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
Contracts
Warranties - Latent Defects
Woodward Communications
Inc. v. Shockley Communications Corp., 2001 WI App 30 (filed 7
Dec. 2000) (ordered published 17 Jan. 2001)
On May 3, 1996, Shockley agreed to sell Woodward the assets of a
radio station, which included a 640-foot communications tower. The
closing occurred on July 29, 1996 and the tower collapsed during a storm
in late December 1996. A clause in the agreement warranted the
following: "Seller, at its expense, shall keep in good repair and
operating efficiency, all tangible personal property to be transferred
to the Buyer." Investigation disclosed that the tower collapsed because
of a "hidden, internal defect" in a bolt used to erect the tower in
1948. The circuit court ruled in Woodward's favor that the clause
constituted an express warranty against latent defects.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. A warranty is a promise to indemnify the promisee for any loss
if the facts warranted are untrue. The phrase "represents and warrants"
did not transform the clause "into a warranty of a specific type - that
is, a warranty that there are no latent defects" ( 14). Rather, the
language obligated the seller to maintain the assets between the date of
the agreement and closing. Had the parties intended to warrant regarding
latent defects, "it would have been a simple matter for them to so
state" ( 17). The court of appeals ruled that Shockley was entitled to
summary judgment because it did not breach its contract with the buyer
or breach any express warranty.
Consumer Law
Credit History - Disputed Debts - Disclosure
Turner v. Dencker
Buick-Pontiac Inc., 2001 WI App 28 (filed 16 Nov. 2000)
(ordered published 17 Jan. 2001)
The Turners bought a car from a dealer and financed it with a note
that was assigned to the bank. When problems arose with the car, the
Turners suspended payment. The Turners sued the bank because it
disclosed to a credit bureau information concerning a debt that was
known to be reasonably disputed without also disclosing the fact of the
dispute, contrary to Wis. Stat. section 427.104(1)(f) (1997-98). The
judge ruled in the bank's favor by finding that a bank officer had
communicated the dispute to the credit bureau during a telephone
conversation, even though the written monthly report to the credit
bureau carried no indication that the debt was disputed.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. The bank failed to "maintain procedures reasonably adapted to
avoid transmitting information about a reasonably disputed debt to the
credit bureau without disclosing that the debt was disputed" ( 24).
Under the statutory scheme, the court declined to consider the bank's
good faith efforts to comply with the statute despite the technological
limitations on its reporting procedures. "If the debt collector chooses
a system that cannot report the disputed status of a debt, it is
reasonable to place on the debt collector the responsibility to see that
the disputed status is nevertheless disclosed with each report on the
debt, along with the attendant liability for failure to do so, subject
to Wis. Stat. § 425.301(3) and other defenses, if any" ( 26).
Criminal Procedure
Witnesses - Involuntary Statements - Exclusion
State v. Samuel,
2001 WI App 25 (filed 27 Dec. 2000) (ordered published 17 Jan. 2001)
The defendant was convicted of a long list of felonies, including
child abduction and second degree sexual assault. The events related to
defendant's relationship with a 15-year-old girl, who was some 30 years
his junior. The issue in this case is whether a "hostile prosecution
witness" has standing to object to the admission of a prior statement on
grounds that it was "coerced" by law enforcement officials. The putative
victim, young Tisha, claimed that police, in effect, threatened that
unless she incriminated the defendant by disclosing underage sex, she
would not get her child back (the defendant was the child's father). At
defendant's trial, Tisha testified that she did not have underage sexual
relations with defendant while they were in Wisconsin and that her
earlier inconsistent statement to police, which alleged the opposite,
was false.
The court of appeals, in an opinion written by Judge Brown, affirmed
in part and reversed in part. Addressing an issue of first impression in
Wisconsin, the court held that a nondefendant witness's statement that
incriminates the defendant is subject to suppression if it was coerced.
