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    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals.

    Daniel BlinkaThomas Hammer

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 9, September 2006

    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

    Consumer Law - Deficient Pleading

    Bank One, NA v. Ofojebe, 2005 WI App 151 (filed 1 June 2005) (ordered published 29 July 2005)

    The court of appeals, in a decision written by Judge Fine, reversed a summary judgment order that granted foreclosure to Bank One for a home owned by Ofojebe. The court held that the bank's complaint failed to comply with the pleading requirement of the Wisconsin Consumer Act, Wis. Stat. § 425.109; specifically, the complaint failed to include the figures necessary to compute what Ofojebe owed the bank. The bank claimed that Ofajebe waived the defense because she first raised it on appeal (see ¶ 8).

    The court of appeals disagreed. "Wis. Stat. § 425.109(3) by its plain language bars entry of judgment if the pleading requirements of § 425.109(1) are not met: `A judgment may not be entered upon a complaint which fails to comply with this section.' Bank One thus had to supply in its complaint the figures necessary for the computation of the amount Jacqueline Ofojebe allegedly owed. The statute is self-executing" (¶ 10) (citations omitted). The court examined the complaint, including attached documents, and concluded that the complaint failed to meet the statute's requirements. The court of appeals ordered the circuit court to dismiss the complaint without prejudice.

    Defaults - Service of Process

    Richards v. First Union Secs., 2005 WI App 164 (filed 1 June 2005) (ordered published 29 July 2005)

    Richards filed an action to recover investment losses he incurred as a result of alleged securities law violations by First Union Securities. The circuit court granted a default judgment to Richards and later denied First Union's motion to reopen the matter despite First Union's contention that it had not received proper service. The court ruled that First Union had waived this jurisdictional defect.

    The court of appeals, in a decision written by Judge Anderson, reversed. First, there was no waiver. "Here, First Union did not file any motions or answers prior to the entry of the default judgment. Thus, in its motion to vacate the default judgment, its first action before the court in this case, First Union properly raised its jurisdictional defense" (¶ 11).

    Second, the record showed that the service of process on First Union, a foreign corporation, was insufficient. Richards had not complied with the "personal delivery service option." Although Richards personally served a First Union "employee" in a Wisconsin office, because the employee "was not an officer, director, or managing agent, she was not one within the class of persons upon whom corporate service could be made" (¶ 15).

    The court next addressed the "alternative service option" under Wis. Stat. section 801.11(5)(a). Determining whether a party has complied with this option "presents two questions: (1) Objectively, was the location where the summons and complaint were presented `the office of [an] officer, director or managing agent'? and (2) Subjectively, was it reasonable for the process server to conclude that the person presented with the summons and complaint was `the person who is apparently in charge of the office'?" (¶ 15). Here the issue concerned the status of the office's "branch manager" as a "managing agent." The court held that Richards presented insufficient ("scant") evidence under the objective standard (see ¶ 22).

    Judge Brown dissented. He argued that First Union, not Richards, bore the burden of proof on the issue of whether the branch manager was a managing agent. Moreover, evidence in the record showed the employee to be a "managing agent."

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    Criminal Procedure

    Truth-in-Sentencing - Challenges to Conditions of Extended Supervision

    State v. Fisher, 2005 WI App 175 (filed 15 June 2005) (ordered published 29 July 2005)

    The defendant was convicted of delivering 5 or fewer grams of cocaine. Using Wisconsin's truth-in-sentencing laws, the circuit court imposed a bifurcated sentence of seven years of initial confinement followed by five years of extended supervision. The court provided as a condition of extended supervision that the defendant was not to consume any alcohol-like beverages, go into any taverns or liquor stores, or have any containers for alcoholic beverages in his residence.

    After the defendant's motion for postconviction relief in the circuit court was unsuccessful, he appealed. The defendant contended, among other issues, that the supervision conditions described above violate his constitutional due process rights because they are vague, are overbroad, and are unrelated to his offense.

    The state urged that the appellate court did not need to reach the merits regarding the supervision conditions because the defendant prematurely brought his motion to modify those conditions. The state relied on Wis. Stat. section 302.113(7m)(e)1., which provides in pertinent part that "an inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision." The state also relied on Wis. Stat. section 809.30(1)(c), which expressly defines "postconviction relief" to exclude petitions under section 302.113(7m).

    In a decision authored by Judge Brown, the court of appeals concluded that section 302.113(7m)(e)1. unambiguously applies only when an inmate seeks to make changes to conditions of supervision. In this case the defendant did not seek merely to make changes to the conditions; he wanted to abolish them entirely. Said the court, the defendant "does not ask us to alter the conditions of his supervision by substituting new terms. He wants us to void them. If a condition of supervision violates the state or federal constitution, striking that condition is not a better option but a mandate. To impose a waiting requirement merely delays the inevitable" (¶ 14).

