Wisconsin Lawyer
Vol. 78, No. 8, August
2005
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
Attorneys
Fee Disputes - Arbitration
Steichen v.
Hensler, 2005 WI App 117 (filed 5 May 2005) (ordered published
22 June 2005)
Hensler retained Steichen to represent him in a dispute with his
ex-wife over a trust. When a conflict arose, Steichen withdrew from the
representation. Hensler refused to pay the final bill, for about $1,700
in fees and disbursements. The parties agreed to submit the fee dispute
to the State Bar of Wisconsin's fee arbitration program. An arbitrator
awarded Steichen the full amount of the final bill. Steichen then
commenced a small claims action to confirm the award, but the court
refused to grant summary judgment in Steichen's favor, finding that
Hensler had raised a question of fact regarding possible fraud.
"Following trial, the court found that Steichen had procured the fee
arbitration award through fraud. It entered judgment vacating the fee
arbitration award and granting Hensler [the client] statutory costs"
(¶ 11).
The court of appeals, in an opinion written by Judge Deininger,
reversed the circuit court in an opinion that carefully addresses the
standard of review governing arbitration award challenges based on fraud
(see ¶¶ 33-34). "The high degree of judicial
deference to which an arbitration award is entitled when a party seeks
to vacate it is well-established in Wisconsin" (¶ 12). Hensler's
answer properly pleaded "a recognized ground for vacating an arbitration
award under Wis. Stat. § 788.10(1)(a), procurement by fraud. Issue
was thus joined, with Steichen being entitled to confirmation of the
award unless Hensler could prove his sole defense - that the award was
procured by fraud in the form of perjury by Steichen during the
arbitration proceedings" (¶ 20).
The court next turned to the summary judgment materials to determine
whether Hensler had raised an issue of fact concerning procurement by
fraud. "In summary, in order for Hensler's claim that Steichen procured
the fee arbitration award by fraud to survive summary judgment, Hensler
needed to submit evidentiary materials tending to show (or place in
dispute) that (1) a clearly demonstrable fraud was perpetrated; (2) the
substance and nature of the fraud could not, with due diligence, have
been discovered prior to or during arbitration; and (3) the fraud was
material to an issue decided by the arbitrator. Hensler failed on
summary judgment to establish or place in dispute the first two of these
three requirements. The record on summary judgment contained no evidence
that, if believed by a fact-finder, would clearly establish Steichen
perpetrated any type of fraud during the arbitration proceedings. In any
event, the substance of the alleged fraud was plainly communicated by
Steichen to Hensler prior to the arbitration, such that Hensler had
ample opportunity to discover the `fraud' and expose it before the
arbitrator. We thus conclude Steichen is entitled to summary judgment
confirming the arbitrator's award" (¶ 31).
Although the court's analysis and disposition turned on the summary
judgment issue, the court did "not wish to leave the impression that the
flaw in Hensler's challenge to the arbitration award stems solely from
technical flaws or oversights in his response to Steichen's summary
judgment motion. Our review of the trial record reveals that the
testimony and exhibits presented at trial by both parties did not vary
materially from their submissions on summary judgment. For the same
reasons that Hensler's claim of procurement by fraud fails to survive
Steichen's motion for summary judgment, Hensler failed to meet his
evidentiary burden at trial. Were we deciding the appeal on the trial
record instead of the record on summary judgment, our conclusions and
disposition would be the same" (¶ 32).
Finally, while the court of appeals agreed with Steichen that the
"instant litigation was, at bottom, a re-litigation of the arbitrated
dispute" on which Steichen should have been granted summary judgment,
the court could "discern no basis or authority ... for [the court]
to direct the imposition of frivolousness sanctions on Hensler or his
present counsel under Wis. Stat.
§ 814.025" (¶ 36). In particular, the "authority under the
appellate rules to sanction frivolousness before this court extends to
only `an appeal or cross-appeal ... found to be frivolous,' and not
to an allegedly frivolous responsive position in support of a circuit
court judgment or order" (¶ 37).
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Civil Procedure
Discovery - "Other Acts" - Sexual
Orientation - Motions to
Compel
J.W. v. B.B., 2005 WI App 125 (filed 26 May
2005) (ordered published 22 June 2005)
This is a discovery dispute that grew out of a medical malpractice
claim. "The plaintiffs filed a complaint alleging the physician [the
defendant] was `negligent in his care and treatment' for performing
digital-rectal prostate exams on them during pre-employment medical
examinations. They also alleged the physician failed to obtain their
informed consent before performing the exams. The plaintiffs asserted
that the physician told them the prostate exams were required for their
employment physicals" (¶ 2).
