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    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.

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    Vol. 82, No. 4, April 2009


    Third-party Beneficiaries – Municipalities

    Becker v. Crispell-Snyder Inc., 2009 WI App 24 (filed 14 Jan. 2009) (ordered published 23 Feb. 2009)

    The Beckers decided to build a subdivision in the town of Somers, which “forced” them to use the town’s long-time engineering firm, Crispell-Snyder. The town told the Beckers that the engineering fees would be within 1 to 2 percent of those charged by other engineers and that an “extra 25% in their line of credit would not actually be used” (¶ 4). “Crispell-Snyder billed the town for its time spent on the Beckers’ development, pursuant to its oral public works contract with the town. All the while, the agreement made the Beckers liable for Crispell-Snyder’s invoices. The town simply withdrew the money from the Beckers’ line of credit. It approved every invoice, relying on Crispell-Snyder’s good faith to bill for only reasonable and necessary services” (¶ 5). The town ignored the Beckers’ objections and refused to allow them to even see the invoices until “after the fact” (id.). Events culminated in the town exhausting the Beckers’ line of credit and then billing them for an excess of $177,000 plus another $87,000 incurred in a dispute with an excavation contractor.

    The Beckers sued Crispell-Snyder, claiming they were third-party beneficiaries to the town’s engineering contract. Crispell-Snyder asserted it was immune from suit based on Sussex Tool & Supply Inc. v. Mainline Sewer & Water Inc., 231 Wis. 2d 404, 605 N.W.2d 620 (Ct. App. 1999). The circuit court agreed with the Beckers, and the jury awarded them damages because Crispell-Snyder charged for unnecessary work and overcharged for change orders, and its own negligence caused the dispute with the excavator. Crispell-Snyder appealed.

    The court of appeals, in an opinion authored by Chief Judge Brown, affirmed the circuit court judgment in the Beckers’ favor. The court of appeals concluded that the Beckers were third-party beneficiaries to the contract between the town and its engineers. This case presented the “flip side” of Sussex Tool, a decision in which the court held “that the complainant’s business establishment was not a third-party beneficiary to a road construction contract since it was only incidentally located near the project like every other business on that street. But here, the town of Somers recruited Richard and Jon Becker to build a subdivision in the town and the oral contract between the town and the engineering firm, Crispell-Snyder, was made for the express purpose of furthering this subdivision development. Further, as a condition of development, the Beckers were obliged to pay Crispell-Snyder’s bills, creating a creditor-debtor relationship. These facts gave the Beckers their third-party beneficiary status. The Beckers thus had standing to sue on the contract between the town and Crispell-Snyder” (¶ 1).

    The court applied the three-factor totality-of-the-circumstances test (see ¶¶ 15-16). It deemed it “unimportant as to which side of the creditor debtor relationship the third party lays. The contract between the town and Crispell-Snyder imposed a liability on the Beckers because the parties knew that the Beckers would be left holding the bag. Conversely, the parties knew that in return for paying, the Beckers would receive the engineering services it needed to see the project through” (¶ 16).

    The court next held that sufficient evidence supported the jury’s damages determinations for the excessive change-order charges, the over-inspection fees, and the excavator’s lawsuit. Finally, Crispell-Snyder asserted common-law immunity based on case law. The court held, however, that any claim of immunity was waived when Crispell-Snyder failed to assert it in a timely manner (see ¶ 31).

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    Criminal Procedure

    Confessions – Suppression Hearings – Sentencing

    State v. Young, 2009 WI App 22 (filed 9 Dec. 2008) (ordered published 23 Feb. 2009)

    Young pleaded guilty to first-degree intentional homicide after the circuit court denied his motion to suppress statements he made to police officers. The court of appeals affirmed Young’s conviction in an opinion written by Judge Curley.

    On appeal Young contended that the trial judge should have explained why he found the detectives’ testimony more credible than Young’s at the suppression hearing. Five different detectives testified that Young did not demand a lawyer. Young conceded that no case law supports his position that a judge must explain why he or she finds one witness more credible than another (see ¶ 18). The trial judge’s “implicit finding” was that Young was not credible, which adequately supported the factual finding (see ¶ 20).

    The court also held that no abuse of discretion occurred in the circuit court’s imposition of sentence and its denial of a postconviction motion for sentence modification. Trial judges are “not required to explain the mathematical breakdown of how each sentencing factor relates to the term of confinement” (¶ 29).

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    Venue – Wis. Stat. section 971.19(12) – Place of Trial for Certain Election and Campaign Violations

    State v. Jensen, 2009 WI App 26 (filed 15 Jan. 2009) (ordered published 23 Feb. 2009)

    Former state representative Scott Jensen was convicted in Dane County circuit court of misconduct in public office (see Wis. Stat. § 946.12(3)) for using state resources for political campaign purposes. The court of appeals reversed that conviction because of trial errors and remanded for a new trial. While that appeal was pending, the legislature amended Wisconsin’s venue statute to provide that defendants charged with certain election and campaign violations are to be tried in the county where the defendant resides. See Wis. Stat. § 971.19(12). Relying on this new statute, the defendant moved the Dane County circuit court to transfer his case to Waukesha County (his county of residence). The Dane County judge denied the motion, concluding that this statute did not apply to the charges pending against the defendant. In a decision authored by Judge Dykman, the court of appeals affirmed.

    According to the new statute, there are three categories of matters in which proper venue would be in the defendant’s county of residence: 1) in an “action for a violation of [Wis. Stat.] chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19”; 2) “for a violation of any other law arising from or in relation to the official functions of the subject of the investigation”; and 3) in “any matter that involves elections, ethics, or lobbying regulation under subch. 5 to 12 [chs. 5 to 12], subch. III of ch. 13, or subch. III of ch. 19” (¶ 8).

