Wisconsin Lawyer
Vol. 80, No. 6, June 2007

Court of Appeals Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Appellate Procedures Civil Procedure Criminal Law Criminal Procedure Family Law

Insuance Motor Vehicle Law Open Meetings Law Real Property Worker's Compensation Law

Appellate Procedure

State v. Bons, 2007 WI App 124 (filed 14 March 2007) (ordered published 26 Apr. 2007)

Bons was convicted of possessing child pornography, which was found in his car during a traffic stop. The trial judge ruled that the stop was lawful and that Bons had voluntarily consented to the resulting search of his car.

The court of appeals affirmed in a decision written by Judge Anderson. Because the search and seizure issues are fact-intensive and involved long-standing law, they will not be discussed further. Of greater import was the court's sanctioning of defense counsel for falsely certifying in his brief-in-chief that the appendix complied with Wis. Stat. section (rule) 809.19(2)(a). "The appendix, however, is in flagrant violation of the requirements of that rule" (¶ 20). Rule 809.19(2)(a) "dictates that an appellant's appendix contain `relevant trial court record entries, the findings or opinion of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court's reasoning regarding those issues'" (¶ 22).

In this case the appendix contained only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief, documents the court found "meaningless" to the issues on appeal. The court found that "no items essential to our understanding of the issues were in his appendix" (¶ 23). Particularly egregious was the omission of the trial court's extensive oral decision regarding the stop and search (see id.). The court of appeals sanctioned Bons's attorney and ordered him to pay a monetary penalty (see ¶ 25).

In a concurrence, Judge Brown decried the repeated filing of "worthless appendices" and declared the court of appeals' readiness to sanction noncomplying counsel. "Appellate lawyers need to bear in mind that an appeal obliges this court, as an intermediate appellate court, to consider whether the circuit court committed error. As a result, we need to consider what the circuit court said, whether evidenced in a memorandum decision or in a transcript. When an appendix fails to provide the circuit court's rationale, our full understanding of the case is put on hold until we can ferret it out in the record. Enough already" (¶ 27).

"It is time that lawyers stop thinking that if they just provide a copy of the judgment and motion papers, it will be adequate. These are NOT relevant court entries. It is time that all attorneys understand that it is often not sufficient to simply include a copy of the formal findings of fact and conclusions of law. If elsewhere in the record, oral or written rulings or decisions show the trial court's reasoning regarding those issues, they should be included in the appendix. By the same token, inundating us with reams and reams of material bearing no relation to the precise issues before the court is another practice that should be avoided" (¶ 29).

"One more thing. I anticipate that there are a few lawyers who may concede that the appendix may not be `complete' if it contains a copy of the judgment or the formal findings of fact/conclusions of law or irrelevant entries from the record, but would argue that being `incomplete' is not the same thing as being `false.' To those, I respond that if a lawyer certifies to us that the oral or written rulings or decisions showing the trial court's reasoning regarding the issues on appeal are contained in the appendix, and the ruling or rulings are not in the appendix, it is false. I cannot conceive of any other answer" (¶ 30).

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Civil Procedure

Kainz v. Ingles, 2007 WI App 118 (filed 13 March 2007) (ordered published 26 Apr. 2007)

In a significant case of first impression, the court of appeals discussed the proper standard for determining a party's competence to settle a case under Wis. Stat. section 807.10. Kainz (the plaintiff) was injured in a car accident. A "significant issue" concerning her mental health surfaced during the pretrial phase. The court ordered a psychiatric examination, during which it was found that the plaintiff suffered from severe mental illness unrelated to the car accident. Based on the report, the judge appointed a guardian ad litem (GAL), who recommended that the plaintiff accept a $125,000 settlement offer. The plaintiff refused to accept the settlement, and so the court held a competency hearing and determined that the GAL could lawfully settle on her behalf under section 807.10. The court eventually approved the $125,000 settlement based on the GAL's recommendation.

The court of appeals, in an opinion written by Judge Curley, affirmed. First, addressing the standard of review, the court held that "the question of competency under Wis. Stat. § 807.10 is a question of fact" that is reviewed under a "clearly erroneous" standard (see ¶¶ 3, 21). Second, the court approved as "well-reasoned and proper" the three-prong test for competency devised by the circuit court under section 807.10. Under this test, "a person is incompetent if he/she lacks the ability to reasonably understand pertinent information, rationally evaluate litigation choices based upon that information, or rationally communicate with, assist and direct counsel" (¶ 3).

