Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
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Appeals
Frivilous Appeals - Credibility Issues
Lessor v.
Wangelin, No. 97-2974 (filed 6 Aug. 1998) (ordered published 28
Oct. 1998)
Wangelin appealed a judgment against himself for faulty workmanship
in the construction of a duplex. Wangelin's sole issue on appeal was
whether the court's findings on damages were clearly erroneous. More
particularly, Wangelin argued that the trial judge, sitting as trier of
fact, ignored testimony by two experts. Although this was true, the
trial judge spelled out the experts' shortcomings in explaining why he
did not credit their testimony. (One expert admitted that he was not "up
to snuff" on current building costs and could only "speculate" about a
repair estimate.)
The court of appeals, in an opinion written by Judge Dykman, affirmed
the judgment against Wangelin and also agreed with the plaintiff's
assertion that the appeal was frivolous. Long-standing rules of
appellate procedure set forth that appellate courts must defer to lower
courts' findings of fact, particularly on issues of credibility. In
essence, Wangelin sought only a "redetermination of witness
credibility," which his attorney should have known "could not be
successful under the long-standing law of this state." The case was
remanded for a determination of costs and reasonable attorney fees.
Corporations
Subsidiaries - Financial Connections - Cemetery Regulations
Cemetery Services Inc. v.
Wis. Dept. of Regulation and Licensing, No. No. 97-2115 (filed
10 Sept. 1998) (ordered published 28 Oct. 1998)
Wisconsin law prohibits the combination of funeral homes and
cemeteries. Sections 157.067(2) and 445.12(6) of the Wisconsin Statutes
flatly prohibit the following types of connections between funeral homes
and cemeteries: "(1) operating out of the same location, (2) receiving
benefits from the other form of business, and (3) having financial
connections to the other form of business."
In this case, the court of appeals, in an opinion written by Judge
Roggensack, affirmed a finding that two corporations, Cemetery Services
and Funeral Services, violated the statutes. Delineating the complex
corporate web, the court found that a parent corporation, SCI, fostered
direct and indirect financial connections between the two corporations
through other subsidiaries. Specifically, the court concluded that
"[t]he corporate structure established by SCI is formalistic, not
substantive, allowing SCI to make a strong financial connection between
Cemetery Services and Funeral Services, and giving it the opportunity to
connect its funeral and cemetery services in Wisconsin, contrary to
law."
The court also fended off several challenges to the statutes'
constitutionality. The statutes were not impermissibly vague nor did
they offend the commerce clause, the contract clause, or the due process
clause. (The court opted not to address the merits of some of these
arguments because they were inadequately developed in the briefs.)
Consumer Law
Prevailing Parties - Fee Shifting
Community Credit Plan Inc.
v. Johnson , Nos. 97-0574 et al. (filed 8 Sept. 1998) (ordered
published 28 Oct. 1998)
A creditor brought small-claims replevin actions against the
defendants in seven cases that were consolidated for appeal. Although
the creditor received a default judgment in all seven cases, the
defendants moved to reopen the judgments and dismiss the complaints,
without prejudice, based upon improper venue. The trial judge reopened
the cases and granted the creditor's motion to voluntarily dismiss the
actions before he ruled on the defendants' motions to dismiss. The
defendants also sought to recover attorney fees and expenses as
prevailing parties under the fee-shifting provision of the Wisconsin
Consumer Act (the WCA). The trial court denied the motion.
The court of appeals, in an opinion written by Judge Wedemeyer,
reversed and held that the defendant debtors were "prevailing parties"
within the meaning of Wis. Stat. section 425.308 of the WCA. First, the
defendants attained a "significant benefit" because the opening and
dismissal of the adverse judgments "hopefully halted" the negative
repercussions that flow from them, such as a bad credit record or
replevin of secured goods; and second, the benefits derived from a
violation of the WCA. The dismissals, even without prejudice, flowed
from the creditor's violation of the WCA's venue provisions. The court
of appeals also concluded that under recent case law the defendants
satisfied the two-part "catalyst test" that was used under the
fee-shifting provisions of 42 U.S.C. section 1988.
Judge Curley dissented on grounds that the defendants had not
attained a "significant benefit" (the actions could be recommenced in
the proper county, rendering any benefit temporary at best) and because
the venue defect did not comprise a violation of the WCA (the trial
judge has an independent duty to screen cases for improper venue given
the "fluid" nature of venue in consumer actions).
