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    Wisconsin Lawyer
    June 01, 2018

    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

    Criminal Procedure

    Searches – Apparent Consent

    State v. Torres, 2018 WI App 23 (filed 28 March 2018) (ordered published 25 April 2018)

    HOLDING: Police officers had apparent authority to enter and search a murder victim’s apartment.

    SUMMARY: The body of Torres’ father was found in a bedroom of the apartment where the victim and the defendant lived. Police officers were allowed to enter by the defendant’s mother, the victim’s ex-wife, who had a key and who often entered the apartment with the victim’s consent. The circuit court denied the defendant’s motion to suppress evidence found in the apartment on grounds that police had entered unlawfully. Torres, age 17, was convicted of murdering his father.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. The court addressed only the doctrine of apparent consent, not the “community caretaking exception.” The victim had given an apartment key to his ex-wife for purposes of “checking” on their son, the defendant, when needed. The record revealed “considerable” evidence that she exercised “common authority” for purposes of apparent consent (¶ 20). The officers’ reliance on these circumstances was reasonable.

    The case construes the factors set forth in earlier cases. In particular, it was not essential to show that the ex-wife had stayed overnight in the apartment on earlier occasions.

    Plea of Not Guilty by Reason of Mental Disease or Defect – Circuit Court NEED NOT Inform Defendant Regarding Maximum Length of Commitment

    State v. Fugere, 2018 WI App 24 (filed 6 March 2018) (ordered published 25 April 2018)

    HOLDING: The defendant’s plea of not guilty by reason of mental disease or defect was not rendered unknowing, unintelligent, or involuntary by virtue of the circuit court’s inaccurate statement about the length of the civil commitment the defendant would face if found to be not guilty by reason of mental disease or defect.

    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.

    SUMMARY: The defendant entered a plea of not guilty by reason of mental disease or defect (NGI) to a charge of first-degree sexual assault. He did not couple this plea with a standard not-guilty plea. Had he coupled his NGI plea with a not-guilty plea, he would have been entitled to a trial bifurcated into two phases as follows: in the first phase it would be determined whether he in fact committed the alleged offense; if the state were successful in the first phase, then in the second phase the matter of the defendant’s mental responsibility for the crime would be determined.

    Because the defendant entered only an NGI plea, “he waive[d] the constitutional right to a trial as to the guilt phase and admit[ted] that he … committed the criminal act” (¶ 14). However, before proceeding with the standalone NGI plea, the court was required to ensure that the defendant understood the nature of the crime with which he was charged and the range of punishments he was facing if convicted of that crime (see id.).

    The court correctly advised the defendant that, if convicted of first-degree sexual assault, he faced a maximum term of imprisonment of 60 years. However, the court erroneously advised him about the maximum length of commitment he faced if found not guilty by reason of mental disease or defect. Ultimately, the defendant was found not guilty by reason of mental disease or defect as a result of a stipulation between the parties, and he was committed to institutional care.

    The defendant sought to withdraw his NGI plea, claiming that it was not knowingly, intelligently, and voluntarily made because the circuit court incorrectly advised him about the maximum term of civil commitment he faced if found not guilty by reason of mental disease or defect. The circuit court denied the motion.

    In a decision authored by Judge Seidl, the court of appeals affirmed. It concluded that “while a circuit court must correctly advise a defendant pleading NGI of the maximum term of imprisonment he or she faces, a court’s failure to accurately advise a defendant of his or her possible maximum civil commitment term does not render an NGI plea unknowing, unintelligent, or involuntary. The safeguards required for a valid plea apply only to the guilt phase of an NGI plea, and an individual’s possible civil commitment resulting from an acquittal during the subsequent mental responsibility phase is neither a ‘punishment’ nor a direct consequence of a defendant pleading guilty or no contest during the guilt phase” (¶ 2).

    “Therefore, a circuit court need not advise a defendant regarding his or her possible civil commitment – much less do so accurately – in order for a defendant’s NGI plea to be knowing, intelligent, and voluntary. Applying these standards to the facts of this case, [the defendant] is not entitled to withdraw his plea” (id.).

    Real Property

    Foreclosures – Statute of Limitation – Failure to State a Claim – Summary Judgment

    Bank of N.Y. Mellon v. Klomsten, 2018 WI App 25 (filed 22 March 2018) (ordered published 25 April 2018).

    HOLDING: In a mortgage-foreclosure action, the circuit court properly rejected objections that the action was barred by the statute of limitation or failed to state a claim, but the appellate court reversed the grant of summary judgment on grounds that the record failed to show that the bank was the proper plaintiff.

    SUMMARY: The Bank of New York Mellon (the Bank) initiated a foreclosure action against the Klomstens. The circuit court granted summary judgment in the Bank’s favor, denying the Klomstens’ objections.

