Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appeals | Civil Procedure | Contracts |
| Criminal Evidence | Criminal
Procedure |
| Employment Law | Insurance | Mobile Homes
|
| Motor Vehicle Law | Municipal Law
|
| Sexual Predators | Torts |
Appeals
Judicial Substitutions - Entry of Order and Judgments - Proper
County
State v. Williams,
No. 98-3338-CR (filed 11 Aug. 1999) (ordered published 28 Sept.
1999)
A criminal prosecution was commenced against the defendant in Racine
County but it was assigned to a Kenosha County judge when a substitution
was filed. The state filed a notice of appeal on Nov. 13 from an order
on Sept. 28 granting a new trial. The court of appeals raised a question
about when the Sept. 28 decision was entered.
In a per curiam opinion, the court held that "when a judge from a
different county is assigned to a case in response to a substitution
request, orders and judgments of the assigned judge must be entered in
the office of the clerk of circuit court in which the action was
originally filed in order to commence the applicable appeal period under
sec.
808.04, Stats." Put another way, "[p]ossession by the assigned
judge's in-county clerk does not constitute filing and entry for appeal
purposes."
In this case the state had the burden of proving that its notice of
appeal was timely. By failing to show when the Racine County clerk came
into possession of the Sept. 28 decision, the state left the appellate
court in an "evidentiary vacuum" warranting dismissal of the appeal.
Civil Procedure
Intervention - Requirements of Wis. Stat. section 803.09(1)
Wolff v. Town of
Jamestown, No. 98-2974 (filed 22 July 1999) (ordered published
28 Sept. 1999)
The Wolffs sought to develop for residential use a rugged tract of
land overlooking the Mississippi River in the town of Jamestown in Grant
County. The land has no direct highway access from Wisconsin, but can be
reached only via a circuitous route south into Illinois. The land is
currently zoned A-2, which permits primarily agricultural uses. To
develop the land as they wished, the Wolffs had to obtain a conditional
use permit from the county, which has zoning authority over the property
by virtue of the town's approval of the county zoning ordinance. The
town nevertheless retained substantial responsibility for the well-being
of its residents and the property within its boundaries.
The town consistently opposed the Wolffs' development proposal on the
grounds that it would be difficult to reach the property in order to
provide necessary services, such as fire protection, ambulance service,
and bus transportation for school children. The Wolffs' application for
a conditional use permit was initially approved by the county planning
and zoning committee. The town appealed that approval to the Grant
County Board of Adjustment and the board ultimately denied the Wolffs'
application. The Wolffs then filed suit in circuit court, seeking
certiorari review of the board's decision and a writ of mandamus
compelling the board to approve the application.
The town moved to intervene in the Wolffs' suit. The circuit court
denied the motion on the grounds that the town's interests were
adequately represented by the county, which was already a party to the
suit. The town appealed.
The sole issue before the court of appeals was whether the town was
entitled by right to participate as a party in the litigation. In a
decision authored by Judge Deininger, the court of appeals answered in
the affirmative.
The Wisconsin Rules of Civil Procedure permit an outsider with an
interest in a lawsuit to intervene and participate as a party to the
suit. Section
803.09(1) of the Wisconsin Statutes provides that an outsider has a
right to intervene when four conditions are met: 1) the potential
intervenor makes a timely motion to intervene; 2) the potential
intervenor claims an interest in the property or transaction that is the
subject of the suit; 3) the disposition of the suit may, as a practical
matter, impair or impede the potential intervenor's ability to protect
that interest; and 4) the potential intervenor's interest is not
adequately represented by one or more parties to the suit.
In this case the appellate court concluded: 1) the town's motion to
intervene was timely; 2) the town has a legally protected interest in
that it has a statutory right to challenge the board of adjustment
decision via an action in certiorari and, further, the town has a
substantial interest in the well-being of the residents and property
located within its boundaries; 3) the town has already prevailed before
the board of adjustment and its victory is now being attacked in this
action, thereby giving the town an interest in a lawsuit the disposition
of which could impair or impede the town's ability to protect its
interest; and 4) though the town and county are not wholly adverse
parties, the town may have more at stake than the county should the
Wolffs secure a reversal of the board of adjustment decision.
