Civil Procedure

Joinder – Third-party Complaints

Nelson v. Loessin, 2020 WI App 72 (filed 28 Oct. 2020) (ordered published 19 Nov. 2020)

HOLDING: The circuit court erred by not dismissing a third-party complaint that joined, in a case involving a married couple, a vehicle’s driver, and the driver’s insurance company, four other individuals (two married couples) who were injured in the same vehicle accident.

SUMMARY: A vehicle driven by Loessin, who was allegedly drunk, collided with the rear of a van occupied by six individuals (three married couples): the Nelsons, the Rosenthals, and the Eastons. All six were injured. The Nelsons sued Loessin and his insurer, Allstate Property and Casualty Insurance Co. (Allstate), seeking both compensatory and punitive damages. The other four individuals were still in active treatment; apparently, the same lawyer represented all six injured individuals (see ¶ 3).

Allstate filed a third-party complaint that named the Rosenthals and the Eastons as “third-party defendants” because they too may have suffered injuries (see id.). The circuit court rejected a motion, brought by the Rosenthals and the Eastons, to dismiss the third-party complaint.

The court of appeals reversed in an opinion authored by Judge Gundrum. Simply put, the rules of civil procedure did not permit the third-party complaint over the objection of the Rosenthals and the Eastons. The court examined Wis. Stat. section 803.03, which applies to “necessary parties”; Wis. Stat. section 803.04, governing “permissive parties”; and the interpleader rule, Wis. Stat. section 803.07. The interpleader rule did not apply because under Wis. Stat. section 803.07 the Rosenthals and the Eastons had no claim against the Nelsons, the plaintiffs who were with them in the van (see ¶ 9). Under the plain language of Wis. Stat. section 803.04, there was no proper basis for permissive joinder (the Rosenthals and the Eastons were not seeking to “join in” the Nelsons’ suit nor were they joined in that suit as “defendants” – they were “third-party defendants”) (¶ 30).

Third-party practice is governed by Wis. Stat. section 803.05. Under that rule, Allstate’s third-party complaint could only stand if the Rosenthals and the Eastons were “necessary parties to the Nelson’s suit under § 803.03” (¶ 10). Wisconsin Statutes section 803.03 did not apply because the other two couples were not “already parties” to the lawsuit and “there is simply no reason to believe that complete relief cannot be accorded” among the Nelsons, Allstate, and Loessin (¶ 12).

The court rejected Allstate’s multiple attempts to justify the third-party complaint under various provisions in Wis. Stat. section 803.03. The Rosenthals and the Eastons were not making any claims related to the Nelsons’ suit (see ¶ 18). Because the Rosenthals and the Eastons were still being treated, their interests were more “speculative and tangential” than those of the Nelsons (¶ 21). Allstate seemingly assumed that the six people in the van had a “collective claim” but cited nothing to suggest that “separate, individual lawsuits arising out of the same accident are not permissible” (¶ 25).

Criminal Procedure

Exclusionary Rule – Impeachment Exception

State v. Garcia, 2020 WI App 71 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)

HOLDING: The impeachment exception to the exclusionary rule did not permit the prosecution to use, in its case-in-chief, a statement by the defendant that the circuit court suppressed before trial.

SUMMARY: Garcia was convicted of reckless homicide arising out of his abuse of a young child. Before trial, the court suppressed the statement Garcia made to police officers after he was arrested, on grounds that he did not properly waive his Miranda rights because of his inability to speak English. The court did find, however, that the statement was voluntary and hence could be used for impeachment purposes.

During the state’s case-in-chief, the defense cross-examined a police officer about his failure to investigate other sources of the victim’s injuries unrelated to the defendant’s conduct. Based on this line of cross-examination, the trial judge permitted the prosecutor to introduce Garcia’s statement in which he described his physical abuse of the child (see ¶ 2).

The court of appeals reversed the conviction in an opinion authored by Judge Reilly. It crystallized the issue as follows: “may the State invoke the impeachment exception to the exclusionary rule during the State’s case-in-chief to ‘rehabilitate’ one of its witnesses?” (¶ 1). The answer: an emphatic no. The long-recognized impeachment exception to Miranda is limited to impeachment of the defendant himself or herself – if the defendant testifies during the defense’s case-in-chief. Case law has rejected a broader reading that would allow the government to use unlawfully obtained (albeit voluntary) statements to buttress other weaknesses in its case (see ¶ 15).

Victims’ Rights – Marsy’s Law – Standing to Challenge Shiffra-Green Motion

T.A.J. v. Johnson, 2020 WI App 73 (filed 29 Oct. 2020) (ordered published 19 Nov. 2020)

HOLDING: The victim in this case had standing to object to the defendant’s Shiffra-Green motion.

SUMMARY: Defendant Johnson was charged with multiple crimes stemming from his alleged sexual assault of the victim. Johnson filed a motion for the circuit court to conduct an in camera inspection of the victim’s health care records to determine whether those records should be shared with the parties. This is known as a Shiffra-Green motion.

