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    Wisconsin Lawyer
    February 01, 2000

    Wisconsin Lawyer February 2000: Court of Appeals Digest

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

    | Administrative Law | Business Law | Contracts | Courts | Criminal Law | Criminal Procedure | Death Certificate | Education | Evidence | Family Law | Insurance | Municipal Law | Public Benefits | Real Estate | Sexual Predators | Torts | Zoning |


    Administrative Law

    Certiorari Review of Decision by County Committee - Service of Writ

    Weber v. Dodge County Planning and Development Dept., No. 99-1116 (filed 21 Oct. 1999) (ordered published 22 Nov. 1999)

    The appellants appealed from an order of the circuit court dismissing their petition for certiorari review of an action of the Dodge County Planning and Development Committee. The circuit court ruled that it lacked subject matter jurisdiction because the writ was misdirected to the county's Planning and Development Department, rather than to the actual deciding agency, which was the Planning and Development Committee. In a decision authored by Judge Eich, the court of appeals reversed.

    The decision the appellant sought to review was the committee's denial of his application for approval of a final subdivision plat. Pursuant to sections 62.23(7)(e)10 and 236.13(5) of the Wisconsin Statutes, any person aggrieved by the failure to approve a plat may appeal, via certiorari, from the decision of the "approving authority." The statutes do not expressly state to whom the appeal papers should be directed.

    In support of service of the writ upon the department, the appellant argued that all of his inquiries to the county regarding the plat and his approval application were directed to the department, and that all correspondence from the county to him on the subject was not from the committee, but from the department, on its own letterhead. In fact, the final order denying the application for plat approval was on the department's letterhead and was sent to the appellant by the department, along with a notice that he had a right to seek review of the order in the circuit court. The evidence further revealed that, while the committee is a functioning body - a standing committee of the Dodge County Board of Supervisors - it does not have an office, a staff (other than employees of the department and/or other county employees), or any real, tangible identity apart from its relationship to the county board.

    The court of appeals concluded that where there is an ambiguity in service requirements created through the interaction of various statutes, case law, and the specific circumstances of the case (here the pervasive use of the department's personnel and stationary in the conduct of the committee's business with regard to the appellant's petition and the absence of any ascertainable independent identity on the part of the committee), the appellant could reasonably believe that his appeal of the decision was properly prosecuted against the department, whether on its own behalf or as the committee's agent.


    Business Law

    Contracts - Misrepresentation - "Perverse" Verdicts - Franchises

    Kinship Inspection Serv. Inc. v. Newcomer, No. 98-2043 (filed 24 Sept. 1999) (ordered published 16 Dec. 1999)

    The sellers sold their home inspection business to the buyers, who paid some cash and signed a note for the balance. The buyers later sued the sellers alleging a violation of the Wisconsin Franchise Investment Law (WFIL), misrepresentation, and fraud. The judge dismissed the WFIL claim and a jury found that the seller had made a misrepresentation upon which the buyers relied but it awarded no damages (the note was, however, effectively cancelled).

    The court of appeals, in an opinion written by Judge Snyder, affirmed in part and reversed in part. First, the court found that the evidence adequately supported the jury's verdict. Second, it rejected the sellers' argument that the verdict was "perverse." Verdicts are perverse when the jury refuses to follow the judge's instructions or the verdict "reflects highly emotional, inflammatory or immaterial considerations." Here the evidence and instructions supported the jury's finding that the contract was void because of a misrepresentation and the seller's failure to provide a customer list. Third, the sellers were not victims of "trial-by-ambush." The evidence supporting the misrepresentation claim was available through discovery.

    On the cross-appeal, the court reversed that part of the judgment dismissing the buyers' WFIL claim. The business in question did involve a franchise. The sellers therefore were obligated to submit various documents, including projected earnings and supporting data. The sellers' failure to timely provide this information created a valid claim under the WFIL.


    Contracts

    Road Construction - Third-party Beneficiaries - Damages

    Sussex Tool & Supply Inc. v. Mainline Sewer and Water Inc., No. 98-2649 (filed 10 Nov. 1999) (ordered published 16 Dec. 1999)

    This case raised one primary issue: "whether a small business whose profits allegedly suffered due to decreased road accessibility during sewer construction may maintain a suit against the contractor for breach of contract and negligence." A tool company sued a village and a contractor who installed a sewer and water system. The company claimed that its customers lacked "access" during construction and that its business suffered. The trial court dismissed the company's suit.

    The court of appeals, in an opinion written by Judge Brown, affirmed the trial court's decision. First, the company lacked standing as a third-party beneficiary of the construction contract. The contractual language did not "demonstrate any intent to confer third-party beneficiary status on individual members of the public to sue for purely economic interests." The "primary purpose of any public works contract is the benefit of the public." Second, the court also rejected the company's negligence claim. Public policy militated against allowing the company to recover alleged "lost profits" as opposed to damages arising from personal injury or property damage. Permitting such damages would expose contractors to "heavy and unpredictable" burdens.


