Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Commercial
Law | Consumer Act | Criminal Law
| Employment Law | Family Law | Juvenile Law |
Appellate Procedure
Absconding - Forfeiture of Rights - Juveniles - Direct Appeal
State v. Lamontae
D.M., No. 98-1700 (filed 2 Dec. 1998) (ordered published 27
Jan. 1999)
Deciding an issue of first impression, the court held that a juvenile
who absconds from court-ordered treatment forfeits the right of direct
appeal. The juvenile in this case "ran away" from a residential
treatment center one day after being placed there. The court of appeals,
in an opinion written by Judge Anderson, relied upon case law holding
that adults who are fugitives during the pendency of post-conviction
proceedings forfeit their ability to pursue those remedies. No reported
decision distinguished between an escape while a direct appeal was
pending and an escape during the pendency of post-conviction relief. The
juvenile's escape "demonstrates his utter contempt for the judicial
system and lack of respect for the laws of the State of Wisconsin."
Small Claims Actions - Pro Se Representation - Frivolous Appeal
Holz v. Busy Bees
Contracting Inc., No. 98-1076 (filed 9 Dec. 1998) (ordered
published 27 Jan. 1999)
The Holzes won a small claims judgment against their contractor based
on its shoddy construction of a retaining wall. They received as damages
the cost of having the wall rebuilt. The contractor appealed.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. First, the court held that it had jurisdiction over the appeal
even though the notice of appeal was filed by the contractor's
"nonlawyer president": "[L]itigants in small claims cases have as much
interest in obtaining 'speedy and inexpensive justice' on the appellate
level as well as the trial level." Second, the court held that the
evidence was sufficient to support the trial court's finding that the
work had not been performed in a workmanlike manner.
Third, the court held that the contractor's appeal was frivolous.
Lawyers as well as pro se litigants are obligated to make a reasonable
investigation of the law and facts before filing an appeal. Here, the
contractor's sufficiency of the evidence appeal was totally lacking in
merit. Any "slack" that the contractor deserved as a nonlawyer was
outweighed by harm to the Holzes; namely, the "unnecessary and
burdensome financial obligations that should never have been incurred in
the first place." The matter was remanded for a determination of
reasonable costs and attorney fees.
Commercial Law
Security Interest - Accounts Receivable
Sierra Finance Corp. v.
Excel Laboratories, No. 97-2450 (filed 22 Dec. 1998) (ordered
published 27 Jan. 1999)
A trial court found that Sierra Finance Corp. had no security
interest in the accounts receivable of Excel Laboratories, its debtor.
Sierra loaned $40,000 to Excel, which executed a general business
security agreement. The security agreement contained a definition of
"collateral" that included language that Sierra would "designate" the
accounts to which its security agreement would attach. It never did so.
When Excel went into liquidation, the receiver objected to Sierra's
claim that it had a superior security interest in the accounts
receivable.
The court of appeals, in an opinion written by Judge Schudson,
affirmed. Relying on the "express terms of the security agreement," the
court held that "Sierra did not have a security interest until it
'designated' specific accounts," which it never did. Since no Wisconsin
decision had addressed this issue, the court looked at cases from other
jurisdictions that established a "clear principle": Where the terms of a
security agreement specifically limit the collateral, or where the terms
of a security agreement establish that attachment is contingent on
subsequent specification of the collateral, the secured party has no
security interest beyond the limitation or before the satisfaction of
the contingency." The problem in this case was that Sierra was not
content with a "floating lien" on accounts receivable, but limited
itself to a floating lien on specifically "designated" accounts and then
never followed through on the condition.
Consumer Act
Rent-to-Own Transactions - Applicability of Wisconsin Consumer
Act
LeBakken Rent-to-Own v.
Warnell, No. 98-1569-FT (filed 8 Dec. 1998) (ordered published
27 Jan. 1999)
LaBakken Rent-to-Own and Warnell entered into a contract labeled
"Consumer Rental Agreement." Under the contract Warnell agreed to make
weekly or monthly payments for the use of a refrigerator. The cash price
of the appliance was $551 and the rental period was 87 weeks or 20
months. Warnell could, at his option, terminate the agreement at any
time by returning the refrigerator and paying all amounts due through
the date of return, while LaBakken could terminate only if Warnell
failed to make payments or otherwise breached the agreement. Warnell had
the option to make all 87 payments and then purchase the refrigerator
for an additional $179, meaning that he would have paid $1,102 for the
refrigerator. In addition, the agreement contained an early purchase
option by which Warnell could purchase the refrigerator at any time
during the lease period if he paid 50 percent of the difference between
the total payments necessary to acquire ownership and the total amount
of rental payments paid.
