Vol. 76, No. 7, July
Court of Appeals Digest
This column summarizes selected published
opinions of the Wisconsin 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.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Scheduling Orders - Expert Privilege
Glenn v. Plante,
2003 WI App 96 (filed 15 April 2003) (ordered published 28 May 2003)
In this medical malpractice action, counsel for the plaintiffs (a
patient and her husband) failed to name expert witnesses by the date set
in the scheduling order (¶7). The circuit court refused the
plaintiffs' request to extend the time, because there was no justifiable
excuse for missing the deadline. The circuit court then ordered, relying
on Burnett v. Alt, 224 Wis. 2d 72 (1999), that a treating
physician must provide expert opinion testimony about the quality of the
wife's care even though the physician refused to do so.
The court of appeals, in an opinion written by Judge Schudson,
affirmed. Expert opinion testimony on causation and standard of care was
essential to the plaintiff's prima facie case. Under the Alt
standard, an expert may not be compelled to provide opinion testimony
"absent a showing of compelling circumstances." On this record, the
defendants argued that courts "should not allow a party's noncompliance
with a scheduling order to set the stage for the client's 'compelling
circumstances'" (¶14). Conceding that the point was "well taken,"
the court of appeals nonetheless upheld the trial court's exercise of
discretion, particularly in light of the "harsh sanction" of dismissal
that would inevitably flow from granting the physician's request that he
not be required to testify on the standard of care or causation.
Judge Curley dissented, arguing that Alt did not support a
finding of "compelling circumstances" on this record (¶24).
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Personal Jurisdiction - Service of Process - Dual Capacity
Useni v. Boudron,
2003 WI App 98 (filed 23 April 2003) (ordered published 28 May 2003)
Useni obtained a default judgment against Boudron on a personal
injury claim. The trial court later vacated the default judgment based
on a finding of excusable neglect. Useni appealed the trial court's
vacature ruling, and Boudron cross-appealed on the basis that the trial
court lacked personal jurisdiction because of improper service of
The court of appeals, in an opinion authored by Judge Snyder,
dismissed the appeal and granted the cross-appeal on the ground that the
circuit court lacked personal jurisdiction. More precisely, the circuit
court lost personal jurisdiction because of the filing of an amended
summons and complaint that were not properly served on the defendant.
"Here, Boudron was properly served with the original summons and
complaint; however, an amended summons and complaint were filed wherein
Boudron was not named as a defendant. The amended summons and complaint
effectively nullified the first summons and complaint, insofar as
Boudron is concerned" (¶9).
Still later, a second amended summons and complaint named Boudron
individually and Boudron's business as defendants, but the "manner of
service" on Boudron clearly showed "that it was corporate service." Put
differently, the plaintiff had to show that Boudron had been served in
both his individual and corporate capacity. Only his business had been
properly served. Finally, since the court lacked personal jurisdiction
over Boudron, he did not "waive" the right to object on this ground by
filing motion papers and contesting personal jurisdiction
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Unfair Trade Practices - Time Shares - Referral Selling Plans
Pliss v. Peppertree Resort
Villas Inc., 2003 WI App 102 (filed 22 April 2003) (ordered
published 28 May 2003)
In 1995 the plaintiffs purchased a time-share near the Wisconsin
Dells from Peppertree Resort Villas. In 2001 they sued Peppertree
alleging intentional misrepresentation and various violations of the
time-share ownership statutes and other regulations. The crux of the
complaint involved a referral selling plan by which the buyers
ostensibly benefited by referring potential customers. The circuit court
granted default judgment in favor of the plaintiffs and later awarded
them double damages pursuant to Wis. Admin. Code chapter ATCP 121 (1968)
and Wis. Stat. section 100.20(5) (2001-02).
The court of appeals, in an opinion written by Judge Curley,
affirmed. Although there was no dispute about the propriety of the
default judgment, Peppertree challenged the grant of double damages. The
court of appeals held that the trial court properly found that the
complaint supported a prima facie claim of a violation of ATCP 121, even
though the complaint did not allege that the plaintiffs in fact provided
the names of "friends and relatives" or that they were due any
compensation under the referral selling plan. The plaintiffs "were not
required to establish that they provided names or were due any
compensation at the time of the consumer sale. Rather, because they
alleged that Peppertree induced the sale through the use of a referral
selling plan that promised future benefits that may or may not have come
to fruition, they satisfied §§ ATCP 121.01 and 121.02"
Nor must the plaintiffs have suffered any pecuniary loss, because
"the prohibition is designed to protect buyers from being induced into a
consumer sale by a referral selling plan by promising future payments
that may never occur. Therefore, the pecuniary loss is not any lost
referral compensation, but rather, the money paid for the product that
the consumer was improperly induced into buying due, in part or in
whole, to the referral selling plan" (¶21). Finally, the trial
court properly awarded rescission as well as double damages.
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Habitual Criminality - Drug Repeater - Multiple Enhancements
State v. Maxey,
2003 WI App 94 (filed 30 April 2003) (ordered published 28 May 2003)
In this case, the state is seeking to apply to a charge of unlawful
possession of marijuana (a misdemeanor) two penalty enhancers: the drug
repeater provision of Wis. Stat. section 961.48(2) (1999-2000) and the
general habitual criminality enhancer codified at section 939.62(1)(b).
[The penalty doubler for repeat drug offenses codified in section
961.48(2) (1999-2000) was repealed by the truth-in-sentencing
legislation that took effect on February 1, 2003. See 2001 Wis.