    Courts

    Subject Matter Jurisdiction - Comity - Insurer Rehabilitation

    Isermann v. MBL Life Assurance Corp., No. 98-2846 (filed 20 Oct. 1999) (ordered published 22 Nov. 1999)

    A life insurance company, MBL, was in the midst of liquidation and rehabilitation in New Jersey. Its assets and liabilities were transferred to an eventual successor, MBLLAC. The plaintiff, an insured, brought this action for alleged breach of contract and bad faith against MBL. The circuit court dismissed the action, ruling that it lacked subject matter jurisdiction.

    The court of appeals, in an opinion written by Judge Snyder, affirmed but on different grounds. First, the trial court undoubtedly possessed subject matter jurisdiction under the Wisconsin statutes and constitution. Thus, the trial court erred in ruling in MBL's favor on this ground. Second, the principle of comity did, however, justify the suit's dismissal. "[B]oth Wisconsin and New Jersey have enacted very similar insurance rehabilitation and liquidation acts, both of which seek to satisfy the same public policy objectives. In addition, we believe the policy supporting comity outweighs any detriment to the resident policyholder." New Jersey and Wisconsin are reciprocal states under chapter 645 of the Wisconsin Statutes. Both states "look to employ more effective methods for rehabilitating insurers, improve efficiency of the liquidation process while reducing the amount of litigation, establish cooperation between states to reduce problems of interstate rehabilitation, and provide a comprehensive scheme to address insurance rehabilitation." Conceding that Wisconsin policyholders are inconvenienced by pursuing their claims in a foreign state, the goal of a "uniform and efficient rehabilitation process" outweighed this concern. The court then reviewed the specifics of the New Jersey rehabilitation plan and concluded that the plaintiff had to litigate his issues in the New Jersey rehabilitation court.


    Criminal Law

    Perjury - Prior Acquittal

    State v. Canon, No. 98-3519-CR (filed 21 Sept. 1999) (ordered published 25 Oct. 1999)

    The state appealed the dismissal of a perjury charge. In a prior case, the defendant had been tried on charges of drunk driving and related offenses. The jury acquitted him after he testified that his buddy drove the truck, not him. Later, evidence surfaced that the defendant had lied about not driving the truck, which led to the perjury charge.

    The court of appeals, in an opinion authored by Judge Myse, affirmed the dismissal of the perjury charge. Applying principles of double jeopardy, the court held that "an issue of ultimate fact cannot be relitigated even when the judgment was obtained by the defendant's false testimony." The court predicated its holding on U.S. Supreme Court precedent and "overwhelming federal circuit authority."

    Judge Cane dissented because the offenses were different and arose out of "separate criminal episodes" (that is, drunk driving and lying at trial).

    Habitual Criminality - Five-year Period for Computing Habitual Criminality Status - Time in Custody on Parole Hold

    State v. Price, No. 99-0746-CR (filed 27 Oct. 1999) (ordered published 22 Nov. 1999)

    The Wisconsin habitual criminality ("repeater") statute permits an enhanced sentence if the defendant was convicted of a felony or three misdemeanors during the five years immediately preceding the commission of the crime for which the offender is presently being sentenced. The statute specifically provides that "in computing the preceding five-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded." See Wis. Stat. § 939.62.

    The issue in this case was whether confinement time that the defendant spent on various parole holds qualifies as "actual confinement serving a criminal sentence" thereby extending the five-year period for computing habitual criminality status. In a decision authored by Judge Nettesheim, the court of appeals concluded that the time spent by an offender on parole holds qualifies as confinement under a criminal sentence within the meaning of the habitual criminality statute. Therefore, that time is excluded in computing the five-year period under the repeater statute.

    Carjacking Resulting in Death - Causation - Substantial Factor - Immunized Testimony Instruction

    State v. Miller, No. 98-2089-CR (filed 17 Nov. 1999) (ordered published 16 Dec. 1999)

    The defendant was convicted of numerous charges including operating a vehicle without the owner's consent resulting in the death of another, contrary to Wis. Stat. section 943.23(1r), a Class A felony. Among the issues on appeal was whether there was sufficient evidence presented to show that his taking of the vehicle from the victim was a substantial factor in causing the victim's death.

    The defendant and two others devised a plan to steal cocaine from the victim during a purported drug transaction that was to occur the following day. On that day the victim arrived at the residence of one of the conspirators but did not have any drugs. As a result, the defendant and another seized the victim and drove off with him in his vehicle in order to obtain drugs from the victim's residence. The victim sat in the front passenger seat of his car and the defendant sat behind him with a firearm. During the trip the victim attempted to escape from the vehicle and the defendant shot him in the back. The victim later died.

