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Vol. 72, No. 10, October 1999

Court of Appeals Digest

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

| Administrative Law | Civil Procedure | Commercial Law |
| Criminal Law | Criminal Procedure |
| Employment Law | Family Law | Lemon Law |
| Motor Vehicle Law | Sexually Violent Persons | Torts |
| Worker's Compensation |

Judicial Review of Chapter 227.53 Proceedings -
Requirement of Service on the Agency Involved

Gimenez v. State of Wisconsin Medical Examining Board, No. 98-1367 (filed 7 July 1999) (ordered published 17 Aug. 1999)

The Wisconsin Medical Examining Board (Board) imposed professional discipline on the petitioner, who is a general surgeon. After filing a petition for review with the circuit court, the petitioner timely served the attorney general. The Board then filed a motion to dismiss because the petitioner had failed to serve it with the petition. The circuit court denied the Board's motion.

In a decision authored by Judge Snyder, the court of appeals reversed. It concluded that because Wis. Stat. section 227.53 requires service "upon the agency or one of its officials," and because the petitioner's service upon the attorney general was inadequate to satisfy the service requirements, the circuit court never acquired jurisdiction to review this case.

The court rejected the petitioner's argument that serving the attorney general was sufficient because the attorney general had represented the Board throughout these proceedings. Once an action has begun, service of papers may be made upon an attorney who has appeared in the action on behalf of a party. An attorney, however, is not authorized by general principles of agency to accept, on behalf of a client, service of process commencing an action. In the case of a chapter 227 petition for circuit court review of an administrative decision, the filing of the petition triggers the commencement of the action rather than a continuation of it, since the earlier proceedings between the parties were administrative, not judicial. Therefore, the attorney general's continuing representation of the Board did not authorize the attorney general to accept service for the Board. Section 227.53(1) unambiguously provides that a petition for judicial review must be served upon the agency.

Clerk of Courts - Judgments - Statute of Limitations -
Untimely Docketing

South Milwaukee Savings Bank v. Barczak, No. 97-3759 (filed 27 July 1999) (ordered published 17 Aug. 1999)

A bank obtained summary judgment in its favor against a debtor. The bank's attorney then presented a proposed order and judgment which the judge signed. The attorney obtained the court's file, took it to the clerk's office at about 3:30 p.m., and paid the judgment and docketing fees. Although the clerk's office entered the judgment, for reasons unknown to anyone, the clerk did not docket the judgment until the next day. In the meantime, the debtor's wife, who had been in court when the summary judgment was announced, went home and retrieved two quitclaim deeds that allegedly conveyed the debtor husband's interest in the property to her. She rushed back to the courthouse and recorded the quitclaims with the register of deeds after the bank's judgment had been entered but before it was docketed. This sequence of events became critical when the bank later scrambled to collect on the judgment in competition with other creditors who claimed priority. After the bank lost on its claim based on the tardily docketed judgment, it filed this suit against the clerk of court. The trial court ruled in the clerk's favor, finding that the two-year statute of limitations had expired and that the clerk had complied with the statutes controlling the docketing of judgments.

The court of appeals, in an opinion written by Judge Curley, reversed. First, the court held that the actions brought under the docketing statute, section 806.10(3) of the Wisconsin Statutes, are governed by the six-year statute of limitations. Wis. Stat. § 893.(1)(a). Second, as a matter of law the clerk violated the docketing statute. The judgment was presented at 3:20 p.m. and the clerk's office did not close until 5:00 p.m. Moreover, the clerk offered no explanation as to why the judgment was not docketed in the time remaining that day, although other evidence suggested that docketing was not a "high priority." In short, the clerk violated section 806.10(3) regardless of whether it requires the docketing of judgments "immediately" or instead permits the docketing within a "reasonable time."

Corporate Checks - Signer - Personal Liability - Fraud

Korhumel Steel Corp. v. Wandler, No. 98-2042 (filed 14 July 1999) (ordered published 17 Aug. 1999)

The bookkeeper of a financially distressed corporation signed two checks that were later returned for insufficient funds in the corporate account. The payee claimed that the bookkeeper had committed fraud and was personally liable for the amounts. The trial court agreed.

The court of appeals, in an opinion written by Judge Wilk, reversed. The first issue concerned whether section 403.402(3) of the Wisconsin Statutes shields a corporate bookkeeper from liability for fraud. That provision of the Uniform Commercial Code (UCC) generally shields from personal liability one who signs a check in a representative capacity. The court held, however, that the UCC's protections did not extend to fraud claims, relying on case law from other jurisdictions and the principle that "individual liability is appropriate when an intentional tort is alleged and proven."

