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    Wisconsin Lawyer
    February 01, 1999

    Wisconsin Lawyer February 1999: Court of Appeals Digest

    Court of Appeals Digest

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

    | Attorney Fees | Attorneys | Civil Procedure | Criminal Law | Criminal Procedure | Disability Law | Evidence | Family Law | Insurance | Motor Vehicle Law | Nuisance | Real Property | Sexual Predator Law | State Government | Torts | Worker's Compensation | Zoning |


    Attorney Fees

    WEJA - "Market Rate" - "Special Factors"

    Stern v. Wis. Dept. of Health and Family Services, No. 98-1493 (filed 21 Oct. 1998) (ordered published 18 Nov. 1998)

    This case concerns the proper amount of attorney fees. The underlying action involved a termination of a person's medical assistance benefits by the DHFS without prior written notice. Under the Wisconsin Equal Access to Justice Act (WEAJA) a successful plaintiff can recover attorney fees at "market rate," not to exceed $75 per hour. Trial courts can award higher amounts if "special factors" exist, such as an unusually complex case.

    In the trial court, the successful plaintiff argued for attorney fees in excess of $75 per hour based on the complexity of the law relating to Medicaid and Supplemental Security Income. In the alternative, the plaintiff asked for a cost of living increase. The judge granted the cost of living increase, using 1981 as the base year for calculating the percentage increase.The judge did not address the special factor increase.

    The court of appeals, in an opinion written by Judge Brown, modified the order. The court agreed with DHFS that the appropriate base year was 1985, not 1981. The trial judge used 1981 because it was the effective year for the federal legislation on which the WEAJA was modeled. The WEAJA, however, went into effect in 1985.The Legislature's intent was that 1985 serve as the base year for determining cost of living increases.

    The court of appeals also addressed the "special factors" argument. From its review of the undisputed facts of record, the court of appeals held that the issues in this case were not unusually difficult - "it is well established that notice is required before the termination of public assistance benefits." Other cases might well present special factors where they necessitate an "understanding of the complex interaction between state and federal law."

    Terminated Employees - Fiduciary Duty - Wage Claims - Wis. Stat. chapter 109

    Jacobson v. American Tool Companies Inc., No. 97-2219 (filed 14 Oct. 1998) (ordered published 18 Nov. 1998)

    In this case the plaintiff claimed that a company violated his employment contract when it refused to pay his stock appreciation rights after it terminated his employment. The circuit court awarded a judgment in the plaintiff's favor.

    The court of appeals, in an opinion written by Judge Anderson, affirmed in a decision that addressed three issues. The first two issues involved well-accepted principles of law as applied to the facts. First, the credible evidence supported the trial court's finding that the plaintiff was awarded the stock rights before he was terminated. Second, the evidence also established that the plaintiff's actions, which involved his dual role as corporate officer and employee, were "fair and reasonable" and were not a breach of a fiduciary duty. Third, and most significantly, the court of appeals agreed that the plaintiff was entitled to attorney fees under chapter 109 of the Wisconsin Statutes. Although section 109.03(6) does not specifically mention "attorney fees," the court concluded that they are incorporated into the "expenses" permitted by the statute. Under applicable precedent, the failure to award the plaintiff attorney fees would leave him in a "significantly worse economic situation than when he began his lawsuit." Such a reading undercuts the purpose of chapter 109, which is "to ensure that employees receive their full wages."


    Attorneys

    Settlements - Representing Multiple Parties - Ethical Duties - "Crafty Lawyering"

    Gustafson v. Physicians Ins. Co., No. 97-3832 (filed 18 Nov. 1998) (ordered published 16 Dec. 1998)

    The plaintiff alleged that he was damaged when several doctors treated him for a cancer that he did not have. The plaintiff was represented by an attorney who allegedly agreed to also represent the interest of the subrogated health insurance carrier, MNIC, in the action against the doctors and their malpractice insurer, Physicians Insurance Co. (PIC). The plaintiff lost his claims at trial. In negotiations after trial, the plaintiff agreed not to appeal if PIC waived its right to tax costs against him. About a month later PIC submitted a proposed order seeking attorneys fees and taxable costs against MNIC. Plaintiff's counsel and MNIC disputed whether counsel had agreed to represent MNIC's interests. The judge eventually entered the order against MNIC finding, in part, that "MNIC did not have an attorney-client representation agreement" with plaintiff's counsel.

    Judge Anderson, writing for the court of appeals, reversed. First, the court found that there was a contract for legal services between plaintiff's counsel and MNIC. Telephone conversations, a letter, and other circumstances demonstrated that counsel agreed to represent MNIC at trial.The court also rejected the plaintiff counsel's argument that his agreement was limited to "proving up" the plaintiff's medical expenses at trial. Rather, counsel's obligation was to "represent MNIC's subrogation interest and as its representative was required to complete all actions."

    The second issue concerned the adequacy of counsel's representation on MNIC's behalf. Counsel was duty bound to represent both plaintiff and MNIC. His agreement to waive plaintiff's right of appeal in exchange for PIC's promise not to tax costs against the plaintiff "did not represent MNIC's interests at all." Quite the contrary, it appeared that the settlement "benefited one client at the expense of another."

    Third, under these circumstances, the court held that "allowing PIC to tax costs against MNIC 'would be drastically unfair.'" The court was plainly troubled that "'crafty lawyering' was at play in the settlement negotiations."