    In a decision authored by Judge Snyder, the court of appeals concluded that the taking of the victim's vehicle played a prominent role in, and set into motion events leading to, the victim's death and that there was therefore sufficient evidence to establish that the defendant's theft of the vehicle was a substantial factor in causing the victim's death. A "substantial factor" contemplates not only the immediate or primary cause of a result, but other significant factors that lead to the ultimate result. Based on the evidence described above, the court concluded that a reasonable jury could have inferred that were it not for the defendant's taking of the car, the victim never would have been shot because he would not have been trying to escape from the vehicle. Under these circumstances, the theft of the car was a substantial factor in causing the victim's death because the taking of the car set into motion the events that led to his death.

    The defendant also argued on appeal that the trial court erred in refusing to instruct the jury that one of the defense witnesses had been granted immunity from prosecution. The court concluded that the judge did not err in refusing to instruct the jury because the witness was not given immunity in return for testifying and because he testified on behalf of the defendant, not the state. The court was persuaded that where an immunized witness testifies favorably for the defense, an immunized witness jury instruction is not required.

    Criminal Procedure


    Preliminary Hearings - Reissuance - New and Unused Evidence - Standard of Review

    State v. Johnson, No. 98-2881-CR (filed 31 Oct. 1999) (ordered published 22 Nov. 1999)

    The defendant was charged with robbery and bail jumping in connection with an alleged "holdup" of a gas station. The suspect never actually displayed a weapon but he had made menacing gestures suggesting he was armed. The court commissioner dismissed the charges after a preliminary examination. The state reissued the same charges and presented more evidence at the second preliminary examination. The court commissioner found probable cause and ruled that the state's proof constituted "new and unused evidence" within the meaning of the case law. The circuit court reversed this determination, finding that the state's additional evidence was merely cumulative and corroborative of that presented at the first preliminary hearing.

    The court of appeals, in a decision written by Judge Anderson, reversed the circuit court and granted the state's request that the charges be reinstated. The court took up two issues. First, it held that a de novo review standard governs the circuit court's reversal of a court commissioner's finding that the state presented new and unused evidence. Under existing case law, the de novo standard applies when the circuit court reviews a court commis-sioner's probable cause determination, so by the same logic the "new and unused evidence" issue also should be scrutinized in this way.

    Second, based on its de novo review of the record the court of appeals agreed that the state had presented "new and unused evidence." The gas station attendant provided more detail about the events and the state produced a "new witness," the defendant's cell mate. None of this was "cumulative" to the first preliminary hearing. The new evidence also demonstrated a reasonable probability that the defendant had threatened force, an element of robbery.

    Finally, the state also "re-presented evidence at the second preliminary hearing that was not considered at the first preliminary hearing." Thus "[e]vidence that has been presented to the court but not taken into account when the court made its decision during the initial preliminary hearing is considered 'unused,' and the state may use such evidence as support for its reissuance of a complaint."

    Jury Selection - Statutory Bias - Brothers-in-Law

    State v. Czarnecki, No. 98-2406-CR (filed 1 Sept. 1999) (ordered published 22 Nov. 1999)

    The defendant was convicted of multiple felonies after a jury trial. His motion for postconviction relief also was denied.

    The court of appeals, in an opinion written by Judge Snyder, reversed. The central issue was "whether a prospective juror who is the brother-in-law of a state witness must be struck for cause as a 'relative by blood or marriage to the third degree of a state witness.'" Case law involved brothers related by blood, but the court was "no less convinced that the court's per se rule applies with equal force to persons related by marriage." Family relations imply bias as a matter of law. Applying the "chart" depicted in "Figure 852.03(2), Stats.," the court determined that "both a brother and a brother-in-law are two degrees removed for purposes of determining juror bias." The court held that such a relationship also constituted "statutory bias" under the supreme court's most recent typology of juror bias. This error deprived the defendant of a statutorily guaranteed right to exercise all of his peremptory challenges and thus reversal was the appropriate remedy.

    Guilty Pleas - Withdrawals - Exculpatory Evidence

    State v. Sturgeon, No. 98-2885-CR (filed 17 Nov. 1999) (ordered published 16 Dec. 1999)

    The defendant pled guilty to burglary and was sentenced. Later the defendant came into possession of allegedly exculpatory evidence relating to his confession. The judge, however, denied his postconviction motion to withdraw the guilty plea.

    The court of appeals, in an opinion written by Judge Nettesheim, reversed and set forth "the proper methodology for evaluating a guilty plea withdrawal request based on the postplea discovery of exculpatory evidence within the exclusive control of the State." Under prevailing case law, a defendant who moves to withdraw a guilty plea as a matter of right must show: "1) that a violation of a constitutional right has occurred; 2) that this violation caused the defendant to plead guilty; and 3) that at the time of the plea, the defendant was unaware of the potential constitutional challenge to the cause against him or her because of the violation."

    The defense met the first element by showing that the state withheld exculpatory evidence that was within its exclusive possession. Roughly the same evidence related to the third element; namely, the defendant was unaware that the police had "memorialized" his exculpatory statements in the withheld police report. As for the causal element, "the court must be convinced that the undisclosed information was controlling in the defendant's decision to plead." A number of factors pertain to this determination, including the relative strength and weakness of the parties' cases, the "persuasiveness of the withheld evidence," the defendant's expressed reasons for pleading guilty, the defendant's "benefits" accruing from the guilty plea, and the "thoroughness of the plea colloquy." The record satisfied the causal element.


