Vol. 71, No.
5, May 1998
Court of Appeals Digest
By Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
| Civil Procedure/Evidence | Commercial
Law | Contracts | Courts |
| Criminal Procedure | Torts | Worker's Compensation |
Civil
Procedure/Evidence
Jurors as Witnesses Learned Treatises Offers to Settle
Broadhead v. State Farm Mut.
Ins. Co., No. 97-0904 (filed 26 Feb. 1998) (ordered published
25 March 1998)
Plaintiff was injured in an automobile accident. The parties stipulated
to liability and tried the damages issue. After the trial commenced, one
juror belatedly remembered having seen the plaintiff do some work at his
house. The judge excused the juror and rejected a defense request to call
the former juror as a witness to the plaintiff's ability to do physical
labor. The jury awarded the plaintiff about $40,000 in damages. On appeal
the defendant raised several evidentiary issues. The court of appeals, in
an opinion written by Judge Deininger, affirmed.
First, the court upheld the trial judge's decision to exclude testimony
by the former juror. The former juror had heard nearly an entire day of
testimony. The marginal probative value of his proffered testimony, combined
with the difficulties of impeaching a former member of the jury panel, justified
the judge's decision to exclude the testimony under section 904.03. The
court of appeals stated that it found "it hard to envision any circumstance
under which it would be appropriate to allow a person who has been discharged
from a jury in midtrial to testify before the same jury." The defense
also argued that it should have been permitted to call the former juror's
wife or father to testify to the plaintiff's physical condition. The court
ruled, however, that the defense had failed to make an adequate offer of
proof that described what, if any, relevant testimony these witnesses could
provide.
Second, the court of appeals addressed the proper foundation
for learned treatises under section 908.03(18) of the Wisconsin Statutes.
During a videotaped deposition, a doctor read from several articles that
appeared in recognized journals. The trial judge erred by permitting the
jury to hear this part of the deposition. The plain language of section
908.03(18) requires a showing that the writer of the article is a
recognized expert in the area; the reputation of the journal is not dispositive.
The error was, however, harmless.
Finally, the court rejected the plaintiff's contention that she was entitled
to double costs. The defense had offered to settle for "$42,000 with
costs." At trial the plaintiff obtained a judgment for $42,141, which
consisted of $38,116 in damages plus taxable costs of $3,536 and post-verdict
interest of $488. The case law construing section 807.01(3) of the Wisconsin
Statutes mandates that the offer and judgment must be compared exclusive
of costs.
Commercial
Law
Statute of Frauds "Merchant"
Harvest Store Cooperative v.
Anderson, No. 97-2762-FT (filed 24 Feb. 1998) (ordered published
25 March 1998)
Anderson was a forklift operator who did not own a farm but who "has
cows and grows corn." During a phone conversation with Harvest Store,
Anderson discussed the sale of 5,000 bushels of corn. Harvest Store sent
an "unsigned confirmation of contract in the mail" but Anderson
sold the corn to someone else at a better price. Harvest Store sued him
for the $5,000 it allegedly cost them to replace Anderson's corn with that
purchased at a higher price. Anderson defended on statute of frauds grounds,
but the court ruled this defense was unavailable because the oral contract
was "between merchants." Wis. Stat. § 402.201(1). In the
judge's words, "a farmer who sells grain is a merchant."
Judge Cane, writing for the court of appeals, reversed. The issue has
generated a great deal of discussion under the U.C.C. and conflicting case
law. The term "merchant" does not "attach to the casual
or inexperienced seller." The determination must be made on a case-by-case
basis. The record established Anderson's limited experience selling crops.
He had never seen a sale confirmation contract before his encounter with
Harvest Store. In sum, Anderson's "three prior experiences, involving
relatively small quantities of corn that he drove to the scale and sold
without any written contract, put him in the category of the casual and
inexperienced seller."
Contracts
Voidable Contracts Election of Rights
Gaugert v. Duve, No.
97-0355 (filed 25 Feb. 1998) (ordered published 25 March 1998)
In 1988 the Gaugerts purchased some land from Duve. At that time Duve
signed a contract purportedly giving the Gaugerts a right to "first
refusal for extra land." In 1995 Duve discussed selling the remaining
land to another party. The Gaugerts demanded the right to exercise their
option. Some months later Duve mailed the Gaugerts a written offer allowing
them to exercise their option. After the Gaugerts exercised their option,
Duve claimed that the original 1988 "first refusal" option was
invalid and rescinded the proffered option. Following a bench trial, the
judge found that the Gaugerts had not defrauded Duve in 1988 but that the
1988 option was void for lack of consideration and because no meeting of
the minds had occurred. The judge also ruled that no "election of rights"
had occurred in part because Duve did not actually know that the contract
was unenforceable when he gave the Gaugerts the opportunity to exercise
the option.
The court of appeals, in an opinion written by Judge Brown, reversed.
Election of rights is not limited to cases of fraud. "Election"
is "a choice, shown by an overt act, between two inconsistent rights,
either of which may be asserted at the will of the chooser alone."