The court of appeals rejected the plaintiff's contention that competency is controlled instead by Wis. Stat. section 880.01(14), which governs when an individual needs a general guardian. "Wisconsin Stat. ch. 880 is itself clearly inapplicable here because there has been no indication that Kainz needs a general guardian, and as such, the question is whether the § 880.01(4) standard can nonetheless assist in the development of a standard for competency determinations in the context of Wis. Stat. § 807.10. We conclude that it cannot" (¶ 29). (Editors' Note: Wis. Stat. chapter 880 has been repealed and recreated as Wis. Stat. chapter 54.)

The plaintiff's interpretation conflicted with the plain language of section 807.10. "As the trial court recognized, if the statute was intended to allow for the settlement of disputes only for a person who has, or satisfies the requirements of needing, a general guardian, then the alternative language at issue here - `or the guardian ad litem with the approval of the court' - would be rendered meaningless" (¶ 30). General guardians and GALs "serve separate and distinct purposes and ought not to be confused" (¶ 33).

The court of appeals also addressed the competency standards that pertain in criminal proceedings and the guidelines for dealing with clients with mental health problems contained in the professional responsibility rules. The three-prong standard used by the circuit court did, contrary to the plaintiff's argument, incorporate pertinent elements of the criminal competency test in Wis. Stat. section 971.12 (see ¶¶ 38-43). But the ethics rule governing clients with mental health problems, SCR 20:1.14, was of only "limited assistance in formulating a competency standard" (¶ 46).

The record further supported the circuit court's determination that although the plaintiff clearly had the capacity to "understand pertinent information" (the first factor), she "fell short" as to the second and third factors: "We agree with the trial court that many of [the plaintiff's] delusional beliefs, reported and testified to by Dr. Feinsilver and confirmed through [the plaintiff's] own testimony, connect the car accident to the insurance company and her lawyers in a way that fundamentally interferes with her ability to understand the settlement offer and makes her incapable of evaluating litigation choices in a rational, reasoned manner. The record also clearly shows that the various conspiracy theories that [the plaintiff] associates with the insurance company and her lawyer, including that hair salons dye her hair against her wishes, and global positioning and tracking devices have been inserted into her body, keep her from effectively assisting her lawyer" (¶ 53).

Finally, the court held that the GAL and the circuit court properly approved the settlement despite the plaintiff's protests that a jury may have awarded her more. "The mere fact that [the plaintiff's] rejection of the settlement offer can be rationalized due to the possibility that a jury might have awarded more than $125,000 does not decrease the effect of her delusions on her decision or make her decision any less irrational" (¶ 57).

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Criminal Law

State v. Slagle, 2007 WI App 117 (filed 8 March 2007) (ordered published 26 Apr. 2007)

Police officers stopped the defendant in his truck after receiving a complaint that he had pointed a gun at someone. The officers found, in an inside pocket of the defendant's jacket, a "solid corner piece" of cocaine weighing about 12.3 grams. The state charged the defendant with possession of cocaine with intent to deliver in violation of Wis. Stat. section 961.41(1m)(cm) and with keeping a "drug car," in violation of Wis. Stat. section 961.42. The defendant's theory of defense was that he confiscated the cocaine from his girlfriend, a cocaine addict who performed acts of prostitution to support her habit. The jury found him guilty on both charges.

The defendant appealed the part of his judgment convicting him of keeping or maintaining a vehicle "used for … keeping … [controlled substances] in violation of [Chapter 961]." Wis. Stat. § 961.42(1). This crime is commonly referred to as keeping a drug vehicle. The defendant challenged the sufficiency of the evidence. The question before the appellate court was whether evidence showing that the defendant used his truck to transport cocaine on a single occasion for an unknown distance satisfies the requirement that a vehicle be used for "keeping" the cocaine within the meaning of section 961.42(1).

