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    Court of Appeals Digest

    Daniel Blinka and Thomas Hammer

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    Wisconsin Lawyer
    Vol. 75, No. 6, June 2002

    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

    * *


    Malpractice - Plaintiff's "Innocence" - Statute of Limitations - Emotional Distress

    Hicks v. Nunnery, 2002 WI App 87 (filed 24 April 2002)

    This is a lawyer malpractice action that arose from an underlying criminal case. Nunnery represented Hicks on a criminal sexual assault charge. Although the state offered expert testimony regarding hairs found at the crime scene, neither the defense nor the state used DNA testing. Hicks was convicted and imprisoned. At some later time, DNA testing excluded Hicks as the source of some of the hair evidence. In postconviction proceedings, the Wisconsin Supreme Court granted a new trial in the interest of justice in light of the DNA evidence. Hicks was never retried on the criminal charges because the state dropped the charges.

    Hicks then began this legal malpractice action against Nunnery. A jury found Nunnery negligent because he failed to obtain DNA testing and preserve the testimony of another witness. It awarded Hicks about $2.6 million in damages.

    The court of appeals, in an opinion written by Judge Deininger, reversed. The decision addressed numerous issues. First, the court held Hicks' claim for "emotional distress" was governed by the six-year period that governs injuries to the "character or rights of another," as provided by Wis. Stat. section 893.53, not the three-year period for "injuries to the person" provided by Wis. Stat. section 893.54.

    Second, Nunnery argued that he was entitled to judgment notwithstanding the verdict because Hicks had failed to prove "severe" emotional distress, particularly in light of the absence of expert testimony showing that Hicks suffered a "neurosis." The record in this case revealed, however, that the special verdict asked the jury only a "single, general damage question: `What amount of money, if any, will fairly and reasonably compensate [Hicks] for the damages he sustained as a result of his criminal conviction and incarceration?'" Moreover, Nunnery did not object to the question or the accompanying jury instruction, and injuries to Hicks' "good name and reputation" as well as his years spent in prison also factored into the damages award. In sum, on this record the failure to offer expert testimony on emotional damages was not "fatal" to the verdict (¶¶ 29-31).

    The third, and most significant, issue concerned whether Hicks had the burden of proving his innocence of the underlying criminal charges. Prevailing case law holds that a legal malpractice action consists of four elements: 1) a lawyer-client relationship existed; 2) the defendant was negligent; 3) the negligence caused the plaintiff's injuries; and 4) the nature and extent of injuries. Elements 3 and 4 usually require proof of the "suit within a suit" to demonstrate that the plaintiff would have succeeded but for the lawyer's negligence.

    A majority of states appear to require proof of the plaintiff's "actual innocence" when the legal malpractice arises out of a criminal case. The court of appeals was convinced that "public policy requires a plaintiff in Hicks' position to provide he is innocent of the charges of which he was convicted in order to prevail on the claim of legal malpractice" (¶46). In so holding, the court recognized the difficulty faced by plaintiffs in such actions, which amounts to proving "a negative." It also "emphasize[d] that the question of a plaintiff's innocence is in addition to, not a substitute for, a jury question regarding whether the plaintiff would have been found guilty absent the defendant's negligence" (¶50). On remand, a new trial will be limited to Hicks' factual innocence, which is separable from findings regarding negligence and cause (¶55).

    The opinion also raised several ancillary issues concerning the factual "innocence" element. The cause of action did not accrue, said the court, until Hicks obtained a reversal. The court of appeals also noted that other states require an "exoneration" element as a precondition to bringing such malpractice actions, an issue the court did not have to confront because Hicks had obtained "exoneration" (see n. 11).

    Finally, the opinion addresses several record-intensive, case-specific issues. The court of appeals rejected Nunnery's claims that the trial judge should have changed the verdict or granted him a directed verdict. The record simply did not warrant such rulings. Nunnery also failed to convince the court that the damage award was "perverse" or "excessive."

    Judge Dykman dissented on the ground that Wisconsin tort law, properly understood, requires a "case-by-case" analysis of policy considerations in determining whether a plaintiff, like Hicks, should be required to prove his innocence (see ¶100).

