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    Wisconsin Lawyer
    July 27, 2020

    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

    Sentencing – Sentence Credit

    State v. Kontny, 2020 WI App 30 (filed 21 April 2020) (ordered published 27 May 2020)

    HOLDING: The defendant was entitled to sentence credit for the day on which he was arrested but was not entitled to credit for the day on which he was sentenced.

    SUMMARY: This case concerned the calculation of sentence credit. A convicted offender “shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a). Specifically, an offender is entitled to sentence credit for time spent in custody “[w]hile the offender is awaiting trial,” “[w]hile the offender is being tried,” and “[w]hile the offender is awaiting imposition of sentence after trial.” Wis. Stat. § 973.155(1)(a)1.-3.

    One issue in this case was whether the defendant was entitled to sentence credit for the day of his arrest. The arrest occurred at 11:46 p.m., and he was thus in custody on that date for only 14 minutes. The state conceded that the defendant was entitled to one day of sentence credit for the day of his arrest. In a decision authored by Judge Stark, the court of appeals agreed with that concession (see ¶ 8).

    The other issue before the court of appeals was whether the defendant was entitled to sentence credit for the day on which he was sentenced. Wis. Stat. section 973.15(1) provides that “all sentences commence at noon on the day of sentence.” And, as quoted above, Wis. Stat. section 973.155(1)(a)3. provides that the defendant is to be given credit for all days spent in custody “[w]hile the offender is awaiting imposition of sentence after trial” (emphasis added).

    Reading these statutes together, the court of appeals concluded that “a defendant is not entitled to sentence credit for the date on which he or she is sentenced. The statutory language ‘awaiting imposition of sentence’ does not include the date of sentencing because that is the date a defendant’s sentence begins. As such, the date of sentencing is counted toward the service of the defendant’s sentence. If a defendant also received sentence credit for the date of his or her sentencing, the defendant would receive double credit for that day” (¶ 12).

    Search and Seizure – Consent – Plain View – Right to Counsel

    State v. Abbott, 2020 WI App 25 (filed 16 April 2020) (ordered published 27 May 2020)

    HOLDINGS: 1) Police officers properly seized several sweatshirts from the defendant’s wife. Seizure of the defendant’s clothing at a hospital was unlawful but was a harmless error. 2) The defendant did not explicitly assert his right to counsel during interrogation.

    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 an Alford guilty plea to a homicide, after the circuit court denied his motion to suppress various articles of clothing seized by police officers during their investigation and statements he made to police officers.

    The court of appeals affirmed in an opinion authored by Judge Graham. First, the police officers properly received several sweatshirts, which bore the victim’s blood, from the defendant’s estranged wife. The clothing was in her home, and she had actual authority to give them to police officers because the defendant was living in her basement at the time. The “estrangement” did not negate the wife’s “common authority to consent to the seizure of the sweatshirts” (¶ 17).

    However, police officers’ seizure of other clothing from a “patient belongings bag” at a hospital where the defendant was being treated was unlawful. The officers lacked authority under the plain-view doctrine to seize the items, even though they may have had authority to inspect them (see ¶ 23). Although unlawful, the police misstep was harmless error. The court declined the state’s invitation to replace the long-standing harmless-error analysis with a manifest-injustice standard (see ¶ 39).

    Finally, the defendant failed to show that he clearly and unambiguously asserted his right to counsel while he was being interrogated. He was not entitled to a more relaxed rule based on his mental state (see ¶ 36).

    Drug Courts – Sentencing – Actual Bias

    State v. Marcotte, 2020 WI App 28 (filed 14 April 2020) (ordered published 27 May 2020)

    HOLDING: Actual bias occurred when the drug court judge who presided over the defendant’s participation in a drug court program sentenced the defendant after his termination from that program.

