Court of Appeals Digest
This column summarizes selected published opinions
of the Wisconsin Court of Appeals. 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.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Civil
Procedure
Discovery Violation - Excluded Evidence - "Egregious
Conduct"
Sentry Ins. Co. v.
Davis, 2001 WI App 203 (ordered published 26 Sept. 2001)
Sentry Insurance brought a declaratory judgment action seeking a
declaration that its policy did not provide liability coverage to Davis,
its insured. The trial court refused to consider a document produced by
Sentry after the discovery and briefing deadlines had passed. Based on
the record before it, the court found that Sentry's policy did provide
coverage. Sentry appealed.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. The record clearly demonstrated that Sentry had violated the
trial court's discovery and briefing orders. The argument on appeal
concerned the severity of the sanctions. The court of appeals analyzed
the exclusion of the "new" document as "effectively 'causing the
ultimate dismissal' of a plaintiff's case," a determination that
requires findings of (1) egregious conduct, and (2) no "clear and
justifiable excuse" for the violations. Since Sentry failed to offer any
reason for its tardy production of the document, it had no "clear and
justifiable excuse." As to the first factor, the court clarified that
"egregious" and "bad faith" are not synonymous. Absent bad faith,
Sentry's conduct was nonetheless sufficiently "egregious," especially in
light of the "timeline of significant events in the litigation" (
22).
Discovery - Bad Faith - Default Sanction
Brandon Apparel Group Inc.
v. Pearson Properties Ltd., 2001 WI App 205 (ordered published
26 Sept. 2001)
Based on a finding that the plaintiff had engaged in bad-faith
discovery practices, the circuit court awarded default judgment to the
defendant, including damages for counterclaims. The court of appeals, in
an opinion written by Judge Roggensack, affirmed.
First, case law supported the grant of default judgments as sanctions
based on findings of bad faith, as when a party intentionally delayed,
obstructed, or refused the requesting party's discovery demands. The
record demonstrated a "clear and continuing pattern of intentional,
deliberate discovery violations," including the plaintiff's refusal to
attend his deposition despite a court order ( 14). Furthermore, a court
can grant a default judgment for such misconduct without having to
consider the imposition of a lesser sanction.
Second, the trial court was not required to receive additional
evidence of damages for purposes of the default judgment. Here the
offending party did not contest a third-party complaint that claimed
damages of $500,000 under terms of a "side agreement" and an additional
$500,000 as a sanction. Nor did he ever request a hearing to dispute the
damages amount.
Criminal Procedure
Expert Testimony - Compelled Psychological
Examination
State v. Davis,
2001 WI App 210 (ordered published 26 Sept. 2001)
The defendant was charged with sexually assaulting a child. Pursuant
to State v. Richard A.P., 223 Wis. 2d 777 (Ct. App. 1998), he
notified the court that he intended to offer expert psychological
testimony to the effect that he did not fit the "profile of a sex
offender" and was therefore "unlikely" to have committed these crimes.
The state moved the court for an order compelling the defendant to
submit to a psychological examination by its own expert. The defendant
declined and the trial court ruled that such a compulsory examination
violated his right against self-incrimination.
In this interlocutory appeal, the court of appeals, in an opinion
written by Judge Brown, reversed. The court held, in summary, that "a
defendant who presents such expert testimony puts his or her mental
status in issue and thereby waives the right against
self-incrimination." For this reason, a "defendant who manifests the
intent to introduce Richard A.P. testimony may be ordered to submit to a
psychiatric evaluation by an expert chosen by the State" ( 1).
First, the right against self-incrimination does not prohibit the
compulsory examination by the state's expert when the defense proffers
its own expert. Undoubtedly such experts rely heavily on statements made
by the defendant. "A defendant who intends to present Richard A.P.
evidence through an expert is using that expert as a conduit for
presenting the defendant's statements about his or her sexual history,
sexual preference, and sexual attitudes. Were the defendant to take the
stand and testify about these subjects, he or she would be deemed to
have waived his or her privilege and would be required to submit to
cross-examination. The defendant cannot be permitted to avoid this
result by using an expert as a surrogate" ( 9). Moreover, considerations
of fairness and the "quest for truth" fully supported the rule of
reciprocal access to the defendant.
