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    Wisconsin Lawyer
    March 01, 2015

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Civil Procedure

    Service by Mailing – Wrong Address

    O’Donnell v. Kaye, 2015 WI App 7 (filed 3 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: While attempting service by publication and mailing, the plaintiff sent the pleadings to the wrong address, thus depriving the court of personal jurisdiction.

    SUMMARY: The plaintiff attempted to serve process on the defendant via publication and mailing. The defendant’s answer alleged defective service because the mailing address contained both the wrong street name and the wrong street number. (The defendant obtained a copy of the pleadings by buying a photocopy at the courthouse.) The circuit court ruled that although the plaintiff exercised reasonable diligence in attempting personal service, the plaintiff’s service by publication and mailing failed because of the incorrect address.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The court of appeals affirmed in an opinion authored by Chief Judge Brown. Because the pleadings were mailed to the wrong address, “there was a defect in the service” (¶ 7). The defect was fundamental, not technical. A wrong address constitutes “an absolute failure” to carry out one of the two duties in accomplishing service by publication and mailing (¶ 12).

    “Service by publication and mailing cannot establish personal jurisdiction where one of the key steps – mailing to the defendant’s known address – was not carried out” (¶ 14). This was not an instance of an error by the postal service or “shenanigans” by the defendant; “the error was the sole fault of the plaintiff” (id.).


    Rescission – Pecuniary Loss – Intentional Misrepresentations

    Mueller v. Harry Kaufmann Motorcars Inc., 2015 WI App 8 (filed 23 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: Although Wis. Stat. section 100.18 allows the recovery of the purchase price in some instances, rescission is not a remedy, although rescission is appropriate in situations in which there has been an intentional misrepresentation of a material fact.

    SUMMARY: The plaintiff bought a used 1995 automobile from the defendant car dealer. Dissatisfied with its condition, she sued the dealer on a variety of claims, including statutory misrepresentation under Wis. Stat. section 100.18(1) (Wisconsin’s Deceptive Trade Practices Act) and common-law intentional misrepresentation.  During the jury trial, the circuit court sua sponte precluded the plaintiff from testifying to her opinion as to the car’s value. The judge granted a directed verdict in favor of the car dealer at the close of the plaintiff’s case.

    The court of appeals reversed and remanded for a new trial in an opinion authored by Judge Brennan. The circuit court erred by granting the directed verdict to the defense. First, construing the term “pecuniary loss,” the court held that Wis. Stat. section 100.18 permits a plaintiff, in some instances, to recover the purchase price of the automobile; the remedy is not limited to recovery of the cost of repair or diminution in value (“benefit-of-the-bargain damages”) (see ¶¶ 19, 22). The statute does not, however, include rescission of a contract as a remedy (see ¶ 23).

    The circuit court also erred by sua sponte precluding the plaintiff from offering her lay opinion as to the car’s value. Wisconsin case law explicitly permits a nonexpert owner to testify to the value of property, real or personal (see ¶ 35).

    Finally, rescission is a remedy for an intentional misrepresentation of a material fact (see ¶ 41). The materiality of the alleged misrepresentation was an issue for the trier of fact and turned in large part on the plaintiff owner’s excluded opinion testimony, which the jury should have been permitted to hear (see ¶ 42).

    Criminal Law

    Bail Jumping – Violation of No-Contact Order

    State v. Bowen, 2015 WI App 12 (filed 30 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: The evidence was sufficient to convict the defendant of bail jumping for violating the condition of release that he have no contact with the victim or her residence.

    SUMMARY: Defendant Bowen was charged with the substantial battery of F.B. as an act of domestic abuse. He was released from custody on a cash bail on the condition that he comply with the court’s no-contact order, which directed that Bowen have absolutely no contact with F.B., or her residence, subsequent residence, workplace, or other location.

    Bowen went to F.B.’s residence and broke into the premises. F.B. heard the commotion from her upstairs bedroom and called the police, who located Bowen hiding in the basement. Bowen was charged with and convicted of bail jumping. 

    On appeal, Bowen argued that there was insufficient evidence to support the charge of bail jumping as it was explained to the jury in the jury instructions. The instruction stated that, among other things, the state had to prove that the defendant knew of the term of his bond that he “not have contact with F.B.” and knew his actions did not comply with that term. Bowen argued that this instruction required the jury to determine that he had personal contact with F.B. and that F.B.’s testimony that she heard breaking glass and someone moving around in her house was insufficient to show that contact.

