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    Wisconsin Lawyer
    October 01, 2011

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 10, October 2011

    Appellate Procedure

    Unresolved Issues – Insurance Coverage – Stipulations

    Brown v. Kuester, 2011 WI App 120 (filed 27 July 2011) (ordered published 30 Aug. 2011)

    In this relatively short per curiam opinion, the court of appeals held that it had appellate jurisdiction because the parties had litigated “all that is necessary” to permit the dismissal of an insurer, Tokio Marine, from the action. While driving a leased automobile, Kuester injured two people in another vehicle. Kuester was uninsured. Tokio Marine insured a Nissan entity that serviced Kuester’s car lease. Tokio Marine moved for summary judgment on grounds it had no coverage for the accident. The circuit court ruled, however, that Tokio Marine’s maximum exposure was $50,000 per occurrence (see
    ¶ 2). Tokio Marine then moved to be dismissed upon payment into court of its policy limits, $50,000.

    The court of appeals held that the case involved no separate claims left unresolved by earlier rulings. Unlike three cases discussed in the opinion, this “case does not present like circumstances because there are no unresolved separate claims that the parties have simply put off until after appeal or that can simply be revived after appeal. Under the current ruling, Tokio Marine only owes $50,000 and has paid that sum. Because a trial on Tokio Marine’s obligation would only result in a judgment for $50,000, an amount Tokio Marine concedes it owes under the circuit court’s coverage determination, the only claim to be litigated was fully resolved. The stipulation premised on the correctness of the coverage determination does not preclude a redetermination of the financial obligations of Tokio Marine under a different coverage determination” (¶ 5).

    Here, the parties stipulated to a settlement of the damages portion of the plaintiffs’ claims against Tokio Marine. Thus, “[t]he parties have settled the issues of damages and the question of coverage and limits of liability are ripe for appeal. ... We conclude that no party waived the right to appeal by stipulating to Tokio Marine’s dismissal from the action”
    (¶ 7).

    Environmental Law

    Water Levels – Public Trust

    Rock-Koshkonong Lake Dist. v. DNR, 2011 WI App 115 (filed 21 July 2011) (ordered published 30 Aug. 2011)

    The Wisconsin Department of Natural Resources (DNR) set target water levels for Lake Koshkonong, which is an “impounded lake on the Rock River” (¶ 1). Various groups petitioned the DNR to raise the levels. The DNR issued an order rejecting the petition, which was affirmed by an administrative law judge and the circuit court.

    The court of appeals affirmed in an opinion authored by Judge Higginbotham. The court reviewed de novo the DNR’s interpretation of Wis. Stat. section 31.02(1), concluding that “(1) the only reasonable construction of ‘protect property’ under the statute does not require the DNR to consider the economic effects of its water level determinations on residential property values, business income and tax revenue; (2) the DNR did not exceed the scope of its authority under § 31.02(1) by considering the potential effects proposed water levels would have on adjacent wetlands; and (3) the DNR did not exceed the scope of its authority under the statute by considering wetland water quality standards under § NR 103. Accordingly, we affirm the circuit court order affirming the DNR’s order”
    (¶ 4).

    As to the first issue, a consideration of “property values and similar economic factors … would have no logical stopping point” (¶ 43). The second issue implicated the public-trust doctrine under Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972). “The Just court’s discussion of lands adjacent to or near navigable waters did not distinguish between those lying below the ordinary high water mark, and those lying above this mark. While it is the existence of navigable water that triggers the DNR’s jurisdiction under Wis. Stat. § 31.02(1) and the public trust doctrine, … Just establishes that the DNR is not restricted to consideration of impacts below the ordinary high water mark when evaluating public rights in navigable waters. Notably, the District [the petitioners] does not contend that an analysis of ‘the interest of public rights in navigable waters. under Wis. Stat. § 31.02(1) should differ from any other public rights analysis under the statute at issue in Just, the navigable waters protection law …” (¶ 52).

    As to the third issue, the court held that Wis. Stat. section 281.92 meant “that nothing in the DNR’s water protection responsibilities under ch. 281 and the associated administrative rules expands or restricts its responsibilities to set water levels under Wis. Stat. § 31.02(1). We conclude that § 281.92 does not preclude the DNR from referencing the wetland water quality standards of Wis. Admin. Code § NR 103 or any part of ch. 281 when setting water levels under § 31.02(1). Such an interpretation is necessary to reconcile the DNR’s various responsibilities under chs. 31 and 281 and to harmonize the statutes and regulations at issue” (¶ 57).

