Vol. 75, No. 6, June
2002
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
Attorneys
Malpractice - Plaintiff's "Innocence" - Statute of Limitations -
Emotional Distress
Hicks v. Nunnery,
2002 WI App 87 (filed 24 April 2002)
This is a lawyer malpractice action that arose from an underlying
criminal case. Nunnery represented Hicks on a criminal sexual assault
charge. Although the state offered expert testimony regarding hairs
found at the crime scene, neither the defense nor the state used DNA
testing. Hicks was convicted and imprisoned. At some later time, DNA
testing excluded Hicks as the source of some of the hair evidence. In
postconviction proceedings, the Wisconsin Supreme Court granted a new
trial in the interest of justice in light of the DNA evidence. Hicks was
never retried on the criminal charges because the state dropped the
charges.
Hicks then began this legal malpractice action against Nunnery. A
jury found Nunnery negligent because he failed to obtain DNA testing and
preserve the testimony of another witness. It awarded Hicks about $2.6
million in damages.
The court of appeals, in an opinion written by Judge Deininger,
reversed. The decision addressed numerous issues. First, the court held
Hicks' claim for "emotional distress" was governed by the six-year
period that governs injuries to the "character or rights of another," as
provided by Wis. Stat. section 893.53, not the three-year period for
"injuries to the person" provided by Wis. Stat. section 893.54.
Second, Nunnery argued that he was entitled to judgment
notwithstanding the verdict because Hicks had failed to prove "severe"
emotional distress, particularly in light of the absence of expert
testimony showing that Hicks suffered a "neurosis." The record in this
case revealed, however, that the special verdict asked the jury only a
"single, general damage question: `What amount of money, if any, will
fairly and reasonably compensate [Hicks] for the damages he sustained as
a result of his criminal conviction and incarceration?'" Moreover,
Nunnery did not object to the question or the accompanying jury
instruction, and injuries to Hicks' "good name and reputation" as well
as his years spent in prison also factored into the damages award. In
sum, on this record the failure to offer expert testimony on emotional
damages was not "fatal" to the verdict (¶¶ 29-31).
The third, and most significant, issue concerned whether Hicks had
the burden of proving his innocence of the underlying criminal charges.
Prevailing case law holds that a legal malpractice action consists of
four elements: 1) a lawyer-client relationship existed; 2) the defendant
was negligent; 3) the negligence caused the plaintiff's injuries; and 4)
the nature and extent of injuries. Elements 3 and 4 usually require
proof of the "suit within a suit" to demonstrate that the plaintiff
would have succeeded but for the lawyer's negligence.
A majority of states appear to require proof of the plaintiff's
"actual innocence" when the legal malpractice arises out of a criminal
case. The court of appeals was convinced that "public policy requires a
plaintiff in Hicks' position to provide he is innocent of the charges of
which he was convicted in order to prevail on the claim of legal
malpractice" (¶46). In so holding, the court recognized the
difficulty faced by plaintiffs in such actions, which amounts to proving
"a negative." It also "emphasize[d] that the question of a plaintiff's
innocence is in addition to, not a substitute for, a jury question
regarding whether the plaintiff would have been found guilty absent the
defendant's negligence" (¶50). On remand, a new trial will be
limited to Hicks' factual innocence, which is separable from findings
regarding negligence and cause (¶55).
The opinion also raised several ancillary issues concerning the
factual "innocence" element. The cause of action did not accrue, said
the court, until Hicks obtained a reversal. The court of appeals also
noted that other states require an "exoneration" element as a
precondition to bringing such malpractice actions, an issue the court
did not have to confront because Hicks had obtained "exoneration" (see
n. 11).
Finally, the opinion addresses several record-intensive,
case-specific issues. The court of appeals rejected Nunnery's claims
that the trial judge should have changed the verdict or granted him a
directed verdict. The record simply did not warrant such rulings.
Nunnery also failed to convince the court that the damage award was
"perverse" or "excessive."
Judge Dykman dissented on the ground that Wisconsin tort law,
properly understood, requires a "case-by-case" analysis of policy
considerations in determining whether a plaintiff, like Hicks, should be
required to prove his innocence (see ¶100).
