Vol. 76, No. 3, March
2003
Court of Appeals Digest
This column summarizes selected published
opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and
Prof. Thomas J. Hammer invite comments and questions about the digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Appellate
Procedure
Family Law - Appeals Involving Child Support Orders - Time for
Commencing Appeal
Campbell v.
Campbell, 2003 WI App 8 (filed 4 Dec. 2002) (ordered published
29 Jan. 2003)
In a 1992 divorce case, the circuit court ordered the husband to pay
child support of $46 per week. That 1992 order was still in place in
1998 when the husband's ex-wife brought a motion for the husband to be
held in contempt for his failure to notify her and the court of a change
in his ability to pay support. The motion was premised on information
that the husband was earning significantly higher wages. The court made
a temporary order increasing the husband's support obligation to $800
per month.
Subsequently, the court held a hearing to address the contempt motion
and then made a series of orders. First, on Sept. 29, 2000, the court
set child support but left the amount of arrearages unresolved until a
court-ordered audit could be performed. Second, after the audit was
performed, the court issued an order on Aug. 7, 2001, incorporating the
audit and settling the arrearages question, leaving open only the matter
of attorney fees. Third and last, on Nov. 16, 2001, the court issued an
order settling the question of attorney fees. The husband filed an
appeal on Feb. 11, 2002. His ex-wife argued that the appeal must be
dismissed as untimely under Wis. Stat. section 808.04(1), which requires
that an appeal be filed within 90 days of the entry of a final judgment
or order.
In a decision authored by Judge Anderson, the court of appeals
concluded that the husband's appeal was untimely. The Aug. 7, 2001 order
constituted the final order of the court. This order settled
both the support and arrearages questions. The only matter left to be
determined was whether attorney fees would be ordered, and if so, in
what amount. In the family law context an order resolving the merits of
a child support dispute but not an attorney fee issue is final within
the meaning of section 808.03(1).
Because the court of appeals established that the Aug. 7, 2001 order
was the final order on the merits, the husband had 90 days from that
date to file his appeal. Because he did not do so until Feb. 11, 2002,
his appeal was not timely.
Civil Procedure
Motions to Dismiss - Summary Judgment - "Conversion" Notice
CTI of Northeast Wisconsin
LLC v. Herrell, 2003 WI App 19 (filed 17 Dec. 2002) (ordered
published 29 Jan. 2003)
CTI sued the Herrells, who filed a motion to dismiss the complaint
for failure to state a claim under Wis. Stat. section 802.06(2)(a)6. The
Herrells later submitted a brief in support of their motion and included
an affidavit with the brief. CTI questioned the appropriateness of the
affidavit or any "evidence" with regard to a motion to dismiss for
failure to state a claim, yet indicated that it would provide supporting
evidentiary material in the event the Herrells pursued summary judgment.
Without a hearing, and solely on the briefs, the circuit court
"converted" the motion to dismiss for failure to state a claim into one
for summary judgment, which it then granted in favor of the
Herrells.
The court of appeals, in an opinion authored by Judge Hoover,
reversed. Section 802.06(2)(b) "requires the court to notify parties of
its intent to convert a motion to dismiss for failure to state a claim
to one for summary judgment" (¶5). Conversion is left to the trial
court's discretion under the rule. "Until and unless the court notifies
the parties it will not exclude 'matters outside of the pleadings' and
will therefore treat a motion as one for summary judgment, the parties
will be uncertain of their rights and responsibilities. Thus, we
conclude that when a court converts a motion to dismiss for failure to
state a claim into a motion for summary judgment pursuant to Wis. Stat.
§ 802.06(2)(b), the court must notify the parties and provide them
a reasonable opportunity to present material made pertinent by Wis.
Stat. § 802.08" (¶8).
On this record, no such notice was given to CTI nor, under the
circumstances, should CTI have reasonably anticipated the court's
action; thus, the entry of summary judgment against CTI violated the
rules of civil procedure and denied CTI its due process rights. The
court of appeals held that on remand, the circuit court may exclude the
offending affidavit and decide the motion to dismiss for failure to
state a claim or convert that motion into one for summary judgment and
offer both sides the opportunity to present appropriate evidence.
Criminal Law
Felony Murder - Liability for Murder when Defendant is a Party to the
Underlying Felony
State v. Krawczyk,
2003 WI App 6 (filed 19 Dec. 2002) (ordered published 29 Jan. 2003)
Among the issues in this case was the question of whether a person
can be found guilty of felony murder if he or she is a party to a crime
included in the felony murder statute and a death results from the
crime. In this case the defendant and three other people devised a plan
to rob a specific person. While the defendant and a driver waited in the
car outside the victim's home, their two confederates committed the
planned armed robbery, during the course of which they killed the
victim.
