Important Opinions 2009: Wisconsin Court of Appeals Civil Opinions

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WISCONSIN COURT OF APPEALS
CIVIL PUBLISHED
Administrative Law
An applicant cannot be denied rent assistance based solely on hearsay evidence.
2009AP435 Williams v. Housing Authority of the City of Milwaukee
Issue date: Dec. 28, 2009

Civil Commitment
Where no probable cause hearing was held within 72 hours of a man’s emergency detention, he must be released.
2008AP1281 Dane County v. Stevenson L.J.
Issue date: June 1, 2009

Civil Procedure
The excusable neglect standard does not apply to untimely motions to enlarge a scheduling order deadline.
2007AP1542 Parker v. Wisconsin Patients Compensation Fund
Issue date: March 30, 2009

When a person who must appear in court at a substantive proceeding seeks an accommodation because of physical disability, and self-identifies in as reasonable a time as possible before the hearing, circuit courts who believe they need more information before deciding whether and what accommodation to give, must make a factual determination before the date of the substantive court hearing, either by informal means or by a formal hearing with notice to the person alleging a disability.
2007AP2898 Strook v. Kedinger
Issue date: Feb. 23, 2009

The relation-back doctrine does not allow adding new plaintiffs to a complaint after the statute of limitations has expired.
2008AP1884 Barnes v. WISCO Hotel Group
Issue date: April 27, 2009

The doctrine of claim preclusion does not apply to claims within the same lawsuit.
2008AP1536 Johnson v. American Family Mut. Ins. Co.
Issue date: June 1, 2009

A notice of appeal not filed within 90 days of the final order is untimely.
2008AP2045 Werner v. Hendree
Issue date: June 22, 2009

A court may permit a defendant to add a counterclaim in the middle of trial.
2008AP2300 Soma v. Zurawski
Issue date: July 27, 2009

A demand for less than $75,000 in a complaint, to avoid federal jurisdiction, is not a judicial admission that damages are less than that, and the jury should not have been instructed that they are.
2008AP1744 Olson v. Darlington Mutual Insurance Co.
Issue date: Aug. 3, 2009

The filing of a complaint tolls the statute of limitations for filing a counterclaim.
2008AP2289 Donaldson v. West Bend Mut. Ins. Co.
Issue date: Aug. 10, 2009

A court may sanction a party for not complying with a court order that, in addition to the party’s attorney being present at mediation, requires the party be present also.
2008AP3125 Lee v. GEICO Indemnity Co.
Issue date: Oct. 5, 2009

An appeal of an order appointing a guardian and requiring protective placement must be heard by a three-judge panel.
2009AP1755-NM Waukesha County v. Genevieve M.
Issue date: Oct. 12, 2009

A dispute over an insurance agent’s commissions falls within the mandatory arbitration provisions of the contract
2008AP3071 Cirilli v. Country Insurance and Financial Services
Issue date: Nov. 2, 2009

Where the plaintiffs’ contractual agreement with the defendant had terminated, and the defendant no longer had any contacts with Wisconsin at the time the action was commenced, the circuit court lacked personal jurisdiction over the defendant.
2008AP2506 FL Hunts, LLC v. Wheeler
Issue date: Dec. 21, 2009

An attorney is not precluded from an award of attorney fees spent litigating an attorney fee petition, even though the defendant offered more than the attorney was awarded before the dispute over fees began.
2008AP3215 Bettendorf v. Microsoft Corp.
Issue date: Dec. 28, 2009

Where a defendant did not attend the scheduling conference, did not file his witness list, did not file an itemization of damages in connection with his counterclaim, did not did not file his pretrial report, and did not attend the pretrial conference, default judgment was properly entered against him.
2008AP2453 East Wind Properties, LLC v. Jahnke
Issue date: July 13, 2009

Constitutional Law
Where an applicant for a gun permit has a prior conviction for disorderly conduct, and the underlying complaint reveals a domestic relationship between him and the victim, the DOJ properly denied the permit.
2008AP2027 Koll v. DOJ
Issue date: April 6, 2009

A sheriff may contract with a private entity for the transportation of prisoners.
2008AP2069 Brown County Sheriffs Department Non-supervisory Labor Association v. Brown County
Issue date: April 27, 2009