Venue - WCA Violations
Kett v. Community Credit
Plan Inc., Nos. 97-3620 et al. (filed 23 Sept. 1998) (ordered
published 28 Oct. 1998)
In all three consolidated cases, the creditor obtained a default
judgment in a replevin action and later repossessed the debtor's car.
The default judgments were entered in Milwaukee County. The finance
agreements, however, were made in Waukesha and Walworth counties; the
cars were all repossessed in these counties as well. Later, the
Milwaukee County circuit court reopened the judgments and the actions
were dismissed without prejudice. The debtors then brought these suits
alleging that the creditor violated the Wisconsin Consumer Act (WCA) by
wrongfully repossessing collateral and engaging in prohibited practices.
The creditor counterclaimed and sought a deficiency judgment for the
amounts still owed. The Walworth court granted summary judgment to the
creditor on the wrongful repossession claim and ordered a trial on the
prohibited practices and the deficiency counterclaim. The Waukesha court
granted summary judgment to the creditor on the plaintiffs' claim and
ordered a trial on the deficiency counterclaim.
The court of appeals, in an opinion written by Judge Brown, reversed.
First, Milwaukee County clearly lacked venue. None of the agreements
were made in Milwaukee and none of the collateral was seized there. The
creditor's attempt to fob off responsibility for the improper venue was
labeled as either evincing a "complete and utter misunderstanding of the
purpose behind the WCA" or a "brazen misrepresentation" of long-standing
state law.
A more substantial issue involved whether the Milwaukee judgments
were void or merely voidable. The court held that the plain meaning of
Wis. Stat. section 421.401(2)(b) was as follows: "[W]hen the action
arises out of a consumer credit transaction, a defect in venue deprives
the court of authority to act and thus renders any judgment void for
lack of jurisdiction." Moreover, the lack of venue constituted a
violation under Wis. Stat. section 425.206. Nor were the debtors
required to prove that the violation was intentional. The court rejected
the contention that the debtors waived their claim by not appearing in
the Milwaukee action to object to venue. Finally, the court held that
the creditor engaged in prohibited debt collection practices.
Specifically, the creditor violated section 427.104(1)(h) and (j) of the
Wisconsin Statutes, "since the filing could reasonably be expected to
harass or threaten the customer and was an attempt or threat to enforce
a right with knowledge or reason to know the right does not exist." The
court remanded the matter for a determination of damages and reasonable
attorney fees.
Criminal Law
Uttering a Forgery - Fraudulent Use of a Credit Card - Elements
State v. Shea,
Nos. 97-2345-CR (filed 13 Aug. 1998) (ordered published 1 Oct. 1998)
In this case the court of appeals was asked to decide certain issues
regarding elements of the crimes of uttering a forgery and fraudulent
use of a credit card.
The forgery statute provides that whoever, with intent to defraud,
falsely makes or alters certain writings or objects is guilty of a
felony. See Wis. Stat. § 943.38(1). The uttering statute,
section 943.38(2), provides that it is a felony to "utter as genuine or
possess with intent to utter as false or as genuine any forged writing
or object ... knowing it to have been thus falsely made or altered." The
issue before the court was whether "intent to defraud" is an element of
the uttering offense. In a decision authored by Judge Dykman, the court
concluded that section 943.38(2) does not require an offender to act
with an intent to defraud. Section 943.38(2) incorporates various
writings or objects described within subsection 1, but does not
incorporate the requirement of subsection 1 that the offender act with
an intent to defraud.
The court also considered the fraudulent use of a financial
transaction card statute. Wis. Stat. section 943.41(5)(a)1.a prohibits
the use, for the purpose of obtaining money, goods, services, or
anything else of value, a financial transaction card obtained or
retained in violation of section 943.41(3) when such is done with intent
to defraud. Section 943.41(3)(a) provides in part that "no person shall
acquire a financial transaction card from the person, possession,
custody or control of another without the cardholder's consent." In this
case the defendant used the information on another's credit card to
obtain goods and services, but he did not have actual possession of the
card at the time. The defendant argued that simply using the information
on the card to make a purchase was insufficient. The court of appeals
disagreed, interpreting the terms of the statute to be broad enough to
indicate that the Legislature did not intend actual possession of the
credit card to be an element of the crime.
