Vol. 77, No. 11, November
2004
Court of Appeals Digest
This column summarizes selected published opinions 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.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Administrative Law
Termination - Tenure - Contested Cases - Due Process
Marder v. Board of
Regents,
2004 WI App 177 (filed 10 Aug. 2004) (ordered published 28 Sept. 2004)
Marder, a tenured professor, was terminated by the University of
Wisconsin
Board of Regents (board) based on charges of unprofessional conduct.
The circuit
court remanded the matter to the board for further action, and both
Marder
and the board appealed.
The court of appeals, in an opinion written by Judge Peterson,
reversed and
remanded. Marder's first contention alleged that several improper ex
parte
communications between the board and other persons had occurred. The
court
rejected this claim. The court held that there was nothing improper
about the
board's contacts with the Office of the General Counsel. The board
received
advice on procedural matters and there was "no indication that
the Office
of the General Counsel so influenced the Board that the Board's
disposition
was `psychologically wedded' to the Chancellor's position"
(¶ 17).
Marder also alleged that one regent, Marcovich, had improper
contacts with
the chancellor during a plane ride in Marcovich's private plane.
"Marder
has merely speculated that because the Chancellor and Regent traveled
together,
they must have discussed the matter. However, the presumption is that
the Chancellor
and Regent took their responsibilities seriously, understood that
discussing
the matter would be improper and therefore avoided any mention of it.
Marder
has not made a strong showing that would rebut the presumption that
the Chancellor
and Marcovich acted in any other way than with honesty and
integrity" (¶ 19).
The court of appeals agreed with the board that tenure termination
hearings
are not "contested" cases within the meaning of Wis. Stat.
chapter
227. Although dismissal decisions are reviewable under chapter 227,
the conduct
of the hearing itself is governed by specific administrative
regulations authorized
by statute, not the contested case provisions of chapter 227
(see ¶¶ 21-25).
The board, however, violated the regulations when it met with the
chancellor
outside of Marder's presence. The applicable regulation did not
"expressly
state that a faculty member must be present at the consultation
between the
Board and the Chancellor" (¶ 28). Yet, when the regulation
was read
in light of other provisions, the court found it clear that
"Marder had
the right to hear and refute any allegations the Chancellor raised
during the
consultation" (¶ 29). The court also determined that
Marder's due
process right was violated if new and material information was
discussed during
this meeting (¶ 36).
The final issue addressed the appropriate remedy. The court rejected
Marder's
contention that the board was so tainted that the only remedy was to
reverse
its decision terminating Marder. The court of appeals said that the
circuit
court was in the best position to gauge whether any new and material
information
was discussed and, if so, the proper remedy.
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Criminal Law
Felony Murder - Offense is Stand-alone Crime - Not a Penalty
Enhancer
State v. Mason,
2004 WI
App 176 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
This case arose under Wisconsin's original truth-in-sentencing laws,
but
the court's conclusions also are applicable to the current
second-stage truth-in-sentencing
regime. The question before the court was whether the felony murder
statute
(Wis. Stat. § 940.03) creates a penalty enhancer that is added to
the
underlying crimes listed in that statute or instead describes a
stand-alone
unclassified crime.
The issue is significant because it affects the calculation of the
maximum
term of initial confinement to which a defendant convicted of felony
murder
is exposed. In a decision authored by Judge Lundsten, the court of
appeals
concluded that felony murder is a stand-alone unclassified crime. The
maximum
initial term of confinement for an unclassified crime is determined by
applying
a multiplier of 75 percent to the maximum term of imprisonment. The
maximum
term of imprisonment for felony murder is calculated by adding 15
years to
the maximum term of imprisonment for the underlying felony.
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Criminal Procedure
Withdrawal of Guilty Plea - Misinformation Provided to Defendant
Regarding
Collateral Consequences of Plea
State v. Brown,
2004 WI
179 (filed 31 Aug. 2004) (ordered published 28 Sept. 2004)
The defendant pleaded no contest to six criminal charges, including
child
enticement, causing a child to view sexual activity, exposing genitals
to a
child, and intimidating a victim. The parties specifically intended
the plea
agreement to include only charges that 1) would not require the
defendant to
register as a sex offender and 2) were not sexual predator offenses
that could
subject the defendant to post- incarceration commitment under Wis.
Stat. chapter
980.
