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    Wisconsin Lawyer
    February 01, 1998

    Wisconsin Lawyer February 1998: Court of Appeals Digest

    Wisconsin Lawyer
    Vol. 71, No. 2, February 1998

    Court of Appeals Digest

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

    | Arbitration | Attorneys | Attorney Fees | Civil Procedure | Contracts | Criminal Law | Criminal Procedure | Family Law | Insurance | Motor Vehicle Law | Torts |


    Arbitration

    Costs - Pre-verdict Interest

    Finkenbinder v. State Farm Mut. Auto Ins. Co., No. 97-0357 (filed 12 Nov. 1997) (ordered published 17 Dec. 1997)

    The plaintiff arbitrated her claim against her underinsurance carrier. Following the arbitrator's award of $131,000, she moved the trial court to award costs, pre-verdict interest on her medical expenses, and post-award interest on all damages. The trial judge denied the motions and she appealed.

    The court of appeals, in an opinion written by Judge Snyder, affirmed. First, the court held that section 814.10 of the Wisconsin Statutes does not contemplate an award of costs in arbitration proceedings; rather, the statute envisions a "prevailing party" in a "litigated trial court proceeding." Second, the plaintiff waived any claim for pre-verdict interest on the stipulated medical expenses by not raising it before the arbitrator. Finally, her claim for "pre-verdict interest on all tort damages, liquidated or unliquidated," ran squarely against binding precedent that only the supreme court could overturn.


    Attorneys

    Legal Malpractice - Causation

    Seltrecht v. Bremer, Grischke & Bremer S.C., No. 96-2065 (filed 7 Oct. 1997) (ordered published 20 Nov. 1997)

    The court of appeals, in an opinion written by Judge Fine, framed the issue in this case as follows: "When a client is represented sequentially by two lawyers, both of whom were arguably negligent with respect to the same matter, can the first lawyer's alleged negligence be a cause of the client's damages if the client would not have sustained any damage if the second lawyer could have prevented the harm but did not?" The court held that the answer is "no."

    The case is an "imbricated medical/legal malpractice case" involving a deformed child born in 1969. Consulted in 1987, the first attorney allegedly advised the plaintiffs that the statute of limitations on the medical malpractice case had expired. On Oct. 18, 1991, a second attorney examined the case and filed a medical malpractice suit against various defendants that was later dismissed for failure to prosecute because the defendants were not served. This case's complicated chronology is nicely summarized in six pages by the court. The complications result because of changes in case law and statutes governing the statute of limitations between 1969 and October 1991. The court held that in October 1991 the applicable law required the commencement of the medical malpractice action by Oct. 19, 1991 (the date of the boy's 22nd birthday).

    The court further concluded that the plaintiff's right to sue the doctor was not lost until the second lawyer's complaint was dismissed for lack of prosecution. Accordingly, the first lawyer's alleged negligence was not, as a matter of law, a cause of the plaintiff's loss of their cause of action against the doctor. The court also affirmed the trial judge's decision ordering the plaintiffs to pay the defendants costs of certified copies of two depositions and a set of medical records.

    Sanctions - Depositions - Instructions Not to Answer - Experts

    Burnett v. Alt, Nos. 96-3356 and 96-3588 (filed 25 Nov. 1997) (ordered published 17 Dec. 1997)

    A doctor and his lawyer appealed orders that compelled discovery of the doctor and imposed sanctions on the lawyer. Specifically, the doctor was directed to answer questions at a deposition as a nonparty expert witness. The lawyer was sanctioned under sections 804.12(1) and (2) of the Wisconsin Statutes. The sanctions stemmed from the attorney's instruction to the doctor not to answer certain questions at a deposition. The court of appeals, in an opinion written by Judge Cane, affirmed.

    First, the trial court did not abuse its discretion in imposing sanctions against the lawyer. The lawyer argued that he was "duty bound" to protect his client (the doctor) against providing uncompensated expert testimony to plaintiffs as opposed to transactional testimony. Conceding that the lawyer's position had merit and acknowledging his efforts to resolve the matter with plaintiff's counsel before the deposition, the court observed that the lawyer should have moved for a protective order under Wis. Stat. section 804.01(3) or sought a telephonic ruling pursuant to section 804.05(4)(b). The lawyer followed neither avenue.

    Second, the trial court did not abuse its discretion in ordering the doctor to respond to various questions at the next deposition. To the extent that the order was ambiguous or invited attempts by plaintiff to obtain "uncompensated expert testimony," the doctor's lawyer was urged to use the alternatives of telephone rulings or protective orders.


    Attorney Fees

    Guardians - Wis. Stat. Section 880.22 - "Just Debts of the Ward"

    Community Care Org. of Milwaukee County Inc. v. Evelyn O., Nos. 96-2108 & 96-3254 (filed 28 Oct. 1997) (ordered published 20 Nov. 1997)

    The Community Care Organization Inc. was a private company that contracted with the county to provide elder-abuse monitoring and prevention services under section 46.90 of the Wisconsin Statutes. Under the contract, Community Care filed petitions for guardianships and protective placement against two elderly women. Eventually both women were placed in protective settings. Over objections by the women's guardian ad litem, the trial judge ordered the guardianship estates to pay attorney fees to Community Care under Wis. Stat. section 880.22, which requires that guardians "pay the just debts of the ward."

