Court of Appeals Digest

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

| Criminal Law | Criminal Procedure | Evidence | Family Law |
| Guardianship | Highways | Insurance | Torts |

"Other Acts" – Defense Use – Identification

State v. Scheidell, No. No. 97-1426-CR (filed 1 July 1998) (ordered published 26 Aug. 1998)

Scheidell was convicted of armed burglary and attempted sexual assault. The prosecution alleged that he broke into a woman's apartment while she slept and attempted to rape her. Scheidell denied any involvement and claimed to have been sleeping when the crime occurred. The trial judge refused to admit evidence that five weeks after this offense another woman was assaulted under strikingly similar circumstances. The defense theory was that the same man was responsible for both assaults.

The court of appeals, in an opinion written by Judge Anderson, reversed in a significant opinion that establishes a test for the admissibility of "other acts" evidence used by the defense on the issue of identification. "Other acts" evidence is governed by section 904.04(2) of the Wisconsin Statutes. The defendant is permitted to use section 904.04(2) to exonerate himself. The court distinguished case law limiting the use of "other acts" by third parties to show that the third party had a motive to commit the charged offense. It also rejected the State's argument that the defense should be bound by the same stringent standards that limit the prosecution's use of other acts evidence to show the defendant's identity. The court held "that when a defendant seeks to offer 'other acts' evidence regarding identification, prejudice is no longer a fact and the trial court should use an admissibility standard that concentrates on the simple relevancy as to guilt and innocence." Under section 904.03, the trial court should admit the other acts evidence unless its probative value is substantially outweighed by confusion of the issues, misleading the jury, or considerations such as "waste to time."

Since the trial judge incorrectly applied stricter standards of admissibility, error infected the record and a new trial was appropriate. Applying its own rule, the court directed the trial judge to admit the evidence that a third party had committed a "remarkably similar" offense while Scheidell sat in jail.

Uniform Interstate Family Support Act – Competency of Wisconsin Courts
to Modify Child Support Orders Issued in Another State

Cepukenas v. Cepukenas, No. No. 97-1815 (filed 29 July 1998) (ordered published 26 Aug. 1998)

In 1992 Shelli and Timothy Cepukenas were granted a judgment of divorce by a Virginia state court. The judgment granted the parties joint custody of their only daughter, with primary placement awarded to the mother. The court further ordered that Timothy pay $400 per month in child support. Shelli and her daughter subsequently moved to Wisconsin, where they presently reside. Timothy eventually moved to Delaware.

In 1997 Shelli filed an order to show cause in a Wisconsin court requesting modification of the Virginia child support order. She obtained personal service on Timothy. She asked that pursuant to Wisconsin law Timothy's child support obligation be modified to 17 percent of his gross income or $400 per month, whichever was greater.

The circuit court found that it had personal jurisdiction over Timothy. It also concluded that Timothy was no longer a resident of Virginia. Nonetheless, it concluded that because Shelli was a resident of Wisconsin, Wis. Stat. section 769.611(1)(a) precluded the court from modifying the child support order. It opined that under the statute, Shelli could only seek relief in Delaware, where Timothy resided, or Virginia, the issuing state.

The court of appeals, in a decision authored by Judge Brown, affirmed. The sole issue on appeal was whether section 769.611 curtails the Wisconsin court's power to revise the Virginia child support order. The appellate court concluded that it does.

In 1994 the Wisconsin Legislature adopted the Uniform Interstate Family Support Act as Wis. Stat. chapter 769 with the goal of establishing practical rules for the enforcement or modification of another state's child support orders. Section 769.611 speaks directly to the competency of Wisconsin courts in interstate cases involving the modification of child support orders and specifies conditions that must be satisfied in order for the Wisconsin court to modify such orders.

The first condition that must be satisfied is that the child support order must have been registered in Wisconsin. Shelli conceded that she never registered the Virginia child support order in this state. Nonetheless, even if she had done so, it would not have altered the outcome of this appeal.

