Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Civil
Procedure | Criminal Law | Criminal
Law/Motor Vehicle Law | Criminal Procedure |
| Family Law | Labor Law | Municipal Law | Notice of Claims | Real Property | Torts |
Appellate Procedure
Traffic Regulation Appeals from Circuit Court - Time for Initiating
Appeal
City of Sheboygan v.
Flores, No. 99-0954 (filed 30 June 1999) (ordered published 21
July 1999)
In this case the court of appeals was asked to determine which event
triggers the appeal period in traffic regulation cases: the disposition
recorded in the circuit court docket entries or the entry of a separate
judgment or order in the office of the clerk of circuit court.
In a per curiam decision the court of appeals concluded that a
disposition recorded in the docket entries triggers the appeal period.
See Wis. Stat. §
808.03(1).
Civil Procedure
Destruction of Evidence - Sanctions
Garfoot v. Fireman's Fund
Ins. Co., Nos. 98-1618 & 98-1662 (filed 10 June 1999)
(ordered published 21 July 1999)
The plaintiff was injured when a gas heater exploded. The trial judge
later determined that the technician hired by the plaintiff's engineer
had disturbed evidence at the site "that would have either proved or
disproved [the plaintiff's] claim that a leak in the piping system
caused the explosion." Based on this finding, the court dismissed a
variety of claims against the defendants.
The court of appeals, in a decision authored by Judge Vergeront,
reversed. The dismissal of claims as a sanction for destroying evidence
is appropriate only where "there was a conscious attempt to affect the
outcome of the litigation or a flagrant knowing disregard of the
judicial process." On this record, the court of appeals refused to find
that the attorney's conduct was "egregious" enough to merit dismissal.
It also remanded the matter for a hearing on whether the attorney's
conduct was negligent and merited some sanction short of dismissal.
The court of appeals then addressed a series of issues likely to
arise on remand. First, on whether the attorney's behavior should be
imputed to the client, "the trial court is to consider the client's
failure to act in a reasonable and prudent manner, and the client's
knowledge of or complicity in that conduct, in deciding whether to
impute the attorney's conduct to the client for purposes of a sanction."
Second, the actions by the technician and engineer, who were hired by
plaintiff's counsel, could be imputed to the plaintiff. Third, it is not
necessary that each of the persons acting on the plaintiff's behalf
(that is, the lawyer, the engineer, and the technician) must have been
negligent or engaged in egregious behavior. Fourth, "prejudice" to a
party caused by the destruction of the evidence is a factor to be
considered, but prejudice is not a condition precedent for dismissal as
a sanction.
Summons and Complaint - Timely Filing
Granado v. Sentry
Insurance, No. 98-3675-FT (filed 15 June 1999) (ordered
published 21 July 1999)
The plaintiff was injured in a fall on June 18, 1995. Three years
later, on June 18, 1998, his lawyer called the county clerk of court
after the clerk's office had closed and made arrangements to deliver the
summons and complaint to the clerk at his home. The plaintiff's lawyer
hand-delivered the papers to the clerk at 9:30 p.m. The clerk wrote,
"Received: 6/18/98," and then signed and dated the complaint. The papers
were not stamped "filed" until the next day, June 19. The circuit court
dismissed the action because the summons and complaint had not been
filed until June 19, 1998, after the statute of limitations had
expired.
The court of appeals, in an opinion written by Judge Hoover,
affirmed. Addressing the powers of the clerk of court, the court of
appeals rejected the contention that clerks can "accept papers only
during usual business hours set by the county board." But the court also
rejected the plaintiff's contention that "receipt by the clerk is
synonymous with filing." Court clerks are charged with the
responsibility of "properly depositing" legal papers. The court of
appeals held that "'properly deposited' means that the further removed
from an office's legislative guidelines and usual business hours a
transaction occurs, the less likely it is that the papers have been
properly deposited." Here the clerk "as a matter of law exercised his
discretion in a manner that impermissibly surpassed the legislative
strictures he was subject to."
Criminal Law
Controlled Substances - Drug Repeater Law - Possession of Drug
Paraphernalia as the Prior Conviction
State v. Moline,
No. 98-2716-CR (filed 23 June 1999) (ordered published 21 July 1999)
Possession of cocaine is a misdemeanor offense but, if the defendant
is a repeat drug offender, it is a felony. Wis. Stat. section
961.48 defines the circumstances in which one is a drug repeater,
and the question in this case was whether a prior conviction under
Wisconsin law for possessing drug paraphernalia qualifies as a prior
drug offense that triggers the drug repeater.