The court also refused to distinguish between a defense that focuses
on an element of the offense and an affirmative defense. Finally, the
court held that should the defendant submit to an examination conducted
by the state's expert yet decide not to offer Richard A.P. evidence at
trial, the state is foreclosed from "introducing any evidence derived
from the state-sponsored exam on the issue of guilt" ( 20).
Consent to Search - Prior Testimony - "Dangerous
Weapons"
State v.
Tomlinson, 2001 WI App 212 (ordered published 26 Sept.
2001)
A jury convicted the defendant of first-degree reckless homicide for
killing the victim with a baseball bat. The court of appeals, in an
opinion written by Judge Wedemeyer, affirmed. The court rejected three
claims of error. First, the trial court properly found that police had
consent to search the defendant's home. A "teenage girl" opened the door
for police, permitted them to enter, and allowed them to "follow her
into the house." Reasonable inferences supported a finding that the girl
was the defendant's daughter, who had "common authority" over the home.
On this point the court was persuaded by case law from other
jurisdictions that "a teenage child has actual common authority to
consent to an entry, at least into the common areas of the shared home"
( 18). The record demonstrated that the girl (possibly age 14 or 15) had
"acquired the discretion to admit persons of [her] own authority" ( 19).
Moreover, the defendant was present in the kitchen and did not object to
the officers' presence.
Second, the court upheld the admissibility of a key witness's
testimony given at the preliminary examination. The testimony was
admissible under the former testimony exception to the hearsay rule,
Wis. Stat. section 908.045(1). It also satisfied the Sixth Amendment
confrontation right because the evidence fell within a "firmly rooted"
exception. Moreover, the witness was unavailable because, when called by
the state, he repeatedly asserted his right against self-incrimination
despite the trial court's direction that he testify regardless. Although
agreeing that a "more complete record" would have been made had the
judge held the witness in contempt, the trial transcript demonstrated
that the witness "persistently refused to answer the questions, and
there was no offer of proof that further inquiry would have made a
difference to [him]" ( 29). Finally, the defendant's "opportunity" to
cross-examine the witness at the preliminary examination was sufficient
for both confrontation and hearsay purposes.
Third, the defendant conceded the factual issue of whether a baseball
bat is a dangerous weapon. Thus, the court of appeals was not forced to
consider whether it was plain error for the judge to in effect direct a
verdict on this issue by an instruction that stated, "Dangerous weapon
means a baseball bat."
Insanity Plea - Bifurcated Trial - State Cannot Call
Defendant Adversely in Responsibility Phase
State v.
Langenbach, 2001 WI App 222 (ordered published 26 Sept.
2001)
The defendant was charged with numerous felonies and initially
entered pleas of not guilty and not guilty by reason of mental disease
or defect. Subsequently, he entered pleas of no contest to the charges,
but retained his pleas of not guilty by reason of mental disease or
defect.
A jury was scheduled for the mental responsibility phase of this
case. Prior to trial, the state filed a motion asking to call the
defendant adversely as a witness during this phase, arguing that he had
no Fifth Amendment privilege at this stage of the proceeding. The trial
court denied the motion. This interlocutory appeal followed.
In a decision authored by Judge Snyder, the court of appeals
affirmed. It held that the defendant's Fifth Amendment privilege against
compelled testimonial self-incrimination continues through the mental
responsibility stage of his criminal trial. Said the court, "it is
irrelevant that [the defendant] has already pled guilty; his Fifth
Amendment privilege does not terminate after his guilty plea but
continues with him through disposition and a potential appeal" (
11).
Search and Seizure - "Automobile Exception" to the Warrant
Requirement
State v.
Marquardt, 2001 WI App 219 (ordered published 26 Sept.
2001)
This case addresses numerous search and seizure issues. Among them
are several relating to the "automobile exception" to the warrant
requirement and whether its application is limited to searches of
vehicles located in public places. On these issues the facts are brief.