In a decision authored by Judge Lundsten, the court of appeals reversed. The court began its analysis by turning to Wisconsin Jury Instructions-Criminal 6037B, which catalogs the elements of section 961.42. According to the jury instruction, because the state charged the defendant with keeping or maintaining a vehicle used for "keeping" cocaine (as opposed to maintaining it for "manufacturing" or "delivering" the drug), the state had to prove that the vehicle was used for keeping cocaine. The instruction provides that "keeping" requires that "the cocaine be kept for the purpose of warehousing or storage for ultimate manufacture or delivery. It requires more than simple possession."

The only dispute in this case was whether the trial evidence demonstrated that the cocaine was being "warehoused" or "stored" in the defendant's truck. "Boiled down, the question is whether evidence showing that a person is using a vehicle to transport cocaine on a single occasion for an unknown distance satisfies the requirement that the vehicle is being used for `warehousing or storage'" (¶ 7).

The appellate court agreed with the defendant that the common meanings of the terms "store" and "warehouse" do not encompass merely possessing an item while transporting it. "We conclude that [the defendant] was not warehousing or storing his cocaine when he carried it in his truck while moving from one location to another. Accordingly, we further conclude that the evidence is insufficient to support a jury finding that [the defendant] used his truck for the purpose of `keeping' cocaine" (¶ 10).

The court continued, "We have resolved the question presented by the facts in this case, but acknowledge that this decision leaves significant questions unanswered. The evidence here shows nothing more than transportation. But, of course, vehicles are often used for storage. It would seem that a person who places cocaine in a car for an extended period of time, including significant periods when the car is not being driven, is using the car to store the cocaine. But what if the evidence shows that a defendant placed cocaine in a car's glove compartment at one location, drove to a second location where he left the car parked for a short time, and then drove on to his final location where he removed the cocaine? Has the car been used for storage? Does the answer depend on how long the car was parked? Such questions must be left for another day" (¶ 11).

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Criminal Procedure

State v. LaCount, 2007 WI App 116 (filed 20 March 2007) (ordered published 26 Apr. 2007)

LaCount was convicted of felony theft by a bailee and securities fraud relating to his handling of investments while he worked for an investment firm (GP&L). The court of appeals, in an opinion authored by Chief Judge Cane, affirmed the conviction.

First, the court considered and rejected the argument that authorities violated LaCount's Fourth Amendment rights when they executed a search warrant at the GP&L offices. LaCount did not challenge either the scope or the probable cause basis of the search warrant itself (see ¶ 8). Instead, he challenged the warrant's execution, but he too narrowly characterized the scope of the warrant.

"When read as a whole, the search warrant authorizes the search for and seizure of more than just the records of those clients specified in the warrant's application, and includes searching LaCount's office within GP&L. The search warrant's first five paragraphs allow for the search for and seizure of paper records and computer records. In particular, the warrant allowed police to search and seize (1) any type of bank account or investment account owned by GP&L, (2) any type of bank account or investment account owned by Louis LaCount, (3) records relating to payroll, accounts payable, telephone logs or accounts receivable of GP&L, and (4) records indicating the names of past and present employees of GP&L or past and present owners or shareholders in GP&L" (¶ 11). The documents taken fell within the warrant's scope, and because LaCount's office was within the GP&L office, police were entitled to search LaCount's office as well.

Second, no error occurred when the state introduced testimony of the supervisory counsel for the Wisconsin Department of Financial Institutions regarding investment contracts. The court agreed that the expert witness, Cohen, could "not provide a legal definition of investment contract in his testimony," but the definition he used tracked that set forth in the jury instruction (¶ 16). In short, LaCount failed to show prejudice. Cohen's testimony that "an investment contract was present" came in response to a properly framed hypothetical question (see ¶ 19), and it was clear that Cohen "was merely assuming facts in giving his opinion" (¶ 21).

Third, the court also was satisfied that sufficient evidence supported the conviction under Wisconsin law, which holds that for an investment to be an investment contract "simply requires `the essential managerial efforts of someone other than the investor'"(¶ 25). The efforts need not come solely from another person (see id.).

Finally, LaCount was not entitled to have the jury determine his status as a habitual criminal under the recent U.S. Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Shepard v. United States, 544 U.S. 13 (2005). "We agree with the State that when read together, Shepard and Apprendi suggest that a court, rather than a jury, may determine the applicability of a prior conviction for sentence enhancement where the applicability of the prior conviction is readily determined on the existing judicial record" (¶ 29).

