Vol. 71, No. 2, February
1998
Court of Appeals Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
| Arbitration | Attorneys |
Attorney Fees | Civil Procedure |
| Contracts | Criminal Law
| Criminal Procedure |
| Family Law | Insurance
| Motor Vehicle Law |
| Torts |
Arbitration
Costs - Pre-verdict Interest
Finkenbinder v. State Farm
Mut. Auto Ins. Co., No. 97-0357 (filed 12 Nov. 1997) (ordered published
17 Dec. 1997)
The plaintiff arbitrated her claim against her underinsurance carrier.
Following the arbitrator's award of $131,000, she moved the trial court
to award costs, pre-verdict interest on her medical expenses, and post-award
interest on all damages. The trial judge denied the motions and she appealed.
The court of appeals, in an opinion written by Judge Snyder, affirmed.
First, the court held that section 814.10 of the Wisconsin Statutes does
not contemplate an award of costs in arbitration proceedings; rather, the
statute envisions a "prevailing party" in a "litigated trial
court proceeding." Second, the plaintiff waived any claim for pre-verdict
interest on the stipulated medical expenses by not raising it before the
arbitrator. Finally, her claim for "pre-verdict interest on all tort
damages, liquidated or unliquidated," ran squarely against binding
precedent that only the supreme court could overturn.
Attorneys
Legal Malpractice - Causation
Seltrecht v. Bremer, Grischke
& Bremer S.C., No. 96-2065 (filed 7 Oct. 1997) (ordered published
20 Nov. 1997)
The court of appeals, in an opinion written by Judge Fine, framed the
issue in this case as follows: "When a client is represented sequentially
by two lawyers, both of whom were arguably negligent with respect to the
same matter, can the first lawyer's alleged negligence be a cause of the
client's damages if the client would not have sustained any damage if the
second lawyer could have prevented the harm but did not?" The court
held that the answer is "no."
The case is an "imbricated medical/legal malpractice case"
involving a deformed child born in 1969. Consulted in 1987, the first attorney
allegedly advised the plaintiffs that the statute of limitations on the
medical malpractice case had expired. On Oct. 18, 1991, a second attorney
examined the case and filed a medical malpractice suit against various defendants
that was later dismissed for failure to prosecute because the defendants
were not served. This case's complicated chronology is nicely summarized
in six pages by the court. The complications result because of changes in
case law and statutes governing the statute of limitations between 1969
and October 1991. The court held that in October 1991 the applicable law
required the commencement of the medical malpractice action by Oct. 19,
1991 (the date of the boy's 22nd birthday).
The court further concluded that the plaintiff's right to sue the doctor
was not lost until the second lawyer's complaint was dismissed for lack
of prosecution. Accordingly, the first lawyer's alleged negligence was not,
as a matter of law, a cause of the plaintiff's loss of their cause of action
against the doctor. The court also affirmed the trial judge's decision ordering
the plaintiffs to pay the defendants costs of certified copies of two depositions
and a set of medical records.
Sanctions - Depositions -
Instructions Not to Answer - Experts
Burnett v. Alt, Nos. 96-3356
and 96-3588 (filed 25 Nov.
1997) (ordered published 17 Dec. 1997)
A doctor and his lawyer appealed orders that compelled discovery of the
doctor and imposed sanctions on the lawyer. Specifically, the doctor was
directed to answer questions at a deposition as a nonparty expert witness.
The lawyer was sanctioned under sections 804.12(1) and (2) of the Wisconsin
Statutes. The sanctions stemmed from the attorney's instruction to the doctor
not to answer certain questions at a deposition. The court of appeals, in
an opinion written by Judge Cane, affirmed.
First, the trial court did not abuse its discretion in imposing sanctions
against the lawyer. The lawyer argued that he was "duty bound"
to protect his client (the doctor) against providing uncompensated expert
testimony to plaintiffs as opposed to transactional testimony. Conceding
that the lawyer's position had merit and acknowledging his efforts to resolve
the matter with plaintiff's counsel before the deposition, the court observed
that the lawyer should have moved for a protective order under Wis. Stat.
section 804.01(3) or sought a telephonic ruling pursuant to section 804.05(4)(b).
The lawyer followed neither avenue.
Second, the trial court did not abuse its discretion in ordering the
doctor to respond to various questions at the next deposition. To the extent
that the order was ambiguous or invited attempts by plaintiff to obtain
"uncompensated expert testimony," the doctor's lawyer was urged
to use the alternatives of telephone rulings or protective orders.
Attorney
Fees
Guardians - Wis. Stat. Section 880.22 - "Just Debts of the Ward"
Community Care Org. of Milwaukee County Inc. v. Evelyn O., Nos.
96-2108 & 96-3254
(filed 28 Oct. 1997) (ordered published 20 Nov. 1997)
The Community Care Organization Inc. was a private company that contracted
with the county to provide elder-abuse monitoring and prevention services
under section 46.90 of the Wisconsin Statutes. Under the contract, Community
Care filed petitions for guardianships and protective placement against
two elderly women. Eventually both women were placed in protective settings.
Over objections by the women's guardian ad litem, the trial judge ordered
the guardianship estates to pay attorney fees to Community Care under Wis.
Stat. section 880.22, which requires that guardians "pay the just debts
of the ward."
