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    October
    01
    2002

    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 75, No. 10, October 2002

    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

    * *

    Civil Procedure

    Competency to Proceed - Captions

    Fabyan v. Achtenhagen, 2002 WI App 214 (filed 24 July 2002) (ordered published 28 Aug. 2002)

    Fabyan filed a complaint against a town's board of appeals alleging that it had violated the state's open meetings law. The trial court dismissed the complaint. On appeal Fabyan raised various claims of error, but the court of appeals ordered supplemental briefing on its competency to hear the appeal.

    The court of appeals, in an opinion written by Judge Snyder, dismissed the appeal because the court lacked competency to proceed. Wis. Stat. section 19.74 requires that a "private prosecutor" must bring an action to enforce the open meetings law "in the name, and on behalf, of the state." Put differently, the caption must bear the title, "State ex rel. ..." Fabyan failed to comply with the legislature's clear mandate. Although the court had "jurisdiction" to hear the matter, it lacked the competency to proceed because of the improper caption.

    Competency to Proceed - Defaults - Cross-claims

    Tridle v. Horn, 2002 WI App 215 (filed 31 July 2002) (ordered published 28 Aug. 2002)

    Sara, a minor, and her parents sued Horn, who injured her in an automobile accident. They also sued Midwest Security Insurance Co. based on an automobile policy issued by Midwest to Sara's father, which carried uninsured (UM) and medical expense coverage. Midwest answered the complaint but filed no other pleadings. When Horn later failed to appear for a deposition scheduled by Midwest, it moved for sanctions against Horn. The court granted Midwest's motion to strike Horn's answer and, following arbitration on damages, granted a default judgment against Horn even though Midwest never filed a claim for indemnification or contribution against Horn. Although Horn later filed a motion to vacate the default judgment, the trial court ruled that she was "too late."

    The court of appeals, in an opinion authored by Judge Anderson, affirmed in part and reversed in part. Midwest's failure to file a cross-claim against Horn deprived the court of competency to proceed on Midwest's motion for a default judgment in its favor and against Horn (¶10). Wis. Stat. section 802.07(3), which addresses cross claims, "clearly contemplates that a pleading must be in place for a party to move the court to enter a default judgment against a co-party" (¶10) (emphasis original). The court also held that Horn's motion to vacate pursuant to Wis. Stat. section 806.07(1)(d) was not untimely. Finally, the court of appeals upheld the trial court's order awarding deposition costs to Midwest based on Horn's failure to appear.

    Judges - Recusals - Juries

    Sharpley v. Sharpley, 2002 WI App 201 (filed 3 July 2002) (ordered published 28 Aug. 2002)

    Sharpley appealed a judgment that admitted his father's will to probate and that found no undue influence in the father's decision to completely disinherit his son in favor of a grandson. The appeal raised two issues. First, the court of appeals held that under Wisconsin law "a party is not entitled to a jury trial in a will contest" (¶12). Second, the court held that the trial judge acted properly when she refused to recuse herself pursuant to Wis. Stat. section 757.19(2) (1999-2000). The trial judge's involvement in settlement negotiations and her limited involvement in a prior guardianship proceeding raised issues of "subjective" influences under section 757.19(2)(g). Under this provision, disqualification occurs "only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner" (¶16). Here the judge properly concluded that she could be objective in her conduct of the bench trial.

    Criminal Law

    Lesser Included Offenses - First-degree Recklessly Endangering Safety Not a Lesser Included Offense of Aggravated Battery

    State v. Dibble, 2002 WI App 219 (filed 16 July 2002) (ordered published 28 Aug. 2002)

    The state charged the defendant with two counts of aggravated battery (Wis. Stat. § 940.19(5)) and two counts of first-degree recklessly endangering safety (Wis. Stat. § 941.30(1)) for a beating he committed upon his estranged wife and her friend. Pursuant to a plea agreement, the defendant pleaded guilty to the two battery charges and the endangering safety counts were dismissed. On appeal he argued that his plea was illusory because first-degree recklessly endangering safety is a lesser included offense of aggravated battery.

