Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
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.
Alternative Dispute Resolution
Arbitration Proceedings - Issue Preclusion
Dane County v. Dane County
Union Local 65, No. 96-0359
(filed 17 April 1997) (ordered published 27 May 1997)
Two separate arbitration proceedings were conducted in connection
with a county highway laborer who was placed on disability leave and
then subsequently terminated. The first proceeding concerned a grievance
arising out of his placement on disability leave and the second,
conducted by a different arbitrator, concerned a grievance filed after
termination and dealing with whether that termination occurred without
just cause. Among the issues before the court of appeals was one of
first impression in Wisconsin: whether one arbitrator's decision can
have preclusive effect on the ability of a second arbitrator to make
certain decisions.
To resolve this issue, the court had to consider the policies that
underlie arbitration. It is an informal process, where the parties have
bargained to have a decisionmaker who is not restricted by the
formalistic rules that govern courtroom proceedings. Arbitration is
designed to bring an end to controversy. Employees, unions and employers
all rely upon the finality of arbitration decisions in ordering their
affairs. If identical claims, or identical issues which the arbitrator
necessarily decides, can become the subject of repetitive arbitrations
between the same parties simply by resubmitting the controversy to a new
arbitrator, a "final and binding" arbitration will never occur. On the
other hand, preclusion doctrines may be less suited to the informality
of the arbitration process.
Courts in other jurisdictions that have considered whether one
arbitrator's decision can have a preclusive effect on the ability of a
second arbitrator to make certain decisions have concluded that in
certain circumstances the preclusion doctrines may be applied.
In this case the appellate court concluded that the policies
underlying arbitration, its consensual, final and binding nature, weigh
in favor of allowing the application of preclusion doctrines to a
limited extent. Where, at a minimum, the claim or the issue necessarily
decided in the first arbitration is the same as in the second
arbitration, the parties are the same, the parties have had full
opportunity to argue their respective positions to the first arbitrator,
and the parties have not agreed to resubmit the claim or the issue
necessarily decided in the first arbitration to a second arbitration,
then the preclusion doctrines may be applied by an arbitrator or by a
reviewing court.
Civil Procedure
Customized Jury Instructions - Propriety of Advising Jury Regarding
Settling Defendants - Reading Caption of Case to Jury
Anderson v. Alfa-Laval
Agri. Inc., No. 96-0577 (filed 18 Feb. 1997) (ordered published
29 April 1997)
The plaintiff's child was seriously injured when he consumed an
extremely caustic chemical used by and then leaked from a milk line
cleaning system used to flush and sanitize pipes that transport milk
from milking barns to storage tanks. Suit was brought against numerous
defendants. Before trial the plaintiff settled with each of the
defendants except Alfa-Laval (the manufacturer of the cleaning system),
although the document reflecting that settlement had not been signed by
all interested parties when the trial against Alfa-Laval started.
At trial plaintiff's counsel asked the court to modify the case
caption to delete the settling defendants and moved in limine for an
order eliminating reference to any such settlements. The court denied
the motion, advised the jury of the full caption containing the names of
each of the defendants, and informed the jury that a "negotiated
resolution" had been reached with the other parties in the case.
Reference to the negotiated settlement also was made by Alfa-Laval's
counsel. The jury concluded that the plaintiff herself was 50 percent
causally negligent, that the manufacturer of the chemical solution was
35 percent causally negligent, and that the manufacturer of the pump
used to move the caustic chemical was 15 percent causally negligent.
None of the other defendants was found causally negligent, including
Alfa-Laval (the only defendant against whom the case was tried before
the jury).
On appeal the plaintiff argued that the trial court erred by reading
the entire case caption which included the defendants who were not
present at trial because they had entered into a Pierringer
settlement (see Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d
106 (1963)) and that the court further erred by advising the jury of the
existence of a settlement between the plaintiff and the other defendants
named in the caption. In a decision authored by Judge Myse, the court of
appeals concluded that the judge did not err by reading the entire case
caption to the jury. The caption to be read is the caption as it exists
on the day of trial. The court can modify the caption to reflect
settlements that occur before trial. In this case the judge had
discretion to accept representations of a settlement and amend the
caption accordingly or to require proper documentation before doing so.
Here the court chose to require proper documentation and, because that
documentation was not in order when the trial started, the judge was
required to read the entire caption to the jury.