    Finally, MNIC was not foreclosed from litigating costs because it had failed to file a written waiver of its intent to be represented by plaintiff's counsel pursuant to Wis. Stat. section 803.03(2)(b). More specifically, this "technical requirement" did not bar MNIC's assertion that it had formed a representation agreement with plaintiff's counsel.


    Civil Procedure

    Service of Process - Out-of-State Process Servers - Fundamental Defect

    Bendimez v. Neidermire, No. 98-0656 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)

    The plaintiff served the Wisconsin defendants by an out-of-state process server. The trial judge concluded that any statutory violation was merely a technical defect.

    The court of appeals, in an opinion written by Judge Hoover, reversed. The defendants were served by a "nonresident" in violation of Wis. Stat. section 801.10. Under prevailing case law this constituted a fundamental defect that entitled the defendants to summary judgment. Service is "designed to attain jurisdiction over the defendants." Case law requires "strict compliance" with the statutes governing service, which is a "condition precedent to a valid exercise of personal jurisdiction." Service by residents assures that the process server "is readily subject to process in the state of service in the event an issue arises as to service."

    Garnishments - Defaults - Amended Complaint - Time to Answer

    Ness v. Digital Dial Comm. Inc., No. 96-3436 (filed 14 Oct. 1998) (ordered published 18 Nov. 1998)

    In this garnishment action the trial court ruled that the 20-day period in which to file an answer under Wis. Stat. section 812.11 began when the plaintiff filed the amended complaint, even though the party was already in default. The court of appeals reversed.

    Writing for the court, Judge Anderson framed the issue as follows: "When does an amended garnishment summons and complaint, filed but not served on the defaulting party in accordance with sec. 801.14(1), Stats., supersede the original complaint?" The court held "that an amended pleading that does not present any additional claims for relief against a defaulting party relates back to the time the original complaint was filed; therefore, it does not create another twenty-day response period for an answer." A defaulting party already has disregarded its opportunity for defending itself or presenting additional issues or claims. Allowing a defaulting party a "second chance" would create an absurd result under the statutes.


    Criminal Law

    Persistent Repeater Statute - Constitutionality - Assault by Prisoner Statute

    State v. Block, No. 97-3265-CR (filed 28 Oct. 1998) (ordered published 18 Nov. 1998)

    The defendant was incarcerated at the Oshkosh Correctional Institute for second-degree murder and attempted first-degree murder. His victim in this case was a social worker employed at the institution. When she informed the defendant he was to be moved to another institution, the defendant approached her from behind while she was leaving the grounds and struck her three or four times in the head with a padlock wrapped in a sock. He was charged with battery by a prisoner (Wis. Stat. § 940.20(1)) and assault by a prisoner (Wis. Stat. § 946.43(1)). For the assault count he was charged as a persistent offender under Wisconsin's "three strikes" law codified at section 939.62(2m)(b). The defendant was found guilty on both counts; he was sentenced to life imprisonment pursuant to the persistent repeater statute.

    On appeal the defendant challenged the constitutionality of the persistent repeater statute on equal protection grounds. He asserted that the legislature's classification of what is considered a "serious" felony for purposes of the three strikes statute is arbitrary and unreasonable. He gave several examples where certain less serious felonies are counted in the "three strikes" calculation whereas other more serious felonies are not.

    Applying the rational basis standard for analyzing the equal protection claim, the court of appeals rejected the defendant's challenge. The determination of which crimes deserve what penalties is one of the core functions of the legislature, and it is within the legislature's power to classify crimes, recognize different degrees of harm that result from them, and decide which more urgently need repression. Because the choices made by the legislature in the persistent repeater statute did not rest on grounds wholly irrelevant to the achievement of the state's objective, the court declined to tamper with it.

    The defendant also claimed that the state failed to prove all of the elements of the assault by prisoner charge, specifically arguing that the victim could not have been in apprehension of a battery because it was a surprise attack. One of the elements of the assault by prisoner statute is that the defendant place the victim in apprehension of an immediate battery likely to cause death or great bodily harm. The defendant argued that because his attack was a surprise, the victim could not have been in apprehension of it.

    The court of appeals concluded that there was ample evidence presented to permit the jury to conclude that the victim was in apprehension of an immediate battery and that the defendant intended to place her in such apprehension. The victim testified that before the attack, she had frequently seen the defendant outside her office, staring at her. On the day of the attack, the victim had informed the defendant that he was to be moved to a more secure building. When the victim was leaving the grounds, she felt a blow to her head, looked over her shoulder, and saw the defendant. She recalled that after that first blow she "knew it was a real problem when she realized she was getting hit more than once." Based on the testimony, the jury could have concluded that, after the first blow, she was in apprehension of an immediate battery - the subsequent blows - and that the defendant, through all of his actions up to and including the attack, intended to place her in such apprehension. In the context of this statute, the court concluded that the onset of apprehension of a battery may occur while the battery is in progress.


    Criminal Procedure

    Prosecutorial Vindictiveness - Presumptions

    State v. Johnson, No. 97-1360-CR (filed 10 Nov. 1998) (ordered published 16 Dec. 1998)

    Following a jury trial, the defendant was convicted of sexually assaulting two children. He originally was charged with one count of sexual assault. A trial resulted in a hung jury. Prior to the second trial, the prosecutor filed an amended information charging an additional count of sexual assault and burglary. By letter, the prosecutor agreed to drop the new counts and allow the defendant to plead to a single sexual assault, with sentencing left to the court's discretion. The letter also addressed the potentially longer prison sentence should the defendant take the matter to trial. The trial judge denied the defendant's motion to dismiss the amended information.

