Weekly Case Digests — Nov. 3-7, 2014

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Wisconsin Law Journal’s Case Digests — Nov. 3-7, 2014

CIVIL OPINIONS

Wisconsin Court of Appeals

Education
in-state tuition

Rebecca Lukanich appeals from a circuit court order affirming a determination by the University of Wisconsin-Madison Nonresident Tuition Appeals Committee (the “Committee”) that Lukanich is not a resident of Wisconsin for tuition purposes, and thus not exempt from nonresident tuition under Wis. Stat. § 36.27(2). We affirm the order. This opinion will not be published.

2013AP13 Lukanich v. Board of Regents of the University of Wisconsin System

Dist IV, Dane County, Gaylord, J., Per Curiam

Attorneys: For Appellant: Ebbott, Jack W., Deerfield; For Respondent: Lennington, Daniel P., Madison

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil Procedure
relief from judgment

In March 2013, shortly before a scheduled contested hearing, the parties in this foreclosure action jointly represented to the circuit court that all claims and counterclaims in the case had been “fully resolve[d]” and the parties merely needed to finalize settlement papers. As a result, the circuit court struck scheduled events in the case. In late May 2013, having heard nothing further from the parties, the court dismissed the case with prejudice. In August 2013, plaintiff HSBC Mortgage Services, Inc., moved to vacate the May dismissal and reopen the case. The court denied the motion. In November 2013, HSBC again moved to vacate the May dismissal. The court declined to take any action on this second motion.

HSBC now appeals the two decisions not to vacate the May dismissal. We conclude that the court did not erroneously exercise its discretion in denying HSBC’s August motion or in deciding to take no action on the November motion. Accordingly, we affirm. Not recommended for publication in the official reports.

2013AP2885 HSBC Mortgages Services Inc. v. Daya et al.

Dist II, Waukesha County, Haughney, J., Blanchard, P.J.

Attorneys: For Appellant: Christakis, A. Katrina, Chicago; Pilgrim, Jeffrey D., Chicago; Dizdarevic, Sulejman F., Chicago; For Respondent: Hanson, Rollie, West Allis

CONTRACTS

Wisconsin Court of Appeals

Contracts
damages — lost profits

Pember Excavating Inc. appeals a judgment for damages in a contract dispute. After a bench trial, the court awarded two categories of damages to H & C R.E. Investment, Partnership; Allen Carnine; and James Haupt. First, the court awarded $152,541.73, representing the cost of repairing sanitary sewer laterals that were damaged due to Pember’s faulty workmanship. Second, the court awarded $264,500 in lost profits due to an inability to sell eight vacant lots because of the lateral problems.

Pember argues the court erroneously awarded damages for the sewer lateral repairs because the sewer system had already been dedicated to the City of Amery, leaving H & C with no property interest in the laterals. We agree and reverse that part of the judgment awarding damages for sewer repairs. However, we reject Pember’s argument that H & C failed to adequately prove its lost profits. We therefore affirm that part of the judgment awarding damages for lost profits. This opinion will not be published.

2013AP2096 H&C R.E. Investment Partnership et al. v. Pember Excavating Inc. et al.

Dist III, Polk County, Vlack, J., Per Curiam

Attorneys: For Appellant: Pelish, James A., Rice Lake; For Respondent: Heaney, Patrick G., Rice Lake

Wisconsin Court of Appeals

Contracts
damages

Union Cab of Madison Cooperative appeals a judgment awarding Donna and Larry Peters damages they incurred when forced to reschedule travel plans after Union Cab failed to pick them up as previously scheduled. For the reasons discussed below, I affirm. This opinion will not be published.

2014AP729 Peters v. Union Cab of Madison Cooperative

Dist IV, Dane County, Sumi, J., Sherman, J.

Attorneys: For Appellant: Herrick, Scott N., Madsion; For Respondent: Morris, Lauri, Madison

U.S. Court of Appeals for the 7th Circuit

Contracts
arbitration — franchises

The owner-operator of a franchise is obligated to arbitrate under a franchise agreement because she received direct benefits from the agreement despite not having signed the document.

“Analogizing Thompson to the facts of this case, the district court found that the Ms. Everett only ‘exploited, or benefit-ted from, the contractual relationship her husband and EAGB had with PDRI. EAGB presumably was profitable because of the PDRI franchise.’ In other words the court determined that as Mr. Everett’s spouse and co-owner she had a right to share the profits of the franchise, but that the benefits were indirect since they derived through her husband and the corporation. We find this to be too narrow an interpretation of direct benefits estoppel. Instead we find that Ms. Everett was not merely exploiting the contractual relationship among EAGB, Mr. Everett and PDRI, but rather the benefit of the contract itself — namely owning and operating a PDRI franchise. Ms. Everett received the same benefits as her husband, which included benefitting from trading upon the name, goodwill, reputation and other direct contractual benefits of the franchise agreement.” Reversed and Remanded.