    In a decision authored by Chief Judge Kane, the court of appeals concluded that first-degree recklessly endangering safety is not a lesser included offense of aggravated battery. First-degree recklessly endangering safety has an element that is not present in aggravated battery and thus cannot be a lesser included offense of aggravated battery. That element is the requirement that the state prove that the endangerment occurred "under circumstances which show utter disregard for human life."

    Criminal Procedure

    Sentencing - Resentencing After Fraud on Court Discovered

    State v. Jones, 2002 WI App 208 (filed 3 July 2002) (ordered published 28 Aug. 2002)

    The defendant claimed to have been a prisoner of war in Vietnam, a circumstance that the trial court took into consideration when it originally sentenced him. Later, the court learned that the defendant had lied about his military record and resentenced him to a longer term. The issue on appeal was whether the Double Jeopardy Clause of the Fifth Amendment prevented resentencing after the fabrication was brought to the attention of the trial court.

    In a decision authored by Judge Brown, the court of appeals concluded that when a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in fashioning a sentence, the court may later declare the sentence void and double jeopardy does not bar a subsequently increased sentence.

    Wisconsin courts have recognized the principle that the application of the Double Jeopardy Clause to an increase in a sentence turns on the extent and legitimacy of a defendant's expectation of finality in that sentence, which may be influenced by many factors, such as completion of the sentence, the passage of time, the pendency of an appeal, or the defendant's misconduct in obtaining the sentence.

    In this case the question was whether a defendant can have a legitimate expectation of finality in a sentence that was induced by his or her purposeful misrepresentations. Said the court of appeals, "common sense dictates that no reasonable person could hold a legitimate expectation of finality in a sentence procured by fraud and, indeed, the case law fully supports this common sense conclusion" (¶ 11). A criminal defendant who has perpetrated a fraud on the court cannot be permitted to reap its benefits. "The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence" (¶ 14).

    Other Acts - Confrontation

    State v. Barreau, 2002 WI App 198 (filed 11 July 2002) (ordered published 28 Aug. 2002)

    The defendant was convicted of first-degree intentional homicide, robbery, and burglary. The court of appeals, in an opinion written by Judge Dykman, affirmed. The first issue, which concerned the propriety of a lesser included offense instruction for reckless homicide, is fact-intensive and raised no unique issues of law.

    The court held that error occurred when the trial court admitted other act evidence regarding the defendant's intent to steal from the victim, specifically, the defendant's burglary of the same residence six years earlier when he was just 13 years old. Focusing on the relevancy of the prior burglary, the court found that the incident spoke more to the defendant's bad character (a use of other act evidence that is forbidden by Wis. Stat. section 904.04) than to his intent to steal. The other act lacked the requisite "similarity" demanded by the case law: "other than that both incidents involved intent to steal from a residence, the State demonstrates virtually no other similarities between the two" (¶39). The court declined to "adopt a rule in which all past conduct involving an element of the present crime is admissible under Wis. Stat. § 904.04(2)" (¶40). Although error occurred, the court held that it was harmless beyond a reasonable doubt based on the record.

    The defendant also claimed that his right of confrontation was violated when the trial court restricted the cross-examination of a prosecution witness regarding his bias and concessions that he hoped to receive from or was promised by the prosecution. In essence, the witness asserted his privilege against self-incrimination as to parts of the cross-examination, and the trial court curbed the impeachment instead of barring his testimony altogether. The court held that the defendant had an adequate opportunity to explore the witness's bias, especially his friendship with a third person and the possibility that the witness was deflecting blame to protect his friend. Whether the witness and the third person were involved in criminal activity would have been "largely cumulative." Finally, the defendant had adequate "opportunity" to expose any promises or concessions made to the witness by the state.

    Defense Witnesses - Inmate Clothing

    State v. Reed, 2002 WI App 209 (filed 2 July 2002) (ordered published 28 Aug. 2002)

    A jury convicted the defendant of operating a vehicle without the owner's consent and of being a felon in possession of a firearm. The court of appeals, in an opinion written by Judge Wedemeyer, affirmed.

