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    Wisconsin Lawyer
    March 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. 3, March 2011strong>


    Legal Fees – Interest – Unpaid Bills – Settlement Offers

    Ziolkowski Patent Solutions Group S.C. v. Great Lakes Dart Mfg. Inc., 2011 WI App 11 (filed 22 Dec. 2010) (ordered published 31 Jan. 2011)

    A law firm (Ziolkowski) sued its former client Great Lakes Dart Manufacturing (GLD) for legal fees and 18 percent interest on the unpaid fees. “Ziolkowski included a clause at the foot of its invoices imposing a finance charge of 1.5% per month on all accounts thirty days past due, but the original contractual engagement letter between Ziolkowski and GLD did not mention interest charges for late payments. The pertinent issue is whether a law firm is entitled to 18% interest on its unpaid legal bills when its attorney fee retainer agreement was silent on interest. The circuit court denied Ziolkowski’s request for 18% interest and we affirm. We hold that a retainer agreement controls the parties’ agreement, not the invoices” (¶ 1).

    The court’s opinion, written by Judge Reilly, lays out the essentials of the lawyer-client relationship as they relate to fees and interest on unpaid fees. “Attorneys have a burden to clearly draft their legal fee agreements. Wisconsin’s Rules of Professional Conduct for Attorneys require that the ‘scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing.’ SCR 20:1.5(b)(1) (2010). Ziolkowski’s engagement letter reserved the right to withdraw from representation if its fees were not paid, but it did not provide for a penalty for late payments. An attorney may not add a material term to a fee agreement without the express agreement of his client. The formation of a valid contract requires a meeting of the minds on all essential points. Ziolkowski and GLD did not agree on the issue of penalties for late payment fees and Ziolkowski may not unilaterally add an interest charge on its invoices” (¶ 13). The court readily distinguished a similar case that concerned the sale of goods under the Uniform Commercial Code (see ¶ 16).

    The court of appeals reversed the lower court’s ruling concerning GLD’s statutory offer of judgment. Because the circuit court’s judgment award was higher than GLD’s offer, GLD was not entitled to costs under Wis. Stat. section 807.01(1). GLD’s offer had inadvertently omitted the words “per diem” when specifying a dollar amount, and the circuit court awarded a per diem interest amount, thus making the circuit court’s judgment higher than GLD’s statutory offer. The court of appeals noted that “it is the obligation of the party making the offer to do so in clear and unambiguous terms” (¶ 19).

    Civil Procedure

    Finality – Legal Errors – Paternity

    Dustardy H. v. Bethany H., 2011 WI App 2 (filed 21 Dec. 2010) (ordered published 31 Jan. 2011)

    In 2004, Bethany (Beth) gave birth to a child via artificial insemination while in a same-sex relationship with Dustardy (Dusty). Later in 2004, a circuit court found that Dusty had consented to the artificial insemination and held that this made her a parent under Wis. Stat. section 891.40 and a “de facto parent” under Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995). After their relationship ended, Dusty and Beth shared custody of the child for a time before Dusty petitioned for joint legal custody and physical placement. This appeal arises out of the circuit court’s determination that the 2004 parentage order was void because the court lacked authority under case law and section 891.40 to enter it.

    The court of appeals reversed in an opinion authored by Judge Brunner. “Wisconsin’s artificial insemination statute creates a presumption that a husband whose wife is artificially inseminated with semen donated by another man is the ‘natural father’ of the child. Wis. Stat. § 891.40(1). For obvious reasons, a same-sex partner of the child’s biological mother can never receive the presumption of parenthood under § 891.40(1). The presumption operates only in favor of a male, as evidenced by the statute’s use of the words ‘husband’ and ‘father.’ Further, same-sex couples can never satisfy the marital relationship described by the statute. The circuit court’s most recent orders correctly conclude that it erred in 2004 by granting Dusty parental rights under § 891.40(1)” (¶ 10).