"[T]he standard for determining whether a nondefendant witness's
statement was voluntary is the same test that [the court] use[s] when
determining whether a defendant's statement is voluntary" ( 21). The
court of appeals reversed the lower court's ruling that Tisha lacked
standing to contest the voluntariness of her statement. This
necessitated the reversal of the second degree sexual assault conviction
and a remand for purposes of determining if Tisha's statement was
voluntary. Finally, since the prior statement affected Tisha's
credibility generally, the court also reversed the convictions for
abduction and interference with custody, depending on the outcome of the
hearing on remand.
Plea Negotiation Regarding Sentence Recommendation -
Prosecutor's Remarks at Sentencing Hearing Constituted Breach of
Bargain
State v. Williams,
2001 WI App 7 (filed 27 Dec. 2000) (ordered published 17 Jan. 2001)
The defendant pled guilty to one count of failure to pay child
support. As part of the plea agreement, the state agreed to recommend
that Williams receive three years of probation, with the condition that
he pay current support plus all arrearages, and serve 60 days in jail.
At the sentencing hearing the prosecutor stood by her original
recommendation. However, she also told the court that she now had a
negative impression of the defendant based on information acquired
subsequent to the plea agreement, indicated that she had adopted the
same negative impressions expressed by the pre-sentence investigation
writer, and then gratuitously informed the court that the PSI writer
recommended prison. The court sentenced the defendant to 18 months in
prison.
In a decision authored by Judge Brown, the court of appeals reversed.
It concluded that the plea agreement was breached, that the sentence
must be vacated, and that the matter must be remanded to the circuit
court for a new sentencing hearing.
While the district attorney may inform the court about negative
information acquired about the defendant after the plea agreement, if
relevant to sentencing, the prosecutor may not imply that she has
subsequently changed her mind about the plea. The appellate court
recognized that there is a fine line between presenting information to
the trial court for its education and presenting information in a way
that implies that the prosecutor has second thoughts about the
agreement. Many courts have discussed the difficulty in discerning when
the line is crossed such that the recommendation is no longer neutral.
These jurisdictions have construed comparable plea agreements liberally
to favor the defendant. In this case, the court of appeals agreed with
those jurisdictions and adopted the view that, in close cases, the
agreements should be construed in favor of the defendant.
When a prosecutor has gathered negative information about the
defendant, the court should look at how the prosecutor used this
information. In other words, the court should look closely at whether
the prosecutor used this information to imply a personal
recommendation.
In this case, the court concluded that the line was crossed. It was
convinced that the prosecutor's remarks showed that she now had second
thoughts about the plea agreement based on what she now knew about the
defendant's character. While a prosecutor is not required to advocate
for a bargained sentence enthusiastically and may inform the court about
the character of the defendant, even if the information is negative,
what the prosecutor may not do is personalize the information, adopt the
same negative impressions as the PSI writer, and then remind the court
that the PSI writer has recommended a harsher sentence than recommended.
That is what happened in this case.
Judge Snyder filed a concurring opinion. Judge Nettesheim
dissented.
Bail - Forfeiture - Exercise of Judicial
Discretion
Melone v. State,
2001 WI App 13 (filed 6 Dec. 2000) (ordered published 17 Jan. 2001)
The defendant was charged with second-degree recklessly endangering
safety and endangering safety by use of a dangerous weapon. Bail was set
at $5,000. His mother posted the bail, but it was forfeited when her son
missed a court date. Bail was then set again, this time at $20,000,
which the mother also posted. Bail was conditioned upon the defendant
not consuming alcohol or drugs without a prescription. According to the
mother, she posted the $20,000 bail to help her son and his attorney
prepare a defense and to enroll her son in a drug and alcohol
rehabilitation program, at her expense. She initially enrolled him in an
outpatient treatment program; when that failed, she enrolled him in an
inpatient program. Some time after the $20,000 was posted, the defendant
failed a urinalysis test and the court ordered the bail forfeited.