    Death Certificate

    Corrections - "Cause" of Death - "Evolution" of the Disease - Medical Malpractice

    Neuman v. Circuit Court, No. 99-0714 (filed 16 Nov. 1999) (ordered published 16 Dec. 1999)

    The plaintiff appealed an order amending his deceased wife's death certificate. On appeal he argued that the certificate "should have included in the cause of death section ... a description of the chain of claimed medical malpractice leading to her death." The court of appeals, in an opinion written by Judge Hoover, affirmed. After an evidentiary hearing, the circuit court did amend the death certificate to "a single cause of death, sepsis, which evolved from the chemotherapy's suppression of [the deceased's] immune system." Section 69.18(2)(f) of the Wisconsin Statutes requires that death certificates name the fatal disease and its "evolution." The possible role of any alleged medical malpractice does not fall within this language.


    Education

    Private Schools - Transportation Costs - Private Transport

    Providence Catholic School v. Bristol School Dist. #1, No. 98-3390 (filed 20 Oct. 1999) (ordered published 22 Nov. 1999)

    By law, public high school districts (PSDs) must provide private schoolchildren transportation to and from their schools. This case involves PSDs that contracted with the students' parents to provide such transportation. The parents in turn gave the contract money to a private Catholic school to pay for the busing that the private school had arranged. Conflict arose when the allotted payment for the 1997-98 school year failed to cover the actual cost. The private school requested that the PSD either provide actual transportation or pay additional monies. The PSD refused and notified parents that it would continue to contract with them rather than provide actual busing. The students sued the PSDs.

    The court of appeals, in an opinion written by Judge Anderson, affirmed a series of rulings by the circuit court. The primary contentions and the court's holding are summarized as follows. The PSDs filed a cross-appeal from the trial court's denial to dismiss on jurisdictional grounds. The court of appeals first held that the circuit court retained subject matter jurisdiction even though an administrative agency (the DPI) offered a remedy. In short, the trial judge had no reason to believe "that this issue required the DPI's specialized knowledge." Second, the PSDs had "actual notice" of the students' claims as permitted by section 893.80(1)(a) of the Wisconsin Statutes. Third, the trial court did not err by determining that the students lived within the approved geographic area as regulated by section 121.51(1) of the Wisconsin Statutes.

    The court of appeals then turned to three issues raised by the students in their appeal. First, the PSDs properly complied with their statutory obligations by contracting with parents or guardians to provide the necessary transportation. The court construed sections 121.54 and 121.55 in a way that harmonized their meanings and effectuated the Legislature's purpose. Second, a one-year notice provision in section 121.54(2)(b)2 applied only to high school districts; "[n]owhere in the statute does it mention that schoolchildrens' parents or guardians should receive notice." Third, a 30-day notice provision in section 121.55(3) applied only to a "reduced formula" set forth in the statute and apparently not implicated in this case.


    Evidence

    Cognitively Impaired Witness - Improper Bolstering

    State v. Tutlewski, No. 98-2552-CR (filed 13 Oct. 1999) (ordered published 16 Dec. 1999)

    The court of appeals, in a decision authored by Judge Snyder, reversed the defendant's multiple felony convictions for sexually assaulting a cognitively disabled woman. During trial the prosecution called a teacher to testify that she had taught cognitively disabled students for 27 years. The witness's students included the victim. The witness testified that the victim and her husband were "honest" and "truthful" and that it was not "within their capabilities to lie or be deceitful."

    The court held that this testimony constituted reversible error. It violated the cardinal rule that no witness, lay or expert, may testify "that another physically and mentally competent witness is telling the truth." The expert witness (the teacher) could have properly discussed the "nature of cognitive disabilities and how such mental impairments" affect one's ability to accurately perceive, recall, and narrate events. The expert's opinion, however, crossed the line and was not harmless error.

    Family Law


    Divorce - Property Division - Use of Coverture Fraction to Divide Retirement Account

    Hokin v. Hokin, No. 98-3680 (filed 21 Oct. 1999) (ordered published 22 Nov. 1999)

    The parties married in 1978 and divorced in 1998. A critical issue in the divorce case was the division of the husband's retirement account, which by far was the most significant asset. The trial court used a coverture fraction to divide the asset. In this fraction the numerator is the length of the marriage (20 years) and the denominator is the total number of years the husband participated in the retirement plan (41 years). The court awarded 20/41 of the value of the retirement account on the date of trial to the husband and then divided 20/41 equally between the husband and wife.

