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Vol. 73, No. 6, June 2000 |
Court of Appeals Digest
by Prof. Daniel D. Blinka
& Prof. Thomas J. Hammer
Note: Each case summarized in the Court of Appeals
Digest includes its new public domain citation.
| Attorneys | Attorney
Fees | Civil Procedure |
| Criminal Law | Employment
Law | Family Law |
| Insurance | Medical
Assistance |
| Prisoner Litigation | Torts |
Attorneys
Pro Hac Vice Admissions - Revocation - Mistrials
- Sanctions
Filppula-McArthur
v. Halloin, 2000 WI App 79 (filed 7 March 2000) (ordered
published 26 April 2000)
Attorney Ball was admitted pro hac vice and represented
the plaintiff in a medical malpractice case. The trial judge
granted the defense motion for a mistrial based on Ball's
conduct during the jury trial. The judge later revoked Ball's
pro hac vice admission and assessed various sanctions
against him.
The court of appeals, in an opinion written by Judge Cane,
affirmed. First, the court held that both the decision to grant
and the decision to revoke pro hac vice admissions are
within the discretion of the trial court. Second, the record
revealed that the trial judge had appropriately exercised that
discretion. Ball's "unwillingness to abide by the rules"
of the court and "blatant failures" to follow the court's
orders more than justified the revocation. Ball's indiscretions
and breaches are catalogued in the opinion. Third, Ball's
conduct also justified the imposition of costs. The case law
supports the trial judge's authority to impose sanctions
against an attorney whose misconduct necessitates a mistrial.
Attorney Fees
Insurance - Coverage Disputes - American Rule
Riccobono v. Seven
Star Inc., 2000 WI App 74 (filed 21 March 2000) (ordered
published 26 April 2000)
A restaurant sued its commercial landlord for breach of the
lease and assorted other claims. Capitol Indemnity Corp. (Capital)
had issued a commercial general liability policy to the restaurant
while Society Insurance (Society) insured the commercial landlord.
As the time, costs, and counterclaims piled up, Society and Capitol
disagreed over who had the primary duty to defend or indemnify
the commercial landlord. The trial court ruled that both insurers
covered the landlord but that Capitol provided the primary coverage
and Society was the excess carrier. Later Society sought reimbursement
for all of its costs and attorney fees from Capitol, but the
trial judge ruled that Society was entitled to reimbursement
for only those costs and fees expended after Society had tendered
its defense to Capitol.
The court of appeals, in an opinion written by Judge Curley,
affirmed in part and reversed in part. First, the court upheld
the determination that Capitol was the primary insurer. Since
this determination turned on the particular facts and the policy
language, further elaboration is not necessary. As to the second
issue, however, the court held that Society was not entitled
to reimbursement of its costs and attorney fees. Specifically,
Elliott v. Donahue, 169 Wis. 2d 310 (1992), "does
not encompass the payment of attorney fees and costs from one
insurer to another." The case law supported a "narrow
reading" of Elliott. Moreover, disputes between insurance
companies do not present the same economic imbalances that concerned
the court in Elliott since both sides "can easily
absorb the costs of litigation." The court of appeals also
rejected Society's arguments predicated upon subrogation
rights (pointing to an "other insurance" clause) and
the doctrine of equitable indemnification.
Civil Procedure
Small Claims Actions - Damage Limitation - Attorney's
Fees in Unfair Trade Practice Cases
Reusch v. Roob,
2000 WI App 76 (filed 14 March 2000) (ordered published 26 April
2000)
Among the issues in this small claims case was whether the
circuit court properly awarded costs and attorney fees when doing
so drove the total judgment to an amount in excess of the $5,000
small claims limitation. The award was made in connection with
a finding that the defendant had committed an unfair trade practice
contrary to Wis. Stat. section
100.20.
The circuit court awarded a money judgment of $4,910 plus
costs and reasonable attorney fees of $13,474. The defendant
argued that the combination of these two awards, which exceeds
the $5,000 jurisdictional limit for small claims under Wis. Stat.
section
799.01, rendered the trial court without competency to handle
this matter.