    The court of appeals, in an opinion written by Judge Fine, reversed. Community Care argued that it had provided legal services to both women by "successfully putting them under the protective wings of others." The argument overlooked the fact that neither woman contracted with Community Care or approved of its actions. Moreover, Wis. Stat. section 46.90(5m)(c) gives the elderly the right to refuse to accept services. And under section 880.22 the attorney fees were not the "debts" of the wards. Under the American rule each party is responsible for its own attorney fees. Wisconsin recognizes a narrow exception to the American rule where an insured incurs attorney fees in establishing coverage under an insurance policy. Judge Fine saw nothing about this case that warranted a similar finding and suggested that this was a matter best left to the Legislature.

    Temporary Guardians - Breach of Trust - Conflict of Interest - Frivolous Appeals

    Yamat v. Verma L.B., No. 96-2313 (filed 14 Oct. 1997) (ordered published 20 Nov. 1997)

    An attorney appealed the denial of his request for attorney fees in his role as a temporary guardian. The court of appeals, in an opinion written by Judge Curley, affirmed the denial but justified the result on different grounds. The trial judge had authority to award zero compensation if it found that the attorney had breached his trust with the ward. The record revealed an apparent conflict of interest involving a personal relationship between the attorney's "employer" and another lawyer who represented the ward's son, who had filed the petition declaring the ward incompetent. Even more egregious, the guardian/attorney later went to work for the attorney who represented the ward's son! At no time did the guardian/attorney "acknowledge and rectify the inherent nonwaivable conflict of interest created by his employment relationship." Other evidence established that he was also "derelict in his duties" and engaged in "self-dealing." The court of appeals closed by remanding the matter to the trial court for the imposition of costs against the same attorney for filing a frivolous appeal. Wis. Stat. § 809.25.

    Public Officers - School Principals - Wis. Stat. Section 895.46

    School Board of Pardeeville v. Bomber, No. 97-1469 (filed 23 Oct. 1997) (ordered published 20 Nov. 1997)

    A school principal submitted her resignation to the school board and received a release from her contract to take another job. The former principal also received her last paycheck. The contract required her to pay a $500 penalty for an early release, but she paid only $315, deducting "unused sick leave." Eventually, the school board sued her for the $185 balance along with two weeks of vacation time the board now claimed she should not have been paid for. The circuit court granted summary judgment in favor of the former principal and awarded her legal fees and costs under section 895.46 of the Wisconsin Statutes, which provides that the governmental unit must pay reasonable attorney fees and costs in such actions unless the judge rules that the public officer or employee was not acting within the scope of her employment when the "acts" occurred. The school board appealed the award of attorney fees and costs.

    The court of appeals, in an opinion written by Judge Deininger, reversed. First, this case involved a dispute over money; the principal was defending her personal right to keep the monies she claimed belonged to her. No official "acts" by the board or the principal were involved. In short, the court was unpersuaded that this case involved the principal's acts committed while carrying out her duties as an officer. Nor did this case fall under statutory language covering cases where the governmental unit is absolutely liable for judgment rendered against an officer. To so hold would mean concluding that the board would have been absolutely liable for a judgment rendered against the principal. In sum, the principal was not entitled to costs and attorney fees under section 895.46(1).

    Judge Dykman dissented on the ground that the pay dispute could be traced to "acts" done by the principal while employed by the school district.


    Civil Procedure

    Settlements - Distribution Orders - Challenges

    Herlache v. Blackhawk Collision Repair Inc., No. 97-0760 (filed 11 Nov. 1997) (ordered published 17 Dec. 1997)

    An insurance company appealed an order approving a settlement and distributing the proceeds. The insurer also appealed an order denying its motion to vacate the distribution order and authorize the creation of a trust for the minor children. The court of appeals, in an opinion written by Judge Hoover, affirmed because the insurer failed to appear at the hearing upon which the distribution was based and did not demonstrate excusable neglect for the omission (it offered an "office mix-up" excuse). "While [the insurer] does not lose its right to share in the recovery by its failure to participate, it does forfeit its right to object to the application of the settlement proceeds to specific claims."


    Contracts

    Motor Vehicle Repair Code - Vehicle Restoration - Damages

    Jagodzinski v. Jessup, No. 97-0787 (filed 25 Nov. 1997) (ordered published 17 Dec. 1997)

    The plaintiff had been hired by the defendants to restore their 1957 Chevy. He was supposed to restore part of the car and then turn it over to a restoring specialist. The plaintiff's bill came to nearly $12,000 which the defendants refused to pay, citing shoddy workmanship that had led to a higher bill from the restoration specialist. When the plaintiff sued them for payment, the defendants counterclaimed for damages and also asserted that the plaintiff had violated the motor vehicle repair code, entitling them to double damages plus costs and attorney fees. The judge ruled that the motor vehicle repair code was inapplicable to restoration projects and awarded judgment to the plaintiff.

    The court of appeals, in an opinion written by Judge Myse, reversed. The court held that restoration work falls within the definition of "repairs" under the code. "Customers" was broadly defined to encompass the owners of all motor vehicles, including "well-informed car collectors." The court also reversed the determination of damages based upon a factual error made by the judge.


    Criminal Law

    Bail Jumping - Multiple Violations of Same Bond Arising Out of Single Episode

    State v. Anderson, Nos. 96-0087-CR and 96-0088-CR (filed 8 Oct. 1997) (ordered published 20 Nov. 1997)

    The defendant was on bail pending trial on a substantial battery charge. He was under the supervision of a single bond. Among the conditions of his bond was one prohibiting him from consuming alcohol and another prohibiting contact with his girlfriend, the battery victim. While the defendant was on bail, the police were called to the girlfriend's residence. When they arrived, the defendant was there and it was apparent that he had been drinking. Both the drinking and his presence at the residence violated bond provisions. As a result, he was charged and subsequently convicted of two counts of felony bail jumping.

