Court of Appeals Digest

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

| Attorneys | Civil Procedure | Commercial Law |
| Construction Law | Criminal Law | Criminal Procedure |
| Criminal Procedure/Juvenile Law | Evidence | Family Law |
| Habeas Corpus | Insurance | Protective Placements |
| Real Property | Torts |

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 Two years later probation was revoked and he was returned to court at which time he received a sentence of 10 years in prison.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.

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 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.

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.

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.

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.

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).

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