Wisconsin
Lawyer
Vol. 81, No. 7, July
2008
Court of Appeals Digest
This column summarizes selected
published opinions of the Wisconsin Court of Appeals. Prof. Daniel D.
Blinka
and Prof. Thomas J. Hammer invite comments and questions about the
digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin
Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Administrative Law
Evidence - Discretion
Rutherford v. Labor
& Indus. Review
Comm'n, 2008 WI App 66 (filed 18 March 2008)
(ordered published 28 May 2008)
The Labor and Industry Review Commission (LIRC) upheld an
administrative law
judge's (ALJ) decision that denied a disability discrimination claim
brought by a pro se
petitioner, who had failed to obtain certified copies of her medical
records and failed
to disclose her intention to use copies of those records at her hearing.
The circuit
court affirmed LIRC's decision.
The court of appeals, in an opinion authored by Judge Kessler,
reversed the
circuit court. Contested administrative hearings are governed by Wis.
Stat. chapter 227,
which features "very relaxed rules of evidence" (¶ 21).
ALJs are not bound by the common law
or statutory rules of evidence. "The ALJ is directed to admit
evidence of `reasonable
probative value' and is specifically required to exclude only evidence
that is
`immaterial, irrelevant or unduly repetitious testimony' or evidence
that is inadmissible under
a statute relating to HIV testing"
(id.).
Here the ALJ demanded that the petitioner use certified copies,
a requirement
not found in the statutes or rules. "Only the ALJ-imposed
requirement resulted in the
ALJ refusing to consider the 500 pages of copies of Rutherford's medical
records. In
excluding the uncertified copies, the ALJ made no analysis of the
factors governing
admissibility of evidence in these hearings which are provided by
statute. Consequently, the
ALJ did not exercise the discretion authorized and as such acted beyond
the authority
given by the legislature" (¶ 24). Although the rules require
that the parties give notice
to one another of the evidence and testimony, exclusion of evidence is
not the
inexorable sanction. Moreover, the petitioner appeared pro se, and there
was no showing that
the respondent was prejudiced by the petitioner's failure "to
supply new copies" of her
medical records, many of which had been previously disclosed. Again, the
ALJ failed to
exercise discretion.
Judge Fine filed a concurring opinion.
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Appellate Procedure
Final Orders - Language in Order Referring to Future Judgment
Ecker Bros. v. Calumet
County, 2008 WI App 81 (filed 16 Apr. 2008) (ordered published
28 May 2008)
An appeal as of right can only be filed from a final judgment or
final order; an
order is final if it disposes of the entire matter in litigation as to
one or more parties.
See Wis. Stat.
§ 808.03(1). In Tyler v. RiverBank,
2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686,
the supreme court stated that "[a] court disposes of the entire
matter in litigation in
one of two ways: (1) by explicitly dismissing the entire matter in
litigation as to one
or more parties or (2) by explicitly adjudging the entire matter in
litigation as to one
or more parties" (¶ 4).
In this case the circuit court's order expressly dismissing the
claims of Ecker
Brothers "in their entirety with prejudice" and awarding costs
was a final order for
purposes of appeal, notwithstanding the presence in the order of the
following
language: "[j]udgment shall hereafter be separately entered in
favor of the County consistent
with this Order" (¶ 1). Because Ecker's notice of appeal was
not timely filed in relation
to this order, the court of appeals in a per curiam decision concluded
that it lacked
jurisdiction, and it accordingly dismissed Ecker's appeal.
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Civil Procedure
Laches - Prejudice
Zizzo v. Lakeside Steel
& Mfg. Co.,
2008 WI App 69 (filed 30 Apr. 2008) (ordered
published 28 May 2008)
In 1989 Lakeside Steel & Manufacturing Co. loaned Daniel
Zizzo's parents some
money and secured the loan with mortgages on the Zizzos' property.
Although the loan was to
be paid off in monthly installments that were to end in 1993, Zizzo's
parents died
without having made any payments, and Lakeside never attempted to
collect or to foreclose on
the mortgages. Daniel inherited the property upon the death of his
parents and brought
this declaratory judgment action in 2005 asking the court to discharge
the mortgages based
on laches (and other claims). The circuit court granted summary judgment
to Zizzo based
on Lakeside's laches.
