Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Contracts | Criminal Law | Criminal Procedure | Family Law | Insurance | Municipal Law | Paternity | Open Records Law | Real Property |
Civil Procedure
Motion to Dismiss for Failure to State a Claim - Filing the Motion
After Filing of the Answer
Eternalist Foundation Inc.
v. City of Platteville, No. 98-1944 (filed 18 March 1999)
(ordered published 21 April 1999)
Wis. Stat. section
802.06(2)(a) provides among other things that every defense in law
or fact to a claim for relief in any pleading shall be asserted in the
responsive pleading thereto if one is required, except that certain
defenses may at the option of the pleader be made by motion. These
include the defense of failure to state a claim upon which relief can be
granted and the statute of limitations. Section 802.06(2)(b) provides
that a motion making any of the defenses listed in section 802.06(2)(a)1
shall be made before pleading if a further pleading is permitted. In
this case the plaintiffs argued that the language of this statute means
that a defendant may not file a motion to dismiss for failure to state a
claim and on statute of limitations grounds once the defendant has filed
an answer.
In a decision authored by Judge Deininger, the court of appeals
rejected the plaintiffs' interpretation. The court acknowledged that the
statute's language cited above is somewhat confusing if read in
isolation. When read in the context of other subsections of section
802.06, however, it becomes apparent that the provisions of section
802.06(2) serve simply to indicate which defenses a defendant may raise
prior to, and in lieu of, filing an answer to a complaint. Other
subsections of the statute make clear that a defendant who includes the
defenses of failure to state a claim or statute of limitations in an
answer does not forfeit the right to bring those defenses on for
disposition by motion thereafter. Accordingly, the court concluded that
the defendants' motion to dismiss for failure to state a claim and on
statute of limitations grounds was properly before the circuit court,
despite the defendants' having previously filed an answer.
Statute of Limitations - Section 803(5) - "Same Occurrence"
Strassman v.
Muranyi, No. 98-3039 (filed 18 March 1999) (ordered published
21 April 1999)
Strassman was injured in a golf cart mishap in August 1994. In May
1995 she and her health insurer sued the golf pro who had rented the
cart and his insurer, alleging some kind of defect in the cart. The
defendants in turn filed an amended third-party claim against
Strassman's husband and his insurer, General Casualty, alleging that
Strassman's injuries occurred because of the husband's negligent
driving. This third-party claim was filed in July 1996. In October 1997
Strassman and her health insurer also filed a claim against the husband
and General Casualty alleging the husband's negligent driving. The trial
court granted summary judgment to General Casualty dismissing
Strassman's complaint because it was time barred under the statute of
limitations.
The court of appeals, in an opinion written by Judge Dykman,
affirmed. Under section
893.54(1) of the Wisconsin Statutes, tort actions must be brought
within three years of the injury or its discovery. Strassman brought her
claim against General Casualty (and her husband) in October 1997, more
than three years since the August 1994 injury. She argued, however, that
section
803.05(1) permitted her to bring the claim because another party had
asserted the same claim within the statute of limitations (the July 1996
claim) and all parties had notice. The court rejected the argument
because Wisconsin's statutes of limitation "serve a much different
purpose than simply providing notice and repose." More precisely, they
completely "extinguish" the right to bring a claim.
Contracts
Store Lease - Repairs - Termination - Economic Loss
Decade 80-1 Ltd. v. PDQ
Food Stores Inc., No. 98-0810 (filed 24 March 1999) (ordered
published 21 April 1999)
A tenant in a mall operated a convenience store. When the landlord
failed to repair potholes in the parking lot, the tenant stopped paying
rent and vacated the premises. The landlord sued the tenant for the lost
rent. The trial judge found that the potholes constituted a breach of
the lease.
The court of appeals, in an opinion written by Judge Brown, affirmed.
