Vol. 77, No. 9, September
Supreme Court Digest
This column summarizes all decisions of the
Supreme Court (except those involving lawyer or judicial discipline,
are digested elsewhere in the magazine). Profs. Daniel D. Blinka and
J. Hammer invite comments and questions about the digests. They can be
at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee,
53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Principles for Determining Reasonableness of Attorney Fees -
Kolupar v. Wilde Pontiac
Inc., 2004 WI 112
13 July 2004)
This case involved multiple claims, including one covered by a fee-
shifting provision of Wis. Stat. chapter 218, which regulates various
aspects of motor vehicle sales and financing. One of the issues on
was whether the circuit court properly exercised its discretion when it
awarded a specific amount for attorney fees. The supreme court
the legal principles for courts to apply in determining whether a fee
Supreme Court Rule 20:1.5 addresses reasonable attorney fees.
rule was not drafted as a guide for courts to determine
fees under fee-shifting statutes; it was designed to govern the ethical
obligation of attorneys to charge reasonable fees. Nonetheless, this
has endorsed the factors set out in SCR 20:1.5 and encourages courts to
apply these factors when they are required to determine or evaluate
fees" (¶ 24).
The factors spelled out in Rule 20:1.5(a) are: "(1) the time
labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance of the
employment will preclude other employment by the lawyer; (3) the fee
charged in the locality for similar legal services; (4) the amount
and the results obtained; (5) the time limitations imposed by the client
or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and
of the lawyer or lawyers performing the services; and (8) whether the
fee is fixed or contingent" (¶ 25).
In a majority decision authored by Justice Prosser, the court
that when judges endeavor to determine a reasonable fee, variation is
to be expected because the relevant factors can be quite subjective.
"[t]o the extent that discretionary decision-making can be made
uniform and transparent by providing an objective framework to assess
these factors, such a framework is desirable" (¶ 27).
The court then looked to a U.S. Supreme Court decision that refined
the methodology in federal courts for awarding attorney fees under fee-
shifting statutes. In Hensley v. Eckerhart, 461 U.S. 424
the Court outlined a procedure for determining the amount of a
attorney fee. The procedure incorporates an objective component while
utilizing the factors from Johnson v. Georgia Highway Express
488 F.2d 714 (5th Cir. 1974). [Editors' Note: The factors
in Johnson are similar to those articulated in Wisconsin
Court Rule 20:1.5(a)].
The Hensley Court stated: "The most useful starting
for determining the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly
rate. This calculation provides an objective basis on which to make an
initial estimate of the value of a lawyer's services."
461 U.S. at 433. "The structural starting point employed by the
appears to have been inspired by Lindy Bros. Builders, Inc. of
v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 168
Cir. 1973), which commented that 'the amount thus found to constitute
reasonable compensation should be the lodestar of the court's
determination'" (¶ 28).
"The Hensley Court explained that the product of
hours multiplied by a reasonable rate - the so-called 'lodestar' figure
- subsumes many of the twelve Johnson factors, but a court
not end its analysis after arriving at that number. A court may adjust
this lodestar figure up or down to account for any remaining
factors not embodied in the lodestar calculation. Since
the lodestar approach has become 'the guiding light of [the Court's]
jurisprudence'" (¶ 29).
"Hensley's endorsement of a method to analyze the
factors under an objective framework is compelling. It reinforces the
circuit court's discretion to set an award within a range of
and at the same time injects the exercise of that discretion with
and uniformity. These aspirations are so important and desirable that
we adopt Hensley's lodestar methodology and direct the circuit
courts to follow its logic when explaining how a fee award has been
Chief Justice Abrahamson, joined by Justice Bradley, dissented from
the majority's conclusion that the circuit court did not erroneously
its discretion in the award of attorney fees in this case. Justice Sykes
did not participate in this case.
Guarantees - Offers to Settle
DeWitt Ross & Stevens
v. Galaxy Gaming & Racing Ltd. P'ship, 2004 WI 92 (filed 1
This case arose when a law firm sued to collect a legal bill. The
firm had entered into a written fee agreement to represent corporate
(collectively, Galaxy) who intended to open a casino. Since Galaxy had
no assets, the law firm received a guaranty from Galaxy's parent
Southwest. Although Galaxy made periodic payments, it eventually owed
more than $350,000. The law firm sued to enforce the retainer letter and
the guaranty, claiming nearly $400,000 in principal and accrued
It also filed an offer to settle for $370,000 pursuant to Wis. Stat.