    In a decision authored by Judge Brennan, the court of appeals affirmed. Using dictionary definitions, the court determined that “contact” can include “touching and face-to-face interactions, as Bowen argues, but it can also include auditory observations and indirect contact of the type F.B. testified occurred here” (¶ 21). Moreover, “defining the phrase ‘contact with [F.B.]’ to include entry into F.B.’s residence while she was present is consistent with the purpose of no-contact orders, that is, to keep victims safe” (¶ 24).

    “In sum, the jury instruction requiring the State to prove that Bowen made ‘contact with [F.B.]’ did not require the State to show that F.B. saw Bowen or that Bowen directly communicated with F.B. F.B.’s testimony that she saw Bowen’s truck in the driveway, heard glass breaking, and heard someone walking up and down her stairs, combined with police officer testimony that Bowen was found intoxicated in F.B.’s basement, was sufficient to demonstrate that Bowen made ‘contact with [F.B.]’” (¶ 30).

    Criminal Procedure

    Sentence Credit – Circuit Court’s Duty to Determine Amount of Sentence Credit

    State v. Kitt, 2015 WI App 9 (filed 17 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: When a convicted offender has put sentence credit at issue, the court – not the clerk – must make and explain the decision as to how much sentence credit is to be awarded.

    SUMMARY: Defendant Kitt was arrested on June 6, 2012, for selling cocaine and he remained in jail until his sentencing on Feb. 26, 2013. He filed a postconviction motion requesting sentence credit and provided the court with a booking sheet from the Racine County Sheriff’s Department reflectingthat he had spent 265 days in jail between the time of his arrest and sentencing. Kitt requested that approximately half the 265 days be credited to his sentence (with the balance of his time credited to other sentences).

    The circuit court stated that it would “have the clerk take a look at it on the sentence in this case. If he’s entitled to credit because of incarceration presentence on this matter he gets it” (¶ 1). Apparently the clerk arrived at 75 days’ sentence credit inasmuch as the court, without explanation, denied Kitt’s request and adopted the 75-day figure. In a decision authored by Judge Reilly, the court of appeals reversed.

    A convicted offender is entitled to presentence credit “for all days spent in custody in connection with the course of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a).

    “The awarding of sentence credit is a judicial function that requires a court to make explicit findings related to the award or denial of sentence credit” (¶ 3).       
    “When a convicted offender has put sentence credit at issue, the court – not the clerk – must make and explain the decision on how much sentence credit is to be awarded. As the record does not indicate how the court arrived at its decision and we cannot determine the exact amount of credit that Kitt is due from the evidence that he submitted, we remand for an evidentiary hearing” (¶ 2).

    The appellate court noted that although a circuit court can seek assistance from its court clerk in accessing records that may be relevant to its determination, the award of sentence credit is the court’s duty and the court must reach its own conclusion on the amount of sentence credit to be awarded and explain its findings and reasoning on the record (see ¶ 6).

    Shiffra Hearings – In Camera Review

    State v. Lynch, 2015 WI App 2 (filed 6 Nov. 2014) (ordered published 9 Feb. 2015)

    HOLDING: Under the Shiffra doctrine, the defense met its burden to compel an in camera review of the victim’s mental-health records; her refusal to produce those records meant that she could not testify at trial.

    SUMMARY: The state charged Lynch with sexually assaulting A.M., now age 32, when she was a young child in the early 1990s. Lynch allegedly acted in concert with A.M.’s father, who was convicted in the 1990s of sexual assaulting A.M. A.M. did not disclose Lynch’s alleged participation until many years later. The circuit court granted Lynch’s motion to conduct an in camera review of A.M.’s mental-health records for purposes of identifying exculpatory evidence. A.M. refused to disclose the records and the court ruled, pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), that she could not testify at trial. The state appealed the court’s nonfinal order.

    The court of appeals affirmed in an opinion authored by Judge Lundsten. Under the Shiffra doctrine, the defendant has the burden of showing that there is a “reasonable likelihood” that the victim’s treatment records will contain probative, noncumulative evidence necessary to determine the defendant’s guilt or innocence (see ¶ 8). The defense’s detailed, careful offer of proof laid out why the records likely contained information “highly damaging” to A.M.’s credibility, including her “ongoing symptoms associated with PTSD that affect her ability to recall and describe pertinent events” as well as her earlier failure to report Lynch’s alleged involvement to her therapists (¶ 13).