    Criminal Procedure
    Right to Counsel - Forfeiture of Counsel - Required Findings by the Trial Court

    State v. Coleman, 2002 WI App 100 (filed 26 March 2002) (ordered published 24 April 2002)

    In this case the court of appeals further developed the law as it relates to defendants who forfeit their right to counsel by their conduct and the procedures that circuit courts should observe when such events occur. In this particular case the defendant was required to represent himself at sentencing even though he had had the assistance of counsel (actually two different attorneys) from the beginning of the case up to and including the entry of no-contest pleas.

    Some defendants proceed pro se after knowingly and intelligently waiving their right to counsel. That did not happen in this case because the record is clear that the defendant repeatedly indicated that he wanted a third attorney after the circuit court allowed his second counsel to withdraw. Instead, the state argued that the defendant forfeited the right to counsel by virtue of his conduct.

    A defendant may, by his or her conduct, forfeit the right to counsel. The right cannot be manipulated to obstruct the orderly procedure for trial or to disrupt the administration of justice. The triggering event for forfeiture is when the court becomes convinced that the orderly and efficient progression of the case is being frustrated by the defendant's repeated dissatisfaction with his or her successive attorneys. However, said the court, "forfeiture cannot occur simply because the effect of the defendant's conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect" (¶ 18).

    The supreme court has recommended that a court contemplating forfeiture of counsel make sure that the defendant understands the implications of his or her actions. In State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), the court in a footnote recommended that in the future, trial courts follow four steps advanced by the Cummings dissenter for determining when a defendant has forfeited the right to counsel. Those steps are to: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; 2) engage in a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; 3) make a clear ruling when the court deems the right to counsel to have been forfeited; and 4) make factual findings to support the court's ruling.

    The court of appeals also concluded that, when a defendant engages in conduct meriting forfeiture of the right to counsel, the trial court must determine whether the defendant is competent to proceed without an attorney. "The trial court should consider the defendant's education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his or her ability to communicate a possible defense" (¶ 34).

    The court recognized that the preceding requirement places the circuit court in a difficult position because many defendants whose conduct merits forfeiture of counsel will not cooperate in a meaningful colloquy on competence. "Under these circumstances, the court will have to rely on the rest of the record to make a finding. If the record does not establish the defendant's competence, the court cannot require the defendant to proceed without counsel. The important point is that the defendant's conduct does not relieve the court of the obligation to make a finding whether the defendant is competent to proceed without counsel" (¶36).

    Search and Seizure - Warrantless Entry of Dwelling - Exigent Circumstances

    State v. Londo, 2002 WI App 90 (filed 5 March 2002) (ordered published 24 April 2002)

    A police officer testified that in the late afternoon of the day in question, she and her partner were flagged down by a citizen who told them that she had heard the breaking of glass at the rear of a nearby house and that she saw a man standing close to the house's back door. The officers investigated the scene and observed that one of the glass panels in the door was broken and that broken glass was on the ground near the door, which was still locked.

    The officers searched the immediate vicinity of the home but found no one. When they returned after about five minutes, they noticed that a window that previously had been closed was now open by about three feet. The window was seven feet from the ground. The officer testified that after she knocked on the door and got no response, she entered the house through the window "to check the residence - inside the residence to see if there was anybody else inside." Once inside, the officer called out to see if anyone was home and got no response. The officer then searched possible hiding places and during that search found a marijuana-growing operation. The officers never saw anyone either inside or outside of the house.

    The circuit court granted the defendant's motions to suppress. It ruled that the officers had probable cause to believe that there was a burglary at the house but that there were no exigent circumstances that justified their warrantless entry.

    In a decision authored by Judge Fine, the court of appeals reversed. It agreed with the trial court that the officers had probable cause to search the house because of all the indications that someone had unlawfully entered the premises. With regard to the warrantless entry, the court began its analysis by noting that a warrantless search of a home is presumptively unreasonable under the Fourth Amendment but that exigent circumstances can justify immediate warrantless entry and search. An analysis of whether the officers acted reasonably in entering the home without a warrant is measured against the "totality of the circumstances" and the test is an objective one: what a reasonable police officer would reasonably believe under the circumstances.