    The wife contended on appeal that in using a coverture fraction to divide the largest asset in the marital estate, the court improperly relied on the Wisconsin Marital Property Act (Wis. Stat. chapter 766). Under the Marital Property Act a coverture fraction is applied to determine what portion of a pension is individual rather than marital property. However, the division of property upon divorce is not governed by the Marital Property Act but instead by chapter 767. With regard to the division of property on divorce, the only property that remains individual property and not subject to division is property acquired before or during the marriage by gift or inheritance, or funds acquired from either. All other property is part of the marital estate, and the court is to presume that it is to be divided equally, although the court may alter the distribution after considering various factors. Under the divorce statute a spouse's entire interest in a pension - whether existing before the marriage or acquired during a marriage - is part of the marital estate subject to division in divorce. The increase in value of property brought to the marriage, including interest in a pension, also is part of the marital estate subject to division in divorce.

    The appellate court agreed with the wife that no Wisconsin case has held that the use of a coverture fraction is or may be permissible to divide a pension. It did not, however, agree with her conclusion that a trial court may never do so. Property brought to a marriage is an appropriate factor to consider in deviating from the presumed equal division of the marital estate and the coverture fraction may, depending on the facts in a particular case, be an appropriate way to divide a spouse's pension as part of the overall division of property. The inquiry in each case is whether the use of a coverture fraction is a proper exercise of the court's discretion in dividing the marital estate of the parties, given the particular facts of the case and the applicable statutory and case law.

    Divorce - Limited-term Maintenance - Substantial Change in Circumstances

    Murray v. Murray, No. 99-1369-FT (filed 13 Oct. 1999)(ordered published 22 Nov. 1999)

    The parties divorced after 25 years of marriage. The family court approved their marital settlement agreement that resolved all of the issues between them and the judgment incorporated the agreement by reference. Among its terms the agreement provided the wife with limited-term maintenance for 10 years on a downward sliding scale.

    With just two payments remaining under the limited-term maintenance provision, the wife filed a motion for a modification of the judgment, seeking a "reasonable sum" of maintenance beyond the 10-year termination date. The circuit court granted the motion and the court of appeals, in a decision authored by Judge Nettesheim, reversed.

    Limited-term maintenance has various purposes. In most cases, it provides the recipient spouse with funds for training that might lead to employment, thereby creating an incentive for that spouse to seek employment or better employment. When used for this purpose, limited-term maintenance seeks to place the recipient spouse in a self-supporting economic situation by the end of the maintenance period. The ability of the family court to modify a limited-term maintenance award serves as a "safety net" in a situation where the recipient spouse has not been able to become self-supporting, has not malingered, and has accepted as much employment as he or she can obtain.

    In this case the court of appeals held that the record did not support the wife's claim that the limited-term maintenance was designed to provide funds for employment training or to serve as an incentive to seek more lucrative employment. Among other things the wife testified that she was satisfied with her employment at the time of divorce, that she had not sought any other employment during the ensuing years, and that her current employment situation is what she had contemplated 10 years earlier at the time of the divorce. Thus, the wife did not view the limited-term maintenance award as designed to provide her with funds for training that might lead to other, more lucrative, employment or to provide her an incentive to seek employment. Under these circumstances the "safety net" provided by a modification of the limited-term maintenance is neither necessary nor appropriate.

    The marital settlement agreement resolved all issues between the parties. It thus served another of the purposes of limited-term maintenance: limiting the responsibility of the payor-spouse to a time certain and avoiding future litigation. In such a setting, absent a substantial change in circumstances, the parties may rightfully expect that their disputes are in repose and that they may move on in their lives with relative certainty.

    The court held that the law of change of circumstances should not require the payor-spouse to finance the unwise or imprudent financial decisions of the recipient spouse. The court stressed that it was not speaking of unanticipated financial reversals produced by the recipient spouse's financial decisions. Rather, it was speaking of financial decisions that a person should reasonably know would produce economic difficulty or distress. In this case the wife conducted her financial affairs as if the limited-term maintenance payments would endure permanently. But, said the court, it is not the purpose of maintenance - much less limited-term maintenance - to provide a permanent annuity. Given the wife's conduct and the other circumstances of this case, the court concluded that it would be unjust and inequitable to the husband to break the terms of the parties' agreement and allow for an award of permanent maintenance.

    Marital Property - Pensions - Disposition of Assets When Employee Murdered the Nonemployee Spouse

    Hackl v. Hackl, No. 99-0499 (filed 7 Oct. 1999) (ordered published 22 Nov. 1999)

    Bradley and Diane Hackl were married in 1988. In 1996, as the two were divorcing, Bradley murdered Diane. He was convicted of the crime and sentenced to life in prison. Bradley had worked as a union mason for almost 40 years and had contributed to a pension fund since 1957. From prison, Bradley applied for and began to receive monthly pension benefits.

    In probate proceedings regarding Diane's estate, her personal representative asserted that the pension was marital property and claimed an undivided one/half interest in the pension as an estate asset. Bradley objected, arguing that Diane's marital property interest in his pension terminated upon her death, and that the pension must thus be classified as wholly his individual property. The circuit court concluded that Diane's interest in Bradley's pension survived her death and ordered that a constructive trust be imposed on an undivided one-half of it. In a decision authored by Judge Deininger, the court of appeals affirmed.