The court of appeals affirmed in an opinion written by Chief
Judge Brown. First,
Zizzo could assert laches in his capacity as a plaintiff despite
language in Wis. Stat.
section 802.02(3) that addresses laches as a defense
(see ¶ 8). Second, Zizzo was entitled
to laches. The opinion surveys the elements of laches as applied to
these facts. Amusing
is the court's dispatch of Lakeside's contention that it had not
"unreasonably
delay[ed]" bringing an action: "Frankly, the argument that
Lakeside cannot be unreasonably late
in bringing its action because it has not yet brought its
action gives us a headache" (¶ 17). Finally, Daniel was
undeniably prejudiced by Lakeside's dilatoriness because
"Zizzo cannot get any information from his parents about the
circumstances that led to
them never making a single payment on the notes and yet, for some
reason, never getting
sued for sixteen years. If Lakeside means to say that Zizzo's prejudice
claim is
speculative because he does not know exactly what information his
parents possessed, then
Lakeside misunderstands defense prejudice. Of
course he does not know that information - and
that is exactly how he is prejudiced" (¶ 20).
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Criminal Law
Identity Theft - Continuing Nature of Offense - Determining When
Crime Is
Completed
State v. Lis,
2008 WI App 82 (filed 1 Apr. 2008) (ordered published 28 May 2008)
In 2004 the defendant was charged with multiple counts of
unauthorized use of
personal identifying materials in violation of Wis. Stat.
section 943.201(2) (2003-04).
Among other things this statute provides that a violation is committed
if the defendant
"intentionally uses, attempts to use, or possesses with intent to
use any personal
identifying information ... of an individual ... (a) To obtain credit,
money, goods, services,
employment, or any other thing of value or benefit."
The complaint alleged that the defendant opened telephone and
credit card
accounts using employment information and the Social Security number of
his son. The
pleading stated that the violations occurred in 2003 and 2004. In 2006
the defendant
pleaded guilty to identity theft and received a prison sentence. He
subsequently moved to
withdraw his guilty plea, arguing that the court gave him incorrect
information during
the plea colloquy when it told him the maximum penalty he was facing.
The defendant
contended that the accounts that were the basis for the charges were
closed in 1999 and 2000,
and that the judge should have advised him about the penalties that were
in effect for
identity theft then instead of the different penalties for identity
theft that were in
effect in 2003 (the penalties having been changed as part of Wisconsin's
transition to
truth-in-sentencing). The state did not dispute the defendant's
contention that the accounts
were closed by the end of 2000, but it argued the offenses continued
into 2004 because of
the continued harm to the victim. The circuit court concluded the
offenses continued
into 2004 because, despite the account closures, interest and fees
continued to accrue on
the accounts, and creditors continued to look to the victim for payment.
The circuit
court denied the defendant's motion to withdraw his plea.
In a decision authored by Judge Peterson, the court of appeals
reversed the
circuit court. It concluded that the statute under which the defendant
was convicted codifies
a "continuing offense." "A continuing offense is a course
of conduct that takes place
over time, as opposed to a single incident, and is complete when the
defendant performs
the last act that, viewed alone, is a crime" (¶ 7). The
question before the court was
whether the defendant's crimes continued after the fraudulent accounts
were closed. The
appellate court concluded that they did not
(see ¶ 1). Said the court, "In this case, [the
defendant's] offense continued into 2003 and 2004 only if he received a
`thing of value
or benefit' after the accounts were closed in 2000. A `benefit' is
`something that
guards, aids, or promotes well-being: Advantage' Webster's Third New
International Dictionary
204 (unabr. 1993). Similarly, `valuable' means `possessing monetary
value in use or
exchange' or `characterized by usefulness, worth, or serviceableness.'
Id. at 2530. In this case, so long as the Verizon account
was open, [the defendant] was using his son's identity
to obtain a `thing of value' - phone service. So long as the credit card
accounts were
open, [he] was using his son's identifying information to obtain credit.
