Vol. 76, No. 5, May 2003

Court of Appeals Digest

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

Civil Procedure Criminal Procedure Guardians Insurance Workers' Compensation

Real Property Motor Vehicle Law Taxation Torts

Civil Procedure

Injunctions - Banishment

Predick v. O'Connor, 2003 WI App 46 (filed 22 Jan. 2003) (ordered published 26 March 2003)

The court of appeals upheld an order that banished the defendant, O'Connor, from Walworth County. Conceding that the "knee-jerk reaction" might be to dismiss such a remedy as something worthy of a "Grade-B cowboy movie," the court explained that the remedy made "a lot of sense" in the context of the bitter, dangerous feud that erupted between the plaintiffs and O'Connor. O'Connor twice used her automobile as a weapon, once running off the road a car containing the business partner of one of the plaintiffs, as the business partner drove various children, including the plaintiffs' daughter, to soccer practice and once attempting to "side swipe" one of the plaintiffs as she ran along a road. (¶1)

Earlier disputes had resulted in a 1999 stipulation and order that, in essence, required both sides to have no contact with one another. Later contempt proceedings to enforce the 1999 agreement proved unavailing. In late 2001 the circuit court found that O'Connor had violated the agreement by trying to run the business partner's car off the road and by violating the "purge conditions" of the earlier contempt finding (¶7). The judge ordered that O'Connor could not be present in Walworth County unless her presence related to a court appearance (¶8).

The extant authority provides that "banishment is not a per se constitutional violation" (¶18). Rather, geographic restrictions must be tailored to the facts of the case. O'Connor did not live or work in Walworth County, yet she often rented cars and drove in the county. More troubling, O'Connor has "an absolute fixation" on the plaintiffs and the business partner. The court found that if "O'Connor were even in Walworth county, she would be tempted to prey upon her victims" (¶19).

Judge Anderson concurred and wrote separately to emphasize that the banishment order was meant to control O'Connor's behavior and was amply supported by the record.

Criminal Procedure

Arrest of Foreign Nationals - Vienna Convention - Consular Notification

State v. Navarro, 2003 WI App 50 (filed 19 Feb. 2003) (ordered published 26 March 2003)

The defendant was arrested after a police investigation into drug-related activities. At the police station he was booked and interrogated after he acknowledged and waived his Miranda rights. At the booking, the police learned that the defendant was born in Mexico and confiscated his wallet, which contained his resident alien card. During the interrogation the defendant made a potentially incriminating statement. At no time did the police advise the defendant that he had the right to contact the Mexican consulate for assistance.

The defendant was charged with various felony drug offenses. He moved to suppress the statement he had made to the police on the ground that the police had violated his right to consular assistance under Article 36 of the Vienna Convention. The Vienna Convention is a multilateral treaty signed by more than 100 nations, including the United States and Mexico. The treaty governs the rights and functions of consular officers and the privileges and immunities associated with their positions. The defendant's argument relied on language appearing throughout Article 36 of the Convention, which protects the ability of consular officials from the nation of an arrested individual to communicate with a national detained in the arresting nation.

The trial court determined that suppression was not the appropriate remedy for a violation of the Vienna Convention's right of consular notification and denied the motion to suppress. The defendant subsequently pleaded guilty.

The court of appeals, in a decision authored by Judge Brown, affirmed. It concluded that "the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [the defendant] has no standing to assert any remedy pursuant to the Vienna Convention" (¶ 1).

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Prison Sentences - Inmates Serving Wisconsin Sentences in Private Out-of-State Prisons - No Special Credits Under Laws of Foreign Jurisdiction

State ex rel. Griffin v. Litscher, 2003 WI App 60 (filed 27 Feb. 2003) (ordered published 26 March 2003)

The defendant was convicted in Milwaukee County in 1992 and received a lengthy prison sentence. In 1999 he was transferred to a private prison in Oklahoma pursuant to a contract Wisconsin has with the prison operator. The defendant argued that he is entitled to certain statutory credits against his sentence that Oklahoma prison system inmates earn under Oklahoma law. He contended that he should receive the same credits for his confinement in Oklahoma, even though he is a Wisconsin prisoner.