Staffing security at the entrance to a courthouse is not a constitutionally protected power of the sheriff and can be limited by collective bargaining.
2008AP1210 Washington County v. Washington County Deputy sheriff’s Association
Issue date: June 22, 2009

A statute permitting a town to bypass the normal process for incorporating into a village is unconstitutional.
2008AP1342 State of Wisconsin ex rel. Kuehne v. Burdette
Issue date: July 13, 2009

Construction
Section 101.14(4m)(b) does not restrict the authority the Department of Commerce has under other statutory provisions to promulgate rules requiring fire protection devices in multifamily dwellings that have fewer dwelling units or a smaller floor area than that specified in the statute.
2008AP1438 Wisconsin Builders Association v. Department of Commerce
Issue date: Jan. 5, 2009

Consumer Protection
By defending a lawsuit for more than a year, a defendant in a case under the Wisconsin Consumer Act waives any objection based on improper venue.
2007AP1253 Brunton v. Nuvell Credit Corp.
Issue date: Jan. 5, 2009

Where a manufacturer made a replacement vehicle available to a buyer under the Lemon Law, it did not violate its obligations by requesting the buyer to sign a waiver.
2008AP1196 BCR Trucking, LLC, v. PACCAR, Inc.
Issue date: Feb. 16, 2009

A violation of the Wisconsin Consumer Act must be asserted as a defense and counterclaim, or used as a basis to reopen a small claims case within 12 months.
2008AP1992 Mercado v. GE Money Bank
Issue date: April 20, 2009

Where an auto repair shop gave an estimate of one cent, thinking the bill would be covered by the customer’s warranty, but the warranty did not cover the repairs, the repairs were unauthorized, and the shop cannot demand payment.
2008AP1199 Kaskin v. John Lynch Chevrolet-Pontiac Sales, Inc.
Issue date: May 4, 2009

Contracts
Computer consultants are not professional service providers, and can only be sued in contract, not tort.
2007AP2861 Racine County v. Oracular Milwaukee, Inc.
Issue date: April 13, 2009

A contract entered into to hide a substantial asset from a spouse and the family court during a divorce is unenforceable.
2007AP2823 Jezeski v. Jezeski
Issue date: Jan. 5, 2009

Where a developer was required to pay the bills of an engineering firm pursuant to a contract between a city and the firm, the developer was a third-party beneficiary with standing to enforce the contract.
2008AP53 Becker v. Crispell-Snyder, Inc.
Issue date: Jan. 19, 2009

A person who pays a property owner’s property taxes unknowingly may recover for unjust enrichment.
2008AP2166 Buckett v. Jante
Issue date: March 9, 2009

A contract may not entirely waive all limitations in the Uniform Commercial Code.
2008AP1709 Kraenzler v. Brace
Issue date: Aug. 10, 2009

Any bank doing business in the state is a state bank under sec. 706.11(1).
2008AP2533 Lowell Management Services, Inc. v. Geneva national PQC, LLC
Issue date: Sept. 14, 2009

Where a contract ambiguously provided for attorney fees to the successful party in any litigation, each party is entitled to partial attorney fees, where the result of the litigation was mixed.
2008AP2861 Shadley v. Lloyds of London
Issue date: Nov. 2, 2009

Corporations
Where a shareholder of a closely held corporation withheld dividends as a means of forcing the other shareholder to sell her shares, she breached her fiduciary duty and the decision is not protected by the business judgment rule.
2008AP17 Yates v. Holt-Smith
Issue date: May 25, 2009

Debtor-Creditor
The sec. 128.17(2) limit applies to a landlord whose tenant entered into a ch. 128 proceeding.
2007AP2791 Admanco, Inc. v. 700 Stanton Drive, LLC
Issue date: April 20, 2009

Employment
A two-year non-compete agreement barring solicitation of former customers is valid.
2008AP1702 Techworks, LLC v. Wille
Issue date: April 6, 2009

Where a mechanic was injured at work when a vehicle tipped off a hoist, the negligent operation of a motor vehicle exception to co-employee immunity does not apply.
2008AP1681 Kuehl v. Sentry Select Ins. Co.
Issue date: Feb. 16, 2009

