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Vol. 72, No. 6, June 1999

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Court of Appeals Digest

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

| Civil Procedure | Contracts |
| Criminal Law | Criminal Procedure | Family Law |
| Insurance | Municipal Law | Paternity |
| Open Records Law | Real Property |

Exclusions - "Drive Other Car" - UM Coverage

Blazekovic v. City of Milwaukee, No. 98-1821-FT (filed 23 March 1999) (ordered published 21 April 1999)

The plaintiff was a firefighter who was injured when an uninsured motorist struck her fire truck. She filed suit against her auto insurers, American Family and American Standard, alleging that she was entitled to uninsured motorist coverage. Both insurers denied coverage based on identical exclusions governing "nonowned emergency type automobiles." The trial court ruled that the endorsement was invalid.

The court of appeals, in an opinion written by Judge Curley, affirmed. The court tracked case law that had struck down various exclusions and the subsequent statutes that had effectively overturned these cases. The court concluded "that while the legislature's statutory amendments to sec. 632.32 loosened what was previously a complete ban against 'drive other car' exclusions, the amendments did not make all 'drive other car' exclusions permissible." In particular, these "drive other car" exclusions are now valid in three limited instances: "(1) the vehicle is owned by the named insured or the spouse of the named insured or a relative living with the named insured; and (2) the vehicle is not listed in the policy; and (3) the vehicle meets neither the policy definition of a newly acquired vehicle nor the policy definition of a replacement vehicle."

Annexation - Challenge by Objecting Municipality - Notice of Claim

Town of Burke v. City of Madison, Nos. 98-0108 and 98-1362 (filed 11 March 1999) (ordered published 21 April 1999)

Owners and electors of certain properties located in the Town of Burke filed petitions for direct annexation by the City of Madison. The city responded with ordinances effecting the annexations. The town filed actions for declaratory judgment seeking to invalidate the annexations. The city filed timely responses and then moved to dismiss because the town had not filed notices of claim against the city pursuant to Wis. Stat. section 893.80.

The issue before the court of appeals was whether a notice of claim is required when a town files a lawsuit pursuant to Wis. Stat. section 66.021 objecting to a city's annexation of the town's land. In a decision authored by Judge Roggensack, the court concluded that because the Town of Burke brought its claims pursuant to a specific statutory scheme devised by the Legislature to effect and to resolve objections to annexations in a timely fashion and because the policies that underlie the notice of claims statute would not be furthered by requiring that a notice of claim be filed prior to the town's commencing suit, the town was excused from complying with the notice of claims statute prior to bringing suit to contest the validity of the annexations.

Zoning - Termination of Nonconforming Uses

Village of Menomonee Falls v. Preuss, No. 98-0384 (filed 17 March 1999) (ordered published 21 April 1999)

The Village of Menomonee Falls appealed from a judgment ordering the defendant to remove a commercial addition to his residence, but allowing him to continue to use the residence as such. The defendant's residence is a nonconforming use because his neighborhood is now zoned industrial. After he modified his use by adding a commercial garage, the village requested that the court terminate the entire use. The trial court refused to do so, viewing the decision as discretionary.

The court of appeals, in a decision authored by Judge Brown, disagreed. As a matter of law, when an owner of a nonconforming use modifies that use, the municipality is entitled to terminate the entire non-conforming use. See generally Waukesha County v. Pewaukee Marina Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994) (holding that a violation of the nonconforming use by expansion or enlargement that changes the use invalidates the legal nonconforming use as well as the illegal change).

In this case the defendant's property was exclusively residential prior to the addition. He changed it to a mixed commercial/residential establishment. This was a change in the nonconforming use. The court of appeals therefore affirmed that part of the judgment ordering the defendant to remove the commercial addition to his property. It modified the circuit court's judgment so as to terminate the defendant's residential nonconforming use as well.

Notice of Claim - Complaint Based on Continuing Course of Conduct

Probst v. Winnebago County, No. 98-0451 (filed 17 March 1999) (ordered published 21 April 1999)

This appeal involves Wisconsin's notice of claim statute. Section 893.80(1)(a) provides that, within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim must be served on the "governmental subdivision or agency and on the officer, official, agent or employee." A notice of claim that complies with this statute and a denial of the claim by the government are prerequisites to the commencement of a circuit court action.

In this case the notice of claim filed against Winnebago County by the plaintiffs did not allege any acts occurring within 120 days of the notice date. The plaintiffs argued that this is not the standard and that the notice and subsequent complaint alleged a continuing course of conduct by the county. However, the plaintiffs cited no legal authority for the proposition that alleging an on-going course of conduct without identifying a specific circumstance or example of that conduct occurring within 120 days of the notice of claim satisfies the requirements of the statute. Nor could the court of appeals locate any such authority. Accordingly, the court concluded that the notice of claim did not satisfy the requirements of section 893.80.