Nor should election be confused with waiver, which requires a "voluntary
and intentional relinquishment of a known right." An election "is
effective even though there is no intent to relinquish the other, inconsistent
right." Under prevailing authority, "it would be inequitable
to regard an election of rights as final unless the party having the right
of election was aware, or should have been aware, of all material facts
making one option more desirable than the other."
The trial judge appropriately found "that Duve was unaware of his
option to avoid the contract when he sent the notice." The court of
appeals found, however, that Duve should have been aware of these two options,
especially since he had benefit of legal counsel throughout the relevant
time period. "Having elected to execute the contract, Duve can no longer
contend that the contract was void for lack of consideration and mutuality."
Courts
Municipal Courts Power of Judge to Order Defendant
to Appear Personally Default Judgment for Nonappearance
City of Sun Prairie v. Davis,
No. 97-1651 (filed 26 Feb. 1998) (ordered published 25 March 1998)
The City of Sun Prairie charged the defendant in a civil forfeiture action
with violating its operating a motor vehicle while intoxicated ordinance.
The citation indicated that the appearance of the defendant at an initial
court appearance was mandatory, but he chose not to appear. Instead, the
firm of lawyers representing him sent a letter to the court on the defendant's
behalf, and the court entered not guilty pleas on both charges.
Thereafter the court issued an order directing the defendant to be present
for trial. The defendant's attorney wrote back objecting to the order requiring
the defendant to be present and asserting that the court had no authority
to make such an order. Counsel stated that the defendant would not comply
with the order as he had chosen to have counsel be present instead. The
court then responded with a further order indicating that, if the defendant
did not appear personally at his trial, the court would impose one or more
sanctions that could include entry of judgment against him.
When the defendant did not appear for trial, the court found that he
had intentionally and egregiously violated orders of the court which it
had issued to efficiently manage the case, and it granted judgment against
the defendant and in favor of the city, as a sanction for disobedience of
the court's orders.
The defendant appealed to the circuit court, which affirmed the order
of the municipal court. The court of appeals, in a majority decision authored
by Judge Roggensack, affirmed. The majority concluded that a municipal judge
has inherent authority to order a civil litigant to be present at trial
and that nothing in the statutes or in the Wisconsin Constitution precludes
sanctioning the violation of such a court order by entering judgment against
the violator. The court cautioned that a sanction that terminates litigation
on the merits should not be imposed unless the violating party's conduct
is egregious and without a clear and justifiable excuse. The appellate court
was satisfied that the record in this case showed a reasonable basis for
the municipal court's determination that the defendant's conduct was egregious
and was not supported by any clear and justifiable excuse. The defendant
was not sanctioned because he chose to have counsel present at his trial
but rather because he flaunted two court orders directing him to personally
appear at the trial.
Judge Dykman filed a dissenting opinion.
Judge's Personal Notes Access by Litigants
State v. Panknin, No.
97-1498-CR (filed 25 Feb. 1998) (ordered published 25 March 1998)
In this appeal the defendant continued his pursuit for access to notes
for his sentencing prepared by the trial court and sealed in the court record.
His argument was that the trial court should be compelled to make the notes
available so that he can determine if the court relied upon inaccurate information
or other improper factors in imposing his sentence. In a decision authored
by Judge Anderson, the court of appeals affirmed the order of the circuit
court denying the defendant access to the judge's personal notes.
In sum, the court concluded that the notes of judges, whether cryptic
or formal, do not represent their final ruling or decision; that is only
represented in oral decisions rendered from the bench, memorandum decisions,
written orders or judgments, or opinions from the court of appeals and the
supreme court. "In many cases it takes a great deal of work to reach
a final ruling or decision: the back roads traveled, the dead ends encountered
should not be accessible to a litigant." It is only the final reasoning
process that judges are required to place on the record that is representative
of the performance of judicial duties. Accordingly, access to a judge's
notes by the litigants would significantly disrupt the judicial decisional
process.
In footnote the court commented that a judge's personal notes should
not be placed in the clerk of court's file. The better practice is to maintain
notes in chambers where their confidential nature can be ensured.
Criminal
Procedure
Prosecuting Attorneys Conflict of Interest
State v. Stehle, No.
97-1160-CR (filed 4 Feb. 1998) (ordered published 25 March 1998)
The defendant was charged with several counts of burglary. He maintained
that the assistant district attorney's prosecution of the case in which
one count involved the burglary of the home of the ADA's ex-wife and their
adult daughter constituted a conflict of interest requiring the assistant
district attorney to withdraw from the case.
In a decision authored by Judge Anderson, the court of appeals concluded
that, because the assistant district attorney immediately revealed the potential
conflict of interest to both the defendant and his attorneys and did so
before the defendant entered his no contest plea to the charges, once the
defendant pled no contest he waived review of any potential conflict of
interest claim. A no contest plea, voluntarily and understandingly made,
constitutes a waiver of all nonjurisdictional defects and defenses. A claim
that a prosecutor should be disqualified for a conflict of interest does
not implicate a trial court's jurisdiction and is waived by a plea of no
contest.
Moreover, courts generally require a prima facie showing of prejudice
before invalidating prior proceedings based on a conflict of interest. In
this case the defendant made no showing that the purported conflict in any
way affected his criminal prosecution.
