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    Wisconsin Lawyer
    May 01, 2018

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Appellate Procedure

    Venue for Appeals in Cases in Which the State Has Been Sued – Wis. Stat. section 752.21(2)

    State ex rel. DNR v. Wisconsin Court of Appeals, Dist. IV, 2018 WI 25 (filed 3 April 2018)

    HOLDING: The Wisconsin Supreme Court granted a supervisory writ directing the Wisconsin Court of Appeals to hear the appeal in this case in District II.

    SUMMARY: The Wisconsin Department of Natural Resources (DNR) reissued a Wisconsin Pollutant Discharge Elimination System permit to a dairy farm in Kewaunee County. Clean Wisconsin Inc. filed a petition in the circuit court for Dane County (the county of its residence) seeking judicial review of the DNR’s decision. Several Kewaunee County citizens (hereinafter Cochart Petitioners) filed for judicial review of the decision in the circuit court of Kewaunee County (the county of their residence).

    The Dane County Circuit Court, as the court in which the first petition was filed, exercised its statutorily granted discretion to consolidate the Kewaunee County case into the Dane County case. See Wis. Stat. § 227.53(1)(a)3. Subsequently, the Dane County Circuit Court entered judgment on the merits in favor of Clean Wisconsin and the Cochart Petitioners.

    The DNR appealed the circuit court’s decision and selected Wisconsin Court of Appeals District II as the appellate venue. A single court of appeals judge (sitting in District IV) issued an order, sua sponte, transferring venue for this appeal from District II to District IV. The judge, relying on Wis. Stat. section 752.21(1),wrote that District IV is the proper venue because it encompasses the circuit court that issued the judgment from which the DNR appealed.

    The DNR moved for reconsideration. It asserted that Wis. Stat. section 752.21(2) gave it the right to select appellate venue because Clean Wisconsin had designated the circuit court venue. Sitting as a three-judge panel in District IV, the court of appeals denied the motion. The DNR then petitioned the supreme court for a supervisory writ requiring the court of appeals to transfer venue back to District II.

    In a majority decision authored by Justice Kelly, the supreme court granted the petition for a supervisory writ and vacated the order of the court of appeals transferring the appeal in this case from District II to District IV. It ordered the court of appeals to hear the appeal in District II.

    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 majority commenced its analysis by determining whether the court of appeals would violate a plain duty to hear the DNR’s appeal in the proper court of appeals district if the venue-transfer order stands (the violation of a plain duty being one condition for the issuance of a supervisory writ).

    Ordinarily, a judgment or order appealed to the court of appeals must be heard in the court of appeals district that contains the circuit court from which the judgment or order is appealed. See Wis. Stat. § 752.21(1). However, with the enactment of 2011 Wis. Act 61, the legislature created Wis. Stat. section 752.21(2), which provides that “[a] judgment or order appealed from an action venued in a county designated by the plaintiff to the action as provided under s. 801.50(3)(a) shall be heard in a court of appeals district selected by the appellant but the court of appeals district may not be the court of appeals district that contains the court from which the judgment or order is appealed” (emphasis added).

    Wisconsin Statutes section 801.50(3)(a), which was also affected by Act 61, provides that “all actions in which the sole defendant is the state … shall be venued in the county designated by the plaintiff unless another venue is specifically authorized by law” (emphasis added). However, with respect to administrative appeals such as the one in this case, Wis. Stat. section 227.53(1)(a)3. restricts venue to the county in which the petitioner resides.

    Thus, the ultimate question was whether the petitioners “designated” the county for circuit court venue (thus giving the DNR the right to “select” court of appeals venue) or whether Wis. Stat. section 227.53(1)(a)3. removed a venue choice from the petitioners by requiring them to file in the county of their residence.

    After considerable parsing of the relevant statutory language, including the terms “designate” and “select,” the supreme court concluded inter alia that “even when [Wis. Stat. § 227.53(1)(a)3] eliminates any opportunity to choose a county, the plaintiff still designates venue within the meaning of [Wis. Stat.] § 801.50(3)(a)” (¶ 31). Thus, because Clean Wisconsin designated circuit court venue in Dane County, appellate venue lies in the court of appeals district selected by the DNR, which district cannot include the one in which Dane County lies.

    “The DNR selected District II, which is a permissible selection because District IV contains the Dane County Circuit Court. Consequently, it is the court of appeals’ plain duty to hear the DNR’s appeal in District II” (¶ 40). (Note: Because the action filed by the Cochart Petitioners was consolidated with the Clean Wisconsin action in Dane County, Clean Wisconsin’s designation of venue remains in effect for this case (see ¶ 39).)

