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    Wisconsin Lawyer
    July 01, 2002

    Court of Appeals Digest

    Daniel Blinka; Thomas Hammer

    Wisconsin Lawyer
    Vol. 75, No. 7, July 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

    * *

    Civil Procedure

    Settlements - "Subscribed" - Wis. Stat. Section 807.05

    Laska v. Laska, 2002 WI App 132 (filed 30 April 2002) (ordered published 29 May 2002)

    The plaintiffs alleged that the defendant had wrongfully interfered with their anticipated inheritance. During a mediation session, the parties reached an apparent settlement that was reduced to a memorandum. None of the parties signed it. Several days later the defendant's attorney sent a letter to the court notifying it that a settlement had been reached and asking that the trial date be canceled. About a month later, the defendant's attorney advised the court that his client refused to sign the settlement agreement and accompanying disclaimer and asked the judge for a new scheduling order. The trial court ruled, however, that by their conduct the parties had "subscribed" to the agreement for purposes of Wis. Stat. section 807.05.

    The court of appeals, in an opinion written by Judge Cane, reversed. A "subscription" differs from a personal handwritten signature. A subscription may be evidenced by a rubber-stamped signature, for example. Nonetheless, "the plain meaning of the term `subscribe' requires that a party's assent or approval be formalized in some way on the document itself. ... Although the signature need not be handwritten, the term `subscribed' cannot be read to dispense altogether with a written indication of assent." (¶12)

    Verdicts - "Clerical Error"

    Grice Engineering Inc. v. Szyjewski, 2002 WI App 104 (filed 11 April 2002) (ordered published 29 May 2002)

    In post-trial motions, the plaintiff alleged that the jury foreperson inadvertently wrote "$2,400" on the verdict when the jury had actually agreed on "$24,000." The trial court listened to evidence and corrected the verdict to reflect $24,000.

    The court of appeals, in an opinion written by Judge Lundsten, affirmed. In order to prove a clerical error in a verdict, the proponent must comply with three prerequisites: "(1) the presentation of competent evidence, (2) a showing of `substantive grounds sufficient to' permit correction of the clerical error, and (3) a showing of resulting prejudice." (¶11) In this case, the jurors' affidavits satisfied the first element because they apparently averred only that the written verdict did not coincide with the "true verdict," and did not relate the substance of the jury's deliberation, as proscribed by Wis. Stat. section 906.06.

    The defendant argued that there was insufficient proof that clerical error had occurred both because of the lapse of time and because of failure to show that all 12 jurors agreed on the correction. Here, however, the proponent of the correction acted promptly upon learning of possible clerical error. Within one week of getting the news from an anonymous caller, it began contacting jurors and had affidavits from 11 of 12 within two weeks (a lapse of approximately eight weeks since the verdict). The court found nothing "inherently excessive" about an eight-week time period. (¶21) Moreover, the circumstances also suggested that the correction was accurate; for example, the verdict was returned after midnight of the fourth day of trial, and the error amounted to a missing zero left of the decimal point. The court also was satisfied that there was sufficient agreement among jurors. Although one juror had allegedly "guessed" that the correct amount was $24,000, the court held that "because this is a civil case requiring only five-sixths of the jurors to agree on a verdict, [the proponent] needed to present supporting affidavits from just five-sixths of the jurors." (¶25)

    Judge Roggensack concurred and wrote separately to raise the issue, unexamined by the parties, regarding the standard of proof for impeaching verdicts.

    Criminal Law

    Multiplicity - Multiple Convictions for Aggravated Battery and Battery by a Prisoner

    State v. Davison, 2002 WI App 109 (filed 24 April 2002) (ordered published 29 May 2002)

    As a result of a plea negotiation, the defendant was convicted of aggravated battery (Wis. Stat. section 940.19(6)) and battery by a prisoner (Wis. Stat. section 940.20(1)) for conduct arising out of the same incident and involving a single victim. Other serious charges were dismissed but read in for purposes of sentencing. A critical issue on appeal was whether the dual convictions for aggravated battery and battery by a prisoner were multiplicitous.

    Wis. Stat. section 939.66 provides that a person may not be convicted of both the charged crime and a lesser included offense thereof. In its specification of included crimes, the statute further provides that an included crime may be "a crime which is a less serious or equally serious type of battery than the one charged." See Wis. Stat. § 939.66(2m). In a decision authored by Judge Anderson, the court of appeals concluded that the dual convictions in this case violated this statute, that the two battery charges were thus multiplicitous, that there was a double jeopardy violation, and that these claims were not waived by the defendant's guilty plea.