The court of appeals further concluded that the circuit judge erred
by advising the jury as to the existence of a negotiated resolution
between the plaintiff and the various defendants. In so holding it found
that the decision in Hareng v. Blanke, 90 Wis. 2d 158, 279
N.W.2d 437 (1979), did not apply to this case. Hareng
recognizes that settlement negotiations are not privileged when
introduced for another purpose such as demonstrating bias or prejudice
of a witness. There was no contention that the settlement in this case
among the other defendants changed the testimony of any witness or that
the posture of any of the settling defendants was significantly
different as a result of the settlement. The court went on to conclude
that, within the factual context of this case, the trial judge's error
in advising the jury about the settlements was harmless.
Finally, the court considered the plaintiff's contention that the
circuit judge erred by refusing to submit to the jury a series of
proposed instructions specifically tailored to address the various
theories of liability asserted under the specific facts of this case.
The appellate court concluded that the better practice would have been
for the trial court to customize at least some of the instructions given
to the jury rather than to rely entirely on standard jury instructions
published in Wisconsin JI-Civil. The customized jury instructions
requested by counsel would have better focused the issues in this case
for the jury. Nonetheless, the court held that the pattern instructions
given by the judge were adequate in that they were accurate and
sufficiently complete to advise the jury as to the proper legal
principles it was to apply.
Commercial Law
Consumer Transactions - Disability Insurance - Defaults
Bank One Milwaukee N.A. v.
Harris, No. 96-0903 (filed 11 March 1997) (ordered published 29
April 1997)
Harris bought a car from an auto dealer pursuant to a Wisconsin
consumer installment agreement. The agreement, purchased by Bank One,
required Harris to make monthly payments of $297 due on the 16th of each
month. In conjunction with and on the same contract financing her car
loan, Harris also purchased credit disability insurance to cover her
monthly payments in the event she became disabled. This all took place
in October 1992.
On July 2, 1994, Harris became disabled as a result of injuries she
suffered in a car accident. She did not make her July payment. Until the
time she became disabled, Harris had been current on her monthly
payments except for a $96 past due charge.
Harris promptly informed her credit disability insurer of her
accident and disability and, as instructed by the insurer, she also
informed Bank One that she would be receiving forms requiring signatures
by her and her doctor. Harris received the forms, obtained the
signatures and returned the forms to the insurer as instructed. On July
28, however, Bank One prepared and sent a notice of right to cure
default to what it believed to be Harris's last known address.
The disability insurer paid $267 of Harris's July payment, an amount
the insurer deemed proportionate to the period of disability. That
payment, however, was not received by Bank One until Aug. 16, 1994, one
month after the deadline for the July payment. On Sept. 9 Bank One filed
a replevin action against Harris. It claimed that, pursuant to section
425.103 of the Wisconsin Statutes, Harris was more than one month's
payment behind and therefore was in "default." It was undisputed in the
case that, if the insurer's payment for July had been credited, Harris
would not have been in default.
The issue before the court of appeals was whether Bank One could
include the unpaid July amount in computing Harris's unpaid balance for
the purpose of establishing default. In a decision authored by Judge
Schudson, the court concluded that under the circumstances of this case
it would be an unconscionable practice to include an unpaid monthly
amount covered by disability insurance in computing the unpaid balance
for purposes of establishing default. Said the court, where a consumer
has purchased disability insurance in conjunction with an installment
agreement and has promptly informed the insurer of a valid claim, the
creditor may not include the amount to be paid by the insurer in the
computation of the debtor's unpaid balance to establish default.
Criminal Procedure
Intensive Sanctions Program - Escape -
Double Jeopardy
State v. Grosse,
No. 96-2027-CR (filed 10 April 1997) (ordered published 27 May l997)
In 1994 the defendant received a three-year sentence to the Division
of Intensive Sanctions (DIS) for his conviction of burglary. He
eventually was placed at a halfway house in Beloit, Wis.
On Oct. 26, 1994, the defendant left the halfway house to visit his
mother in Arizona. Ten days later he was apprehended. He remained in
jail in Arizona while contesting extradition to Wisconsin. When he was
returned to Wisconsin, DIS sanctioned him with a six-month confinement
at Racine Correctional Institution (a Type I prison) for the escape,
crediting him with the three months he served in Arizona. On May 2,
1995, he was released to a halfway house.
On Aug. 24, 1995, the state charged the defendant with escape for
leaving the halfway house on Oct. 26, 1994. The defendant pleaded guilty
and was sentenced to three years in prison, consecutive to the DIS
sentence. He moved for postconviction relief, arguing that the escape
conviction was barred by the Double Jeopardy Clause. The circuit court
denied the motion.
