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    Wisconsin Lawyer
    September 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. 9, September 2012

    Criminal Procedure

    Sentence Modification – New Factor – Repeal of Positive-Adjustment-Time Statute

    State v. Carroll, 2012 WI App 83 (filed 19 June 2012) (ordered published 27 July 2012)

    In June 2009, the legislature passed 2009 Wisconsin Act 28, which, in part, allowed offenders convicted of certain crimes to earn positive adjustment time during their initial-confinement terms. In August 2011, the legislature enacted 2011 Wisconsin Act 38, repealing many of the early-release provisions created under Act 28, including positive adjustment time. Offenders eligible for positive adjustment time who had begun serving their sentences between the enactment of Act 28 and the Aug. 3, 2011 effective date of Act 38 remained eligible for a potential reduction of confinement time based on positive adjustment time already earned (see ¶¶ 3-4).

    Carroll was convicted in 2010 of an offense to which the positive-adjustment-time statute applied. However, he will not begin serving his sentence for this offense until 2015; he must first complete another sentence that he is now serving. After the positive-adjustment-time statute was repealed, Carroll moved for sentence modification, arguing that the repeal was a "new factor" warranting modification. The circuit court denied the motion. In a decision authored by Judge Kessler, the court of appeals affirmed.

    A new factor warranting sentence modification "is a fact or set of facts both highly relevant to the imposition of sentence, and not known to the sentencing judge at the time of original sentencing" (¶ 7). In this case the sentencing court did not mention, much less discuss, positive adjustment time at the sentencing hearing.

    "In specifically refusing to authorize Carroll's participation in other statutory programs related to offender good behavior, the sentencing court made it clear that a very important sentencing objective was to protect the community. The court was focused on keeping Carroll incarcerated for as long as possible. We conclude that the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed. Consequently, repeal of a program that was not considered at sentencing does not establish a new factor justifying sentence modification..." (¶ 11).

    The appellate court also rejected Carroll's argument that his existing sentence was effectively increased by the repeal of the positive-adjustment-time statute. It found that his argument was based on assumptions (for example, that he would eventually earn a significant amount of positive adjustment time by violating no prison regulations and that a court would ultimately allow that time to reduce his incarceration term). "Such a speculative syllogism does not persuade us that [Carroll] has been harmed in any way by the repeal of a statute under which he had no vested rights" (¶ 12).

    Expansion of Expungement Law – Retroactivity

    State v. Meinhardt, 2012 WI App 82 (filed 20 June 2012) (ordered published 27 July 2012)

    In September 2008, Meinhardt, then age 24, was convicted of fleeing an officer, a Class I felony, and was sentenced to two years' probation. Under the version of Wis. Stat. section 973.015(1)(a) (2007-08) in effect when Meinhardt committed the crime, only individuals who had committed misdemeanors while younger than age 21 qualified for expungement at the time of their sentencing, if certain other conditions were met. While Meinhardt was serving his probation, section 973.015(1)(a) was expanded to raise the maximum age from 21 to 25 and to include some felonies as eligible offenses, meaning that Meinhardt would be eligible for expungement if the amended statute could be applied to his case. See Wis. Stat. § 973.015(1)(a) (2009-10).

    Meinhardt sought expungement under the new law, arguing that it should be applied retroactively. The circuit court found that it had no authority to grant expungement and denied the motion. In an opinion authored by Chief Judge Brown, the court of appeals affirmed. It based its decision on the legislature's clear statement as to the law's effective date (see ¶ 1).

    "In this case, the legislature's intent to apply Wis. Stat. § 973.015(1)(a) prospectively rather than retroactively is found in the Act that amended the statute. See 2009 Wis. Act 28, §§ 9309 and 9400. First, § 9309 explains that '[t]he treatment of section 973.015(1)(a) and (c) of the statutes first applies to sentencing orders that occur on the effective date of this subsection.' (Emphasis added.) Then, § 9400 gives the majority of the act, including § 9309, an effective date of July 1, 2009. Therefore, under the amended § 973.015(1)(a), a defendant must be under twenty-five at the commission of his offense and be sentenced on or after July 1, 2009, as well as meeting the additional criteria in the statute, to qualify for expungement. While Meinhardt was of appropriate age when he committed his offense, he was sentenced prior to July 1, 2009. Because of that, the circuit court was correct in finding that it had no authority to order expungement" (¶ 5).