The court of appeals, in an opinion written by Judge Fine, reversed.
Community Care argued that it had provided legal services to both women
by "successfully putting them under the protective wings of others."
The argument overlooked the fact that neither woman contracted with Community
Care or approved of its actions. Moreover, Wis. Stat. section 46.90(5m)(c)
gives the elderly the right to refuse to accept services. And under section
880.22 the attorney fees were not the "debts" of the wards. Under
the American rule each party is responsible for its own attorney fees. Wisconsin
recognizes a narrow exception to the American rule where an insured incurs
attorney fees in establishing coverage under an insurance policy. Judge
Fine saw nothing about this case that warranted a similar finding and suggested
that this was a matter best left to the Legislature.
Temporary Guardians - Breach of Trust -
Conflict of Interest - Frivolous Appeals
Yamat v. Verma L.B.,
No. 96-2313 (filed 14 Oct. 1997) (ordered published 20 Nov. 1997)
An attorney appealed the denial of his request for attorney fees in his
role as a temporary guardian. The court of appeals, in an opinion written
by Judge Curley, affirmed the denial but justified the result on different
grounds. The trial judge had authority to award zero compensation if it
found that the attorney had breached his trust with the ward. The record
revealed an apparent conflict of interest involving a personal relationship
between the attorney's "employer" and another lawyer who represented
the ward's son, who had filed the petition declaring the ward incompetent.
Even more egregious, the guardian/attorney later went to work for the attorney
who represented the ward's son! At no time did the guardian/attorney "acknowledge
and rectify the inherent nonwaivable conflict of interest created by his
employment relationship." Other evidence established that he was also
"derelict in his duties" and engaged in "self-dealing."
The court of appeals closed by remanding the matter to the trial court for
the imposition of costs against the same attorney for filing a frivolous
appeal. Wis. Stat. § 809.25.
Public Officers - School Principals -
Wis. Stat. Section 895.46
School Board of Pardeeville
v. Bomber, No. 97-1469 (filed 23 Oct. 1997) (ordered published 20
Nov. 1997)
A school principal submitted her resignation to the school board and
received a release from her contract to take another job. The former principal
also received her last paycheck. The contract required her to pay a $500
penalty for an early release, but she paid only $315, deducting "unused
sick leave." Eventually, the school board sued her for the $185 balance
along with two weeks of vacation time the board now claimed she should not
have been paid for. The circuit court granted summary judgment in favor
of the former principal and awarded her legal fees and costs under section
895.46 of the Wisconsin Statutes, which provides that the governmental unit
must pay reasonable attorney fees and costs in such actions unless the judge
rules that the public officer or employee was not acting within the scope
of her employment when the "acts" occurred. The school board appealed
the award of attorney fees and costs.
The court of appeals, in an opinion written by Judge Deininger, reversed.
First, this case involved a dispute over money; the principal was defending
her personal right to keep the monies she claimed belonged to her. No official
"acts" by the board or the principal were involved. In short,
the court was unpersuaded that this case involved the principal's acts committed
while carrying out her duties as an officer. Nor did this case fall under
statutory language covering cases where the governmental unit is absolutely
liable for judgment rendered against an officer. To so hold would mean concluding
that the board would have been absolutely liable for a judgment rendered
against the principal. In sum, the principal was not entitled to costs and
attorney fees under section 895.46(1).
Judge Dykman dissented on the ground that the pay dispute could be traced
to "acts" done by the principal while employed by the school district.
Civil
Procedure
Settlements - Distribution Orders - Challenges
Herlache v. Blackhawk Collision
Repair Inc., No. 97-0760 (filed 11 Nov. 1997) (ordered published
17 Dec. 1997)
An insurance company appealed an order approving a settlement and distributing
the proceeds. The insurer also appealed an order denying its motion to vacate
the distribution order and authorize the creation of a trust for the minor
children. The court of appeals, in an opinion written by Judge Hoover, affirmed
because the insurer failed to appear at the hearing upon which the distribution
was based and did not demonstrate excusable neglect for the omission (it
offered an "office mix-up" excuse). "While [the insurer]
does not lose its right to share in the recovery by its failure to participate,
it does forfeit its right to object to the application of the settlement
proceeds to specific claims."
Contracts
Motor Vehicle Repair Code - Vehicle Restoration - Damages
Jagodzinski v. Jessup,
No. 97-0787 (filed 25 Nov. 1997) (ordered published 17 Dec. 1997)
The plaintiff had been hired by the defendants to restore their 1957
Chevy. He was supposed to restore part of the car and then turn it over
to a restoring specialist. The plaintiff's bill came to nearly $12,000 which
the defendants refused to pay, citing shoddy workmanship that had led to
a higher bill from the restoration specialist. When the plaintiff sued them
for payment, the defendants counterclaimed for damages and also asserted
that the plaintiff had violated the motor vehicle repair code, entitling
them to double damages plus costs and attorney fees. The judge ruled that
the motor vehicle repair code was inapplicable to restoration projects and
awarded judgment to the plaintiff.
The court of appeals, in an opinion written by Judge Myse, reversed.
The court held that restoration work falls within the definition of "repairs"
under the code. "Customers" was broadly defined to encompass the
owners of all motor vehicles, including "well-informed car collectors."
The court also reversed the determination of damages based upon a factual
error made by the judge.
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