The state charged the defendant with felony murder as well as other
crimes. He pleaded guilty to this and other charges but then sought to
withdraw his plea, contending that he was not accurately informed about
the elements of felony murder. He claimed that the jury instructions and
case law he reviewed with his attorney at the time of his plea left him
with the impression that the felony murder statute only required the
state to prove that he was a party to the underlying crime of armed
robbery and that the commission of the armed robbery caused the victim's
death. He contended that he now believed this statement of elements to
be erroneous because, in his view, his own conduct had to be a
substantial factor in producing death in order for felony murder
liability to accrue.
In a decision authored by Judge Deininger, the court of appeals
concluded (as it had done before in State v. Chambers, 183 Wis.
2d 316, 515 N.W.2d 531 (Ct. App. 1994)) that "it is the defendant's
conduct in facilitating the underlying crime that triggers felony murder
liability when a death results from the crime, there being no
requirement that a defendant's conduct be physically related to the
fatal shot or assault" (¶ 21). Accordingly, the defendant was not
misinformed about the elements of felony murder at the time he entered
his plea, and he thus failed to establish that his plea to that crime
was not knowing, intelligent, and voluntary.
Criminal Procedure
Extended Supervision - "Dating" Restrictions
State v. Koenig,
2003 WI App 12 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)
Koenig was convicted of forgery for taking and forging checks
belonging to a man with whom she lived for several months. She was
placed on probation, which was revoked after she again stole and forged
checks from other "boyfriends." The judge sentenced her to a term in
prison followed by several years of extended supervision. Among the
conditions placed on her extended supervision was that Koenig "introduce
to her agent, immediately, any person she is dating to discuss her prior
record." On appeal Koenig argued that the ambiguity of the term "dating"
rendered the condition unconstitutionally vague.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. Pointing to a "recently enacted definition of 'dating
relationship' provided in Wis. Stat. § 813.12(1)(ag)," which
pertains to domestic restraining orders and injunctions, the court
concluded that Koenig had "fair and adequate notice that she must
introduce to her agent any person with whom she is involved in an
intimate social relationship" (¶¶ 12, 14). The statute
excludes from the definition "'a casual relationship or an ordinary
fraternization,' but common sense would also lead one to arrive at that
distinction" (¶14).
Restitution - Special Damages
State v. Loutsch,
2003 WI App 16 (filed 26 Dec. 2002) (ordered published 29 Jan. 2003)
The defendant, Loutsch, was convicted of several crimes stemming from
an altercation with his father-in-law. While being pursued by police,
Loutsch twice backed his car into the squad car. The collision
aggravated the police officer's pre-existing wrist injury, and the
officer required surgery. Following Loutsch's convictions and
sentencing, the court held a hearing on restitution at which the state
demanded more than $33,000 in restitution for the officer's injuries,
including more than $26,000 for sick leave (522 hours). Because under
the officer's employment contract, any unused sick time is figured into
his retirement benefits, the circuit court concluded that "the loss of
sick leave was a real loss" to the officer.
The court of appeals, in a decision authored by Judge Vergeront,
affirmed in part and reversed in part. The court held that the officer's
sick leave constituted a "special damage" within the meaning of Wis.
Stat. section 973.20(5)(a) because it could have been claimed in a civil
action. The court analogized the lost sick leave to future lost earning
capacity. Although neither type of damage can be calculated with
certainty or exact data, both types are sufficiently provable and not
speculative.
The case was remanded, however, for a determination of Loutsch's
ability to pay restitution. The trial court had deferred the finding
because "of the difficulty in deciding now what his financial situation
would be after his release from prison and during his extended
supervision and probation." The court of appeals held that whatever the
difficulties, section 973.20 requires that such findings be made at
sentencing regardless of future contingencies. (Statutory provisions
permit later adjustments.)
Interrogation - Request for Counsel
State v. Fischer,
2003 WI App 5 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)
In a decision authored by Judge Nettesheim, the court of appeals
affirmed Fischer's conviction for burglary. The first issue on appeal
concerned the sufficiency of Fischer's "invocation of the right to
counsel." In essence, Fischer argued "that when he told police that if
they read him his rights, he would not answer any questions and would
request an attorney, he was clearly and unequivocally demanding an
attorney" (¶13). The court rejected this argument. Prevailing case
law requires a clear and unambiguous request for counsel. Not every
"reference to an attorney" shuts down an interrogation or requires
officers to "clarify" the suspect's intent.
