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    Wisconsin Lawyer
    October 12, 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

    Criminal Procedure

    Search and Seizure – Search Incident to Lawful Arrest

    State v. Meisenhelder, 2022 WI App 37 (filed 15 June 2022) (ordered published 27 July 2022)

    HOLDING: The search of a container found in the defendant’s purse was a valid search incident to arrest.

    SUMMARY: The defendant was detained by a Walmart “loss prevention officer” because the officer thought the defendant had stolen a bottle of mouthwash and an eyeliner. Police officers who were dispatched to the store searched the defendant’s purse, which was located within her reaching distance. The police officers found in the purse a metal canister about the size of a 12-gauge shotgun shell but slightly wider in diameter. An officer unscrewed the canister cap and found a bag of methamphetamine inside. The officers then arrested the defendant.

    The defendant moved to suppress the methamphetamine, contending that the search of the container violated the Fourth Amendment. The circuit court denied the motion, and the defendant pleaded no contest to drug and retail theft charges.

    In an opinion authored by Judge Grogan, the court of appeals affirmed. It concluded that the methamphetamine was found during a valid search incident to arrest. The search-incident-to-arrest exception permits law enforcement officers to search a person, objects found on an arrestee’s person, and items within the arrestee’s reach, to remove any weapons and to seize evidence to prevent its concealment or destruction. The search can precede the arrest if the officer has probable cause to arrest before the search begins. The fact of arrest alone justifies the search (see ¶¶ 12-13).

    In this case the police officers had probable cause to arrest the defendant, the purse was within her reaching distance, and the canister found in the purse could have contained stolen merchandise (see ¶ 18). Thus, the search was lawful.

    Conditions of Probation and Extended Supervision – Supervision by the Circuit Court

    State v. Williams-Holmes, 2022 WI App 38 (filed 15 June 2022) (ordered published 27 July 2022)

    HOLDING: The condition imposed on the defendant’s probation and extended supervision that he not reside with women or certain children without the permission of the court is valid, if the court’s permission is effectuated through the formal statutory procedures for modifying conditions of probation and extended supervision.

    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 pleaded guilty to two counts of battery, one count of false imprisonment, and one count of bail jumping, all as a repeater, in connection with his abuse of a friend. His sentence included confinement in prison followed by a period of extended supervision; he was also ordered to serve several years of consecutive probation. As conditions of extended supervision and probation, the circuit court ordered that the defendant “not … reside with any member of the opposite sex without the permission of the Court, nor reside with any child who is not related to [him] by blood without the permission of the Court” (¶ 1).

    In a postconviction motion, the defendant challenged these conditions, contending that they grant to the court the role of “administering” his supervision with respect to the conditions while the statutes specifically grant that role to the Department of Corrections (DOC). See Wis. Stat. § 301.03(3). The circuit court denied the motion. In an opinion authored by Judge Gundrum, the court of appeals affirmed.

    Wis. Stat. section 973.09(3)(a) provides that a court can modify the terms and conditions of probation for cause and by order. Wis. Stat. section 302.113(7m)(a) provides that conditions of extended supervision can be modified by the court upon petition submitted by the defendant or by the DOC.

    In this case, the court of appeals affirmed the order of the circuit court but clarified that the “permission” for the defendant to reside with women or with any particular child unrelated by blood must be effectuated “through” the statutory mechanisms of Wis. Stat. sections 973.09 and 302.113 for the modification of probation or extended supervision (¶ 23). Any less formal method by which the court would engage in informal, situation-by-situation oversight of whom the defendant resides with would amount to the court usurping the authority granted to the DOC to administer extended supervision and probation matters (see ¶ 17).

    Sentencing – Surcharges and Court Fees – Authority to Deduct Funds From Prisoner’s Wages and Gifted Funds

    State ex rel. Bryson v. Carr, 2022 WI App 34 (filed 30 June 2022) (ordered published 27 July 2022)

    HOLDINGS: The multiple holdings in this case are summarized in the numbered paragraphs below.

    SUMMARY: After being convicted of a crime, Bryson was ordered to pay various surcharges (victim-witness, DNA analysis, and crime labs) and court fees. He was not ordered to pay any restitution. The judgment of conviction stated as follows: “Pay DNA surcharge, all other applicable costs and any other surcharges and assessments. To be collected by DOC from 25% of prison funds” (¶ 3). The Department of Corrections (DOC) at first deducted 25% from Bryson’s prison wages and gift funds to pay the surcharges and fees. Later, the DOC announced a new policy under which it would deduct 50% of Bryson’s prison wages and gift funds to pay his surcharges and fees. Bryson then petitioned for certiorari review of the DOC’s authority to make the 50% deduction.

    In an opinion authored by Judge Graham, the court of appeals concluded as follows:

    1) The judgment unambiguously purports to limit the DOC’s authority to deduct funds for surcharges and courts fees to 25% (see ¶ 2).

    2) The DOC has the exclusive statutory authority to set the deduction percentage for the surcharges (see id.) The sentencing court did not have authority to enter a judgment that purports to limit the DOC from exercising that statutory authority (see ¶ 34).