    The court of appeals, in an opinion written by Judge Fine, reversed and remanded the case for further proceedings because the trial judge erred by rejecting his pretrial claim of prosecutorial vindictiveness. Since the case had been tried once, the law created a "presumption of prosecutorial vindictiveness," the purpose of which is to prevent the "chilling" of a defendant's rights. Retrying the defendant on the original charge would have created no presumption of vindictiveness. In this case, however, the addition of two felony charges coupled with the offer to withdraw the amended information if defendant waived his trial rights satisfied the prima facie showing necessary to the presumption.

    On remand, the state has the burden of demonstrating by a preponderance of the evidence that the additional charges were not added solely to persuade the defendant to plead guilty. Should the state fail, a potential remedy is the vacatur of the additional sexual assault count, "leaving intact his conviction on the first count of first-degree sexual assault of a child if the evidence presented in connection with the second count and the burglary count would have been admissible at trial under Rules 904.04(2) and 904.03, Stats., if Johnson had been retried on the first count only."

    Forfeiture of Vehicle Used to Transport Stolen Property - "Innocent Owner" Defense - Meaning of "Owner"

    State v. Kirch, No. 98-0582 (filed 29 Oct. 1998) (ordered published 18 Nov. 1998)

    The defendant stole a 16-foot tri-axle trailer using a truck registered to his mother. The mother told the police that although the truck was registered in her name, it belonged to her son. She stated that he provided the money to purchase the vehicle, as well as the money for the sales tax and registration. She stated that the truck was listed in her name because her son was undergoing a bankruptcy and he said that he could not have a vehicle in his name.

    The state filed a complaint pursuant to Wis. Stat. sections 973.075 and 973.076 demanding forfeiture of the truck. The sole issue at the forfeiture hearing was whether the defendant or his mother was the "owner" of the truck for purposes of the "innocent owner" defense. The latter, which is codified in section 973.075(1)(b)2, provides that no vehicle is subject to forfeiture by reason of any act or omission established by the owner of the vehicle to have been committed without his or her knowledge or consent. The term "owner" is not defined in the forfeiture statute, but is defined in the Motor Vehicle Code as one who holds legal title. Using this definition, the trial court concluded that the defendant's mother was the "owner" of the truck and, because she had nothing to do with the commission of the crime, it dismissed the state's forfeiture complaint.

    The court of appeals, in a decision authored by Judge Dykman, reversed. It rejected use of the Motor Vehicle Code definition of ownership because the Vehicle Code restricts its definitions to provisions contained therein and a few others. Instead, the court concluded that the factors of possession, title, control, and financial stake ought to be used when determining ownership for purposes of the "innocent owner" defense.

    In this case the mother was listed on the title as the owner, but she had no financial stake in the truck because it had been purchased entirely by her son. Nor did she possess or have control over the actual vehicle. She has not claimed ownership of the truck and stated that the truck "belongs to" her son, and that she was only listed as the owner because he was undergoing a bankruptcy and did not want to have the truck in his name. These, said the court of appeals, are not the indicia of an "owner" of a vehicle. Accordingly, it concluded that the mother was not the "owner" of the truck as that term is used in the forfeiture statute.

    Search Warrant Applications - Magistrate's Inference That Drug Dealer's Residence Contains Contraband

    State v. Ward, No. 97-2008-CR (filed 8 Oct. 1998) (ordered published 18 Nov. 1998)

    The defendant appealed felony convictions for possession of controlled substances with intent to deliver contending that evidence derived from a search of his residence should have been suppressed. He argued that the search was improper because the warrant application did not provide sufficient facts from which the issuing magistrate could conclude that there was probable cause to believe that evidence of criminal activity would be located within his home.

    The affidavit in support of the warrant demonstrated that an individual named Vance, who recently had been arrested for dealing marijuana, identified a "Lance" [the defendant's name is Lance Ward] on Royce Street in Beloit, Wis., as his supplier; that Beloit property tax records showed that the defendant owned property at 1663 Royce Street; and that police had received four "pieces of intelligence" indicating that the defendant was a drug dealer. Though the affidavit failed to provide a direct connection between the items sought in the warrant and the dwelling on Royce Street to be searched, the circuit court concluded that it was reasonable for the issuing magistrate to infer that drug dealers would store their products and other evidence of criminal activity within their residences.

    In a majority opinion authored by Judge Deininger, the court of appeals reversed. It began its analysis by noting that whether a warrant-issuing magistrate may rely upon his or her own experience to infer, solely from information that a person sells drugs, that evidence of drug dealing likely will be found within his or her residence is a question of first impression in Wisconsin. While it is true that the Wisconsin Supreme Court has recognized that issuing magistrates may draw the usual inferences that reasonable people draw from evidence when determining whether a particular warrant application states probable cause to believe that evidence of criminal activity is likely to be found in a designated location, the court in this case believed that it was being asked to ratify a magistrate's inference that supplied information that was wholly missing from the warrant application. This the appellate court declined to do. It was not convinced that the approach urged by the state - that a magistrate's inference that drug dealers keep incriminating evidence in their homes is always reasonable - is consistent with Wisconsin case law. Such a blanket rule would relieve law enforcement of any responsibility to place before a magistrate the underlying circumstances that establish a substantial basis that evidence of drug dealing likely will be found in the dealer's residence.