Criminal Procedure
Right to Counsel - Forfeiture of Counsel - Required Findings by the
Trial Court
State v. Coleman,
2002 WI App 100 (filed 26 March 2002) (ordered published 24 April
2002)
In this case the court of appeals further developed the law as it
relates to defendants who forfeit their right to counsel by their
conduct and the procedures that circuit courts should observe when such
events occur. In this particular case the defendant was required to
represent himself at sentencing even though he had had the assistance of
counsel (actually two different attorneys) from the beginning of the
case up to and including the entry of no-contest pleas.
Some defendants proceed pro se after knowingly and intelligently
waiving their right to counsel. That did not happen in this case because
the record is clear that the defendant repeatedly indicated that he
wanted a third attorney after the circuit court allowed his second
counsel to withdraw. Instead, the state argued that the defendant
forfeited the right to counsel by virtue of his conduct.
A defendant may, by his or her conduct, forfeit the right to counsel.
The right cannot be manipulated to obstruct the orderly procedure for
trial or to disrupt the administration of justice. The triggering event
for forfeiture is when the court becomes convinced that the orderly and
efficient progression of the case is being frustrated by the defendant's
repeated dissatisfaction with his or her successive attorneys. However,
said the court, "forfeiture cannot occur simply because the effect of
the defendant's conduct is to frustrate the orderly and efficient
progression of the case. The defendant must also have the purpose of
causing that effect" (¶ 18).
The supreme court has recommended that a court contemplating
forfeiture of counsel make sure that the defendant understands the
implications of his or her actions. In State v. Cummings, 199
Wis. 2d 721, 546 N.W.2d 406 (1996), the court in a footnote recommended
that in the future, trial courts follow four steps advanced by the
Cummings dissenter for determining when a defendant has
forfeited the right to counsel. Those steps are to: 1) provide explicit
warnings that, if the defendant persists in specific conduct, the court
will find that the right to counsel has been forfeited; 2) engage in a
colloquy indicating that the defendant has been made aware of the
difficulties and dangers inherent in self-representation; 3) make a
clear ruling when the court deems the right to counsel to have been
forfeited; and 4) make factual findings to support the court's
ruling.
The court of appeals also concluded that, when a defendant engages in
conduct meriting forfeiture of the right to counsel, the trial court
must determine whether the defendant is competent to proceed without an
attorney. "The trial court should consider the defendant's education,
literacy, fluency in English, and any physical or psychological
disability which may significantly affect his or her ability to
communicate a possible defense" (¶ 34).
The court recognized that the preceding requirement places the
circuit court in a difficult position because many defendants whose
conduct merits forfeiture of counsel will not cooperate in a meaningful
colloquy on competence. "Under these circumstances, the court will have
to rely on the rest of the record to make a finding. If the record does
not establish the defendant's competence, the court cannot require the
defendant to proceed without counsel. The important point is that the
defendant's conduct does not relieve the court of the obligation to make
a finding whether the defendant is competent to proceed without counsel"
(¶36).
Search and Seizure - Warrantless Entry of Dwelling - Exigent
Circumstances
State v. Londo,
2002 WI App 90 (filed 5 March 2002) (ordered published 24 April
2002)
A police officer testified that in the late afternoon of the day in
question, she and her partner were flagged down by a citizen who told
them that she had heard the breaking of glass at the rear of a nearby
house and that she saw a man standing close to the house's back door.
The officers investigated the scene and observed that one of the glass
panels in the door was broken and that broken glass was on the ground
near the door, which was still locked.
The officers searched the immediate vicinity of the home but found no
one. When they returned after about five minutes, they noticed that a
window that previously had been closed was now open by about three feet.
The window was seven feet from the ground. The officer testified that
after she knocked on the door and got no response, she entered the house
through the window "to check the residence - inside the residence to see
if there was anybody else inside." Once inside, the officer called out
to see if anyone was home and got no response. The officer then searched
possible hiding places and during that search found a marijuana-growing
operation. The officers never saw anyone either inside or outside of the
house.
The circuit court granted the defendant's motions to suppress. It
ruled that the officers had probable cause to believe that there was a
burglary at the house but that there were no exigent circumstances that
justified their warrantless entry.
In a decision authored by Judge Fine, the court of appeals reversed.
It agreed with the trial court that the officers had probable cause to
search the house because of all the indications that someone had
unlawfully entered the premises. With regard to the warrantless entry,
the court began its analysis by noting that a warrantless search of a
home is presumptively unreasonable under the Fourth Amendment but that
exigent circumstances can justify immediate warrantless entry and
search. An analysis of whether the officers acted reasonably in entering
the home without a warrant is measured against the "totality of the
circumstances" and the test is an objective one: what a reasonable
police officer would reasonably believe under the circumstances.
