Vol. 73, No. 8, August
2000
Court of Appeals Digest
by Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
Note: Each case summarized in the Court of Appeals
Digest includes its new public domain citation.
| Civil Procedure | Criminal Law ||
Criminal
Procedure | Property | Torts |
Unemployment Compensation |
Civil Procedure
Appeals of Money Judgments - Stays Pending Appeal
Scullion v. Wisconsin Power
and Light Company, 2000 WI App 120 (filed 18 May 2000) (ordered
published 28 June 2000)
This case concerns money judgments and the issue of whether one
appealing a money judgment has the right to a stay upon filing an
undertaking approved by the court. Applying Wis. Stat. section
808.07 (Relief Pending Appeal), the court of appeals concluded that
the Wisconsin Legislature intended to commit to the circuit court's
discretion whether to order a stay, even if the appellant is willing and
able to file an undertaking fully protecting the respondent. However,
the court also concluded that an appellant's willingness and ability to
file such an undertaking, or to otherwise provide proof that the
respondent is fully protected if the appeal is unsuccessful, is an
important factor for the court to consider in deciding whether to grant
a stay.
In a decision authored by Judge Vergeront, the appellate court
adopted the following standard for the circuit courts to apply in
considering a motion to stay a money judgment pending appeal:
First, the court must consider the issues the appellant is appealing
and the likelihood of success on those issues.
Second, the circuit court must consider the need to ensure the
collectibility of the judgment and the accumulated interest if the
appellant does not succeed on appeal. Consideration of this second
factor addresses the appellant's ability to file an undertaking or
otherwise provide security that the court determines is sufficient, or
to satisfy the court that, even without an undertaking or security,
there is no risk the appellant will not be able to pay the full judgment
plus accumulated interest and costs.
Third, the court must consider the interests of the appellant in
securing the fruits of the appeal if it is ultimately successful. The
inquiry here is whether the appellant, if ultimately successful, will be
able to recover the money paid in execution of the judgment and, if so,
the time and effort involved in such recovery. The appellant need not
show that the inability to recover such money as a successful appellant
will cause it irreparable harm; rather, the underlying principle here is
that the right to appeal a money judgment is not a meaningful one if the
money must be paid pending appeal and cannot later be recovered.
A fourth factor may be relevant in some cases - the harm to the
respondent that may result if the judgment is not paid until the
completion of an unsuccessful appeal. In most cases, the undertaking,
other security or demonstrated proof of financial ability to ultimately
pay the judgment plus interest for the delay in paying the judgment,
will make the ultimately successful respondent whole. However, when the
respondent asserts that delay in executing the judgment will cause a
harm that cannot be remedied by the later collection of the judgment
plus interest after an unsuccessful appeal, the court must consider this
factor. In evaluating this harm, the circuit court should consider the
substantiality of the harm asserted, the likelihood of its occurrence,
the adequacy of the proof provided, and whether it truly is a harm that
cannot be remedied by the later collection of the judgment plus
interest.
The court also listed a fifth factor, which is the interest of the
public. The court recognized that in the usual money judgment appeal
this is not a relevant consideration and will not weigh either in favor
of or against a stay.
The court emphasized that the five-factor list summarized above is
not intended to be exclusive. It did conclude, however, that a proper
exercise of discretion requires the circuit court to consider at least
the first three factors in every case, and the fourth and fifth factors
whenever they are relevant. The circuit court must weigh the strength of
the relevant factors in deciding whether to grant a stay and upon what
conditions. It is not a matter of one party "prevailing" on more factors
than the other party, but on the relative and competing weight that the
circuit court, in its discretion, accords to each relevant factor based
on the record before it. For example, when there is a small likelihood
of success on appeal, the ability of the appellant to file an
undertaking or otherwise fully ensure the collectibility of the judgment
plus interest must be given more weight.
Finally, the court noted that the authority of the circuit court to
grant or deny a stay of execution of a money judgment implies the
authority to grant a partial stay.
Criminal Law
Theft From Person - Elements of the Crime
State v. Graham,
2000 WI App 38 (filed 25 May 2000) (ordered published 28 June 2000)
The defendant was charged with theft from the person of the victim,
contrary to Wis. Stat. section
943.20(1)(a) and (3)(d)2. At trial, the victim testified that she
gave the defendant a ride in her car. She placed her purse against the
car door and put her left leg tight against the purse as she drove, so
that it could not move. As the victim was braking to make a turn, the
defendant reached over and shifted the car into "park." He then reached
behind the victim's seat and released her seat-back, causing her to fall
backwards. As the victim fell back, her left leg became free from her
purse. The defendant reached across her body to grab the purse and then
left the car, taking her purse with him.
The defendant claimed that the evidence presented at trial was
insufficient to support his conviction, specifically arguing that the
state failed to prove that he took the purse "from the person" of the
victim.
