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    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.
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    Vol. 82, No. 7, July 2009

    Civil Procedure

    Small Claims – Defaults – Collateral Attacks

    Mercado v. GE Money Bank, 2009 WI App 73 (filed 14 April 2009) (ordered published 27 May 2009)

    GE Money Bank (GE) filed small-claims actions against Mercado and Terry to recover credit card payments, and it later obtained default judgments. GE later pursued postjudgment “enforcement activities.” Mercado and Terry never sought relief from the small claims actions under Wis. Stat. section 806.07. They did, however, file a complaint against GE for allegedly violating the Wisconsin Consumer Act and sought class certification. The circuit court granted GE’s motion to dismiss on the ground that Mercado and Terry failed to take action under section 806.07.

    The court of appeals affirmed in an opinion written by Judge Curley. Mercado and Terry’s lawsuit against GE was a collateral attack on the earlier default judgments, and Wisconsin courts “generally disfavor” such collateral challenges (¶ 13). “If Mercado and Terry wanted to challenge the validity of the default judgments entered against them, they were obligated to do so, within the time frame set forth in Wis. Stat. § 799.29, by filing motions to reopen in the actions that resulted in the default judgments, as opposed to commencing a separate lawsuit as they did here. Had Mercado and Terry timely filed a motion to reopen based on an alleged pleading deficiency, assuming a deficiency did in fact exist, in all likelihood, GE would have been able to cure the deficiency by amending its complaint or refiling.... Their failure to follow the statutory procedure set forth in § 799.29 precludes them from indirectly attacking the judgments now” (¶ 14).

    The court of appeals also held that the default judgments were not void. Although the court explicitly declined to decide whether GE failed to comply with the pleading requirements of Wis. Stat. section 425.109, “such a failure cannot deprive the small claims courts of subject matter jurisdiction and cannot render the default judgments void” (¶ 24).

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    Consumer Law

    Unauthorized Motor Vehicle Repairs – Pecuniary Loss

    Kaskin v. John Lynch Chevrolet-Pontiac Sales Inc., 2009 WI App 65 (filed 29 April 2009) (ordered published 27 May 2009)

    This case concerns the part of Wisconsin’s consumer protection law dealing with unauthorized motor vehicle repairs. Wisconsin Administrative Code section ATCP 132.09(4)(e) provides, in pertinent part, that
    “[n]o shop may [d]emand or receive payment for unauthorized repairs, or for repairs that have not been performed.” Consumers who suffer “pecuniary loss because of a violation” of this provision may pursue a private remedy under Wis. Stat. section 100.20(5).

    In this case the plaintiff sued the repair shop, claiming that it performed unauthorized engine repairs on his truck and then billed him approximately $5,000. Because the shop would not return the truck until the bill was paid, the plaintiff paid the bill and then filed this action under section 100.20(5), claiming that he never authorized the repairs. (To the extent there may have been any authorization, the plaintiff claimed that it was with the understanding that whatever needed to be fixed was under warranty.)

    The circuit court granted summary judgment to the repair shop, holding that the engine problems were caused by bad fuel and not by the shop’s alleged failure to obtain the plaintiff’s authorization to perform the repairs. Therefore, the circuit court concluded that whether the repairs were authorized or not was immaterial because the plaintiff did not suffer a pecuniary loss, or at least not a pecuniary loss caused by the lack of authorization (see ¶ 6).

    In a decision authored by Chief Judge Brown, the court of appeals reversed the circuit court’s decision. It concluded that “a repair shop, which finds itself outside the law and which has taken money from a consumer after violating the law, causes pecuniary loss to the consumer because of the violation. This is so because the consumer has been prevented from exercising a statutory right – the right of informed consent” (¶ 28). As for the amount of the loss, the court held that “when a motor vehicle repair shop receives money from a customer for repairs that the customer did not authorize, or at a price not authorized, the customer’s pecuniary loss is the entire amount of the unauthorized charges that the customer paid to the motor vehicle repair shop. A customer filing an action under § 100.20(5) is therefore not required to prove anything except that (1) he or she paid and (2) that payment was for unauthorized repairs or repairs otherwise performed in violation of Wis. Admin. Code ch. ATCP 132” (¶ 24).

