Civil Procedure

Burden of Proof - "Five-sixths Rule"

Nommensen v. American Continental Ins. Co., 2000 WI App 230 (filed 27 Sept. 2000) (ordered published 18 Oct. 2000)

In this medical malpractice action, a jury found that the defendant hospital was negligent but that the negligence was not a cause of the damages. The court of appeals, in a decision written by Judge Nettesheim, affirmed. The appeal raised three issues.

First, plaintiff argued that Wis JI-Civil 200, the burden of proof instruction, misstated the law. The instruction reads that jurors must be satisfied "to a reasonable certainty by the greater weight of the credible evidence that 'yes' should be the answer" (¶13). In sum, the plaintiff contended that the word "probability" should replace "certainty" because the latter connotes a subjectively higher standard. The court rejected the argument because Wis JI-Civil 200 reflects "standing law as announced by the supreme court," which the court of appeals is powerless to change.

Second, plaintiff argued that the verdict failed to satisfy the five-sixths rule, Wis. Stat. section 805.09(2), because two jurors who dissented from the negligence finding against defendant hospital were not the same two who dissented from the "no causation" finding. Case law does not require, however, that the same 10 jurors must agree on every question; "[r]ather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim" (¶18). In this case the jury's finding of no causation, "standing alone," resolved the entire claim.

Finally, the court rejected the contention that a nurse's testimony went beyond the issues drawn by the pleadings and the pretrial orders. The discussion is fact-intensive and raises no novel issues of law.

Judge Brown concurred and wrote separately to urge the supreme court to consider the "reasonable certainty" standard of proof.

Contracts

Promissory Estoppel - Subcontractors

Seater Construction Co. v. Rawson Plumbing Inc., 2000 WI App 232 (filed 27 Sept. 2000) (ordered published 18 Oct. 2000)

A general contractor brought an action against a plumbing subcontractor on a claim of promissory estoppel. The general contractor had won a bid on a construction project relying on the subcontractor's bid for the plumbing work. The subcontractor, however, refused to honor its bid. The trial court ruled in favor of the general contractor.

The court of appeals, in a decision written by Judge Snyder, affirmed. There are three elements to promissory estoppel. The first two are issues of fact that are entrusted to the trier of fact's discretion. First, "was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee?" Second, "did the promise induce such action or forbearance?" (¶20) The record adequately supported both affirmative findings by the trial court.

The third issue is a policy question for the court: "Can injustice be avoided only by enforcement of the promise?" Relying on a 1992 decision, the court held that justice demanded that the promise be enforced and the general contractor compensated for $45,000 in damages caused by subcontractor's nonfeasance: "the subcontractor's bid induced the general contractor to submit a bid and accept an offer for a construction project" (¶33).

Criminal Procedure

Probation With County Jail Condition - Good Time - Authority of Department of Corrections Over Confinement Condition of Probation

State v. Fearing, 2000 WI App 229 (filed 21 Sept. 2000) (ordered published 18 Oct. 2000)

The defendant was convicted on a plea of no contest of delivery of a controlled substance. The court withheld sentence and placed him on probation for a period not to exceed 30 months with several conditions. One of those conditions was that he serve six months in the county jail with work release privileges but without good time. The court then stayed three months of that six-month period of confinement and stated that the three months stayed "could be imposed at the discretion of [the defendant's probation] agent, if he or she deems it appropriate" (¶1).

The defendant appealed, arguing that the trial court did not have the statutory authority to order the term of jail confinement to be served without good time. He also argued that the court did not have the authority to authorize the probation agent to impose the stayed three-month jail time at his or her discretion.

In a decision authored by Judge Vergeront, the court of appeals affirmed in part and reversed in part. It concluded that the defendant "was not entitled to good time during the term of jail confinement imposed as a condition of probation and, therefore, the judge did not err in directing that he receive no good time" (¶2). This conclusion was premised on governing statutes and on the case of Prue v. State, 63 Wis. 2d 109, 216 N.W.2d 43 (1974). (In footnote the appellate court noted language from Prue that a circuit court has authority to order good time when it imposes confinement in jail as a condition of probation. This, of course, was not done in this case.)