At a hearing on the mother's request to set aside the forfeiture, she
asked the court to exercise its discretion and return the $20,000 to
her. The court refused to do so. According to the judge, he always
refuses to return bail, no matter what the circumstances are, because
giving the money back provides a disincentive to those on bail to follow
their bail conditions.
In a decision authored by Judge Brown, the court of appeals reversed.
The bail forfeiture statute allows the court to set aside an order
forfeiting bail "if it appears that justice does not require the
enforcement of the forfeiture." See Wis. Stat. § 969.13(2). The
trial court's decision under this statute is one of discretion. The term
"discretion" "contemplates a reasoning process that depends on the facts
in the record and yields a conclusion based on logic and founded on a
proper legal standard" ( 6). Coming to the same conclusion for the same
blanket reason in every case despite the facts of each case does not
satisfy this definition.
In an earlier case, the court of appeals indicated that determining
what justice requires under section 969.13(2) involves weighing a number
of relevant factors. See State v. Ascencio, 92 Wis. 2d 822, 285 N.W.2d
910 (Ct. App. 1979). The trial court in this instance erroneously
exercised its discretion by relying on one factor rather than weighing
all relevant factors.
The appellate court disagreed with the trial court that giving money
back to the person who posted bail provides a disincentive, in every
instance, to those on bail to follow their bail conditions. Sometimes a
defendant's drug or alcohol addiction may be so strong that it overrides
the defendant's intent not to bring financial harm to the person who
posted the bond. Said the court, it is proper to ask: "How much control
over the situation does the defendant have? And how much control does
the person who posted the bond have over the defendant?" ( 7).
The court indicated that the judge may want to consider whether the
mother's attempt to help her son follow the bail condition and her
attempt to fix the situation after the bail condition was violated
warrants relief for her. Financial hardship visited upon the mother and
her family is also a factor that the trial court may want to consider.
The fact that the defendant violated bail conditions twice also may be
considered in deciding whether to remit the bail.
The appeals court remanded to the trial court with directions that it
weigh all the relevant factors when deciding whether to set aside the
bail forfeiture.
Ineffective Assistance of Counsel - Failure to Object to Jury
Instruction With Missing Element
State v. Krueger,
2001 WI App 14 (filed 19 Dec. 2000) (ordered published 17 Jan. 2001)
The defendant was convicted for attempting to have sexual contact
with a person under age 13, contrary to Wis. Stat. sections 939.32 and
948.02(1). During trial, the judge provided the jury with an instruction
that failed to include an element of the crime. The instruction informed
the jury that "sexual contact" requires an "intentional touching" of the
victim's breast or vaginal area, but it did not state that the touching
must have "the purpose of sexually degrading or sexually humiliating the
complainant or sexually arousing or gratifying the defendant." The
defense attorney did not object to the incomplete instruction.
The defendant filed a post-conviction motion claiming ineffective
assistance of counsel. The trial court denied the motion. The court of
appeals, in a decision authored by Judge Peterson, reversed.
The state conceded that defense counsel's performance was deficient.
However, it argued that the defendant was not prejudiced because he did
not show a reasonable probability that the verdict would have been any
different if the jury had been fully instructed. The court of appeals
disagreed. Under the instructions given by the trial court, the state
was relieved of proving an essential element. The appellate court held
that a jury instruction lacking an essential element is fundamentally
unfair and establishes the kind of prejudice entitling the defendant to
a new trial.
Family Law
CHIPS Proceedings - 40-day Time Limit to Request CHIPS
Petition
Sheboygan County Department
of Health and Human Services v. Jodell G., 2001 WI App 18
(filed 13 Dec. 2000) (ordered published 17 Jan. 2001)
The respondent sought leave to appeal from an order of the court
denying her motion to dismiss the CHIPS petitions involving her three
children as untimely pursuant to Wis. Stat. section 48.24(5). She
contended that because the county intake worker did not request that the
CHIPS petitions be filed within 40 days of receipt of the referral
information, the CHIPS petitions should be dismissed with prejudice. In
a decision authored by Judge Snyder, the court of appeals agreed.
