Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Attorneys | Civil Procedure | Commercial Law |
| Construction Law | Criminal Law | Criminal Procedure |
| Criminal Procedure/Juvenile Law | Evidence | Family Law |
| Habeas Corpus | Insurance | Protective Placements |
| Real Property | Torts |
Attorneys
Conflicts of Interest - Representation of Criminal Defendant by
Counsel Who Earlier Prosecuted the Defendant in the Same Case
State v. Love, No.
97-2336-CR (filed 19 March 1998) (ordered published 29 April 1998)
The defendant was convicted of burglary in 1994 after pleading guilty
to the charge. Sentence was withheld and he was placed on probation. Two
years later probation was revoked and he was returned to court at which
time he received a sentence of 10 years in prison. He subsequently moved
for resentencing, claiming that the sentencing proceedings were tainted
because his attorney, an assistant public defender, was a former
prosecutor and had represented the state at his original sentencing
hearing two years earlier. The circuit court denied the motion.
In an opinion authored by Chief Judge Eich, the court of appeals
reversed. It held that where defense counsel has appeared for and
represented the state as a prosecutor in prior proceedings in the same
case in which he or she now represents the defendant, a conflict of
interest exists warranting reversal even in the absence of evidence of
actual conflict, or of prejudice to the defendant or the state. The
court believed that this bright-line rule would adequately protect the
important public and private interests at stake, although the court was
clear in emphasizing that its holding was a narrow one, confined to the
facts of this case. Given the conflict, the appellate court reversed the
circuit court's order and remanded the matter for resentencing.
Civil Procedure
Pleadings - Right to Amend - Motion for a More Definite
Statement
Kox v. Center for Oral and
Maxillofacial Surgery S.C., No. 97-3045 (filed 26 March 1998)
(ordered published 29 April 1998)
The plaintiff sued various physicians and dentists for negligent
care. The plaintiff attempted to file an amended complaint but the judge
concluded that Wis. Stat. section 802.09(1) permits parties to amend
pleadings as a matter of course only once and within six months of
filing. The judge ruled that the plaintiff's response to a motion for a
more "definite statement" effectively "used up" the one-time statutory
right, even though the amended complaint was proffered within six months
of the filing date.
The court of appeals, in an opinion written by Judge Eich, reversed.
The court held "that a plaintiff's response to a motion for a more
definite statement, no matter how it is termed or captioned, cannot
extinguish the six-month right to amend as a matter of course granted by
sec. 802.09(1), Stats." Modeled on the corresponding federal rule,
section 802.09(1) does not require a party to seek leave of the court or
the opponent's consent. But unlike the federal rule which limits the
right after a responsive pleading is filed, under the Wisconsin rule
only the passage of six months (from the filing of the original
complaint) extinguishes the right to amend.
Commercial Law
Commercial Paper - Banks - Forgery
Borowski v. Firstar Bank
Milwaukee N.A., No. 96-3277 (filed 10 Feb. 1998) (ordered
published 29 April 1998)
The plaintiff sued the bank alleging that it had negligently paid
forged checks drawn on two separate accounts. The forger was the
plaintiff's former paramour. The trial judge ruled that the plaintiff
failed to timely notify the bank that there was "something wrong."
The court of appeals, in an opinion written by Judge Fine, affirmed
in part and reversed in part. Under the UCC, a bank is relieved of
liability for a customer's unauthorized signature or the alteration of
an "item" if the customer did not timely "discover and report" the
problem. The UCC allows one year from the time the bank statement and
items are made available to the customer. The bank's contracts with the
plaintiff reduced the one-year window to just 14 days, although the two
policies differed in other respects.
The evidence established that the bank sent statements and canceled
checks for each of the two accounts consistent with its routine practice
and custom. The plaintiff's claim that his former paramour intercepted
the statements was immaterial. The plaintiff was obligated to report the
problem within the 14-day period. The court rejected the argument that
the 14-day provision constituted an impermissible exculpatory contract
contrary to Wis. Stat. section 404.103(1) or that it was unreasonably
short.
