Vol. 73, No. 5, May 2000

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Court of Appeals Digest

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

| Attorney Fees | Civil Procedure | Criminal Law |
| Criminal Procedure | Employment Law | Family Law |
| Insurance | Property | Torts |

At-will Employees - Tort Action Against Employer for Misrepresentation

Mackenzie v. Miller Brewing Co., 2000 WI App 48 (filed 22 Feb. 2000) (ordered published 22 March 2000)

The plaintiff sued his former employer seeking damages for what he claimed was intentional misrepresentation leading him to continue his employment at the company. He claimed that in 1987 the employer misinformed him that a company reorganization did not affect his position's grade level at the company and that in 1989 the employer failed to inform him that his position had been downgraded to a lower level.

In a majority decision authored by Judge Schudson, the court of appeals concluded that under Tatge v. Chambers & Owen Inc., 219 Wis. 2d 99, 579 N.W.2d 217 (1998), the plaintiff's claim for intentional misrepresentation was not actionable in tort. Said the court, "we hold that Tatge precludes an employee's tort claim against an employer for alleged intentional misrepresentation that allegedly induced continuation of employment."

The court further concluded that "the creation of an employer's duty to disclose information potentially affecting an employee's decision to continue employment would undermine sound public policy. It would reduce the at-will employment flexibility that is so valuable to both employers and employees. It would be virtually impossible to implement and enforce. It would leave both employers and employees forever guessing at the limits of their responsibility and potential liability."

The court also held that, even if the decision in Tatge did not preclude the plaintiff's claim as a matter of law, the plaintiff failed to prove the elements of an intentional misrepresentation claim.

Among the other issues considered by the court in this lengthy opinion was whether false complaints of sexual harassment should form the basis for an exception to the "firmly rooted" principle precluding punitive damages in the absence of compensatory damages. The court answered in the negative.

Judge Fine filed a concurring opinion. Judge Wedemeyer filed an opinion concurring in part and dissenting in part.

Termination of Parental Rights - Time Limitations - Extensions for Good Cause - Loss of Competency

State v. April O., 2000 WI App 70 (filed 15 Feb. 2000) (ordered published 22 March 2000)

The respondents appealed orders terminating their parental rights. They argued that the circuit court lost competency to proceed when it failed to hold their initial and dispositional hearings within mandatory time limits. Wis. Stat. section 48.315(2) allowed the court to extend those time limits, but only upon a showing of good cause in open court.

The issue before the court of appeals was whether the circuit court lost competency in this TPR case when, although it found that good cause existed to extend the time limits, it did not make that finding until after the time limits had expired.

In a decision authored by Judge Peterson, the appellate court concluded that the circuit court did lose its competency to proceed in this case and therefore it reversed the orders terminating the respondents' parental rights.

Wrongful Death - Survivors - Parents

Bruflat v. Prudential Property & Casualty Ins. Co., 2000 WI App 69 (filed 2 Feb. 2000) (ordered published 22 March 2000)

Martin and Mary were divorced and lived in different residences. Their son, Simon, lived with Martin although Mary had joint custody. Simon was killed in 1998 while driving Martin's car. The other driver was uninsured. Mary filed a claim for the proceeds of the uninsured (UM) coverage. Martin asked the court for declaratory relief. The court divided the proceeds between Martin and Mary.

On appeal Martin argued that since he was the named insured and Simon resided with him, he was entitled to 100 percent of the proceeds. The court of appeals, in a decision written by Judge Snyder, rejected the argument and affirmed the circuit court. Simon was not married and had no children; hence, his lineal heirs were his parents pursuant to section 895.04(1) of the Wisconsin Statutes. The court was not persuaded that the statutes regulating UM protection overrode the design of the wrongful death statute.

Deeds - Gifts - Equity - Retitling

Wynhoff v. Vogt, 2000 WI App 57 (filed 16 Feb. 2000) (ordered published 22 March 2000)

The prime issue on this appeal concerned the trial court's power to reform a quitclaim deed. The parties disputed title to land that had been "gifted with strings" in the 1970s. After a bench trial, the trial court canceled a 1974 quitclaim deed based on its equitable powers under section 706.04 of the Wisconsin Statutes.

The court of appeals, in a decision written by Judge Snyder, reversed. There was nothing deficient or ambiguous about the 1974 deed "in its own right." The trial court found that there were "contingencies and reservations in the deed that were not listed in any of the documents" and so it read them into the deed by way of "reformation in equity." By granting such equitable relief, the trial court's action conflicted "with fundamental tenets of property law." First, the law requires that parties who intend to retain an interest in property "must expressly do so in the document of conveyance." Second, once the deed is effective, the grantor's later remarks or conduct cannot operate retroactively to change the deed's effect. In short, deeds "should not be rewritten by the court."

Dog Bites - Negligence - Statutory Claim

Fifer v. Dix, 2000 WI App 66 (filed 24 Feb. 2000) (ordered published 22 March 2000)

Fifer sued Dix for injuries stemming from a dog bite. The trial court granted summary judgment dismissing Fifer's claims sounding in negligence and in section 174.02 (1997-98).

The court of appeals, in a decision written by Judge Deininger, affirmed in part and reversed in part. The trial court erred in granting summary judgment on the statutory dog-bite claim. Dix, the dog's owner, had allowed another man and Fifer to use the dog in preparation for bear season. Both were warned that the dog had bitten a person on a prior occasion and should be handled carefully. Dix argued that since he was not handling the dog when Fifer was bitten, he was not liable to third parties under the case law. The court disagreed. It held that section 174.02(1) "unambiguously imposes strict liability on a dog owner whose dog injures a person who is neither its owner nor its keeper."

No error occurred in the dismissal of the negligence claim. The plaintiff Fifer provided no information contesting Dix's evidence that he had warned Fifer and others about the dog's propensity.

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.