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    Wisconsin Lawyer
    July 01, 1999

    Wisconsin Lawyer July 1999: Court of Appeals Digest

    Court of Appeals Digest


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

    | Criminal Procedure | Damages |
    | Employment Law | Evidence | Legal Malpractice |
    | Real Property | Realtors | Zoning |


    Criminal Procedure

    Guilty Plea Withdrawal - Failure to Advise
    Defendant Regarding Federal Firearms Disability

    State v. Kosina, No. 98-3421-CR (filed 27 April 1999) (ordered published 26 May 1999)

    The defendant was charged with one count of disorderly conduct arising out of an incident of domestic violence. He entered a plea of guilty to the charge without the assistance of counsel. He subsequently filed a post-conviction motion to withdraw his guilty plea alleging that he entered the plea without knowing that his conviction could result in the loss of his right to possess a firearm under those federal statutes that prohibit one convicted of a misdemeanor involving domestic violence from possessing firearms or ammunition. The circuit court denied post-conviction relief and concluded that the effect of the federal firearms statutes was a collateral consequence of the defendant's guilty plea. The court of appeals, in a decision authored by Judge Myse, affirmed.

    Section 971.08(1)(a) of the Wisconsin Statutes requires the judge taking a plea to determine that the plea is made voluntarily and with understanding of the nature of the charge and the potential punishment the defendant faces. A plea is not knowingly, voluntarily, and intelligently entered, and a manifest injustice results when a defendant does not know what sentence could actually be imposed. An understanding of potential punishments or sentences includes knowledge of the direct consequences of the plea, but does not require that a defendant be informed of consequences that are collateral to the plea. A direct consequence of a plea has a definite, immediate, and largely automatic effect on the range of a defendant's punishment. A collateral consequence does not automatically flow from the plea. In some cases a particular consequence is deemed "collateral" because it rests in the hands of another government agency or different tribunal. It also can be collateral because it depends upon a future proceeding.

    The court of appeals first concluded that the effect of the federal statutes is not an automatic consequence of the defendant's plea because the application of his misdemeanor disorderly conduct conviction to the federal statutes' scope remains open and must be resolved before the federal firearms prohibition takes effect. The court held that because the defendant can, as a preliminary matter, contest the federal statutes' applicability to his state conviction, the operation of the federal firearm prohibition is not automatic. [In footnote the court noted that its conclusion is confined to the question whether federal law applies automatically when the trial court does not make a domestic violence determination. The court did not address the consequences of a trial judge making a factual determination that disorderly conduct is related to domestic violence and including in its judgment that the conviction is domestic violence related.]

    Even assuming that the federal statute applies to the disorderly conduct conviction because it involves domestic violence, the appellate court held that its effect is a collateral consequence of the defendant's guilty plea. The prohibition on possessing firearms arises from a body of law that is collateral to the state court proceedings and any consequence arising under that law must therefore also be collateral. The firearms prohibition under the federal statute is a separate, peripheral consequence and does not have an immediate or automatic effect on the range of punishment imposed under state law by the circuit court.

    Bail - Incarcerated Defendants - Chapter 969 Conditions of Release Inapplicable While Defendant Remains Incarcerated

    State v. Orlik, No. 98-2826-CR (filed 29 April 1999) (ordered published 26 May 1999)

    The defendant was charged with several felonies and bail was set in the amount of $320,000. The court also established other conditions of release, including certain no contact orders. The no contact provision was imposed originally as a condition of release pending trial. However, when the defendant was unable to post cash bail, the court decided that the no contact provision also applied while the defendant remained incarcerated. The defendant contended that under the plain language of Wis. Stat. sections 969.01 and 969.03, the circuit court has authority to set conditions on the release of a defendant pending trial, but does not have authority to impose conditions on a defendant who remains incarcerated awaiting trial.

    In a decision authored by Judge Vergeront, the court of appeals held that the circuit court did not have authority under sections 969.01 and 969.03 to impose no contact orders on the defendant that would govern him while he remains incarcerated. The court recognized that, pursuant to section 940.47, a court with jurisdiction over a criminal matter has authority to order a defendant not to violate the provisions of the victim and witness intimidation statutes (sections 940.42 to 940.45), to maintain a geographic distance from such persons, or to have no communication with such persons except through an attorney. However, this type of order must be based upon "substantial evidence which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur." See Wis. Stat. § 940.47. The latter type of showing would be required in order for the circuit court to determine whether it should enter an order under section 940.47 (which could apply to an incarcerated defendant).

