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    Vol. 78, No. 8, August 2005

    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

    * *


    Fee Disputes - Arbitration

    Steichen v. Hensler, 2005 WI App 117 (filed 5 May 2005) (ordered published 22 June 2005)

    Hensler retained Steichen to represent him in a dispute with his ex-wife over a trust. When a conflict arose, Steichen withdrew from the representation. Hensler refused to pay the final bill, for about $1,700 in fees and disbursements. The parties agreed to submit the fee dispute to the State Bar of Wisconsin's fee arbitration program. An arbitrator awarded Steichen the full amount of the final bill. Steichen then commenced a small claims action to confirm the award, but the court refused to grant summary judgment in Steichen's favor, finding that Hensler had raised a question of fact regarding possible fraud. "Following trial, the court found that Steichen had procured the fee arbitration award through fraud. It entered judgment vacating the fee arbitration award and granting Hensler [the client] statutory costs" (¶ 11).

    The court of appeals, in an opinion written by Judge Deininger, reversed the circuit court in an opinion that carefully addresses the standard of review governing arbitration award challenges based on fraud (see ¶¶ 33-34). "The high degree of judicial deference to which an arbitration award is entitled when a party seeks to vacate it is well-established in Wisconsin" (¶ 12). Hensler's answer properly pleaded "a recognized ground for vacating an arbitration award under Wis. Stat. § 788.10(1)(a), procurement by fraud. Issue was thus joined, with Steichen being entitled to confirmation of the award unless Hensler could prove his sole defense - that the award was procured by fraud in the form of perjury by Steichen during the arbitration proceedings" (¶ 20).

    The court next turned to the summary judgment materials to determine whether Hensler had raised an issue of fact concerning procurement by fraud. "In summary, in order for Hensler's claim that Steichen procured the fee arbitration award by fraud to survive summary judgment, Hensler needed to submit evidentiary materials tending to show (or place in dispute) that (1) a clearly demonstrable fraud was perpetrated; (2) the substance and nature of the fraud could not, with due diligence, have been discovered prior to or during arbitration; and (3) the fraud was material to an issue decided by the arbitrator. Hensler failed on summary judgment to establish or place in dispute the first two of these three requirements. The record on summary judgment contained no evidence that, if believed by a fact-finder, would clearly establish Steichen perpetrated any type of fraud during the arbitration proceedings. In any event, the substance of the alleged fraud was plainly communicated by Steichen to Hensler prior to the arbitration, such that Hensler had ample opportunity to discover the `fraud' and expose it before the arbitrator. We thus conclude Steichen is entitled to summary judgment confirming the arbitrator's award" (¶ 31).

    Although the court's analysis and disposition turned on the summary judgment issue, the court did "not wish to leave the impression that the flaw in Hensler's challenge to the arbitration award stems solely from technical flaws or oversights in his response to Steichen's summary judgment motion. Our review of the trial record reveals that the testimony and exhibits presented at trial by both parties did not vary materially from their submissions on summary judgment. For the same reasons that Hensler's claim of procurement by fraud fails to survive Steichen's motion for summary judgment, Hensler failed to meet his evidentiary burden at trial. Were we deciding the appeal on the trial record instead of the record on summary judgment, our conclusions and disposition would be the same" (¶ 32).

    Finally, while the court of appeals agreed with Steichen that the "instant litigation was, at bottom, a re-litigation of the arbitrated dispute" on which Steichen should have been granted summary judgment, the court could "discern no basis or authority ... for [the court] to direct the imposition of frivolousness sanctions on Hensler or his present counsel under Wis. Stat.

    § 814.025" (¶ 36). In particular, the "authority under the appellate rules to sanction frivolousness before this court extends to only `an appeal or cross-appeal ... found to be frivolous,' and not to an allegedly frivolous responsive position in support of a circuit court judgment or order" (¶ 37).