    Because the court of appeals had a plain duty to hear this appeal in District II and because the supreme court also concluded that 1) an appeal of the court of appeals’ eventual decision on the merits is an inadequate remedy to address the question of appropriate appellate venue (see ¶ 45), and 2) the DNR would suffer irreparable harm were a supervisory writ to be denied by the supreme court (see ¶ 47), the supreme court granted the writ and vacated the court of appeals order transferring the appeal in this case from District II to District IV. “The Court of Appeals shall hear the appeal in District II” (¶ 49).

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice A.W. Bradley.

    Attorney Fees

    Equity – “Exceptional Cases”

    Nationstar Mortg. LLC v. Stafsholt, 2018 WI 21 (filed 23 March 2018)

    HOLDING: In this foreclosure action, the circuit court properly awarded attorney fees to the homeowner based on the lender’s breach, but the lender was entitled to interest on the principal amount of the loan during the default period.

    SUMMARY: This case involves a mortgage foreclosure action brought by a series of lenders against the homeowner, who in turn claimed he had deliberately skipped several payments on the lender’s own recommendation. At a bench trial, the circuit court ruled in the homeowner’s favor that equitable estoppel was appropriate and that the lender had breached the contract. The circuit court also ordered that the homeowner was entitled to attorney fees but that the lender was entitled to interest on the principal during the pendency of the case. In an unpublished opinion, the court of appeals reversed the award of attorney fees.

    The supreme court unanimously reversed the court of appeals in an opinion authored by Justice Gableman. With deference to the American rule on attorney fees, the court held that “circuit courts sitting in equity do possess the power to award attorney fees ‘in exceptional cases and for dominating reasons of justice’” (¶ 26).

    The opinion reviewed the exceptional-circumstance cases. Turning to the record before it, the court held that the circuit court had properly exercised discretion in its findings on breach, equitable estoppel, and its award of attorney fees to the homeowner (see ¶ 37). The lender, however, was entitled to interest on principal while the action was pending, lest the homeowner be placed in a “better position than if the default never occurred” (¶ 42). The opinion provides the lower court with the proper formula for calculating how much the homeowner owes on the loan (see ¶ 43).

    Criminal Procedure

    Trials – Credibility Argument – Exhibits

    State v. Bell, 2018 WI 28 (filed 10 April 2018)

    HOLDING: A prosecutor properly argued that sexual assault victims had no motive to lie and that the state’s case turned on their truthfulness; no prejudice occurred when unredacted exhibits were given to the jury.

    SUMMARY: The defendant was convicted of sexually assaulting two girls, ages 14 and 17. The defense contended that both girls were lying. During deliberations the jury received several unredacted exhibits that the defense later claimed included inadmissible evidence. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed as well in a majority opinion, authored by Justice Kelly, that is extremely fact intensive. The court held that the prosecutor’s commentary that jurors “must believe” the victims, who had “no motive” to lie, was permissible under the facts and case law (¶¶ 51, 59). The comments did not impermissibly shift the burden of proof. The court also rejected the claim that reversible error occurred when several unredacted exhibits containing inadmissible evidence were given to the jury during deliberations. Even assuming defense counsel was deficient in failing to object to the unredacted exhibits going to the jury, it was “too speculative” a basis on which to find prejudice (¶ 69).

    Justice Ziegler concurred in a helpful opinion intended “to concisely highlight the main holdings of the opinion” (¶ 73).

    Justice A.W. Bradley dissented on grounds that the prosecutor had essentially argued that the defense had the burden of showing the victims were lying (see ¶ 90).

    Chief Justice Roggensack and Justice Abrahamson did not participate in this case.


    UIM Coverage – Notice of Claim – Timeliness

    Shugarts v. Mohr, 2018 WI 27 (filed 5 April 2018)

    HOLDING: Under the underinsured motorist (UIM) policy, the operative event triggering the notice-of-claim requirement was the tender of the tortfeasor’s underlying policy limit.

    SUMMARY: The plaintiff, a deputy sheriff, was seriously injured in a car accident while chasing the tortfeasor for a hit-and-run accident in 2010. For years, the tortfeasor’s insurer insisted the policy’s intentional-acts exclusion eliminated coverage. Later, in 2014, the same insurer changed its position, tendering the tortfeasor’s policy limits. In early 2015, the plaintiff sent notice to his insurer, Allstate, that he was invoking the Allstate policy’s UIM coverage because the tortfeasor’s policy limits did not cover his damages.

    Allstate moved for summary judgment on grounds that the plaintiff’s notice was untimely. The circuit court granted the motion and, in a published opinion, the court of appeals affirmed. See 2017 WI App 27.