807.01(3). The settlement offer included a "15-day payment
On summary judgment, the court ruled that the guaranty included
of the contractual 18 percent interest, which dated back to Dec. 1,
when the law firm put the clients and guarantor on notice that interest
would be assessed. The judge also assessed double costs pursuant to
807.01(3), although the judge refused to "stack" prejudgment
interest of 12 percent on the contractual 18 percent interest. Finally,
the judge refused to award some costs incurred in the taking of a
The clients appealed and the law firm cross-appealed. The court of
affirmed in part and reversed in part. It agreed that the guarantor was
liable for the 18 percent interest and that the law firm's offer to
was valid, despite the 15-day demand. The court also agreed that the 12
percent statutory interest could not be stacked on the 18 percent
interest. Finally, it also found the law firm was entitled to costs for
the deposition transcript.
The supreme court, in an opinion authored by Justice Bradley,
in part and reversed in part. First, the court addressed the validity
of the law firm's offer to settle, which demanded payment in full within
15 days. The court held that nothing in section 807.01 or the case law
construing it authorized such a condition; thus, "in strictly
the express terms" of the statute, such a condition may not be
regardless of whether it may be "reasonable" in a given case
"If Wis. Stat. § 807.01 is to fulfill its purpose,
must have clear guidance about the proper scope of a valid offer. A
rule will help parties draft valid offers and assess their potential
to costs and prejudgment interest. Moreover, it will expedite dispute
settlement by minimizing the need for post-trial litigation about
settlement offers. We further note that Wis.Stat. § 807.01(1) and
807.01(3) provide: 'If notice of acceptance is not given, the offer
be given as evidence nor mentioned on the trial...'; a clear rule is
uniquely appropriate here because the parties may not obtain a ruling
on the validity of the offer during trial" (¶ 39). In short,
"the test for whether a given provision may be included in a valid
settlement offer is not whether the provision is 'reasonable,' but
whether the provision specifies a remedy that could be imposed by the
court" (¶ 42).
Second, the court held that Southwest's guaranty to make
and full payment of all statements" included the interest due on
the client's outstanding account, even though no specific mention had
been made of "interest" (¶ 43). Third, the law firm could
properly claim accrued interest back to Jan. 1, 1997. The retainer
entitled the law firm to payment upon receipt and to assess the interest
retroactively (the law firm's notice was sent in November 1997).
Finally, the law firm was entitled to all costs (for a videographer
and a court reporter's transcription) for the expense of a video
taken in connection with this collection action. Here the written
was not prepared solely for counsel's convenience; rather, the written
record was necessary for determining the summary judgment motion (¶
Chief Justice Abrahamson concurred in part and dissented in part.
would have permitted the law firm to charge interest only from the date
it notified the client that it would assess interest (November 1997),
not retroactively (back to January 1997). Justice Crooks, joined by
Sykes, also dissented in part and concurred in part. They would have
the offer to settle and would have permitted additional interest under
section 807.01. They joined the majority on all other issues.
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Earnings Garnishment - Service of Process - Bankruptcy Stay
Kenosha Hosp. v.
2004 WI 105 (filed 8 July 2004)
Garcia owed a hospital about $20,000 for medical bills. The hospital
garnished Garcia's wages and ultimately obtained a judgment against his
garnishee-employer, Richter Industries, for the entire debt. The court
of appeals affirmed.
The supreme court, in an opinion authored by Chief Justice
reversed. The first issue concerned the proper method of serving the
of motion for judgment against the garnishee-employer. Here the hospital
had assumed that it could serve the notice of motion for judgment in
with Wis. Stat. section 801.14(2) (service of papers). The court held,
however, that the service must comply with Wis. Stat. section 801.11(5),
which governs summonses.