The court framed the main question as whether the tenant had "to show
substantial damages to its business in order to establish a breach that
justified terminating the lease." It observed that this was not a
constructive eviction action. Rather, the landlord breached a "specific
provision requiring maintenance of the parking lot, not the covenant of
quiet use which is the basis of constructive eviction cases." The
maintenance provision was part of the bargain struck between the
parties. Nothing in the lease established that the tenant had to
demonstrate actual economic loss before invoking its remedies. Thus, the
court refused to grant a "free pass to landlords to ignore contractual
agreements."
Criminal Law
Self-defense - Retreat - McMorris Evidence
State v. Wenger,
No. 98-1739-CR (filed 21 Jan. 1999) (ordered published 21 April
1999)
The court of appeals, in an opinion written by Judge Cane, affirmed
the defendant's conviction for second-degree reckless injury with a
dangerous weapon. One of the key issues concerned the accuracy of the
trial court's instruction on self-defense and retreat, Wis JI - Criminal
810. Although the self-defense statute does not mention retreat, case
law recognizes the proposition that "whether the opportunity to retreat
was available may be a consideration regarding whether the defendant
reasonably believed the force used was necessary to prevent or terminate
the interference." The evidence revealed that the defendant "may have
been able to retreat safely into his house and lock the door." The
feasibility of these measures was a jury issue.
A second issue concerned the trial court's exclusion of certain
McMorris evidence; that is, prior acts of violence by the
victim, known to the defendant, offered to show the reasonableness of
the defendant's behavior. In this case the defense wanted to offer some
evidence about the victim's prior violent behavior that the defendant
was unaware of at the time of the offense. Several cases "seem to
indicate that evidence concerning the reality or actuality of the
victim's prior specific violent acts is admissible to prove the
reasonableness of the defendant's knowledge and lend credibility to his
assertions about his state of mind." The same cases indicate that "the
witnesses need not have communicated these observations to the
defendant." The court of appeals held, however, that any error was
harmless because the excluded evidence was essentially cumulative.
Criminal Procedure
Exculpatory Evidence - Failure to Disclose - Gunshot Residue
Tests
State v. DelReal,
No. 97-1480-CR (filed 9 March 1999) (ordered published 21 April
1999)
The court of appeals, in an opinion written by Judge Wedemeyer,
reversed the defendant's conviction for second-degree recklessly
endangering safety, while armed, and remanded the case for a new trial.
The error consisted of the state's failure to dis-close that following
the shooting, swabs had been taken of the defendant's hands that could
have been tested for gunshot residue. A detective had testified that no
such swabs had been taken. Thus, the existence of the swabs was relevant
to attack the detective's credibility and shed light on the quality of
the investigation. Moreover, the results of the gunshot residue test
were negative. Although this did not conclusively prove the defendant's
innocence, it was relevant and exculpatory. The court also declined to
find that the error was harmless.
Guilty Plea Hearings - Advice to Defendant Regarding the Setting of
Parole Eligibility
State v. Byrge,
No. 97-3217-CR (filed 17 March 1999) (ordered published 21 April
1999)
Under present law a court sentencing a defendant to life imprisonment
is required to make a parole eligibility determination. Pursuant to Wis.
Stat. section
973.014(1) the court has three options: 1) determine that the
defendant is eligible for parole using the ordinary calculations
established in Wis. Stat. section
304.06(1); 2) determine a parole eligibility date that is later than
that calculated under section 304.06(1); or 3) determine that the
defendant is not eligible for parole. In this case the court selected
the second option and fixed the defendant's parole eligibility date at
July 2, 2095, after he had been convicted of first-degree intentional
homicide and various related felonies. The judgment followed the entry
of no-contest pleas.
While the court's plea colloquy with the defendant was extensive and
otherwise complete, it did not advise the defendant of the court's
options regarding the setting of parole eligibility or the court's power
to fix a parole eligibility date. The defendant contended that this
failure was error.
In a decision authored by Judge Nettesheim, the court of appeals
disagreed. It held that a defendant is not statutorily or
constitutionally entitled to a forewarning about parole eligibility as
part of the plea colloquy process in a case governed by section
973.014(1). Though the court of appeals recommended the practice, it
held that a valid plea colloquy does not require that the court advise a
defendant that it may set a parole eligibility date.