    The primary issue was whether the trial court erred by denying the defendant's request "to allow two of his alibi witnesses, who were in custody at the time, to change into street clothes instead of having to testify in their jail attire" (¶6). Applying an abuse of discretion standard, the court of appeals found no error. Case law distinguishes defendants who testify on their own behalf from defense witnesses, who do not share the same presumption of innocence. Moreover, the prejudice to testifying defendants is obviously greater, particularly when the jury is already aware that a witness is incarcerated. In light of these considerations, the trial court concluded that it was reasonable to permit the defense witnesses to testify in jail attire, and the court of appeals upheld the reasonableness of this determination (¶12). In related matters, the court rejected arguments that defense counsel was ineffective for failing to request a cautionary instruction on this point, and that the trial court erred when it offered to give such an instruction but failed to do so. Any such errors were harmless, especially since the witnesses had credibility problems in addition to those caused by their attire.

    Family Law

    Termination of Parental Rights Proceedings - Multiple Substitutions of Judge

    State ex rel. Julie A.B. v. Circuit Court, 2002 WI App 220 (filed 17 July 2002) (ordered published 28 Aug. 2002)

    In this termination of parental rights (TPR) case, the mother of the minor child filed a substitution of judge request and obtained the assignment of a new judge. Thereafter, the guardian ad litem for the minor child filed a substitution request and obtained the assignment of yet another judge. The mother challenged this assignment, claiming that Wis. Stat. section 48.29(1), which governs judicial substitutions in TPR proceedings, allows only one substitution of judge. The judge currently assigned to the case rejected the mother's challenge. In a decision authored by Judge Nettesheim, the court of appeals agreed with the decision of the circuit judge.

    Section 48.29(1) provides that "not more than one such request [for substitution] may be filed in any one proceeding." The question before the court was whether the legislature intended to provide one substitution request per TPR proceeding or whether it intended to provide one request per party in a TPR proceeding. The appellate court was satisfied that the legislature intended to provide each party in a TPR proceeding with an opportunity to request substitution.

    Guardianship Proceedings

    Presence of Proposed Ward at the Hearing - Waiver of Appearance

    Knight v. Milwaukee County, 2002 WI App 194 (filed 2 July 2002) (ordered published 28 Aug. 2002)

    Jeffrey and Norris Knight appealed from orders entered by the trial court appointing a guardian of both the estate and the person of Muriel K. and directing her protective placement in an unlocked unit of a nursing home. The Knights, who are not related to Muriel, had previously been designated by her as her power of attorney agents, Jeffrey for financial matters and both Jeffrey and Norris for health-care matters. After a hearing at which Muriel did not appear, the circuit court stripped the Knights of these designated powers.

    In a decision authored by Judge Fine, the court of appeals held that the trial court lacked competency to enter its orders because it did not comply with the statutory directive requiring that Muriel be present at the hearing. Wis. Stat. section 880.08(1) requires that a person who is alleged to be incompetent appear at the hearing to determine his or her status. The statute provides that the proposed incompetent person is presumed able to attend unless, after a personal interview, the guardian ad litem certifies in writing to the court the specific reasons why the person is unable to attend.

    In this case the guardian ad litem expressed reasons why she wanted to waive Muriel's presence at the hearing but did not certify those reasons in writing. Further, the reasons given (that Muriel did not want to be at the hearing and that it would be upsetting for her and not in her best interest to appear) did not, in the view of the appellate court, equal an inability to attend. Accordingly, the trial court lacked competency to proceed.

    The court of appeals remanded this matter with directions that Muriel be produced at any hearing seeking to declare her to be an incompetent person if she is able to attend, in accordance with the procedure specified by section 880.08(1).