In a decision authored by Judge Dykman, the court of appeals concluded that Wisconsin law - not Oklahoma law - determines the length of the defendant's sentence. That the defendant is currently housed in a facility in Oklahoma does not change the fact that he was sentenced by a Wisconsin court and remains in the custody of the Wisconsin Department of Corrections. "[The defendant's] transfer to Oklahoma does not trigger a change in his Wisconsin sentence" (¶ 17).

In sum, the court held that there is no support in the laws of either Wisconsin or Oklahoma for the conclusion that the defendant is entitled to statutory credits available to Oklahoma inmates under Oklahoma law for that portion of his sentence he serves while in the custody of the Wisconsin Department of Corrections but while physically housed in a private prison in Oklahoma.

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Auto Stops - Officer's Suspicion that Driver is Unlicensed

State v. Kassube, 2003 WI App 64 (filed 19 Feb. 2003) (ordered published 26 March 2003)

An officer stopped the defendant because he believed the latter did not have a driver's license. Evidence of drug possession was recovered during the stop. The defendant filed a motion to suppress the evidence, claiming it was recovered as a result of an unlawful stop.

At the suppression hearing, the officer testified that he had known the defendant for at least nine years and had never known him to have a driver's license. The officer said that he had last spoken with the defendant approximately 11 months earlier and the defendant did not then have a license. The circuit court denied the motion challenging the stop, and the defendant was convicted of drug possession.

The court of appeals, in a decision authored by Judge Peterson, affirmed. The court concluded that the totality of the circumstances described above provided a reasonable basis for the officer's suspicion that the defendant was driving without a license. "It was reasonable for [the officer] to believe that if [the defendant] had not obtained a license in nine to twelve years, he did not do so in the last eleven months and was likely to be driving without a license" (¶ 8). In reaching this conclusion, the court distinguished cases relied upon by the defendant, all of which dealt with temporary suspensions of licenses. In the latter situation, a driver may have regained his or her license at any time without the officer's knowledge.

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Guardians

Property - Medicaid Payback Trust

Marjorie A.G. v. Dodge County Dep't of Human Servs., 2003 WI App 52 (filed 27 Feb. 2003) (ordered published 26 March 2003)

Marjorie is the guardian for her son Scott, who is a mentally disabled adult. In 1992 the federal government awarded Scott about $360,000, in addition to a $6,000 monthly annuity, under the Vaccine Compensation Act. Marjorie deposited the lump sum and monthly payments into Scott's trust, which had been established for this purpose in 1991. In 2001 Marjorie petitioned the court "to retroactively authorize these transfers of Scott's property to the trust" and explained that she had not "accounted for these payments as guardianship assets because she viewed them as 'deposits to the Trust' for which she was a mere 'conduit', and because the court had notified her that she could discontinue annual financial reports as guardian because 'all Scott's income was being used for his care'" (¶3).

Scott's guardian ad litem supported the petition but the county objected, and the court concluded that it lacked the power to authorize a nunc pro tunc transfer dating back to 1992. Marjorie then filed a motion to reconsider, asking that all guardianship assets, past and future, be transferred to a trust "that meets all current Medical Assistance requirements." The court ruled that it lacked the power to authorize the transfer of future as well as past payments.

Marjorie appealed the last order. The only issue before the court of appeals was "whether a guardian may, with court approval, transfer a ward's assets to a 'Medicaid Payback Trust' as proposed by Marjorie" (¶10). Reversing the trial court, the court of appeals, in an opinion written by Judge Deininger, held that Wis. Stat. section 880.19(5)(b) "permits the proposed transfer because it is an 'exchange [of] property of the guardianship estate . . . for the purpose of . . . providing for the ward's care.'" (¶1). The "apparent purpose" of this provision "was to permit a court to effectuate an existing estate plan created by a ward prior to his or her incapacity, by allowing the court to transfer a ward's property to 'an existing revocable living trust created by the person.'" Such trusts may benefit not only the ward but also the ward's dependents "and a request for the transfer may come from 'a parent, the spouse, any issue or next of kin' of the ward, who presumably might benefit from the trust." (¶17) Nothing said in Michael S.B. v. Berns, 196 Wis. 2d 920, 540 N.W.2d 11 (Ct. App. 1995) conflicted with this conclusion, which also comported with persuasive authority from other jurisdictions.