    SUMMARY: The defendant was convicted of delivering methamphetamine and placed in a treatment program through a drug court. The judge who presided over the drug court monitored the defendant, warning him that if treatment failed, he faced prison. Ultimately, the defendant was terminated from drug court participation, his probation was revoked, and he absconded. When he was finally returned to court for sentencing, the same judge presided, imposing a 10-year sentence (five years of initial confinement followed by five years of extended supervision). The judge clearly was frustrated by the defendant’s behavior. In a postconviction motion seeking resentencing, the defendant alleged that the judge displayed actual bias. The same judge denied that motion.

    The court of appeals reversed and remanded for a resentencing before a different judge based on the sentencing judge’s actual bias. Judge Stark authored the opinion. Simply put, the court of appeals said that the judge displayed objective bias based on his comments in the record over time as well as his dual role as presiding judge in the drug court and sentencing judge after the probation revocation.

    The opinion discusses the case law on actual bias and apparent bias in light of this record and, more generally, the difficult position judges are in when they are tasked with both administering a drug treatment court and sentencing those who do not successfully complete its programs.

    The court of appeals underscored that a judge’s “investment in a defendant’s rehabilitation,” as here, is appropriate (¶ 30). Moreover, “when a judge makes comments during drug court proceedings indicating that a defendant will receive a certain sentence if he or she is terminated from drug court, the judge has an institutional interest in following through on the promise” if the defendant is later revoked (¶ 31). The appellate court also acknowledged that “a drug court judge receives significant amounts of ex parte information about drug court participation that no other judge would have access to when sentencing individuals” (¶ 32).

    Although the court of appeals stopped short of holding that a presiding drug court judge cannot sentence a defendant who does not successfully complete the program (see ¶ 40), it cautioned that the dual role gives rise to an appearance of bias and a “great risk of actual bias”
    (¶ 41). The “better practice would be for different judges to preside over a defendant’s drug court proceedings and his or her sentencing after revocation” (¶ 42). Alternatively, these problems might be avoided by a judge imposing and staying a sentence before the defendant is referred to drug court. This is “particularly appropriate” when prison appears to be the prime alternative for an unsuccessful drug treatment program (id.).


    Gifts Causa Mortis – Donor Suicide

    Estate of Oaks v. Stouff (In re Estate of Oaks), 2020 WI App 29 (filed 28 April 2020) (ordered published 27 May 2020)

    HOLDING: The circuit court correctly awarded the decedent’s entire estate to the respondent pursuant to the doctrine of gift causa mortis.

    SUMMARY: In a handwritten note dated March 7, 2018, Oaks wrote the following: “As I leave this existence I want all worldly belongings to be assigned to Lynne.” Lynne Stouff and Oaks had been in a romantic relationship for more than 23 years and lived together for the 10 years preceding March 2018. On March 8, 2018, Oaks fatally shot himself. He did not have a will at the time of his death. He had an adult daughter from whom he had been estranged for many years before his death. Under the normal rules of intestate succession, Oaks’ entire estate would pass to his daughter.

    The daughter filed a petition for formal administration of Oaks’ estate. Stouff later filed several claims against the estate, contending that she was entitled to the entire estate under the doctrine of gift causa mortis based on the note Oaks wrote just before he died. The estate argued that a gift causa mortis can never occur when the donor dies by suicide. On summary judgment, the circuit court awarded the entire estate to Stouff.

    “Under the doctrine of gift causa mortis, a gift made during the life of the donor becomes effective upon the donor’s death if certain requirements are met. Specifically, in order to establish a gift causa mortis, a claimant must prove that: (1) the donor had an intention to make a gift effective at death; (2) the donor made the gift with a view to the donor’s death from present illness or from an external and apprehended peril; (3) the donor died of that ailment or peril; and (4) there was a delivery of the gifted property” (¶ 13) (internal quotations and citations omitted).

    In this case the estate challenged the circuit court’s conclusion that the second, third, and fourth requirements were satisfied. The estate conceded that the first element was met.