State v. One 2000 Lincoln Navigator, 2007 WI App 127 (filed 27 March 2007) (ordered published 26 Apr. 2006)

The state commenced an action for forfeiture of a 2000 Lincoln Navigator, alleging that the vehicle "was used to facilitate the transportation of cocaine" in violation of Wis. Stat. section 961.55, and was, therefore, subject to forfeiture under section 961.55(1). Section 961.55(2) permits seizure of property, including motor vehicles, that are subject to forfeiture under Wis. Stat. chapter 961 (Wisconsin's controlled substances laws) if, among other things, they were "used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of" controlled substances. See Wis. Stat. § 961.55(1)(d).

Section 961.555(2)(a) requires that an action seeking forfeiture of property seized under section 961.55 be commenced "within 30 days after the seizure." Section 961.555(2)(b) provides that "[u]pon service of an answer, the action shall be set for hearing within 60 days of the service of the answer." No hearing on the state's forfeiture petition was held within 60 days of service of the answer, and the circuit court granted the motion to dismiss made by the vehicle's registered owner. The dismissal was entered "without prejudice." The issue on appeal was whether the dismissal should have been "with prejudice."

In a decision authored by Judge Fine, the court of appeals concluded that "[t]he sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property `for an indefinite time' without a prompt judicial assessment of whether forfeiture is justified"(¶ 3) (citations omitted). "Accordingly, once the sixty-day period mandated by § 961.555(2)(b) has expired, the circuit court loses competency, and the State may not start the clock running anew by filing another forfeiture petition based on the same facts" (¶ 3). Thus, the court of appeals ordered that the circuit court's order of dismissal be modified to be a dismissal "with prejudice."

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Family Law

Dane County Dep't of Human Servs. v. Dyanne M., 2007 WI App 129 (filed 29 March 2007) (ordered published 26 Apr. 2007)

The Dane County Department of Human Services (DHS) petitioned for termination of Dyanne M.'s parental rights to her daughter, A. Dyanne contested the petition. After a fact-finding hearing, a jury found grounds to terminate. On June 20, 2006, the circuit court held a dispositional hearing. At the conclusion of the hearing, the circuit court found that terminating Dyanne's parental rights to A was in the child's best interests. The court orally ordered that Dyanne's parental rights to A be terminated and that custody and guardianship of A be transferred to the state Department of Health and Family Services for purposes of adoptive placement.

The DHS submitted a proposed written order on June 23, 2006. Dyanne submitted a list of objections to the proposed order on June 28. The DHS responded to the objections and submitted a revised proposed order on June 30. The circuit court signed the revised proposed order and filed it with the clerk of court on July 10.

Dyanne appealed, contending that the circuit court lost competency in this case by failing to enter a disposition within 10 days of the dispositional hearing, as required by Wis. Stat. section 48.427(1). She built her argument on the fact that the circuit court's written order was not signed and filed within the 10-day limit.

A circuit court loses competency in a termination proceeding when it fails to comply with a time limit "between critical stages within the adjudication process" (¶ 8). Examples of such time limits, as derived from case law, include the 30-day time limit for holding an initial hearing, the 45-day time limit for holding a fact-finding hearing, and the 45-day time limit for holding a dispositional hearing (see ¶ 9). The question before the appellate court in this case was whether the circuit court's failure to comply with the 10-day time limit in Wis. Stat. section 48.427(1), under the circumstances here, implicated a "critical stage" in the "adjudication process" (¶ 10).

In a decision authored by Judge Lundsten, the court of appeals concluded that the circuit court did not lose competency, "because it fully adjudicated the TPR proceeding and made all the decisions it was required to make in its oral decision and order prior to expiration of the 10-day time limit" (¶ 11). Having fully made all necessary rulings orally, there was nothing left for the circuit court to adjudicate. "It follows that the `critical stages within the adjudication process' concluded when the court rendered its oral decision. Moreover, because the 10-day time limit in Wis. Stat. § 48.427(1) had not passed when the circuit court ruled orally, any subsequent failure to comply with that time limit did not deprive the circuit court of competency. The net effect of our holding is that, as long as the required rulings are made within the 10-day time limit, even if they are oral, the court does not lose competency"(¶ 14).

