in violation of the Fourth Amendment. The
state failed to demonstrate that the warrantless entry into the home was
proper. The trial judge committed "clear error" in finding consent to
enter because the agents testified that they never even asked for such
permission. Nor did exigent circumstances justify the entry or search.
The court rejected fact-intensive arguments grounded in a "reasonable
fear" for the officers' safety and concerns that evidence might be
destroyed.
Finally, the state argued that the attenuation doctrine justified use
of the guns and the drugs. The state, however, failed to convince the
court that attenuation was appropriate in light of: 1) the short time
lapse between the illegal entry and the seizures, 2) the complete
absence of intervening circumstances, and 3) the purpose and flagrancy
of the misconduct. In the court's words, "[t]he entire investigative
procedure of these agents had a 'quality of purposefulness' to it."
Insurance
Bad Faith - Nondelegable Duty - Insurer's Defense Attorney -
Punitive Damages
Majorowicz v. Allied Mutual
Ins. Co., No. 96-3088 (filed 29 July 1997) (ordered published
26 Aug. 1997)
This insurance bad faith case originated in a personal injury action
arising out of a car accident. The victim in the underlying personal
injury case won a verdict against the insurer and the insured for
$221,000. The insured's policy limits were $100,000, which left her with
a $121,000 excess judgment. The insured then sued her insurer for bad
faith. A jury found that the insurer breached its duty of good faith and
awarded more than $260,000 in damages.
The court of appeals, in an opinion written by Judge Mohr, affirmed
in part and reversed in part. First, the insurance company argued that
it had no control over the "independent professional judgment" of the
attorney it hired to defend the underlying personal injury case. The
issue had not been expressly decided in Wisconsin cases. Without
deciding whether the acts of hired counsel may be imputed to the
insurance company in every bad faith case, the court held that on these
facts the company's duty to act in good faith was nondelegable. The
insurer had failed to properly investigate the claim. The insurer
retained the duty to act in good faith even when it relied upon its
attorney's litigation decisions.
The court also discussed several other issues. The record in the case
adequately supported the jury's finding of bad faith. The accident
victim had demanded the policy limits one month before trial. Despite
damaging evidence to the contrary (a negative independent medical
examination), the defense attorney told the insured that there was
"little chance" of an excess verdict.
The punitive damages award also was appropriate. The law does not
require expert testimony on all punitive damages claims. Here the jury
heard expert testimony on the bad faith issue which also bore on the
punitive damages: "The disregard of a herniated disc with admitted
liability could lead the jury to find an intentional disregard of [the
insured's] right to a fair and prompt disposition of her claim." A
reckless disregard for her rights was supported by evidence that the
insured was not informed that policy limits were demanded or the
possibility of an excess verdict - as well as the "suggestion" not to
hire her own lawyer.
The court also held that a modified jury instruction on bad faith was
appropriate, that the insured was entitled to attorney fees as actual
damages in her excess verdict bad faith case (but not on the punitive
damages award), and that section 807.04(4) of the Wisconsin Statutes
"imposes penalty interest upon the insurer for the amount recovered
against it, including punitive damages from the date of the offer."
Bad Faith - Judicial Estoppel - Claims Preclusion
Davis v. American Family
Ins. Co., No. 97-0133 (filed 15 July 1997)(ordered published 26
Aug. 1997)
Davis was injured in a 1989 car accident in Minnesota. The
responsible driver was insured by State Farm for $100,000/$300,000
liability. Davis settled the liability claim with State Farm for
$77,500, which was less than the policy limits. Davis's insurer,
American Family, denied his claim for underinsured (UIM) coverage. Davis
sued American Family in Minnesota, which permits insureds to sue for UIM
benefits after settling for less than the limits. Wisconsin law
precludes such claims. The Minnesota court ruled that Davis was entitled
to coverage and awarded him $100,000 in UIM coverage toward the more
than $370,000 in damages that he suffered.
In 1995 Davis began this bad faith action against American Family in
Wisconsin. American Family moved for a stay so that the action could be
moved to Minnesota, where the UIM case had been tried. The circuit court
granted the motion but in 1996 a Minnesota court dismissed Davis's claim
because Minnesota does not recognize the tort of bad faith. Back in
Wisconsin, the circuit court also granted summary judgment dismissing
the claim based on claim preclusion and judicial estoppel.
