Wisconsin
Lawyer
Vol. 81, No. 10, October
2008
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
Administrative Law
Benefits - Medicaid - Rules
Cholvin v. Wisconsin
Dep't of Health & Family
Servs., 2008 WI App 127 (filed 24 July 2008) (ordered published
27 Aug. 2008)
Cholvin, who suffers from multiple sclerosis and other
disorders, was ruled
ineligible for various home and community-based long-term-care services.
Specifically,
"COP-W/CIP-II is a Medicaid waiver
program under which individuals with disabilities and the
elderly, who would otherwise qualify for Medicaid institutional care,
are instead permitted
to receive services in a home or community setting" (¶ 3).
"The services available
under COP-W/CIP-II are comprehensive, largely nonmedical support
services that are designed
to make it possible for disabled or elderly people to continue to live
in their home
communities despite suffering from disability or long term illness"
(¶ 4). Cholvin had
been eligible under earlier iterations of the program, but a 2005
"instruction" on
program eligibility resulted in a finding that she was no longer
eligible. The circuit
court upheld the Department of Health and Family Services' (DHFS's)
determination that
Cholvin was ineligible.
The court of appeals reversed in a decision written by Judge
Bridge. In essence,
the court held, the instruction was a rule that had not been properly
promulgated under
Wis. Stat. section 227.10. The case was remanded for a determination of
Cholvin's
eligibility irrespective of the challenged instruction. The instruction
attempted to deal with
persons whose care needs changed daily. Under the older procedure,
program screeners
assessed the level of care based on an applicant's "bad" day.
The new instruction in
effect required at least 10 "bad" days per month
(see ¶ 19). Since the instruction announced
a "general policy" and did not address a specific case or
applicant, it amounted to a
rule. "As Cholvin points out, before a screener can determine
whether the instruction does
or does not affect an individual, the screener must first apply the
instruction to
each individual applicant. In other words, § 1.12D
applies to all applicants even though it may
affect only some of them. We therefore conclude that
§ 1.12D is a policy of
general application" (¶ 25). Despite DHFS's characterizations,
nothing suggested that the
instruction was "simply advisory"
(see ¶ 29). Nor did the instruction fall within an
exception for explanatory or informational material
(see ¶ 33).
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Civil Procedure
Sanctions - Dismissal
Lister v. Sure-Dry
Basement Sys. Inc., 2008 WI App 124 (filed 10
June 2008)
(ordered published 27 Aug. 2008)
Lister sued a home-repair contractor for allegedly breaching its
warranty and
for damages. He failed to appear on an agreed-upon date for a deposition
despite
counsel's reasonable efforts to notify him. Before the date of Lister's
second scheduled
deposition, his counsel learned that Lister had been seeking cancer
treatment in Mexico.
Lister failed to appear at the second deposition. The defendant filed
motions to dismiss
Lister's complaint but the circuit court gave Lister two weeks to
provide medical
documentation of his illness. When Lister failed to provide the required
reports in a timely
manner, the circuit court dismissed the complaint.
The court of appeals affirmed in an opinion authored by Judge
Kessler. Dismissal is
an appropriate sanction for a party's egregious behavior. The circuit
court did not
abuse its discretion in dismissing the complaint, particularly because
Lister was aware
that his failure to provide the medical reports would trigger dismissal
in light of his
two failures to appear for a deposition.
Clerk of Courts - Papers Delivered after Normal Business Hours -
Validity
of Clerk's Policy of Filing Those Papers on Next Business Day
Hartford Citizens for
Responsible Gov't v. City of Hartford Bd. of
Zoning Appeals, 2008 WI App
107 (filed 25 June 2008) (ordered published 30 July 2008)
The appellant sought certiorari review in the circuit court of a
decision of the
local board of zoning appeals. There is a 30-day statutory time limit
following the filing of
a zoning decision within which to commence a certiorari action in
circuit court.
See Wis. Stat. § 62.23(7)(e)10. On the 30th day following
the filing of the zoning decision
at issue, a representative of the appellant arrived at the Washington
County clerk of
courts office just after the 4:30 p.m. closing time, intent on filing
the papers necessary
to initiate certiorari review. The clerk accepted the papers but did not
file them until
the following day, because the clerk's office has a policy of filing
papers on the day
they are received only if receipt occurs during regular business hours.
As a result, in
the present case the papers seeking certiorari review were not filed by
the clerk until
the 31st day after the zoning decision was filed. The circuit court
subsequently
dismissed the action as untimely filed.