During his deposition, the defendant, on advice of counsel, refused
to answer questions concerning whether other persons had complained of
inappropriate touching, why he had left a previous job, and what his
sexual orientation is. The plaintiffs filed a motion to compel discovery
and the "court entered orders requiring the physician to disclose: (1)
his `sexual orientation'; (2) `other complaints by inmates, clients,
patients, or examinees, to the effect that [he] touched them
inappropriately or unnecessarily did rectal or prostate exams'; and (3)
`the reasons [he] left previous professional employment'" (¶
5).
The court of appeals granted the defendant leave to appeal the
nonfinal discovery order and, in an opinion by Judge Deininger, affirmed
in part and reversed in part the circuit court's opinion. The court of
appeals first addressed whether evidence as to the defendant's sexual
orientation is admissible or discoverable. The court held it is not.
"Quite simply, the physician's motive for conducting the exams has no
tendency to make it more or less probable that `his actions were
incongruent with medical requirements' because that determination turns
exclusively on a comparison of what the physician did to what a
`reasonable physician' would have done `in the same or similar
circumstances'" (¶ 13). "Because the physician's sexual orientation
is not relevant to any claim or defense in this action, and the
plaintiffs have not identified any admissible evidence to which the
disclosure might lead, we conclude the circuit court erred in ordering
the disclosure of the physician's sexual orientation. See Wis.
Stat. § 804.01(2)(a). By analogizing these malpractice actions to
criminal prosecutions and concluding that motive evidence is relevant
and potentially admissible at trial, the circuit court based its
decision on an error of law. The court thus erroneously exercised its
discretion in ordering the physician to disclose his sexual orientation"
(¶ 19).
The court of appeals affirmed the circuit court's order that
permitted discovery of "other complaints" made by other persons.
Although the defendant's "motive" and "intent" are irrelevant, the court
of appeals described other potentially permissible uses of other acts
evidence (assuming it exists) (see ¶¶ 22-24).
The court "emphasize[d] that we do not determine here
whether any information the physician provides in response to the
appealed orders will necessarily be admissible at trial. The future
evidentiary rulings are committed to the sound discretion of the circuit
court, to be based on the testimony and other evidence adduced at trial
and the specific nature of the proffered evidence and objections to it.
Admissibility of any `other acts' evidence at trial may also turn on the
circuit court's discretionary weighing of its probative value versus the
danger of unfair prejudice or other considerations. See Wis.
Stat. § 904.03. For present purposes, however, we cannot conclude
that the order to the physician to disclose `other complaints by
inmates, clients, patients, or examinees, to the effect that [he]
touched them inappropriately or unnecessarily did rectal or prostate
exams, and ... the reasons [he] left previous professional
employment' is not `reasonably calculated to lead to the discovery of
admissible evidence' under Wis. Stat. § 804.01(2)(a)" (¶ 25).
Finally, the court of appeals noted that production of any such
information should be subject to a protective order approved by the
circuit court (see ¶ 26).
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Criminal Procedure
Controlled Substance Conviction -
Probation Condition
Prohibiting Contact With "Drug Community"
State v.
Trigueros, 2005 WI App 112 (filed 12 April 2005) (ordered
published 22 June 2005)
The defendant was convicted of possessing one gram or less of cocaine
with intent to deliver. The circuit court imposed and stayed a term of
imprisonment and ordered the defendant to serve four years on probation.
As a condition of probation the judge prohibited the defendant from
having any contact with the drug community. On appeal the defendant
argued that this condition is unconstitutionally overbroad and vague and
thus violates his rights to privacy and to freedom of association. In a
decision authored by Judge Fine, the court of appeals affirmed.
The appellate court concluded that the probation condition
restricting association with the drug community is reasonably related to
the defendant's crime and to his rehabilitation as well as to the need
to protect the community. "The condition that [the defendant] not have
contact with the drug community will help [the defendant] remain
drug-free, and ensure that he does not sell drugs in the community
again" (¶ 12).