"The judgment sought against Richter Industries, although
out of an earnings garnishment proceeding that was properly commenced,
is to some extent separate and distinct from the earnings garnishment
action. The earnings garnishment action is designed to recover the
earnings held by the garnishee. The legislature's goal in the earnings
garnishment proceedings was to expedite the proceedings by providing a
simplified and inexpensive means of serving a garnishee. In contrast,
the purpose of a motion for judgment against the garnishee for the
debtor's debt is to recover a judgment against the garnishee for the
violating the garnishment statutes and failing to assist the creditor
in procuring the debtor's earnings to satisfy the debtor's debt.
personal service of the notice of motion for judgment does not
the legislative goal of a simplified, expeditious procedure for earnings
garnishment. Because a garnishee becomes responsible for the full amount
of the debtor's debt for failing to withhold the garnished funds without
a legitimate excuse, it is important that heightened statutory
be applied to give the garnishee full notice of the financial risk it
is taking by failing to appear or respond to the notice of
The record before the court failed to show that the hospital had
with any of the methods of service under section 801.11(5). Thus, the
judgment should have been vacated.
The second principal issue in-volved whether the circuit court could
enter judgment against an employer-garnishee in an earnings garnishment
action when the debtor has filed a bankruptcy petition. The
held that the automatic stay provisions of 11 U.S.C. section 362(a) did
not bar the judgment against the garnishee for the debtor's debt (¶
4). The judgment was taken against the debtor's employer, not the debtor
himself or his estate. To hold otherwise would mean that Wis. Stat.
812.41 "ha[d] no teeth" (¶ 60).
Justice Wilcox dissented from those parts of the majority opinion
addressed the service of process issue.
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Judges - Calling Witnesses - Biased Judge
State v. Carprue,
WI 111 (filed 9 July 2004)
The defendant's conviction was reversed by the court of appeals. The
supreme court, in an opinion authored by Justice Prosser, reversed the
court of appeals. The defendant claimed that the trial judge had
her impartiality and sided with the prosecution during trial. Although
the supreme court found that the judge's conduct was
the court held that her behavior was insufficient to warrant a reversal
The court's opinion considers a judge's authority to call and
witnesses under Wis. Stat. section 906.14. In this case the defendant
did not object to the judge calling and questioning a detective. The
court was "disinclined to overlook the defendant's failure to
object" for several reasons (¶ 36), including the role that
objections may play in correcting a wayward trial judge. The supreme
surveyed authority, dating to 1881, that regulated the proper role for
The court was forced to analyze the judge's conduct in this case,
under the rubric of ineffective assistance of counsel precisely because
trial counsel had failed to object. After scrutinizing the record, the
court concluded that no prejudice was demonstrated. All potentially
behavior occurred outside the jury's presence, and other information was
never disclosed to the jury (¶ 50).
As to the presence of "judicial bias," the defense did
more than allege that the judge "harbored general bias in favor of
the State and in criminal prosecutions based upon her actions"
60), that is, that she was "anti-defendant" (¶ 63). In
short, there was no recognized ground for judicial disqualification.
Wis. Stat. § 757.19(2).
Although the supreme court reversed the court of appeals, it stood
the court of appeals in calling upon our circuit courts to foster an
of perfect impartiality and to strive for absolute objectivity in
out judicial functions" (¶ 68).
Search and Seizure - Traffic Stops - Requesting Passengers to Exit
Vehicle and Asking Them Questions Reasonably Related to Nature of Stop
State v. Malone,
WI 108 (filed 8 July 2004)
This case was before the supreme court on certification by the court
of appeals. The certified issue was whether, during a routine traffic
stop, a law enforcement officer may request the passengers, as well as
the driver, to exit the vehicle and then individually ask them questions
reasonably related to the nature of the stop. In a unanimous opinion
by Justice Prosser, the court said that the certified question was
to answer because it called upon the court to formulate a bright-line
rule that police action in this regard is either always permitted or
prohibited. The court concluded that it would be unwise to attempt to
fashion a single rule purporting to encompass the innumerable variations
of a routine traffic stop.
On the facts of this case the court held that the officer acted
The encounter started out as a traffic stop for speeding. During the
of the stop the defendant (a passenger in the vehicle) was asked to exit
the vehicle and to answer four questions unrelated to the scope of the
initial stop. However, before the defendant was asked to exit, the
had become aware of specific and articulable facts giving rise to the
reasonable suspicion that criminal activity involving narcotics might
be afoot. Therefore, the court held, the officer was justified in
detaining and questioning the defendant regarding that suspicion.