    Motor Vehicle Law

    Implied-Consent Refusal Hearings – Propriety of Inquiring Into Lawfulness of Traffic Stop

    State v. Anagnos, 2011 WI App 118 (filed 27 July 2011) (ordered published 30 Aug. 2011)

    Anagnos refused to take a chemical test after his arrest for operating a motor vehicle while intoxicated (OWI). He requested a refusal hearing. At the refusal hearing, the circuit court dismissed the state’s case, concluding that Anagnos’s refusal to take the chemical test was lawful because the deputy did not have reasonable suspicion to stop him. The state appealed. A crucial issue before the appellate court was whether the circuit court could inquire into the lawfulness of the stop at a refusal hearing.

    At an implied-consent refusal hearing, the circuit court is limited to considering the issues articulated in Wis. Stat. section 343.305(9)(a)5. Among these issues is “whether [the defendant] was lawfully placed under arrest.” See Wis. Stat. § 343.305(9)(a)5.a. In a decision authored by Judge Reilly, the court of appeals concluded that “whether there was reasonable suspicion or probable cause to make the stop, quite apart from whether there was probable cause to arrest for OWI after the stop was made, is a proper subject at a refusal hearing” (¶ 20). Said the court, “[in this case] the deputy did not have probable cause that Anagnos committed a traffic violation, nor reasonable suspicion that Anagnos was drinking and driving. The deputy’s stop of Anagnos was therefore unlawful. Without a legal stop, Anagnos could not lawfully be placed under arrest for OWI” (id.).

    OWI – Counting Prior Convictions – Prior Episode of Driving That Violated OWI Laws of Both Wisconsin and Michigan

    State v. Holder, 2011 WI App 116 (filed 28 July 2011) (ordered published 30 Aug. 2011)

    In 2005, a Michigan police officer pursued a vehicle driven by Holder from Michigan into Wisconsin. As a result of this single episode of driving, the defendant was convicted of OWI in Wisconsin and operating under the influence of liquor (OUIL) in Michigan. In 2009, he was again charged with OWI in Wisconsin. The question before the courts was whether both 2005 convictions could be counted in determining the penalty the defendant faced for the new 2009 offense. (“Wisconsin Stat. § 343.307(1) prescribes which convictions may be counted for purposes of sentencing under Wis. Stat. § 346.65(2)(am)5. These include convictions for violations of Wis. Stat. § 346.63(1) and convictions in other jurisdictions for using a motor vehicle while intoxicated. Section 343.307(1)(a) and (d)” (¶ 7 n.3).)

    The OWI penalty statute provides that, with respect to counting prior convictions, “convictions arising out of the same incident or occurrence shall be counted as one.” See Wis. Stat. § 346.65(2)(am)5. In a decision authored by Judge Sherman, the court of appeals concluded that the defendant’s 2005 Wisconsin OWI conviction and his 2005 OUIL conviction in Michigan did not arise out of the same incident or occurrence for purposes of determining the penalty he faced in the 2009 Wisconsin case (see ¶ 14). To reach this conclusion, the court drew an analogy from State v. Ellis H., 2004 WI App 123, 274 Wis. 2d 703, 684 N.W.2d 157. The Ellis case addressed whether a juvenile had committed one continuous act, which would have subjected him to one secured detention, or multiple acts, which would have subjected him to more than one separate secured detention. The Ellis court responded to this question by examining whether the juvenile had come to a “fork in the road” and at that point intended to invade a different interest (see ¶ 8). If so, the juvenile faced multiple detentions.

    Applying the Ellis methodology, the court of appeals in the present case concluded that “[defendant] Holder came to a ‘fork in the road’ when he came to the border between Michigan and Wisconsin. At that point, Holder had a decision. He could remain in Michigan and be subject only to the laws of that state, or he could continue into Wisconsin and thereby subject himself to the laws of both Michigan and Wisconsin. When Holder intentionally continued into Wisconsin, and subjected himself to its laws, he ‘invade[d] a different interest’” (¶ 13) (citation omitted). Hence, “although Holder’s Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents – one incident in Michigan and one incident in Wisconsin” (¶ 14). Therefore, both could be counted as prior convictions in determining the penalty for the 2009 Wisconsin OWI.