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    Civil Procedure

    Discovery - "Other Acts" - Sexual Orientation - Motions to Compel

    J.W. v. B.B., 2005 WI App 125 (filed 26 May 2005) (ordered published 22 June 2005)

    This is a discovery dispute that grew out of a medical malpractice claim. "The plaintiffs filed a complaint alleging the physician [the defendant] was `negligent in his care and treatment' for performing digital-rectal prostate exams on them during pre-employment medical examinations. They also alleged the physician failed to obtain their informed consent before performing the exams. The plaintiffs asserted that the physician told them the prostate exams were required for their employment physicals" (¶ 2).

    During his deposition, the defendant, on advice of counsel, refused to answer questions concerning whether other persons had complained of inappropriate touching, why he had left a previous job, and what his sexual orientation is. The plaintiffs filed a motion to compel discovery and the "court entered orders requiring the physician to disclose: (1) his `sexual orientation'; (2) `other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams'; and (3) `the reasons [he] left previous professional employment'" (¶ 5).

    The court of appeals granted the defendant leave to appeal the nonfinal discovery order and, in an opinion by Judge Deininger, affirmed in part and reversed in part the circuit court's opinion. The court of appeals first addressed whether evidence as to the defendant's sexual orientation is admissible or discoverable. The court held it is not. "Quite simply, the physician's motive for conducting the exams has no tendency to make it more or less probable that `his actions were incongruent with medical requirements' because that determination turns exclusively on a comparison of what the physician did to what a `reasonable physician' would have done `in the same or similar circumstances'" (¶ 13). "Because the physician's sexual orientation is not relevant to any claim or defense in this action, and the plaintiffs have not identified any admissible evidence to which the disclosure might lead, we conclude the circuit court erred in ordering the disclosure of the physician's sexual orientation. See Wis. Stat. § 804.01(2)(a). By analogizing these malpractice actions to criminal prosecutions and concluding that motive evidence is relevant and potentially admissible at trial, the circuit court based its decision on an error of law. The court thus erroneously exercised its discretion in ordering the physician to disclose his sexual orientation" (¶ 19).

    The court of appeals affirmed the circuit court's order that permitted discovery of "other complaints" made by other persons. Although the defendant's "motive" and "intent" are irrelevant, the court of appeals described other potentially permissible uses of other acts evidence (assuming it exists) (see ¶¶ 22-24).

    The court "emphasize[d] that we do not determine here whether any information the physician provides in response to the appealed orders will necessarily be admissible at trial. The future evidentiary rulings are committed to the sound discretion of the circuit court, to be based on the testimony and other evidence adduced at trial and the specific nature of the proffered evidence and objections to it. Admissibility of any `other acts' evidence at trial may also turn on the circuit court's discretionary weighing of its probative value versus the danger of unfair prejudice or other considerations. See Wis. Stat. § 904.03. For present purposes, however, we cannot conclude that the order to the physician to disclose `other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams, and ... the reasons [he] left previous professional employment' is not `reasonably calculated to lead to the discovery of admissible evidence' under Wis. Stat. § 804.01(2)(a)" (¶ 25). Finally, the court of appeals noted that production of any such information should be subject to a protective order approved by the circuit court (see ¶ 26).

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    Criminal Procedure

    Controlled Substance Conviction - Probation Condition Prohibiting Contact With "Drug Community"

    State v. Trigueros, 2005 WI App 112 (filed 12 April 2005) (ordered published 22 June 2005)

    The defendant was convicted of possessing one gram or less of cocaine with intent to deliver. The circuit court imposed and stayed a term of imprisonment and ordered the defendant to serve four years on probation. As a condition of probation the judge prohibited the defendant from having any contact with the drug community. On appeal the defendant argued that this condition is unconstitutionally overbroad and vague and thus violates his rights to privacy and to freedom of association. In a decision authored by Judge Fine, the court of appeals affirmed.

    The appellate court concluded that the probation condition restricting association with the drug community is reasonably related to the defendant's crime and to his rehabilitation as well as to the need to protect the community. "The condition that [the defendant] not have contact with the drug community will help [the defendant] remain drug-free, and ensure that he does not sell drugs in the community again" (¶ 12).

