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Vol. 72, No. 10, October 1999 |
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Administrative Law | Civil
Procedure | Commercial Law |
| Criminal Law | Criminal Procedure
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| Employment Law | Family Law
| Lemon Law |
| Motor Vehicle Law | Sexually
Violent Persons | Torts
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| Worker's Compensation |
Administrative Law
Judicial Review of Chapter 227.53 Proceedings -
Requirement of Service on the Agency Involved
Gimenez v. State
of Wisconsin Medical Examining Board, No. 98-1367 (filed
7 July 1999) (ordered published 17 Aug. 1999)
The Wisconsin Medical Examining Board (Board) imposed professional
discipline on the petitioner, who is a general surgeon. After
filing a petition for review with the circuit court, the petitioner
timely served the attorney general. The Board then filed a motion
to dismiss because the petitioner had failed to serve it with
the petition. The circuit court denied the Board's motion.
In a decision authored by Judge Snyder, the court of appeals
reversed. It concluded that because Wis. Stat. section
227.53 requires service "upon the agency or one of its
officials," and because the petitioner's service upon
the attorney general was inadequate to satisfy the service requirements,
the circuit court never acquired jurisdiction to review this
case.
The court rejected the petitioner's argument that serving
the attorney general was sufficient because the attorney general
had represented the Board throughout these proceedings. Once
an action has begun, service of papers may be made upon an attorney
who has appeared in the action on behalf of a party. An attorney,
however, is not authorized by general principles of agency to
accept, on behalf of a client, service of process commencing
an action. In the case of a chapter 227 petition for circuit
court review of an administrative decision, the filing of the
petition triggers the commencement of the action rather than
a continuation of it, since the earlier proceedings between the
parties were administrative, not judicial. Therefore, the attorney
general's continuing representation of the Board did not
authorize the attorney general to accept service for the Board.
Section
227.53(1) unambiguously provides that a petition for judicial
review must be served upon the agency.
Civil Procedure
Clerk of Courts - Judgments - Statute of Limitations
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Untimely Docketing
South Milwaukee Savings
Bank v. Barczak, No. 97-3759 (filed 27 July 1999) (ordered
published 17 Aug. 1999)
A bank obtained summary judgment in its favor against a debtor.
The bank's attorney then presented a proposed order and
judgment which the judge signed. The attorney obtained the court's
file, took it to the clerk's office at about 3:30 p.m.,
and paid the judgment and docketing fees. Although the clerk's
office entered the judgment, for reasons unknown to anyone, the
clerk did not docket the judgment until the next day. In the
meantime, the debtor's wife, who had been in court when
the summary judgment was announced, went home and retrieved two
quitclaim deeds that allegedly conveyed the debtor husband's
interest in the property to her. She rushed back to the courthouse
and recorded the quitclaims with the register of deeds after
the bank's judgment had been entered but before it
was docketed. This sequence of events became critical when the
bank later scrambled to collect on the judgment in competition
with other creditors who claimed priority. After the bank lost
on its claim based on the tardily docketed judgment, it filed
this suit against the clerk of court. The trial court ruled in
the clerk's favor, finding that the two-year statute of
limitations had expired and that the clerk had complied with
the statutes controlling the docketing of judgments.
The court of appeals, in an opinion written by Judge Curley,
reversed. First, the court held that the actions brought under
the docketing statute, section
806.10(3) of the Wisconsin Statutes, are governed by the
six-year statute of limitations. Wis. Stat. §
893.(1)(a). Second, as a matter of law the clerk violated
the docketing statute. The judgment was presented at 3:20 p.m.
and the clerk's office did not close until 5:00 p.m. Moreover,
the clerk offered no explanation as to why the judgment was not
docketed in the time remaining that day, although other evidence
suggested that docketing was not a "high priority."
In short, the clerk violated section
806.10(3) regardless of whether it requires the docketing
of judgments "immediately" or instead permits the docketing
within a "reasonable time."
Commercial Law
Corporate Checks - Signer - Personal Liability
- Fraud
Korhumel Steel Corp.
v. Wandler, No. 98-2042 (filed 14 July 1999) (ordered
published 17 Aug. 1999)
The bookkeeper of a financially distressed corporation signed
two checks that were later returned for insufficient funds in
the corporate account. The payee claimed that the bookkeeper
had committed fraud and was personally liable for the amounts.
The trial court agreed.
The court of appeals, in an opinion written by Judge Wilk,
reversed. The first issue concerned whether section
403.402(3) of the Wisconsin Statutes shields a corporate
bookkeeper from liability for fraud. That provision of the Uniform
Commercial Code (UCC) generally shields from personal liability
one who signs a check in a representative capacity. The court
held, however, that the UCC's protections did not extend
to fraud claims, relying on case law from other jurisdictions
and the principle that "individual liability is appropriate
when an intentional tort is alleged and proven."
The court reversed on the second issue; namely, did the payee
prove that the bookkeeper defrauded it? The court held that the
payee failed to meet its burden of showing all elements of fraud.