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Insurance

Thom v. OneBeacon Ins. Co., 2007 WI App 123 (filed 6 March 2006) (ordered published 26 Apr. 2007)

Rose was injured while she was riding in a car driven by her sister, Jean. Rose filed against Jean's insurance carrier a liability claim that was different from other claims she and Jean had filed regarding underinsured motorist (UIM) coverage. The issue in this case was whether that negligence claim was barred by the statute of limitation. The circuit court ruled that the statute was tolled while Rose and Jean arbitrated their claims against the insurer for UIM coverage and, thus, the negligence claim was timely.

The court of appeals, in an opinion written by Judge Peterson, reversed. The three-year statute of limitation in Wis. Stat. section 893.54 began running on the date of the accident and expired "well before" Rose filed her amended complaint against Jean (see¶ 9). Rose argued that Wis. Stat. section 631.83(5) tolled all claims between the parties in arbitration.

Conceding that the statute's language did not "clearly support either of the parties' proposed interpretations" (¶ 13), the court held that the context of the statute supported the insurer's position (see ¶ 14). "Because all of the statutory language surrounding Wis. Stat. § 631.83(5), including the statute regulating arbitration and appraisals, applies only to first-party claims, we conclude § 631.83(5) tolls only first-party claims. Here, Rose's new claim against OneBeacon based on Jean's liability is a third-party claim. The statute of limitations on that claim therefore continued to run despite the arbitration, and expired on April 14, 2004, well before Rose filed her amended complaint" (¶ 18).

The court also rejected Rose's arguments that her new claim related back to her original complaint (see¶¶ 19-23) and that her amended complaint was an amendment to conform to the evidence (see ¶¶ 24-25).

Progressive Casualty Ins. Co. v. Bauer, 2007 WI App 122 (filed 20 March 2007) (ordered published 26 Apr. 2007)

Tessa was injured while a passenger on a motorcycle. She alleged that her injuries were caused by the negligence of the motorcycle's driver and its owner, both of whom were insureds under a liability policy. The claim against the owner was based on a theory of negligent entrustment. The policy carried limits of $25,000 per injured person and $50,000 per accident. The insurer filed for a declaratory judgment limiting its exposure to $25,000, but Tessa contended she was entitled to $50,000. The circuit court ruled in Tessa's favor.

The court of appeals, in an opinion authored by Judge Peterson, affirmed. The court held that the decision was controlled by Iaquinta v. Allstate Insurance Co., 180 Wis. 2d 661 (Ct. App. 1993). "Because both negligent operation of the vehicle and negligent entrustment of it involved active negligence, we concluded [in Iaquinta that] both the driver and the owner of the vehicle were entitled to equal - and therefore full - protection under the policy" (¶ 7).

The insurer in this case, however, contended that Iaquinta was "overruled" when the legislature enacted Wis. Stat. section 632.32(5)(f), but the court was not convinced based on the statute's text or its history. "[T]he statute merely allows the policy to prohibit an insured from adding the limit of coverage on one policy `to the limits for similar coverage applying to other motor vehicles.' Wis. Stat. § 632.32(5)(f) (emphasis added). Here, as in Iaquinta, there are no `other motor vehicles.' There is only a single motorcycle and two insureds. Similarly, there are not two `similar coverage[s]' here; there is a single coverage and multiple insureds, both of whom are entitled to full and equal protection under Wis. Stat. § 632.32(3)(a). Section 632.32(5)(f) therefore does not overrule Iaquinta or apply to the situation here" (¶ 11). The court was equally unpersuaded by the insurer's argument that a Legislative Reference Bureau comment supported its construction of the statute (see ¶¶ 12-14).

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Motor Vehicle Law

State v. Dartez, 2007 WI App 126 (filed 22 March 2007) (ordered published 26 Apr. 2007)

A criminal complaint alleged that the defendant was intoxicated and lost control of the car she was driving on a highway. The car left the road and crashed into the bedroom of a private residence, killing an occupant of the home. The defendant allegedly left the scene without rendering aid or identifying herself. The complaint charged her with being the operator of a vehicle involved in an accident resulting in the injury or death of another without immediately stopping at the scene of the accident and rendering assistance, contrary to the hit-and-run statute. See Wis. Stat. § 346.67(1). This statute applies on highways and on a limited number of nonhighway premises not relevant here. See Wis. Stat. § 346.66.