Once those
accounts were closed, however, the benefits to [the defendant] - the
phone and credit - ended"
(¶ 8). The state conceded that if the crimes were completed by the
end of 2000 (which
the appellate court concluded was the case), the defendant was
misinformed about the
applicable penalty and is entitled to withdraw his plea
(see ¶ 16).
Because the defendant was in fact misinformed by the court about
the sentence
he faced, the court of appeals reversed and remanded the matter to the
circuit court
with directions to allow the defendant to withdraw his plea.
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Criminal Procedure
Stop and Frisk - Inspection of Purse as Frisk for Weapons
State v. Limon,
2008 WI App 77 (filed 8 Apr. 2008) (ordered published 28 May 2008)
Among the issues before the court of appeals in this case was
whether a
suspect's purse may be inspected as part of a frisk for weapons during
an investigative
detention conducted pursuant to Terry v. Ohio,
392 U.S. 1 (1968). The defendant and her
companions were detained on the porch of a house in connection with
suspected drug activity.
During that detention the officer searched the purse carried by the
defendant and found
bagged cocaine sitting on top of the remainder of the purse's contents.
The officer
testified that he was looking for weapons that could have been concealed
in the purse, which
was approximately one foot long and six inches high.
After an extended analysis the court concluded that there was
reasonable suspicion
for the detention of the defendant and that a protective search of the
defendant's purse
was warranted on reasonable suspicion that the officers were in danger
of physical injury.
It then turned to the question of whether the search of the purse
exceeded the scope of
a valid weapons frisk authorized by Terry and by Wis. Stat.
section 968.25 (the
"search during temporary questioning" statute). Said the
court, "Although
Terry provides only for an officer `to conduct a carefully
limited search of the outer clothing in an attempt
to discover weapons which might be used to assault him,' we hold that
under these
circumstances the search was properly broadened to encompass the opening
of [the
defendant's] purse. Here, again, we agree with the trial court that [the
defendant's] purse was
essentially an extension of her person where the purse was accessible by
her, and because
the officers were concerned for their safety, `they should be able to
protect themselves
to the extent that if they are concerned, they should be able to find if
there are
weapons on the person or close enough to the person where that person
can cause harm to the
officer'" (¶ 36) (citations omitted).
The defendant argued that the officers should have patted down
her purse as opposed
to "diving into it" (¶ 37). However, "[t]he record
is silent ... regarding whether
[the defendant's] purse was cloth, leather, vinyl, or some other
material, making it
unclear whether a pat-down would have been worthwhile ... [W]ithout any
evidence in the
record that a pat-down of [the] purse would have been effective, it was
reasonable for the
officer to open [the] purse in order to protect himself and others"
(¶¶ 37-38). The
court was not persuaded that what the defendant characterized as the
"intensely private
nature of a purse" and her privacy interest therein should trump
the officer's safety
concerns under these circumstances (¶ 39).
Lastly, the defendant argued that the officer effectively
protected himself by
taking possession of her purse, so as to make his subsequent act of
opening the purse
unreasonable. The appellate court "disagree[d], and instead
adopt[ed] the trial court's
reasoning that even if the officer temporarily had taken away [the]
purse, at some point he
would have had to return it to [the defendant], again jeopardizing his
safety" (¶ 40).
Sentencing - Imposition of DNA Surcharge - Exercise of Judicial
Discretion
State v. Cherry,
2008 WI App 80 (filed 8 Apr. 2008) (ordered published 28 May 2008)
The defendant pleaded guilty to delivery of cocaine, and at
sentencing the
circuit court imposed a $250 DNA surcharge on him. In a postconviction
motion and again on
appeal the defendant argued that the court failed to properly exercise
its discretion when
it ordered him to pay the surcharge. In a decision authored by Judge
Wedemeyer, the court
of appeals agreed with the defendant.