As to one of the checks, there was no evidence showing that the
bookkeeper knew that there were insufficient funds in the account
when she signed the check. As to the other check, the payee did
not justifiably rely on the bookkeeper's signature. She
acted as a mere "scribe" when the general manager,
in the payee's presence, ordered her to write that check.
Ordinarily, of course, agents are liable for misrepresentations
made on the principal's behalf, but here the focus was on
the payee's reliance on the bookkeeper's "low-ranking
position in
the corporation."
Criminal Law
Multiplicity - Multiple Perjury Charges Arising from
False Testimony at Preliminary Hearing
State v. Warren,
No. 99-0129-CR (filed 29 June 1999) (ordered published 21 July
1999)
A jury convicted the defendant of two counts of perjury contrary
to Wis. Stat. section
946.31(1)(c) in connection with testimony he gave at the
criminal preliminary hearing of one David Brown. The defendant's
testimony incriminated Brown in a bank robbery and potentially
qualified the defendant for a reward. During that preliminary
hearing the defendant gave false testimony as to whether he and
Brown had driven to the city where the robbery occurred to case
the bank and whether, subsequent to the robbery, he helped Brown
hide the proceeds.
The issue before the court of appeals was whether charging
the defendant with multiple counts of perjury based on testimony
given to a circuit judge in the same proceeding violates the
rule against multiplicity. In a decision authored by Chief Judge
Cane, the appellate court answered in the negative. Applying
Wisconsin's well-settled, two-part multiplicity test, the
court concluded that the two perjury counts were not multiplicitous.
While the two charges against the defendant were identical in
law, they were different in fact. Though closely linked, each
conviction required proof of an additional fact that the other
did not. Further, each offense required a "new volitional
departure" in the defendant's conduct. The court of
appeals further concluded that the Legislature intended to permit
multiple counts of perjury occurring during the same proceeding.
Criminal Procedure
Interrogation - Sixth Amendment Right to Counsel
State v. Hornung,
No. 99-0300-CR (filed 20 July 1999) (ordered published 17 Aug.
1999)
The state filed a criminal complaint and warrant against the
defendant for sexual exploitation of a child and second-degree
sexual assault. The defendant subsequently surrendered to his
probation agent. The critical issue on appeal was whether statements
he subsequently gave to police were obtained in violation of
his Sixth Amendment right to counsel.
Under the Sixth Amendment, a person formally charged with
a crime has a right to counsel at every critical state of the
proceeding. The Sixth Amendment right attaches when a warrant
is issued or a complaint filed. However, once the Sixth Amendment
right to counsel has attached, a criminal defendant must seek
to exercise this right. The attachment of the right to counsel,
coupled with a criminal defendant's assertion of this right,
prohibits the government from initiating any contact or interrogation
concerning the charged crime, and any subsequent waivers by a
defendant during a police-initiated contact or interrogation
are deemed invalid. Because in this case the defendant had already
been charged with a complaint and warrant, the Sixth Amendment
had attached. The issue was whether the defendant effectively
asserted his Sixth Amendment right to counsel, thereby triggering
its protections.
In a decision authored by Chief Judge Cane, the court of appeals
concluded that the defendant's assertion of his Sixth Amendment
right to counsel was evident throughout the officer's interrogation
of the defendant. The defendant initially asked if the officer
thought he should have an attorney and it was undisputed that
the defendant asked if he could call a specific lawyer, whom
the officer knew to be a criminal defense attorney. Given these
circumstances, said the court, a reasonable officer should have
known that the defendant's Sixth Amendment right to counsel
was sufficiently asserted when the defendant asked to call the
attorney. Thereafter, all questioning regarding the charges should
have ceased. As the defendant's Sixth Amendment right to
counsel was effectively triggered by its attachment and subsequent
assertion, any subsequent and inculpatory statements or fruits
thereof should have been suppressed as violative of the defendant's
constitutional rights.
Preliminary Breath Tests - Admissibility of PBT Results
in Nonmotor Vehicle Cases
State v. Doerr,
No. 98-1047 (filed 28 July 1999) (ordered published 17 Aug. 1999)
The defendant was convicted by a jury of two counts of battery
to a police officer and one count of resisting an officer. These
charges arose after a deputy sheriff had pulled the defendant's
vehicle over after observing "erratic driving behavior."
During the course of the field investigation the officer administered
a preliminary breath test (PBT) to measure the defendant's
blood alcohol level. That test showed a blood alcohol level of
0.21 percent.
Among the issues on appeal was whether the trial court erred
by admitting evidence of the PBT at the defendant's trial
on the battery and resisting charges without any corresponding
expert testimony. Wis. Stat. section
343.303 prohibits the use of the results of a PBT in any
action or proceeding except for challenges to probable cause
to arrest or the necessity of a chemical test. In this case the
circuit court concluded that the section
343.303 bar on the evidentiary use of PBT results is limited
to motor vehicle violations and that the test results could be
used as evidence at the trial on battery and resisting charges
which are not motor vehicle violations. The court of appeals,
in a decision authored by Judge Anderson, agreed with this conclusion.