The court of appeals, in an opinion written by Judge Cane, reversed.
First, claim preclusion was inapplicable where the trial court granted
an order staying the Wisconsin proceeding but permitting Davis to return
with his bad faith "to the extent that the claim and prosecution are
unavailable in Minnesota." Second, judicial estoppel also was
unavailable. Judicial estoppel bars parties from asserting inconsistent
positions in legal actions. There was nothing inconsistent about Davis's
decision to pursue the UIM issue in Minnesota and the bad faith claim in
Wisconsin. Finally, the court rejected American Family's argument that
the statute of limitations barred the action. There was an issue of fact
as to when the bad faith claim accrued; thus, summary judgment was
inappropriate.
UIM Coverage - Settlements - Failure to Give Notice - Burden of
Proof
Ranes v. American Family
Ins. Co., No. 97-0441 (filed 31 July 1997)(ordered published 26
Aug. 1997)
Ranes was injured in a car accident. Ranes later settled with the
other driver and the liability insurer but failed to notify American
Family, which provided him with underinsured motorist (UIM) coverage.
Later Ranes filed this action claiming UIM benefits against American
Family. The trial judge dismissed the claim because Ranes failed to
provide notice as purportedly required by Vogt v. Schroeder,
129 Wis. 2d 3 (1986).
The court of appeals, in an opinion written by Judge Myse, reversed.
Vogt held that UIM insurers were entitled to notice of the potential
settlement of the underinsured's claim against the tortfeasor. Whether a
failure to give notice bars the UIM claim absent prejudice to the
insurer was left unresolved. Addressing this issue of first impression,
the court adopted the majority rule "that the failure to give notice
will not bar an underinsured motorist claim unless the insurer has
suffered some prejudice from the failure to receive such notice."
The court also delineated the burdens of proof on such issues. "The
burden is to persuade the factfinder by a preponderance of the evidence
that no prejudice has been suffered as a result of the failure to give
notice. The process should envision an insurance carrier asserting the
affirmative defense of lack of notice of having the burden to
demonstrate the lack of notice. Once lack of notice has been
demonstrated, the insured must produce sufficient evidence to satisfy
the factfinder by a preponderance of evidence that the insurer suffered
no prejudice as a result of the failure to give such notice. If the
insured is able to bear his burden of proof, the failure to give notice
will have no affect on the rights under the insurance policy. If the
insured fails to demonstrate a lack of prejudice, the failure to give
notice will act as an absolute bar to underinsured motorist benefits as
provided by the insurance policy."
Liability Insurance - Endorsements Limiting Liability - Format
Required
Smith v. Dodgeville Mutual
Ins. Co., No. 96-3352 (filed 26 June 1997) (ordered published
29 July 1997)
Smith purchased farm insurance from Dodgeville Mutual through a local
insurance agent. He relied upon the agent to complete the insurance
application for him, although he signed it himself. According to the
plaintiff, the agent failed to ask, and therefore the application form
failed to disclose, that the plaintiff had had insurance canceled in the
past. Dodgeville issued a policy that included fire and wind coverage
for certain buildings and equipment on the plaintiff's farm. The policy
incorporated preprinted form endorsements that stated the contract would
be void in the event that Dodgeville relied upon any material
representations made in the application. The plaintiff's application was
not attached to the policy.
While the Dodgeville policy was in effect, a fire at the Smith farm
destroyed a machinery storage shed and its contents, causing an
estimated $370,000 in damages. The face amount of the policy was
sufficient to cover the loss. However, while investigating the claim,
Dodgeville discovered the inaccuracy in the plaintiff's application
regarding past coverage. Referencing the preprinted form endorsements of
the policy, Dodgeville denied coverage on the ground that the
application contained a material misrepresentation upon which it had
relied. The plaintiff sued Dodgeville to collect on the policy and he
sued the agent for failure to procure the insurance coverage he
requested. He settled with Dodgeville for $l00,000 and dismissed the
insurance company from the suit. On summary judgment the circuit court
dismissed the plaintiff's negligence claim against the agent. It
concluded that Dodgeville could not deny coverage based upon the
plaintiff's misrepresentation in the application, because Dodgeville had
not complied with the requirements of section 631.11(1)(a) of the
Wisconsin Statutes. Therefore, the plaintiff could not prove that the
agent failed to provide the insurance coverage he requested, despite the
fact that the plaintiff had settled for substantially less than the
stated policy limits.
