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    Wisconsin Lawyer
    May 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. 5, May 2011


    Civil Procedure

    Offers to Settle – Accord and Satisfaction – Sufficient Evidence

    Kubichek v. Kotecki, 2011 WI App 32 (filed 23 Feb. 2011)

    The plaintiff was seriously injured as a result of the defendant’s conduct while felling trees. A jury awarded the plaintiff more than $16 million in damages while apportioning 70 percent of the negligence to the defendant and 30 percent to the plaintiff.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Peterson. The defendant attacked the judgment on a variety of grounds that the court found to be “nearly frivolous” (¶ 1). Mostly these were fact-intensive issues, such as the sufficiency of the evidence supporting the finding of the defendant’s negligence (for example, did he leave “hinge wood” while cutting the tree?), public policy considerations, and a new trial in the interest of justice.

    Of more general application was the defendant’s claim of accord and satisfaction, which arose after the plaintiff cashed an insurer’s check bearing an endorsement that it was for the “full settlement of claim or account shown on the other side” (¶ 11). The court of appeals said the circuit court properly rejected the defendant’s argument because the endorsement language was “ambiguous” and prior communications gave the plaintiff no reason to believe that the check was tendered as full settlement (see ¶¶ 27-38).

    The plaintiff cross-appealed based on the circuit court’s denial of a postverdict motion for double costs and interest. “If a plaintiff submits a valid offer of settlement to defendants at least twenty days before trial, the defendants reject the offer, and the plaintiff recovers a more favorable verdict at trial, the plaintiff shall recover: (1) double the amount of taxable costs; and (2) twelve percent annual interest on the amount recovered from the date of the offer of settlement until the date the amount is paid. Wis. Stat. § 807.01(3) and (4)” (¶ 39).

    The circuit court found that the offer was ambiguous because it did not account for a subrogated (Medi-caid) claim. The general rule is that an ambiguous offer is invalid, but here the insurer had a duty to clarify the ambiguity. Although the principal case on which the appellate court relied [Prosser v. Leuck, 225 Wis. 2d 126, 592 N.W.2d 178 (1999)] involved a duty to clarify whether the offer applied to both the insurer and the insured, the appellate court held that this rationale also applied here. “In both situations, the insurer’s fiduciary duty regarding settlement mandates that the insurer must clarify an ambiguous offer in order to fully protect its insured’s interests” (¶ 46).

    Criminal Law

    Improvised Explosive Device – Wis. Stat. section 941.31(2)(b)

    State v. Strong, 2011 WI App 43 (filed 1 Feb. 2011) (ordered published 30 March 2011)

    The defendant, Strong, was convicted by a jury of attempted possession of an improvised explosive device, contrary to Wis. Stat. section 941.31(2)(b). At trial, a bomb technician from the local sheriff’s department testified that he was called to investigate two “improvised incendiary devices” police found on the defendant’s property. Each device consisted of a five-gallon pail filled with methyl ethyl ketone, a flammable liquid. Extension cords ran into each pail. One end of each extension cord was stripped, so that bare wires were in contact with the liquid. Each extension cord was attached to a switch, and the switches were plugged into wall outlets. The switches could be operated by remote controls that police retrieved from Strong’s property. The parties stipulated there were no batteries in the remote controls.

    Among the issues on appeal was whether the devices the defendant constructed were prohibited by the statute. Section 941.31(2)(a) requires that an “improvised explosive device” include “both explosive material and a means of detonating that material” (¶ 9). The statute does not define explosive material.

    The court of appeals, in a decision authored by Judge Peterson, turned to the dictionary (Webster’s Third New International Dictionary) for guidance. This resource defines an explosive as an “explosive substance,” that is, “a substance that on ignition by heat, impact, friction, or detonation undergoes very rapid decomposition (as combustion) with the production of heat and the formation of more stable products (as gases) which exert tremendous pressure as they expand at the high temperature produced” (¶ 11). Based on the bomb technician’s testimony, the court concluded that the methyl ethyl ketone meets this definition.