In a decision authored by Judge Neubauer, the court of appeals
affirmed. It
concluded that the clerk of courts properly exercised her discretion in
enforcing the filing
policy described above (see ¶ 2). Said the court, "In
his or her discretion, the clerk may
adopt a policy that is flexible or one that restricts filings to regular
business hours.
The reasonableness of the Washington County Clerk of Circuit Court's
policy of
confining filings to regular business hours is supported by the similar
policy of our supreme
court and the rationale behind that policy. See St. John's [Home v.
Continental Casualty
Co.], 150 Wis. 2d at 44 (concluding that a bright-line rule
requiring filing during usual
business hours would alleviate unpredictability and potential for
abuse)" (¶ 22).
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Corporations
Buy-sell Agreement - Dissolution - Special Magistrate
Ehlinger v.
Hauser, 2008 WI App 123 (filed 24 July 2008) (ordered published
27 Aug. 2008)
Hauser and Ehlinger were equal shareholders in Evald Moulding
Co. (Evald).
Ehlinger later contracted Parkinson's disease, and a dispute over the
disability buyout
provisions of the parties' buy-sell agreement ensued. The circuit court
ruled that the
shareholders were deadlocked and ordered Evald's dissolution under Wis.
Stat. section 180.1430.
Nonetheless, the court held the dissolution in abeyance and later
determined that the
disability buyout provisions were unenforceable. The court also ruled
that Hauser could
use corporate assets to pay the costs of litigating this matter. Hauser
and Evald
appealed only the circuit court's ruling that the disability buyout
provision was unenforceable.
The court of appeals, in an opinion written by Judge Bridge,
affirmed. First,
the circuit court properly found that Ehlinger was totally disabled by
his illness
(see ¶ 25). Second, the agreement was unenforceable because
the corporation's "book value"
could not be reliably determined. Specifically, "missing
documentation" made it impossible
to calculate this value. In summary, the court of appeals held
"that the term `book
value' as used in the Agreement is not indefinite but is ambiguous, and
that the most
reasonable construction of that term is that it refers to a computation
using generally
accepted accounting principles. We conclude further that the absence of
information necessary
to complete the GAAP analysis rendered the disability buyout provisions
unenforceable
because Evald's book value as of March 31, 2001, could not be
determined" (¶ 43). In
attempting to arrive at such a calculation, the circuit court properly
appointed a
certified public accountant to serve as a special magistrate. Although
the circuit court
permitted limited questioning of the special magistrate, this did not
render him an
"expert witness" who was subject to more far-reaching
questioning
(see ¶ 42).
Finally, Evald properly used corporate assets to defend against
Ehlinger's
claims. This was more than a dispute between shareholders, especially
the attacks
against Hauser's preparation of the "corporate books and financial
statements" (¶ 47), and
Evald was more than a "nominal party"; thus, corporate assets
were properly spent on
attorney fees and costs pursuant to section 180.0851.
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Criminal Law
Bail Jumping - Conditions of Release Violated While Defendant
Still in Custody
State v. Dewitt,
2008 WI App 134 (filed 29 July 2008) (ordered published 27 Aug. 2008)
The defendant was charged in three distinct cases. The court
imposed a $500
signature bond in the misdemeanor case and $500 cash bonds in each of
the two felony cases. In
the misdemeanor case and in one of the felony cases, the court included
as a condition
of release that the defendant have no contact with a named victim. The
defendant signed
the signature bond but was held in custody on the cash bonds. While
still in custody he
allegedly called the victim nine times. As a result, he was charged with
nine counts
of bail jumping for violating the no-contact provision of the signature
bond in the
misdemeanor case.
The defendant ultimately pleaded guilty to three of the
bail-jumping counts. He
thereafter sought to withdraw these pleas, contending that the
bail-jumping convictions
were invalid because he was still a prisoner in jail when he violated
the no-contact
order. His claim was anchored in the language of the bail-jumping
statute, which provides
that it is a bail jump to intentionally fail to comply with the terms of
one's bond after
the defendant "[has] been released from custody under ch.
969."
See Wis. Stat. § 946.49(1) (emphasis added). The state
responded that the defendant had technically been released
on the signature bond at the time the calls to the victim were made. The
circuit court
denied the postconviction motion.