Finally, the court agreed with the defendant that the judge did not have the statutory authority to delegate to the probation agent the discretion to impose the three months of jail time that the court had stayed.

Forfeiture of Vehicle Used to Commit Felony - Proportionality Test to Determine Whether Forfeiture Violates Excessive Fines Clause

State v. Boyd, 2000 WI App 208 (filed 23 Aug. 2000) (ordered published 29 Sept. 2000)

The defendant was convicted of felony endangering safety by use of a dangerous weapon contrary to Wis. Stat. Section 941.20(2)(a). This conviction arose from events that occurred at the Elkhart Lake Police Department. The defendant, angry with the police department because he had been arrested for OWI three days before, twice drove around the police station's block, stopped his truck in front of the station, got out and fired a .22 caliber handgun at the station's door. He then drove away.

After the defendant was convicted, the state commenced an action seeking forfeiture of the defendant's truck pursuant to Wis. Stat. Section 973.075(1)(b)1m because the defendant had used it to commit a felony. After hearing the evidence in the forfeiture action, the circuit court ruled that the truck, valued at $28,000, should be sold and the first $10,000 from the proceeds should be paid to the Elkhart Lake Police Department. The court reasoned that, if the entire $28,000 value of the vehicle were forfeited, the forfeiture would violate the U.S. Constitution's prohibition of excessive fines. The state appealed and the court of appeals, in a decision authored by Judge Anderson, affirmed the circuit court.

To determine the excessiveness vel non of a forfeiture, the U.S. Supreme Court has adopted a standard commonly referred to as "the proportionality test." See United States v. Bajakajian, 524 U.S. 314 (1998). In that case the court held that "the touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense it is designed to punish ... . A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of the defendant's offense" (¶11). In the simplest terms, the Supreme Court applied the proportionality test by considering the following factors: the nature of the offense, the purpose for enacting the statute, the fine commonly imposed upon similarly situated offenders, and the harm resulting from the defendant's conduct.

Applying these factors to the present case, the appellate court began by noting the seriousness of the defendant's conduct and its potential for severe injuries that could have resulted from it. Nevertheless, the court was troubled by the disparity between the forfeiture amount of $28,000 sought by the state and the maximum fine for the crime in question, which is $10,000. Although acknowledging the seriousness of the defendant's conduct, the court concluded that imposing the full forfeiture would be an excessive fine. The harm that the defendant actually caused was minimal and will be sufficiently satisfied from the reduced forfeiture amount ordered by the court ($10,000). The court further observed that the purpose of the forfeiture statute - to deter offenders from using their vehicles to commit a felony - will not be significantly impacted as the situation in this case is not likely to recur.

Auto Stops - Reasonable Suspicion of Criminal Behavior

State v. Fields, 2000 WI App 218 (filed 6 Sept. 2000) (ordered published 18 Oct. 2000)

Just before midnight, a police officer was patrolling a rural area in Outagamie County in a marked squad car. He was driving southbound on Van Boxtel Road approaching the intersection with Ranch Road. Van Boxtel has stop signs at the intersection for both northbound and southbound traffic. Ranch Road has no stop signs.

When the officer was 50-70 yards from the intersection, he noticed a northbound vehicle stopped at the stop sign on Van Boxtel. There was no other traffic. After the officer stopped at the stop sign for southbound traffic, the northbound vehicle, which was driven by the defendant, remained stopped for 5-10 seconds. It then pulled away from the stop sign and the officer stopped it. The defendant's operating privilege was revoked. He pled guilty to operating after revocation (second offense) following denial of his motion to suppress on the grounds of an unlawful stop of his vehicle.

At the suppression hearing the officer testified about his reasons for stopping the vehicle. He explained that he had been a police officer for three years and that a vehicle usually stops under these circumstances for several seconds less. He thought the length of the defendant's stop at the stop sign was unusual and that the driver might be a drunk driver or someone whose license is revoked or suspended. Further, late at night, vehicles regularly try to evade squad cars by traveling in opposite directions, pulling into driveways, or making other maneuvers to get out of sight.

