Vol. 70, No. 10,
October 1997
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Appellate Procedure | Civil
Procedure | Criminal Procedure | Insurance
| Motor Vehicle Law | Municipal Law
Appellate procedure
Stipulations - Reserving Rights - Waiver
Cascade Mountain Inc. v. Capitol
Indemnity Corp., No. 96-2562 (filed 3 July 1997) (ordered published
26 Aug. 1997)
The plaintiffs sued the defendants for the settlement amount, costs
and attorney fees plaintiff paid in defending a personal injury action in
federal court. The trial judge granted defendants' summary judgment dismissing
most of the claims but denied it on a "relatively minor component of
one claim." To avoid the expense of trial, the parties agreed to enter
a $20,000 judgment against the defendants and further stipulated that plaintiffs
retained the right to appeal the partial summary judgment. If the dismissal
of the principal claims was affirmed, plaintiffs could execute on the $20,000
judgment. If the summary judgment rulings were reversed, however, the parties
would expunge the judgment and try all claims.
In a per curium decision, the court of appeals held that plaintiffs
waived the right to appeal by stipulating to the entry of a conditional
judgment. (The court raised the issue sua sponte.) A party waives
the right to appeal in civil cases "where that party has caused or
induced a judgment to be entered or has consented or stipulated to the entry
of judgment." In this case if the court reversed the summary judgment
findings, the plaintiffs could try their entire case, including the claim
they could have tried earlier but elected not to. Thus, the court of appeals
could be forced to review the same issue twice where only one appeal should
suffice. The court was concerned that by condoning such stipulations parties
would circumvent waiver and finality rules, "thereby converting discretionary,
interlocutory appeals into appeals as a matter of right from 'final' orders
or judgments."
Civil procedure
Default Judgments - Reopening - Dismissals with Prejudice
Haselow v. Gauthier,
No. 96-3589 (filed 31 July 1997)(ordered published 26 Aug. 1997)
Plaintiff obtained a default judgment against the defendant. The trial
judge later granted the defendant's motion to reopen the judgment and to
dismiss the action with prejudice. Plaintiff appealed on the ground that
the default judgment should not have been reopened and that his claim should
not have been dismissed with prejudice.
The court of appeals, in an opinion written by Judge LaRocque, affirmed
in part and reversed in part. The trial judge properly exercised his discretion
in reopening the default judgment. The record established that the plaintiff's
process server made just one unsuccessful effort at personal service. Although
the process server was told that the defendant was living or working in
Hawaii, there were no further efforts to locate the defendant. The single
effort to obtain personal service justified the trial judge's finding of
a lack of due diligence.
The trial judge did not, however, have the authority to dismiss the action
with prejudice. The motion was presented and heard ex parte, without notice
to the plaintiff. First, "a motion to dismiss with prejudice cannot
be heard ex parte." Second, the judge abused his discretion in dismissing
the case with prejudice. A "drastic sanction" is appropriate only
on finding egregious conduct or bad faith, which this record failed to demonstrate.
Incarcerated Litigants - Case Management
Schmidt v. Schmidt,
No. 96-3699 (filed 16 July 1997) (ordered published 26 Aug. 1997)
This case concerns the management of civil litigation when one of the
parties is incarcerated. In an opinion authored by Judge Brown, the court
of appeals examined how a circuit court should resolve the problem of moving
a civil case towards resolution considering that the incarcerated party
may not be able to appear personally at the proceedings.
When a court faces a case in which one of the litigants is incarcerated,
a preliminary question it must resolve is whether the case still can move
toward resolution or if it must be held in abeyance until the incarcerated
party is released. If the court finds that the case should proceed and that
to do so the incarcerated party must appear in person, it has the authority
to order that the incarcerated person be brought to court. This is achieved
by issuing a writ of habeas corpus ad testificandum.
These two determinations - if the case should proceed and how it should
proceed - are discretionary choices that rest on a variety of factors. The
court of appeals concluded that the trial judge needs to inquire on three
different issues: 1) the nature of the case; 2) the practical concerns raised
by having the prisoner appear; and 3) the alternative methods of providing
the prisoner with access to the hearings.