On the facts as described above, the court concluded that the
possible grave danger to the occupants of the house outweighed the
intrusive aspects of the officer's warrantless entry and that,
objectively, "a reasonable police officer would have been aware of the
danger and the need to immediately go into the house to ensure that no
one was in jeopardy" (¶ 10). Put another way, "a reasonable officer
would have concluded that at least one person was in the house
unlawfully, possibly holding a resident hostage" (¶ 12).
The appellate court further concluded that the officers did not
exceed the permissible scope of their search. There was no evidence in
the record that the officers entered the house for any reason other than
to look for someone who might have entered the premises illegally.
Further, all of the evidence suggests that they looked only in places
where someone could hide and that they were not searching for
contraband.
Extradition - Transporting Wisconsin Prisoners from Out-of-state
Contract Facilities Back to Wisconsin
State ex rel. Jones v. Smith, 2002 WI App 94 (filed 27 March
2002) (ordered published 24 April 2002)
The petitioners are Wisconsin prisoners who were transferred in 1999
to a correctional facility in Texas pursuant to a contract entered into
by the Wisconsin Department of Corrections. They were brought back to
Wisconsin from Texas in 2000, traveling by van through several states,
including Illinois. While traveling through Illinois, they demanded that
they be released from custody, arguing that the government was required
to use the extradition process before forcibly taking them from Illinois
into Wisconsin. Their request was ignored.
Once back in Wisconsin, the petitioners filed a habeas corpus
petition, alleging that they were illegally brought into this state
without the benefit of the extradition process and that they are
therefore entitled to discharge from their sentences. The circuit court
denied the writ and the court of appeals, in a decision authored by
Judge Brown, affirmed. The court began its decision by observing that
the petitioners' argument, based on a fundamental misunderstanding of
extradition law, is entirely without merit. "We publish this decision as
precedent so that no further precious judicial resources need be
directed at this theory" (¶ 1).
Extradition is not a right conferred upon a prisoner. Rather, it is a
sovereign right of the asylum state and it is the state, not the
prisoner, that has the privilege to insist on formal extradition. The
fact that the petitioners were transported through Illinois and returned
to Wisconsin without use of the extradition process provides no basis
for discharge from their Wisconsin sentences. Illinois may have
complained and it could have insisted that Wisconsin use the extradition
process. However, since the prisoners were not fugitives but were merely
passing through Illinois in the continuing custody of Wisconsin agents,
Illinois had no connection to these prisoners and no reason to invoke
extradition. "There is simply no basis for [the petitioners] to assert a
claim in their own right that their custody in Wisconsin is illegal
because they were not extradited from Illinois" (¶ 10).
The court also rejected, as an argument without merit, the assertion
of the petitioners that Wisconsin intentionally waived its jurisdiction
over them and constructively discharged them from their sentences when
it transported them through Illinois and back to Wisconsin without using
the extradition process.
Restitution Orders - Remedy When Restitution-setting Procedures Not
Followed by Trial Court
State v. Krohn,
2002 WI App 96 (filed 5 March 2002) (ordered published 24 April
2002)
Wis. Stat. section 973.20(13)(c) establishes a variety of procedures
the court may use in setting restitution. In this case the circuit court
did not follow the statutory procedures. The issue before the court of
appeals was the proper remedy when such error occurs.
In a decision authored by Judge Schudson, the appellate court
concluded that the proper remedy is a remand to the circuit court for a
proper restitution determination and order. It rejected the defendant's
position that the appropriate remedy should be relief from any
obligation to pay restitution. Accordingly, the court remanded the case
to the circuit court with instructions to vacate the restitution order,
determine restitution in a manner consistent with the requirements of
the statute cited above, and enter the appropriate restitution
order.
Child Testimony - "Grandmother's Lap" - Newly Discovered
Evidence
State v. Shanks,
2002 WI App 93 (filed 13 March 2002) (ordered published 24 April
2002)
The defendant was convicted of sexually assaulting a 3-year-old
child. Shanks lived with the child's mother at the time of the
assault.
The court of appeals, in an opinion written by Judge Snyder, affirmed
the conviction. First, Shanks claimed that error occurred when the trial
judge permitted the young victim to testify from her grandmother's lap.