    With regard to the defendant's contention that the probation condition is unconstitutionally vague, the appellate court concluded that the trial court's order defines a "drug community" for the defendant. The circuit judge told the defendant that he may not be around any person when, or be in any place where, drugs are being possessed, used, or sold. The appellate court concluded that this condition is clear and gives the defendant fair notice of what a "drug community" is. "Moreover, [the defendant] has pointed out no authority that gives him a right, as a convicted drug offender on probation, to associate with drug traffickers during the period of his probation" (¶ 14).

    Plea Agreements - Post-plea Revision of Agreement - Truth in Sentencing - Conditions of Extended Supervision

    State v. Miller, 2005 WI App 114 (filed 27 April 2005) (ordered published 22 June 2005)

    In December 2000, the state charged the defendant with operating a vehicle while intoxicated (OWI) (5th offense). At the plea hearing the parties informed the court that a plea agreement had been reached: the defendant agreed to plead no contest to the OWI charge, and the state agreed to recommend a sentence of one year in jail, a fine, and a license suspension. After the plea hearing, but before sentencing, the defendant apparently left Wisconsin, and he failed to return for subsequent hearings. In February 2003, he was convicted of OWI in Iowa.

    Following the Iowa conviction, the defendant appeared for sentencing on the Wisconsin OWI charge. At that hearing the state recommended a sentence of 12 months in jail, five years' probation, a fine, and license revocation. The state represented that these were the terms of the original plea agreement. Defense counsel initially objected to the recommendation of probation because it was not a term in the original plea agreement. Following an on-the-record exchange between the parties regarding the terms of the plea agreement, defense counsel agreed that the district attorney could recommend probation. (Defense counsel's testimony at a postconviction motion hearing indicated that, although counsel initially objected to the probation recommendation because it was not included in the original plea negotiation, he did consult with the defendant during the sentencing hearing about whether he wished to withdraw his plea and the defendant indicated that he wished to continue with sentencing.)

    The judge imposed a sentence of two years' incarceration followed by three years of extended supervision. As a condition of extended supervision the court ordered the defendant to maintain the payment of child support obligations owed pursuant to a 1991 paternity action. The defendant appealed, and the court of appeals, in a decision authored by Judge Anderson, affirmed.

    With regard to the alleged breach of the plea agreement, the court held that, when the defendant failed to object to the state's alleged breach at the sentencing hearing, he waived his right to directly challenge the breach. Accordingly, this case came before the court of appeals in the context of a claim of ineffective assistance of counsel (see ¶ 7).

    The appellate court concluded that, because defense counsel had a specific strategic reason for not objecting to the "new" agreement and consulted with the defendant and secured his consent to proceed, his performance was not deficient. "In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend and defense counsel fails to object, the agreement has `morphed' into a new agreement. Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the `new' plea agreement. The Sprangdecision teaches that even a strategically sound decision by defense counsel to forego an objection to a prosecutor's breach without consulting with the defendant constitutes deficient performance because it is `tantamount to entering a renegotiated plea agreement without [the defendant's] knowledge or consent'" (¶ 8) (citations omitted).

    The defendant also challenged the condition of extended supervision relating to the payment of child support obligations. He contended that the duty to pay child support arose from an unrelated case and that statutory remedies already exist for the nonpayment of child support. The court of appeals disagreed. Trial courts are granted broad discretion in determining conditions for extended supervision; such discretion is subject only to a standard of reasonableness and appropriateness. "Whether a condition of extended supervision is reasonable and appropriate is determined by how well it serves the dual goals of supervision: rehabilitation of the defendant and the protection of a state or community interest" (¶ 11).

    The court concluded that the condition at issue is reasonably related to the defendant's rehabilitation and the protection of a community or state interest. The condition requires the defendant to learn responsibility. "The condition of extended supervision obviously protects important state and community interests. Because [the defendant] will ostensibly learn to live more responsibly, he will be less likely to drink and drive. Further, the condition relates to the support and well-being of a child, a clear community interest" (¶ 15).

    The court explained that, as a condition of extended supervision, the defendant must avoid all conduct that violates state statutes. See Wis. Admin. Code § DOC 328.04(3)(a). The criminal code criminalizes the nonpayment of child support. "Therefore, pursuant to the general administrative code provision concerning extended supervision [the defendant] would be required to maintain his child support payments. We see no reason why the trial court could not then specifically impose a condition that directly relates to criminal behavior and so clearly advances the public welfare and the defendant's rehabilitation period" (¶ 16).