Accordingly, the town met all of the requirements of the statute cited
above and was entitled by right to intervene in the Wolffs' suit against
the county.
Contracts
Alterations - Duty to Read - Contract Reformation - Attorney as
Witness
Hennig v. Ahearn,
No. 98-2319 (filed 26 Aug.1999) (ordered published 28 Sept. 1999)
Hennig brought claims against his former employer, Heartland
Development Corporation, alleging misrepresentation and seeking contract
reformation. While negotiating Hennig's executive compensation contract,
Heartland's president, Ahearn, allegedly altered a critical provision at
the last minute but failed to point out the change. The trial court
ruled that Ahearn had no duty to disclose the change and that Hennig's
negligence barred the claims as a matter of law.
The court of appeals, in an opinion written by Judge Deininger,
reversed. The opinion carefully analyzes the law and closely scrutinizes
the record in some detail. Only a summary of the court's conclusions are
presented. As to the misrepresentation claim, the court first determined
that Ahearn had a duty to disclose the last minute change. There was
sufficient evidence in the record from which "a jury could find that
Ahearn made the last-minute change in the compensation arrangement
hoping that Hennig would not notice it, and that Hennig would thereby
sign an agreement that Hennig would not have knowingly accepted."
Second, as to the issue of justifiable reliance, the evidence raised a
question of fact for the jury, which could conclude that the change was
"not obvious," consisting of "nine words inserted in the middle of a
paragraph-long, multi-part definition."
Second, the trial court erred in concluding that contract reformation
was not appropriate. Hennig "established a basis for his reformation
claim by presenting evidence of his unilateral mistake and Ahearn's
possibly fraudulent or inequitable conduct." The court of appeals set
forth the elements of a contract reformation claim, the evidentiary
burden, and its assessment of the record.
The court also addressed several evidentiary issues. Most
importantly, error occurred when the trial judge barred Hennig's
attorney from testifying about the status of the negotiations and his
reasons for reviewing only selected portions of the final contract
draft. The court analyzed the attorney's testimony as a "lay opinion"
under section
907.01. The opinion also addressed the permissible scope of expert
testimony offered by another attorney regarding customary business
practices.
Criminal Evidence
Other Acts - Rule of Completeness - Defendant's Statements
State v. Anderson,
No. 98-3639 (filed 19 Aug. 1999) (ordered published 28 Sept. 1999)
The court of appeals, in an opinion written by Judge Vergeront,
affirmed the defendant's conviction for first-degree intentional
homicide. The defendant murdered a woman following a quarrel over
cocaine. On appeal, the defendant raised two evidentiary issues.
First, the court of appeals, in an opinion written by Judge Brown,
found no abuse of discretion in the admission of other acts evidence
under section
904.04(2). Applying the framework set forth in State v. Sullivan (1998), the court
addressed the use of other acts evidence (a prior sexual assault) for
the purpose of providing "context." The context related to the
defendant's statement, "a dead bitch can't say anything." Assessed in
light of the defendant's prior sexual assault conviction, the statement
established "his motive to stay out of prison and his intent to kill
Boshears so she could not testify against him."
The second issue concerned the application of the doctrine of
completeness. The state introduced parts of the defendant's statements
to a detective as admissions by a party opponent. The trial court,
however, refused to permit the defendant to introduce other parts of his
statement during cross-examination of the detective. The state argued
that such an examination would permit the defendant to testify "by the
back door" without ever taking the witness stand.
The court of appeals ruled that this constituted an abuse of
discretion and evidentiary error. Certain statements in the detective's
report were necessary under the doctrine of completeness whether or not
the defendant testified. After extensively discussing the case law, the
court held that "when a defendant in a criminal case objects to
testimony of his out-of-court statement as incomplete, or attempts to
cross-examine the witness on additional portions of the defendant's
out-of-court statement and the state objects, the court should make the
two-part discretionary determination required by [State v.
