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    Wisconsin Lawyer
    October 01, 1997

    Wisconsin Lawyer October 1997: Court of Appeals Digest

     


    Vol. 70, No. 10, October 1997

    Court of Appeals Digest

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

    | Appellate Procedure | Civil Procedure | Criminal Procedure | Insurance | Motor Vehicle Law | Municipal Law


    Appellate procedure

    Stipulations - Reserving Rights - Waiver

    Cascade Mountain Inc. v. Capitol Indemnity Corp., No. 96-2562 (filed 3 July 1997) (ordered published 26 Aug. 1997)

    The plaintiffs sued the defendants for the settlement amount, costs and attorney fees plaintiff paid in defending a personal injury action in federal court. The trial judge granted defendants' summary judgment dismissing most of the claims but denied it on a "relatively minor component of one claim." To avoid the expense of trial, the parties agreed to enter a $20,000 judgment against the defendants and further stipulated that plaintiffs retained the right to appeal the partial summary judgment. If the dismissal of the principal claims was affirmed, plaintiffs could execute on the $20,000 judgment. If the summary judgment rulings were reversed, however, the parties would expunge the judgment and try all claims.

    In a per curium decision, the court of appeals held that plaintiffs waived the right to appeal by stipulating to the entry of a conditional judgment. (The court raised the issue sua sponte.) A party waives the right to appeal in civil cases "where that party has caused or induced a judgment to be entered or has consented or stipulated to the entry of judgment." In this case if the court reversed the summary judgment findings, the plaintiffs could try their entire case, including the claim they could have tried earlier but elected not to. Thus, the court of appeals could be forced to review the same issue twice where only one appeal should suffice. The court was concerned that by condoning such stipulations parties would circumvent waiver and finality rules, "thereby converting discretionary, interlocutory appeals into appeals as a matter of right from 'final' orders or judgments."

    Civil procedure

    Default Judgments - Reopening - Dismissals with Prejudice

    Haselow v. Gauthier, No. 96-3589 (filed 31 July 1997)(ordered published 26 Aug. 1997)

    Plaintiff obtained a default judgment against the defendant. The trial judge later granted the defendant's motion to reopen the judgment and to dismiss the action with prejudice. Plaintiff appealed on the ground that the default judgment should not have been reopened and that his claim should not have been dismissed with prejudice.

    The court of appeals, in an opinion written by Judge LaRocque, affirmed in part and reversed in part. The trial judge properly exercised his discretion in reopening the default judgment. The record established that the plaintiff's process server made just one unsuccessful effort at personal service. Although the process server was told that the defendant was living or working in Hawaii, there were no further efforts to locate the defendant. The single effort to obtain personal service justified the trial judge's finding of a lack of due diligence.

    The trial judge did not, however, have the authority to dismiss the action with prejudice. The motion was presented and heard ex parte, without notice to the plaintiff. First, "a motion to dismiss with prejudice cannot be heard ex parte." Second, the judge abused his discretion in dismissing the case with prejudice. A "drastic sanction" is appropriate only on finding egregious conduct or bad faith, which this record failed to demonstrate.

    Incarcerated Litigants - Case Management

    Schmidt v. Schmidt, No. 96-3699 (filed 16 July 1997) (ordered published 26 Aug. 1997)

    This case concerns the management of civil litigation when one of the parties is incarcerated. In an opinion authored by Judge Brown, the court of appeals examined how a circuit court should resolve the problem of moving a civil case towards resolution considering that the incarcerated party may not be able to appear personally at the proceedings.

    When a court faces a case in which one of the litigants is incarcerated, a preliminary question it must resolve is whether the case still can move toward resolution or if it must be held in abeyance until the incarcerated party is released. If the court finds that the case should proceed and that to do so the incarcerated party must appear in person, it has the authority to order that the incarcerated person be brought to court. This is achieved by issuing a writ of habeas corpus ad testificandum.