    The appellate court further concluded that the evidence showed the defendant’s devices contained a detonation method. It read the statute “as requiring that any means of detonation – whether direct, remote, or by timer – be either present or readily capable of being added to the device” (¶ 23). Said the court, “a device qualifies as an improvised explosive even if it lacks a functioning detonator, as long as a means of detonation can be readily inserted or attached. Strong’s devices meet this requirement because Strong could have made the detonators operable with the insertion of two readily available parts. As the State points out, ‘It would have been no problem to insert batteries in the remote controller, and to attach a resistant conductor to the exposed ends of the electrical cord. The police did that simply by putting an aluminum foil chewing gum wrapper on the wires’” (¶ 22).

    Cruelty to Animals – Killing Deer with Snowmobiles – No Conflict between Wis. Stat. chapter 951 and chapter 29

    State v. Kuenzi, 2011 WI App 30 (filed 24 Feb. 2011) (ordered published 30 March 2011)

    The state alleged that Rory and Robby Kuenzi were operating their snowmobiles on a trail in Waupaca County when they came across a large number of deer in a field. They charged the deer with their snowmobiles, ramming and running over at least five. At one point, Robby Kuenzi rode over a downed deer and did a “burn out,” causing the deer’s abdomen to rip open. The Kuenzis tied a strap around the neck of another downed live deer, dragged it to a tree, and secured it there. They apparently planned to retrieve that deer later, but they never returned (see ¶ 1). The defendants were criminally charged under the animal-cruelty statute, Wis. Stat. section 951.02, which provides that no person may treat any animal in a cruel manner. Both men moved to dismiss the charges, and the circuit court granted the motions.

    In a decision authored by Judge Lundsten, the court of appeals reversed. It rejected the defendants’ line of reasoning that 1) the animal-cruelty statute cannot be applied to their actions, no matter how cruel or senseless, because they were engaged in taking “wild animals”; 2) the taking of noncaptive wild animals is a hunting activity regulated by Wis. Stat. chapter 29; and 3) because chapter 29, and only that chapter, regulates hunting, people may take a wild animal by any means without fear of prosecution so long as the means are not specifically prohibited by chapter 29.

    The court concluded that the term “any animal” in section 951.02 includes the wild deer at issue in this case (see ¶ 16). And, although section 951.015 (1) provides that chapter 951 may not “controvert” laws regulating the taking of noncaptive wild animals under chapter 29, the court rejected an interpretation of the controverting limitation that would forbid application of section 951.02 to any taking of a wild animal, no matter how cruel and senseless (see ¶ 35).

    Said the court, “[i]n closing, we observe more generally that the Kuen-zis’ assertions of conflicts between applying the cruel mistreatment statute to their conduct and chapter 29 are all abstract. The Kuenzis do not, for example, argue that there is a conflict because there is a provision in chapter 29 that authorizes the use of a motorized vehicle to kill a wild animal. Similarly, the Kuenzis do not identify a provision in chapter 29 that allows persons to pursue and kill wild animals any way they choose. In sum, the Kuenzis have failed to explain how their prosecution controverts in any manner regulations contained in, or promulgated under, chapter 29” (¶ 38).

    Criminal Procedure

    Jury Trials – Requiring Defendant to Wear Concealed Stun Belt

    State v. Miller, 2011 WI App 34 (filed 1 Feb. 2011) (ordered published 30 March 2011)

    The defendant was convicted by a jury of delivering cocaine as a repeat offender. The circuit court permitted him to wear civilian clothes during the trial but, in accordance with the court’s custom, law enforcement officers placed a stun belt underneath the clothing. He sought a new trial on the ground that the circuit court failed to consider the necessity of requiring him to wear the stun belt. The circuit court denied the motion, finding that the stun belt was not visible to the jury and therefore did not affect the verdict.