    In so holding, the appellate court rejected the repair shop’s theory that pecuniary loss means the amount the consumer can prove he or she paid, either to the repair shop or to another repair shop, to correct a bad repair job done by the shop being complained against. “That circumstance has nothing to do with unexpected repair or expense and everything to do with faulty repair – which is not the mischief the rule was designed to prevent. Consumers do not need § 100.20(5) to bring a cause of action for a bad repair job. They can avail themselves of common law remedies for faulty repair. And we also reject [the repair shop’s] alternative theory that the measure of ‘pecuniary loss’ is the difference between the amount the motor vehicle owner was forced to pay to get the car back and the lesser amount the owner can prove would have been paid had the owner been so informed and gone somewhere else to get the repair done” (¶ 2).

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    Contracts

    “Professional” Services – Expert Testimony

    Racine County v. Oracular Milwaukee Inc., 2009 WI App 58 (filed 8 April 2009) (ordered published 27 May 2009)

    Oracular and Racine County entered a contract for Oracular to provide computer services to the county. The county terminated the contract in 2006 and filed this action, in which it pleaded claims for both breach of contract and violation of Wis. Stat. section 100.18. The circuit court granted summary judgment in Oracular’s favor, finding that the contract was one for “professional services” and that case law required that the county prove negligence through expert testimony, which the county had not provided.

    The court of appeals reversed in an opinion authored by Judge Anderson. “Initially, we conclude that whether or not Oracular, a computer consulting company, and its employees, are professionals begs the question. This is because the need to label a person a professional is part and parcel of a ‘professional malpractice’ action. A plaintiff who is injured by a professional’s malpractice wants to be made whole. But the case at bar is not a malpractice action; it is a contract action. The County wants the benefit of the bargain; it does not seek to be ‘made whole.’ Thus, the first problem with the circuit court’s decision is that by cloaking Oracular’s computer consultants with the professional tag, it adds to the County’s burden in pursuing the benefit of the bargain” (¶ 24).

    Second, the court said, “computer consultants are not professionals as that term is used in the tort of professional negligence” (¶ 25). The court identified eight characteristics that “serve as a template to measure whether an occupation is a ‘profession’” (¶ 32). The “obvious … conclusion that a computer consultant is not a professional only affects whether the County can pursue contract remedies rather than tort remedies” (¶ 34).

    The court also held that expert testimony was not required. “Whether Oracular provided competent training is neither complex nor esoteric. And, similarly, whether a contract is performed in a timely manner is simple and obvious to the average juror. A jury would not need ‘special knowledge or skill or experience’ to properly understand and analyze Oracular’s conduct” (¶ 38). This “general rule” is “applicable across the entire spectrum of professional negligence cases” (¶ 41). “The County does not allege that Oracular breached the contract because of a lack of professional expertise. It does not assert that Oracular breached the contract by failing to comply with industry standards during the installation of the software. Rather, it seeks to hold Oracular liable for breaching the contract by not completing the project in a timely manner and by not providing training” (¶ 42).

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    Criminal Procedure

    Search and Seizure – Reasonable Suspicion

    State v. Bridges, 2009 WI App 66 (filed 29 April 2009) (ordered published 27 May 2009)

    The court of appeals affirmed the defendant’s conviction for possessing cocaine with intent to deliver. The court rejected his contention that police officers unlawfully conducted a protective search for weapons during a routine traffic stop. In a fact-intensive opinion, the court distinguished the lawful search in this case from the search in State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182, in which the supreme court found that a protective search was not supported by reasonable suspicion. “The traffic stop of Bridges took place in a poorly lit, deserted area where gunfire was frequently heard at night, and the backup had not yet arrived. Both officers believed that Bridges [might] be armed based on their observations of his movements and their experience in law enforcement. Dummer took the minimally intrusive step of questioning Bridges to obtain information to confirm or dispel their suspicions. Bridges’ failure to answer, combined with the totality of circumstances, gave rise to ‘a reasonably prudent [officer’s] belief that his [or her] safety was in danger’” (¶ 21).

    Search and Seizure – Plain View

    State v. Russ, 2009 WI App 68 (filed 7 April 2009) (ordered published 27 May 2009)

    Russ, a process service, was convicted of forgery, as a result of his false notarization of affidavits. The court of appeals affirmed his conviction in an opinion written by Judge Fine.