Eugenio] without regard to whether the defendant intends to
testify. Once the court has determined that any additional portion of
the statement is necessary under the Eugenio standard, it must
permit the presentation of that additional portion, although the timing
of that presentation is discretionary: it may occur during the state's
case or when the defense recalls the witness during its case." On this
record, the detective's testimony presented a misleading view of what
the defendant said about his role in the murder. The court cautioned,
however, that the defendant is not entitled to introduce all relevant
statements about his role; rather, only those statements necessary to
correct the misleading view are admissible. (In the final part of the
opinion, the court found the error to be harmless.)
Criminal Procedure
Involuntary Intoxication - Prescription Medication - Experts - Armed
Burglary
State v. Gardner,
No. 98-2655-CR (filed 11 Aug. 1999) (ordered published 28 Sept.
1999)
The court of appeals, in an opinion written by Judge Brown, affirmed
the defendant's convictions for armed burglary, sexual assault, and
false imprisonment. The victim was his estranged wife. The defendant
raised two lines of argument.
First, he contended that the trial court erroneously excluded expert
testimony offered to establish an involuntary intoxication defense.
Addressing an issue heretofore unresolved in Wisconsin, the court held
that the involuntary intoxication defense is available where the
defendant was taking prescription medication. (Under Wisconsin law,
involuntary intoxication must render the defendant incapable of judging
right from wrong.) The court adopted the standard employed by Texas
courts, which limits the involuntary intoxication defense to "(1) the
defendant's unawareness of what the intoxicating substance is; (2) force
or duress; or (3) medically prescribed drugs taken according to
prescription." (Emphasis original.) The defense is thus inapplicable
"where a patient knowingly takes more than the prescribed dosage, or
mixes a prescription medication with alcohol or other controlled
substance," or "voluntarily undertakes an activity incompatible with the
drug's side effects." The court then examined the record, concluding
that the defendant's offer of proof failed to meet the standard. The
expert's "rambling theories" and speculations failed to "even suggest
that the amount of Paxil (a drug) Gardner was taking could have rendered
him incapable of distinguishing right from wrong." For similar reasons,
the defendant failed to raise a jury issue that entitled him to an
instruction on the involuntary intoxication defense.
Second, the defendant argued that the state had to show some nexus
between the burglary (entering his wife's home without consent) and the
weapon he was carrying (the knife). Relying on a 1997 case, the court
rebuffed the invitation. "For armed burglary, the possession of the
weapon while burglarizing a home always has something to do with the
crime."
Jury Selection - Defendant's Presence - Reversible Error
State v. Harris,
No. 98-1091-CR (filed 10 Aug. 1999) (ordered published 28 Sept.
1999)
The court of appeals, in an opinion written by Judge Fine, reversed
the defendant's conviction for first-degree intentional homicide. Error
occurred when the trial judge began questioning potential jurors before
the defendant or his attorney were present. Although "well-intentioned,"
the procedure essentially handed the defendant a "pig in the poke."
Since the state failed to show that the judge's conduct did not
adversely affect the defendant's rights under section
971.04(1)(c) of the Wisconsin Statutes, there was a failure to show
that the error was harmless beyond a reasonable doubt.
Search and Seizure - Curtilage - Odor of Burning Marijuana -
Probable Cause
State v. Wilson,
No. 98-3131-CR (filed 2 June 1999) (ordered published 17 Aug. 1999)
A police officer went to the defendant's home looking for a female
juvenile for whom he had an arrest warrant. He believed the juvenile
might be at the defendant's home because of a past association between
the two. As the officer approached the home, he observed children
playing in the backyard. Though the defendant and his girlfriend claimed
that they had instructed this officer to use the front door when
visiting their home, the officer nevertheless walked into the backyard.
There he asked a young girl whether she had seen the juvenile for whom
he had the warrant and, when the girl denied having seen the juvenile
that day, the officer asked the girl if her parents were home.