Act 109.] The defendant obtained a circuit court order directing the
state to choose either the repeat drug offender enhancer or the habitual
In a decision authored by Judge Nettesheim, the court of appeals
reversed. It found that the complaint charging the defendant alleges two
prior drug felonies, and that the state is seeking to use one of them to
support the drug repeater and the other to support the general habitual
criminality allegation. The court held that use of both penalty
enhancers under these circumstances is expressly permitted by the recent
supreme court decision in State v. Delaney, 2003 WI 9.
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Search Warrants - Knock and Announce - Evidentiary Hearing Required
When No-Knock Entry Challenged
State v. Whiting,
2003 WI App 101 (filed 17 April 2003) (ordered published 28 May
When serving a search warrant, police officers must comply with the
"knock and announce" rule, which requires that, before forcibly entering
a residence, they announce their identity and purpose and momentarily
wait for the occupants to either refuse admittance to them or open the
door. Under limited circumstances they may dispense with the knock and
announce requirement. In order to justify a no-knock entry, the officers
must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or
futile, or that it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of evidence. See
Richards v. Wisconsin, 520 U.S. 385 (1997).
This case involved a no-knock entry, which the defendant challenged.
The circuit court denied the motion to suppress without an evidentiary
hearing, relying on averments in the affidavit in support of the search
warrant to conclude that a no-knock entry was lawful.
In a decision authored by Judge Deininger, the court of appeals
reversed. It concluded that when the reasonableness of a no-knock entry
is challenged, the state must present evidence of the circumstances
known or reasonably suspected by the officers to exist at the time of
warrant execution that would justify a no-knock entry. If those
circumstances were described in the warrant application, the state's
evidence might consist of nothing more than testimony by an officer that
nothing had come to the officers' attention to lead them to believe that
circumstances had changed. If, however, the warrant application is
silent or lacking in regard to circumstances that might render an
announced entry dangerous or futile, the state may still justify a
no-knock entry by showing that the officers possessed the requisite
reasonable suspicion at the time of entry.
In this case the court of appeals held that the circuit court should
not have denied the defendant's motion to suppress without hearing
evidence regarding the circumstances that existed at the time of the
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Termination of Parental Rights - Summary Judgment - Failure to Advise
Party Regarding Substitution Right - Harmless Error
Steven V. v. Kelley
H., 2003 WI App 110 (filed 13 March 2003) (ordered published 28
The parental rights of Kelley H., the mother, were terminated under
Wis. Stat. section 48.415(4), which requires proof that 1) the parent
has been denied physical placement or visitation by an order containing
the prescribed statutory notice, and 2) at least one year has passed
without the order being modified to permit periods of physical placement
or visitation. The mother sought reversal on appeal, claiming that the
trial court erred by using summary judgment procedure and by failing to
advise her at the initial hearing of the right to a continuance to
discuss with her counsel requesting substitution of the judge.
In a decision authored by Judge Vergeront, the court of appeals
concluded that its earlier decision in Walworth County Department of
Human Services v. Elizabeth W., 189 Wis. 2d 432 (Ct. App. 1995)
controls the summary judgment issue. In Elizabeth W., the court
held in broad language that summary judgment is inappropriate in
involuntary termination of parental rights cases for constitutional
reasons when a parent contests termination. The court did not believe
that its decision in Elizabeth W. was overruled by the supreme
court in Sheboygan County Department of Health & Human Services
v. Julie A.B., 2002 WI 95. Nevertheless, the court concluded that
use of summary judgment procedure was harmless error in this case,
because there were no disputed issues of fact regarding the elements of
The court of appeals also concluded that the circuit court erred in
not advising the mother at the initial hearing of her right to request a
continuance to discuss with counsel substitution of the judge. However,
on the facts of this case, which include undisputed evidence that the
mother knew of her right to request a substitution and had discussed it
with counsel before the initial hearing, the appellate court determined
that the error was harmless.
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Abuse of Process - Elements
Schmit v. Klumpyan,
2003 WI App 107 (filed 16 April 2003) (ordered published 28 May
In this case the court of appeals considered whether sufficient
evidence was presented to establish that the initiation and continuation
of a partition action constituted an abuse of process.
In Wisconsin there are two elements of abuse of process. First, there
must be a willful act in the use of process that is not proper in the
regular conduct of the proceedings. This element requires evidence of
some definite act or threat that is not authorized by the process or
that is aimed at an objective not legitimate in the use of the process.
There is no liability when the party has done nothing more than carry
out the process to its authorized conclusion, even though the party has
acted with bad intentions.
The second element is a subsequent misuse of the process. This
requires evidence that the party used coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, used the
process to effect an object not within the scope of the process, or had
any other improper purpose. "A key component of the second element is
the requirement that the process be used to obtain a collateral
advantage, an advantage that is not a benefit to the suitor that the
process was designed to secure" (¶ 9, citing Dobbs,
The Law of Torts § 438 (2001)). "The attempt to obtain a
collateral advantage is an important component because the tort is
characterized as an attempt to use process as a means of extortion"
(¶ 9). The Wisconsin Supreme Court has clarified that the inquiry
is "whether the process has been used to accomplish some unlawful end,
or to compel the defendant to do some collateral thing which he would
not legally be compelled to do." Docter v. Riedel, 96 Wis. 158,
71 N.W. 119 (1897).
In this case the court of appeals concluded that the evidence did not
establish that the partition action was used for any purpose other than
its intended purpose: the resolution of a dispute over real estate owned
by multiple parties. Accordingly, there was no abuse of process.
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