Family Law
Child Support - Arrearages - Equitable Credit
Monicken v.
Monicken, No. 98-2922 (filed 30 March 1999) (ordered published
21 April 1999)
The original judgment of divorce in this case, which approved and
incorporated a marital settlement agreement, provided that the husband
should pay to his ex-wife for the support of their minor children the
sum of $500 each month to be deducted from his income pursuant to an
assignment of income. That judgment was later amended to provide that
the monthly payments were to be made directly by the husband to his
ex-wife without the involvement of the local clerk of court. Only two
such payments were made. However, the parties had orally agreed to a
different child support arrangement whereby money would be paid by the
husband directly to the children or to a third party. Several years
later the wife filed a contempt motion alleging that her ex-husband
failed to pay his child support as agreed to by the parties and
requested the payment of child support arrearages.
The circuit court denied the contempt motion. It concluded that no
arrearages existed because the husband had, on average, expended $448
per month for the children by making cash and noncash payments directly
to them and to third parties. The court further held that neither Wis.
Stat. sections
767.32(1m) nor (1r) precluded it from recognizing the payments that
the husband had made. Further, the court concluded that the
extrajudicial oral agreement between the parties was enforceable under
the doctrine of equitable estoppel.
In a decision authored by Chief Judge Cane, the court of appeals
reversed. First, it concluded that because the judgment only provides
for direct cash payments to the ex-wife, the circuit court erred when it
concluded that the husband fully complied with the judgment by making
cash and noncash payments directly to the children and third parties.
The appellate court next considered whether the statutes cited above
allowed the circuit court to modify the amended judgment and credit the
husband for the direct payments he made to his children and third
parties that do not comply with the amended judgment. The court agreed
with the wife that recently amended section 767.32(1r) limits a circuit
court's authority to modify an existing child support arrearage to the
specific circumstances enumerated in that statute. Accordingly, the
appellate court remanded this matter so that the circuit judge could
consider whether under section 767.32(1r), the husband should receive
credit for expenditures made in a manner other than as prescribed in the
amended judgment of divorce.
Grandparent Visitation - Wis. Stat. section 880.155 - "Best Interest
of the Child"
F.R. v. T.B., No.
98-0819 (filed 11 March 1999) (ordered published 21 April 1999)
This case involves grandparent visitation privileges under Wis. Stat.
section
880.155. This statute provides that if one or both parents of a
minor child are deceased and the child is in the custody of the
surviving parent or any other person, a grandparent or stepparent of the
child may petition for visitation privileges with respect to the child,
whether or not the person with custody is married. The statute further
provides that the court may grant reasonable visitation privileges to
the grandparent or stepparent if the surviving parent or other person
who has custody of the child has notice of the hearing on the matter and
if the court determines that visitation is in "the best interest of the
child."
Among the critical issues in this case was the meaning of the phrase
"best interest of the child." In a decision authored by Judge Dykman,
the court of appeals began its analysis by noting that nothing in the
statute's language defines the meaning of this phrase. Nor is there
anything in the legislative history that suggests how the phrase should
be interpreted. The court therefore looked to other statutes in which
this language is used. It found that section
767.245, which addresses visitation rights of nonparents, contains
language strikingly similar to section 880.155. Though section 767.245
does not define its use of the phrase "best interest of the child," the
court looked for guidance on how to interpret this language in other
provisions of chapter 767. In section 767.24(5) the court found the most
extensive explanation of what a trial court should consider when it
determines the "best interest of the child." The court of appeals was
satisfied that this definition also sets out an appropriate standard for
determining the "best interest of the child" under section 880.155.
Divorce - Maintenance - Comparable Standard of Living
Johnson v.
