Vol. 78, No. 7, July 2005

Court of Appeals Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Criminal Law Criminal Procedure Family Law

Insurance Worker's Compensation

Criminal Law

Attempted Armed Robbery - Party Liability of Conspirators

State v. Jackson, 2005 WI App 104 (filed 15 March 2005) (ordered published 25 May 2005)

The defendant was charged with and convicted of being a party to the substantive crime of attempted armed robbery. The theory of liability was that he was a conspirator in the commission of the crime. See Wis. Stat. § 939.05(2)(c). On appeal the defendant argued that he had been convicted of "conspiracy to attempt" and that this is a nonexistent crime.

In an opinion authored by Judge Fine, the court of appeals disagreed. The defendant was not charged under the inchoate conspiracy statute (Wis. Stat. § 939.31), but rather was charged with attempted armed robbery as a party, with the theory of party liability being that he was a conspirator pursuant to Wis. Stat. section 939.05(2)(c). "There is a distinction between conspiracy as a substantive inchoate crime under sec. 939.31, and conspiracy as a theory of prosecution for a substantive crime under sec. 939.05(2)(c), and this distinction is significant here" (¶ 10). The crime of conviction in this case was attempted armed robbery. Conspiracy was but the theory for the defendant's liability for being a party to that attempted armed robbery. Accordingly, the circuit court did not err in instructing the jury about the conspiracy theory of party-to-a-crime complicity.

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Criminal Procedure

Guilty Pleas - Truth-in-Sentencing - Failure of Court to Inform Defendant Regarding Nonexistence of Parole and Good Time Under Truth-in-Sentencing

State v. Plank, 2005 WI App 109 (filed 19 April 2005) (ordered published 25 May 2005)

The defendant appealed from a judgment of conviction for substantial battery and from an order denying his motion for postconviction relief. Among other things he argued that he was entitled to withdraw his no contest plea because the circuit court failed to explain that, under the truth-in-sentencing laws, he would not be eligible for early release or be given good-time credit. In a decision authored by Judge Peterson, the court of appeals affirmed.

The appellate court first had to determine whether the defendant met his burden of showing that the lack of good time or parole under the truth-in-sentencing laws is "a potential punishment" of which the court was required to inform him. "A defendant does not understand 'the potential punishment' if the defendant is not informed of the direct consequences of a plea. However, the circuit court need not inform a defendant of collateral consequences of a plea. Direct consequences have 'a definite, immediate, and largely automatic effect on the range of a defendant's punishment.' The distinction between direct and collateral consequences essentially recognizes that it would be unreasonable and impractical to require a circuit court to be cognizant of every conceivable consequence before the court accepts a plea" (¶ 13) (citations omitted).

In making his argument the defendant relied on State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. In Byrge, the circuit court sentenced the defendant to life imprisonment and, under the law in existence at the time, was required to make a parole eligibility determination. The court chose a parole eligibility date that exceeded Byrge's life span and thus assured that he would never be paroled. Byrge sought to withdraw his plea because the circuit court failed to inform him that the maximum sentence he faced was not merely life in prison with the possibility of parole but effectively life without the possibility of parole. On appeal the supreme court concluded that the circuit court's authority to establish the parole eligibility date was a direct consequence of Byrge's plea because parole eligibility in that discreet situation implicated punishment and increased the maximum penalty.

In the present case the defendant was not "ineligible" for parole or good time - rather, there simply is no parole or good time under the truth-in-sentencing laws. Wisconsin eliminated parole and good-time credit when it adopted its truth-in-sentencing system. Said the court, "at most, the [defendant's] complaint is that he misunderstood the law concerning a collateral consequence of his plea" (¶ 17). A misunderstanding of a collateral consequence is not a basis for plea withdrawal.

Miranda - Noncustodial Interrogation - Anticipatory Invocation of Miranda Rights

State v. Hassel, 2005 WI App 80 (filed 15 March 2005) (ordered published 29 April 2005)

On the evening of May 7, 2002, police officers came to the defendant's home and spoke to the defendant about recent fires. Several times the defendant told the officers, "I can't talk to you." One of the officers testified that he did not consider these statements to be attempts by the defendant to invoke the defendant's Mirandarights, because the parties continued to talk. The officer testified that "[h]e asked us questions and we asked him." The officer further testified that he did not give Miranda warnings because the defendant was not in custody. At the conclusion of the conversation, the officers arrested the defendant and took him to jail. The defendant was told that the officers would be back to talk to him the next morning.