    In a decision authored by Judge Brunner, the court of appeals affirmed. Said the court, “[w]e therefore take this opportunity to clarify that a trial court has no sua sponte duty to inquire into the necessity of hidden restraints” (¶ 11). This was not a case in which the defendant was required to wear visible restraints and in which the court would thus have been required to inquire into the necessity for the restraints. See State v. Champlain, 2008 WI App 5, 307 Wis. 2d 232, 744 N.W.2d 889. “[L]imiting a court’s sua sponte duty to visible restraints is consistent with the rationale for the general rule against restraining defendants at trial. As we have stated, the no-restraint rule is designed to prevent the jury from forming an opinion about the defendant’s guilt based solely on the fact that the defendant is restrained. There is little risk of prejudice if the jury cannot see the restraint” (¶ 10) (citations omitted). In a footnote, the court noted that “[o]ur conclusion does not alter the requirement that a jury be given a cautionary instruction if it becomes aware of a restraint despite the trial court’s precaution” (¶ 12 n.3).


    Sequestration – Counsel/Witness Communications

    State v. Copeland, 2011 WI App 28 (filed 24 Feb. 2011)

    A jury convicted Copeland of sexual assault. He filed a postconviction motion alleging ineffective assistance of trial counsel. A hearing was held in October 2008. Before former trial counsel testified, the judge adjourned the hearing until January 2009. The judge Then denied the defendant’s motion to prohibit the prosecutor from discussing hearing testimony with the former trial counsel before the counsel was scheduled to testify.

    The court of appeals reversed in an opinion written by Judge Higginbotham. “This case requires us to decide whether under Wis. Stat. § 906.15(3) a court entering a sequestration order has the discretion to prohibit an attorney from sharing during a recess prior witness testimony with a nonparty witness who has yet to testify” (¶ 8).

    “Wisconsin Stat. § 906.15(3) provides that a court ‘may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.’ Although this language does not explicitly reference communications between witnesses and attorneys, the only reasonable reading of the statute is that the court may restrict those communications when necessary to prevent indirect communications, sharing one witness’s testimony with another…. There is no practical difference between an attorney sharing the testimony of a witness with another witness who has yet to testify and the same two witnesses communicating directly with each other. The result is the same: the second witness receives information about the first witness’s testimony. The second witness might then tailor his or her testimony to that of the first witness, potentially frustrating the fact finder’s ability to discern the truth. Without the authority to restrict attorney-witness communication in these circumstances, courts would be powerless to stop noncomplying attorneys from circumventing sequestration orders” (¶ 14).

    The court also found this interpretation of section 906.15(3) to be consistent with the circuit court’s broad discretion to control the mode and order of interrogation under section 906.11, Wisconsin case law, and federal case law.

    “Accordingly, we conclude that the only reasonable construction of Wis. Stat. § 906.15(3) is that a circuit court has the authority to prevent an attorney from sharing with a nonparty witness who has yet to testify the testimony of prior witnesses during a recess, including barring a witness from reading a transcript of that testimony. Consequently, we conclude that the circuit court erred by determining that it lacked this authority under the statute” (¶ 18).


    Intentional Acts – Insanity – Exclusions

    Wright v. Allstate Casualty Co., 2011 WI App 37 (filed 1 Feb. 2011)

    In 2007, Mark was shot to death by his mentally ill neighbor, R, who thought that Mark was stalking him and that Mark intended to harm him. In criminal proceedings, a jury found R guilty of murder but also found that he was not mentally responsible for his criminal acts. Mark’s widow sued R, R’s mother, and R’s homeowner’s insurer. The circuit court granted summary judgment to the insurer on the ground that the policy excluded coverage for R’s conduct as well as his mother’s.

