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    Wisconsin Lawyer
    October 01, 2001

    Wisconsin Lawyer October 2001: Court of Appeals Digest

    Court of Appeals Digest


    This column summarizes selected published opinions of the Wisconsin Court of Appeals. 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.

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

    Criminal Law

    Possession of Child Pornography - Images Stored in Computer Files

    State v. Whistleman, 2001 WI App 189 (filed 19 July 2001) (ordered published 29 Aug. 2001)

    The defendant was charged with multiple counts of child pornography after police obtained photographs depicting children engaged in sexually explicit behavior from computer zip-drive disks at the defendant's residence. The child pornography statute prohibits possession of "any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct." See Wis. Stat. § 948.12.

    The issue before the court of appeals was whether possession of a computer disk that stores images of child pornography is a violation of this statute. More specifically, the court needed to resolve whether the disks that store child pornography are included within the meaning of the term "or other pictorial reproduction" as it is used in section 948.12.

    In a decision authored by Judge Vergeront, the court concluded that computer disks that store images of child pornography are included within the meaning of the term "or other pictorial reproduction" as used in the statute. The disks taken from the defendant's residence produce visual images on a computer screen when a person inserts the disks into a computer and clicks on a file. The court concluded that the disks thus come within the ordinary meaning of "pictorial reproduction."

    Said the court, "the Legislature's choice of the broad term 'or other pictorial reproduction' following various specific items, which are created and processed in different ways in order to produce a picture of a child, indicates an intent to penalize items that are able to readily produce pictures of children engaging in sexually explicit conduct, whatever the particular process or technology. It is not reasonable to conclude that in choosing the broad term 'or other pictorial representation,' the Legislature intended to exclude one particular, and increasingly common, means of storing and producing visual images" (¶9).

    Criminal Procedure

    Terry Stops - Telephone Tips - 9-1-1 Call in Which Caller Identifies Self

    State v. Sisk, 2001 WI App 182 (filed 31 July 2001) (ordered published 29 Aug. 2001)

    A police dispatcher received a 9-1-1 telephone call from a person reporting that he had seen two men enter a building at a specific address with guns. The caller described their race and clothing. The caller also self-identified himself by providing his name. Officers responded to the target address, arriving six minutes after the 9-1-1 call. They observed two men matching the caller's descriptions sitting in a car one-half block from the specified address. The officers approached the car, briefly questioned the suspects, and asked the defendant, who was a passenger, to get out. A frisk revealed a gun in the defendant's pants pocket.

    The circuit court granted the defendant's motion to suppress the evidence, ruling that the police did not have reasonable suspicion to stop the defendant. The court believed that the 9-1-1 call was an anonymous tip, reasoning that the fact that the caller gave a name was not enough to establish the reliability of the information because the call came from a pay phone and the caller (leaving nothing other than his name to identify himself) had not allowed for verification.

    In a decision authored by Judge Schudson, the court of appeals reversed. The court concluded that, because the caller gave what he said was his name, the circuit judge erred in viewing the call as anonymous. Whether the caller gave correct identifying information, or whether the police ultimately could have verified his identify, the fact remains that the police could have reasonably concluded that the caller, by providing self-identifying information, risked that his identity would be discovered.

    Therefore, unlike the situation where a tip comes from an unknown location by an unknown caller, here the caller provided self-identifying information, that is, his name. [The evidence in this case established that the police did not locate the caller or confirm his identity before responding to the scene. However, the court noted that it would be dangerous to require police to take critically important time to attempt to verify identification rather than respond to crimes in progress. See ¶9.]

    Analyzing the reasonableness of the police suspicion in this case, the court noted that the caller gave information about the suspects and their location, which the police verified before stopping them. The caller also gave what he said was his name. The court could see no legal or logical reason to indulge the "factual fiction" that would convert this nonanonymous call to an anonymous one, and thus exclude its apparent reliability as a very significant factor to be considered in the totality of the circumstances determining the lawfulness of the investigative stop.