After the defendant was sentenced, he learned that the plea
agreement did
not accomplish what the parties had intended. In fact, two of the
charges required
him to register as a sex offender, and a third was a sexual predator
offense.
He therefore moved to withdraw his no contest pleas, arguing that
because he
was actively misinformed of the consequences of his pleas and the
misinformation
went to the heart of the plea agreement, the pleas were not knowingly
and voluntarily
entered. The circuit court denied the motion.
In a decision authored by Judge Peterson, the court of appeals
reversed.
Reviewing applicable precedent, the appellate court observed that if
the trial
court does not disclose a direct consequence of a plea, a defendant
may withdraw
the plea as a matter of right. However, if the court does not disclose
a collateral
consequence of a plea (that is, a consequence that does not
automatically flow
from the conviction and may depend on the defendant's subsequent
conduct),
a defendant may not withdraw the plea on the basis of that lack of
information.
In this case the defendant sought to withdraw his pleas not because he
lacked
information about their consequences (which he acknowledged were
collateral),
but rather because he was misinformed about those consequences by both
his
attorney and the prosecutor with the acquiescence of the judge.
The appellate court concluded that the defendant's misunderstanding
of the
consequences of his pleas undermined the knowing and voluntary nature
of the
pleas. The plea agreement was purposefully crafted to only include
pleas to
charges that would not require the defendant to register as a sex
offender
or be subject to post-incarceration chapter 980 commitment. He entered
his
pleas believing that he would not be subject to those collateral
consequences.
His belief, however, was not the product of his own inaccurate
interpretation
but was based on affirmative, incorrect statements made on the record
by his
attorney and the prosecutor. The trial court did not correct the
statements.
Under these circumstances, the pleas were not, as a matter of law,
knowingly
and voluntarily entered, and the defendant must therefore be permitted
to withdraw
them. On remand, the case shall resume with a new arraignment on all
of the
original charges in the information.
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Sentencing - Agreement to Reopen and Amend Judgment if Defendant
Successfully
Completes Probation
State v. Dawson,
2004 WI
App 173 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
In this case the parties entered into a plea agreement that provided
that
the prosecutor would recommend five years of probation and that, if
the defendant
successfully completed probation, the state would move to reopen the
case and
amend the charge to a lesser offense. Pursuant to the agreement, the
defendant
entered a no contest plea and was placed on probation. At the time of
sentencing
the court did not order the reopen-and-amend provision to be
incorporated in
the judgment of conviction, but neither did it say anything to
indicate that
it had rejected that part of the plea agreement. On the contrary, the
court's
comments at sentencing conveyed that it was receptive to a motion to
reopen
and amend (see ¶ 15 n.2).
The defendant subsequently moved to withdraw his no contest plea,
arguing
that the reopen-and-amend provision of the plea agreement is legally
unenforceable
and that his plea was thus rendered unknowing and involuntary. The
circuit
court denied the motion.
In a decision authored by Judge Deininger, the court of appeals
reversed.
In reaching this conclusion, the court relied on State v.
Hayes, 167
Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992). "We concluded in
Hayes that
there was simply no statutory authority for a court to reopen a
judgment convicting
a defendant of a felony and amend it to a lesser charge" (¶
21). "Our
point in Hayes was that, once a charge becomes a conviction,
a prosecutor
may not amend it, because amending the charge would also
necessarily
require amending the judgment of conviction to reflect the reduced
charge,
which no statute authorizes either a prosecutor or trial court to
do" (¶ 18).
The court concluded that this is true regardless of whether a motion
seeking
to reopen and amend is filed before or after a probation term has
ended.
In this case the defendant established that his plea was not
knowingly and
voluntarily made because it was induced by the promise of a future
benefit
that could never be conferred. Thus, the appellate court concluded
that, in
order to avoid a manifest injustice, the defendant must be permitted
to withdraw
his plea.
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Elderly Defendant - Age as a Factor in Sentencing
State v. Stenzel,
2004 WI
App 181 (filed 11 Aug. 2004) (ordered published 28 Sept. 2004)
The defendant was convicted on two counts of homicide by intoxicated
use
of a vehicle and one count of injury by intoxicated use of a vehicle
and received
a 14-year sentence. He challenged the sentence on the ground that the
circuit
court erroneously exercised its sentencing discretion by placing too
much weight
on the gravity of the offense and ignoring the many positive
attributes of
the defendant's 78 years as a productive member of society. The
circuit court
denied his motion seeking modification of sentence.
