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Vol. 72, No. 9, September 1999

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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 |

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.

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.

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.

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.

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.

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.