    The court indicated that its rejection of the state's position on this appeal does not mean that police must obtain a direct observation of controlled substances on the premises before a warrant may be obtained to search a suspected drug dealer's home. The court cited United States v. Lalor, 996 F. 2d 1578 (4th Cir. 1993), which offered examples of information that links criminal activity to the defendant's residence, such as prior discovery of contraband in the suspect's place of residence, a suspect's return to his or her residence between negotiating and consummating a drug transaction, and surveillance that connects drug activity to a suspect's residence. The court also cited a leading Fourth Amendment treatise that provides additional examples, including drug sales that occur "near the home."

    In sum, the court concluded that the affidavit presented to the issuing judge in this case as described above did not provide a substantial basis for finding probable cause that evidence of drug dealing likely would be found at that location. Although the court will defer to a magistrate's conclusion whenever possible, and will permit reasonable inferences to sustain the reliability and timeliness of information in warrant applications, neither the Fourth Amendment nor its equivalent provision in the Wisconsin Constitution permits a magistrate to infer a link between evidence of drug dealing and the dealer's residence when the application is devoid of any facts or information from which to infer such a link.

    Judge Roggensack filed a dissenting opinion.


    Disability Law

    ADA - Discrimination by Employers - Personal Liability of Agents of Employers

    Alberte v. Anew Health Care Services Inc., No. 96-3225 (filed 20 Oct. 1998) (ordered published 16 Dec. 1998)

    The issue in this case was whether the Americans with Disabilities Act (ADA) permits imposition of personal liability on one who is an "employer" by virtue of her status as an "agent" of an "employer." In a majority decision authored by Judge Fine, the court of appeals held that it does.

    Anew Health Care Services Inc. provides skilled nursing services to persons in the community. The plaintiff used to work for Anew. She was fired by defendant Sprenger, who was president, administrator, and 47.5 percent owner of Anew. The plaintiff claimed that Sprenger fired her because of the plaintiff's disability. In this lawsuit she sought to hold Sprenger personally liable, in addition to seeking damages from Anew. Sprenger contended that she cannot personally be held liable for what she did as an officer, part owner, and employee of Anew. The circuit court agreed, but the court of appeals reversed.

    The ADA makes it illegal for any "covered entity," which is defined to include an "employer," to "discriminate against a qualified individual with a disability." The Act defines "employer" to mean inter alia "a person engaged in an industry affecting commerce" who employs at least a specified minimum number of employees "and an agent of such person." Anew Health Care admitted that it is an "employer"; defendant Sprenger admitted that she is an "agent." The ADA gives to anyone claiming to be a victim of a violation under it the remedies set forth in Title VII of the Civil Rights Act. Title VII defines "employer" to include "any agent" of the "person" deemed to be an "employer." Relying on these definitions, the majority concluded that Sprenger was an "employer" as that term is used in the ADA and thus is subject to personal liability for violations of the ADA.

    Judge Curley filed a dissenting opinion.


    Evidence

    Accident Reenactments - Expert Foundation - Videotapes

    State v. Peterson, No. 97-3737-CR (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

    A jury convicted the defendant of multiple crimes arising out of a drunk-driving related accident involving a boat. On appeal the defendant contended that the trial judge erred by excluding from evidence a videotape "that demonstrated the conditions of the river at the time of the accident." The judge ruled that a proper foundation required expert testimony.

    The court of appeals, in an opinion written by Judge Vergeront, reversed and remanded for a redetermination of the videotape's admissibility. The admissibility of pretrial reenactment evidence is within the trial court's discretion and subject to a weighing of probative value against unfair prejudice under section 904.03. In this case the judge erred by requiring expert testimony as a necessary predicate for the admissibility of "video images." Videotapes, like any other form of photographic evidence, can be authenticated by a lay witness who testifies that, based on personal knowledge, the videotape fairly and accurately depicts what he or she saw. The defense provided such evidence in this case and the state offered nothing to rebut it. The trial judge also erred by excluding the videotape based on the judge's personal knowledge of the river's condition at night. The court of appeals carefully distinguished between a judge's proper use of judicial notice (what we all "know") from an improper expression of personal knowledge. Finally, the judge also excluded the videotape under section 904.03, but the errors necessitated a remand so that the trial judge could reconsider balancing of probative value and prejudicial effect.


    Family Law

    Domestic Abuse Injunctions - "Household Member"

    Petrowsky v. Krause, No. 97-2205 (filed 4 Nov. 1998) (ordered published 16 Dec. 1998)

    Annette Petrowsky and Brad Krause dated from June 1994 until September 1996. During the summer of 1996, they took numerous trips to Brad's parents' cabin in northern Wisconsin. They would stay in the cabin together and then return to their respective homes in Ozaukee County. They did this repeatedly throughout that summer.

    In September 1996 the parties ended their dating relationship. There was evidence that they were in contact after that, although it was disputed who initiated the contacts. These communications caused Brad to contact the police in June 1997 and Annette to petition for a temporary restraining order against Brad under the domestic abuse statute in August 1997. The petition alleged physical and emotional abuse throughout their relationship and a threat of physical violence during a 1997 phone call.

    The temporary restraining order was granted. Subsequently the circuit court found that there was sufficient evidence to conclude that the parties were living together during the summer of 1996 and that there were reasonable grounds to believe that Brad had engaged in or may engage in domestic abuse against Annette. Accordingly, the court issued a domestic abuse injunction.