    These two determinations - if the case should proceed and how it should proceed - are discretionary choices that rest on a variety of factors. The court of appeals concluded that the trial judge needs to inquire on three different issues: 1) the nature of the case; 2) the practical concerns raised by having the prisoner appear; and 3) the alternative methods of providing the prisoner with access to the hearings.

    When a court assesses the nature of a case, it should be concerned with two matters. First, it must gauge how the incarcerated party's confinement may affect the case outcome. For instance, the intensity of discovery might be important. An incarcerated person faces obvious impediments to conducting discovery. Thus, if the case involves complex factual details, the only solution may be to hold the case. Moreover, even if the factual disputes are comparatively simple and narrow, the court still must consider how much of the evidence will consist of the incarcerated person's testimony and how his or her presence might otherwise affect the fact finder's ability to make its credibility determination. Second, the court should be concerned with the effects of the litigation on the nonincarcerated party and third parties. For example, in an action affecting the family, such as a divorce or custody hearing, a decision to hold the matter in abeyance until the incarcerated party is released might have negative effects on the family as a whole.

    With respect to concerns raised by having the prisoner appear, the state has a strong interest in maintaining the confinement of incarcerated persons. Transporting an incarcerated individual to the courthouse and having that person attend a proceeding creates a risk to public safety and of escape. Thus, the trial court must measure whether moving the incarcerated person will significantly increase these risks. In fact, transporting a specific individual might so increase these risks that the possible benefits of being present during a proceeding would not outweigh those risks. In such a scenario, the court should especially consider the alternative means through which that person can present his or her case to the court while remaining in confinement.

    With respect to those alternatives, Wisconsin recognizes the utility of using technology in the trial process; and the court of appeals expects that judges will rely heavily upon these advances to keep these kinds of cases progressing to resolution. For example, the incarcerated party may be able to conduct discovery by telephone. The incarcerated party also may be afforded access to evidentiary hearings and arguments through a telephone link or through an audiovisual link. Technology, however, is not the only alternative to consider. Even if these tools are not available, the incarcerated party's counsel (if he or she has counsel) can help move the case. The trial court must determine if counsel can effectively develop the incarcerated party's case without that party's attendance.

    In applying the factors described above, the judge must recognize that the Wisconsin Rules of Civil Procedure are forward-looking. The goal underlying these rules is to move litigation to resolution. Should either party believe that the proceedings must be adjourned, that party has the burden of establishing the grounds for such delay. Of course, both parties may agree that the litigation should proceed. In that case, the court will focus on solving how the case should proceed. The other important factor the court must consider is that the incarcerated person should remain in confinement. Accordingly, the party seeking the incarcerated person's presence must show why his or her presence is necessary and why the possible alternatives to having him or her appear in person are not appropriate. In those cases where both parties want the incarcerated person to appear, the court must protect the state's interest in having the incarcerated person remain in confinement.

    As a result of advances in communication technology, the court of appeals anticipates that a trial judge rarely will determine that the incarcerated party must be brought to the proceedings. Nonetheless, in that rare occasion, the appeals court recognizes that the costs of transporting the incarcerated person to the proceeding will be an important issue to the court and litigants because the incarcerated party likely will be indigent. The rules relating to the costs associated with transporting incarcerated persons to proceedings are set forth in section 782.45(1) of the Wisconsin Statutes. The court's opinion in this case concludes by analyzing those rules and other issues relating to payment of transportation costs.

    Criminal procedure

    Forfeitures - "Excessive Fines" Analysis

    State v. Hammad, No. 95-2669 (filed 15 July 1997) (ordered published 26 Aug. 1997)

    The State of Wisconsin brought a statutory civil forfeiture action (Wis. Stat. 973.075 et seq.) claiming that a vehicle owned by the defendant was used to transport property received in the commission of a felony. The forfeiture action evolved out of a police "sting" operation and the defendant used the vehicle to transport some of the "stolen" items he purchased from the police. The circuit court granted the state's demand for forfeiture of the car, finding that the vehicle had been used to transport property received in the commission of a felony.

    On appeal the critical issue was whether forfeiture of the vehicle violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Though the U.S. Supreme Court has never held that the Excessive Fines Clause applies to the states through the Fourteenth Amendment, the court in this case proceeded on the assumption that it does.