On the record before it, the court held that Fischer's "statement to
detectives that if the officers read him his rights he would not answer
any questions and would request an attorney is sufficiently ambiguous or
equivocal such that a reasonable officer in light of the circumstances
would have understood only that [he] might be invoking the
right to counsel" (¶19). Such a "conditional and futuristic request
for counsel" fell short of the "clear and unequivocal" request protected
by the Miranda doctrine.
The second, closely related, issue was whether Fischer's exchange
with police constituted a "custodial interrogation" that required that
police advise him of his Miranda rights and secure a valid waiver. The
Miranda doctrine defines "interrogation" according to the following
standard: "if an objective observer (with the same knowledge of the
suspect as the police officer) could, on the sole basis of hearing the
officer's remarks or observing the officer's conduct, conclude that the
officer's conduct or words would be likely to elicit an incriminating
response, that is, could reasonably have had the force of a question on
the suspect, then the conduct or words constitutes interrogation"
(¶27).
On this record, "the entire exchange" between Fischer and the officer
consisted of Fischer "asking about the evidence against him," and the
officer "merely responding to Fischer's questions, after which Fischer
would implicate himself" (¶33). Under the "unusual circumstances"
of this case, the officer's words and conduct in response to Fischer's
questions were not the functional equivalent of questioning.
Multiple Convictions Obtained Pursuant to Plea Agreement - Appeal of
Some But Not All Convictions - Scope of Appellate Review
State v. Lange,
2003 WI App 2 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)
The defendant had two unrelated cases pending against him at the same
time. The parties reached a plea agreement in which the state made
concessions in both cases. Pursuant to the plea agreement, the defendant
entered no-contest pleas and was found guilty in both cases. The
defendant subsequently pursued post-conviction relief in only one of the
cases, arguing that his no-contest plea was not voluntarily and
knowingly made. The circuit court denied the post-conviction motion.
In a decision authored by Judge Nettesheim, the court of appeals
reversed. It concluded that the defendant made a prima facie showing
that the plea colloquy was inadequate, because the trial court failed to
ascertain that the defendant understood the elements of the charged
offense at the time of the plea hearing. It remanded the case for
further proceedings in the circuit court to determine if the state can
demonstrate by clear and convincing evidence that the defendant's plea
was nevertheless knowingly and voluntarily entered. See State v.
Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). The court of
appeals held that if the state meets its burden at the remand
proceedings, the trial court shall reinstate the one conviction that was
challenged on appeal.
The court of appeals also concluded that if, on the other hand, the
state fails to satisfy its burden at the remand proceedings, the trial
court is authorized to vacate both judgments of conviction (including
the conviction not challenged on appeal) and to reinstate the original
charges against the defendant in both cases. The appellate
court recognized that no Wisconsin case has heretofore addressed the
appropriate remedy when, as in this case, the repudiated plea agreement
encompasses multiple judgments, some of which were not embraced by the
appellant's notice of appeal. However, because all of the defendant's
convictions stemmed from a single global plea agreement, the trial court
may vacate all of those convictions and reinstate all of the original
charges against the defendant.
In a footnote the court emphasized that, while it authorized the
trial court to vacate both judgments of conviction, it was not
"direct[ing]" the trial court to vacate the judgment that was not
appealed, should the trial court ultimately determine that the
defendant's plea in the appealed case should be withdrawn. The trial
court should consider the special circumstances of the case, including
both the defendant's and the state's interests, when deciding the scope
of the remedy. See ¶ 47 n.14 (citing State v.
Robinson, 2002 WI 9).
Employment Law
Wage Payments - Penalties
Hubbard v. Messer,
2003 WI App 15 (filed 3 Dec. 2002) (ordered published 29 Jan. 2003)
Hubbard alleged that his employer failed to pay his wages. The
Department of Workforce Development (DWD) initially concluded that the
employer owed Hubbard a total of about $3,900 in back pay. After being
pressed, the employer eventually paid the back wages to Hubbard, who
resolved the dispute outside of the DWD's administrative framework.
Hubbard later began a suit under Wis. Stat. section 109.11(2)(b) seeking
"penalty" wages, contending that under the statute penalties may be
assessed for the untimely payment of wages. The employer contended,
however, that no penalty could be assessed because the wages had been
paid (albeit late). The trial court agreed with Hubbard and assessed a
penalty equal to 70 percent of the late wages.