In a decision authored by Judge Peterson, the court of appeals reversed. It concluded that the officer lacked reasonable suspicion to stop the defendant's vehicle. To execute a valid investigatory stop consistent with the Fourth Amendment prohibition against unreasonable searches and seizures, a police officer must reasonably suspect, in light of his or her experience, that some kind of illegal activity has taken or is taking place. An inchoate and unparticularized suspicion or hunch will not suffice.

The primary emphasis in the officer's testimony seemed to be a suspicion that the defendant was going to try to evade him. While flight from police is a strong indication of a guilty mind or a guilty purpose, and thus a justification to conduct a temporary investigative stop, the defendant in this case did not flee or evade. The officer only thought that the longer-than-normal stop might be a prelude to evasion. Further, the minimal number of seconds by which the defendant's stop exceeded a normal stop is too scant a basis for inferring a guilty mind.

The officer also posited that the facts might suggest a drunk driver or someone whose license was revoked or suspended. While there is no doubt that the officer had a hunch that something amiss was going on, an investigative stop cannot be based on such an inchoate and unparticularized suspicion or hunch.

In sum, based on the totality of the circumstances, the appellate court could not conclude that the defendant's slightly longer-than-normal stop at the stop sign, at that time and in that location, gave rise to the level of "specific and articulable facts" necessary to justify reasonable suspicion that the defendant had committed or was committing an unlawful act.

Extensions of Mandatory Release for Filing Certain Actions - Wis. Stat. Section 807.15

State ex rel. Garel v. Morgan, 2000 WI App 223 (filed 6 Sept. 2000) (ordered published 18 Oct. 2000)

The circuit court ordered the Department of Corrections to extend the defendant's mandatory release date by 180 days as a sanction for providing false information to the court. This order was entered pursuant to Wis. Stat. section 807.15(2)(c), which authorizes an extension of a prisoner's mandatory release date in any action or special proceeding brought by a prisoner if the court finds that any of the following apply: 1) the action or special proceeding was filed for a malicious purpose; 2) the action or special proceeding was filed solely to harass the party against which it was filed; and 3) the prisoner testifies falsely or otherwise knowingly offers false evidence or provides false information to the court. The statute specifically provides that "this section applies to prisoners who committed an offense on or after Sept. 1, 1998." (Emphasis supplied.)

The critical issue in this case is whether the "offense" that must be committed on or after Sept. 1, 1998, in order for section 807.15 to apply, refers to the underlying offense for which the prisoner is incarcerated or to his or her "litigation abuse" offense. In a decision authored by Judge Snyder, the court concluded that the plain and unambiguous language of the statute clearly indicates that it was intended to apply only to those prisoners who committed a crime on or after Sept. 1, 1998. In this case the defendant is in prison as a result of probation and parole revocations from a 1995 or earlier conviction. His underlying crime clearly predates Sept. 1, 1998 and thus the circuit court did not have the authority to extend his mandatory release date pursuant to section 807.15.

Family Law

Modification of Physical Placement of Children - Two-year "Truce"

Trost v. Trost, 2000 WI App 222 (filed 2 Aug. 2000) (ordered published 18 Oct. 2000)

Keith and Lori Trost were divorced by stipulated agreement in July, 1997. Under that agreement, Lori had primary physical placement of the couple's daughter. Keith had physical placement "at reasonable and liberal times" including, at a minimum, Monday through Friday after day care until 5:15 p.m. and alternating weekends. The plan did not work out and the parties had disagreements over the child's placement. Dissatisfied with the amount of time he was seeing his daughter, Keith sought to have the placement agreement enforced. The circuit court, after recognizing that the existing schedule was "absolutely meaningless" because it gave Keith placement during the day while the child was in school, set a new placement schedule by which Keith had physical placement on newly specified days.

In a decision authored by Judge Brown, the court of appeals reversed that part of the trial court's order that set a new placement schedule. The question before the court was not whether the circuit judge properly exercised discretion in modifying the placement order, but whether the court had authority to modify the placement order within two years of the initial placement order.