In a decision authored by Judge Anderson, the court of appeals
concluded
that the circuit court properly exercised its discretion when
sentencing the
defendant. The court of appeals began its analysis by looking to the
recent
case of State v. Gallion, 2004 WI 42, wherein the Wisconsin
Supreme
Court reaffirmed a core sentencing concept: to properly exercise its
discretion,
a circuit court must provide a rational and explainable basis for its
sentences.
"[The trial court] must specify the objectives of the sentence
on the
record, which include, but are not limited to, the protection of the
community,
punishment of the defendant, rehabilitation of the defendant, and
deterrence
of others. It must identify the general objectives of greatest
importance,
which may vary from case to case. The circuit court must also describe
the
facts relevant to the sentencing objectives and explain, in light of
these
facts, why the particular component parts of the sentence imposed
advance the
specified objectives. Similarly, it must identify the factors that
were considered
in arriving at the sentence and indicate how those factors fit the
objectives
and influence the sentencing decision" (¶ 8) (citations
omitted).
The court of appeals indicated that, while Gallion
revitalizes sentencing
jurisprudence, "it did not make any momentous changes"
(¶ 9).
The weight to be given each factor, in particular, is still a
determination
within the wide discretion of the sentencing judge.
In this case the defendant criticized the circuit judge for placing
too much
weight on the gravity of the offense and ignoring significant positive
factors
weighing in the defendant's favor. He argued that the court
erroneously exercised
its discretion in not giving sufficient weight to his age as a
mitigating factor
and in not finding his life expectancy to be relevant.
The appellate court agreed that age is a factor that the circuit
court may
consider as an aggravating or mitigating factor when imposing sentence
and
that in this case the circuit court did consider the defendant's age.
However,
the circuit court did not place any weight on the defendant's age
because it
concluded that the gravity of the offense was enormous. The court
explained
at the post-conviction hearing that at sentencing it was required to
balance
the defendant's exemplary life against the gravity of the offense. The
court
also stated that because efforts at curbing drunk driving had not
succeeded,
it was necessary to send a message to the public that deaths caused by
intoxicated
drivers would be severely punished.
The appellate court concluded that the trial judge appropriately
exercised
discretion when he did not give the defendant's age the overriding and
mitigating
significance that the defendant would have preferred. The circuit
court has
the discretion to discuss only those factors it believes are relevant,
and
the weight that is attached to a relevant factor in sentencing is
within the
wide discretion of the sentencing court. In this case the judge
explicitly
linked the sentence imposed to the gravity of the offense and the need
to send
a message to the public. It was permissible for the court to impose a
stiff
sentence to emphasize society's concern with the gravity of the
offense. The
circuit court also appropriately considered the deterrence effect of
the sentence.
With regard to the defendant's life expectancy, the appellate court
"agree[d]
with other jurisdictions that [this factor], coupled with a lengthy
sentence,
while perhaps guaranteeing that the defendant will spend the balance
of his
or her life in prison, does not have to be taken into consideration by
the
circuit court. If the circuit court chooses to consider a defendant's
life
expectancy, then it must explain, on the record, how [this factor]
fits into
the sentencing objectives" (¶ 20).
Lastly, the appellate court concluded that the sentence imposed was
not so
excessive as to be unduly harsh and unconscionable.
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Family Law
Divorce Settlement - Impasse-breaking Authority Granted to Third
Party Regarding
Choice of Child's School
Lawrence v.
Lawrence, 2004
WI App 170 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
The issue in this case concerned the parents' agreement,
incorporated into
the divorce judgment, on the impasse-breaking authority for the choice
of their
child's school. The provision stated that "the guardian ad litem
and the
family court counselor shall have the right to break any impasse
between the
parties as to where [the child] should attend school" (¶ 1).
After
the guardian ad litem (GAL) and the family court counselor were called
upon
to make a choice regarding the child's school and did make such a
selection,
the mother appealed to the circuit court because she disagreed with
that selection.
She sought a court order regarding choice of school. The circuit court
denied
the motion, observing that there was no provision for court review of
the impasse-breaking
decision of the GAL and the family court counselor.
