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    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.

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    Vol. 81, No. 9, September 2008

    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

    Criminal Procedure

    Guilty Pleas - Advising Defendant that Court Intends to Exceed Sentencing Recommendation

    State v. Marinez, 2008 WI App 105 (filed 26 June 2008) (ordered published 30 July 2008)

    The state charged Marinez with misdemeanor disorderly conduct involving domestic abuse. Marinez allegedly grabbed his wife, pushed her out of their apartment, and locked her out. The parties reached a plea agreement under which Marinez would enter a guilty plea in exchange for a joint sentencing recommendation of a $100 fine. The circuit court accepted Marinez's plea and proceeded to sentencing. The judge asked about Marinez's record and was informed that Marinez had a criminal history, including a battery, and that he was currently facing felony charges involving the physical abuse of a child.

    The judge informed Marinez that she intended to exceed the plea agreement recommendation and "do something substantially different" (¶ 4). The judge offered Marinez the opportunity to withdraw his plea. The prosecutor objected, arguing that the judge was not permitted to give Marinez the option of withdrawing his plea. The circuit court overruled the objection. Marinez opted to withdraw his plea, and the state petitioned for leave to appeal the court's nonfinal order allowing plea withdrawal. The court of appeals granted leave to appeal and, in a decision authored by Judge Lundsten, affirmed the circuit court.

    The issue on appeal was whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal (see ¶ 1). In State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, the supreme court refused to adopt a new rule mandating that judges follow this practice (see ¶ 6). In the present case the court of appeals declined to read Williams as prohibiting this practice (see ¶ 12). It concluded that "trial judges may employ this practice" (¶ 1), and in this case "the trial judge properly informed Marinez of her intent to exceed the plea agreement and that she properly permitted him to withdraw his plea" (¶ 14).

    Discovery - Validity of Court Order Mandating Disclosures Beyond Those Required by Discovery Statutes

    State v. McClaren, 2008 WI App 118 (filed 19 June 2008) (ordered published 30 July 2008)

    The defendant was charged with aggravated battery, attempted first-degree intentional homicide, and first-degree reckless injury. The state conceded that a factual basis existed for the defendant to raise a claim of perfect self-defense. He appealed the circuit court's pretrial order requiring him to disclose, before trial, a summary of the evidence he intended to offer regarding what he believed to be the violent character of the victim (so-called McMorris evidence). In particular, the order required disclosure of a summary of all specific instances of the victim's violent conduct of which the defendant was aware and that he intended to introduce at trial, including witnesses to the conduct and the relevant dates and locations of the conduct (see ¶ 1). In a decision authored by Judge Bridge, the court of appeals reversed.

    In State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157 (1967), which was decided before Wisconsin's criminal discovery statute was enacted, the Wisconsin Supreme Court determined that there is no general right to discovery in criminal cases except as provided by statute (see ¶ 14). Since enactment of the criminal discovery statute, the supreme court has continued to adhere to the principle that the right to discovery in criminal cases is limited to that which is provided by statute (see ¶ 15). The criminal discovery statute (Wis. Stat. § 971.23) does not require a criminal defendant to give pretrial notice of any specific theory of defense that the defendant intends to present at trial, other than a notice of "alibi." See Wis. Stat. § 971.23(8). In addition, the discovery statute does not require a defendant to divulge the details of his or her own case. Accordingly, the court of appeals held that the discovery statute does not require the defendant in this case to give pretrial notice of a claim of self-defense or of intended McMorris evidence to support such a claim (see ¶ 18).

    The appellate court also rejected the state's argument that the circuit court's order requiring pretrial disclosure of McMorris evidence falls within the court's authority under section 906.11 to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence." Said the court, "The general authority to superintend a trial cannot be read to permit a court to require pretrial discovery that it would otherwise not be authorized to do under Wis. Stat. § 971.23 and the rule in Miller" (¶ 23).

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    UIM - Reductions

    Progressive N. Ins. Co. v. Kirchoff, 2008 WI App 108 (filed 4 June 2008) (ordered published 30 July 2008)

    Kirchoff was injured in a car accident. The other driver's insurer paid her policy limits of $25,000. Kirchoff carried two underinsured motorist (UIM) policies with different insurers. Each insurer sought to reduce its exposure by the $25,000. The circuit court ruled that the two separate UIM insurers may only reduce their respective policy limits on a pro rata basis.

    The court of appeals reversed in a decision written by Judge Neubauer. "Under Wis. Stat. § 632.32(5)(i), a policy may provide that the uninsured or underinsured limits shall be reduced by amounts `paid by or on behalf of any person that may be legally responsible for the bodily injury or death for which the payment is made.' Applying the statute, a motor vehicle insurance policy such as the Progressive policy may contain a reducing clause. The same is true for Farmers, Kirchoff's other policy. Nothing in the statutory language supports prorating a single liability payment among multiple applicable policies. There is neither an exception, nor any indication that this statutory authorization is limited or should be modified, when there is more than one UIM policy at issue. We cannot rewrite clear language to meet Kirchoff's desired construction of it" (¶ 12).