    The court of appeals reversed in an opinion authored by Judge Kloppenburg, which rejected two of the Klomstens’ objections but ruled in their favor on the third. First, the foreclosure action was not barred by the statute of limitation. The Klomstens stopped paying 11 years earlier yet case law dating from 1866 establishes that a suit to foreclose a mortgage is not barred by the six-year statute, unlike an action on the note (debt) itself (see ¶ 16).

    Second, the Bank’s complaint properly stated a claim for relief, namely, it made “allegations permitting the reasonable factual inference that the Bank will be a qualifying holder when the Bank is required to present evidence” (¶ 25). “[T]he Klomstens point to no law requiring that a plaintiff specifically allege in its complaint that it possesses the original note, when, as here, there are sufficient facts from which it can be reasonably inferred that the plaintiff is entitled to foreclosure assuming those inferences are true” (¶ 27).

    As to the third issue, the circuit court improperly granted summary judgment to the Bank. Specifically, the record did not establish that the Bank possessed the original note (see ¶ 33). Anticipating further litigation upon remand, the court also addressed “the issue of whether the copy of the note” attached to an affidavit “is a copy of the original note” (¶ 36).


    Property Taxes – Classification of Property as “Agricultural”

    State ex rel. Peter Ogden Family Tr. of 2008 v. Board of Review, 2018 WI App 26 (filed 7 March 2018) (ordered published 25 April 2018)

    HOLDING: It is the growing of qualified crops that constitutes an “agricultural use” in the classification of property for property tax purposes; whether the crops are grown for a commercial purpose is irrelevant.

    SUMMARY: In April 2003, the Ogdens purchased the land at issue in this case. At the time, the land was classified as residential for property tax purposes, and it remained so classified until 2012, when the assessor changed the classification to agricultural and agricultural forest based on pine trees, apple trees, and hay the Ogdens had planted on the property. In 2016, the assessor reclassified the property as residential after concluding that it failed to qualify for the agricultural and agricultural forest classifications. If the property had remained classified as agricultural and agricultural forest, it would have been valued at $17,100, whereas it was valued at $886,000 when reclassified as residential – resulting in a significant difference in property tax owed.

    The Ogdens challenged the reclassification of the property to residential but the Delafield Board of Review (the Board) sustained the reclassification. On certiorari review the circuit court upheld the Board’s decision.

    In an opinion authored by Judge Gundrum, the court of appeals reversed. It concluded that the Board failed to act according to law in sustaining the reclassification and thus the property tax assessment. It was clear to the appellate court that the assessor and the Board reclassified the property as residential based on a belief that the land did not qualify for the agricultural classification because the crops at issue were not being grown for a business purpose (see ¶ 9). This was an erroneous understanding of the law.

    Said the court: “According to the plain language of Wis. Stat. § 70.32(2)(c)1i., Wis. Admin. Code § TAX 18.05(1) (June 2015), and subsector 111 Crop Production [of the North American Industry Classification System, United States], it is the ‘growing’ of qualifying crops that constitutes agricultural use, whether they are grown for a commercial purpose or not” (¶ 24).


    Medical Malpractice – Borrowing Statute

    Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27 (filed 27 March 2018) (filed 25 April 2018)

    HOLDING: A negligent misdiagnosis action was governed by Michigan law pursuant to the borrowing statute; the action was properly dismissed as untimely.

    SUMMARY: Paynter was a resident of Michigan. In June 2010 a physician who practiced in both Michigan and Wisconsin told him that a growth on his neck was not cancerous. In June 2014 a different physician told Paynter that the growth was cancerous, and that the cancer had been present in 2010.

    Paynter and his spouse filed a medical malpractice-informed consent action against the first physician in Wisconsin in 2015. The circuit court granted summary judgment in favor of the physician on grounds that under Wisconsin’s borrowing statute, Wis. Stat. section 893.07, the action was controlled by Michigan law and that the lawsuit was untimely.

    The court of appeals affirmed in an opinion authored by Judge Stark. It was undisputed that the plaintiffs’ action was timely filed under Wisconsin law (see ¶ 13). The court held, however, that the action was governed by the borrowing statute, which in turn meant that Michigan law controlled (see ¶ 15).

    The “operative question” in this case was whether the plaintiff’s “injury” occurred outside of Wisconsin, for purposes of the borrowing statute (¶ 19). Here the injury involved the growth of his cancer.

    The court rejected the plaintiffs’ argument that their action was not a “foreign cause of action” as long as Paynter suffered some injury in Wisconsin, “even if he was also injured in Michigan” (¶ 28). For purposes of the borrowing statute, an injury occurs at the first moment in time when the plaintiff sustains an injury (see ¶¶ 32, 39). The defense established a prima facie case that this event occurred in Michigan; the plaintiffs failed to submit sufficient evidence creating a genuine issue of material fact for purposes of summary judgment (see ¶ 35).

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