    Russ left the affidavits in a file folder on a bench outside the small-claims court. He then left the vicinity. Later, a court commissioner examined and photocopied the affidavits without Russ’s consent or a search warrant. The court held that Russ had no reasonable expectation of privacy in the file or affidavits that he left in the courthouse hallway [see ¶ 12]. Nor was there an unlawful seizure, because the affidavits were left in plain view and their incriminating character was immediately apparent (see ¶ 13).  

    Sentencing – Juveniles Prosecuted in Adult Court – Life Sentence Without Possibility of Release

    State v. Ninham, 2009 WI App 64 (filed 3 March 2009) (ordered published 27 May 2009)

    A jury convicted Omer Ninham, who was 14 years old at the time of the crime, of first-degree intentional homicide in the death of 13-year-old Zong Vang. The evidence showed that Ninham and four accomplices knocked Vang off his bicycle without provocation, beat him, chased him to the fifth story of a parking ramp, and threw him over the side to his death. The sentencing court also considered read-in offenses that Ninham threatened a judge and intimidated three witnesses after his arrest, including making a threat to rape a woman and to “make sure it’s a slow death.” Ninham also received conduct reports while awaiting trial, including reports for sharpening a weapon and attempting to escape. The circuit court considered Ninham’s age, his dysfunctional family, his extensive prior juvenile record, his problems with alcohol abuse, and other factors and concluded that Ninham “should not be allowed release on parole” (¶ 2). The court subsequently denied Ninham’s motion to modify his sentence to allow for the possibility of release from prison at some time.

    In a decision authored by Judge Brunner, the court of appeals affirmed. It rejected the defendant’s contention that a sentence of life without the possibility of parole for a crime committed by a 14 year old violates the Eighth Amendment prohibition against cruel and unusual punishment. It found that Roper v. Simmons, 543 U.S. 551 (2005), in which the Supreme Court concluded that the execution of juveniles is prohibited by the Eighth Amendment, “does not support the proposition that a sentence to life without parole for acts committed by a fourteen-year-old is always inappropriate regardless of the depravity of the crime, the juvenile’s character and the need to protect the public” (¶ 4).

    Ninham also contended that the rarity of a life sentence without parole for a 14-year-old defendant rendered his punishment unusual under the Eighth Amendment. He provided statistics concerning children who were arrested for murder or nonnegligent manslaughter to establish that his sentence is unusual. Said the appellate court in response, “Ninham’s crime was unusual for its senseless and extreme brutality. When combined with his lack of remorse, his prior record and other crimes he committed while awaiting trial, his case is distinguished from other juveniles arrested for murder or manslaughter. Without a presentation of the circumstances of other juveniles’ crimes, we cannot compare the sentences. The statistics Ninham provides do not establish that life without parole is a rare sentence for a juvenile whose crimes and character are comparable to his own” (¶ 5).

    Ninham also argued that his sentence was unduly harsh and excessive. The standard for evaluating whether a sentence is unduly harsh is “whether it is so excessive and unusual and disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances” (¶ 7). Ninham claimed that it is impossible to determine whether he will remain incorrigible for the rest of his life or to conclude that he is forever irredeemable. Said the appellate court in response, “It is not necessary to conclude that Ninham will remain incorrigible for the rest of his life or that he is forever irredeemable to support the sentence. The factors that go into a sentencing decision are not based solely on the defendant’s characteristics. The court is not required to risk public safety based on the hope that years in prison will reform Ninham’s character…. The brutality of Ninham’s crime and the additional offenses he committed after his arrest defeat the argument that the sentence is disproportionate to the offense”(¶ 8).

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    Employment Law

    Arbitration – Reinstatement

    Sands v. Menard Inc., 2009 WI App 70 (filed 14 April 2009) (ordered published 27 May 2009)

    Menard Inc. terminated Sands, who worked for the company as a vice president and general counsel, over a compensation dispute. An arbitration panel ruled that Menard violated the Equal Pay Act and had retaliated against Sands for asserting her rights. The panel awarded her compensatory and punitive damages and also ordered Menard to reinstate her with a specified salary and bonus, even though Sands had not sought reinstatement. The circuit court denied Menard’s motion to vacate the award.