    Nor did Holtzman provide a separate ground for finding parental rights, because it concerns only visitation rights. “Parentage may be established in one of three ways: by initiating a paternity action under Wis. Stat. § 767.80, by petitioning for adoption under the Children’s Code, or by virtue of the presumption established by the artificial insemination statute. While a circuit court possesses common-law authority to order visitation, it has no authority outside of the Wisconsin statutes to confer parental rights. Accordingly, the circuit court erred in 2004 by reaching beyond the statutes to construct its own basis for conferring parental rights”
    (¶ 13).

    Although the 2004 parentage order was in error, the finality principle embodied in various procedural statutes meant that the error could not be corrected. The order could not be voided under Wis. Stat. section 806.01(1)(d) unless the court lacked subject matter or personal jurisdiction or denied a party due process. The 2004 error did not fall into any of these categories (see ¶ 17). “This interpretation of Wis. Stat. § 806.07(1)(d) maintains the judiciary’s longstanding emphasis on the principle of finality. [Section] 806.07 strikes a balance between the judiciary’s interest in achieving fair resolutions of disputes and the policy favoring finality of judgments. At some point, the former must give way to the latter” (¶ 18). Although there is a catch-all provision that permits a court to relieve a party from an order for “any other reasons,” Beth did not seek relief under this subdivision within a reasonable time and did not appeal the judge’s finding that her motion was untimely (see ¶ 21).

    Judgment Debtors – Third Parties – Supplemental Examination

    Crown Castle USA v. Orion Constr., 2011 WI App 9 (filed 7 Dec. 2010) (ordered published 31 Jan. 2011)

    Crown Castle obtained a default judgment in Pennsylvania against Orion Construction, a Wisconsin corporation, whose sole member is Larson. Crown Castle filed this action in Wisconsin to execute the foreign judgment (see ¶ 3). The sole judgment debtor was Orion Construction. In trying to determine whether Orion Construction was concealing assets, Crown Castle obtained an order allowing it to conduct a supplemental examination of an entity called Orion Logistics, which shares common ownership with Orion Construction. Orion Logistics appealed.

    The court of appeals affirmed in an opinion written by Judge Brunner. “Pursuant to paragraph 816.03(1)(a), circuit courts have the authority, under certain circumstances, to order the judgment debtor to appear and answer concerning his or her property. Paragraph (1)(b) extends the same authority to court commissioners. Section 816.06 states that at the hearing, the judgment debtor ‘may be examined on oath and testimony on the part of either party may be offered’” (¶ 7). Case law involving marital property supported the rationale that permitted the supplemental examination of Orion Logistics. “Property not wholly exempt from execution may be subject to a fraudulent transfer action under Wis. Stat. ch. 242 to set aside the transfer. Wis. Stat. § 815.18(10); see also Wis. Stat. §§ 242.04-242.07. Property transfers between a judgment debtor and related business entities present the same risk of fraud as those between spouses. Examination of the alleged third-party recipient may be the only method available to a judgment creditor to ascertain whether a fraudulent transfer has occurred” (¶ 12).

    Moreover, the circuit court properly exercised its discretion. “Here, Larson’s tax returns indicate he has complete ownership and control over both Orion Construction and Orion Logistics. Those same returns indicate Orion Construction generated only $187,680 in gross receipts in 2007 after generating millions in sales in 2005 and 2006. Conversely, Orion Logistics’ only return indicates it generated over $15 million in gross receipts in 2007. Based on this evidence, the circuit court properly concluded that the proposed discovery ‘may lead to relevant evidence in the collection of this judgment’” (¶ 14).