    3) Although the sentencing court exceeded its authority by entering a judgment that purports to cap the deduction rate for the surcharges, the court of appeals accepted the DOC’s concession that it is required to follow the language in the judgment unless and until the sentencing court amends the judgment (see ¶ 2). The court of appeals assumed without deciding that the DOC’s position in this regard was correct (see ¶ 36).

    4) As for the court fees,the court of appeals accepted the DOC’s concession that it acted contrary to law when it increased to 50% the deduction rate of inmate funds to pay the defendant’s court fees. The court assumed without deciding that the DOC’s concession on this point was correct (see ¶ 33).

    Guilty Pleas – Breach of Plea Agreement

    State v. Weigel, 2022 WI App 48 (filed 28 July 2022) (ordered published 31 Aug. 2022)

    HOLDING: A prosecutor materially and substantially breached a plea agreement, and defense counsel was ineffective for not objecting to the breach.

    SUMMARY: The defendant and her husband were charged with multiple counts of child abuse. The defendant agreed to plead guilty to two counts for which the state would recommend a 20-year bifurcated sentence, leaving the defense free to argue its own position. The court sentenced the defendant to 30 years: 20 years of initial confinement followed by 10 years of extended supervision. The circuit court denied the defendant’s postconviction motion, which contended that the prosecutor had violated the plea deal during sentencing.

    The court of appeals reversed in an opinion authored by Judge Nashold, which held that the state had violated the plea deal and that the appropriate remedy was resentencing. In an email the prosecutor had agreed to “cap” the state’s recommendation at a “20 year sentence, including initial incarceration and extended supervision,” but at the sentencing hearing the prosecutor inexplicably stated that “both parties agree that 25 years in total is appropriate” (¶ 15). The prosecutor’s confused remarks breached the plea agreement in a way that was both substantial and material, even though the defense itself argued for a 25-year “total sentence” based on the earlier sentencing of the defendant’s husband (¶¶ 22, 26).

    Although trial counsel had failed to object when the prosecutor misstated the deal, the error was nonetheless preserved because the failure constituted ineffective assistance of counsel (see ¶ 33). The state failed to hold up its end of the deal (see ¶ 27). The case was remanded for resentencing before a different judge.

    Double Jeopardy – Retrial Following Mistrial

    State v. Killian, 2022 WI App 43 (filed 19 July 2022) (ordered published 31 Aug. 2022)

    HOLDING: Double jeopardy protections barred the state from retrying the defendant following the declaration of a mistrial in his first trial.

    SUMMARY: The state charged defendant Killian with one count of first-degree sexual assault of a child under the age of 13 and one count of repeated sexual assault of a child under the age of 16. Those charges stemmed from allegations that Killian had sexual contact by grabbing the buttocks of Britney (a pseudonym) and that he had sexually abused Ashley (also a pseudonym) over a 10-year period. Before trial, the court excluded other-acts evidence not involving Ashley. At trial the prosecutor referred to other-acts evidence involving Britney and then elicited such other-acts evidence when Britney was on the stand. At that point the defense moved for a mistrial, which was granted.

    When the state attempted to retry the case, the court granted the defendant’s motion to dismiss and barred the state from retrying the case. “[I]t found that the prosecutor intentionally forced a mistrial to get ‘another kick at the cat,’ to charge Killian with more crimes, and to increase the likelihood of conviction” (¶ 1). The state did not appeal that decision.

    More than one year later, the state filed a new criminal complaint charging Killian with three counts of first-degree sexual assault of a child, six counts of incest with a child, and one count of repeated sexual assault of the same child. Those charges were again based on allegations that between 1990 and 1997, Killian had sexual intercourse and sexual contact with Ashley (Counts 1-9) and had sexual contact by touching Britney multiple times (Count 10). The circuit court granted Killian’s motion to dismiss, concluding that those charges would subject Killian to double jeopardy because the state had previously prosecuted him for those offenses.

    In an opinion authored by Judge Hruz, the court of appeals affirmed. “We conclude, in accordance with State v. Schultz, 2020 WI 24, 390 Wis. 2d 570, 939 N.W.2d 519, that the circuit court properly considered the entire record of the first prosecution to determine whether Killian was in jeopardy for the offenses now charged. In reviewing that record, including the prosecutor’s arguments and the evidence that had been presented during the trial, we agree with the circuit court in this case that Killian was, in fact, in jeopardy of being convicted of the offenses now charged” (¶ 4).

    With reference to the charge involving offenses against Britney, the court observed that in the first trial the jury learned about the defendant’s touching Britney either through the prosecutor’s opening statement or through Britney’s testimony. Moreover, during that first trial, the prosecutor repeatedly referenced the possibility of amending the Information to add new charges based on Britney’s testimony pursuant to Wis. Stat. section 971.29(2), which provides that “[a]t the trial, the court may allow amendment of the complaint, indictment or [I]nformation to conform to the proof where such amendment is not prejudicial to the defendant.”