After an employee has been awarded loss of earning capacity benefits in a workers’ compensation case, the award can’t be reopened, even if he goes back to work.
2008AP1977 Schreiber Foods, Inc. v. LIRC
Issue date: Feb. 16, 2009

Reinstatement is a remedy for in-house attorneys under the Equal Pay Act and Title VII.
2008AP1703 Sands v. Menard, Inc.
Issue date: April 20, 2009

A laborer driving his personal vehicle from home to a job site was not performing acts within the scope of his employment when injured.
2008AP1946 McRae v. Porta Painting, Inc.
Issue date: May 25, 2009

An employee cannot invoke respondeat superior as a defense in a lawsuit against him by his employer.
2008AP1517 James Cape & Sons Co. v. Streu Construction Co.
Issue date: Sept. 14, 2009

An employee can bring a claim for back pay and benefits under ch. 109.
2008AP2141 Sliwinski v. City of Milwaukee
Issue date: Oct. 12, 2009

A key employee who is not an officer or director may owe a duty of loyalty actionable in tort.
2007AP2887 InfoCorp, LLC, v. Hunt
Issue date: Dec. 14, 2009

Telling an employee that he will be fired if he doesn’t resign is not a constructive discharge.
2009AP505 Mercer v. City of Fond du Lac
Issue date: Dec. 21, 2009

Evidence
When a party invokes the Fifth Amendment right against self-incrimination in a civil action during discovery, but withdraws it during trial, the court may bar the party from testifying.
2008AP1647 S.C. Johnson & Son, Inc., v. Morris
Issue date: Dec. 7, 2009

Family
Where a party who loses before a family court commissioner, requests de novo review
, the circuit court must hold an evidentiary hearing.
2008AP311 In re the Marriage of: Stuligross v. Stuligross
Issue date: Jan. 5, 2009

Income from a nongrantor trust is income available for purposes of child support.
2007AP2143 In re the Marriage of Stevenson
Issue date: Feb. 9, 2009

Despite the statutory presumption that a child born to a married couple is the husband’s biological child, the actual biological father can be ordered to pay child support.
2008AP722 & 2008AP723 In re the Marriage of: Hendrick
Issue date: Feb. 16, 2009

Although stock options are underwater, they should still be included in the property division.
2008AP2020 In re the Marriage of: Heppner
Issue date: May 11, 2009

A party cannot be estopped from seeking modification of family support.
2008AP3102 In re the Marriage of Huhn
Issue date: Aug. 3, 2009

A court may not award guardianship to a grandparent based only on a showing that it is in the child’s best interests.
2008AP2456-AC Cynthia H. v. Joshua O.
Issue date: Nov. 9, 2009

A circuit court does not have authority to order a represented adult ward to submit to an interview with her guardian ad litem, outside the presence of her counsel and over her attorney’s objection, where the order also requires the guardian ad litem to report the content of the interview to the circuit court.
2008AP1985 In the Matter of the Guardianship of Jennifer M.
Issue date: Dec. 28, 2009

Only an attorney can sign and file a request for commitment for failure to pay child support.
2008AP2827 In re the Marriage of: Meyer v. Teasdale
Issue date: Sept. 21, 2009

Insurance
A workers’ compensation insurance policy only applies to claims brought under Wisconsin law for Wisconsin benefits.
2008AP464 Brown v. Sandeen Agency, Inc.
Issue date: Jan. 5, 2009

When an insurance policy covers hit-and-run as part of an uninsured motorist provision and the policy does not define the term, run means leaving the scene without providing identifying information even if the driver stopped to see if there was any injury.
2008AP919 Zarder v. Humana Ins. Co.
Issue date: Feb. 23, 2009

A watercraft endorsement to a homeowner’s policy does not provide coverage for injuries occurring while a boat is being towed by a motor vehicle.
2007AP2943 Sass v. Acuity
Issue date: March 2, 2009

A commercial auto policy need not provide UM coverage to employees injured while driving their own autos.
2008AP1036 Mittnacht v. St. Paul Fire & Casualty Ins. Co.
Issue date: March 9, 2009

A car rented as a supplemental vehicle, rather than a replacement vehicle, is not covered by a policy covering temporary rented replacement vehicles.
2008AP2188 Venerable v. Adams
Issue date: May 5, 2009