    The court of appeals reversed. In a decision authored by Judge Snyder, the court agreed with the defendant that, because he was under a single bond, and the two bail jumping charges were for "an act of contact and drinking at the same time on the same day and at the same place," charging him twice for bail jumping was multiplicitous.

    Burglary - Arming Oneself While in Burglarized Premises - "Trigger-locked" Firearm

    State v. Norris, No. 96-2158 (filed 23 Sept. 1997) (ordered published 20 Nov. 1997)

    The defendant was convicted of aggravated burglary contrary to Wis. Stat. section 943.10(2)(b), which makes it a Class B felony to commit a burglary under the following circumstances: "While unarmed, but arms himself with a dangerous weapon ... while still in the burglarized enclosure."

    In an opinion authored by Judge Hoover affirming the conviction, the court of appeals rejected the defendant's argument that the state was required to prove that he armed himself while in the burglarized enclosure to facilitate the commission of the burglary. This is not an element of the offense. The court also rejected the defendant's contention that, because the gun he armed himself with had a trigger lock, it could not be considered a "dangerous weapon." The statutory definition of "dangerous weapon" includes "any firearm." See Wis. Stat. § 939.22(10). Said the court, case law demonstrates that a firearm need not be operational to be considered a dangerous weapon. The gun the defendant armed himself with did not cease to be a dangerous weapon simply because it had a trigger lock. The court also pointed out that "a gun with a trigger lock remains a dangerous weapon because of its appearance and its potential use as a bludgeoning instrument."

    Controlled Substances - Conspiracy to Delivery Drugs

    State v. Cavallari, No. 96-3391-CR (filed 1 Oct. 1997) (ordered published 20 Nov. 1997)

    The defendant was convicted of conspiracy to deliver a controlled substance under Wis. Stat. section 161.41(1x) (a statute since renumbered to section 961.41(1x) without substantive change). On appeal he argued that the evidence introduced at trial was insufficient to prove a conspiracy to deliver controlled substances because the evidence established nothing more than a buy-sell agreement between himself and another. In State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995), the supreme court addressed the issue of whether an agreement between a buyer and a seller for delivery of a small amount of a controlled substance for personal use by the buyer constituted a conspiracy to deliver a controlled substance. The court concluded that it did not.

    Although Smith definitively stated when a buyer-seller relationship is not a conspiracy, it did not expressly identify when such a relationship might ripen into, or constitute, a conspiracy. In this case the court of appeals concluded that, in order to establish a conspiracy for purposes of section 161.41(1x), the state must present evidence that an agreement existed between the seller and the buyer that the buyer will deliver at least some of the controlled substances to a third party.

    Escape from Custody - Failure of Person Jailed for Failing to Pay Forfeiture to Return from Work Release

    State v. Smith, No. 97-0266-CR, and State v. Dybdal, No. 97-1038-CR (filed 29 Oct. 1997) (ordered published 20 Nov. 1997)

    The defendants were placed in the county jail after failing to pay a forfeiture following their convictions for noncriminal municipal violations. While jailed, they were granted Huber work release privileges. Neither returned to the county jail after being temporarily released for work. They both were convicted of escape and the court of appeals affirmed.

    In a decision authored by Judge Brown, the appellate court concluded that the Legislature meant to include those persons incarcerated due to nonpayment of a forfeiture as being subject to a misdemeanor escape charge if they abscond from work release.

    Sexual Assault - Constitutionality of Wis. Stat. Section 940.225(2)(c) - Sexual Assault of a Person Suffering from Mental Illness or Deficiency

    State v. Smith, No. 96-2961-CR (filed 6 Nov. 1997)(ordered published 17 Dec. 1997)

    The defendant was convicted of violating Wis. Stat. section 940.225(2)(c), which prohibits "sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition." The circuit court dismissed the case after concluding that the statute is unconstitutionally vague.

    The court of appeals, in a decision authored by Judge Roggensack, reversed. It concluded that the statute provides fair notice of the prohibited conduct and also provides an objective standard for enforcement of violations.

    To convict a defendant under section 940.225(2)(c), the state must prove all of the following: 1) that the defendant had sexual contact or sexual intercourse with the victim; 2) that the victim suffered from a mental illness or deficiency; 3) that the mental illness or deficiency rendered the victim temporarily or permanently incapable of appraising his or her own conduct; and 4) that the defendant knew that the victim had a mental illness or deficiency that rendered the victim temporarily or permanently incapable of appraising his or her own conduct.

    In this case the defendant did not assert that he had a First Amendment right to have sexual contact or sexual intercourse with the victim. Therefore, he could not make a challenge based on hypothetical facts. Based on the facts of his own case, the defendant contended that the statute is unconstitutionally vague because the words "incapable" and "appraising" did not give him fair notice of what type of conduct is proscribed.

    The appellate court rejected the defendant's position for three reasons. First, the defendant could not be found guilty absent proof of his knowledge that the victim's mental illness or deficiency rendered the victim temporarily or permanently incapable of evaluating the proposed sexual acts. Secondly, the commonly used definitions of "incapable" and "appraising" are not unconstitutionally vague. And third, when read in context, the statute evinces a clear legislative intention to protect those vulnerable citizens who may lack the capacity, temporarily or permanently, to protect themselves and to thereby put the defendant on notice to consider his own conduct differently than he otherwise may have done.

