Vol. 73, No. 8, August 2000

Court of Appeals Digest

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

Note: Each case summarized in the Court of Appeals Digest includes its new public domain citation.

| Civil Procedure | Criminal Law || Criminal Procedure | Property | Torts | Unemployment Compensation |

Civil Procedure

Appeals of Money Judgments - Stays Pending Appeal

Scullion v. Wisconsin Power and Light Company, 2000 WI App 120 (filed 18 May 2000) (ordered published 28 June 2000)

This case concerns money judgments and the issue of whether one appealing a money judgment has the right to a stay upon filing an undertaking approved by the court. Applying Wis. Stat. section 808.07 (Relief Pending Appeal), the court of appeals concluded that the Wisconsin Legislature intended to commit to the circuit court's discretion whether to order a stay, even if the appellant is willing and able to file an undertaking fully protecting the respondent. However, the court also concluded that an appellant's willingness and ability to file such an undertaking, or to otherwise provide proof that the respondent is fully protected if the appeal is unsuccessful, is an important factor for the court to consider in deciding whether to grant a stay.

In a decision authored by Judge Vergeront, the appellate court adopted the following standard for the circuit courts to apply in considering a motion to stay a money judgment pending appeal:

First, the court must consider the issues the appellant is appealing and the likelihood of success on those issues.

Second, the circuit court must consider the need to ensure the collectibility of the judgment and the accumulated interest if the appellant does not succeed on appeal. Consideration of this second factor addresses the appellant's ability to file an undertaking or otherwise provide security that the court determines is sufficient, or to satisfy the court that, even without an undertaking or security, there is no risk the appellant will not be able to pay the full judgment plus accumulated interest and costs.

Third, the court must consider the interests of the appellant in securing the fruits of the appeal if it is ultimately successful. The inquiry here is whether the appellant, if ultimately successful, will be able to recover the money paid in execution of the judgment and, if so, the time and effort involved in such recovery. The appellant need not show that the inability to recover such money as a successful appellant will cause it irreparable harm; rather, the underlying principle here is that the right to appeal a money judgment is not a meaningful one if the money must be paid pending appeal and cannot later be recovered.

A fourth factor may be relevant in some cases - the harm to the respondent that may result if the judgment is not paid until the completion of an unsuccessful appeal. In most cases, the undertaking, other security or demonstrated proof of financial ability to ultimately pay the judgment plus interest for the delay in paying the judgment, will make the ultimately successful respondent whole. However, when the respondent asserts that delay in executing the judgment will cause a harm that cannot be remedied by the later collection of the judgment plus interest after an unsuccessful appeal, the court must consider this factor. In evaluating this harm, the circuit court should consider the substantiality of the harm asserted, the likelihood of its occurrence, the adequacy of the proof provided, and whether it truly is a harm that cannot be remedied by the later collection of the judgment plus interest.

The court also listed a fifth factor, which is the interest of the public. The court recognized that in the usual money judgment appeal this is not a relevant consideration and will not weigh either in favor of or against a stay.

The court emphasized that the five-factor list summarized above is not intended to be exclusive. It did conclude, however, that a proper exercise of discretion requires the circuit court to consider at least the first three factors in every case, and the fourth and fifth factors whenever they are relevant. The circuit court must weigh the strength of the relevant factors in deciding whether to grant a stay and upon what conditions. It is not a matter of one party "prevailing" on more factors than the other party, but on the relative and competing weight that the circuit court, in its discretion, accords to each relevant factor based on the record before it. For example, when there is a small likelihood of success on appeal, the ability of the appellant to file an undertaking or otherwise fully ensure the collectibility of the judgment plus interest must be given more weight.

Finally, the court noted that the authority of the circuit court to grant or deny a stay of execution of a money judgment implies the authority to grant a partial stay.

Criminal Law

Theft From Person - Elements of the Crime

State v. Graham, 2000 WI App 38 (filed 25 May 2000) (ordered published 28 June 2000)

The defendant was charged with theft from the person of the victim, contrary to Wis. Stat. section 943.20(1)(a) and (3)(d)2. At trial, the victim testified that she gave the defendant a ride in her car. She placed her purse against the car door and put her left leg tight against the purse as she drove, so that it could not move. As the victim was braking to make a turn, the defendant reached over and shifted the car into "park." He then reached behind the victim's seat and released her seat-back, causing her to fall backwards. As the victim fell back, her left leg became free from her purse. The defendant reached across her body to grab the purse and then left the car, taking her purse with him.

