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Vol. 72, No. 7, July 1999

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Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Criminal Procedure | Damages |
| Employment Law | Evidence | Legal Malpractice |
| Real Property | Realtors | Zoning|

Psychotherapist Privilege - Exceptions - Threat to the Public

State v. Agacki, No. 97-3463-CR (filed 13 April 1999) (ordered published 26 May 1999)

The court of appeals, in a decision authored by Judge Schudson, affirmed the defendant's conviction for carrying a concealed weapon. The defendant was arrested after his licensed psychotherapist told police that the defendant was emotionally unstable and armed with a gun. The therapist gleaned this information through conversations and contacts with the defendant, his patient, on the day of the arrest. The defendant argued that the gun should be suppressed because his disclosures to the therapist were privileged under section 905.04.

Prior case law had recognized what can be termed a "dangerous patient exception" that obligated therapists, in some cases, "to warn potential victims and/or contact the police." The duty to warn is triggered when the therapist reasonably believes that the patient is dangerous and disclosure of the communication is necessary to forestall harm.

Judge Fine concurred, writing separately to emphasize that the communications in this case concerned the patient's future conduct and intent, not past events.

Damages - Mitigation - Reliance on Counsel

Langreck v. WILMIC, No. 98-2024 (filed 29 April 1999) (ordered published 26 May 1999)

Langreck obtained a loan and mortgage from a bank in 1987. The mortgage note required him to insure the premises with a "loss-payable clause" in the bank's favor. In 1991 the house burned down. The insurer refused to pay because Langreck was suspected of arson. Langreck eventually retained Attorney Day who filed a suit against the insurer, which was dismissed as time barred (the one-year statute of limitations had expired). In 1993 the bank also filed a proof of loss with the insurer, which was denied for the same reason. In 1994 the bank brought a foreclosure action against Langreck. On advice of different counsel, Langreck did not contest the foreclosure.

Langreck later brought a legal malpractice claim against Attorney Day, his estate, and WILMIC. A jury awarded Langreck more than $100,000 in damages but it also found that Langreck had failed to mitigate his damages by not contesting the bank's foreclosure, thus reducing Langreck's damages by $57,000. Langreck appealed.

The court of appeals, in an opinion written by Judge Dykman, reversed. Langreck had contacted an attorney regarding the foreclosure action. The attorney advised him not to contest the foreclosure. The court of appeals held that "[a]s a matter of law, it is unreasonable to require a party to disregard his or her attorney's advice and proceed pro se with an unknown defense." In a footnote the court expanded upon this thought: "We fail to see how Langreck, without legal training, could be expected to raise a defense not seen, accepted, or appreciated by an attorney." The court ordered the trial court to enter judgment for the original damage award.

Condemnation by DOT - Compensation for Appraisal Fees - Sovereign Immunity

Miesen v. Wisconsin Department of Transportation, No. 98-3093 (filed 6 April 1999) (ordered published 26 May 1999)

The Department of Transportation (DOT) began condemnation proceedings against the plaintiff's property pursuant to chapter 32 of the Wisconsin Statutes. Section 32.05(2)(b), which deals with negotiations before a jurisdictional offer, provides that the owner of the property may obtain an appraisal by a qualified appraiser of all property proposed to be acquired and may submit the reasonable costs of the appraisal to the condemnor for payment. Acting pursuant to this statute, the plaintiff hired an appraiser and then submitted the appraiser's bill to DOT, as permitted under the statute. DOT paid part of the bill, and the plaintiff filed a complaint against DOT in small claims court for the difference.

DOT moved to dismiss the small claims action alleging that the circuit court lacked jurisdiction based on DOT's sovereign immunity from suit. Concluding that DOT had sovereign immunity, the circuit court dismissed the action.

The court of appeals, in a decision authored by Chief Judge Cane, reversed. It concluded that the DOT has clearly and expressly consented to be sued under section 32.05 and that the circuit court therefore had jurisdiction to determine whether the cost of the plaintiff's independent appraisal was reasonable under section 32.05(2)(b). Accordingly, it remanded the matter so that the circuit judge can consider the reasonableness of the appraisal fees and enter judgment if the DOT's payment was insufficient.