    The court also held that “the absence of reporting by A.M.’s treatment providers while A.M. was a child makes it reasonably likely that the provider’s treatment records will support a finding that A.M. did not report Lynch to these providers” (¶ 33). Such evidence was also probative, as it compelled the state to explain why A.M. would report abuse allegedly committed by her father but not abuse allegedly committed by Lynch (see ¶ 35). Finally, under current case law, the only remedy for A.M.’s refusal to produce the records was to exclude her testimony at trial (see ¶ 43).

    Search and Seizure – Curtilage – Trespasses

    State v. Dumstrey, 2015 WI App 5 (filed 23 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: An off-duty officer who followed the defendant into an apartment complex’s parking garage did not violate the defendant’s Fourth Amendment rights.

    SUMMARY: Defendant Dumstrey appealed a conviction for second-offense operating a motor vehicle while intoxicated (OWI). An off-duty police officer had pursued Dumstrey into the parking garage of Dumstrey’s apartment complex, where the officer blocked the garage door until on-duty officers arrived. The circuit court denied the defendant’s motion to suppress evidence acquired after the off-duty officer entered the parking garage.

    The court of appeals affirmed the conviction in a majority opinion authored by Judge Neubauer. The narrow question before the court was whether the parking garage of the defendant’s multiunit apartment complex was “curtilage” for Fourth Amendment purposes (see ¶ 6). No Wisconsin case had previously addressed this issue (see ¶ 9).

    Nonetheless, “[n]umerous other jurisdictions have determined that there is no constitutional violation in entering a common area or shared space in a multiunit dwelling, including a shared parking garage, without a warrant” (¶ 12). These cases hold that “tenants of multiunit dwellings do not have legitimate expectations of privacy in common or shared areas, including areas within a secured building” (¶ 13).

    “Applying the guiding principles and factors …, we conclude that under the totality of circumstances the parking garage was not curtilage. … Given Dumstrey’s lack of complete dominion and control and inability to exclude others, including the landlord and dozens of tenants and their invitees, we conclude that the parking garage was not curtilage of Dumstrey’s home” (¶ 14).

    Nor did the off-duty officer commit a “trespass” when he entered the garage. The trespass cases all involved an entry into a constitutionally protected area. Because the parking garage was not within the defendant’s curtilage, the officer’s entry did not constitute a Fourth Amendment trespass.

    Judge Reilly dissented. He saw “little difference in the reasonableness of the government breaking through a door [which it conceded it could not have done] or breaking the door’s security system in order to gain entry” [by tripping the door’s sensor] (¶ 18). The entry both constituted a trespass and violated the defendant’s right to privacy.

    Employee Benefits

    Wisconsin Family Medical Leave Act – Undocumented Employees

    Burlington Graphic Sys. Inc. v. DWD, 2015 WI App 11 (filed 23 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: An undocumented worker who qualifies as an “employee” has the right to take a medical leave under the Wisconsin Family Medical Leave Act.

    SUMMARY: This appeal raised a question of first impression that implicates two laws affecting employment in Wisconsin: the Wisconsin Family and Medical Leave Act (Wisconsin FMLA) and the Immigration Reform and Control Act of 1986. Burlington Graphic Systems Inc. fired Karen Alvarez after she took medical leave from work. Alvarez was an undocumented worker at the time. The Wisconsin Department of Workforce Development (DWD) found that Burlington violated the Wisconsin FMLA and ordered Burlington to take certain actions to avoid future violations of its employees’ rights and to pay Alvarez’s attorney fees. Alvarez’s request for back pay was denied on the ground that, as an undocumented worker, she was not authorized to work during the period in question (see ¶ 5).

    Burlington contended that an employer cannot violate the Wisconsin FMLA by discharging an undocumented worker because that worker has no right to employment in the first instance, and federal immigration law mandates the discharge. In a decision authored by Judge Reilly, the court of appeals disagreed. It concluded that “[f]ederal immigration law is not an absolute defense to an employer’s violation of the Wisconsin FMLA. Employers must abide by the Wisconsin FMLA regardless of an employee’s immigration status” (¶ 2). Alvarez fit within the broad statutory definition of an employee [see Wis. Stat. § 103.10(1)(b)]; “[t]his expansive definition does not limit its application based on an individual’s immigration status” (¶ 9). 