The defendant was arrested at his home. At the time of the arrest, his
locked vehicle was parked in his driveway. That vehicle was confiscated
and subsequently searched without a search warrant.
Under federal law the elements required to satisfy the automobile
exception to the warrant requirement have changed over time. Currently,
a warrantless search of a vehicle does not offend the Fourth Amendment
[or its counterpart in the Wisconsin Constitution] if there is probable
cause to search the vehicle and the vehicle is readily mobile. Issues
concerning whether the police could have obtained a warrant before
searching are not relevant to the analysis. See 31.
In this case, the court concluded that there was probable cause to
search the defendant's vehicle and that the vehicle was readily mobile.
With regard to the latter, the court rejected the defendant's argument
that once he was arrested, the vehicle was no longer readily mobile. His
arrest would not prevent other unknown individuals from moving the
vehicle. Further, the court was not concerned by the fact that the car
was seized and impounded before it was searched. The U.S. Supreme Court
has held that the justification to conduct a warrantless search does not
vanish once the car has been immobilized.
The defendant also challenged the application of the automobile
exception in this case, with the argument that the exception only
applies to vehicles in public places. Rejecting this argument, the court
observed that the U.S. Supreme Court in its more recent automobile
exception cases has not recognized a public place requirement. And the
court could identify no controlling precedent under the Wisconsin
Constitution that would compel a different result.
Lastly, the defendant argued that the police should have obtained a
warrant because there was no danger of the car being driven away or any
evidence therein being destroyed. Again, relying on contemporary U.S.
Supreme Court analysis, the court of appeals concluded that the fact
that the officers in this case could have secured a warrant, either
before towing the vehicle or before searching it at the police station,
did not render the automobile exception inapplicable.
Habitual Criminality - Post-arraignment Addition of Repeater
Allegation Pursuant to Plea Agreement
State v. Peterson,
2001 WI App 220 (ordered published 26 Sept. 2001)
The defendant was charged with multiple felonies and initially
entered pleas of not guilty at his arraignment. Although he had a prior
criminal record, neither the complaint nor the information charged him
as a repeater under the habitual criminality statute. Thereafter, the
parties entered into a plea negotiation whereby the state would file an
amended information reducing the charges but adding allegations of
habitual criminality. The court permitted the filing of the amended
information, the defendant pled guilty to the charges therein, and
judgments of conviction were entered. The court used the increased
imprisonment time available under the repeater statute when it sentenced
the defendant.
On appeal, the defendant claimed that the trial court lacked
authority to sentence him as a repeater because the state had not
charged him as such prior to the arraignment in his case. He relied on
Wis. Stat. section 973.12(1) and cases construing it that require
allegations of habitual criminality to be furnished before arraignment
and the acceptance of any plea.
In a decision authored by Judge Vergeront, the court of appeals
concluded that section 973.12(1) does not prohibit a defendant from
agreeing, after arraignment and entry of a not guilty plea and as part
of a plea agreement, to amend the information to add repeater
allegations. Among other reasons for its decision, the court could see
no purpose served by interpreting the statute to prevent a defendant
from agreeing to add repeater allegations to an information as part of a
plea agreement. Since a defendant need not agree to that amendment,
presumably a defendant will agree only when he or she perceives it is in
his or her interest to do so.
Restitution - Police Overtime Costs to Apprehend Defendant in
a Standoff Situation
State v. Ortiz,
2001 WI App 215 (ordered published 26 Sept. 2001)
The defendant was convicted of numerous offenses, including failure
to comply with an officer's attempt to take a person into custody by
remaining in a building while armed with a dangerous weapon, obstructing
an officer while armed, disorderly conduct while armed, and threatening
to injure another while armed. At sentencing, the state sought
restitution to the City of Racine for $9,409, which represented overtime
costs of the city's police department that were incurred because of a
police standoff with the defendant when he was arrested.
The circuit court sentenced the defendant to three years in prison on
the threat to injure charge. As to the other counts, the court imposed
and stayed sentences and placed the defendant on probation. The court
ordered the defendant to pay restitution to the city in the amount
requested by the state. [Note: As treated by the court of appeals, this
restitution order was imposed as part of the sentence but was not a
condition of probation.]
