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    Wisconsin Lawyer
    August 01, 2012

    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. 85, No. 8, August 2012

    Administrative Law

    Appeals in Administrative Proceedings – Time Limit for Filing Appeal

    Baker v. Department of Health Servs., 2012 WI App 71 (filed 16 May 2012) (ordered published 27 June 2012)

    The Wisconsin Department of Health Services (DHS) notified Baker that her license to operate an assisted living center for adults was going to be revoked for code violations. Baker had 10 days to file an appeal per DHS regulations. She missed the deadline, and her appeal was dismissed. Baker argued that her appeal was timely, because Wis. Stat. section 801.15(1)(b) provides that when a deadline is less than 11 days, weekends and holidays are excluded from the counting period. An administrative law judge (ALJ) rejected Baker's argument and ruled that section 801.15(1)(b) applies only to proceedings before a circuit court. The circuit court affirmed the ALJ's decision.

    In a decision authored by Judge Reilly, the court of appeals affirmed. Said the court, "[w]e agree with the ALJ that § 801.15(1)(b) does not apply, as Baker's appeal to the division of hearings and appeals is governed by Wis. Stat. §§ 227.42 and 227.43, rather than chapters 801 to 847. Section 801.15(1)(b) expressly provides that it only applies to periods of time prescribed or allowed by chapters 801 to 847. Section 990.001(4)(a) is therefore the appropriate statute for counting purposes" (¶ 7). Section 990.001(4)(a) states that "[t]he time within which an act is to be done or proceeding had or taken shall be computed by excluding the first day and including the last." Applying this statute to the facts of this case, the ALJ was correct in dismissing Baker's appeal.

    Civil Procedure

    Direct Action – Derivative Action – Class Action – Joinder

    Ewer v. Lake Arrowhead Assoc. Inc., 2012 WI App 64 (filed 24 May 2012) (ordered published 27 June 2012)

    Several members of the Lake Arrowhead Association brought a declaratory judgment action against the association regarding the propriety of annual assessments under its bylaws. Members who owned "consolidated sites" paid more than those who owned "nonconsolidated sites." The circuit court dismissed the action, finding it should have been brought as a derivative claim. It was undisputed that the plaintiffs had not complied with the requirements of Wis. Stat. sections 181.0740–.0742, which govern derivative claims.

    The court of appeals reversed in an opinion written by Judge Vergeront. "In the absence of case law interpreting or applying Wis. Stat. section 181.0740, we turn to the case law interpreting the same definition of 'derivative proceeding' for business corporations. See § 180.0740(2). The parties agree this case law is relevant, although they disagree on how it applies to the facts of this case" (¶ 16).

    The opinion features a "background" discussion of the differences between direct and derivative actions. The plaintiffs here suffered a direct injury. "Because the Ewers each have a right as an individual to pay no more in assessments than the bylaws authorize, they each suffer a direct injury as an individual if they pay more than the bylaws authorize" (¶ 29).

    "We do not agree with the Association's logic that the Ewers do not have individual rights or suffer individual injuries because every member could choose to be a consolidated site owner and thus would be subject to the higher assessment. Instead, we conclude that any time a nonconsolidated site owner becomes a consolidated site owner, that site owner suffers an individual injury if he or she pays more in assessments than the bylaws authorize. The fact that site owners can switch from a status in which they do not suffer injury into a status in which they do suffer injury does not logically transform the injury into one that is not individual to each who suffers it" (¶ 30).

    "Similarly, we do not agree with the Association's argument that every member has an interest in the correct interpretation of the bylaws, and, therefore, the injury from any incorrect interpretation is an injury primarily to the Association. This argument fails to analyze the particular provision that forms the basis for the Ewers' claim and fails to explain why the Association, rather than the Ewers, suffers any injury if the Ewers pay more in assessments than the bylaws authorize the Association to collect" (¶ 31).