    With regard to the second and third requirements, the estate argued that Stouff cannot prove Oaks gifted that property in anticipation of his death from a present illness or an external peril because suicide is not a present illness or an external peril. Further, because Oaks died as a result of suicide, the estate contended he did not die from a present illness or an external peril.

    In an opinion authored by Judge Stark, the appellate court concluded that the fact that a donor died by suicide does not automatically prevent a party from establishing that the donor made a gift causa mortis (see ¶ 17). Said the court: “[T]he Estate fails to distinguish between the manner of a donor’s death and the ultimate cause of the donor’s death. While the manner of death may be suicide, that suicide may, in some cases, have been caused by a present mental illness – for instance, depression. Accordingly, even in a case in which the donor died by suicide, a party may be able to show that the donor made a gift in expectation of his or her death from a present mental illness, and that the present mental illness caused the donor’s death” (id.).

    In this case, “the uncontroverted evidence on summary judgment gave rise to only one reasonable inference – i.e., that Oaks’ suicide was the result of depression, a present mental illness” (¶ 29 n.5). Accordingly, Stouff established a prima facie case for summary judgment with respect to the second and third requirements for a gift causa mortis.

    The estate also argued that the fourth requirement for a gift causa mortis was not satisfied because there was no delivery of the gifted property. It contended that under Wisconsin law a valid delivery requires the decedent to physically give the intended gift, or indicia thereof, to the recipient.

    Said the court in response: “The problem with the Estate’s argument is that the gift in this case did not involve a single small item, or a single bank account or safe deposit box. Rather, in this case, Oaks gifted all of his ‘worldly belongings’ to Stouff. As Stouff correctly observes, ‘[i]t would have been impossible for Mr. Oaks to physically hand Ms. Stouff everything [he owned]’” (¶ 32).

    The Wisconsin Supreme Court has recognized that the form a delivery of property must take depends on its nature and the situation of the parties. In this case, given the all-encompassing nature of “all worldly belongings,” the nature of the property did not permit actual, physical delivery of each item, or of indicia of ownership of each item, from Oaks to Stouff (¶ 32).

    Wisconsin case law makes clear that “when one member of a household gifts property to another member of the same household, and the property is located at their shared residence, physical delivery of the property from one to the other is not required. Rather, what is necessary is that the donor declare his or her intention to make a gift and thereafter treat the property as belonging to the donee” (¶ 37).

    Said the court: “That is precisely what occurred in this case…. We agree with Stouff that under these circumstances, when Mr. Oaks left the note for Ms. Stouff on the table and when Ms. Stouff found the note, he completed delivery for the purpose of the gift causa mortis analysis” (¶ 38) (internal quotations omitted).

    Lastly, the court of appeals corrected a mathematical error made by the circuit court in the calculation of Stouff’s expense reimbursement claim against the estate.

    Mental Commitments

    Motion to Extend – Actual Notice – Timing of Hearing

    Marathon Cty. v. R.J.O. (In re Mental Commitment of R.J.O.), 2020 WI App 20 (filed 14 April 2020) (ordered published 27 May 2020)

    HOLDING: R.J.O., who had been committed under Wis. Stat. chapter 51, had actual notice of a hearing to extend her initial commitment; the court retained jurisdiction when R.J.O. failed to appear for the hearing.

    SUMMARY: R.J.O. was involuntarily committed for 120 days in April 2016. The commitment was set to expire on Aug. 11, 2016. On July 20, 2016, the county petitioned to extend the commitment pursuant to Wis. Stat. section 51.20(13)(g). The hearing was scheduled for Aug. 10, 2016, but R.J.O. was never served with this notice and, after conferring with counsel, did not appear. Regardless, the circuit court later extended her commitment. It then reversed course, agreeing with R.J.O. that it had lost competency to consider the county’s petition to extend her commitment before the initial commitment expired. The county appealed, and R.J.O. cross-appealed.