With regard to the defendant's contention that the probation
condition is unconstitutionally vague, the appellate court concluded
that the trial court's order defines a "drug community" for the
defendant. The circuit judge told the defendant that he may not be
around any person when, or be in any place where, drugs are being
possessed, used, or sold. The appellate court concluded that this
condition is clear and gives the defendant fair notice of what a "drug
community" is. "Moreover, [the defendant] has pointed out no authority
that gives him a right, as a convicted drug offender on probation, to
associate with drug traffickers during the period of his probation"
(¶ 14).
Plea Agreements - Post-plea Revision of
Agreement - Truth in
Sentencing - Conditions of Extended Supervision
State v.
Miller, 2005 WI App 114 (filed 27 April 2005) (ordered
published 22 June 2005)
In December 2000, the state charged the defendant with operating a
vehicle while intoxicated (OWI) (5th offense). At the plea hearing the
parties informed the court that a plea agreement had been reached: the
defendant agreed to plead no contest to the OWI charge, and the state
agreed to recommend a sentence of one year in jail, a fine, and a
license suspension. After the plea hearing, but before sentencing, the
defendant apparently left Wisconsin, and he failed to return for
subsequent hearings. In February 2003, he was convicted of OWI in
Iowa.
Following the Iowa conviction, the defendant appeared for sentencing
on the Wisconsin OWI charge. At that hearing the state recommended a
sentence of 12 months in jail, five years' probation, a fine, and
license revocation. The state represented that these were the terms of
the original plea agreement. Defense counsel initially objected to the
recommendation of probation because it was not a term in the original
plea agreement. Following an on-the-record exchange between the parties
regarding the terms of the plea agreement, defense counsel agreed that
the district attorney could recommend probation. (Defense counsel's
testimony at a postconviction motion hearing indicated that, although
counsel initially objected to the probation recommendation because it
was not included in the original plea negotiation, he did consult with
the defendant during the sentencing hearing about whether he wished to
withdraw his plea and the defendant indicated that he wished to continue
with sentencing.)
The judge imposed a sentence of two years' incarceration followed by
three years of extended supervision. As a condition of extended
supervision the court ordered the defendant to maintain the payment of
child support obligations owed pursuant to a 1991 paternity action. The
defendant appealed, and the court of appeals, in a decision authored by
Judge Anderson, affirmed.
With regard to the alleged breach of the plea agreement, the court
held that, when the defendant failed to object to the state's alleged
breach at the sentencing hearing, he waived his right to directly
challenge the breach. Accordingly, this case came before the court of
appeals in the context of a claim of ineffective assistance of counsel
(see ¶ 7).
The appellate court concluded that, because defense counsel had a
specific strategic reason for not objecting to the "new" agreement and
consulted with the defendant and secured his consent to proceed, his
performance was not deficient. "In State v. Sprang, 2004 WI App
121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a
prosecutor breaches a plea agreement by arguing for a harsher sentence
than the one the prosecutor agreed to recommend and defense counsel
fails to object, the agreement has `morphed' into a new agreement. Thus,
defense counsel must consult with the defendant and receive verification
that the defendant wishes to proceed with the `new' plea agreement. The
Sprangdecision teaches that even a strategically sound decision
by defense counsel to forego an objection to a prosecutor's breach
without consulting with the defendant constitutes deficient performance
because it is `tantamount to entering a renegotiated plea agreement
without [the defendant's] knowledge or consent'" (¶ 8) (citations
omitted).
The defendant also challenged the condition of extended supervision
relating to the payment of child support obligations. He contended that
the duty to pay child support arose from an unrelated case and that
statutory remedies already exist for the nonpayment of child support.
The court of appeals disagreed. Trial courts are granted broad
discretion in determining conditions for extended supervision; such
discretion is subject only to a standard of reasonableness and
appropriateness. "Whether a condition of extended supervision is
reasonable and appropriate is determined by how well it serves the dual
goals of supervision: rehabilitation of the defendant and the protection
of a state or community interest" (¶ 11).
The court concluded that the condition at issue is reasonably related
to the defendant's rehabilitation and the protection of a community or
state interest. The condition requires the defendant to learn
responsibility. "The condition of extended supervision obviously
protects important state and community interests. Because [the
defendant] will ostensibly learn to live more responsibly, he will be
less likely to drink and drive. Further, the condition relates to the
support and well-being of a child, a clear community interest" (¶
15).
The court explained that, as a condition of extended supervision, the
defendant must avoid all conduct that violates state statutes.