12-3407 & 13-1036 Everett v. Paul Davis Restoration Inc.

Appeals from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Cudahy, J.

EVIDENCE

U.S. Court of Appeals for the 7th Circuit

Evidence
mediation

Under sec. 904.085(4)(e), statements made during mediation cannot be introduced into a bankruptcy proceeding to prove the settlement was the product of fraud.

“Wisconsin’s mediation privilege statute provides a party to a mediated agreement with contractual remedies based upon the written agreement. See Wis. Stat. § 905.083(4)(a) (providing that § 905.085(3) ‘does not apply to any written agreement, stipulation or settlement made between 2 or more parties during or pursuant to mediation’). The Wisconsin legislature could have chosen to incorporate more exceptions into its statute. The Uniform Mediation Act, drafted after Wisconsin adopted § 904.085 in 1993, for example, contains an express exception allowing a party to admit evidence of mediation communications for the purpose of ‘prov[ing] a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.’ See Uniform Mediation Act, The National Conference of Commissioners on Uniform State Laws, § 6(b)(2), available at http://www.uniformlaws.org/Act.aspx?title=Mediation Act (last visited Oct. 30, 2014). Although one might contend it is unjust that a person like Doe cannot recover if he was in fact fraudulently induced into signing a settlement agreement, our task is to apply the Wisconsin statute as it is written. Cf. Rojas v. Superior Court, 93 P.3d 260, 265 (Cal. 2004) (holding California mediation privilege was not subject to ‘good cause’ exception because only exceptions to mediation confidentiality were those expressly provided in statute); Princeton Ins. Co. v. Vergano, 883 A.2d 44, 64 (Del. Ch. 2005) (declining to allow mediator testimony where plaintiff maintained mediation settlement induced by fraud, rejecting argument that the need to remedy a possible fraud outweighed public policy interest served by enforcing mediation agreements calling for confidentiality). The Wisconsin legislature balanced competing interests to further the statute’s goal of ‘quickly, fairly, and voluntarily’ resolving disputes, Wis. Stat. § 904.085(1), when it crafted § 904.085, and we conclude the statute does not allow the admission of communications made during the mediation here because the disputes in mediation and in Doe’s bankruptcy proof of claim are not distinct. As a result, summary judgment in the Archdiocese’s favor was proper, as was the resulting order disallowing Doe’s claim.”

Affirmed.

13-3783 Doe v. Archdiocese of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Williams, J.

FAMILY

Wisconsin Court of Appeals

Family
guardianship — competence

Where the circuit court held a hearing more than 90 days after a guardianship petition, the court lost competence.

“In Mikrut, our supreme court articulated the general rule, relied on by the foster parents here, that ‘challenges to the circuit court’s competency are waived if not raised in the circuit court.’ 273 Wis. 2d 76, ¶30. However, the Mikrut court noted a longstanding qualification to the general rule, namely, an exception for limitation periods within which courts must act as mandated by statutes: ‘“[W]e have consistently ruled that a court’s loss of power due to the failure to act within statutory time periods cannot be stipulated to nor waived.”’ Id., ¶25 (emphasis added) (quoting Green Cnty. Dep’t of Human Servs. v. H.N., 162 Wis. 2d 635, 657, 469 N.W.2d 845 (1991) (hereafter B.J.N.)). In B.J.N., the court cited authority dating back to 1938 for this exception to the general rule of waiver. B.J.N., 162 Wis. 2d at 657 & n.19.”

“Further, while the Mikrut court left open the question of whether there may be situations in which a party could waive a competency challenge based on a statutory limitation period, Mikrut, 273 Wis. 2d 76, ¶30, in the following year the court resolved the issue. In Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631, the court went a step further and held that ‘a competency challenge … based on the court’s failure to act within the statutory time periods listed within WIS. STAT. ch. 48 [(2003-04)], cannot be waived, even though it was not raised in the circuit court.’ Id., ¶30; see also State v. Michael S., 2005 WI 82, ¶73, 282 Wis. 2d 1, 698 N.W.2d 673 (explaining that the Mikrut waiver rule does not control the outcome of a case involving a statutory time period because Mikrut ‘left undisturbed’ this issue)”

Affirmed.

Recommended for publication in the official reports.

2013AP2534 & 2013AP2600 Tina B. v. Richard H.

