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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 |

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.

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.

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.

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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