The contract language for one of the plaintiff's accounts provided
that the 14-day period began running when the "items" were sent or made
available to the customer. The bank conceded that it had never provided
the customer with copies of handwritten notes by the former paramour
requesting cashier's checks. The notes were "items" within the meaning
of the UCC and thus the customer was entitled to seek recovery against
the bank.
Construction Law
Theft by Contractors - Personal Liability of General Contractor
Capital City Sheet Metal
Inc. v. Voytovich, No. 97-1588 (filed 5 March 1998) (ordered
published 29 April 1998)
Fehrman Homes was the general contractor for the construction of a
house for Voytovich. The contract price was $148,000 and construction
began in the spring of 1995. Capital City Sheet Metal, one of the
subcontractors, installed the roof. In August 1995 the deal apparently
soured and Voytovich canceled the contract, having paid Fehrman Homes a
total of $125,000. She hired another company to complete construction of
the house. Fehrman Homes ultimately paid $127,000 to various
subcontractors (including Capital City) for labor and materials used on
the project.
Capital City sued Fehrman Homes, its president Tim Fehrman, and
Voytovich in small claims court, claiming that it had received only
$5,500 from Fehrman on a total contract price for the roofing work of
$9,000 and demanding the balance. Capital City sought to hold Tim
Fehrman personally liable for that amount under Wis. Stat. section
779.02(5), which is known as the "theft by contractor" statute. This
statute imposes a trust on funds the contractor receives from the owner,
requiring that those funds be used only for payments "for labor and
materials used" in performing the contract. Using the funds for some
other purpose, whether personal or corporate, violates the statute and
the officers of the corporation may be held personally liable to the
subcontractors and suppliers.
The circuit court entered a judgment holding Tim Fehrman jointly and
severally liable with the corporation but the court of appeals, in a
decision authored by Chief Judge Eich, reversed the judgment insofar as
it held Tim Fehrman personally liable to Capital City and remanded for
further proceedings consistent with its opinion. The court concluded
that Fehrman did not violate the statute. Because Fehrman did not
otherwise challenge the judgment, the court affirmed it in all other
respects.
In its analysis the court agreed that a contractor need not
misappropriate funds for purely personal gain to be personally liable
under the statute, because the statute also applies where the contractor
uses the "trust" funds for "corporate" purposes unrelated to the
contract in question. But in this case, Fehrman used the funds received
from Voytovich to pay the very people and entities on whose behalf the
statute imposes the trust: the subcontractors and the suppliers of labor
and materials for the Voytovich project. The record does not indicate
that any of the funds Fehrman received from Voytovich went to anyone
else or for any other purpose. It is true that Capital City did not get
paid the full amount of its invoice, but that is not the test under the
statute. The test is whether the money was, or was not, paid for "labor
and materials used for the [contracted-for] improvements" and the record
in this case unequivocally establishes that it was.
In footnote the court observed that, although Capital City did not
specifically assert or argue that some of the Voytovich funds were used
to pay expenses of Fehrman Homes for labor and materials Fehrman
furnished to the project, to the extent its brief might be read to
include such a claim, the court noted that it had rejected a similar
contention in an earlier case, where it stated that the contractor was
entitled to reimburse himself for payments he had made for labor and
materials without running afoul of the statute.
Criminal Law
No Crime of Attempted Felony Murder - No Appeals of Parts of
Judgment
State v. Briggs,
No. 97-1558-CR (filed 26 March 1998) (ordered published 29 April
1998)
The defendant was charged with attempted first-degree intentional
homicide, armed car theft, armed robbery, armed burglary, and criminal
damage to property. Pursuant to a plea agreement, he pled no contest to
two counts of an amended information: attempted felony murder and armed
burglary. The court accepted the plea and sentenced him to two
substantial consecutive terms of imprisonment.
The defendant appealed only that part of the judgment convicting him
of attempted felony murder. He contended that this part of the judgment
was void for lack of subject matter jurisdiction because the crime of
attempted felony murder is an offense unknown to law in Wisconsin. In a
decision authored by Judge Roggensack, the court of appeals agreed that
no such crime as attempted felony murder exists in this state. Under
Wisconsin law, one cannot attempt to commit a crime that does not itself
include an element of specific intent. The court characterized felony
murder as not requiring intent and therefore is not reconcilable with
the concept of attempt.