    The issue on appeal was whether the trial court erred in issuing the domestic abuse injunction. The Wisconsin domestic abuse statute applies to certain acts engaged in by "an adult family member or adult household member against another adult family member or adult household member." See Wis. Stat. § 813.12(1). The statute defines "household member" to mean any person "currently or formerly residing in a place of abode with another person."

    In this case the parties were dating, but were not married. The evidence demonstrated that they stayed together under one roof when they took frequent trips to a cabin during the summer of 1996. In a unanimous decision authored by Judge Brown, the court of appeals concluded that, as a matter of law, the evidence was insufficient to find that they were "household members" for purposes of the domestic abuse statute. Said the court, the clear language of the statute mandates a continuous living arrangement between the parties in order for them to be considered household members. Annette and Brad dated for more than two years while maintaining separate residences. Their summer excursions, while perhaps frequent, did not amount to a domestic living arrangement. Had the evidence showed that the two stayed together while at the cabin and in Ozaukee County, the result may be different. The court did not think it significant that the parties reside together only in one place, but did believe that it is important that they reside together on a continuous basis in order to come within the parameters of the domestic abuse law.

    Child Custody - Revisions of Physical Placement Orders - Moving Child's Residence Outside the State - Power of Court to Refuse to Allow Minor Child to Testify

    Hughes v. Hughes, No. 97-3539 (filed 12 Nov. 1998) (published 16 Dec. 1998)

    This case involves the revision of physical placement orders and the interplay between Wis. Stat. sections 767.325 and 767.327. The former governs revisions to physical placement orders whereas the latter, among other things, governs moving the child's residence outside the state.

    Section 767.325 provides that it is "applicable to modifications of legal custody and physical placement orders," "except for matters under s. 767.327 or 767.329 [revisions by stipulation]." This means that if one parent contemplates a move, that parent must proceed under section 767.327, and section 767.327(3) then governs placement and custody modification if the move is contested. The latter statute permits modification if it is in the best interest of the child and the move results in a substantial change in circumstances. However, neither section 767.325 nor 767.327 states that, once a parent has provided notice of a move under section 767.327, the parent opposing the move may not bring a motion for a revision of physical placement under section 767.325 based upon a substantial change in circumstances other than the proposed move.

    Despite the urgings of the appellant in this case, the court of appeals concluded that sections 767.325 and 767.327 do not conflict. The latter applies where the only potential substantial change in circumstances is the proposed move, whereas the former applies when the moving party asserts that circumstances other than those associated with a proposed move have changed. Both statutes establish a rebuttable presumption that continuing the child's physical placement with the parent with whom the child spends the most time is in the child's best interest, and both require that the court determine if modification is in the child's best interest, in addition to determining if there is a substantial change in circumstances. The difference is that under section 767.327 the move is the basis for the requisite substantial change in circumstances, whereas section 767.325 does not contain that limitation.

    The court also reviewed the circuit judge's decision refusing to allow the minor child's mother to call the child as a witness in the proceedings.

    One of the factors the court "shall consider" in deciding what is in a child's best interest with respect to placement and custody is "the wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional." See § 767.24(5)(b). The plain language of the statute does not require that the child testify to his or her preference in court, or even that the trial judge communicate in person with the child. The statute requires the court to consider the child's preference, but it does not require the court to use any particular method to inform itself of the preference. How the statutory duty is discharged is left to the court's discretion. The appellate court in this case concluded that the trial judge properly exercised his discretion in not permitting the child to testify given that the judge was concerned by the parents' high level of hostility over the child's physical placement and the difficulty the child would have in testifying about her preferences in front of both parents.

    Finally, the court of appeals rejected the mother's argument that she had a right to call the minor child as a witness because the minor was competent to testify under Wis. Stat. section 906.01, which provides that "every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules." The general rule on competency of witnesses permits the minor to testify as an evidentiary matter; it does not remove nor negate the trial court's discretion in the particular circumstances of a custody or placement dispute to decide that it is not in the child's best interest to testify to the child's preference on placement or custody.


    Insurance


    Pollution Exclusion - "Nontoxic" Qualities

    Guenther v. City of Onalaska, No. 98-0724 (filed 19 Nov. 1998) (ordered published 16 Dec. 1998)

    The Guenthers suffered damage when their sewer backed up into their basement. The circuit court dismissed their claim against the city's insurer based on a pollution exclusion.

    The court of appeals, in a decision authored by Judge Roggensack, reversed. The court found that the pollution exclusion was ambiguous. Ambiguity in the policy arose from the distinction between the "toxic" and "nontoxic" qualities of potential discharges (or flooding). The insured (the city) could have "reasonably understood that the exclusion for 'contamination by pollutants' did not apply to an occurrence as routine as a domestic sewer backup, which caused at least some damages, which were unrelated to any toxic nature of the sewage."


    Motor Vehicle Law


    OWI - Preliminary Breath Tests - Requirement of Probable Cause - Constitutionality of Loud Muffler Statute

    County of Jefferson v. Renz, No. 97-3512 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

    The critical issue in this case was the amount of evidence that a law enforcement officer must have in order to request a motorist to provide a breath sample for a preliminary breath test (PBT). Wis. Stat. section 343.303 provides that if a law enforcement officer has "probable cause" to believe that the person is violating or has violated the OWI law or certain similar offenses, the officer may, prior to an arrest, request the person provide a sample of his or her breath for a PBT. [Note: A different and less demanding threshold is used in the statute with reference to testing commercial vehicle operators.]