The circuit court determined that an "accident" within the meaning of section 346.67(1) must occur on a highway and that the facts alleged in the complaint show that the accident occurred off the highway because that is where the actual collision occurred. The court therefore dismissed the hit-and-run count of the complaint. The state appealed.

In a decision authored by Judge Vergeront, the court of appeals reversed. "We conclude that when, as here, a vehicle is involved in a collision, the term `accident' in Wis. Stat. § 346.67(1) includes, at a minimum, an operator's loss of control of the vehicle that results in the collision. Because [the defendant's] loss of control of the vehicle occurred on the highway, even though the resulting collision occurred off the highway, we conclude she was `involved in an accident' `upon a highway' within the meaning of § 346.67(1) and Wis. Stat. § 346.02(1). Accordingly, we reverse the circuit court's order dismissing this charge" (¶ 20).

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Open Meetings Law

State ex rel. Citizens for Responsible Dev. v. City of Milton, 2007 WI App 114 (filed 8 March 2007) (ordered published 26 Apr. 2007)

Citizens for Responsible Development (CRD) brought this action against the city of Milton, the Milton City Council, and the Milton Plan Commission (collectively Milton) for allegedly violating the Open Meetings Law, Wis. Stat. sections 19.81-19.98. CRD contended that Milton improperly invoked Wis. Stat. section 19.85(1)(e) as justification for holding 10 closed meetings to discuss and negotiate an agreement to build an ethanol plant in Milton. This statute authorizes closure of a public meeting for the purpose of "[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session" (emphasis added). The circumstances under which a government's competitive or bargaining reasons require a closed session is a matter of first impression.

In a decision authored by Judge Dykman, the court of appeals concluded that Milton's "competitive or bargaining reasons" did not require closed sessions for the entirety of its meetings discussing the proposed ethanol plant (see ¶ 12). The court was not persuaded by Milton's argument that the confidentiality request of the entity proposing to construct the ethanol plant required Milton to close all discussions about the proposed plant. "The legislature's choice of the word `require' thus connotes its intent to limit the exception under § 19.85(1)(e) to those situations where the government's competitive or bargaining reasons leave no other option than to close meetings. Thus, a government may have a valid reason for desiring to close its meetings that nevertheless fails to establish closed meetings are required. While a private entity with which the government is negotiating might request confidentiality, and such a request might provide a reason for a government to desire holding closed meetings, that request does not require the government to hold closed meetings to preserve the government's competitive or bargaining interests"(¶ 14).

Among other things the court also rejected Milton's argument that it was allowed to close all meetings concerning the plant for fear of losing the project developer to another municipality or revealing purchase negotiations with the owner of the land on which the plant would be built. With respect to the latter, Milton claimed a desire to avoid attracting interest in the land from other potential buyers. However, the owner was not required to keep the negotiations confidential. "Possible competition for [the] land did not justify closed meetings" (¶ 16). Moreover, even if secrecy somehow deterred competition from other municipalities, "it is not apparent that such a reason would support holding closed meetings" (¶ 17). "We cannot accept the proposition that a governing body's belief that secret meetings will produce cost savings justifies closing the door to public scrutiny" (id.).

The appellate court agreed with Milton that portions of meetings that would have revealed its negotiation strategy with the project builder or its negotiation strategy for the purchase of land could be closed under Wis. Stat. section 19.85(1)(e). "Developing a negotiation strategy or deciding on a price to offer for a piece of land is an example of what is contemplated by `whenever competitive or bargaining reasons require a closed session.' See Wis. Stat. § 19.85(1)(e). However, just because those concerns were present for portions of some of the meetings does not mean the entirety of the meetings fell within the narrow exception under § 19.85(1)(e). Thus, we do not agree that Milton was justified in closing all parts of all meetings concerning the proposed ethanol plant based on the reasons it has asserted" (¶ 19).