Said the court, this interpretation of the unambiguous statutory
language is appropriate because the account number can be used by the
cardholder in the same manner as the actual credit card to perform most
of the functions of a credit card. For example, cardholders can obtain
items on credit by calling a merchant on the phone and providing their
account number. The court was satisfied that the language of the statute
should not be read so narrowly as to require proof that an offender
acquired actual possession of the victim's financial transaction
card.
Gambling - Video Poker - Constitutionality of "Gambling Machine"
Statute
State v. Hahn,
Nos. 97-3065-CR (filed 20 Aug. 1998) (ordered published 28 Oct.
1998)
The defendant was convicted on six counts of intentionally collecting
proceeds of a gambling machine, contrary to Wis. Stat. section
945.03(5). Section 945.01(3) defines a "gambling machine" as "a
contrivance which for a consideration affords the player an opportunity
to obtain something of value, the award of which is determined by
chance, even though accompanied by some skill and whether or not the
prize is automatically paid by the machine." The statute specifies
certain exceptions from its coverage.
In this case the defendant argued that the definition of gambling
machine was unconstitutionally vague and therefore a violation of due
process. In a decision authored by Judge Vergeront, the court of appeals
disagreed. Specifically addressing the defendant's claims, the court
concluded that the phrase "some skill" is not vague. It means that
chance, rather than skill, must be the dominant factor controlling the
award. The requirement that chance predominate over skill gives
sufficient warning to persons of reasonable intelligence who desire to
comply with the law what conduct is proscribed by this element of the
definition of "gambling machine" and provides a sufficiently objective
standard for the trier of fact.
The same is true with respect to the element "whether or not
automatically paid by the machine." The ordinary dictionary definition
of the term "automatically" in this context would be "acting or
operating in a manner essentially independent of external influence or
control; self-regulating." Accordingly, this portion of the statute
requires that the machine have a role in providing the opportunity to
obtain something of value, but that something of value need not be
provided by the machine alone without external influence or control.
Controlled Substance Violations Within 100 Feet of a "Center" -
Application to Day Car Centers
State v. Van
Riper, Nos. 97-3367-CR (filed 24 Sept. 1998) (ordered published
28 Oct. 1998)
The defendant sold marijuana to a police informant at a residence
located within 1,000 feet of a day care center. As part of a plea
agreement, she entered a guilty plea to delivering marijuana within
1,000 feet of a "youth center," contrary to various statutory provisions
including Wis. Stat. section 961.49. This statute establishes increased
penalties for distributing, or possessing with intent to deliver,
controlled substances on or near certain places, including youth
centers.
The defendant filed a postconviction motion challenging the use of
the penalty enhancer. She argued that a day care center did not come
within the definition of "youth center." The circuit court rejected this
challenge and the court of appeals, in a decision authored by Judge
Roggensack, affirmed.
The term "youth center" is defined in the controlled substances laws
to mean "any center that provides, on a regular basis, recreational,
vocational, academic or social services activities for persons younger
than 21 years old or for those persons and their families." The court
concluded that day care centers provide recreational and social services
activities because they provide for the welfare of children by affording
physical and emotional care, diversions, and amusements for them, while
their parents are otherwise occupied. Additionally, day care centers
provide care for children, who fall within the age group set out in the
statutory definition of a youth center.
The court further observed that the youngest, most vulnerable
children gather at day care centers and that including such facilities
within the zone of places protected against drug trafficking would be
consistent with the legislative policy of protecting children from the
violence and danger associated with drug trafficking. Accordingly, the
court concluded that the plain meaning of the statute, consistent with
the legislative purpose underlying it, required it to hold that day care
centers are included within the "youth centers" described in section
961.49(2)(a).
Solicitation for Prostitution - Extortion - Elements of
Offenses
State v.
Kittilstad, Nos. 98-1456-CR (filed 29 Sept. 1998) (ordered
published 28 Oct. 1998)
This case concerns the sufficiency of the evidence at the preliminary
hearing in a case in which the defendant was charged with solicitation
for prostitution and extortion.