    In reaching this conclusion, the court noted that this was not a case in which both Wisconsin and Michigan asserted extraterritorial jurisdiction (see ¶¶ 10-11). Therefore, “each state had jurisdiction only over Holder’s act of driving while intoxicated within each state’s own boundaries” (¶ 12).

    Real Property

    Adverse Possession – Statutory Changes

    DNR v. Wied Trust, 2011 WI App 119 (filed 6 July 2011) (ordered published 30 Aug. 2011)

    This case involves a dispute over property rights between the Wied Trust (the Wieds) and the DNR. In 1965, the Wieds bought land on a peninsula that extends into a lake. The DNR owned adjacent land. The Wieds mowed part of the DNR’s land and later placed a lockable gate across the road that served both properties. In 1986, the Wieds built a “vacation house” on the DNR land. In 2007, the DNR filed a complaint seeking removal of “all physical encroachments and restoration of the land” (¶ 2). The circuit court granted judgment in favor of the Wieds.

    The court of appeals affirmed in an opinion authored by Judge Hoover. “The primary issue presented is which version of Wis. Stat. § 893.29 applies, as it was repealed and recreated twice during the time the Wieds adversely possessed the DNR’s land. We refer to the 1965, 1980, and 1998 versions of the statute, which, respectively, require forty years’ adverse possession, twenty years’ adverse possession, and twenty years’ adverse possession with a fence” (¶ 1). The circuit court concluded that the Wieds obtained the DNR land under both the second and third versions of the statute (see id.).

    Reviewing the parties’ briefs, the court concluded that “the DNR does not challenge the circuit court’s ruling that the 1998 statute was satisfied”; thus, the DNR “conceded the validity of that holding” (¶ 11). In 1970, the Wieds erected a locked gate across the only road providing access to the DNR parcel from the north (see ¶ 12). Thus, the fence requirement was satisfied. The court of appeals also addressed the prospective nature of adverse-possession statutes and the effect of repeals on earlier statutory versions under Wis. Stat. section 990.06. The Wieds also obtained ownership under the 1980 version.

    “In the absence of an express provision to the contrary, the rule … is that one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. Thus, the circuit court properly determined that title to the disputed DNR land transferred by adverse possession from 1986 to 2006 under the 1980 version of Wis. Stat. § 893.29” (¶ 18). Finally, on this record the circuit court properly ordered the DNR to sell a portion of the land to the Wieds.


    Taxation of Billboards – Exhaustion of Administrative Remedies

    Clear Channel Outdoor Inc. v. City of Milwaukee, 2011 WI App 117 (filed 26 July 2011) (ordered published 30 Aug. 2011)

    Clear Channel Outdoor Inc. appealed the circuit court’s dismissal of its declaratory judgment complaint seeking to overturn the city of Milwaukee’s assessment of billboards it owns. The circuit court dismissed the complaint without prejudice because Clear Channel did not exhaust what the circuit court determined were required administrative remedies. In a decision authored by Judge Fine, the court of appeals affirmed.

    Clear Channel’s complaint sought a declaration that the city’s real-estate property-tax assessments in connection with its billboards were without legal authority and therefore void. Its complaint asserted that although the city taxed Clear Channel’s billboards as personal property before 2009, the city in 2009 reduced the personal-property tax on the billboards to zero and taxed the billboards as realty. The issue before the court of appeals was whether Clear Channel was required to first take its contentions before the local board of review.

    The controlling statute provides that objections to the “amount or valuation” of real or personal property must first be made before the board of review. See Wis. Stat. § 70.47(16)(a) (pertaining to the city of Milwaukee). See also Wis. Stat. § 70.47(7)(a) (containing similar requirements that are applicable in cities other than Milwaukee).

    The appellate court concluded that “whether the City correctly determined the ‘amount or valuation’ metric of the permit aspect of Clear Channel’s billboards, and correctly enfolded that value in the taxed property must be first addressed by the Board of Review and not initially in a court. If the City incorrectly assessed Clear Channel’s … billboards, the Board of Review can set it right” (¶ 14). Case law makes clear that exhaustion before the board of review is required unless the property taxed is exempt or lies outside of the taxing district, neither of which circumstances were present in this case. See Hermann v. Town of Delavan, 215 Wis. 2d 370, 572 N.W.2d 855 (1998).

    [Editors’ Note: The appellate court applied a like analysis to similar claims advanced by the coappellant in this case, Lamar Central Outdoor LLC.]


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