In a decision authored by Judge Brown, the court of appeals held that
a prior conviction for possessing drug paraphernalia pursuant to section
961.573 qualifies as a prior offense for purposes of invoking the repeat
drug offender statute.
Criminal Law/Motor Vehicle Law
Validity of Misdemeanor Conviction Before Six-person Jury - OWI -
Admissibility of HGN Test Results
State v. Zivcic,
Nos. 98-0909 and 98-1381 (filed 29 June 1999) (ordered published 21 July
1999)
The defendant was convicted of a misdemeanor OWI offense before a
six-person jury that was impaneled under Wis. Stat. section
756.096(3)(am). This statute, which provided for six-person juries
in misdemeanor actions, was subsequently ruled unconstitutional by the
Wisconsin Supreme Court. See State v.
Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998). The defendant
did not object to the six-person jury, did not request a 12-person jury,
and did not raise an issue as to whether the statute was
unconstitutional.
The first issue considered by the court of appeals was whether the
defendant is entitled to a new trial with a 12-person jury. In a
decision authored by Judge Wedemeyer, the court of appeals concluded
that he was not. Though the Hansford ruling applies to all
cases "pending on direct review," relief is limited to those who raised
the issue before the trial court. Because the defendant did not raise
any objection to the six-person jury, he is not entitled to a new trial
with a 12-person jury.
This case also presented an issue of first impression regarding the
admissibility of the horizontal gaze nystagmus (HGN) test, which is used
to determine sobriety. The defendant urged that the HGN test results
were improperly admitted at his trial.
The court of appeals disagreed. It found that the trial court did not
erroneously exercise its discretion when it allowed the deputy sheriff
who administered the HGN test to offer expert testimony on that test.
The deputy testified that he was trained in administering and evaluating
the test. Thus, there was a reasonable basis for the trial court to
conclude that he was qualified to offer expert opinion regarding the HGN
test. Because there is evidence to support the trial court's finding
that the deputy qualified as an expert, the court of appeals also
rejected the defendant's argument that there was an insufficient
foundation to admit the test results.
To the extent that the defendant argued that a second expert, in
addition to the law enforcement officer, was required to testify before
the HGN test results could be admitted, the court of appeals disagreed.
As long as the HGN test results are accompanied by the testimony of a
law enforcement officer who is properly trained to administer and
evaluate the tests, the mandates of the expert testimony statute (Wis.
Stat. section
907.02) are satisfied.
Criminal Procedure
Search and Seizure - Reasonable Expectation of Privacy - Burden of
Proof
State v. Ramirez,
No. 98-0996-CR (filed 2 June 1999) (ordered published 21 July 1999)
The defendant was convicted of delivering and possessing a controlled
substance. Postal authorities had intercepted a package of marijuana
addressed to the defendant. They resealed the package with a device that
alerted them when someone opened the package. The resealed package was
delivered to the defendant. Later, police executed an anticipatory
search warrant. Following his conviction, the defendant appealed the
trial court's rulings on his motions to suppress.
The court held that the defendant had the burden of establishing
"some reasonable expectation of privacy in the package." The burden is,
however, "minimal." The court of appeals discussed the myriad factors
that lower courts should examine when assessing a privacy interest in a
delivered package. It rejected the defendant's proposed presumption of
privacy based on residence and several "alter ego" scenarios advanced by
the state. The issue was remanded for a new hearing because the trial
judge had applied an erroneous standard.
Conditions of Probation - Constitutional Challenges to Probation
Condition Restricting Association with Gang Members
State v. Lo, No.
98-2490-CR (filed 27 May 1999) (ordered published 21 July 1999)
The defendant pled guilty to being a party to the crime of aggravated
battery with intent to cause substantial bodily harm, as a gang-related
offense. He was convicted and placed on probation. A condition of
probation was that he "have no contact with gang members or be involved
in any gang activities." On appeal he claimed that this probation
condition was unconstitutionally vague and overbroad.
In a decision authored by Judge Eich, the court of appeals affirmed.
A probation condition must be sufficiently precise for the probationer
to know what conduct is required of him or her. The parties agreed that
the gang member/gang activity condition of the defendant's probation may
reasonably be read in light of definitions found in criminal code
sections dealing with gangs. See Wis. Stat. §§ 939.22(9)
and (9g), and 941.38(1)(b).