    Insurance

    UIM - Ambiguity - Future Medical Expenses

    Stubbe v. Guidant Mut. Ins. Co., 2002 WI App 203 (filed 25 July 2002) (ordered published 28 Aug. 2002)

    Stubbe was badly injured in a car accident. After settling with the tortfeasor's insurer, Stubbe sought to recover additional monies under his own automobile and umbrella policies issued by Guidant Mutual Insurance Co. Stubbe and Guidant arbitrated the amount of damages while reserving the coverage issues. The arbitrators set total damages at more than $430,000, well in excess of the $50,000 recovered from the tortfeasor's insurer. Guidant denied that the umbrella policy provided any coverage. With respect to the $250,000 underinsured motorist (UIM) policy limits on the auto policy, Guidant paid $166,000 and asserted that its obligation was satisfied; it subtracted the $50,000 paid by the tortfeasor plus about $34,000 in worker's compensation payments. Stubbe filed suit seeking additional payments under both policies, and Guidant counterclaimed for about $22,000 in alleged "overpayments" made pursuant to the arbitrators' award. The circuit court decided all issues in Guidant's favor.

    The court of appeals, in an opinion written by Judge Roggensack, reversed. Reading the umbrella policy as a whole, the court held it was "reasonable to read the schedule of underlying limits (which lists underinsured motorist coverage as 'included') and the policy's requirement that the insured 'maintain in full effect the insurance afforded by each policy described in the Declarations' to indicate that underinsured motorist protection is available as part of the umbrella policy." In particular, "a reasonable insured would believe that if underinsured motorist coverage were not available under the umbrella policy, the insured would not be required to maintain the underinsured motorist portion of their automobile policy 'in full effect.'" (¶12) Other aspects of the policy also supported this conclusion. For example, "the policy also contains an endorsement informing the insured that the underinsured motorist exclusion 'is deleted in its entirety.'" (¶14) The court found that Stubbe could reasonably conclude "that because there are other provisions dealing with underinsured motorist protection, the exclusion of coverage for underinsured motorist claims no longer applies, and therefore, there is coverage for such claims to the extent that the claims exceed the liability limits of the underlying policy" (¶15).

    The trial court also erred when it granted Guidant's counterclaim for the $22,000 in "future medical expenses." Because the policy language concerning a claim for future medical expenses that may be covered under the worker's compensation law also was ambiguous, Stubbe was entitled to retain the monies in question paid by Guidant.

    Motor Vehicle Law

    Implied Consent - Blood Draw - Claim of Coercion Rejected

    Village of Little Chute v. Walitalo, 2002 WI App 211 (filed 2 July 2002) (ordered published 28 Aug. 2002)

    The defendant was arrested for OWI. He contended that his subsequent consent to submit to a blood test was coerced, because of the threatened sanction of a loss of driving privileges under the implied consent law if one refuses to submit to chemical testing. Thus, the defendant said, his consent was invalid for Fourth Amendment purposes.

    In a decision authored by Judge Peterson, the court of appeals rejected the defendant's arguments. Under the state implied consent statute, Wisconsin drivers are deemed to have consented to the testing of their breath, blood, or urine for alcohol concentration and, if there is a refusal to submit to a request, driving privileges may be revoked. In this case there was no allegation that the officer made any threats or applied any coercion to the defendant beyond what the defendant claimed was the coercive effect of the statute itself. According to the defendant, the fact that he was forced to choose between the loss of his driving privileges and submission to a chemical test amounted to coercion.

    Because there was no actual coercion or improper police conduct, the appellate court concluded that the defendant's consent was voluntary. The arresting officer, by reading the implied consent form to the defendant, simply stated the reality that if the defendant refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery but instead accurately informed the defendant of his precise legal situation.

    Municipal Law

    Annexation - Standing to Contest Annexation Ordinance

    Village of Slinger v. City of Hartford, 2002 WI App 187 (filed 26 June 2002) (ordered published 31 July 2002)

    The city of Hartford adopted an ordinance annexing 67 acres from the town of Hartford. The ordinance was the result of a petition for direct annexation by a limited liability company that proposed high-density residential and multi-family residential development for the area. No electors reside in the annexation area, which the ordinance rezoned for residential use.