The defendant claimed that the evidence presented at trial was insufficient to support his conviction, specifically arguing that the state failed to prove that he took the purse "from the person" of the victim.

In a decision authored by Judge Dykman, the court of appeals concluded that there was sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that the defendant took the purse "from the person" of the victim. A jury could conclude that the purse was touching the victim's leg until the defendant released her seat and caused her to fall backwards. The defendant's act of releasing the seat separated the victim's leg from the purse, allowing him to grab it and flee. Said the court, taking a victim's purse by causing her to fall backwards in the driver's seat of a car, thus breaking her hold on the purse, is the type of particularly dangerous or undesirable action to which the theft from a person statute should apply.

The victim's purse was touching her leg before the defendant took it. The nature of the crime was not altered by the fact that the defendant took the victim's purse in two steps: first causing her to fall backwards and then grabbing the dislodged purse. Whether the defendant took the purse from the victim's person or moved her person in order to take the purse, his actions separated the purse from the person and constituted the crime of theft from a person.

Criminal Procedure

Alford Pleas - Interlocutory Review of Trial Court Rejection of Plea

State v. Williams, 2000 WI App 123 (filed 25 May 2000) (ordered published 28 June 2000)

The defendant was charged with several offenses and reached a plea negotiation with the state. Pursuant to that negotiation, he tendered an Alford plea to the court. An Alford plea is a plea in which the defendant pleads either guilty or no contest, while either maintaining his innocence or not admitting having committed the crime.

The circuit court rejected the plea, indicating that it had a policy of not accepting Alford pleas. Counsel then informed the court that there was no plea agreement and the case proceeded to a jury trial, where the defendant was convicted.

Among the issues on appeal was whether the appellate court should reverse the conviction because of the trial court's refusal to accept the Alford plea. The court of appeals concluded that, even if it were to determine that the trial court erred in rejecting the plea, the error would not justify setting aside the results of the defendant's jury trial. This is because any error stemming from a trial court's refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial.

The court held that a defendant's opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his or her tendered plea has been improperly rejected to seek leave for an interlocutory appeal. The court concluded that the defendant was convicted following an error-free trial, and thus his claim of error with respect to the trial court's refusal to accept his Alford plea came too late.

Evidence - DNA Testing

State v. Santana-Lopez, 2000 WI App 122 (filed 9 May 2000) (ordered published 28 June 2000)

The defendant was convicted of first-degree sexual assault. On appeal, he claimed that the trial judge erroneously precluded him from testifying that he "offered" to take a DNA test. The court of appeals, in a decision written by Judge Fine, ordered the case remanded for further proceedings. The remand was necessary so that the trial court could determine whether the defendant "believed DNA could detect the sexual assaults of which he was charged" (¶ 7). The trial court also must consider the relevancy of such evidence in light of section 904.03 (the multi-factor balancing test), whether a new trial is warranted, and whether the error, if any, was harmless.

Judge Schudson concurred.

Sentencing - Judge's Correction of Sentences Ordered to be Concurrent When Judge Intended Them to be Served Consecutively

State v. Burt, 2000 WI App 126 (filed 25 May 2000) (ordered published 28 June 2000)

The circuit court sentenced the defendant to several concurrent sentences. This occurred during the court's morning session. Later that day, the court sentenced a codefendant but made the latter's sentence longer. When the codefendant's attorney objected that the codefendant received a longer sentence than the defendant's, the judge realized that he had erred when he pronounced the defendant's sentence and ordered the defendant back to the courtroom during the afternoon session on the same day. At that afternoon session, the judge repeated the sentence he had imposed on the defendant at the morning hearing, except that he changed one of the sentences to run consecutively to the other terms imposed. The defendant objected that this violated the double jeopardy protection he enjoys under the Fifth Amendment to the U.S. Constitution and article I, section 8 of the Wisconsin Constitution.

In a decision authored by Judge Dykman, the court of appeals affirmed. It concluded that the trial court's imposition of the corrected sentence did not violate the double jeopardy clauses. The court acknowledged that double jeopardy protections apply to some resentencings. However, the protections against double jeopardy were not violated when the trial court realized it made an error of speech in pronouncing the defendant's sentence and took immediate steps to correct the sentence before the judgment of conviction was entered into the record.

The double jeopardy clauses did not attach a degree of finality to the defendant's original sentence that prevented the trial court from correcting its error on the same day. Said the court, a defendant's interest in the finality of his or her sentence is not a significant concern when the trial court simply corrects an error in speech in its pronouncement of the sentence later in the same day. This is not a situation in which the judge, after some reflection, came to the conclusion that the original sentence would have to be increased in order to meet the court's sentencing goals.