    The supreme court reversed in a unanimous opinion authored by Justice A.W. Bradley. The court carefully dissected Allstate’s policy, rejecting the insurer’s contention that it required a “notice of accident” much earlier; such language did not govern UIM claims. Looking at the policy’s UIM provisions, the court “conclude[d] that the operative event triggering the notice requirement in the Shugarts’ UIM policy is the tender of the tortfeasor’s underlying policy limit” (¶ 29).

    It distinguished case law addressing notice of uninsured motorist (UM) coverage, which is a “first dollar” claim, unlike UIM coverage, which is excess coverage (¶ 32). Here the plaintiff sent Allstate notice of the UIM claim just 15 days after the tortfeasor’s insurer tendered its policy limits (see ¶ 37).

    The court also rejected Allstate’s contention that the timing of the notice is governed by Wis. Stat. section 631.81(1). The statute’s text only “directs the reader back to the policy” (¶ 40).


    Special Assessments for Municipal Improvements – “Special Benefits”

    CED Props. LLC v. City of Oshkosh, 2018 WI 24 (filed 3 April 2018)

    HOLDINGS: 1) The term “special benefits” has the same meaning in the eminent domain and special assessments statutes. 2) The circuit court erroneously entered summary judgment for the city in litigation challenging a special assessment levied for a municipal improvement project.

    SUMMARY: CED owns property located in the city of Oshkosh on which a Taco Bell franchise has operated for many years. In 2008 the city and the Wisconsin Department of Transportation entered into an agreement to construct a roundabout at the intersection where CED’s property is located. The city used its power of eminent domain to take some of CED’s property for the construction.

    In lengthy litigation over just compensation for the taking, the city’s appraisal expert testified during his deposition that the taking did not confer any “special benefits” on CED’s property, as that term is used in the relevant eminent domain statute. See Wis. Stat. § 32.09(3). The city later passed a resolution levying a special assessment upon CED’s property to help fund the roundabout project; this was done pursuant to Wis. Stat. section 66.0703(1)(a), which allows for special assessments for “special benefits” conferred upon the property by a municipal improvement project.

    Following some appellate litigation about the timeliness of CED’s challenge to the special assessment (in which CED prevailed), the city issued a final resolution authorizing the special assessment. A report accompanying the resolution described multiple “special benefits” conferred upon CED’s property by the roundabout.

    CED appealed the special assessment to the circuit court, claiming that the roundabout project conferred only community or general benefits and no local or special benefits at all. It argued that because the city conceded “special benefits” did not accrue to CED’s property during the Wis. Stat. chapter 32 eminent domain action, the city forfeited the opportunity to assert “special benefits” during the later special assessment appeal.

    Alternatively, CED argued that even if asserting special benefits during the eminent domain action was not a condition precedent to asserting them during the Wis. Stat. chapter 66 special assessment action, the improvements were not local in nature and no special benefits accrued to CED’s property. In support of its position, CED submitted the affidavit and appraisal of its own expert, who concluded that no benefit accrued to CED’s property from the construction project and that the roundabout was actually detrimental to it.

    The circuit court granted the city’s motion for summary judgment. In an unpublished decision, the court of appeal affirmed.

    In a majority opinion authored by Justice R.G. Bradley, the supreme court reversed. It identified the two issues before it as follows: “(1) whether the term ‘special benefits’ in Wisconsin’s eminent domain statute has the same meaning in Wisconsin’s special assessments statute, and if so, whether the City’s denial of the existence of any special benefits during the earlier eminent domain proceeding precludes the City from asserting the conferral of special benefits in the later special assessment action; and (2) whether CED raised genuine issues of material fact precluding summary judgment” (¶ 1).

    As to the first issue, the majority concluded that “‘special benefits’ means the same in both the eminent domain statute, Wis. Stat. § 32.09(3), and the special assessments statute, Wis. Stat. § 66.0703(1)(a): ‘uncommon advantage’” (¶ 52).

    “Under § 32.09(3), only those special benefits that affect the market value of a property because of a planned improvement must be considered and used to offset the compensation owed to the owner of property taken for the improvement. Section 66.0703(1) permits a municipality to levy and collect a special assessment upon property for special benefits conferred upon the property by an improvement, regardless of the improvement’s effect on the property’s market value. Because of this distinction, a governmental body’s failure to raise special benefits in the eminent domain action does not foreclose its ability to levy and collect a special assessment upon a property for special benefits conferred” (id.).

    As to the second issue, the majority found that “[t]he circuit court improperly entered summary judgment in the City’s favor in light of CED’s submission of evidence challenging the validity of the special assessment, which showed a genuine dispute regarding whether the improvement plan was general or local and whether the project conferred special benefits on CED. Each of these issues must be decided by the trier of fact. If the factfinder on remand finds the improvement was local and conferred a special benefit on CED’s property, the circuit court will then determine whether the assessment was reasonable as a matter of law” (¶ 53).

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice A.W. Bradley.

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