When a court assesses the nature of a case, it should be concerned with
two matters. First, it must gauge how the incarcerated party's confinement
may affect the case outcome. For instance, the intensity of discovery might
be important. An incarcerated person faces obvious impediments to conducting
discovery. Thus, if the case involves complex factual details, the only
solution may be to hold the case. Moreover, even if the factual disputes
are comparatively simple and narrow, the court still must consider how much
of the evidence will consist of the incarcerated person's testimony and
how his or her presence might otherwise affect the fact finder's ability
to make its credibility determination. Second, the court should be concerned
with the effects of the litigation on the nonincarcerated party and third
parties. For example, in an action affecting the family, such as a divorce
or custody hearing, a decision to hold the matter in abeyance until the
incarcerated party is released might have negative effects on the family
as a whole.
With respect to concerns raised by having the prisoner appear, the state
has a strong interest in maintaining the confinement of incarcerated persons.
Transporting an incarcerated individual to the courthouse and having that
person attend a proceeding creates a risk to public safety and of escape.
Thus, the trial court must measure whether moving the incarcerated person
will significantly increase these risks. In fact, transporting a specific
individual might so increase these risks that the possible benefits of being
present during a proceeding would not outweigh those risks. In such a scenario,
the court should especially consider the alternative means through which
that person can present his or her case to the court while remaining in
confinement.
With respect to those alternatives, Wisconsin recognizes the utility
of using technology in the trial process; and the court of appeals expects
that judges will rely heavily upon these advances to keep these kinds of
cases progressing to resolution. For example, the incarcerated party may
be able to conduct discovery by telephone. The incarcerated party also may
be afforded access to evidentiary hearings and arguments through a telephone
link or through an audiovisual link. Technology, however, is not the only
alternative to consider. Even if these tools are not available, the incarcerated
party's counsel (if he or she has counsel) can help move the case. The trial
court must determine if counsel can effectively develop the incarcerated
party's case without that party's attendance.
In applying the factors described above, the judge must recognize that
the Wisconsin Rules of Civil Procedure are forward-looking. The goal underlying
these rules is to move litigation to resolution. Should either party believe
that the proceedings must be adjourned, that party has the burden of establishing
the grounds for such delay. Of course, both parties may agree that the litigation
should proceed. In that case, the court will focus on solving how
the case should proceed. The other important factor the court must consider
is that the incarcerated person should remain in confinement. Accordingly,
the party seeking the incarcerated person's presence must show why his or
her presence is necessary and why the possible alternatives to having
him or her appear in person are not appropriate. In those cases where
both parties want the incarcerated person to appear, the court must protect
the state's interest in having the incarcerated person remain in confinement.
As a result of advances in communication technology, the court of appeals
anticipates that a trial judge rarely will determine that the incarcerated
party must be brought to the proceedings. Nonetheless, in that rare occasion,
the appeals court recognizes that the costs of transporting the incarcerated
person to the proceeding will be an important issue to the court and litigants
because the incarcerated party likely will be indigent. The rules relating
to the costs associated with transporting incarcerated persons to proceedings
are set forth in section 782.45(1) of the Wisconsin Statutes. The court's
opinion in this case concludes by analyzing those rules and other issues
relating to payment of transportation costs.
Criminal procedure
Forfeitures - "Excessive Fines" Analysis
State v. Hammad, No.
95-2669 (filed 15 July 1997) (ordered published 26 Aug. 1997)
The State of Wisconsin brought a statutory civil forfeiture action (Wis.
Stat. 973.075 et seq.) claiming that a vehicle owned by the defendant
was used to transport property received in the commission of a felony. The
forfeiture action evolved out of a police "sting" operation and
the defendant used the vehicle to transport some of the "stolen"
items he purchased from the police. The circuit court granted the state's
demand for forfeiture of the car, finding that the vehicle had been used
to transport property received in the commission of a felony.
On appeal the critical issue was whether forfeiture of the vehicle violated
the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution.
The Eighth Amendment provides: "Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Though the U.S. Supreme Court has never held that the Excessive Fines Clause
applies to the states through the Fourteenth Amendment, the court in this
case proceeded on the assumption that it does.