    The court thus concluded that when a caller identifies himself or herself by name, thus providing self-identifying information that places his or her anonymity at risk, and when the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful stop. See ¶11.

    Search and Seizure - Administrative Searches

    State v. Jackowski, 2001 WI App 187 (filed 26 July 2001) (ordered published 29 Aug. 2001)

    The defendant was convicted of possessing a firearm silencer and of possessing a short-barreled rifle. On appeal, he challenged the denial of his motion to suppress evidence.

    The court of appeals, in an opinion written by Judge Deininger, affirmed. The evidence was uncovered when three members of the city's building inspection department, along with several police officers, executed a "special inspection warrant" that had been issued by a municipal judge for the defendant's premises. During this initial search, the accompanying police officers observed short-barreled rifles and silencers amid the "extreme state of disarray." Police later obtained a criminal search warrant for purposes of reentering the home and seizing the weapons.

    On appeal, the defendant challenged only the initial building inspection warrant, not the criminal warrant. Defendant "conceded" the city's "regulatory package that includes compulsory inspections." Officials applied for the inspection warrant under oath and generally followed the "illustrative" format set forth in Wis. Stat. section 66.0119(3). The application described the officials' authorization, the code provisions sought to be enforced, and the need for the inspection based on citizen complaints and prior violations. Nothing in the record demonstrated that police used the building inspectors as their "stalking horse." Finally, the court held that the owner's refusal to grant consent is not a condition precedent for obtaining administrative warrants.

    Sentencing - Consideration of Behavior Underlying Expunged Convictions

    State v. Leitner, 2001 WI App 172 (filed 12 July 2001) (ordered published 29 Aug. 2001)

    Wisconsin's expungement statute provides that "when a person is under the age of 21 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum penalty is imprisonment for one year or less in the county jail, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition." See Wis. Stat. § 973.015. The statute further provides that upon successful completion of the sentence, the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.

    Among the issues in this case are whether section 973.015 prohibits a sentencing court from considering behavior underlying a prior conviction that has been expunged and whether the statute directs law enforcement agencies, such as a district attorney's office, to destroy all records documenting the behavior underlying an expunged conviction.

    In a decision authored by Judge Lundsten, the court concluded that the plain language of the statute does not prohibit a sentencing court from considering behavior underlying a prior conviction that has been expunged. "Accordingly, if such behavior comes to the attention of a sentencing court through a means apart from government records, there is not even an arguable violation of sec. 973.015" (¶47).

    Regarding the question of whether the expungement statute required the district attorney in this case to destroy his records relating to the defendant's expunged convictions, section 973.015 is entirely silent regarding district attorneys' offices and other law enforcement agencies. It speaks only of the "court of record." Thus, there is nothing in the language of the expungement statute that directs law enforcement agencies to destroy records relating to an expunged conviction.

    "In summary, we hold that Wis. Stat. sec. 973.015 does not require law enforcement agencies, such as a district attorney's office, to destroy records relating to an expunged conviction. Further, sec. 973.015 does not prohibit sentencing courts from considering behavior underlying expunged convictions" (¶53).

    Employment Law

    Covenant Not to Compete - Absence of Geographic Limitations

    Equity Enterprises Inc. v. Milosch, 2001 WI App 186 (filed 11 July 2001) (ordered published 29 Aug. 2001)

    The defendant was an agent/employee of Equable Securities for approximately 15 years. Equable sells insurance and securities products. After terminating his employment with Equable, the defendant contacted Equable customers to solicit their business. Equable thereafter filed an action in circuit court seeking to enforce a covenant not to compete contained in employment contracts that had been executed between the defendant and Equable. Among the issues on appeal was the enforceability under Wis. Stat. section 103.465 of the noncompete provisions of the contracts. As characterized by the court, the contracts restrict the defendant from soliciting any Equable customers for a period of 18 months after termination of employment. The contracts are silent as to what territorial parameters the defendant must abide by, thereby implying at the least a nationwide restriction.