    Sentencing – Sex-Offender Registration

    State v. Jackson, 2012 WI App 76 (filed 21 June 2012) (ordered published 27 July 2012)

    Jackson pleaded guilty to numerous felonies relating to his physical abuse of a woman with whom he lived. A sexual assault charge was dismissed and read in for purposes of sentencing. The circuit court ordered that he be subject to sex-offender-registration requirements. Jackson appealed this determination.

    The court of appeals reversed in an opinion written by Judge Higginbotham. "The issue on appeal is whether, under the facts of this case, it was proper for the circuit court to order Jackson to register as a sex offender for the crimes for which he was convicted – false imprisonment, intimidation of a witness, and battery-domestic abuse – all of which were committed on November 19, 2005. These crimes fall within the enumerated offenses for which a court may order sex-offender registration in the exercise of its sentencing discretion" (¶ 7).

    The key issue was whether the crimes were sexually motivated. The read-in sexual assault occurred on Nov. 22, three days after the Nov. 19 offenses (see ¶ 13). The court held that as a matter of law, the facts in the record did not support a finding that Jackson's conduct on Nov. 19 was sexually motivated (see ¶ 18).

    As to the sexual assault read-in, the court construed State v. Martel, 2003 WI 70, 262 Wis. 2d 483, 664 N.W.2d 69: "The second and most pertinent lesson we take from Martel is that a read-in offense, including sexual assault read-ins, may not serve as a basis to order a defendant to register as a sex offender under Wis. Stat § 973.048(1m) or (2m) because a 'circuit court does not impose a sentence or place an offender on probation for offenses that are dismissed and read in.' Applying this second holding in Martel to this case, we conclude that the circuit court erroneously exercised its discretion by relying in part on the second-degree sexual assault read-in as a basis for ordering Jackson to register as a sex offender pursuant to Wis. Stat. § 973.048(1m). As we explained, the record is devoid of any facts that support the inference that the crimes Jackson committed on November 19, 2005, were for the purpose of sexual gratification or arousal" (¶¶ 28-29).

    In particular, the presentence investigation report revealed Jackson's "history of physically abusing women" but provided no basis for a finding that "Jackson's propensity for violence toward women in general is sexually motivated" (¶ 34).

    Evidence – Jury Instructions – Ineffective Assistance

    State v. Lobermeier, 2012 WI App 77 (filed 12 June 2012) (ordered published 27 July 2012)

    A jury convicted Lobermeier of armed robbery of a 96-year-old woman. His defense was mistaken identity. On appeal, he raised several issues concerning his representation at trial.

    The court of appeals affirmed in an opinion written by Judge Fine. First, the court rejected Lobermeier's argument that the jury was improperly instructed regarding its common sense and life experiences. Slightly complicating matters was that the judge's oral instructions varied from the written versions given to the lawyers.

    "Lobermeier claims that the trial court's deletion of the phrase 'observations and experience in the affairs of life' prevented those jurors with experience in dealing with and treating the elderly from using that experience to assess the evidence, and that this violates the rule announced in Solberg [v. Robbins Lumber Co., 147 Wis. 259, 133 N.W. 28 (1911)]. Assuming without deciding that his lawyer should have objected to the trial court's revision of the instruction it gave to the lawyers in writing, Lobermeier has not, by any stretch of the imagination, shown Strickland prejudice" (¶ 12). (See Strickland v. Washington, 466 U.S. 668 (1984).)

    Specifically, Lobermeier failed to show what experience that any of the jurors had that "would have added beyond what everyone knows from their common sense appraisal of life – namely, that some but not all elderly persons have problems with perception and memory" (¶ 13). The court declined to decide whether Wis. Stat. section 804.13(4) eliminated the need for a timely objection by defense counsel when the written instruction varied from the oral instruction, because any error was harmless (see ¶ 14).

    Second, Lobermeier claimed error because a state's witness was impeached with two prior crimes when it later emerged that his record included six prior crimes. Yet Lobermeier's own failure to disclose the substance of the other four convictions "doom[ed]" him under either a Strickland ineffective-assistance approach or a harmless-error analysis. "Simply put, the trial court did not have a chance to assess whether it would have permitted any of the four other convictions to be a basis for the jury's evaluation of Thornton's credibility" (¶ 17).