    Said the court of appeals: “Had Killian not objected or requested a mistrial, the prosecutor was poised to elicit additional testimony regarding Killian rubbing his penis against Britney’s body – as mentioned in the prosecutor’s opening statement – and the prosecutor seemed intent to seek amendment of the Information to include each act supported by the evidence – as he repeatedly argued. Although the record is limited due to the trial ending early, those limitations occurred only as a result of the State’s egregious and intentional misconduct, as found by the circuit court. Despite its limitations, the record of the first prosecution sufficiently demonstrates that Killian was exposed to the risk of being convicted of first-degree sexual assault for touching Britney’s breast, for touching her pubic mound, and for rubbing his penis against her body. Again, the prosecutor told the jury it would hear testimony that Killian illegally touched Britney multiple times and rubbed his erect penis on her, Britney then testified regarding two of the acts now charged, and the prosecutor repeatedly discussed amending the Information to include additional charges” (¶ 45).

    In short, the record demonstrates that Killian was in jeopardy of being convicted in the first prosecution for each of the offenses involving Britney that were alleged as part of Count 10 in the second prosecution (see ¶ 48).

    With respect to the charges involving offenses against Ashley, the court of appeals concluded that the record as a whole demonstrates that Killian was in jeopardy in the first prosecution for the offenses charged in the second prosecution involving Ashley (see ¶ 51). Before the first trial, the circuit court granted the state’s motion to admit other-acts evidence related to Killian’s sexual assaults of Ashley between 1988 and 1999, which would have allowed Ashley to testify about all of Killian’s acts of sexual abuse.

    Though the mistrial was declared before Ashley took the stand in the first trial, “everything in the record demonstrates that Ashley would have testified regarding Killian’s sexual abuse of her between 1988 and 1999” (¶ 53). The record also demonstrates “that the State would have asked the circuit court to amend the Information to include at least one incest charge” pursuant to Wis. Stat. section 971.29(2) (¶ 54).

    “In short, the record of the first prosecution demonstrates that Killian was put at risk of being convicted of each offense currently charged based on Killian’s sexual abuse of Ashley. In other words, Killian was in jeopardy in the first prosecution of being convicted of offenses that occurred as early as 1988, as well as being convicted of incest offenses from that time until 1999” (¶ 57).

    Employment Law

    Restrictive Covenants – Covenant Not to Compete – Confidentiality Covenant

    Diamond Assets LLC v. Godina, 2022 WI App 47 (filed 14 July 2022) (ordered published 31 Aug. 2022)

    HOLDINGS: 1) The circuit court erroneously granted the defendant’s motion to dismiss that related to the plaintiff’s claim that the defendant breached a noncompete covenant. 2) The circuit court properly granted the defendant’s motion to dismiss that related to the plaintiff’s claim that the defendant breached a confidentiality covenant.

    SUMMARY: Diamond LLC is an asset management organization that runs buy-back programs for information technology services. It brought this action against Godina, a former employee, claiming breach of contract and anticipatory breach of contract based on noncompete and confidentiality covenants that Godina had executed early in his time of employment at Diamond.

    Godina brought a motion to dismiss the complaint (not a summary-judgment motion) on the ground that the noncompete and confidentiality covenants are both unenforceable as a matter of law under Wis. Stat. section 103.465, which provides that such covenants are lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer. Diamond responded that it should be allowed to proceed past the motion-to-dismiss stage so that it can present evidence on summary judgment or at trial regarding its business and Godina’s employment that would justify both covenants based on the totality of the circumstances.

    The circuit court granted Godina’s motion to dismiss. In an opinion authored by Judge Blanchard, the court of appeals affirmed in part and reversed in part.

    The court of appeals reversed that part of the circuit court’s decision regarding the noncompete covenant. This covenant is limited to two years following termination of employment, with a “territory” that is based not on the drawing of lines on a map but on “activities” and “customers” as defined in the covenant: Godina was not permitted to provide pertinent services to customers to whom Diamond provided services in the final two years of Godina’s employment, regardless of whether Godina was personally involved, nor was Godina permitted to provide pertinent services to potential customers (those to whom Diamond presented a written proposal within the last year of Godina’s employment but only when Godina was introduced as possibly providing services as a Diamond employee) (see ¶ 33). Diamond bears the burden of justifying the full scope of these restraints.

    The court of appeals ultimately concluded that this noncompete covenant is not properly the subject of a motion to dismiss as unenforceable under Wis. Stat. section 103.465 because Diamond identified factual circumstances that, if proved, could show that each of the covenant’s restraints is reasonable and these circumstances appear to have some inferable basis in the complaint (see ¶ 31). Said the court:
    “[N]either restraint is necessarily unenforceable depending on the development of the facts that could be averred on summary judgment or proven at trial” (¶ 34).

    On the other hand, the court of appeals held that the confidentiality covenant is properly subject to a motion to dismiss as unenforceable, regardless of the evidence Diamond might be able to submit. “We conclude that, given the broad sweep of information covered by the terms of the covenant [which is described at length in the court’s opinion] … the covenant is per se invalid because Diamond could not adduce any set of facts inferable from the complaint that would establish that the restraint barring the sharing of such information is reasonably necessary to protect Diamond” (¶ 48).