    With regard to the remedy for this violation, the defendant asked the court of appeals to reverse with directions to vacate one of his multiplicitous battery convictions. The appellate court did not grant that request, but instead remanded to the trial court to examine available remedies that would fit the circumstances of this case and that take into consideration both the defendant's and the state's interests. The court observed that the state gave substantial concessions to the defendant in return for the guilty plea on the battery counts and that the state relied on the defendant's agreement when dropping other substantial charges against him.

    Dual Prosecutions Under Both Federal and State Law - Double Jeopardy - Wis. Stat. Section 939.71

    State v. Lasky, 2002 WI App 126 (filed 16 April 2002) (ordered published 29 May 2002)

    As a result of a single bank robbery, the defendant was charged with both federal and state criminal offenses. In federal court he was charged with aggravated bank robbery, to which he pled guilty and for which he was sentenced to prison. In the state prosecution he was charged with armed robbery and other crimes.

    The defendant moved to dismiss the state armed robbery charge on the ground that the prosecution violated Wis. Stat. section 939.71. This statute provides that "if an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits of one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require."

    The circuit court denied the motion to dismiss the state prosecution on the basis of section 939.71, and the defendant ultimately pled no contest to armed robbery, receiving a prison sentence consecutive to the federal sentence.

    In a decision authored by Chief Judge Kane, the court of appeals affirmed the state armed robbery conviction. As an initial matter, it concluded that the defendant did not waive his section 939.71 challenge by entering the no-contest plea. The guilty-plea-waiver rule does not apply to double jeopardy violations, and section 939.71 is closely related to the double jeopardy protection.

    After analyzing the federal and state crimes for which the defendant was prosecuted, the court further concluded that each required proof of a fact for conviction that the other did not require. The federal crime mandates proof that the victim was assaulted or that his or her life was placed in jeopardy. This is not an element in a Wisconsin armed robbery prosecution. Further, the Wisconsin offense requires proof of a specific intent to steal, whereas the federal offense is only a general intent crime. Accordingly, the state prosecution for armed robbery was not barred by section 939.71.

    Criminal Procedure

    Restitution - Special Damages - Lost Employee Time

    State v. Rouse, 2002 WI App 107 (filed 11 April 2002) (ordered published 29 May 2002)

    The defendant was convicted of one count of forgery; another eight counts of forgery were dismissed but read in for purposes of sentencing. At the sentencing hearing, the state requested that the defendant be ordered to compensate Wisconsin Community Bank (the bank of the two individuals who were the victims of these forgeries) for the time the bank's employees spent researching the forgery allegations. The circuit court ordered the restitution as requested by the state.

    In a decision authored by Judge Dykman, the court of appeals affirmed. It observed that the damage incurred by the bank as a result of the defendant's activities was not the payment of additional wages, because the employees were salaried and the bank did not pay them any extra compensation for the time they spent investigating the defendant's forgeries. Rather, the bank's damage was the loss of the value of its employees' services for the time that they were diverted from doing other work.

    The restitution statute authorizes payments for all special damages that could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime. See Wis. Stat. § 973.20(5)(a). Most courts that have considered the issue have concluded that a plaintiff can recover the value of employees' lost services as damages in a contract or tort action, even when it has not been shown that the plaintiff incurred additional expenses or lost profits. Other states with similar restitution statutes have held that it is appropriate to order defendants to pay for a victim's lost employee time. The court of appeals concluded that the same is true under the Wisconsin statute.

    Territorial Jurisdiction - Wis. Stat. Section 939.03 - Waiver

    State v. Randle, 2002 WI App 116 (filed 5 March 2002) (ordered published 29 May 2002)

    The state charged the defendant with kidnapping and second-degree sexual assault. The incidents that gave rise to these charges began in Wisconsin with the forcible kidnapping of the defendant's estranged wife. During this episode, the defendant drove the victim to Illinois where the sexual assault occurred.

    The defendant pled no contest after entering into a plea negotiation with the state. He agreed to plead to charges of false imprisonment and third-degree sexual assault. He indicated that by entering the plea he understood that he was waiving all jurisdictional issues. The circuit court accepted the plea and sentenced the defendant to prison.