In a decision authored by Judge Dykman, the court of appeals
concluded that there was sufficient evidence to allow a reasonable jury
to find beyond a reasonable doubt that the defendant took the purse
"from the person" of the victim. A jury could conclude that the purse
was touching the victim's leg until the defendant released her seat and
caused her to fall backwards. The defendant's act of releasing the seat
separated the victim's leg from the purse, allowing him to grab it and
flee. Said the court, taking a victim's purse by causing her to fall
backwards in the driver's seat of a car, thus breaking her hold on the
purse, is the type of particularly dangerous or undesirable action to
which the theft from a person statute should apply.
The victim's purse was touching her leg before the defendant took it.
The nature of the crime was not altered by the fact that the defendant
took the victim's purse in two steps: first causing her to fall
backwards and then grabbing the dislodged purse. Whether the defendant
took the purse from the victim's person or moved her person in order to
take the purse, his actions separated the purse from the person and
constituted the crime of theft from a person.
Criminal Procedure
Alford Pleas - Interlocutory Review of Trial Court
Rejection of Plea
State v. Williams,
2000 WI App 123 (filed 25 May 2000) (ordered published 28 June 2000)
The defendant was charged with several offenses and reached a plea
negotiation with the state. Pursuant to that negotiation, he tendered an
Alford plea to the court. An Alford plea is a plea in
which the defendant pleads either guilty or no contest, while either
maintaining his innocence or not admitting having committed the
crime.
The circuit court rejected the plea, indicating that it had a policy
of not accepting Alford pleas. Counsel then informed the court
that there was no plea agreement and the case proceeded to a jury trial,
where the defendant was convicted.
Among the issues on appeal was whether the appellate court should
reverse the conviction because of the trial court's refusal to accept
the Alford plea. The court of appeals concluded that, even if
it were to determine that the trial court erred in rejecting the plea,
the error would not justify setting aside the results of the defendant's
jury trial. This is because any error stemming from a trial court's
refusal to accept an Alford plea, like error in binding over a
defendant following a preliminary hearing, is cured when a defendant
receives a fair and error-free trial.
The court held that a defendant's opportunity to obtain the benefit
of a plea bargain can be adequately protected by requiring a defendant
who believes his or her tendered plea has been improperly rejected to
seek leave for an interlocutory appeal. The court concluded that the
defendant was convicted following an error-free trial, and thus his
claim of error with respect to the trial court's refusal to accept his
Alford plea came too late.
Evidence - DNA Testing
State v.
Santana-Lopez, 2000 WI App 122 (filed 9 May 2000) (ordered
published 28 June 2000)
The defendant was convicted of first-degree sexual assault. On
appeal, he claimed that the trial judge erroneously precluded him from
testifying that he "offered" to take a DNA test. The court of appeals,
in a decision written by Judge Fine, ordered the case remanded for
further proceedings. The remand was necessary so that the trial court
could determine whether the defendant "believed DNA could detect the
sexual assaults of which he was charged" (¶ 7). The trial court
also must consider the relevancy of such evidence in light of section
904.03 (the multi-factor balancing test), whether a new trial is
warranted, and whether the error, if any, was harmless.
Judge Schudson concurred.
Sentencing - Judge's Correction of Sentences Ordered to be
Concurrent When Judge Intended Them to be Served Consecutively
State v. Burt,
2000 WI App 126 (filed 25 May 2000) (ordered published 28 June 2000)
The circuit court sentenced the defendant to several concurrent
sentences. This occurred during the court's morning session. Later that
day, the court sentenced a codefendant but made the latter's sentence
longer. When the codefendant's attorney objected that the codefendant
received a longer sentence than the defendant's, the judge realized that
he had erred when he pronounced the defendant's sentence and ordered the
defendant back to the courtroom during the afternoon session on the same
day. At that afternoon session, the judge repeated the sentence he had
imposed on the defendant at the morning hearing, except that he changed
one of the sentences to run consecutively to the other terms imposed.
The defendant objected that this violated the double jeopardy protection
he enjoys under the Fifth
Amendment to the U.S. Constitution and article I, section 8 of the
Wisconsin
Constitution.
In a decision authored by Judge Dykman, the court of appeals
affirmed. It concluded that the trial court's imposition of the
corrected sentence did not violate the double jeopardy clauses. The
court acknowledged that double jeopardy protections apply to some
resentencings. However, the protections against double jeopardy were not
violated when the trial court realized it made an error of speech in
pronouncing the defendant's sentence and took immediate steps to correct
the sentence before the judgment of conviction was entered into the
record.
The double jeopardy clauses did not attach a degree of finality to
the defendant's original sentence that prevented the trial court from
correcting its error on the same day. Said the court, a defendant's
interest in the finality of his or her sentence is not a significant
concern when the trial court simply corrects an error in speech in its
pronouncement of the sentence later in the same day. This is not a
situation in which the judge, after some reflection, came to the
conclusion that the original sentence would have to be increased in
order to meet the court's sentencing goals.