Proceeding from this agreement the court of appeals concluded that the
statutory definitions of "criminal gang members," "criminal gang," and
"criminal gang activity" are sufficiently specific to provide the
defendant with fair and adequate notice as to his expected course of
conduct while on probation.
The court also concluded that the probation condition is not
overbroad. A reasonable interpretation of the condition is that it
requires that the defendant not have contact with individuals whom he
knows, or reasonably should know, are members of a gang.
Family Law
Divorce - Post-nuptial Limited Marital Property Agreements -
Separation Agreements
Evenson v.
Evenson, No. 98-0803 (filed 9 June 1999) (ordered published 21
July 1999)
The parties were married in 1978 and commenced this divorce
proceeding in 1996. Shortly after filing for divorce, the parties
executed a limited marital property agreement (LMPA) under the caption
and case number of their pending divorce action. The critical issue
before the court of appeals was whether the LMPA was a binding agreement
pursuant to Wis. Stat. section
767.255(3)(L) or a divorce stipulation pursuant to section
767.10(1).
In a decision authored by Judge Snyder, the court of appeals began
its analysis by noting that the supreme court has recognized two types
of post-nuptial agreements: 1) "family settlements" that contemplate a
continuation of the marriage relation, and 2) "separation agreements"
that are made after separation or in contemplation of a separation in
the immediate future. Divorce actions involving a family settlement are
reviewed only to determine whether the agreement was subject to fraud.
Separation agreements or divorce stipulations involve radically
different consequences and considerations because the agreement is
entered into at or immediately prior to separation and attempts to limit
rights and liabilities between the parties after the divorce.
In this case the agreement was executed after the parties
filed for divorce, it bore the caption of the divorce case, and was
entered into in order to facilitate the husband's purchase of his own
residence in anticipation of divorce. The court concluded that this LMPA
was a divorce stipulation and, as such, was merely a "recommendation
jointly made by the parties to the court suggesting what the judgment,
if granted, is to provide." The stipulation amounted to no more than an
understanding of what the parties desired and recommended to the court
and did not rise to the dignity of a contract. The stipulation did not
bind the parties and they were free to withdraw from the stipulation
until it was incorporated into the judgment.
Labor Law
Deputy Sheriffs - Disciplinary Procedures - Arbitration Procedures
in Collective Bargaining Agreements
Eau Claire County v.
General Teamsters Union Local No. 662, No. 98-3197 (filed 8
June 1999) (ordered published 21 July 1999)
The county and the union representing deputy sheriffs entered into a
collective bargaining agreement, which requires just cause for
discipline, including termination, and provides for a grievance
procedure culminating in the arbitration of disciplinary or termination
disputes. The county personnel committee terminated a deputy sheriff and
notified him of his statutory right to appeal to circuit court pursuant
to Wis. Stat. section
59.52(8)(c). The deputy did not file a circuit court appeal but,
instead, filed a grievance with the sheriff and the personnel committee
pursuant to the collective bargaining agreement, contesting the just
cause determination. The county refused to use the arbitration
provisions of the grievance procedure, contending that a discharged
employee's sole remedy was an appeal to the circuit court.
The sole question before the court of appeals was whether the statute
cited above creates the exclusive remedy for complaints involving the
discipline or discharge of deputy sheriffs, rendering the collective
bargaining agreement's grievance procedure culminating in arbitration
null and void. In a majority decision authored by Judge Myse, the court
concluded that the statute does not provide the exclusive appeal remedy
available to deputy sheriffs who have been disciplined or terminated by
the sheriff. Accordingly, the collective bargaining agreement providing
for arbitration of such disputes is valid and enforceable.
Chief Judge Cane filed a dissenting opinion.
Municipal Law
Appeals to Circuit Court - Constitutionality of Statute Limiting
Right to Demand Jury on Appeal to the Losing Party
City of Kenosha v.
Leese, No. 98-1769 (filed 16 June 1999) (ordered published 21
July 1999)
Wis. Stat. section
800.14(4) was amended in 1987 to provide the losing party in a
municipal proceeding the right to demand a jury trial on appeal to the
circuit court. The statute does not provide a similar right to the
respondent. Prior to the grant of this additional right to the
appellant, both parties to a municipal proceeding were limited to a
bench trial on appeal.
