Court of Appeals Digest

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

| Criminal Procedure | Insurance | Lemon Law | Municipal Law |
| Open Records Law | Real Property | Sexual Predator Law |
| Torts | Unathorized Law Practice |

Other Act Evidence - Stipulations -
Effective Assistance of Counsel

State v. DeKeyser, No. 98-0174-CR (filed 18 Aug. 1998) (ordered published 1 Oct. 1998)

The defendant was convicted of sexually assaulting his 15-year-old granddaughter. No physical evidence corroborated the assault. The state introduced evidence that four years earlier the defendant had assaulted another granddaughter, who was 15 years old at the time. His trial counsel attempted to block the admission of this other act evidence before and at trial, without success. At defense counsel's request, the trial judge gave a limiting instruction.

The court of appeals, in an opinion written by Judge Myse, reversed on grounds of ineffective assistance of counsel. It held that trial counsel was prejudicially deficient by failing to know about, or pursue, a stipulation that would have obviated the state's alleged need for the evidence. First, the court analyzed the admissibility of the other act evidence, concluding that it was properly admissible to show only a motive for the assault, not identity, absence of mistake, or plan. If counsel had conceded motive, the other act evidence would have been inadmissible. In finding prejudice, the court held that there was a high likelihood that the jury misused the other assaults as forbidden "propensity" evidence.

Chief Judge Cane filed a dissenting opinion.

Withdrawal of Guilty Plea - Misunderstanding by Defendant
Regarding Deportation Consequences

State v. Rodriguez, No. 97-3097-CR (filed 20 Aug.1998) (ordered published 1 Oct. 1998)

The defendant entered an Alford plea to a charge of sexual assault. At the plea hearing, the court followed the requirements of Wis. Stat. section 971.08(1)(c) by advising the defendant that if he was not a citizen of the United States, a plea of guilty or no contest could result in his deportation, his exclusion from admission to this country, or a denial of naturalization under federal law. To this advisal the defendant responded, "I am a citizen." The court found the defendant guilty on his plea and sentenced him to 10 years in prison.

Thereafter the defendant filed a post-conviction motion seeking to withdraw his plea claiming that it was not voluntarily and knowingly entered. In essence he asserted that his plea was based on his mistaken understanding that he was a United States citizen when in fact he is not. He asserted that, had he known that he would be subject to the possibility of deportation, he would not have entered the plea. The circuit court denied the motion for plea withdrawal.

In a decision authored by Judge Vergeront, the court of appeals affirmed. It concluded that deportation is a "collateral consequence" of the entry of a plea - not a direct consequence - and that misunderstanding about the collateral consequences of a conviction does not render a plea constitutionally infirm. Accordingly, the circuit court did not err in concluding that the defendant had not established a manifest injustice that would have warranted granting his motion to withdraw his plea.

Search and Seizure - Unlawful Entry -
Voluntary Consent - Attenuation

State v. Bermudez, No. 97-0809-CR (filed 5 Aug. 1998) (ordered published 1 Oct. 1998)

The court of appeals, in an opinion written by Judge Snyder, reversed the defendant's conviction for drug possession based on an unlawful entry and the consequent illegal seizure of evidence. The evidence was discovered during the search of a motel room.

The trial court found, and the court of appeals agreed, that the initial entry by officers was unlawful. A witness testified that officers walked into the room through a closed door without knocking. Despite the finding of an illegal entry, the record also revealed that the occupant "voluntarily consented" to the search that followed.

The court held, however, that the consent "was obtained by the exploitation of the prior illegal police activity." Attenuation analysis considers a host of factors. First, the consent occurred in "close temporal proximity to a primary illegality" (that is, there was an insufficient time lapse between the unlawful entry and the "voluntary consent"). As the court put it, "[t]he passage of a few minutes cannot be said to remove the taint of the warrantless entry." Second, the occupant appeared to be "surprised, frightened, or confused" by the officers' presence (that is, there were no significant "intervening factors" that vitiated the illegality). Third, the unlawful entry constituted flagrant misconduct under the circumstances of this case.

Health Coverage - Preexisting Condition - Cancer Symptoms

Ermenc v. American Family Insurance, No. No. 98-0531 (filed 19 Aug. 1998) (ordered published 1 Oct. 1998)

Monica died of stomach cancer. Her estate appealed from a summary judgment action dismissing its claim against Monica's health insurer for breach of contract and bad faith. Monica was treated for abdominal pain in May 1996. She bought the short-term health insurance policy in June 1996. The trial judge agreed with the insurer that Monica's stomach cancer was not a covered sickness under the policy and that it constituted a preexisting condition.