    Because the statute provides fair notice of the prohibited conduct and provides an objective standard for enforcement of violations, the court concluded that the defendant did not meet his burden of proving that it is unconstitutionally vague beyond a reasonable doubt. Accordingly, it reversed the order of the circuit court and remanded for further proceedings.

    Sexual Exploitation of Children - Constitutionality of Wis. Stat. Section 948.05(1)(c)

    State v. Zarnke, No. 97-1664-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    The defendant was charged under Wis. Stat. section 948.05 with capturing off the Internet sexually explicit images of young boys and then distributing copies of the pictures to others. The statute under which he was prosecuted provides that one commits a Class C felony if, with knowledge of the character and content of the sexually explicit conduct involving the child, he or she "produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes or possesses with intent to sell or distribute, any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct." The statute goes on to provide that "it is an affirmative defense to prosecution for violation of this section if the defendant had reasonable cause to believe that the child had attained the age of l8 years, and the child exhibited to the defendant, or the defendant's agent or client, a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of l8 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence."

    The parties to this litigation agreed that controlling precedent from the U.S. Supreme Court requires the state to prove that the defendant knew the age of the child involved as an element of the offense. The issue before the court of appeals was whether the Wisconsin statute impermissibly relieves the state of proving this element by providing ignorance of age as an affirmative defense.

    In a decision authored by Judge Hoover, the court concluded that the Legislature did not intend the affirmative defense quoted above to apply to those violations of the statute that do not concern face-to-face involvement with the child. The court agreed with the state that the statute can be saved and thus applied to the defendant by reading into it the requirement that the state prove knowledge of the minority of the persons depicted in the photographs as an element of the offense of distributing pictures of children engaged in sexually explicit conduct. In so holding, the court concluded that the Legislature did not intend to relieve the state of the burden of proving knowledge of age where the illegal conduct under section 948.05(1)(c) occurs outside of the child's presence.


    Criminal Procedure

    Sentencing Following Revocation of Probation - Relevant Information

    State v. Schordie, No. 97-0071-CR (filed 15 Oct. 1997) (ordered published 20 Nov. 1997)

    The defendant was convicted of felony bail jumping. The circuit court withheld sentencing and placed him on probation for five years. The defendant subsequently violated the terms of his probation and, following revocation of probation, the trial court sentenced him to the maximum term for the felony bail jumping conviction.

    On appeal the defendant argued that it was improper for the trial court to consider at sentencing the acts he had committed that resulted in the probation revocation. In an opinion authored by Judge Brown, the court of appeals concluded that a trial court may consider all relevant information when imposing sentence following revocation of probation, including the acts resulting in that revocation.

    Juries - Strikes for Cause - New Trial

    State v. Ferron, No. 96-3425-CR (filed 21 Oct. 1997) (ordered published 20 Nov. 1997)

    The court of appeals, in an opinion written by Judge Cane, reversed the defendant's conviction for burglary and remanded the matter for a new trial. The court held that the trial judge erroneously refused to strike a juror for cause, thereby forcing the defendant to use a peremptory strike to excuse the juror, which "arbitrarily deprived" him of his "right to exercise his full complement of peremptory challenges." The juror in question indicated that she might not be able to follow the presumption of innocence instructions if the defendant declined to testify on his own behalf. The court of appeals concluded that the juror had expressed a clear bias against defendants who chose not to testify and never indicated that he could, or would, follow the jury instructions to the contrary.

    The defense did not deny that the jury actually impaneled was fair and impartial. But applying State v. Ramos (1997), the court held that the defendant was entitled to his full complement of peremptory challenges. The record revealed that he used his first peremptory strike to remove the offending juror.

    Sentencing - Imposition of Sentence Consecutive to Jail Time Defendant Serving as a Condition of Probation

    State v. Maron, No. 97-0790-CR (filed 23 Oct. 1997) (ordered published 20 Nov. 1997)

    The trial court imposed a sentence of 75 days in jail with Huber privileges to be served consecutive to the jail time the defendant already was serving as a condition of probation in another case. On appeal the defendant contended that the trial court lacked the authority to impose a sentence consecutive to jail time already being served as a condition of probation.

    The court of appeals, in a decision authored by Judge Vergeront, reversed and remanded. The court concluded that Wis. Stat. section 973.15(2) does not give the trial judge authority to order that the sentence be served consecutive to jail time already being served as a condition of probation.

    Search Warrants - Searches of Vehicles - Post-conviction Discovery Guidelines

    State v. O'Brien, No. 96-3028-CR (filed 22 Oct. 1997) (ordered published 20 Nov. 1997)

    The court of appeals, in a decision authored by Judge Anderson, affirmed the defendant's sexual assault convictions and an order denying his motion for a Machner hearing. The opinion addresses several important issues of statewide importance.

    First, the court held that a search warrant for a "premises" extended to the search of a truck, a barn and an outbuilding. "[T]he warrant was actually to search O'Brien's premises and person; he was not a third-party visitor to the home who happened to be caught up in the search. Also, O'Brien's truck was parked on the premises, not on a public street."

    Second, the defendant filed a motion for post-conviction discovery, seeking independent testing of certain exhibits. To provide necessary guidance on this issue, the court set forth the following "guidelines" governing post-conviction discovery requests. The defendant must: "1) provide supporting affidavits with the motion which describe the material sought to be discovered and explain why the material was not supplied or discovered at or before trial; 2) establish that alternative means or evidence is not already available such that the post-conviction discovery is necessary to refute an element in the case; 3) describe what results the party hopes to obtain from discovery and explain how those results are relevant and material to one of the issues in the case; and 4) after meeting the first three criteria, the party must then convince the trial court that the anticipated results would not only be relevant, but that the results would also create a reasonable probability of a different outcome." On this record, the defendant was not entitled to post- conviction discovery.