    The U.S. Supreme Court has expanded the breadth of the Excessive Fines Clause to include civil forfeiture actions that are commenced by a government and that are, in whole or in part, driven by a desire to punish a person. It has set forth a two-part test to determine whether a forfeiture violates the Excessive Fines Clause: 1) whether the forfeiture can be considered a punishment, and 2) whether the forfeiture is constitutionally "excessive."

    The court of appeals, in a decision authored by Judge Curley, concluded that forfeiture of a vehicle used to transport property used or to be used or received in the commission of a felony has a punitive purpose because the Legislature has chosen to tie forfeiture directly to the commission of felony offenses. With respect to whether the forfeiture in this case was "excessive" within the meaning of the Eighth Amendment, the court applied the standards articulated in State v. Seraphine, 266 Wis. 118, 62 N.W.2d 403 (1954), wherein the Wisconsin Supreme Court considered whether a fine violated Article I, section 6 of the Wisconsin Constitution:

    "In determining whether a fine authorized by statute is excessive in the constitutional sense, due regard must be had to the object designed to be accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and nature of the act for which it is imposed, and in some instances, to the ability of the accused to pay. In order to justify the court in interfering and setting aside a judgment for a fine authorized by statute, the fine imposed must be so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances."

    When measured against the Seraphine standard, the court concluded that the forfeiture of the defendant's automobile in this case was not "excessive." One of the clear objects of the statute authorizing forfeiture is to deter and punish those who would commit felonies and use their vehicles to accomplish their criminal purpose. The public interest, said the court, is both obvious and significant because the use of a vehicle in the course of a felony frustrates law enforcement by permitting the guilty to quickly exit, or, as here, to abscond with the stolen goods. Other factors in the court's analysis included the fact that the vehicle's value was significantly less than the maximum fine allowable for the underlying felony (attempting to receive stolen property). The forfeiture was neither disproportionate to the crime nor unusual in nature. As such, it does not shock public sentiment nor does it violate a reasonable person's sense of justice.

    Confessions - Search and Seizure - Exclusionary Rule

    State v. Kiekhefer, No. 96-2052-CR (filed 23 July 1997) (ordered published 26 Aug. 1997)

    The defendant was arrested and prosecuted for a variety of drug offenses after police entered and searched his home. The trial court denied his motion to suppress evidence. The court of appeals, in an opinion written by Judge Anderson, reversed the defendant's conviction for possession of marijuana. The court's opinion reads like a veritable catalogue of how not to conduct a criminal investigation. And like all such cases, the opinion is extremely fact-intensive and only a summary of the court's principal conclusions is possible.

    First, police violated the defendant's Miranda rights. Upon entering his bedroom, they handcuffed him and asked about the location of drugs in the room. Only after police had searched the room and found incriminating evidence (drugs and guns) did they advise him of his Miranda rights. The state argued that under Oregon v. Elstad (1985) the court should suppress only the defendant's statements to police, not the physical evidence recovered as a result of the Miranda-defective statements. Although this posed an issue of "first impression" in Wisconsin, the court declined the invitation because it also found that the statements were obtained involuntarily in violation of the defendant's due process rights. The involuntariness arose from a host of factors including the officers' show of force, the failure to advise the defendant of his right to withhold consent to search and their "posturing" about occupying his house while they obtained a search warrant. In particular, "the agents had no right to imply that they could sit in [the defendant's] home for two hours while a warrant was obtained." Since the consent was obtained involuntarily, all physical evidence seized during the search was suppressed.

    The court also suppressed the defendant's subsequent "warned" written confession. Only a two-hour break separated the coerced oral statements from the written statement. They both took place at the site of the arrest (his home) and were conducted by the same group of officers. Thus, the state failed to demonstrate a valid waiver of Miranda rights.

