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    Wisconsin Lawyer
    August 01, 2003

    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

    Wisconsin Lawyer
    Vol. 76, No. 8, August 2003

    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

    * *

    Appellate Procedure

    Notice of Appeal - Timeliness - Evictions - Small Claims

    Highland Manor Assocs. v. Bast, 2003 WI App 130 (filed 8 May 2003) (ordered published 25 June 2003)

    On Sept. 13, 2002, the circuit court entered a judgment of eviction against Bast. On Oct. 4, 2002, the court denied her motion for reconsideration or to reopen the judgment. On Nov. 21, 2002, Bast filed a notice to appeal the Oct. 4 determination. This case involves the interplay of various statutes governing eviction actions and motions to reconsider.

    The court of appeals, in an opinion written by Judge Dykman, dismissed the appeal as untimely. Bast was required to appeal from the Sept. 13 judgment, not the Oct. 4 denial of her motion to reconsider it. The issue was controlled by Wis. Stat. sections 799.01(1)(a) and 799.04(1), which govern small claims procedures. The court held that given the summary nature of small claims procedure, the time limits governing motions for reconsideration in Wis. Stat. section 805.17(3) are inapplicable. "It would be anomalous to require an appeal from an eviction tried to a jury to be appealed within fifteen days of entry of judgment, while an appeal from an eviction tried to the court could be commenced more than three months from that time. Successive motions for reconsideration, such as the two made in this case, could postpone an eviction appeal for even longer" (¶11).

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    Sanctions - Appeals - Intervention on Appeal

    Ziebell v. Ziebell, 2003 WI App 127 (filed 28 May 2003) (ordered published 25 June 2003)

    In a per curiam opinion, the court of appeals held that an attorney who is sanctioned by the circuit court for misconduct in a client's case must file his or her own notice of appeal in order to challenge the sanction and may not intervene in the client's appeal if the notice of appeal deadline has been missed.

    In this case the attorney was sanctioned for misconduct in his handling of a client's divorce. The circuit court imposed $5,000 in attorney fees upon him, payable to counsel for the other party. The attorney was aggrieved by the judgment of divorce for that reason. However, when he filed a notice of appeal on behalf of his client, that notice was not filed in counsel's name and it did not specify that counsel was also an appellant. As an aggrieved person, the attorney could have filed a notice of appeal but the time for appealing has expired. Accordingly, the appellate court concluded that it lacked jurisdiction to consider counsel's challenge to the sanction imposed against him.

    The appellate court also denied counsel's motion to intervene in his client's appeal. The court concluded that, as an aggrieved person, counsel could have filed a notice of appeal but did not. Now he is barred from intervening as a matter of law under Weina v. Atlantic Mutual Insurance Co., 177 Wis. 2d 341, 501 N.W.2d 465 (Ct. App. 1993). Weina bars intervention when a notice of appeal could have been filed.

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    Civil Procedure

    Issue Preclusion - Municipal Court Proceedings

    Masko v. City of Madison, 2003 WI App 124 (filed 8 May 2003) (ordered published 25 June 2003)

    Plaintiff Masko sued the city for injuries sustained in a collision with a city bus. The trial court ruled that liability had been fully litigated in a prior municipal court proceeding in which Masko unsuccessfully defended herself against a citation for improperly changing lanes. Municipal court records showed that Masko and the bus driver testified to different versions of the accident, with the judge finding the bus driver more credible. Based on the municipal judgment of conviction, the circuit court granted summary judgment to the city, dismissing Masko's personal injury claim.

    The court of appeals, in an opinion written by Judge Dykman, affirmed. Carefully examining the doctrine of issue preclusion and its application to municipal court judgments, the court of appeals was satisfied that Masko had a "fair opportunity procedurally, substantively, and evidentially to litigate the issue" (¶15). "[Masko] actively participated in the prior proceeding and despite her attempts to impeach the testimony of the other witnesses, the judge found the bus driver's account to be more credible than Masko's. Further, she elected not to pursue a new trial in circuit court where she would have had the right to a jury. Nor does it serve the public interest to allow relitigation of an issue on the grounds that the first attempt was unsuccessful because the party appeared pro se but now, having retained counsel, the party should be allowed to try for a better outcome. The interests of judicial efficiency and protecting parties against repetitious litigation outweigh Masko's interest in relitigating the liability issue that was already determined in municipal court. We conclude that the trial court properly determined that issue preclusion applied and that barring Masko's claim does not contravene principles of fundamental fairness" (¶15).