    Parole - Revocation of Parole - Credit for "Street Time"

    State ex rel. Ludtke v. Department of Corrections, No. 96-1745 (filed 15 Oct. 1997) (ordered published 17 Dec. 1997)

    The defendant was released on parole following service of part of his sentence in prison. He successfully remained on parole for more than three years, but his parole was subsequently revoked and he was reincarcerated. The Department of Corrections thereafter advised the defendant with regard to the amount of time remaining on his sentence, giving him credit for some, but not all, of the time he had spent on parole ("street time").

    The defendant filed a petition seeking a writ of habeas corpus discharging him from custody claiming that he had been unlawfully denied credit for time already served on parole. His argument was that he was entitled to credit for all of his street time and, had he been given such credit, he would be entitled to immediate discharge.

    In a decision authored by Judge Nettesheim, the court of appeals concluded that the resolution of the issue presented by the defendant is governed by Wis. Stat. section 302.11(7). This statute provides that, if parole is revoked, the parolee may be returned to prison for a period up to the remainder of the sentence. "The remainder of the sentence is the entire sentence, less time served in custody prior to parole."

    Applying this statute, the court concluded that the defendant was not entitled, as a matter of law, to sentence credit for his full street time while on parole. With reference to credit that was actually awarded by the department, the court held that the defendant was properly credited with all custody confinement to which he was entitled and that he was properly credited with some of his street time that the department deemed appropriate pursuant to section 302.11 (7) (a). Finally, the court concluded that the defendant's right to protection from double jeopardy was not violated when he was denied credit for the entire time he served on parole prior to revocation.

    Jury Selection - Batson - Strikes Based on Gender and Age

    State v. King, No. 97-1509-CR (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)

    Purposeful racial and gender discrimination in selecting the jury violates a litigant's right to equal protection because it denies the protection that a trial by jury is intended to secure. See Batson v. Kentucky, 476 U.S. 79 (l986). See also J.E.B. v. Alabama, 511 U.S. 127 (1994) (where the Court held that the Equal Protection Clause forbids intentional discrimination on the basis of gender just as it prohibits discrimination on the basis of race).

    In this case the defendant argued that the prosecutor violated his equal protection rights when she purposely struck older females from the jury. This was a sexual assault prosecution and the district attorney indicated that her experience in trying sexual assault cases was that older females are very judgmental of female sexual assault victims. The thrust of the defendant's argument was that the prosecutor was prohibited from using gender as a basis upon which to strike the jurors in question. The state acknowledged that gender was a factor and that it was not a valid reason for striking a juror. However, it argued that age was a valid reason and, since there were two reasons for the strikes, the appellate court should adopt the "dual motivation test" to determine whether to allow these strikes. [In footnote the court noted that the state had cited a number of federal decisions holding that removing a juror because of age is not a violation of the Equal Protection Clause. The appellate court assumed without deciding that age is a permissible reason.]

    Under "dual motivation" analysis, the party who exercised the strike must prove that the strike would have been exercised regardless of the discriminatory motivation. Under this analysis, a prohibited factor, such as gender, would not automatically result in an equal protection violation. If there were other permissible motivating factors, the prohibited factor must have been the decisive one in order for a constitutional violation to occur. In this case the state contended that age - not gender - was the decisive factor.

    The court of appeals noted that it had previously rejected the state's argument, although at the time it was not denominated "dual motivation." See State v. Jogodinsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997). It concluded in this case that the circuit court clearly erred when it concluded that the prosecutor had not purposely engaged in gender discrimination by striking the jurors in question because gender was not the sole factor. Based on the prosecutor's statement that she struck these two jurors because they were older females, the only correct conclusion on this record, said the court, is that the prosecutor purposely used gender as a basis for striking these jurors. Following its holding in Jagodinsky, the court concluded that this constituted a violation of the Equal Protection Clause and the only remedy is reversal of the conviction and remand for a new trial.

    Jury Trial - Simultaneous Jury Trials of Two Defendants

    State v. Avery, No. 96-2873-CR (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    Section 971.12(3) of the Wisconsin Statutes ("Relief from Prejudicial Joinder") provides that the district attorney shall advise the court prior to trial if he or she intends to use the statement of a codefendant that implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant.

    The situation contemplated by the statute arose in this case and, instead of conducting two completely separate jury trials, the court proceeded to try the two defendants simultaneously but before two juries. The defendant's attorney did not object to this procedure and, on appeal, the defendant claimed that counsel was ineffective for failing to make that objection, contending that Wisconsin law does not allow for simultaneous trials of two defendants before two juries.

    The court of appeals, in a decision authored by Judge Schudson, affirmed. It concluded that Wisconsin law does allow for the simultaneous trials of two defendants before two juries and that, in this case, the trial court carefully employed dual jury procedures that protected the defendant's rights. Among other things there was separate jury selection, separate opening and closing statements, and separate jury instructions. The jury of one defendant was excluded from the court during the presentation of evidence inadmissible as to that defendant. Thus, the evidence received by the defendant's jury at the joint trial was exactly what the evidence would have been had he been tried alone. Therefore, the dual jury procedure in effect provided the severance of defendants contemplated by the statute cited above.