    Default Judgment – Wrong Party

    Johnson v. Cintas Corp., 2011 WI App 5 (filed 17 Nov. 2010) (ordered published 31 Jan. 2011)

    Johnson obtained a default judgment against “Cintas No. 2” for serious injuries he suffered in a car accident while employed by Cintas No. 2. Johnson’s original summons and complaint, however, named “Cintas Corporation,” not Cintas No. 2, but the pleadings were served on Cintas No. 2. It was undisputed that Johnson named the wrong corporate entity. (Cintas No. 2 is an “indirect, wholly-owned subsidiary of Cintas Corporation” (¶ 3).) Neither Cintas entity responded to the complaint in a timely manner. At a hearing, Johnson amended the summons and complaint to name Cintas No. 2, and the court granted the default judgment. Cintas No. 2 filed an answer along with motions to dismiss, which the court declined to hear. The court did, however, invite a motion for relief pursuant to Wis. Stat. section 806.07, which it granted by vacating the default judgment. After the court later developed that Cintas No. 2 occasionally held itself out as Cintas Corporation, the court reinstated the default judgment against Cintas No. 2.

    The court of appeals reversed in an opinion authored by Judge Neubauer. Personal jurisdiction requires correct service of process, including naming the correct defendant in the summons and complaint (see ¶ 9). The court distinguished case law in which the “correct defendant” was “mislabeled” from that involving naming the wrong defendant. “Here, the trial court permitted Johnson to amend the pleadings to name Cintas No. 2, and then immediately granted default judgment – without affording Cintas No. 2 service of process. The facts of record clearly indicate that Cintas Corporation and Cintas Corporation No. 2 are legally independent companies. Regardless of how Cintas No. 2 held itself out to the public, the amendment of the summons and complaint had the effect of bringing a new party into the action. Added parties must be served with the summons or voluntarily appear. Wis. Stat. §§ 802.09(1), 801.14(1). Here, the plaintiff named the wrong defendant” (¶ 15). The court reversed the default judgment and remanded the case for further proceedings, noting that neither party challenged the amendment of the pleadings to name Cintas No. 2.


    Damages – Economic Waste

    Champion Cos. v. Stafford Dev., 2011 WI App 8 (filed 22 Dec. 2010) (ordered published 31 Jan. 2011)

    Zanow built a house with bricks bought from Glen-Gery Corp. When a defect in the bricks became apparent, Zanow sued Glen-Gary for $340,000, the cost of removing and replacing the bricks. Glen-Gary responded that it could repair the bricks for $7,500. Neither party presented “credible evidence” as to the home’s diminished value. The court conducted a bench trial and awarded Zanow $11,000.

    The court of appeals affirmed in an opinion written by Judge Reilly. “There are multiple ways to calculate damages in a lawsuit over injury to property. One is the cost to repair the property (i.e., replace the bricks). A second is the cost to restore the property (i.e., re-stain the bricks). A third way to measure damages is the diminished value calculation – ‘the difference between the value the building would have had if properly constructed and the value that the building does have as constructed.’ Any party may submit estimates of the cost of repair/restoration or diminished property value. The plaintiff is entitled to the smaller amount” (¶12) (citations omitted).

    “The economic waste rule provides that when faced with multiple measures of damages, a fact finder may determine whether a proposed repair or restoration would result in unreasonable destruction of the property and thus constitute economic waste” (¶ 13). “The application of the economic waste rule is not limited solely to a comparison of the diminished value measure of damages versus a cost to repair measure of damages. A fact finder presented with estimates for both a cost of repair and a cost to restore may determine whether the repair or restore option would result in unreasonable destruction to the property” (¶ 15).

    The circuit court properly concluded that “because repairing the bricks by re-staining them and replacing the bricks would lead to substantially similar results at different costs, damages should be awarded for the less expensive option. The circuit court was not wrong to say that awarding $344,000 in damages (replacing the bricks) to correct something that could be corrected for $11,000 (re-staining the bricks) would constitute unreasonable economic waste” (¶ 18).

    Criminal Procedure

    Sentencing – Power of Court to Issue Victim No-Contact Order as a Condition of Confinement in Prison

    State v. Campbell, 2011 WI App 18 (filed 7 Dec. 2010) (ordered published 31 Jan. 2011)

    The defendant was convicted of first-degree sexual assault of a child. The charge stemmed from allegations that he sexually assaulted his 10-year-old daughter. The circuit court imposed a lengthy sentence of confinement and extended supervision. It also imposed various conditions of confinement and extended supervision, one of which prohibits the defendant from having contact with his minor son until the defendant successfully completes sex-offender treatment and fulfills other requirements.