    Forfeiture Actions - Service of Process - Pending Criminal Appeal

    State v. One 1997 Ford F-150, 2003 WI App 128 (filed 7 May 2003) (ordered published 25 June 2003)

    Beck was convicted of first-degree intentional homicide. While criminal charges were pending, the state also commenced a forfeiture action against Beck and his property, because the murder weapon was transported in Beck's truck. Beck was convicted in March 2002, and some months later the court entered a default judgment against him in the forfeiture action.

    The court of appeals, in an opinion written by Judge Brown, affirmed the default judgment. First, the court rejected Beck's contention that he had not been properly served. "[I]t is clear that the process server in the affidavit of service properly affirmed that he had served an authenticated copy of the summons on Beck. The process server relied on the knowledge of a third person, the district attorney's office coordinator, to demonstrate that he had delivered to and left with Beck an authenticated copy of the summons. As [case law] instructs, the process server need not rely on his or her own personal knowledge to attest that an authenticated summons was served for the affidavit of service. Furthermore, the fact that the process server did not make an explicit affirmation, such as 'I served an authenticated copy' or '[t]o the best of my knowledge and belief I served an authenticated copy,' does not, as Beck would have us believe, fatally undermine the state's service of process. The statute does not specify the manner in which the process server must affirm that an authenticated copy has been served.... [T]he statute's only requirement is that the process server's affirmation that he or she delivered an authenticated copy to the defendant is found within the four corners of the affidavit of service. The state's affidavit of service fulfills this requirement." (¶13)

    Second, Beck also argued that the default was improper "because he was entitled to further adjournment of the forfeiture proceedings, pending his appeal of the underlying conviction," as ostensibly provided by Wis. Stat. section 973.076(2)(a). That statute permits adjournments of forfeiture actions until after "adjudication" of criminal charges. Rejecting this contention, the court held that Beck's criminal conviction became final when the trial judge issued the judgment of conviction. His right to appeal did not make the conviction any less final.

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    Criminal Procedure

    Plea Negotiations - Bright-line Rule Prohibiting Judicial Involvement in Plea Negotiations Preceding a Defendant's Plea

    State v. Williams, 2003 WI App 116 (filed 1 May 2003) (ordered published 25 June 2003)

    This case concerns participation by the trial judge in the plea negotiation process prior to the defendant's entry to reduced charges. In a decision authored by Judge Roggensack, the court of appeals drew on a long line of Wisconsin cases and adopted "a bright-line rule barring any form of judicial participation in plea negotiations before a plea agreement has been reached" (¶ 1). The court further concluded that judicial participation in the plea bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary.

    In this case it was undisputed that the trial judge participated in the negotiations that led up to the defendant's guilty pleas and, accordingly, the defendant is entitled to withdraw his pleas. The appellate court vacated the judgment of conviction for the offenses to which the defendant pleaded guilty and remanded for further proceedings with directions to the circuit court to reinstate all of the original charges against the defendant. Lastly, the court ordered the case assigned to a different judge.

    Arrest Warrants - Specificity - DNA Profile

    State v. Dabney, 2003 WI App 108 (filed 29 April 2003) (ordered published 28 May 2003)

    On Dec. 7, 1994, an unknown man sexually assaulted a young girl. On Dec. 4, 2000, shortly before the statute of limitation ran, the state issued an arrest warrant for "John Doe #12" that described the assailant's DNA profile. In March 2001 the state amended the complaint to reflect the defendant's name, based on a match between his DNA and that described in the complaint.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the circuit court's determination that the original arrest warrant was lawful. The DNA warrant and complaint satisfied the "reasonable certainty" requirement of Wis. Stat. section 968.04(3)(a)4. "Here, the complaint and arrest warrant identified the suspect as 'John Doe' and set forth a specific DNA profile. We conclude that for purposes of identifying 'a particular person' as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. 'A genetic code describes a person with far greater precision than a physical description or a name'" (¶15, citation omitted). The court was persuaded, however, that it would have been "helpful" to include in the warrant and complaint "the particular physical characteristics known to the police" (¶16). It also held that this type of warrant did not violate the statute of limitation or Dabney's due process rights.

    Sufficiency of Evidence - Necessity of Timely Objection

    State v. Hayes, 2003 WI App 99 (filed 16 April 2003) (ordered published 28 May 2003)

    A jury convicted the defendant of sexual assault. On appeal he challenged the sufficiency of the evidence, but the state argued that his lawyer's failure to raise this issue before, during, or after trial waived it for purposes of appeal. The court of appeals, in an opinion written by Judge Brown, affirmed the conviction but held that case law permits criminal defendants to challenge the sufficiency of evidence regardless of whether the issue was raised in the circuit court. The court refused the state's invitation to "resurrect" a rule from the 1960s that took the opposite approach.