    Probation - Expiration of Probation Term - Unfulfilled Conditions of Probation

    State v. Stefanovic, No. 97-1791-CR (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)

    The defendant was convicted of carrying a concealed weapon. The court withheld sentence and placed her on probation for one year. As a condition of probation, the court ordered the defendant to serve 30 days in the county jail.

    The defendant filed a notice of intent to pursue post-conviction relief and a motion for release pending appeal. The trial court granted the request for release pending appeal. However, the court did not stay the probation and thus the defendant remained on probation during the course of her appeal.

    More than one year later, the defendant's conviction was affirmed by the court of appeals. By this time, however, the defendant had already served her one-year term of probation and the Department of Corrections had issued its certificate discharging her from probation. Following remittitur, the trial court scheduled a hearing to determine whether it could order the defendant to serve the 30-day jail term, which had been imposed as a condition of probation, even though the period of probation had expired. The court concluded that it had not lost jurisdiction over the defendant and thus ordered her to serve the jail term.

    The court of appeals, in a decision authored by Judge Nettesheim, reversed. It concluded that the trial court had lost jurisdiction over this case when the period of probation expired. In making this ruling, the appellate court candidly acknowledged that the trial court's loss of jurisdiction frustrated the court's sentencing scheme. However, "it is axiomatic that before any court can act, it must have jurisdiction to do so."

    In the course of its discussion the court noted that Wis. Stat. section 973.09(3)(a) allows a trial court to extend probation for cause if such action is taken prior to the expiration of the original probation period. However, no such extension was sought in this case by the state, the Department of Corrections, or the trial court.

    Probation Revocation - Certiorari Review - Habeas Corpus Not Available

    State ex rel. Reddin v. Galster, No. 97-0111 (filed 20 Nov. 1997) (ordered published 17 Dec. 1997)

    The defendant was imprisoned following revocation of probation. He challenged that revocation by seeking a writ of habeas corpus, claiming that the proceedings to revoke him were defective. The circuit court denied the habeas petition.

    The court of appeals, in a decision authored by Judge Deininger, affirmed because habeas corpus proceedings are not available for the purpose of challenging an administrative order revoking probation. Review of probation and parole revocation decisions is by certiorari directed to the court of conviction. The court further concluded that even if it were to construe the defendant's petition as one for certiorari, it would still affirm the trial court's dismissal order. The petition was not filed for more than one year after probation was ordered revoked and was thus barred by laches. See State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565, 252 N.W.2d 28 (1977) (certiorari proceedings not commenced within six months of the action sought to be reviewed are barred by laches).

    In this decision the court noted that it has previously intimated that a writ of habeas corpus may be available to raise a claim of ineffective assistance of counsel during probation revocation proceedings. See State v. Ramey, 121 Wis. 2d 177, 359 N.W.2d 402 (Ct. App. 1984). The Ramey court held that a claim of ineffective assistance of counsel during probation revocation proceedings could not be addressed on certiorari review, because the scope of that review is solely upon the actions and determinations of the administrative decisionmaker. In this case the defendant raised no claim regarding the effectiveness of his representation during the probation revocation proceedings. He challenged the administrative decision to revoke his probation on procedural and substantive grounds. A circuit court review of those issues was available by certiorari, an adequate remedy, which thus precluded the issuance of a writ of habeas corpus.


    Family Law

    Divorce - Child Support - Nonmodifiable Stipulations - Public Policy

    Krieman v. Goldberg, No. 96-3489 (filed 8 Oct. 1997) (ordered published 20 Nov. 1997)

    The parties were married in 1976 and divorced in 1987. Custody of their four children went to their mother. Various post-divorce issues have been the subject of litigation with much of it pertaining to the level of child support the father is required to pay. In 1995 the trial court signed an order based upon the parties' stipulation which, among other things, provided for a specific amount of child support and further provided that, regardless of the father's future income, the child support level shall remain the same and that "neither party shall under any circumstances have the right to petition the court for a modification of the child support provided for [in the stipulation]."

    The father subsequently filed a motion requesting modification of his child support obligation and, on appeal, one of the issues was whether an agreement with language that absolutely prohibits the modification of child support under any circumstances offends public policy. In a decision authored by Judge Snyder, the court concluded that the absolute stipulation agreement, with no time limitation or opportunity for review, is against public policy and that the father is therefore not estopped by the stipulation from seeking a modification of his support obligations due to a material change in circumstances.

    In reaching this conclusion the court relied on the decision in Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990). Ondrasek stands for the proposition that the child's best interests are served through a policy that does not preclude a payee from seeking a modification in child support because of a change of circumstances, even though the parties had stipulated to a nonmodifiable amount of support. Pursuant to Ondrasek, the mother in this case retains the ability, in spite of the stipulation agreement, to come back to the court and request a modification of the support agreement if there is a change in circumstances and the children's best interests require a modification of the payment. However, to prohibit the payor parent from exercising the same right ignores the reality that the supporting parent's financial circumstances may change dramatically for reasons beyond the payor's control.

    A stipulation that purports to make child support nonmodifiable and is unlimited as to time could impoverish the payor parent and place him or her in financial jeopardy. "A court must consider the vagaries of life and the reality that a specific circumstance may require an adjustment of an agreed-upon level of support, even where the parties have entered into a stipulation agreement. To hold otherwise and subject a payor parent to an unreviewable stipulation for child support could jeopardize a payor parent's financial future, may have detrimental effects on the parent-child relationship and in this way would ultimately not serve the best interests of the child."

