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
Child Enticement - Internet - Fictitious Victim
State v. Koenck,
2001 WI App 93 (ordered published 25 April 2001)
The following allegations are derived from the criminal complaint
filed in this case. According to that document, the defendant
communicated via the Internet with "Teddie" and "Georgie," persons he
believed to be 12-year-old girls. In fact, they were fictitious persons
created by Internetwatch, an organization that monitors the Internet,
mostly for child pornography. Internetwatch creates profiles of
fictitious persons and communicates with individuals on the Internet
using these fictitious profiles. When inappropriate responses are
received, they are turned over to law enforcement for investigation.
During the communications involved in this case, the defendant
allegedly expressed a desire to have sexual intercourse with "Teddie"
and "Georgie." When "Teddie" and "Georgie" informed the defendant of
their plans to visit Wisconsin, the defendant immediately expressed an
interest in meeting them. He made reservations at an area hotel and
arranged to meet the "girls." He drove from his home in Iowa, checked
into a hotel, and then traveled to a prearranged meeting place in order
to meet "Teddie" and "Georgie." He was arrested by Wisconsin Department
of Justice agents when he arrived at the prearranged meeting place. The
defendant subsequently admitted that he intended to have sex with both
"Teddie" and "Georgie."
The defendant was charged with two counts of child enticement,
contrary to Wis. Stat. section 948.07(1). Among other things, this
statute provides that whoever, with intent to have sexual contact or
sexual intercourse with a child, "causes or attempts to cause" a child
who has not attained the age of 18 to go into any vehicle, building,
room, or secluded place is guilty of a serious felony. The defendant
filed a motion to dismiss the complaint, which was denied by the circuit
court.
The court of appeals, in a decision authored by Judge Snyder,
affirmed. The statute cited above includes both attempted and completed
acts of enticement. This reflects a determination by the Legislature
that an attempted act of child enticement is as egregious as the
completed act, and thus each warrants the same penalty. Within the
contemplation of section 948.07, an attempt is committed when the
defendant, with intent to commit a crime, takes action in furtherance of
such intent and the failure to accomplish the crime is due to a factor
beyond his or her control or one unknown to him or her. The court of
appeals concluded that the fictitiousness of the girls constituted an
extraneous factor beyond the defendant's control that prevented him from
successfully enticing a child for the express purpose of sexual
intercourse or contact. The defendant did everything necessary to ensure
the commission of the crime intended, and his conduct is not excused
because of the fortuitous circumstance rendering it impossible to
effectuate the intended result.
The defendant argued that the Legislature intended the crime of
attempted child enticement to require the presence of an actual child
and not a fictional child. However, the defendant cited no legislative
history or legal authority for this proposition and, in the view of the
court, his argument disregards the principles behind attempt crimes.
Criminal Procedure
Sentencing - Consecutive Terms of Probation
Prohibited
State v. Schwebke,
2001 WI App 99 (ordered published 25 April 2001)
The defendant was convicted of six counts of disorderly conduct and
the court imposed consecutive terms of probation as the disposition.
Among the issues on appeal was whether the court erred in imposing
consecutive terms of probation. In a decision authored by Judge
Anderson, the court of appeals reversed on this issue.
Wis. Stat. section 973.09(2) provides that the original term of
probation for misdemeanors shall be not less than six months nor more
than two years. However, if the defendant is convicted of not less than
two nor more than four misdemeanors at the same time, the maximum
original term of probation may be increased by one year. If the
defendant is convicted of five or more misdemeanors at the same time,
the maximum original term of probation may be increased by two
years.
In this case, because the defendant was convicted of six misdemeanors
at the same time, the total allowable term of probation is four years.
The statute accommodates the multiple counts of conviction by allowing a
single, extended term of probation (four years instead of two years).
The statute does not authorize consecutive terms of probation. Because
the multiple counts already are reflected in the extended maximum
allowable probation term, it would defy legislative intent to allow
consecutive terms of probation.
This conclusion is consistent with other provisions of Wisconsin's
sentencing laws. Wis. Stat. section 973.15(2) provides statutory
authority for making sentences consecutive to one another, but it does
not authorize courts to make a term of probation consecutive to another
term of probation. Wis. Stat. section 973.09(1) provides that "a period
of probation may be consecutive to a sentence on a different charge,
whether imposed at the same time or previously"; however, this statute
does not provide that a period of probation may be consecutive to
another term of probation.
