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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 77, No. 5, May 2004

    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

    Reopening Judgments - Res Judicata - Pro Se Litigants

    Shanee Y. v. Ronnie J., 2004 WI App 58 (filed 24 Feb. 2004) (ordered published 24 March 2004)

    The court of appeals, in a decision authored by Judge Wedemeyer, reversed a trial court order that had denied the alleged father's motion to reopen a paternity judgment. No reasonable basis existed to deny the motion under Wis. Stat. section 806.07(1)(h), which permits relief from a judgment for "other reasons." Although use of the statute is limited to instances in which "the sanctity of the final judgment is outweighed by the incessant command of the court's conscience that justice be done in light of all the facts," ultimately the trial court must balance the "intervening circumstances" element of section 806.07(1)(h) with the "fairness/finality" principles of "res judicata" (¶ 12).

    In this case, default judgments had been entered against Ronnie, who was incarcerated at the time and was never personally served. The trial court later found that Ronnie was not the biological father of the children and had no "historical relationship with them" (¶ 14). Nor had Ronnie "slept on his rights." He was a "less than sophisticated pro se litigant when he filed his first and second motions to reopen the judgments." Moreover, it was "obvious that through most of his travail, Ronnie was the victim of his own uninformed knowledge of the intricacies of the judicial system, receiving the assistance of counsel only in his third attempt to right the record" (¶ 19).

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    Commercial Law

    Foreclosure Sale - Confirmation

    Bank of New York v. Mills, 2004 WI App 60 (filed 11 Feb. 2004) (ordered published 24 March 2004)

    The court of appeals, in an opinion written by Judge Anderson, affirmed a trial court order that confirmed the sale of certain mortgaged property. The primary issue on appeal was whether the confirmed sale price represented "fair value." "The language of Wis. Stat. §846.165(2) that 'no sale shall be confirmed and judgment for deficiency rendered until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs' has been interpreted by the supreme court to mean nothing more than 'such reasonable value as does not shock the conscience of the court'" (¶ 11).

    The trial court exercised appropriate discretion in determining that the winning bid "was not so inadequate as to shock its conscience" (¶ 12). "A sheriff's sale is a distress sale; it is not conducted by a willing seller. The buyer bids at a sheriff's sale knowing that he or she is bidding on a piece of real estate at less than its market value because it is being sold to pay off a debt. The distress nature of the sale automatically reduces the price" (¶ 17). The trial court properly considered, yet remained "unimpressed" with, evidence that established the property's "fair market value" (¶ 19). Moreover, the former owners had 18 months during which to sell the property but were unable to do so.

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    Consumer Law

    Automobiles - Warranty Claim

    Mayberry v. Volkswagen of Am. Inc., 2004 WI App 64 (filed 24 Feb. 2004) (ordered published 24 March 2004)

    Mayberry brought a Magnuson-Moss Warranty Act claim against Volkswagen of America (VW) alleging that her car was defective. She purchased the car in October 2000 for about $22,500. The car was covered by a two-year, 24,000-mile warranty. In June 2002 Mayberry filed her complaint against VW based on the car's numerous defects. In September 2002, having put more than 32,000 miles on the car, Mayberry traded it and received a $15,000 allowance. Mayberry testified that when she accepted the car in October 2000, it was worth only about $12,000. The circuit court granted summary judgment in favor of VW because Mayberry had traded in the allegedly defective vehicle for more than its fair market value and thus had suffered no damage.

    The court of appeals, in a decision written by Judge Hoover, reversed because the record presented an issue of fact. Mayberry, as the car's owner, was qualified to testify to its value at the time of acceptance (October 2000). "[T]he measure of damages in Wisconsin for breach of warranty under the Act is found in Wis. Stat. §402.714(2). Nowhere does the statute suggest that the fair market value at the time of trade-in is the appropriate yardstick. . . . Thus, based on the statutory measure of damages in §402.714(2), a genuine issue of fact exists on the question of damages. Mayberry has offered evidence of the Jetta's value at the time and place of acceptance [October 2000]. Volkswagen, however, has offered evidence suggesting 'proximate damages of a different amount.' The difference cannot be resolved in summary judgment" (¶15).