Brokerage Services - Negligence - Third-party Reports

Johnson v. Neuville, No. 98-1680 (filed 13 April 1999) (ordered published 26 May 1999)

Johnson wished to relocate his "fish market" business. He purchased a property that was listed for sale by a real estate broker, who acted as the owners' sales agent. After the closing, Johnson sued the broker alleging he had been negligent and had misrepresented an easement. A jury found that the broker had not misrepresented anything to Johnson, but also found that the broker was 65 percent negligent and Johnson 35 percent negligent concerning the easement. The broker appealed.

The court of appeals, in an opinion by Judge Myse, affirmed. The broker first argued that under section 452.23(2)(b) of the Wisconsin Statutes, he was not required to disclose the nonexistence of the easement because a qualified third-party report disclosed information about the easement. Rejecting the claim, the court noted that there was a separate basis for liability in the record. The broker had consulted reports that were inconsistent with the broker's belief that an easement existed, yet he did not alert Johnson that further investigation might be required.

The court also held that section 452.23(2)(b) did not apply in this case because the broker's conduct fell outside the statute's protection. The statute relieves brokers of liability regarding the disclosure of information about a property's physical condition or any other information relating to the transaction. It does not, however, "apply to separate acts of negligence" by the broker. Finally, sufficient evidence supported the jury's finding on causation.

Denial of Conditional Use Permit - Certiorari Review -
Notice of Claim Statute Inapplicable

Kapischke v. County of Walworth, No. 98-0796 (filed 7 April 1999) (ordered published 26 May 1999)

The county planning commission denied the plaintiffs' application for a conditional use permit to construct a communication tower on property zoned for agricultural use. The plaintiffs then filed for certiorari review of the commission's decision in the circuit court. They did not, however, comply with the notice of claim statute (Wis. Stat. section 893.80) prior to commencing the certiorari proceeding. Among the issues on appeal was whether that failure should result in the dismissal of their suit.

In a decision authored by Judge Nettesheim, the court noted a conflict between section 59.694(10) of the Wisconsin Statutes, which governs certiorari review of county zoning decisions, and the more generally applicable notice of claim statute. The former provides that a person aggrieved by a zoning decision may, within 30 days after the filing of the decision, commence an action seeking the remedy available by certiorari. On the other hand, the notice of claim statute provides that before an individual may maintain an action against a municipality, the municipality must be notified of the claim and has 120 days to disallow it.

The court of appeals concluded that the provisions of section 59.694 take precedence over those set forth in the notice of claim statute. The court did not believe this holding would frustrate the purpose of the notice of claim statute, which is designed to give municipalities an opportunity to address the merits of a claim. Said the court, in a certiorari review setting, the governmental agency has already acted before the action is commenced at the circuit court level. The purpose of certiorari review is simply to obtain judicial review of governmental agency action and not to commence an original action based on claims unknown to the agency. Thus, the court held that the notice of claim statute does not govern certiorari actions brought pursuant to section 59.694(10).

Land Use Regulations - Direct Voter Action Through Initiative

Heitman v. City of Mauston Common Council, No. 98-3133 (filed 29 April 1999) (ordered published 26 May 1999)

This case arose because of the contemplated construction in Mauston of a secure treatment facility for sexually violent person commitments. The plaintiff and others who oppose the construction of the facility commenced an initiative pursuant to Wis. Stat. section 9.20 and requested the city either to adopt the proposed initiative without alteration or to submit it to the electorate for a vote. When the city refused, the plaintiff commenced an action for mandamus to require it to do so and for injunctive relief. The city moved for summary judgment and the circuit court granted the motion.

The court of appeals, in a decision authored by Judge Roggensack, affirmed the circuit court. An initiative is a direct voter action to enact new law within a particular jurisdiction. In Wisconsin the right of initiative is not reserved to the people in the constitution. Rather, by the adoption of the state constitution, the people of Wisconsin delegated all rights of lawmaking to the Wisconsin Legislature. Therefore, in this state, initiative is a creature of statute and its use must comport with the requirements established by the Legislature, both for direct action legislation and for the specific area of legislation in which initiative is attempted.

The appellate court concluded that the proposed initiative is either a zoning ordinance or an amendment to the zoning ordinances of the city of Mauston and that zoning and amendments to zoning may be accomplished only in compliance with the procedures established in Wis. Stat. section 62.23 - not by initiative.

Judge Dykman filed a dissenting opinion.

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.