    McMorris Evidence – Experts – Defense of Mistake

    State v. Ochoa, 2022 WI App 35 (filed 30 June 2022) (ordered published 7 July 2022)

    HOLDING: The circuit court properly limited the defendant’s use of McMorris evidence, excluded expert testimony on self-defense, and limited the defendant’s explanations about seeking out the victims.

    SUMMARY: The defendant was charged with first-degree intentional homicide for the shooting deaths of two men. The jury returned verdicts of first-degree reckless homicide. The defendant appealed, and the court of appeals affirmed in an opinion authored by Judge Grogan.

    The defendant’s central claim was that the circuit court’s evidentiary rulings were improper and denied him his right to a defense. The court rejected three alleged errors. The first related to the defendant’s claim of self-defense and the court’s ruling that limited the defendant’s McMorris evidence to one victim’s “reputation” for violence, excluding any mention of specific instances of violence. The judge ruled that the prior specific acts were “remote” in time (they had occurred more than 20 years earlier) and were too “dissimilar” to the events on the night of the shooting (¶ 29).

    Second, the circuit court properly excluded the defendant’s proffer of several experts on self-defense because the proposed testimony failed to meet the threshold standards of Wis. Stat. section 907.02. Essentially the judge found the expert testimony to be unhelpful and unreliable (see ¶ 34).

    Third, although the defendant complained that he had been foreclosed from offering testimony about why he sought out the victims at 2 a.m., the court of appeals held that the defendant had nonetheless put his reasons before the jury (see ¶ 49).

    Finally, the jury was properly instructed. The trial judge properly refused to modify several pattern jury instructions, especially as related to an alleged “mistake of fact” defense (¶ 61). The defendant’s “examples of ‘mistaken’ beliefs were not based on mistakes of fact, but rather, present questions about whether his perception of the danger was reasonable” (¶ 64).


    Anti-assignment Clause – Post-loss Assignment – Duty to Defend

    Pepsi-Cola Metro. Bottling Co. v. Employers Ins. Co. of Wausau, 2022 WI App 45 (filed 8 July 2022) (ordered published 31 Aug. 2022)

    HOLDINGS: An anti-assignment clause did not prohibit a post-loss assignment of insurance rights among parties, the transfer of the “duty to defend” right was unbroken, and the complaint triggered the insurer’s duty to defend.

    SUMMARY: Triggered by asbestos lawsuits, this insurance dispute related to assignments and transfers of policies going back to 1963 (see ¶ 2). The circuit court agreed with the insurer, Employers Insurance Co. of Wausau (Wausau), that its anti-assignment provisions in the policies prevented any transfer of the insurance to successor business entities, including Pepsi-Cola Metropolitan Bottling Co., without Wausau’s consent. The circuit court also found that Pepsi failed to establish that insurance rights had been transferred in a way that created coverage for Pepsi. Pepsi appealed.

    The court of appeals reversed in a majority opinion authored by Judge Kornblum. First, the court “reaffirm[ed] Wisconsin’s longstanding rule that an anti-assignment clause in an occurrence-based policy is unenforceable when the assignment is made post-loss.… While the loss that took place during the policy periods may not be known for many years, it allegedly occurred during Wausau’s policy periods. In reliance on longstanding Wisconsin law, the right to make claims under the insurance was assigned post-loss to subsequent entities. Such assets would prove illusory if post-loss assignments made in reliance on longstanding Wisconsin law are retroactively disallowed” (¶ 29).

    Second, Pepsi had adequately shown that “the insureds’ rights under the Wausau policies were continuously assigned through each of the corporate transactions and mergers” that had occurred between 1968 and 1990, a necessarily fact-intensive analysis (¶ 38).

    Third, Wausau had a duty to defend against a lawsuit brought by plaintiff Huff. “[I]t is clear from the entirety of the complaint that Huff alleged facts connecting his injury to asbestos exposure incurred during the Wausau policy periods” (¶ 42). Wausau could not have been “surprise[d] that it has a duty to defend the lawsuit which involves products made by a company that it insured at the time the products were manufactured” (¶ 44).

    Judge Grogan dissented on the ground that the case law used by the majority involved first-party claims – not third-party claims as in this case (see ¶ 46).

    Mental Health Law

    Wis. Stat. chapter 51 Recommitment Trials – Jury Instruction Regarding Current Dangerousness

    Outagamie Cnty. v. C.J.A. (In re Mental Commitment of C.J.A.), 2022 WI App 36 (filed 1 June 2022) (ordered published 27 July 2022)

    HOLDING: In this Wis. Stat. chapter 51 recommitment trial, the circuit court’s special-verdict question regarding the respondent’s dangerousness was confusing and failed to ask the jury to determine whether the respondent was currently dangerous.

    SUMMARY: C.J.A., the respondent, requested a jury trial after Outagamie County petitioned to extend her Wis. Stat. chapter 51 mental health commitment. At the conclusion of the trial, the judge gave the jury a special-verdict form that included the following question: “Is [the respondent] dangerous to herself or others if not recommitted?” This represented a modification of the question recommended in Wis. JI-Civil 7050 (the standard jury instruction at the time), which asked, “Is the subject dangerous to herself or others?” (¶ 5). The respondent objected to this change, but the judge overruled her objection. Based on the jury’s verdict, the court entered an order extending the respondent’s commitment.