    The court distinguished the decision in Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), where it considered the question of whether a party to a divorce may stipulate to maintaining a certain level of child support notwithstanding a subsequent reduction in the parties' income. The parties' agreement in that case stated that the payor father had agreed to maintain a specific level of child support monthly, notwithstanding a reduction in his income or other financial factors "at least until the youngest child ... is in first grade." The Honore decision concluded that such a stipulation was not contrary to public policy. In this case the stipulation differed from that in Honore in one significant respect. The stipulation in Honore included a point in time at which the stipulated payment could be reviewed and adjusted based upon a change of circumstances. Thus, the payor spouse in that case was bound to a certain level of payment for a time certain, at which point he could request a reevaluation. In the instant case, however, the agreement as written contained no such provision and thus was contrary to public policy.


    Insurance

    Pollution Exclusion - Paint Chips

    Peace v. Northwestern National Ins. Co., No. 96-0328 (filed 18 Nov. 1997) (ordered published 17 Dec. 1997)

    A young boy allegedly suffered injuries from ingesting lead-based paint. The parties appealed an order granting summary judgment to an insurer based on the conclusion that the insurer had no duty to defend or indemnify the homeowner because of the pollution exclusion clause. Originally, the court of appeals affirmed the judgment based on a case-law distinction between lead from "intact accessible painted surfaces" and lead from "paint chips, paint flakes and dust." The court of appeals revisited this case in light of the supreme court's decision in Donaldson v. Urban Land Interests Inc., 211 Wis. 2d 224 (1997).

    The court of appeals, in an opinion written by Judge Schudson, now reversed the trial court. "Contaminants" fall within a policy's pollution exclusion clause. Donaldson "obliterated" the distinction between lead from paint on intact surfaces, which was not deemed to be a "contaminant," and lead from paint chips, flakes or dust, which was a contaminant. The court held that "lead in paint chips, flakes, or dust is not a contaminant" and thus the pollution exclusion clause does not apply.

    Judge Fine dissented, disagreeing with the majority's interpretation of Donaldson ("this case does not involve the failure of a mechanism to either regulate or flush a byproduct of life before that substance reaches dangerous levels").

    Homeowner's Coverage - Motor Vehicle Exclusion - "Using or Operating"

    Poppy v. Muehlenberg, No. 97-0822-FT (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    The plaintiff, a child, broke her arm when the school bus on which she was riding lurched to a sudden stop. The abrupt stop occurred because a 14-year-old girl, Maggie, "stepped" on the driver's foot while it was on the brake pedal. The plaintiff sued the bus driver, the bus company and its insurer, who in turn filed a third-party complaint against Maggie, her parents and their homeowner's insurer. The homeowner's carrier ("the insurer") moved for summary judgment citing the policy exclusion when an insured is "using" or "operating" any type of motor vehicle. The trial judge dismissed the insurer.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The court held that "a person may be using or operating a vehicle even if they do not exercise complete control over the vehicle." Maggie did not have "complete control" over the bus, but her "horseplay" caused the lurching stop. Thus, taking control of a vehicle, even if "only for an instant," brings the insured within the exclusion.


    Motor Vehicle Law

    OWI - Collateral Attack on Prior Convictions Used to Enhance Penalty

    State v. Foust, No. 97-0499-CR (filed 30 Oct. 1997) (ordered published 20 Nov. 1997)

    Wis. Stat. section 346.65(2) is a penalty statute that uses prior OWI convictions to enhance the punishment for subsequent offenses. The issue in this case was whether those prior convictions can be collaterally attacked in the present prosecution.

    In a decision authored by Judge Deininger, the court of appeals held that convictions used to enhance punishment are subject to collateral attack and, when it is established that a prior conviction was based upon a constitutionally defective plea, that conviction cannot be used in applying section 346.65(2). Though not the issue in this case, the court intimated that the same result would pertain when the state uses prior convictions to support a claim that the defendant is subject to the lower prohibited alcohol concentration of 0.08 applicable to certain repeat offenders.

    Implied Consent Law - Recanting Refusal to Submit to Testing

    State v. Rydeski, No. 97-0169-CR (filed 2 Oct. 1997) (ordered published 20 Nov. 1997)

    This case concerns the issue of whether a person arrested for OWI who refuses to submit to chemical testing may thereafter recant that refusal and be entitled to take the test. In a decision authored by Judge Dykman, the court of appeals answered in the negative.

    Based upon State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980) and the language of the implied consent statute, the court concluded that once a person has been properly informed of the implied consent law, that person must promptly submit or refuse to submit to the requested test, and that upon a refusal, the officer may "immediately" gain possession of the accused's license and fill out the Notice of Intent to Revoke form. A person's refusal is thus conclusive and is not dependent upon such factors as whether the accused recants within a "reasonable time," whether the recantation comes within the three-hour time period provided in Wis. Stat. section 885.235(1), or whether administering the test at a later time would inconvenience the officer or result in a loss of the test's evidentiary value.


    Torts

    Punitive Damages - Insurance Coverage

    Davis v. Allied Processors Inc., No. 97-0478 (filed 21 Oct. 1997) (ordered published 20 Nov. 1997)

    A jury awarded the plaintiff $585,000 in compensatory damages and assessed $500,000 in punitive damages against defendant Allied Processors Inc. The jury also found that the plaintiff was 10 percent and Allied was 90 percent at fault. An insurer, Western National Mutual Ins. Co., had issued Allied two liability policies. One provided primary coverage in the amount of $500,000 and a second provided excess coverage of $2,000,000. The primary policy was silent on the issue of punitive damages; thus, as mandated by the case law, it covered both compensatory and punitive damages. The excess policy expressly excluded punitive damages. The trial judge ruled that the punitive damages could be taken from the primary policy and the compensatories paid through the excess policy. The insurer appealed.

