Court of Appeals Digest

Attorneys

Conflicts of Interest - Incompetent Clients

Guerrero v. Cavey, 2000 WI App 203 (filed 20 July 2000) (ordered published 27 Sept. 2000)

The guardian ad litem for Lillian P. sought the disqualification of attorney PC who represented both Lillian and her son, Lester. The GAL asserted that PC had a conflict of interest and that Lillian was incompetent to waive it. The court refused to disqualify PC primarily because another attorney agreed to act as "co-counsel" during PC's representation of Lillian, who also had executed a waiver of the conflict.

The court of appeals, in a decision written by Judge Roggensack, reversed the circuit court. Lillian was a 90-year-old woman who was adjudged incompetent because of dementia. The court found that attorney PC had an actual conflict of interest. Lester sought to purchase Lillian's house at a price below market value. Moreover, Lester was living in Lillian's house without paying rent and wanted to persuade Lillian to leave her protective placement in a group home and return to her house, a scenario that the court found would give Lester a "better opportunity" to get the house. In sum, if PC "is to vigorously represent Lester, she must find ways to block the sale" to a buyer willing to pay substantially more for the house than Lester. Thus, Lillian's and Lester's interests were adverse ( 17).

The court next addressed whether Lillian properly waived PC's conflict of interest. Because Lillian had been adjudicated incompetent, she was "legally incapable" of executing a waiver ( 19). On this record PC never challenged Lillian's incompetence. Indeed Lillian's increasing confusion and anxiety had progressed to the point of attacks on caregivers and her commitment to secure mental health facilities. Finally, the presence of "co-counsel" in no way ameliorated PC's conflict of interest.

Attorney Fees

Frivolous Actions - Pre-suit Consultation - Fees For Ancillary Proceedings

Lenhardt v. Lenhardt, 2000 WI App 201 (filed 2 Aug. 2000) (ordered published 27 Sept. 2000)

The plaintiff sued her son, seeking specific performance of an alleged agreement to transfer title to a vacant lot to her. The circuit court found her action frivolous and awarded attorney fees to the defendant. Among the issues on appeal was the correctness of that award.

The precise question before the court of appeals was whether the circuit court had authority under Wis. Stat. section 814.025 to award attorney fees for pre-suit consultation in the case as well as for legal work on a harassment injunction that was obtained by the defendant against the plaintiff in connection with their ongoing dispute about the property in question. The injunction was obtained before the plaintiff filed her suit for specific performance of the party's alleged agreement.

With regard to attorney fees for pre-suit consultation, the court of appeals held that, as long as the fees are sufficiently related to the cause of action before the court, it is their reasonableness, not the time they were incurred, that determines whether the court has authority to use its discretion in awarding them. In this case, the defendant met with an attorney to discuss the very problem that eventually caused the plaintiff to file what turned out to be a frivolous lawsuit. The fact that the discussion took place prior to the filing of the complaint did not render those fees unrecoverable under the statute cited above.

The court of appeals reached the opposite conclusion, however, regarding the attorney fees awarded for the harassment injunction. It concluded that the trial court was without authority to award those fees. The harassment injunction was a completely separate, albeit related, proceeding to that in which the fees were awarded. The statute only gives the trial court authority to award attorney fees for the action or proceeding before it, not for all ancillary proceedings precipitated by the frivolous action but not before the court.

Creditor-debtor Law

Medical Services - Consumer Act - "Installment" Payments

Dean Medical Center S.C. v. Conners, 2000 WI App 202 (filed 10 Aug. 2000) (ordered published 27 Sept. 2000)

Dean Medical Center obtained a judgment against the defendant for medical services provided to his son. On appeal he claimed that the judgment was invalid because Dean failed to give him personal notice as required by the Wisconsin Consumer Act (WCA). Affirming the judgment, the court of appeals, in a decision written by Judge Roggensack, held that the "transaction involved here was not a consumer credit transaction to which the WCA applied" (¶ 1).