The testimony at the preliminary hearing established that the
defendant, a minister, sponsored several students to travel to Wisconsin
from Panama to pursue an education at a technical college. Shortly after
their arrival, the defendant would inquire into each student's sexual
history. He offered each student either money or other consideration if
a student would bring home different "girls" and have sex with them in
the defendant's presence. The defendant also threatened one of the
students that, if he did not bring home a "girl" and have sex with her,
the defendant would send the student back to Panama. While the defendant
continually made these requests, none of the students obliged him.
Wis. Stat. section 944.32 provides that "whoever intentionally
solicits or causes any person to practice prostitution or establishes
any person in a place of prostitution is guilty of a Class D felony."
The defendant conceded that sufficient evidence was presented at the
preliminary hearing to establish that he solicited the students.
However, he argued that the evidence did not show that he solicited the
students to "practice prostitution." Specifically, he urged that the
state was required to prove that he solicited the students to have sex
with a "paying customer" or as a "paying customer." Because the women
would not be paying the students for sex, or vice versa, the defendant
argued that he was not soliciting prostitution. He further argued that
the evidence was insufficient to show that he solicited the students to
"practice" prostitution in that the proofs failed to show that there
would be continual or ongoing activity between the parties.
In a decision authored by Judge Hoover, the court concluded that the
prostitution statute unambiguously criminalizes practicing nonmarital
intercourse, sexual contact, and various other activities for anything
of value. Nothing in the statute requires that the exchange of sex for
value be between the persons involved in the nonmarital act. Said the
court in footnote, to interpret the statute any other way would create
absurd and unreasonable results by excluding circumstances that fit
comfortably within the concept of soliciting prostitution. For example,
it would exclude the father who hires a prostitute for his son or the
businessman who hires prostitutes for his clients. As long as one of the
individuals engaging in the sexual act is receiving compensation for the
act, the elements of the statute are met.
The court also concluded that the evidence was sufficient to show
that the defendant solicited the students to "practice prostitution"
within the meaning of section 944.32. Standard dictionary definitions
reveal that the term "practice" means "to do or perform often,
customarily, or habitually." The court concluded that sufficient
evidence was presented at the preliminary hearing to establish that the
defendant probably solicited "ongoing" acts of prostitution. The
students testified that he continually requested them to bring home
different "girls," which supports the reasonable inference that he
wanted the students to engage in sex acts on multiple, continual
occasions.
Finally, the defendant argued that his alleged threat to send a
student back to Panama if he did not bring women home did not constitute
extortion. Wis. Stat. section 943.30(1) provides that, among other
things, it is a felony to threaten or commit any injury to the person,
property, business, profession, calling, or trade of another with intent
thereby to extort money or any pecuniary advantage whatever, or with
intent to compel the person so threatened to do any act against the
person's will or omit to do any lawful act.
In this case the defendant asserted that a threat to interfere with a
person's education does not constitute a violation of the statute. The
court of appeals disagreed. It concluded that a prerequisite for a
profession is an education, which provides an instruction in skills. An
education is so inextricably connected to obtaining a profession that a
threat to the former necessarily constitutes a threat to the latter.
Accordingly, there was sufficient evidence presented at the preliminary
hearing to show that the defendant probably engaged in extortion.
Criminal Procedure
Search and Seizure - Reasonable Expectation of Privacy in Hospital
Operating Room
State v. Thompson,
Nos. 97-2744-CR (filed 24 Sept. 1998) (ordered published 28 Oct.
1998)
The defendant was conveyed by emergency personnel to a hospital after
the latter responded to a report that the defendant was having seizures,
apparently from a drug overdose. There was information that the
defendant had swallowed several bags of cocaine when the car in which he
was a passenger was stopped earlier that day by police. On the basis of
this information, the doctor treating the defendant determined that
without surgery to remove the ingested drugs, the defendant risked
death. The police did not suggest surgery to the doctor. A police
officer was at the hospital to take custody of the cocaine when it was
removed from the defendant. Hospital staff provided the officer with
operating room clothing and the officer observed the surgery. Consent
for the officer to be present was given by hospital staff and a
supervising physician. The doctor removed three bags of cocaine from the
defendant's small intestine.
The defendant was charged with a controlled substances violation and,
before trial, moved to suppress the evidence contending that it was
seized during a warrantless and unreasonable search. The circuit court
denied the motion, concluding that the recovery of the cocaine did not
constitute a search within the meaning of the Fourth Amendment because
the doctor was not an agent of the state when he performed the
surgery.