The court of appeals, in an opinion written by Judge Brown, reversed. The policy defined a covered sickness as "a condition which is first evident while this policy is in force." Hindsight established the link between Monica's stomach pain in May and the cancer that killed her. But in May 1996 the doctors did not detect or suspect cancer. The cancer was diagnosed only after the policy was in force. In short, since the symptoms of cancer (for example, a palpable mass, blood in the stool) were not "evident" until after the policy was in force, the cancer was a covered sickness.

Nor was the cancer excluded as a preexisting condition. The court of appeals looked to cases from other jurisdictions addressing "when symptoms are recognizable enough to characterize a condition as preexisting." It concluded that in "[i]n order to avoid liability, the insurer must prove that the claimant was treated for the same condition before and after the policy took effect." In this case, Monica suffered from "general, nonspecific symptoms that became clear only by use of hindsight."

Homeowner's Policy - Business Pursuits Exclusion - Exceptions

Rufener v. State Farm Fire & Casualty Co., No. No. 98-0086 (filed 20 Aug. 1998) (ordered published 1 Oct. 1998)

Martin operated a part-time snow-plowing business from his home. With the assistance of his friend, Rufener, Martin decided to install a hoist in his garage for use in handling snowplowing equipment. Rufener was injured when he fell off a ladder in Martin's garage while installing the hoist. The trial court granted summary judgment dismissing Martin's homeowner's insurer, State Farm, under the policy's "business pursuits" exclusion.

The court of appeals, in an opinion written by Judge Deininger, reversed. Two principles emerged from the case law discussing the exclusion. First, it did not matter whether Rufener's injuries were characterized as arising from the "fall of a ladder" or the "installation of the hoist." Rufener was injured while installing the hoist in Martin's garage for Martin's business. Second, the decisive issue was whether "the activity is ordinarily part of or related to the insured's business." The court concluded as a matter of law that the installation of Martin's hoist was not ordinarily part of, or related to, Martin's snowplowing business. Thus, Rufener's injuries fell within an exception to the business pursuits exclusion.

Offer to Transfer Title - Calculating Refunds

Church v. Chrysler Corp., No. No. 97-2065 (filed 19 Aug. 1998) (ordered published 1 Oct. 1998)

On July 20, 1995, the Churches wrote a letter to Chrysler explaining why they thought their new car was a "lemon" as defined by section 218.015 of the Wisconsin Statutes, and offering to transfer title in exchange for a full refund. On Aug. 4 Chrysler responded, indicating that it would repurchase the vehicle but at a price less than the Churches had requested. The Churches stated their disagreement with Chrysler's figure in a letter on Aug. 11 which also stated that they expected their refund no later than 30 days from their initial offer on July 20. The Churches argued that they were entitled to $30,400 and Chrysler set the refund amount at $29,400. After further exchanges, the Churches filed this action on Aug. 23, 1995, 33 days after the initial demand. On Sept. 11, Chrysler sent the Churches a refund for $29,400. The trial judge dismissed the complaint on the ground that the parties' negotiations suspended the 30-day time limit. The judge also ruled that Chrysler had properly deducted the amount of the purchase incentive rebate from the refund total.

The court of appeals, in an opinion written by Judge Nettesheim, reversed. Consistent with the legislative purpose behind the Lemon Law, the court rejected Chrysler's argument that "the Churches' attempts to negotiate a greater refund amount removed the process from the Lemon Law or suspended or delayed the running of the thirty-day clock." The statute "clearly requires that the manufacturer issue a refund within thirty days of the consumer's offer to transfer title." Thus manufacturers have two choices in cases of disagreements with purchasers: "(1) pay the amount demanded by the purchaser within the thirty-day period; or (2) pay the amount which the manufacturer deems appropriate within thirty-day period." The first option obviously concludes the matter. The second option may result in a lawsuit by the purchaser where the issue is whether the amount of the refund was correct. If the manufacturer loses, it suffers the statutory penalties.

Addressing the refund amount in this case, the court held that Chrysler acted appropriately in deducting the cash rebate given to the Churches at the time of purchase. The full purchase price is the amount actually paid by the consumer. Disputed issues of fact involving the usage allowance and finance charges were remanded to the circuit court for trial.