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Insurance

Contribution - Different Interests - Owner and Lessee

Society Ins. v. Capitol Indem. Corp., 2003 WI App 61 (filed 4 Feb. 2003) (ordered published 26 March 2003)

After a fire at a restaurant, the restaurant's operator/lessee made a claim under a business owner's property and liability policy issued by Society Insurance. Society paid more than $41,000 as compensation and then sought contribution from Capitol Indemnity, which had issued a policy covering the building's owner for "Lessor's Risk." On motions for summary judgment, the trial court agreed that Society was entitled to contribution from Capitol, because the two policies covered the same interest, the same insured, and the same loss.

The court of appeals, in a decision authored by Judge Wedemeyer, reversed. The case raised an issue of first impression: "whether an insurer
for an owner/lessor of property is liable to pay contribution to the lessee's insurer for damages occurring to the property" (¶7).

Capitol asserted three reasons why it was not subject to contribution. First, Capitol contended that the policy was not in effect on the date of the loss because the owner/lessor had cancelled the policy after the fire, retroactive to the day before the fire. The court rejected this argument out-of-hand, because prior case law clearly establishes that "parties may not retroactively cancel a policy which potentially covers that loss" (¶11).

Capitol's second and third arguments were more persuasive, however. Contribution applies only when there is "double coverage," that is, when both policies "cover the same property, and the same interest in the property, against the same risk for the same insured" (¶13). Based on its review of the policies, the court held that there was no identity of insureds. Capitol's policy covered only the owner/lessor. Society's policy provided property damage coverage to the operator/lessee and liability coverage to both the owner/lessor and the operator/lessee (¶18).

Moreover, the policies insured different interests. The court found persuasive federal case law that distinguished between a landlord's interest in fee and a tenant's leasehold interest. The record here reflected that the trial judge had confused the concepts of "interest" and "risk." "The concept of risk involves the type of damage insured against - such as fire, calamity, catastrophe or liability .... Interest, on the other hand, addresses how the insured is connected to the property - such as fee simple versus leasehold, or seller versus buyer versus builder" (¶21). In sum, "the insurable interests between landlord and tenant are distinct" (¶23).

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Motor Vehicle Law

OWI - Stop Based on Reasonable Suspicion by Officer Acting Outside His Jurisdiction

State v. Keith, 2003 WI App 47 (filed 6 Feb. 2003) (ordered published 26 March 2003)

A police officer operating a marked squad car outside his jurisdiction observed driving behavior by the defendant sufficient to justify a temporary investigative stop for suspicion of drunken driving. The officer signaled to the defendant to pull over, and the defendant complied. All of these events occurred outside the officer's jurisdiction. [There was nothing in the record to suggest statutory authority for the officer to act outside his jurisdiction. For example, he had not been requested to assist officers of the jurisdiction where the stop occurred.]

After stopping the defendant, the officer was joined by a deputy sheriff, whose jurisdiction covered the location of the stop. Both officers made observations amounting to probable cause to arrest the defendant for OWI, and the deputy sheriff made the arrest. The defendant was transported to a hospital where a blood sample was obtained, which revealed an alcohol concentration of .173%. The defendant was subsequently convicted of OWI.

On appeal the defendant argued that the evidence obtained pursuant to the investigatory stop by the officer should have been suppressed, because the stop occurred outside the officer's jurisdiction and the officer had no authority to make the stop. In a decision authored by Judge Lundsten, the court of appeals disagreed. Suppression of evidence is only required when evidence has been obtained in violation of a defendant's constitutional rights or if a statute specifically provides for the suppression remedy. In this case, the court of appeals affirmed the trial judge's ruling denying the defendant's motion to suppress because, regardless of the defendant's arguments, he failed to allege the violation of a constitutional right or the violation of a statute requiring suppression as a remedy.