    In his post-conviction attack on the third-degree sexual assault conviction, the defendant argued that the trial court lacked territorial jurisdiction over the crime, citing Wis. Stat. section 939.03(1). Territorial jurisdiction was an issue because the defendant's crimes did not occur wholly within Wisconsin. Rather, some parts of the crimes occurred in Illinois. The circuit court denied the post-conviction motion. The court of appeals, in a decision authored by Judge Wedemeyer, affirmed.

    The court began its analysis by observing that a judgment is valid "if the court has jurisdiction over the subject matter of the action, and the party against whom judgment is rendered has submitted to the court's jurisdiction, or adequate notice has been given the party, and the court has territorial jurisdiction." (¶ 8) Section 939.03, upon which the defendant anchored his appeal, applies to both personal jurisdiction and territorial jurisdiction. It provides in pertinent part that "a person is subject to prosecution and punishment under the law of this state if: a) the person commits a crime, any of the constituent elements of which takes place in this state."

    As an initial matter, the appellate court considered whether a defendant may waive territorial jurisdiction. It concluded that it did not need to decide whether a defendant may waive territorial jurisdiction altogether, that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin. Rather, the court limited its analysis to whether a defendant may waive territorial jurisdiction when such jurisdiction exists under the original charge but becomes questionable because the defendant accepts a plea agreement to a lesser-included charge. The appellate court concluded that under these circumstances territorial jurisdiction may be waived and that the defendant in fact waived his right to challenge jurisdiction by entering his no-contest plea.

    The court of appeals next held that the trial court did not err when it concluded that territorial jurisdiction existed over the third-degree sexual assault charge. The defendant was charged originally with second-degree sexual assault, which includes an element of threat or use of force. Third-degree sexual assault, which does not have a force element, is a lesser-included offense of second-degree sexual assault. The trial court validly acquired territorial jurisdiction over the charged crime because the use of force occurred in Wisconsin. Said the appellate court, the trial court could not thereafter "lose" jurisdiction over the lesser-included crime. "Territorial jurisdiction was established here because the factual allegations sufficiently demonstrated a connection between [the defendant's] acts in Wisconsin and a constituent element of the charged crime. That fact does not change because a defendant enters into a plea agreement or a jury convicts on a lesser-included offense. Like criminal subject matter jurisdiction, once territorial jurisdiction attaches, it will continue until a final disposition of the case." (¶ 20)

    Accordingly, because territorial jurisdiction attached to the original charge of second-degree sexual assault, the circuit court necessarily retained jurisdiction over all lesser-included offenses of the original charge, including third-degree sexual assault.

    Judge Fine submitted a concurring opinion.


    Subrogation - Collateral Source Rule - UIM Coverage

    Heritage Mutual Ins. Co. v. Graser, 2002 WI App 125 (filed 17 April 2002) (ordered published 29 May 2002)

    Valera Smokvin was severely injured when struck by a car while riding his bike. The tortfeasor's insurer settled with Valera and his mother for $100,000, the policy's limits. Valera's medical expenses were paid by Wisconsin Health Organization (WHO), which accepted $20,000 from the tortfeasor's insurer. Valera's mother then filed a claim on his behalf with her own underinsured motorist (UIM) carrier on a policy with limits of $200,000 (after application of the reducing clause). An arbitrator awarded Valera the $200,000 and also found that the incurred medical expenses were reasonable. WHO, which had a subrogation interest of $45,000, waived any claim it had. The UIM carrier paid Valera $155,000 but contended that it could withhold the $45,000 regardless of WHO's waiver. The circuit court agreed with the insurer and refused to confirm the arbitrator's award of the full $200,000.

    The court of appeals, in an opinion written by Judge Brown, affirmed. Noting that subrogation principles and the collateral source rule often interact in personal injury actions, the court explained "that the purpose of subrogation is to ensure that the loss is ultimately placed with the wrongdoer and to prevent the insured plaintiff from becoming unjustly enriched through a double recovery, i.e., a recovery from the insurer and the liable third party." (¶9) Complementing the principle of subrogation, "[T]he collateral source rule prevents payments made by the insurer from inuring to the benefit of the defendant, and the insurer's subrogation rights prevent a double recovery on the part of the plaintiff." (¶10) This case did not, however, involve a negligence action: "There is no tortfeasor (or tortfeasor's insurer) before us to hold accountable or who stands to benefit from the medical payments made by WHO on behalf of [the injured boy]." No case law supported the proposition that an "insurer's subrogated claim can revert to the plaintiff-insured in an action to recover under a UIM policy." (¶16)