Property

Inverse Condemnation - Statutory Bar

Koskey v. Town of Bergen, 2000 WI App 140 (filed 2 May 2000) (ordered published 28 June 2000)

The plaintiffs instituted an inverse condemnation action against the town, claiming it had taken their property without compensating them. The town had denied that the plaintiffs owned the land and had proceeded with its own condemnation action. The plaintiffs were aware of the town's condemnation action and had never appealed it. The circuit court dismissed their inverse condemnation claim.

The court of appeals, in an opinion written by Judge Peterson, affirmed. Section 32.10 of the Wisconsin Statutes clearly barred this action. It allows a property owner "to institute condemnation proceedings against anyone who possesses, but fails to exercise, the power of condemnation." Here the town had exercised its power of condemnation. If they were dissatisfied with their lack of award under the town's condemnation action, the plaintiffs should have appealed it.

Estate Planning - Power to Appoint

Lucareli v. Lucareli, 2000 WI App 133 (filed 17 May 2000) (ordered published 28 June 2000)

As part of an "estate planning divestiture stratagem," a grantor worded a deed so that she would remain eligible for aid yet maintain control over her property. A warranty deed contained a power of appointment in which "the grantor purported to convey the property in fee simple to the grantees while at the same time reserving the right to give the property to others."

The court of appeals, in a decision written by Judge Brown, held that the execution was invalid under Wis. Stat. section 706.03(1m) (1997-98). "Since the property was never conveyed, it remains in the now-deceased grantor's estate and should be disposed of accordingly" (¶ 1). When construing deeds, courts will strive to reconcile a grant of interest and the reservation of right over conveyed property, but where the purported reservation is inconsistent with the nature of the estate conveyed, the grant controls (¶ 7). In this case, the power to appoint clause in the warranty deed "purported to grant her fee simple interest to her sons and in the next breath claimed to retain the ability to grant her interest to someone else" (¶ 8).

Torts

Duty to Defend - Tenders - Damages

Loosmore v. Parent, 2000 WI App 117 (filed 31 May 2000) (ordered published 28 June 2000)

The plaintiffs sued the defendant for injuries sustained in a car accident. The defendant was employed by Allstate Insurance Company but was himself insured by American Family. This appeal involves American Family's liability to Allstate for a breach of its duty to defend.

The court of appeals, in a decision written by Judge Hoover, affirmed in part and reversed in part. First, the court held that American Family had a duty to defend Allstate because it had accepted Allstate's "tender of defense." American Family did not dispute that Allstate put it on notice of the claim or that Allstate qualified as an "insured" under its policy. If there was any ambiguity in Allstate's tender, American Family was in a superior position to "facilitate clear communication." In short, the court was reluctant to recognize a "sophisticated insureds" exception to the case law governing tenders of defense. Finally, if Allstate's position created any conflict with American Family or the defendant driver, it was American Family's obligation to resolve the conflict by hiring separate counsel, if necessary.

Second, the court addressed the measure of damages. Allstate was entitled to "the damages that naturally flow" from the breached duty. The damages included attorney fees for defending itself and pursuing coverage, but they did not extend to the cost of prosecuting a cross-claim against the defendant driver (¶ 23-4).

Unemployment Compensation

Police Officers - Suspension With Pay - Computing Unemployment Compensation Ineligibility Period

City of Kenosha v. Labor and Industry Review Commission, 2000 WI App 131 (filed 3 May 2000) (ordered published 28 June 2000)

This is an unemployment compensation case involving a police officer who was suspended from duty. Wis. Stat. section 108.04(6) provides that an employee who is suspended for good cause is ineligible to receive unemployment compensation benefits "until three weeks have elapsed since the end of the week in which the suspension occurs."

In this case, a police officer was suspended with pay pending the disposition of charges of improper conduct that had been filed against him. Following a hearing before the police and fire commission, he was found guilty and suspended without pay for a specified period of time. The issue before the court of appeals was whether the suspended officer's ineligibility period under the unemployment compensation statute is measured from the date of suspension with pay or from the later suspension without pay.

The Labor and Industry Review Commission (LIRC) ruled that the officer's ineligibility is measured from the date of the officer's initial suspension with pay. The circuit court upheld this determination. In a decision authored by Judge Nettesheim, the court of appeals agreed with the LIRC. It concluded that the statute makes no distinction between a suspension with pay and a suspension without pay for purposes of calculating the ineligibility period under the unemployment compensation law.

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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