In a decision authored by Judge Deininger, the court of appeals
affirmed. The sole issue on appeal was whether the officer's presence in
the emergency room and operating room constituted an unlawful
search.
A search occurs when the police infringe on an expectation of privacy
that society considers reasonable. The burden is on the defendant to
show that he had a reasonable expectation of privacy in the premises or
property as well as a subjective expectation of privacy therein.
The court concluded that the defendant had no such reasonable
expectation of privacy in the emergency room or operating room. Applying
traditional criteria for making this determination, the court held that,
though the defendant was legitimately on the premises of the hospital,
he had no property interest in the hospital or its emergency and
operating rooms, he did not take precautions customarily taken by those
seeking privacy, and he did not put the two rooms to private use. He had
no authority to exclude others from the treatment areas of the hospital
and any expectation of privacy in those rooms was not consistent with
historical notions of privacy. Hospital treatment areas are not public
thoroughfares to which all manner of persons have unfettered access.
However, those historical notions of privacy are not offended when a
police officer, responding to an emergency call and with the
acquiescence of hospital staff, enters the treatment area of the
hospital. Nor are those notions offended when the officer observes a
surgical procedure with the permission of the surgeon, given a patient's
traditional surrender to his or her physician of the right to determine
who may or may not be present during medical procedures.
Finally, the court concluded that certain statutory claims of the
defendant did not help his cause. It rejected his argument that the
statute providing for confidentiality of patient health-care records
(Wis. Stat. section 146.82) made the officer's presence illegal. By its
terms, the statute's confidentiality provisions apply only to records,
not to medical procedures themselves or to places where medical
procedures are performed. Further, the physician-patient privilege
codified in section 905.04 offered no relief because it does not give a
person the right to exclude others from the treatment areas of a
hospital.
For all of the foregoing reasons, the court concluded that the
defendant had no reasonable expectation of privacy in the hospital
emergency or operating room. Accordingly, the officer's collection of
evidence in these areas did not constitute a search within the meaning
of the Fourth Amendment.
Sentencing - Payment to "Crime Prevention Organizations"
State v. Bizzle,
Nos. 97-2616-CR (filed 23 Sept. 1998) (ordered published 28 Oct.
1998)
The defendant was convicted of possessing cocaine with intent to
deliver. The sentencing court imposed a prison sentence and ordered her
to make a contribution of several thousand dollars to the City of Racine
Police Department Street Crimes Unit pursuant to Wis. Stat. section
973.06(1)(f). She thereafter filed a motion for post-conviction relief
in which she claimed that the sentencing court impermissibly ordered
this contribution. In a decision authored by Judge Anderson, the court
of appeals agreed.
Section 973.06(1)(f) provides in pertinent part that costs taxable
against the defendant include "an amount determined by the court to make
a contribution to a crime prevention organization, if the court
determines that the person has the financial ability to make the
contribution and the contribution is appropriate." In this case the
issue was whether the Street Crimes Unit of the Racine Police Department
is a "crime prevention organization" under the statute. The appellate
court concluded that it was not. It held that, as used in the statute, a
"crime prevention organization" is an organization within the state that
is designed to encourage the public to report incidences of crime to law
enforcement agencies and to assist such agencies in the apprehension of
criminal offenders. This definition, which excludes law enforcement
agencies, is consistent with the policy that a defendant cannot be
ordered to reimburse the internal operating expenses of law enforcement
agencies.
Guardians
Incompetents - Interested Persons - Evidence
Coston v. Joseph
P., Nos. 97-1210 (filed 15 Sept. 1998) (ordered published 28
Oct. 1998)
Joseph P.'s sister and niece appealed orders finding him incompetent,
placing him in a protective setting, and appointing a guardian for his
estate and property. The court of appeals, in an opinion written by
Judge Schudson, affirmed in an opinion that addresses the opportunity
for "interested persons" to participate in competency hearings.
The court discussed an issue of first impression: whether a court can
appoint a guardian and order protective placement without a trial on the
merits when the GAL, the proposed ward, and his advocacy counsel do not
object but "interested persons" allegedly have. The court of appeals
concluded that interested persons can seek "further circuit court
review" but the record in this case established that the interested
persons never objected to the guardianship and protective placement.