The court reversed on the second issue; namely, did the payee prove that the bookkeeper defrauded it? The court held that the payee failed to meet its burden of showing all elements of fraud. As to one of the checks, there was no evidence showing that the bookkeeper knew that there were insufficient funds in the account when she signed the check. As to the other check, the payee did not justifiably rely on the bookkeeper's signature. She acted as a mere "scribe" when the general manager, in the payee's presence, ordered her to write that check. Ordinarily, of course, agents are liable for misrepresentations made on the principal's behalf, but here the focus was on the payee's reliance on the bookkeeper's "low-ranking position in the corporation."

Multiplicity - Multiple Perjury Charges Arising from
False Testimony at Preliminary Hearing

State v. Warren, No. 99-0129-CR (filed 29 June 1999) (ordered published 21 July 1999)

A jury convicted the defendant of two counts of perjury contrary to Wis. Stat. section 946.31(1)(c) in connection with testimony he gave at the criminal preliminary hearing of one David Brown. The defendant's testimony incriminated Brown in a bank robbery and potentially qualified the defendant for a reward. During that preliminary hearing the defendant gave false testimony as to whether he and Brown had driven to the city where the robbery occurred to case the bank and whether, subsequent to the robbery, he helped Brown hide the proceeds.

The issue before the court of appeals was whether charging the defendant with multiple counts of perjury based on testimony given to a circuit judge in the same proceeding violates the rule against multiplicity. In a decision authored by Chief Judge Cane, the appellate court answered in the negative. Applying Wisconsin's well-settled, two-part multiplicity test, the court concluded that the two perjury counts were not multiplicitous. While the two charges against the defendant were identical in law, they were different in fact. Though closely linked, each conviction required proof of an additional fact that the other did not. Further, each offense required a "new volitional departure" in the defendant's conduct. The court of appeals further concluded that the Legislature intended to permit multiple counts of perjury occurring during the same proceeding.

Interrogation - Sixth Amendment Right to Counsel

State v. Hornung, No. 99-0300-CR (filed 20 July 1999) (ordered published 17 Aug. 1999)

The state filed a criminal complaint and warrant against the defendant for sexual exploitation of a child and second-degree sexual assault. The defendant subsequently surrendered to his probation agent. The critical issue on appeal was whether statements he subsequently gave to police were obtained in violation of his Sixth Amendment right to counsel.

Under the Sixth Amendment, a person formally charged with a crime has a right to counsel at every critical state of the proceeding. The Sixth Amendment right attaches when a warrant is issued or a complaint filed. However, once the Sixth Amendment right to counsel has attached, a criminal defendant must seek to exercise this right. The attachment of the right to counsel, coupled with a criminal defendant's assertion of this right, prohibits the government from initiating any contact or interrogation concerning the charged crime, and any subsequent waivers by a defendant during a police-initiated contact or interrogation are deemed invalid. Because in this case the defendant had already been charged with a complaint and warrant, the Sixth Amendment had attached. The issue was whether the defendant effectively asserted his Sixth Amendment right to counsel, thereby triggering its protections.

In a decision authored by Chief Judge Cane, the court of appeals concluded that the defendant's assertion of his Sixth Amendment right to counsel was evident throughout the officer's interrogation of the defendant. The defendant initially asked if the officer thought he should have an attorney and it was undisputed that the defendant asked if he could call a specific lawyer, whom the officer knew to be a criminal defense attorney. Given these circumstances, said the court, a reasonable officer should have known that the defendant's Sixth Amendment right to counsel was sufficiently asserted when the defendant asked to call the attorney. Thereafter, all questioning regarding the charges should have ceased. As the defendant's Sixth Amendment right to counsel was effectively triggered by its attachment and subsequent assertion, any subsequent and inculpatory statements or fruits thereof should have been suppressed as violative of the defendant's constitutional rights.

Preliminary Breath Tests - Admissibility of PBT Results
in Nonmotor Vehicle Cases

State v. Doerr, No. 98-1047 (filed 28 July 1999) (ordered published 17 Aug. 1999)

The defendant was convicted by a jury of two counts of battery to a police officer and one count of resisting an officer. These charges arose after a deputy sheriff had pulled the defendant's vehicle over after observing "erratic driving behavior." During the course of the field investigation the officer administered a preliminary breath test (PBT) to measure the defendant's blood alcohol level. That test showed a blood alcohol level of 0.21 percent.

Among the issues on appeal was whether the trial court erred by admitting evidence of the PBT at the defendant's trial on the battery and resisting charges without any corresponding expert testimony. Wis. Stat. section 343.303 prohibits the use of the results of a PBT in any action or proceeding except for challenges to probable cause to arrest or the necessity of a chemical test. In this case the circuit court concluded that the section 343.303 bar on the evidentiary use of PBT results is limited to motor vehicle violations and that the test results could be used as evidence at the trial on battery and resisting charges which are not motor vehicle violations. The court of appeals, in a decision authored by Judge Anderson, agreed with this conclusion.