    Having concluded that the defendant's motion was not premature under the statute cited above, the court reached the merits of his appeal and concluded that the extended supervision conditions imposed by the circuit court are unambiguous and reasonably related to the defendant's rehabilitative needs. Accordingly, the appellate court affirmed the circuit court judgment and order.

    County Jail Time as Condition of Probation - Power of Sheriff to Order Home Detention

    State v. Galecke, 2005 WI App 172 (filed 30 June 2005) (ordered published 29 July 2005)

    The defendant was convicted of forgery and theft. The Portage County Circuit Court withheld sentence on each conviction and placed the defendant on probation with the condition that he serve 270 days in the county jail. The court granted work release privileges. It also allowed the defendant to serve his confinement in Outagamie County or any other county jail that is close to his employment.

    Shortly thereafter the Portage County judge learned that the defendant had been placed on home detention by the Outagamie County sheriff. The sheriff was acting pursuant to Wis. Stat. section 302.425(2), which provides that subject to certain limitations, a county sheriff may place on home detention any person confined in jail who has been arrested for, charged with, convicted of, or sentenced for a crime.

    The Portage County judge ordered a probation review and held a hearing, at which he expressed surprise at the sheriff's decision to place the defendant on home monitoring and specifically observed that the court did not authorize home detention. The defendant argued that, pursuant to State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503, the circuit court had no authority to tell a sheriff whether the sheriff can put a person on home detention. The circuit court agreed and then ordered the defendant, as a condition of probation, to refuse home detention. Alternatively, the circuit court ordered that the defendant be returned to the Portage County jail to serve 270 days in confinement. The defendant appealed.

    In a majority decision authored by Judge Higginbotham, the court of appeals reversed the circuit court. It concluded, relying on its holding in Schell, that "the circuit court erred by ordering [the defendant], as a condition of probation, to refuse participation in the home detention program" (¶ 7). Section 302.425(2) gives the county sheriff the discretion to place a defendant in the home detention program, including defendants ordered to serve jail time as a condition of probation. "The statute plainly does not give any authority to the circuit court to determine which defendant is permitted to participate in the home detention program; the sheriff manages the jail, not the court" (¶ 10) (citation omitted). Nor can the circuit court avoid the holding in Schell by ordering the defendant to refuse home monitoring as a condition of probation (see ¶ 9).

    The appellate court also concluded that the circuit court lacked authority under section 302.45 to order the intrastate transfer of a jail inmate. The circuit court thus erred by ordering, in the alternative, the transfer of the defendant from the Outagamie County jail to the Portage County jail (see ¶ 7).

    Judge Dykman filed a dissenting opinion.

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    Permissive User - Financial Responsibility

    McKillip v. Bauman, 2005 WI App 165 (filed 22 June 2005) (ordered published 29 July 2005)

    Bauman allegedly gave permission to Ohlfs to drive Bauman's Chevy Tahoe. While Ohlfs was driving the Tahoe on property owned by McKillip, the vehicle started a fire, which destroyed more than 14,000 trees on McKillip's property. McKillip sued Bauman and Ohlfs for trespass and negligence. The circuit court ruled that Ohlfs was not a "permissive user" of the Tahoe under Bauman's insurance policy and therefore dismissed Bauman's insurer, Guaranty National. It also ruled that the financial responsibility statutes did not mandate that the insurer extend such coverage.

    The court of appeals, in a decision written by Judge Anderson, affirmed. First, by the terms of the policy itself, Ohlfs was not a permissive user, nor did the policy or other documents - particularly the wording of the renewal notice - generate any ambiguity. "[T]he provision in the renewal notice when read in the context of the entire policy would reasonably lead an insured to only one conclusion - that the specific conditions set forth in the non-owner endorsement have to be met for the policy to cover permissive users of owned vehicles. Because Bauman never notified Guaranty National that he purchased the Tahoe, Guaranty National never agreed to cover the Tahoe and Bauman never paid any additional premiums for coverage of the Tahoe, the policy, as written, does not provide coverage for Ohlfs as a permissive user of the Tahoe" (¶ 16).