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    Criminal Law

    Burglary - Multiplicity - Convictions Under Wis. Stat. section 943.10(2)(a) and (2)(d)

    State v. Beasley, 2004 WI App 42 (filed 26 Feb. 2004) (ordered published 24 March 2004)

    The defendant was convicted of multiple felonies, including two counts of burglary, based on a single home invasion. One count involved burglary with intent to steal while armed with a dangerous weapon (Wis. Stat. § 943.10(2)(a)); the other count involved burglary with intent to steal while committing a battery upon a person lawfully in the burglarized enclosure (Wis. Stat. § 943.10(2)(d)). On appeal the defendant contended that the two burglary charges were multiplicitous.

    In an opinion authored by Judge Lundsten, the court of appeals first dealt with the issue of whether these two subsections of the burglary statute define stand-alone crimes or, alternatively, whether they are simply penalty enhancers aggravating the underlying crime of burglary. The court concluded that they are stand-alone crimes. The court then considered whether the defendant could be convicted of both crimes arising out of a single incident of home invasion.

    The methodology for resolving the propriety of multiple convictions and punishments in a context like this was set forth by the supreme court in State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1. "If charged offenses are identical in law and fact using the Blockburger [v. United States] test, there is a presumption that the legislature did not intend multiple punishments. This presumption is only overcome by a clear indication of contrary legislative intent. On the other hand, if charged offenses are not identical in law and fact using the Blockburger test, there is no potential double jeopardy problem, but there may be a due process problem if the legislature did not intend to authorize cumulative punishments. In this second situation, there is a presumption that the legislature intended to permit cumulative punishments, and the defendant has the burden of overcoming this presumption by showing a clear legislative intent that cumulative punishments are not authorized. The defendant must meet that burden in light of four factors: (1) all applicable statutory language; (2) the

    legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment" (¶ 9). [The Blockburger test inquires whether each crime requires proof of an additional fact that the other does not. See 284 U.S. 299 (1932).]

    Applying this methodology, the appellate court concluded that each burglary charge in this case requires proof of an element that the other does not. One requires proof of burglary while armed with a dangerous weapon, while the other requires evidence of battery committed upon a person lawfully within the burglarized enclosure. Because the two counts are not identical in law, there is no potential double jeopardy problem, and it is presumed that the legislature intended to permit multiple punishments for these crimes. The court next considered the due process issue of whether the legislature intended to authorize cumulative punishments. Applying the factors for discerning legislative intent articulated above, the court concluded that the defendant did not meet his burden of showing clear legislative intent that multiple punishments for these two burglaries were not authorized by the legislature. The convictions on both burglary counts were thus affirmed.

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    Criminal Procedure

    Truth-in-Sentencing - Power of Court to Determine When Defendant is Eligible for Challenge Incarceration ("Boot Camp") Program

    State v. Lehman, 2004 WI App 59 (filed 4 Feb. 2004) (ordered published 24 March 2004)

    The defendant was convicted of armed robbery and was sentenced to eight years of confinement in prison followed by 10 years of extended supervision. The court also found that the defendant was eligible for the challenge incarceration ("boot camp") program. However, the court imposed a four-year waiting period on the defendant's eligibility for the program. The defendant filed a postconviction motion to set aside this waiting period, claiming that the court lacked authority to impose it. The circuit court disagreed and denied the motion.

    In a decision authored by Judge Snyder, the court of appeals affirmed. It conceded that Wis. Stat. section 973.01(3m), the challenge incarceration eligibility statute in question, admits of two incompatible yet reasonable interpretations. However, the court concluded that the legislature's intent to shift greater sentencing authority to the judiciary in the new truth-in-sentencing regime is advanced by a statutory interpretation that allows a sentencing court to determine not only whether a defendant is eligible for boot camp, but also to set a date of eligibility within the term of confinement portion of the sentence. Accordingly, the court held that the statute authorizes the sentencing court, in the exercise of its discretion, to determine both if and when a defendant is eligible for the challenge incarceration program.