    The Schaefers own 75 acres of land in the town that abut the entire length of the northern border of the annexation area, and they sought declaratory relief that the annexation ordinance was void. The circuit court dismissed the action after finding that the Schaefers lacked standing to bring it.

    In a decision authored by Judge Snyder, the court of appeals affirmed. Among the requirements for bringing a declaratory judgment action is that the party seeking declaratory relief must have a legal interest in the controversy, that is, a legally protectable interest. This requirement has typically been expressed in terms of standing and a taxpayer either must have sustained or will sustain some pecuniary loss before he or she has such standing. A taxpayer does not have standing to challenge an ordinance merely because he or she disagrees with the legislative body.

    Nowhere in the complaint in this case did the Schaefers allege that they have sustained or will sustain some pecuniary loss because of the annexation or that the annexation poses a substantial injury to their interests. There is nothing in the record upon which to base an inference that the Schaefers would be adversely affected by the annexation. The law requires at least an allegation of pecuniary loss or injury and the Schaefers alleged neither.

    The Schaefers' main concern was with the development, not the annexation, of their neighbor's property. While adjoining landowners are affected by a neighbor's land use, land use is in no way dependent upon annexation. The Schaefers asserted that they have an interest in protecting their estate from the development of adjoining property that would diminish the value of that estate, the quality of their life, and the community in which it is situated. Said the appellate court, the Schaefers "have not cited any authority that allows a neighbor to oppose the development of adjoining property simply because it will affect property values. As the circuit court noted, the Schaefers can advance this argument in a public zoning hearing but they have no rights in the adjoining property that are affected by the annexation itself" (¶ 17).

    Probate

    Attorney Fees - Award of Fees to Objectors to Claims Against an Estate - Wis. Stat. Section 879.37 - Meaning of "Prevailing Party"

    Estate of Wheeler v. Franco, 2002 WI App 190 (filed 19 June 2002) (ordered published 31 July 2002)

    Wis. Stat. section 879.37 provides that "reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters...." In this case objectors to a claim against an estate succeeded at trial in whittling down the claim to less than one-half of its original value. At issue on appeal was the validity of the circuit court's order awarding attorney fees to the objectors under section 879.37. The estate contended that the objectors were not "prevailing parties."

    In a decision authored by Judge Brown, the court of appeals concluded that an objector to a claim against an estate is a prevailing party "if he or she achieves some significant benefit in litigation involving a claim against the estate" (¶ 8). The court derived this definition from cases construing "prevailing party" terminology in other fee-shifting statutes. On the facts of this case the appellate court held that the objectors did achieve a significant benefit by maintaining their objection and thus were prevailing parties under the statute. The court further concluded that there can be more than one prevailing party. "The statute may encompass multiple interested parties who register objections and defend jointly through their respective counsels" (¶ 9).

    Finally, the court rejected an argument advanced by the estate that the "equitable extraordinary circumstances doctrine" should prevent the award of attorney fees to the objectors. This doctrine is derived from cases that held that objectors are entitled to attorney fees only if the personal representative fails to faithfully contest the claim and the estate as a whole benefits from the intervention. The court of appeals concluded that this doctrine has no application to section 879.37. The cases referred to above predate the enactment of the statute, and the court held that it would be inappropriate for it to graft the doctrine into a statute where it does not now exist. "The plain language of the statute does not limit the award of attorney fees to cases where the personal representative fails to act or where the award benefits the estate. The statute simply permits the 'prevailing party' to recover fees and costs. As we previously stated, a prevailing party is one who achieves the benefit he or she sought by bringing suit. This is true regardless of whether the estate is ultimately enhanced or whether the party assumed the obligation of the personal representative" (¶ 12).

    Sexually Violent Persons

    Appeals - Timeliness - Expert Opinions

    State v. Treadway, 2002 WI App 195 (filed 20 July 2002) (ordered published 28 Aug. 2002)

    The defendant was committed as a sexually violent person pursuant to Wis. Stat. chapter 980. The court of appeals, in an opinion written by Judge Schudson, affirmed the commitment.