Although chapters 880 and 55 of the Wisconsin Statutes do not permit
interested persons to "participate in the actual hearing," the court
noted that their input could be extremely helpful and that trial courts
have discretion to permit some participation as the circumstances
warrant. In this case, however, the hearing was uncontested. Thus, the
judge properly relied upon hearsay reports and proceeded in an expedited
manner. Moreover, the interested persons never objected to the judge's
reliance on the hearsay report or otherwise exercised their rights as
interested persons to request a full evidentiary hearing.
Insurance
Automobiles - Exclusions - Notice of Renewal on "Less Favorable
Terms"
Roehl v. American Family
Mut. Ins. Co., Nos. 98-1207-FT (filed 23 Sept. 1998) (ordered
published 28 Oct. 1998)
Roehl was injured while riding his motorcycle. At the time of the
accident, the Roehls owned two automobiles that were insured by American
Family (the motorcycle was insured by a different company). Because
Roehl's injuries exceeded the other driver's insurance limits, he
claimed UIM coverage under the American Family policies. American Family
denied coverage under its "drive other car" exclusions. The trial court
granted summary judgment to American Family.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. The Roehls argued that under section 631.36(5) of the
Wisconsin Statutes, an insurer is required to give them notice when a
policy is renewed under "less favorable terms." In a series of cases,
Wisconsin courts had invalidated "drive other car" exclusions as
violating various statutes, including those governing UIM insurance. In
1995, however, the Legislature responded by specifically validating
"drive other car" exclusions for UIM and other coverage.
The Roehls contended that American Family was statutorily obligated
to notify them of the Legislature's action and the insurer's reliance on
it. The court rejected the argument. At no time did American Family
alter the policies' language, change them to reflect "less favorable
terms," or increase the premiums. Although the policies contained an
"elastic clause" that conformed the policy to prevailing statutes, the
language of neither the elastic clause nor the "drive other car"
exclusion changed. In short, the Legislature's "resuscitation" of the
"drive other car" exclusion did not obligate the insurer to provide the
statutory notice.
Acquired Vehicles - Operable Condition
Meridian Mutual Ins. Co. v.
Smith, Nos. 97-3777 (filed 3 Sept. 1998) (ordered published 28
Oct. 1998)
Smith purchased a 1984 pickup truck in March 1996 for $100 and drove
it to his farm. When he applied for insurance, he requested coverage on
only a 1981 truck and a 1991 car, not the 1984 truck. After the 1981
truck broke down in the summer of 1996, Smith repaired an oil leak in
the 1984 truck and began to drive it regularly. On Aug. 7, 1996, Smith
struck and killed a woman while driving the 1984 truck. His insurer
filed a declaratory judgment action seeking a determination that the
1984 truck was not covered under the policy. Smith argued that he had
"acquired" the 1984 truck by repairing it and therefore it was covered
under the policy. The trial court granted summary judgment to the
insurer.
The court of appeals affirmed in an opinion written by Judge Dykman.
Smith claimed that when he bought the 1984 truck he never intended to
use it. The court held, however, that Smith's intended use or the
truck's condition was not controlling. The simple fact was that Smith
drove the truck home after he bought it, which was some 13 days before
the insurance policy took effect. Thus, Smith did not "acquire" the
truck after the policy had begun.
The "Limited Policy Law" - Policy Limits - Invalid OIC Rule
Seider v. Musser,
Nos. 98-1223 (filed 17 Sept. 1998) (ordered published 28 Oct. 1998)
The Seiders owned a building in which they both lived and conducted a
restaurant business. They did not own or occupy any other building as
their dwelling during this time. In 1995 the building was destroyed by
fire. The Seiders insured the property under a policy carrying limits of
$150,000. Although they filed a proof of loss that covered the limits,
the insurer paid them $129,000, which represented the actual cash value
of the building minus the deductible. Under section 635.05(2) of the
Wisconsin Statutes the amount of property loss equals the policy limits
whenever the insured real property is "owned and occupied by the insured
as a dwelling." The insurer justified its action, however, under Wis.
Admin. Code section INS 4.01(2)(e) which rendered the statute
inapplicable when there is a "policy insuring real property any part of
which is used for commercial (nondwelling) purposes other than on an
incidental basis." The circuit court rejected the Seiders' claim that
the administrative rule was invalid.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. The court held that the administrative rule conflicted with
the unambiguous language of the statute, which "does not suggest that
use of a dwelling for additional purposes affects the statute's
application." Thus, whether the dwelling also is used for commercial
purposes is of no moment. Nor did it matter that the Seiders' coverage
was under a "commercial policy" as opposed to a "homeowner's
policy."