In a decision authored by Judge Hoover, the court of appeals
affirmed the
circuit court. It concluded that the term "released" in the
statute quoted above "refers to
the defendant posting the bond, be it signature or cash, and need not be
accompanied by
the defendant's physical departure from the jailhouse" (¶ 14).
In this case the defendant
had three bonds. "He was able to make bond on the misdemeanor
simply by signing it, and
he therefore committed himself to its
conditions. [The defendant] was not obligated to
sign the bond, especially if he knew he would not be posting cash bond.
Thus, while not
physically released, [the defendant] was released as contemplated by
Wis. Stat. § 969.02
when he fulfilled the signature bond" (¶ 17). He was
accordingly liable for bail jumping
when he violated the no-contact provision of his signature bond even
though he was still
in physical custody at the time (because he was unable to post the cash
bonds in his
other cases).
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Criminal Procedure
Search and Seizure - Anticipatory Search Warrants
State v. King,
2008 WI App 129 (filed 22 July 2008) (ordered published 27 Aug. 2008)
The defendant, King, was convicted by a jury of multiple drug
offenses. On appeal
he argued that the trial court erred in denying his motion to suppress
physical
evidence seized during the execution of what he contends was an invalid
anticipatory search
warrant. In a majority decision authored by Judge Curley, the court of
appeals agreed
with the defendant and reversed the conviction.
A Milwaukee Police Department detective applied for a warrant
related to
"certain premises located at 8811, 8813, 8815 West Mitchell, West
Allis, Wisconsin, more
particularly described as a three-unit townhouse." The warrant
stated: "This authorization
is contingent upon law enforcement officers identifying the precise
unit, 8811, 8813
or 8815, in which Michael King resides. No search of any unit is
authorized absent such
a verification, and the authorization extends only to that unit in which
Michael King
resides" (¶ 2). The search warrant was executed at the unit
with the 8813 address,
and evidence recovered there formed the basis for the defendant's
prosecution.
In State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260
(1998), the Wisconsin Supreme
Court described anticipatory search warrants as being "peculiar to
property in transit."
Said the court in that case, "[Such warrants] are based upon an
affidavit showing
probable cause that at some future time (but not presently) certain
evidence of crime will
be located at a specified place" (¶ 17) (citations omitted).
Meyer and the few other published decisions of Wisconsin's
appellate courts dealing with anticipatory search
warrants each involved property in transit to a known residence or
person (or a
somewhat analogous situation). Here, the court of appeals
"refrain[ed] from extending the use
of anticipatory search warrants to encompass situations such as this,
where execution
is conditioned on verification of an individual's address" (¶
24).
The court said that even were it willing to conclude that an
anticipatory search
warrant could be used as it was in this case, the court would
nonetheless "find the
warrant invalid for its lack of particularity" (¶ 25). The
particularity requirement of
the Fourth Amendment, which insists that warrants
"particularly" describe the place to
be searched and the persons or things to be seized, is necessary
"to direct the officer
to the exact place to be searched and to guard against abuses
that prevailed under the
old writs of assistance which left the place to be searched to the
discretion of the
searching officer" (id.) (citations omitted). The appellate court
"agree[d] with
[defendant] King that the search warrant afforded law enforcement the
sole discretion to search
any one of the three addresses specified in violation of the
particularity requirement.
There were no safeguards in the warrant as to how the police were going
to determine the
address" (¶ 27). "Were we to conclude that this language
was sufficiently particular,
we would encourage a crop of search warrants containing alternate
addresses, leaving
law enforcement free to pick the residence they want to search. On the
basis of this
record, it would appear sheer luck allowed law enforcement to choose to
search 8813 West
Mitchell Street. Wisconsin's constitution and the federal constitution
require more than luck.
We cannot conclude that the language in the search warrant referencing
three separate
residences complied with [the] Fourth Amendment and article I, section
11 of
Wisconsin's constitution" (¶ 31).
In a footnote the court observed that "[t]he State does not
argue that the good
faith exception to the rule excluding evidence obtained in violation of
article I, section
11 of Wisconsin's constitution and the Fourth Amendment is applicable
here" (¶ 32
n.8). Accordingly the court did not address the good faith exception.
Judge Fine filed a dissenting opinion in which he contended that
the majority
failed to accord proper deference to the decision of the warrant-issuing
magistrate and
ignored "the common-sense standard we must apply in assessing on
appeal a warrant's validity"
(¶ 33).
Search Warrants - Particularity Requirement - Multi-unit Building
State v.