    The court of appeals affirmed in an opinion written by Judge Curley. First, the policy’s intentional-acts exclusion applied to R’s conduct despite his mental illness. The court agreed with “numerous” cases: “Although [R] was not subject to criminal penalties because of his mental illness, the nature of his acts does not change. [R] intentionally shot and killed Mark. He admitted as much to the jury, and the jury found him guilty of first-degree intentional homicide. In this instance [R’s] mental illness did not prevent him from intending his actions. Therefore, there can be no coverage” (¶ 15). Moreover, the policy language in this case distinguished it from case law in other states that had found coverage (see ¶ 16).

    Second, the insurance policy’s mental-capacity clause applied even though it did not track Wisconsin’s mental-responsibility defense in criminal cases, especially because the criminal jury found that R lacked “substantial capacity” to appreciate the wrongfulness of his conduct (see ¶ 18).

    Third, the insurance policy did not contravene Wisconsin public policy (despite the plaintiff’s “intriguing” arguments) (see ¶¶ 19-20).

    Last, R’s mother had no reasonable expectation of coverage. “First, when [R’s mother] purchased homeowner’s insurance, she could not have reasonably expected coverage for damages caused by her mentally ill son’s intentional homicide” (¶ 26). “Second, and more importantly, the policy excluded coverage for all insureds if an intentional act by any insured caused damage” (¶ 27). Case law firmly supported this position (see id.).


    Garage Keeper’s Lien – Wis. Stat. section 779.43(3)

    Toyota Motor Credit Corp. v. North Shore Collision LLC, 2011 WI App 38 (filed 17 Feb. 2011) (ordered published 30 March 2011)

    This case concerns garage keeper’s liens. Wis. Stat. section 779.43(3) gives every “keeper of a garage” a statutory lien for the amount due for the storage of a vehicle, until the storage charges are paid. All the statute requires to obtain this lien is that the keeper of the garage give “notice of the charges for storing [the vehicle] on a signed service order or by posting in some conspicuous place in the garage a card that is easily readable at a distance of 15 feet.”

    Cunningham was the owner of a vehicle that was damaged in an accident; the vehicle was financed through Toyota Motor Credit Corp. (Toyota). Cunningham gave permission for the vehicle to be towed to North Shore Collision (North Shore) for repairs. On Sept. 28, 2009, North Shore notified Cunningham that the repairs were completed and that he should retrieve his vehicle. Cunningham declined to do so, informing North Shore about two weeks later that he “was just giving up on the car and walking away”; he explained that he had financed the car and that it was no longer worth the amount that North Shore claimed it was owed. On Oct. 13, 2009, Toyota obtained a judgment of replevin against Cunningham and became the vehicle’s title holder.

    A key issue in this case was liability for storage charges at North Shore (which had indisputably satisfied the lien statute’s notice requirements). In a decision authored by Judge Sherman, the court noted that the statute creating the garage keeper’s lien modifies the common-law rule regarding bailments. “At common law, a bailee would acquire a lien over the bailed property only if: (1) the bailee increased the value of the bailed property or was ‘in a public calling where the law require[d] him to accept the bailed item’; and (2) the owner of the bailed item consented to the bailment. Wisconsin Stat. § 779.43(3) modified the common law rule in that it allows a bailee to acquire lien rights over bailed property so long as the notice requirement of that statute is met. Section 779.43(3) did not, however, modify the common law requirement that the title holder of the vehicle consent to the bailment before the garage keeper acquires lien rights. Thus, under section 779.43(3), a keeper of a garage may acquire lien rights over a vehicle left temporarily in its possession even though the garage keeper has not increased the value of the vehicle or was not required by law to accept possession of the vehicle if the notice requirements of the statute are met, but only if the title holder of the vehicle consented to the bailment”
    (¶ 12) (citations omitted).

    In this case, because Cunningham consented to the bailment of the vehicle with North Shore and because North Shore satisfied the notice requirement of section 779.43(3), North Shore had a lien on the vehicle for storage fees from Sept. 28, 2009, until Oct. 12, the last date on which Cunningham was title holder to the vehicle and, under the statute, North Shore had a right to “retain the possession thereof for the amount due for ... storage ... until paid.” On Oct. 13, when Toyota took title to the vehicle, it acquired with the title the obligation to satisfy the lien charges incurred before that date (see ¶ 16).