Accordingly, the court of appeals commuted the defendant's sentence
to the total allowable term of probation. He was convicted of six
misdemeanors at the same time, and the total allowable term therefore
would be four years.
Restitution - "Insurers" - County Programs - Prison
Wages
State v. Baker,
2001 WI App 100 (ordered published 25 April 2001)
Baker was convicted of sexually assaulting a child and appealed the
court's restitution order. The court of appeals, in a decision written
by Judge Dykman, affirmed an order that required Baker to pay
restitution to the county's medical assistance program. The plain
language of Wis. Stat. section 973.20(5)(d), the nature of the medical
assistance program, and its subrogation rights under section 49.89(2),
supported the conclusion that the county's program was an "insurer"
under the restitution statute. "Victims need not present evidence of the
program's obligation to pay or of its subrogation relationship in each
case." (¶ 13). The court of appeals also upheld the trial court's
authority to compel the withholding of prison wages in order to pay
restitution.
Appeals - Right to Counsel - Indigency
Determinations
State v.
Nieves-Gonzalez, 2001 WI App 90 (ordered published 25 April
2001)
The defendant pled guilty and was convicted of various drug offenses.
He requested postconviction counsel from the state public defender and
asked the trial court to appoint counsel on his behalf. Both the trial
judge and the public defender concluded that defendant did not meet
indigency guidelines for appointed counsel.
The court of appeals, in a decision written by Judge Dykman, reversed
and remanded. Wisconsin courts are not controlled by the public
defender's criteria. The court held that trial judges must consider the
federal poverty guidelines in determining indigency, as suggested by the
Wisconsin Judicial Benchbook CR 3-6 (2000). While the federal guidelines
should be considered, not all defendants with income less than those
indexed in the poverty guidelines are entitled to court-appointed
counsel. Rather, judges should consider other significant assets or
"unforeseen factors" that might affect the determination. The court of
appeals remanded the matter for a hearing on whether the defendant
qualifies for court-appointed counsel in accordance with these
standards.
Employment Law
Covenants Not to Compete - Enforceability
Mutual Service Casualty
Insurance Co. v. Brass, 2001 WI App 92 (ordered published 25
April 2001)
Mutual Service Casualty Insurance Co. (MSI) hired the defendant as an
insurance agent. He subsequently entered into a career agent's contract
with MSI. The contract contained provisions regarding the defendant's
activities after termination. These provisions stated that the defendant
was precluded for at least a year from soliciting MSI customers to
"lapse, cancel, or replace" any insurance contract in force with MSI in
order to take that business to a competitor. The contract also provided
that the defendant not work for American National Insurance Co. for
three years after termination of the contract.
The defendant continued his employment with MSI for two years after
signing the career agent's contract. At that time he gave written notice
to MSI of his intention to terminate his agency contract. He immediately
began working for American National as an agent and proceeded to contact
customers of MSI in this regard.
MSI initiated a lawsuit against the defendant, claiming that he
violated the noncompete terms of his agency contract. The circuit court
found that the contract failed because it was overbroad in respect to
time and geographical territory. Summary judgment thus was granted in
favor of the defendant, dismissing MSI's claim. The court of appeals, in
a decision authored by Judge Anderson, affirmed.
Wisconsin law favors the mobility of workers; therefore, a contract
that operates to restrict trade or competition is prima facie suspect
and will be liberally construed in favor of the employee. Such
restrictions must withstand close scrutiny to pass legal muster as being
reasonable; they will not be construed to extend beyond their proper
import or further than the language of the contract absolutely requires.
This policy has been codified by the Legislature in Wis. Stat. section
103.465.
The provisions of the noncompete agreement at issue in this case are
intertwined and indivisible because they govern several similar types of
activities and establish several time and geographical restraints.
Therefore, if one provision is unreasonable, all of the provisions are
unreasonable. However, the court of appeals did not stop its analysis
after holding one of the provisions unreasonable. Instead, it chose to
address all three provisions of the noncompete agreement and held that
each of the three is unreasonable and under any of the provisions the
indivisible covenant is unenforceable.
The noncompete agreement provided that the defendant must forfeit all
termination compensation that remains unpaid if he solicits any MSI
policyholders. This indicates that the defendant is to have nothing to
do with MSI policyholders, known or unknown, in Wisconsin or anywhere
else in the world. This geographical limitation is overbroad and fails
under section 103.465. Secondly, the agreement allows MSI to cancel
termination compensation at any time after the defendant's employment
terminates. There is no specific time limitation within this provision,
and therefore, one easily could construe it as meaning that MSI may seek
enforcement at any point following the defendant's termination. This
time restriction, too, is overbroad. Finally, the agreement is overbroad
because it prohibits the defendant from accepting any type of employment
with American National. Said the court, "this indicates that, for
example, the defendant could not work for American National as a claims
adjuster or even as a janitor."