    The court of appeals affirmed in an opinion written by Judge Brunner. The court held that Menard failed to prove that the arbitrators manifestly disregarded the law. “Menard does not dispute that reinstatement is a remedy under the Equal Pay Act and Title VII and that neither of those acts provide an exception for in-house attorneys. Further, Menard points to no governing case law stating reinstatement is unavailable as a remedy for wrongfully terminated in-house attorneys under the Equal Pay Act or Title VII. Simply put, the Equal Pay Act and Title VII provide substantial authority for the arbitrators’ award” (¶ 10). The applicable standard of review precluded the court from in effect “creat[ing] law stating reinstatement is not a remedy for in-house attorneys under the Equal Pay Act and Title VII when the employer contests reinstatement or when the attorney might be violating the rules of professional conduct after reinstatement(¶ 11).

    “Finally, whether to award front pay in lieu of reinstatement is discretionary. To the extent Menard argues the arbitrators manifestly disregarded the law by failing to explicitly consider that Menard did not want to reinstate Sands and whether Sands would be violating rules of professional conduct if she were reinstated, Menard is essentially arguing the arbitrators erroneously exercised their discretion” (¶ 12).

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    Firearms

    Handgun Permits – Misdemeanor Domestic-Violence Crimes

    Koll v. Wisconsin Dep’t of Justice, 2009 WI App 74 (filed 1 April 2009) (ordered published 27 May 2009)

    The state charged Koll with violent disorderly conduct and battery arising from an incident that occurred in 1998. The probable cause statement supporting the complaint indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off the vehicle. He ultimately pleaded no contest to two counts of disorderly conduct, specifically described as “non-domestic,” and was convicted under Wis. Stat. section 947.01. The circuit court imposed and stayed a jail sentence, placed Koll on probation for three years, and ordered him to participate in “Domestic Abuse Perpetrator’s” counseling (see ¶ 2).

    In 2007 Koll attempted to purchase a handgun from a local retailer. The Wisconsin Department of Justice (DOJ) denied his request. Koll requested a review of the decision before the administrator of the Division of Law Enforcement Services. The administrator summarily denied Koll’s request, citing the federal Gun Control Act. Since its inception in 1968, the Gun Control Act has barred felons from possessing firearms. In 1996, Congress extended the prohibition on gun possession to persons convicted of misdemeanor crimes of domestic violence. See 18 U.S.C. § 922(g)(9). Applying the federal law, the administrator concluded that Koll’s convictions involved misdemeanor domestic-violence crimes. Koll sought review of the agency decision in circuit court, which held in his favor and issued an order requiring the DOJ to issue the gun permit. The DOJ appealed and the court of appeals, in a majority decision authored by Judge Snyder, reversed the circuit court.

    Koll argued that the DOJ erred in denying his permit because his prior disorderly conduct misdemeanors did not include “as an element” the existence of a domestic relationship. However, in United States v. Hayes, 129 S. Ct. 1079 (2009), the Supreme Court concluded that “Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime” (¶ 9).

    Applying Hayes, the court of appeals held that “the DOJ properly denied Koll’s application for a gun permit. The 1998 conviction for disorderly conduct arose from an event involving Koll and his live-in girlfriend. This falls within the definition provided in 18 U.S.C. § 921(a)(33)(A)(ii), which provides that a domestic relationship exists where the aggressor and the victim are cohabiting or have cohabited. Koll, therefore, has committed a predicate misdemeanor crime of domestic violence as that term is used in the Gun Control Act, and he may not possess a firearm. The DOJ properly denied his request for a gun permit” (¶ 10).

    Judge Anderson filed a concurring opinion to emphasize, among other things, that “there is no crime entitled ‘disorderly conduct (non-domestic)’”(¶ 13).