    The court of appeals reversed in an opinion authored by Judge Stark. R.J.O. received proper notice of the recommitment hearing because her lawyer had notice and it was undisputed that he in turn gave R.J.O. actual notice (see ¶ 3). The court of appeals rejected the circuit court’s conclusion that it lost competency to consider the recommitment petition by failing to hold a hearing before the original commitment expired. R.J.O.’s failure to appear on Aug. 10, 2016, resulted in an extension of the time within which to hold the hearing based on the order for detention.

    Among other issues the court considered were proper notice of the recommitment hearing, competency to extend a commitment, the untimeliness of R.J.O.’s jury demands (see ¶ 41), and ineffective assistance of counsel based on counsel’s advice that R.J.O. not appear on Aug. 10, 2016, as well as his handling of the jury demand (see ¶ 42).

    Municipal Law

    Piers – Regulation by Municipal Ordinances

    Oneida Cty. v. Sunflower Prop II LLC, 2020 WI App 22 (filed 21 April 2020) (ordered published 27 May 2020)

    HOLDING: Municipal regulations enacted pursuant to Wis. Stat. section 30.13(2) cannot be applied to a pier that qualifies for a permit exemption under Wis. Stat. section 30.12(1g)(f).

    SUMMARY: Sunflower Prop II constructed a pier from the shoreline of adjacent riparian properties that it owns. Oneida County notified Sunflower that the pier was in violation of various provisions of the Oneida County zoning and shoreland protection ordinance, and it issued Sunflower several citations. The county had adopted these regulations pursuant to its authority under Wis. Stat. section 30.13(2).

    Sunflower objected, arguing that the ordinance was unenforceable because its pier complies with the requirements for a permit exemption under Wis. Stat. section 30.12(1g)(f) and that a municipality lacks the authority to regulate the construction and location of piers that qualify for that exemption. Ultimately the circuit court granted judgment against Sunflower on one of the citations. In an opinion authored by Judge Hruz, the court of appeals reversed.

    Wis. Stat. section 30.12(1) prohibits a person from depositing material or placing a structure on a bed of navigable water unless an individual or general permit has been “issued under this section” or unless authorization has otherwise been granted by the legislature. The statute contains a number of exemptions in subsec. (1g), which allow the placement of certain types of structures or materials if the structure or material is not located in an area of special natural resource interest and if the structure or material does not interfere with the riparian rights of other riparian owners (see ¶ 10).

    In this case the court of appeals agreed with Sunflower that “municipal regulations enacted pursuant to Wis. Stat. § 30.13(2) cannot be applied to a pier that qualifies for a permit exemption under Wis. Stat. § 30.12(1g)(f)” (¶ 2). Based on the appellate record, however, it was unclear whether Sunflower’s pier in fact qualifies for that exemption, specifically the requirement that a pier be “no more than 6 feet wide.” See Wis. Stat. § 30.12(1g)(f)1.a.

    Accordingly, the appellate court reversed the circuit court’s judgment and remanded for further proceedings consistent with this opinion. “If the court determines that Sunflower’s pier meets the criteria for the subsec. (1g)(f) exemption, it is directed to dismiss the citation in accordance with our statutory analysis above. If the court determines that Sunflower’s pier does not qualify for the (1g)(f) exemption, it may conduct further proceedings as are appropriate to resolve the case” (¶ 23).

    Real Property

    Inverse Condemnation – Time Limitation for Commencing Action

    Southport Commons LLC v. Wisconsin DOT, 2020 WI App 26 (filed 15 April 2020) (ordered published 27 May 2020)

    HOLDING: A claim for inverse condemnation must be filed within three years after the alleged damage occurred.

    SUMMARY: Southport owns approximately 45 acres on what it described as being “in a prime location for commercial development” near Interstate 94 in Kenosha County. In 2008 and 2009, the Wisconsin Department of Transportation (DOT) relocated an I-94 frontage road so as to bisect Southport’s property with this new road.

