Wisconsin Lawyer: Wisconsin Lawyer June 1998: Court of Appeals Digest:

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June 01, 1998

Wisconsin Lawyer June 1998: Court of Appeals Digest

Court of Appeals Digest

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

Attorneys

Conflicts of Interest - Representation of Criminal Defendant by Counsel Who Earlier Prosecuted the Defendant in the Same Case

State v. Love, No. 97-2336-CR (filed 19 March 1998) (ordered published 29 April 1998)

The defendant was convicted of burglary in 1994 after pleading guilty to the charge. Sentence was withheld and he was placed on probation. Two years later probation was revoked and he was returned to court at which time he received a sentence of 10 years in prison. He subsequently moved for resentencing, claiming that the sentencing proceedings were tainted because his attorney, an assistant public defender, was a former prosecutor and had represented the state at his original sentencing hearing two years earlier. The circuit court denied the motion.

In an opinion authored by Chief Judge Eich, the court of appeals reversed. It held that where defense counsel has appeared for and represented the state as a prosecutor in prior proceedings in the same case in which he or she now represents the defendant, a conflict of interest exists warranting reversal even in the absence of evidence of actual conflict, or of prejudice to the defendant or the state. The court believed that this bright-line rule would adequately protect the important public and private interests at stake, although the court was clear in emphasizing that its holding was a narrow one, confined to the facts of this case. Given the conflict, the appellate court reversed the circuit court's order and remanded the matter for resentencing.

Civil Procedure

Pleadings - Right to Amend - Motion for a More Definite Statement

Kox v. Center for Oral and Maxillofacial Surgery S.C., No. 97-3045 (filed 26 March 1998) (ordered published 29 April 1998)

The plaintiff sued various physicians and dentists for negligent care. The plaintiff attempted to file an amended complaint but the judge concluded that Wis. Stat. section 802.09(1) permits parties to amend pleadings as a matter of course only once and within six months of filing. The judge ruled that the plaintiff's response to a motion for a more "definite statement" effectively "used up" the one-time statutory right, even though the amended complaint was proffered within six months of the filing date.

The court of appeals, in an opinion written by Judge Eich, reversed. The court held "that a plaintiff's response to a motion for a more definite statement, no matter how it is termed or captioned, cannot extinguish the six-month right to amend as a matter of course granted by sec. 802.09(1), Stats." Modeled on the corresponding federal rule, section 802.09(1) does not require a party to seek leave of the court or the opponent's consent. But unlike the federal rule which limits the right after a responsive pleading is filed, under the Wisconsin rule only the passage of six months (from the filing of the original complaint) extinguishes the right to amend.

Commercial Law

Commercial Paper - Banks - Forgery

Borowski v. Firstar Bank Milwaukee N.A., No. 96-3277 (filed 10 Feb. 1998) (ordered published 29 April 1998)

The plaintiff sued the bank alleging that it had negligently paid forged checks drawn on two separate accounts. The forger was the plaintiff's former paramour. The trial judge ruled that the plaintiff failed to timely notify the bank that there was "something wrong."

The court of appeals, in an opinion written by Judge Fine, affirmed in part and reversed in part. Under the UCC, a bank is relieved of liability for a customer's unauthorized signature or the alteration of an "item" if the customer did not timely "discover and report" the problem. The UCC allows one year from the time the bank statement and items are made available to the customer. The bank's contracts with the plaintiff reduced the one-year window to just 14 days, although the two policies differed in other respects.

The evidence established that the bank sent statements and canceled checks for each of the two accounts consistent with its routine practice and custom. The plaintiff's claim that his former paramour intercepted the statements was immaterial. The plaintiff was obligated to report the problem within the 14-day period. The court rejected the argument that the 14-day provision constituted an impermissible exculpatory contract contrary to Wis. Stat. section 404.103(1) or that it was unreasonably short.

The contract language for one of the plaintiff's accounts provided that the 14-day period began running when the "items" were sent or made available to the customer. The bank conceded that it had never provided the customer with copies of handwritten notes by the former paramour requesting cashier's checks. The notes were "items" within the meaning of the UCC and thus the customer was entitled to seek recovery against the bank.

Construction Law

Theft by Contractors - Personal Liability of General Contractor

Capital City Sheet Metal Inc. v. Voytovich, No. 97-1588 (filed 5 March 1998) (ordered published 29 April 1998)

Fehrman Homes was the general contractor for the construction of a house for Voytovich. The contract price was $148,000 and construction began in the spring of 1995. Capital City Sheet Metal, one of the subcontractors, installed the roof. In August 1995 the deal apparently soured and Voytovich canceled the contract, having paid Fehrman Homes a total of $125,000. She hired another company to complete construction of the house. Fehrman Homes ultimately paid $127,000 to various subcontractors (including Capital City) for labor and materials used on the project.