The U.S. Supreme Court has expanded the breadth of the Excessive
Fines Clause to include civil forfeiture actions that are commenced by
a government and that are, in whole or in part, driven by a desire
to punish a person. It has set forth a two-part test to determine whether
a forfeiture violates the Excessive Fines Clause: 1) whether the forfeiture
can be considered a punishment, and 2) whether the forfeiture is constitutionally
"excessive."
The court of appeals, in a decision authored by Judge Curley, concluded
that forfeiture of a vehicle used to transport property used or to be used
or received in the commission of a felony has a punitive purpose because
the Legislature has chosen to tie forfeiture directly to the commission
of felony offenses. With respect to whether the forfeiture in this case
was "excessive" within the meaning of the Eighth Amendment, the
court applied the standards articulated in State v. Seraphine, 266
Wis. 118, 62 N.W.2d 403 (1954), wherein the Wisconsin Supreme Court considered
whether a fine violated Article I, section 6 of the Wisconsin Constitution:
"In determining whether a fine authorized by statute is excessive
in the constitutional sense, due regard must be had to the object designed
to be accomplished, to the importance and magnitude of the public interest
sought to be protected, to the circumstances and nature of the act for which
it is imposed, and in some instances, to the ability of the accused to pay.
In order to justify the court in interfering and setting aside a judgment
for a fine authorized by statute, the fine imposed must be so excessive
and unusual, and so disproportionate to the offense committed, as to shock
public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances."
When measured against the Seraphine standard, the court concluded
that the forfeiture of the defendant's automobile in this case was not "excessive."
One of the clear objects of the statute authorizing forfeiture is to deter
and punish those who would commit felonies and use their vehicles to accomplish
their criminal purpose. The public interest, said the court, is both obvious
and significant because the use of a vehicle in the course of a felony frustrates
law enforcement by permitting the guilty to quickly exit, or, as here, to
abscond with the stolen goods. Other factors in the court's analysis included
the fact that the vehicle's value was significantly less than the maximum
fine allowable for the underlying felony (attempting to receive stolen property).
The forfeiture was neither disproportionate to the crime nor unusual in
nature. As such, it does not shock public sentiment nor does it violate
a reasonable person's sense of justice.
Confessions - Search and Seizure - Exclusionary Rule
State v. Kiekhefer,
No. 96-2052-CR (filed 23 July 1997) (ordered published 26 Aug. 1997)
The defendant was arrested and prosecuted for a variety of drug offenses
after police entered and searched his home. The trial court denied his motion
to suppress evidence. The court of appeals, in an opinion written by Judge
Anderson, reversed the defendant's conviction for possession of marijuana.
The court's opinion reads like a veritable catalogue of how not to conduct
a criminal investigation. And like all such cases, the opinion is extremely
fact-intensive and only a summary of the court's principal conclusions is
possible.
First, police violated the defendant's Miranda rights. Upon entering
his bedroom, they handcuffed him and asked about the location of drugs in
the room. Only after police had searched the room and found incriminating
evidence (drugs and guns) did they advise him of his Miranda rights.
The state argued that under Oregon v. Elstad (1985) the court should
suppress only the defendant's statements to police, not the physical evidence
recovered as a result of the Miranda-defective statements. Although
this posed an issue of "first impression" in Wisconsin, the court
declined the invitation because it also found that the statements were obtained
involuntarily in violation of the defendant's due process rights. The involuntariness
arose from a host of factors including the officers' show of force, the
failure to advise the defendant of his right to withhold consent to search
and their "posturing" about occupying his house while they obtained
a search warrant. In particular, "the agents had no right to imply
that they could sit in [the defendant's] home for two hours while a warrant
was obtained." Since the consent was obtained involuntarily, all physical
evidence seized during the search was suppressed.
The court also suppressed the defendant's subsequent "warned"
written confession. Only a two-hour break separated the coerced oral statements
from the written statement. They both took place at the site of the arrest
(his home) and were conducted by the same group of officers. Thus, the state
failed to demonstrate a valid waiver of Miranda rights.
Second, the court held that besides the Fifth Amendment violation, the
evidence was obtained in violation of the Fourth Amendment. The state failed
to demonstrate that the warrantless entry into the home was proper. The
trial judge committed "clear error" in finding consent to enter
because the agents testified that they never even asked for such permission.