    Validity of Plea Agreement - Warrantless Arrest During Execution of Search Warrant - Arrest Outside of Officer's Employing Jurisdiction

    State v. Cash, 2004 WI App 63 (filed 25 Feb. 2004) (ordered published 24 March 2004)

    The defendant appealed from a burglary conviction and an order denying his postconviction motion to withdraw his no contest plea. One of his arguments on appeal was that his plea was premised on an invalid plea agreement.

    The plea agreement provided that if the defendant returned a substantial portion of the stolen property in good working order before sentencing, the state would ask the court to reopen the judgment on the burglary charge, would request that the charge be reduced to felony theft, and would make a specific sentencing recommendation. The defendant argued that this agreement was invalid under State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992), which prohibits a plea bargain that allows a judgment to be reopened and amended to recite a lesser conviction if the defendant successfully completes probation.

    In a decision authored by Judge Nettesheim, the court concluded that Hayes did not render the plea agreement in this case invalid. The agreement here provided that following the defendant's plea of no contest, he would have the opportunity prior to sentencing to procure and return the stolen items. If the defendant satisfied this contingency, the state would amend the charge to a lesser offense and sentencing would proceed accordingly. Unlike the defendant in Hayes, the defendant here would not have served any portion of his sentence, probation or otherwise, before any amendment of the charge. Accordingly, the court concluded that the plea agreement in this case was not invalid under Hayes.

    The defendant also raised ineffective assistance of counsel claims. One of his arguments was that his attorney was ineffective for failing to seek suppression of certain of the defendant's statements. The defendant argued that his arrest was unlawful under Payton v. New York, 445 U.S. 573 (1980), which prohibits a warrantless arrest in the home, and that his post-arrest statements therefore should have been suppressed.

    In this case, while it is true that the police did not have an arrest warrant, they did have a search warrant for the defendant's premises and were lawfully present on those premises to execute the search warrant when they made the warrantless arrest of the defendant. In U.S. v. Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court held that if the police are lawfully on the suspect's premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect before the search if the arrest is supported by probable cause. In this case the court of appeals adopted Winchenbach for purposes of Wisconsin law. Because the police were lawfully present in the defendant's home by virtue of a valid search warrant and because they had probable cause to arrest the defendant, the court rejected the defendant's claim that his lawyer was ineffective for failing to challenge the warrantless arrest.

    The defendant also claimed ineffective assistance of counsel because his attorney failed to contest the authority of Waukesha County detectives to execute the search warrant and make the arrest in the city of Milwaukee. The defendant relied on Wis. Stat. section 175.40(6), which deals with arrests in a jurisdiction other than the one that employs the arresting officer. Among other things, the statute calls for the employing police agency to adopt written policies covering the authority of its officers to arrest in another jurisdiction. The defendant claimed that the state did not establish the existence of such policies in this case, and therefore the evidence obtained incident to his arrest should have been suppressed.

    The appellate court concluded that even if the Waukesha County Sheriff's Department had not adopted the written policies required by the statute (an assumption made for the sake of argument), suppression would not be an appropriate remedy for such a statutory transgression. Wrongfully or illegally obtained evidence is to be suppressed only if the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction. Section 175.40 does not protect a constitutional right nor does it recite suppression as a sanction for its violation. Accordingly, the defendant was not prejudiced by his counsel's failure to challenge his arrest on this ground.