The court of appeals, in a decision authored by Judge Dykman,
affirmed the circuit court. It concluded that the DIS action of
sanctioning the defendant with a period of confinement at the Racine
Correctional Institution was not punitive for double jeopardy purposes
and, therefore, the defendant was not subjected to double jeopardy when
he subsequently was convicted of escape. The court rejected the
defendant's argument that his six-month confinement sanction was
primarily intended as punishment. It found that: 1) considering the
remedial purposes of DIS sanctions set forth in the Wisconsin Statutes
and Administrative Code, the defendant did not overcome his burden to
establish beyond a reasonable doubt the unconstitutionality of his DIS
confinement and subsequent conviction for escape; 2) a sanction need not
be solely remedial in purpose to fall outside the ambit of the Double
Jeopardy Clause; and 3) any punishment the defendant received as part of
his DIS sanction was attributable to the conviction for which he was
originally sentenced to DIS - not to the escape.
Modification of Sentence - New Factors -
Defendant's Health Condition
State v. Johnson,
No. 96-1532-CR (filed 15 April 1997) (ordered published 27 May 1997)
The defendant was convicted of armed robbery and sentenced to 15
years in prison. Among the issues on appeal was whether he is entitled
to sentence modification because he allegedly is not receiving adequate
medical treatment in prison. The trial court denied him relief in this
regard.
The defendant wants a liver transplant. His treating physician
suggested that he be considered for such a procedure, but the medical
director of the Bureau of Health Services of the Department of
Corrections concluded that he is "no candidate for liver transplant."
The record does not reveal the medical director's reasons.
In denying the defendant relief without a hearing, the trial judge
concluded that he had not raised the kind of "new factor" that is
required for modification of his original sentence, because the
defendant's medical condition was known both to him and the trial judge
prior to the original sentence imposition.
The court of appeals, in a decision authored by Judge Fine, affirmed.
Said the court, the defendant's complaint is medical - a difference of
opinion between physicians. Resentencing or modification of the sentence
already imposed is not the mechanism by which these medical differences
can be resolved. The failure of prison authorities to further process
the defendant for a liver transplant could not and, as explained by the
sentencing judge in his denial of postconviction relief, did not
frustrate the judge's original intent in imposing sentence. The
defendant may pursue other remedies if he believes that he is unlawfully
being denied viable and appropriate treatment in prison. However, he has
not alleged the existence of a "new factor" as that term of art has been
construed in sentence modification cases.
Discovery Interviews - Character for Truthfulness - Doctrine of
Completeness
State v. Eugenio,
No. 96-1394-CR (filed 23 April 1997) (ordered published 27 May 1997)
The court of appeals, in an opinion written by Judge Brown, affirmed
the defendant's conviction for sexually assaulting a six-year-old girl.
The defendant raised three claims.
First, he argued that the prosecutor had a duty to encourage the
victim to make herself available for an interview with the defense
investigator, citing Standard 3.1(c) of the ABA's Standards Relating to
the Prosecution Function (1971) and the case law adopting it. Judge
Brown explained, however, that the comments accompanying Standard 3.1(c)
are not authority because the supreme court did not adopt them. In this
case the prosecutor remained neutral during the meeting between the
victim and the investigator; the prosecution had no duty to encourage
the victim to participate.
Second, the defense claimed error when the trial court admitted
evidence of the victim's truthful character. Under section 906.08 of the
Wisconsin Statutes, evidence of a witness's (positive) character for
truthfulness is not admissible unless this character trait has been
attacked. Not all forms of impeachment open the door to this form of
rehabilitation. The court held that the trial judge acted within his
discretion when he ruled that the victim's character had been attacked
during the defendant's opening statement. Case law gives trial judges
broad discretion in gauging the "tenor" of an impeaching attack as an
assault on the witness's character or as a more generalized attack on
credibility. The opening statement strongly suggested that the witness
had "fabricated" the story, not that she was simply mistaken or
confused.
Third, the trial judge properly applied the "doctrine of
completeness" under section 901.07 by admitting the remainder of the
victim's statements after she had been cross-examined about several
inconsistencies. Case law sagely warns against the use of the doctrine
as a "Trojan Horse" whereby one inconsistent statement opens the door to
the admission of remaining out-of-court statements. The record here,
however, demonstrated the fairness of allowing the remaining statements
where the defense alleged a "systematic pattern of lying about the
events."