Nor did exigent circumstances justify the entry or search. The court rejected
fact-intensive arguments grounded in a "reasonable fear" for the
officers' safety and concerns that evidence might be destroyed.
Finally, the state argued that the attenuation doctrine justified use
of the guns and the drugs. The state, however, failed to convince the court
that attenuation was appropriate in light of: 1) the short time lapse between
the illegal entry and the seizures, 2) the complete absence of intervening
circumstances, and 3) the purpose and flagrancy of the misconduct. In the
court's words, "[t]he entire investigative procedure of these agents
had a 'quality of purposefulness' to it."
Insurance
Bad Faith - Nondelegable Duty - Insurer's Defense Attorney - Punitive
Damages
Majorowicz v. Allied Mutual
Ins. Co., No. 96-3088 (filed 29 July 1997) (ordered published
26 Aug. 1997)
This insurance bad faith case originated in a personal injury action
arising out of a car accident. The victim in the underlying personal injury
case won a verdict against the insurer and the insured for $221,000. The
insured's policy limits were $100,000, which left her with a $121,000 excess
judgment. The insured then sued her insurer for bad faith. A jury found
that the insurer breached its duty of good faith and awarded more than $260,000
in damages.
The court of appeals, in an opinion written by Judge Mohr, affirmed
in part and reversed in part. First, the insurance company argued that it
had no control over the "independent professional judgment" of
the attorney it hired to defend the underlying personal injury case. The
issue had not been expressly decided in Wisconsin cases. Without deciding
whether the acts of hired counsel may be imputed to the insurance company
in every bad faith case, the court held that on these facts the company's
duty to act in good faith was nondelegable. The insurer had failed to properly
investigate the claim. The insurer retained the duty to act in good faith
even when it relied upon its attorney's litigation decisions.
The court also discussed several other issues. The record in the case
adequately supported the jury's finding of bad faith. The accident victim
had demanded the policy limits one month before trial. Despite damaging
evidence to the contrary (a negative independent medical examination), the
defense attorney told the insured that there was "little chance"
of an excess verdict.
The punitive damages award also was appropriate. The law does not
require expert testimony on all punitive damages claims. Here the jury
heard expert testimony on the bad faith issue which also bore on the punitive
damages: "The disregard of a herniated disc with admitted liability
could lead the jury to find an intentional disregard of [the insured's]
right to a fair and prompt disposition of her claim." A reckless disregard
for her rights was supported by evidence that the insured was not informed
that policy limits were demanded or the possibility of an excess verdict
- as well as the "suggestion" not to hire her own lawyer.
The court also held that a modified jury instruction on bad faith was
appropriate, that the insured was entitled to attorney fees as actual damages
in her excess verdict bad faith case (but not on the punitive damages award),
and that section 807.04(4) of the Wisconsin Statutes "imposes penalty
interest upon the insurer for the amount recovered against it, including
punitive damages from the date of the offer."
Bad Faith - Judicial Estoppel - Claims Preclusion
Davis v. American Family Ins.
Co., No. 97-0133 (filed 15 July 1997)(ordered published 26 Aug.
1997)
Davis was injured in a 1989 car accident in Minnesota. The responsible
driver was insured by State Farm for $100,000/$300,000 liability. Davis
settled the liability claim with State Farm for $77,500, which was less
than the policy limits. Davis's insurer, American Family, denied his claim
for underinsured (UIM) coverage. Davis sued American Family in Minnesota,
which permits insureds to sue for UIM benefits after settling for less than
the limits. Wisconsin law precludes such claims. The Minnesota court ruled
that Davis was entitled to coverage and awarded him $100,000 in UIM coverage
toward the more than $370,000 in damages that he suffered.
In 1995 Davis began this bad faith action against American Family in
Wisconsin. American Family moved for a stay so that the action could be
moved to Minnesota, where the UIM case had been tried. The circuit court
granted the motion but in 1996 a Minnesota court dismissed Davis's claim
because Minnesota does not recognize the tort of bad faith. Back in Wisconsin,
the circuit court also granted summary judgment dismissing the claim based
on claim preclusion and judicial estoppel.
The court of appeals, in an opinion written by Judge Cane, reversed.