    The court addressed several additional contentions. "[T]he fact that the Association could also bring a claim for a declaratory judgment does not mean that the Ewers do not have an individual right to bring the claim based on the individual, direct injury to each" (¶ 41). It further held that the "business judgment" rule was not relevant to deciding if the claims were direct or derivative (see ¶ 43).

    Based on the circuit court's error regarding the derivative claim issue, the court reversed and remanded on the denial of class certification (see ¶ 47) and also directed the trial judge to consider the joinder provisions of Wis. Stat. section 806.04(11) (see ¶ 53).

    Criminal Procedure

    "Innocent Person" – Compensation

    Turnpaugh v. Wisconsin Claims Bd., 2012 WI App 72 (filed 22 May 2012) (ordered published 27 June 2012)

    Turnpaugh was convicted of a crime after he allegedly propositioned an undercover police officer for sex. The court of appeals reversed the conviction in 2007, finding that the state had adduced "no evidence" that he had committed a criminal act (see ¶ 2). Turnpaugh filed a compensation claim under the "innocent person" provisions of Wis. Stat. section 775.05 but the Claims Board found that he had not proved his innocence or that he had been "imprisoned."

    The court of appeals reversed the Claims Board in an opinion written by Judge Fine. The court assumed, without deciding, "that the Claims Board's decision here and its legal analyses are entitled to the highest degree of deference because we prefer to decide the appropriate level of deference in an appeal where: (1) it would make a difference, and (2) the Record and briefing are adequate to that task" (¶ 5).

    The court reversed the Claims Board on two grounds. First, Turnpaugh was innocent and the Claims Board's finding to the contrary was "inexplicable"; there was no evidence supporting the conviction, not even the "quibble" discussed in other cases (¶ 8). Second, Turnpaugh served three days in custody and 57 days on electronic monitoring for an offense that carried up to a maximum of 9 months "imprisonment"; contrary to the Claims Board's finding, this constituted imprisonment.


    Credibility – Opinions – Closing Argument

    State v. Miller, 2012 WI App 68 (filed 9 May 2012) (ordered published 27 June 2012)

    The defendant was convicted of multiple offenses arising out of a domestic fracas. On appeal he contended that several errors occurred justifying a new trial.

    The court of appeals affirmed in an opinion written by Judge Gundrum. First, there was no violation of the Haseltine rule, which precludes any witness, lay or expert, from testifying that another witness is telling the truth. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). At trial the prosecution introduced a video of the defendant's interrogation during which the detective accused the defendant of lying and stated that the victim was truthful. The court held that Haseltine is inapplicable in situations in which such statements amount to an "interrogation technique" and the evidence is otherwise relevant to provide context (see ¶ 15).

    Second, it was not plain error, or apparently any error, for the prosecutor to brand the defendant a "liar" and argue the victim was truthful during closing argument. The prosecutor's remarks were properly based on the evidence (for example, the defendant's multiple stories versus the victim's corroborated testimony) (see ¶ 22).


    Third Party – Bad Faith

    Meleski v. Schbohm LLC, 2012 WI App 63 (filed 1 May 2012) (ordered published 27 June 2012)

    Meleski was injured on Schbohm's premises, which were insured by Partners Mutual Insurance (the insurer). The insurer refused to pay Meleski's medical expenses, and she then brought a bad-faith claim against it. The circuit court dismissed her claim because she was not in "privity" with the insurer even though the policy stated it would pay medical expenses "regardless of fault" by its insured (Schbohm).

    The court of appeals reversed in an opinion authored by Judge Fine. "Although insurance policies issued to an insured are contracts between the carrier and the insured …, they also can create third-party-beneficiary duties running from the insurance company to a non-insured" (¶ 6). After quoting from Severson v. Milwaukee Auto Insurance Co., 265 Wis. 488, 61 N.W.2d 872 (1953), the court found that the passage "fits Meleski like a glove": "This is sort of a 'Tinker to Evers to Chance' situation: the insurance company (the 'one person' in the quotation from Severson) is paid by the insured (the 'another' in the quotation from Severson) and, based on that consideration, promises to pay an injured non-insured (the 'third person' in the quotation from Severson). Simply put, '[a] person may enforce a contract as third-party beneficiary if the contract indicates that he or she was either specifically intended by the contracting parties to benefit from the contract or is a member of the class the parties intended to benefit'" (¶ 6).