The officer followed the child to the back door of the residence and
claimed to be able to smell the odor of burning marijuana from just
outside the house. The officer thereafter entered the inside landing of
the premises and from that location could smell the odor of burning
marijuana emanating from the basement. Almost immediately thereafter the
defendant approached the officer from the basement and, after inquiring
about the juvenile's whereabouts, the officer asked the defendant about
the marijuana odor. The defendant responded by stating that he had to
use the bathroom, whereupon the officer advised him that he could not go
until he was searched. This exchange between the two was repeated and,
in an ensuing search of the defendant's pocket, the officer found
marijuana.
The defendant was then placed under arrest for possession of a
controlled substance. After conviction on this charge he appealed a
circuit court order denying his motion to suppress evidence. He claimed
that the officer's unlawful invasion of his home's curtilage and the
subsequent unlawful search of his person tainted both the physical
evidence seized and the statements he made following arrest.
In a decision authored by Judge Myse, the court of appeals concluded
that the officer unlawfully penetrated the curtilage of the defendant's
home. The curtilage is the area immediately adjacent to the home to
which a person extends the intimate activities associated with the
privacies of life. The appellate court reached its conclusion not only
because the officer was standing on the pavement immediately adjoining
the back entrance to the home, but also because the nature and use of
the defendant's property demonstrate that the area where the officer was
standing was one of intimate activity and that there was a reasonable
expectation of privacy there. The state conceded that a backyard area
where children are playing is associated with the privacies of life. In
addition, the back door of a home is intimately related to the home
itself and to home activities because it provides access and egress to
the backyard and garage area. While there were no apparent enclosures
surrounding the home, the back door of the home could not be seen from
the front of the house or from the street or sidewalk. While the rear
door could perhaps be seen from other areas outside the property, this
itself does not mean that there was no expectation of privacy.
Curtilage, said the court, is not to be defeated merely because the
subject area may be observed by some. In so stating the court recognized
that in a smaller urban community (in this case, Antigo), it is not
unusual for others to be able to see into the rear yard of a home.
Accordingly, the court concluded that the officer's intrusion into this
area at the rear of the home was without legal authority and
consequently his discovery of the marijuana odor was without legal
justification.
The court also concluded that the search of the defendant's pocket
resulting in the discovery of a baggie containing marijuana was
unlawful. It held that the defendant was effectively arrested when the
officer twice refused to allow him to leave to use the bathroom. At that
point in time, although the officer had identified the odor of marijuana
coming from the basement, he acknowledged that several people could be
heard in the basement and there was no greater basis to believe that the
defendant was the source of the odor than any of the other individuals
present in the basement. Accordingly, the officer lacked probable cause
to arrest the defendant. The evidence obtained from the unlawful search
must accordingly be suppressed.
Restitution - General Damages - Special Damages
State v. Holmgren,
No. 98-3405-CR (filed 13 July 1999) (ordered published 17 Aug. 1999)
The defendant was convicted of felony theft and ordered to pay
restitution. All of the issues on appeal related to the restitution
order. Section
973.20(5)(a) of the Wisconsin Statutes provides that a restitution
order may require the defendant to "pay all special damages, but not
general damages, substantiated by evidence in the record, which could be
recovered in a civil action against the defendant for his or her conduct
in the commission of a crime considered at sentencing." In this opinion
the court of appeals addressed the distinction between general damages
and special damages.
General damages are those that necessarily result from the injury
regardless of its special character, the conditions under which the
injury occurred, or the plaintiff's circumstances. Under the criminal
restitution statute general damages are those that compensate the victim
for damages such as pain and suffering, anguish, or humiliation.
However, under the statute cited above, a court is prohibited from
ordering restitution for the victim's general damages.
A court may nevertheless require a defendant to pay special damages
the victim sustains which are substantiated by evidence in the record.
As used in the criminal restitution context, special damages encompass
harm of a more material or pecuniary nature and represent the victim's
actual pecuniary losses. Any readily ascertainable pecuniary
expenditures paid out because of the crime are appropriately classified
as special damages.
Guilty Plea - Failure to Advise Defendant of Jury Unanimity
Requirement - Remedy
State v. Grant,
No. 98-2206-CR (filed 18 Aug. 1999) (ordered published 28 Sept.