The issue before the court of appeals was whether the statute
violates the equal protection rights of the respondent by reserving to
the appellant alone the right to demand a jury trial in the event of an
appeal. In a decision authored by Judge Mawdsley, the court concluded
that there is a rational basis for the Legislature's distinction between
appellants and respondents in municipal court appeals; thus, it rejected
the equal protection challenge brought by the respondent in this case.
The statute serves the legislative goal of limiting the number of jury
trials while recognizing the losing party's interest in choosing the
method of trial on appeal.
Notice of Claims
Wis. Stat. section 893.82(3) - Defective Notice of Claim - Claim Not
Sworn to by Claimant
Newkirk v. Wisconsin Dep't
of Transportation, No. 98-2966 (filed 17 June 1999) (ordered
published 21 July 1999)
The plaintiff was injured in an automobile accident and sued, among
others, the Wisconsin Department of Transportation and several of its
employees, claiming they were negligent in failing to have proper signs
in the area where the accident occurred. The circuit court dismissed the
action, concluding that the notice of claim the plaintiff was required
to serve and file upon the attorney general as a condition precedent to
commencing the action was defective in that it failed to comply with the
requirement of Wis. Stat. section
893.82(5) that such notices be "sworn to by the claimant."
In a decision authored by Judge Eich, the court of appeals affirmed.
The notice of claim served and filed by the plaintiff was signed by her
attorney. Under his signature appeared the statement: "I [the
plaintiff], being sworn, state that I have read the notice of claim and
know the contents to be true." This was followed by the plaintiff's
signature, which was not notarized or otherwise attested to. In
Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995),
the supreme court made it clear that strict compliance with section
893.82(5) is required in all cases and that the oath required by the
statute's terms must include, among other things, an acknowledgment by
an authorized person that the oath was taken and must be in a form
rendering the signer punishable for perjury should the statement be
untrue. The plaintiff's notice of appeal in this case met none of these
requirements.
Real Property
Mortgages - Foreclosures - Codefendants - Reimbursement
Harvest Savings Bank v. ROI
Investments, No. 98-2320 (filed 10 June 1999) (ordered
published 21 July 1999)
The holder of a second mortgage appealed a judgment requiring it to
reimburse the mortgage debtor for the latter's overpayment of the second
mortgage debt. The second mortgage holder argued that the court lacked
the authority to enter such an order.
The court of appeals, in a decision authored by Judge Deininger,
affirmed. After ruling that the trial judge's order did not conflict
with an earlier remand from the court of appeals, the court turned to
chapter 846 of the Wisconsin Statutes. Although nothing in chapter
846 "expressly" authorized the reimbursement of one codefendant who
received excess payments from another defendant, the order represented a
proper use of discretion to avoid "injustice." The remainder of the
opinion highlights those parts of the record supporting the judge's
exercise of discretion.
Torts
Parental Supervision - Failure to Warn - Sexual Assault
Gritzner v. Michael
R., No. 98-0325 (filed 9 June 1999) (ordered published 21 July
1999)
Four-year-old Tara was sexually abused by 10-year-old Michael R.
while she was playing in the home of Roger Bubner. Michael was the son
of Bubner's girlfriend. Tara and her parents sued Bubner alleging that
he had negligently failed to warn them about Michael's propensity for
sexual misbehavior and that Bubner had negligently supervised Michael
and Tara. The circuit court dismissed the claims against Bubner.
In an opinion authored by Judge Nettesheim, the court of appeals
reversed in part and affirmed in part. The failure to warn claim was
properly dismissed on public policy grounds as dictated by the case law.
Although not "enthusiastic" about the controlling case law, the court
nevertheless was obligated to apply it. The court of appeals reversed
the dismissal of the negligent supervision claim. Carefully construing
the Restatement (Second) of Torts and Wisconsin case law, the court
agreed that Bubner had a duty to supervise the children. A "legal
relationship" is not necessary to establish a "special relationship."
The court found it "self-evident that an adult who voluntarily takes on
the supervision, custody, or control, even on a temporary basis, of a
visiting child such as Tara, stands in a special relationship to such
child for purposes of the child's 'protection' under section 314A of the
Restatement." The court also found a duty rooted in sec. 324A of the
Restatement. Bubner had gratuitously undertaken to supervise both
children and was aware of Michael's propensity to sexually abuse
children. Bubner's "alleged failure to properly supervise the children
and to control Michael in light of his knowledge of Michael's
propensities increased the risk of harm to Tara pursuant to section 324A
of the Restatement." Finally, the court held that public policy factors
did not preclude liability.
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