In a decision authored by Judge Vergeront, the court of appeals
affirmed.
It concluded that the impasse-breaking agreement approved by the court
and
incorporated into the divorce judgment is not against public policy
and is
consistent with public policy favoring settlement in divorce cases.
"It
does not limit the statutory authority of the court to review the
impasse-breaking
decision: like a decision made by the parent given sole power or
impasse-breaking
authority, there is no review by the court of the particular decision
made,
but the other parent may move to modify the grant of power under Wis.
Stat.
sec. 767.325 upon the requisite showing" (¶ 22). Said the
court, "[w]e
agree with the circuit court that the provision does not contemplate
court
review of the impasse-breaking decision and we conclude it does not
violate
applicable statutes or public policy" (¶ 1).
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Insurance
Reducing Clauses - Anti-stacking
Remiszewski v. American
Family Ins.
Co., 2004 WI App
175
(filed 4 Aug. 2004) (ordered published 28 Sept. 2004)
This appeal involves an insurance dispute arising out of an
automobile accident
that caused personal injury. The plaintiff was an insured for purposes
of underinsured
motorist (UIM) coverage in three policies issued to her father. On
summary
judgment, the circuit court ruled that the reducing clauses in all
three policies
were unenforceable, thereby prompting an appeal by the insurer. The
court also
ruled, however, that the policies' anti-stacking provisions were
valid, thereby
provoking the plaintiff to appeal.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed
in part and reversed in part. The court reversed the circuit court's
ruling
that the reducing clauses were unenforceable. The reducing clauses
stated that "`[t]he
limits of liability of this coverage will be reduced by: ... [a]
payment made
or amount payable by or on behalf of any person or organization which
may be
legally liable, or under any collectible auto liability insurance, for
loss
caused by an accident with an underinsured motor vehicle'"
(¶ 14).
The plaintiff contended that the phrase "amount payable"
amounted
to illusory coverage for purposes of Wis. Stat. section 632.32(5)(i),
but the
insurer argued that it invoked the "payment made" provision
in rejecting
the plaintiff's demand for full coverage. The court agreed with the
insurer. "The
fact that an insurance policy may include arguably ambiguous language
upon
which the insurer has not relied is of no consequence and will not
defeat the
right of an insurer to reduce its limits of liability under a valid
provision" (¶ 17).
In sum, the applicable reducing clause contained in the UIM
endorsement was
clear and unambiguous. "[N]either the structure and organization
of American
Family's policy, nor any provisions therein, renders the reducing
clause contextually
ambiguous" (¶ 24).
The court of appeals upheld the circuit court's ruling that the
anti-stacking
provisions were valid. Although the anti-stacking clause did not
contain the
complete text of section 632.32(5)(f), it nonetheless "clearly
conveys
that regardless of the number of policies held by a claimant, American
Family's
coverage will not exceed the UIM maximums" (¶ 27).
The court also rejected the argument that the anti-stacking
provision conflicted
with an allegedly "pro-stacking" clause in the UIM
endorsement and
that the anti-stacking provision should have been included in the
"Other
Insurance" section of the policy. "Given the structure of
the American
Family policies and the language of the two provisions, which state
distinct
purposes, we conclude that a reasonable person reading the
anti-stacking language
and the other insurance clause would understand that the anti-stacking
provision
is a limit of liability while the `Other Insurance' clause pertains to
the
manner in which American Family will address the existence of other
primary
coverage. A reasonable insured would not be misled or receive a false
signal
by the location or language of the anti-stacking provision"
(¶ 31).
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Real Estate Law
Lis Pendens - Discharge - Appeal
Zweber v. Melar
Ltd., 2004
WI App 185 (filed 3 Aug. 2004) (ordered published 28 Sept. 2004)
Zweber sued Melar Ltd., seeking specific performance of a real
estate contract
among other claims. Melar counterclaimed for slander of title. The
circuit
court dismissed Zweber's complaint on summary judgment but refused to
dismiss
Melar's counterclaim. Later, however, the circuit court granted an
order discharging
the lis pendens even though the counterclaim remained unresolved.
Zweber appealed.
The court of appeals, in an opinion written by Judge Hoover,
reversed because
a "lis pendens under Wis. Stat. § 840.10(1) must be
maintained as
long as there are pending proceedings in an action, including
appellate proceedings" (¶ 15).