Absent an allegation and a showing that current custodial conditions are physically or emotionally harmful to the child's best interest, a trial court does not have authority to change placement within two years of the initial placement order. In this case, the trial court operated under the mistaken view that the two-year prohibition on modification of placement orders applied only to modification of primary placement, not physical placement, the modern term for what was formerly known as visitation. But, said the court of appeals, the two-year prohibition on modification applies to any order of physical placement if the modification would substantially alter the time a parent may spend with his or her child. Absent a showing that the current arrangement is harmful to the child or a showing that the modification is not a substantial alteration in the time spent between parent and child, the court has no authority to intervene during the two-year "truce" period.

In sum, once the trial court determined that there was nothing harmful to the child in the original order and further determined a change that would be substantial, it had no authority to modify the placement order.

Placement - Conditions

State v. Alice H., 2000 WI App 228 (filed 28 Sept. 2000) (ordered published 18 Oct. 2000)

Alice H. appealed an order granting sole legal custody and primary physical placement of her daughter to the girl's father. The order also denied Alice physical placement and imposed specified conditions before she could regain any placement rights, such as requiring Alice to receive treatment from one of two named therapists.

The court of appeals, in a decision written by Judge Vergeront, affirmed in part and reversed in part. First, the court held that sufficient evidence supported Alice's denial of physical placement. Second, the court addressed the conditions and found that they violated Alice's rights in several respects. Case law and statutes establish that "once a court has properly denied physical placement to a parent because it would endanger the child's physical, emotional or mental health, the conditions it imposes for regaining placement, if those conditions are properly imposed, are not a further restriction on the parent's rights, but rather a means to enable the parent to regain placement and thus preserve their parental rights" (¶30). Moreover, "when a court denies a parent physical placement in an action affecting the family, it has the statutory authority to impose conditions for regaining placement, and these conditions may include mental health treatment, anger management, individual or family counseling, and parenting training." But any conditions "imposed must be necessary to protect the child from the danger of physical, emotional or mental harm if the child is placed with the parent."

Finally, "the court may not prospectively prohibit a parent from seeking a revision to any provision in such an order" (¶33). Applying these principles to the record, the court of appeals held that various conditions failed the test. For example, it was not necessary that Alice receive services by one of two named therapists.

Insurance

Proof of Loss - Date - Statute of Limitations

Rasmussen v. Blue Cross/Blue Shield, 2000 WI App 220 (filed 26 Sept. 2000) (ordered published 18 Oct. 2000)

The plaintiff owned a supplemental health insurance policy. He was placed in a nursing home between January and October 1995 and incurred personal expense after his Medicare benefits expired. It was undisputed that he submitted a proof of loss to his insurer within the 90-day period required by the policy. The insurer denied the request. On June 30, 1999, the plaintiff brought this action against the insurer for breach of contract. The circuit court ruled that the plaintiff had three years plus 90 days to file suit and that the statute of limitations, Wis. Stat. section 631.83(1)(b), had run nearly one year earlier.

The court of appeals, in a decision written by Judge Peterson, affirmed. The sole issue concerned what date proof of loss had to be furnished. The plaintiff alleged that the policy permitted proof of loss to be filed as late as 15 months from the provision of medical services; thus, he had three years plus 15 months within which to bring this action. Examining the policy, the court held that the policyholder must provide proof of loss within 90 days. The 15-month period only applies where it is not reasonably possible for the insured to provide the notice within the 90-day period (¶7). "Simply put," the 15-month escape clause did not apply to the plaintiff.

Judge Cane dissented.

Motor Vehicle Law

Felony OWI - Preliminary Hearing

State v. Lindholm, 2000 WI App 225 (filed 28 Sept. 2000) (ordered published 18 Oct. 2000)

The defendant was charged with OWI. The state alleged that he had two prior OWI convictions and that a passenger younger than 16 was in his car when he was stopped. This combination made the offense a felony under Wis. Stat. section 346.65(2)(f). The circuit court dismissed the charge following a preliminary hearing because the state submitted only a certified abstract of the Department of Transportation driving record for the defendant as proof of his prior convictions.

The court of appeals, in a decision authored by Judge Roggensack, reversed. It concluded that, in a preliminary hearing, such an abstract, as a matter of law, satisfies probable cause to believe that a defendant, who is charged with felony OWI because he had a child under age 16 in the vehicle, had sufficient prior OWI convictions to be bound over for trial. While the priors are not elements of the crime, probable cause for the number of prior OWI convictions had to be established at the preliminary hearing because it changed the status of the offense to that of a felony. The certified copy of the defendant's DOT driving record was sufficient to establish this probable cause.