    "The crux of this case is thus unlike the run-of-the-mill tort action, where a third party is injured by something the insured has done (or not done) and the third-party's entitlement to payment depends on an apportionment of fault. Meleski's rights to her medical expenses did not depend on who was at fault. Rather, they were fixed once she fell" (¶ 9). The court of appeals remanded the case for a trial on the bad-faith issue.

    Real Property

    Private Nuisance – Claims Based Merely on Appearance

    Apple Hill Farms Dev. LLP v. Price, 2012 WI App 69 (filed 15 May 2012) (ordered published 27 June 2012)

    The defendant appealed a money judgment following a bench trial in which the circuit court determined that a concrete retaining wall he built between his property and that of the plaintiff constituted a private nuisance. The defendant argued that the circuit court erroneously denied his motions for summary judgment and directed verdict because a private nuisance cannot exist based merely on appearance. He cited the plaintiff's deposition testimony that there was no physical invasion of the plaintiff's property and no physical discomfort associated with the retaining wall, and that the nuisance claim focused on the wall's appearance.

    In a decision authored by Judge Hoover, the court of appeals affirmed. "Wisconsin has adopted the definition of private nuisance set forth in the Restatement (Second) of Torts (1979). The Restatement defines nuisance as 'a nontrespassory invasion of another's interest in the private use and enjoyment of land.' The phrase 'interest in the private use and enjoyment of land' as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property (emphasis added)" (¶ 13) (internal citations and quotes omitted).

    Said the court, "there are no per se exceptions to nuisance claims in Wisconsin; nuisance claims may arise from any disturbance of the enjoyment of property; and unsightly spite fences can constitute a private nuisance. Thus, [the defendant's] argument, that nuisance claims can never be based on appearance, fails" (¶ 14). See also Wis. Stat. § 844.01 (providing a statutory definition of private nuisance which is intended to adopt the common law) (see ¶ 13 n.4).

    Qualified Immunity – Volunteer Firefighter

    Brown v. Acuity, 2012 WI App 66 (filed 30 May 2012) (ordered published 27 June 2012)

    A volunteer firefighter ran a red light while en route, in his own vehicle, to an emergency call and then collided with the plaintiffs' vehicle. The firefighter had activated his vehicle's emergency lights but the car was not equipped with a siren. The plaintiffs sued the firefighter and the fire department, but the circuit court dismissed the claims against each defendant based on governmental immunity.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. Immunity is conferred on volunteer fire companies and their members by Wis. Stat. section 893.80(4). The court rebuffed the plaintiffs' contention that immunity attached only when a firefighter reached the fire station. It distinguished the "coming and going rule" announced in DeRuyter v. Wisconsin Electric Power Co., 200 Wis. 2d 349, 546 N.W.2d 534 (Ct. App. 1996), aff'd, 211 Wis. 2d 169, 565 N.W.2d 118 (1997), which involved respondeat superior, not governmental immunity.

    "Thus, the issue in this case is not whether the OFD [a fire department] is liable for Burditt's actions, as it would be in a respondeat superior case, but whether Burditt's status as a volunteer firefighter shields him from liability for his discretionary actions while responding to an emergency call" (¶ 8). In this "nontraditional" relationship, "volunteers are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call. Because of that, they are operating within the scope of their employment for purposes of Wis. Stat. § 893.80(4) immunity" (¶ 9).

    The court further held that the firefighter's decision to run the red light was discretionary; he did not violate a ministerial duty (see ¶ 15). Although the firefighter could be ticketed for his failure to use an audible signal (a siren) in addition to a visual signal (emergency lights), this did not affect his immunity from a tort claim (see ¶ 18).

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