Jury Unanimity - No Contest Plea
State v. Molitor,
No. 96-2673-CR (filed 24 April 1997) (ordered published 27 May 1997)
The defendant was charged with sexually assaulting a 15-year-old girl
contrary to section 948.025(1) of the Wisconsin Statutes, which imposes
a more severe penalty where the defendant commits three or more
violations with the same child. He pleaded no contest and was convicted.
In postconviction motions, he raised several challenges.
The court of appeals, in an opinion written by Judge Deininger,
affirmed the defendant's conviction. First, the court upheld the
constitutionality of section 948.025(2), which provides that "the jury
must unanimously agree that at least 3 violations occurred within the
time period ... but need not agree on which acts constitute the
requisite number." The statute did not infringe upon the defendant's
right to a unanimous verdict.
Second, the court also found that the defendant's no contest plea was
properly accepted. Although the record at the plea supported the
defendant's claim that he was not informed of the elements of section
948.025(1) and defense counsel did not specifically recall reviewing the
elements with him, evidence offered at the postconviction hearing showed
that the defendant had, in fact, knowledge of these elements.
Family Law
Divorce Following Remarriage to Same Party - Impact of Maintenance
Order in First Divorce Action
Wolski v. Wolski,
No. 96-0136 (filed 15 April 1997) (ordered published 27 May 1997)
Chris and Arlene Wolski were first married in 1972; they had two
children. They were divorced in 1992 and, at that time, the trial court
accepted a marital settlement agreement between the parties that divided
their property and included custody, placement and child support
provisions. It also required Chris to pay limited maintenance of $200
per month for 54 months to Arlene.
Eleven months later Chris and Arlene remarried, ending Chris's
obligations to pay child support and maintenance. Three years later
Arlene filed a new petition for divorce. At the second divorce trial,
the parties reached an agreement on all issues except maintenance. The
sole contested issue was whether maintenance should be awarded to Arlene
and, if so, how much should be paid and how long it should last. Chris
took the position that the trial court should view this marriage as
being less than three years in length when deciding maintenance or, if
awarding maintenance, the court should be required to consider the
limited maintenance provisions in the first agreement. Arlene urged the
trial court to look at the combined length of their marriages when
setting maintenance.
The trial court found that it could consider the combined length of
the two marriages and ordered $300 per month indefinite maintenance to
Arlene. In so finding, the judge disregarded the length and amount of
maintenance ordered in the first divorce proceeding.
Chris appealed and the court of appeals, in a decision authored by
Judge Curly, affirmed. It began its analysis by noting that, once the
parties remarried, the earlier judgment was revoked and any orders
emanating out of it were rescinded. See Wis. Stat. §
767.38. The court then determined that authority for combining the years
of marriage to determine maintenance may be found in the factors listed
for consideration in section 767.26(6), which include "the feasibility
that the party seeking maintenance can become self-supporting at the
standard of living reasonably comparable to that enjoyed during the
marriage, and, if so, the length of time necessary to achieve this
goal."
Given this statutory directive, the court concluded that a reasoned
approach to determining the standard of living enjoyed during the
marriage of the parties in this case requires the trial judge to look
beyond the duration of the second marriage, because whatever standard of
living was enjoyed by Arlene and Chris was established during the
22-plus years they were married to each other - not just the last two
years. When the parties have been married to one another more than once,
a trial court, in its exercise of discretion, can properly look at the
total number of years of marriage when considering maintenance for one
of the parties. Accordingly, the trial judge did not erroneously
exercise his discretion in using the combined years of marriage when
setting maintenance.
Chris alternatively argued that if the trial court can look at the
entire length of the parties' marital relationship, then the trial court
must be required to consider the terms of the first marital settlement
agreement when setting maintenance. The court of appeals concluded that,
although the trial court was aware of the first settlement's provisions
regarding maintenance, it was not bound by them and in a proper exercise
of discretion looked to the current conditions of the parties in making
its maintenance determination. The court further noted, however, that
the trial judge may consider the terms of the first marital settlement
agreement when appropriate.
Divorce - Third-party Complaints
Zabel v. Zabel,
No. 96-3092 (filed 22 April 1997) (ordered published 27 May 1997)
Ron and Leslie Zabel filed a joint petition for divorce. Thereafter,
Leslie filed a third-party complaint naming Vivian Zabel, Ron's mother,
as a third-party defendant. Leslie alleged that certain real property
titled in Vivian's name was marital property and therefore subject to
division as part of the divorce. Leslie alleged that Ron used marital
assets to purchase the property, to pay for the materials to build and
maintain a home on the property and to pay the taxes on the property.