    Revocation of Probation - Credit for Time Spent in Division
    of Intensive Sanctions Program

    State v. Olson, No. 98-1450-CR (filed 21 April 1999) (ordered published 26 May 1999)

    The defendant was convicted of forgery and placed on probation. After he absconded from probation, he was offered placement in the Division of Intensive Sanctions (DIS) program as an alternative to the revocation of his probation. After making progress in the DIS program and having his electronic monitoring bracelet removed, he again absconded. Thereafter his probation was revoked and the court sentenced him to a term in prison.

    At the sentencing following revocation of probation, a debate arose as to whether the defendant should receive prison credit for his DIS time. The Department of Corrections (DOC) recommended that he should receive 256 days of credit. The state objected because the defendant was not incarcerated during the time he spent in DIS. The circuit court agreed with the state, concluding that the defendant's participation in DIS was not the functional equivalent of confinement and therefore his sentence should not be credited.

    The court of appeals, in a decision authored by Judge Anderson, affirmed. The court first concluded that the circuit court had the exclusive authority to determine the amount of sentence credit to be given a defendant when imposing a post-probation sentence. It further concluded that the circuit court properly rejected prison credit for the time the defendant spent in DIS. Whether sentence credit will be given for DIS time depends upon the restrictions imposed on the defendant's freedom by the program. The record revealed that while in DIS, the defendant was required to wear an electronic monitoring bracelet and had to seek approval in order to leave his residence, but he was not locked in the home at night. Based on these facts, the appellate court concluded that the defendant's participation in the DIS program did not qualify as "custody" for purposes of Wisconsin's sentence credit statute. See Wis. Stat. § 973.155.

    Search and Seizure - Expectation of Privacy -
    Dumpster - Commercial Premises

    State v. Yakes, No. 98-0470-CR (filed 21 April 1999) (ordered published 26 May 1999)

    Yakes was convicted of sexually assaulting a child based upon evidence recovered from a dumpster on his company's property. The court of appeals, in an opinion written by Judge Brown, affirmed the conviction and the seizure of the evidence.

    The central issue before the court concerned whether Yakes had a reasonable expectation of privacy in the area surrounding his commercial building and in the area where the dumpster was located. Following precedent from the Eleventh Circuit, the court held "that a commercial proprietor must show how affirmative steps were taken to bar the public from the dumpster area in order to validate a claim of an objectively reasonable expectation of privacy regarding trash in the dumpster." The "affirmative steps" might include warning signs or barricades. Yakes had failed to take such affirmative action. Finally, Yakes claimed that the dumpster was located within the curtilage of his residence, although the record amply supported the trial court's conclusion that it was on Yake's business premises.


    Damages

    Implied Contracts - Unjust Enrichment - Quantum Meruit

    W.H. Fuller Co. v. Seater, No. 98-1250 (filed 14 April 1999) (ordered published 26 May 1999)

    The plaintiff, a contractor, was excavating property near land owned by the defendant. The defendant's lessee arranged to have the contractor dump the excavated fill on the defendant's lot and grade it. The defendant was aware of the arrangement and signed a "hold-harmless agreement" with the plaintiff. Later the plaintiff forwarded an invoice to the defendant for about $17,150 for the fill and grading. The defendant refused to pay it. The circuit court held a bench trial and found that an implied contract existed between the plaintiff and the defendant, and awarded the plaintiff nearly $19,000 in damages.

    The court of appeals, in an opinion written by Judge Snyder, affirmed in part and reversed in part. The only issue on appeal concerned the proper measure of damages under a contract implied in law. Under controlling case law, "a contract implied in law necessarily involves recovery through unjust enrichment, not quantum meruit. As such, the measure of damages for a contract implied in law is the benefit received by the defendant."

    Here the plaintiff billed the defendant for all materials and service provided. The court held that damages "for unjust enrichment may include services rendered for the defendant," but only when "those services ... constitute the benefit received by the defendant." Finally, the plaintiff was entitled to recover for any "detriment" caused to his property.


    Employment Law

    Sexual Harassment - No Hostile Environment

    Jim Walter Color Separations v. LIRC, No. 98-2360 (filed 8 April 1999) (ordered published 26 May 1999)

    At the close of a three-day hearing, an administrative law judge (ALJ) found that the employee's supervisor had sexually harassed her. LIRC adopted the findings. The circuit court reversed LIRC's decision that the employee had been the victim of sexual harassment in the workplace. The circuit court ruled that the multiple acts had not substantially interfered with her work performance and had not created a hostile environment.