Capital City sued Fehrman Homes, its president Tim Fehrman, and Voytovich in small claims court, claiming that it had received only $5,500 from Fehrman on a total contract price for the roofing work of $9,000 and demanding the balance. Capital City sought to hold Tim Fehrman personally liable for that amount under Wis. Stat. section 779.02(5), which is known as the "theft by contractor" statute. This statute imposes a trust on funds the contractor receives from the owner, requiring that those funds be used only for payments "for labor and materials used" in performing the contract. Using the funds for some other purpose, whether personal or corporate, violates the statute and the officers of the corporation may be held personally liable to the subcontractors and suppliers.

The circuit court entered a judgment holding Tim Fehrman jointly and severally liable with the corporation but the court of appeals, in a decision authored by Chief Judge Eich, reversed the judgment insofar as it held Tim Fehrman personally liable to Capital City and remanded for further proceedings consistent with its opinion. The court concluded that Fehrman did not violate the statute. Because Fehrman did not otherwise challenge the judgment, the court affirmed it in all other respects.

In its analysis the court agreed that a contractor need not misappropriate funds for purely personal gain to be personally liable under the statute, because the statute also applies where the contractor uses the "trust" funds for "corporate" purposes unrelated to the contract in question. But in this case, Fehrman used the funds received from Voytovich to pay the very people and entities on whose behalf the statute imposes the trust: the subcontractors and the suppliers of labor and materials for the Voytovich project. The record does not indicate that any of the funds Fehrman received from Voytovich went to anyone else or for any other purpose. It is true that Capital City did not get paid the full amount of its invoice, but that is not the test under the statute. The test is whether the money was, or was not, paid for "labor and materials used for the [contracted-for] improvements" and the record in this case unequivocally establishes that it was.

In footnote the court observed that, although Capital City did not specifically assert or argue that some of the Voytovich funds were used to pay expenses of Fehrman Homes for labor and materials Fehrman furnished to the project, to the extent its brief might be read to include such a claim, the court noted that it had rejected a similar contention in an earlier case, where it stated that the contractor was entitled to reimburse himself for payments he had made for labor and materials without running afoul of the statute.

Criminal Law

No Crime of Attempted Felony Murder - No Appeals of Parts of Judgment

State v. Briggs, No. 97-1558-CR (filed 26 March 1998) (ordered published 29 April 1998)

The defendant was charged with attempted first-degree intentional homicide, armed car theft, armed robbery, armed burglary, and criminal damage to property. Pursuant to a plea agreement, he pled no contest to two counts of an amended information: attempted felony murder and armed burglary. The court accepted the plea and sentenced him to two substantial consecutive terms of imprisonment.

The defendant appealed only that part of the judgment convicting him of attempted felony murder. He contended that this part of the judgment was void for lack of subject matter jurisdiction because the crime of attempted felony murder is an offense unknown to law in Wisconsin. In a decision authored by Judge Roggensack, the court of appeals agreed that no such crime as attempted felony murder exists in this state. Under Wisconsin law, one cannot attempt to commit a crime that does not itself include an element of specific intent. The court characterized felony murder as not requiring intent and therefore is not reconcilable with the concept of attempt.

The court also had to deal with the appropriate relief to which the defendant was entitled. The defendant urged that the appellate court should do no more than vacate the attempted felony murder conviction and leave the rest of the judgment intact. This argument followed from the notice of appeal filed by the defendant, which did not appeal the entire judgment, but rather selectively appealed only that part of the judgment that found him guilty of attempted felony murder.

The court of appeals concluded that when a criminal appeal is taken from a conviction resulting from a plea bargain, it brings before the appellate court all of the judgment or order appealed from, even when the appellant attempts to limit review to only a portion of the judgment or order by the way in which the notice of appeal is framed. The court then proceeded to vacate the defendant's conviction of both attempted felony murder and armed burglary as well as the plea agreement because all were connected and all were the result of an erroneous view of the law. It also vacated the amended information and reinstated the original information in order to restore the parties to the positions they had before they made an agreement based on an inaccurate view of the law. The court remanded the case to the circuit court for prosecution on all five counts contained in the original information.