1999)
The defendant waived his right to a jury trial and was found guilty
on several counts following a trial to the court. On appeal he argued
that he is entitled to a new trial because at the time he waived his
right to a jury trial, the trial court failed during its colloquy with
the defendant to advise him that a verdict in a criminal jury trial must
be unanimous.
In a decision authored by Judge Mueller (a circuit judge sitting by
special assignment pursuant to the Judicial Exchange Program), the court
of appeals concluded that, although the trial court failed to properly
advise the defendant of the jury unanimity requirement, he is not
thereby automatically entitled to a new trial. Rather, the appropriate
remedy is a post-conviction motion pursuant to the procedures set forth
in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), to
determine the defendant's knowledge and understanding of the rights
being waived.
Adapting Bangert to the situation posed in this case, the
defendant must first make a prima facie showing that the jury waiver was
defective and that he did not understand the jury unanimity requirement.
If he makes that showing, the burden then shifts to the state to show by
clear and convincing evidence that the defendant in fact voluntarily and
intelligently waived his right to a jury trial. If the state fails to
meet its burden of proof, the conviction must be reversed because there
is nothing in the record to indicate that the defendant was in fact
properly apprised of his right to a unanimous jury verdict or that he
voluntarily and intelligently waived that right. If the state does meet
its burden, the facially defective record is overcome by evidence
showing that the defendant's constitutional right to a jury trial was
not violated because he understood his right to jury unanimity and
voluntarily waived that right.
As indicated above, the Bangert decision requires a
threshold allegation by the defendant that he did not know or understand
the rights at issue before he may be entitled to a hearing on his claim.
The defendant failed to make this allegation. Accordingly, his
post-conviction motion was deficient and was properly denied by the
trial court.
Trials - Defense Stipulation to Element of Offense
State v. Benoit,
No. 98-1531-CR (filed 28 July 1999) (ordered published 17 Aug. 1999)
The defendant was charged with burglary. Prior to trial, he and his
attorney stipulated on the record to the owner's nonconsent, which is an
element of the crime. At the conclusion of the trial, the court
instructed the jury on the elements of burglary, including non-consent.
The court further informed the jury that the parties had stipulated to
owner nonconsent and that the jury must accept that fact as conclusively
proven.
On appeal the defendant argued that the trial court erred in
concluding that he had received a jury trial on the element of
nonconsent. He argued that he should have been provided a thorough
colloquy ensuring a "voluntary, knowing, and intelligent waiver" of his
right to a jury trial on the nonconsent element. In a decision authored
by Judge Snyder, the court of appeals disagreed with the defendant's
position and affirmed the conviction.
In deciding this case, the appellate court distinguished three cases
upon which the defendant relied. One was Kemp v. State, 61 Wis.
2d 125, 211 N.W.2d 793 (1973), wherein the defendant waived jury and
requested the court to decide the case from stipulated facts. The
Kemp court noted that the trial judge had very carefully and
thoroughly explained to the defendant all of his rights, including the
right and importance of a jury trial and the effect of a jury waiver. In
this case the appellate court did not think that Kemp was
controlling because, unlike the defendant in Kemp, this
defendant did not stipulate to all of the facts in the case; rather, he
merely waived his right to challenge one issue - nonconsent. In its jury
instructions, the court advised the jury that the defendant had
stipulated to the nonconsent element and that the jury must view the
facts as conclusively proven. The court then instructed the jury on the
elements of burglary, including nonconsent. The jury then made a
complete and final determination of guilt based on the evidence
presented; the court played no role as factfinder.
The court also distinguished State v. Villarreal, 153 Wis.