    The court of appeals, in an opinion written by Judge Vergeront, reversed the circuit court and found that LIRC had correctly interpreted section 111.36(1)(b) of the Wisconsin Statutes. In particular, the court held that "'unwelcome physical contact of a sexual nature' and 'unwelcome verbal or physical conduct of a sexual nature' may constitute sexual harassment even though they do not create a hostile work environment." The sexual harassment must be conducted, however by "the owner or an agent under the principle of respondeat superior."


    Evidence


    Psychotherapist Privilege - Exceptions - Threat to the Public

    State v. Agacki, No. 97-3463-CR (filed 13 April 1999) (ordered published 26 May 1999)

    The court of appeals, in a decision authored by Judge Schudson, affirmed the defendant's conviction for carrying a concealed weapon. The defendant was arrested after his licensed psychotherapist told police that the defendant was emotionally unstable and armed with a gun. The therapist gleaned this information through conversations and contacts with the defendant, his patient, on the day of the arrest. The defendant argued that the gun should be suppressed because his disclosures to the therapist were privileged under section 905.04.

    Prior case law had recognized what can be termed a "dangerous patient exception" that obligated therapists, in some cases, "to warn potential victims and/or contact the police." The duty to warn is triggered when the therapist reasonably believes that the patient is dangerous and disclosure of the communication is necessary to forestall harm.

    Judge Fine concurred, writing separately to emphasize that the communications in this case concerned the patient's future conduct and intent, not past events.


    Legal Malpractice


    Damages - Mitigation - Reliance on Counsel

    Langreck v. WILMIC, No. 98-2024 (filed 29 April 1999) (ordered published 26 May 1999)

    Langreck obtained a loan and mortgage from a bank in 1987. The mortgage note required him to insure the premises with a "loss-payable clause" in the bank's favor. In 1991 the house burned down. The insurer refused to pay because Langreck was suspected of arson. Langreck eventually retained Attorney Day who filed a suit against the insurer, which was dismissed as time barred (the one-year statute of limitations had expired). In 1993 the bank also filed a proof of loss with the insurer, which was denied for the same reason. In 1994 the bank brought a foreclosure action against Langreck. On advice of different counsel, Langreck did not contest the foreclosure.

    Langreck later brought a legal malpractice claim against Attorney Day, his estate, and WILMIC. A jury awarded Langreck more than $100,000 in damages but it also found that Langreck had failed to mitigate his damages by not contesting the bank's foreclosure, thus reducing Langreck's damages by $57,000. Langreck appealed.

    The court of appeals, in an opinion written by Judge Dykman, reversed. Langreck had contacted an attorney regarding the foreclosure action. The attorney advised him not to contest the foreclosure. The court of appeals held that "[a]s a matter of law, it is unreasonable to require a party to disregard his or her attorney's advice and proceed pro se with an unknown defense." In a footnote the court expanded upon this thought: "We fail to see how Langreck, without legal training, could be expected to raise a defense not seen, accepted, or appreciated by an attorney." The court ordered the trial court to enter judgment for the original damage award.


    Real Property


    Condemnation by DOT - Compensation for Appraisal Fees - Sovereign Immunity

    Miesen v. Wisconsin Department of Transportation, No. 98-3093 (filed 6 April 1999) (ordered published 26 May 1999)

    The Department of Transportation (DOT) began condemnation proceedings against the plaintiff's property pursuant to chapter 32 of the Wisconsin Statutes. Section 32.05(2)(b), which deals with negotiations before a jurisdictional offer, provides that the owner of the property may obtain an appraisal by a qualified appraiser of all property proposed to be acquired and may submit the reasonable costs of the appraisal to the condemnor for payment. Acting pursuant to this statute, the plaintiff hired an appraiser and then submitted the appraiser's bill to DOT, as permitted under the statute. DOT paid part of the bill, and the plaintiff filed a complaint against DOT in small claims court for the difference.

    DOT moved to dismiss the small claims action alleging that the circuit court lacked jurisdiction based on DOT's sovereign immunity from suit. Concluding that DOT had sovereign immunity, the circuit court dismissed the action.

    The court of appeals, in a decision authored by Chief Judge Cane, reversed. It concluded that the DOT has clearly and expressly consented to be sued under section 32.05 and that the circuit court therefore had jurisdiction to determine whether the cost of the plaintiff's independent appraisal was reasonable under section 32.05(2)(b). Accordingly, it remanded the matter so that the circuit judge can consider the reasonableness of the appraisal fees and enter judgment if the DOT's payment was insufficient.