The court of appeals, in an opinion written by Judge Hoover,
reversed. The prime issue was the meaning of "wages due and unpaid" in
section 109.11(2)(b). Under Wis. Stat. chapter 109 an employee may
pursue administrative remedies through the DWD or pursue a private civil
action in the circuit court. The penalty structure of chapter 109
"encourage[s]" the administrative remedies. The court held that "under
the plain language of § 109.11(2)(b), penalties may only be applied
when wages are due and unpaid at the time an enforcement action is
commenced in court" (¶11).
The court noted that an unscrupulous employer "may with impunity
wrongfully delay paying earned wages," yet the holding was compelled by
the "unambiguous legislation" (¶12). The rule found some support in
a scenario in which an employer pays wages due and considers the matter
settled, "only to be sued months later by an employee who never
previously mentioned a penalty" (¶13). In short, the "DWD's
involvement is encouraged because the legislature trusts the DWD will be
able to resolve most claims or the employer and employee will be able to
settle their dispute without further court action or penalties"
(¶13). Although Hubbard had "ample opportunity to enforce the DWD's
rulings and collect penalties," he "chose not to seek the remedies
available to him" under the administrative framework. Once the employer
paid the back wages, Hubbard lost his "wage claim" and his access to
court-ordered penalties (¶17).
Evidence
Husband-Wife Privilege - Exceptions
State v. Richard
G.B., 2003 WI App 13 (filed 12 Dec. 2002) (ordered published 29
Jan. 2003)
The court of appeals affirmed the defendant's conviction on several
counts of child sexual assault involving a teenage girl. The primary
issue on appeal concerned the trial court's admission into evidence of
an incriminating statement made by the defendant to his wife. The
defendant said that admission of the statement was barred by the
husband-wife privilege. The trial court admitted it pursuant to the
exception for a proceeding in which one spouse is charged with a crime
against a third person that is "committed in the course of committing a
crime against the other" spouse.
The court of appeals, in an opinion authored by Judge Vergeront,
affirmed. The statement by the defendant to his wife concerned a
vibrator found in his car. According to the victim, the defendant stated
that it was for her, the victim. Later, the defendant told his wife that
the vibrator was intended for the wife. In any event, the statement was
privileged and inadmissible unless it fell within an exception to the
privilege.
Under section 905.05(3)(b), the court found it inconsequential
"whether the acts of the defendant that constitute a crime against a
third party [here, the girl] are the same acts that constitute a crime
against the spouse or different acts." Nor did it matter "whether a
crime against the spouse is the 'primary crime' rather than incidental
to, or a necessary by-product of, a crime against the third party. The
purpose of the third party exception in para. (3)(b) is best carried out
if committing a crime against one's spouse is interpreted to encompass
conduct that is both itself a crime against a third party and a crime
against one's spouse" (¶15).
The defendant's act of sexual intercourse with the girl (i.e., the
sexual assault) also constituted the felony of adultery, a crime against
his wife. "It may be that adultery is no longer prosecuted as a crime,
and that many people no longer view adultery as deserving of criminal
punishment. But adultery is nevertheless defined as a crime under the
statutes of this state" and thus constitutes a "crime" within the
meaning of the exception (¶16). (The defendant also appealed his
18-year sentence, which the court also affirmed.)
Family Law
Divorce - Stipulation Modifying Maintenance - Trial Court Approval
Required
Polakowski v.
Polakowski, 2003 WI App 20 (filed 17 Dec. 2002) (ordered
published 29 Jan. 2003)
The parties were divorced in 1999. Pursuant to a stipulation, the
court ordered the husband to pay maintenance to the wife. In 2001 the
husband filed a motion for modification, because his ex-wife was living
with another man with whom she was sharing expenses. The court modified
the maintenance obligation.
After the court entered the modification order, the parties continued
to negotiate further revisions to the maintenance order in lieu of the
husband filing an appeal. The wife's attorney notified the husband's
attorney in writing that the wife planned to accept the husband's
proposed terms, but the wife's attorney requested that the husband's
attorney prepare and forward the stipulation. However, the wife then
withdrew her consent to the stipulation. In the meantime, the time for
the husband to appeal the maintenance modification order expired. The
husband then filed a motion with the circuit court for an order to
enforce the stipulation the parties had agreed on. The circuit court
denied the motion and the court of appeals, in a decision authored by
Judge Hoover, affirmed.