    After Oct. 13, for North Shore to have a lien on the vehicle enforceable against Toyota, two criteria would have had to have been met: North Shore must have satisfied the notice requirements of that statute, and the bailment of the vehicle must have been with Toyota’s consent. The court declined to impute to the property’s true owner the consent to bailment made by an individual who did not own the property. “Thus, even though the bailment in this case began with the consent of the then-owner, Cunningham, we hold that Cunningham’s consent was not imputed to the vehicle’s subsequent owner, Toyota. Once Toyota became the owner of the vehicle, its consent was a necessary element to establish the bailment of that property” (¶ 18).

    If Toyota became aware that North Shore had possession of the vehicle, Toyota impliedly consented to the bailment of the vehicle with North Shore by continuing to leave the vehicle in North Shore’s possession. “Because the facts are not in dispute that North Shore continued to fulfill the statutory notice requirement for the imposition of storage fees under § 779.43(3) during the duration of Toyota’s ownership of the vehicle, those fees would accrue from the date on which Toyota knew that the vehicle was being stored at North Shore until the date the lien was satisfied and the car was removed from its care” (¶ 19).


    Student Records – Disclosure

    Anderson v. Northwoods Sch. Dist., 2011 WI App 31 (filed 8 Feb. 2011)

    A five-year-old girl with developmental disabilities and her family sued a school district, Northwoods, after she was physically abused on a school bus by a 15-year-old boy who had a history of abusing her. The circuit court ordered the disclosure of the boy’s confidential pupil records under Wis. Stat. section
    118.125(2)(f), which provides that courts may disclose pupil records if they “would be relevant and material to a witness’s credibility or competency” (¶ 4). Northwoods objected, raising issues about both the timing of any release and the proper grounds for such action.

    The court of appeals reversed in an opinion authored by Judge Hoover. First, the statute permits courts to release pupil records before the witness testifies; disclosure is not woodenly restricted until after the witness in question testifies (see ¶ 8). The court rejected an “expansive argument” to the effect that the circuit court “need not have any particular witness in mind when it determines whether the pupil records would be relevant and material” to credibility or competency. Put simply, the requesting party must point to a particular witness about whom such questions arise (see ¶9).

    Second, the circuit court here erred in ordering disclosure on the ground that the records were relevant to the plaintiff’s claim. “The court’s gatekeeper role is to protect the privacy of the pupil whose records are sought, releasing only those records which may concern a specific witness’s credibility or competency” (¶ 12). “The court did not mention Wis. Stat. § 118.125(2)(f), the standard set forth in that statute, or whether it had reviewed the deposition testimony of any witness, and did not identify any witness whose testimony the records would be relevant to or any specific records or category of records that should or should not be disclosed” (¶ 13). The court of appeals also held that it was beyond the scope of the independent review doctrine for it to undertake the arduous task of poring over all the records and the depositions to see if the pupil records were relevant to the credibility or competency of any witness in the case
    (see ¶ 17).

    Real Property

    Foreclosure – Redemption

    Harbor Credit Union v. Samp, 2011 WI App 40 (filed 17 Feb. 2011)

    When Samp defaulted on a first mortgage and note, Harbor Credit Union (Harbor) obtained a judgment of foreclosure on the real estate. Harbor successfully bid at a sheriff’s sale on the foreclosure judgment. The circuit court confirmed the sale and later denied Samp’s motion to reconsider and vacate the confirmation order. “The issues Samp now raises on appeal arise largely from the fact that Harbor, in a separate action from this one, obtained a money judgment against Samp on a second mortgage and note that Harbor held on the same property. Harbor obtained the money judgment in the separate action shortly before the sheriff’s sale of the property in this foreclosure action. At the sheriff’s sale, Harbor bid an amount equal to the combined values of the amount due Harbor on the first mortgage foreclosure judgment and the amount due Harbor on the second mortgage money judgment” (¶ 2).