    The primary issue concerned the court of appeals' jurisdiction over Treadway's appeal, because Treadway had failed to file post-verdict motions within 20 days after the jury's verdict. The court held that it did have jurisdiction. Although it invited the legislature to "clarify this point," the court declined to require lawyers to "jump through two hoops in order to preserve appellate rights." The "two hoops" referred to separate challenges against the verdict and then the commitment. Under chapter 980 a person ordered committed "preserves the right to appeal, as a matter of right, by filing post-verdict motions within twenty days of the commitment order" (¶ 11) (emphasis added).

    Another important and recurring issue concerned opinion testimony by a probation and parole agent to the effect that Treadway would reoffend. Although the agent was neither a psychologist nor a "mental health specialist, he was qualified based on his experience and training to offer such an opinion"(¶29).

    The court of appeals also addressed issues relating to the timeliness of the state's petition, the number of peremptory strikes allocated to Treadway, a potential juror's alleged bias, and the sufficiency of the evidence.

    Torts

    Economic Loss Doctrine - "Other Property" - Building Construction

    Bay Breeze Condominium Assoc. Inc. v. Norco Windows Inc., 2002 WI App 205 (filed 31 July 2002) (ordered published 28 Aug. 2002)

    A condo association claimed that windows installed in various units were poorly designed and manufactured, which resulted in water damage inside and outside the residences. The association contended that the damages to the areas surrounding the windows fell under the "other property" exception to the economic loss doctrine and were recoverable under both negligence and strict products liability. The trial court dismissed the tort claims as barred by the economic loss doctrine.

    The court of appeals, in an opinion authored by Judge Nettesheim, affirmed. The economic loss doctrine precludes a purchaser of a product from recovering from a manufacturer "on a tort theory for damages that are solely economic" (¶9). Rather, the purchaser is expected to protect itself under contract law and warranty principles. The economic loss doctrine does not apply, however, "if the damage is to property other than the defective product itself; in that case, a complainant may pursue an action in tort" (¶13). Reconciling various strands of case law, the court held "that the economic loss doctrine applies to building construction defects when, as here, the defective product is a component part of an integrated structure or finished product" (¶26). Here the homeowners purchased "a finished product, their condominium units," which regrettably failed to meet their expectations. Nonetheless, the interior and exterior walls and casements were "but other component parts in a finished product. Because of the integral relationship between the windows, the casements, and the surrounding walls, the windows are simply a part of a single system or structure, having no function apart from the buildings for which they were manufactured." (¶27) In short, the failed windows did not place this case outside the economic loss doctrine.

    Child Labor Laws - Racing - "Employment" - "Work"

    Olson v. Auto Sport Inc., 2002 WI App 206 (filed 24 July 2002) (ordered published 28 Aug. 2002)

    James Olson, age 15, was killed while racing trucks at the defendant's raceway. His parents filed this wrongful death action, which alleged that the defendant had unlawfully employed James in violation of child labor laws, Wis. Stat. section 103.65 (1999-2000). The circuit court granted summary judgment to the defendant and dismissed the complaint.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. Racing is not included in the list of prohibited or regulated employment in the administrative rule that complements section 103.65(1). Nor, the court said, did it fall within a catch-all section that covers "hazardous activities." Wis. Admin. Code § DWD 270.06(33). Clearly James and the defendant had entered into a contractual relationship, but it did not constitute an employer/employee relationship. The record failed to show any evidence that the defendant could order James to "go here, go there, do this and do that," the tell-tale signs of authority and control traditionally exercised by an employer (¶11). In sum, James was involved "in truck racing for recreational purposes" (¶14). The court also rejected arguments to the effect that James' activities constituted "work" under the statute even if they fell short of "employment:" "James' racing of trucks did not fall within the ordinarily accepted meaning of 'work' and certainly not within the specific meaning of 'work' as used in Wis. Stat. § 103.6(1), which is targeted at the improper employment of minors" (¶17).




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