    Realtors


    Brokerage Services - Negligence - Third-party Reports

    Johnson v. Neuville, No. 98-1680 (filed 13 April 1999) (ordered published 26 May 1999)

    Johnson wished to relocate his "fish market" business. He purchased a property that was listed for sale by a real estate broker, who acted as the owners' sales agent. After the closing, Johnson sued the broker alleging he had been negligent and had misrepresented an easement. A jury found that the broker had not misrepresented anything to Johnson, but also found that the broker was 65 percent negligent and Johnson 35 percent negligent concerning the easement. The broker appealed.

    The court of appeals, in an opinion by Judge Myse, affirmed. The broker first argued that under section 452.23(2)(b) of the Wisconsin Statutes, he was not required to disclose the nonexistence of the easement because a qualified third-party report disclosed information about the easement. Rejecting the claim, the court noted that there was a separate basis for liability in the record. The broker had consulted reports that were inconsistent with the broker's belief that an easement existed, yet he did not alert Johnson that further investigation might be required.

    The court also held that section 452.23(2)(b) did not apply in this case because the broker's conduct fell outside the statute's protection. The statute relieves brokers of liability regarding the disclosure of information about a property's physical condition or any other information relating to the transaction. It does not, however, "apply to separate acts of negligence" by the broker. Finally, sufficient evidence supported the jury's finding on causation.


    Zoning


    Denial of Conditional Use Permit - Certiorari Review -
    Notice of Claim Statute Inapplicable

    Kapischke v. County of Walworth, No. 98-0796 (filed 7 April 1999) (ordered published 26 May 1999)

    The county planning commission denied the plaintiffs' application for a conditional use permit to construct a communication tower on property zoned for agricultural use. The plaintiffs then filed for certiorari review of the commission's decision in the circuit court. They did not, however, comply with the notice of claim statute (Wis. Stat. section 893.80) prior to commencing the certiorari proceeding. Among the issues on appeal was whether that failure should result in the dismissal of their suit.

    In a decision authored by Judge Nettesheim, the court noted a conflict between section 59.694(10) of the Wisconsin Statutes, which governs certiorari review of county zoning decisions, and the more generally applicable notice of claim statute. The former provides that a person aggrieved by a zoning decision may, within 30 days after the filing of the decision, commence an action seeking the remedy available by certiorari. On the other hand, the notice of claim statute provides that before an individual may maintain an action against a municipality, the municipality must be notified of the claim and has 120 days to disallow it.

    The court of appeals concluded that the provisions of section 59.694 take precedence over those set forth in the notice of claim statute. The court did not believe this holding would frustrate the purpose of the notice of claim statute, which is designed to give municipalities an opportunity to address the merits of a claim. Said the court, in a certiorari review setting, the governmental agency has already acted before the action is commenced at the circuit court level. The purpose of certiorari review is simply to obtain judicial review of governmental agency action and not to commence an original action based on claims unknown to the agency. Thus, the court held that the notice of claim statute does not govern certiorari actions brought pursuant to section 59.694(10).

    Land Use Regulations - Direct Voter Action Through Initiative

    Heitman v. City of Mauston Common Council, No. 98-3133 (filed 29 April 1999) (ordered published 26 May 1999)

    This case arose because of the contemplated construction in Mauston of a secure treatment facility for sexually violent person commitments. The plaintiff and others who oppose the construction of the facility commenced an initiative pursuant to Wis. Stat. section 9.20 and requested the city either to adopt the proposed initiative without alteration or to submit it to the electorate for a vote. When the city refused, the plaintiff commenced an action for mandamus to require it to do so and for injunctive relief. The city moved for summary judgment and the circuit court granted the motion.

    The court of appeals, in a decision authored by Judge Roggensack, affirmed the circuit court. An initiative is a direct voter action to enact new law within a particular jurisdiction. In Wisconsin the right of initiative is not reserved to the people in the constitution. Rather, by the adoption of the state constitution, the people of Wisconsin delegated all rights of lawmaking to the Wisconsin Legislature. Therefore, in this state, initiative is a creature of statute and its use must comport with the requirements established by the Legislature, both for direct action legislation and for the specific area of legislation in which initiative is attempted.

    The appellate court concluded that the proposed initiative is either a zoning ordinance or an amendment to the zoning ordinances of the city of Mauston and that zoning and amendments to zoning may be accomplished only in compliance with the procedures established in Wis. Stat. section 62.23 - not by initiative.

    Judge Dykman filed a dissenting opinion.

    Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.


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