Once a child support order is registered in Wisconsin, a court may modify the order only if one of two conditions is met. First, if an individual party or the child is subject to the jurisdiction of this state and all the parties have filed a written consent submitting to the court's jurisdiction, the court may modify the order. [This condition has been modified somewhat by subsequent amendments to the statute that are not applicable under the facts of this case.] No written consent was filed in this case.

Alternatively, the court may modify the child support order if all of the following conditions are met: 1) the child, the individual obligee, and the obligor do not reside in the issuing state; 2) a petitioner who is a nonresident of this state seeks modification; and 3) the respondent is subject to the personal jurisdiction of the tribunal of this state. Applying these requirements to the case at hand, the court concluded that it is clear that the first and third conditions have been satisfied. As stated above, Timothy is subject to the personal jurisdiction of this state. Further, neither of the parties nor the child continues to reside in Virginia, the issuing state. But Shelli, the petitioning party, is a Wisconsin resident. She is not, as the statute requires, a "nonresident of this state." Because the second requirement has not been met, the Wisconsin courts cannot exercise jurisdiction to modify the Virginia child support order.

Shelli also argued that because Virginia no longer has continuing, exclusive jurisdiction [under the statute an issuing state loses continuing, exclusive jurisdiction over a child support order if it is no longer the residence of the obligor, the obligee, or the child for whose benefit support is ordered], she is under no obligation to register the existing child support order and is free to petition a Wisconsin court to enter a new support order. Stated otherwise, she argued that because Virginia has lost continuing, exclusive jurisdiction, she can petition a Wisconsin court to assume continuing, exclusive jurisdiction and enter a new order. The court of appeals disagreed. Section 769.207(1)(a) makes clear that if another state has issued a child support order, the order of that tribunal must be recognized irrespective of where it was issued and whether either party or the child continues to reside in the issuing state.

In footnote the court observed that because neither of the parties nor the child continues to reside in Virginia, that state no longer has continuing, exclusive jurisdiction over the child support order. However, the trial court was of the opinion that although Virginia had lost continuing, exclusive jurisdiction, Shelli could still petition a Virginia court to modify the order. This was incorrect. Once the issuing state loses continuing, exclusive jurisdiction, it no longer has the power to modify the child support order.

Emergency Detentions – Costs

Ethelyn I.C. v. Waukesha County, No. 97-2236 (filed 22 July 1998) (ordered published 26 Aug. 1998)

Ethelyn, age 95, was subject to an emergency detention petition. A court commissioner later ruled that the county had failed to demonstrate probable cause or that she was so incapable of providing for herself that there was a substantial risk of serious harm to Ethelyn or others. The county later instituted guardianship proceedings to which Ethelyn stipulated. In this appeal Ethelyn contested the trial court's decision to assess her with costs associated with the two petitions.

The court of appeals, in an opinion written by Judge Snyder, affirmed in part and reversed in part. The emergency petition was filed under section 55.06(11) of the Wisconsin Statutes, under which a person is immediately "detained" and not entitled to a hearing for the first seventy-two hours. For this reason, the court held that under section 55.06(11) the required "personal observation" must be made by the enumerated officials (for example, sheriff, police officer, fire fighter). Since the sheriff's deputies in this case relied upon hearsay (what others told them about Ethelyn's condition), the statutory requirement was not met and the initial detention was illegal. The unlawful detention meant that the county could not trigger the cost-shifting provision of section 46.10 and saddle Ethelyn with the costs of the inpatient hospitalization.

The court next addressed the propriety of assessing costs to Ethelyn involving: 1) the guardian ad litem; 2) the fees of the advocate counsel; 3) fees of a court appointed expert; and, 4) fees for an attorney appointed as a temporary guardian of her person and the estate. The expense of the guardian ad litem was correctly assessed to Ethelyn under section 880.33. The remaining fees rested within the trial court's discretion. The court remanded the case for a determination of whether Ethelyn should be assessed these costs because the trial judge's initial determination had been based on the faulty assumption that Ethelyn was responsible for the costs of the emergency detention.