The court found no abuse of discretion. Case law and Wis. Stat. section
906.11 invest trial judges with considerable discretion regarding the
manner in which testimony is elicited. The judge knew that the child had
lived with the grandmother for "quite some time" and saw her mother only
infrequently. Indeed, her mother testified for the defense. Moreover,
the child was of "small size," and the judge instructed the grandmother
not to "coach the child in any way" (¶11).
Nor did the trial judge abuse his discretion in denying a
postconviction motion for a new trial based on newly discovered
evidence. The newly discovered evidence consisted of affidavits by two
individuals, including the child's mother, that cast doubt on the
mother's trial testimony and created the inference that the defendant
was not alone with the child during the time in question. The child's
mother had testified for the defense at trial. The court of appeals held
that the defense failed to show that: 1) the evidence first came to its
attention after trial; and 2) the defendant was not negligent in seeking
to discover it. During trial, the mother was "quite hazy regarding her
whereabouts." In short, the defense "was aware of the confusion
surrounding the activities" on the day in question and the possibility
that the mother had not left town on that date, leaving the victim alone
with the defendant. And since the defendant alleged that he was with the
mother and the other man on that night, he failed to explain "why he was
unaware, until after trial, of his own whereabouts on October 30, 1999"
(¶21). (The court also found that there was sufficient evidence to
support the guilty verdict.)
Trials - Racial "Stereotyping" - Ineffective Assistance
State v. Chu, 2002
WI App 98 (filed 26 March 2002) (ordered published 24 April 2002)
Defendant Chu, a 17 year o ld of Korean ancestry, was convicted of
arson with intent to defraud an insurer. The court of appeals, in an
opinion written by Judge Cane, affirmed.
Chu contended that his due process rights were violated because he
"was subjected to racial stereotyping suggesting that Korean sons are
automatons who blindly carry out the orders of their fathers even when
the orders involve criminal activity" (¶19). The court held that
there was no plain error on this record (Chu did not object to the
prosecutor's remarks at trial). Relying on a Seventh Circuit decision,
the court did "not view the prosecutor's statements as an attempt to
arouse prejudice toward Koreans. Rather, the statements were an attempt
to preview and summarize evidence demonstrating that Chu had a motive
for committing the arson: his personal belief, based on his upbringing
and culture, that he should remain loyal to his family" (¶26).
Chu also claimed unsuccessfully that his lawyer provided ineffective
assistance at trial. The record adequately supported the trial court's
determination that trial counsel's decisions not to hire an arson expert
or object to certain evidence were part of a reasonable trial
strategy.
Several other issues also were raised, including the state's alleged
failure to disclose exculpatory evidence, that are fact-intensive and
raise no novel applications of law.
Juvenile Law
CHIPS - Timing - Non-neglectful Parent
State v. Gregory
L.S., 2002 WI App 101
(filed 5 March 2002) (ordered published 24 March 2002)
The court of appeals, in an opinion written by Judge Cane, affirmed
an order adjudging five children to be in need of protection or service
(CHIPS) under Wis. Stat. section 48.13(10). Their father appealed,
raising two issues: "(1) whether children can be adjudicated in need of
protection or services when the divorced parents have joint custody, the
mother committed acts proscribed by Wis. Stat. § 48.13(10), and the
father can provide the necessary care for his children; and (2) even if
a CHIPS adjudication is permissible in this situation, whether the
adjudication can be made without providing the non-neglectful parent a
jury trial or an evidentiary hearing" (¶2).
The court held that "pursuant to Wis. Stat. § 48.31(2), it is
the circuit court's responsibility to determine whether the children
were in need of protection or services that the court could order on the
date the petition was filed. Here it was undisputed that as of the date
the petitions were filed, the children were in need of out-of-home
placement and their mother required counseling and mental health and
substance abuse assessments. Accordingly, the circuit court did not err
when it concluded that summary judgment in the state's favor was
appropriate." (¶41).
This holding, the court explained, recognizes "that children can be
adjudicated to be in need of protection or services even when only one
parent has neglected the children. ... Where, as here, the children were
neglected and seriously endangered by one parent, they may be
adjudicated in need of protection or services." (¶42) Put
differently, the court rejected the father's contention "that the court
should consider conditions as they exist on the date of the fact-finding
hearing, as this would allow the court's jurisdiction over the child to
change daily, depending on the circumstances in the home on a particular
day" (¶4). If the children are no longer in need of such
protection, the circuit court may make appropriate orders.