The statutes establish the following principles for imposing the
DNA surcharge: "If
a trial court sentences a defendant to a felony involving a sex crime
contrary to
Wis. Stat. §§ 940.225, 948.02(1) or (2), 948.025, or
948.085, the trial court
must order the defendant to pay the $250 surcharge for the DNA
sample. Wis. Stat. § 973.046(1r).
When the felony does not involve a sex crime under one of those
statutes, however, the
trial court may order the defendant to pay the $250 DNA
surcharge. Sec. 973.046(1g). Thus,
in the latter situation, the trial court has the discretion to decide
whether or not
to impose the DNA surcharge" (¶ 5).
In this case, because the defendant was convicted of a drug
crime, the imposition
of the surcharge was discretionary. The only reasons expressed in the
record for the
circuit court's decision were that 1) the circuit court's policy is to
impose the surcharge
whenever possible; and 2) the court has the statutory authority to order
the surcharge
for the purpose of supporting the DNA database program
(see ¶ 6). The court of appeals held that the record did not
reflect a sufficient exercise of discretion to support the
surcharge (see ¶ 4). Said the court, "We hold that in
assessing whether to impose the
DNA surcharge, the trial court should consider any and all factors
pertinent to the
case before it, and that it should set forth in the record the factors
it considered and
the rationale underlying its decision for imposing the DNA surcharge in
that case" (¶ 9).
While declining to provide a definitive list of factors for the
circuit court to
consider in assessing whether to impose the DNA surcharge, the court of
appeals did
offer some guidance to circuit courts, as follows: "[W]e conclude
that some factors to be
considered could include: (1) whether the defendant has provided a DNA
sample in
connection with the case so as to have caused DNA cost; (2) whether the
case involved any
evidence that needed DNA analysis so as to have caused DNA cost; (3)
financial resources of
the defendant; and (4) any other factors the trial court finds
pertinent" (¶ 10).
Closing Arguments - Reversible Error
State v. Weiss,
2008 WI App 72 (filed 23 Apr. 2008) (ordered published 28 May 2008)
The court of appeals, in an opinion written by Chief Judge
Brown, reversed the
defendant's conviction for sexual assault because of the
prosecutor's improper closing argument. Venerable case law permits
prosecutors to strike "hard blows" but not "foul
blows" during closing argument. The point involved the defendant's
denial to police that he
had committed the crime.
The court was "more than convinced that she [the
prosecutor] was asking the jury
to disbelieve Weiss's statement that he had verbally denied the crime to
the police.
In fact, her complete argument on the subject was that, other than a
formal plea of
not guilty, Weiss had never denied the crime until he got on the
witness stand. She knew
better. She had the two police reports saying otherwise.
We point
out once more,
because this is important: the State concedes that the
prosecutor's argument, asserting that Weiss never denied the crime,
implicitly including verbal denials, was incorrect.
The importance of what we are about to say cannot be underscored enough.
Prosecutors may
not ask jurors to draw inferences that they know or should know are not
true. That is
what occurred here and it is improper" (¶ 15). The error
justified reversal of the conviction.
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Consumer Law
Lemon Law - Consumer's Good Faith
Marquez v. Mercedes-Benz
USA LLC, 2008 WI App 70 (filed 9 Apr. 2008) (ordered
published 28 May 2008)
The plaintiff's new Mercedes Benz turned out to be a
"lemon." By letter he demanded
a refund. After efforts to accommodate the plaintiff failed, Mercedes
Benz (MB)
purportedly agreed to pay the refund within the 30-day period allowed by
the lemon law. MB was
unable to reach the plaintiff's lawyer on the 30th day to arrange the
payment despite
multiple efforts on its part. The next day the plaintiff filed this
action seeking
additional penalties because MB had not refunded the purchase price
within the 30-day period.
The circuit court ruled that MB had failed to comply with the statute.