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Blood Draws Without Formal Arrest - Probable Cause to Search Blood for Evidence of Intoxication

State v. Erickson, 2003 WI App 43 (filed 16 Jan. 2003) (ordered published 26 March 2003)

The defendant crashed her truck into a vehicle, killing one occupant of that vehicle and seriously injuring another. She was questioned at the scene and then transported to a hospital for treatment of minor injuries. An officer directed hospital personnel to draw a blood sample from the defendant. At the time of the blood draw, the defendant had not been placed under arrest, the officer had not acquired a warrant, and the defendant had not given valid consent. The defendant's blood alcohol concentration was .103%. The defendant was arrested and charged with several crimes, including homicide by intoxicated use of a vehicle and causing injury by intoxicated operation of a vehicle.

The defendant moved to suppress the evidence obtained from the blood draw. She argued that suppression was warranted because police obtained the blood sample in violation of the requirements set forth in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). The circuit court denied the motion, and the defendant was subsequently convicted of the two crimes identified above.

In Bohling, the supreme court held that evidence resulting from a warrantless nonconsensual blood draw, taken at the direction of a law enforcement officer, is admissible under the following circumstances: 1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is a reasonable one and is performed in a reasonable manner; and 4) the arrestee presents no reasonable objection to the blood draw.

Here the question was whether probable cause to search for evidence of blood alcohol can be a substitute for a formal arrest under the first Bohling prong. In a decision authored by Judge Lundsten, the court of appeals held that, in the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling. Further, the same probable cause necessarily satisfies the second Bohling prong, because the probable cause standard is more demanding than the "clear indication" standard utilized in Bohling.

The appellate court then analyzed the specific evidence available in this case and concluded that there was probable cause to believe that the defendant's blood contained evidence of a drunk-driving-related offense and that the circuit court properly denied the defendant's motion to suppress evidence obtained from the blood draw.

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Real Property

Fences - Viewing - Remedy

Tomaszewski v. Giera, 2003 WI App 65 (filed 4 Feb. 2003) (ordered published 26 March 2003)

The plaintiff and the defendant own adjoining land in Taylor County. When a dispute arose over repairing a fence between the properties, the plaintiff hired two "fence viewers," who found that the defendant had not "built his share" (¶4). The plaintiff hired workers to construct the defendant's part of the fence and then submitted a bill for $2,400. The defendant, who was the town chair, told the fence viewers, who were town supervisors, that the bill was "too high" and that the plaintiff had not properly built his part of the fence. On a second viewing, the fence viewers found that the fence was not built to the proper midpoint, that each owner should have been responsible for 1,100 feet, and that the defendant owed the plaintiff only about $950 for the fence, not $2,400.

The defendant offered to pay the $950, but the plaintiff filed a small claims action to recover his actual cost of building the fence. On summary judgment, the trial court rejected the defendant's contention that Wis. Stat. section 90.11 eliminated any right to appeal the fence viewers' determination and offered the exclusive remedy, namely, payment by the town to the complaining party. After a bench trial, the judge found the defendant responsible for 1,100 feet of the fence and ordered him to pay the plaintiff about $2,000.

The court of appeals, in an opinion written by Judge Cane, reversed. The court noted first that "the legislature did not intend to allow an aggrieved party to seek enforcement of the fence viewers' determination in circuit court because the statute once allowed this remedy, but no longer does" (¶16). The present collection process has been in place since the statute's amendment in 1915.

The court disagreed, however, with the trial court's holding that there is no right to appeal the fence viewers' findings. Since "[a] municipality's fence viewers are the members of its governing council," it thus followed that "a determination by the fence viewers would be an action of a board subject to common law certiorari review" (¶17). Under this form of review, and unlike administrative reviews generally, "the circuit court does not take evidence of the merits of the case, and the scope of review is limited to the record presented to the tribunal whose decision is under review" (¶18).