    In a decision authored by Judge Anderson, the court of appeals concluded that this provision of the contracts cannot escape the requirement of territorial reasonableness simply because it does not include any mention of geographical parameters. The statute provides that a covenant not to compete within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary to protect the employer or principal. Without any specified territory, the provision of the defendant's employment contracts described above is void.

    In footnote the court observed that the Wisconsin Supreme Court's decision in Farm Credit Services of North Central Wisconsin, ACA v. Wysocki, 2001 WI 51, did not alter its conclusion that the covenant not to compete in this case is invalid. In Wysocki, the supreme court held that where the covenant not to compete contains a restriction "narrowly tailored to a customer list," the lack of a geographical restriction is not fatal. In this case, neither party discussed the "customer list" restriction in the employment contracts and ordinarily the court of appeals does not consider an issue not raised on appeal or in the trial court. However, the court noted that the "customer list" restriction in this case was far from being narrowly tailored. In Wysocki, the restriction prohibited contact with any client the employee had serviced in the year prior to his date of separation. In contrast, the "customer list" restriction in this case prohibited the defendant from doing business with any customer of Equable whom the defendant serviced at any time during his employment with the company. "This restriction is unreasonable because it would prohibit [the defendant] from doing business with a customer he serviced during his first weeks of employment in 1982 who subsequently transferred his or her business to a competitor of Equable. Such an overbroad restriction is invalid because preventing [the defendant] from contacting former Equable customers is not reasonably necessary to protect Equable's legitimate business interests." See footnote 4.

    Family Law

    Voiding Marriage After Death of Spouse - Void Marriage When Contracted Within Six Months of Divorce

    Ellis v. Estate of Toutant, 2001 WI App 181 (filed 25 July 2001) (ordered published 29 Aug. 2001)

    Marjorie Toutant was a lifelong resident of Racine, Wis., and was married to James for many years. He passed away in 1997. In September 1999 Marjorie married John Ellis in Texas, 30 days after his Scottish divorce. Following the wedding, the couple returned to Racine. Marjorie died two weeks later; she and Ellis had remained in Racine from the date of their return from Texas until her death.

    Marjorie died testate and in her will she named her son Kevin as the personal representative. Kevin filed the will and a petition for administration, and Ellis filed a Surviving Spouse's Selection of Personal Property, selecting all of his wife's clothing, jewelry, and other personal property, including her car. Kevin filed a petition for declaratory judgment asking the court to adjudge the 1999 marriage of his mother and Ellis null and void. The circuit court ruled that the marriage between the two was void because it violated Wisconsin's six-month waiting period between a divorce and a subsequent marriage. In an opinion authored by Judge Snyder, the court of appeals affirmed.

    Ellis argued that the trial court did not have the authority to annul the marriage because a marriage cannot be annulled after death. The court of appeals agreed with this assertion. But, in this case, the estate was not asking the marriage to be annulled. Rather, it sought a declaration that the marriage was null and void. The court concluded that a marriage can be declared null and void after the death of a spouse. Wis. Stat. section 767.03 provides that no marriage may be annulled after the death of either party to the marriage; it does not prohibit declaration that a marriage is null and void.

    The trial court declared the marriage null and void pursuant to Wis. Stat. section 765.03. Subsection (2) of that statute provides that "it is unlawful for any person, who is or has been a party to an action for divorce in any court in this state, or elsewhere, to marry again until 6 months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of 6 months from the date of the granting of the judgment of divorce shall be void." Thus, said the court, it is irrelevant that Ellis' divorce was granted in Scotland.

    Ellis next argued that the marriage was valid because it was valid in Texas where it was celebrated. This assertion, however, ignores the provisions of section 765.04. The latter statute expressly proscribes the celebration of marriage outside of Wisconsin to avoid the prohibition of section 765.03(2) described above. Among other things, section 765.04(2) provides that proof that a person contracting a marriage in another jurisdiction was domiciled in this state within 12 months prior to the marriage and resumed residence in this state within 18 months after the date of departure from this state is prima facie evidence that at the time of the marriage, the person resided and intended to continue to reside in Wisconsin. Thus, if Ellis resided in Wisconsin within 12 months before the marriage and within 18 months afterwards and he intended to continue to reside in this state, Wisconsin prohibited his remarriage within six months of his divorce, whether the remarriage occurred in Wisconsin or Texas. See ¶18.