However, the court concluded that prosecutors who wish to rely on PBT test results in nonmotor vehicle cases are required to present evidence of the device's scientific accuracy and reliability and prove compliance with accepted scientific methods as a foundation for the admission of the test results.

Police Officers - "Just Cause" Hearing for Demotion
of Promoted Police Officers Serving in Probationary Capacity

Antisdel v. Oak Creek Police and Fire Commission, No. 97-3818 (filed 20 July 1999) (ordered published 17 Aug. 1999)

The plaintiff is a police officer. In 1996 he was promoted to the rank of sergeant. A memorandum that the police chief sent to him at the time of his promotion told the plaintiff that he was being promoted to the position of sergeant and that, upon completion of a one-year probationary period, he would receive a permanent appointment as sergeant. During that one-year time a new police chief demoted the plaintiff back to his original rank of police officer. The plaintiff sought a "just cause" hearing under Wis. Stat. section 62.13(5)(em) to contest the demotion. The police and fire commission refused to grant him a hearing. The plaintiff sought review in the circuit court, which granted summary judgment to the defendants and dismissed the plaintiff's action.

In a decision authored by Judge Fine, the court of appeals reversed the circuit court. The only issue before the appellate court was whether the police and fire commission acted under an incorrect theory of law in denying the plaintiff a hearing under section 62.13(5)(em). It concluded that any promotion the plaintiff received could not be taken away without the "just cause" hearing required by the statute cited above. Any other rule, said the court, would give to the appointing authority the limitless power to circumvent the legislatively created "just cause" protection against arbitrary action by simply making every promotion temporary or probationary or otherwise terminable at will.

Judge Shudson filed a concurring opinion. Judge Curley dissented.

Termination of Parental Rights - Abandonment of Child -
Appeals of TPR Decisions

Carla B. v. Timothy N., No. 99-0853 (filed 9 June 1999) (ordered published 21 July 1999)

The circuit court granted Carla's petition to terminate the rights of Timothy to their daughter Jessica on the ground of abandonment. Timothy filed a notice of intent to appeal within the 30-day period prescribed by statute, but failed to serve a copy of the notice on Carla and her counsel, as required by Wis. Stat. section rule 809.107(2). The court of appeals began its decision in this case by addressing the threshold question of whether the lack of service of notice of intent to appeal deprived the court of appeals of jurisdiction to hear the case.

In a decision authored by Judge Brown, the court concluded that in TPR cases the filing of the notice of intent to appeal confers jurisdiction on the court of appeals. In a TPR appeal, a person must file a notice of intent to appeal prior to the notice of appeal. While in other civil cases it is the timely filing of a notice of appeal that confers jurisdiction on the court of appeals, in a TPR case it is the filing of the notice of intent to appeal. Service does not initiate the appeal - filing does. Accordingly, the court held that even though the notice of intent to appeal was not properly served in this case, the cause was legitimately before it.

Turning to the merits of the termination, Timothy claimed that the circuit court erred in finding sufficient evidence of abandonment because he had been prohibited by a family court order from visitation with his daughter. Under Wis. Stat. section 48.415(1)(a)3, abandonment may be established by showing that "the child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child, and the parent has failed to visit or communicate with the child for a period of six months or longer." The statute further provides that the time period referred to above shall not include periods during which the parent has been prohibited by judicial order from visiting or communicating with the child.

The appellate court concluded that a court order prohibiting visitation, but allowing communication, does not excuse a complete lack of contact. Thus, Timothy's failure to visit Jessica, if it indeed was a product of the judicial order, cannot be counted in computing the time period referred to above. But he was not prohibited from communicating with his daughter and he could have done so to maintain contact. The time in which he did not communicate with her can and does count in a determination of abandonment.

In this case there was ample support in the record for the circuit court to find abandonment. Timothy has not seen or spoken with his daughter since 1993. Only after Carla petitioned to terminate his parental rights in 1997 did he begin to write to his daughter. Since then, he has sent her five or six letters. Said the court of appeals, the record supports the finding that sufficient grounds for abandonment were shown.

Regarding Timothy's argument that he was judicially foreclosed from visiting his daughter, the court noted that the original family court order did not actually deny visitation, but instead created a condition precedent that Timothy had to fulfill before he could exercise visitation. The family court order allowed Timothy supervised visitation if he saw a therapist and made such progress that the therapist could opine how visitation between Timothy and Jessica would not be harmful to Jessica. While Timothy testified that he did seek counseling after the divorce, he quit some time in 1994. The appellate court was confident that Timothy's abandonment of therapy was evidence of his abandoning his daughter as well.

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