In a decision authored by Judge Wedemeyer, the court of appeals
concluded that statutorily authorized attorney fees are not to
be considered part of the pecuniary loss/damage award as to which
there is a $5,000 limitation in small claims actions. In small
claims cases, an award of attorney fees is limited to the amount
recoverable under Wis. Stat. section
814.04(1) and (6) "except if the amount of attorney
fees is otherwise specified by statute." In this case the
attorney fees were ordered under section
100.20(5). Because this statute authorizes an award of attorney
fees and because this portion of the damage award is separate
and distinct from the pecuniary loss inasmuch as its intent is
to compensate the attorney rather than the plaintiffs, the award
of fees did not violate the $5,000 small claims court limitation.
Criminal Law
Habitual Criminality - Computing Five-year Period for
Counting Prior Convictions - Time Spent in Jail as a Condition
of Probation
State v. Crider,
2000 WI App 84 (filed 1 March 2000) (ordered published 26 April
2000)
The Wisconsin habitual criminality statute permits an enhanced
sentence if the defendant was convicted of a felony or three
misdemeanors during the five-year period immediately preceding
the commission of the crime for which he or she is presently
being sentenced. See Wis. Stat. §
939.62. In computing the five-year period, time that the
actor spent in "actual confinement serving a criminal sentence"
is excluded.
The issue in this case was whether jail time that the defendant
served as a condition of probation qualifies as "actual
confinement serving a criminal sentence," thereby extending
the five-year period for determining habitual criminality. In
a decision authored by Judge Anderson, the court of appeals answered
in the affirmative. While offenders are in jail as a condition
of probation, they are confined and their ability to reform and
abide by the criminal law is not being tested. Accordingly, time
spent in jail as a condition of probation is excluded in the
calculation of the five-year statutory time period for determining
habitual criminality.
Search and Seizure - No-knock Entries - Suppression
of Evidence as Remedy for Knock and Announce Violations
State v. Eason,
2000 WI App 73 (filed 23 March 2000) (ordered published 26 April
2000)
The state appealed from an order suppressing evidence seized
by police while executing a no-knock search warrant at an apartment
occupied by the defendant and others. The circuit court suppressed
the evidence on grounds that the search warrant affidavit failed
to justify a no-knock search. On appeal the state argued that
the affidavit was sufficient and, even if it were not, the suppression
order should be reversed because 1) there was no causal relationship
between the no-knock entry and the discovery of seized evidence
or, alternatively, 2) the evidence should be admissible under
a "good faith" exception to the exclusionary rule.
In a decision authored by Judge Eich, the court of appeals affirmed.
The court agreed that the affidavit did not assert facts giving
rise to a reasonable suspicion that an announced entry into the
apartment to execute the warrant would have placed the officers
in danger. The court also reaffirmed the position it had taken
in State v. Stevens,
213 Wis. 2d 324, 570 N.W.2d 593 (Ct. App. 1997), that suppression
of evidence is the appropriate remedy for a violation of the
knock and announce rule. Finally, the court declined to apply
a "good faith" exception to the exclusionary rule to
admit the evidence seized during execution of the warrant, concluding
that if the exclusionary rule pronounced by the Wisconsin Supreme
Court in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923),
is to be overruled, that is a function for the supreme court.
Guilty Pleas - Withdrawals - Deportation Risks
- Harmless Error
State v. Garcia,
2000 WI App 81 (filed 16 Feb. 2000) (ordered published 26 April
2000)
The trial court denied the defendant's motion to withdraw
his guilty plea. The court of appeals, in an opinion written
by Judge Nettesheim, ruled that the judge had violated the defendant's
rights in taking the guilty plea but that the error was harmless,
thereby affirming the trial court.
The trial court erred by failing to expressly follow section
971.08(1)(c) of the Wisconsin Statutes when advising the
defendant about the risk of deportation. Despite the error, the
defendant was not entitled to withdraw his plea as a matter of
right because the record nevertheless established that he was,
in fact, aware of the consequences for deportation. The court
concluded with "dicta" intended as "important"
guidance for future cases: "The statute not only commands
what the court must personally say to the defendant, but the
language is bracketed by quotation marks, an unusual and significant
legislative signal that the statute should be followed to the
letter." Harmless error is not always a guaranteed "safety
net."
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