    Ellis spent 360 days living in Marjorie's home in Racine with the majority of his personal belongings from February 1998 through September 1999 and, said the court, it cannot be credibly argued that his residence was anything other than Marjorie's Racine home. The court concluded that the facts demonstrated that Marjorie and Ellis were Wisconsin residents and intended to continue to be Wisconsin residents and that, under the statutes cited above, the marriage less than six months after Ellis' divorce was void.

    Insurance

    Liability - Exclusions - "Regular Use"

    Martin v. American Family Mut. Ins. Co., 2001 WI App 178 (filed 24 July 2001) (ordered published 29 Aug. 2001)

    While driving his father's pickup truck with his father's consent, Eric injured the plaintiff. Eric used the pickup truck "regularly." Eric also owned a 1983 van that was insured by American Family. The trial court ruled that the policy on the van did not provide liability coverage for injuries suffered by plaintiff while Eric was driving his father's truck.

    The court of appeals, in an opinion written by Judge Fine, affirmed. The sole issue was whether the liability coverage on the 1983 van applied to the accident involving Eric's father's truck. The American Family policy's "regular use" exclusion eliminated liability coverage for injuries inflicted while driving a vehicle, other than the "insured car," which is "available for regular use by you or any resident of your household." The court held that Wis. Stat. section 631.43(1) did invalidate the exclusion, a conclusion supported by case law. More precisely, the policies did not indemnify for the "same loss." "In this case, Eric Johnsen's 1983 van policy promised to indemnify him for liability resulting from his driving the 1983 van and those cars that were not available for his regular use. That risk of loss - excluding, as it did, coverage for his driving his father's pickup truck - was different than the risk of loss covered by his father's policy on the truck, which promised to provide liability coverage for accidents caused by an authorized driver of the pickup truck" (¶10).

    Judge Schudson dissented, arguing that the policies indemnified for the same loss and that case law did not compel the majority's resolution.

    "Motorized Vehicles" - Liability - Exclusions - Supplemental Coverage

    Rural Mutual Ins. Co. v. Welsh, 2001 WI App 183 (filed 26 July 2001) (ordered published 29 Aug. 2001)

    Eleven-year-old Skylar was killed while operating a forklift near or on a rural roadway, near a farm owned by the Welshes. Welsh owned the forklift and allowed Skylar to operate it without supervision. Rural Mutual had issued both Farmowners and Homeowners policies to the Welshes, which provided liability coverages on that date. In a declaratory judgment action, the court granted summary judgment finding that Rural's liability coverage did not cover Skylar's death under either policy. The Welshes and Skylar's parents appealed.

    The court of appeals, in an opinion written by Judge Deininger, reversed. The general issue was whether the policies provided "coverage for an occurrence involving a 'motorized vehicle' on the present facts" (¶5). The precise issue involved "whether the 'supplemental coverage' of certain occurrences involving motorized vehicles creates an exclusion from principal liability coverage for all other occurrences involving motorized vehicles" (¶11). The policy language in this respect was "ambiguous" because the insurer and the insured advanced reasonable constructions "regarding occurrences involving motorized vehicles that are neither motor vehicles nor used in racing" (¶15). A reasonable person would expect that the policies provided coverage for Skylar's death because "it would not be reasonable to expect an insured, after he or she

    had consulted [the liability coverage sections and specific exclusions] and found no exclusion from or limitations on coverage relating to motorized vehicles not used for racing, to then consult the 'supplemental coverages' on the chance that an exclusion from general liability coverage might be implied or inferred from these additional, more specific grants of coverage" (¶17).