Where an injury arises from both a covered and excluded risk jointly, then coverage is triggered under a CGL policy.
2008AP1753 Estate of Jones v. Smith
Issue date: June 1, 2009

Section 632.32(4) requires that the uninsured motorist clause of an insurance policy provide coverage when a detached piece of an unidentified motor vehicle is propelled into the insured’s motor vehicle by an identified motor vehicle.
2008AP2744 Tomson v. American Family Mut. Ins. Co.
Issue date: Sept. 7, 2009

Where a contractor fails to perform its obligations under a contract and the bond is conditioned upon the contractor’s faithful performance of all of its obligations under the contract, the performance bond surety is liable for latent defects in the contractor’s work.
2008AP3022 Milwaukee Board of School Directors v. Bitec, Inc.
Issue date: Sept. 14, 2009

An insurer is not liable for the intentional criminal acts of its insured.
2008AP2872 James Cape & Sons. Co. v. Streu Construction Co.
Issue date: Sept. 14. 2009

An insurer has a duty to defend a developer sued by condominium owners claiming misappropriation of common elements.
2009AP550 Piper v. Nitschke’s Northern Resort Condominium Owner’s Association, LLC
Issue date: Nov. 9, 2009

Even though a homeowner policy provided coverage for invasion of privacy, a criminal acts exclusion barred coverage if the insured’s actions constituted invasion of privacy under the penal code.
2008AP1301 Gillund v. Meridian Mut. Ins. Co.
Issue date: Dec. 7, 2009

A lessor is not liable for an accident caused by the negligent operation of the rented vehicle if the vehicle is covered by the lessee’s policy.
2006AP1229, 2006AP2512 & 2007AP369 Casper v. American International South Ins. Co.
Issue date: Dec. 28, 2009

Adult non-resident relatives of an insured cannot recover under his underinsured motorist coverage.
2009AP894 Estate of Stys v. The Auto Club Group Ins. Co.
Issue date: Dec. 28, 2009

Juveniles
At a reverse waiver hearing, the juvenile may not present evidence contradicting the offense charged in the criminal complaint.
2007AP2827-CRAC State v. Kleser
Issue date: March 16, 2009

Municipal Law
A town may enter an agreement with a developer that requires the developer to waive the right to seek annexation into another municipality.
2008AP1795 Town of Waukesha v. 164 of Waukesha Limited Partnership
Issue date: Sept. 21, 2009

Municipalities
A town may not purchase land or construct a building without approval from the electors.
2008AP1793 Town of Clayton v. Cardinal Construction Co., Inc.
Issue date: March 16, 2009

An annexation is not invalid, even though two property owners signed without written authorization from their LLCs.
2008AP511 Sanitary District No. 4 – Town of Brookfield v. City of Brookfield
Issue date: April 6, 2009

A county may not enact ordinances to regulate windmills.
2007AP2109 Ecker Brothers v. Calumet County
Issue date: July 20, 2009

Municipalities have no authority to regulate power lines once the PSC has authorized them.
2008AP2604 American Transmission Co., LLC v. Dane County
Issue date: Aug. 3, 2009

A town may not avoid extraterritorial zoning by a village via a conditional use permit.
2008AP2997 State ex rel. Village of Newburg v. Town of Trenton
Issue date: Aug. 31, 2009

In order for a use to be protected as a nonconforming use under sec. 59.69(10)(a), the property owner must make a substantial investment in the use or suffer a substantial financial loss if the use is discontinued.
2008AP546 Town of Cross Plains v. Kitt’s Field of Dreams Korner, Inc.
Issue date: Oct. 5, 2009

Property
Even though a judgment of foreclosure was vacated after the mortgagor paid the balance due, the doctrine of claim preclusion bars later claims by the mortgagor alleging misrepresentation.
2008AP496 Kowske v. Ameriquest Mortgage Co.
Issue date: March 30, 2009

Where a property owner could not show that inability to convert a garage to a residence would present undue hardship, his area variance was properly denied.
2008AP947 Driehaus v. Walworth County
Issue date: April 6, 2009

Although a property vendor had an adequate remedy at law for money damages, the trial court did not err when it entered a summary judgment and ordered the equitable remedy of specific performance of a real estate purchase contract.
2008AP1735 Ash Park LLC v. Alexander & Bishop Ltd.
Issue date: April 13, 2009