Cause of Action for Damage Caused by Surface Waters Due to
Highway Construction – Wis. Stat. section 88.87 – Notice of Claim Time Requirements

Lins v. Blau, No. 97-2533 (filed 9 July 1998) (ordered published 26 Aug. 1998)

Wis. Stat. section 88.87 was enacted to regulate the construction and drainage of all highways in order to protect property owners from damage to lands caused by unreasonable diversion or retention of surface waters due to the construction of highways or railroad beds. The statute imposes a duty on governmental agencies to refrain from impeding "the general flow of surface water or stream water in any unreasonable manner so as to cause either an unnecessary accumulation of waters flooding or water-soaking uplands or an unreasonable accumulation and discharge of surface waters flooding or water-soaking lowlands."

Section 88.87(2)(c) creates a remedy for property owners who claim damages from a violation of this statute and establishes certain procedures to be followed in making a claim. Prior to 1994 the property owner could, within 90 days after the alleged damage occurred, file a claim with the appropriate governmental agency. The governmental agency then had 90 days after the filing of such claim to correct the cause of the water damage, acquire rights to use the land for drainage, or deny the claim. If the governmental agency or railroad company denied the claim or failed to take any action within 90 days after its filing, the property owner could bring an action for inverse condemnation or sue for some other form of equitable relief.

In 1994 the Legislature amended section 88.87(2)(c) to give aggrieved property owners three years within which to file a claim. The Legislature made this change with the intent to provide the land owner with sufficient time to discover the damage.

Before the court of appeals the issue was whether the amended time limits of section 88.87(2)(c) should be applied prospectively or retroactively. In a decision authored by Judge Dykman, the court concluded that the statute, as amended, is procedural in nature and, as such, should be applied retroactively. Said the court, both the pre-amendment and post-amendment versions of section 88.87(2)(c) constitute notice of claim requirements and are not statutes of limitation.

Coverage – Negligent Entrustment

Malone v. Gaengel, No. 98-1001-FT (filed 21 July 1998) (ordered published 26 Aug. 1998)

Ten-year-old Jason was killed while riding on the back of an ATV driven by his 12-year-old cousin, Damian. Damian's parents carried homeowners and automobile insurance issued by West Bend Mutual Ins. Co. Jason's mother sued Damian's parents and West Bend alleging that they had negligently permitted Damian to drive the ATV and were negligent in not making Jason wear a helmet. The trial judge granted summary judgment dismissing the complaint against West Bend.

The court of appeals, in an opinion written by Judge Fine, affirmed. The ATV had not been listed on the policy's declaration page. Moreover, the accident did not occur on "premises or land covered" by the policy. The plaintiff fixed on policy language that insured liability for "accident or incident that happens in your home or on your property." It also covered "liability involving your personal, nonbusiness activities anywhere in the world." Analyzing two earlier cases, the court held that "neither letting Damian drive the all-terrain vehicle (alleged negligent entrustment) nor not making Jason wear a helmet was an independent concurrent cause of Jason's death – neither would have resulted in an all-terrain-vehicle roll-over unless Damian was negligent; [the plaintiff] does not contend that the West Bend policy provides coverage for Damian's negligence." In short, the negligent acts or omissions may have been substantial factors in causing the tortious injuries, but case law precluded a finding of insurance coverage for these acts.

Subrogation – "Made-whole" Rule – Self-insured Plans

Ninaus v. State Farm Mutual Auto Ins, No. 97-0191 (filed 14 July 1998) (ordered published 26 Aug. 1998)

Radish, a Wal-Mart employee, was seriously injured in a car accident. Radish eventually received a settlement exceeding $260,000 which the parties conceded did not cover all of her medical expenses; that is, she was not "made whole." Wal-Mart's self-funded health plan paid more than $100,000 of Radish's medical expenses between 1994 and 1996. Wal-Mart contended that it was subrogated to Radish's settlement. In deciding cross-motions for summary judgment, the judge evaluated each year separately because the plan changed on an annual basis. Wal-Mart was entitled to full subrogation for 1996 and 1995, but the court reduced the 1995 pay-off by one-third for attorney fees. For 1994 Wal-Mart was not entitled to any subrogation.

