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    Wisconsin Lawyer
    July 01, 2003

    Court of Appeals Digest

    Daniel Blinka; Thomas Hammer

    Wisconsin Lawyer
    Vol. 76, No. 7, July 2003

    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

    Scheduling Orders - Expert Privilege

    Glenn v. Plante, 2003 WI App 96 (filed 15 April 2003) (ordered published 28 May 2003)

    In this medical malpractice action, counsel for the plaintiffs (a patient and her husband) failed to name expert witnesses by the date set in the scheduling order (¶7). The circuit court refused the plaintiffs' request to extend the time, because there was no justifiable excuse for missing the deadline. The circuit court then ordered, relying on Burnett v. Alt, 224 Wis. 2d 72 (1999), that a treating physician must provide expert opinion testimony about the quality of the wife's care even though the physician refused to do so.

    The court of appeals, in an opinion written by Judge Schudson, affirmed. Expert opinion testimony on causation and standard of care was essential to the plaintiff's prima facie case. Under the Alt standard, an expert may not be compelled to provide opinion testimony "absent a showing of compelling circumstances." On this record, the defendants argued that courts "should not allow a party's noncompliance with a scheduling order to set the stage for the client's 'compelling circumstances'" (¶14). Conceding that the point was "well taken," the court of appeals nonetheless upheld the trial court's exercise of discretion, particularly in light of the "harsh sanction" of dismissal that would inevitably flow from granting the physician's request that he not be required to testify on the standard of care or causation.

    Judge Curley dissented, arguing that Alt did not support a finding of "compelling circumstances" on this record (¶24).

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    Personal Jurisdiction - Service of Process - Dual Capacity

    Useni v. Boudron, 2003 WI App 98 (filed 23 April 2003) (ordered published 28 May 2003)

    Useni obtained a default judgment against Boudron on a personal injury claim. The trial court later vacated the default judgment based on a finding of excusable neglect. Useni appealed the trial court's vacature ruling, and Boudron cross-appealed on the basis that the trial court lacked personal jurisdiction because of improper service of process.

    The court of appeals, in an opinion authored by Judge Snyder, dismissed the appeal and granted the cross-appeal on the ground that the circuit court lacked personal jurisdiction. More precisely, the circuit court lost personal jurisdiction because of the filing of an amended summons and complaint that were not properly served on the defendant. "Here, Boudron was properly served with the original summons and complaint; however, an amended summons and complaint were filed wherein Boudron was not named as a defendant. The amended summons and complaint effectively nullified the first summons and complaint, insofar as Boudron is concerned" (¶9).

    Still later, a second amended summons and complaint named Boudron individually and Boudron's business as defendants, but the "manner of service" on Boudron clearly showed "that it was corporate service." Put differently, the plaintiff had to show that Boudron had been served in both his individual and corporate capacity. Only his business had been properly served. Finally, since the court lacked personal jurisdiction over Boudron, he did not "waive" the right to object on this ground by filing motion papers and contesting personal jurisdiction (¶12).

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    Commercial Law

    Unfair Trade Practices - Time Shares - Referral Selling Plans

    Pliss v. Peppertree Resort Villas Inc., 2003 WI App 102 (filed 22 April 2003) (ordered published 28 May 2003)

    In 1995 the plaintiffs purchased a time-share near the Wisconsin Dells from Peppertree Resort Villas. In 2001 they sued Peppertree alleging intentional misrepresentation and various violations of the time-share ownership statutes and other regulations. The crux of the complaint involved a referral selling plan by which the buyers ostensibly benefited by referring potential customers. The circuit court granted default judgment in favor of the plaintiffs and later awarded them double damages pursuant to Wis. Admin. Code chapter ATCP 121 (1968) and Wis. Stat. section 100.20(5) (2001-02).

    The court of appeals, in an opinion written by Judge Curley, affirmed. Although there was no dispute about the propriety of the default judgment, Peppertree challenged the grant of double damages. The court of appeals held that the trial court properly found that the complaint supported a prima facie claim of a violation of ATCP 121, even though the complaint did not allege that the plaintiffs in fact provided the names of "friends and relatives" or that they were due any compensation under the referral selling plan. The plaintiffs "were not required to establish that they provided names or were due any compensation at the time of the consumer sale. Rather, because they alleged that Peppertree induced the sale through the use of a referral selling plan that promised future benefits that may or may not have come to fruition, they satisfied §§ ATCP 121.01 and 121.02" (¶19).

    Nor must the plaintiffs have suffered any pecuniary loss, because "the prohibition is designed to protect buyers from being induced into a consumer sale by a referral selling plan by promising future payments that may never occur. Therefore, the pecuniary loss is not any lost referral compensation, but rather, the money paid for the product that the consumer was improperly induced into buying due, in part or in whole, to the referral selling plan" (¶21). Finally, the trial court properly awarded rescission as well as double damages.

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    Criminal Law

    Habitual Criminality - Drug Repeater - Multiple Enhancements

    State v. Maxey, 2003 WI App 94 (filed 30 April 2003) (ordered published 28 May 2003)

    In this case, the state is seeking to apply to a charge of unlawful possession of marijuana (a misdemeanor) two penalty enhancers: the drug repeater provision of Wis. Stat. section 961.48(2) (1999-2000) and the general habitual criminality enhancer codified at section 939.62(1)(b). [The penalty doubler for repeat drug offenses codified in section 961.48(2) (1999-2000) was repealed by the truth-in-sentencing legislation that took effect on February 1, 2003. See 2001 Wis. Act 109.] The defendant obtained a circuit court order directing the state to choose either the repeat drug offender enhancer or the habitual criminality enhancer.

