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    Wisconsin Lawyer
    October 21, 2021

    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

    Pleadings – Disclosure of Identities of the Parties – Protective Orders

    John Doe 1 v. Madison Metro. Sch. Dist., 2021 WI App 60 (filed 22 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The circuit court did not erroneously exercise its discretion when it issued a protective order sealing the plaintiffs’ identities from the other parties and the general public and permitting disclosure of their identities only to the court and to the parties’ lawyers.

    SUMMARY: The petitioners are parents of students attending schools in the Madison Metropolitan School District. They initiated this action for declaratory and injunctive relief by filing a complaint in which they identified themselves only by “John/Jane Doe” pseudonyms, along with a “motion to proceed using pseudonyms.” The action challenges the district’s “Guidance & Policies to Support Transgender, Non-binary & Gender-Expansive Students.” The parents alleged that the guidance, by allowing students to “change gender identity” and select new names and pronouns for themselves “regardless of parent/guardian permission,” interferes with the parents’ “fundamental right” under article I, section 1 of the Wisconsin Constitution and the 14th Amendment to the U.S. Constitution to “direct the upbringing” of their children (¶ 2). The complaint alleged that identification of the parents only by pseudonyms is necessary “to protect [the parents’] privacy and the privacy of their minor children, and to prevent retaliation against them for raising this sensitive issue” (¶ 3).

    The circuit court denied the parents’ motion and ordered the parents, if they wished to proceed with the action, to file under seal an amended complaint stating their names and addresses. The court explained that it would approve a protective order sealing the parents’ identities from the parties and the general public and permitting disclosure of their identities only to the court and to the parties’ lawyers. The court of appeals granted the petitioners leave to appeal the circuit court’s order.

    In an opinion authored by Judge Kloppenburg, the appellate court affirmed. It concluded that “the parents have failed to show that the circuit court erroneously exercised its discretion in ordering the parents to state their identities in a sealed amended complaint pursuant to a protective order under which the parents’ identities would be disclosed only to the court and to the attorneys for the parties” (¶ 44). As a general matter, “a party cannot file a lawsuit in Wisconsin’s courts without revealing its identity because the complaint initiating the action must ‘include the names and addresses of all the parties,’ Wis. Stat. § 802.04(1), and, once a document is filed with the court it is ‘a judicial record, and subject to the access accorded such records.’ Thus, a party seeking redress in our courts generally must reveal its identity to the public” (¶ 19) (citations omitted).

    However, the rule of open court records can yield in cases in which the “administration of justice” requires protecting information in the court record or when an “overriding public interest” in protecting the information outweighs the presumption of public access (¶ 24).

    As for the administration of justice, the circuit court under its inherent power to preserve and protect the exercise of its judicial function of presiding over the conduct of judicial proceedings has the power to limit public access to judicial records when the administration of justice requires it; however, such a protective order is appropriate only when no less restrictive alternative is available (see ¶ 25).

    The courts have also approved protective orders governing court records when permitting inspection would result in harm to the public interest that outweighs the legislative policy recognizing the public interest in allowing inspection (see ¶ 26).

    In this case the circuit court considered whether an order sealing the parents’ identities from some or all of the lawyers for the litigants was necessary to achieve the end of protecting the parents from harassment and ensuring the smooth administration of justice in this case. It concluded that, because the lawyers could be expected to keep the parents’ identities confidential and because the parents’ proposed restrictions would entangle the court in the lawyers’ work and potentially impede the defense, such an order was not appropriate or necessary (see ¶ 36). Accordingly, the appellate court concluded that the parents failed to show that the circuit court erroneously exercised its discretion.

    Stipulating to a Judgment – Appeals – Waivers

    Roberts Premier Design Corp. v. Adams, 2021 WI App 52 (filed 28 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: By stipulating to a judgment, the appellants waived their right to appeal.

    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 underlying litigation involved a dispute between a remodeler and its client that concerned payment and the quality of the work done. The contractor failed to appear for the civil trial (he was also charged criminally), and the circuit court entered default judgments against the contractor on some claims. Before the civil trial on damages, the parties stipulated to the entry of a money judgment, which was duly entered. The contractor appealed, raising several issues.