The court of appeals, in a decision authored by Chief Judge
Brown, reversed the
grant of summary judgment in favor of the plaintiff. "This appeal
requires us, for the
first time, to define a consumer's good faith obligations relating to
the Lemon Law. The
manufacturer here claims that the consumer intentionally thwarted its
attempt to make a
refund by failing to provide necessary information about the consumer's
auto loan. We
hold that, if this is found to be true, the consumer is not entitled to
the Lemon Law's
statutory remedies. The legislature could not have intended that the
consumer be allowed
to block a manufacturer from complying with the statute and then reap
the rewards of
noncompliance. We therefore reverse the circuit court's grant of summary
judgment to the
consumer" (¶ 3). The lemon law did not demand that MB pay a
"lump sum" to the
plaintiff. Instead, it required MB to write a separate check to the bank
that held a purchase
money security interest in the automobile. It was that information that
MB allegedly
sought from the plaintiff's lawyer on day 30.
This triggered a second issue: "If Marquez intentionally
withheld this information
and thereby caused MB to miss the thirty-day refund window, is he
entitled to the
statutory damages for MB's violation of the statute?" (¶ 12)
Construing the lemon law cases,
the court held that "a consumer fails to act in good faith when he
or she intentionally
prevents the manufacturer from complying with the statute" (¶
22). The duty to act in
good faith inheres in the lemon law itself; it is not "imported
from contract law"
(id.). The summary judgment record revealed issues of material
fact regarding what occurred
between MB, the plaintiff, and plaintiff's counsel on the 30th day. The
case was remanded
for trial.
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Motor Vehicle Law
OWI - Enforceability of OWI Law on Premises Held Out to Public
for Motor
Vehicle Usage - Roadways of Gated Community
State v. Tecza,
2008 WI App 79 (filed 23 Apr. 2008) (ordered published 28 May 2008)
Wisconsin's operating while intoxicated (OWI) law may be
enforced "upon all
premises held out to the public for use of their motor vehicles."
See Wis. Stat. § 346.61. The question before the court was
whether the law could be enforced upon roadways of a
gated community. The community in question is the Geneva National
Community, located
in Walworth County. "[It] is a condominium development of 1920
approved units with
between 1200 and 1500 units constructed. While most of the units are
owner-occupied, there
are rental units managed by agencies not connected with the Community.
In addition to
the residential units, the Community includes a golf course, a clubhouse
with a
restaurant used for wedding receptions and meetings, and the Hunt Club
restaurant, the facilities
of which are open to the public" (¶ 4). The development
includes 20 miles of roadway and
the local police department patrols those roads and enforces traffic
regulations
(see ¶ 5). The circuit court concluded that the OWI law
could be enforced on those roads.
In a decision authored by Judge Anderson, the court of appeals
affirmed. Said
the court, "[W]e conclude that the roadways of the Community were
held out for use of
the public as a whole. The undisputed evidence establishes that any
person with a
driver's license and access to a motor vehicle was permitted to use the
Community's roads; on
a daily basis postal employees, cable television employees, contractors,
food service
employees, repairpersons, and newspaper delivery persons were granted
access to the
Community. In addition, members of the general public were given access
to the
Community's roadways to show and view houses for sale, watch fireworks,
play golf, attend
weddings, and to just look around" (¶ 19).
"There is no evidence the Community made any attempt to
limit access to residents
only
There is no signage, fence or wall restricting entry. It is
clear that the
Community's residents permitted the public unimpeded access in order
that the residents could
pursue their leisure activities and depend on other members of the
public to fulfill their
daily needs. It is equally clear that a purpose of the main security
station was to
facilitate entry into the Community for those without security passes or
security stickers" (¶ 20).
Accordingly, the appellate court concluded that the roadways of
Geneva National
Community were "held out to the public for use of their motor
vehicles," and the OWI
laws could be enforced on those roadways.
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Real Property
Foreclosures - Confirmation
JP Morgan Chase Bank v.
Green Community Action
Inc., 2008 WI App
78 (filed 3 Apr. 2008) (ordered published 28 May 2008)
M&I Bank held a first mortgage on the same property on which
JP Morgan held a
second mortgage. M&I brought a foreclosure action, waived any
deficiency judgment, and
obtained a default foreclosure judgment in January 2006 when no other
served party, including
JP Morgan, responded or appeared. At a sheriff's sale held in March
2006, Hare
Investments was the high bidder. JP Morgan, however, brought a separate
foreclosure action on
its second mortgage, also in January 2006, which made no reference to
M&I's action.
