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    Wisconsin Lawyer
    April 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. 4, April 2011


    Civil Procedure

    Service of Process – Personal Jurisdiction

    Bergstrom v. Polk County, 2011 WI App 20 (filed 11 Jan. 2011) (ordered published 16 Feb. 2011)

    Polk County issued a nonmetallic-mining-reclamation permit to Mathy, a construction company. Bergstrom and others unsuccessfully fought the permit’s issuance in administrative hearings. Bergstrom then sought certiorari review in the circuit court by filing a summons and complaint naming the county and Mathy. It is undisputed that Bergstrom did not personally serve the county or Mathy as required by Wis. Stat. section 801.11. The circuit court ruled, however, that “special circumstances” excused the defective service and that, in any event, Mathy waived its jurisdictional objection by participating in the litigation before filing a motion for judgment on the pleadings.

    The court of appeals reversed in an opinion authored by Judge Peterson. The court held that “the special circumstances exception does not apply in a certiorari action commenced by summons and complaint” (¶ 16). Although Bergstrom cited five cases supporting her special-circumstances claim, four involved condemnation actions and one a chapter 227 review, none of which require personal service under Wis. Stat. chapter 801. The court further held that even if the special-circumstances exception were held to apply to certiorari actions such as this, the facts of this case did not establish the existence of special circumstances. Case law recognizes two sets of special circumstances: “(1) when an attorney formally acknowledges receipt of a document on behalf of a client; and (2) when an attorney formally admits due and personal service of a notice of appeal” (¶ 21). Neither set of circumstances was supported by the record.

    The appellate court further held that Mathy did not waive its right to contest jurisdiction. “First, Wis. Stat. § 807.07(1) states that a respondent’s participation in an appeal before filing a motion to dismiss waives jurisdictional objections ‘[w]hen an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court[.]’ (Emphasis added.) The plain language of the statute provides that ‘return’ must be ‘duly made’ before the respondent’s participation in the action waives jurisdictional objections. To date, no return has been made in this case” (¶ 28). (The court then discussed the meaning of a “return.”)

    “The second reason we reject Bergstrom’s argument that Mathy waived its jurisdictional objections is that we question whether filing an answer that specifically raises jurisdictional defects constitutes ‘participating’ in the certiorari proceedings” (¶ 34). “Wisconsin Stat. § 802.06(8) has specific applicability in a certiorari action, which can be commenced by the filing of a complaint pursuant to Wis. Stat. § 801.02(5). Construing the filing of an answer that raises jurisdictional defects as ‘participating’ in the certiorari proceedings would therefore place Wis. Stat. §§ 802.06(8) and 807.07(1) in conflict, because the former would allow a defendant to preserve jurisdictional objections in its answer, while the latter would require the defendant to file a motion to dismiss. Moreover, interpreting § 807.07(1) in this way would lead to an absurd result, where a defendant, by filing an answer that specifically raises jurisdictional objections, waives its right to move to dismiss based on those objections” (¶ 35).

    Forfeiture Actions – Summary Judgment – Judicial Estoppel

    State v. Ryan, 2011 WI App 21 (filed 11 Jan. 2011) (ordered published 16 Feb. 2011)

    The state brought a forfeiture action under Wis. Stat. chapter 30, alleging that Ryan unlawfully placed and maintained a sunken barge on a river bed. The circuit court granted summary judgment in favor of the state. It also ruled that judicial estoppel barred Ryan from arguing that he did not own or control the barge.

    The court of appeals affirmed in an opinion written by Judge Curley. First, summary judgment is appropriate in chapter 30 forfeiture actions. The plain language of the procedural statutes governing such forfeiture actions allows for, and is consistent with, summary judgment methodology (see ¶ 25).

    Second, the circuit court properly applied judicial estoppel to preclude Ryan from arguing that he did not own or control the sunken barge. Judicial estoppel is “aimed at preventing a party from manipulating the judiciary as an institution by asserting a position in a legal proceeding and then [later] taking an inconsistent position.’ … It is intended to protect against a litigant playing ‘fast and loose’ with the courts by asserting inconsistent positions. The rule looks toward cold manipulation and not [an] unthinking or confused blunder. … The doctrine requires a showing that: ‘(1) a party against whom estoppel is sought presents a later position that is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position’” (¶ 26).

