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    Wisconsin Lawyer
    January 07, 2022

    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

    Venue – Changing Venue

    Salachna v. Edgebrook Radiology, 2021 WI App 76 (filed 12 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: The circuit court erred by not granting a change of venue.

    SUMMARY: The plaintiff filed a claim against various defendants in Milwaukee County arising from injuries he sustained in a truck collision in Barron County. Several defendants filed a motion to change venue to Barron County. The plaintiff opposed the motion, in part because he lived in Illinois and Milwaukee County was more convenient. The circuit court denied the motion, concluding that a trial in Milwaukee County would better serve the parties’ convenience (see ¶ 7).

    The court of appeals reversed in an opinion authored by Judge Donald that construes the venue statutes, Wis. Stat. sections 801.50 and 801.52. The accident here occurred in Barron County. The circuit court did not have the discretion to “change” venue by keeping the case in Milwaukee County (see ¶ 13). Section 801.50(2) “expressly states that venue ‘shall be’ in the county where the claim arose …” (¶ 14). Section 801.52, titled “Discretionary Change of Venue,” “does not come into play until after venue is established” (¶ 15).

    Moreover, Wis. Stat. section 801.52 applies to a “change” of venue. “It does not say that a court may ‘grant venue in any county’” (¶ 16). A plaintiff must first comply with the requirements for venue in Wis. Stat. section 801.52; only then may it move for a change of venue under Wis. Stat. section 801.52. Thus, because venue was not proper in Milwaukee County, Wis. Stat. section 801.52 did not apply (see ¶ 20).

    Criminal Procedure

    Sentencing – Consideration of Gravity of Offense

    State v. Bolstad, 2021 WI App 81 (filed 28 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: The circuit court erroneously exercised its sentencing discretion because it failed to consider the gravity of the offense for which sentence was being imposed.

    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: At sentencing the circuit court must consider three primary factors: 1) the protection of the public, 2) the gravity of the offense, and 3) the rehabilitative needs of the defendant. This requirement is codified at Wis. Stat. section 973.017(2). The weight to be given each factor is within the circuit court’s discretion. The sentence may be based on any or all of the three primary factors after all three have been considered (see ¶ 34). An appellate court will search the record to determine whether the circuit court’s consideration of required factors is discernible in the record (see ¶ 17).

    In this case the circuit court imposed a sentence on the defendant after his probation had been revoked. However, the sentencing record lacked any indication that the court considered the gravity of the underlying offense for which the defendant was being sentenced. Accordingly, in an opinion authored by Judge Kloppenburg, the court of appeals held that it lacked a sufficient basis to conclude that the circuit court applied the proper legal standard and thus it found that the circuit court erroneously exercised its discretion in imposing sentence on the defendant (see ¶ 40).

    In a footnote, the court noted that case law does not require “magic words,” that is, any particular terminology by the sentencing court. “Here, if the circuit court’s sentencing remarks demonstrated that it did consider the gravity of the offense, despite the court’s failure to explicitly identify that factor, we would affirm the court’s exercise of discretion” (¶ 23 n.7).


    Intentional-acts Exclusion – Criminal Recklessness

    Dostal v. Strand, 2021 WI App 79 (filed 19 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: An insured individual’s criminal conviction for killing his child precluded coverage under the intentional-acts exclusion in his homeowner’s insurance policy.

    SUMMARY: A jury convicted Strand of second-degree reckless homicide in the death of his infant child. The evidence at trial refuted Strand’s false stories regarding various “accident” scenarios as the cause of the child’s death. The child’s mother then brought this action against Strand and his homeowner’s insurer for damages. The circuit court granted a declaratory judgment in favor of the insurer, finding that the criminal conviction triggered the policy’s intentional-acts exclusion.

    The court of appeals affirmed in an opinion authored by Judge Gill. Simply put, Strand’s conviction for second-degree reckless homicide precluded insurance coverage based on the intentional-acts exclusion in his homeowner’s insurance policy. The court distinguished several earlier cases that involved “punches” thrown by insureds: “neither of the aforementioned cases had a criminal adjudication against which to review the facts” (¶ 20).

    “[W]hen a jury has found an individual’s conduct to be criminally reckless – which requires a finding that the individual was aware that his or her conduct created an unreasonable and substantial risk of death or great bodily harm – it is axiomatic that no accident occurred” (¶ 23). The court rejected the plaintiff’s parsing of the terms “occurrence” and “intentional act” in light of the definition of “recklessness” used by the jury to convict Strand beyond a reasonable doubt (see ¶ 27).

    Public Records

    Law Enforcement Disciplinary Records – Redaction

    Milwaukee Deputy Sheriffs’ Ass’n v. County of Milwaukee Cnty. Clerk, 2021 WI App 80 (filed 12 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: The circuit court erroneously concluded that a deputy sheriff’s disciplinary file should not be disclosed under the public records law.