Municipal Law
Liquor Licenses - Renewal of "Void" Licenses
Williams v. City of Lake
Geneva, 2002 WI App 95 (filed 13 March 2002) (ordered published
24 April 2002)
In 1999 the city of Lake Geneva issued a 1999-2000 Class B liquor
license to the intervening defendants (the Condoses). The license was
void and never should have been issued because the notice of application
for the license had not been published as required by Wis. Stat. section
125.04(3)(g). The critical issue in this case was the validity of a
renewal of the void license for the 2000-2001 license period.
In a decision authored by Judge Anderson, the court of appeals
concluded that a renewal of an absolute nullity (that is, the void
license) is itself an absolute nullity and affords no protection to the
licensee. Once it was determined that the 1999-2000 license was void,
the Condoses could not apply for a renewal of that void license. The
only way for them to obtain a valid license was to file an application
for an original alcohol beverage license. "In short, the 2000-2001
license, like the 1999-2000 license, was void by virtue
of it being a `renewal' of a void license" (¶ 14).
Torts
Pleading Negligence - CBRFs - Code and Statutory Violations - Private
Rights
Farr v. Medicare Part
A, 2002 WI App 88 (filed 28 March 2002) (ordered published 24
April 2002)
Clara Farr, an 85 year old diagnosed with dementia, resided at a
community-based residential facility (CBRF) when she "eloped" on a
winter day and suffered frostbite. Farr sued the facility for negligence
and sought punitive and compensatory damages. The court later granted
her permission to file a second amended complaint that did not use the
word "negligence" but instead framed the cause of action "in terms of
Farr's rights" under Wis. Stat. chapter 50 and Wis. Admin. Code §
HFS 83. When the facility moved for summary judgment on the ground that
the second complaint alleged no "private cause of action," Farr
requested that she be permitted to "revert back" to the first complaint.
The trial court granted the facility's motion for summary judgment.
The court of appeals, in an opinion written by Judge Deininger,
reversed. The court held that the second complaint, "liberally
construed, states a claim for negligence" (¶10). More precisely,
the complaint alleged that the facility undertook a duty to care for
Farr, that it failed to do so in various ways, and as a result, Farr
suffered injuries.
The court next addressed "whether Farr may on remand pursue a claim
for relief grounded solely on alleged statutory or code violations,
irrespective of any negligence on the part of [the facility] or its
employees" (¶13). The record revealed that the facility had failed
to comply with various provisions of Wis. Admin. Code § HFS 83 both
in general and in connection with Farr's elopement. Farr claimed that
she had a private right of action under the code and Wis. Stat. chapter
50. Section 50.10, however, only applies to nursing homes, not CBRFs,
and its private remedies are limited to an action for mandamus or
injunctive relief. In sum, the court found no clear legislative intent
to permit CBRF residents to sue for compensatory and punitive damages
under chapter 50, "based solely on alleged violations of the standards
for CBRFs set out in the statutes or administrative code"
(¶16).
Worker's Compensation
Civil Procedure - Summons and Complaint - Parties
Selaiden v. Columbia
Hospital, 2002 WI App 99 (filed 5 March 2002) (ordered
published 24 April 2002)
In this worker's compensation case, the Labor and Industry Review
Commission (LIRC) issued a ruling adverse to the worker. She then
appealed to the circuit court. Although the summons and complaint named
Sentry Insurance in the caption, the body of the complaint did not
mention Sentry. About 50 days after the entry of LIRC's order, the
worker moved to amend the complaint. The judge granted Sentry's motion
to dismiss on the ground that the version of the complaint filed within
30 days of LIRC's order did not mention Sentry in the body of the
complaint and for this reason the court lacked competency to decide the
merits of the appeal.
The court of appeals, in an opinion written by Judge Fine, reversed.
The prime issue was whether the worker "complied with Wis. Stat. §
102.23(1) by naming Sentry in the caption to a summons and complaint
that were timely filed and served, even though Sentry was not mentioned
in the complaint's body" (¶6). The court held that "unlike a
situation where an adverse party has only anecdotal knowledge of the
appeal from the Commission's determination, Sentry not only had formal
notice of the pendency of the appeal from the Commission's determination
in its favor, but it also knew the grounds upon which the appeal was
based because those grounds were set out in the complaint" (¶9)
(citations omitted). (Sentry had been timely served with the summons and
complaint.) The only information "missing" from the original complaint
"was the allegation about Sentry's corporate status and address."
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