    Third, the record showed by clear and convincing evidence that the defendant personally decided not to testify and that he also understood he could testify if he wanted to (see ¶ 22).

    Family Law

    De Novo Review in Circuit Court of Family Court Commissioner's Orders – Wis. Stat. Section 757.69(8)

    Nehls v. Nehls, 2012 WI App 85 (filed 13 June 2012) (ordered published 27 July 2012)

    Dale and Constance Nehls divorced in 2007. Their agreement as to the joint custody and physical placement schedule for their children was incorporated into the divorce judgment. A few years later Dale moved to modify custody and physical placement. The family court commissioner appointed a guardian ad litem (GAL) to make recommendations on these matters. Dale failed to object to, contest, or otherwise respond to the family court commissioner's notice that the GAL recommendation would be entered if no objections were received within 15 days. Dale's intent was to bypass an evidentiary hearing before the family court commissioner and proceed directly to a de novo hearing before the circuit court (see ¶ 1).

    The circuit court denied a de novo hearing, finding that Dale waived his right to a de novo hearing because he consented to the entry of the family court commissioner's order without a hearing. The court relied on a local circuit court rule that provides that any family court commissioner order entered either by stipulation or default is not subject to de novo review. In effect, the local rule requires a hearing before the family court commissioner before a new hearing is available before the circuit court (see ¶ 6). In a decision authored by Judge Neubauer, the court of appeals affirmed.

    Dale argued that the local rule referred to above is void because it is inconsistent with Wis. Stat. section 757.69(8), which provides that "[a]ny decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo."

    The appellate court concluded that the provision in this statute for a "hearing de novo" presupposes that the family court commissioner has conducted a hearing (see ¶ 11). The language in the statute and in the local rule reflects "a consistent intent that an initial hearing before the FCC take place prior to the circuit court conducting a de novo hearing" (id.). In this case Dale's waiver of his right to a hearing before the family court commissioner rendered unavailable a de novo hearing before the circuit court (see ¶ 14).


    Duty to Defend – Arguable Claims

    Society Ins. v. Bodart, 2012 WI App 75 (filed 7 June 2012) (ordered published 27 July 2012)

    Society Insurance insured Bodart, who was sued on five claims in a Michigan court. Society assumed the defense and settled three of the five claims, including the only one that was arguably covered by the policy. When Society sought to withdraw its defense to the remaining claims, the Michigan court refused to hold Society in contempt for not providing the defense. Society then filed this separate action in Wisconsin for a declaration that it had no duty to defend Bodart further. The circuit court agreed with Society.

    The court of appeals affirmed in an opinion written by Judge Blanchard. The duty to defend is contractual (see ¶ 8). Assessing the policy, the court held that "a reasonable insured would understand this language as Society does, to mean that Society has no duty to defend an insured in a suit once it has become clear that the suit no longer involves any claim that is even arguably covered. Stated another way, once all at least arguably covered claims are settled and dismissed, those claims are no longer part of the suit, and the insurance no longer applies to that suit" (¶ 12). No Wisconsin case had addressed this precise point before (see ¶ 13). The court rejected Bodart's contention that the duty to defend extended to the "entire suit" even after all covered claims were settled or dismissed (see ¶ 19).

    In explicitly adopting the "general rule," the court "hasten[ed] to add that the persuasive authority on which we rely includes exceptions to that rule" (¶ 22). Although the court declined to address the exceptions in any detail, it noted that likely exceptions included an insurer's withdrawal that would prejudice the insured's defense of the remaining noncovered claims and bad-faith settlements (see ¶¶ 22-23). Finally, the court rejected Bodart's contentions that Society was in contempt for attempting to withdraw before seeking "advanced court permission" (¶ 25).

    Financial Responsibility – Lapses – Notice – Reimbursement

    Acuity v. Albert, 2012 WI App 87 (filed 20 June 2012) (ordered published 27 July 2012)

    Acuity insured Albert under Wisconsin's financial responsibility law. When Albert failed to pay his automobile liability insurance premium, his coverage lapsed. Several days later, Albert caused a car accident in which four people were injured. Acuity settled claims with the injured parties because it had not notified the state that Albert's coverage had lapsed as of the date of the accident (three days after the policy lapsed). Acuity then sued Albert for reimbursement. The circuit court granted summary judgment against Acuity, finding that Acuity's filing of the notice of cancellation after the accident precluded reimbursement.