    Nor did the financial responsibility statutes mandate that the policy extend coverage not only to Bauman but also to Ohlfs as a permissive user of the Tahoe (see ¶ 18). "First, the financial responsibility statutes, as amended by 1999 Wis. Act 80, §§ 62-63, clearly do not require an insurer to issue an owner's policy and an operator's policy to each insured in every case" (¶ 19). "Second, the appellants have a fundamental misconception about the financial responsibility statutes. It is incumbent upon the person seeking insurance to inform the insurance company of whether he or she wants an operator's policy, an owner's policy, or both. It is not the insurer's duty, absent instruction from the insured, to issue both types of policies" (¶ 20). Thus "[i]t was not Guaranty National's duty to issue him a policy covering all his owned vehicles and their permissive users - especially when Bauman had not informed Guaranty National of the acquisition of any vehicles and had not paid any additional premiums for coverage of any vehicles. We will not now rewrite Guaranty National's policy to bind it to a risk it was unwilling to cover, and for which it was not paid" (¶ 21).

    Homeowner's Insurance - Riding Mowers

    Varda v. Acuity, 2005 WI App 167 (filed 1 June 2005) (ordered published 29 July 2005)

    Quella was cutting grass on a riding mower when the mower threw a rock that struck the plaintiff in the eye. The plaintiff sued Quella and Stezenski, the owner of the rental property where the grass was being cut. Stezenski's home-owner's insurance carrier, Ellington Mutual, filed a motion for summary judgment, arguing that it provided no coverage for the accident because Quella was not performing "domestic duties" when the accident occurred. The circuit court denied Ellington's motion. The court, however, granted summary judgment dismissing Acuity, which insured Quella, on the ground that the riding mower fell within an exclusion to Quella's policy. Ellington Insurance appealed the denial of its motion and the plaintiff cross-appealed the dismissal of Acuity.

    The court of appeals, in an opinion authored by Chief Judge Cane, affirmed. Quella was an "insured" under Stezenski's homeowner's policy. "The policy defines insured premises as both the family dwelling shown on the declarations page and all other premises shown on that page. The declarations page of Stezenski's policy lists two addresses in Appleton as insured premises: one is the family's residential address; the other is the Lawe Street rental property. Finally, the policy states that liability and medical coverage is extended to `cover the additional family dwelling(s) described in the declarations.' Despite Ellington's arguments, therefore, the policy's plain language requires no connection between domestic duties and the Stezenski family or its convenience. The policy simply requires that the duty be related to the insured premises and, in this case, the insured premises include the Lawe Street house where the accident occurred" (¶ 12).

    Turning to the cross-appeal, the court held that a riding lawn mower unambiguously fell within the exclusion for "motorized land conveyances." As in an Iowa case, "the Quellas' Acuity policy includes an exception to the exclusion for motorized land conveyances for vehicles `not subject to motor vehicle registration ... [u]sed to service an insured's residence.' The Acuity policy would thus also have provided coverage if Quella had been mowing his own lawn when an accident happened. But there would be no need for an exception that restored coverage for riding lawn mowers that service the insured's residence unless the motorized land conveyance exclusion applied to the larger class of riding mowers" (¶ 20). (The court also rebuffed the plaintiff's argument that the riding mower nonetheless fell within an exclusion exception for "recreational" vehicles.)

    Finally, the plaintiff unsuccessfully argued that her injury was caused not by the riding mower's operation but by the "operation of the mower's cutting deck," which thereby constituted an "independent concurrent cause" (see ¶ 23). "When an insurance policy expressly insures against loss caused by one risk, but excludes loss caused by another risk, coverage is extended to a loss caused by the insured risk even though the excluded risk is a contributory cause. ... Without the operation of the excluded risk, the riding mower, the cutting deck could not have caused the stone to fly up and injure [plaintiff]. ... [I]n this case, the cutting deck could not have turned a stone into a dangerous projectile unless it was part of the riding mower, an excluded risk" (¶¶ 24-25).

    Umbrella Policy - Permissive User

    Dorbritz v. American Family Mut. Ins. Co., 2005 WI 154 (filed 17 May 2005) (ordered published 29 July 2005)

    Dorbritz was seriously injured when his car was struck by a vehicle driven by Lember. The car's owner, Lisa Habersbrunner, carried $100,000 in personal liability insurance issued by American Family. Lisa also was listed on a special endorsement in her parents' personal liability umbrella policy, also issued by American Family. Lember, the driver, carried $100,000 in liability coverage issued by Prudential. American Family paid the $100,000 under Lisa's liability coverage but denied that Lember (the driver) was an "insured" under the parents' umbrella policy.

    On motions for summary judgment, the circuit court found: "(1) the umbrella policy covered Lisa Habersbrunner's car; (2) Lember was covered by the umbrella policy under Wis. Stat. § 632.32 as a permissive user; and (3) after the limits of American Family's umbrella policy were exhausted, the Dorbritzes could recover under the Prudential policy" (¶ 8).