Municipal Law

Condemnation - Sewers Interceptors

Danielson v. Sun Prairie, 2000 WI App 227 (filed 28 Sept. 2000) (ordered published 18 Oct. 2000)

The city of Sun Prairie (the city) condemned for an easement to place a "sewer interceptor" for the city's sewer system on Danielson's land, which was located in the town of Burke (the town). Danielson and the town brought an action in circuit court alleging that the city had to gain the town's prior approval before the condemnation for or the construction of the interceptor. The trial judge ruled that the city was not required to secure the town's prior approval nor was it required to make a relocation order as the first step in a condemnation.

The court of appeals, in a decision written by Judge Roggensack, affirmed. Central to the issue was Wis. Stat. section 60.52, which requires town approval when a city constructs or maintains sewer or water "extensions." The court held that the statutory phrase, "extensions of [a city's] sewer or water system in the town," applied only to extensions "which can provide service to residents of the town" (¶13). The sewer interceptor at issue in this case provided no such "service."

The court next addressed the contention that the city violated Wis. Stat. section 32.05(1) because it did not "adopt" the relocation order "as the first step in the condemnation process." First, nothing on the statute's face required such an order. Second, other related subsections specify when certain steps must be taken before making a jurisdictional offer, and this one did not.

Judge Dykman dissented.

Sexually Violent Persons

Unanimity Instructions - Discovery Violations - Experts

State v. Pletz, 2000 WI App 221 (filed 12 Sept. 2000) (ordered published 18 Oct. 2000)

The court of appeals, in a decision written by Judge Wedemeyer, affirmed an order committing the respondent as a sexually violent person pursuant to Wis. Stat. chapter 980. On appeal the respondent raised several issues.

First, the respondent challenged the sufficiency of the evidence. Even though the case presented a "battle of experts" and one state's expert failed to use the "precise definition of substantial probability" discussed in the case law, the record adequately supported the jury's finding.

Second, respondent argued that his right to a unanimous verdict was violated when the judge told the jury that it need not be unanimous about "which" mental disorder he had, only that all jurors must agree he had "a" mental disorder. The court held that the instruction accorded with analogous case law concerning robbery and party to the crime liability, where unanimity is not required with respect to the alternative ways or means of committing offenses (¶19).

Third, the trial judge did not abuse its discretion in determining that the state did not violate discovery rules regarding expert testimony. The court held that respondent waived any error by failing to object before or during the expert's testimony.

Finally, no reversible error occurred when the judge admitted letters received by one expert from the committee responsible for DSM-IV, a handbook of psychiatric disorders. The court agreed that the letters were not of a type reasonably relied upon by experts in the field because they were "isolated opinions given in response to hypotheticals" (see Wis. Stat. § 907.03), but any error was harmless.

Torts

Child Labor - Absolute Liability

Perra v. Menomonee Mutual Ins. Co., 2000 WI App 215 (filed 6 Sept. 2000) (ordered published 18 Oct. 2000)

Seventeen-year-old Jessica was injured while working on defendant's farm. She was operating a cement mixer, mixing seed, when her hand was caught in the gears. Jessica and her health-care insurer brought this action against defendant and his insurer. The judge granted partial summary judgment to defendants on the claim that Jessica's employment was dangerous or prejudicial to her life, health, safety, or welfare, contrary to Wis. Stat. section 103.65. Jessica and her insurer appealed this determination.

The court of appeals, in a decision written by Judge Snyder, affirmed. The issues raised questions regarding statutory and administrative rules governing child labor. As provided by Wis. Stat. section 103.66, the Department of Workforce Development (DWD) classified "hazardous" employment in Wis. Admin. Code § DWD 270.06. Those classifications are "exclusive and exhaustive" (¶11). Under DWD 270.06 "the agricultural employment prohibition is limited to minors from ages twelve through fifteen years." Thus, plaintiffs did not state a cause of action for absolute liability under section 103.65. (Her negligence claim was rejected by the jury and was not the subject of appeal.)