A lis pendens serves "as notice of pending litigation that may
affect
real estate" (¶ 6). It furthers two objectives. First, a lis
pendens
preserves the status quo of the property pending the end of
litigation. Second,
it provides notice to third parties.
The court held that "based on the language of Wis. Stat. §
840.10
and the objectives of both common law and statutory lis pendens, a lis
pendens
may not be discharged until all opportunities for appeal expire or are
exhausted,
except as provided otherwise by statute" (¶ 10).
"Wisconsin
Stat. § 840.10(1) provides that subsequent purchasers `shall be
bound
by the proceedings in the action' to the same extent as the actual
parties.
In any given action, the parties would naturally be bound by the
results of
appellate proceedings. Since purchasers are to be bound as if they
were parties,
they too must be bound by appellate proceedings. Thus, discharging the
lis
pendens before the expiration or exhaustion of the appellate process
defeats
both the notice and preservation objectives" (¶ 11).
Moreover, "the discharge of the lis pendens under Wis. Stat.
§ 840.10(3)
is contemplated as the final, closing step in litigation the same way
that
the discharge of an attachment or a satisfaction of judgment concludes
a case.
After all the appeals are exhausted, either the plaintiff will have
prevailed
and the defendant will have to comply with the court's order regarding
disposal
of property or the defendant will prevail and the plaintiff's claim
against
the property will be extinguished. In either case, once the property
is handled
according to the judicial order, circuit court personnel will be able
to remove
the lis pendens. Even if the statute did not provide any manner for
discharge,
the lis pendens itself would naturally cease to operate once the
appellate
process has expired or been exhausted because there will no longer be
pending
litigation" (¶ 14).
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Real Property
"Takings" - Fair Value - Other Sales
Pinczkowski v. Milwaukee
County,
2004 WI App 171 (filed 31 Aug. 2004) (ordered published 28 Sept. 2004)
Pursuant to its "master plan" for expansion, Milwaukee
County began
condemnation actions against properties adjacent to Milwaukee's
airport. The
plaintiffs owned a large lot and a residence in an area that was zoned
for
commercial uses; thus, their use was "non-conforming." After
the
plaintiffs rejected the county's offers to purchase, the county
acquired the
property through eminent domain proceedings and paid the plaintiffs
about $350,000.
Dissatisfied with the award, the plaintiffs appealed.
The court of appeals, in an opinion authored by Judge Curley,
affirmed. First,
the trial court properly excluded evidence of the selling prices of
adjacent
properties, because case law "prohibits the introduction of
evidence of
the amounts paid for land purchased in settlement or contemplation of
condemnation" (¶ 15).
The majority rejected the plaintiffs' contentions that "foreign
law" supported
the admissibility of this proof and that the record reflected
"voluntary
sales." "Given the longstanding and well-established
precedent, we
see no need to look to foreign law as the facts here fall squarely
within the
rule and do not permit a different result. The sales of the adjacent
properties
were accomplished as part of the airport expansion and the sellers
were well
aware of the County's intentions to eventually acquire their land for
this
purpose" (¶ 20).
Second, the trial court also properly excluded a letter that the
plaintiffs
attempted to offer to show that a third party had some interest in
purchasing
their property and thus that there was a "private market for the
property" (¶ 23). "The
general rule in Wisconsin is that unaccepted offers are impermissible
as proof
of fair market value in condemnation cases. However, in certain
situations,
fair market value may be proved using offers to purchase, but only
when they
are `made with actual intent and pursuant to actual effort to
purchase'" (¶ 27)
(citation omitted). The record here demonstrated that the "letter
was
conditional and had expired, it does not appear to have been an offer,
and
its use as an indication of fair market value would, indeed, have been
purely
speculative" (¶ 29).
Finally, the plaintiffs were not entitled to a "housing
replacement
payment" under applicable regulations. [This part of the opinion
is fact-intensive
and space limitations preclude further discussion.]
Judge Wedemeyer dissented; he would have permitted the introduction
of evidence
concerning the other sales on the ground that these sales were
voluntary, arms-length
transactions.
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Torts
Economic Loss - "Product" - Integrated System Rule -
Invited Error
Linden v. Cascade Stone
Co.,
2004 WI App 184 (filed 17 Aug. 2004) (ordered published 28 Sept. 2004)
The Lindens built a new house, which they moved into in November
1999. In
June 2000 they sued various subcontractors (and others) for moisture
damage
sustained by their home. The complaint alleged tort and contract
violations.