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Taxation

Property Taxes - Challenging Denial of Tax Exemption for Educational or Benevolent Associations

TOPS Club Inc. v. City of Milwaukee, 2003 WI App 62 (filed 4 Feb. 2003) (ordered published 26 March 2003)

TOPS Club Inc. submitted a property tax exemption request to the city of Milwaukee pursuant to Wis. Stat. section 70.11(4), which, among other things, exempts from general property taxes property that is owned and used exclusively by educational or benevolent associations. The city assessor denied the request, and TOPS paid the taxes "under protest." TOPS then filed against the city a declaratory judgment action, which the circuit court dismissed because declaratory judgment actions are not permitted for purposes of challenging a denial
of this type of exemption. See Wis. Stat. § 74.35(2m).

In a decision authored by Judge Fine, the court of appeals affirmed. Section 74.35(2)(a) establishes a procedure whereby a person aggrieved by the levy and collection of an unlawful tax assessed against his or her property may file a claim against the taxation district to recover the unlawful tax. TOPS did not follow this procedure. Rather, it pursued relief through a declaratory judgment action, which, as noted above, is not authorized for challenging the denial of the exemption. The court rejected TOPS' argument that it did not have to comply with the procedure mandated by the statutes because the tax levy was void ab initio and thus a declaratory judgment was appropriate.

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Torts

Recreation Immunity - City-Owned Park - "Sponsorship" Exception

Miller v. Wausau Underwriters Ins. Co., 2003 WI App 58 (filed 5 Feb. 2003) (ordered published 26 March 2003)

Mark Miller, a minor, was seriously hurt when a soccer goal fell and struck his head during a practice at a city-owned park. Mark and his parents sued the city for failing to properly maintain and anchor the goal. The trial court granted summary judgment in the city's favor based on the recreational use immunity statute, Wis. Stat. section 895.52.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. The primary issue concerned whether the city "lost its immunity" under the "sponsorship" exception provided in section 895.52(1)(g). Case law establishes that the term "sponsor" "necessarily contemplates a relationship between the person or organization paying for or planning the project or activity and the intended beneficiary of such sponsorship" (¶17). The court held that the statute's language and legislative intent and relevant case law precluded the plaintiffs from "piggybacking" their claim on any sponsorship relationship that might exist between the city and a different "association" of soccer teams that paid fees to use the park's facilities for practices and games. (Mark's soccer team belonged to an association that did not have an agreement with the city and that used the park on an "informal" basis.) Put differently, the court rejected the argument that the city's sponsorship of one particular "association" constituted sponsorship of all "organized soccer team activities" at the field.

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Safe Place Statute - Unsafe Condition - Notice

Rizzuto v. Cincinnati Ins. Co., 2003 WI App 59 (filed 25 Feb. 2003) (ordered published 26 March 2003)

Rizzuto was injured while riding an elevator when a granite tile on the elevator's wall came loose and struck her head. She sued the building's owner, which had purchased the building just seven months before the accident. Rizzuto, who worked in the building, testified that the elevators "shook as you rode them" but admitted that she had never complained about this to her employer or the maintenance department. The trial court granted summary judgment in favor of the owner, on the ground that the owner had no notice of the problem.

The court of appeals, in an opinion written by Judge Fine, affirmed. First, the court held that the loose elevator tiles were an "unsafe condition" and not a structural defect under the safe place statute. Rizzuto failed to offer any evidence that the tiles were defective when they were originally installed 10 years earlier; rather, the adhesive had "failed" over time and thus the loose tiles were an unsafe condition (¶20). Second, Rizzuto failed to show that the owner had actual or constructive notice of the unsafe condition. The court rejected the contention that a remodeling project served as the basis for constructive notice.