First, claim preclusion was inapplicable where the trial court granted an
order staying the Wisconsin proceeding but permitting Davis to return with
his bad faith "to the extent that the claim and prosecution are unavailable
in Minnesota." Second, judicial estoppel also was unavailable. Judicial
estoppel bars parties from asserting inconsistent positions in legal actions.
There was nothing inconsistent about Davis's decision to pursue the UIM
issue in Minnesota and the bad faith claim in Wisconsin. Finally, the court
rejected American Family's argument that the statute of limitations barred
the action. There was an issue of fact as to when the bad faith claim accrued;
thus, summary judgment was inappropriate.
UIM Coverage - Settlements - Failure to Give Notice - Burden of Proof
Ranes v. American Family Ins.
Co., No. 97-0441 (filed 31 July 1997)(ordered published 26 Aug.
1997)
Ranes was injured in a car accident. Ranes later settled with the other
driver and the liability insurer but failed to notify American Family, which
provided him with underinsured motorist (UIM) coverage. Later Ranes filed
this action claiming UIM benefits against American Family. The trial judge
dismissed the claim because Ranes failed to provide notice as purportedly
required by Vogt v. Schroeder, 129 Wis. 2d 3 (1986).
The court of appeals, in an opinion written by Judge Myse, reversed.
Vogt held that UIM insurers were entitled to notice of the potential settlement
of the underinsured's claim against the tortfeasor. Whether a failure to
give notice bars the UIM claim absent prejudice to the insurer was left
unresolved. Addressing this issue of first impression, the court adopted
the majority rule "that the failure to give notice will not bar an
underinsured motorist claim unless the insurer has suffered some prejudice
from the failure to receive such notice."
The court also delineated the burdens of proof on such issues. "The
burden is to persuade the factfinder by a preponderance of the evidence
that no prejudice has been suffered as a result of the failure to give notice.
The process should envision an insurance carrier asserting the affirmative
defense of lack of notice of having the burden to demonstrate the lack of
notice. Once lack of notice has been demonstrated, the insured must produce
sufficient evidence to satisfy the factfinder by a preponderance of evidence
that the insurer suffered no prejudice as a result of the failure to give
such notice. If the insured is able to bear his burden of proof, the failure
to give notice will have no affect on the rights under the insurance policy.
If the insured fails to demonstrate a lack of prejudice, the failure to
give notice will act as an absolute bar to underinsured motorist benefits
as provided by the insurance policy."
Liability Insurance - Endorsements Limiting Liability - Format Required
Smith v. Dodgeville Mutual
Ins. Co., No. 96-3352 (filed 26 June 1997) (ordered published 29
July 1997)
Smith purchased farm insurance from Dodgeville Mutual through a local
insurance agent. He relied upon the agent to complete the insurance application
for him, although he signed it himself. According to the plaintiff, the
agent failed to ask, and therefore the application form failed to disclose,
that the plaintiff had had insurance canceled in the past. Dodgeville issued
a policy that included fire and wind coverage for certain buildings and
equipment on the plaintiff's farm. The policy incorporated preprinted form
endorsements that stated the contract would be void in the event that Dodgeville
relied upon any material representations made in the application. The plaintiff's
application was not attached to the policy.
While the Dodgeville policy was in effect, a fire at the Smith farm
destroyed a machinery storage shed and its contents, causing an estimated
$370,000 in damages. The face amount of the policy was sufficient to cover
the loss. However, while investigating the claim, Dodgeville discovered
the inaccuracy in the plaintiff's application regarding past coverage. Referencing
the preprinted form endorsements of the policy, Dodgeville denied coverage
on the ground that the application contained a material misrepresentation
upon which it had relied. The plaintiff sued Dodgeville to collect on the
policy and he sued the agent for failure to procure the insurance coverage
he requested. He settled with Dodgeville for $l00,000 and dismissed the
insurance company from the suit. On summary judgment the circuit court dismissed
the plaintiff's negligence claim against the agent. It concluded that Dodgeville
could not deny coverage based upon the plaintiff's misrepresentation in
the application, because Dodgeville had not complied with the requirements
of section 631.11(1)(a) of the Wisconsin Statutes. Therefore, the plaintiff
could not prove that the agent failed to provide the insurance coverage
he requested, despite the fact that the plaintiff had settled for substantially
less than the stated policy limits.