Leslie alleged that the property was titled in Vivian's name to avoid
division in the event of a divorce between Ron and Leslie.
Vivian moved to dismiss the third-party complaint joining her as a
defendant in her son's divorce action. She argued that Chapter 767 of
the Wisconsin Statutes relating to actions affecting the family does not
permit third-party actions. The circuit court denied the motion and the
court of appeals, in a decision authored by Judge LaRocque,
affirmed.
Vivian argued that dismissal of the third-party complaint was
required because the only proper remedy for transfer of marital assets
to a third party is an unequal property division under sections 767.275
and 767.255 of the Wisconsin Statutes or an independent action. The
court disagreed. It noted that squandering the marriage assets or
intentional or neglectful destruction of marital property may be
considered by a court in its decision to divide marital property
pursuant to section 767.255. But it concluded that this is not the only
remedy. Wisconsin courts have recognized consistently that a court in a
divorce proceeding has additional powers to hear equitable claims
against third persons that affect the rights of the parties to the
divorce. The court concluded that joinder of Vivian as a defendant would
be proper under section 803.03(1)(a), joinder of persons needed for just
and complete adjudication, because in Vivian's absence a complete
adjudication of the parties' marital property rights cannot be
accomplished. A majority of states permit joinder of third persons when
the family court cannot fulfill its duty to distribute marital property
equitably if prevented from determining the extent of that property by
the absence of third parties claiming an interest in it.
Vivian further argued that use of a family court action would deprive
her of her right to a jury trial. The court of appeals disagreed. The
right to a jury trial under the state constitution does not extend to
equity cases in which the party has never been entitled to a jury trial
as a matter of right. There is no right to a jury trial in divorce
actions. Wisconsin courts continue to recognize the difference between
legal and equitable remedies in determining whether there is a
constitutional right to a jury trial. When equitable relief is
requested, there is no constitutional right to a jury.
Motor Vehicle Law
OWI - Refusal to Submit to Field Sobriety Tests - Admissibility of
Refusal
State v. Mallick,
No. 96-3048-CR (filed 24 April 1997) (ordered published 27 May 1997)
The defendant was convicted of a criminal charge of driving while
under the influence of intoxicants. On appeal he raised but a single
issue: whether the trial court erred when it admitted evidence that he
refused to perform field sobriety tests at the arresting officer's
request. The court of appeals, in a decision authored by Chief Judge
Eich, affirmed the conviction.
The defendant's contention was that the field sobriety tests are the
equivalent of a "testimonial act," the evidence of which is admissible
under the self-incrimination provisions of Article I, section 8 of the
Wisconsin Constitution. The court of appeals concluded that neither the
Fifth Amendment to the U.S. Constitution nor the cited provision of the
Wisconsin Constitution bars admission of the defendant's refusal to
submit to field sobriety tests at his trial.
In reaching this conclusion the court was influenced by the reasoning
of the Virginia Court of Appeals when it considered the same issue in
Farmer v. Commonwealth of Virginia, 404 S.E.2d 371 (Va. Ct.
App. 1991). Said the Virginia court in Farmer: "The privilege
against self-incrimination protects an accused only from being compelled
to testify against himself, or otherwise provide the State with evidence
of a testimonial or communicative nature. In order to be testimonial, an
accused's communication must itself, explicitly or implicitly, relate a
factual assertion or disclose information. In Schmerber v.
California, 384 U.S. 757, 764 (1966), the Supreme Court stated that
the Fifth Amendment offers no protection against compulsion to submit to
fingerprinting, photographing or measurements, to write or speak for
identification, to appear in court, to stand, to assume a stance, to
walk or to make a particular gesture. The fact of the refusal to perform
tests that do not themselves constitute communicative or testimonial
evidence is equally noncommunicative and nontestimonial in nature."
OWI - Implied Consent - Inadequate Warnings - Admissibility of
Refusal at Trial
State v.
Schirmang, Nos. 96-2008-CR and 96-2630-CR (filed 17 April 1997)
(ordered published 27 May 1997)
The defendant was arrested for driving while under the influence of
an intoxicant (OWI). He contended that the information he was given
prior to his refusing to take a chemical intoxication test was
inadequate under the implied consent law. (See Wis. Stat.