Wis. Stat. section 48.24 addresses receipt of jurisdictional
information in CHIPS cases and outlines the sequential procedures to be
followed by a CHIPS intake worker during an intake inquiry. The statute
specifically provides that "the intake worker shall request that a
[CHIPS] petition be filed, enter into an informal disposition or close
the case within 40 days or sooner of receipt of referral information.
... The judge shall dismiss with prejudice any petition which is not
referred or filed within the time limits specified." (Emphasis
supplied.) Resolution of the key issue in this case depended upon the
interpretation of the phrase "receipt of referral information," which
triggers the 40-day time limit specified in the statute. Because this
concept is not defined in the statute, the court resorted to ordinary
dictionary definitions to conclude that a "referral" is the "act of
directing attention to something" ( 14).
In this case the Sheboygan County Department of Health and Human
Services received a phone call on June 29, 1999, to report possible
child abuse committed by the respondent's husband against his stepchild.
On that same date, an intake worker was assigned to the matter and the
child informed the intake worker of her stepfather's abuse. This
constituted the receipt of referral information and commenced the 40-day
time limitation of the statute cited above. A referral of the matter to
the district attorney's office requesting a CHIPS petition more than 40
days thereafter was thus untimely and required dismissal of the
subsequently filed CHIPS petition.
Divorce - Property Division - Loan From One Party to the
Other Discharged in Bankruptcy
Jeffords v. Scott
(Jeffords), 2001 WI App 6 (filed 13 Dec. 2000) (ordered published 17
Jan. 2001)
James and Pamela Jeffords were divorced in 1997. As part of the
divorce, they entered into a marital settlement agreement (MSA) to
resolve all issues relating to property division. The MSA provided that:
1) James was to keep his company's 401k plan subject to an amount
awarded to Pamela; 2) Pamela was to receive $100,000 from the plan via a
Qualified Domestic Relations Order (QDRO); and 3) the transfer of the
QDRO from James to Pamela was conditioned upon Pamela's repayment of a
$50,000 loan to James.
In August 1998 Pamela filed for voluntary bankruptcy and listed James
as an unsecured creditor. Her discharge in bankruptcy included the
$50,000 loan referenced in the MSA. Thereafter, James sought
clarification of the divorce judgment in the circuit court. That court
concluded that under a literal reading of the MSA, James' obligation to
provide a QDRO to Pamela was preconditioned upon her repayment of the
$50,000 loan, but because she failed to repay the loan, James could be
excused from providing a QDRO. However, the court determined that it
would do equity for the reason that the MSA manifested an intention of
the parties that there was to be an equitable property division. The
court reasoned that the MSA provided a quid pro quo approach to the QDRO
and repayment of the loan, and thus it ordered James to provide a
$50,000 QDRO.
Pamela filed a motion for reconsideration, arguing that the circuit
court erred because its decision did not follow U.S. bankruptcy law and
did not follow Wisconsin case law dealing with the U.S. Bankruptcy Code.
The family court denied her motion. In a decision authored by Judge
Anderson, the court of appeals affirmed.
The court of appeals agreed with the family court that it could not
recreate the loan discharged in bankruptcy. It also concluded that a
strict application of the MSA would relieve James of his obligation to
provide a QDRO. Finally, it held that the family court appropriately
exercised its equitable powers to fashion a remedy to implement the
intent of the parties when it ordered James to provide a $50,000
QDRO.
Insurance
Automobile Liability - Single Occurrence
Danielson v.
Gasper, 2001 WI App 12 (filed 19 Dec. 2000) (ordered published
17 Jan. 2001)
Danielson was badly injured when she was struck by a car driven by
Gasper. The car driven by Gasper was owned by Clark, who carried
insurance that provided $100,000/$300,000 for each occurrence. Since the
policy covered Gasper's negligence, the insurer paid Danielson $100,000,
its full policy coverage for each person per occurrence. Danielson
alleged, however, that Clark had negligently entrusted the car to Gasper
and demanded an additional $100,000. The circuit court granted summary
judgment in the insurer's favor.