In November 1996 Warnell failed to pay the rental fee or return the
refrigerator and LaBakken filed a pro se form complaint in small claims
court for replevin of the refrigerator and money damages. It was
undisputed that the complaint did not comply with the pleading
requirements of the Wisconsin Consumer Act because it failed to contain
the figures necessary for computation of the amount LaBakken alleged
that it was entitled to recover. See Wis. Stat. §
425.109(1).
Warnell alleged that because his consumer rental agreement with
LaBakken was a consumer credit transaction under the Wisconsin Consumer
Act, LaBakken's failure to comply with the pleading requirements
required that the complaint be dismissed with costs. The circuit court
ruled that the agreement was not subject to the Act. In a majority
decision authored by Chief Judge Cane, the court of appeals reversed. It
concluded that the matter was a consumer credit transaction subject to
the Wisconsin Consumer Act. Accordingly, the court reversed and remanded
the case to the circuit court with directions to award Warnell costs and
reasonable attorney fees.
Judge Hoover filed a concurring opinion.
Criminal Law
Child Enticement - Multiplicity
State v. Church,
No. 97-3140-CR (filed 17 Dec. 1998) (ordered published 27 Jan. 1999)
The defendant invited a 17-year-old boy to travel with him from Iowa
to Wisconsin Dells. Thereafter they went to a hotel in Madison where the
defendant gave the boy a marijuana cigarette, which they both smoked.
The defendant also gave the boy an alcohol drink that had been
surreptitiously laced with a prescription painkiller. After the boy fell
asleep, the defendant exposed and photographed the boy's penis and
touched it several times.
A jury found the defendant guilty of many charges, including two
counts of child enticement: one for enticement with intent to cause a
child to expose a sex organ contrary to Wis. Stat. section
948.07(3), and a second for enticement with intent to give a
controlled substance to a child contrary to section 948.07(6). These
multiple child enticement convictions were appealed on the ground that
they are multiplicitous because they are based on a single act of
enticement. In a majority decision authored by Judge Deininger, the
court of appeals reversed.
Section 948.07 provides that "whoever, with intent to commit any of
the following acts, causes or attempts to cause any child who has not
attained the age of 18 years to go into any vehicle, building, room or
secluded place is guilty of a Class BC felony: . . . (3) exposing a sex
organ to the child or causing the child to expose a sex organ . . .; (6)
giving or selling to the child a controlled substance or controlled
substance analog. . . ." The appellate court concluded that the two
counts of child enticement of which the defendant was convicted are
multiplicitous because the statute does not permit multiple punishments
for one act of enticement, even though the defendant intended multiple
misdeeds, rather than a single misdeed, with the victim.
Judge Dykman filed a dissenting opinion.
Next Page
Employment Law
Family and Medical Leave Act - Civil Action for Damages Following
Unsuccessful Results in Administrative Proceedings
Butzlaff v. Wisconsin
Department of Health and Family Services, No. 98-0453 (filed 17
Dec. 1998) (ordered published 27 Jan. 1999)
The plaintiff was terminated from his position as a security officer
at Mendota Mental Health Institute in 1990. He filed a complaint with
the personnel commission asserting that he was fired because he had to
take time off from work to attend to his wife and sick child, in
violation of the Family and Medical Leave Act (FMLA). After a hearing,
the commission determined that the plaintiff failed to meet his burden
of proving that his employer, the Department of Health and Family
Services, had violated the FMLA. The plaintiff sought judicial review
under Wis. Stat. section
227.52 and the circuit court affirmed. The plaintiff did not appeal
that decision to the court of appeals.
Instead, he filed an action in circuit court asserting the same FMLA
violation as that asserted before the personnel commission. The state
moved to dismiss the complaint on the ground of sovereign immunity,
asserting that 1) the FMLA does not permit a civil action unless the
employee has prevailed in the administrative proceeding and judicial
review, or 2) the statute was ambiguous on that point and was therefore
not a clear and express consent to sue the state. The circuit court
denied the motion, concluding that the statute plainly permitted a civil
action whether or not the employee had been successful in the
administrative hearing and judicial review.
In a majority decision authored by Judge Vergeront, the court of
appeals reversed. It concluded that the Legislature has clearly and
expressly waived state sovereign immunity in actions by employees under
the FMLA. It further held that the FMLA permits civil actions for
damages only by those employees who have first prevailed in the required
administrative proceeding and judicial review.
Judge Dykman filed a dissenting opinion.