A rule of civil procedure, Wis. Stat. section 807.05, provides that
no agreement, stipulation, or consent between parties or their attorneys
shall be binding unless it is made in writing and subscribed by the
party or the party's attorney. The husband argued that because his
ex-wife's attorney told his attorney in a letter that the wife would
agree to the proposed stipulation, this statute applies, and the wife is
bound to the stipulation.
The appellate court disagreed. The rules of civil procedure generally
govern practice and procedure in civil cases, except when a different
procedure is prescribed by statute or rule. See Wis. Stat.
§ 801.01(2). In this case the court concluded that the matter at
issue (a motion to modify maintenance) was an action affecting the
family and that the specific language of section 767.10(1), which
controls stipulations in divorces, should be applied. Section 767.10(1)
provides that the parties in an action for an annulment, divorce, or
legal separation may, subject to the approval of the court,
stipulate for certain matters like maintenance payments. Accordingly,
any agreement made by the parties after their divorce action was
commenced required the court's approval. The husband thus could not rely
on the more general provision of section 807.05 to compel his ex-wife's
compliance with their agreement to modify maintenance.
The husband also argued that the trial court's refusal to enforce the
stipulation, based solely on the wife's withdrawal of consent, was
erroneous. However, repudiation of consent to a stipulation may render
the stipulation nonexistent. A court's subsequent refusal to incorporate
the stipulation into the judgment cannot be said to be an erroneous
exercise of discretion.
Motor Vehicle Law
OWI - Search Warrant Not Required to Test Blood Sample Taken Without
Driver's Consent
State v. Riedel,
2003 WI App 18 (filed 26 Dec. 2002) (ordered published 29 Jan. 2003)
The defendant was arrested for OWI, and a sample of his blood was
drawn without his consent. He moved to suppress the analysis of his
blood sample, arguing that the police were required to obtain a search
warrant before submitting the blood sample for testing.
The court of appeals, in a decision authored by Judge Nettesheim,
rejected the defendant's argument. The court relied on Wisconsin
appellate opinions that stand for the proposition that "the examination
of evidence seized pursuant to the warrant requirement or an exception
to the warrant requirement is an essential part of the seizure and does
not require a judicially authorized warrant. [These decisions] refuse to
permit a defendant to parse the lawful seizure of a blood sample into
multiple components" (¶ 16 (quoting State v. Van
Laarhoven, 2001 WI App 275, ¶ 16)).
In this case the initial warrantless nonconsensual draw of the
defendant's blood was constitutional based on the exigent circumstances
exception to the warrant requirement of the Fourth Amendment. The
appellate court concluded that the subsequent analysis of the
defendant's blood was simply the examination of evidence obtained
pursuant to a valid search, and that no search warrant was necessary to
conduct that further examination.
Real Property
Residential Leases - Attorney Fee Clauses - Enforceability
Dawson v.
Goldammer, 2003 WI App 3 (filed 4 Dec. 2002) (ordered published
29 Jan. 2003)
As succinctly noted by the court of appeals, "[t]his case presents
the natural corollary to Baierl v. McTaggart, [2001 WI 107],"
in which the "supreme court held that a landlord who includes an
attorney fee provision in a residential lease, which is specifically
prohibited by Wis. Admin. Code § ATCP 134.08(3), may not enforce
the terms of a lease against tenants who had prematurely abandoned the
rental property." Unlike Baierl, in which a landlord sought to
recover lost rent from a tenant, this case concerned tenants who sought
to enforce against the landlords a lease containing a similar attorney
fee provision. The trial court ruled that the attorney fee provision
"voided" the lease, rendering it unenforceable by either party.
The court of appeals, in an opinion written by Judge Brown, reversed.
First, scrutinizing Baierl and the purpose behind the ATCP
regulation, the court held "the prohibition on attorney's fees clauses
is intended to protect tenants, and thus, a tenant could seek
enforcement of a lease containing such a clause" (¶9). Indeed,
"[t]o refuse to allow a tenant in this situation to enforce the lease
would stand the rationale of the Baierl decision on its head by
punishing the class the regulation is intended to benefit and permitting
the landlord to unfairly reap the benefit of the clause's inclusion"
(¶9). Nonetheless, the tenants could not have "the best of both
worlds" (¶10). Although "a landlord cannot seek damages for
abandonment of a lease that has an ATCP violation, a tenant who seeks to
prospectively enforce the lease has waived his or her rights pursuant to
Baierl in the event of a breach on the part of the tenant"
(¶11).
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