However, the court concluded that prosecutors who wish to
rely on PBT test results in nonmotor vehicle cases are required
to present evidence of the device's scientific accuracy
and reliability and prove compliance with accepted scientific
methods as a foundation for the admission of the test results.
Employment Law
Police Officers - "Just Cause" Hearing for
Demotion
of Promoted Police Officers Serving in Probationary Capacity
Antisdel v. Oak Creek
Police and Fire Commission, No. 97-3818 (filed 20 July
1999) (ordered published 17 Aug. 1999)
The plaintiff is a police officer. In 1996 he was promoted
to the rank of sergeant. A memorandum that the police chief sent
to him at the time of his promotion told the plaintiff that he
was being promoted to the position of sergeant and that, upon
completion of a one-year probationary period, he would receive
a permanent appointment as sergeant. During that one-year time
a new police chief demoted the plaintiff back to his original
rank of police officer. The plaintiff sought a "just cause"
hearing under Wis. Stat. section
62.13(5)(em) to contest the demotion. The police and fire
commission refused to grant him a hearing. The plaintiff sought
review in the circuit court, which granted summary judgment to
the defendants and dismissed the plaintiff's action.
In a decision authored by Judge Fine, the court of appeals
reversed the circuit court. The only issue before the appellate
court was whether the police and fire commission acted under
an incorrect theory of law in denying the plaintiff a hearing
under section
62.13(5)(em). It concluded that any promotion the plaintiff
received could not be taken away without the "just cause"
hearing required by the statute cited above. Any other rule,
said the court, would give to the appointing authority the limitless
power to circumvent the legislatively created "just cause"
protection against arbitrary action by simply making every promotion
temporary or probationary or otherwise terminable at will.
Judge Shudson filed a concurring opinion. Judge Curley dissented.
Family Law
Termination of Parental Rights - Abandonment of Child
-
Appeals of TPR Decisions
Carla B. v. Timothy
N., No. 99-0853 (filed 9 June 1999) (ordered published
21 July 1999)
The circuit court granted Carla's petition to terminate
the rights of Timothy to their daughter Jessica on the ground
of abandonment. Timothy filed a notice of intent to appeal within
the 30-day period prescribed by statute, but failed to serve
a copy of the notice on Carla and her counsel, as required by
Wis. Stat. section
rule 809.107(2). The court of appeals began its decision
in this case by addressing the threshold question of whether
the lack of service of notice of intent to appeal deprived the
court of appeals of jurisdiction to hear the case.
In a decision authored by Judge Brown, the court concluded
that in TPR cases the filing of the notice of intent to appeal
confers jurisdiction on the court of appeals. In a TPR appeal,
a person must file a notice of intent to appeal prior to the
notice of appeal. While in other civil cases it is the timely
filing of a notice of appeal that confers jurisdiction on the
court of appeals, in a TPR case it is the filing of the notice
of intent to appeal. Service does not initiate the appeal -
filing does. Accordingly, the court held that even though the
notice of intent to appeal was not properly served in this case,
the cause was legitimately before it.
Turning to the merits of the termination, Timothy claimed
that the circuit court erred in finding sufficient evidence of
abandonment because he had been prohibited by a family court
order from visitation with his daughter. Under Wis. Stat. section
48.415(1)(a)3, abandonment may be established by showing
that "the child has been left by the parent with any person,
the parent knows or could discover the whereabouts of the child,
and the parent has failed to visit or communicate with the child
for a period of six months or longer." The statute further
provides that the time period referred to above shall not include
periods during which the parent has been prohibited by judicial
order from visiting or communicating with the child.
The appellate court concluded that a court order prohibiting
visitation, but allowing communication, does not excuse a complete
lack of contact. Thus, Timothy's failure to visit Jessica,
if it indeed was a product of the judicial order, cannot be counted
in computing the time period referred to above. But he was not
prohibited from communicating with his daughter and he could
have done so to maintain contact. The time in which he did not
communicate with her can and does count in a determination of
abandonment.
In this case there was ample support in the record for the
circuit court to find abandonment. Timothy has not seen or spoken
with his daughter since 1993. Only after Carla petitioned to
terminate his parental rights in 1997 did he begin to write to
his daughter. Since then, he has sent her five or six letters.
Said the court of appeals, the record supports the finding that
sufficient grounds for abandonment were shown.
Regarding Timothy's argument that he was judicially foreclosed
from visiting his daughter, the court noted that the original
family court order did not actually deny visitation, but instead
created a condition precedent that Timothy had to fulfill before
he could exercise visitation. The family court order allowed
Timothy supervised visitation if he saw a therapist and made
such progress that the therapist could opine how visitation between
Timothy and Jessica would not be harmful to Jessica. While Timothy
testified that he did seek counseling after the divorce, he quit
some time in 1994. The appellate court was confident that Timothy's
abandonment of therapy was evidence of his abandoning his daughter
as well.
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