    The court of appeals, in an opinion authored by Judge Davis, dismissed the appeal. Appeal rights must be preserved. When parties settle a case in a manner that ends any further litigation, including appeals, they have waived any right to appeal. Here the parties did more than stipulate to damages, “which does not necessarily operate as a waiver of contested issues resolved prior to the stipulation” (¶ 12). But when “a party enters into a consent judgment, as opposed to a mere stipulation on a particular issue, the party is ordinarily considered to have waived any right to appeal from such judgment” (¶ 14).

    The court buttressed its reasoning by discussing two recent Wisconsin Supreme Court decisions that supported its conclusion (the parties had expressly reserved appellate rights in those cases). See Sanders v. Estate of Sanders, 2008 WI 63, 310 Wis. 2d 175, 750 N.W.2d 806; Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673. The record in this case showed an agreement to resolve the “lawsuit … without the need for further litigation” (¶ 19).

    Standing – Multiple Parties

    Pagoudis v. Keidl, 2021 WI App 56 (filed 14 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: Multiple parties to a home purchase had standing to sue the seller based on defects discovered in the house.

    SUMMARY: “This case involves a run-of-the-mill fact pattern – buyer purchases house, discovers defects, and sues seller – complicated by a thorny standing issue stemming from the buyers having purchased and owned the property as three related but separate legal entities. The question now is which, if any, party has standing to sue the original seller, where one party contracted to purchase the property and the second initially took title before conveying title to the third” (¶ 1). The trial judge found that none of them had standing to sue and dismissed the lawsuit.

    The court of appeals reversed in an opinion authored by Judge Davis. The opinion navigated the challenges of “inartful pleadings” and “confusing … machinations” (¶ 2). “Standing” restricts access to judicial remedies to those who have suffered some harm (see ¶ 10). To “cover their bases,” the plaintiffs sued on behalf of the three parties “with potential standing.” “[T]here seems little doubt that one of these parties … would ordinarily be able to seek redress if there were a material misrepresentation in a sale” (¶ 13).

    The court trudged through possible claims by the three plaintiffs, summarizing its holding as follows: “the related-party transactions in this case did not act to destroy standing to sue, at least not for all of the parties on all of the claims pled. Instead, further factual development is necessary to flesh out which plaintiffs possess which claims, and thus standing. On the current record, there are, to be sure, some limitations to that inquiry since only Sead (or possibly Louis) owns the breach of contract claim and only Sead, as the party to the transaction with Amy, can raise a strict-responsibility misrepresentation claim. Thus, so long as Sead can show a compensable injury, it has standing to raise all four claims. In the event Sead cannot show injury, then Kearns would have potential standing on the theft-by-fraud and Wis. Stat. § 100.18 false advertising claims. We also cannot, at this stage, rule out Louis as a potential plaintiff, given the vagueness of the pleadings” (¶ 34).

    When tasking the circuit court for remand proceedings, the court of appeals observed “that this case could be greatly simplified on remand by a series of additional assignments, so that a single party owns these claims. This would eliminate any further need to parse out which party can sue for which injuries” (¶ 35).

    Service of Process – Substitute Service

    Culver v. Kaza, 2021 WI App 57 (filed 28 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: A defendant residing in Las Vegas was properly served through substitute service.

    SUMMARY: The plaintiff sued Kaza for medical malpractice in Wisconsin. By then Kaza had moved to a gated community in Las Vegas. A process server was denied entry into the gated community after Kaza allegedly told the gate guard not to let the process server through the gate. The process server left the summons and complaint with the guard, who allegedly said that they would be delivered to Kaza’s residence (see ¶ 3). Another copy was sent to Kaza through certified mail. A second attempt at personal service was successful, but it occurred 145 days after the complaint was filed, well outside the 90 days permitted by statute. Kaza moved to dismiss the action, but the trial judge found Kaza had been properly served.

    The court of appeals affirmed in an opinion authored by Chief Judge Neubauer. The court rejected Kaza’s contention that the trial judge improperly relied on hearsay (the process server’s affidavit) and that the plaintiff had not shown reasonable diligence (see ¶¶ 11-12).