Due Process Outrageous Governmental Conduct
State v. Givens, No.
97-1248-CR (filed 25 Feb. 1998) (ordered published 25 March 1998)
The defendant was charged with delivery of cocaine and heroin. The charges
stemmed from controlled drug buys arranged by the Wisconsin Division of
Narcotics Enforcement (DNE) with an informant, whose name was Franklin.
The defendant pleaded not guilty and the matter eventually was tried to
a jury.
At trial, Franklin testified to the drug buys she made from the defendant.
She explained that she herself was a heroin addict for about 20 years but
was "clean" at the time of trial. Franklin admitted that she used
heroin while she was working undercover for the government in violation
of the written agreement she had entered into with the government agents.
However, she stated at trial that she never informed the agents that she
was using heroin. In fact, one of the agents testified that he routinely
asked Franklin if she was using heroin and she answered no. Among the issues
on appeal was the defendant's claim that the state's use of Franklin as
a witness constituted outrageous conduct and violated his due process rights.
The state countered that the defendant waived any right to raise this defense
on appeal because he failed to raise it in the trial court.
The court of appeals, in a decision authored by Judge Anderson, affirmed.
The court agreed to consider the outrageous conduct issue because the state
did not controvert the fact that Franklin blatantly violated her agreement
with the government or the fact that once the government became aware of
her conduct at the preliminary hearing it continued to use her at the trial.
The concept of outrageous governmental conduct originates from the Due
Process Clause of the Fifth Amendment. This defense requires an assertion
by the defendant that the state violated a specific constitutional right
and that the government's conduct was so enmeshed in a criminal activity
that prosecution of the defendant would be repugnant to the American criminal
justice system.
In this case the government was not enmeshed in or aware of Franklin's
heroin use. At trial, Franklin admitted that she was using heroin and cocaine
while working with the government in violation of her agreement with government
agents. However, she also testified that she never informed the agents that
she was using heroin nor did she ask them for money to buy controlled substances.
The court concluded that the government's use of Franklin as a witness,
even though she used heroin in violation of her agreement with the government
while making purchases, did not alone amount to a violation of fundamental
fairness that shocks the universal sense of justice.
Further, in order for a defendant to successfully assert a claim of outrageous
governmental conduct, he or she must assert that a specific constitutional
right has been violated. In this case the defendant did not identify a specific
constitutional right, such as a Fifth Amendment right against self-incrimination
or a Sixth Amendment right to counsel. The court concluded that there was
no arguable merit to a claim that the defendant's due process rights were
violated by outrageous governmental conduct.
Torts
Interference with Contracts
Burdensome and Expensive Performance
Mangum Radio Inc. v. Brieske,
No. 97-2754 (filed 19 Feb. 1998) (ordered published 25 March 1998)
When Mangum Radio attempted to purchase two radio stations in the Tomah
area, Brieske wrote a letter to the FCC complaining that Mangum would not
provide adequate sports and local news coverage for the area. Brieske also
allegedly was interested in purchasing the stations. The FCC ultimately
approved Mangum's purchase but it brought suit against Brieske for intentionally
interfering with its business relations with the sellers. The trial
judge dismissed the action.
The court of appeals, in an opinion written by Judge Eich, reversed.
The issue in this case was "whether a person whose alleged interference
with a contractual relationship results not in abandonment or nonperformance
of the contract but only in making the plaintiff's performance of the contract
more expensive or onerous may also be held liable for his or her actions."
Agreeing with Mangum that such claims are cognizable, the court rested its
holding on case law and the Restatement (Second) of Torts section 766A.
The pleadings, liberally construed, adequately alleged that Mangum's operation
of the stations might have become more expensive because of Brieske's objections
(for example, an offer to broadcast high school basketball games). Issues
of fact for the trial court remained on whether Brieske's letter to the
FCC was a "legally protected right" or constituted intentional
interference with Mangum's economic relationship.
Worker's
Compensation
Exclusivity Waiver
Brantner v. ABC Manufacturing
Co., No. 97-1523 (filed 24 Feb. 1998) (ordered published 25 March
1998)
The plaintiff severely injured her hand at work when it became entangled
in a packaging machine. Initially she sued the machine's manufacturer
but later sought to include her employer and coemployees after
the plaintiff learned that fellow workers may have removed guarding from
the machine. The trial judge granted summary judgment dismissing the employer,
the coemployees, and the employer's general liability insurer.
The court of appeals, in an opinion written by Judge Cane, affirmed.
The sole issue concerned whether the employer had waived the worker's compensation
exclusivity provision. Examining the pertinent cases, the court held that
it had not. Without question the plaintiff's injury fell under the worker's
compensation act and therefore its exclusivity protection. The employer
had not waived exclusivity protection by terms of its insurance coverage.
The insurance policy endorsement in question "was intended to broaden
the definition of an insured to include an employee in situations where
the worker's compensation law should not apply." The policy continued
to exclude coverage for injuries covered by the worker's compensation law.
The court's reasoning applied not only to the claims against the employer,
but those against the coemployees as well.
This column summarizes all decisions 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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