See Wis. Admin. Code § DOC 328.04(3)(a). The criminal code
criminalizes the nonpayment of child support. "Therefore, pursuant to
the general administrative code provision concerning extended
supervision [the defendant] would be required to maintain his child
support payments. We see no reason why the trial court could not then
specifically impose a condition that directly relates to criminal
behavior and so clearly advances the public welfare and the defendant's
rehabilitation period" (¶ 16).
Plea Withdrawal Before Sentencing - Fair
and Just Reason -
Prejudice to State
State v.
Nelson, 2005 WI App 113 (filed 19 April 2005) (ordered
published 22 June 2005)
Pursuant to a plea negotiation, the defendant pleaded guilty to three
counts of first-degree sexual assault, one count of kidnapping, and one
count of armed burglary. Two other charges were dismissed. Following the
plea hearing but before sentencing, the defendant (represented by a new
attorney) moved to withdraw all of his pleas because his prior attorney
had failed to advise him before he pleaded guilty that, as a result of
his convictions for the sexual assaults, he could be committed as a
sexually violent person under Wis. Stat. chapter 980. The circuit court
acknowledged that this would be a fair and just reason to permit
withdrawal of the pleas to the sexual assault counts but denied the
motion after finding that the state would be substantially prejudiced if
the defendant were allowed to withdraw his pleas. In a majority decision
authored by Judge Curley, the court of appeals reversed.
The appellate court concluded that the defendant's lack of knowledge
that he would be eligible for a chapter 980 commitment as a result of
his convictions constituted a fair and just reason for plea withdrawal
(see ¶ 15). A defendant seeking to withdraw a plea of
guilty or no contest before sentencing must show that there is a fair
and just reason allowing him or her to withdraw the plea. See, e.g.,
State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999).
If the defendant establishes by a preponderance of the evidence a
fair and just reason for plea withdrawal, as the defendant did here, the
burden shifts to the state to prove substantial prejudice. While there
is very little case law touching on what constitutes substantial
prejudice, the court concluded "that the prejudice that need be shown to
merit the denial of the withdrawal of a plea must be significant in
order to trump a defendant's fair and just reason" (¶ 17).
"In [State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis. 2d 561,
605 N.W.2d 199] our supreme court was satisfied that substantial
prejudice was shown because, as the trial court concluded, the effects
of any further delay would `hamper the [4.5-year-old] victim's ability
to recall pertinent events.' Several federal cases have also addressed
the issue and found that withdrawal of a plea would present a
substantial prejudice to the government under the following
circumstances: having once again to provide protection for endangered
witnesses during trial; having to assemble witnesses after
condefendant's acquittal when joint trial was possible; death of a chief
government witness; when physical evidence is discarded; and when other
defendants with whom defendant had been joined for trial had already
been tried in a lengthy trial and defendant's plea was taken midntrial"
(¶ 18) (citations omitted).
In this case the court concluded that the state failed to make the
requisite showing of prejudice. Although the sexual assault victim was
missing at the time of the motion for plea withdrawal, the state
described her absence as temporary and indicated that it was confident
that she could be found. The state failed to establish that she could
not eventually be located or to set forth what attempts had been made to
find her (see ¶ 19).
Lastly, the court considered the defendant's argument that if he is
successful in withdrawing some of his pleas, he is entitled to withdraw
all of his pleas, including the counts that did not involve sexual
assault and the potential for a chapter 980 commitment. The appellate
court was not persuaded that its decision to permit the defendant to
withdraw his guilty pleas to the sexual assault counts required a
withdrawal of the two other convictions. "[The defendant] has not
explained why the proper remedy is a reversal of all the charges, or how
his legitimate interests are harmed. He bargained for a reduction of
charges from seven to five. He currently remains convicted of two. The
state never agreed to recommend a specific prison term, only to ask the
trial court at sentencing for `substantial prison.' [The defendant] got
the benefit of his bargain" (¶ 25). Accordingly, the court of
appeals remanded the case to the trial court to permit the defendant to
withdraw his pleas to only the three sexual assault counts.
Judge Fine filed a dissenting opinion.
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Municipal Law
Zoning - Conditional Use Permits
-
Respective Powers of Town Board and Town Board of
Adjustment
Magnolia Township v.
Town of Magnolia, 2005 WI App 119 (filed 12 May 2005) (ordered
published 22 June 2005)
The issue in this case was whether the Board of Adjustment of the
Town of Magnolia lacked the authority to grant a conditional use permit
(CUP) after the town board had decided to deny it. A CUP allows a
property owner to put his or her property to a use that the ordinance
expressly permits when certain conditions have been met. The circuit
court concluded that the board of adjustment lacked such authority. In a
decision authored by Judge Vergeront, the court of appeals affirmed.