The court also had to deal with the appropriate relief to which the
defendant was entitled. The defendant urged that the appellate court
should do no more than vacate the attempted felony murder conviction and
leave the rest of the judgment intact. This argument followed from the
notice of appeal filed by the defendant, which did not appeal the entire
judgment, but rather selectively appealed only that part of the judgment
that found him guilty of attempted felony murder.
The court of appeals concluded that when a criminal appeal is taken
from a conviction resulting from a plea bargain, it brings before the
appellate court all of the judgment or order appealed from, even when
the appellant attempts to limit review to only a portion of the judgment
or order by the way in which the notice of appeal is framed. The court
then proceeded to vacate the defendant's conviction of both attempted
felony murder and armed burglary as well as the plea agreement because
all were connected and all were the result of an erroneous view of the
law. It also vacated the amended information and reinstated the original
information in order to restore the parties to the positions they had
before they made an agreement based on an inaccurate view of the law.
The court remanded the case to the circuit court for prosecution on all
five counts contained in the original information.
Criminal Procedure
Sentencing - Restitution to Governmental Victim of Crime
State v.
Howard-Hastings, No. 97-2986-CR (filed 31 March 1998) (ordered
published 29 April 1998)
The defendant was convicted of criminal damage to property for
cutting down several telephone-type poles that were used to support the
antenna at Project ELF, a special type of radio wave generator used to
communicate with nuclear submarines. The damage was done to protest the
project. The court placed the defendant on probation and, following
revocation of probation, sentenced her to three years of intensive
sanctions and $7,500 restitution to the U.S. Government.
The sole issue on appeal was whether the restitution statute (Wis.
Stat. § 973.20) authorizes the payment of restitution to a
government entity. In a decision authored by Judge Myse, the court
concluded that it does.
The court found that the plain meaning of the term "victim," as used
in section 973.20(1r), permits governmental entities to collect
restitution. In so holding, the court distinguished the case of State v.
Schmaling, 198 Wis. 2d 756, 543 N.W.2d 555 (Ct. App. 1995). In Schmaling
the court sentenced the defendant to reimburse the county for costs
incurred in fighting a fire caused by a highway accident. The court of
appeals reversed, concluding that the county was not the actual victim
of the crime committed. In this case, however, it was clear that the
U.S. Government was the actual victim of the defendant's acts of
vandalism and therefore the trial court did not err by requiring the
defendant to pay restitution to the U.S. Government.
Criminal Procedure/Juvenile Law
Juveniles Charged in Adult Court - "Reverse Waiver" Criteria -
Appeal of Waiver Decision
State v. Wright,
No. 97-2446-CR (filed 25 March 1998) (ordered published 29 April
1998)
The defendant juvenile was confined at the Ethan Allen School for
Boys as a result of having been adjudged delinquent. While there, he
struck a staff member and was charged as an adult with battery to a
correctional officer contrary to Wis. Stat. section 940.20(1). This is
an offense for which the adult criminal court is vested with exclusive
original jurisdiction over any juvenile who is alleged to have violated
the statute after having been adjudicated delinquent.
Section 970.032 provides that the adult court shall retain
jurisdiction unless the child proves by a preponderance of the evidence
all of the following, that: 1) if convicted, the child could not receive
adequate treatment in the criminal justice system; 2) transferring
jurisdiction to the juvenile court would not depreciate the seriousness
of the offense; and 3) retaining jurisdiction in adult court is not
necessary to deter the child or other children from committing the
violation of which the child is accused.
At the "reverse waiver" hearing in this case, the adult court
concluded that the services available in the juvenile system are not
only better but can require mandatory participation, that the
defendant's return to the juvenile system would not unduly depreciate
the seriousness of the offense, and that it would be a greater benefit
to society and to the defendant for him to receive treatment/punishment
in the juvenile system. Accordingly, it ordered a transfer of
jurisdiction from adult court to juvenile court. The state appealed.