    On the facts as described above, the court concluded that the possible grave danger to the occupants of the house outweighed the intrusive aspects of the officer's warrantless entry and that, objectively, "a reasonable police officer would have been aware of the danger and the need to immediately go into the house to ensure that no one was in jeopardy" (¶ 10). Put another way, "a reasonable officer would have concluded that at least one person was in the house unlawfully, possibly holding a resident hostage" (¶ 12).

    The appellate court further concluded that the officers did not exceed the permissible scope of their search. There was no evidence in the record that the officers entered the house for any reason other than to look for someone who might have entered the premises illegally. Further, all of the evidence suggests that they looked only in places where someone could hide and that they were not searching for contraband.

    Extradition - Transporting Wisconsin Prisoners from Out-of-state Contract Facilities Back to Wisconsin

    State ex rel. Jones v. Smith, 2002 WI App 94 (filed 27 March 2002) (ordered published 24 April 2002)

    The petitioners are Wisconsin prisoners who were transferred in 1999 to a correctional facility in Texas pursuant to a contract entered into by the Wisconsin Department of Corrections. They were brought back to Wisconsin from Texas in 2000, traveling by van through several states, including Illinois. While traveling through Illinois, they demanded that they be released from custody, arguing that the government was required to use the extradition process before forcibly taking them from Illinois into Wisconsin. Their request was ignored.

    Once back in Wisconsin, the petitioners filed a habeas corpus petition, alleging that they were illegally brought into this state without the benefit of the extradition process and that they are therefore entitled to discharge from their sentences. The circuit court denied the writ and the court of appeals, in a decision authored by Judge Brown, affirmed. The court began its decision by observing that the petitioners' argument, based on a fundamental misunderstanding of extradition law, is entirely without merit. "We publish this decision as precedent so that no further precious judicial resources need be directed at this theory" (¶ 1).

    Extradition is not a right conferred upon a prisoner. Rather, it is a sovereign right of the asylum state and it is the state, not the prisoner, that has the privilege to insist on formal extradition. The fact that the petitioners were transported through Illinois and returned to Wisconsin without use of the extradition process provides no basis for discharge from their Wisconsin sentences. Illinois may have complained and it could have insisted that Wisconsin use the extradition process. However, since the prisoners were not fugitives but were merely passing through Illinois in the continuing custody of Wisconsin agents, Illinois had no connection to these prisoners and no reason to invoke extradition. "There is simply no basis for [the petitioners] to assert a claim in their own right that their custody in Wisconsin is illegal because they were not extradited from Illinois" (¶ 10).

    The court also rejected, as an argument without merit, the assertion of the petitioners that Wisconsin intentionally waived its jurisdiction over them and constructively discharged them from their sentences when it transported them through Illinois and back to Wisconsin without using the extradition process.

    Restitution Orders - Remedy When Restitution-setting Procedures Not Followed by Trial Court

    State v. Krohn, 2002 WI App 96 (filed 5 March 2002) (ordered published 24 April 2002)

    Wis. Stat. section 973.20(13)(c) establishes a variety of procedures the court may use in setting restitution. In this case the circuit court did not follow the statutory procedures. The issue before the court of appeals was the proper remedy when such error occurs.

    In a decision authored by Judge Schudson, the appellate court concluded that the proper remedy is a remand to the circuit court for a proper restitution determination and order. It rejected the defendant's position that the appropriate remedy should be relief from any obligation to pay restitution. Accordingly, the court remanded the case to the circuit court with instructions to vacate the restitution order, determine restitution in a manner consistent with the requirements of the statute cited above, and enter the appropriate restitution order.

    Child Testimony - "Grandmother's Lap" - Newly Discovered Evidence

    State v. Shanks, 2002 WI App 93 (filed 13 March 2002) (ordered published 24 April 2002)

    The defendant was convicted of sexually assaulting a 3-year-old child. Shanks lived with the child's mother at the time of the assault.

    The court of appeals, in an opinion written by Judge Snyder, affirmed the conviction. First, Shanks claimed that error occurred when the trial judge permitted the young victim to testify from her grandmother's lap. The court found no abuse of discretion. Case law and Wis. Stat. section 906.11 invest trial judges with considerable discretion regarding the manner in which testimony is elicited. The judge knew that the child had lived with the grandmother for "quite some time" and saw her mother only infrequently. Indeed, her mother testified for the defense. Moreover, the child was of "small size," and the judge instructed the grandmother not to "coach the child in any way" (¶11).