    Ryan presented a “textbook example of a litigant playing ‘fast and loose’ with the judicial system” (¶ 27). He convincingly claimed to own the barge in an earlier eminent domain proceeding but now denied owning it. Any differences in the burdens of proof between the two actions (eminent domain and forfeiture) were “irrelevant” to judicial estoppel (unlike claim preclusion and issue preclusion, which are different) (see ¶ 28).

    Criminal Procedure

    Postconviction Motions – Appeals – Escalano-Naranjo Rule

    State v. Kletzien, 2011 WI App 22 (filed 19 Jan. 2011) (ordered published 16 Feb. 2011)

    Kletzien pleaded guilty to homicide by intoxicated use of a vehicle and related offenses. After sentencing, he filed a motion seeking postconviction discovery of potentially exculpatory evidence, which the circuit court denied. The court of appeals affirmed in an opinion at 2008 WI App 182. The court of appeals also denied Kletzien’s motion for an extension of time to file a notice of appeal or a petition for a new trial, noting that he should have raised such grounds in his postconviction motion. Kletzien then filed a second postconviction motion asking that he be allowed to withdraw his guilty plea or, alternatively, be resentenced. The circuit court denied the motion on the ground that it was barred by State v. Escalano-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

    The court of appeals affirmed in an opinion written by Judge Curley. First, the court rejected Kletzien’s contention that postconviction discovery motions are not subject to Escalano-Naranjo. “Kletzien’s interpretation of postconviction procedure is unsubstantiated and incorrect. Motions for postconviction discovery are not independent from other postconviction motions; defendants bringing postconviction discovery motions must, pursuant to Escalona-Naranjo, include all bases for appeal when filing such motions” (¶ 11). The need for finality in litigation requires that defendants “consolidate all their postconviction claims into one motion or appeal” (¶ 12). “There is no provision in the relevant statutes or case law that exempts postconviction discovery motions from this rule” (¶ 13).

    Nor did Kletzien offer a “sufficient reason” that justified an exception to the finality principle. “Kletzien offers only one potential ‘sufficient reason’ as to why he should be allowed to bring his motion to withdraw his plea and motion for resentencing in a subsequent Wis. Stat. § 974.06 motion: the fact that he did not present those claims in his first postconviction motion. In other words, Kletzien argues he should be allowed to bring these additional claims now because he failed to do so before. … We disagree with Kletzien’s circular reasoning. Kletzien’s incorrect interpretation of postconviction procedure in this case does not constitute a sufficient reason to allow him a bifurcated appeal. We therefore affirm the trial court’s determination that no sufficient reason permitted Kletzien to bring claims in his second postconviction motion that he did not assert in his first postconviction motion” (¶ 17).

    Right to Counsel – Indigent Defendant’s Request for Replacement Counsel on Basis of Breakdown in Communication – Attorney-Client Privilege

    State v. Boyd, 2011 WI App 25 (filed 25 Jan. 2011) (ordered published 16 Feb. 2011)

    The defendant was convicted of 20 crimes. He complained on appeal that the circuit court should have granted his requests for appointment of substitute counsel, which he made five days before trial and again during trial. In a decision authored by Judge Fine, the court of appeals affirmed.

    Although indigent defendants may not select the lawyers who represent them, they do have the right to be represented by lawyers with whom they can communicate effectively. According to State v. Jones, 2010 WI 72, 326 Wis. 2d 380, when an indigent defendant seeks a new lawyer because of an alleged breakdown in communication, the circuit court must consider two factors: 1) whether the request for a new lawyer is timely, and 2) whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case. A request for a new lawyer is timely if it is made when the total lack of communication becomes evident, even though that might be on the eve of trial (see ¶ 8). A circuit court’s decision to not permit an indigent defendant to get a new lawyer will not be overturned when the record is devoid of evidence “of a conflict that made counsel’s continued representation untenable. Mere disagreement over strategy does not suffice” (¶ 13) (citations omitted).

    In this case, the appellate court concluded that the defendant did not show, other than by mere assertion, how the alleged problems he was having in communicating with his trial lawyer either prejudiced his defense or made the lawyer’s continued representation untenable (see id.). “The trial court thus applied the appropriate standard and did not erroneously exercise its discretion in concluding that the disagreements [defendant] Boyd had with his trial lawyer did not warrant giving Boyd a new lawyer” (id.).