Property
Inverse Condemnation - Statutory Bar
Koskey v. Town of
Bergen, 2000 WI App 140 (filed 2 May 2000) (ordered published
28 June 2000)
The plaintiffs instituted an inverse condemnation action against the
town, claiming it had taken their property without compensating them.
The town had denied that the plaintiffs owned the land and had proceeded
with its own condemnation action. The plaintiffs were aware of the
town's condemnation action and had never appealed it. The circuit court
dismissed their inverse condemnation claim.
The court of appeals, in an opinion written by Judge Peterson,
affirmed. Section
32.10 of the Wisconsin Statutes clearly barred this action. It
allows a property owner "to institute condemnation proceedings against
anyone who possesses, but fails to exercise, the power of condemnation."
Here the town had exercised its power of condemnation. If they were
dissatisfied with their lack of award under the town's condemnation
action, the plaintiffs should have appealed it.
Estate Planning - Power to Appoint
Lucareli v.
Lucareli, 2000 WI App 133 (filed 17 May 2000) (ordered
published 28 June 2000)
As part of an "estate planning divestiture stratagem," a grantor
worded a deed so that she would remain eligible for aid yet maintain
control over her property. A warranty deed contained a power of
appointment in which "the grantor purported to convey the property in
fee simple to the grantees while at the same time reserving the right to
give the property to others."
The court of appeals, in a decision written by Judge Brown, held that
the execution was invalid under Wis. Stat. section 706.03(1m) (1997-98).
"Since the property was never conveyed, it remains in the now-deceased
grantor's estate and should be disposed of accordingly" (¶ 1). When
construing deeds, courts will strive to reconcile a grant of interest
and the reservation of right over conveyed property, but where the
purported reservation is inconsistent with the nature of the estate
conveyed, the grant controls (¶ 7). In this case, the power to
appoint clause in the warranty deed "purported to grant her fee simple
interest to her sons and in the next breath claimed to retain the
ability to grant her interest to someone else" (¶ 8).
Torts
Duty to Defend - Tenders - Damages
Loosmore v.
Parent, 2000 WI App 117 (filed 31 May 2000) (ordered published
28 June 2000)
The plaintiffs sued the defendant for injuries sustained in a car
accident. The defendant was employed by Allstate Insurance Company but
was himself insured by American Family. This appeal involves American
Family's liability to Allstate for a breach of its duty to defend.
The court of appeals, in a decision written by Judge Hoover, affirmed
in part and reversed in part. First, the court held that American Family
had a duty to defend Allstate because it had accepted Allstate's "tender
of defense." American Family did not dispute that Allstate put it on
notice of the claim or that Allstate qualified as an "insured" under its
policy. If there was any ambiguity in Allstate's tender, American Family
was in a superior position to "facilitate clear communication." In
short, the court was reluctant to recognize a "sophisticated insureds"
exception to the case law governing tenders of defense. Finally, if
Allstate's position created any conflict with American Family or the
defendant driver, it was American Family's obligation to resolve the
conflict by hiring separate counsel, if necessary.
Second, the court addressed the measure of damages. Allstate was
entitled to "the damages that naturally flow" from the breached duty.
The damages included attorney fees for defending itself and pursuing
coverage, but they did not extend to the cost of prosecuting a
cross-claim against the defendant driver (¶ 23-4).
Unemployment Compensation
Police Officers - Suspension With Pay - Computing Unemployment
Compensation Ineligibility Period
City of Kenosha v. Labor
and Industry Review Commission, 2000 WI App 131 (filed 3 May
2000) (ordered published 28 June 2000)
This is an unemployment compensation case involving a police officer
who was suspended from duty. Wis. Stat. section
108.04(6) provides that an employee who is suspended for good cause
is ineligible to receive unemployment compensation benefits "until three
weeks have elapsed since the end of the week in which the suspension
occurs."
In this case, a police officer was suspended with pay pending the
disposition of charges of improper conduct that had been filed against
him. Following a hearing before the police and fire commission, he was
found guilty and suspended without pay for a specified period of time.
The issue before the court of appeals was whether the suspended
officer's ineligibility period under the unemployment compensation
statute is measured from the date of suspension with pay or from the
later suspension without pay.
The Labor and Industry Review Commission (LIRC) ruled that the
officer's ineligibility
is measured from the date of the officer's initial suspension with
pay. The
circuit court upheld this determination. In a decision authored by
Judge Nettesheim,
the court of appeals agreed with the LIRC. It concluded that the
statute makes
no distinction between a suspension with pay and a suspension without
pay for
purposes of calculating the ineligibility period under the
unemployment compensation
law.
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