Jackson, 2008 WI App 109 (filed 10 June 2008) (ordered published
30 July 2008)
The defendant, Jackson, appealed from a judgment of conviction
and sentence that
followed his guilty plea after the circuit court denied his motion to
suppress certain
evidence obtained pursuant to a search warrant. Jackson asserted that
the warrant was
invalid. In a majority decision authored by Judge Kessler, the court of
appeals
reversed the circuit court, concluding that "the warrant failed to
establish the
particularity required for the search of one unit in a multifamily
residence, and failed to
establish probable cause for the search of the building as a whole or
either unit therein" (¶ 1).
A judicial court commissioner issued a search warrant for
"certain premises
occupied by Adrian Jermaine Jackson," described as: "Address
of 4124 N. 21st Street is a
two-story duplex residence." The physical description of the
exterior of the building was
repeated verbatim from the affidavit presented in support of the
warrant. There was no
description of any portion of the interior of the residence. The warrant
identified the crime
for which evidence was sought as possession of a firearm by convicted
felon in violation
of Wis. Stat. section 941.29. The affidavit in support of the
warrant included a
representation that a "reliable confidential informant ... within
the past eight days, went to
4124 N. 21st Street and observed Adrian Jackson in possession of
two-semi [sic]
automatic pistols at the residence of 4124 N. 21st Street in the City
and County of Milwaukee"
(¶ 3). The affiant further represented that county jail booking
records from eight
months earlier listed the same address for Adrian J. Jackson
(see id.). However, the affidavit "provides the issuing
magistrate with no factual information (e.g. utility billing,
property tax records, driver's license, vehicle registration at the
address, or reports
from neighbors or police surveillance) which tends to indicate what, if
any, portion of
the duplex Jackson lives in or controls" (¶ 4).
The particularity requirements of the federal and state
constitutions mean that
a search warrant must sufficiently describe the place to be searched so
that the
officer can with reasonable effort ascertain and identify the place
intended
(see ¶ 8). "If the location to be searched is not
described with sufficient particularity to inform
officers which unit in a multi-unit building they are to search, the
particularity required by
the Fourth Amendment has not been satisfied" (¶ 9) (citation
omitted). The search warrant
in this case refers to the target premises as a "two-story duplex
residence." A
duplex is defined in a recognized dictionary as being, among
other things, "a two-family
house" (see ¶ 13) (citation omitted).
In this case the affidavit in support of the warrant reported
that an informant
observed the defendant in possession of the pistols "at" the
residence. "The Affidavit
does not report that anyone - informant, officer, or neighbor - has ever
seen guns
in any particular part of the building. The Affidavit does not
report anyone saying they
have seen Jackson (with or without guns) in any particular unit
of the building. Neither
the Affidavit nor the warrant identify which portion of the two-family
residence is to
be searched. The unit of the duplex `occupied by Adrian Jermaine
Jackson' is not, in
any way, otherwise identified ... The Affidavit reports no investigation
by law
enforcement beyond looking at a booking record for Jackson from eight
months earlier that
identifies as his residence the address common to the whole duplex. Not
a shred of evidence
presented to the magistrate hints at which unit Jackson occupied"
(¶¶ 14-15). On these facts
the appellate court concluded that the search warrant did not describe
with particularity
the unit in the duplex to be searched (see ¶ 28).
The court also rejected the state's argument that the affidavit
in support of
the warrant established probable cause to search the
entire building. "To prevail on the State's `whole building'
theory of the search warrant, there must be probable cause
in the Affidavit to search each unit in the building, or there must be
probable cause
to search the entire building" (¶ 18). The appellate court
concluded that "[f]rom the
meager information in the Affidavit here, a magistrate could not
reasonably infer that there
is probable cause to believe Jackson had control of and/or unrestricted
access to both
of the two living units in the building searched or that evidence of
Jackson's possession
of guns was probably going to be found in the upper unit, in the lower
unit, in the
basement, in the garage, or in the trash can" (¶ 23). In sum
the court held that the
issuing magistrate was not provided with probable cause to issue a
warrant to search either
the entire building or a specific unit thereof
(see ¶ 28).
Judge Fine filed a dissenting opinion.
Venue - Receiving Stolen Property Cases
State v.