    The county argued that the probable cause required to request a PBT is a lesser standard than the probable cause required for an OWI arrest. Otherwise, said the county, the PBT would not be necessary. The circuit court agreed with this position.

    In a decision authorized by Judge Vergeront, the court of appeals reversed. While granting that the county's interpretation of the statute was reasonable, the court concluded that a more reasonable interpretation, when considering the purpose, context, and history of the statute, is that the probable cause required for a PBT is the same standard as probable cause to arrest for OWI. The court acknowledged that requiring probable cause to arrest before requesting a PBT limits the conditions under which the PBT may be requested and undercuts the use of a PBT to establish probable cause to arrest. However, it does not deprive the PBT of all meaning or function. Even if an officer has probable cause to arrest, he or she may decide to request a PBT first, and then use the results in deciding whether to actually make an arrest.

    Another issue addressed by the court is the constitutionality of the loud muffler statute, a violation of which was the basis for the officer's initial contact with the defendant in this case. Wis. Stat. section 347.39 provides that no person shall operate on a highway any motor vehicle subject to registration unless such vehicle is equipped with an adequate muffler in constant operation and properly maintained to prevent any excessive or unusual noise or annoying smoke. The defendant contended that the statute violates due process because it is vague. Rejecting this claim, the court concluded that the challenged term "excessive noise" means "unreasonable noise" and the concept of reasonableness is sufficiently definite to satisfy the vagueness test. The statute makes clear that excessive or unusual noise is to be judged against the noise emitted by a muffler that meets statutory requirements when originally installed on the vehicle.


    Nuisance


    Permanent and Continuing Nuisances - Statute of Limitations

    Sunnyside Feed Co. Inc. v. City of Portage, No. 98-0709 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

    Sunnyside Feed Mill is a historic building located in the city of Portage. In 1986 and 1987, the city conducted a restoration project along the canal where the building is located. As a result of the manner in which the restoration project was conducted, Sunnyside notified the city of the possibility of a claim regarding the ongoing damage to the mill's structure and foundation and, after filing a notice of claim, sued the city in 1996 claiming that the city was negligent in the manner in which it conducted the restoration project and that its actions or inactions constituted an ongoing nuisance.

    The city and its insurer filed a motion for summary judgment, asserting that the claims were time-barred by the statute of limitations. The court granted the motion on the negligence claim but denied it as to the nuisance claim. At trial the jury found the city created a nuisance and awarded Sunnyside damages.

    Among the critical issues on appeal was one relating to the statute of limitations on the nuisance claim. If a nuisance is permanent, a suit must be commenced within the applicable statute of limitations. However, if a nuisance is continuing, the nuisance claim is not barred by a statute of limitations because there is no statute that bars an action for a continuing injury to property. See Speth v. City of Madison, 248 Wis. 492, 22 N.W.2d 501 (1946). A nuisance generally is considered to be continuing if it can be discontinued or abated, or if it is an ongoing or repeated disturbance, such as a disturbance caused by noise, vibration, or foul odor. In this case the court concluded that the testimony presented showed that the harm caused by the city to the plaintiff is ongoing and could be abated. Thus, the nuisance claim was not time barred.

    As a matter of procedure the court concluded that where, as in this case, the underlying facts surrounding the creation of the asserted nuisance are undisputed, and application of a statute of limitations is the issue, whether the nuisance is permanent or continuing becomes a question of law to be decided by the trial court and reviewed de novo by the court of appeals. In footnote, the court observed that where damages are disputed, and the evidence is conflicting as to whether the nuisance is permanent or continuing, the question should be submitted to the jury.


    Real Property


    Slander of Title - Lis Pendens - Condominium Units

    Interlaken Service Corp. v. Interlaken Condominium Assoc. Inc., No. 97-1107 (filed 7 Oct. 1998) (ordered published 18 Nov. 1998)

    A service corporation brought a breach of contract action against a condominium association, alleging a failure to pay for services provided to the association. Later, the service corporation filed an amended complaint requesting a proportional lien against each condominium unit under section 703.25(3) of the Wisconsin Statutes. It also filed a lis pendens pursuant to the same statute. The association counterclaimed that the lis pendens constituted a slander of title under Wis. Stat. section 706.13. The trial court dismissed the counterclaim because the service corporation was both "privileged and required" to file the lis pendens.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. In a "conventional civil suit," a judgment results in a lien on all real property of every person against whom the judgment is entered in the county where the judgment is rendered. See Wis. Stat. § 806.15(1). A "very different situation" is contemplated by section 703.25(3) because of the "unique[ness]" of condominiums. Although the condominium association is the defendant under the statute, not the individual condominium owners, "the lien granted by the statute operates against the property of the condominium owners even though those persons were not defendants in the action." Thus, "the lien follows the real estate, not the owner." For these reasons, a lis pendens is "critical to protect a prospective condominium purchaser."