The appellate court concluded as follows: "(1) Wis. Stat. §
60.65(3) requires that the authority of a town board of adjustment to
grant CUPs be contained in the town zoning ordinance; (2) the Town of
Magnolia's zoning ordinance authorizes the Town Board but not the Board
of Adjustment to grant CUPs; (3) there is no statutory authority for the
Town Board of Adjustment to hear an appeal from the Town Board's
decision to grant or deny a CUP; and (4) the Town's zoning ordinance
does not give the Board of Adjustment this appellate authority" (¶
1). Even if the zoning ordinance did authorize the Board of Adjustment
to hear an appeal from the Town Board's denial of a CUP, such
authorization would be invalid because it would be in excess of that
granted by statute (see ¶ 36).
In a footnote the court observed that its decision does not mean that
there is no right to an appeal of a decision of a town board to grant or
deny a CUP. Rather, the right to appeal is to the circuit court, not the
board of adjustment (see ¶ 33 n.19).
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Torts
Structural Defects - Statutes of Repose
_Safe Place
Mair v. Trollhaugen Ski
Resort, 2005 WI App 116 (filed 3 May 2005) (ordered published
22 June 2005)
The plaintiff sued for injuries she sustained when she fell in a
bathroom of a ski resort. The trial court granted summary judgment in
favor of the defendants because the bathroom's flaw, a recessed floor
drain, was a structural defect and the plaintiff's claim was therefore
barred by the 10-year statute of repose for builders. See Wis.
Stat. § 893.89.
The court of appeals, in an opinion written by Judge Peterson,
affirmed. The plaintiff argued that while the statute of repose barred a
negligence claim, it should not block her claim under the safe place
statute, which imposes an "ongoing duty to keep a structure safe"
(¶ 4). The court held that "[b]oth the statute of repose and the
safe place statute explicitly address construction" (¶ 10). Thus,
to the extent that the plaintiff's safe place claim "is based on
defective construction of the bathroom floor, the claim is barred by the
ten-year statute of repose" (¶ 10).
Turning next to the plaintiff's argument that the safe place statute
imposes an ongoing duty to furnish a safe building, the owner must
nonetheless have notice of "an unsafe condition associated with the
structure of the building" (¶ 13). Since the plaintiff produced no
evidence that the owner had actual or constructive notice that the
recessed drain was unsafe, her safe place claim failed (see
¶ 14).
Airline Passengers - Federal
Preemption
Miezin v. Midwest
Express Airlines Inc., 2005 WI App 120 (filed 17 May 2005)
(ordered published 22 June 2005)
The plaintiffs filed an action against an airline alleging that it
had negligently failed to warn passengers about the dangers of deep vein
thrombosis (DVT). The circuit court granted summary judgment in favor of
the airline.
The court of appeals, in a decision authored by Judge Kessler,
affirmed. Relying on federal case law that was "directly on point," the
court held that the plaintiffs' state claim was barred by both "implied
field preemption" and "conflict preemption." "`[Implied f]ield
preemption and conflict preemption are both applicable, because there
exists a comprehensive scheme of federal regulation, and the imposition
of state standards would conflict with federal law and interfere with
federal objectives.' The pervasive regulations concerning the warnings
that must be given to airline passengers indicate that `Congress left no
room for the States to supplement' these regulations. If state
requirements for announcements to airline passengers were not impliedly
preempted by the Federal Aviation Act, each state would be free to
require any announcement it wished on all planes arriving in, or
departing from, its soil. It is hard to see how the amalgam of
potentially conflicting messages promoting competing states' interests
would not stand `as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.' Thus, on the narrow topic
before us - warnings that are given to airline passengers - we conclude
that the Federal Aviation Act impliedly preempts the application of
state common-law negligence standards to failure-to-warn claims like
that presented here" (¶ 18) (alterations in original).
The court expressly declined to consider whether state claims for
failure to warn passengers of airline risks are "entirely preempted" or
whether, as some cases have held, preemption permits a state remedy
subject to a federal standard (see ¶ 19). The court also
refused to consider whether, absent preemption, Wisconsin law recognizes
a common law claim that airlines have a duty to warn about the risks of
DVT (see ¶ 2).
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