In an opinion authored by Judge Roggensack, the court of appeals
affirmed. The statute cited above (in its 1991-92 version applicable
here) provided that "no statement, representation or warranty made by
any person in the negotiation for an insurance contract affects the
insurer's obligations under the policy unless it is stated in the
policy, or in a written application signed by such person, a copy of
which is made a part of the policy by attachment or endorsement." [The
statute has since been reworded.] The parties agreed that the
plaintiff's statement that his insurance coverage had never been
canceled or a request for coverage denied was not contained in the
policy. Nor was his application physically attached to the policy. The
parties disagree, however, about whether the plaintiff's application was
made a part of the policy by "endorsement," as that term is used in the
statute.
The court concluded that this appeal would turn on whether the
preprinted form endorsement Dodgeville attached to the plaintiff's
policy was sufficient to satisfy the statute's requirements. Though it
is not uncommon for some insurance policy provisions to be contained in
the endorsements that follow the main body of the policy, the statute
limits when misrepresentations of the insured made in negotiating the
policy may become part of the policy through such an endorsement. The
statute provides that no statement made in negotiating an insurance
policy will limit the insurer's liability to pay under the policy,
unless the insurer follows the method provided by statute for making
those statements a part of the contract. With respect to the endorsement
method of incorporating the insured's representations into the contract,
the statute clearly and unambiguously evinces a legislative intent to
compel an incorporation of the actual statements made by the applicant
who has become an insured under the policy at issue. In general,
preprinted form statements are insufficient to protect the insured, as
they would not give adequate notice to the insured about the complete
and specific terms of the purchased policy. To make a written
application form a part of an insurance policy by "endorsement," the
insurer must specifically write across the application itself that it is
an endorsement and part of the policy.
In this case the defense Dodgeville raised to coverage was barred by
the provisions of section 631.11(1)(1a) and, therefore, the policy was
binding as a matter of law. Accordingly, no duty was breached by the
agent who did in fact procure the insurance coverage the plaintiff
requested.
Motor vehicle law
Intoxilyzer Tests - Presumption of Accuracy
State v. Baldwin &
State v. Busch, Nos. 96-1013-CR and 96-2822 (filed 2 July 1997)
(ordered published 26 Aug. 1997)
These consolidated cases involved the admissibility of breath test
results under a statute that accords the tests prima facie accuracy
under certain conditions. The court reversed one conviction for
operating a motor vehicle with a prohibited alcohol concentration
(OMVPAC) because the state failed to comply with the mandate in the
statutes and the administrative code. The court upheld the other
defendant's conviction for operating a motor vehicle while intoxicated
(OMVWI) because he failed to argue that there was no evidence supporting
his conviction.
Attorneys handling drunk driving cases will want to closely consult
Judge Anderson's opinion. Various statutes and administrative rules
provide for the automatic admissibility of breath test results and also
cloak such tests with a presumption of accuracy. The rules require,
however, that the specified instruments be evaluated and approved before
regular use. The record in this case disclosed that the state replaced
parts of an approved model with parts belonging to another model.
Although it argued that the "hybrid machine" remained the same, the
state did not evaluate the instrument before it was put into regular use
- as required by statute.
Despite the statutory violation, the court refused to suppress the
breath test results. Rather, at the new trial "prosecutors who wish to
rely upon the breath tests results will be required to present evidence
of the instrument's scientific accuracy and reliability and prove
compliance with accepted scientific methods as a foundation for the
admission of the test results."
Municipal law
Zoning - Area Variances - "Unnecessarily Burdensome" Standard
State v. Kenosha County
Board of Adjustment, No. 96-1235 (filed 9 July 1997) (ordered
published 28 Aug. 1997)
This case concerns zoning variances. The party seeking a variance
must prove that an unnecessary hardship will result if the variance is
not granted. The critical issue before the court of appeals was
identifying the proper test for measuring unnecessary hardship in an
area variance case.