    Second, the court held that besides the Fifth Amendment violation, the evidence was obtained in violation of the Fourth Amendment. The state failed to demonstrate that the warrantless entry into the home was proper. The trial judge committed "clear error" in finding consent to enter because the agents testified that they never even asked for such permission. Nor did exigent circumstances justify the entry or search. The court rejected fact-intensive arguments grounded in a "reasonable fear" for the officers' safety and concerns that evidence might be destroyed.

    Finally, the state argued that the attenuation doctrine justified use of the guns and the drugs. The state, however, failed to convince the court that attenuation was appropriate in light of: 1) the short time lapse between the illegal entry and the seizures, 2) the complete absence of intervening circumstances, and 3) the purpose and flagrancy of the misconduct. In the court's words, "[t]he entire investigative procedure of these agents had a 'quality of purposefulness' to it."

    Insurance

    Bad Faith - Nondelegable Duty - Insurer's Defense Attorney - Punitive Damages

    Majorowicz v. Allied Mutual Ins. Co., No. 96-3088 (filed 29 July 1997) (ordered published 26 Aug. 1997)

    This insurance bad faith case originated in a personal injury action arising out of a car accident. The victim in the underlying personal injury case won a verdict against the insurer and the insured for $221,000. The insured's policy limits were $100,000, which left her with a $121,000 excess judgment. The insured then sued her insurer for bad faith. A jury found that the insurer breached its duty of good faith and awarded more than $260,000 in damages.

    The court of appeals, in an opinion written by Judge Mohr, affirmed in part and reversed in part. First, the insurance company argued that it had no control over the "independent professional judgment" of the attorney it hired to defend the underlying personal injury case. The issue had not been expressly decided in Wisconsin cases. Without deciding whether the acts of hired counsel may be imputed to the insurance company in every bad faith case, the court held that on these facts the company's duty to act in good faith was nondelegable. The insurer had failed to properly investigate the claim. The insurer retained the duty to act in good faith even when it relied upon its attorney's litigation decisions.

    The court also discussed several other issues. The record in the case adequately supported the jury's finding of bad faith. The accident victim had demanded the policy limits one month before trial. Despite damaging evidence to the contrary (a negative independent medical examination), the defense attorney told the insured that there was "little chance" of an excess verdict.

    The punitive damages award also was appropriate. The law does not require expert testimony on all punitive damages claims. Here the jury heard expert testimony on the bad faith issue which also bore on the punitive damages: "The disregard of a herniated disc with admitted liability could lead the jury to find an intentional disregard of [the insured's] right to a fair and prompt disposition of her claim." A reckless disregard for her rights was supported by evidence that the insured was not informed that policy limits were demanded or the possibility of an excess verdict - as well as the "suggestion" not to hire her own lawyer.

    The court also held that a modified jury instruction on bad faith was appropriate, that the insured was entitled to attorney fees as actual damages in her excess verdict bad faith case (but not on the punitive damages award), and that section 807.04(4) of the Wisconsin Statutes "imposes penalty interest upon the insurer for the amount recovered against it, including punitive damages from the date of the offer."

    Bad Faith - Judicial Estoppel - Claims Preclusion

    Davis v. American Family Ins. Co., No. 97-0133 (filed 15 July 1997)(ordered published 26 Aug. 1997)

    Davis was injured in a 1989 car accident in Minnesota. The responsible driver was insured by State Farm for $100,000/$300,000 liability. Davis settled the liability claim with State Farm for $77,500, which was less than the policy limits. Davis's insurer, American Family, denied his claim for underinsured (UIM) coverage. Davis sued American Family in Minnesota, which permits insureds to sue for UIM benefits after settling for less than the limits. Wisconsin law precludes such claims. The Minnesota court ruled that Davis was entitled to coverage and awarded him $100,000 in UIM coverage toward the more than $370,000 in damages that he suffered.

    In 1995 Davis began this bad faith action against American Family in Wisconsin. American Family moved for a stay so that the action could be moved to Minnesota, where the UIM case had been tried. The circuit court granted the motion but in 1996 a Minnesota court dismissed Davis's claim because Minnesota does not recognize the tort of bad faith. Back in Wisconsin, the circuit court also granted summary judgment dismissing the claim based on claim preclusion and judicial estoppel.