    Adverse Possession - Common Grantor - Predecessors-in-Title

    Keller v. Morfeld, No. 97-3443 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)

    In this action to quiet title between neighbors, the Kellers maintained that they acquired title to the disputed property by the adverse possession of the prior owner as against their neighbors' predecessors-in-interest. When Thorson, the prior owner, purchased the property in the early 1950s there was only a tavern on it. Later he subdivided the property into two separate parcels and built a house on the northerly part. Thorson sold the tavern parcel in 1977 and continued to live in the house. He treated the disputed land as part of the property belonging to the residential lot and used it for parking and storing equipment used in his business. Thorson sold the house to the Kellers in 1987 and they continued to treat the disputed land as part of their residential lot (for example, planting trees). The Morfelds acquired the tavern property in 1987. The tavern parcel had gone through a number of the Morfelds' "predecessors" since Thorson sold it in 1977. The trial judge ruled that the disputed property belonged to the Kellers.

    The court of appeals, in an opinion written by Judge Eich, affirmed. This was an "atypical" adverse possession because the grantor, Thorson, "whose adverse possession the Kellers seek to 'tack on' to their own, was also the grantor to the Morfelds' predecessors-in-title." This meant that the Kellers had to establish that Thorson's possession was adverse to the Morfelds' predecessors. Addressing several nineteenth century cases that identified a "presumption" that a grantor cannot possess adversely against his or her grantee, the court of appeals rejected the reasoning as "tautological." The cases did not identify a true presumption; rather, they apply "accepted principles of adverse possession to the situation where the opposing parties have taken their land from a common grantor, in the same manner as in any other case." Placing "structural encroachments" on the land is not a requirement of adverse possession. The record adequately supported the trial judge's finding that Thorson used the property adversely to the interests of those who owned the tavern
    parcel.


    Sexual Predator Law


    Commitments - Antisocial Personality Disorder - "Mental Disorder"

    State v. Adams, No. 96-3136 (filed 10 Nov. 1998) (ordered published 16 Dec. 1998)

    Adams appealed his commitment as a sexually violent person under chapter 980 of the Wisconsin Statutes. This case presented several issues of first impression. The court of appeals, in an opinion written by Judge Schudson, affirmed the commitment.

    First, the court concluded "that, under ch. 980, a person who has the mental disorder of 'antisocial personality disorder,' uncoupled with any other mental disorder, may be found to be a 'sexually violent person.'" Second, the court upheld the constitutionality of commitments predicated on a diagnosis of antisocial personality disorder. Adams argued that antisocial personality disorder "is too imprecise a category to pass due process muster." Even assuming that antisocial personality disorder is a fairly "common" diagnosis, chapter 980 would never permit commitment based only upon the diagnosis. Rather, the state must demonstrate that the individual satisfied the other criteria of section 980.01(7) in order to qualify a "sexually violent person." Third, the court held that there was sufficient evidence supporting the jury's verdict.

    Finally, the state did not violate Adams' rights by impermissibly commenting on his right to remain silent. Case law precludes prosecutors or psychologists from commenting on a defendant's refusal to speak with a psychologist. In this instance, however, Adams attacked the ethics of a psychologist for rendering an opinion without having examined the defendant. Nor was there proof that the prosecutor had used Adams' silence as proof of guilt during closing arguments (which were not transcribed). The court addressed several other issues which did not amount to reversible error of any sort.


    State Government


    Wisconsin Attorney General - Power to Challenge Constitutionality of State Statute

    State v. City of Oak Creek, No. 97-2188 (filed 24 Nov. 1998) (ordered published 16 Dec. 1998)

    The Wisconsin attorney general was involved in environmental litigation in which he sought to have the City of Oak Creek's channelization of Crawfish Creek declared a nuisance. As part of that litigation the attorney general challenged the constitutionality of Wis. Stat. section 30.056, which exempts the city from certain permit requirements with respect to its channelization of the creek.

    A critical issue on appeal was whether the Wisconsin attorney general may challenge the constitutionality of a state statute. In a majority decision authored by Judge Fine, the court concluded that he may not. The Wisconsin constitution sets the scope of the attorney general's authority: "the powers, duties and compensation of the treasurer and attorney general shall be prescribed by law." See Wis. Const. Art. VI § 3. This clause means that the attorney general in Wisconsin has no powers other than those specified by the legislature. The court was unable to identify any statute authorizing the attorney general to challenge the constitutionality of state statutes. Other than the narrow exception that permits challenges to legislative apportionments, it is the attorney general's duty to defend the constitutionality of state statutes. See Public Intervenor v. Department of Natural Resources, 115 Wis. 2d 28, 339 N.W.2d 324 (1983).

    In footnote the majority noted that there have been many cases where the attorney general has challenged the constitutionality of legislation. However, the state admitted at oral argument that in none of the prior cases was the power of the attorney general to do so either disputed (as it was in this case) or decided.

    Judge Schudson filed a dissenting opinion.


    Torts


    Emotional Distress - "Indirect" Exposure to the Event

    Rosin v. Fort Howard Corp., No. 98-0861 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)

    Bradley was 9 years old when his father was killed in an explosion at a power plant. His mother told him the tragic news the next morning. That afternoon in the newspaper, Bradley saw a photograph of his father's body being taken from the accident scene. A psychologist linked Bradley's ongoing emotional and psychological problems to the traumatic photo. By his guardian ad litem, Bradley brought an action against the defendants (in particular, the power plant's owner). The circuit court dismissed the claim for negligent infliction of emotional distress because of an insufficient link between the defendants' conduct and the boy's emotional
    distress.

    The court of appeals, in a decision written by Judge Cane, affirmed based on the public policy analysis set forth in recent case law. Bradley did not personally observe his father's death or personally see his father's body at the accident scene. Moreover, Bradley learned about his father's death through "indirect" means; that is, his mother's statements and the newspaper photo.