Johnson, No. 98-2141 (filed 3 Feb. 1999) (ordered published 21
April 1999)
William Johnson appealed from an order modifying the amount of
maintenance he must pay to his former wife. He contended that the trial
court erred in setting maintenance above 50 percent of the total
household income at the time of the divorce. In a decision authored by
Judge Brown, the court of appeals concluded that the trial court's
decision on maintenance was reasonable and in accordance with the
law.
While the appellate court recognized that it is reasonable to
consider an equal division of total income as a starting point in
determining maintenance, an equal division of income is not the only
starting point. In this case the trial court looked at the type of
lifestyle the parties maintained during the marriage, considering such
factors as home ownership, insurance coverage, vacation time, and
hobbies. It then determined the amount necessary for Johnson's wife to
maintain a comparable lifestyle and based its maintenance award on this
determination. This type of analysis may very well come much closer to a
realistic approximation of the maintenance necessary to support the
predivorce standard of living than a rote calculation based on
income.
The court also noted the fact that maintaining two households is more
expensive than maintaining one means that 50 percent of the total income
at the time of the divorce will rarely allow either of the parties to
maintain the marital standard of living. In most cases, both parties
will take a cut in lifestyle as a result of the divorce. Fifty percent
of the predivorce income often is taken as a starting point because
maintenance of the payee spouse at the predivorce standard of living is
not feasible - the payer cannot afford it. But the goal is that standard
of living enjoyed during the marriage, not 50 percent of the total
predivorce income. In this case the trial court's analysis was an
attempt to approximate the predivorce standard of living and the payor's
increase in income allows maintenance of that standard of living without
undue hardship.
The court felt compelled to clarify what this opinion did not say. A
payee spouse is not entitled to maintenance allowing a lifestyle above
and beyond the predivorce standard of living. Just because the payor has
achieved a position that enables him or her to live a richer lifestyle
than that enjoyed during the marriage does not mean that the payee may
share this lifestyle as well through maintenance. The court also pointed
out that this was not a case where the maintenance award was based on
the payor's anticipated increase in salary. See Hefty v.
Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).
Insurance
Exclusions - "Drive Other Car" - UM Coverage
Blazekovic v. City of
Milwaukee, No. 98-1821-FT (filed 23 March 1999) (ordered
published 21 April 1999)
The plaintiff was a firefighter who was injured when an uninsured
motorist struck her fire truck. She filed suit against her auto
insurers, American Family and American Standard, alleging that she was
entitled to uninsured motorist coverage. Both insurers denied coverage
based on identical exclusions governing "nonowned emergency type
automobiles." The trial court ruled that the endorsement was
invalid.
The court of appeals, in an opinion written by Judge Curley,
affirmed. The court tracked case law that had struck down various
exclusions and the subsequent statutes that had effectively overturned
these cases. The court concluded "that while the legislature's statutory
amendments to sec.
632.32 loosened what was previously a complete ban against 'drive
other car' exclusions, the amendments did not make all 'drive other car'
exclusions permissible." In particular, these "drive other car"
exclusions are now valid in three limited instances: "(1) the vehicle is
owned by the named insured or the spouse of the named insured or a
relative living with the named insured; and (2) the vehicle is not
listed in the policy; and (3) the vehicle meets neither the policy
definition of a newly acquired vehicle nor the policy definition of a
replacement vehicle."
Municipal Law
Annexation - Challenge by Objecting Municipality - Notice of
Claim
Town of Burke v. City of
Madison, Nos. 98-0108 and 98-1362 (filed 11 March 1999)
(ordered published 21 April 1999)
Owners and electors of certain properties located in the Town of
Burke filed petitions for direct annexation by the City of Madison. The
city responded with ordinances effecting the annexations. The town filed
actions for declaratory judgment seeking to invalidate the annexations.
The city filed timely responses and then moved to dismiss because the
town had not filed notices of claim against the city pursuant to Wis.
Stat. section
893.80.