    The court of appeals affirmed in a majority opinion written by Judge Blanchard. Samp raised three issues. First, he contended that “ Harbor was not entitled to the accelerated six-month redemption period because the money judgment on the second mortgage amounted to a deficiency judgment in this foreclosure proceeding, and Samp should have been insulated from a deficiency judgment by Harbor’s promise not to seek one” (¶ 18). The court held that “there is no reasonable way to read Wis. Stat. §§ 846.04(1) and 846.101 to mean that the money judgment obtained on the second mortgage and note should count as a deficiency judgment for purposes of the foreclosure action on the separate indebtedness secured by the first mortgage. The debt that the second mortgage secured was reduced to a judgment; the separate debt that the first mortgage secured resulted in a sheriff’s sale but no deficiency judgment” (¶ 27).

    Next, “Samp contends that Harbor was not entitled to the accelerated redemption period because, between the June 2009 foreclosure judgment on the first mortgage and the January 2010 sheriff’s sale on that judgment, Harbor obtained the money judgment against Samp on the second mortgage, which counts as a deficiency judgment in this foreclosure proceeding” (¶ 37). This argument also failed because the circuit court reasonably declined to exercise its discretion to vacate the confirmation order.

    “[T]he purpose of the confirmation hearing was not, as Samp’s argument implies, to give Samp an opportunity to redeem the property. The purpose was for the circuit court to exercise its broad discretion under Wis. Stat. § 846.165(2) to make a narrow determination: whether property that was in fact subject to a foreclosure judgment sold at auction for ‘fair value’” (¶ 44).

    “[A]lthough it was not required to do so, the court decided to accommodate Samp by holding the draft order until the end of the day before entering it. This was not an accommodation that the court was required to make, or perhaps even a routine accommodation…. The fact that the court added hours to the months of grace already provided by the statutory right of redemption undercuts Samp’s assertion that judicial confirmation was unjust” (¶ 45). The court also chronicled Samp’s “perilous” approach to redemption, which was “apparently premised in part on his mistaken view that a mortgagor may redeem by handing a check to a judge, facilitating last-second redemption” (¶¶ 46-49).

    Third, “Samp also contends that Harbor failed to satisfy the requirement that Harbor was required to pay to the clerk, within ten days of the sale, the balance of the purchase price that Harbor had not already deposited with the sheriff at the time of sale, and that this violated the requirements of Wis. Stat. §§ 846.16 and 846.17” (¶ 58). The circuit court correctly resolved this issue when it ruled that “it would ‘not make sense’ for Harbor to have been required to make this payment to the clerk only for the clerk to write a check back to Harbor for the same amount because of the outstanding money judgment in that amount entered in the separate action, and therefore there was no defect in the sale because the statutes could not require a meaningless payment” (¶ 60).

    Judge Vergeront concurred in part and dissented in part. In her view, the circuit court failed to address a necessary issue, namely, “Harbor’s erroneous position that, in order to redeem his property, Samp had to pay not only the amount of the judgment in this action (plus interests and costs), but also the amount of the judgment Harbor obtained in a separate action brought on Harbor’s second mortgage. This position is erroneous because Wis. Stat. § 846.13 plainly provides that the mortgagor may redeem ‘by paying to the clerk of the court in which the judgment was rendered or to the plaintiff or any assignee thereof, the amount of the judgment, interest thereon and costs’ (Emphasis added.)” (¶ 65).