    On appeal, the respondent argued that when the circuit court added the language “if not recommitted” to the dangerousness question on the special-verdict form, the court improperly changed the question of whether the respondent was currently dangerous to whether she would become dangerous if not committed. In an opinion authored by Judge Stark, the court of appeals agreed with the respondent and reversed the circuit court.

    Said the appellate court: “The unmodified verdict question, as taken from the standard jury instruction at the time of trial –i.e., ‘Is the subject dangerous to herself or to others?’ – asks whether the subject individual is currently dangerous. The circuit court’s addition of the language ‘if not recommitted’ plainly modified the question by directing the jury to consider future events – i.e., whether [the respondent] would become dangerous in the future if she were not recommitted. We agree with [the respondent] that this language gave the jury conflicting and confusing information about whether it was supposed to consider [the respondent’s] present status or conduct a forward-looking analysis, the latter of which could be based on any number of considerations divorced from the statutory focus on current dangerousness. The jury should only have determined if [the respondent] was currently dangerous” (¶ 15).

    The court of appeals provided the following guidance regarding jury instructions in this kind of case: “We note that the Wisconsin Civil Jury Instruction Committee recently created a recommended special verdict form for recommitment cases, set forth in [Wis. JI-Civil] 7050A (2021). The new verdict question asks, ‘Is (respondent) dangerous to [(himself) (herself)] or to others?’ If the jury answers that question ‘yes,’ the verdict form then lists the standards [for proving dangerousness] under [Wis. Stat.] § 51.20(1)(a)2.a.-e., allowing the jury to select one or more of those standards on its own or in combination with § 51.20(1)(am) [a special alternative for recommitment cases] as the basis for its determination of dangerousness” (¶ 23).

    “We recommend that in future jury trials involving recommitment proceedings, circuit courts use a special verdict question with this level of specificity so that the jury conducts the proper statutory analysis and may clearly specify the basis for its determination of current dangerousness, in order to avoid confusion” (id.).

    Lastly, because the recommitment order on appeal has expired, the court of appeals concluded that the circuit court no longer has competency to conduct a new trial (see ¶ 24).

    Motor Vehicle Law

    Operating While Intoxicated – Unconscious Persons – Warrantless Blood Draw

    State v. Mitchell, 2022 WI App 31 (filed 15 June 2022) (ordered published 27 July 2022)

    HOLDING: Conducting a blood draw on an unconscious defendant at a hospital without a warrant did not offend the Fourth Amendment.

    SUMMARY: This case has a significant history; it has already been to the U.S. Supreme Court. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the Court adopted a “rule” for an entire category of cases – those in which there is probable cause to believe a driver has committed an operating while intoxicated (OWI) offense and the driver is either unconscious or in such a stupor that the driver cannot properly perform a breath test (¶ 7).

    The U.S. Supreme Court said the following: “When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC [blood alcohol concentration] without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties” (¶ 7, quoting Mitchell, 139 S. Ct. at 2539) (emphasis added).

    With regard to “pressing needs,” the U.S. Supreme Court stated that “unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital … not just for the blood test itself but for urgent medical care. Police can reasonably anticipate that such a driver might require monitoring, positioning, and support on the way to the hospital; that his blood may be drawn anyway, for diagnostic purposes, immediately on arrival; and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value” (¶ 6, quoting Mitchell, 139 S. Ct. at 2537-38).

    The U.S. Supreme Court remanded the matter to the Wisconsin state courts to afford Mitchell the opportunity to show that his blood would not have been drawn if police had not been seeking BAC information and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. A Wisconsin circuit court held an evidentiary hearing and concluded that Mitchell failed to show that either factor existed.

    In an opinion authored by Judge Gundrum, the court of appeals affirmed. It concluded that Mitchell failed to make even the first showing, that is, that his blood would not have been drawn if a law enforcement officer had not been seeking BAC information. After a preliminary breath test showed a BAC level of 0.24%, the officer who stopped Mitchell decided to take Mitchell to the station to conduct a breath test, but on the way Mitchell’s condition continued to deteriorate and at the station he was too lethargic for a breath test. The officer therefore drove him to a nearby hospital for a blood test; on the way there, Mitchell lost consciousness and had to be wheeled into the hospital, where staff assessed him with multiple tests and monitors and drew Mitchell’s blood for medical as well as evidentiary purposes (see ¶ 15).

    Because Mitchell failed to show that his blood would not have been drawn if police had not been seeking BAC information, the officer’s decision to order a warrantless blood draw did not offend the Fourth Amendment. Thus, the warrantless blood draw was lawful (see ¶ 16).


    Easements – Title Insurance

    Columb v. Cox, 2022 WI App 32 (filed 7 June 2022) (ordered published 7 July 2022)

    HOLDING: A title company properly denied a claim relating to easement rights.