Wage Claims - Private Cause of Action Against Employers - Sovereign
Immunity of the State
German v. Wisconsin
Department of Transportation, No. 98-0250 (filed 3 Dec. 1998)
(ordered published 27 Jan. 1999)
In this case the Wisconsin Department of Transportation (DOT)
appealed an order denying its motion to dismiss the wage claims of
several Wisconsin State Patrol officers. The officers sued the DOT under
Wis. Stat. section
109.03(5) seeking compensation for their meal breaks. The officers
asserted that their breaks are not free of job duties and are therefore
compensable work time under Wis. Admin. Code section DWD 274.02(3),
which requires employers to pay for on-duty meal periods.
The DOT contended that it is protected by sovereign immunity and is
therefore immune from suit. It also argued that the officers' claim is
not a wage claim that can be brought under section 109.03(5). DOT's
position was that a claim under the hours and overtime regulations in
DWD 274 may not be brought directly to court by an employee, but must
first be brought to the Department of Workforce Development (DWD).
Wis. Stat. section 109.03(5), which is part of the wage claim law,
provides that employees may sue their employers for wages earned, but
not promptly paid. The court of appeals, in an opinion written by Judge
Deininger, concluded that this statute waives the state's sovereign
immunity with respect to claims by state employees for wages due. The
appellate court also concluded that the right of action created by the
statute permits employees to sue employers for wage claims deriving from
hours and overtime regulations without first pursuing the claim with the
Department of Workforce Development.
Family Law
Paternity Actions - Power of Court to Change Surname of Child on
Motion of Father
In re Paternity of Noah
J.M., No. 97-2353 (filed 29 Dec. 1998) (ordered published 27
Jan. 1999)
In August 1995 Linda M.M., who was unmarried, gave birth to Noah. She
named Noah, giving him her surname. Five months later she filed a
paternity action alleging that Charles was Noah's father. Charles
initially denied paternity but, after receiving blood test results,
acknowledged that he was Noah's father and a judgment of paternity was
entered. In the course of the paternity proceedings, Charles requested
that the court change Noah's surname to his own. The circuit court
granted the request and Linda appealed.
In a decision authored by Judge Schudson, the court of appeals
reversed. It concluded that the court had no authority to change Noah's
surname upon his father's request, absent compliance with Wis. Stat. section
786.36 and absent the agreement of Noah's mother. [Section 786.36
provides in relevant part that "if the person whose name is to be
changed is a minor under the age of 14 years, the petition may be made
by: both parents, if living, or the survivor of them; . . . or the
mother, if the minor is a nonmarital child who is not adopted or whose
parents do not subsequently intermarry under section
767.60, except that the father must also make the petition unless
his rights have been legally terminated."]
Juvenile Law
Delinquency Proceedings - Amending Charge After Evidence
Presented
State v. Tawanna
H., No. 98-1404-FT (filed 8 Dec. 1998) (ordered published 27
Jan. 1999)
The juvenile was arrested and charged with misdemeanor battery via a
juvenile delinquency petition. The juvenile denied the accusation.
Following testimony, the juvenile court found her not guilty of battery
but, sua sponte and without notice, amended the juvenile petition from
battery to disorderly conduct. The court entered a dispositional order
adjudging her delinquent for disorderly conduct and placing her on
one-year supervision. The juvenile appealed.
In a decision authored by Judge Wedemeyer, the court of appeals
reversed. It held that the juvenile was not properly notified of the
disorderly conduct charge so as to satisfy basic due process and, as a
result, her ability to defend herself was unfairly prejudiced, contrary
to Wis. Stat. section
938.263(2). This statute provides that after the taking of a plea,
the court may allow amendment of the petition to conform to the proof if
the amendment is not prejudicial to the juvenile.
In this case there was no notice given to the juvenile that she was
subject to a disorderly conduct charge. She was accused of battery and
there was no indication in the state's trial presentation of an
intention to submit proofs of any other charge. It was evident to the
appellate court from the trial transcript that the three witnesses
called by the defense were there for the sole purpose of testifying
about the alleged battery and the cross examination of the two state's
witnesses related solely to the battery charge. Closing arguments by
both counsel further underscored that the issue in the trial was
battery. The juvenile was successful in her defense against the charged
offense, but then was found guilty of an entirely different offense of
which she had not been informed and against which she had not
prepared.
The court noted that the elements of battery and disorderly conduct
are not similar and clearly are not the same. In footnote the court
observed that disorderly conduct is not a lesser included offense of
battery and that the holding in this case should not be construed to
mean that a conviction of a lesser included offense would be
prejudicial.
Because the amended charge occurred in this case without proper
notice, it unfairly prejudiced the juvenile's statutory and due process
rights. Accordingly, the court of appeals reversed.
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
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