    In July 2016, Southport received a survey and wetland delineation of its property, which, when compared to a similar 2007 survey and delineation, identified a significant increase in the size and amount of wetlands on the property, resulting from the DOT’s construction project. Southport claimed that it had no knowledge of the wetlands increase and the resulting damage caused to its property before receiving the 2016 survey and delineation.

    In March 2017, Southport filed a notice of claim against the DOT, which the DOT effectively denied. Southport then filed this lawsuit, claiming inverse condemnation and seeking just compensation. The circuit court granted the DOT’s motion for judgment on the pleadings.

    Wis. Stat. section 88.87(2)(c) provides that a property owner can file an inverse condemnation claim such as Southport’s “within 3 years after the alleged damage occurred.” Southport argued that this statute really means that its claim needed to be filed within three years after the alleged damage was discovered.

    In an opinion authored by Judge Gundrum, the court of appeals disagreed. It concluded that the statute means what it says (see ¶ 1). The statute unambiguously provides that the three-year limitation begins to run when the alleged damage “occurred” (see ¶ 6).

    In this case the circuit court concluded that the damage occurred in 2009 (at the latest) and Southport did not challenge that factual determination on appeal. Accordingly, the court of appeals affirmed the decision of the circuit court granting the DOT judgment on the pleadings.

    Highway Improvement Projects – Changing Grade of Street or Highway – Damages Claims

    United Am. LLC v. Wisconsin DOT, 2020 WI App 24 (filed 28 April 2020) (ordered published 27 May 2020)

    HOLDING: Under Wis. Stat. section 32.18, a qualifying landowner can make a claim for damages resulting from structural or physical harm to land only if the harm is caused by a change-of-grade highway project.

    SUMMARY: United America (United) operated a gas station and convenience store at the intersection of Highway 51 and Northstar Road in Lincoln County. The two roads met at an at-grade intersection, giving motorists easy access to United’s property via Northstar Road. In 2013, the Wisconsin Department of Transportation (DOT) undertook a highway safety project at the intersection, which involved changing the grade of the intersection. An overpass was constructed for Northstar Road, and there were no on- or off-ramps to or from Highway 51. As a result, the direct flow of traffic from Highway 51 to Northstar Road ceased and United claimed that it lost approximately 90 percent of its business.

    United made an administrative claim for damages under Wis. Stat. section 32.18. After the DOT denied the claim, United brought a civil claim for damages. After a trial, the circuit court entered judgment in favor of United for $528,500 – the amount United’s expert appraiser concluded was the reduction in the property’s value. In an opinion authored by Judge Seidl, the court of appeals reversed.

    Wisconsin law provides that when a governmental entity exercises its police power to change the grade of a street or highway, and it does so without also taking any land, an owner of land abutting the street or highway project can make “a claim for any damages to said lands occasioned by such change of grade.” Wis. Stat. § 32.18. The issue in this case was whether this statute allows for a qualifying landowner to recover damages for nonstructural harm occasioned by a change-of-grade highway project. (United did not assert that the highway project caused any structural harm to its property.)

    The appellate court concluded that “the only damages compensable under the statute are damages to land. Stated differently, a qualifying landowner may only make a claim for structural or physical damages to his or her lands under § 32.18; the landowner cannot make a claim for any consequential damages such as lost profits or a diminution in property value caused by the change-of-grade project” (¶ 15). Because United failed to prove its property suffered any structural or physical harm as a result of the project, the circuit court erred in granting a money judgment in its favor.

    In its decision, the court compared Wis. Stat. section 32.18 with Wis. Stat. section 32.09, which governs the determination of just compensation in eminent domain cases and expressly provides for diminution-in-value damages in both total and partial takings cases (see ¶ 22). However, United’s case was not an eminent domain case but a case in which the DOT exercised its police power to change the grade of a street or highway.