Dist. IV, Waupaca County, Hoffman, J., Blanchard, J.

Attorneys: For Appellant: Maroney, Thomas A., Waupaca; Parry, Arthur B., Waupaca; For Respondent: Schmieder, Theresa J., Green Bay

INSURANCE

Wisconsin Court of Appeals

Insurance
homeowners insurance — raze orders

Even though a house was worth less than $24,000 when the city ordered it razed, the owner is entitled to collect the full $244,000 amount of his homeowners insurance policy.

“As we have seen, under WIS. STAT. § 66.0413(1)(c), property may not be repaired ‘if a … building inspector or designated officer determines that the cost of repairs … would exceed 50% of the assessed value of the building divided by the ratio of the assessed value to the recommended value as last published by the department of revenue for the municipality within which the building is located.’ That is the situation here. Thus, Haynes’s home was ‘wholly destroyed’ within the meaning of WIS. STAT. § 632.05(2). See Gambrell v. Campbellsport Mutual Ins. Co., 47 Wis. 2d 483, 490, 177 N.W.2d 313, 316 (1970) (‘An administrative order of a municipal building inspection department directing the razing of a burned building is a legislatively approved declaration that for public policy reasons the damage to the property constitutes a total loss.’). See also City of Appleton v. Brunschweiler, 52 Wis. 2d 303, 309, 190 N.W.2d 545, 548 (1971) (‘[I]f the repairs to a building are unreasonable as defined in the statute the building must be razed even though it could be made safe by the expenditure of unreasonable cost of repairs.’). Of course, the statutes’ command trumps any contrary analysis or post-hoc assessment by Demski that he sets out in his affidavit. See Milwaukee County v. Schmidt, 52 Wis. 2d 58, 66, 187 N.W.2d 777, 781 (1971) (‘[A]n administrative officer has no discretion to disregard the language of a statute in performing his duties.’). Simply put, the focus is on whether repairs are reasonable under the statutory formula, not whether elements of the structure survived the fire. The unappealed Raze Order, which, as we have seen, applied the mandated statutory formula, is conclusive.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2014AP395 Haynes v. American Family Mut. Ins. Co.

Dist. I, Milwaukee County, Sankovitz, J., fine, J.

Attorneys: For Appellant: Konz, Michael P., Appleton; Fuehrer, Erik L., Appleton; For Respondent: Cronin, Joshua B., Milwaukee

Wisconsin Court of Appeals

Insurance
homeowners policies — residence

Susan Schaefer appeals a circuit court order granting declaratory judgment and summary judgment in favor of Amica Mutual Insurance Company (“Amica”) in this personal injury case. Schaefer argues on appeal that the circuit court erred when it concluded that Stephen Taylor, who injured Schaefer by running into her on a ski hill, was not covered as an insured under the homeowner’s insurance policy issued by Amica to Taylor’s parents. For the reasons set forth below, we affirm the order of the circuit court. This opinion will not be published.

2013AP2419 Schaefer et al. v. Taylor et al.

Dist IV, Dane County, Niess, J., Per Curiam

Attorneys: For Appellant: Carnell, Kent I., Madison; For Respondent: Farley, David J., Milwaukee; Silver, Patryk, Madison

PROPERTY

Wisconsin Court of Appeals

Property
easements — reformation

The circuit court did not err in relying on extrinsic evidence of intent to reform an easement.

“We conclude the circuit court properly exercised its equitable authority when it reformed the Declaration. It is only necessary that the instrument describe the easement location with ‘reasonable certainty.’ See Wiegand v. Gissal, 28 Wis. 2d 488, 492, 137 N.W.2d 412 (1965). The Declaration does so, and the extrinsic evidence relied on by the circuit court has an adequate foundation in the Declaration’s language. Further, the evidence at trial was sufficient to establish mutual mistake. We therefore affirm.”

Affirmed.

Recommended for publication in the official reports.

2013AP2762 Prezioso v. Aerts

Dist. III, Forest County, Stenz, J., Cane, J.

Attorneys: For Appellant: Kirschling, Michael J., De Pere; Stellpflug, C. D., De Pere; Peterson, Christina L., De Pere; For Respondent: Olk, Richard M., Antigo; Rhode, John B., Antigo

TORTS

Wisconsin Court of Appeals

Torts
medical malpractice — informed consent

Carol Kekula appeals a judgment, entered on a jury’s verdict, dismissing her medical negligence and informed consent claims against Robert Corish, M.D., and The Medical Protective Company. With respect to the medical negligence claim, Kekula asserts the circuit court erred by admitting evidence that other doctors perform the procedure in question — an interscalene nerve block — in the same manner as Corish. We conclude the court properly exercised its discretion by admitting this evidence, and we therefore affirm that portion of the judgment dismissing Kekula’s medical negligence claim.