    Probation Revocation - Reopening Revocation Hearing on Basis of Newly Discovered Evidence

    State ex rel. Booker v. Schwarz, 2004 WI App 50 (filed 10 Feb. 2004) (ordered published 24 March 2004)

    The issue in this case was whether a person whose probation has been revoked has a right to reopen a revocation hearing based on newly discovered evidence. This is a matter of first impression in Wisconsin. It was undisputed that there are no administrative code provisions providing for such a right. Nonetheless, the petitioner argued that due process requires that such a process be permitted, by analogy to criminal proceedings (see State v. Bembenek, 140 Wis. 2d 248, 409 N.W.2d 432 (Ct. App. 1987)). [Bembenek established a five-prong test that the defendant must satisfy in order to be granted a new trial on the basis of newly discovered evidence: "(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial" ¶ 12.]

    In a decision authored by Judge Wedemeyer, the court of appeals held that "the determination of whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases" (¶ 14).

    In so holding, the court set forth the following standards and requirements to govern these types of cases: "If a movant wishes to have an evidentiary hearing on a newly discovered evidence claim, he or she may not rely on conclusory allegations. If the claim is conclusory in nature, or if the record conclusively shows that the movant is not entitled to relief, the Division [of Hearings and Appeals] may deny the motion without an evidentiary hearing. See State v. Bentley, 201 Wis. 2d 303, 309-11, 313-18, 548 N.W.2d 50 (1996). To obtain an evidentiary hearing on the newly discovered evidence claim, the movant must allege with specificity the Bembenek factors in the post-revocation motion. See Bentley, 201 Wis. 2d at 313-18. Whether the motion sufficiently alleges facts which, if true, would entitle the movant to relief is a question of law to be reviewed independently by this court. See id. at 310. If the Division refuses to hold a hearing based on its findings that the record as a whole conclusively demonstrates that the movant is not entitled to relief, this court's review is limited to whether the Division erroneously exercised its discretion in making this determination. Id. at 318" (¶ 15).

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    Privileges - Waiver

    State v. Denis L.R., 2004 WI App 51 (filed 4 Feb. 2004) (ordered published 24 March 2004)

    The defendant was charged with sexually assaulting a three-year-old child. The victim's mother disclosed to her own grandmother information from the victim's counseling sessions. According to an affidavit, the mother stated that the child had informed the counselor that "nothing happened" between her and the defendant and that the child had "fabricated stories" in other counseling sessions. The defense moved the court to conduct an in camera inspection of the child's counseling records. The court later determined that the mother had waived the counseling privilege on her daughter's behalf by voluntarily disclosing a "significant part" of the communications.

    The court of appeals, in an opinion written by Judge Nettesheim, affirmed. It was undisputed that the mother, as the child's guardian, could waive or invoke the counselor-patient privilege under Wis. Stat. section 905.04. It was not determinative that the mother may not have "intended" to waive the privilege when speaking with her grandmother. Prior case law holds that waivers of evidentiary privileges occur when a voluntary disclosure is made, regardless of whether it is a "knowing" or particularly "intelligent" disclosure (¶ 15). Finally, although the mother's statements were brief, they nonetheless constituted a "significant part of the matter or communication" (¶ 19).

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    Family Law

    Guardians - Nominations by Parents Not Entitled to Preference

    Anna S. v. Diana M., 2004 WI App 45 (filed 22 Jan. 2004) (ordered published 24 March 2004)

    In 1995, Diana M. gave birth to a daughter. Brian S. was adjudicated the child's father in a paternity action. During the first four years of the child's life, there were substantial periods of time when she did not live with her mother because the mother was incarcerated. In 1999 the court entered an order granting physical placement of the child to her father. The parents were granted joint legal custody in matters of religion and education, and the father was granted sole legal custody in all other matters. The child was living with her father and his wife, Anna S., when the father died in a work-related accident in 2001.

    A few days after the father's death, Diana M. initiated this action, asking that her mother (the child's maternal grandmother) be appointed guardian of the child because Diana M. was incarcerated and unable to take care of the child. Anna S. filed a competing petition, requesting that she be appointed the child's guardian. The court ultimately appointed Anna S. rather than the child's maternal grandmother. On appeal the mother argued that the circuit court did not give the weight to her nomination of a guardian that is required by Wis. Stat. section 880.09 and by the U.S. Constitution.