    Bradley claimed on appeal that the circuit court erred by failing to follow sections 766.31(3) and 766.62(5) of the Wisconsin Statutes. Generally, these statutes provide that a nonemployee spouse's interest in his or her spouse's "deferred employment benefit plan" terminates upon the nonemployee spouse's death. There was no dispute that Bradley's pension fell within the statutory definition of a "deferred employment benefit plan." However, the court of appeals concluded that the trial court's order imposing the constructive trust is consistent with the equitable principle, which has long applied in Wisconsin, that a murderer should not be allowed to benefit from his or her crime.

    The appellate court further concluded that the circuit court fashioned the proper remedy by imposing a constructive trust on what it deemed to be Diane's marital property interest in Bradley's pension. Bradley's pension constituted marital property, and Diane retained an interest in a portion of the pension until the instant of her death. Bradley obtained her interest as a consequence of his killing her. The Restatement of Restitution provides that "where two persons have an interest in property and the interest of one of them is enlarged by his murder of the other, to the extent to which it is enlarged he holds it upon a constructive trust for the estate of the other." The court of appeals concluded that this was precisely the circumstance presented by this case.

    In footnote the court noted that the provisions of Wisconsin Statutes section 854.14 (1997-98) were not effective at the time of Diane's death in 1996. Under this statute the "unlawful and intentional killing of the decedent ... revokes every statutory right or benefit to which the killer may have been entitled by reason of the decedent's death." Because the new statute did not apply to Diane's death, and because the court of appeals decided the present case on common law principles, it did not consider whether the statute addresses the termination of a marital property interest under sections 766.31(3) and 766.62(5) that results from an interspousal murder.


    Insurance

    Nursing Homes - Terminated Employees - "Personal Injury Offenses"

    St. Paul Fire and Marine Ins. Co. v. Hausman, No. 99-1125-FT (filed 5 Oct. 1999) (ordered published 22 Nov. 1999)

    Hausman, a licensed social worker, was employed by a nursing home in 1993. After her internal complaints about substandard care for residents were ignored, she complained to governmental agencies. Later that same year she was suspended and then terminated by the nursing home, which cited her poor performance. Hausman later brought an action for wrongful termination and related claims against her former employer, the nursing home. The nursing home's general liability insurer, St. Paul, brought this declaratory judgment action seeking a finding that the policy did not provide coverage on these claims. The circuit court ruled that St. Paul did not have coverage for the claims.

    The court of appeals, in an opinion written by Judge Peterson, reversed. Section 50.70(1)(e) of the Wisconsin Statutes prohibits employers from intentionally retaliating against nursing home residents or employees who report abuses to state officials. Its "overriding purpose" is to protect both residents and employees. This purpose was "sufficiently similar and necessary to ensuring patients' rights" and therefore qualified "under the insurance policy language as a law similar to a patient's bill or rights." Finally, it was irrelevant that Hausman's legal theory of liability was "wrongful discharge"; the nursing home interfered with her rights and caused damage.

    UM Coverage - Unidentified Vehicle

    Dehnel v. State Farm Mut. Auto Ins. Co., No. 98-3187 (filed 30 Sept. 1999) (ordered published 22 Nov. 1999)

    In 1996 Dehnel was driving westbound on a highway when he passed a semitrailer driving eastbound. As the vehicles passed one another, ice dislodged from the semitrailer, struck Dehnel's windshield, and injured him. Dehnel never discovered the identity of the other driver or the truck's owner. He filed a claim with State Farm under his uninsured motorist (UM) coverage, which was denied.

    The court of appeals, in an opinion written by Judge Roggensack, affirmed. Dehnel relied entirely upon section 632.32(4)(a) of the Wisconsin Statutes; he conceded that the policy language did not provide coverage and that his claim sounded solely in the statute. Case law required "that the unidentified vehicle meet the criteria of a statutory hit-and-run in order to cause it to be an uninsured vehicle for which coverage was required." The case law further established that "hit-and-run" status requires "a hit or touching between the two vehicles." No such contact occurred in this case. Dehnel argued, however, that his predicament fell within the statute because the truck carried an object (the ice) that later struck his vehicle. The court conceded that Wisconsin case law had not addressed this issue and other states were divided. In the end, however, the court of appeals was reluctant to enlarge the statutory interpretation established by the supreme court in earlier decisions.


    Municipal Law

    Annexation - Referendums

    City of Chippewa Falls v. Town of Hallie, No. 99-0832 (filed 19 Oct. 1999) (ordered published 22 Nov. 1999)

    Owners of real estate located in the Town of Hallie (the town) petitioned for direct annexation by the City of Chippewa Falls (the city) pursuant to section 66.021 of the Wisconsin Statutes. The city in effect accepted the petition. When the town received notice, opponents circulated a petition for a referendum on the annexation. The requisite number of qualified voters living in the area proposed for annexation signed the petition. The city brought this action for a declaratory judgment to have the petition for referendum declared invalid because it failed to comply with sections 66.021(5) and 8.40(2). Specifically, the petition for referendum had to be circulated by persons who lived in the area subject to annexation. The circuit court granted judgment in favor of the city.