    Nor did the trial judge abuse his discretion in denying a postconviction motion for a new trial based on newly discovered evidence. The newly discovered evidence consisted of affidavits by two individuals, including the child's mother, that cast doubt on the mother's trial testimony and created the inference that the defendant was not alone with the child during the time in question. The child's mother had testified for the defense at trial. The court of appeals held that the defense failed to show that: 1) the evidence first came to its attention after trial; and 2) the defendant was not negligent in seeking to discover it. During trial, the mother was "quite hazy regarding her whereabouts." In short, the defense "was aware of the confusion surrounding the activities" on the day in question and the possibility that the mother had not left town on that date, leaving the victim alone with the defendant. And since the defendant alleged that he was with the mother and the other man on that night, he failed to explain "why he was unaware, until after trial, of his own whereabouts on October 30, 1999" (¶21). (The court also found that there was sufficient evidence to support the guilty verdict.)

    Trials - Racial "Stereotyping" - Ineffective Assistance

    State v. Chu, 2002 WI App 98 (filed 26 March 2002) (ordered published 24 April 2002)

    Defendant Chu, a 17 year o ld of Korean ancestry, was convicted of arson with intent to defraud an insurer. The court of appeals, in an opinion written by Judge Cane, affirmed.

    Chu contended that his due process rights were violated because he "was subjected to racial stereotyping suggesting that Korean sons are automatons who blindly carry out the orders of their fathers even when the orders involve criminal activity" (¶19). The court held that there was no plain error on this record (Chu did not object to the prosecutor's remarks at trial). Relying on a Seventh Circuit decision, the court did "not view the prosecutor's statements as an attempt to arouse prejudice toward Koreans. Rather, the statements were an attempt to preview and summarize evidence demonstrating that Chu had a motive for committing the arson: his personal belief, based on his upbringing and culture, that he should remain loyal to his family" (¶26).

    Chu also claimed unsuccessfully that his lawyer provided ineffective assistance at trial. The record adequately supported the trial court's determination that trial counsel's decisions not to hire an arson expert or object to certain evidence were part of a reasonable trial strategy.

    Several other issues also were raised, including the state's alleged failure to disclose exculpatory evidence, that are fact-intensive and raise no novel applications of law.

    Juvenile Law

    CHIPS - Timing - Non-neglectful Parent

    State v. Gregory L.S., 2002 WI App 101 (filed 5 March 2002) (ordered published 24 March 2002)

    The court of appeals, in an opinion written by Judge Cane, affirmed an order adjudging five children to be in need of protection or service (CHIPS) under Wis. Stat. section 48.13(10). Their father appealed, raising two issues: "(1) whether children can be adjudicated in need of protection or services when the divorced parents have joint custody, the mother committed acts proscribed by Wis. Stat. § 48.13(10), and the father can provide the necessary care for his children; and (2) even if a CHIPS adjudication is permissible in this situation, whether the adjudication can be made without providing the non-neglectful parent a jury trial or an evidentiary hearing" (¶2).

    The court held that "pursuant to Wis. Stat. § 48.31(2), it is the circuit court's responsibility to determine whether the children were in need of protection or services that the court could order on the date the petition was filed. Here it was undisputed that as of the date the petitions were filed, the children were in need of out-of-home placement and their mother required counseling and mental health and substance abuse assessments. Accordingly, the circuit court did not err when it concluded that summary judgment in the state's favor was appropriate." (¶41).

    This holding, the court explained, recognizes "that children can be adjudicated to be in need of protection or services even when only one parent has neglected the children. ... Where, as here, the children were neglected and seriously endangered by one parent, they may be adjudicated in need of protection or services." (¶42) Put differently, the court rejected the father's contention "that the court should consider conditions as they exist on the date of the fact-finding hearing, as this would allow the court's jurisdiction over the child to change daily, depending on the circumstances in the home on a particular day" (¶4). If the children are no longer in need of such protection, the circuit court may make appropriate orders.