Whether a restrictive covenant is reasonably necessary to protect the
employer depends upon the totality of the circumstances and is a
question of law to be resolved on the basis of either factual findings
made by the circuit court or a stipulation of all the relevant facts by
the parties. The court of appeals agreed with the circuit court and held
that nowhere has MSI demonstrated that these restrictive provisions were
necessary to preserve the interests of MSI. It also agreed that these
restrictive provisions are onerous and unreasonably dampen the economic
interests of the defendant to earn a living. In sum, the restrictive
covenant, as a whole, is unenforceable.
Family Law
Paternity - Child Support - Deviation From Percentage Support
Guidelines
State v. Patrick
G.B., 2001 WI App 85 (ordered published 25 April 2001)
The respondent fathered a child but didn't find out about it until
years later. When a paternity action was commenced against him 10 years
after the child was born (and after genetic testing was conducted), the
respondent admitted paternity. The circuit court ordered both past and
future child support.
The focus of this appeal was upon past child support and the
arrearages as determined by the circuit court. The cases of Brad Michael
L. v. Lee D., 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App. 1997), and Wala
P. v. Alonzo R., 230 Wis. 2d 17, 601 N.W.2d 328 (Ct. App. 1999),
together with Wis. Stat. section 767.51(4), dictate that a father is
responsible for a child's support for all years following his or her
birth, whether or not the father knew of the child's birth.
However, pursuant to section 767.51(4m), a court can deviate from the
child support guideline standards when establishing both back and future
support if, after considering the factors set forth in section
767.51(5), the court finds by the greater weight of the credible
evidence that use of the percentage standards is unfair to either the
child or the requesting party. The child support guideline standards are
not mandatory but "presumptively" applicable, absent a showing of
unfairness. In concluding that a deviation is warranted, a trial court
need not apply all 14 factors set forth in section 767.51(5) in a
checklist fashion, but need only consider those factors that are
relevant. See Wala P., 230 Wis. 2d at 28.
Because in this case it appeared that the circuit court failed to
consider the implications of Wala P. in issuing its order, the court of
appeals remanded for reconsideration.
Guardianships
Interested Persons - Standing - Termination of
Lease
Carla S. v. Frank
B., 2001 WI App 97 (ordered published 25 April 2001)
In 1991 a father and mother deeded their home to three of their
children, not including Carla S., and a grandchild. At that same time,
the father and mother received a lease for life, provided they paid rent
of one dollar per year plus taxes, utilities, and so on. The mother died
in 1993 and the father suffered a stroke in 1997, as a result of which
he resides in a nursing home. In 1999 the father's guardian brought an
action to terminate the father's interest in the lease so that he would
not be obligated to pay property taxes and other costs for a place in
which he no longer lives. The trial court granted the petition.
The court of appeals, in a decision written by Judge Dykman, reversed
and remanded. The first issue was whether Carla S., a daughter who was
not an owner/lessor, had standing to appeal. The guardian did not
dispute the trial judge's finding that Carla was an "interested" person
as defined in Wis. Stat. section 880.01(6), but argued that she had no
standing to appeal. The court of appeals disagreed. First, the guardian
cited no authority for the proposition that a party with standing in a
trial court nonetheless lacks standing to appeal, a "strange" argument
also belied by logic and public policy (¶ 6). In sum, the trial
court had discretion to allow an "interested person" to participate in a
chapter 880 guardianship proceeding because oftentimes "[w]ithout an
interested party's ability to protest a guardian's gift of a ward's
property, there would often be no check on a guardian's failure to
follow the law" (¶ 7).
Turning then to the substantive issues, the court held that
reversible error occurred when the trial judge failed to consider
alternatives to terminating the life lease. For example, the home could
have been rented in order to preserve it in a "financially viable"
manner. "Common sense" suggested that the father obtained a considerable
benefit by being able to rent the home for a dollar, despite his
obligations. The guardian's desire to preserve the assets of the
father's estate only begged the question of whether another, better
alternative existed.
Dissenting, Judge Deininger argued that Carla S. had no standing to
appeal this order and that her remedies rested in other statutes
permitting review of her father's placement and his competency status,
or perhaps even seeking the guardian's removal.