At 9 a.m. on May 8, the same two officers, accompanied by a state agent, returned to interview the defendant. The officers indicated they wanted to speak to him about his chemical dependencies and his problem of starting fires. One of the officers read the defendant his Mirandarights, and the defendant signed an acknowledgment and waiver form. He also stated something to the effect of "I don't know if I should talk to you," but during the subsequent three-hour interview, he never asked to have the questioning stopped. During the interview, he made incriminating statements.

The defendant filed a motion to suppress his incriminating statements, contending that he had invoked his right to silence on May 7 and that this right was violated by the continued questioning on May 8. The circuit court denied the motion. In a decision authored by Judge Hoover, the court of appeals affirmed.

The defendant argued that he invoked his right to remain silent after he was arrested. He argued in the alternative that the police knew on May 7 that he intended to invoke the right and by interrogating him on May 8, they failed to "scrupulously honor" this prior invocation. The appellate court disagreed with both arguments.

The court rejected the defendant's contention that the police failed to "scrupulously honor" his May 7 invocation of his right to remain silent. The court held that the defendant could not preemptively invoke that right on May 7 because he was not then being subjected to custodial interrogation and Miranda safeguards apply only to custodial interrogations (see ¶¶ 8-9).

The court also concluded that the defendant's statement on May 8 that "I don't know if I should talk to you" was ambiguous and not a clear invocation of the right to remain silent. The statement did not indicate the defendant's desire to remain silent, only his uncertainty as to whether he should remain silent (see ¶ 19).

In sum, the defendant was not entitled to anticipatorily invoke the right to remain silent on May 7 because he was not in custody at that time. He also failed to unambiguously articulate his invocation of the right to remain silent on May 8 (see ¶ 21). Accordingly, the court of appeals held that the circuit court correctly denied the suppression motion.

Sentencing - Defendant's Youth as Sentencing Factor

State v. Davis, 2005 WI App 98 (filed 8 March 2005) (ordered published 25 May 2005)

The defendant was found guilty of four counts of second-degree sexual assault for committing what the trial court described as "a vicious, predatory, animalistic, dehumanizing attack on an unsuspecting victim" (¶ 17). The defendant was 14 years old at the time of the offenses. The trial court imposed lengthy sentences. On appeal, one of the issues was whether the trial court erroneously exercised its discretion by failing to take into account the defendant's age at the time of the crimes. In a decision authored by Judge Wedemeyer, the court of appeals affirmed.

The court said that it is well established that trial courts must consider three primary factors in passing sentence: the gravity of the offense, the character of the defendant, and the need to protect the public. The weight to be given to each of these factors is a determination particularly within the trial court's discretion and, after consideration of all relevant factors, the sentence may be based on any one of the three primary factors. The court may also consider additional factors in arriving at a sentence. A defendant's age is one of these secondary factors (see ¶¶ 13-14).

"The trial court is not required to consider a defendant's age because it is a secondary factor; moreover, even if age is addressed, the trial court determines whether it should carry any weight" (¶ 18). The court of appeals noted that the sentencing record made clear that the trial court was aware of the defendant's young age, but that the court determined that the defendant's youth did not significantly mitigate the appropriate sentence. After considering the facts and circumstances pertinent to the defendant's crimes, the trial court gave the severity of the crime the most weight. The trial court also concluded that the defendant had a very poor character, which was evidenced in part by his refusal to accept responsibility for his actions despite the undisputable DNA evidence that linked him to these crimes. The trial court also found that the defendant's refusal to acknowledge responsibility was relevant to the risk that he would commit future acts and that the need to protect the community from him was extremely high. "Clearly, the trial court determined that the three primary factors outweighed any mitigating effect that the young age may have offered. This did not constitute an erroneous exercise of discretion" (¶ 19).

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Family Law

Divorce - Property Division - Divisible and Nondivisible Property

Derr v. Derr, 2005 WI App 63 (filed 17 March 2005) (ordered published 29 April 2005)

Michael and Martha Derr were married in 1990. In 1994 Michael's parents gave him a 27-unit apartment building that was titled solely in Michael's name. In 1999 Michael and Martha obtained a $300,000 mortgage equity loan, using Michael's apartment building as collateral, and used the money for the benefit of the marriage. The mortgage note indicated that the loan was made to both Michael and Martha, and mortgage payments were made with marital funds. At the time of Michael and Martha's divorce, the outstanding principal balance on the mortgage loan was $282,935 and the apartment building's fair market value was $905,000.