    Substitute service contemplates hearsay. The statute, Wis. Stat. section 801(4)(a), “imposes a duty by law that undoubtedly will include hearsay at times. This process is based upon the presumption of reliability associated with providing an affidavit that process servers will perform their duties neutrally and professionally, that there is no inherent bias as there is no financial or personal relationship with the parties, and that public inspection to which many such records are subject will disclose inaccuracies” (¶ 19). Nothing indicated the affidavit was untrustworthy (see ¶ 22). There was no need for an evidentiary hearing (see ¶ 25).

    The record also demonstrated the plaintiff’s reasonable diligence. On these facts, one attempt at personal service sufficed (see ¶ 31). “While we agree with the parties that ‘reasonable diligence’ is analyzed under Wisconsin law, we find it relevant to the reasonableness analysis that Nevada law, which apparently both the process server and security guard were familiar with, permits a single attempt at personal service and then substitute service by leaving the document with the guard of a gated community after the guard denies access” (¶ 38).

    Class Actions – Certifications

    Hammetter v. Verisma Sys. Inc., 2021 WI App 53 (filed 30 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The circuit court properly certified a class, rejecting challenges related to the class’s definition, notice, the statute of limitation, and the voluntary payment doctrine.

    SUMMARY: Health-care providers can charge for the retrieval, certification, and release of patient records, subject to a statutory cap ($28). In 2017, the supreme court held that an attorney with the written authorization of the patient is exempt, as is the patient herself, from paying the statutory fee. Moya v. Aurora Healthcare Inc., 2017 WI 45, 375 Wis. 2d 38, 894 N.W.2d 405. Following Moya, the plaintiffs in this case sued the defendants, Verisma Systems and a hospital, alleging conversion and unjust enrichment. They later moved for class certification against Verisma for the “thousands” of persons damaged by Verisma’s conduct. The circuit court granted the motion, and Verisma appealed.

    The court of appeals affirmed, in an opinion authored by Judge Gundrum that rejected a long list of claimed errors. First, the court addressed the propriety of the class-certification findings, separately discussing “numerosity,” “commonality,” and “typicality” (claims need not be identical in every way (see ¶ 20)). Moreover, it appeared that the questions of law or fact common to class members predominated over questions affecting only individual members. If discovery proves something different, the circuit court may alter or amend the class certification (see ¶ 27).

    The court declined to consider “notice” at this juncture because notice turns on “the question of class certification (¶ 30). Nor did the two-year statute of limitation in Wis. Stat. section 893.93(2)(a) bar “many” of the members’ claims. Although Wis. Stat. section 146.84 carries its own statutory penalties, including “exemplary damages,” the court held that the claims here are covered by the six-year statute of limitation that applies to private individuals seeking private relief (¶ 38).

    Finally, the argument that the class action was barred by the “voluntary payments doctrine” was a “nonstarter” because it plays “no role” in the certification here (¶ 39). As held in the Moya case with respect to individual claims, applying the doctrine to bar the class claims would also “undermine” the purpose of Wis. Stat. section 146.83(3f) (¶ 41).

    Criminal Procedure

    Evidence – Corroboration – Confrontation – Juror Bias

    State v. Thomas, 2021 WI App 55 (filed 30 July 2021) (ordered published 25 Aug. 2021)

    HOLDINGS: The prosecution adequately corroborated the defendant’s confession, any confrontation error in cross-examining the defense expert was harmless, and the defendant forfeited his juror-bias claim.

    SUMMARY: A jury convicted the defendant of multiple felonies, including first-degree intentional homicide and sexual assault. He appealed and was granted a new trial, which also resulted in his conviction. He appealed the retrial convictions.

    The court of appeals affirmed in an opinion authored by Judge Reilly. The defendant claimed that his drug use left him unable to recall the events that led to his wife’s death and the sexual assault allegations. At trial the state introduced a host of incriminating statements the defendant made to police officers.

    First, the defense claimed that the prosecution failed to satisfy the corroboration rule, which requires some corroboration of a defendant’s “confession” that a crime occurred (¶ 4). The court rejected the claim, finding adequate corroboration in the recovery of a “pornography video” described by the defendant and testimony by a neighbor who overheard noises, voices, and words consistent with the defendant’s statement to police officers (¶ 9). The corroboration need not “establish the elements of the crime”; it is adequate that it “produce a confidence in the truth of the confession” (¶ 13).