    Plea Withdrawal Before Sentencing - Fair and Just Reason - Prejudice to State

    State v. Nelson, 2005 WI App 113 (filed 19 April 2005) (ordered published 22 June 2005)

    Pursuant to a plea negotiation, the defendant pleaded guilty to three counts of first-degree sexual assault, one count of kidnapping, and one count of armed burglary. Two other charges were dismissed. Following the plea hearing but before sentencing, the defendant (represented by a new attorney) moved to withdraw all of his pleas because his prior attorney had failed to advise him before he pleaded guilty that, as a result of his convictions for the sexual assaults, he could be committed as a sexually violent person under Wis. Stat. chapter 980. The circuit court acknowledged that this would be a fair and just reason to permit withdrawal of the pleas to the sexual assault counts but denied the motion after finding that the state would be substantially prejudiced if the defendant were allowed to withdraw his pleas. In a majority decision authored by Judge Curley, the court of appeals reversed.

    The appellate court concluded that the defendant's lack of knowledge that he would be eligible for a chapter 980 commitment as a result of his convictions constituted a fair and just reason for plea withdrawal (see ¶ 15). A defendant seeking to withdraw a plea of guilty or no contest before sentencing must show that there is a fair and just reason allowing him or her to withdraw the plea. See, e.g., State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999).

    If the defendant establishes by a preponderance of the evidence a fair and just reason for plea withdrawal, as the defendant did here, the burden shifts to the state to prove substantial prejudice. While there is very little case law touching on what constitutes substantial prejudice, the court concluded "that the prejudice that need be shown to merit the denial of the withdrawal of a plea must be significant in order to trump a defendant's fair and just reason" (¶ 17).

    "In [State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis. 2d 561, 605 N.W.2d 199] our supreme court was satisfied that substantial prejudice was shown because, as the trial court concluded, the effects of any further delay would `hamper the [4.5-year-old] victim's ability to recall pertinent events.' Several federal cases have also addressed the issue and found that withdrawal of a plea would present a substantial prejudice to the government under the following circumstances: having once again to provide protection for endangered witnesses during trial; having to assemble witnesses after condefendant's acquittal when joint trial was possible; death of a chief government witness; when physical evidence is discarded; and when other defendants with whom defendant had been joined for trial had already been tried in a lengthy trial and defendant's plea was taken midntrial" (¶ 18) (citations omitted).

    In this case the court concluded that the state failed to make the requisite showing of prejudice. Although the sexual assault victim was missing at the time of the motion for plea withdrawal, the state described her absence as temporary and indicated that it was confident that she could be found. The state failed to establish that she could not eventually be located or to set forth what attempts had been made to find her (see ¶ 19).

    Lastly, the court considered the defendant's argument that if he is successful in withdrawing some of his pleas, he is entitled to withdraw all of his pleas, including the counts that did not involve sexual assault and the potential for a chapter 980 commitment. The appellate court was not persuaded that its decision to permit the defendant to withdraw his guilty pleas to the sexual assault counts required a withdrawal of the two other convictions. "[The defendant] has not explained why the proper remedy is a reversal of all the charges, or how his legitimate interests are harmed. He bargained for a reduction of charges from seven to five. He currently remains convicted of two. The state never agreed to recommend a specific prison term, only to ask the trial court at sentencing for `substantial prison.' [The defendant] got the benefit of his bargain" (¶ 25). Accordingly, the court of appeals remanded the case to the trial court to permit the defendant to withdraw his pleas to only the three sexual assault counts.

    Judge Fine filed a dissenting opinion.

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    Municipal Law

    Zoning - Conditional Use Permits - Respective Powers of Town Board and Town Board of Adjustment

    Magnolia Township v. Town of Magnolia, 2005 WI App 119 (filed 12 May 2005) (ordered published 22 June 2005)

    The issue in this case was whether the Board of Adjustment of the Town of Magnolia lacked the authority to grant a conditional use permit (CUP) after the town board had decided to deny it. A CUP allows a property owner to put his or her property to a use that the ordinance expressly permits when certain conditions have been met. The circuit court concluded that the board of adjustment lacked such authority. In a decision authored by Judge Vergeront, the court of appeals affirmed.