Criminal Procedure

Sentencing - Restitution to Governmental Victim of Crime

State v. Howard-Hastings, No. 97-2986-CR (filed 31 March 1998) (ordered published 29 April 1998)

The defendant was convicted of criminal damage to property for cutting down several telephone-type poles that were used to support the antenna at Project ELF, a special type of radio wave generator used to communicate with nuclear submarines. The damage was done to protest the project. The court placed the defendant on probation and, following revocation of probation, sentenced her to three years of intensive sanctions and $7,500 restitution to the U.S. Government.

The sole issue on appeal was whether the restitution statute (Wis. Stat. § 973.20) authorizes the payment of restitution to a government entity. In a decision authored by Judge Myse, the court concluded that it does.

The court found that the plain meaning of the term "victim," as used in section 973.20(1r), permits governmental entities to collect restitution. In so holding, the court distinguished the case of State v. Schmaling, 198 Wis. 2d 756, 543 N.W.2d 555 (Ct. App. 1995). In Schmaling the court sentenced the defendant to reimburse the county for costs incurred in fighting a fire caused by a highway accident. The court of appeals reversed, concluding that the county was not the actual victim of the crime committed. In this case, however, it was clear that the U.S. Government was the actual victim of the defendant's acts of vandalism and therefore the trial court did not err by requiring the defendant to pay restitution to the U.S. Government.

Criminal Procedure/Juvenile Law

Juveniles Charged in Adult Court - "Reverse Waiver" Criteria - Appeal of Waiver Decision

State v. Wright, No. 97-2446-CR (filed 25 March 1998) (ordered published 29 April 1998)

The defendant juvenile was confined at the Ethan Allen School for Boys as a result of having been adjudged delinquent. While there, he struck a staff member and was charged as an adult with battery to a correctional officer contrary to Wis. Stat. section 940.20(1). This is an offense for which the adult criminal court is vested with exclusive original jurisdiction over any juvenile who is alleged to have violated the statute after having been adjudicated delinquent.

Section 970.032 provides that the adult court shall retain jurisdiction unless the child proves by a preponderance of the evidence all of the following, that: 1) if convicted, the child could not receive adequate treatment in the criminal justice system; 2) transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and 3) retaining jurisdiction in adult court is not necessary to deter the child or other children from committing the violation of which the child is accused.

At the "reverse waiver" hearing in this case, the adult court concluded that the services available in the juvenile system are not only better but can require mandatory participation, that the defendant's return to the juvenile system would not unduly depreciate the seriousness of the offense, and that it would be a greater benefit to society and to the defendant for him to receive treatment/punishment in the juvenile system. Accordingly, it ordered a transfer of jurisdiction from adult court to juvenile court. The state appealed.

In a decision authored by Judge Anderson, the court of appeals affirmed. In its opinion it had occasion to clarify the standards to be applied by the court at reverse waiver hearings. With respect to the first criterion outlined above, the state argued that the juvenile must prove a total absence of treatment in the adult system; merely establishing the comparable adequacy of the juvenile system would not satisfy the first criterion. The court of appeals disagreed. The reverse waiver statute permits the trial court to balance the treatment available in the juvenile system with the treatment available in the adult system and requires it to decide under the specific facts and circumstances of the case which treatment will better benefit the juvenile.

With respect to the second criterion, which involves the seriousness of the offense, the circuit court commented that under normal circumstances the defendant's action would have constituted a misdemeanor battery except for the fact that the person battered was a staff member at Ethan Allen. The state took issue with the trial court's consideration of the seriousness of the battery. It sought to equate all batteries from misdemeanor battery to a battery causing substantial bodily harm as equally serious and as exposing vulnerable correctional officers to increased violence. The court of appeals concluded that the circuit court must decide under the specific facts and circumstances of the case how serious the offense was, that is, whether it was an egregious type of battery or some lesser type of battery. Such weighing of the facts by the trial court is implicit in the reverse waiver statute.

The appellate court also concluded that in this case the deterrence criterion also was satisfied and that, in sum, the circuit court did not misuse its discretion in considering the factors specified in the reverse waiver statute and in deciding to reverse the waiver of the defendant from adult court jurisdiction to the juvenile court system. Said the court, although the usual situation under the reverse waiver statute is that the criminal court will retain jurisdiction over the juvenile, it is not mandatory.

Finally, the court addressed an appellate procedure issue with respect to reverse waivers. It asked the parties in the case to address whether the means by which a party can seek review of a reverse waiver order is more appropriately by leave to appeal (Wis. Stat. § 808.03(2)) or by notice of appeal from a final order (Wis. Stat. § 808.03(1)). The court of appeals concluded that the appropriate avenue of review for a party aggrieved by a reverse waiver order is to seek leave to appeal under section 808.03(2) in the manner and within the 10-day deadline specified in section 809.50(1).