Lippold, 2008 WI App 130 (filed 22 July 2008) (ordered published
27 Aug. 2008)
The defendant was charged in Milwaukee County with the crime of
receiving stolen
property. See Wis. Stat. § 943.34. The case involved
numerous respirators that had been
stolen from a hospital in Milwaukee County. The investigation led to an
Illinois
company that claimed to have purchased the missing respirators from the
defendant, a vendor
of medical devices and equipment. When questioned by police, the
defendant claimed that
he purchased the respirators from a man named "Steve" at a
restaurant in Kenosha County.
A jury in Milwaukee County convicted the defendant of seven counts of
receiving
stolen property.
On appeal the defendant contended that the trial court erred in
failing to dismiss
the charges against him because the state never established proper venue
in Milwaukee
County. He argued that no direct evidence was presented during the trial
that he received
the equipment in Milwaukee County or transported it through the county.
He further
argued that "when a person is charged with the crime of receiving
stolen property, the
county where the property was stolen is insufficient to establish
venue" (¶ 8).
In a decision authored by Judge Curley the court of appeals
affirmed the
convictions. The term venue refers to the locality of the
prosecution; it sets the particular
judicial district in which a criminal charge is to be filed and in which
it will be tried
(see ¶ 9). "Although venue in Wisconsin must be proven
beyond a reasonable doubt, it is not
an element of the crime, but rather a matter of procedure, which refers
to the place
of trial" (¶ 10). Proper venue can be proved either by direct
or by circumstantial evidence.
In this case the court concluded that "because the crime of
receiving stolen
property requires more than two acts, and one of the acts is that the
property must be stolen
and that act occurred in Milwaukee County, venue was properly
established" in Milwaukee
County (¶ 16). Moreover, the court held that there was ample
circumstantial evidence
adduced at trial that the defendant actually possessed the stolen
property in Milwaukee
County (see ¶ 1). Said the court, "The facts here point
to [the defendant] being the thief,
as well as the receiver of stolen property" (¶ 28).
Restitution - Prisoner Accounts - Gifted Funds
State v. Greene,
2008 WI App 100 (filed 12 June 2008) (ordered published 30 July 2008)
The defendant is a prisoner in the custody of the Department of
Corrections (DOC).
He appealed an order of restitution in which the circuit court directed
the DOC to
distribute 10 percent of his prison "wages, earnings and
accounts" to pay restitution. The
defendant argued that the circuit court lacked the authority to direct
DOC to access
his prison accounts (which apparently included gifted funds from friends
and family) to
pay restitution. In a decision authored by Judge Higginbotham, the court
of appeals
affirmed the restitution order.
Section 973.20 of the Wisconsin Statutes governs restitution in
criminal cases.
Circuit courts are required under section 973.20(13)(a) to consider
several factors in
determining whether to order restitution and the amount thereof,
including a
defendant's ability to pay and financial resources
(see ¶ 11). The court of appeals concluded that
"`financial
resources' refers to all
financial resources available to the defendant at the time of the
restitution order,
including gifted funds, except where otherwise provided by
law. Because a circuit court may consider all sources of
funds held by a defendant in determining the amount of restitution,
it follows that a court may also order a defendant to pay restitution
out of all funds
held or available to a defendant, including gifted funds. We therefore
conclude that,
under § 973.20, a circuit court has the authority to order a
defendant to pay restitution
from all of his or her `financial resources,' including gifted funds,
available at the time
of the restitution order and as funds become available to the defendant
at a later time"
(¶ 12).
Accordingly, the appellate court held that the circuit court in
this case
properly ordered the defendant to use money from his prison accounts,
which presumably
includes gifted funds, to satisfy his restitution obligation
(see¶ 21).
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Employment Law
Unions - Signs - Classrooms
Milwaukee Bd. of Sch.
Directors v. Wisconsin Employment Relations
Comm'n, 2008 WI App 125 (filed 1 July 2008) (ordered published
27 Aug. 2008)
A teachers' union (MTEA) and the Milwaukee school board were
unable to reach a
collective bargaining agreement. Teachers wore buttons and posted
placards in their
classrooms that stated "Attract and Retain." School
administrators ordered removal of the signs
(not the buttons) on the ground that their posting violated a policy
prohibiting
political advocacy. The MTEA filed a complaint with WERC, which
concluded that the board had
not shown sufficient cause to exclude the signs. The circuit court
affirmed
WERC's ruling.
The court of appeals affirmed in an opinion written by Judge
Wedemeyer.