    On appeal the defendant argued inter alia that the court lacked authority to impose conditions on the confinement portion of his sentence and that the conditions on his extended supervision were not “reasonable and appropriate” (¶ 21). In a majority decision authored by Judge Peterson, the court of appeals affirmed.

    Wisconsin Statutes section 973.049(2) allows a sentencing court to prohibit a defendant from contacting “victims of any crime considered at sentencing.” The statute clearly states the court may impose this prohibition during any part of the defendant’s sentence. The statute also grants the court discretion to determine who is a victim of a crime considered at sentencing (see ¶ 23). Thus, the operative question was whether the circuit court properly exercised its discretion when it determined Campbell’s son was a “victim” of the crime for which Campbell was sentenced (see ¶ 24).

    The police reports filed in this case established that the defendant exposed his son to the sexual abuse of his daughter. The daughter informed a social worker that her little brother would sometimes come into the room while she was being sexually assaulted by her father. Said the appellate court, “[t]he potential emotional harm associated with observing Campbell’s sexual misconduct is sufficient to make his son a victim of the crime for purposes of Wis. Stat. § 973.049(2). Furthermore, we agree with the circuit court that, by allowing his son to witness the sexual assaults, Campbell has put his son at risk of ‘modeling’ this behavior and growing up to become sexually abusive. Accordingly, because the circuit court could reasonably conclude Campbell’s son was a victim of Campbell’s crime, § 973.049(2) gave the circuit court legal authority to impose the no-contact provision as a condition of Campbell’s entire sentence, both the initial confinement and extended supervision portions” (¶ 26).

    Judge Brunner filed a concurring opinion related to a different issue raised in this appeal.

    Search and Seizure – Auto Search Incident to Arrest – Application of Arizona v. Gant

    State v. Smiter, 2011 WI App 15 (filed 28 Dec. 2010) (ordered published 31 Jan. 2011)

    The defendant was a passenger in a car that police officers stopped for a traffic violation. As one officer approached the vehicle, he noticed the defendant reach under the front passenger’s seat and then throw an object that resembled a cigar out of the front passenger’s window. After the defendant exited the vehicle at the officer’s request, the officer recovered the object, which he observed was a damp cigar wrapper filled with a green plant-like substance. Based on the officer’s training and experience, he concluded that the substance could be marijuana, and he then arrested the defendant for possession of marijuana. Following the arrest, the officers searched the vehicle for additional controlled substances. The search revealed 53 individually wrapped corner cuts of cocaine under the defendant’s seat. The defendant was charged with possession of cocaine with intent to deliver. The court denied his motion to suppress the evidence recovered from the vehicle, and he pleaded guilty. In a decision authored by Judge Brennan, the court of appeals affirmed.

    The appeal concerned the lawfulness of the vehicle search and the application of Arizona v. Gant, 129 S. Ct. 1710 (2009). In Gant, the U.S. Supreme Court held that police officers may search a vehicle incident to a lawful arrest without a warrant when (1) “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or (2) ”it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’” (¶ 10) (citations omitted). The state did not contend that the defendant was “within reaching distance” of the vehicle at the time of the search. Therefore, the court’s analysis focused on whether the police officers reasonably believed that the car contained “evidence relevant to the crime of arrest.”

    Referring to an earlier decision involving the search of a vehicle incident to arrest (Thornton v. United States, 541 U.S. 615 (2004)), the Gant court concluded that the mere discovery of drugs on arrestee Thornton’s person supplied a basis for searching the passenger compartment of the arrestee’s car (see ¶ 15). Said the court of appeals in this case, “[w]e conclude similarly here” (id.). Moreover, the officers in this case had additional reasons to believe the vehicle contained evidence relevant to the marijuana arrest, that is, the defendant’s furtive movements and the damp marijuana blunt. “Because [the defendant] was arrested for a drug offense, and because the police officers had additional reasons to believe relevant evidence of the drug offense may be located in the Buick – including [the defendant’s] furtive movements and the damp marijuana blunt – we conclude that the search of the Buick was authorized by Gant” (¶ 18).