No prior case law had addressed "whether an overdue debt which is not subject to a finance charge and is paid over a period of several months is a consumer credit transaction solely because it was paid over time." Nor did this record support defendant's arguments. First, no evidence suggested that when defendant incurred the obligation the parties agreed that it could be paid over time. Second, the court would have to "rewrite" the agreement in order to permit "those services to create a consumer debt simply by virtue of nonpayment." Third, Dean's custom was not to offer patients the option of paying in installments, at least when the services are provided. (¶ 12)

The court also addressed and rejected another line of argument to the effect that "third-party creditors may not recover from a noncustodial parent when a paternity judgment establishes the noncustodial parent's liability for medical expenses of a child" (¶ 14).

Criminal Law

Felon in Possession of Firearm (Second Offense) - Application of Habitual Criminality Statute

State v. Gibson, 2000 WI App 207 (filed 2 Aug. 2000) (ordered published 27 Sept. 2000)

Wis. Stat. section 941.29(2)(a) makes it a Class E felony for a person who has previously been convicted of a felony to possess a firearm. Subsection (2m) of that statute provides that the offense is a more serious Class D felony if the defendant has previously been convicted of violating this statute.

The defendant was charged with the Class D felony version of this offense because he had previously been convicted of possessing a firearm. On top of that, the state added an allegation that he was an habitual offender under the general repeater statute (Wis. Stat. § 939.62), thereby exposing him to a greater penalty under that statute as well.

The question before the court of appeals was whether the habitual criminality enhancer may be applied to a conviction for a second offense felon in possession of firearm violation. In a decision authored by Judge Brown, the court of appeals held that the second offense felon in possession statute (the Class D felony) creates its own separate offense and is not itself a penalty enhancer. Because it is a separate crime and not a penalty enhancer, it can support the application of the habitual criminality statute. Thus, it was proper for the circuit court to apply the general repeater statute to the crime of felon in possession of a firearm (second offense).

Theft of Firearms - Multiplicity

State v. Trawitzki, 2000 WI App 205 (filed 31 Aug. 2000) (ordered published 27 Sept. 2000)

The defendant was part of a group that burglarized a home. Ten firearms were taken from the premises. The next day, several of the guns were hidden near a bridge.

The state charged the defendant with burglary, with 10 counts of theft of a firearm, and with five counts of concealing stolen property. Except for the burglary charge, all of these charges were brought under the theft statute, which prohibits not only the taking and carrying away of another's property but the concealment of it as well. That statute has elevated penalties if the property stolen is a firearm. See Wis. Stat. § 943.20(1)(a) and (3)(d)5.

The defendant contended that the theft and concealment charges were multiplicitous and therefore in violation of the Double Jeopardy Clause. In an opinion authored by Judge Deininger, the court of appeals rejected that argument and affirmed the convictions.

"Multiplicity" is the term used to describe the charging of a single criminal offense in more than one count. Multiplicitous charges violate the double jeopardy provisions of the Wisconsin and U.S. Constitutions. To resolve multiplicity claims, the court first looks to see whether the multiple charges are identical in law and in fact.

In this case, the multiple charges were indeed identical in law. However, the court of appeals was satisfied that each charge was based on sufficiently different facts - the individual identity and characteristics of each firearm that was stolen - to render each separate charge different in fact from the others. Because the multiple counts were sufficiently different in fact from one another, the presumption is that the Legislature intended to allow multiple punishments. However, the court must examine the statute to ascertain whether there are any indications of a legislative intent to the contrary. Here, the court could not identify any such contrary intention. Among other things the court noted that, by enacting the statute in question, the Legislature sought to address a special societal concern - the proliferation of guns among criminals. And, since the theft of each individual firearm potentially places another weapon in the hands of a criminal for use in another crime, it is not inappropriate to separately penalize the taking or concealment of each one.

Criminal Procedure

Double Jeopardy - Revision of Sentence

State v. Willett, 2000 WI App 212 (filed 9 Aug. 2000) (ordered published 27 Sept. 2000)

The defendant faced sentencing for three convictions on the same day. He was also expected to be sentenced four days later on an earlier charge when his probation on that earlier charge was revoked. The circuit court stated that it wanted to make the sentences in the new case consecutive to the sentence in the old case, but did not believe it had the authority to do so. Accordingly, the new sentences were not made consecutive to the sentence to be imposed later for the old charge as to which the defendant's probation was being revoked.