The defendant appealed and the court of appeals, in a decision
authored by Judge Nettesheim, reversed. The court began its analysis by
noting that restitution in criminal cases is governed by Wis. Stat.
section 973.20, which imposes a mandatory duty on the sentencing court
to order restitution to the "victim" of a crime. The appellate court
held that the city was not an actual or direct victim of the defendant's
criminal conduct and, therefore, the trial court was without authority
to order restitution for the overtime expenses incurred by the city in
investigating and apprehending the defendant. It is true that a
governmental entity can, in the appropriate case, be a victim entitled
to restitution, such as when the defendant's conduct directly causes
damage or loss to the governmental entity. When his or her conduct only
indirectly causes damage or loss to the governmental entity, the entity
is a passive and not a direct victim and is not entitled to restitution.
See 20.
In this case, the court recognized that the police were agents of the
city. However, "the fact remains that it was the police, not the city,
who were the direct and actual victims of [the defendant's] crimes" (
22). The defendant did not threaten to injure the city - he threatened
to injure the officers. He did not fail to comply with an attempt by the
city to take him into custody; instead, he failed to comply with the
police effort to take him into custody. He did not obstruct the city -
he obstructed the police. And finally, his disorderly conduct was not
targeted at the city but was targeted at the police. In sum, the police,
not the city, were the actual victims of the defendant's offenses and,
accordingly, the city cannot recoup its collateral expenses in
apprehending the defendant.
In a footnote the court also rejected the state's alternative
argument that the restitution was valid as an item of costs relating to
the defendant's arrest pursuant to Wis. Stat. section 973.06(1)(a). The
rationale for this conclusion was that the overtime expenses were
incurred in the normal course of the police operation to investigate and
apprehend the defendant.
Insurance
Bad Faith - Bifurcation
Dahmen v. American Family
Mut. Ins. Co., 2001 WI App 198 (ordered published 26 Sept.
2001)
The Dahmens' complaint against their insurer, American Family,
involved two claims: (1) they were entitled to underinsured motorist
(UIM) coverage; and (2) American Family had acted in bad faith in
denying the UIM claim. The trial court denied the insurer's motion to
bifurcate the claims and stay discovery on the bad faith claim until the
UIM issue had been resolved.
The court of appeals, in a decision written by Judge Nettesheim,
reversed. The UIM coverage issue focused on the amount of the
plaintiffs' damages in the underlying dispute: Did their damages exceed
the $50,000 coverage limit of the underlying policy? In summary, the
court held that bifurcation was appropriate because: "(1) the failure to
bifurcate a claim of bad faith from an underlying claim for UIM benefits
would significantly prejudice American Family; (2) the two distinct
claims present differing evidentiary requirements that increase the
complexity of the issues and the potential for jury confusion; and (3) a
separate initial trial on the claim of UIM benefits increases the
prospect of settlement and promotes economy by narrowing the issues for
the jury and potentially eliminating the need for a later trial on the
bad faith claim" ( 20).
In particular, prejudice would arise because the bad faith claim
entitles the plaintiffs to "discovery of American Family's work product
and attorney/client material containing information relevant as to how
the Dahmens' claim was handled" ( 13). This would include the insurer's
"internal determinations" and its approach to settlement. Neither
carefully drafted jury instructions nor special verdicts would allay the
harm; only bifurcation sufficed.
Motor Vehicle Law
OWI - Constitutionality of Blood Draw When Defendant Offers
to Take Breath Test
State v. Wodenjak,
2001 WI App 216 (ordered published 26 Sept. 2001)
The defendant, who had a prior record for OWI offenses, was arrested
for another OWI offense. The state trooper who arrested him had access
to a functioning IntoxilyzerTM machine at the time of the arrest.
However, State Patrol policy provided that the primary test for repeat
OWI offenders is a blood test. Therefore, the trooper transferred the
defendant to a local hospital for a blood draw.