A sewer district’s removal of the groundwater supporting a building is a taking.
2008AP921 E-L Enterprises, Inc., v. Milwaukee Metropolitan Sewerage District
Issue date: Jan. 5, 2009

A lender may not obtain judgment against a debtor for the full amount of the debt where it elected a shortened redemption under sec. 846.103(2).
2008AP912 Bank Mutual v. S. J. Boyer Construction, Inc.
Issue date: Jan. 5, 2009

The Wisconsin Condominium Ownership Act, Wis. Stat. ch. 703, does not limit the duration of a developer’s control over a master-planned community.
2008AP10 Solowicz v. Forward Geneva National
Issue date: Jan. 5, 2009

An eviction stay pending the location of suitable housing pursuant to sec. 799.40(4) is only effective for a reasonable period of time.
2008AP1096 McQuestion v. Crawford
Issue date: Feb. 16, 2009

Section 182.017(7)(a), requiring power line easements to describe the maximum voltage of the lines, does not apply retroactively to easements granted before the statute’s 1975 effective date.
2007AP2673 Wisconsin Public Service Corp. v. Andrews
Issue date: March 2, 2009

Where a seller’s broker had contact with the buyer before the listing contact expired, it is entitled to a commission.
2008AP1509 Burkett & Associates, Inc. v. Teymer
Issue date: April 27, 2009

A clause in a residential lease making the tenant responsible for damages not caused by the tenant’s negligence is invalid.
2008AP1700 Maryland Arms Limited Partnership v. Connell
Issue date: May 25, 2009

When there is factual dispute regarding whether project influence existed, it was the proper exercise of discretion to admit the evidence of comparable sales for the jury to consider.
2008AP1165 Spanbauer v. DOT
Issue date: June 1, 2009

Use of an easement by the dominant party’s invitees does not impermissibly enlarge the easement.
2008AP2028 Grygiel v. Monches Fish & Game Club, Inc.
Issue date: June 15, 2009

Where a deed’s sand removal right did not evince an intention to limit the right’s transferability pursuant to sec. 706.10(3), it is transferable.
2008AP1144 Borek Cranberry Marsh, Inc., v. Jackson County
Issue date: Sept. 7, 2009

An express easement must contain an affirmative statement of exclusivity in order to convey the right to exclude the fee owner.
2008AP1756 Garrett v. O’Dowd
Issue date: Sept. 14, 2009

The proper forum in which to declare an uneconomic remnant and to compel the condemnor to include compensation for the remnant in its offer is in an action under sec. 32.06(5).
2009AP411 Waller v. American Transmission Co., LLC
Issue date: Nov. 2, 2009

The economic loss doctrine does not bar claims against a real estate broker.
2008AP2803 Shister v. Patel
Issue date: Nov. 2, 2009

Where the parties to the proposed contract agree that the contract is not to be effective or binding until certain conditions are performed or occur, no binding contract wil
l arise until the conditions specified have occurred or been performed.
2008AP1845 Town Bank v. City Real Estate Development, LLC
Issue date: Nov. 2, 2009

Even though an offer to purchase said it was subject to sellers obtaining home of their choice on or before a date two days after the contract was signed, the contract is not indefinite, illusory, and unenforceable.
2009AP507 Vohs v. Donovan
Issue date: Dec. 7, 2009

Where a landlord stopped payment on a check to a tenant after saying it was valid, and withheld money from her security deposit for a payment to a third party, and then never applied the money to the payment, punitive damages could be awarded.
2009AP1011 Boelter v. Tschantz
Issue date: Dec. 28, 2009

Tax
Where no recent sales or comparable properties existed, a city assessor properly used a parking lot’s income to determine is fair market value.
2008AP510 Allright Properties, Inc., v. City of Milwaukee
Issue date: March 16, 2009

Ticket sales by the Milwaukee Symphony Orchestra were properly found by the Tax Appeals Commission to be taxable as entertainment, rather than exempt as educational.
2008AP1684 Milwaukee Symphony Orchestra Inc. v. Wisconsin Department of Revenue
Issue date: April 27, 2009