    Lemon Law

    UCC - Consumers - Remedies

    Smyser v. Western Star Trucks Corp., 2001 WI App 180 (filed 18 July 2001) (ordered published 29 Aug. 2001)

    Smyser purchased a new truck from defendant truck dealer in 1997. The truck's vibration problems necessitated numerous repairs. The dealer did not dispute that the repairs failed and the truck was a "lemon" within the meaning of Wis. Stat. section 218.0171(1)(h), (2)(a) (1999-2000). With consent of the lienholder who had financed the truck's purchase, Smyser turned the truck and its keys over to the dealer, which obtained clear title by paying the balance of the loan to the lienholder (who held title). The dealer later sold the same vehicle to a third party. Ten months later, Smyser sought more than $40,000 in damages under the Lemon Law. A complaint alleged a Lemon Law claim against the truck's manufacturer and revocation of Smyser's acceptance of the truck under the UCC against both the dealer and the manufacturer. The trial court granted summary judgment in favor of the dealer and the manufacturer.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. First, Smyser's claims under Wis. Stat. section 218.0171(2)(a), which obligates manufacturers to repair a nonconformity covered by a warranty, failed because the undisputed evidence demonstrated that the dealer did make a reasonable attempt to repair the vehicle. Second, Smyser also claimed that he was entitled to a refund and related expenses under subsec. (2)(b). The Lemon Law requires, however, that when the claim is made, the consumer must offer to deliver the vehicle and title to the manufacturer. Obviously Smyser could not comply because he had already surrendered the truck and title some months earlier. The court refused to rewrite the statute's clear and unambiguous terms "simply because the law is remedial in favor of consumers" (¶15). In sum, Smyser was no longer a "consumer" when he made his Lemon Law claim.

    Smyser also argued that he had a separate claim under the UCC, specifically Wis. Stat. section 402.608, because his delivery of the vehicle and title constituted revocation of his acceptance of the truck. This claim failed for the same reasons that his Lemon Law claims floundered. "[B]y using the vehicle for nearly a year and a half and by then transferring the title and possession, Smyser was signaling his continuing acceptance, not revocation, of that acceptance, of the vehicle. Smyser's attempt to revoke his acceptance nearly two years after delivery of the vehicle and after he engaged in conduct confirming his ownership of the vehicle stands the revocation of acceptance provisions of Wis. Stat. § 402.608 on its head" (¶19).

    Property

    Restrictive Covenants - Waivers

    Pietrowski v. Dufrane, 2001 WI App 175 (filed 17 July 2001) (ordered published 29 Aug. 2001)

    The Dufranes built a detached two-and-one-half car garage on their property, which violated their subdivision's restrictive covenants, dated 1940. The circuit court entered a raze order after it entered summary judgment on behalf of neighbors who sued to enforce the restrictions.

    The court of appeals, in an opinion written by Judge Curley, affirmed. First, the court rebuffed the Dufranes' contention that the neighbors waived the right to enforce the restriction because they had not objected to other violations. Indeed, the plaintiff neighbors had violated various restrictions themselves, but the court found them to be "slight" violations in contrast to the Dufranes' "major" violation. For similar reasons, the court rebuffed a second defense: the plaintiffs' "unclean hands." Finally, the Dufranes argued that "numerous other violations of the restrictive covenant in the subdivision demonstrate a change in the character of the neighborhood, which constitutes an abandonment of the restrictive covenant" (¶14). The court surmised that the restrictions limited the area to single family dwellings, prohibiting both multiple family dwellings and businesses. Sheds and the like constructed by other neighbors did not vitiate this intent. The size of the Dufranes' unattached garage, however, invited the risk that it might be used for purposes inconsistent with single family dwellings.

    Mental Commitments

    Timely Hearings - Extensions

    County of Milwaukee v. Edward S., 2001 WI App 169 (filed 3 July 2001) (ordered published 29 July 2001)

    A court committed Edward S. under Wis. Stat. chapter 51. The sole issue on appeal was "whether the 14-day deadline for a final hearing in an involuntary commitment proceeding pursuant to Wis. Stat. § 51.20(7)(c) (1999-2000) may be extended when the subject of the commitment creates the need for an extension."