The parties disagreed on the proper test to be employed. The state
urged that the proper analysis is under the "no feasible use" test in
which the applicant for a variance must show that no feasible use can be
made of the property without a variance. The local board of adjustment
contended that the proper test is the "unnecessarily burdensome" test
under which the inquiry is whether compliance with the strict letter of
zoning restrictions would render conformity with such restrictions
unnecessarily burdensome.
Section 59.694(7) of the Wisconsin Statutes provides that the board
of adjustment has the power "to authorize upon appeal in specific cases
variance from the terms of the ordinance that will not be contrary to
the public interest, where, owing to special conditions, a literal
enforcement of the provisions of the ordinance will result in
unnecessary hardship, and so that the spirit of the ordinance shall be
observed and substantial justice done."
The court of appeals noted that this statute speaks of "unnecessary
hardship" as the test for a variance grant. It does not speak of the "no
feasible use" test or the "unnecessarily burdensome" test. Nor does the
statute make any distinction between use and area variances.
However, in Snyder v. Waukesha County Zoning Bd. of
Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), the supreme court
spoke to both area variances and use variances and, despite the
statute's uniform language, used different language when reciting the
"unnecessary hardship" test for each. As to area variances, the court
used the "unnecessarily burdensome" test and, as to use variances, the
"no feasible use" test.
This case involved an area variance and the board of adjustment
applied the "unnecessarily burdensome" standard. This, said the
appellate court, was the proper approach.
Zoning - Nonconforming Uses - Public Nuisances
Town of Delafield v.
Sharpley, No. 96-2458 (filed 9 July 1997) (ordered published 28
Aug. 1997)
Paul Sharpley Sr. purchased several acres of wooded property in 1945
and built his home there. In 1969 Paul Sharpley Jr. purchased an acre of
his father's land and built his residence there. Since 1960 both have
engaged in various businesses on the properties and have maintained
equipment and vehicles there.
The Town of Delafield received numerous complaints over the past
years from residents and real estate developers concerning the condition
of the Sharpley properties. An investigation revealed that there were
many vehicles located on their land, such as automobiles, trucks,
snowmobiles, farm machinery and so on. A majority of these vehicles were
either junked, wrecked, abandoned or disassembled.
The Sharpleys were given notice that their properties were not in
compliance with several town ordinances and, when they failed to correct
the problems, the town filed this action alleging that they violated its
public nuisance ordinances.
The town filed a motion for summary judgment and a motion to dismiss
the Sharpleys' counterclaims. The trial court granted the town's motion
on all causes of action with one exception and it dismissed the
counterclaims. A jury trial was held solely on the issue of whether the
Sharpleys had a valid and legal nonconforming use of their respective
properties that predated the town's ordinances. The jury found for the
Sharpleys and, in motions after verdict, the trial court changed certain
answers in the verdict, finding that the Sharpleys did not have a valid
and legal nonconforming use of their properties.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. It began its analysis by noting that, although the trial court
granted summary judgment on all causes of action, except for the issue
of whether the Sharpleys had a valid and legal nonconforming use of
their respective properties that predated the town's ordinances, the
trial court was not required to reach that issue because its earlier
conclusion on summary judgment that the Sharpleys created a public
nuisance was dispositive. A valid, nonconforming use, irrespective of
its duration, may be prohibited or restricted when it also constitutes a
public nuisance or is harmful to the public health, safety or
welfare.
The Wisconsin Supreme Court has recognized that a nonconforming use
existing when a zoning ordinance goes into effect cannot be prohibited
or restricted by statute or ordinance, where it is a lawful business or
use of property and is not a public nuisance or harmful in any way to
the public health, safety, morals or welfare. A public nuisance always
can be abated.
In this case the trial court granted summary judgment in favor of the
town, finding that it was undisputed that the Sharpleys created a public
nuisance by maintaining their property in the manner described. If this
determination was correct, then whether they had a valid and legal
nonconforming use of their respective properties that predated the
town's ordinances was irrelevant. The court went on to hold that the
grant of summary judgment was proper inasmuch as Paul Sr. failed to
oppose the town's affidavits and Paul Jr.'s affidavit failed to set
forth specific facts that disputed the public nuisance violation
described in the town's affidavit and exhibits.
This column summarizes all decisions
of the 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.
Wisconsin Lawyer