Juvenile Law
Dispositional Orders - Stays of Orders
State v. Kendell
G., 2001 WI App 95 (ordered published 25 April 2001)
The juvenile was found delinquent for committing a theft. The
dispositional order placed him under the supervision of the Human
Services Department for one year, with placement at the Carmelite School
for Boys. This dispositional order subsequently was revised to provide
for placement at the Ethan Allan School for one year, with this
commitment being stayed on the condition that the juvenile comply fully
with all of the other terms and provisions of the dispositional
order.
The juvenile violated his supervision, and the state brought a motion
asking the juvenile court to lift the stay on the juvenile's commitment
to Ethan Allan. The court lifted the stay and directed that the juvenile
be placed at Ethan Allan for one year, with the one-year term commencing
with the lifting of the stay.
The juvenile disputed the juvenile court's determination regarding
the duration of the placement order, arguing that his one-year placement
at Ethan Allan should terminate one year from the date of the original
dispositional order in this case. He argued that the court's ruling
impermissibly extended the duration of the original dispositional order
beyond the one-year limitation set forth in Wis. Stat. section
938.355(4) because that order had not been extended pursuant to section
938.365.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed the circuit court. Section 938.34(16) permits a juvenile court
to stay the imposition of a dispositional order to give the juvenile a
second chance to conform his or her behavior to any conditions imposed
by the court. Failure to comply with the conditions can trigger the
commencement of the stayed portion of the dispositional order. It would
be unreasonable to conclude that a dispositional order that has been
stayed commences any earlier than the date the stay is lifted by the
juvenile court.
The appellate court concluded that the juvenile court's decision to
stay the placement eliminated the need for any extension of the original
dispositional order. It further concluded that the running of the
one-year limitation of section 938.355(4) as to the juvenile's placement
at Ethan Allan commenced when the juvenile court lifted the stay on the
placement.
Lemon Law
Leased Vehicles - Timeliness - Service of
Process
Varda v. GMC, 2001
WI App 89 (ordered published 25 April 2001)
Varda leased a vehicle that met the statutory definition of "lemon"
under Wisconsin's Lemon Law, Wis. Stat. section 218.0171. Although the
problems arose during the first year of the lease, Varda did not demand
statutory relief from the manufacturer until after the lease had expired
and Varda had purchased the vehicle under the lease's terms. The trial
court dismissed his Lemon Law complaint.
The court of appeals, in a decision written by Judge Vergeront,
affirmed. When Varda made the demand, he was no longer a lessee with the
meaning of section 218.0171(1)(b)4 and did not fall within any other
provision which defines "consumer." This followed from both the
statute's plain language and its underlying policy: "Whatever the lease
term, it is rational to require that a person who knows that the vehicle
he or she has leased has a nonconformity that has not been able to be
repaired after at least four attempts, or has been thirty days out of
service because of the nonconformity, request relief for the
nonconformity before the lease term expires and the person purchases the
vehicle" (¶ 39). Nor was the court concerned that a manufacturer's
delay could deprive a lessee of any remedy. When a "consumer," as
defined, makes a proper demand, the consumer is entitled to the refund
within 30 days of offering to return the vehicle or the manufacturer
violates the Lemon Law.
Finally, the court also addressed whether GMC properly served Varda
with its answer. Varda, a lawyer who represented himself in this matter,
claimed that GMC was not statutorily entitled to leave the Federal
Express packet, which contained the answer, with the receptionist at his
law firm. Construing the phrase "person in charge [of the office]" under
Wis. Stat. section 801.14(2), the court rejected Varda's contention that
his "office policy" should control, especially in a case not involving
service of a summons and complaint. The court held that "when an office
designates a person to receive and sign for Federal Express deliveries,
that is a 'person in charge [of the office]' within the meaning" of the
statute (¶ 18, 23).
Sexually Violent Persons
Jury Trials - Unanimous Verdicts - Waiver
State v. Denman,
2001 WI App 96 (ordered published 25 April 2001)
In a bench trial, Denman was adjudicated and committed as a sexually
violent person under Wis. Stat. chapter 980. On appeal, he claimed that
he had not validly waived his right to jury trial following his initial
request for one. The court of appeals, in a decision written by Judge
Vergeront, affirmed. Examining the case law governing the waiver of the
right to jury trial in criminal cases and the statutory language in
chapter 980, the court held that defendants need not be personally
advised that verdicts must be unanimous under chapter 980. Nothing in
the statute compels the trial judge to obtain a personal waiver of the
right to jury generally; indeed, the statute provides for an automatic
bench trial unless a party requests a jury within the 10-day time frame
of section 908.05(2). Similarly, "§ 908.05(2) does not require that
a respondent be advised by the court that a jury verdict must be
unanimous in order for the withdrawal of his or her request for a jury
trial to be valid" (¶ 12).