Four months later, the circuit court was convinced that its earlier ruling that the new sentences could not be consecutive to the old one was based on an erroneous understanding of the law. Accordingly, the court changed the three new sentences so that they would be consecutive to the sentence on the old charge that was imposed after probation was revoked. This was done over the double jeopardy objections of the defendant.

In an opinion authored by Judge Brown, the court of appeals reversed the circuit court. It agreed with the defendant that the sentence modification violated the prohibition against double jeopardy. The defendant had a legitimate expectation of finality in the sentence that had originally been imposed and had already been serving that sentence for four months when the trial court modified it. Further, this was not a situation where there was a "slip of the tongue" on the part of the trial court. Rather, the trial court had an incorrect understanding of the law governing its sentencing authority. Said the appellate court, double jeopardy prevents the state from using this error, four months later, to seek a stiffer sentence for the defendant. That the trial court wanted to impose a consecutive sentence to begin with is of no moment; what the trial court actually did was to impose a valid, concurrent sentence. The Double Jeopardy Clause prevents the trial court from going back, four months later, to redo the sentence.

Orders to Produce - Prisoner Transports to Court - Defendant's Liability for Fees and Costs

State v. Dismuke, 2000 WI App 198 (filed 8 Aug. 2000) (ordered published 27 Sept. 2000)

The defendant was convicted of armed robbery and given a lengthy prison sentence. The circuit court imposed "applicable costs," ordering the defendant to pay fees and travel costs generated by the sheriff in connection with the service of numerous orders to produce him from prison (where he was serving a sentence for a prior conviction) for his circuit court appearances in the present case. On appeal he contended that these costs are not authorized by Wis. Stat. section 973.06 and, further, that the assessment of these costs against him violated his constitutional rights to due process and equal protection.

The court of appeals, in a decision authored by Judge Curley, affirmed. It concluded that section 973.06 permits the assessment of costs for the service of an order to produce and for the attendant travel fees. The court further concluded that the taxation of costs in connection with the service of an order to produce did not violate the defendant's constitutional rights.

OWI Investigations - Warrantless Blood Draws

State v. Thorstad, 2000 WI App 199 (filed 17 Aug. 2000) (ordered published 27 Sept. 2000)

The defendant was arrested for OWI and taken to a hospital for a blood test. The officer informed the defendant about the implied consent law and he agreed to take the blood test. At no time did the defendant request that he be given the opportunity for some other test, nor did he ever refuse to take the blood test.

The defendant filed a motion to suppress the results of the blood test, arguing that it was an unreasonable search in violation of the Fourth Amendment. The circuit court agreed and suppressed the test result. The state appealed.

In a decision authored by Judge Dykman, the court of appeals reversed. In order for a blood draw in a case like this to be permissible under the Fourth Amendment, the following four requirements must be met: 1) the blood draw must be taken to obtain evidence of intoxication from a person lawfully arrested for an impaired driving violation or crime; 2) there must be a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample must be a reasonable one and performed in a reasonable manner; and 4) the arrestee must present no reasonable objection to the blood draw. See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (l993). The court of appeals concluded that the Bohling requirements were met in this case and accordingly the blood draw was a reasonable search under the Fourth Amendment.

In its opinion the court considered the applicability of a 9th Circuit case entitled Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), in which the federal court held that "when an arrestee requests but is denied the choice of an available breath or urine test, the exigency used to justify the warrantless blood test continues only because of the ... failure to perform the requested alternative test." In those circumstances the federal court believed that blood tests are not only unnecessary and unreasonable, but also violate the Fourth Amendment's warrant requirement. The Wisconsin Court of Appeals distinguished Nelson. It noted that Nelson was a class action where the 9th Circuit limited the plaintiff class to those who had requested or consented to a breath or urine test instead of a blood test. In this case the defendant did not request either alternate test. Further, the court held that Nelson is not binding authority in Wisconsin.