Evidence

Summaries - "Pedagogical Devices"

State v. Olson, No. 96-2142-CR (filed 17 March 1998) (ordered published 29 April 1998)

A jury convicted the defendant of multiple counts of sexual assault. The primary issue on appeal concerned the prosecutor's use during closing argument of a chart that summarized the witnesses' testimony.

The court of appeals, in an opinion written by Judge Schudson, affirmed. The parties and the court agreed that the chart was not admissible as a "summary exhibit" under section 910.06 of the Wisconsin Statutes, which is limited to summaries of "voluminous writings," and so on. The chart's use was, however, an appropriate exercise of the court's discretion under Wis. Stat. section 906.11. Federal courts are split over the use of charts purporting to summarize testimony. Their use in Wisconsin is entrusted to the trial court's discretion under section 906.11(1), which gives the judge power to control the mode and order of interrogating witnesses and the presentation of evidence to the end of better ascertaining "the truth." Finally, the judge accurately instructed the jury that it should rely on its own recollection of the underlying testimony and evidence, using the chart only to the extent that it was consistent with the jury's recollection.

Family Law

Prospective Physical Placement Orders - Changing Surname of Children - Ex Parte Communications with the Court

Jocius (n/k/a Fleming) v. Jocius, No. 96-2746 (filed 31 March 1998) (ordered published 29 April 1998)

Victoria and Mark Jocius were divorced in 1990. At that time the trial court accepted their signed marital settlement agreement, which divided their marital property, gave sole legal custody of their three children to Victoria, and provided Mark with periods of physical placement. In 1996 a letter purportedly written and signed by the three minor children was sent to the court. The judge read the letter and appointed a guardian ad litem for the children. Thereafter the guardian submitted an affidavit that served as the underpinnings for obtaining a child abuse temporary restraining order and a domestic abuse temporary restraining order that, following hearings, resulted in the entry of injunctions against Mark.

The guardian ad litem also filed an order to show cause asking for a complete denial of Mark's periods of physical placement with the children, claiming that "such placement would endanger the children's physical, mental and emotional health pursuant to Wis. Stat. sec. 767.325(4)." Additionally, the guardian requested that the children's surname be changed to their mother's maiden name. In anticipation of a contested hearing, the trial court appointed counsel for Mark. Following a multi-day hearing, the court rendered a decision in which it denied Mark any periods of physical placement with his children and prohibited him from petitioning for any change in physical placement of the children. It also ordered the surname of the children changed.

The court of appeals, in a decision authored by Judge Curley, reversed. Among its many holding were: 1) the statute permitting a trial court to deny a parent physical placement does not permit the trial court to make a prospective order prohibiting a parent from ever requesting a change in physical placement in the future; 2) the trial court's order changing the surname of the children was not authorized by chapter 767, which permits the trial court to restore a former surname to a divorcing spouse but makes no mention of the children (who must use the name change procedure found in chapter 786); 3) the role of the guardian ad litem in a post-judgment revision of a physical placement case does not extend to or include the commencement of a civil name change action on behalf of the children; and 4) the trial court exceeded its authority in appointing private counsel to represent Mark.

Finally, with regard to the trial judge's appointment of a guardian ad litem for the children following receipt of their letter, the appellate court specifically cautioned judges to avoid taking a similar course of action as they may run afoul of SCR 60.04(g)(1) governing ex parte communications. The court recognized that well-intentioned parties and friends often attempt to communicate with judges in divorce cases in the hope of influencing the judge's decision. Judges need to institute procedures so that these communiqués do not inadvertently violate the ex parte communication directive.

Said the court, "while we share the trial court's concern for the welfare of young children, we feel it unwise to appoint a guardian ad litem for children in a divorce action several years after the divorce has been granted when there is no pending litigation. This is especially so when the appointment is done on the strength of a letter sent by three children addressed to the judge, and the parents have not been contacted and allowed to respond. The better course of action, if a complaint raising questions about a child's safety and welfare reaches the judge, is to contact the county child welfare agency which is statutorily required to investigate such matters and is better equipped to handle emergencies."