    In a decision authored by Judge Nettesheim, the court of appeals reversed. It found that the complaint charging the defendant alleges two prior drug felonies, and that the state is seeking to use one of them to support the drug repeater and the other to support the general habitual criminality allegation. The court held that use of both penalty enhancers under these circumstances is expressly permitted by the recent supreme court decision in State v. Delaney, 2003 WI 9.

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    Criminal Procedure

    Search Warrants - Knock and Announce - Evidentiary Hearing Required When No-Knock Entry Challenged

    State v. Whiting, 2003 WI App 101 (filed 17 April 2003) (ordered published 28 May 2003)

    When serving a search warrant, police officers must comply with the "knock and announce" rule, which requires that, before forcibly entering a residence, they announce their identity and purpose and momentarily wait for the occupants to either refuse admittance to them or open the door. Under limited circumstances they may dispense with the knock and announce requirement. In order to justify a no-knock entry, the officers must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. See Richards v. Wisconsin, 520 U.S. 385 (1997).

    This case involved a no-knock entry, which the defendant challenged. The circuit court denied the motion to suppress without an evidentiary hearing, relying on averments in the affidavit in support of the search warrant to conclude that a no-knock entry was lawful.

    In a decision authored by Judge Deininger, the court of appeals reversed. It concluded that when the reasonableness of a no-knock entry is challenged, the state must present evidence of the circumstances known or reasonably suspected by the officers to exist at the time of warrant execution that would justify a no-knock entry. If those circumstances were described in the warrant application, the state's evidence might consist of nothing more than testimony by an officer that nothing had come to the officers' attention to lead them to believe that circumstances had changed. If, however, the warrant application is silent or lacking in regard to circumstances that might render an announced entry dangerous or futile, the state may still justify a no-knock entry by showing that the officers possessed the requisite reasonable suspicion at the time of entry.

    In this case the court of appeals held that the circuit court should not have denied the defendant's motion to suppress without hearing evidence regarding the circumstances that existed at the time of the no-knock entry.

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    Family Law

    Termination of Parental Rights - Summary Judgment - Failure to Advise Party Regarding Substitution Right - Harmless Error

    Steven V. v. Kelley H., 2003 WI App 110 (filed 13 March 2003) (ordered published 28 May 2003)

    The parental rights of Kelley H., the mother, were terminated under Wis. Stat. section 48.415(4), which requires proof that 1) the parent has been denied physical placement or visitation by an order containing the prescribed statutory notice, and 2) at least one year has passed without the order being modified to permit periods of physical placement or visitation. The mother sought reversal on appeal, claiming that the trial court erred by using summary judgment procedure and by failing to advise her at the initial hearing of the right to a continuance to discuss with her counsel requesting substitution of the judge.

    In a decision authored by Judge Vergeront, the court of appeals concluded that its earlier decision in Walworth County Department of Human Services v. Elizabeth W., 189 Wis. 2d 432 (Ct. App. 1995) controls the summary judgment issue. In Elizabeth W., the court held in broad language that summary judgment is inappropriate in involuntary termination of parental rights cases for constitutional reasons when a parent contests termination. The court did not believe that its decision in Elizabeth W. was overruled by the supreme court in Sheboygan County Department of Health & Human Services v. Julie A.B., 2002 WI 95. Nevertheless, the court concluded that use of summary judgment procedure was harmless error in this case, because there were no disputed issues of fact regarding the elements of section 48.415(4).

    The court of appeals also concluded that the circuit court erred in not advising the mother at the initial hearing of her right to request a continuance to discuss with counsel substitution of the judge. However, on the facts of this case, which include undisputed evidence that the mother knew of her right to request a substitution and had discussed it with counsel before the initial hearing, the appellate court determined that the error was harmless.

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    Abuse of Process - Elements

    Schmit v. Klumpyan, 2003 WI App 107 (filed 16 April 2003) (ordered published 28 May 2003)

    In this case the court of appeals considered whether sufficient evidence was presented to establish that the initiation and continuation of a partition action constituted an abuse of process.

    In Wisconsin there are two elements of abuse of process. First, there must be a willful act in the use of process that is not proper in the regular conduct of the proceedings. This element requires evidence of some definite act or threat that is not authorized by the process or that is aimed at an objective not legitimate in the use of the process. There is no liability when the party has done nothing more than carry out the process to its authorized conclusion, even though the party has acted with bad intentions.

    The second element is a subsequent misuse of the process. This requires evidence that the party used coercion to obtain a collateral advantage, not properly involved in the proceeding itself, used the process to effect an object not within the scope of the process, or had any other improper purpose. "A key component of the second element is the requirement that the process be used to obtain a collateral advantage, an advantage that is not a benefit to the suitor that the process was designed to secure" (¶ 9, citing Dobbs, The Law of Torts § 438 (2001)). "The attempt to obtain a collateral advantage is an important component because the tort is characterized as an attempt to use process as a means of extortion" (¶ 9). The Wisconsin Supreme Court has clarified that the inquiry is "whether the process has been used to accomplish some unlawful end, or to compel the defendant to do some collateral thing which he would not legally be compelled to do." Docter v. Riedel, 96 Wis. 158, 71 N.W. 119 (1897).

    In this case the court of appeals concluded that the evidence did not establish that the partition action was used for any purpose other than its intended purpose: the resolution of a dispute over real estate owned by multiple parties. Accordingly, there was no abuse of process.

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