The issue before the court of appeals was whether a notice of claim
is required when a town files a lawsuit pursuant to Wis. Stat. section
66.021 objecting to a city's annexation of the town's land. In a
decision authored by Judge Roggensack, the court concluded that because
the Town of Burke brought its claims pursuant to a specific statutory
scheme devised by the Legislature to effect and to resolve objections to
annexations in a timely fashion and because the policies that underlie
the notice of claims statute would not be furthered by requiring that a
notice of claim be filed prior to the town's commencing suit, the town
was excused from complying with the notice of claims statute prior to
bringing suit to contest the validity of the annexations.
Zoning - Termination of Nonconforming Uses
Village of Menomonee Falls
v. Preuss, No. 98-0384 (filed 17 March 1999) (ordered published
21 April 1999)
The Village of Menomonee Falls appealed from a judgment ordering the
defendant to remove a commercial addition to his residence, but allowing
him to continue to use the residence as such. The defendant's residence
is a nonconforming use because his neighborhood is now zoned industrial.
After he modified his use by adding a commercial garage, the village
requested that the court terminate the entire use. The trial court
refused to do so, viewing the decision as discretionary.
The court of appeals, in a decision authored by Judge Brown,
disagreed. As a matter of law, when an owner of a nonconforming use
modifies that use, the municipality is entitled to terminate the entire
non-conforming use. See generally Waukesha County v. Pewaukee Marina
Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994) (holding that
a violation of the nonconforming use by expansion or enlargement that
changes the use invalidates the legal nonconforming use as well as the
illegal change).
In this case the defendant's property was exclusively residential
prior to the addition. He changed it to a mixed commercial/residential
establishment. This was a change in the nonconforming use. The court of
appeals therefore affirmed that part of the judgment ordering the
defendant to remove the commercial addition to his property. It modified
the circuit court's judgment so as to terminate the defendant's
residential nonconforming use as well.
Notice of Claim - Complaint Based on Continuing Course of
Conduct
Probst v. Winnebago
County, No. 98-0451 (filed 17 March 1999) (ordered published 21
April 1999)
This appeal involves Wisconsin's notice of claim statute. Section
893.80(1)(a) provides that, within 120 days after the happening of
the event giving rise to the claim, written notice of the circumstances
of the claim must be served on the "governmental subdivision or agency
and on the officer, official, agent or employee." A notice of claim that
complies with this statute and a denial of the claim by the government
are prerequisites to the commencement of a circuit court action.
In this case the notice of claim filed against Winnebago County by
the plaintiffs did not allege any acts occurring within 120 days of the
notice date. The plaintiffs argued that this is not the standard and
that the notice and subsequent complaint alleged a continuing course of
conduct by the county. However, the plaintiffs cited no legal authority
for the proposition that alleging an on-going course of conduct without
identifying a specific circumstance or example of that conduct occurring
within 120 days of the notice of claim satisfies the requirements of the
statute. Nor could the court of appeals locate any such authority.
Accordingly, the court concluded that the notice of claim did not
satisfy the requirements of section 893.80.
Paternity
Personal Jurisdiction - UCCJA
Paula M.S. v. Neal
A.R., No. 98-1158 (filed 25 March 1999) (ordered published 21
April 1999)
In this paternity action, the court of appeals reversed the circuit
court's determination that it had personal jurisdiction over the alleged
father. Writing for the court, Judge Roggensack concluded "that the
UCCJA [the Uniform Child Custody Jurisdiction Act], which may confer
subject matter jurisdiction in custody disputes, does not establish, in
and of itself, a sufficient statutory basis of personal jurisdiction
over a nonresident defendant in a paternity proceeding." The court was
particularly concerned with the child support implications that stem
from a determination of paternity. On this record the court held it
lacked personal jurisdiction over the putative father. The alleged
father, a Michigan resident, lacked the sufficient contacts required by
the due process clause. His sole links to Wisconsin consisted of
attending two funerals. He did not conduct any business nor did he
contact the mother or the child. The child was conceived in Illinois and
born in Minnesota.
Open Records Law
Challenge to Release of Records - Standards for Circuit and
Appellate Court Review
Kailin v.