    Subcontractors – Economic Loss Doctrine – Interrelated Contracts

    Mechanical Inc. v. Venture Elec. Contractors Inc., 2020 WI App 23 (filed 22 April 2020) (ordered published 27 May 2020)

    HOLDING: In a construction dispute between subcontractors, each of which had contracted with the general contractor, the economic loss doctrine barred negligence claims seeking “delay damages.”

    SUMMARY: A general contractor hired one subcontractor, Mechanical, to install the HVAC systems and another subcontractor, Venture, to install the electrical systems on a construction project. The subcontracts were similar. As construction progressed, Mechanical sued Venture seeking payment of $12,000 for work done at Venture’s request. Venture responded by counterclaiming for more than $1 million in damages for delay-related harm caused by Mechanical’s negligence. The circuit court granted summary judgment in Mechanical’s favor, ruling that the economic loss doctrine barred Venture’s negligence claim.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. “[T]he economic loss doctrine essentially provides that ‘a party to a contract may not pursue tort remedies to recover solely economic losses arising out of the performance or nonperformance of the contract’” (¶ 12). “Honoring the distinction between tort and contract law, the economic loss rule generally holds purchasers to their contract remedies for loss to the product or work itself (i.e., economic loss), but not losses due to other property damage or physical injury” (¶ 15).

    In this case, however, Venture and Mechanical did not contract with one another. Rather, they each contracted with the general contractor. Case law provides that “interrelated contracts” are also subject to the economic loss doctrine (¶ 17). Although the parties did not have a “vertical relationship …, this large construction project nonetheless involved multiple interrelated contracts, where each subcontractor allocated its risks, duties, and remedies in their contracts for the project as part of a single comprehensive scheme to construct a building” (¶ 21). This case presented novel facts, but the court’s holding was a “natural progression” of current case law (¶ 29).

    “In conclusion, the contract between the owner (State) and the general contractor (Cullen) controls and was for construction of a building for purposes of the economic loss doctrine. Regardless of the absence of a vertical chain of contracts between the horizontal subcontractors, the economic loss doctrine bars a negligence claim for economic loss solely between them. The network of interrelated contracts contained their duties of care and contractual remedies. Thus, there is no independent tort duty owing from Mechanical to Venture to timely perform its contract with Cullen, or to avoid the risk of economic loss to Venture. Finding otherwise would eliminate the contract/tort distinction” (¶ 30).

    Jury Instructions – Cause – Preexisting Injuries

    Pennell v. American Family Mut. Ins. Co., 2020 WI App 27 (filed 15 April 2020) (ordered published 27 May 2020)

    HOLDING: The court of appeals granted a new trial because of the judge’s refusal to give jury instructions on the cause of the plaintiff’s injuries and aggravation of her preexisting injuries.

    SUMMARY: This action arises out of an automobile accident. The plaintiff claimed that her preexisting headaches were aggravated by the collision. At the instruction conference, the judge declined to instruct the jury on the cause of the plaintiff’s injuries (as opposed to the accident itself) and to instruct on aggravation of preexisting injuries, namely, her migraine headaches. The jury awarded the plaintiff $24,000 for past medical expenses and $18,000 for past pain and suffering, far less than she requested. It did not award damages for future medical expenses or future pain and suffering. The plaintiff appealed.

    The court of appeals reversed in an opinion authored by Judge Reilly. Because the trial involved issues related to causation of the plaintiff’s injuries as well as the accident itself, the trial judge should have read to the jury Wisconsin Jury Instruction–Civil 1500. Without it, the jury was misled regarding causation of the plaintiff’s injuries (see ¶ 9). The facts also “clearly supported” reading to the jury Wisconsin Jury Instruction–Civil 1720 on “aggravation or activation” of preexisting injuries. Without it, the jury was left uninstructed on what standard to apply when considering the plaintiff’s pre-accident headaches and her post-accident headaches (¶ 13).

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