    The court of appeals, in an opinion written by Judge Nolan, reversed. Addressing a novel issue, the court concluded that the trial judge had, in effect, rewritten the agreement between the insurer and the insured. The contract language was not ambiguous. The parties had clearly bargained so that primary coverage should be exhausted by compensatory, not punitive, damages.

    Injured Employees - Worker's Compensation - Recovery of Lost Premium Dividends - Recovery of Higher Payments

    Vogel v. Liberty Mut. Ins. Co., No. 96-2145 (filed 28 Oct. 1997) (ordered published 20 Nov. 1997)

    An employee was injured during the course of her employment for Tank Transport. Tank's worker's compensation carrier paid her about $15,000 in lost wages and medical expenses. By the terms of the worker's compensation policy, Tank lost nearly $20,000 in premium dividends and was subjected to an "experience modifier" that increased its annual premiums by about $3,700. Tank sued the tortfeasor, his employer and the employer's insurer seeking recovery of its increased insurance expenses. The trial judge granted summary judgment to the defendants on the grounds that public policy and section 102.29 of the Wisconsin Statutes foreclosed such claims.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. Focusing on the public policy considerations, the court agreed that such claims open the door "to a field with no sensible stopping point."

    Judge Fine dissented, taking the position that public policy and precedent supported the claim.

    Statute of Limitations - Date of Injury

    Elfers v. St. Paul Fire & Marine Ins. Co., No. 96-3516 (filed 28 Oct. 1997) (ordered published 20 Nov. 1997)

    In 1985 the plaintiff, then a four-year-old child, fractured her arm. The defendant physicians failed, however, to diagnose a dislocated elbow. The dislocation was first diagnosed in 1989 in the course of other treatment; at this point the plaintiff suffered no pain, loss of motion, and so on. In 1993 she began to suffer symptoms linked to the dislocation. Plaintiff's current physician believes that these symptoms would not have occurred had the dislocation been identified and properly treated in 1985. In 1996 the plaintiff filed this medical malpractice lawsuit against the physicians who treated her in 1985. On summary judgment the circuit court found that the injury occurred in 1985 and the statute of limitations expired in 1988. The complaint was thus dismissed.

    The court of appeals, in an opinion written by Judge Myse, reversed. Applying Meracle v. Children's Serv. Soc'y (1989) the court determined that there was a disputed issue of fact over the date of the injury. More precisely, "[t]he Meracle case demonstrates that it is essential to know when it became reasonably certain that [the plaintiff] would suffer compensable damages as a result of the negligent act." The record in this case did not reveal the date with reasonable certainty; therefore, the issue was one of fact for the jury. The court cautioned that it disagreed with plaintiff's "apparent contention that an asymptomatic dislocated elbow is not an injury." The case was remanded to determine whether the dislocation could have been benign for a lifetime or whether the dislocation was reasonably certain to result in future disabilities (in which case she suffered the "injury" in 1985).

    Negligence - Storeowners - Duty to Protect Patrons

    Beyak v. North Central Food Systems Inc., No. 97-1221-FT (filed 4 Nov. 1997) (ordered published 17 Dec. 1997)

    Beyak was injured in a fracas that occurred on and near a Hardee's restaurant he was patronizing. He alleged that Hardee's had breached its duty to protect him from negligent or intentional acts of third persons. The circuit court granted summary judgment to Hardee's because Beyak had "voluntarily" injected himself into the fight, thereby eliminating any duty on Hardee's behalf.

    The court of appeals, in an opinion written by Judge Hoover, reversed. Starting from the premise that summary judgment is "rarely appropriate in negligence cases," the record disclosed a triable issue of fact. Specifically, "a reasonable person could conclude that the security guard breached the duty of ordinary care to patrons by telling fighting parties to take their argument outside and by apparently disappearing for twenty to twenty-five minutes."

    Escaping Inmates - Public Officer Immunity - Public Policy

    Ottinger v. Pinel, No. 96-3403 (filed 26 Nov. 1997) (ordered published 17 Dec. 1997)

    Bruce Ottinger was seriously injured when he was struck by a state-owned van driven by an escaping prisoner. Several hours before the accident, an off-duty guard observed the prisoner at a local mall, in violation of the prisoner's work release requirements. The guard called the corrections facility, which advised him that authorities would confront the prisoner when he returned from work release. The prisoner later returned to the facility, the guards confronted him with the earlier violation, and the prisoner stole the van and eventually crashed into Ottinger. Ottinger's guardian and his mother sued the guards for negligence. The circuit court granted summary judgment to the guards.

    The court of appeals, in an opinion written by Judge Anderson, affirmed. First, the guards were entitled to public officer immunity. Their duty to prevent escapes involves discretionary decision-making; thus, the guards' actions did not constitute negligently executed ministerial duties. Ottinger also argued that the "known and present danger" exception applied to this case. However, the record failed to reveal that the guards were on a "heightened state of alert" based on the prisoner's work release violation. Finally, the court rejected the argument that in this case public policy supported liability because the state had created "a dangerous situation" or rendered its citizens more vulnerable to danger. Although the guards had a duty to apprehend inmates, their broad discretionary authority to manage the facility invested them with broad discretion. The court was unwilling to assume that the state has a "duty to protect the general public from injury inflicted by escaping inmates."

    This column summarizes all decisions of the Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    Wisconsin Lawyer


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