§ 343.305). As part of the implied consent admonition the officer
read from an outdated form indicating that if the defendant had two or
more prior alcohol-related convictions, suspensions or revocations
"within a five-year period," a motor vehicle owned by him may be
equipped with an ignition interlock device, immobilized or seized and
forfeited. This information was incorrect because, prior to the
defendant's arrest, the statute was changed to provide that OWI
penalties include equipping the operator's car with an ignition
interlock device, immobilizing or seizing it, if the driver has had two
or more prior OWI convictions within the last 10 years. At the
defendant's refusal hearing it was stipulated that he had two prior OWI
convictions, one within the past five years and the other within the
past l0 years. Based on undisputed evidence, the trial court found that
the defendant had not received proper warnings under the implied consent
law but concluded that this was a "technical violation" and therefore
found that the refusal was unlawful. It revoked the defendant's
operating privilege for three years.
Following the refusal hearing, a trial was held on the OWI charge.
The state introduced evidence of the defendant's refusal, over his
objection. The jury returned a guilty verdict.
The court of appeals, in a decision authored by Judge Roggensack,
vacated the implied consent revocation but affirmed the OWI conviction.
It agreed with the defendant that there was not substantial compliance
in his case with the implied consent law when, as here, the penalties
which actually would affect the driver, given his driving record, were
misstated. Thus, the order revoking his license for an implied consent
violation was vacated.
With respect to the OWI trial, the court of appeals concluded that it
was a violation of the defendant's due process rights to admit the
evidence of his refusal to take a chemical test when there was not
substantial compliance with the implied consent law. However, given the
overwhelming evidence that was admitted in support of the OWI offense,
the court concluded that there was not a reasonable possibility that the
admission of the refusal to take a chemical test contributed to the
conviction. The error of admitting the refusal evidence was harmless
and, therefore, the OWI conviction was confirmed.
Open Records Law
Excessive and Burdensome Requests -
Denial of Access
Schopper v.
Gehring, No. 96-2782 (filed 15 April 1997) (ordered published
27 May 1997)
The plaintiff appealed an order dismissing his complaint filed under
the open records law seeking to obtain a three-hour interval of 911
calls recorded by the local sheriff's department. In a decision authored
by Judge Myse, the court of appeals affirmed.
The plaintiff was arrested for a traffic violation on Nov. 29, 1995.
He requested a copy of the 911 calls received by the local sheriff's
department over a three-hour period on the night of his arrest. Because
the 911 calls were recorded on 60 different channels, the sheriff
responded that the plaintiff's request was too broad and that he would
have to narrow or clarify the scope of his request before it could be
acted upon. The sheriff's letter requested that the plaintiff identify
specific times of the transmissions he was seeking or that he identify a
specific incident to which the transmissions would relate. Despite the
sheriff's letter that the plaintiff limit or clarify his request, no
modification of the initially filed request was ever made. When the
sheriff failed to provide the requested information, the plaintiff filed
a civil suit seeking an order compelling the release of the information
under the open records law.
The court of appeals began its analysis of the circuit court's
dismissal of the plaintiff's lawsuit by noting that the parties did not
raise a question as to whether the 911 tapes recorded by the sheriff's
department were subject to an open records request. Because the issue
was not raised, the court did not address it.
Turning to the evidence, the court found that it was undisputed that
the 911 tapes in the county in question were made from 60 channels of
transmissions. It also was undisputed that the plaintiff requested a log
of each transmission detailing the time and the order in which the
transmissions were received and three hours of 911 transmissions
received during specified hours on the date of the defendant's arrest.
This request would have required a transcription of 180 hours of tape,
preparation of the requested log and the copying of 180 hours of
tape.
The appellate court agreed that to require a custodian of a record to
copy 180 hours of tape and create a log to identify the time and order
in which the transmissions were received represents a burden far beyond
that which may reasonably be requested of a custodian of a public record
under the open records law. "A request for a record without a reasonable
limitation as to subject matter or length of time represented by the
record does not constitute a sufficient request." See Wis.
Stat. § 19.35(1)(h).
Said the court, while this state favors the opening of public records to
public scrutiny, we may not in furtherance of this policy create a
system that would so burden the records custodian that the normal
functioning of the office would be severely impaired. Here, the
plaintiff's request was far in excess of that which was necessary for
his announced purpose. Because he could reasonably have limited his
request but failed to do so, and because the request placed an
unreasonable burden upon the custodian in preparing the documents
necessary to fulfill the request, the court of appeals concluded that
the circuit judge did not err in finding the request to be so overbroad
as to be inadequate under the open records law. Accordingly, the trial
judge properly dismissed the complaint.
Pupil Records - Statutory Exemption from
Public Access
State ex rel. Blum v.