At the hospital the trooper advised the defendant about the implied
consent law and asked him if he would submit to a blood test. The
defendant responded by asking if he could take a breath test. The
trooper rejected this request, and the defendant then refused to take
the blood test. The trooper then advised the defendant that, despite the
implied consent refusal, the State Patrol policy required a blood sample
from a repeat offender with or without the offender's consent. The
defendant then changed his mind and submitted to the blood test.
Once the criminal OWI prosecution was commenced, the defendant moved
to suppress the results of the blood test, arguing that there was no
exigency under the Fourth Amendment permitting the police to perform a
blood test because he had previously offered to submit to a breath test.
The motion was denied and the defendant subsequently was convicted.
In a decision authored by Judge Nettesheim, the court of appeals
affirmed. At the outset of its analysis the court observed that the
Fourth Amendment, not the law of implied consent, should control the
outcome of this case. See 5 n. 6. The seminal Fourth Amendment case in
Wisconsin regarding warrantless blood draws is State v.
Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). According to
Bohling, a warrantless blood sample taken at the direction of a law
enforcement officer is permissible under the following circumstances:
(1) the blood draw is taken to obtain evidence of intoxication from a
person lawfully arrested for a drunk-driving related violation or crime;
(2) there is a clear indication that the blood draw will produce
evidence of intoxication; (3) the method used to take the blood sample
is a reasonable one and is performed in a reasonable manner; and (4) the
arrestee presents no reasonable objection to the blood draw. A forcible
warrantless blood draw does not violate the Fourth Amendment if the
conditions specified in Bohling are satisfied. The defendant did not
cite to any law, and the court of appeals was unaware of any, that holds
that the availability of less invasive alternative tests changes the
holding of Bohling and its progeny or that the police must consider such
alternate tests when deciding whether to obtain a blood draw from a
suspect. See 12.
"In summary, both the United States Supreme Court and the Wisconsin
Supreme Court have put their constitutional stamp of approval on the
warrantless taking of a blood draw subject to certain conditions and
controls. Those conditions and controls do not require the police to
consider alternate tests. Therefore, [the defendant's] request for the
less invasive breath test and the availability of such a test did not
deprive [the state trooper] of his authority to obtain a blood sample
from [the defendant] under Bohling" ( 13).
Municipal Law
Annexation - "Contiguous" Properties
Town of Campbell v. City of
La Crosse, 2001 WI App 201 (ordered published 26 Sept.
2001)
The City of La Crosse annexed four properties from the Town of
Campbell. A river separates the city from these properties and, although
a bridge spans the river, it does not directly connect the city to any
of the annexed properties and at no point do the dry lands of the city
and the annexed properties meet.
These annexations were made pursuant to a petition for direct
annexation. Wisconsin Statutes section 66.021(2)(a), which governs
petitions for direct annexation, provides that "territory contiguous to
any city or village may be annexed thereto" subject to various
conditions that are not at issue in this case.
The town filed lawsuits challenging the validity of the annexation
ordinances, contending that the river separates the annexed properties
from the City of La Crosse and therefore the properties are not
"contiguous" to any part of the city. The circuit court granted the
town's motion for summary judgment.
The court of appeals, in a decision authored by Judge Lundsten,
reversed. The court concluded that the term "contiguous" plainly
includes properties that are in physical contact and that, in this case,
the annexing and annexed properties are in physical contact along the
river bed. The court was unable to identify any authority for the
proposition that a river running over the point of contact renders
properties noncontiguous. The property of the City of La Crosse meets
the annexed properties at the center of the river bed of the river that
separates them. The court concluded that the annexed properties are
therefore "contiguous" to the city within the meaning of the statute
cited above.
Torts
Health Care Providers - "Custody and Control" Rule - Safe
Place - Peer Review
Hofflander v. St.