In an opinion authored by Judge Roggensack, the court of appeals affirmed.
The statute cited above (in its 1991-92 version applicable here) provided
that "no statement, representation or warranty made by any person in
the negotiation for an insurance contract affects the insurer's obligations
under the policy unless it is stated in the policy, or in a written application
signed by such person, a copy of which is made a part of the policy by attachment
or endorsement." [The statute has since been reworded.] The parties
agreed that the plaintiff's statement that his insurance coverage had never
been canceled or a request for coverage denied was not contained in the
policy. Nor was his application physically attached to the policy. The parties
disagree, however, about whether the plaintiff's application was made a
part of the policy by "endorsement," as that term is used in the
statute.
The court concluded that this appeal would turn on whether the preprinted
form endorsement Dodgeville attached to the plaintiff's policy was sufficient
to satisfy the statute's requirements. Though it is not uncommon for some
insurance policy provisions to be contained in the endorsements that follow
the main body of the policy, the statute limits when misrepresentations
of the insured made in negotiating the policy may become part of the policy
through such an endorsement. The statute provides that no statement made
in negotiating an insurance policy will limit the insurer's liability to
pay under the policy, unless the insurer follows the method provided by
statute for making those statements a part of the contract. With respect
to the endorsement method of incorporating the insured's representations
into the contract, the statute clearly and unambiguously evinces a legislative
intent to compel an incorporation of the actual statements made by the applicant
who has become an insured under the policy at issue. In general, preprinted
form statements are insufficient to protect the insured, as they would not
give adequate notice to the insured about the complete and specific terms
of the purchased policy. To make a written application form a part of an
insurance policy by "endorsement," the insurer must specifically
write across the application itself that it is an endorsement and part of
the policy.
In this case the defense Dodgeville raised to coverage was barred by
the provisions of section 631.11(1)(1a) and, therefore, the policy was binding
as a matter of law. Accordingly, no duty was breached by the agent who did
in fact procure the insurance coverage the plaintiff requested.
Motor vehicle law
Intoxilyzer Tests - Presumption of Accuracy
State v. Baldwin & State
v. Busch, Nos. 96-1013-CR and 96-2822 (filed 2 July 1997) (ordered
published 26 Aug. 1997)
These consolidated cases involved the admissibility of breath test results
under a statute that accords the tests prima facie accuracy under certain
conditions. The court reversed one conviction for operating a motor vehicle
with a prohibited alcohol concentration (OMVPAC) because the state failed
to comply with the mandate in the statutes and the administrative code.
The court upheld the other defendant's conviction for operating a motor
vehicle while intoxicated (OMVWI) because he failed to argue that there
was no evidence supporting his conviction.
Attorneys handling drunk driving cases will want to closely consult
Judge Anderson's opinion. Various statutes and administrative rules provide
for the automatic admissibility of breath test results and also cloak such
tests with a presumption of accuracy. The rules require, however, that
the specified instruments be evaluated and approved before regular use.
The record in this case disclosed that the state replaced parts of an approved
model with parts belonging to another model. Although it argued that the
"hybrid machine" remained the same, the state did not evaluate
the instrument before it was put into regular use - as required by statute.
Despite the statutory violation, the court refused to suppress the breath
test results. Rather, at the new trial "prosecutors who wish to rely
upon the breath tests results will be required to present evidence of the
instrument's scientific accuracy and reliability and prove compliance with
accepted scientific methods as a foundation for the admission of the test
results."
Municipal law
Zoning - Area Variances - "Unnecessarily Burdensome" Standard
State v. Kenosha County Board
of Adjustment, No. 96-1235 (filed 9 July 1997) (ordered published
28 Aug. 1997)
This case concerns zoning variances. The party seeking a variance must
prove that an unnecessary hardship will result if the variance is not granted.
The critical issue before the court of appeals was identifying the proper
test for measuring unnecessary hardship in an area variance case.
The parties disagreed on the proper test to be employed. The state urged
that the proper analysis is under the "no feasible use" test in
which the applicant for a variance must show that no feasible use can be
made of the property without a variance. The local board of adjustment contended
that the proper test is the "unnecessarily burdensome" test under
which the inquiry is whether compliance with the strict letter of zoning
restrictions would render conformity with such restrictions unnecessarily
burdensome.