    The court of appeals reversed in an opinion authored by Judge Reilly. It distinguished prior cases as involving the insurer's obligation to injured parties, not the insurers' right to reimbursement from the driver whose policy lapsed.

    "The Acuity policy contains a reimbursement clause, allowing Acuity to recoup from Albert any payments that Acuity makes to third parties that would not have been made but for the Financial Responsibility law. There is no debate that Albert's coverage lapsed on August 10 – three days before the accident – for failure to pay his premium. Acuity, though, did not send a notice of cancellation to the state until August 16, and per Wis. Stat. § 344.34's ten-day notice requirement, coverage did not end until August 27. Thus, when the accident occurred on August 13, Albert was uninsured pursuant to the terms of the policy but Acuity still had a responsibility to cover third-party losses. Acuity complied with the Financial Responsibility law by paying the injured parties and is now entitled to seek reimbursement from Albert" (¶ 13).


    Privacy – Abuse of Process – Defamation – Frivolous Claim

    Keller v. Patterson, 2012 WI App 78 (filed 20 June 2012) (ordered published 27 July 2012)

    This litigation arose from Patterson's actions after she learned that a convicted sex offender was living with his mother, Keller, who was Patterson's neighbor. Patterson distributed pamphlets, and she later petitioned for a restraining order against the Kellers after they threatened legal action against her. Eventually, the Kellers started this action against Patterson, claiming invasion of privacy, defamation, and abuse of process. The circuit court granted summary judgment in favor of Patterson.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Chief Judge Brown. The court held that the invasion-of-privacy claim was properly dismissed. Hang-up calls, letters, and third-party car honking did not physically intrude into the Kellers' home or constitute a trespass, as required by Wis. Stat. section 995.50(2)(a), which has a "spatial basis" (¶ 10). Nor did subsection (2)(c) apply, because the information disseminated by Patterson was available to the public before the fliers were distributed. The defamation claim was also properly dismissed because relevant allegations in complaints and petitions are privileged (see ¶ 19).

    The abuse-of-process claim, however, was supported by the record. This claim related to Patterson's petition for a temporary restraining order against the Kellers. Patterson later admitted in a deposition that some of her allegations were false. An abuse-of-process claim has two elements. The Kellers' "easily [met]" the first element, which requires that Patterson have acted with a purpose other than that which the process was designed to accomplish. Specifically, the record supported an inference that Patterson hoped to use the temporary restraining order as "leverage" in later litigation with the Kellers (see ¶ 14).

    The second element consists of a subsequent misuse of the process (see ¶ 15). "When Patterson went to the courthouse on August 27, 2009, she filed a complaint with allegations that were somewhere between grossly exaggerated and patently false, as evidenced by her own deposition testimony" (id.). At that point, Patterson could have, but did not, voluntarily dismiss the lawsuit without doing anything further. Rather, she petitioned for, and received, a temporary restraining order. And although she never served it on the Kellers before dismissing the case, she nonetheless used the court's time and resources, and her actions resulted in creation of a CCAP record. Moreover, Patterson even opposed the Kellers' attempts to have the temporary restraining order information removed from CCAP. At the very least, this constituted an "irregular step," which is discussed in the case law and this decision (see ¶ 17).

    Finally, the court rebuffed Patterson's cross-claim that sought sanctions against the Kellers for a frivolous claim. The court of appeals found nothing frivolous about the Kellers' legal arguments on appeal, and it held that the circuit court properly found that the Kellers' attorneys had conducted a sufficient investigation of the facts and law before filing their claims (see ¶ 23).

    Governmental Immunity – Independent Contractors

    Showers Appraisals LLC v. Musson Bros., 2012 WI App 80 (filed 27 June 2012) (ordered published 27 July 2012)

    A building owned by Mark Showers was badly damaged by floods triggered by heavy rain in 2008. Showers and two businesses he owned sued an independent contractor, Musson, which had disconnected a sewer line as part of governmentally funded road and sewer work. The circuit court granted summary judgment in Musson's favor, finding that it was entitled to governmental immunity despite its alleged negligence.