    In a decision authored by Judge Vergeront, the court of appeals concluded that section 880.09 "does not require the circuit court to give [the mother's] nomination of a guardian a preference over other nominations or a presumption that it is in [the child's] best interests. Rather, the statute requires the circuit court to consider the mother's nomination, because she is 'an interested person' and to give it the weight the court considers appropriate in light of all of the evidence" (¶ 15).

    The mother also argued that, as a matter of constitutional law, a court must presume that her nomination of a guardian was in the child's best interest, thus giving a preference to her nomination over other nominations. The Fourteenth Amendment's guarantee of due process includes protection of the fundamental liberty interest in the care, custody, and control of one's children. However, the appellate court was not persuaded that this liberty interest was violated by the court's failure to presume that the mother's nomination of a guardian was in the child's best interests.

    Child Placement - No Statutory or Due Process Right to Equal Placement

    Arnold v. Arnold, 2004 WI App 62 (filed 4 Feb. 2004) (ordered published 24 March 2004)

    A father appealed from a custody and placement order. He was awarded placement of his children for 102 days per year, not the equal (182.5-day) placement he had requested. He offered both statutory and constitutional arguments in support of his position.

    In a decision authored by Judge Brown, the court said that although Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N.W.2d 426, held that Wis. Stat. section 767.24(4)(a) requires the family court to provide placement that is regularly recurring and meaningful, this is not tantamount to a presumption of equal placement.

    The father also contended that the physical placement statutes violate due process because they deprive him of a fundamental liberty interest in equally participating in the raising of his children. The court concluded that this substantive due process claim must fail. It found that the father did not meet his heavy burden of showing why the state should be foreclosed from allowing its courts to set placement schedules commensurate with the best interests of the children, even if other than equal placement results.

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    Real Property

    Prescriptive Easements - Owner-in-Possession Exception to 30-Year Recording Requirement

    Schauer v. Baker, 2004 WI App 41 (filed 5 Feb. 2004) (ordered published 24 March 2004)

    Wis. Stat. section 893.33(2) provides in pertinent part as follows: "[N]o action affecting the possession or title of any real estate may be commenced ... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless ... within 30 years after the date of the ... event there is [an instrument or notice of claim recorded with the register of deeds]." Apart from the owner-in-possession exception to this statute (see next paragraph), the parties agreed that this 30-year recording requirement applies to both adverse possession and prescriptive easement claims.

    An exception to this 30-year recording requirement is established in section 893.33(5): "[The thirty-year recording requirement] does not apply to any action commenced ... by any person who is in possession of the real estate involved as owner at the time the action is commenced." This is the so-called "owner-in-possession" exception.

    The question before the court of appeals in this case was whether the owner-in-possession exception applies to the holder of a prescriptive easement. In a decision authored by Judge Lundsten, the court concluded that the exception does not extend to persons who hold a prescriptive easement because, among other reasons, "a prescriptive easement does not denote ownership" (¶ 19).

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    Sexually Violent Persons

    Jury Trials - General Verdicts

    State v. Madison, 2004 WI App 46 (filed 24 Feb. 2004) (ordered published 24 March 2004)

    The court of appeals, in an opinion written by Judge Cane, affirmed a judgment, based on a jury verdict, finding that the defendant is a sexually violent person and ordering him committed pursuant to Wis. Stat. chapter 980. The defendant appealed the trial court's denial of his request for a special verdict and the court's submission to the jury of the standard general verdict for chapter 980 cases set forth in Wis. J.I. - Criminal 2503. The court held that the defendant had not been deprived his right to equal protection by the use of a general verdict. Nothing in the record established a "systematic deprivation" of special verdicts in chapter 980 cases. Nor did he demonstrate "the premise of his equal protection argument: that a general verdict makes it easier to return a verdict in favor of commitment" (¶ 9). The court of appeals concluded, however, by cautioning that its opinion "should not be read to conclude a respondent in a Wis. Stat. ch. 980 commitment proceeding should never have a special verdict" (¶ 10).

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