The circuit court granted summary judgment in favor of the
subcontractors.
The court held that the economic loss doctrine precluded the tort
claims against
all parties and that an insurance policy provided no coverage for a
key contract
claim. The Lindens appealed.
The court of appeals, in an opinion written by Judge Peterson,
affirmed.
First, the court held that the economic loss doctrine barred the tort
claims.
Although the plaintiffs argued that their claim related to
"services," the
court agreed with the defendants that the transaction's predominant
purpose
concerned "the sale of a product - a house" (¶ 10).
"Although
the Lindens' complaint is framed in negligence, their claim is that
they did
not get what they bargained for: a fully functional home without water
infiltration
problems. All damages are economic losses as the result of a failed
product" (¶ 17).
In response to the Lindens' argument that construction of their home
involved
more services than products, the court explained that the
"predominant
purpose test is not a fixed calculation weighing dollars or
percentages";
instead, courts consider contracts' "`thrust, their
purpose'" (¶ 19).
Analyzing the contract and the billings, the court was satisfied that
the Lindens
had entered into a "product contract" (¶ 22). In
response to
the Lindens' contention that the moisture problem had damaged
"other property," the
court held that the economic loss doctrine nonetheless applied because
of the
integrated system rule. "The stucco siding and roof serve no
independent
purpose other than as part of the house. Accordingly, they are
component parts
of the integrated system - the house. Any damage to other portions of
the house
does not constitute damage to `other property'"(¶ 26).
The court also rejected the Lindens' argument that an insurance
policy covered
the contract claim against one subcontractor, because, the court said,
the
Lindens "invited any error by the trial court" (¶ 27).
Specifically,
the Lindens conceded the issue of coverage based on their
"understanding
of the coverage of commercial general liability policies" (¶
29).
Finally, the circuit court properly exercised its discretion when it
denied
the Lindens' request to amend their pleadings to add a contract claim
against
another party.
Clergy Abuse - Statute of Limitation
Schauer v. Diocese of Green
Bay,
2004 WI App 180 (filed 3 Aug. 2004) (ordered published 28 Sept. 2004)
Buzanowski allegedly molested the plaintiff in 1988 when the
plaintiff was
10 years old. At the time, Buzanowski was a priest. Although the
plaintiff
reported the sexual abuse to the police in 1990, no charges were
issued, and
the police warned the plaintiff not to say anything about the
allegations.
Allegedly the diocese threatened to bring a defamation action against
the plaintiff
if the accusations were made public. Buzanowski later admitted to
molesting
14 other boys between 1969 and 1988. The plaintiff brought this action
against
the diocese and the school that employed Buzanowski. The circuit court
granted
summary judgment to the defendants on the ground that the plaintiff's
claims
were time barred.
The court of appeals, in an opinion authored by Judge Peterson,
affirmed
in part and reversed in part. The plaintiff first argued that the
action was
timely because Wis. Stat. section 895.70(2) extends the statute of
limitation
for up to 15 years when the abuse occurs during "therapy."
Nonetheless,
case law holds that section 895.70 does not extend liability to the
therapist's
employer. Thus, the statute provides no claim against the diocese or
the school,
only against Buzanowski.
The court of appeals reversed and remanded the plaintiff's equitable
estoppel
claim because the trial judge failed to consider this argument.
Factual investigation
was needed to determine whether the diocese knew of the priest's
earlier assaults,
whether the diocese and the school had threatened the plaintiff,
"what
caused the inducement to delay to cease, and whether the delay was
reasonable" (¶ 18).
Finally, the court of appeals held that controlling case law
defeated the
plaintiff's argument under the discovery rule. "[The plaintiff]
knew Buzanowski
through church and school and knew that Buzanowski engaged in sexual
contact
with him. [The plaintiff] discovered or, in the reasonable exercise of
diligence,
should have discovered that he was injured at the time of the assault.
Thus,
[the plaintiff's] claim of negligent retention and supervision against
the
diocese and the school accrued at the same time as his claims against
Buzanowski.
Consequently, as a matter of law, the discovery rule does not apply to
his
claim against the diocese and the school" (¶ 26).
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Wisconsin Lawyer