Section 59.694(7) of the Wisconsin Statutes provides that the board of
adjustment has the power "to authorize upon appeal in specific cases
variance from the terms of the ordinance that will not be contrary to the
public interest, where, owing to special conditions, a literal enforcement
of the provisions of the ordinance will result in unnecessary hardship,
and so that the spirit of the ordinance shall be observed and substantial
justice done."
The court of appeals noted that this statute speaks of "unnecessary
hardship" as the test for a variance grant. It does not speak of the
"no feasible use" test or the "unnecessarily burdensome"
test. Nor does the statute make any distinction between use and area variances.
However, in Snyder v. Waukesha County Zoning Bd. of Adjustment,
74 Wis. 2d 468, 247 N.W.2d 98 (1976), the supreme court spoke to both area
variances and use variances and, despite the statute's uniform language,
used different language when reciting the "unnecessary hardship"
test for each. As to area variances, the court used the "unnecessarily
burdensome" test and, as to use variances, the "no feasible use"
test.
This case involved an area variance and the board of adjustment applied
the "unnecessarily burdensome" standard. This, said the appellate
court, was the proper approach.
Zoning - Nonconforming Uses - Public Nuisances
Town of Delafield v. Sharpley,
No. 96-2458 (filed 9 July 1997) (ordered published 28 Aug. 1997)
Paul Sharpley Sr. purchased several acres of wooded property in 1945
and built his home there. In 1969 Paul Sharpley Jr. purchased an acre of
his father's land and built his residence there. Since 1960 both have engaged
in various businesses on the properties and have maintained equipment and
vehicles there.
The Town of Delafield received numerous complaints over the past years
from residents and real estate developers concerning the condition
of the Sharpley properties. An investigation revealed that there were many
vehicles located on their land, such as automobiles, trucks, snowmobiles,
farm machinery and so on. A majority of these vehicles were either junked,
wrecked, abandoned or disassembled.
The Sharpleys were given notice that their properties were not in compliance
with several town ordinances and, when they failed to correct the problems,
the town filed this action alleging that they violated its public nuisance
ordinances.
The town filed a motion for summary judgment and a motion to dismiss
the Sharpleys' counterclaims. The trial court granted the town's motion
on all causes of action with one exception and it dismissed the counterclaims.
A jury trial was held solely on the issue of whether the Sharpleys had a
valid and legal nonconforming use of their respective properties that predated
the town's ordinances. The jury found for the Sharpleys and, in motions
after verdict, the trial court changed certain answers in the verdict, finding
that the Sharpleys did not have a valid and legal nonconforming use of their
properties.
The court of appeals, in a decision authored by Judge Anderson, affirmed.
It began its analysis by noting that, although the trial court granted summary
judgment on all causes of action, except for the issue of whether the Sharpleys
had a valid and legal nonconforming use of their respective properties that
predated the town's ordinances, the trial court was not required to reach
that issue because its earlier conclusion on summary judgment that the Sharpleys
created a public nuisance was dispositive. A valid, nonconforming use, irrespective
of its duration, may be prohibited or restricted when it also constitutes
a public nuisance or is harmful to the public health, safety or welfare.
The Wisconsin Supreme Court has recognized that a nonconforming use existing
when a zoning ordinance goes into effect cannot be prohibited or restricted
by statute or ordinance, where it is a lawful business or use of property
and is not a public nuisance or harmful in any way to the public health,
safety, morals or welfare. A public nuisance always can be abated.
In this case the trial court granted summary judgment in favor of the
town, finding that it was undisputed that the Sharpleys created a public
nuisance by maintaining their property in the manner described. If this
determination was correct, then whether they had a valid and legal nonconforming
use of their respective properties that predated the town's ordinances was
irrelevant. The court went on to hold that the grant of summary judgment
was proper inasmuch as Paul Sr. failed to oppose the town's affidavits and
Paul Jr.'s affidavit failed to set forth specific facts that disputed the
public nuisance violation described in the town's affidavit and exhibits.
This column summarizes all decisions of the 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. |