With regard to the duration of the stop, the court understood the
to argue that any extension of the original traffic stop was
A reasonable seizure can become an unreasonable seizure if questioning
extends the stop beyond the time necessary to fulfill the purpose of the
stop. However, in this case, the court concluded that the purpose was
transformed as the officer became aware of additional information that
justified expanding his investigation to pursue his reasonable suspicion
that the occupants of the vehicle might be committing or about to commit
a crime involving narcotics. Thus, the officer had a new purpose, that
is, to investigate his suspicion regarding criminal activity.
The officer's lawful authority to pursue his suspicion of criminal
did not mean that the stop could last indefinitely. But the defendant
"fail[ed] to present an alternative argument regarding the
length of the detention if we were to find that [the officer] was
in pursuing his suspicion of criminal activity in a reasonable manner.
Because [the defendant] does not address this issue, neither do we"
Accordingly, the court affirmed the decision of the circuit judge
the defendant's motion to suppress physical evidence that was obtained
during the course of the extended stop and subsequent to the questioning
as described above.
Plea Agreements - Collateral Attack on Plea-negotiated Convictions
State v. Deilke,
WI 104 (filed 8 July 2004)
The defendant was charged in 2001 with OWI (fifth offense). His
offender status was based on four prior OWI convictions, including ones
in 1993, 1994, and 2000. In those earlier cases plea agreements were
that resulted in dismissal of additional charges, including prohibited
alcohol concentration (PAC) charges. When the defendant was charged with
his fifth OWI offense, he filed a motion collaterally attacking his
OWI convictions, claiming that the plea colloquies in those cases did
not show that he had validly waived his right to counsel. The state
that no valid waiver had occurred and the circuit court accordingly
the defendant's motion. The result of this successful attack on the
convictions was that they were no longer available for use as penalty
enhancers in the new 2001 case or in any OWI cases that might be brought
in the future.
The state moved to vacate the plea agreements in the earlier cases
to reinstate the dismissed PAC charges, arguing that the defendant
the plea agreements in those cases by his successful collateral attack
on the resulting convictions. The circuit court granted the motion for
the 1993 and 2000 cases (with a different judge denying the motion for
the 1994 case) and the defendant, with the advice of counsel, pleaded
no contest to the 1993 and 2000 PAC counts. The state requested no
punishment. The court of appeals reversed.
In a majority decision authored by Justice Roggensack, the supreme
reversed the court of appeals. It held that the defendant's successful
collateral challenge to his earlier convictions constituted a material
and substantial breach of the plea agreements on which the convictions
were based. It also agreed with the circuit court that the appropriate
remedy for the breach was to vacate the plea agreements and reinstate
the original charges as requested by the state and to accept the
subsequent no contest pleas to those charges.
The defendant argued that because he did not move to withdraw his
but merely attacked the convictions due to the lack of a valid waiver
of counsel, the convictions were not invalidated; they simply could not
be used for purposes of sentence enhancement. The court disagreed.
defendant] cites no authority for the novel idea that a conviction
through an unrepresented defendant's plea, made without a valid waiver
of counsel, can stand, yet its effect cannot... We conclude that the
result of [the defendant's] successful collateral attack on the
was to invalidate the convictions" (¶ 17).
Among the other arguments advanced by the defendant was a claim that
the 1993 PAC charge was time-barred because the three-year statute of
limitation for misdemeanors had run. The supreme court concluded that
the defendant did not have a statute of limitation defense to that
"[W]e conclude that the circuit court was correct in rescinding the
plea agreements so that the parties were in the same posture as they had
[been] prior to [the defendant's] pleas, when the statute of limitations
was not implicated" (¶ 30).
Justice Bradley filed a dissenting opinion that was joined by Chief
Justice Abrahamson. Justice Sykes did not participate in this case.
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Witnesses - Impeachment
State v. Johnson,
WI 94 (filed 1 July 2004)
The supreme court, in an opinion authored by Justice Roggensack,
that there is no conflict between the line of cases headed by State
v. Haseltine, 120 Wis. 2d 92 (Ct. App. 1984) and the line of cases
headed by State v. Jackson, 187 Wis. 2d 431 (Ct. App. 1995).
"In the Haseltine line, the objected to testimony is
bolstering another witness's testimony of an event about which the
witness has no personal knowledge. It is generally done on direct
and usurps the jury's role as the 'lie detector in the courtroom.' The
jury can independently determine the credibility of each witness and
not require an expert witness to assist it with that determination"
(¶ 19) (citations omitted).