    Second, the defendant claimed that the state violated his Sixth Amendment confrontation right when a prosecutor cross-examined the defense expert about an inadmissible DNA report, which he used for its truth in closing arguments. The court held that any error was harmless in light of the evidence in the record (see ¶ 36). The opinion canvasses the tangled cases that interpret the confrontation right in light of Wis. Stat. section 907.03, which permits experts to base opinions on inadmissible evidence and for parties to probe inadmissible bases on direct and cross-examination.

    Third, the defendant forfeited the claim that an objectively biased juror should have been stricken. Forfeiture stemmed from the defendant’s failure to object or to raise an ineffective-assistance-of-counsel claim (¶ 43). The court also held that the juror-bias argument failed on its merits: Little to no evidence showed that the juror was related to a key witness.

    Chief Judge Neubauer concurred in the majority’s analysis and reasoning regarding the corroboration rule and the impartial-jury claims. She also agreed that any confrontation violation was harmless. She did not join in the majority’s assessment of the state’s cross-examination of the defense expert in light of Wis. Stat. section 907.03 and the confrontation right on grounds that courts should decide cases on the narrowest grounds. The harmless-error finding precluded the need to discuss the issue, especially in light of the unhelpful “fractured decisions setting forth different analytical foundations” on the confrontation question (¶ 49).

    Sentence Credit – Time Spent in State-crimes-connected Federal Custody

    State v. Thomas, 2021 WI App 59 (filed 28 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The defendant was entitled to sentence credit for time spent in federal custody that was connected to the state crimes for which sentence was imposed.

    SUMMARY: The defendant was convicted of several drug crimes in a state prosecution. Though he was subject only to a signature bond during part of the time he was awaiting trial in the state case, he was not released from custody. This was because federal authorities had imposed a revocation hold; the defendant had been on supervised release in a federal case and the authorities placed the hold because of the drug charges in the state case. Ultimately, the defendant pleaded guilty to several state drug charges.

    At sentencing, the state court judge refused to grant sentence credit against the state sentence for the days the defendant spent in federal custody exclusively because of the federal hold. The defendant appealed this denial of credit.

    In an opinion authored by Judge Reilly, the court of appeals reversed. Wisconsin Statutes section 973.155(1)(a) provides that a defendant “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.” The circuit court concluded that this statute applies only to state holds and not to federal holds.

    The court of appeals disagreed, finding that “[t]he clear intent of [§] 973.155 is to grant credit for each day in custody regardless of the basis for the confinement as long as it is connected to the offense for which sentence is imposed” (¶ 1) (citation omitted). There was no dispute that the federal custody in this case was connected to the crimes for which the state court imposed sentence. Accordingly, the court of appeals reversed and remanded the case to the circuit court with directions to grant the defendant credit for the days spent in federal custody.

    Environmental Law

    Environmental Impact Statements – Challenges to Statements

    Friends of the Black River Forest v. Wisconsin DNR, 2021 WI App 54 (filed 1 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: An environmental impact statement (EIS) is not a final agency decision subject to stand-alone judicial review under Wis. Stat. section 227.52.

    SUMMARY: In 2014, the Kohler Company announced plans to build a golf course on land it owns in Sheboygan County. Portions of the land contain high-quality wetlands and other environmental and cultural resources. The Wisconsin Department of Natural Resources (DNR) thereafter began the environmental review process, which included the preparation of an EIS. An EIS is a detailed report evaluating potential environmental effects, which a governmental agency contemplating a “major action significantly affecting the quality of the human environment” must prepare and publish (¶ 1) (citations omitted). “The EIS is meant to inform decision-makers and the public, so that actions are approved or denied only on full consideration of their environmental consequences” (id.).

    After the EIS in this case was published, the DNR issued what the Kohler Company anticipated would be the first of many permits for the golf course project. The petitioners filed a petition for judicial review, contending that there were many flaws in the EIS. After a contested hearing on the permit, an administrative law judge reversed the DNR’s grant of the permit. Because the DNR did not seek judicial review, this became the DNR’s final decision.