Johnson Creek Board of Education, No. 96-0758 (filed 6 March
1997) (ordered published 29 April 1997)
The petitioner made an open records request for various interim
grades that had been given to herself and another student with whom she
had been in academic competition for an award. Although the name of the
other student was not revealed in the open records request, there was no
question but that the identity of that other student was known to the
petitioner and could have been discovered by anyone. The Board of
Education denied the request, citing administrative staff burdens in
tabulating the requested material as the reason. The petitioner then
filed a writ of mandamus. The circuit court issued a memorandum decision
concluding that the requested items were not public records because they
were not kept by an "authority," and further, even if they were public
records, they were exempt from disclosure by the confidentiality
provisions of section 118.125 of the Wisconsin Statutes.
In a decision authored by Judge Deininger, the court of appeals
affirmed. It disagreed with the circuit court that the interim grades
recorded by teachers are not kept by an "authority" under the open
records statute. The petitioner argued that since an "authority," such
as the Board, must act through its officers and employees, documents
that otherwise fit the definition of "records" are "kept" by an
authority whenever they are in the possession of an officer or employee
who falls under the supervision of the "authority." The appellate court
agreed. However, it also concluded that the requested grades were pupil
records exempt from disclosure under the open records law. Section
19.36(1) of the open records statute provides that "any record which is
specifically exempted from disclosure by state or federal law or
authorized to be exempted from disclosure by state law is exempt from
disclosure" under the open records statute. The requested interim grades
were pupil records exempted from disclosure under section 19.36(1) by
the clear statutory exception for pupil records set forth in section
118.125 of the Wisconsin Statutes.
The petitioner argued that since the Board failed to specify any
cognizable grounds when it denied access to the information requested,
the writ of mandamus should have been issued even if the denial
was justifiable. The court of appeals disagreed. It recognized that in
Beckon v. Emery, 36 Wis. 2d 510, 153 N.W.2d 501 (1967), the
court held that an authority's failure to sufficiently specify reasons
for withholding information automatically mandates that access be
ordered. This case was held to be distinguishable from the present
litigation because it is applicable only when the denial is justified by
public policy considerations that outweigh the public policy favoring
access to the records. The rule does not, however, compel production of
records whose confidentiality is expressly guaranteed by statute, such
as the pupil records involved in this case. When such a specific
statutory exemption exists, there is no need for a custodian to weigh
competing public interests. Said the court, the Legislature has already
done so. Accordingly, since the Board's denial of access was justified
because the information sought is exempted by section 118.125, the
Board's failure to specifically cite the statutory exemption in its
denial did not preclude the court of appeals, or the circuit court, from
determining whether the Board was authorized to deny the request.
Judge Dykman filed a dissenting opinion.
Paternity
Past Child Support - "Awareness" of Paternity
M.L. v. L.D., No.
94-3050 (filed 29 April 1997) (ordered published 27 May 1997)
Brad brought a paternity action against his putative father, who
admitted paternity. The parties stipulated that the father had no
knowledge of Brad's existence for the first 15 years of his life. The
trial judge ordered the father to pay $500 monthly for future support,
subject to modification should "Brad's academic performance and attitude
warrant." The judge refused to grant past support based on "fairness"
and a constitutional bar against the ex post facto application of
section 767.51(4) of the Wisconsin Statutes.
The court of appeals, in an opinion written by Judge Schudson,
affirmed in part and reversed in part. Section 767.51(4) makes fathers
liable for past child support regardless of whether they know about the
child's existence. Nor did the statute offend the constitutional bar
against ex post facto laws because it was not "penal" in nature. The
trial judge also erred in setting past child support by considering an
impermissible factor - the father's lack of knowledge of the son's
existence. Judge Schudson explained: "If [the father's] lack of
knowledge and resulting inability to visit and provide for Brad could
form a basis for deviation, the reach of sec. 767.51(4), Stats., to the
entire 'period after the birth of the child' could be limited in a
manner that would be inconsistent with sec. 767.51(4)."
The court also concluded that the trial judge erred in making the
following determinations: 1) that marital property law principles apply
to the determination of base income when setting child support (the
judge deducted one-half of the father's adjusted gross income); 2) that
depreciation values should not be included in determining the father's
income; and 3) "in determining child support with the expectation that
it could modify the order after Brad reached adulthood to account for
his college costs."
Property
Conveyances - Breach of Warranty of Title -
Measure of Damages
Schorsch v.