    Said the court: “Employees have the right to the protections of the Wisconsin FMLA and employers have the corresponding duty to abide by the law’s requirements. The fact that undocumented workers have no right to continued employment, just as at-will employees have no right to continued employment, does not mean that employers are free to ignore employment laws. Once employed, employees (regardless of immigration status) have the right to take medical leave for the period during which a serious health condition renders them unable to perform their employment duties. An employer that terminates an employee based on the exercise of his or her right to take medical leave has violated the Wisconsin FMLA and is subject to liability” (¶ 11).

    The court further concluded that the administrative law judge (ALJ) who heard this case did not erroneously exercise discretion in awarding attorney fees to Alvarez. The ALJ reasoned that Alvarez’s pursuit of her Wisconsin FMLA claim potentially benefitted other employees and Alvarez’s proof of Burlington’s violation warranted the remedial action of payment of her attorney fees (see ¶ 17). The appellate court further concluded that the ALJ properly exercised discretion in not awarding back pay to Alvarez given her undocumented status (see ¶ 16).

    Real Property

    Foreclosures – Published Notices – Redemption Periods

    Bank of America N.A. v. Prissel, 2015 WI App 10 (filed 9 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: In foreclosure proceedings, Wis. Stat. section 846.101(2) permits, but does not require, a lender to publish the notices within the six-month redemption period.

    SUMMARY: The borrowers in this case executed notes and mortgages on single-family residential properties. The notes and mortgages were later assigned to Bank of America (the bank). After both borrowers defaulted, the bank commenced foreclosure proceedings but did not seek deficiency judgments, which reduced the borrowers’ statutory redemption periods from 12 months to six months. The bank did not publish notices of foreclosure sales during the six-month redemption periods. The circuit court rejected the borrowers’ motions to vacate the foreclosure judgments on grounds that the bank had a duty to publish notice of the sales during the six-month period.

    The court of appeals affirmed in an opinion authored by Judge Stark. “Reading Wis. Stat. § 846.101(2) in context with other sections of Wis. Stat. ch. 846 supports Bank of America’s argument that the statutory language stating notice of a foreclosure sale ‘shall be given’ within the six-month redemption period is directory, rather than mandatory” (¶ 12). The court gave five reasons for rejecting the borrowers’ contention that the use of “may” in the cited foreclosure statutes “suggests the legislature intended the word ‘shall’ in the notice provision of Wis. Stat. § 846.101(2) to be mandatory” (¶ 15).

    “For all the foregoing reasons, we conclude the statement in Wis. Stat. § 846.101(2) that notice of a foreclosure sale ‘shall’ be given within six months after entry of a foreclosure judgment is directory, not mandatory. Accordingly, Bank of America was permitted, but not required, to publish notices of foreclosure sale during the Borrowers’ redemption periods. Because publication of the notices during the Borrower’s redemption periods was not required, the circuit court properly exercised its discretion by denying the Borrowers’ motions to vacate the foreclosure judgments” (¶ 28).

    Sexually Violent Persons

    Wis. Stat. Chapter 980 – Facial Challenge – Burden of Proof at Discharge Hearings

    State v. Talley, 2015 WI App 4 (filed 4 Dec. 2014) (ordered published 28 Jan. 2015)

    HOLDING: Wisconsin Statutes chapter 980 is not facially unconstitutional because the state’s burden of proof at a discharge hearing is clear and convincing evidence rather than proof beyond a reasonable doubt.

    SUMMARY: Talley was committed in 2005 as a sexually violent person under Wis. Stat. chapter 980. In a trial on his 2011 petition for discharge, a jury found that Talley continued to meet the criteria for a chapter 980 commitment. Talley contended that the statute’s clear and convincing burden of proof violated his due-process right.

    The court of appeals affirmed in an opinion authored by Judge Lundsten. The court assumed, without deciding, that Talley had not forfeited his facial challenge to Wis. Stat. section 980.09(3). Talley argued that due process compelled the use of the reasonable-doubt standard in discharge hearings.

    The court rejected Talley’s due-process challenge based on Addington v. Texas, 441 U.S. 418 (1979). Although Addington involved commitments under general civil commitment statutes, not those involving sexually violent persons, the balance between the state’s concerns and individual rights was “essentially the same” (¶ 24). Other jurisdictions have applied Addington in concluding that the clear-and-convincing standard of proof sufficed for committing sexually violent persons (see ¶ 25). No case suggested otherwise (see ¶ 26).

    Moreover, although Addington concerned an initial commitment hearing, it applies as well to Talley’s discharge hearing (see ¶ 29). Talley’s argument was “backwards”; if anything, “the higher standard at initial commitment decreases the need for more stringent procedural protections in subsequent proceedings” (¶ 30).

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