The court of appeals, in an opinion written by Judge Cane, affirmed.
The court had confronted a similar situation in Iaquinta v. Allstate
Ins. Co., 180 Wis. 2d 661 (Ct. App. 1993), and concluded that
Wisconsin's omnibus statute required full policy coverage be afforded to
two tortfeasors, one of whom drove negligently and the other who
negligently entrusted the car to the other. Although the insurer argued
that Iaquinta was legislatively overruled in 1995 by Wis. Stat. section
632.32(5)(f), the court declined to reach this issue, ruling instead
that section 632.32 applies only to policies issued and delivered in
Wisconsin. In this case, the policy was issued and delivered in an
adjacent state and the policy did not incorporate Wisconsin's omnibus
statute. Thus, in construing the policy's definition of the word
"accident," the court concluded that the "acts, incidents, or omissions
that led to the accident" were not to be considered when determining the
maximum amount of coverage. Danielson was entitled only to the $100,000
payment.
Open Records Law
Photocopying Records - Power of Custodian to Refuse
Requester's Request to Copy Records Himself
Grebner v.
Schiebel, 2001 WI App 17 (filed 27 Dec. 2000) (ordered
published 17 Jan. 2001)
The plaintiff is engaged in a business that provides voter histories
to candidates, political parties, and others involved in the electoral
process. He dispatched employees throughout Wisconsin to obtain polling
data from various county clerks. These employees were provided with
portable photocopying machines and supplies so that they could make
immediate photocopies of pertinent records themselves.
The employee who went to the Polk County clerk requested and was
granted access to the poll lists for all elections held during the past
four years. He informed the clerk that he intended to identify the
necessary documents and then photocopy them himself using the portable
photocopying machine that he had brought with him. He never asked the
clerk to make copies of the documents for him.
The clerk informed the requester that he would not be allowed to make
copies with his photocopying machine. Instead, she offered to assign a
person from her office to photocopy the documents for a charge.
Thereafter, the plaintiff filed suit under the open records law
demanding that he be allowed to copy the polling documents with his own
photocopying equipment.
The circuit court granted judgment to the county, concluding that
Wis. Stat. section 19.35(1)(b) gives the clerk the option of allowing
the requester to copy the records with the requester's own equipment or
providing the requester with a copy of the records.
In a decision authored by Judge Cane, the court of appeals affirmed.
The sole issue before the court was whether the requester can use his or
her own equipment to copy the public records without the clerk's
permission. Under the statute, the answer is in the negative. The
custodian is given the option to either make a copy of the records
herself or allow the requester to make a copy of the records. The
statute gives the custodian, not the requester, the option to choose how
a record will be copied.
Probate
Service of Objections by Personal Representative - Time
Limitations
Flejter v. Estate of
Flejter, 2001 WI App 26 (filed 5 Dec. 2000) (ordered published
17 Jan. 2001)
This case involved a claim against an estate to which the personal
representative of the deceased objected. Wis. Stat. section 859.33(1)
provides that the personal representative may contest a claim by mailing
a copy of the objection to the claimant or personally serving the
objection upon the claimant and filing the same with the court. "The
objection ... may be served at any time prior to entry of judgment on
the claim, but if a copy of the claim has been mailed to or served upon
the personal representative or the attorney for the estate, the
objection ... shall be served upon or mailed to the claimant and filed
with the court within 60 days after the copy of the claim was mailed to
or served upon the personal representative or the attorney for the
estate." Wis. Stat. § 859.33(1).
Wis. Stat. section 801.15(5)(a) provides that whenever a party has
the right or is required to do some act or take some proceedings within
a prescribed period after the service of a notice or other paper on the
party, three days shall be added to the prescribed period if the notice
or paper was served by mail.