In a decision authored by Judge Anderson, the court of appeals
affirmed. In its opinion it had occasion to clarify the standards to be
applied by the court at reverse waiver hearings. With respect to the
first criterion outlined above, the state argued that the juvenile must
prove a total absence of treatment in the adult system; merely
establishing the comparable adequacy of the juvenile system would not
satisfy the first criterion. The court of appeals disagreed. The reverse
waiver statute permits the trial court to balance the treatment
available in the juvenile system with the treatment available in the
adult system and requires it to decide under the specific facts and
circumstances of the case which treatment will better benefit the
juvenile.
With respect to the second criterion, which involves the seriousness
of the offense, the circuit court commented that under normal
circumstances the defendant's action would have constituted a
misdemeanor battery except for the fact that the person battered was a
staff member at Ethan Allen. The state took issue with the trial court's
consideration of the seriousness of the battery. It sought to equate all
batteries from misdemeanor battery to a battery causing substantial
bodily harm as equally serious and as exposing vulnerable correctional
officers to increased violence. The court of appeals concluded that the
circuit court must decide under the specific facts and circumstances of
the case how serious the offense was, that is, whether it was an
egregious type of battery or some lesser type of battery. Such weighing
of the facts by the trial court is implicit in the reverse waiver
statute.
The appellate court also concluded that in this case the deterrence
criterion also was satisfied and that, in sum, the circuit court did not
misuse its discretion in considering the factors specified in the
reverse waiver statute and in deciding to reverse the waiver of the
defendant from adult court jurisdiction to the juvenile court system.
Said the court, although the usual situation under the reverse waiver
statute is that the criminal court will retain jurisdiction over the
juvenile, it is not mandatory.
Finally, the court addressed an appellate procedure issue with
respect to reverse waivers. It asked the parties in the case to address
whether the means by which a party can seek review of a reverse waiver
order is more appropriately by leave to appeal (Wis. Stat. §
808.03(2)) or by notice of appeal from a final order (Wis. Stat. §
808.03(1)). The court of appeals concluded that the appropriate avenue
of review for a party aggrieved by a reverse waiver order is to seek
leave to appeal under section 808.03(2) in the manner and within the
10-day deadline specified in section 809.50(1).
Next Page
Evidence
Summaries - "Pedagogical Devices"
State v. Olson,
No. 96-2142-CR (filed 17 March 1998) (ordered published 29 April
1998)
A jury convicted the defendant of multiple counts of sexual assault.
The primary issue on appeal concerned the prosecutor's use during
closing argument of a chart that summarized the witnesses'
testimony.
The court of appeals, in an opinion written by Judge Schudson,
affirmed. The parties and the court agreed that the chart was not
admissible as a "summary exhibit" under section 910.06 of the Wisconsin
Statutes, which is limited to summaries of "voluminous writings," and so
on. The chart's use was, however, an appropriate exercise of the court's
discretion under Wis. Stat. section 906.11. Federal courts are split
over the use of charts purporting to summarize testimony. Their use in
Wisconsin is entrusted to the trial court's discretion under section
906.11(1), which gives the judge power to control the mode and order of
interrogating witnesses and the presentation of evidence to the end of
better ascertaining "the truth." Finally, the judge accurately
instructed the jury that it should rely on its own recollection of the
underlying testimony and evidence, using the chart only to the extent
that it was consistent with the jury's recollection.
Family Law
Prospective Physical Placement Orders - Changing Surname of Children
- Ex Parte Communications with the Court
Jocius (n/k/a Fleming) v.
Jocius, No. 96-2746 (filed 31 March 1998) (ordered published 29
April 1998)
Victoria and Mark Jocius were divorced in 1990. At that time the
trial court accepted their signed marital settlement agreement, which
divided their marital property, gave sole legal custody of their three
children to Victoria, and provided Mark with periods of physical
placement. In 1996 a letter purportedly written and signed by the three
minor children was sent to the court. The judge read the letter and
appointed a guardian ad litem for the children. Thereafter the guardian
submitted an affidavit that served as the underpinnings for obtaining a
child abuse temporary restraining order and a domestic abuse temporary
restraining order that, following hearings, resulted in the entry of
injunctions against Mark.