During the marriage, Michael managed the 27-unit apartment building and other smaller properties. In the divorce judgment, the circuit court categorized the apartment building and the mortgage debt as Michael's nondivisible asset and nondivisible debt. On appeal Martha argued that the court improperly categorized the apartment building as Michael's nondivisible property. Michael argued that the court improperly characterized the mortgage debt on the apartment building as nondivisible. In a decision authored by Judge Lundsten, the court of appeals concluded that the circuit court correctly categorized the apartment building as Michael's nondivisible property, but that the court should have deemed the mortgage debt a divisible debt.

The general rule in Wisconsin is that assets and debts acquired by either party before or during the marriage are divisible upon divorce. There is a statutory exception for property acquired by gift or by reason of death or with funds acquired by gift or by reason of death. See Wis. Stat. § 767.255(2)(a). The categorization of property as nondivisible under section 767.255(2)(a) does not necessarily dictate how such property will be treated when the court divides divisible property. Under some circumstances courts may divide property to avoid "hardship" or inequities that might result from according the property nondivisible status.

The court began its analysis in this case by discussing terminology: "In our case law addressing whether property is subject to division under Wis. Stat. § 767.255(2)(a) we often speak of 'identity' and 'character' as if they constitute a complete two-pronged analysis. However the 'identity' and 'character' inquiries do not comprise a test. Instead, they are labels for two distinct inquiries - tracing and donative intent - that may or may not fully resolve the divisible status of property at the time of a divorce" (¶ 14).

The identity inquiry addresses whether the gifted or inherited asset has been preserved in some present identifiable form so that it can be meaningfully valued and assigned. Thus, the identity inquiry is purely a matter of tracing, i.e., of determining the value and source of an asset or the value and source of a part of an asset. "Tracing is nothing more than the exercise of following an asset trail. Tracing does not, by itself, resolve whether an item is divisible under Wis. Stat. § 767.255(2)(a), unless tracing is either the only disputed issue or the party asking the court to declare an asset non-divisible is unable to provide evidence that permits the tracing of an identifiable part of the asset to an original non-divisible asset" (¶ 22).

The character inquiry, as it pertains to section 767.255(2)(a), involves no more and no less than determining whether the owning spouse intended to donate nondivisible property to the marriage, i.e., did the owning spouse have donative intent. "Donative intent is ultimately a question of subjective donative intent" (¶ 25). When an owning spouse acts in a manner that normally would evince an intent to give property to the marriage, donative intent is presumed, subject to rebuttal by sufficient countervailing evidence.

"Circumstantial historical facts may give rise to the legal presumption that an owning spouse gifted property to the marriage. This presumption arises if the owning spouse acts in a manner that would normally evince an intent to gift. However, because donative intent is ultimately a question of subjective donative intent, other evidence may persuade a circuit court that the owning spouse consciously considered the matter and subjectively intended that gifting not occur. In this circumstance, donative intent is lacking and the property remains non-divisible. At the same time, circuit courts are not obliged to accept the testimony of an owning spouse about his or her subjective thoughts. If a circuit court makes an express factual finding that a spouse consciously did intend to gift or consciously intended no gift, we will accord that finding deference. If the court does not make an express factual finding, we will normally assume fact finding consistent with the court's ultimate decision. For example, if the record contains evidence of subjective thoughts tending to rebut a presumption of donative intent, if the circuit court makes no express findings regarding this rebuttal evidence, and if the circuit court determines there was a gift, then we will normally assume the circuit court implicitly found the rebuttal evidence lacking in credibility" (¶ 40).

In this case the court of appeals concluded that the apartment building was properly categorized as Michael's nondivisible property. The parties agreed that the apartment building was Michael's nondivisible asset when he received it as a gift from his parents during the marriage. But they disputed whether the mortgage transaction and repayment of the mortgage debt with marital funds had the effect of converting the building to divisible property. The court concluded that they did not. "[W]e reject Martha's argument that mortgage payments made with marital funds created equity in the apartment building belonging to the marriage" (¶ 59). With regard to donative intent, the court concluded that, "without more, Michael's act of putting the property at risk by using it as collateral for a marital loan does not create a presumption that the owning spouse intended to donate part or all of the property to the marriage" (¶ 62).