    The defendant also complained that statements the trial lawyer made to the circuit court in connection with the defendant’s requests for a new lawyer (for example, the lawyer’s recitation of questions that the defendant wanted him to ask a detective but that he declined to ask as a matter of strategy) divulged privileged information. The appellate court concluded that nothing specified by the defendant was protected by the attorney-client privilege (see ¶ 19). For example, the questions he wanted his lawyer to ask the detective were not “confidential” because “they would have been revealed by the asking, which is what [the defendant] wanted” (¶ 20).

    Moreover, “it is settled that a criminal defendant waives the attorney-client privilege by claiming that his or her lawyer was constitutionally deficient. State v. Flores, 170 Wis. 2d 272, 277-78, 488 N.W.2d 116, 118 (Ct. App. 1992) (‘[W]hen a defendant charges that his or her attorney has been ineffective, the defendant’s lawyer-client privilege is waived to the extent that counsel must answer questions relevant to the charge of ineffective assistance. Section 905.03(4)(c), Stats., specifically states that there is no lawyer-client privilege “[a]s to a communication relevant to an issue of breach of duty by the lawyer to his [or her] client or by the client to his [or her] lawyer.”’). Although no Wisconsin case has yet considered the issue (and we have found none from other jurisdictions), we believe that this common-sense application of the attorney-client privilege applies with equal force when a defendant in a criminal case claims that he or she cannot effectively communicate with his or her lawyer – otherwise no court (either nisi prius or reviewing) could assess whether there was, as phrased by [State v.] Jones, ‘“a total lack of communication”’ between them. Stated another way, unless the attorney-client privilege gave way in connection with confidential client-to-lawyer communications that are material as to whether there was ‘a total lack of communication’ between them, reviewing courts would be bound by a defendant’s sheer assertion. Indeed, Wis. Stat. Rule 905.03(4)(c) tells us that the attorney-client privilege does not apply ‘to a communication relevant to an issue of breach of duty by the lawyer to the lawyer’s client or by the client to the client’s lawyer’; a lawyer’s unremedied failure to effectively communicate with a client is such a breach of duty” (¶ 21) (citations omitted).

    Employment Law

    Overtime Calculation – Attorney Fees

    Kuhnert v. Advanced Laser Machining Inc., 2011 WI App 23 (filed 11 Jan. 2011) (ordered published 16 Feb. 2011)

    Kuhnert worked for two years for an employer who paid her a salary but no overtime. After her termination, she complained to the Department of Workforce Development (DWD) that she was entitled to recover unpaid overtime wages. The DWD determined that Kuhnert was not an “overtime exempt” employee and that she was entitled to $2,700 in unpaid overtime according to the DWD’s long-standing formula. The employer tendered a check but Kuhnert refused to accept it, claiming she was entitled to a higher amount. Kuhnert sued her employer for about $12,000 in unpaid overtime, but following a bench trial the judge upheld the DWD’s calculation and awarded Kuhnert only a portion of the attorney fees and costs she requested. Kuhnert appealed.

    The court of appeals affirmed in an opinion written by Judge Peterson. First, the DWD’s overtime formula for calculating the regular rate of pay under the pertinent statute was subject to great-deference review (see ¶ 14). The methodology (the regular rate plus the overtime premium rate) accorded “with Wisconsin precedent, the statutes and administrative code, and the department’s longstanding practice” (¶ 18). Second, the circuit court properly exercised its discretion in giving Kuhnert only a part of her attorney fees. Under Wis. Stat. section 109.03(6) a court “may” allow a “prevailing party” to recover reasonable expenses in an unpaid wage action, which includes attorney fees (see ¶ 21).

    “Here, the circuit court properly exercised its discretion by awarding Kuhnert only a portion of her requested attorney fees and costs. The court found that Kuhnert could recover the fees and costs she incurred up until the point Advanced Laser [her employer] tendered her a check for the amount the department ordered it to pay. However, the court determined the majority of Kuhnert’s fees and costs were incurred in losing efforts after Advanced Laser tendered payment. … The court determined Kuhnert was not the prevailing party in the circuit court action because she did not receive anything from that action that she was not already entitled to, based on the department’s decision. The court therefore awarded some, but not all, of Kuhnert’s requested attorney fees. The court did not erroneously exercise its discretion” (¶ 23).