    The court of appeals affirmed in a majority opinion by Chief Judge Brown, in which the court elaborated on the scope of immunity for independent contractors discussed in Estate of Lyon v. CNA Insurance Cos., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996), and in Wis. Stat. section 893.80(4). The main issue was whether Musson was entitled to immunity because the contract gave it discretion to use whatever "means and methods" were appropriate. The court held that this broad grant of authority was nonetheless a reasonably precise specification, under the circumstances, as required by immunity law. Flexibility was necessary and the contract specified a "plan" (see ¶ 16).

    Moreover, the Wisconsin Department of Transportation (DOT) actively oversaw the project on an ongoing basis, providing input into the decision-making process. "[I]n a case such as this one, where the contractor and the government had to rely on general specifications because aspects of the more specific plan were not working, the focus of our inquiry is whether the government had genuine oversight of the project despite the contractor's apparent discretion" (¶ 19).

    The court next addressed whether Musson conformed to these specifications, such as they were. Here too the court looked to the DOT's oversight, including the DOT's "standing by" Musson's decision to disconnect the entire sewer line rather than shut it down block by block (¶ 25). Finally, Musson did not breach any ministerial duty with respect to drainage. The court distinguished another case in which a municipality failed to maintain an existing system. Here, Musson was constructing a new system (see ¶ 29).

    Judge Reilly dissented, criticizing the majority's expansion of Lyon to provide "blanket immunity to all government contractors" (¶ 32). "I suspect the rationale for expanding immunity to the discretionary acts of government contractors is to obtain the lowest possible bids from contractors bidding for public works projects. The temporary bargain gained by lower bids from private contractors is paid for by Mark Showers and other good and virtuous citizens who will have to 'take one for the team' and solely pay for the negligence of the government's agent. Granting blanket immunity to government agents for their discretionary acts will encourage private contractors to base their bids upon minimal conditions, as the contractor will know that if a rainy day comes, or if a mistake is made in the means and methods of performing the contract, or if the contractor simply decides to cut corners on quality, someone else will pay for the contractor's gambles and mistakes" (¶ 35).

    Worker's Compensation

    Bad Faith – Penalty – Bankruptcy

    Grede Foundries Inc. v. LIRC, 2012 WI App 86 (filed 19 June 2012) (ordered published 27 July 2012)

    An administrative law judge approved a worker's compensation settlement that directed the employer, Grede Foundries, to pay approximately $12,000 to the worker and $3,000 to his attorney. The order further directed that the payment was to be made within 21 days from the order's date, July 8, 2009. Grede, which declared bankruptcy soon thereafter, did not make the payments until Sept. 18, 72 days later. The Labor and Industry Review Commission (the commission) assessed a bad-faith penalty against Grede, directing it to pay more money to the worker and his attorney (approximately $3,600). The circuit court affirmed the commission.

    The court of appeals reversed in an opinion written by Judge Fine. "There is more to this case ... than a simple order to pay a worker's-compensation claimant by a certain date and imposing a penalty when the payment is late, because Grede filed a Chapter 11 petition in bankruptcy on June 30, 2009, which triggered application of the so-called automatic-stay provisions of 11 U.S.C. § 362" (¶ 4). The court reviewed the commission's order de novo (see ¶ 8).

    The bankruptcy act trumps state law because of the supremacy clause. As a result of section 362's automatic stay, "Grede could not be in default of its obligation to Northcott under the Department's June 17 order because it was entered before the June 30 filing, and the payment directed by that order was not due until July 8, 2009. Simply put, the automatic stay froze Grede's obligation to pay claims that were not yet due, including Northcott's" (¶ 12).

    The court rejected the commission's contention that the so-called "police and regulatory power" provision of section 362(b)(4) overruled the stay and permitted post-petition enforcement of the June 17 order as well as the later penalty (¶ 13). Prevailing case law "is thus consistent with the clear language of 11 U.S.C. § 362(b)(4), namely that the exemption from the automatic stay does not encompass the enforcement of a 'money judgment' against the debtor. Accordingly, as we have already noted, the Department's order of June 17, 2009, which required payment by July 8, 2009, could not be enforced once the automatic stay was triggered on June 30, 2009, except, as the bankruptcy court order provides, insofar as Grede, 'in its sole discretion,' decided to pay it. Accordingly, Grede was not in default, and no late-payment penalty could be assessed" (¶ 18).

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