Catherine's Hospital Inc., 2001 WI App 204 (ordered published
26 Sept. 2001)
The plaintiff was involuntarily committed under Wis. Stat. chapter 51
to St. Catherine's Hospital following a suicide threat. During her
two-day confinement she was "volatile and uncooperative." The plaintiff
was injured when she fell from a third-story window while attempting to
"escape." Her claim against the hospital alleged negligence and safe
place violations. The trial court granted summary judgment in favor of
the defendants. The judge ruled that the plaintiff's negligence exceeded
that of the health care providers as a matter of law. Applying
Jankee v. Clark County, 2000 WI 64, the court also ruled that
the "custody and control" rule did not apply because the plaintiff's
conduct was not foreseeable.
The court of appeals, in a decision written by Judge Brown, reversed
and remanded. First, the court addressed the "custody and control" rule
advanced in Jankee, which held that a "mentally disabled plaintiff may
expunge the affirmative defense of contributory negligence if: (1) a
special relationship existed, giving rise to a heightened duty of care;
and (2) the caregiver could have foreseen the particular injury that is
the source of the claim" ( 15). As a matter of law, both the hospital
and its manager, Horizon, had such a special relationship. The hospital
acquired the special relationship because of the "involuntary nature" of
the plaintiff's commitment. Horizon's "clinical management
responsibilities" triggered its status. More important, the court held
that the defendant's foreseeability was not confined to the precise
manner of the "elopement" (escape) in this case; namely, the risk that a
patient would remove a window air conditioner and attempt to shimmy down
three floors using bed sheets as ropes. Rather, the appropriate focus is
on the risk of elopement itself, regardless of the form it takes. On
this issue the record yielded "sufficient reasonable alternative
inferences" that required findings by a jury; thus, summary judgment was
inappropriate.
Second, the court addressed the safe place claim and the defendants'
assertions that the plaintiff was a "trespasser" because she attempted
her escape from another patient's room. The court found as a matter of
law that "a person involuntarily committed to a locked psychiatric unit
cannot be considered a trespasser" ( 27). The hospital also argued that
the plaintiff created the "unsafe condition" by removing a window air
conditioner; she contended that the air conditioner was "loose," which
made it easier for her to remove. When determining whether an unsafe
condition existed on the premises, said the court, "we must consider the
use or purposes the premises serve." The issue was not, however, ripe
for summary judgment. The court remanded for a jury "to determine
whether a loose air conditioning unit, located in a room used by
mentally disturbed patients, was an unsafe condition and, if so,
whether" the defendants had constructive notice of the condition (
30).
Third, the court rejected the plaintiff's argument that she was
entitled to discover "JCAHO" site surveys that ostensibly related to the
hospital's constructive notice of "environmental safety issues,"
including security of the window air conditioners. Addressing an issue
of first impression, the court held that such site surveys are
privileged peer review documents under Wis. Stat. section 146.38, which
is designed to "encourage candid and voluntary studies and programs used
to improve hospital conditions and patient care" ( 36). Thus, they are
not subject to discovery.
Water Law
Dockominiums - Public Trust Doctrine
ABKA Limited Partnership v.
Wisconsin Department of Natural Resources, 2001 WI App 223
(ordered published 26 Sept. 2001)
ABKA is a limited partnership that privately owned a 407-slip marina
on Lake Geneva in Walworth County. In 1995 it filed a condominium
declaration to convert and sell the marina boat slips to private owners
as "dockominium" units. The dockominium concept is, in essence, a
condominium type of ownership of the marina. Technically, the
declaration defines the dockominium unit as a cubicle of space in a
lock-box located within a building on marina property. The lock-box
itself has no inherent value, but appurtenant to the lock-box is the
exclusive use of an assigned boat slip.
By definition, a "boat slip" is a "docking place for a ship between
two piers." In other words, a boat slip is the water and the lake bed
under the water. Therefore, as characterized by the court of appeals,
ABKA is attempting to convey a portion of the waters of Lake Geneva to
the dockominium unit owners. In a majority decision authored by Judge
Snyder, the court of appeals concluded that ABKA's dockominium proposal
is in direct conflict with the public trust doctrine, according to which
the state is directed to act as trustee of the waters within its borders
and to protect the public's right to use the waters.
Judge Brown filed a dissenting opinion.
Wisconsin Lawyer