2d 323, 450 N.W.2d 519 (Ct. App. 1989). In that case, while in the midst
of the jury trial, Villarreal's attorney conceded that there was no
dispute concerning the dangerous weapon penalty enhancer with which the
defendant had been charged and therefore stipulated that the dangerous
weapon element should be removed from jury consideration and be
determined by the trial court. In that situation the court of appeals
concluded that only an express personal jury waiver would permit the
court to decide an element of the charged offense. Unlike
Villarreal, the nonconsent element in the defendant's trial was
not passed on to the court; instead, it was merely conceded by the
defendant. Because the jury was instructed on all elements of the crime,
the defendant received a jury trial on each and every element. His
stipulation did not constitute a waiver of his right to a jury trial and
thus he did not need to make an express personal waiver to render the
stipulation valid.
Finally, the court considered the applicability of State v. Wallerman, 203 Wis. 2d
158, 552 N.W.2d 128 (Ct. App. 1996). Wallerman established a
procedure for addressing a defendant's stipulation to a criminal element
for which the state wishes to introduce "other acts" evidence. Because
that situation was not presented in the present case, the appellate
court concluded that the Wallerman methodology did not
apply.
Employment Law
Wisconsin OSHA - Hazards OSHA Meant to Address
West v. Department of
Commerce, No. 98-1693 (filed 18 Aug. 1999) (ordered published
28 Sept. 1999)
West is a police officer at the University of Wisconsin-Oshkosh
(UWO). Her duties include the full range of patrol activities, including
the apprehension of lawbreakers. Pursuant to the UWO chancellor's
policy, campus police may not carry a firearm unless they are
transporting money or escorting others doing the same. After
unsuccessful attempts to convince the chancellor to change his policy,
West filed a complaint with the Wisconsin Department of Commerce (DeCom)
alleging occupational health and safety violations. DeCom determined
that Wisconsin's public employee safety and health statute (WisOSHA)
(Wis. Stat. §
101.055(1)) is limited to physical conditions in the workplace and
thus denied West a hearing on her complaint. The circuit court reversed
and the court of appeals, in a decision authored by Judge Brown,
reversed the circuit court.
WisOSHA affords government employees the same protection extended to
private sector employees under the federal OSHA law. There are two
grounds under WisOSHA for which DeCom must issue an enforcement order:
1) a violation of a standard or variance; and 2) a situation that poses
a recognized hazard likely to cause death or serious physical harm. Only
the second is involved in this case.
The issue before the court of appeals was whether the potential harm
in this case - the possibility of being injured by the public while
performing the work duties of an unarmed police officer - is the type of
hazard meant to be addressed by WisOSHA. The court concluded that the
statute was meant to address tangible, measurable hazards in the
workplace. The abstract threat West faces in her job is simply not the
type of workplace issue the Legislature had in mind. West's complaint is
in no way connected to a tangible hazard. Because there exists no set of
facts West could have proven at a hearing that would have brought her
claim within the ambit of WisOSHA, DeCom correctly denied her a
hearing.
Insurance
UM Coverage - Adult Children - Bodily Injury
Ledman v. State Farm Mut.
Auto. Ins. Co., No. 9-0267 (filed 17 Aug. 1999) (ordered
published 28 Sept. 1999)
The plaintiffs' 30-year-old daughter was killed in a car crash with
an uninsured driver. She had not lived with the plaintiffs for more than
a year and was driving her fiancé's car at the time. The plaintiffs
filed a claim against their auto insurer, State Farm, alleging that
their damages were covered by the uninsured motorist provision (UM). The
insurer denied the claim but a circuit court granted declaratory relief
in the plaintiffs' favor.
The court of appeals, in an opinion written by Judge Wedemeyer,
reversed because the trial court's construction of the policy would lead
to an "absurd result." Here, the plaintiffs had undeniably suffered
emotional harm, but no physical injury. In essence, the plaintiffs
argued that the policy language limiting UM coverage to "bodily injury
to an insured" applied only to the "hit-and-run" scenario. Read as a
whole, however, the policy clearly contemplated bodily injury to an
insured. For similar reasons, the court reversed the award of attorney
fees.
Judge Schudson concurred.