    SUMMARY: The Columbs had easement rights that ran through property owned by their neighbors, the Coxes. When the Columbs claimed that the Coxes were interfering with their easement rights, the Coxes sought coverage under their title insurance policy issued by WFG National Title Insurance Co. When WFG denied the claim, the Coxes brought a third-party complaint against WFG and also sued the sellers of their property for misrepresentations. The circuit court granted WFG’s motion for summary judgment and dismissed the Coxes’ complaint.

    The court of appeals affirmed in an opinion authored by Judge Nashold. First, although WFG had issued the title policy itself three years after its initial “commitment,” and several months after the Coxes filed their third-party complaint, the “late issuance” did not affect the coverage issues (¶ 13). “A commitment and a policy are not required to be identical: they are separate contracts and confer separate and distinct contractual rights on the insured” (¶ 23). The court of appeals underscored that “WFG’s issuing the Policy after the Coxes’ lawsuit” was not a “favored practice,” but the insurer’s delay did not bar the coverage denial (¶ 30).

    Second, WFG’s policy did not provide coverage for the Coxes under the easement exceptions (see ¶ 31). Resolution of this issue turned on the policy’s use of the terms “original” and “modified” easement even though there was only a single easement, its location on the property subject to dispute. “[B]y their plain terms, the Easement Exceptions preclude coverage for an identified easement – ‘that ingress/egress easement’ – and provide the Coxes with the additional information they need to determine the title defect or encumbrance these exceptions are meant to reference. This is the only purpose and effect of the Policy’s listing all of the recorded instruments relating to this easement” (¶ 35).

    Riparian Rights – Lake Access – Easements

    Kapinus v. Nartowicz, 2022 WI App 39 (filed 3 June 2022) (ordered published 7 July 2022)

    HOLDING: A plat conveyed only an easement to certain lake-access lots.

    SUMMARY: This litigation concerned the rights of residential-lot owners to three lake-access lots. The lot owners had installed a pier and boat hoist on one lake-access lot. The plaintiffs contended that the lot owners’ rights were in the nature of an easement and that the pier violated Wis. Stat. section 30.131, “which prohibits a non-riparian owner from placing a pier pursuant to an easement on riparian land unless certain requirements are met.” The circuit court granted summary judgment against the lot owners, ruling also that their pier was a public and private nuisance.

    The court of appeals affirmed in an opinion authored by Judge Kloppenburg. The lot owners pointed to language in a 1911 plat “which ‘reserved’ the lake access lots ‘for the use of the lot owners in this plat only, including boat house and pier privileges for said lot owners’” (¶ 20). The opinion plumbs the intricacies of easements, riparian rights, platted lands, and private access ways.

    “To repeat, the plat notation regarding the lake access lots states in pertinent part, ‘Lots A, B and C are reserved for the use of the lot owners of this plat only, including … pier privileges for said lot owners.’ As we now explain, we conclude that this language unambiguously indicates an intent to convey to the lot owners an interest in the lake access lots that is only in the nature of an easement. We base this conclusion on the language in the notation read as a whole, consistent with case law interpreting similar language” (¶ 26).

    The court of appeals also said that much of the appellants’ arguments addressed extrinsic evidence, which was neither proper nor necessary (see ¶ 46).

    Public Records

    Video Records – “Record Subjects” Entitled to Notice of Disclosure or Judicial Review

    Journal Sentinel Inc. v. Milwaukee Cnty. Sheriff’s Off., 2022 WI App 44 (filed 6 July 2022) (ordered published 31 Aug. 2022)

    HOLDINGS: The video footage sought in this public records case is a public record subject to disclosure, and intervenor Froedtert Hospital cannot block the sheriff from releasing the video.

    SUMMARY: A hospital employee was killed in the parking garage of Froedtert Hospital in Milwaukee. The Journal Sentinel (Journal) submitted a public records request to the Milwaukee County Sheriff seeking surveillance video of the suspect wandering around in the parking garage before the attack. That request was denied while the criminal case against the suspect was pending. After the case was concluded, the Journal again requested the video. The sheriff denied the request, finding that the public interest in treating the victim’s surviving loved ones with respect for their privacy and dignity outweighed any legitimate public interest in the disclosure of the video footage.

    The Journal then petitioned for a writ of mandamus to compel the disclosure, which the circuit court granted. The sheriff moved to quash the writ. Froedtert Hospital was permitted to intervene, and it also filed a motion to quash. The circuit court denied the motions to quash and ordered the sheriff to immediately produce the requested footage. Froedtert appealed the decision; the sheriff did not. In an opinion authored by Judge Donald, the court of appeals affirmed.

    Among Froedtert’s arguments on appeal was that a public record is not subject to disclosure if the record was created by a private employer related to its employee and the employee or the employee’s estate does not authorize release of the record. The Journal responded that the public records law expressly prohibits Froedtert from blocking release of the video footage.

    The court of appeals first determined “whether the requested information is a public record” (¶ 12). The video “constitutes a record that is kept by a public authority [the sheriff]. There is no requirement that the record be created by a public authority…. Privately created materials, such as the video in this case, are not exempt from disclosure” (¶ 13).

    The court of appeals then considered whether Froedtert has the right to block the release of the video. The court concluded that Froedtert does not. The general rule is that no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record. This rule has limited statutory exceptions, one of which involves records prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. If a record falls within this or one of the other exemptions, a “record subject” is entitled to notice and may pursue judicial review to restrain the authority from providing access to the requested record (see ¶ 15).