    The court rejected the defendant’s argument that because the police had already recovered the blunt, they possessed all the evidence necessary to charge him with the offense of his arrest and did not need to search the vehicle. Said the court, “Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found” (¶ 16).

    Search and Seizure – Warrantless Entry of Home – “Community-Caretaker” Exception

    State v. Ultsch, 2011 WI App 17 (filed 23 Dec. 2010) (ordered published 31 Jan. 2011)

    A deputy sheriff was dispatched to the scene of a motor vehicle collision involving a Dodge Durango and a brick building. The vehicle left the scene and was found three miles away at the foot of a one-quarter-mile driveway to a private residence. A person leaving the residence told the officers that he was the owner of the home and that the driver of the damaged vehicle was his girlfriend and was in the house “possibly in bed or asleep” (¶ 3). The officers did not observe any blood in the deep snow that covered the long driveway to the residence. Once at the residence, the officers knocked on the door but there was no answer. The door was not locked and the officers entered; they found Ultsch in bed asleep. They awakened and questioned her. The officers then transported her to the Sheriff’s Department, where field sobriety and chemical tests were performed. The defendant was arrested and later prosecuted for fifth-offense operating while intoxicated.

    The defendant moved to suppress all evidence obtained as a result of what she claimed were an illegal entry, detention, and arrest. The circuit court denied the motion, concluding that the warrantless entry into the house was justified under the community-caretaker exception to the general rule that warrantless searches and seizures violate the Fourth Amendment. In a decision authored by Judge Sherman, the court of appeals reversed.

    To determine whether an officer’s conduct falls within the scope of the community-caretaker exception to the warrant requirement, a court must determine (1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community-caretaker function; and (3) if so, whether the public interest outweighs the intrusion on the individual’s privacy such that the community-caretaker function was reasonably exercised within a home (see ¶ 13).

    In this case the entry into the residence constituted a search within the meaning of the Fourth Amendment (see ¶ 14). As for the second element of the analysis (whether the police were exercising a bona fide community-caretaker function), the question is whether the officers had an objectively reasonable belief that the driver of the Durango was in the home and in need of assistance (see ¶ 15). The court concluded that they did not. The damage to the vehicle, although significant, was limited to the vehicle’s left front fender. The airbags were not deployed, the windshield was intact, and there was no blood or other indication of injury. Moreover, no person (including the defendant’s boyfriend) had given the officers information that would indicate that the defendant was in a vulnerable situation, and the officers had not observed anything that would indicate she was injured.

    Even if the court had concluded that the officers were engaged in a bona fide community-caretaker function, their entry of the residence would not fall within the community-caretaker exception because, on the facts of this case, “the public’s interest in the intrusion was minimal, at best, and did not outweigh the substantial intrusion on [the defendant’s] privacy” (¶ 29). Among other things, the court noted that there was very little indication of any danger to the defendant, the degree of overt authority displayed by the police was considerable (entering the bedroom and awakening the sleeping defendant), and the officers had a viable alternative to making the entry. “The primary alternative available to the officers in this case was to rely on the representation of [the defendant’s] boyfriend that [the defendant] was sleeping in the light of the limited damage to the vehicle, the absence of evidence of injury to the driver, and the exigent circumstances discussed above, and do nothing” (¶ 28).

    Accordingly, the court of appeals reversed the decision of the circuit court denying the defendant’s motion to suppress evidence, and it remanded the matter to the circuit court for further proceedings. In a footnote, the appellate court observed that “[t]he parties did not brief and we do not address the precise consequences of reversing the circuit court’s suppression decision. We note that when police illegally enter and illegally arrest a defendant in a home, the exclusionary rule does not necessarily bar evidence later obtained away from the home. See New York v. Harris, 495 U.S. 14, 20-21 (1990)” (¶ 30 n.6).