With respect to the mortgage debt, the appellate court concluded that it is divisible because it is not exempt from division under section 767.255(2)(a). "It is true that Michael made the loan possible by putting equity in his apartment building at risk, but he did not in any meaningful sense 'acquire' the debt with 'funds acquired' from the gifted building from his parents, as those terms are used in § 767.255(2)(a)3. We stress the limited nature of our holding. In this case, a gifted non-divisible asset was used as collateral for a loan. The marriage acquired an asset, $300,000 cash, and a debt of equal value. It was undisputed that the loaned money was used for the benefit of the marriage, that both parties were liable for the debt, and that marital funds were used to make payments on the debt. Under these circumstances, the debt is divisible" (¶¶ 48-49).

Uniform Interstate Family Support Act - Discovery - Sanctions

Halko v. Halko, 2005 WI App 99 (filed 13 April 2005) (ordered published 25 May 2005)

The parties were married and later divorced in Illinois. The mother was awarded custody of the three minor children, and the father was ordered to pay child support. After the divorce, the father moved to Wisconsin and the mother moved to Florida. Several years later the state of Florida filed a request to have the divorce judgment registered in Wisconsin for the purposes of enforcing the child support award. (The father allegedly was substantially in arrears on child support payments). The father objected to the registration of the divorce judgment and presented to the family court commissioner evidence of a defense against registration. However, he was unable to gather additional evidence necessary to complete his defense because he could not get the mother to attend a deposition in Wisconsin. The circuit court then granted his motion to dismiss for discovery violations.

The first question on appeal was whether Wis. Stat. section 804.12, which allows a court to dismiss an action as a sanction for discovery violations, applies to actions involving a contest of registration or enforcement of child support orders pursuant to Wis. Stat. section 769.607, which is part of the Uniform Interstate Family Support Act. In a decision authored by Judge Brown, the court of appeals concluded that circuit courts have both statutory and inherent authority to dismiss a case for discovery violations. The court rejected the state's argument that the sanction of dismissal for violations of discovery rules is unavailable to a circuit court in a Wis. Stat. chapter 769 proceeding (see ¶ 13).

"Although the foregoing reveals that dismissal can be a permissible sanction for noncompliance with a discovery order, this harsh penalty is appropriate only in extraordinary circumstances. The circuit court should not consider it without first determining that the violating party's noncompliance constituted egregious conduct" (¶ 14). The court of appeals reversed the decision and remanded the case to the circuit court to either determine whether egregious conduct occurred in this case or to fashion other appropriate relief that does not require such a finding.

Child Support - Gross Income - Undistributed Profits From Minority Interest in S Corporation

Winters v. Winters, 2005 WI App 94 (filed 13 April 2005) (ordered published 25 May 2005)

The parties divorced in 1993. Pursuant to the marital settlement agreement, the father is obligated to pay 25 percent of his gross income as child support for his two children. At the time of the divorce, the father owned 200 shares of stock in Precision Color Graphics Inc. (PCG), which were awarded to him in the settlement agreement. The settlement agreement provided that dividends, distributions, or proceeds from the sale or redemption of this stock would be divided, with the father receiving 90 percent and each of the children receiving 5 percent.

The father has a 10 percent minority ownership interest in PCG. PCG is an S corporation and therefore taxes are paid by the shareholders. PCG retains all of its earnings, distributing cash to allow shareholders to pay the tax liability created by the earnings. Pursuant to PCG's stock redemption agreement, the father is permitted to sell his stock. However, as a minority shareholder, he has no power to force distribution of the company's retained earnings.

In this proceeding the mother sought judicial review of the father's child support obligation. She contended that he improperly excluded investment profit when calculating his child support obligation. The circuit court ruled in the father's favor, holding that neither the proportionate share of net profits from his PCG investment nor the cash distributions paid to him should be considered income available for child support purposes, and that the children's share of the PCG proceeds should be distributed on final sale or redemption of the stock. In a decision authored by Judge Snyder, the court of appeals affirmed.

In Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App. 1997), the court had held that two factors must be considered when determining whether undistributed partnership profits should be included in the calculation of a payer's child support obligation. The first factor is whether the child support payer has the ability to individually control or gain access to the undistributed earnings. The second factor is whether the company has a valid business reason for retaining the earnings. In this case it was undisputed that the father is a minority shareholder in PCG and does not have the ability to individually control or access undistributed earnings. Therefore, the first Weis condition was not satisfied. Because both Weis conditions must be present for the court to consider undistributed earnings for child support purposes, the court did not address the second factor.

[Editors' Note: The appellate court did not address the mother's argument that the cash distribution by PCG to its shareholders for payment of taxes on the undistributed earnings should be considered income available for child support purposes. The reason given by the court was that this argument was not developed in the briefs nor supported therein by legal authority. See ¶ 13.]

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Insurance

Subrogation - HMO

Torres v. Dean Health Plan Inc., 2005 WI App 89 (filed 21 April 2005) (ordered published 25 May 2005)

After Torres was injured in a car accident, her health maintenance organization, Dean HMO, provided her with medical services. Dean HMO later asserted a subrogation interest when Torres settled with the third-party tortfeasor. Torres paid Dean HMO and then filed this lawsuit, "arguing that Wisconsin statutes prohibit HMOs from exercising subrogation rights" (¶ 2). The circuit court granted Dean HMO's motion to dismiss.

The court of appeals, in a decision authored by Judge Lundsten, affirmed. "The central question is whether Wis. Stat. §§ 609.01 and 609.91 (2003-04) prohibit HMOs from asserting contractual subrogation rights with respect to actual medical expenses incurred by an HMO for medical care covered by the HMO's contract with its enrollee" (¶ 8). The court held that nothing in section 609.01 prohibited the HMO's subrogation claim. More precisely, section 609.01(2) "does not put in place a general limitation on all sources of funds available to HMOs. The statutory language is plain as applied here; it does not even arguably state that HMOs may receive funds only in the form of 'predetermined periodic fixed payments.' Instead, this language differentiates HMOs from other traditional health care insurers by specifying, among other things, that HMOs must provide 'comprehensive health care services' in return for 'predetermined periodic fixed payments'" (¶ 10).

Nor did section 609.91 affect this conclusion. "Section 609.91 does impose limits, but not any limits that conflict with an HMO's exercise of subrogation rights" (¶ 11). Rather, it is "replete with language immunizing enrollees and limiting their liability. The statute does not speak to the sources of funds available to HMOs, except to the extent that it limits funds HMOs may obtain from enrollees" (¶ 13). Finally, the court rejected the contention that "HMOs are collecting funds from enrollees when they enforce subrogation rights" (¶ 14). Specifically, HMOs are not "collect[ing] twice for the same service" when they assert subrogation rights (¶ 18).

The court addressed several other arguments relating to the same issue. First, this case is not controlled by Dorr v. Sacred Heart Hospital, 228 Wis. 2d 425, 597 N.W.2d 462 (Ct. App. 1999), in which the court of appeals held only that a medical provider "had no right to a lien against the HMO enrollee with respect to medical services covered by the enrollee's HMO plan because the enrollee owed no debt to the provider" (¶ 22). Second, the court was not persuaded by a Maryland case (see ¶¶ 24-31). Finally, it also found unpersuasive Torres' "fact-specific argument" that related to the timing, method, and manner of payment (see ¶¶ 32-34).

Primary Coverage - Umbrella Policy - "Drop Down" Provision

Hansen v. Degnitz, 2005 WI App 90 (filed 27 April 2005) (ordered published 25 May 2005)

Hansen, a high school athlete, was injured when the school bus on which he was a passenger was involved in an accident. A dispute soon arose between the insurance carriers for the bus company and the school district. By the time Hansen filed his lawsuit, the bus company's insurer had settled with another injured plaintiff and thereby exhausted its primary liability policy. "But the bus company's insurer had also issued an umbrella policy with a provision stating that, in the event exhaustion occurs, the umbrella policy replaces the exhausted primary policy. This provision is known in the insurance industry as a 'drop down' provision, and the trial court held that the 'drop down' made the bus company's umbrella policy, not the school district's business auto policy, the 'next layer of liability'" (¶ 1).