    The court of appeals, in a decision authored by Chief Judge Cane, affirmed. Section 8.40(2) of the Wisconsin Statutes requires that an affidavit of a "qualified elector" appear at the bottom of each petition circulated. Under section 66.021(5) a petition for referendum can be signed only by those residing within the proposed area of annexation. Reconciling the statutes, the court held that "when sec. 8.40(2) requires that the affiant/circulator reside within the 'jurisdiction or district' in which the petition is circulated, it can only mean that the affiant/circulator must reside within the proposed area of annexation."


    Public Benefits

    State SSI Supplements - Recoupment of Overpayments

    Mack v. Wisconsin Department of Health and Family Services, No. 99-0627 (filed 24 Nov. 1999) (ordered published 16 Dec. 1999)

    Wisconsin has opted to complement an eligible individual's federal SSI (Supplemental Security Income) benefits by paying him or her an additional sum or a state SSI benefit. Through no fault of her own the petitioner, a 76-year-old disabled individual, was overpaid $837 in state SSI benefits. Once the Wisconsin Department of Health and Family Services realized the error, it notified the petitioner and determined that, following its written policy, it would recoup these funds by deducting 10 percent of her future SSI benefits payments until the overpayment was recovered.

    The petitioner objected that DHFS was not authorized to administratively recoup the overpayments from her SSI benefits. In a decision authored by Judge Anderson, the court of appeals agreed.

    The court found that there is no statutory authority for DHFS to administratively recover its overpayment from the petitioner's future benefits payments. It also found that, although an administrative agency generally possesses a common law right of recoupment to recover erroneous payments of public funds, DHFS would have to sue her to exercise its common law right of recoupment. Or, alternatively, it could administratively reclaim the funds pursuant to a statute or rule but, because there is no governing statute or rule, DHFS's administrative benefits repayment deduction was unauthorized.


    Real Estate

    Transfer Fees - Conveyance from Limited Family Partnership to Limited Family Liability Company

    Wolter v. Wisconsin Department of Revenue, No. 99-0671 (filed 24 Nov. 1999) (ordered published 16 Dec. 1999)

    Wolter and his children were all partners in Wolter Investment Company - Limited Partnership. The father was the general partner and his children were limited partners. The partnership held title to three parcels of land that it leased to various tenants.

    In 1994 the partnership was reorganized as Wolter Investment Company LLC, a Wisconsin limited liability company under Wis. Stat. chapter 183. In order to give notice of the reorganization, the family members prepared and recorded in the local register of deeds office a "Memorandum of Organizational and Operating Agreement." The reorganization of the partnership into the LLC did not involve payment of any cash consideration to any person or entity.

    Wolter and his children sought to avoid paying a real estate transfer fee on the conveyance of commercial property from the family partnership to the newly formed family limited liability company. They challenged the decision of the Wisconsin Tax Appeals Commission that a direct transfer of real property from the partnership to the limited liability company was a conveyance of title for value and that no exemptions applied to this transaction. In a decision authored by Judge Anderson, the court of appeals agreed with the commission.

    A real estate transfer fee is assessed only if there is a conveyance or transfer of ownership interests in real property for value and there are no statutory exemptions or exclusions. The court concluded that the memorandum described above meets the definition of "conveyance" in section 77.21(1) of the Wisconsin Statutes. It also found that the conveyance was for value and therefore subject to the assessment of a transfer fee. Value is present in two ways. First, the family members received capital accounts in the LLC in exchange for the conveyance. Secondly, in reorganizing as an LLC and conveying the real property to the LLC, the members received beneficial ownership rights.

    Finally, the court concluded that the conveyance was subject to the real estate transfer fee because there are no statutory provisions granting an exemption from that fee in a case like this.


    Sexual Predators

    Mandatory Reexaminations - Six-month Period - "Likely to Reoffend"

    State v. Marberry, No. 98-2883 (filed 24 Nov. 1999) (ordered published 16 Dec. 1999)

    The court of appeals, in an opinion written by Judge Deininger, affirmed an order committing the respondent as a sexually violent person under chapter 980 of the Wisconsin Statutes. The court addressed several issues. First, it concluded that "the six-month period for reexamination under section 980.07(1) does not begin to run until the court has conducted a dispositional hearing and issued an 'initial commitment order' under sec. 980.06(2), Stats." Although the respondent argued that the time began to run in November 1996, the court disagreed. The November order was not entered pursuant to a "dispositional hearing" and it did not specify whether the respondent "was to receive institutional care or be under supervised release." Neither condition was met until the circuit court's June 1998 order, and there was no contention that the mandatory reexamination failed to occur within six months of that order. Finally, the court of appeals was satisfied that the record contained sufficient evidence to support the commitment.