    Hearsay – Confrontation

    State v. Jensen, 2011 WI App 3 (filed 29 Dec. 2010) (ordered published 31 Jan. 2011)

    Jensen was convicted of murdering his wife, Julie, by poisoning her, a crime he vehemently denied. Julie died in 1998, and her death was followed by years of investigation before charges were filed. Jensen was not tried until 2008. Much of the prosecution’s critical evidence consisted of hearsay statements made by Julie to an assortment of people, including neighbors, her children’s teacher, and police officers. The statements described the defendant’s conduct and substantiated Julie’s fears that he was slowly killing her.

    As the litigation unfolded, the law changed. Specifically, in 2004 the U.S. Supreme Court overruled decades-old cases that had controlled the prosecution’s use of hearsay evidence against the accused under the confrontation right. The Court announced the Crawford doctrine, which is still evolving. See Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that the confrontation right extends only to testimonial hearsay, which the prosecution cannot introduce against a defendant unless he or she has cross-examined the declarant or can do so at trial. The rule is subject to several possible exceptions, including dying declarations and forfeiture by wrongdoing.

    In 2007 the Wisconsin Supreme Court, reviewing various pretrial rulings that involved hearsay, held that because sufficient proof linked Jensen to Julie’s murder, he was deemed to have waived his right to confront her as a witness against him. See State v. Jensen, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518. During the 2008 trial, the prosecution introduced much of Julie’s most damning hearsay against Jensen. Shortly after Jensen’s conviction, the U.S. Supreme Court in Giles v. California, 128 S. Ct. 2678 (2008), took a far narrower view of the forfeiture-by-wrongdoing exception than the one set forth by the Wisconsin Supreme Court.

    In this opinion, written by Judge Anderson, the court of appeals affirmed Jensen’s conviction. The opinion’s primary focus is on the hearsay evidence and the discordant case law on confrontation. The court held that only testimonial hearsay is subject to the narrow Giles approach to forfeiture by wrongdoing; nontestimonial hearsay is analyzed under the broader view set forth in the 2007 Jensen decision. In so concluding, the court of appeals noted it was necessarily “deviating” from state supreme court cases that could no longer be reconciled with controlling federal authority (see ¶ 26).

    Turning to the trial record, the court of appeals held that the nontestimonial hearsay was properly admitted (see ¶ 28). As for the testimonial hearsay, the court assumed it had been erroneously admitted (see ¶ 35) but that any such error was harmless, based on its thorough assessment of the properly admitted evidence. The opinion meticulously discusses each item of “assumed inadmissible evidence” and weighs it against the “admissible duplicative/corroborative evidence in the record.” It is not feasible to discuss each such item of evidence in this synopsis of the decision.

    Although the hearsay and confrontation issues dominate the appeal, the court also found no error in the admissibility of other-act evidence, which also was a fact-intensive ruling. Finally, the court upheld the lawfulness of a consent search of Jensen’s home and computer. It also rejected Jensen’s assertion that the trial judge was biased.


    Exclusion – “Insured”

    Olson v. Barron Mut. Ins. Co., 2011 WI App 16 (filed 7 Dec. 2010) (ordered published 21 Jan. 2011)

    Trevor’s parents were divorced but shared joint legal custody of him. His mother had primary physical placement. While visiting his father on a weekend, Trevor was injured in an all-terrain vehicle accident. Trevor and his mother sued his father and the father’s insurer, Barron Mutual. The circuit court granted summary judgment dismissing the insurer because Trevor was an “insured” under the policy and thus fell within an exclusion.