The issue in this case was whether the three-day mailing extension
codified in section 801.15(5)(a) applies to the 60-day deadline for
objections set forth in section 859.33(1). In a decision authored by
Judge Wedemeyer, the court of appeals concluded that the circuit court
did not err when it applied the three-day mailing provision to the
60-day deadline for objecting to claims. The rules of civil procedure,
which include section 801.15, apply in all civil actions and special
proceedings, except where a different procedure is prescribed by statute
or rule. Probate proceedings are special proceedings to which the rules
of civil procedure apply. There is no language in section 859.33(1)
prohibiting the application of the three-day mailing extension.
Judge Fine filed a dissenting opinion.
Sex Offenders
Registration - Juveniles
State v. Joseph
E.G., 2001 WI App 29 (filed 7 Dec. 2000) ) (ordered published
17 Jan. 2001)
Joseph, age 15, was convicted of falsely imprisoning a 13-year-old
girl. Since the incident had sexual overtones, he was required to
register as a sex offender pursuant to Wis. Stat. section
938.34(15m)(bm). The circuit court denied his request to be excused from
registration pursuant to Wis. Stat. section 301.45(1m) because false
imprisonment was not enumerated as an excusable offense.
The court of appeals, in an opinion written by Judge Roggensack,
affirmed the ruling and rejected Joseph's contention that the
Legislature's omission of false imprisonment violated his constitutional
rights to equal protection and substantive due process. Section
301.45(1m) is a narrow exception crafted "for sex offenders in cases of
factually consensual sexual contact between two minors who, but for the
age of the younger child, would have broken no law" ( 11). False
imprisonment, by contrast, "is never consensual and never a crime solely
because of the age of the victim" ( 12).
Torts
Legal Malpractice - Drafting Wills - Standing
Beauchamp v.
Kemmeter, 2001 WI App 5 (filed 21 Dec. 2000) (ordered published
17 Jan. 2001)
Plaintiffs brought this claim against a lawyer who allegedly failed
to prepare a new will in accordance with the testator's intentions. The
four plaintiffs were the persons who were allegedly to be named as heirs
in the testator's new will. The testator died before any new will was
prepared. The circuit court dismissed the claim.
The court of appeals, in an opinion written by Judge Dykman,
affirmed. The "precise issue" before the court was "whether parties who
are unnamed in a will, but claim to be intended beneficiaries based on
evidence extrinsic to a will, may maintain a negligence action against
the attorney who drafted the will" ( 6). In general, only an attorney's
clients may sue the lawyer for malpractice, subject to a narrow
exception where the attorney "acts negligently in drafting or
supervising the execution of a will resulting in a loss to a beneficiary
named therein" ( 7). Based on the case law and policy, the court held
that "third parties may not maintain a cause of action for malpractice
against the drafting attorney unless they are named in an executed or
unexecuted will or similar estate planning document" ( 9). "When the
only evidence a plaintiff relies on is extrinsic to the estate planning
documents, the testator's intentions are at least as likely thwarted as
not" ( 18). Additional policy concerns and case law are discussed in the
opinion.
Medical Malpractice - Noneconomic Damages - Caps
Guzman v. St. Francis
Hospital, 2001 WI App 21 (filed 19 Dec. 2000) (ordered
published 17 Jan. 2001)
Plaintiffs brought a medical malpractice action against several
doctors, their insurers, and "the Fund." The trial court ruled
unconstitutional the $350,000 cap on noneconomic damages in medical
malpractice cases because it violated plaintiffs' rights to a jury trial
and traduced the separation of powers.
The court of appeals, in an opinion written by Judge Fine, reversed.
The court considered and rejected challenges rooted in the right to
trial by jury, separation of powers, the "remedy for wrongs" provision
in the state constitution, equal protection, and substantive due
process. Judge Curley concurred, but "reluctantly," and with the
observation that the statute "barely passes constitutional muster."
Judge Schudson dissented on the ground that the cap limits violated
the right to trial by jury.
Wisconsin Lawyer