    SUMMARY: This case involved a public records request submitted by the estate of Caesar Stinson for two disciplinary files of a deputy sheriff who struck and killed Stinson in 2020 after driving his squad car through a red light. The circuit court granted release of one of the files but denied access to the other. The latter related to an internal affairs investigation from 13 years before into an improper search of a residence after police had seized 44 pounds of marijuana from a car.

    The circuit court concluded that the facts were such that the public policy interests favoring nondisclosure of this disciplinary file outweighed the public policy interests favoring disclosure. It indicated that it was concerned about the references in the disciplinary file related to the prosecutor’s case planning and that disclosing the file might endanger individuals who were involved in the drug investigation as targets or informants or both (see ¶ 8). The court also noted the deputy was only “a very minor player” in a larger drug investigation.

    In an opinion authored by Judge Donald, the court of appeals reversed. It agreed with the estate that the public has a strong interest in knowing when law enforcement officers have a history of violating an individual’s constitutional rights and how the law enforcement agency handled the investigation of this constitutional violation (see ¶ 17). It rejected the deputy’s argument that this strong public interest was outweighed in this case by the need to protect the identity of confidential informants and cooperating witnesses as well as the prosecutor’s case planning (see ¶ 20). Any information that would endanger an individual’s life or safety or identify a confidential informant is subject to redaction (see ¶ 21). There is no indication that the documents in the disciplinary file relate to any ongoing prosecution or investigation, which might impede the public policy of investigating and prosecuting criminal activity (see ¶ 22).

    “Moreover, to the extent that the file does address prosecutorial case planning that could endanger an individual’s life or safety, identify a confidential informant, or impede the public policy of investigating or prosecuting criminal activity, once again, such information can be redacted” (id.). Though the deputy’s role in the improper search was “minor,” this should not be a shield by which disclosure can be prevented (¶ 24).

    In sum, the court of appeals concluded that the deputy did not fulfill the burden of showing that the public interest in the nondisclosure of his disciplinary file outweighs the strong interest in disclosure. It remanded the matter to the circuit court “to conduct a careful document-by-document review to determine what additional redactions are needed and to grant release of the file in compliance with Wisconsin’s public records law” (¶ 25).

    Records Relating to Applicants for School Board Position – Wis. Stat. § 19.36(7) and (11)

    Mastel v. School Dist. of Elmbrook, 2021 WI App 78 (filed 27 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: The petitioner in this public-records mandamus action successfully stated a claim upon which relief may be granted for most – but not all – of the records she sought.

    SUMMARY: Eight individuals applied for an appointment to fill a vacant seat on the Elmbrook School Board. Petitioner Mastel sought a writ of mandamus to compel the School District of Elmbrook (the District) to provide her with 1) the applications of three applicants who were not “final candidates” for the vacant school board position; 2) the email addresses, phone numbers, addresses, and other personal information of the seven applicants who ultimately were not chosen for the position; 3) the personal contact information of the one applicant who was chosen for the position; and 4) the “Declaration of Eligibility” for all eight applicants.

    The District moved to dismiss the petition on the basis that it failed to state a claim upon which relief may be granted. The circuit court granted the motion. In an opinion authored by Judge Gundrum, the court of appeals affirmed in part and reversed in part.

    With respect to the claim that the District violated the public records law by refusing to provide the applications of the three non-final candidates, the appellate court concluded that the petition for writ of mandamus stated a claim. The District declined to provide these applications on the basis of Wis. Stat. section 19.36(7). This statute provides that an authority, such as the District here, “shall not provide access to any record related to the application that may reveal the identity of [an] applicant” if the particular applicant 1) is not a “final candidate” for the position sought and 2) “indicate[d] in writing to the authority that [he or she] does not wish the authority to reveal his or her identity” (¶ 14).

    In the present case, said the court, “subsection (7) does not apply to protect the identities of the three applicants who were not final candidates if they did not provide such a written indication to the District, as the petition alleged. The petition sufficiently states a claim that the District violated the public records law by failing to disclose the applications of these three non-‘final candidate’ applicants” (id.).

    The court of appeals also concluded that the petition for writ of mandamus sufficiently alleged that the District unlawfully redacted email addresses, phone numbers, addresses, and other personal information from the records that it did produce in relation to the seven unsuccessful applicants for the position. The District apparently believed that Wis. Stat. section 19.36(11) prohibited it from releasing this information. However, this statute only prohibits the release of such information “of an individual who holds a local public office or a state public office.” None of the seven unsuccessful applicants for the school board position holds a public office (see ¶ 16).