"The issue in this case is whether WERC erred in ruling that the
Board violated MERA by
prohibiting teachers from displaying the union support signs in their
classrooms. The trial
court affirmed WERC's determination" (¶ 7). The court applied
the due weight standard of
review, because "WERC has some expertise in deciding these issues,
but does not satisfy
all the requirements for great weight deference. Likewise,
de novo review is not appropriate as the issue is not one of
first impression for WERC" (¶ 11). The court of appeals
held that WERC's decision was a "thoughtful and well-reasoned
analysis" of the issues (¶ 13). The signs were unlikely to
"provoke any more questioning or distraction than the
teacher's other personal postings, which are specifically permitted by
the Board" (¶ 18).
Nor would WERC's decision "open the door to more questionable union
activities within
the classroom" (¶ 19).
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Insurance
Commercial Crime - Dishonesty Policy
Meriter Health Servs.
Inc. v. Travelers Cas. & Sur.
Co., 2008 WI App
132 (filed 17 July 2008) (ordered published 27 Aug. 2008)
Meriter Health Services (Meriter) sued its insurer, Travelers,
after Travelers
denied coverage under a "commercial Crime" insurance policy.
The claim involved a theft by
an employee of nearly $500,000. The embezzled funds were stolen from an
account funded
by staff physicians for various activities. The circuit court granted
summary judgment
in favor of Travelers.
The court of appeals affirmed in an opinion written by Judge
Bridge. The first
issue was whether Meriter "owned" the account. The court held
that Meriter did not own
the account in the sense of possessing or controlling it. For example,
Meriter had no
"signatory authority or the ability to withdraw from the
account" (¶ 18). For similar
reasons, Meriter did not "hold" the account within the meaning
of the insurance policy. The
court also observed that Meriter had omitted from its application this
account as among
the property it held for purposes of the policy
(see ¶ 22). Finally, Meriter was not
"legally liable" for this account within the meaning of the
policy. "We begin by observing
that the Travelers policy covers Meriter's direct loss of property
rather than damages
incurred by Meriter to a third party. This is because the policy is an
employee
dishonesty policy, otherwise referred to as a fidelity policy, rather
than a liability policy.
The two types of policies insure against different risks. Whereas a
liability policy
covers the liability of the insured to a third party, a fidelity policy
serves to indemnify
the insured for the loss of property the insured sustains due to
employee dishonesty.
Thus, the Travelers policy does not cover Meriter's vicarious liability
for damages to a
third party" (¶ 26).
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Real Property
Riparian Rights - Easements
Anchor Point Condominium
Owner's Ass'n v. Fish Tale Props.
LLC, 2008 WI App 133 (filed 3 July 2008) (ordered published 27
Aug. 2008)
Anchor Point (APCA) filed a declaratory judgment action and
sought an
injunction against Fish Tale Properties to prevent the latter from using
APCA's piers and
boat slips. APCA and Fish Tale were located on two adjacent lots. APCA's
property abutted
a lake. Documents conveyed to Fish Tale the right to use APCA's piers,
docks, and
boat slips. The circuit court granted summary judgment to Fish Tale.
The court of appeals reversed in a decision authored by Judge
Dykman. The
central issue concerned whether the "use of pier and boat slip
space is a riparian right."
The court held it was (see ¶ 9). The court rejected multiple
arguments by Fish Tale to
the effect that "pier use" is not a riparian right. Its status
as a riparian right was
critical because Wis. Stat. section 30.133(1) bars the transfer of
riparian rights. "Fish
Tale argues that our interpretation of Wis. Stat. § 30.133(1)
means the non-riparian
owner with an easement to the water may only cross the land and walk
only to the water's
edge, but must stop short of placing his or her toes in the water. We
disagree. The right
to access the water exists over land. Where land reaches navigable
water, the land ends
at the ordinary high water mark. Once beyond the ordinary high water
mark in navigable
water, the public can enjoy Wisconsin's waters.
See Wis. Const. art. IX, § 1. But this
does not include the use of a riparian owner's piers or boat slips.
Placing piers and
boat slips is a right granted only to riparian owners.
See Wis. Stat. ch. 30. The right of riparian owners to install
piers necessarily prevents the public's right to use
every square inch of Wisconsin's waters; it is often impossible to fish,
swim, or sail under
a pier or boat slip. Fish Tale's valid easement over APCA's land to
access the water
allows it to cross the ordinary high water mark to enjoy the publicly
owned water, a right
distinct from using APCA's piers and boat slips" (¶ 17).
Finally, APCA was not barred
by equitable estoppel from attacking Fish Tale's riparian rights.
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