Regarding the informed consent claim, Kekula argues the special verdict form was misleading because it was not properly tailored to the facts and arguments presented to the jury. We agree. Accordingly, we reverse in part and remand for a new trial on Kekula’s informed consent claim. Not recommended for publication in the official reports.

2014AP177 Kekula et al. v. Corish et al.

Dist III, Brown County, Hammer, J., Stark, J.

Attorneys: For Appellant: Haag, Eric J., Middleton; For Respondent: Hickey, Peter J., Green Bay

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Trusts and Estates
default judgment — relief from judgment

The Estate of Joyce Ann Rainey appeals from a trial court order declining to provide relief from a default judgment granting Cynthia Dargitz’s claim against the estate. Pursuant to a presubmission conference and this court’s order of July 8, 2014, the parties submitted memorandum briefs. See Wis. Stat. Rule 809.17(1) (2011-12).[2] Upon review of those memoranda and the record, we affirm. This opinion will not be published.

2014AP1302-FT In re the estate of Joyce Ann Rainey: Burkhalter v. Rainey-Dargitz

Dist II, Walworth County, Koss, J., Per Curiam

Attorneys: For Appellant: Hudec, Patrick J., East Troy; For Respondent: Nommensen, David J., Elkhorn

CRIMINAL OPINIONS

Wisconsin Court of Appeals

1st-degree reckless homicide
sufficiency of the evidence

Richard Lisko appeals from a judgment convicting him of false imprisonment and first-degree reckless injury. He argues that he was convicted on insufficient evidence, that prosecutorial misconduct deprived him of a fair trial, and that the trial court erroneously failed to give the falsus in uno jury instruction and to strike a particular juror for cause. We disagree and affirm. This opinion will not be published.

2013AP2132-CR State v. Lisko

Dist II, Fond du Lac County, Sharpe, J., Per Curiam

Attorneys: For Appellant: Stevens, Daniel W., Brookfield; Kuss, Rudolph J., Brookfield; For Respondent: Wellman, Sally L., Madison; Toney, Eric, Fond du Lac

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance — prosecutorial misconduct

Ryan P. O’Boyle appeals a judgment entered on a jury verdict convicting him of attempted second-degree intentional homicide with the use of a dangerous weapon. See Wis. Stat. §§ 940.05(1), 939.32 & 939.63(1)(b). He also appeals the trial court’s denial of his motion for postconviction relief. O’Boyle argues that: (1) the trial court erred when it denied without a hearing his claim that his trial lawyer gave him constitutionally deficient representation; (2) the police did not comply with proper photo array procedures when the victim identified O’Boyle as having stabbed him; (3) the prosecutor made improper statements during closing argument; (4) the trial court erroneously admitted hearsay evidence; and (5) the State improperly amended the charges. We affirm. Publication in the official reports is not recommended.

2014AP80-CR State v. O’Boyle

Dist I, Milwaukee County, Cimpl, Yahamiro, JJ., Fine, J.

Attorneys: For Appellant: Kay, Timothy T., Brookfield; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance – alibi – adjournments — new trials

Dimetra Chappell appeals from an amended judgment of conviction entered after a jury found her guilty of child abuse, intentionally causing harm, with use of a dangerous weapon. See Wis. Stat. §§ 948.03(2)(b), 939.63(1)(b) (2009-10). She also appeals from an order denying her motion for postconviction relief. We affirm. This opinion shall not be published.

2013AP2023-CR State v. Chappell

Dist I, Milwaukee County, Kuhnmuench, Flanagan, JJ., Per Curiam

Attorneys: For Appellant: Thornton, J. Dennis, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal Procedure
right to jury trial

Where the prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument, that elicited promise did not deny the defendant’s right to a jury trial.

“A jury convicted Frank Zdzieblowski of operating a vehicle with a prohibited blood alcohol concentration as a sixth offense and felony bail jumping. Zdzieblowski argues on appeal, as he did before the circuit court after trial, that he is entitled to a new trial based on plain error or in the interest of justice, because improper questioning of prospective jurors by the prosecutor during voir dire compromised his constitutional right to a jury trial. Specifically, Zdzieblowski argues that when the prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument, that elicited promise diminished Zdzieblowski’s constitutional right to a jury trial by eliminating the jury’s power to exercise its nullification authority. We conclude that in the circumstances of this case, and consistent with Wisconsin precedent pertaining to jury nullification, the prosecutor’s unobjected to questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice. Therefore, we affirm.”