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    Insurance

    Autos – Deemed-Permission Rule

    Venerable v. Adams, 2009 WI App 76 (filed 28 April 2009) (ordered published 27 May 2009)

    InsureMax issued a personal automobile insurance policy that covered Adams’s 1990 Buick Regal. Adams later rented from Dollar Rent-A-Car a Mercury, which he intended to use while his son Bryan was home to get married. It was undisputed that Adams did not rent the car for Bryan’s use and that Adams was the only driver listed on the rental agreement. Moreover, Bryan’s driver’s license was suspended. During his visit, Bryan took the Mercury without Adams’s knowledge. While Bryan was driving, he lost control of the car, and as a result, one passenger, Devin Venerable, was killed and two others were injured. American Family insured Devin’s family and later was assigned the estate’s claims. American Family sought contribution from InsureMax. The circuit court found that InsureMax covered the rented Mercury, and that Bryan could give himself permission to drive the rental car. 

    The court of appeals reversed in a decision written by Judge Brennan. Much of the discussion concerns the deemed permission rule set forth in Arps v. Seelow, 163 Wis. 2d 645, 472 N.W.2d 542 (Ct. App. 1991). “First, we are not convinced that the deemed permission rule of Arps should be extended to afford coverage to Bryan while operating the rental vehicle which he did not rent or have express permission to drive, and was not owned by his father. Second, we hold that the omnibus statute, even when applied broadly, does not extend coverage to Bryan under the factual scenario presented here. The omnibus statute, as noted above, requires coverage, under the InsureMax policy, to extend to Bryan when he is ‘using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.’ Thus, for the omnibus statute to require coverage, two factors must be met: (1) the motor vehicle operated by Bryan must be a ‘motor vehicle described in the policy’; and (2) the use of the rental vehicle must be ‘for purposes and in the manner described in the policy.’ Neither factor is present in this case” (¶ 19).

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    Real Property

    Property Sales – Listing Contracts – Protected Buyers

    Burkett & Assocs. Inc. Century 21 v. Teymer, 2009 WI App 67 (filed 21 April 2009) (ordered published 27 May 2009)

    The plaintiffs (the Teymers) listed property for sale with Burkett and Associates in July 2003 under a one-year listing contract. Because the property did not sell, the Teymers relisted the property for another year starting in September 2004. The listing contract – a WB-1 form approved by the Wisconsin Department of Regulation and Licensing – gave Burkett the exclusive right to sell the property. Under the contract, the broker is entitled to a commission if a purchaser is procured during the contract term, whether the purchaser is found by the broker or by the seller. The broker also is entitled to a commission if the property is sold to a protected buyer within one year after termination of the contract. A protected buyer is an individual or entity with whom the broker “negotiated to acquire an interest in the Property” during the contract term. To be entitled to a commission, the broker must deliver the protected buyer’s name to the seller no later than three days after the contract expires (see ¶ 2).

    After the plaintiffs terminated the listing contract with Burkett, they directly negotiated a sale of their property with ATC (the buyer). Burkett sued for its commission, claiming that under the listing contract ATC was a protected buyer. Following a bench trial, the circuit court granted judgment in favor of the Teymers. It concluded that ATC was not a protected buyer because Burkett had not negotiated with ATC. It further concluded that there had been no “meeting of the minds” between the parties about Burkett’s designation of ATC as protected (see ¶ 8).

    In a decision authored by Judge Peterson, the court of appeals reversed. The court noted that according to the listing contract, Burkett is entitled to a commission if the property is sold to a protected buyer within one year after the contract is terminated. A protected buyer is defined by the listing contract as someone with whom Burkett “negotiated to acquire an interest in the Property” during the contract term. The listing contract defines negotiate as “to discuss the potential terms upon which buyer might acquire an interest in the Property or to attend an individual showing of the property” (¶ 10). ATC did not attend an individual showing of the property. Therefore, the only question was whether Burkett and ATC discussed the potential terms on which ATC might acquire an interest in the Teymers’s property. The evidence demonstrated that ATC expressed an interest in the property and asked for sales information; Burkett responded by faxing to ATC’s agent “all the information ATC needed to acquire the property” (¶ 13). Said the court, “This two-way communication fulfills the contract’s definition of negotiate” (¶ 14).

    The appellate court also concluded that there is no requirement that the parties agree with respect to the naming of protected buyers. “Rather, a buyer is protected if it ‘negotiated to acquire an interest in the Property during the term of [the] listing.’ According to the terms of the contract, then, the broker’s designation of protected buyers is a unilateral action that does not require the seller’s assent. A meeting of the minds is unnecessary” (¶ 16).