Blader, No. 96-1220 (filed 6 March 1997) (ordered published 29
April 1997)
In 1985 the plaintiffs purchased a schoolhouse and 1.8 acres of land
from a school district. The school district represented to the
plaintiffs that it held clear title to the real estate and signed a
warranty deed transferring the property to the plaintiffs. The
plaintiffs enjoyed full use of the real estate for many years.
In 1993 the plaintiffs agreed to sell the property to a third party.
However, the purchaser refused to close when it discovered that three
persons (the Bladers) held title to 0.8 of an acre of the property. The
Blader portion of the land included the real estate's only access to a
state highway. The plaintiffs brought an action against the Bladers for
adverse possession of that 0.8 of an acre and against the school
district for misrepresentation and breach of warranty. On motions for
summary judgment, the plaintiffs lost on the adverse possession claim
and prevailed on the breach of warranty claim.
A trial was held on damages. The plaintiffs argued that section
706.10(5) of the Wisconsin Statutes changed the former common law
measure of damages for breach of title warranty into contract damages.
Therefore, lost profits and consequential damages were appropriate. The
circuit court agreed.
Before the court of appeals the issue was whether section 706.10
supersedes the common law measure of damages for breach of title
warranty. At common law damages for breach of warranty of seisin are the
consideration paid for the land plus interest thereon from the date of
payment. When title fails as to only part of the land conveyed, the
grantee may recover such a fractional part of the whole consideration
paid as the value at the time of the purchase of the piece to which the
title fails, relative to the whole purchase price, plus interest.
The plaintiffs argued that the common law measure of damages for a
breach of warranty of seisin is irrelevant, because it has been
superseded by section 706.10(5), which they asserted requires the use of
the common law of damages for breach of contract. In a decision authored
by Judge Roggensack, the court of appeals disagreed. The appellate court
concluded that the common law measure of damages for breach of warranty
of title was not changed by the statute cited above. Accordingly, the
plaintiffs were entitled to recover the portion of the purchase price
which they proved to be attributable to the 0.8 of an acre of land to
which title failed, plus statutory interest on that amount from the date
of purchase. This recovery includes the intrinsic value of the 0.8 of an
acre, as well as an extrinsic value the trial court finds it provided to
the parcel on which good title was conveyed, on the date of
purchase.
Torts
Medical Malpractice - Negligent Infliction of Emotional Distress -
Adult Children
Ziulkowski v.
Nierengarten, No. 95-1708 (filed 8 April 1997) (ordered
published 27 May 1997)
Two adult children brought a claim for negligent infliction of
emotional distress against a doctor who, they alleged, caused their
mother's death as a result of malpractice. The circuit court dismissed
the claim.
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. The court held that nothing in Bowen v. Lumbermens Mutual
Cas. Co., 183 Wis. 2d 627 (1994), which involved a mother who
witnessed her son's fatal injury, suggested that such claims extended to
medical malpractice actions. Moreover, the court was satisfied that the
"statutory framework" of Chapter 655 of the Wisconsin Statutes governing
medical malpractice, excluded such claims on behalf of adult
children.
Survival Claims - Statute of Limitations
Lord v. Hubbell
Inc., No. 96-1031 (filed 10 April 1997) (ordered published 27
May 1997)
Peter Lord died from an electrical shock he received from equipment
manufactured by the defendant. Lord's estate brought a claim for
personal injuries and his two children brought a wrongful death claim.
The circuit court dismissed both claims because of improper service but
without prejudice to refile the claims. The defendants appealed on the
ground that the estate's survival claim was barred by the statute of
limitations and therefore should have been dismissed with prejudice.
The court of appeals, in an opinion written by Judge Vergeront,
reversed. Although the opinion includes several other issues, the
primary contention concerned the statute of limitations. First, the
court applied well-established law in concluding that the defendant was
not equitably estopped from raising the statute of limitations defense.
Second, the court held that the statute of limitations governing the
estate's survival claim, section 893.18(2) of the Wisconsin Statutes,
was not tolled because the beneficiaries were the two minor children.
Although there was no case on point, the court's discussion turned on
Korth v. American Family Ins. Co., 115 Wis. 2d 326 (1983).
Public policy favored applying the three-year statute of limitations to
the estate's survival claim. For example, tolling the statute would not
necessarily result in a single "piece" of litigation, nor was it
compelled by the minors' interests. In the end, the plaintiffs'
arguments for tolling were based on "the particular configuration of the
estate's beneficiaries and the wrongful death claimants in this case,"
which did not provide a "reasoned and predictable basis for interpreting
the same statutes when that configuration varies."
Wisconsin Lawyer