Appeals Involving Grant of Zoning Variance -
Failure to Join Indispenable Party

County of Rusk v. Rusk County Board of Adjustment, No. No. 98-0298-FT (filed 25 Aug. 1998) (ordered published 1 Oct. 1998)

The Rusk County Board of Adjustment granted a variance allowing a previously constructed addition to the home of Robert and Elaine Radiker to remain within the shoreline setback area. In timely fashion Rusk County commenced a certiorari review of the Board's decision pursuant to Wis. Stat. section 59.694(10). The Board of Adjustment was the only defendant named in the action and at no time answered or appeared to defend the action. The property owners were neither named as a party nor ever given notice of the pending action seeking reversal of the variance granted to them.

The circuit court ordered the parties to brief the issue of whether the action should be dismissed for the county's failure to join the property owners as indispensable parties and serve them within the 30-day time limit for filing a certiorari review pursuant to the statute cited above. The circuit court ultimately dismissed the action for failing to name the property owners as parties concluding that their due process rights and property interests required that they be joined and served at the commencement of the action and within the 30-day time limit required by statute.

The court of appeals, in a decision authored by Judge Myse, reversed. It viewed the case as presenting two issues: 1) whether the failure to join an indispensable party by itself was fatal to the county's attempt to obtain certiorari review of the variance; and 2) whether the failure to join all indispensable parties within the 30 days of commencing certiorari review requires dismissal of the writ. [Because the parties did not dispute the issue, the appellate court assumed without deciding that a property owner is an indispensable party to an action for certiorari review of a zoning determination as to his or her property.]

The court of appeals held that the failure to join an indispensable party was not a jurisdictional defect that by itself warranted dismissal of the action. Having determined that dismissal was not warranted, the court next considered whether the failure to join all indispensable parties within the 30-day period required dismissal because the statute limits the commencement of an appeal to within 30 days after the filing of a decision by the board of adjustment. The court concluded that, because an action was commenced within the time period prescribed by statute, the 30-day statute of limitations was tolled. The subsequent joining of the indispensable party was irrelevant to the provisions of the statute of limitations since commencement of the action within the statutory period was sufficient to toll the running of the period of limitations. The language of the statute requires only that the petition for review be filed within the 30-day period. The joining of other parties at some subsequent date, amendment of the pleadings, and other procedural matters have no affect on the petitioner's right to obtain review once the petition has been timely filed.

Public Works Projects - Access to Payroll Records
of Construction Subcontractor - Wis. Stat. section 19.36(3)

Building and Construction Trades Council of South Central Wisconsin v. Waunakee Community School District, No. No. 97-3282 (filed 27 Aug. 1998) (ordered published 1 Oct. 1998)

The Waunakee School District contracted with J.P.Cullen and Sons to build an elementary school and administration building. Cullen subcontracted portions of the work on the project to various subcontractors. The subcontractors did not have any contractual relationship with the school district.

The Building and Construction Trades Council of South Central Wisconsin submitted an open records request to the district requesting that the district provide access to the payroll records of certain subcontractors working on the project. The sole issue before the court of appeals "was whether the open records law, when considered in light of the prevailing wage law (Wis. Stat. section 66.293), required the district to obtain the records from the subcontractors and provide them to the Council." In a decision authored by Judge Eich, the court of appeals concluded that it does not.

The portion of the open records law lying at the heart of this dispute is the section setting forth "limitations" on the access to, and the withholding of records - specifically, the "contractors' records" provisions of Wis. Stat. section 19.36(3), which state that "each authority shall make available for inspection ... any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority." The statute plainly addresses contracts between an "authority" (in this case the school district) and the party whose records are being sought. But the council was not seeking records produced or collected under the district's contract with the contractor. Its request went to another level entirely. It sought information that private subcontractors produced for their own independent purposes. As such they were not covered by the provisions of section 19.36(3).

Among the council's arguments was that the subcontractors' payroll records were subject to inspection because the general contractor had a duty to ensure that all workers on the job, including those employed by subcontractors, were paid the prevailing wage. The appellate court was not persuaded. The purpose of the prevailing wage law is to set the prevailing wage rates and hours of work for employees of private employers working on public works projects. The wage law contains specific statutory procedures for monitoring and securing compliance with its requirements. And it provides both civil remedies and criminal penalties for violations of its terms. The prevailing wage law is enforced by the Department of Workforce Development and the department is given broad enforcement powers to that end. There is opportunity for public input into the enforcement process because any interested person may request the department to inspect the records of all contractors and subcontractors on a public project to ensure that they are complying with the prevailing wage law.

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