    Sales of Goods - Economic Loss Doctrine - Negligence

    Biese v. Parker Coatings Inc., No. 98-1466 (filed 3 Nov. 1998) (ordered published 16 Dec. 1998)

    The owner of a sports bar contracted with a flooring company to install a special floor. Parker Coatings Inc. provided the flooring materials. When problems developed with the floor that could not be fixed, Parker and the flooring company installed a new floor. When the problems persisted, Biese filed a negligence action against Parker alleging that it had provided defective flooring materials, improper instructions on installation, and other claims. Biese sought damages for repair and replacement of the defective floor, lost profits, and damage to the business's reputation. The circuit court granted summary judgment in Parker's favor. Absent a claim of personal injury or physical harm, Biese's remedy was a breach of warranty claim, not a tort claim.

    The court of appeals, in an opinion written by Judge Cane, affirmed. Under the case law, "economic loss is damage to a product itself or monetary loss caused by a defective product that does not cause personal injury or damage to other property." The court held, "[I]n cases involving mixed transactions for goods and services between a remote commercial purchaser and a manufacturer, even in the absence of privity, we will apply the predominant purpose test to the entire underlying transaction to determine if the economic loss doctrine bars a remote commercial purchaser's negligence claim against a manufacturer for solely economic losses." For most commercial products, service is incidental to sales. For this reason, "allowing a purchaser to recover solely economic loss for the negligent provision of services when the predominant purpose is a sale of goods would render the economic loss doctrine virtually meaningless and would allow a remote commercial purchaser who incidentally receives services from a manufacturer to circumvent the economic loss doctrine."

    In this case, Biese plainly wanted to obtain the product that a third party applied to the floor. Biese's damages resulted from a failed commercial product caused by a defective chemical component, "not because Parker negligently provided services." Parker's services were clearly incidental to Biese's purchase of the product.


    Worker's Compensation


    Disability Payments - Advanced Payments - Interest Computation

    Hamm v. LIRC, No. 98-0051 (filed 18 Nov. 1998) (ordered published 16 Dec. 1998)

    Joyce was injured while working in 1991. She was awarded monthly partial permanent disability benefits of about $600 until the sum of $60,000 had been paid. In 1994 Joyce requested "an advance lump sum payment" under section 102.32(6) of the Wisconsin Statutes, which authorizes such distributions. A dispute arose over the computation of interest as determined by the hearing examiner. LIRC affirmed the examiner, as did the circuit court, who determined that the employer was entitled to an interest credit on Joyce's advanced disability benefits on a 7 percent per annum basis. Joyce contended that it should be applied at a flat rate.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The court held that section 102.32(6) was ambiguous as to "whether the 7 percent credit granted to insurers who advance a lump sum payment of benefits is to be computed at a flat or per annum rate." LIRC's interpretation was reasonable because section 102.32(6) "provides that permanent disability benefits 'shall be made to the employee on a monthly basis' unless advance payments are approved by the Department. When such payments are approved, the interest credit provision compensates the employer or the employer's insurer for lost interest on the payment paid in a lump sum - money which would have otherwise been paid out over time."


    Zoning


    Setback Ordinances - Variances - "Unnecessary Hardship"

    State ex rel. Spinner v. Kenosha County Board of Adjustment, No. 97-2094 (filed 11 Nov. 1998) (ordered published 16 Dec. 1998)

    The respondent owns property fronting on a lake in Kenosha County. His property is unusual because a meandering creek from the lake bisects the middle of his land. County zoning ordinances require buildings to be set back 75 feet from any navigable water. Due to the peculiarity of the property in question, the respondent must accommodate both navigable waters - the creek as well as the lake - with the 75 foot setback requirement.

    The respondent desired to build a residence on the property and sought a zoning variance to do so. The Kenosha County Board of Adjustment granted the variance because it found that with the irregular shape of the respondent's property, an "unnecessary hardship" would result from enforcing the setback requirement. Neighboring landowners petitioned for certiorari review of the variance grant but the circuit court affirmed the board's decision.

    The court of appeals, in a decision authored by Judge Anderson, reversed the circuit court. It agreed with the neighbors that the board applied an incorrect theory of law for determining whether an "unnecessary hardship" was present for the zoning variance request and that the evidence was insufficient to support the board's conclusion.

    The court of appeals resolved the appeal by examining the "unnecessary hardship" standard developed by the Wisconsin Supreme Court in another case involving Kenosha County. See State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). In that decision the supreme court stressed that the board's proper focus when considering a variance request should be the purpose of the zoning regulation. "When the record before the board demonstrates that the property owner would have a reasonable use of his or her property without the variance, the purpose of the statute takes precedence and the variance request should be denied." Accordingly, the supreme court concluded that "only when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance, is an unnecessary hardship present."

    In this case the court of appeals found that there was no evidence presented that a different design of the proposed house could not incorporate the setback requirement. Without such evidence, the applicant still may enjoy a reasonable use of the property without a variance. The burden is on the applicant to demonstrate through the evidence that without the variance he or she is prevented from enjoying any reasonable use of his or her property. The applicant must present evidence demonstrating that no other home design could incorporate the setback requirement on the property. In this case he failed to do so and therefore a reasonable use for his property without a variance remains a possibility.

    Judge Nettesheim filed a concurring opinion.

    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


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