TPR Appeals - No Merit Reports - Time Limits

Brown County v. Edward C.T., No. 98-0075-NM (ordered published 29 April 1998)

Counsel for Edward C.T. filed a no merit report from an order terminating Edward's parental rights. The court of appeals required the no merit report to address the applicability of the no merit procedure to a TPR appeal. In this per curiam opinion, the court of appeals concluded that a no merit report may be filed in a TPR appeal within the time set by Wis. Stat. section (Rule) 809.107. A no merit report may be filed where, as in this case, the notice of intent and the notice of appeal were timely filed under Rule 809.107(2) and (5) and the no merit report was filed within the time set for filing the appellant's brief under Rule 809.107(6)(a). Upon the timely filing of a no merit report, the court of appeals will allow 10 days for the parent to file a response to the report.

Child Support - Reductions - "Serial Family Payers"

State v. Jeffrie C.B., No. 97-2453 (filed 31 March 1998) (ordered published 29 April 1998)

In 1993 a court ordered Jeffrie to pay 17 percent of his gross income as child support. The court was unaware of a previous child support order in a separate paternity case requiring him to pay 17 percent of his gross income. In 1997 a judge granted Jeffrie's motion to reduce his child support at the lesser rate (14 percent) for a "serial family payer." The court also retroactively revised its child support order so that Jeffrie's arrearages reflected the 14 percent rate.

The court of appeals, in an opinion written by Judge Cane, reversed. The sole issue on appeal concerned the court's authority to reduce accrued child support arrearages retroactively. Under section 767.32(1m) of the Wisconsin Statutes a trial court cannot "retroactively revise the amount of child support due or the amount of arrearages in child support except to correct previous errors in calculation." The Legislature intended that such revisions be restricted to "mathematical errors only."

Habeas Corpus

Motion to Quash Writ - Appearance of Confined Petitioner by Telephone - Responsibility for Making Arrangements for Telephonic Appearance

State ex rel. Christie v. Husz, No. 97-0807 (filed 25 Feb. 1998) (ordered published 29 April 1998)

The petitioner contended before the court of appeals that the trial court erred when it dismissed her writ of habeas corpus because she failed to appear at the motion hearing. She claimed that her failure to appear was due to her incarceration, was not her fault, and that the trial court should have made the necessary arrangements for her to appear.

In a decision authored by Judge Brown, the court held that in an action involving a prisoner acting pro se, if the court concludes that a hearing is necessary and that a teleconference will suffice, it is the responsibility of the trial court to ensure that the pro se prisoner has access to a telephone at the time of the hearing. The court limited its holding to pro se prisoners. If a prisoner is represented by counsel, the prisoner's attendance, either in person or by telephonic means, may not be necessary. Moreover, if the prisoner is represented by counsel and the prisoner's appearance is necessary, and if it is determined that appearance by telephone will be satisfactory, it should be counsel's obligation to make the arrangements for the appearance. If counsel experiences problems in arranging for telephonic appearance, he or she can always seek the court's aid.

The appellate court also addressed motion practice in habeas corpus proceedings, distinguishing motions to quash from returns to the writ. A motion to quash the writ challenges the sufficiency of the petition for the writ. The court will only quash the writ if the facts pled in the petition, when accepted as true, are insufficient to entitle the petitioner to the relief sought. [Of course, a prisoner who merely makes conclusory allegations regarding his or her confinement cannot survive a motion to quash. A habeas corpus petition containing merely loose allegations which fail to show how, if true, the petitioner is wrongfully detained is defective.]

A motion to quash is not the proper procedural tool with which to raise factual disputes in a habeas corpus proceeding. If raising factual disputes is the goal, then a return to the writ should be filed, which the petitioner can then traverse, thus raising an issue of fact for trial.

Insurance

UM Coverage - Made Whole

Calbow v. Midwest Security Ins. Co., No. 97-2457 (filed 4 March 1998) (ordered published 29 April 1998)

Calbow was injured when an uninsured motorist crashed into a fire truck which in turn collided with Calbow's vehicle. The Calbows sued the municipality. Eventually they settled for $250,000 and executed a Pierringer release. Calbow later filed a claim with his insurer under his uninsured motorist (UM) coverage.

The court of appeals, in an opinion written by Judge Anderson, affirmed a trial court order that enforced the insurance policy's reducing clause in favor of the UM insurer. An arbitrator's panel established the Calbow's total damages as $131,000. Invoking the reducing clause prevented a "double recovery"; the purpose of UM coverage is not to provide a "fully compensated party with a windfall."