    The appellate court concluded as follows: "(1) Wis. Stat. § 60.65(3) requires that the authority of a town board of adjustment to grant CUPs be contained in the town zoning ordinance; (2) the Town of Magnolia's zoning ordinance authorizes the Town Board but not the Board of Adjustment to grant CUPs; (3) there is no statutory authority for the Town Board of Adjustment to hear an appeal from the Town Board's decision to grant or deny a CUP; and (4) the Town's zoning ordinance does not give the Board of Adjustment this appellate authority" (¶ 1). Even if the zoning ordinance did authorize the Board of Adjustment to hear an appeal from the Town Board's denial of a CUP, such authorization would be invalid because it would be in excess of that granted by statute (see ¶ 36).

    In a footnote the court observed that its decision does not mean that there is no right to an appeal of a decision of a town board to grant or deny a CUP. Rather, the right to appeal is to the circuit court, not the board of adjustment (see ¶ 33 n.19).

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    Structural Defects - Statutes of Repose _Safe Place

    Mair v. Trollhaugen Ski Resort, 2005 WI App 116 (filed 3 May 2005) (ordered published 22 June 2005)

    The plaintiff sued for injuries she sustained when she fell in a bathroom of a ski resort. The trial court granted summary judgment in favor of the defendants because the bathroom's flaw, a recessed floor drain, was a structural defect and the plaintiff's claim was therefore barred by the 10-year statute of repose for builders. See Wis. Stat. § 893.89.

    The court of appeals, in an opinion written by Judge Peterson, affirmed. The plaintiff argued that while the statute of repose barred a negligence claim, it should not block her claim under the safe place statute, which imposes an "ongoing duty to keep a structure safe" (¶ 4). The court held that "[b]oth the statute of repose and the safe place statute explicitly address construction" (¶ 10). Thus, to the extent that the plaintiff's safe place claim "is based on defective construction of the bathroom floor, the claim is barred by the ten-year statute of repose" (¶ 10).

    Turning next to the plaintiff's argument that the safe place statute imposes an ongoing duty to furnish a safe building, the owner must nonetheless have notice of "an unsafe condition associated with the structure of the building" (¶ 13). Since the plaintiff produced no evidence that the owner had actual or constructive notice that the recessed drain was unsafe, her safe place claim failed (see ¶ 14).

    Airline Passengers - Federal Preemption

    Miezin v. Midwest Express Airlines Inc., 2005 WI App 120 (filed 17 May 2005) (ordered published 22 June 2005)

    The plaintiffs filed an action against an airline alleging that it had negligently failed to warn passengers about the dangers of deep vein thrombosis (DVT). The circuit court granted summary judgment in favor of the airline.

    The court of appeals, in a decision authored by Judge Kessler, affirmed. Relying on federal case law that was "directly on point," the court held that the plaintiffs' state claim was barred by both "implied field preemption" and "conflict preemption." "`[Implied f]ield preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives.' The pervasive regulations concerning the warnings that must be given to airline passengers indicate that `Congress left no room for the States to supplement' these regulations. If state requirements for announcements to airline passengers were not impliedly preempted by the Federal Aviation Act, each state would be free to require any announcement it wished on all planes arriving in, or departing from, its soil. It is hard to see how the amalgam of potentially conflicting messages promoting competing states' interests would not stand `as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Thus, on the narrow topic before us - warnings that are given to airline passengers - we conclude that the Federal Aviation Act impliedly preempts the application of state common-law negligence standards to failure-to-warn claims like that presented here" (¶ 18) (alterations in original).

    The court expressly declined to consider whether state claims for failure to warn passengers of airline risks are "entirely preempted" or whether, as some cases have held, preemption permits a state remedy subject to a federal standard (see ¶ 19). The court also refused to consider whether, absent preemption, Wisconsin law recognizes a common law claim that airlines have a duty to warn about the risks of DVT (see ¶ 2).