"By contrast, in the Jackson line of cases, two
are testifying about an event that both claim to have seen, and their
testimony conflicts. The purpose and effect of the cross-examination of
the second witness is to test that witness's credibility through his or
her demeanor and answers to questions. It aids the jury in its
function. See Wis. Stat. § 906.07 (2001-02) (stating the
of any witness may be attacked by any party). The testimony elicited by
the prosecutor [in Jackson] was not placed before the jury to
the credibility of the other witnesses. Instead, cross-examination was
used to highlight the inconsistencies in the testimony, and give the
an opportunity to explain those inconsistencies" (¶ 20)
and citations omitted). The record in this case revealed nothing
in the prosecutor's attempt to impeach the defendant's credibility.
Justice Bradley, joined by Chief Justice Abrahamson, concurred.
agreeing that defense counsel had not been "ineffective," the
concurring justices "fear[ed]" that the majority had
the door to a line of questioning" that had no probative value,
the jury's province, and was misleading. The line involves asking one
witness whether another witness is "lying." Justice Sykes did
not participate in this case.
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UIM - Bodily Injury
State Farm Mut. Auto. Ins.
v. Langridge, 2004 WI 113 (filed 13 July 2004)
The plaintiff's husband was killed by a drunk driver. After
the liability limits from the tortfeasor's insurer, the plaintiff made
a claim for $100,000 in underinsured motorist (UIM) coverage from her
own insurer, State Farm. The insurer denied the claim because the
was not involved in the accident and suffered no bodily injury herself.
The circuit court granted summary judgment in favor of the insurer and
the court of appeals affirmed.
In an opinion authored by Justice Prosser, the supreme court
UIM coverage varies according to the policy language. Some policies
UIM status by comparing the insured's damages to the tortfeasor's
coverage (¶ 20). In contrast, some other policies compare the
liability limits to the insured's limits of UIM coverage (¶ 21).
The policy in question took the second approach.
The issue in this case was whether the term "the insured"
referred to the wife as well as her deceased husband. (Since he carried
just $100,000 in UIM coverage and the tortfeasor carried $150,000 in
coverage, the tortfeasor was not underinsured as to the deceased.) The
court held that "the insured" did not refer to the wife.
"In this case, an insured who suffered no bodily injury seeks
recover for her spouse's wrongful death after the tortfeasor's 'limits
of liability for bodily injury' had been fully paid. If we were to
Nancy Langridge's reading of the policy, then every time a wife and
were both insured under the same UIM coverage, the surviving spouse
always be able to assert per person UIM coverage unless the
policy limits exceeded the amount paid to the estate. To illustrate, if
the drunk driver who killed Nancy Langridge's husband had $500,000 per
person liability limits, and that entire amount was paid to William
estate, Nancy Langridge would be able to make the same argument she is
making now. Payment to an estate would never eliminate a wrongful death
claim under paragraph 'b' unless the tortfeasor did not pay out its
of liability and had, say, $100,000 left. Mrs. Langridge's reading of
the policy essentially transforms UIM into a form of life insurance for
a spouse killed in an automobile accident. This is not consistent with
a reasonable insured's understanding of the UIM policy" (¶
Justice Bradley, joined by Chief Justice Abrahamson, dissented. The
dissenters concluded that the policy language was ambiguous and the
construction was reasonable.
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Limitations on Actions
Wisconsin Borrowing Statute - Statutes of Repose
Wenke v. Gehl Co.,
WI 103 (filed 7 July 2004)
The plaintiff was severely injured in Iowa in 1997 while using a
manufactured by defendant Gehl Co., a Wisconsin corporation. Gehl had
sold the baler to another Iowa resident in 1981, and the baler was
acquired by the plaintiff. An Iowa statute limiting product liability
actions from being commenced more than 15 years after a product
first purchased" precluded the plaintiff from bringing an action
in Iowa to recover for his injuries. Hence, in 1999 the plaintiff
an action in Wisconsin. Gehl asserted that the statute barring the
in Iowa must be borrowed and applied under Wis. Stat. section 893.07(1)
to bar the action in Wisconsin.