The court of appeals, in an opinion written by Judge Brown, affirmed. "We do not see how an umbrella policy can purport to 'replace' primary coverage without affording primary coverage and losing its character as an umbrella policy. Yet, that is exactly what other terms in the policy - to which the 'Limits of Liability' section purports to make the exhaustion clause subject - appear to contemplate. The 'Conditions' section of the policy includes an 'other insurance' condition. This section reads: 'The insurance afforded under this policy shall apply as excess insurance over other collectible insurance (other than insurance applying as excess to our limit of liability) available to the insured and covering ultimate net loss covered by this insurance.' Obviously, this condition was designed to make clear that the umbrella policy was in fact meant to be an umbrella policy. However, the intent of the exhaustion clause is to turn the policy into a primary policy when the primary policy is exhausted. We simply cannot give simultaneous effect to both provisions. Because we must resolve this ambiguity in favor of coverage, we hold the policy to say that when exhaustion of the auto policy occurs, the excess clause no longer applies and the umbrella policy morphs into a primary policy" (¶ 11). The court also reconciled its holding with other language in the limits of liability section regarding scheduled and unscheduled underlying insurance (see ¶ 13).

UIM Coverage - Reducing Clauses

Klinger v. Prudential Prop. & Cas. Ins. Co., 2005 WI App 105 (filed 20 April 2005) (ordered published 25 May 2005)

David Klinger was killed in a car accident caused by an underinsured driver. In the ensuing litigation, the circuit court granted declaratory relief that upheld the validity of the underinsured motorist (UIM) reducing clause provision in the decedent's Prudential insurance policy.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The appellants contended that the reducing clause was unenforceable, relying on Hanson v. Prudential Property & Casualty Insurance Co., 2002 WI App 275. The court of appeals held, however, that Hanson "no longer states the current law on this issue" (¶ 2). "In Hanson, we construed similar UIM reducing clauses in a Prudential insurance policy to say that 'the insured's UIM coverage would be reduced by payments from any and every source, rather than the three allowed by statute.' We thus held that the reducing clauses did not comply with Wis. Stat. § 632.32(5)(i) and, as such, the reducing clause provisions did not clearly inform the insured of the level of UIM coverage actually purchased. Relying on the supreme court's then recent decision in Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, we went on to conclude that even if the reducing clause had conformed to § 632.32(5)(i), it was not 'crystal clear' within the context of the whole policy" (¶ 11) (citations omitted).

The following year, in Folkman v. Quamme, 2003 WI 116, the supreme court "clarified the 'crystal clear' standard" and stated that it "did not intend Schmitz to alter the standard of review for whether an automobile insurance policy is ambiguous" (¶ 12). In sum, the law does "not demand perfection in policy draftsmanship" (id.). Moreover, the "actual facts," not "hypothetical scenarios," must guide the trial court's analysis.

The court then considered, and rejected, the appellants' sundry attacks on the reducing clauses' validity. Since most of these arguments were predicated on the now superseded Hanson opinion, "the controlling law on that issue largely foretells our rejection of [that] argument" (¶ 15).

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Worker's Compensation

Exclusive Remedy - Coemployees - Municipalities

Keller v. Craft, 2005 WI App 102 (filed 12 April 2005) (ordered published 25 May 2005)

The plaintiff, a city firefighter, was injured while on duty when his vehicle collided with one driven by an on-duty police officer. Although the plaintiff received worker's compensation benefits, he sued the city and the police officer for additional compensation. The defendants moved to dismiss under the exclusive remedy provision of the Worker's Compensation Act, but the plaintiff argued that his case fell within a coemployee exception, "which permits an employee to file suit 'against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.'" Wis. Stat. § 102.03(2) (2003-04). In a prior appeal, the court of appeals had reversed a grant of summary judgment in the city's favor and remanded because a city "ordinance" fit within the exception. See 2003 WI App 212. On remand, the city filed a second summary judgment motion, in which the city contended that the "ordinance" in question had never been formally adopted by the common council. The trial court denied the motion based on the earlier appeal.

The court of appeals, in a decision authored by Judge Wedemeyer, reversed. The first appeal did not address whether this "city charter" provision constituted an "ordinance." Enacted by the legislature in 1913, the provision was part of the city charter but had never been voted on by the common council, as is required for ordinances (see ¶¶ 7-8). Moreover, the provision appears in the binder containing the city charter but not in the three-volume published set of city ordinances (see ¶ 9). Finally, understandable mistake or inadvertence explained the city's failure to make this argument in its first appeal; thus, judicial estoppel did not foreclose the city's renewed motion (see ¶ 10).

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