    Improvements to Real Property – Statute of Repose – Statute of Limitation

    Cianciola LLP v. Milwaukee Metro. Sewerage Dist., 2011 WI App 35 (filed 1 Feb. 2011) (ordered published 30 March 2011)

    In 1988, the Milwaukee Metropolitan Sewerage District (MMSD) approached the plaintiff to negotiate an easement to install a tunnel underneath the plaintiff’s property. This was part of the “Deep Tunnel” project in which the MMSD planned to excavate tunnels through bedrock 300 feet below ground to allow the MMSD to capture wet-weather flows and reduce discharge of polluted waste and storm waters into Lake Michigan and area rivers. The parties executed an easement in which the MMSD agreed that it will “construct and maintain said intercepting sewer in good order and condition and that, in and during the construction of said intercepting sewer and thereafter in and about its operation, maintenance, repair or reconstruction, will indemnify and save harmless the party of first part, its successors and assigns, from all loss or injury to its property and persons due to such construction, operation, maintenance, repair or reconstruction” (¶ 3). The tunnel was put into service on Jan. 1, 1994.

    The plaintiff brought suit against the MMSD in June 2007 for damages resulting from the MMSD’s alleged breach of contract (pursuant to the easement) for failure to maintain the tunnel in good order and condition and for the MMSD’s failure to indemnify the plaintiff; the plaintiff complained that the tunnel project was adversely affecting his property and that costly structural repairs were necessary. Following a bench trial, the circuit court awarded damages to the plaintiff.

    Among the issues before the court of appeals was whether the plaintiff’s action was barred by the statute of repose. The MMSD argued that the statute of repose bars the plaintiff’s claims because the tunnel is an improvement to real property, thereby falling under the protection of Wis. Stat. section 893.89, which limits claims pertaining to real property improvements to a 10-year “exposure period.” The MMSD argued this exposure period ended on Jan. 1, 2007, approximately five months before the filing of this lawsuit.

    In a decision authored by Judge Kessler, the court of appeals disagreed. Although section 893.89 generally limits the exposure period to 10 years, section 893.89(4)(b) provides that the statute of repose does not apply to “a person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.” The court concluded that the easement between the plaintiff and the MMSD constitutes such a warranty and therefore the plaintiff’s claims are not barred by the statute of repose.

    The appellate court also rejected the MMSD’s argument that this action was barred by the six-year statute of limitation for actions on contract claims. See Wis. Stat. § 893.43. Said the court, “[t]he statute of limitations in this matter is triggered by the ‘good order and condition’ clause in which MMSD promises to ‘construct and maintain said intercepting sewer in good order and condition,’ and that MMSD will hold [the plaintiff] harmless from all loss or injury ‘due to construction, operation, maintenance, repair, or reconstruction.’ (Emphasis added.) Therefore, the contract is breached in each instance that damage is caused because MMSD does not maintain the tunnel in good order and condition. The statute of limitations does not expire on [the plaintiff’s] breach of contract claims so long as the tunnel is not maintained as required by the warranty in MMSD’s contract with [the plaintiff]” (¶ 19).


    Taverns – Duty – Parking Lot

    Flynn v. Audra’s Corp., 2011 WI App 39 (filed 23 Feb. 2011)

    The plaintiff was punched in the head during a fracas in a parking lot adjacent to the tavern that he and others had patronized. The plaintiff sued the tavern for breaching its duty to protect him from harm from third persons while on the tavern’s premises. The tavern moved for summary judgment because the fight occurred not in the tavern premises but in an adjacent parking lot the tavern did not own. The circuit court denied the motion because the tavern “maintained and used” the parking lot for its patrons.

    The court of appeals affirmed in an opinion written by Judge Peterson. Neither the standard jury instruction on tavern liability (Wis JI – Civil 8045) nor the principal case law defines the “premises” of a tavern. Nonetheless, “a tavern owner owes a duty to protect patrons because the owner has superior knowledge of dangers that the place and character of the business may pose. This rationale applies equally regardless of whether a patron’s injuries occur in a parking lot owned by the tavern or in an adjacent area that the tavern maintains and uses as a parking lot. Requiring that the tavern legally own the property would elevate form over substance” (¶ 8).


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