Evidence

Other Acts - Prior Crimes

State v. Cofield, 2000 WI App 196 (filed 25 July 2000) (ordered published 27 Sept. 2000)

The court of appeals reversed the defendant's conviction for sexual assault and kidnapping because of the erroneous admission of other act evidence. The state alleged that he had threatened the victim with a knife before assaulting her in his own apartment. To rebut the defendant's claim of consent, the state offered evidence that he had sexually assaulted two other women at knifepoint in 1986 and 1987. The other crimes ostensibly demonstrated his "intent," "motive," or "common plan." Writing for the court, Judge Wedemeyer applied the three-step test set forth in State v. Sullivan. "Intent" was not an element of the sexual assault charges. Even though intent is an element of kidnapping, the state plainly used the evidence to prove nonconsent to sexual intercourse. Nor did the 1986 and 1987 offenses provide a "motive" for the present offenses; their only relevancy turned on an impermissible character inference. For similar reasons, they also failed to reflect a "plan" to assault the victim in this case.

Judge Schudson concurred.

Other Acts - Relevancy

State v. Bauer, 2000 WI App 206 (filed 23 Aug. 2000) (ordered published 27 Sept. 2000)

The court of appeals, in a decision written by Judge Brown, affirmed the defendant's convictions for attempted murder and possession of an electric weapon. While in jail awaiting trial, he solicited the murders of two witnesses against him. The trial court admitted evidence of the solicitation. The court of appeals held that the act of solicitation was clearly relevant to show his consciousness of guilt and desire to escape punishment. Moreover, the court also held that it was not necessary to apply the Sullivan three-step test that governs other act evidence. "Because Bauer's attempt to solicit murder was a criminal act intended to obstruct justice and avoid punishment which demonstrates consciousness of guilt, . . . evidence related to it is not other acts evidence and is admissible" (¶ 7). In sum, the other acts analysis should be reserved for instances when the proponent relies on the similarity between the offense charged and some other act.

Insurance

UIM Coverage - Stacking - Split-limit Liability

Ginder v. General Casualty Co., 2000 WI App 197 (filed 2 Aug. 2000) (ordered published 27 Sept. 2000)

Ginder was injured in an accident with another driver. The other driver's insurer settled Ginder's claim by paying its $100,000 policy limits. Ginder sought underinsured motorist (UIM) coverage under his own policy, which covered the automobile involved in the collision and another vehicle. He also argued that he should be allowed to stack the UIM coverages for the two vehicles. The trial judge agreed and found that $200,000 in UIM coverage was available.

The court of appeals, in a decision written by Judge Snyder, affirmed. The court construed the policy's definition of the phrase "split-limit liability" in light of other language in the policy and the case law on stacking. It held that the phrase "split-limit liability" meant that the insurer's limit of liability for any one person "is the sum of the limits of liability shown in the declaration page for each person for UIM coverage" (¶ 16). This language conflicted with another phrase that "apparently restricts [the insurer's] liability limit to its coverage for a single vehicle rather than to the sum of liability limits for all insured vehicles." The conflict language created an ambiguity that the court resolved in the insured's favor.

Torts

Negligent Misrepresentation - Economic Loss Doctrine

Prent Corporation v. Martek Holdings Inc., 2000 WI App 194 (filed 31 Aug. 2000) (ordered published 27 Sept. 2000)

The plaintiff contracted with the defendant for the provision of customized software programs. When the software did not perform as had been anticipated, the plaintiff sued to recover its losses. Among the theories under which it sought recovery was negligent misrepresentation.

One of the issues on appeal was whether the economic loss doctrine precluded the plaintiff's claims for negligent misrepresentation. In a decision authored by Judge Roggensack, the court of appeals held that the negligent misrepresentation claims were precluded by the economic loss doctrine.

The economic loss doctrine is a judicially created doctrine that precludes a commercial purchaser of a product from suing in negligence or strict liability to recover from the product's manufacturer a loss that is solely economic; instead, the commercial purchaser's only remedies are in contract, the law of warranties, and the Uniform Commercial Code. Economic loss has been defined as that loss "in a product's value which occurs because the product is inferior in quality and does not work for the general purposes for which it was manufactured and sold." It also has been defined as "damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits."

In this case the damages associated with the claims of negligent misrepresentation arose as a result of paying the plaintiff's employees' wages while they worked on the software project. Their nature is that of a purely economic loss. The appellate court concluded that the economic loss doctrine applied to these purely economic losses and that the plaintiff's claims for negligent misrepresentation were therefore not available.

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