    Lastly, the court of appeals concluded that Burkett complied with the requirement to deliver the names of protected buyers to the seller within three days of the contract’s termination. The Teymers claimed that they did not receive the mailing with the protected buyers’ names until seven days after the contract was terminated. However, said the court of appeals, “[t]his argument ignores the plain language of the contract: ‘delivery of documents or written notices related to this Listing may be accomplished by … depositing the document or written notice postage or fees prepaid or charged to an account in the U.S. Mail or a commercial delivery system, addressed to the Party, at the Party’s address….’ The date of delivery, then, is the date of mailing, not receipt. The record contains a certified receipt for mail from Burkett to the Teymers dated January 26, 2005 [the date on which the contract was terminated]” (¶ 19).

    Real Estate Sales Contracts – Specific Performance

    Ash Park LLC v. Alexander & Bishop Ltd., 2009 WI App 71 (filed 7 April 2009) (ordered published 27 May 2009)

    Alexander & Bishop contracted to purchase vacant land from Ash Park LLC for more than $6 million. When the deal failed to close, Ash Park sued Alexander & Bishop. The circuit court granted summary judgment along with specific performance to Ash Park. It also ordered Alexander & Bishop to pay prejudgment and postjudgment interest.

    The court of appeals affirmed in an opinion written by Judge Hoover. The prime contention concerned the grant of specific performance instead of monetary damages. Specific performance is “well established” in the case law (¶ 8). Circuit courts have “little discretion to deny a vendor’s request for specific performance” (¶ 10). Alexander & Bishop’s contention that it was “unable to pay” was not supported by admissible evidence (¶ 11). Nor was a “judicial sale” the “actual remedy” (¶ 12).

    The court of appeals relied on Heins v. Thompson & Flieth Lumber Co., 165 Wis. 563, 163 N.W. 173 (1917), in which the supreme court “noted that while an order for specific performance was ‘the general rule, in practice, payment of the purchase money is, probably, generally enforced by the sale of the land to satisfy the amount due for purchase money and costs, and a judgment for the deficiency, if any, enforceable by execution.’ The court viewed this as the ‘better practice,’ especially in the absence of some special circumstances showing such sale to be inadequate to fully protect the vendor’s right. Thus, the court determined it was proper to order specific performance of the contract, but improper to include a ‘positive requirement to pay the amount due[,]’ because this ‘drastic remedy’ could lead to ‘a contempt proceeding contrary to the policy of our system’” (¶ 15). The circuit court’s order here comported with this doctrine.

    The court of appeals also held that Alexander & Bishop was properly assessed 5 percent prejudgment interest and 12 percent postjudgment interest on the full contract purchase price (see ¶ 26). It rejected a series of arguments centering on the alleged impropriety of awarding interest in cases seeking specific performance (see ¶ 28).

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    Sheriffs

    Prisoner Transports – Power to Contract with Private Entity for Transports

    Brown County Sheriff’s Dep’t Non-Supervisory Labor Ass’n v. Brown County, 2009 WI App 75 (filed 21 April 2009) (ordered published 27 May 2009)

    The Brown County Sheriff contracted with Wisconsin Lock & Load Prisoner Transports LLC for the intrastate transport of mental health patients, juveniles, and prisoners for whom the sheriff was responsible. The sheriff signed a written authorization for Lock & Load “to transport all prisoners/inmates and mental patients in regards to all Writs, Warrants, Judgments of Conviction, Revocation Orders and Mental Commitments throughout the State of Wisconsin” (¶ 2). Before the sheriff entered this contract, prisoner transports were performed by regularly employed deputies of the sheriff’s department, who also are members of the Brown County Sheriff’s Department Non-Supervisory Labor Association.

    The association filed this action seeking a declaration that the sheriff could not contract with a private entity to transport prisoners. The issue before the circuit court was whether transporting prisoners is a constitutionally protected duty of the sheriff. The circuit court concluded that the prisoner transports delegated to Lock & Load fell within the sheriff’s constitutionally protected duty of attendance on the court. Therefore, the sheriff was free to determine how the duty would be carried out (see ¶ 3). The association appealed.