Mobile Homes
Mobile Home Parks - Protection for "Residents" under Wis. Stat.
section 710.15 and for "Tenants" under Wis. Admin. Code section ATCP
125.06
Benkoski v. Flood,
No. 98-1972 (filed 14 July 1999) (ordered published 17 Aug. 1999)
Benkoski rents four mobile home sites in the Floods' Mobile Home Park
at which he keeps his mobile homes. He rents the homes to tenants. The
Floods informed Benkoski that his homes would have to be removed from
the park when they were sold and rejected applications for tenancy
submitted by potential buyers of Benkoski's mobile homes. Benkoski then
filed suit against the Floods.
In this suit Benkoski claimed the Floods violated Wis. Stat. section
710.15(3)(b) and (4), which prohibit a mobile home park operator
from requiring removal of a mobile home due to the age of the home or a
change in ownership or occupancy. Further, he alleged that the removal
requirement constituted a violation of Wis. Admin. Code section
ATCP 125.06(1)(a), which forbids an operator from placing
unreasonable restrictions on the sale of a mobile home in the park.
The central issue on appeal was whether Benkoski, the owner of the
mobile home units, is a resident of the park for purposes of the statute
and administrative code provision cited above, even though he does not
live in the park. Resolution of this issue is critical in determining
whether Benkoski is protected under the statute and code.
In a decision authored by Judge Brown, the court of appeals concluded
that Benkoski was indeed protected under the statute and code. To be
protected under the statute, Benkoski must be a "resident" of the park,
which is defined in the law as "a person who rents a mobile home site in
a park from an operator." Benkoski rents four sites from the Floods.
Therefore, he is a resident.
Benkoski also is entitled to protection under the Administrative
Code. To be protected he must be a "tenant." The code defines a tenant
as "any person renting a site from an operator." Again, he rents four
sites from the Floods and thus is a tenant for purposes of the
Administrative Code.
In sum, the Floods' policy that Benkoski would have to remove his
mobile homes when they were sold violates Wis. Stat. section
710.15(4) and Wis. Admin. Code section ATCP 125.06 and .09, both of
which protect him. He is thus entitled to damages pursuant to section
100.20(5).
Motor Vehicle Law
OWI - Forfeiture of Vehicle - Security Interest by Third Party -
Good Faith
State v.
Frankwick, No. 98-2484 (filed 14 July 1999) (ordered published
17 Aug. 1999)
In May and June of 1997, the defendant committed his fourth and fifth
OWI offenses within a 10-year period. On May 30, 1997, Waukesha County
filed a Stop Title Transfer Notice with the Department of Transportation
(DOT) advising the DOT that, pursuant to Wis. Stat. section 342.12(4),
any vehicles owned by the defendant should not be transferred until
notified by the court. On Dec. 2, 1997, the defendant pled guilty to the
May and June OWI offenses. He was sentenced to jail time and fined.
Further, the court ordered seizure and forfeiture of his truck, pursuant
to section
346.65(6).
Lynn Kurer was named as a defendant in the forfeiture action because
she held a lien on the truck. Kurer had perfected her security interest
in the truck by filing an application for title with DOT one day before
the defendant entered his guilty pleas. Based on the proximity of the
title application to the guilty plea, along with other factors, the
circuit court concluded that Kurer's lien was filed in bad faith and for
the purpose of circumventing the forfeiture penalty. Thus, the trial
court ordered the DOT to cancel the title processed on Dec. 1 and the
vehicle be forfeited.
Kurer appealed. In a decision authored by Judge Brown, the court of
appeals reversed. The court agreed with Kurer that section 346.65(6)(k)
does not come into play when a party applies for a new title to perfect
a security interest. The statute provides that "no person may transfer
ownership" or "make application for a new certificate of title under
sec. 342.18" unless the court makes a finding of good faith. While the
grant of a perfected security interest is a transfer of an interest in
property, the court concluded that it is not a transfer of ownership
within the meaning of section 346.65(6)(k). Nor is the grant of a
security interest a transaction for which one applies for a new title
under section
342.18. Accordingly, because the grant of a security interest is not
a transfer of ownership and requires application for title under a
different statute (section 342.19), section 346.65(6)(k) does not apply
when a party perfects a security interest in a vehicle.