The guardian ad litem also filed an order to show cause asking for a
complete denial of Mark's periods of physical placement with the
children, claiming that "such placement would endanger the children's
physical, mental and emotional health pursuant to Wis. Stat. sec.
767.325(4)." Additionally, the guardian requested that the children's
surname be changed to their mother's maiden name. In anticipation of a
contested hearing, the trial court appointed counsel for Mark. Following
a multi-day hearing, the court rendered a decision in which it denied
Mark any periods of physical placement with his children and prohibited
him from petitioning for any change in physical placement of the
children. It also ordered the surname of the children changed.
The court of appeals, in a decision authored by Judge Curley,
reversed. Among its many holding were: 1) the statute permitting a trial
court to deny a parent physical placement does not permit the trial
court to make a prospective order prohibiting a parent from ever
requesting a change in physical placement in the future; 2) the trial
court's order changing the surname of the children was not authorized by
chapter 767, which permits the trial court to restore a former surname
to a divorcing spouse but makes no mention of the children (who must use
the name change procedure found in chapter 786); 3) the role of the
guardian ad litem in a post-judgment revision of a physical placement
case does not extend to or include the commencement of a civil name
change action on behalf of the children; and 4) the trial court exceeded
its authority in appointing private counsel to represent Mark.
Finally, with regard to the trial judge's appointment of a guardian
ad litem for the children following receipt of their letter, the
appellate court specifically cautioned judges to avoid taking a similar
course of action as they may run afoul of SCR 60.04(g)(1) governing ex
parte communications. The court recognized that well-intentioned parties
and friends often attempt to communicate with judges in divorce cases in
the hope of influencing the judge's decision. Judges need to institute
procedures so that these communiqués do not inadvertently violate
the ex parte communication directive.
Said the court, "while we share the trial court's concern for the
welfare of young children, we feel it unwise to appoint a guardian ad
litem for children in a divorce action several years after the divorce
has been granted when there is no pending litigation. This is especially
so when the appointment is done on the strength of a letter sent by
three children addressed to the judge, and the parents have not been
contacted and allowed to respond. The better course of action, if a
complaint raising questions about a child's safety and welfare reaches
the judge, is to contact the county child welfare agency which is
statutorily required to investigate such matters and is better equipped
to handle emergencies."
TPR Appeals - No Merit Reports - Time Limits
Brown County v. Edward
C.T., No. 98-0075-NM (ordered published 29 April 1998)
Counsel for Edward C.T. filed a no merit report from an order
terminating Edward's parental rights. The court of appeals required the
no merit report to address the applicability of the no merit procedure
to a TPR appeal. In this per curiam opinion, the court of appeals
concluded that a no merit report may be filed in a TPR appeal within the
time set by Wis. Stat. section (Rule) 809.107. A no merit report may be
filed where, as in this case, the notice of intent and the notice of
appeal were timely filed under Rule 809.107(2) and (5) and the no merit
report was filed within the time set for filing the appellant's brief
under Rule 809.107(6)(a). Upon the timely filing of a no merit report,
the court of appeals will allow 10 days for the parent to file a
response to the report.
Child Support - Reductions - "Serial Family Payers"
State v. Jeffrie
C.B., No. 97-2453 (filed 31 March 1998) (ordered published 29
April 1998)
In 1993 a court ordered Jeffrie to pay 17 percent of his gross income
as child support. The court was unaware of a previous child support
order in a separate paternity case requiring him to pay 17 percent of
his gross income. In 1997 a judge granted Jeffrie's motion to reduce his
child support at the lesser rate (14 percent) for a "serial family
payer." The court also retroactively revised its child support order so
that Jeffrie's arrearages reflected the 14 percent rate.
The court of appeals, in an opinion written by Judge Cane, reversed.