    In a decision authored by Judge Brunner, the court of appeals affirmed the circuit court. The appellate court began its analysis by noting that “certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office are constitutionally protected from legislative interference” (¶ 4) (internal quotes and citation omitted). It also observed that the Wisconsin Supreme Court has held that “attending on the courts is one of the duties preserved for the sheriff by the Wisconsin constitution” (citing Wisconsin Professional Police Association v. Dane County, 106 Wis. 2d 303, 312, 316 N.W.2d 656 (1982)) (¶ 5).

    Applying these principles the court of appeals concluded that “transporting prisoners pursuant to court-issued writs, orders, warrants, and judgments of conviction is attending on the court. Because the sheriff is attending on the court, his duty to transport prisoners at court direction is constitutionally protected” (¶ 8).

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    Torts

    Joint and Several Liability – Releases – Economic Loss – Special Verdict – Evidence – Offer to Settle

    Industrial Risk Insurers v. American Eng’g Testing Inc., 2009 WI App 62 (filed 14 April 2009) (ordered published 27 May 2009)

    In 2002, a Quad Graphics (Quad) rack structure (the AS/RS) collapsed and burned, resulting in damages of about $65 million. HK Systems (HK) designed and supervised the structure’s construction. Leavitt manufactured the steel tubes that were installed by Rack Structures Inc. (RSI). Quad was covered by an insurer, Industrial Risk Insurers (IRI), which paid $59 million and became a subrogated party. Before trial, IRI and Quad (IRI/Quad) entered into a Loy agreement with HK and various insurers. Leavitt also settled but the agreement reserved IRI/Quad’s right to pursue Leavitt’s excess carrier. At trial a jury apportioned causal negligence as follows: HK (51 percent), RSI (39 percent), and Leavitt (10 percent). In the trial’s second phase, the court found that HK had breached its contract with IRI/Quad. In postverdict motions, the court ruled that HK would not be included in the judgment and that IRI/Quad was not entitled to interest and double costs under Wis. Stat. section 807.01 based on an offer to settle. Leavitt filed an appeal, and IRI/Quad cross-appealed.

    The court of appeals affirmed (with modifications) on the appeal and reversed on the cross-appeal in an opinion written by Judge Curley. First, the court held that Leavitt was jointly and severally liable for the damages, a broad holding that raised a host of issues. The various pretrial settlements and releases raised complex questions involving the distinctions between Pierringer and Loy releases. In summary, the court held that IRI/Quad did not settle with RSI even though it had released RSI’s officers and directors; IRI/Quad had entered into a Loy release with HK, not a Pierringer release; and HK’s breach of contract did not relieve Leavitt of its tort liability (see ¶¶ 15-24). The court also held that under firmly established case law, joint and several liability applies to tortfeasors in strict-product-liability claims.

    Second, the court rejected Leavitt’s contention that the economic loss doctrine precluded IRI/Quad’s product liability claim. The discussion detailed the nature of IRI/Quad’s damages (especially the destruction of printed materials and damages to adjacent buildings) under both the integrated systems test and the disappointed expectations test (see ¶¶ 29-43).

    Third, the court rebuffed Leavitt’s claim that the special verdict did not properly assess its role in the failure of the AS/RS. Of special note in this fact-intensive discussion is that many of Leavitt’s contentions were waived by its failure to properly preserve alleged error at the instruction conference. In particular, Leavitt’s “pretrial submission” did not “save it from Wis. Stat. § 805.13(3)’s mandate” that objections must be raised at the conference itself (¶ 47).

    Fourth, the circuit court properly admitted evidence regarding certain product testing and excluding cross-examination related to other problems with the AS/RS. This discussion is instructive with respect to causation issues and relevancy issues that commonly arise in product liability cases, especially the distinction between a defective product and the manufacturer’s conduct.

    Turning to the cross-appeal, the court of appeals reversed because it found that IRI/Quad’s offer to settle was valid under section 807.01. The court distinguished cases involving deficient joint offers to settle. Since the offer came from an insured (HK) and its subrogated insurer (IRI), the single offer adequately permitted Leavitt to fully and fairly evaluate the offer (see ¶¶ 71-85).   

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