    In this case the court of appeals concluded that Froedtert does not qualify as a “record subject” under the statutes. “A ‘record subject’ is defined as ‘an individual about whom personally identifiable information is contained in a record.’ Froedtert is not an individual about whom personally identifiable information is contained in the record. The statutes do not define a ‘record subject’ as an employer, like Froedtert. Thus, because Froedtert is not a ‘record subject,’ it does not have a right under the statutes to notice or to maintain an action to restrain [the sheriff] from providing the Journal with access to the requested video footage” (¶ 16) (citations omitted).

    In sum, the court of appeals concluded that the video in question is a public record subject to disclosure and that Froedtert cannot block the sheriff from releasing the requested footage (see ¶ 1).


    Fraud – Disclosure – Reliance – Circumstantial Evidence

    Beuttler v. Marquardt Mgmt. Servs. Inc., 2022 WI App 33 (filed 22 June 2022) (ordered published 7 July 2022)

    HOLDINGS: The company that managed a senior housing facility had a duty to disclose the facility’s precarious financial position, and residents could use circumstantial evidence to prove their reliance on the alleged misrepresentations.

    SUMMARY: Individuals paid an entrance fee, which allegedly was 90% refundable, to reside at a senior living facility operated by Marquardt Management Services Inc. Marquardt struggled to turn around the financially troubled facility. The efforts failed, and the facility went into receivership. The appellants alleged that Marquardt had misrepresented the facility’s financial condition when inducing them to pay the refundable entrance fees. The circuit court ruled that Marquardt had breached its duty to disclose the facility’s financial problems but that the residents could not rely on circumstantial evidence to prove their reliance on those misrepresentations, from which it followed that they could not prove reliance at trial.

    The court of appeals affirmed in part and reversed in part in a decision authored by Judge Kornblum. First, Marquardt had breached its duty to disclose the facility’s “precarious financial position” (¶ 15). Residents were told that they would “get their money back,” but Marquardt did not disclose it was “sitting on a failing institution” (¶ 21). Residents should have been told of Marquardt’s “substantial doubt” concerning the facility’s financial viability (¶ 24).

    Second, the residents, many of whom suffered physical and cognitive impairments, could attempt to prove their reliance on the misrepresentations through circumstantial evidence (see ¶ 29). The key was whether the affidavits established the required reliance through evidence admissible at trial, specifically, the defendant’s silence as to its financial condition. Scrutinizing the affidavits, the court found that some affidavits met the mark for summary-judgment purposes, thereby defeating Marquardt’s summary-judgment motion, while others fell short (see ¶¶ 33, 34).

    Exculpatory Releases – Negligent “Rescue” – Public Policy

    Schabelski v. Nova Cas. Co., 2022 WI App 41 (filed 30 June 2022) (ordered published 7 July 2022)

    HOLDING: An exculpatory release did not invalidate a claim based on a “negligent rescue” but did apply to any negligent conduct that occurred before a chair lift finally was stopped by the operators.

    SUMMARY: The plaintiff was injured while snowboarding at a ski hill. The plaintiff has had cerebral palsy since birth and had snowboarded many times before the day on which she was injured. When purchasing her lift ticket, the plaintiff and her husband signed a one-page exculpatory release. Later that morning she was injured when she fell from the chair lift after hanging on for approximately 10 minutes. The ski hill had no “protocol” for the plaintiff’s situation. The circuit court dismissed the plaintiff’s claims, finding they were within the terms of the exculpatory release.

    The court of appeals affirmed in part and reversed in part in a majority opinion authored by Judge Neubauer. Wisconsin law disfavors exculpatory releases on public-policy grounds (see ¶ 27). The alleged “negligent rescue” was not within the release’s terms as contemplated by the parties (¶ 38). “One would not necessarily think of efforts to rescue a rider in danger of falling off a halted chair lift as ‘unloading’ that rider. Such efforts lack the regularity and orderliness of normal ‘loading’ and ‘unloading operations.’ Instead, they are dictated by the circumstances giving rise to the need for rescue” (¶ 36).

    Turning to alleged “pre-rescue” negligence (for example, playing loud music and delay in shutting down the lift), the court held that was within the terms of the release (¶ 40). Nor did the court find sufficient evidence of recklessness to obviate the release (see ¶ 45).

    Because some of the defendants’ conduct was within the scope of the release, the court assessed public policy sounding in “overbreadth” and “misrepresentation,” concluding that the release was lawful (¶¶ 48-57). Moreover, the parties had an adequate “opportunity to bargain” (for example, a skier or snowboarder could purchase a “non-release lift ticket” for an additional $10) (¶ 61).

    Judge Grogan concurred in part and dissented in part. She would have applied the release to the “negligent rescue” conduct as well (¶ 63).

    Statute of Limitation – Sexual Abuse

    Fleming v. Amateur Athletic Union of the U.S. Inc., 2022 WI App 46 (filed 14 July 2022) (ordered published 31 August 2022)

    HOLDING: A negligence claim against the Amateur Athletic Union (AAU) was governed by Wis. Stat. section 893.587, which extends the time within which to file suits.