    The court of appeals also found that the petitioner stated a claim that the District unlawfully “redacted the e-mail address and signature block from the successful candidate’s transmittal e-mail, which appears to be from a professional account.” Again, the District based its action on Wis. Stat. section 19.36(11). However, this statute only protects against disclosure of home addresses, telephone numbers, and so on of individuals who hold public office. By itself, it does not provide a sufficient legal basis to refuse disclosure of non-“home” information (¶ 19).

    Lastly, the court of appeals considered the District’s failure to provide a document titled “Declaration of Eligibility” for all eight applicants for the school board position. This document, which establishes one’s residency and eligibility to serve on the school board, must be submitted in order for an applicant to apply for the position. The court concluded that the petition for writ of mandamus failed to state a claim with respect to these declarations because the records request failed to reasonably describe the items that petitioner sought (see ¶ 24).


    Property Taxes – Exemptions – Challenges

    Saint John’s Communities Inc. v. City of Milwaukee, 2021 WI App 77 (filed 5 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: In a dispute over property taxes, the taxpayer’s complaint against the city failed to state a claim.

    SUMMARY: Saint John’s Communities constructed a new high-rise tower on property that included an existing “retirement community.” The city had previously granted Saint John’s a property tax exemption on that same property but assessed the new tower as a “new use” that was presumed taxable (¶ 9). The timing of the decision meant that Saint John’s did not submit its exemption application for the 2019 tax year until September, long after the March 1 deadline set forth in the statute.

    Saint John’s challenged the assessment. The city replied that the challenge was premature because the city had neither levied nor collected the disputed taxes. The city also raised St. John’s untimely application for an exemption. Saint John’s filed this action and moved for partial summary judgment. The circuit court ruled in favor of Saint John’s. Additional facts appear below.

    The court of appeals reversed in an opinion authored by Chief Judge Brash, finding that the circuit court erroneously interpreted the pertinent statutes. First, “[i]n its decision denying the City’s motion to dismiss, the circuit court found that Saint John’s had ‘timely paid authorized installment payments of the tax at issue, and such payment was made at the same time the claim was filed.’ However, this conclusion does not comport with the requirements of Wis. Stat. § 74.35(2)(a), which references the claim being made ‘against the taxation district which collected the tax,’ and not the action that is commenced in circuit court” (¶ 20). Nor was there any “conflict among the subsections of § 74.35 with regard to the timing of filing a claim” (¶ 23).

    Second, the court rejected St. John’s arguments under the “uniformity” clause of the Wisconsin Constitution. St. John’s prematurely filed its claim with the city. “In fact, Saint John’s does not allege in its complaint that it did comply with the requirements of § 74.35(2)(a); rather, it argues that it was not required to submit a new exemption application for the new tower. However, the means to challenge the request by [the assessor] for a new application – and the subsequent taxation determination – was to file a claim pursuant to the requirements of § 74.35(2)(a). Saint John’s failed to do that. Therefore, Saint John’s uniformity clause claim fails” (¶ 26).


    Theft By Contractor – Proof

    Century Fence Co. v. American Sewer Serv. Inc., 2021 WI App 75 (filed 6 Oct. 2021) (ordered published 17 Nov. 2021)

    HOLDING: Evidence at trial established a theft-by-contractor claim.

    SUMMARY: American Sewer Services Inc. (American) was the prime contractor on a job to replace a city’s water main. American contracted with Century Fence (Century) to provide pavement marking services for approximately $11,000. When the job was done, American obtained $11,000 from the city for Century’s services, which American deposited in its account. It did not pay Century (see ¶ 3). Century sued American, alleging a variety of claims, including theft by contractor, which carries treble damages. In a court trial, the judge found that American had breached its contract but that, by a “hair’s breath,” Century had fallen short of proving theft by contractor (¶ 6).

    The court of appeals reversed in an opinion authored by Judge Gundrum, finding that Century had proved all elements of its theft-by-contractor claim. The circuit court had not identified any of the six elements of theft by contractor that Century had failed to prove (see ¶ 10). Simply put, “[o]nce Waukesha paid American the $11,000 for the pavement marking services performed by Century, American became the trustee of those funds and was required to pay Century the $10,245 that it demanded and was owed” (¶ 13).

    “The court’s determination that Century did not prove its theft by contractor claims because American was ‘solvent and always able to pay’ is incorrect as a matter of law” (¶ 14). Rather, it appears that American was using the money as leverage to get “Century to capitulate and waive” its right to a full payment (¶ 15). American had used a “significant portion” of the $11,000 to pay itself for other work it had done on that job instead of paying its subcontractor (¶ 16). The court also rebuffed American’s contention that by (eventually) paying Century some $3,000, it obviated the theft claim: “American … could not cure its theft once the crime was completed” (¶ 17).

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