Unaware that the second case involved the same property, the circuit
court entered a
foreclosure judgment, also in March 2006. When the banks became aware of
their dueling
foreclosure cases, M&I assigned its interest to JP Morgan, which
then moved to set aside the
first sale. Hare Investments then intervened, and the circuit court
ruled that "JP
Morgan's explanation that it did not know about the first sale until
after it occurred did
not entitle JP Morgan to start its own foreclosure action and have a
second sale because
JP Morgan was properly served with the summons and complaint in the
first action and
there was the requisite public notice of the first sale. The court
rejected JP Morgan's
argument that it should not confirm the first sale because the amount
received was
grossly inadequate. The court rejected JP Morgan's alternative argument
that the price was
inadequate and there was a mistake in the process. The court concluded
that JP Morgan
had established no other equitable basis for not confirming the first
sale" (¶ 9).
In an opinion written by Judge Vergeront, the court of appeals
affirmed. As a
junior lienholder, JP Morgan did not have the right to redeem property
under Wis. Stat.
section 846.13 (see ¶ 14). The court next turned to Wis.
Stat. section 846.15, which, it
assumed without deciding, subrogated JP Morgan to M&I's rights
"as to the judgment any time
before confirmation of the sale" (¶ 20). The court rejected JP
Morgan's contention that
a purchaser (Hare Investments) could not apply for confirmation of the
sale and that
under section 846.15, M&I conveyed to JP Morgan its right to either
apply for, or withdraw
from (as here), the application for confirmation
(see ¶ 21). This argument in turn
implicated other statutes in chapter 846.
"In summary, neither the language of Wis. Stat.
§ 846.165 nor JP Morgan's
arguments persuade us that the statute precludes a purchaser from
obtaining a confirmation
hearing, where, as here, the mortgagee's application for confirmation
has been withdrawn.
Instead, we conclude it is more reasonable to permit the purchaser to
apply for confirmation
in these circumstances. This construction affords the purchaser an
opportunity to have
the court decide whether it is entitled to transfer of the property
under applicable law,
and it does not undermine the rights of the lienholders and mortgagor to
object to
certification as provided by law" (¶ 31).
The court also held that the value obtained by the first sale
was reasonable and
thus "fair," especially in light of JP Morgan's failure to
participate in the first
sale. Finally, the court rejected JP Morgan's alternate contention that
"it had the right
to bring a separate action to foreclose its own mortgage and obtain its
own order for
a sale, even if it was named and served in the first action"
(¶ 41).
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Torts
Products Liability - User/Consumer - Bystander
Horst v. Deere &
Co., 2008 WI App
65 (filed 30 Apr. 2008) (ordered published 28 May 2008)
A father accidentally cut off the feet of his young son while
cutting grass with
a lawn tractor. The family brought negligence and strict product
liability claims
against the manufacturer for designing a lawn tractor with an override
switch that allowed
the operator, as here, to mow in reverse. During the jury trial, the
judge read an
instruction that inquired whether the lawn tractor was defective and
unreasonably dangerous
from the perspective of a "user/consumer"; the judge rejected
the plaintiffs' request to
insert the words "or bystander." The jury decided the question
in the manufacturer's favor.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. Reviewing
the case law, the court held that Wisconsin adopts the consumer
contemplation test as
set forth in Green v. Smith & Nephew, AHP,
Inc., 2001 WI 109, ¶ 46, in which "the court
declined to `abandon or qualify this state's exclusive
reliance on the consumer-contemplation test,' and pronounced that
`Wisconsin is committed to the
consumer-contemplation test in all strict products liability
cases.' With this mandate from the supreme
court, we hold that the circuit court properly submitted WIS JI - CIVIL
3260, which reflects
the consumer contemplation test, to the jury. We further hold that the
court's supplement
to the instruction accurately stated that bystanders are protected by
the doctrine of
strict liability if the bystander is injured by a defective product that
is unreasonably
dangerous to the ordinary user or consumer" (¶ 20).
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