    The court of appeals, in an opinion written by Judge Cane, reversed. First, claim preclusion was inapplicable where the trial court granted an order staying the Wisconsin proceeding but permitting Davis to return with his bad faith "to the extent that the claim and prosecution are unavailable in Minnesota." Second, judicial estoppel also was unavailable. Judicial estoppel bars parties from asserting inconsistent positions in legal actions. There was nothing inconsistent about Davis's decision to pursue the UIM issue in Minnesota and the bad faith claim in Wisconsin. Finally, the court rejected American Family's argument that the statute of limitations barred the action. There was an issue of fact as to when the bad faith claim accrued; thus, summary judgment was inappropriate.

    UIM Coverage - Settlements - Failure to Give Notice - Burden of Proof

    Ranes v. American Family Ins. Co., No. 97-0441 (filed 31 July 1997)(ordered published 26 Aug. 1997)

    Ranes was injured in a car accident. Ranes later settled with the other driver and the liability insurer but failed to notify American Family, which provided him with underinsured motorist (UIM) coverage. Later Ranes filed this action claiming UIM benefits against American Family. The trial judge dismissed the claim because Ranes failed to provide notice as purportedly required by Vogt v. Schroeder, 129 Wis. 2d 3 (1986).

    The court of appeals, in an opinion written by Judge Myse, reversed. Vogt held that UIM insurers were entitled to notice of the potential settlement of the underinsured's claim against the tortfeasor. Whether a failure to give notice bars the UIM claim absent prejudice to the insurer was left unresolved. Addressing this issue of first impression, the court adopted the majority rule "that the failure to give notice will not bar an underinsured motorist claim unless the insurer has suffered some prejudice from the failure to receive such notice."

    The court also delineated the burdens of proof on such issues. "The burden is to persuade the factfinder by a preponderance of the evidence that no prejudice has been suffered as a result of the failure to give notice. The process should envision an insurance carrier asserting the affirmative defense of lack of notice of having the burden to demonstrate the lack of notice. Once lack of notice has been demonstrated, the insured must produce sufficient evidence to satisfy the factfinder by a preponderance of evidence that the insurer suffered no prejudice as a result of the failure to give such notice. If the insured is able to bear his burden of proof, the failure to give notice will have no affect on the rights under the insurance policy. If the insured fails to demonstrate a lack of prejudice, the failure to give notice will act as an absolute bar to underinsured motorist benefits as provided by the insurance policy."

    Liability Insurance - Endorsements Limiting Liability - Format Required

    Smith v. Dodgeville Mutual Ins. Co., No. 96-3352 (filed 26 June 1997) (ordered published 29 July 1997)

    Smith purchased farm insurance from Dodgeville Mutual through a local insurance agent. He relied upon the agent to complete the insurance application for him, although he signed it himself. According to the plaintiff, the agent failed to ask, and therefore the application form failed to disclose, that the plaintiff had had insurance canceled in the past. Dodgeville issued a policy that included fire and wind coverage for certain buildings and equipment on the plaintiff's farm. The policy incorporated preprinted form endorsements that stated the contract would be void in the event that Dodgeville relied upon any material representations made in the application. The plaintiff's application was not attached to the policy.

    While the Dodgeville policy was in effect, a fire at the Smith farm destroyed a machinery storage shed and its contents, causing an estimated $370,000 in damages. The face amount of the policy was sufficient to cover the loss. However, while investigating the claim, Dodgeville discovered the inaccuracy in the plaintiff's application regarding past coverage. Referencing the preprinted form endorsements of the policy, Dodgeville denied coverage on the ground that the application contained a material misrepresentation upon which it had relied. The plaintiff sued Dodgeville to collect on the policy and he sued the agent for failure to procure the insurance coverage he requested. He settled with Dodgeville for $l00,000 and dismissed the insurance company from the suit. On summary judgment the circuit court dismissed the plaintiff's negligence claim against the agent. It concluded that Dodgeville could not deny coverage based upon the plaintiff's misrepresentation in the application, because Dodgeville had not complied with the requirements of section 631.11(1)(a) of the Wisconsin Statutes. Therefore, the plaintiff could not prove that the agent failed to provide the insurance coverage he requested, despite the fact that the plaintiff had settled for substantially less than the stated policy limits.