The sole issue on appeal concerned the court's authority to reduce
accrued child support arrearages retroactively. Under section 767.32(1m)
of the Wisconsin Statutes a trial court cannot "retroactively revise the
amount of child support due or the amount of arrearages in child support
except to correct previous errors in calculation." The Legislature
intended that such revisions be restricted to "mathematical errors
only."
Habeas Corpus
Motion to Quash Writ - Appearance of Confined Petitioner by
Telephone - Responsibility for Making Arrangements for Telephonic
Appearance
State ex rel. Christie v.
Husz, No. 97-0807 (filed 25 Feb. 1998) (ordered published 29
April 1998)
The petitioner contended before the court of appeals that the trial
court erred when it dismissed her writ of habeas corpus because she
failed to appear at the motion hearing. She claimed that her failure to
appear was due to her incarceration, was not her fault, and that the
trial court should have made the necessary arrangements for her to
appear.
In a decision authored by Judge Brown, the court held that in an
action involving a prisoner acting pro se, if the court concludes that a
hearing is necessary and that a teleconference will suffice, it is the
responsibility of the trial court to ensure that the pro se prisoner has
access to a telephone at the time of the hearing. The court limited its
holding to pro se prisoners. If a prisoner is represented by counsel,
the prisoner's attendance, either in person or by telephonic means, may
not be necessary. Moreover, if the prisoner is represented by counsel
and the prisoner's appearance is necessary, and if it is determined that
appearance by telephone will be satisfactory, it should be counsel's
obligation to make the arrangements for the appearance. If counsel
experiences problems in arranging for telephonic appearance, he or she
can always seek the court's aid.
The appellate court also addressed motion practice in habeas corpus
proceedings, distinguishing motions to quash from returns to the writ. A
motion to quash the writ challenges the sufficiency of the petition for
the writ. The court will only quash the writ if the facts pled in the
petition, when accepted as true, are insufficient to entitle the
petitioner to the relief sought. [Of course, a prisoner who merely makes
conclusory allegations regarding his or her confinement cannot survive a
motion to quash. A habeas corpus petition containing merely loose
allegations which fail to show how, if true, the petitioner is
wrongfully detained is defective.]
A motion to quash is not the proper procedural tool with which to
raise factual disputes in a habeas corpus proceeding. If raising factual
disputes is the goal, then a return to the writ should be filed, which
the petitioner can then traverse, thus raising an issue of fact for
trial.
Insurance
UM Coverage - Made Whole
Calbow v. Midwest Security
Ins. Co., No. 97-2457 (filed 4 March 1998) (ordered published
29 April 1998)
Calbow was injured when an uninsured motorist crashed into a fire
truck which in turn collided with Calbow's vehicle. The Calbows sued the
municipality. Eventually they settled for $250,000 and executed a
Pierringer release. Calbow later filed a claim with his insurer under
his uninsured motorist (UM) coverage.
The court of appeals, in an opinion written by Judge Anderson,
affirmed a trial court order that enforced the insurance policy's
reducing clause in favor of the UM insurer. An arbitrator's panel
established the Calbow's total damages as $131,000. Invoking the
reducing clause prevented a "double recovery"; the purpose of UM
coverage is not to provide a "fully compensated party with a
windfall."
Protective Placements
Movement of Protectively Placed Person from One County to Another -
Relitigation of Residence
Juneau County v. Sauk
County, No. 97-1365 (filed 12 March 1998) (ordered published 29
April 1998)
In 1985 a Juneau County court appointed Robin S. as the Wis. Stat.
chapter 55 guardian of the person and the estate of her developmentally
disabled adult brother Jeffrey. At that time, both Robin and Jeffrey
were living in Juneau County. Over the following decade, the Juneau
County Department of Human Services placed Jeffrey in a variety of
locations within that county, including his mother's home, adult foster
homes, and community-based residential facilities (CBRFs). However, in
1996, after Robin moved to Sauk County, she arranged to have her brother
moved to a group home CBRF located in Sauk County.
Juneau County subsequently filed a motion seeking to change Jeffrey's
county of residence for his protective placement to Sauk County and thus
relieve itself of further supervisory and financial responsibilities for
his care. The circuit court denied the motion based on its conclusion
that Wis. Stat. section 51.40(2)(a) precludes any change of residence
for protectively placed persons who reside in CBRFs.
