Vol. 73, No. 2, 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 |

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.

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.

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.

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.

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.

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