    The court of appeals, in a decision written by Judge Fine, affirmed. The umbrella policy's special endorsement included Lisa's name; thus, it covered her car. The next issue was whether Wis. Stat. section 632.32(3)(a) extended this coverage to Lember as a permissive user of Lisa's car. "Here, the statute by its plain language provides coverage for Lember. The policy was issued to `owner[s]' Albert and Mary Habers-brunner. Lember was `any person,' and Lisa Habersbrunner's car was `any motor vehicle described in the policy'" (¶ 14).

    American Family next argued that the circuit court erred when the court found that its umbrella policy was primary to Prudential's coverage, but the court of appeals found that American Family waived this argument by not raising it during the summary judgment hearing. Specifically, "American Family's lawyer neither objected to the trial court's ordering of the policies nor the Dorbritzes' lawyer's assertion that insurance policies covering the car are applied first" (¶ 17). Nor did American Family's lawyer timely object to the proposed wording of the court order. Finally, asserting that this case was not "exceptional," the court refused to visit the issue under its discretionary reversal authority provided by Wis. Stat. section 752.35 (see ¶ 19).

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    Motor Vehicle Law

    OWI - Implied Consent - No Right to Alternative Test After Driver Released from Custody

    State v. Fahey, 2005 WI App 171 (filed 30 June 2005) (ordered published 29 July 2005)

    The defendant was arrested for operating a vehicle while intoxicated (OWI). Pursuant to the implied consent law he submitted to breath testing. He also was advised of his right to an alternative test at the expense of the police agency. He did not request an alternative test and was released from police custody to the custody of his wife. Approximately 15 minutes later the defendant returned to the police station and, for the first time, told police that he wanted an alternative test. The officer declined to provide such a test at government expense, telling the defendant that he could go to the hospital and get a blood test done at his own expense.

    The defendant moved the circuit court to suppress the results of his breath test, alleging that the arresting officer failed to abide by the implied consent law when the officer declined the defendant's request for an alternative chemical test at agency expense. The circuit court denied the suppression motion. The defendant subsequently was convicted of OWI.

    In a decision authored by Judge Lundsten, the court of appeals affirmed. Said the court, "we hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of sec. 343.305(5)(a) [the implied consent law]" (¶ 1). The court observed that its construction of the statute does not prevent suspects from obtaining evidence; rather, it places a reasonable limit on their ability to do so at taxpayer expense. "[The defendant] was free to obtain an alternative test, but it was too late to ask for one provided at agency expense" (¶ 17).

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    Municipal Law

    Town Roads - Power to Name Town Roads

    Liberty Grove Town Bd. v. Door County Bd. of Supervisors, 2005 WI App 166 (filed 7 June 2005) (ordered published 29 July 2005)

    In 2000 Door County passed an ordinance that established a naming and numbering system for roads in unincorporated portions of the county. The county sought to eliminate duplicate road names within the county because duplication presents problems for emergency services, particularly the 911 emergency dispatch system. The county requested the town of Liberty Grove to change 20 road names. Liberty Grove refused to change seven of them and commenced this action seeking a declaratory judgment that towns, not counties, have the exclusive right to name town roads. The circuit court granted the county's motion for summary judgment and dismissed the town's complaint.

    In a decision authored by Judge Peterson, the court of appeals affirmed. "We conclude that a town has initial authority to name town roads by virtue of Wis. Stat. § 81.01(11). However, the town's authority is subject to the county's discretionary authority, under Wis. Stat. § 59.54(4), to establish a road naming and numbering system for the specific purpose of aiding in fire protection, emergency services and civil defense. A county may cooperate with a town regarding road name changes. See Wis. Stat. § 59.54(4m). Ultimately, however, a county has authority to implement name changes, even if a town does not consent, when the name changes are made under the system pursuant to Wis. Stat. § 59.54" (¶ 15).

    Conditional Use Permits - Revocation of CUP Not a Regulatory Taking

    Rainbow Springs Golf Co. v. Town of Mukwonago, 2005 WI App 163 (filed 1 June 2005) (ordered published 29 July 2005)

    In 2003 the town of Mukwonago revoked a conditional use permit (CUP) and three addenda thereto that permitted various uses of land owned by the Rainbow Springs Golf Company Inc. Rainbow Springs argued that the CUP was a vested property right and that the deprivation of that right through the town's revocation was an unconstitutional taking without just compensation. The circuit court dismissed the takings claim.

    In a decision authored by Judge Brown, the court of appeals affirmed. It concluded that "a CUP merely represents a species of zoning designations. Because landowners have no property interest in zoning designations applicable to their properties, we hold that a CUP is not property and affirm the circuit court's determination that no taking occurred by virtue of the Town's revocation" (¶ 1).