Section 893.07(1) provides that "[i]f an action is brought in
state on a foreign cause of action and the foreign period of limitation
which applies has expired, no action may be maintained in this
The core issue before the court was whether the term "foreign
of limitation" includes foreign statutes of repose like the Iowa
provision referred to above. [A statute of repose bars a suit a fixed
number of years after an action, for example, manufacturing a product,
by the defendant, even if this period ends before the plaintiff suffers
In a majority decision authored by Justice Prosser, the supreme
concluded that the phrase "period of limitation" in section
893.07 pertains equally to foreign statutes of limitation and foreign
statutes of repose. The legislature did not distinguish between these
different types of limitation periods when enacting section 893.07.
the plaintiff's action to recover damages for injuries sustained in Iowa
is barred in Wisconsin and was properly dismissed by the circuit court.
The court overruled that portion of Leverence v. United States
& Guaranty, 158 Wis. 2d 64, 462 N.W.2d 218 (Ct. App. 1990) that
concluded that a foreign statute of repose was not a foreign
of limitation" within the meaning of section 893.07.
Lastly, the court rejected the plaintiff's argument that the ruling
in this case should only be given prospective application. "Because
we have not been presented adequate grounds for applying our ruling
and because we presume retroactivity, our ruling today applies to [the
plaintiff]" (¶ 75).
Justice Crooks filed a concurring opinion that was joined by Justice
Wilcox. Justice Bradley filed a dissenting opinion that was joined by
Chief Justice Abrahamson.
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Sexually Violent Persons
Supervised Release - Revocation
State v. Burris,
WI 91 (filed 30 June 2004)
Burris was adjudicated a sexually violent person and committed under
provisions of Wis. Stat. chapter 980. The court ordered that Burris be
placed in a supervised release program. State officials later moved to
revoke Burris's supervised release because he had allegedly violated its
terms. After a hearing, the court granted the state's motion. The court
of appeals affirmed.
The supreme court, in a decision authored by Justice Prosser,
the court of appeals. The "principal issue" was "whether
a circuit court is required to expressly consider alternatives to
before revoking a sexually violent person's supervised release when the
court makes a determination that 'the safety of the public requires [the
person's] commitment to a secure facility.'" Burris also contended
that "his revocation proceeding was 'arbitrary and unfair' because
it violated basic due process safeguards and that his revocation was not
supported by the evidence" (¶ 1).
The court held that "a circuit court is not required to
consider alternatives to revocation before revoking a sexually violent
person's supervised release when the court determines that the safety
of the public requires the person's commitment to a secure facility.
a finding mirrors a finding that 'the safety of others requires that
release be revoked'" (¶ 2).
Said the court, "[w]e think it is self-evident, however, that
the court determines, on the evidence after a hearing, that 'the safety
of others requires that supervised release be revoked,' the court has
found that there is clear and convincing evidence that it has no
but to revoke to assure the safety of others. Put another way, the court
has found that the safety of others requires the person's commitment to
a secure facility because supervised release will not be adequate"
(¶ 40). The court also held that the proceedings in this matter
neither arbitrary nor fundamentally unfair (¶ 2).
Justice Crooks, joined by Justice Bradley, concurred because the
opinion did not go quite far enough. They would have required that
a situation where the basis for the revocation of a sexually violent
supervised release is a rules violation, rather than a determination
on public safety, a court must consider alternatives to
on the record" (¶ 76).
Chief Justice Abrahamson dissented because the state had failed to
grounds for the revocation by clear and convincing evidence and because
the majority opinion erroneously and "summarily" concluded
the proceedings were not arbitrary or fundamentally unfair.
Interviews - Miranda Rights
State v. Lombard,
WI 95 (filed 1 July 2004)
Lombard was convicted of a series of violent sexual assaults in the
late 1970s. The state later commenced a Wis. Stat. chapter 980 action,
as a result of which Lombard was adjudicated a sexually violent person
in need of supervision or commitment.
The supreme court, in an opinion written by Justice Crooks, affirmed
the court of appeals. The supreme court's opinion addressed whether
should have been advised of his Miranda rights "prior to
interviewed by a State evaluator in regard to whether a ch. 980 petition
should be filed" (¶ 16). The court concluded that neither
980 nor the constitution mandates that such warnings be given.