    The parties agreed that the first of these three categories was not relevant in this case. The court concluded that the second category only involves investigations authorized by the Government Accountability Board (GAB) (see ¶ 9); Jensen was not the subject of a GAB investigation. The third category of matters in which the new venue statute applies is in “matters involving elections, ethics, or lobbying regulation under Wis. Stat. chs. 5 to 12, subchapter III of chapter 13, or subchapter III of chapter 19. Jensen was charged with misconduct in public office under Wis. Stat. § 946.12(3). While the elections and ethics chapters provide one source of Jensen’s overall duties as a public officer, and violation of those duties formed the basis for one element of the misconduct in public office charge, [the court did] not agree that misconduct in public office under § 946.12(3) is therefore a ‘matter that involves elections, ethics, or lobbying regulation under subch. 5 to 12 [chs. 5 to 12], subch. III of ch. 13, or subch. III of ch. 19.’ Rather, § 946.12(3) is a criminal statute found under an entirely separate chapter. If the legislature had intended to include misconduct in public office charges within the final category of § 971.19(12), it could have easily done so by including that statute in the enumerated statutes” (¶ 12).

    Accordingly, the appellate court concluded that the defendant’s case is not within the coverage of the new venue statute (see id.).

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    Family Law

    De Novo Review of Family Court Commissioner’s Decision – Wis. Stat. section 757.69(8)

    Stuligross v. Stuligross, 2009 WI App 25 (filed 30 Dec. 2008) (ordered published 23 Feb. 2009)

    Robert Stuligross and Susan Stuligross (now known as Susan Brunke) were divorced in 2003. In April 2007, Brunke filed a motion seeking 1) to have Stuligross found in contempt for failing to obey previous postjudgment orders, 2) to amend the child support order, and 3) to require Stuligross to contribute to Brunke’s costs and attorney fees. The family court commissioner held a hearing and issued an order in Brunke’s favor.

    Stuligross timely filed a motion pursuant to Wis. Stat. section 757.69(8) requesting a de novo hearing on the issues addressed in the family court commissioner’s order. This statute provides as follows: “Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo” (emphasis added).

    The circuit court declined to take testimony at the hearing; it believed that the task of the circuit judge in these circumstances is to review the court commissioner’s decision (see ¶ 3). Ultimately the circuit court denied Stuligross’s motion to overturn or modify the court commissioner’s orders. This appeal followed.

    In a decision authored by Judge Kessler, the court of appeals reversed. It concluded that “a party who requests a ‘hearing de novo’ is entitled to a hearing that includes testimony from the parties and their witnesses, rather than simply a review of what occurred before the family court commissioner” (¶ 12). Said the court, “The plain meaning of Wis. Stat. § 757.69(8), specifically the phrase ‘hearing de novo,’ required the trial court to afford Stuligross an opportunity to present testimony at the hearing. The commonly accepted meaning of a de novo hearing is ‘[a] new hearing of a matter, conducted as if the original hearing had not taken place.’ Black’s Law Dictionary 738 (8th ed. 2004). A de novo hearing requires a fresh look at the issues, including the taking of testimony (unless the parties enter into stipulations as to what the testimony would be). The hearing is literally a new hearing, not merely a review of whatever record may have been made before the family court commissioner” (¶ 13). 

    Accordingly, the court of appeals reversed the decision of the circuit court and remanded the matter to the circuit court for a de novo hearing. At that hearing Stuligross “is entitled, pursuant to [§ 757.69(8)], to a fresh look at the issues, based on testimony presented to the court, not the family court commissioner” (¶ 14).

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    Defamation – Retractions

    DeBraska v. Quad Graphics Inc., 2009 WI App 23 (filed 21 Jan. 2009) (ordered published 23 Feb. 2009)

    DeBraska, the former head of a police union, sued Quad Graphics (a magazine publisher), Milwaukee Magazine, and Chandler concerning an allegedly defamatory article written by Chandler. DeBraska also claimed that the magazine’s later retraction was insufficient. The circuit court denied a defense motion for judgment on the pleadings.

    The court of appeals reversed in an opinion authored by Judge Curley. A “valid pre-suit notice” must contain the five elements set forth in Wis. Stat. section 895.05(2). “It must: (1) be in writing; (2) be directed to those alleged to be responsible or liable; (3) specify the article and statements therein which are claimed to be false and defamatory; (4) contain a statement of what are claimed to be the true facts; and (5) be given before any civil action is commenced” (¶ 15). Regardless of whether strict compliance with the statute is necessary, the court held that DeBraska’s notice was insufficient and failed to amount to substantial compliance (see ¶ 16). DeBraska’s letter to the publisher effectively asked a third party (the police chief) to satisfy DeBraska’s obligation to provide the “true facts” for the retraction, but third parties cannot satisfy this duty (see ¶ 17). And even if they could, the police chief’s later letter did not provide the “true facts.” In light of DeBraska’s invalid notice, he could not validly assert that the defendants somehow failed to exercise reasonable diligence in ascertaining the true facts
    (see ¶ 20).

    Nor could DeBraska “revive” his claim. “Were we to conclude that DeBraska could again attempt to comply with the notice requirements of § 895.05(2), the ‘[b]efore any civil action shall be commenced’ language would be rendered meaningless” (¶ 23). Moreover, “[a]ffording DeBraska another opportunity to comply with the notice requirements found in Wis. Stat. § 895.05(2) and allowing him to refile a lawsuit – now more than two years after the article’s publication – would do little to further the policy behind the statute” (¶ 24).

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