    The DNR then moved the circuit court to dismiss the petition for judicial review. The petitioners resisted the motion to dismiss, arguing that they had a stand-alone right to challenge the EIS on which the permit was based. They said that they are concerned that in the future the DNR might approve other permits for the golf course project based on what they believe is a flawed EIS (see ¶ 20). The circuit court dismissed the petition for review concluding that, as a matter of law, an EIS is not a final agency decision subject to judicial review under Wis. Stat. section 227.52 (part of the Wisconsin Administrative Procedure Act).

    In an opinion authored by Judge Nashold, the court of appeals affirmed. The question before the court was whether an EIS is itself a final agency decision subject to stand-alone review under Wis. Stat. section 227.52, or alternatively, whether a court may review an EIS only on a petition for review of the agency decision regarding the proposed “major action” that the EIS analyzes (see ¶ 1).

    The court of appeals concluded that “an EIS, by its plain terms, is not a final decision: it analyzes the effects of, and alternatives to, a proposal without dictating any course of action or establishing the rights of any interested party. Accordingly, a party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges to the EIS in a petition for judicial review of the agency decision that the EIS analyzes. Because no such decision exists here, we affirm the dismissal of [the petitioners’] petition” (¶ 2).


    Commercial General Liability Policy – Defective Workmanship – Third-party Property Damage

    5 Walworth LLC v. Engerman Contracting Inc., 2021 WI App 51 (filed 30 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The circuit court erred in ruling that there could be no coverage of the insureds as a matter of law.

    SUMMARY: This opinion concerns insurance coverage for damage arising out of swimming-pool construction involving a general contractor and a subcontractor. The facts are yet to be developed, but the opinion dealt with several broad, important insurance coverage issues under commercial general liability (CGL) policies. The circuit court found that no “property damage” had occurred as a result of a covered “occurrence.”

    The court of appeals reversed in an opinion authored by Judge Davis that took up several “common perceptions” concerning standard CGL insurance policies. “The first is that such policies never cover an insured who is sued for the cost of replacing or repairing defective workmanship; the second is that such polices only cover liability for so-called ‘third-party’ property damage. Neither perception is entirely accurate” (¶ 1).

    The opinion began with an “important procedural point”: Each of the insurers agreed to defend their insureds in the litigation (¶ 20). The agreement to defend in turn affected the determination of coverage (see ¶ 22). Coverage issues are governed by a “three-part coverage methodology” set forth in American Family Mutual Insurance Co. v. American Girl Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65: 1) Is there coverage in the first instance? 2) Is there any exclusion from damages? 3) Is there an exception to any applicable exclusion? (¶ 24).

    As to the general contractor (Engerman), the CGL policies appear to reach liability because of property damage caused by an occurrence. A subcontractor might have caused an “occurrence,” and physical damage to the pool complex requiring replacement constitutes property damage (¶¶ 26, 30).

    “[N]either the alleged misapplication of shotcrete nor the improper installation of reinforcing bars – i.e., defective workmanship – is an occurrence by itself. But the resulting cracks, which continued to worsen as the pool leaked and destabilized the surrounding soil, neither of which were intended, satisfies the requirement of an ‘accident’ that causes ‘property damage’ sufficient to fall within the coverage part of the policy. The exceptions to exclusions that would otherwise bar coverage in the absence of a ‘collateral consequence’ means that there are, at the very least, issues of fact precluding summary judgment as to the existence of coverage” (¶ 39).

    The general contractor would, however, lose coverage from one insurer if it was aware that property damage had begun before the policy was issued (see ¶ 43). The subcontractor was entitled to coverage for any damages other than for the repair or replacement of the product it had provided (see ¶ 59).

    Public Records

    Attorney Fees, Damages, and Costs – Substantially Prevailing Parties

    Meinecke v. Thyes, 2021 WI App 58 (filed 7 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The petitioner in this mandamus action brought under the public records law was entitled to fees because she prevailed in substantial part in obtaining the records she sought.

    SUMMARY: Petitioner Susan Meinecke, a trustee for the village of Grafton, Wis., filed multiple public records requests to two village officials seeking emails that had various search terms. In response, she received many, but not all, of the documents she requested. She then filed a mandamus action identifying five categories of records that she alleged the village officials unlawfully withheld. The circuit court ordered the village officials to turn over some, but not all, of the records identified in the mandamus action.

    Thereafter, Meinecke moved for the award of fees. The circuit court denied this motion for several reasons, including the fact that Meinecke did not have complete success in gaining access to all of the records that she sought.