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Real Property

Hall v. Gregory A. Liebovich Living Trust, 2007 WI App 112 (filed 14 March 2007) (ordered published 26 Apr. 2007)

Liebovich purchased lakefront property, tore down the property's existing house, and built a new house. His neighbors, the plaintiffs in this action, complained that the new house violates a restrictive covenant shared by several properties by being too close to the lake. The trial court agreed but refused to issue an injunction ordering Liebovich to tear down the offending part of his house (the deck) and instead awarded monetary damages to the neighbors. The court found that tearing down the deck would cost between $100,000 and $200,000 and would destroy "the central feature of the … house." This, the court found, would outweigh any benefit to the plaintiffs from having the offending portions of Liebovich's house removed. The court did enjoin Liebovich from further violating the restriction by extending or enclosing his deck and ordered that if the deck were ever removed, it could not be rebuilt. The neighbors appealed this remedy, arguing that they are entitled as a matter of law to have the deck razed. In a decision authored by Judge Brown, the court of appeals affirmed.

The plaintiffs argued that a court must issue an injunction to enforce a restrictive covenant unless it finds that the hardship resulting from an injunction would be extremely disproportionate to the hardship resulting from no injunction, or unless, in addition to a less-than-extreme disproportion of hardships, the court finds other factors weighing against an injunction. The appellate court responded that "[t]here is no support for this proposed `test' in our case law or statutes" (¶ 12). "[T]he grant or denial of injunctive relief is a matter for the trial court's discretion. The court's findings of fact were not erroneous, and it was reasonable on those facts to conclude that forcing Liebovich to raze and rebuild would be inequitable. We reject the [plaintiffs'] attempt to turn a discretionary decision into a series of minute questions of law" (¶ 1).

Liebovich, for his part, argued that he and his predecessor had obtained a "prescriptive right" to violate the deed restriction. He relied on Wis. Stat. section 893.28 ("Prescriptive Rights by Adverse User"). The appellate court refused to apply this statute to the situation before it. "We ... reject Liebovich's claim that he had a prescriptive right to violate the covenant because the statute he relies on applies only to the adverse use of the land of another person, not to violations of deed restrictions on one's own land" (¶ 2).

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Worker's Compensation Law

Edward Bros. Inc. v. Labor & Indus. Review Comm'n, 2007 WI App 128 (filed 7 March 2007) (ordered published 26 Apr. 2007)

A worker hurt his back on the job in January 2001 and was deemed temporarily totally disabled. While still receiving treatment, he died in September 2003 of unrelated causes. At that point the worker had not applied for permanent, partial disability benefits. His dependents sought death benefits under Wis. Stat. section 102.47(2). An administrative law judge (ALJ) denied the claim, but the Labor and Industry Review Commission (LIRC) reversed the ALJ. The circuit court in turn reversed LIRC.

The court of appeals, in an opinion written by Judge Brown, reversed the circuit court. "The death benefit is a right belonging to the dependents, and it is separate from the worker's right to permanent partial disability payments during life. There is nothing in the statutes that denies the dependents their death benefit simply because the worker happens to die too soon" (¶ 1). "[W]hile § 102.51(5) prohibits a dependent from being a party to a worker's claim for disability benefits, a dependent claiming a death benefit is prosecuting only his or her own claim. This is plain from the language of the statute, but that is not all; if it were otherwise, there could be no death benefit ever, since by its very nature (and by statute) a death benefit can be claimed only by a dependent" (¶ 10).

"We recognize, as did [LIRC] in its decision below, that there may be cases in which a worker's death before permanent partial disability is established could prevent the award of a death benefit because of proof problems. Where a worker died without filing any disability claim at all, for example, or died so soon after the injury that there could be no realistic assessment of the injury's long-term effect, it might be impossible to establish what the permanent partial disability compensation would have been, and thus what the death benefit should be. However, this is not such a case. At the time of his death, Vanderzee was very close to, if not at, his healing plateau, and there was ample evidence to conclude that he would have had an approximately five percent permanent functional disability" (¶ 13).

The position advocated by the employer would lead to a "strange system" in which a "meaningless distinction based merely on fate" determined benefits. If such were the case, "a worker's dependents' death benefit would, incredibly, be extinguished by the worker's death, if that death occurred in the few days or weeks before permanent partial disability was conclusively established; while another worker's dependents would get benefits simply because the worker happened to die a few days or weeks after permanent partial disability was established" (¶ 14).

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