    Polygraphs - Evidence

    State v. Greer, 2003 WI App 112 (filed 13 May 2003) (ordered published 25 June 2003)

    In a prosecution for armed robbery, the circuit court suppressed the defendant's "post-polygraph confession" because it "related back" to the polygraph examination. The court of appeals, in an opinion written by Judge Fine, reversed in an opinion that canvasses the case law governing polygraph-related evidence. "Under the facts here, Greer's [the defendant] post-examination interview was discrete from the polygraph test: he knew the examination was over, he was disconnected from the polygraph machine, he was escorted out of the examination room and put in another room, he acknowledged that he understood 'that any questions that I may be asked after this point in time, and any answers I may give to those questions, are not part of the polygraph examination,' and an hour had passed between the end of the polygraph examination and the start of the interview. Accordingly, the trial court should not have suppressed Greer's confession" (¶ 17).

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    Open Meetings Law

    Statute of Limitation - Discovery Rule

    State ex rel. Leung v. City of Lake Geneva, 2003 WI App 129 (filed 28 May 2003) (ordered published 25 June 2003)

    As described by the court of appeals, this case presented a very narrow legal issue: what statute of limitation applies to actions claiming a violation of the open meetings law? In a decision authored by Judge Anderson, the court concluded that an action brought under the open meetings law falls squarely under the provisions of Wis. Stat. section 893.93(2), which establishes a two-year statute of limitation. It applied this statute because the plaintiff brought this action as a private attorney general under section 19.97 and therefore acted on behalf of the public.

    The plaintiff also argued that the discovery rule should apply to violations of the open meetings law. However, the appellate court noted that the Wisconsin Supreme Court has declined to extend the discovery rule to causes of action not sounding in tort. See State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 580 N.W.2d 203 (1998).

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    Condemnation - Appeals to Circuit Court - Notice-of-claim Statute

    Nesbitt Farms v. City of Madison, 2003 WI App 122 (filed 8 May 2003) (ordered published 25 June 2003)

    The plaintiffs appealed an order that dismissed their appeal of the amount of compensation the city of Madison awarded them for a parcel of real estate that the city acquired by condemnation. The circuit court dismissed the plaintiffs' appeal, holding that they were required to file a notice of claim under Wis. Stat. section 893.80(1) before commencing their appeal of the condemnation award under section 32.05(11).

    In a decision authored by Judge Deininger, the court of appeals reversed the circuit court. It concluded that section 32.05 provides a specific statutory procedure for appealing the amount of a condemnation award and thus constitutes an exception to the general rule that the notice of claim requirement applies to all actions against a municipality.

    The appellate court believed that the purposes underlying the notice of claim statute do not require its application to condemnation appeals. "By undertaking the condemnation process, a municipality not only acquires notice of a potential claim against it regarding the value of the property taken, it actually creates the claim by acting in the first instance to acquire the property" (¶ 28).

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    Government Immunity - Nuisance - Sewers

    Welch v. City of Appleton, 2003 WI App 133 (filed 28 May 2003) (ordered published 25 June 2003)

    A sewer overflow caused the plaintiffs' house to collapse. In their suit against the city, the plaintiffs claimed that the municipality had created a nuisance and was negligent, and had, additionally, breached its ministerial duty to maintain the sewer. The circuit court granted summary judgment in favor of the city and dismissed the complaint.

    The court of appeals, in an opinion written by Judge Hoover, affirmed. There is no statutory or common-law immunity that "empowers a public body to maintain a private nuisance" (¶8). In order to prevail on a "negligent operation and maintenance theory," the plaintiffs must prove that the "system itself" failed because of negligence. The record showed that the sewer system functioned normally before and after the storm; "it was simply unable to keep pace with the extraordinary rainfall" (¶12). The design and construction of a sewer system are discretionary acts subject to government immunity protection. Nor could the plaintiffs demonstrate nuisance under the theory that the city had engaged in an unreasonable activity that substantially interfered with the comfortable enjoyment of life, health, or safety (¶14). On this point the court discussed the conflicting precedent that distinguishes cases of "collected water" from so-called "exceeding-the-capacity" cases. Finally, the court found that the city had not breached a ministerial duty. In essence, the plaintiffs contended that the city had poorly designed the system, but a design involves discretionary determinations that are immunized by statute.

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