    Municipal Law

    Liquor Licenses - Renewal of "Void" Licenses

    Williams v. City of Lake Geneva, 2002 WI App 95 (filed 13 March 2002) (ordered published 24 April 2002)

    In 1999 the city of Lake Geneva issued a 1999-2000 Class B liquor license to the intervening defendants (the Condoses). The license was void and never should have been issued because the notice of application for the license had not been published as required by Wis. Stat. section 125.04(3)(g). The critical issue in this case was the validity of a renewal of the void license for the 2000-2001 license period.

    In a decision authored by Judge Anderson, the court of appeals concluded that a renewal of an absolute nullity (that is, the void license) is itself an absolute nullity and affords no protection to the licensee. Once it was determined that the 1999-2000 license was void, the Condoses could not apply for a renewal of that void license. The only way for them to obtain a valid license was to file an application for an original alcohol beverage license. "In short, the 2000-2001 license, like the 1999-2000 license, was void by virtue
    of it being a `renewal' of a void license" (¶ 14).


    Pleading Negligence - CBRFs - Code and Statutory Violations - Private Rights

    Farr v. Medicare Part A, 2002 WI App 88 (filed 28 March 2002) (ordered published 24 April 2002)

    Clara Farr, an 85 year old diagnosed with dementia, resided at a community-based residential facility (CBRF) when she "eloped" on a winter day and suffered frostbite. Farr sued the facility for negligence and sought punitive and compensatory damages. The court later granted her permission to file a second amended complaint that did not use the word "negligence" but instead framed the cause of action "in terms of Farr's rights" under Wis. Stat. chapter 50 and Wis. Admin. Code § HFS 83. When the facility moved for summary judgment on the ground that the second complaint alleged no "private cause of action," Farr requested that she be permitted to "revert back" to the first complaint. The trial court granted the facility's motion for summary judgment.

    The court of appeals, in an opinion written by Judge Deininger, reversed. The court held that the second complaint, "liberally construed, states a claim for negligence" (¶10). More precisely, the complaint alleged that the facility undertook a duty to care for Farr, that it failed to do so in various ways, and as a result, Farr suffered injuries.

    The court next addressed "whether Farr may on remand pursue a claim for relief grounded solely on alleged statutory or code violations, irrespective of any negligence on the part of [the facility] or its employees" (¶13). The record revealed that the facility had failed to comply with various provisions of Wis. Admin. Code § HFS 83 both in general and in connection with Farr's elopement. Farr claimed that she had a private right of action under the code and Wis. Stat. chapter 50. Section 50.10, however, only applies to nursing homes, not CBRFs, and its private remedies are limited to an action for mandamus or injunctive relief. In sum, the court found no clear legislative intent to permit CBRF residents to sue for compensatory and punitive damages under chapter 50, "based solely on alleged violations of the standards for CBRFs set out in the statutes or administrative code" (¶16).

    Worker's Compensation

    Civil Procedure - Summons and Complaint - Parties

    Selaiden v. Columbia Hospital, 2002 WI App 99 (filed 5 March 2002) (ordered published 24 April 2002)

    In this worker's compensation case, the Labor and Industry Review Commission (LIRC) issued a ruling adverse to the worker. She then appealed to the circuit court. Although the summons and complaint named Sentry Insurance in the caption, the body of the complaint did not mention Sentry. About 50 days after the entry of LIRC's order, the worker moved to amend the complaint. The judge granted Sentry's motion to dismiss on the ground that the version of the complaint filed within 30 days of LIRC's order did not mention Sentry in the body of the complaint and for this reason the court lacked competency to decide the merits of the appeal.

    The court of appeals, in an opinion written by Judge Fine, reversed. The prime issue was whether the worker "complied with Wis. Stat. § 102.23(1) by naming Sentry in the caption to a summons and complaint that were timely filed and served, even though Sentry was not mentioned in the complaint's body" (¶6). The court held that "unlike a situation where an adverse party has only anecdotal knowledge of the appeal from the Commission's determination, Sentry not only had formal notice of the pendency of the appeal from the Commission's determination in its favor, but it also knew the grounds upon which the appeal was based because those grounds were set out in the complaint" (¶9) (citations omitted). (Sentry had been timely served with the summons and complaint.) The only information "missing" from the original complaint "was the allegation about Sentry's corporate status and address."

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