    In an opinion authored by Judge Roggensack, the court of appeals affirmed. The statute cited above (in its 1991-92 version applicable here) provided that "no statement, representation or warranty made by any person in the negotiation for an insurance contract affects the insurer's obligations under the policy unless it is stated in the policy, or in a written application signed by such person, a copy of which is made a part of the policy by attachment or endorsement." [The statute has since been reworded.] The parties agreed that the plaintiff's statement that his insurance coverage had never been canceled or a request for coverage denied was not contained in the policy. Nor was his application physically attached to the policy. The parties disagree, however, about whether the plaintiff's application was made a part of the policy by "endorsement," as that term is used in the statute.

    The court concluded that this appeal would turn on whether the preprinted form endorsement Dodgeville attached to the plaintiff's policy was sufficient to satisfy the statute's requirements. Though it is not uncommon for some insurance policy provisions to be contained in the endorsements that follow the main body of the policy, the statute limits when misrepresentations of the insured made in negotiating the policy may become part of the policy through such an endorsement. The statute provides that no statement made in negotiating an insurance policy will limit the insurer's liability to pay under the policy, unless the insurer follows the method provided by statute for making those statements a part of the contract. With respect to the endorsement method of incorporating the insured's representations into the contract, the statute clearly and unambiguously evinces a legislative intent to compel an incorporation of the actual statements made by the applicant who has become an insured under the policy at issue. In general, preprinted form statements are insufficient to protect the insured, as they would not give adequate notice to the insured about the complete and specific terms of the purchased policy. To make a written application form a part of an insurance policy by "endorsement," the insurer must specifically write across the application itself that it is an endorsement and part of the policy.

    In this case the defense Dodgeville raised to coverage was barred by the provisions of section 631.11(1)(1a) and, therefore, the policy was binding as a matter of law. Accordingly, no duty was breached by the agent who did in fact procure the insurance coverage the plaintiff requested.

    Motor vehicle law

    Intoxilyzer Tests - Presumption of Accuracy

    State v. Baldwin & State v. Busch, Nos. 96-1013-CR and 96-2822 (filed 2 July 1997) (ordered published 26 Aug. 1997)

    These consolidated cases involved the admissibility of breath test results under a statute that accords the tests prima facie accuracy under certain conditions. The court reversed one conviction for operating a motor vehicle with a prohibited alcohol concentration (OMVPAC) because the state failed to comply with the mandate in the statutes and the administrative code. The court upheld the other defendant's conviction for operating a motor vehicle while intoxicated (OMVWI) because he failed to argue that there was no evidence supporting his conviction.

    Attorneys handling drunk driving cases will want to closely consult Judge Anderson's opinion. Various statutes and administrative rules provide for the automatic admissibility of breath test results and also cloak such tests with a presumption of accuracy. The rules require, however, that the specified instruments be evaluated and approved before regular use. The record in this case disclosed that the state replaced parts of an approved model with parts belonging to another model. Although it argued that the "hybrid machine" remained the same, the state did not evaluate the instrument before it was put into regular use - as required by statute.

    Despite the statutory violation, the court refused to suppress the breath test results. Rather, at the new trial "prosecutors who wish to rely upon the breath tests results will be required to present evidence of the instrument's scientific accuracy and reliability and prove compliance with accepted scientific methods as a foundation for the admission of the test results."

    Municipal law

    Zoning - Area Variances - "Unnecessarily Burdensome" Standard

    State v. Kenosha County Board of Adjustment, No. 96-1235 (filed 9 July 1997) (ordered published 28 Aug. 1997)

    This case concerns zoning variances. The party seeking a variance must prove that an unnecessary hardship will result if the variance is not granted. The critical issue before the court of appeals was identifying the proper test for measuring unnecessary hardship in an area variance case.