    In an opinion authored by Chief Judge Neubauer, the court of appeals reversed. A “court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record” subject to disclosure. See Wis. Stat. § 19.37(2)(a).

    To resolve this appeal, the court of appeals needed to determine whether Meinecke had “prevail[ed] … in substantial part” as that phrase is used in Wis. Stat. section 19.37(2)(a). The court concluded that “a mandamus litigant has prevailed in substantial part, and thus is entitled to fees, when the requester obtains access to improperly withheld public records through a judicial order. That a requester may have succeeded in obtaining access to some but not all of the records is an issue subject to the court’s discretion in considering the amount of reasonable fees to be awarded” (¶ 8).

    In this case Meinecke prevailed in substantial part because she obtained relief through a judicial order – access to improperly withheld public records. However, the fact that she prevailed in substantial part does not necessarily amount to blanket permission for the circuit court to award her all attorney fees, costs, and damages. “Instead, the circuit court should apply the well-established ‘lodestar methodology’ on remand to determine reasonable fees and may consider the totality of Meinecke’s success when calculating fees, including factoring in the records sought in the mandamus action that the court found were properly withheld” (¶ 23).

    Real Property

    Landlord-tenant Law – Rental Agreements

    Williams v. District Council of Madison Inc., 2021 WI App 62 (filed 29 July 2021) (ordered published 25 Aug. 2021)

    HOLDING: The parties did not enter into a contract in the capacities of landlord and tenant and therefore the contract did not constitute a rental agreement.

    SUMMARY: The District Council of Madison Inc., Society of St. Vincent de Paul (hereinafter the Society) and Kimesha Williams, who was homeless, entered into a contract. Under the contract, the Society permitted Williams to occupy a unit in a residential facility owned and managed by the Society. The parties also agreed that Williams would participate in a program that the Society ran, which was aimed at helping women without ready access to stable housing find better housing situations in the future. The program called for Society staff to educate, counsel, and otherwise assist Williams within the facility’s controlled environment (which included a curfew, prohibitions on visits from men and consumption of alcohol, allowance of program staff to enter Williams’ unit at any time, and so on). Five months after Williams moved into the unit, the Society terminated her from the program because of program violations and required her to vacate the unit she occupied.

    In this action, Williams claimed that, under Wisconsin landlord-tenant laws, the Society and Williams had a landlord-tenant relationship. According to Williams, when the Society removed her from the unit it violated laws regarding the eviction procedures that apply to landlords. See Wis. Stat. ch. 704; Wis. Admin. Code ch. ATCP 134.

    The Society did not contest that it did not follow the judicial eviction procedures in the landlord-tenant laws. But it argued that it did not have to follow the procedures, because the legal relationship here was that of a program manager and a program participant, not of a landlord and a tenant. The circuit court agreed with the Society and granted summary judgment in its favor. Williams appealed.

    In an opinion authored by Judge Blanchard, the court of appeals affirmed. It based its decision on the analytical approach used in M & I First National Bank v. Episcopal Homes Management Inc., 195 Wis. 2d 485, 536 N.W.2d 175 (Ct. App. 1995), which interprets Wis. Admin. Code chapter ATCP 134.

    “Under this approach, we consider the terms of the contract along with other relevant evidence to determine whether the primary and dominant purpose of the legal relationship between the Society and Williams was to provide Williams with temporary housing (in which case the parties entered into a rental agreement) or was instead to make available to Williams educational, counseling, and similar services (in which case they did not enter into a rental agreement)” (¶ 3).

    Based on the terms of the contract and the undisputed surrounding circumstances, the court of appeals concluded that “the Society and Williams did not enter into the contract in the capacities of landlord and tenant, and that the contract did not constitute a rental agreement for rental of a dwelling unit within the meaning of [Wis. Admin. Code chapter ATCP 134]. This is because the primary and dominant purpose of the parties was to make available to Williams the educational, counseling, and similar services that would help her obtain more stable housing in the future, and her temporary occupancy of the facility was merely incidental to that purpose. The temporary housing component was only an incidental part of the relationship, and therefore the contract was not a rental agreement” (¶ 34).

    Accordingly, the court affirmed the grant of summary judgment to the Society.

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