Juveniles - Delinquency Adjudications - "Old" Chapter
48
State v. Gibbs,
2001 WI App 83 (ordered published 25 April 2001)
In this appeal Judge Anderson, writing for the court, held that
circuit courts are authorized to proceed on Wis. Stat. chapter 980
sexually violent person commitments based upon juvenile adjudications
under chapter 48. In essence, Gibbs argued that only juveniles
adjudicated under present Wis. Stat. chapter 938 are subject to chapter
980 commitments. The court affirmed his commitment under chapter
980.
First, the court held that section 980.02(2)(ag) is ambiguous because
of statutory changes after Gibbs was adjudicated delinquent.
Specifically, Gibbs was found delinquent before the Legislature "broke
up" Wis. Stat. chapter 48 by placing the delinquency provisions in
present chapter 938. The court had to grapple with the 1993-94 and
1997-98 versions of chapter 980, both of which, despite variations in
language, embraced individuals adjudicated delinquent based upon
sexually violent offenses. Confusion arose because the Legislature
recreated chapter 980 in order to incorporate references to newly
created chapter 938. It would have been "absurd" to conclude, however,
that the Legislature intentionally excluded from chapter 980 coverage
all those adjudicated under chapter 48 for offenses identical to those
now found in chapter 938. In short, "a renumbered statute without a
change in substance does not exempt a defendant from chapter 980"
(¶ 11).
Torts
Dog Bite - Intra-insured Exclusion - "Keepers"
Malik v. American
Family, 2001 WI App 82 (ordered published 25 April 2001)
Malik agreed to take care of a dog owned by her friends, the Hermans,
while they were on vacation. The dog bit Malik, and she sued the Hermans
and their homeowner's insurer. Malik appealed three different summary
judgment rulings. The court of appeals, in a decision written by Judge
Vergeront, affirmed.
First, the court held that the homeowner's insurer was properly
dismissed because there was no coverage under its policy. At the time
she was bitten, Malik was an "insured," as defined by the policy, for
purposes of personal liability and medical expenses because she was
(quoting the policy) "'legally responsible ... for a[n] animal owned by
[the Hermans]' and she had custody of the animal 'not in the course of
any business' and 'with [the Hermans'] specific permission'" (¶
16). The court was not persuaded that the intra-insured exclusion, which
thus barred her from suing the Hermans' insurer, rendered coverage
"illusory."
Second, Malik's claim against the Hermans was barred by Wis. Stat.
section 174.02 and case law construing it. The statute's purpose is to
protect persons who are not in a position to control the dog, "not to
protect those persons who are statutorily defined as owners," including
a dog's keepers (¶ 26). The rule applies even where the legal owner
is negligent. In short, Malik retains her common-law negligence claim
against the Hermans, but she cannot rely on the statute and its double
damages provision. The court carefully discussed the cases decided since
1996 in resolving this issue.
Finally, the trial court properly construed section 174.02(1)(b) to
permit recovery of double damages only for violations of the statute and
not for common law negligence (¶ 30). The case law barring one
"owner" from suing another "owner" under the statute clearly foreclosed
this argument as well.
Jury Instruction - Passing on the Right - Road
"Shoulder"
Kaufman v. Postle,
2001 WI App 86 (ordered published 25 April 2001)
While Kaufman was turning right from Highway 10 onto a road, her
vehicle was struck by Postle's as he tried to "pass" her on the
shoulder. A jury found Postle 90 percent negligent, and he appealed the
trial court's instruction that informed the jury, in effect, "that a
driver may not pass traffic on the right using any part of the road's
shoulder" (¶ 5). The court of appeals, in a decision written by
Judge Roggensack, affirmed. Wisconsin traffic law permits overtaking and
passing on the right only under conditions of safety and only if the
operator can do so "without driving off the pavement or main-traveled
portion of the roadway." Wis. Stat. § 346.08. The court held that
the prepositional phrase "of the roadway" modifies both "pavement" and
"main-traveled portion." And "[b]ecause a shoulder of a highway is never
part of a roadway," the instruction was correct.
Wisconsin Lawyer