    The parties disagreed on the proper test to be employed. The state urged that the proper analysis is under the "no feasible use" test in which the applicant for a variance must show that no feasible use can be made of the property without a variance. The local board of adjustment contended that the proper test is the "unnecessarily burdensome" test under which the inquiry is whether compliance with the strict letter of zoning restrictions would render conformity with such restrictions unnecessarily burdensome.

    Section 59.694(7) of the Wisconsin Statutes provides that the board of adjustment has the power "to authorize upon appeal in specific cases variance from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done."

    The court of appeals noted that this statute speaks of "unnecessary hardship" as the test for a variance grant. It does not speak of the "no feasible use" test or the "unnecessarily burdensome" test. Nor does the statute make any distinction between use and area variances.

    However, in Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), the supreme court spoke to both area variances and use variances and, despite the statute's uniform language, used different language when reciting the "unnecessary hardship" test for each. As to area variances, the court used the "unnecessarily burdensome" test and, as to use variances, the "no feasible use" test.

    This case involved an area variance and the board of adjustment applied the "unnecessarily burdensome" standard. This, said the appellate court, was the proper approach.

    Zoning - Nonconforming Uses - Public Nuisances

    Town of Delafield v. Sharpley, No. 96-2458 (filed 9 July 1997) (ordered published 28 Aug. 1997)

    Paul Sharpley Sr. purchased several acres of wooded property in 1945 and built his home there. In 1969 Paul Sharpley Jr. purchased an acre of his father's land and built his residence there. Since 1960 both have engaged in various businesses on the properties and have maintained equipment and vehicles there.

    The Town of Delafield received numerous complaints over the past years from residents and real estate developers concerning the condition of the Sharpley properties. An investigation revealed that there were many vehicles located on their land, such as automobiles, trucks, snowmobiles, farm machinery and so on. A majority of these vehicles were either junked, wrecked, abandoned or disassembled.

    The Sharpleys were given notice that their properties were not in compliance with several town ordinances and, when they failed to correct the problems, the town filed this action alleging that they violated its public nuisance ordinances.

    The town filed a motion for summary judgment and a motion to dismiss the Sharpleys' counterclaims. The trial court granted the town's motion on all causes of action with one exception and it dismissed the counterclaims. A jury trial was held solely on the issue of whether the Sharpleys had a valid and legal nonconforming use of their respective properties that predated the town's ordinances. The jury found for the Sharpleys and, in motions after verdict, the trial court changed certain answers in the verdict, finding that the Sharpleys did not have a valid and legal nonconforming use of their properties.

    The court of appeals, in a decision authored by Judge Anderson, affirmed. It began its analysis by noting that, although the trial court granted summary judgment on all causes of action, except for the issue of whether the Sharpleys had a valid and legal nonconforming use of their respective properties that predated the town's ordinances, the trial court was not required to reach that issue because its earlier conclusion on summary judgment that the Sharpleys created a public nuisance was dispositive. A valid, nonconforming use, irrespective of its duration, may be prohibited or restricted when it also constitutes a public nuisance or is harmful to the public health, safety or welfare.

    The Wisconsin Supreme Court has recognized that a nonconforming use existing when a zoning ordinance goes into effect cannot be prohibited or restricted by statute or ordinance, where it is a lawful business or use of property and is not a public nuisance or harmful in any way to the public health, safety, morals or welfare. A public nuisance always can be abated.

    In this case the trial court granted summary judgment in favor of the town, finding that it was undisputed that the Sharpleys created a public nuisance by maintaining their property in the manner described. If this determination was correct, then whether they had a valid and legal nonconforming use of their respective properties that predated the town's ordinances was irrelevant. The court went on to hold that the grant of summary judgment was proper inasmuch as Paul Sr. failed to oppose the town's affidavits and Paul Jr.'s affidavit failed to set forth specific facts that disputed the public nuisance violation described in the town's affidavit and exhibits.


    This column summarizes all decisions of the 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.



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