Personal Jurisdiction - UCCJA

Paula M.S. v. Neal A.R., No. 98-1158 (filed 25 March 1999) (ordered published 21 April 1999)

In this paternity action, the court of appeals reversed the circuit court's determination that it had personal jurisdiction over the alleged father. Writing for the court, Judge Roggensack concluded "that the UCCJA [the Uniform Child Custody Jurisdiction Act], which may confer subject matter jurisdiction in custody disputes, does not establish, in and of itself, a sufficient statutory basis of personal jurisdiction over a nonresident defendant in a paternity proceeding." The court was particularly concerned with the child support implications that stem from a determination of paternity. On this record the court held it lacked personal jurisdiction over the putative father. The alleged father, a Michigan resident, lacked the sufficient contacts required by the due process clause. His sole links to Wisconsin consisted of attending two funerals. He did not conduct any business nor did he contact the mother or the child. The child was conceived in Illinois and born in Minnesota.

Challenge to Release of Records - Standards for Circuit and Appellate Court Review

Kailin v. Rainwater, No. 98-0870 (filed 31 March 1999) (ordered published 21 April 1999)

In Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the Wisconsin Supreme Court grafted onto the open records law a procedure whereby the custodian of public records who has decided to release those records must first notify the target of the release decision and then allow the target a reasonable amount of time to appeal the decision to the circuit court. Pursuant to Woznicki, the role of the circuit court in this review process is two-pronged. First, the court must determine if the custodian performed the appropriate balancing test in deciding to release the records. Second, if the custodian acted correctly, the circuit court must then review de novo the decision of the custodian.

In this case the court of appeals, in a decision authored by Judge Nettesheim, developed standards of review for the circuit court and court of appeals in dealing with Woznicki-type issues. [With regard to the first prong, case law already establishes a de novo standard of review of the custodian's open records decision.] With regard to the second prong of the circuit court's review, the appellate court read Woznicki to mean that the circuit court is required to conduct an independent review akin to a trial de novo that permits the taking of additional evidence beyond that which was before the records custodian. This approach will also allow the target to present arguments to the court that the records custodian did not consider.

With regard to the standard of review to be applied by the court of appeals, the appellate court concluded that, as to the custodian's decision, the law is clear that appellate courts conduct their reviews under the de novo standard. And, as to the circuit court's independent trial de novo review under the second prong of Woznicki, review by the court of appeals should be conducted under the usual standards applicable to a trial conducted in the circuit court. Thus, the court of appeals should apply the appropriate standard, depending on whether the question at hand is one of fact, law, or discretion.

Easements by Necessity - Ingress and Egress - Utilities

Richards v. Land Star Group Inc., No. 98-1983 (filed 23 Feb. 1999) (ordered published 31 March 1999)

In 1946 Peterson purchased property in Pierce County, which the court referred to as parcels 1 and 2. In 1947 Peterson forfeited parcel 1 to the county as a result of failing to pay real estate taxes. At a public auction held that year, the county purchased this parcel and later issued itself a tax deed for the property. In 1963 the county conveyed parcel 1 to plaintiff Richards by quitclaim deed which stated: the "grantor herein having no ingress or egress privileges to said property."

Parcel 1 is approximately 34 acres in size, has no access to a public road and, as a whole, is landlocked. No written easement exists for access to parcel 1 from any public road. In this case, among other things, the plaintiff requested an easement over parcel 2 to access his property. The trial court granted the plaintiff an easement of necessity for "ingress and egress" but denied him the right to install utilities along the easement.

In a decision authored by Chief Judge Cane, the court of appeals began its analysis by articulating certain definitions. An easement, said the court, is an interest in land in possession of another. It creates two distinct property interests: the dominant estate and the servient estate. The dominant estate enjoys the privileges an easement grants, while the servient estate permits the dominant estate to exercise those privileges. To establish an easement of necessity, the party seeking the easement has the burden to prove: 1) common ownership or unity of title of the two parcels; and 2) that the property is "landlocked," meaning that a piece of land is surrounded by land belonging to other persons so that it cannot be reached by a public roadway.

In this case the trial court granted to the plaintiff an easement of necessity for "ingress and egress" to the property but denied him the right to install utilities along the easement. With regard to the latter, the court of appeals reversed. A way of necessity is coextensive with reasonable needs, present and future, of the dominant estate and varies with the necessity, insofar as may be consistent with the full reasonable enjoyment of the servient estate. In current times, the reasonable use and enjoyment of property, at a minimum, requires utilities, as long as it does not overburden the servient estate. Accordingly, the appellate court reversed that portion of the judgment denying utility installation and remanded to the circuit court for its determination whether utility installation would overburden the servient estate and, if not, to determine a reasonable method for the installation of utilities.

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.