Rainwater, No. 98-0870 (filed 31 March 1999) (ordered published
21 April 1999)
In Woznicki v. Erickson, 202
Wis. 2d 178, 549 N.W.2d 699 (1996), the Wisconsin Supreme Court grafted
onto the open records law a procedure whereby the custodian of public
records who has decided to release those records must first notify the
target of the release decision and then allow the target a reasonable
amount of time to appeal the decision to the circuit court. Pursuant to
Woznicki, the role of the circuit court in this review process
is two-pronged. First, the court must determine if the custodian
performed the appropriate balancing test in deciding to release the
records. Second, if the custodian acted correctly, the circuit court
must then review de novo the decision of the custodian.
In this case the court of appeals, in a decision authored by Judge
Nettesheim, developed standards of review for the circuit court and
court of appeals in dealing with Woznicki-type issues. [With
regard to the first prong, case law already establishes a de novo
standard of review of the custodian's open records decision.] With
regard to the second prong of the circuit court's review, the appellate
court read Woznicki to mean that the circuit court is required
to conduct an independent review akin to a trial de novo that permits
the taking of additional evidence beyond that which was before the
records custodian. This approach will also allow the target to present
arguments to the court that the records custodian did not consider.
With regard to the standard of review to be applied by the court of
appeals, the appellate court concluded that, as to the custodian's
decision, the law is clear that appellate courts conduct their reviews
under the de novo standard. And, as to the circuit court's independent
trial de novo review under the second prong of Woznicki, review by the
court of appeals should be conducted under the usual standards
applicable to a trial conducted in the circuit court. Thus, the court of
appeals should apply the appropriate standard, depending on whether the
question at hand is one of fact, law, or discretion.
Real Property
Easements by Necessity - Ingress and Egress - Utilities
Richards v. Land Star Group
Inc., No. 98-1983 (filed 23 Feb. 1999) (ordered published 31
March 1999)
In 1946 Peterson purchased property in Pierce County, which the court
referred to as parcels 1 and 2. In 1947 Peterson forfeited parcel 1 to
the county as a result of failing to pay real estate taxes. At a public
auction held that year, the county purchased this parcel and later
issued itself a tax deed for the property. In 1963 the county conveyed
parcel 1 to plaintiff Richards by quitclaim deed which stated: the
"grantor herein having no ingress or egress privileges to said
property."
Parcel 1 is approximately 34 acres in size, has no access to a public
road and, as a whole, is landlocked. No written easement exists for
access to parcel 1 from any public road. In this case, among other
things, the plaintiff requested an easement over parcel 2 to access his
property. The trial court granted the plaintiff an easement of necessity
for "ingress and egress" but denied him the right to install utilities
along the easement.
In a decision authored by Chief Judge Cane, the court of appeals
began its analysis by articulating certain definitions. An easement,
said the court, is an interest in land in possession of another. It
creates two distinct property interests: the dominant estate and the
servient estate. The dominant estate enjoys the privileges an easement
grants, while the servient estate permits the dominant estate to
exercise those privileges. To establish an easement of necessity, the
party seeking the easement has the burden to prove: 1) common ownership
or unity of title of the two parcels; and 2) that the property is
"landlocked," meaning that a piece of land is surrounded by land
belonging to other persons so that it cannot be reached by a public
roadway.
In this case the trial court granted to the plaintiff an easement of
necessity for "ingress and egress" to the property but denied him the
right to install utilities along the easement. With regard to the
latter, the court of appeals reversed. A way of necessity is coextensive
with reasonable needs, present and future, of the dominant estate and
varies with the necessity, insofar as may be consistent with the full
reasonable enjoyment of the servient estate. In current times, the
reasonable use and enjoyment of property, at a minimum, requires
utilities, as long as it does not overburden the servient estate.
Accordingly, the appellate court reversed that portion of the judgment
denying utility installation and remanded to the circuit court for its
determination whether utility installation would overburden the servient
estate and, if not, to determine a reasonable method for the
installation of utilities.
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.
Wisconsin Lawyer