    SUMMARY: From 1997 to 2000, the plaintiff played youth basketball as part of an AAU program. During this time, a coach sexually assaulted her numerous times. In 2020, the plaintiff, then age 35, sued the AAU and others in state court for tort claims relating to the sexual assaults. The state action was commenced within 20 days after a federal court dismissed a 2019 suit because the court lacked personal jurisdiction. The circuit court granted AAU’s motion to dismiss.

    The court of appeals reversed in an opinion authored by Judge Kloppenburg. It concluded that despite the time lapse, the claim against AAU was timely by operation of Wis. Stat. section 893.587, which permits victims to file child sexual assault claims before the injured party reaches age 35.

    Nor are such actions restricted to the criminal actor. “This [statutory] language contains no express limitation regarding under what theory of liability an injured party may recover the damages sought for the injury, or what party an action may be brought against, in order to be subject to the extended period of limitation” (¶ 20).
    The claim against the AAU alleged negligent hiring and supervision of the AAU coach. The court held that the claims involved damages caused by the coach (see ¶ 24).

    The court also rejected the AAU’s argument that Wis. Stat. section 894.587 does not apply to actions against secular organizations (unlike religious organizations) (see ¶ 31).

    Nor did the tolling statute, Wis. Stat. section 893.13, preclude the plaintiff’s claim. “That statute operates to toll the period of time in which to bring an action from when an action is commenced until final disposition, and extends the period of limitation for thirty days after that final disposition” (¶ 42). “[R]egardless of whether Wis Stat. § 893.587 is a statute of repose or a statute of limitation, Wis. Stat. § 893.13 acts to toll the time to commence an action once an action is brought until its final disposition, and extends ‘the period within which the action may be commenced … to [thirty] days from the date of final disposition.’ Sec. 893.13(2)-(3). Here, Fleming filed the current action within thirty days of the final disposition of her action in federal court (its dismissal for lack of personal jurisdiction). Therefore, her action is timely under § 893.13” (¶ 47).


    Land Use Permits – Variances – Shoreland Property

    Waupaca Cnty. v. Golla, 2022 WI App 40 (filed 23 June 2022) (ordered published 27 July 2022)

    HOLDINGS: The numerous holdings in this case are detailed in the last paragraphs of this case summary.

    SUMMARY: In 1988, defendant Golla’s father built a one-story residence on lakefront property in Waupaca County. To do so, he obtained multiple variances, including a variance that permitted construction with a 5-foot side-yard setback (as opposed to the normally required 10-foot side-yard setback). In 2016, Golla added a second story to the house her father built that was within the footprint of the existing structure, but she did not obtain a land use permit for construction of the addition and she did not apply for a variance from the aforementioned side-yard setback for the addition.

    Ultimately, the county filed this action alleging that Golla violated the county’s general zoning ordinance by failing to obtain a land use permit for construction of the addition and that she also violated the general zoning ordinance by constructing an addition that encroaches on the side-yard setback. These provisions of the general zoning ordinance apply to structural alterations on all property in the county (see ¶ 4).

    The circuit court held a hearing on Golla’s partial summary-judgment motion and concluded that the undisputed facts established that Golla had violated both the land use permit and the side-yard setback provisions of the county general zoning ordinance. In a later motion for reconsideration, Golla argued that Wis. Stat. section 59.692, which addresses a county’s shoreland zoning authority, barred the county from requiring that Golla obtain a land use permit or a side-yard setback variance under its general zoning ordinance before constructing an addition on her shoreland property.

    The circuit court concluded that this statute does not bar the county from enforcing the side-yard setback and land use permit provisions in its general zoning ordinance. As for a remedy, the court granted the county’s request for injunctive relief and ordered that Golla remove the structural alterations made in 2016. In an opinion authored by Judge Kloppenburg, the court of appeals affirmed.

    The court of appeals held that “the 1988 variance does not exempt Golla from complying with the side yard setback and land use permit provisions in the County General Zoning Ordinance as to the 2016 addition. We also conclude that the County is not barred by Wis. Stat. § 59.692, which governs the County’s shoreland zoning authority, from requiring that Golla comply with the side yard setback and land use permit provisions in the County General Zoning Ordinance as to the addition” (¶ 124). [Editors’ Note: Wis. Stat. section 59.692(5) does not bar enforcement of the side-yard setback and land use permit provisions in the county general zoning ordinance because those provisions do not relate to shorelands (see ¶ 74).]

    Accordingly, the court of appeals concluded that “the County is entitled to summary judgment on its claims that Golla violated the County General Zoning Ordinance when she constructed an addition to a structure on her shoreland property without having applied for and obtained a side yard setback variance and land use permit, despite being repeatedly advised by the County before and during construction that a variance and land use permit were necessary. Finally, we conclude that the circuit court had authority to grant the County’s request for injunctive relief and that Golla fails to show that the court erroneously exercised its discretion in doing so” (¶ 124).

    » Cite this article: 95 Wis. Law. 50-58 (October 2022).

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