Building upon the reasoning in several court of appeals decisions,
court held: "Here, Lombard was already convicted for the underlying
sexual assault offenses that led to his ch. 980 commitment as a sexually
violent person. Thus, any statements Lombard made to Jurek regarding
assaults could not be used against him in future prosecutions. We agree
with the court of appeals in this case that '(t)he purpose of the
interview was to evaluate Lombard for the purpose of a potential civil
commitment proceeding, not a criminal proceeding, and the examiner was
not required to comply with Miranda's dictates'" (¶
And for this reason, Lombard's claim of ineffective assistance of
Chief Justice Abrahamson, joined by Justice Bradley, dissented on
ground that "ch. 980 individuals are entitled to be advised at the
pre-petition examination (1) that they have the right to remain silent,
and (2) that their silence will not be used against them at any stage
of the ch. 980 commitment proceeding" (¶ 53). Justice Sykes
did not participate in this case.
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Products Liability - Components - "Substantial Change"
Haase v. Badger Mining
2004 WI 97 (filed 2 July 2004)
Haase was diagnosed with silicosis, a lung disease caused by his
of silica particles at a foundry where he had worked since 1955. He sued
a number of defendants, including Badger Mining, which supplied the
sand used at the foundry. At the close of the plaintiff's case-in-chief,
the trial court dismissed the claims against Badger based on the
of the evidence. The court of appeals affirmed.
The supreme court, in an opinion authored by Justice Bradley,
the court of appeals. The case presented two issues. First, the trial
court erred when it adopted and applied the Restatement (Third) of
§ 5 (1998), which concerns the liability of commercial sellers or
distributors of product components. Section 5 was not applicable
quite simply, "Badger's silica sand was not a component because it
was not integrated into [the foundry's] finished products" (¶
21). Nor did the sand cause the end product (metal castings) to be
"Rather, it was the sand itself that was allegedly defective"
The supreme court affirmed the court of appeals, however, based on
analysis of the second issue, the plaintiff's failure to produce
evidence for a strict liability claim under the Restatement (Second) of
Torts § 402A (1965). The fifth element of section 402A requires
that "the product was one which the seller expected to and did
the user or consumer without substantial change in the condition it was
when he sold it" (¶ 25). Although Haase alleged that Badger's
product did not undergo substantial change - the amount of silica in the
sand remained constant - "the evidence reveals that the very
which made Badger's silica sand dangerous, its respirability, did not
arise until the sand had been fractured into dust . . . during the
process. (¶ 32). [The court reiterated that
is not an element considered in strict liability claims under Wisconsin
Misrepresentation - Economic Loss Doctrine - Commercial Real Estate
Van Lare v. Vogt
2004 WI 110 (filed 9 July 2004)
The plaintiffs purchased a gravel pit from the defendant in 1993.
purchase agreement contained an "as is" clause, and both sides
had lawyers. The plaintiffs were aware that "illegal dumping"
had occurred prior to the purchase. Although the plaintiffs used the
to excavate gravel, they eventually sought to use the property for a
development. Before the statute of limitation expired, the plaintiffs
filed this action for damages connected with the dumped debris found on
the property. At trial, the plaintiffs submitted only a strict liability
claim (for misrepresentation) and the jury awarded damages of nearly
On post-verdict motions, the trial judge granted the defendant's motion
to dismiss, on the ground that the strict liability misrepresentation
claim was barred by the economic loss doctrine. The court of appeals
this case to the supreme court.
The supreme court, in an opinion written by Justice Prosser,
the circuit court. "The threshold issue in this case is whether the
economic loss doctrine applies to commercial real estate contracts such
as the Option to Purchase and resulting purchase agreement in this
(¶ 16). Although the economic loss doctrine was developed in cases
involving defective products, courts also have applied it to
involving real estate. "In this case, we have a written,
contract for the sale of commercial-use land between two sophisticated
parties represented by counsel during the negotiation process. This is
the kind of situation that is tailor made for the application of
contract law" (¶ 21).
The court also declined to fashion a "fraud in the
exception for claims involving strict liability misrepresentation, which
differ significantly from those involving intentional misrepresentation
(¶ 31). Nor was a new trial warranted in the interest of justice.