Multifunction copier/printer/scanner/fax devices leased to consumers are not exempt from personal property taxes under sec. 70.11(39).
2007AP2884 Xerox Corp. v. DOR
Issue date: Aug. 10, 2009

Vacant lad reserved for development within a partially developed condominium project is a common element, and the developer is not liable for property taxes on it.
2007AP2886 The Saddle Ridge Corp. v. Board of Review for Town of Pacific
Issue date: Sept. 7, 2009

The procedures for challenging property tax assessments in Milwaukee County are not unconstitutional.
2009AP524 Metropolitan Associates v. City of Milwaukee
Issue date: Sept. 14, 2009

A church-owned residence of the church custodian is not exempt from property taxes.
2009AP202 Wauwatosa Avenue United Methodist Church v. City of Wauwatosa
Issue date: Oct. 12, 2009

Where there were no reasonably comparable properties to use in assessing a property, it was not error to use the tier-three cost approach.
2008AP322 Nestle USA, Inc., v. DOR
Issue date: Oct. 19, 2009

Torts
Postoperative care is inextricably entwined with surgery, and does not require a separate informed consent.
2008AP133 Hageny v. Bodensteiner
Issue date: Jan. 5, 2009

Where a retraction demand did not include a statement of what are claimed to be the true facts, the subsequent libel suit should have been dismissed.
2007AP2931 DeBraska v. Quad Graphics, Inc.
Issue date: Jan. 26, 2009

Joint and several liability continues to apply to tortfeasors in strict product liability claims.
2008AP484 Industrial Risk Insurers v. American Engineering Testing, Inc.
Issue date: April 20, 2009

A supplier of products containing asbestos can be liable in negligence, even though it is not the manufacturer of the product.
2008AP170 Tatera v. FMC Corp.
Issue date: May 18, 2009

Where a psychiatric patient committed suicide, the claim against the hospital rests in ordinary negligence, not medical malpractice.
2008AP1611 Snyder v. Injured Patients and Families Compensation Fund
Issue date: June 1, 2009

The 10-year statute of repose for injury resulting from improvements to real property bars an action based on alleged failure to redesign the property.
2008AP2812 Hocking v. City of Dodgeville
Issue date: June 15, 2009

A tortfeasor cannot seek subrogation from the plaintiff’s treating physician for costs incurred via unnecessary medical treatment.
2008AP2156 Konkel v. Acuity
Issue date: Aug. 17, 2009

Even though a sidewalk crack produced less than inch of difference in elevation, it is a jury question whether it violated the safe place statute.
2008AP2990 Gulbrandsen v. H & D, Inc.
Issue date: Aug. 31, 2009

A plaintiff who settles a bad faith claim cannot recover attorney fees in addition to the settlement.
2008AP1605 Stewart v. Farmers Insurance Group
Issue date: Aug. 31, 2009

An employer is not liable for the tortious acts of an employee using a computer at work.
2008AP1528 Maypark v. Securitas Security Services USA, Inc.
Issue date: Sept. 7, 2009

Where two students had earlier cut themselves with scalpels while dissecting a flower, the teacher is not entitled to governmental immunity when she took no action to prevent a third accident.
2008AP2760 Heuser v. Community Insurance Corp.
Issue date: Oct. 5, 2009

Where factual questions exist on a plaintiff’s borrowed servant vicarious liability claim, summary judgment was improperly grated to her physician.
2008AP2474 Petzel v. Valley Orthopedics, Ltd.
Issue date: June 29, 2009

Trusts and Estates
Where the decedent could not change the beneficiary of his life insurance policy, but did so, and a factual question is present whether the new beneficiary was a bona fide purchaser for value, summary judgment was improperly granted.
2009AP155 Pluemer v. Pluemer
Issue date: Oct. 19, 2009

When a will contest results in a settlement, no party is entitled to attorney fees.
2009AP781 Wolf v. Wolf
Issue date: Nov. 23, 2009

Utilities
The Public Service Commission’s construction of its regulation to encompass within the word ‘customer’ a facility that is receiving and paying for electrical service from a municipal electric utility, even if that facility is owned by the municipality, is reasonable and is consistent with the language and purpose of the regulation and the purpose of the anti-duplication statute.
2008AP2823 Wisconsin Power & Light Co. v. PSC
Issue date: Nov. 9, 2009