    Jury Trial - Waiver

    State v. Bernstein, No. 98-2259 (filed 4 Nov. 1999) (ordered published 16 Dec. 1999)

    The state initially requested a jury trial on the issue of whether the respondent should be committed as a sexually violent person under chapter 980. It later withdrew the request and the respondent was committed following a bench trial. His prime argument on appeal is that the judge failed to obtain his personal consent to the state's withdrawal of its jury request.

    The court of appeals, in an opinion written by Judge Vergeront, affirmed. First, a respondent's right to a jury trial under chapter 980 is governed by section 980.05(2), not "the case law construing the constitutional right of a criminal defendant to a jury trial and sec. 972.02(1), Stats." Section 980.05(2) requires that both the respondent and his or her attorney must consent. Attorneys, however, usually act on behalf of their clients in court. The court held that the respondent's "consent to the withdrawal of the State's request for a jury trial need not be in the form of a statement made personally by him to the court." The record established that the respondent's lawyer clearly consented to the withdrawal at a pretrial conference. On the morning of trial the judge placed the issue on the record and personally addressed respondent about the withdrawal of the jury request. The respondent acknowledged that he had spoken with his lawyer, that no one had threatened him or promised him anything, and that he was not under the influence of drugs or alcohol. The record adequately reflected the respondent's consent, although the appellate court carefully distinguished a situation in which the respondent had, in the first instance, requested the jury trial.


    Torts

    Survival Claims - Statute of Limitations

    Merrill v. Jerrick, No. 99-0787 (filed 23 Nov. 1999) (ordered published 16 Dec. 1999)

    On Nov. 23, 1994, Shawn was severely injured in a one-car accident in which he was a passenger. Shawn died three days later on Nov. 26 at age 16. Acting without legal counsel, Shawn's parents settled their wrongful death claim in 1995. On Nov. 26, 1997, exactly three years after Shawn's death, they brought a survival claim against the driver and his insurer. The trial judge dismissed the complaint, ruling that the statute of limitations, section 893.54, had expired and that the discovery rule did not apply.

    The court of appeals, in an opinion written by Chief Judge Cane, reversed. Analyzing the discovery rule, the court held that there was "an issue of material fact concerning when a reasonable person with the same degree of mental and physical handicap and under the same or similar circumstances as [Shawn's estate] should have discovered his injury, its cause, its nature and the defendant's identities." The court was unpersuaded that the action accrued on the date of the accident or that the case law treated minors differently (that is, parents are under no legal duty to file suit within three years). Finally, the court declined to address the hypothetical issue of whether any statute of limitations applies to one who is in a coma under these circumstances.


    Zoning

    Shoreland Zoning Variance - Wisconsin Fair Housing Act

    Sawyer County Zoning Board v. Wisconsin Department of Workforce Development, No. 99-0707 (filed 23 Nov. 1999) (ordered published 16 Dec. 1999)

    The issue in this case was whether the Department of Workforce Development, in enforcing the Wisconsin Fair Housing Act (WFHA), may order a zoning board to issue a shoreland zoning variance based upon characteristics unique to the landowner.

    The landowner owns a cabin abutting a creek that flows into a lake. He and his family use the cabin on summer weekends. Due to various physical ailments, the landowner requires special oxygen equipment and is disabled for purposes of the WFHA.

    The landowner hired a contractor to build an addition to the cabin. The addition permits him a greater view of the creek and lake and the sand bar area where his children play. Its linear design permits him to keep his lengthy oxygen hose out of the traffic pattern and move about without the hose getting tangled. After the construction of the addition was completed, the local zoning administrator issued two citations to the landowner, one for building without a permit and the other for violating the minimum setback. The landowner applied to the county zoning board for an after-the-fact variance. The board rejected the variance request on the ground that it would be for the convenience of the owner and would not be due to special conditions unique to the property. The board ordered the removal of part of the addition so that it would comply with the setback requirement.

    The landowner filed a disability discrimination complaint against the board under the WFHA, claiming that the board refused to permit him to make reasonable modifications to the cottage or make a reasonable accommodation under the zoning ordinance for his cottage. The administrative law judge ordered the board to grant the variance, which decision was reversed by the circuit court.

    In an opinion authored by Judge Hoover, the court of appeals affirmed the circuit court. The Department of Workforce Development in essence requested the appellate court to modify the unnecessary hardship standard required to obtain a shoreland zoning variance and examine the personal characteristics of the property owner when the owner suffers from a disability. Such a modification of the law would require the court of appeals to overrule supreme court decisions, which it may not do. The proper standard for granting a shoreland setback zoning variance is whether the property owner has no feasible use of the property without the variance, taking into account only the peculiar characteristics of the land. In this case the property owner failed to prove that there was no feasible use absent the variance.

    The court held that the board's failure to grant the variance did not constitute discrimination, but rather was the only legal action it could take given the proof before it. Because the board did not engage in a discriminatory act, the Department of Workforce Development was without authority to order the board to grant the variance.

    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.


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