Justice Bradley concurred but wrote separately to "forestall
ist interpretations" of Digicorp Inc. v. Ameritech Corp.,
2003 WI 54, which addressed the exception to the economic loss doctrine.
Justice Crooks, joined by Justice Wilcox, also concurred and wrote
emphasize that "the Digicorp majority clearly rejected a
fraud in the inducement exception to the economic loss doctrine"
Medical Malpractice - Wrongful Death - Noneconomic Damages Caps
Maurin v. Hall, 2004
100 (filed 2 July 2004)
This medical malpractice case arose when a five-year-old child died
of a misdiagnosed diabetic shock. Her parents brought this action for
wrongful death and medical negligence. The jury awarded damages to the
parents. In post-verdict motions, the circuit court held that the Wis.
Stat. section 895.04(4) wrongful death damages cap was unconstitutional.
The court of appeals certified two issues to the supreme court.
may the plaintiffs in a medical malpractice action, where there is a
caused by medical negligence, recover the limit on noneconomic damages
for both medical negligence and wrongful death? Second, is the limit on
noneconomic damages in a medical malpractice wrongful death case
The supreme court, in an opinion written by Justice Prosser,
the judgment. The court held "that the purpose and effect of Wis.
Stat. § 893.55(4)(f) was to limit the noneconomic damages
against health care providers for wrongful death in medical malpractice
cases to the dollar amount listed in Wis. Stat. § 895.04(4). The
limit in the latter statute supersedes the limit in Wis. Stat. §
893.55(4)(d) that would have applied but for the shift to a different
limit" (¶ 88).
The majority opinion concluded that legislation in 1995 combined
noneconomic damages from medical malpractice and the loss of society and
companionship damages from wrongful death at a relatively modest level
of $150,000" (¶ 89). When the legislature later raised the
on noneconomic damages, it responded to case law that had entitled each
claimant to the capped amount by inserting the words "per
in section 895.04(4) (¶89).
Second, the court also held that the damages cap was constitutional.
The majority rejected attacks rooted in the right to trial by jury,
of powers, equal protection, and substantive due process.
Chief Justice Abrahamson and Justice Crooks concurred, but
the majority for interpreting the statutes in a way not advocated by
party. They contended that both parties should submit new briefs and
the majority's "novel" interpretation in a reargument (¶
120). Among many points, the concurrence charged the majority with
to "recognize the simple yet well established distinction between
a survival action and an action for wrongful death" (¶ 129).
Justice Wilcox, joined by Justices Prosser and Sykes, concurred and
joined the majority in all respects but wrote separately to address a
remittitur issue discussed in the preceding concurrence.
Justice Bradley, also concurring, wrote separately to stress that
"constitutionality of Wis. Stat. § 895.04(4) is jeopardized
by the extreme interpretation advanced by the majority" (¶
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Landowner - Dogbite - Negligence
Smaxwell v. Bayard,
WI 101 (filed July 2004)
A young child was seriously injured when three large, vicious dogs
her. The dogs' owner rented the property from Thompson. The attack
while the child was visiting Thompson, who is the child's grandmother.
The plaintiffs sued Thompson (and others), but the trial court granted
summary judgment dismissing the claim against Thompson. Affirming, the
court of appeals held that only an owner or keeper of the animal, not
a landlord on whose property the animal is kept, may be found negligent.
In a decision authored by Justice Wilcox, the supreme court
The court analyzed three intersecting areas of law: "landowner
for injuries occurring on the property, landlord premises liability, and
liability for the acts of known dangerous dogs" (¶ 13).
Thompson, "as a landowner, owed a general duty to exercise ordinary
care to all those who legally came upon her property" (¶ 35).
The court found it unnecessary to decide "whether a dangerous
may constitute a 'defect' in the rental premises or whether a landlord's
duty of ordinary care extends beyond defects in or maintenance of the
physical premises because we ultimately conclude, on public policy
that common-law liability of landowners and landlords for negligence
with injuries caused by dogs is limited to situations where the
or landlord is also the owner or keeper of the dog causing injury. That
is, for the purposes of this decision, we assume that Thompson's conduct
constituted actionable negligence either in her capacity as a landowner
in general or landlord in particular" (¶ 39). In its public
policy analysis, the court concluded that imposing liability on a
or landowner who is not the animal's owner or keeper would enter an area
with no sensible or just stopping point (¶ 47).
Justice Bradley, joined by Chief Justice Abrahamson, dissented on
ground that Thompson's own negligent conduct created liability on these
facts independent of the acts of her tenant. Thompson allegedly knew
the dogs' dangerous propensities and that they sometimes ran at large
on the property.
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