Affirmed.

Recommended for publication in the official reports.

2014AP619-CR State v. Zdzieblowski

Dist. IV, Portage County, Flugaur, J., Kloppenburg, J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Remington, Christine A., Madison; Cousins, Cass, Stevens Point

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

Claude Potvine appeals a judgment convicting him of first-degree sexual assault of a child, as well as an order denying his postconviction motion. On appeal, Potvine argues that his trial counsel provided ineffective assistance and that he should be granted a new trial in the interest of justice. For the reasons set forth below, we affirm the judgment and order of the circuit court. This opinion will not be published.

2013AP1119-CR State v. Potvine

Dist IV, La Crosse County, Horne, J., Per Curiam

Attorneys: For Appellant: Hunt, Edward J., Milwaukee; For Respondent: Kassel, Jeffrey J., Madison; Gruenke, Tim, La Crosse

EVIDENCE

Wisconsin Court of Appeals

Evidence
sexual assault — mental health treatment records

The State alleges that A.M., now 32 years old, was sexually assaulted by Patrick Lynch when she was a young girl. After Lynch was charged, he brought a pretrial motion for an in camera review of A.M.’s mental health treatment records. The circuit court concluded that Lynch made the required showing for an in camera review. The court further concluded that, because A.M. refused to release her treatment records for an in camera review, State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), required the court to exclude A.M.’s testimony at Lynch’s trial. The State appeals the court’s non-final order excluding A.M.’s testimony. We agree with the circuit court that Lynch made the required showing. We also agree with the circuit court that, under Shiffra, the only available remedy when a victim refuses to disclose records for an in camera review is the exclusion of the victim’s testimony at trial. Accordingly, we affirm the circuit court, and remand for further proceedings. Not recommended for publication in the official reports.

2011AP2680-CR State v. Lynch

Dist IV, Dodge County, Bissonnette, J., Lundsten, J.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; Weber, Gregory M., Madison; Klomberg, Kurt F., Juneau; For Respondent: Priester, Jack M., Madison

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — subject matter jurisdiction

Grant Loescher appeals a circuit court order denying his motion to reopen and vacate his 1997 conviction for operating while intoxicated, first offense. Loescher argues he was erroneously charged and convicted of first-offense OWI in 1997. He contends he should have been charged with second-offense OWI as a matter of law, due to an existing 1992 OWI conviction. He argues his 1997 conviction is void because the City of Kaukauna Municipal Court lacked subject matter jurisdiction over criminal second and subsequent OWI offenses. We affirm. This opinion will not be published.

2014AP954 City of Kaukauna v. Loescher

Dist III, Outagamie County, Des Jardins, J., Hoover, P.J.

Attorneys: For Appellant: Petersen, Michael D., Appleton; For Respondent: Davidson, Kevin W., Kaukauna

Wisconsin Court of Appeals

Motor Vehicles
OWI — probable cause — tailgating

Arik Ulwelling appeals a judgment convicting him of operating a motor vehicle while intoxicated (OWI), third offense. Ulwelling argues the circuit court erroneously denied his motion to suppress evidence by finding probable cause existed for his initial detention based on a police officer’s perceived violation of Wis. Stat. § 346.14(1). That statute prohibits motor vehicle operators from following another vehicle “more closely than is reasonable and prudent” — commonly known as “tailgating.” We conclude the traffic stop was reasonable because the officer had probable cause to believe a violation of this statute had occurred. We therefore affirm. This opinion will not be published.

2014AP814-CR State v. Ulwelling

Dist III, Eau Claire County, Theisen, J., Hruz, J.

Attorneys: For Appellant: Singh, Sarvan, Sheboygan; For Respondent: Weber, Gregory M., Madison; Larson, Meri C., Eau Claire

SENTENCING

Wisconsin Court of Appeals

Sentencing
extended supervision — discharge

Cleveland Lee, pro se, appeals a trial court order dismissing his petition for a writ of certiorari. He contends he has been discharged from the judgments in Milwaukee County case No. 2005CF63, and that Denise Symdon, Administrator of the Department of Corrections Division of Community Corrections, erred by concluding that he remains on extended supervision. We reject his contentions and affirm. This opinion will not be published.

2013AP2029 State ex rel. Lee v. Symdon

Dist I, Milwaukee County, Pocan, J., Per Curiam

Attorneys: For Appellant: Lee, Cleveland, pro se; For Respondent: Loebel, Karen A., Milwaukee; Van Hollen, John B., Madison; Potts, Abigail, Madison