“State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, established a judicial process by which a criminal defendant may trigger an in camera review by the circuit court of an alleged victim’s health care records in order for the court to determine whether any records should be released to the parties for potential use at trial” (¶ 3).

The victim, with the assistance of counsel, filed a pleading in the circuit court opposing the defendant’s motion. The circuit court concluded that the victim lacked standing to object to the motion; it relied on Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), which held that an alleged victim does not have standing to object to, or to make arguments to the court regarding, a defendant’s Shiffra motion (see ¶ 6).

The victim later petitioned the court of appeals for leave to appeal the circuit court’s nonfinal order. The court of appeals granted the petition. After briefing in the court of appeals was completed, Wisconsin voters in the April 2020 election voted in favor of a victims’ rights amendment to the Wisconsin Constitution (commonly known as Marsy’s Law).

In a decision authored by Judge Fitzpatrick, the court of appeals reversed the circuit court. First, it concluded that “the pertinent provisions of the 2020 constitutional amendment grant a crime victim, such as [the victim here], standing to oppose and to make arguments supporting his or her opposition to a defendant’s Shiffra/Green motion for an in camera review, and the amendment to this extent abrogates Jessica J.L.” (¶ 24).

The amendment gives a victim the right to be heard in any proceeding “during which a right of the victim is implicated.” See Wis. Const. art. I, § 9m(2)(i). In this case it was undisputed that the victim has rights to confidentiality and privilege regarding the victim’s health care records. See Wis. Stat. §§ 146.82(1), 905.04(2) (see ¶ 25).

The court of appeals also concluded that “the pertinent provisions of the 2020 constitutional amendment apply retrospectively to [the victim’s] assertion of standing to oppose Johnson’s pending Shiffra-Green motion that was filed before the effective date of the amendment” (¶ 24).

Employment Law

Discrimination – WFEA – LIRC’s Findings – “Credibility” Findings

Robles v. Thomas Hribar Truck & Equip. Inc., 2020 WI App 74 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)

HOLDING: The Labor and Industry Review Commission (LIRC) properly rejected the findings of an administrative law judge (ALJ) that an employee was discharged on the basis of race and national origin.

SUMMARY: Robles was discharged from his employment at a trucking company ostensibly because of “unprofessional interaction” with other employees. Robles filed a complaint under the Wisconsin Fair Employment Act with the Department of Workforce Development, alleging his firing resulted from racial discrimination. After a hearing, an ALJ ruled that Robles was fired because of his race and national origin.

The trucking company appealed to LIRC, which reversed the ALJ’s decision and found instead that Robles was fired for having been disrespectful and for having threatened another employee. The circuit court reversed LIRC’s decision on the ground that LIRC had no basis for overturning the ALJ’s credibility determination.

In an opinion authored by Judge Reilly, the court of appeals reversed the circuit court and thereby reinstated the LIRC findings. All of LIRC’s findings of fact were supported by “substantial evidence in the record” (¶ 11). Moreover, LIRC had properly conducted a “credibility conference” with the ALJ as required by case law (¶ 14). The facts were vigorously contested. LIRC reasonably found that Robles’ assertions of racial discrimination were not credible and that the employer’s witnesses carried greater weight on the facts (see ¶ 16).

Real Property

Restrictive Covenants – Requirement of Clear, Unambiguous, and Peremptory Terms – “Garage”

Buehrens v. Schave, 2020 WI App 75 (filed 7 Oct. 2020) (ordered published 19 Nov. 2020)

HOLDING: The term “garage” in a subdivision’s restrictive covenant does not unambiguously preclude the defendants’ garage based on its size and structure.

SUMMARY: The issue in this case was whether a large structure built by the Schaves on their property in a residential subdivision qualifies as a “garage” under the subdivision’s restrictive covenant. The covenant states, “In addition to the residence, the only other building to be allowed on said premises shall be a garage” (¶ 9). The Schaves’ building, including an electric door, is 36 feet by 80 feet and 16 feet high. Neighbors filed this action seeking enforcement of the restrictive covenant and an order requiring removal of the building, which they contended is a pole barn, not a garage. They moved for summary judgment.

The Schaves also moved for summary judgment; their affidavits stated that they planned to use the building as a garage, specifying the vehicles and trailers they planned to store in it. The circuit court granted the Schaves’ motion. In an opinion authored by Chief Judge Neubauer, the court of appeals affirmed.

The term “garage” is not defined in the restrictive covenant. Thus, looking to common dictionary definitions of the term, the court determined that the common and ordinary meaning of the term “garage” is not limited to certain size or material. The only requirement is that the building be used to store vehicles (see ¶ 10). The restrictive covenant is ambiguous as to any intent to limit the size and structure of the building (see ¶ 19).

In sum, the appellate court concluded that “[t]he term ‘garage’ in the subdivision’s restrictive covenant does not unambiguously preclude the Schaves’ garage based on its size and structure. Following well-established Wisconsin law, we must favor the free and unencumbered use of property when purported restrictions in covenants are not in clear, unambiguous, and peremptory terms. We affirm the court’s order dismissing this action” (¶ 21).

Cite to 94. Wis. Law. 47-48 (January 2021).