Municipal Law
Vacating Platted Street - Effect of Assessor's Map
Schaetz v. Town of
Scott, Nos. 98-0841 (filed 22 Sept. 1998) (ordered published 28
Oct. 1998)
The petitioners appealed a circuit court order dismissing their
petition to vacate a portion of a platted street adjacent to and
abutting their real estate. The issue before the court of appeals was
whether the street vacating procedures of Wis. Stat. section
236.43(1)(a) are available to the petitioners notwithstanding the filing
of an assessor's map. Section 70.27 authorizes a governing body to order
an assessor's map when it cannot ascertain boundaries of land for tax
purposes or when gross errors in description exist.
Because an assessor's map was properly created, approved, and
recorded in this case, the court of appeals held that the street
vacating provisions of chapter 236 did not apply. This holding, however,
does not leave a property owner seeking to vacate a street without a
remedy. Chapters 66 and 80 of the statutes contain provisions for
vacating roadways. While the relationship between these statutes and
chapter 70 was not before the court in this case, it did note that there
is no provision in chapter 70 that suggests that the statutes do not
apply to chapter 70. Further, the court recognized that as a result of
this interpretation a property owner no longer has a statutory right to
petition for street vacation after the filing of an assessor's map.
Legislative change must be made if this statutory scheme does not
reflect the Legislature's intention.
Taxation
Property Taxes - Void Tax Deeds - Redemption by Payment of
Taxes
Theige v. County of
Vernon, Nos. 97-0959 (filed 3 Sept. 1998) (ordered published 28
Oct. 1998)
The plaintiff owned a parcel of land in Vernon County. He failed to
pay real estate taxes due on this land for three years. Notice
subsequently was provided to the plaintiff that the county would apply
for a tax deed after the expiration of a statutory waiting period. After
the waiting period expired, the county clerk executed and recorded a tax
deed conveying the plaintiff's property to the county. The plaintiff
thereafter filed a summons and complaint challenging the tax deed. He
argued that the deed was void on its face because it did not conform to
certain statutory requirements. The circuit court agreed.
Three weeks later the plaintiff paid the full amount due for all
unpaid taxes plus interest and other charges. Thereafter the circuit
court issued a second decision in this case addressing "the proper
remedy in view of the court's prior decision." In the second decision,
the court characterized the tax deed as "deficient" rather than void,
and ruled that the appropriate remedy was to allow the county to file an
amended deed in the correct form. The court also ordered the plaintiff's
redemption payment returned to him. An order for judgment to that effect
was entered and the plaintiff appealed.
In a decision authored by Judge Deininger, the court of appeals
reversed. The court first concluded that the tax deed originally
recorded by the county did not substantially comply with the statutory
requirements for such deeds. See Wis. Stat. § 75.16. In
fact, the deed recites that an outdated and thus improper procedure was
used to obtain it.
Having concluded that the tax deed in question was fatally defective,
the court next considered whether the plaintiff's attempted redemption
of his property by paying the back taxes was effective in causing title
to the property to remain in his name. The statutes permit the
redemption of tax-delinquent property at any time before a tax deed to
the property is recorded. In this case the original tax deed was
recorded, but it was void on its face. The court concluded that only a
valid tax deed cuts off an owner's right to redeem. By paying the back
taxes, penalties, and interest due prior to the recording of a valid tax
deed, the plaintiff satisfied the statutory requirements for the
redemption of his property. Accordingly, title to the property remained
vested in him by virtue of his redemption.
The court further concluded that the circuit judge did not have
authority to nullify the redemption by allowing the county to reform its
defective tax deed and thereby gain title to the land. The county cited
no provision in chapter 75 that grants a court authority to permit
retroactive amendment of a tax deed that is void on its face and the
court of appeals was aware of none. To conclude that courts are vested
with equitable or inherent power to authorize retroactive changes to
void tax deeds would be inconsistent with the exclusive statutory origin
of tax deed proceedings. Such a conclusion also would undermine the
requirement that a valid tax deed be recorded before a property owner is
precluded from redeeming his or her property.
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