Even though there is no requirement that the court make a finding of
good faith under section 346.65(6)(k) for perfection of a security
interest, the creation of such an interest still must be done in good
faith. Although perfection of the interest in a vehicle is governed by
section 342.19, the creation of the security interest is governed by the
Uniform Commercial Code. Pursuant to the requirements of section
401.203, the security interest in this case must have been created
in good faith. The court of appeals found that the basis for the trial
court's finding of bad faith in this case was not clear and it therefore
reversed and remanded to the circuit court for further fact-finding.
Municipal Law
Municipal Courts - Appeals - Trial on the Merits
Village of Menomonee Falls
v. Meyer, No. 98-3195 (filed 4 Aug. 1999) (ordered published 28
Sept. 1999)
The defendant was charged with everal offenses under municipal
statutes. At trial the municipal judge refused to permit the village
prosecutor to use critical evidence because of a discovery violation.
The judge then dismissed the charges because of the missing proof. The
village requested a new trial in the circuit court under section
800.14(4) of the Wisconsin Statutes. The circuit court convicted the
defendant and ordered him to pay forfeitures of more than $800.
The court of appeals, in an opinion written by Judge Anderson,
reversed. The statute's history revealed that the Legislature intended
section 800.14(4) to "reduce the number of municipal court appeals to
the circuit court from municipal ordinance violations." The village was
not entitled to a new trial in the circuit court because there had never
been a trial on the merits in the municipal court, as required by
subsection (4). (The village could have sought a review of the original
ruling under section 800.14(5)).
Sexual Predators
Probable Cause Hearings - 72 Hours - "Custody"
State v.
Brissette, No. 98-2152 (filed 18 Aug. 1999) (ordered published
28 Sept. 1999)
The respondent was committed as a sexually violent person under chapter
980 of the Wisconsin Statutes. On appeal he contended that the court
lost competence over the case because it failed to hold a probable cause
hearing within 72 hours of the filing of the chapter 980 petition.
Affirming, the court of appeals held that the phrase "in custody" in
section 980.04(2) "means in custody pursuant to ch. 980, Stats." Thus,
the time respondent spent "in custody" while serving a prison sentence
did not trigger the chapter 980 hearing time. The point of the probable
cause hearing is to "ensure that people are not held for unreasonably
long periods of time where the possibility exists that the state cannot
muster even minimal proof in support of allegations set out in the
petition or complaint." The same urgency is lacking where the person is
serving a prison sentence.
Torts
Respondeat Superior - Scope of Employment - Travel
Estate of Murray v. The
Travelers Ins. Co., No. 98-0497 (filed 10 Aug. 1999) (ordered
published 28 Sept. 1999)
Baritt, a physical therapist, was employed by the Olsten Health Care
Company. She used her own car to travel to Olsten's patients' homes to
administer physical therapy. In 1994 Baritt was in a car accident with
the Murrays. During litigation over liability, Olsten was named as a
party based on the contention that Baritt was acting within the scope of
her employment at the time of the accident. The judge later dismissed
Olsten.
The court of appeals, in an opinion written by Judge Curley,
reversed. The court held that "because Baritt's employment arrangement
with Olsten did not provide her with a fixed place of employment, the
holding" in DeRuyter v. Wisconsin
Electric Power Co., 200 Wis. 2d 349 (Ct. App. 1996) (aff'd by
an equally divided court, 211 Wis. 2d 169 (1997)), is inapplicable.
Under DeRuyter, "an employer could be held vicariously liable
for the negligent acts of an employee when commuting only if the
employer exercised control over the method or route of the employee's
travel." Here Olsten was in the business of providing home health care
to its clients/patients; thus, Baritt's role was more analogous to a
"traveling salesman." Applying "the general respondeat superior rules,"
the court concluded that "Baritt was acting within the scope of her
employment when she was involved in the automobile accident because
travel was an essential element of her employment duties with Olsten
and, consequently, at the time of the accident, her travel was actuated
by a purpose to serve her employer." See also Wis JI - Civil
4045.
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.
Wisconsin Lawyer