The court of appeals, in a decision authored by Judge Roggensack,
reversed. The issues before the court were whether a Wisconsin county is
barred, either by section 51.40(2)(a) or the doctrine of claim
preclusion, from relitigating the question of a protectively placed
person's residence after that person's guardian has moved to another
Wisconsin county and relocated the person into a CBRF in that same
county. The court concluded that residency may be reexamined in such
circumstances.
Real Property
Adverse possession - 20-year time period
Harwick v. Black,
No. 97-1108 (filed 12 March 1998) (ordered published 29 April 1998)
This case concerns the law of adverse possession and an action to
quiet title. Wis. Stat. section 893.25 provides that, with certain
exceptions, "an action for the recovery or the possession of real estate
and a defense or counterclaim based on title to real estate are barred
by uninterrupted adverse possession of 20 years." Case law establishes
that the person claiming adverse possession must show that the disputed
property was used for the requisite period of time in an open,
notorious, visible, exclusive, hostile, and continuous manner that would
apprise a reasonably diligent landowner and the public that the
possessor claimed the land as his or her own.
The issue before the court of appeals was whether the 20-year time
period of adverse possession must occur immediately preceding the filing
of a court action. In an opinion authored by Judge Dykman, the court
answered in the negative. Adverse possession for any 20-year time period
is sufficient to establish title in the adverse possessor. Title to the
disputed land vests at the close of the limitation period and the title
of the original owner of the disputed land is extinguished at that time.
Further, said the court, one claiming adverse possession need not be in
possession of the disputed property at the time the action is filed.
Torts
Dog Bite - Landlords - Common Law Negligence - "Harborer" Under
Section 174.02(1)
Malone v. Fons,
No. 96-3326 (filed 17 March 1998) (ordered published 29 April 1998)
Fons owned a building in which a tenant's dog bit the plaintiff, an
8-year-old girl. The plaintiff sued Fons. The circuit court granted
summary judgment dismissing the complaint.
The court of appeals, in an opinion written by Judge Curley,
affirmed. First, the court held that Fons was not liable under the
common law of negligence. Relying on Gonzales v. Wilkinson, 68 Wis. 2d
154 (1975), the court concluded: "(1) the relevant statements in
Gonzales were not a dicta, but rather, expressed the court's holding;
(2) according to the plain language of Gonzales, Fons is not liable, on
common law negligence grounds, for the bite which Sarah received from
Fons' tenant's dog; and (3) [other named cases have not] modified
Gonzales' holding as it relates to the facts of this particular
case."
Second, the court rebuffed the argument that Fons had "harbored" the
dog and thus was strictly liable under section 174.02 of the Wisconsin
Statutes. The "mere fact that Fons' tenants' dog had been on the
premises that Fons leased to the [tenants] for a lengthy period of time
does not make Fons a harborer of his tenant's dog."
Finally, the court rejected the argument that the plaintiff was a
third-party beneficiary of a "contract," or a misrepresentation to the
tenant, that legally obligated Fons to provide liability insurance for
his tenant. The "misrepresentation theory" lacked sufficient merit to
consider. And as a matter of law based on the facts of record, Fons did
not offer to provide liability insurance for the tenant; thus, there was
no contract under which the plaintiff could benefit.
Safe Place Statute - Security Systems
Naaj v. Aetna Ins.
Co., No. 96-3640 (filed 31 March 1998) (ordered published 29
April 1998)
A food store leased a building from the defendant owner. The
plaintiff, an employee, was struck by an unruly customer. The complaint
alleged that the owner violated the safe place statute, Wis. Stat.
section 101.11, by failing to install a security system of some sort in
a building that was located in a "high-crime area."
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed the trial court's grant of summary judgment in favor of the
owner. The safe place statute is restricted to the building's
"structural composition." A safety system that protects employees from
crime is not part of the building's structure.
This column summarizes all decisions
of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof.
Thomas J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W. Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
Wisconsin Lawyer