Protective Placements

Movement of Protectively Placed Person from One County to Another - Relitigation of Residence

Juneau County v. Sauk County, No. 97-1365 (filed 12 March 1998) (ordered published 29 April 1998)

In 1985 a Juneau County court appointed Robin S. as the Wis. Stat. chapter 55 guardian of the person and the estate of her developmentally disabled adult brother Jeffrey. At that time, both Robin and Jeffrey were living in Juneau County. Over the following decade, the Juneau County Department of Human Services placed Jeffrey in a variety of locations within that county, including his mother's home, adult foster homes, and community-based residential facilities (CBRFs). However, in 1996, after Robin moved to Sauk County, she arranged to have her brother moved to a group home CBRF located in Sauk County.

Juneau County subsequently filed a motion seeking to change Jeffrey's county of residence for his protective placement to Sauk County and thus relieve itself of further supervisory and financial responsibilities for his care. The circuit court denied the motion based on its conclusion that Wis. Stat. section 51.40(2)(a) precludes any change of residence for protectively placed persons who reside in CBRFs.

The court of appeals, in a decision authored by Judge Roggensack, reversed. The issues before the court were whether a Wisconsin county is barred, either by section 51.40(2)(a) or the doctrine of claim preclusion, from relitigating the question of a protectively placed person's residence after that person's guardian has moved to another Wisconsin county and relocated the person into a CBRF in that same county. The court concluded that residency may be reexamined in such circumstances.

Real Property

Adverse possession - 20-year time period

Harwick v. Black, No. 97-1108 (filed 12 March 1998) (ordered published 29 April 1998)

This case concerns the law of adverse possession and an action to quiet title. Wis. Stat. section 893.25 provides that, with certain exceptions, "an action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years." Case law establishes that the person claiming adverse possession must show that the disputed property was used for the requisite period of time in an open, notorious, visible, exclusive, hostile, and continuous manner that would apprise a reasonably diligent landowner and the public that the possessor claimed the land as his or her own.

The issue before the court of appeals was whether the 20-year time period of adverse possession must occur immediately preceding the filing of a court action. In an opinion authored by Judge Dykman, the court answered in the negative. Adverse possession for any 20-year time period is sufficient to establish title in the adverse possessor. Title to the disputed land vests at the close of the limitation period and the title of the original owner of the disputed land is extinguished at that time. Further, said the court, one claiming adverse possession need not be in possession of the disputed property at the time the action is filed.

Torts

Dog Bite - Landlords - Common Law Negligence - "Harborer" Under Section 174.02(1)

Malone v. Fons, No. 96-3326 (filed 17 March 1998) (ordered published 29 April 1998)

Fons owned a building in which a tenant's dog bit the plaintiff, an 8-year-old girl. The plaintiff sued Fons. The circuit court granted summary judgment dismissing the complaint.

The court of appeals, in an opinion written by Judge Curley, affirmed. First, the court held that Fons was not liable under the common law of negligence. Relying on Gonzales v. Wilkinson, 68 Wis. 2d 154 (1975), the court concluded: "(1) the relevant statements in Gonzales were not a dicta, but rather, expressed the court's holding; (2) according to the plain language of Gonzales, Fons is not liable, on common law negligence grounds, for the bite which Sarah received from Fons' tenant's dog; and (3) [other named cases have not] modified Gonzales' holding as it relates to the facts of this particular case."

Second, the court rebuffed the argument that Fons had "harbored" the dog and thus was strictly liable under section 174.02 of the Wisconsin Statutes. The "mere fact that Fons' tenants' dog had been on the premises that Fons leased to the [tenants] for a lengthy period of time does not make Fons a harborer of his tenant's dog."

Finally, the court rejected the argument that the plaintiff was a third-party beneficiary of a "contract," or a misrepresentation to the tenant, that legally obligated Fons to provide liability insurance for his tenant. The "misrepresentation theory" lacked sufficient merit to consider. And as a matter of law based on the facts of record, Fons did not offer to provide liability insurance for the tenant; thus, there was no contract under which the plaintiff could benefit.

Safe Place Statute - Security Systems

Naaj v. Aetna Ins. Co., No. 96-3640 (filed 31 March 1998) (ordered published 29 April 1998)

A food store leased a building from the defendant owner. The plaintiff, an employee, was struck by an unruly customer. The complaint alleged that the owner violated the safe place statute, Wis. Stat. section 101.11, by failing to install a security system of some sort in a building that was located in a "high-crime area."

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the trial court's grant of summary judgment in favor of the owner. The safe place statute is restricted to the building's "structural composition." A safety system that protects employees from crime is not part of the building's structure.

This column summarizes all decisions 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.

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