Wal-Mart appealed the denial of its subrogation claims for the 1994 medical costs and the subtraction of the one-third attorney fees for the 1995 costs. The court of appeals, in an opinion written by Judge Schudson, affirmed. The loss of the 1994 subrogation rights stemmed from inconsistencies between the 1994 Summary Plan Description (SPD) and the "actual Plan." The court deftly navigated Wal-Mart's "arguments in the alternative," which distilled down to a finding that, at the very least, the "SPD's terms were uncertain." And uncertainty must be resolved in favor of the insured. Since Radish had not been made whole, Wal-Mart lost its subrogation for the 1994 payments under the terms of the SPD. "Consistent federal authority" holds that "where the terms of a summary and plan conflict, and where the summary is more favorable to the employee, the summary controls, even when it contains a disclaimer to the contrary."

As to the reduction for attorney fees made to the 1995 payments, Wal-Mart's argument "missed the mark." Wal-Mart actively participated in Radish's third-party action to extinguish the subrogation lien, but its interests were obviously adverse to hers. Wal-Mart's attorneys acted solely to protect Wal-Mart. Radish's attorneys alone secured the settlement that resulted in a substantial payment to Wal-Mart. As such, Wal-Mart was properly docked for attorney fees leading to the recovery.

Contaminants – "Damages"

Amcast Industrial Corp. v. Affiliated FM Ins. Co., No. 96-2968 (filed 29 July 1998) (ordered published 26 Aug. 1998)

Amcast sought coverage for costs associated with a DNR order requiring it to "investigate and remediate" a contaminated landfill. The trial judge granted summary judgment dismissing a number of insurance companies. Amcast appealed.

The court of appeals, in an opinion written by Judge Snyder, affirmed. Applying City of Edgerton v. General Casualty Co., 184 Wis.2d 750 (1994), the court held that the costs of investigation and remediation are not "damages" that fell within the coverage of a comprehensive general liability (CGL) policy. It rejected Amcast's attempts to bring itself within the principle of General Casualty Co. v. Hills, 209 Wis. 2d 167 (1997), which had distinguished Edgerton on several grounds. Unlike Hills, there was no "third party" in this case pressing Amcast for money. The only "facially similar" fact between Amcast's position and Hills is that Amcast did not own the contaminated property and thus it did not fall within the owned-property exclusion. Ultimately, the court of appeals concluded that Hills did not rest on "the ownership of the property in question." In summary, Edgerton controlled and Amcast was bereft of coverage.

Safety Statutes – Emergency Doctrine

Totsky v. Riteway Bus Services Inc., No. 97-0530 (filed 14 July 1998) (ordered published 26 Aug. 1998)

The defendant's school bus slid through a stop sign on a February day, striking the plaintiffs' car. The bus driver testified that she was traveling below the posted speed limit because the roads were slippery. Despite her best efforts to control the bus, it slid into the intersection. At the close of the evidence, the plaintiffs moved for a directed verdict but the judge took the motion under advisement. The jury found that neither the plaintiff nor the defendant was negligent. The judge later granted the plaintiffs' motion for a directed verdict and also granted their motion for a new trial in the event that the plaintiffs' judgment was reversed on appeal. The judge found that the bus driver was negligent as a matter of law because she had violated a safety statute, namely, her duty to stop at a stop sign. The emergency doctrine did not relieve her of responsibility because it applied only where negligence is related to management and control. Moreover, the emergency doctrine also was inapplicable because any emergency was created, in part, by the bus's "excessive speed."

The court of appeals, in an opinion written by Judge Curley, reversed. First, it was error to find that the bus driver was negligent per se. Although violations of safety statutes constitute negligence per se, "the circuit court erred in finding that the emergency doctrine can never relieve a party of a violation of a safety statute." Case law "clearly holds that the emergency doctrine can apply if a violation of the safety statute is caused by a loss of management and control through no fault of the driver, presuming the other requirements for invoking the emergency doctrine are met." Credible evidence supported the view that the bus driver had not created the emergency; thus, the plaintiffs were not entitled to a directed verdict. (The court applied the facts of record to the elements of the emergency doctrine.)

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.