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Worker's Compensation

Exclusivity - Chapter 51 Claims - Sheltered Employment

St. Paul Fire & Marine Ins. Co. v. Keltgen, 2003 WI App 53 (filed 4 Feb. 2003) (ordered published 26 March 2003)

Keltgen, a disabled adult with autism and mild mental retardation, worked in a "sheltered workshop" run by a nonprofit corporation, the L.E. Phillips Career Development Center (CDC), pursuant to contract with a county under Wis. Stat. section 51.437. While so employed, Keltgen was repeatedly sexually assaulted by another shelter employee who had a history of assaultive behavior. An insurer initiated this lawsuit seeking a judgment that the CDC's liability for the assaults was limited to worker's compensation. Keltgen counterclaimed for negligence and a variety of claims under Wis. Stat. chapter 51. The trial court dismissed all of Keltgen's chapter 51 claims and later granted summary judgment to the CDC on the negligence claim as well, ruling that the CDC did not have a dual persona and thus that Keltgen's recovery was limited to remedies under the Worker's Compensation Act (WCA).

The court of appeals, in an opinion written by Judge Cane, affirmed. First, the court found that Keltgen was a "patient" within the meaning of section 51.61: "'Patient' includes people receiving services for developmental disabilities, and sheltered employment is one of these services" (¶16). Although some of the rights listed in that statute "seem to have little application to sheltered employment," the statute's unambiguous language covers Keltgen's status (¶18). Because the patients' rights provisions of chapter 51 and the WCA protect against distinct harms, the court next held that "the exclusivity provision of the WCA does not bar a claim under Wis. Stat. § 51.61 when the injuries result from the same set of facts" (¶25).

Nonetheless, the trial court correctly dismissed Keltgen's claims under Wis. Stat. section 51.61. The sexual assaults, which occurred in a bathroom, implicated the CDC's failure to protect Keltgen's safety, not his "privacy" under chapter 51. Since Keltgen's "sheltered employment constituted habitation rather than rehabilitation," the CDC was not a "treatment facility" that was statutorily obligated to protect Keltgen's "dignity and individuality" (¶¶31-33).

Nor did the trial court err when it found that recovery for the remaining chapter 51 claims would duplicate the damages Keltgen received under his worker's compensation settlement (¶36). Keltgen's pain and suffering was compensated under the WCA. Moreover, the definition of "injury" under Wis. Stat. section 102.01(2)(c) covers "mental or physical harm," including posttraumatic stress (¶40). Finally, the court rejected Keltgen's claim that the CDC had a dual persona as both employer and health care provider. The two roles were so intertwined that they "amount[ed] to one role" (¶45).

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Termination of Benefits - Proper Investigation - Bad Faith

Brown v. LIRC, 2003 WI App 56 (filed 12 Feb. 2003) (ordered published 26 March 2003)

The court of appeals reversed a circuit court order affirming an order by the Labor and Industry Review Commission (LIRC). LIRC found that Reliance Insurance Company had not acted in bad faith pursuant to Wis. Stat. section 102.18(1)(bp) (1999-2000) and Wis. Admin. Code section DWD 80.70(2) when Reliance terminated payment of temporary total disability benefits to the plaintiff before the end of his "healing period."

The reversal was based on two grounds. First, the court of appeals held that Reliance failed to properly investigate the claim and therefore had no reasonable basis for terminating Brown's benefits. A call to the fraud hotline asserted that Brown was planning to sell insurance on a full-
time basis and not return to his job when his disability ended. Reliance's "preliminary investigation" revealed only "that Brown was licensed and possibly planned to work as an insurance agent full time. However, merely knowing that Brown might be working is not a sufficient justification for terminating his benefits"; Reliance was entitled to an offset on its payments only if Brown earned "a profit" by selling insurance (¶15). Had Reliance contacted Brown or otherwise obtained income information, the outcome may have been "quite different" (¶17).

Second, LIRC also misapplied the law of bad faith to the facts of Brown's case in concluding that Reliance's actions were "fairly debatable" (¶17). At the "bad faith" hearing Reliance acknowledged that it thought an offset was just an affirmative defense. "To allow Reliance to first terminate Brown's benefits and then require Brown to prove that he is not earning a profit improperly shifts to Brown the burden of disproving Reliance's entitlement to an offset" (¶18).

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