    Family Law

    Termination of Parental Rights – Three-month Abandonment Ground for Termination

    Heather B. v. Jennifer B., 2011 WI App 26 (filed 20 Jan. 2011) (ordered published 16 Feb. 2011)

    The circuit court terminated Jennifer B.’s parental rights to her son pursuant to the three-month-abandonment provision of Wis. Stat. section 48.415(1)(a)2. This particular ground for termination of parental rights is triggered by a child in need of protection or services (CHIPS) order that removes the child from the parental home and provides notice of applicable termination grounds.

    In this case, the CHIPS order placing the child outside of Jennifer’s home was terminated before the running of the three months of abandonment. Jennifer thus argued that the three-month-abandonment ground was inapplicable to her. The circuit court disagreed. In a decision authored by Judge Lundsten, the court of appeals reversed. Said the appellate court, “[a]lthough other abandonment provisions are available without respect to the existence or duration of a CHIPS order, we conclude that the three-month abandonment provision requires that the three-month abandonment period fall within the duration of the CHIPS-based placement of the child outside the parent’s home” (¶ 2). “Here, the abandonment period did not fully fall within the CHIPS-based placement period. Rather, about ten weeks of the abandonment period ran after the CHIPS-based placement ended. Thus, Wis. Stat. § 48.415(1)(a)2. does not provide grounds for termination” (¶ 19).

    Child Support – Effect of Large Legal Settlement – Placement of Child Support in Trust

    Lyman v. Lyman, 2011 WI App 24 (filed 19 Jan. 2011) (ordered published 16 Feb. 2011)

    After Scot Lyman and Sally Lyman divorced, Scot received a multimillion dollar settlement as a result of a wrongful-termination-of-employment lawsuit. The lawsuit lasted for three and one-half years, and by the time it settled the Lymans’ older son had turned 18 and graduated from high school and their younger son was seven months from his 18th birthday. Scot argued that the settlement is not income and therefore is not subject to a child support award. Among other things, Scot also argued that, because both sons are now adults, any award of child support should be placed in trust for them rather than be paid to Sally.

    In a decision authored by Judge Reilly, the court of appeals concluded that the settlement (which the circuit court determined was unallocated) is income and thus subject to the child support award to which the parties had stipulated before Scot’s lawsuit was settled. Scot cited “Krebs v. Krebs, 148 Wis. 2d 51, 435 N.W.2d 240 (1989), and Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990), as support for his argument that a presumption exists in child support cases that an unallocated settlement is presumed to be property not subject to child support. Scot’s reliance upon Krebs and Weberg is misplaced as both are maintenance cases dealing with the financial relationship between former spouses” (¶ 15).

    Said the court, “[o]n his tax returns, Scot reported the entire settlement amount as ordinary or capital gain income. Scot offered no expert testimony as to any amount of the settlement that would fall outside of ‘gross income.’ Scott admitted that no allocation was made for future loss of income. Scot’s inability to ‘allocate’ through credible testimony what amounts, if any, fall outside the definition of ‘gross income’ is a failure of Scot to meet his burden of proof. Given the record presented to the circuit court, we affirm that the entire settlement falls within the category of ‘gross income’” (¶ 17).

    After the circuit court held that Scot’s settlement was income subject to child support, it reduced the settlement amount by deducting roughly $1.2 million that Scot incurred in attorney fees, interest, and penalty expenses. Scot contended that the settlement amount should have been reduced by an additional $778,284 that Scot paid in taxes on the settlement. The court of appeals disagreed. “Child support is calculated by using the payor’s gross income, not net income” (¶ 23).

    Scot requested that the circuit court place any award of child support into a trust for his sons. The circuit court declined to do so and awarded the child support directly to Sally. Scot argued that a trust is needed because Sally will not use the settlement money to support their sons or help fund their education. Again, the court of appeals disagreed. “Scot did not show that Sally is incapable or unwilling to wisely manage the money. … Scot’s settlement was replacement income for the time when his child support obligations were in force. We find no error in the circuit court denying the creation of a trust” (¶ 26).

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