    The court of appeals affirmed in an opinion authored by Judge Peterson. Conceding Trevor was an insured, the plaintiffs argued that the exclusion was ambiguous. The court of appeals disagreed. “The only reasonable interpretation of the exclusionary language is that it excludes liability coverage for bodily injury to two distinct groups: (1) insureds; and (2) persons other than insureds who reside on the insured premises. The Olsons’ interpretation would make the exclusion’s reference to ‘any insured’ superfluous. Under the Olson’s interpretation, residence on the insured premises is necessary for the exclusion to apply, regardless of whether the injured person is an insured. However, if this interpretation were correct, there would be no reason for the exclusion even to refer to insureds[;] it could merely state that coverage is excluded for bodily injury to all persons who reside on the insured premises. Interpretations that render policy language superfluous are to be avoided where a construction can be given which lends meaning to the phrase. Thus, the only reasonable interpretation of the exclusion reads the modifying phrase ‘who resides on the insured premises’ as referring only to the words closest to it, ‘other person.’ The phrase does not refer back to ‘any insured’” (¶ 8). The exclusion protects against the risk of collusion in intrafamily litigation such as this (see ¶ 12).

    Municipal Law

    Zoning – Writ of Certiorari Challenging Decision of Local Zoning Board of Appeals – Proper Parties

    Acevedo v. City of Kenosha, 2011 WI App 10 (filed 22 Dec. 2010) (ordered published 31 Jan. 2011)

    Acevedo is a state-licensed child-daycare center operator. The city of Kenosha zoning coordinator notified her that operation of her daycare center on certain premises violated the city’s zoning ordinance. The plaintiff filed an administrative appeal with the city’s Zoning Board of Appeals; the board ordered her to cease and desist all daycare operations at the property.

    The plaintiff filed a certiorari action in circuit court in which she initially named only the city as the defendant. The city moved to dismiss her lawsuit on the basis that the action failed to state a claim for which relief could be granted. In particular, the city argued that Acevedo’s claim should have been against the City of Kenosha Zoning Board of Appeals, which the city contended is a separate body politic. The city further asserted that it was not a proper party to the action. After the city filed its motion to dismiss, Acevedo amended her complaint to add the board as a defendant. The circuit court granted the city’s motion to dismiss. Acevedo appealed the circuit court’s order dismissing the city as a party to her action in certiorari. In a decision authored by Judge Anderson, the court of appeals affirmed.

    Acevedo argued in her brief that the statutory mechanism under which she took her appeal was that provided in the city planning statute (Wis. Stat. § 62.23(7)(e)10.); however, her complaint failed to allege that it was an action under section 62.23(7)(e)10. It instead alleged that it was an action brought pursuant to the judicial review statute (Wis. Stat. § 68.13). Said the appellate court in response, “regardless of which statute Acevedo hangs her hat on, the language of both Wis. Stat. §§ 62.23(7)(e)10. and 68.13(1) convey that the decision maker, i.e., the board, is the properly named party on certification when the board, as was the case here, made the decision from which Acevedo seeks judicial review by certiorari” (¶ 18). “This statutory interpretation is in harmony with the rule [with limited exceptions not applicable in this case] that the writ of certiorari must go to the board or body whose acts are to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing the board” (¶ 17).

    Accordingly, the circuit court properly dismissed the city as a defendant in this action on the ground that Acevedo should have commenced her certiorari action against the Kenosha Zoning Board of Appeals, not against the city (see ¶ 24).


    Fires – Double Damages

    Heritage Farms v. Market Ins., 2011 WI App 12 (filed 2 Dec. 2010) (ordered published 31 Jan. 2011)

    This appeal followed a remand from the supreme court to the circuit court. See 2009 WI 27. The case involved an out-of-control campground fire that destroyed nearly 600 acres. The central issue on remand was damages under Wis. Stat. section 26.21(1). The circuit court granted Heritage Farm’s request for costs and actual attorney fees but refused to award double damages as permitted by the statute.

    The court of appeals affirmed in an opinion written by Judge Sherman. The statute provides that a court “may” award double damages. Applying rules of construction, the court held that the word may is permissive, not mandatory (see ¶ 11). It also rejected the contention that section 26.21(1) creates a presumption in favor of litigation costs and double damages. Heritage Farms cited no pertinent authority for this proposition (see ¶ 13).

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