    Conversion - Third-parties - Nursing Homes

    Methodist Manor v. Martin, 2002 WI App 130 (filed 23 April 2002) (ordered published 29 May 2002)

    Methodist Manor is a skilled nursing facility that provided services to Evelyn Martin for about 18 months. Evelyn owed Methodist Manor about $8,000. Methodist Manor brought this action against her son, Frederick, based on his status as "attorney-in-fact" and joint holder of her bank account. It also alleged that he failed to use Social Security payments and other income for her "care and residence," as required. The trial court dismissed the complaint because the son lacked "privity of contract" with Methodist Manor.

    Judge Fine, writing for the court of appeals, reversed the circuit court. As a matter of first impression, the case implicated the general principle that "a person who diverts funds belonging to another person and owed by that other person to a third party is liable to the third party for conversion." (¶7) Both Evelyn's contract with Methodist Manor and Wis. Stat. section 49.45(7)(a) required that the missing funds be paid to the facility by the 15th of each month. Under the amended complaint in this case, Frederick was Evelyn's agent who received funds from the Social Security Administration for her, and Methodist Manor was the entity rightfully entitled to them under contract and statute. (¶8)

    Sexually Violent Persons

    Mandatory Time Limits for First Reexamination - Remedy for Failure to Conduct Timely Reexamination

    State ex rel. Marberry v. Macht, 2002 WI App 133 (filed 10 April 2002) (ordered published 29 May 2002)

    The petitioner was committed as a sexually violent person on July 15, 1998 pursuant to Wis. Stat. section 980.06(1). Section 980.07 requires reexamination of a sexually violent person's mental condition within six months after initial commitment and again thereafter at least once each 12 months for the purpose of determining whether he has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release, or to discharge.

    The Department of Health and Family Services (DHFS) failed to conduct an initial examination of the petitioner's mental condition within six months of his initial commitment. Eleven months after the initial commitment, the petitioner filed a petition for a writ of habeas corpus requesting to be discharged from the chapter 980 commitment because he still had not received the required reexamination. The circuit court denied the petition.

    The court of appeals, in a decision authored by Judge Snyder, reversed. It held that the section 980.07 six-month time limit for an initial examination is mandatory, rather than directory, because of its significance. Reexamination is a safeguard against arbitrary confinement and is a necessary precondition for securing judicial review of the commitment. It also triggers other important procedural guarantees, such as the right to an independent medical examination and the right to counsel. See ¶ 26.

    Addressing the remedy available to the petitioner, the court observed that it took the DHFS nearly two years to provide the petitioner with the reexamination that should have been conducted within six months of his initial commitment. "Under the extreme state of affairs presented here and the prolonged deprivation of [the petitioner's] liberty in violation of the strict safeguards of Wis. Stat. ch. 980, [the petitioner's] release is the only appropriate remedy." (¶ 37)

    Judge Brown filed an opinion concurring in part and dissenting in part.


    Wrongful Death - Married Persons - "Common-law" Marriage

    Xiong v. Xiong, 2002 WI App 110 (filed 23 April 2002) (ordered published 29 May 2002)

    Mai Xiong died while riding as a passenger in a car driven by her husband, Nhia Xiong. Mai's and Nhia's minor children (and others) filed a variety of claims against Nhia, including a wrongful death claim. The trial court, however, determined that the wrongful death claim belonged to Nhia, not his children, and therefore dismissed it. As the "surviving spouse," Nhia was first in the line of priorities as provided by Wis. Stat. section 895.04. The minor children contended that their parents' marriage was invalid and thus their wrongful death claim should be reinstated.

    The court of appeals, in a decision authored by Judge Hoover, affirmed the dismissal. The case presented "unique circumstances" regarding the traditions and culture of the Hmong people. The court was "satisfied that there is authority for the proposition that when a determination is made that a marriage is void or voidable and the court finds that either or both parties believed in good faith that the marriage was valid, the court declare that the marriage shall have the legal effect of a valid marriage." (¶22) In addition to evidence regarding a 1975 marriage ceremony performed in Laos, the court also relied on the parents' cohabitation for three years in Pennsylvania, a state that recognizes common law marriage.

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