    Affirming an order denying Edward's post-commitment motion for relief, the court of appeals held that judicial estoppel was applicable and State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325 (Ct. App. 1982), was distinguishable. Lockman held that the 14-day deadline could not be extended, but in this case Edward forced the adjournment and necessitated the modified timeline because he unilaterally fired his lawyer the day before the 14-day limit expired. A contrary holding invited detained subjects to manipulate the judicial system. Edward also contended that the applicable time limits could not be extended because section 51.20 did not expressly provide for extensions of mandatory time limits under these circumstances. The court refused to even address this argument based on judicial estoppel: Edward asked for the adjournment and received it.

    Sexually Violent Persons

    Probable Cause - 72-hours Rule - Jurisdiction

    State v. Beyer, 2001 WI App 167 (filed 7 June 2001) (ordered published 29 Aug. 2001)

    Beyer was convicted of sexual assault in 1981 and the state filed a petition for his commitment as a sexually violent person as his release date approached. Acting pursuant to Wis. Stat. section 980.04, the court ordered Beyer's detention and that a probable cause hearing be held within 72 hours. On the date of the scheduled hearing, Oct. 12, Beyer filed a substitution request at 5:00 p.m. A new judge was assigned on Oct. 22 and the hearing finally conducted on Dec.14. A jury later found Beyer to be a sexually violent person.

    The sole issue on this appeal was whether the court lost competency to proceed when the probable cause hearing was not held within the 72-hour period. The court of appeals, in an opinion written by Judge Dykman, held that the 72-hour time limit is directory and not mandatory (¶10). Nonetheless, trial courts cannot extend the time indefinitely; there are limits to the judge's discretion. Here, however, the delay was reasonable under the statute and due process analysis, particularly since Beyer filed his request for substitution after "normal business hours" in a single-judge county. The court of appeals remanded the case for a determination whether the state met its burden beyond a reasonable doubt that, when it filed the chapter 980 petition, Beyer was within 90 days of release or discharge from his sentence. This section of the opinion tackles the retroactivity issue, which has been addressed in several other cases.

    Torts

    Intoxicated Employees - Vicarious Liability

    Stephenson v. Universal Metrics Inc., 2001 WI App 173 (filed 24 July 2001) (ordered published 29 Aug. 2001)

    After he became "very drunk" at a company-sponsored holiday party, Devine was killed while driving home. He also killed the driver of the other vehicle, whose estate brought this action against Devine's employer and others. This appeal addresses unresolved issues related to a prior decision at 2001 WI App 128, in which the court held that another employee, Kreuser, was not immune from liability based on his alleged breach of a promise to drive Devine home. See Wis. Stat. § 125.035 (liquor-provider immunity). The issues on this appeal were decided on summary judgment. The court of appeals, in an opinion written by Judge Fine, affirmed in part and reversed in part.

    First, the court held that the record raised a jury question whether Kreuser was acting within the scope of his employment when he allegedly offered to drive Devine home, a promise he failed to act on. Closely examining the record, the court observed that the holiday party "had business as well as social purposes." For these reasons a jury might find that the employer's insurance policy provided liability coverage and the employer itself was vicariously liable based on Kreuser's breach of duty. The court therefore reversed the grant of summary judgment, dismissing claims brought by the parties against the employer and its insurer.

    Second, the court of appeals affirmed the dismissal of claims against the employer based on respondeat superior liability for Devine's drunken driving. The argument ignored the "broad grant of immunity" in section 125.035(2) and case law absolving employers of responsibility for an employee's driving to and from work, or a company-sponsored event, except where it has "control over the method or route of travel."

    Third, the employer had no duty to prevent Devine from getting drunk. In particular, section 125.035 "grants immunity from liability predicated on letting someone else drive while drunk" (¶22).

    Wisconsin Lawyer


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