    Kirchoff unsuccessfully argued that she was entitled to a pro rata reduction based on case law and her reasonable expectations as an insured. "Kirchoff purchased a predetermined, fixed level of UIM recovery from two separate insurers: $250,000 from Progressive and $100,000 from Farmers. Each policy had a separate and distinct limit of liability. By allowing each insurer to enforce its reducing clause, thereby reducing its liability by the amount recovered from the tortfeasor, here $25,000, Kirchoff is receiving what she bargained for with each insurer under the reducing clause of each insurer's policy. Moreover, the reductions are authorized under Wis. Stat. § 632.32(5)(i), which, under [Welin v. American Family, 2006 WI 81], permits a policy to reduce the limits of liability under UIM coverage by amounts paid by the tortfeasor to the injured insured…. Here, there is no dispute that Kirchoff actually received the full amount paid by the tortfeasor's insurer" (¶ 21).

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    Judicial Decision-making - Independent Research by Court

    Camacho v. Trimble Irrevocable Trust, 2008 WI App 112 (filed 18 June 2008) (ordered published 30 July 2008)

    The circuit court granted summary judgment to the plaintiffs in this adverse possession case, and the defendant, the Trimble Irrevocable Trust (Trimble), appealed. Among the defendant's claims on appeal was that in granting summary judgment the circuit court conducted independent research and did not give sufficient notice to permit Trimble to refute the case cited by the court and that the research was biased on behalf of the plaintiffs (see ¶ 4).

    In a decision authored by Judge Anderson, the court of appeals affirmed. Said the court, "We are obliged to explain to Trimble how a circuit court judge fulfills his or her role in the adversarial system. A competent judge is not so naive to believe that briefs will always summarize the relevant facts and the applicable law in an accurate fashion. A competent judge uses the briefs as a starting line and not the finish line for his or her own independent research. Not only does a good judge confirm that the authorities cited actually support the legal propositions in the briefs, a good judge also makes sure that the authorities continue to represent a correct statement of the law. A member of the bench who fails to independently develop his or her own legal rationale does so at his or her own peril and the peril of the litigants" (¶ 7).

    Trimble also argued that the circuit court erred in not timely disclosing the results of its independent research, presumably to provide Trimble with time to refute the case the court had found. The court of appeals conducted its own independent research and failed to find any authority to support Trimble's proposition that a court must timely disclose the results of its research and provide the parties an opportunity to refute those results. "The reason there is no authority to support this proposition is that the law provides many ways to challenge a court's reliance on cases discovered during research. For example, a party can file a motion for reconsideration, Wis. Stat. § 805.17(3), or initiate an appeal. Wis. Stat. chs. 808 and 809" (¶ 9).

    Lastly, Trimble contended that in conducting independent research, the circuit court abandoned its role as "a neutral arbiter of the dispute." Said the appellate court in response, "In our adversarial system, the role of the circuit court is to decide who wins and who loses. We do not have the benefit of the court's research trail but we presume the court considered many cases that discussed adverse possession and chose the case it believed best represented the correct statement of the law. Selecting the correct statement of the law to apply to the facts is not showing preference for one party over the other; rather, it is the court fulfilling its duty" (¶ 10) (footnote omitted).

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    Juvenile Law

    CHIPS Proceedings - Voluntary Dismissal

    State ex rel. Kenneth S. v. Circuit Ct. for Dane County, 2008 WI App 120 (filed 26 June 2008) (ordered published 30 July 2008)

    This was an original action for a supervisory writ. The parent of a child who is the subject of a child in need of protection or services (CHIPS) petition sought an order directing the circuit court to dismiss the CHIPS action pursuant to a stipulation signed by the assistant district attorney, counsel for both parents, and the guardian ad litem for the child. The parent contended that, because all parties stipulated to dismissal under Wis. Stat. section 805.04(1) (the voluntary dismissal statute), the circuit court had no authority to reject a dismissal. The circuit court responded that section 805.04(1) does not apply in a CHIPS proceeding under Wis. Stat. chapter 48.

    In a decision authored by Judge Vergeront, the court of appeals denied the writ. It concluded that the voluntary dismissal statute does not apply in a CHIPS proceeding (see ¶ 2). This is because it is different from and inconsistent with section 48.24(4), which the appellate court construed to mean "that a district attorney may withdraw a CHIPS petition only with the approval of the court" (id.). Because the voluntary dismissal statute does not apply in a CHIPS action, the circuit court "did not have a plain duty to sign the dismissal order solely because the parties stipulated to a dismissal" (¶ 26).

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    Immunity - Government Contractors

    Brown v. Mathy Const. Co., 2008 WI App 114 (filed 26 June 2008) (ordered published 30 July 2008)

    A woman and her daughter were killed when their car struck an exposed bridge abutment in a construction zone. Safety measures had been taken but workers had yet to install protective barriers on this stretch of road when the collision occurred. The estate sued Mathy, the contractor hired by the Department of Transportation (DOT) to construct the road. The circuit court ruled that Mathy was entitled to governmental immunity under Estate of Lyons v. CNA Insurance Co., 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996).

    The court of appeals affirmed in an opinion written by Judge Dykman. The court held that Mathy's actions fell within the parameters of governmental immunity. First, the DOT (a government authority) approved reasonably precise guidelines. "The question is not whether DOT did or did not specify the amount of time the abutment was to be unprotected by a guardrail. This formulation of the issue ignores the safety precautions that were specified. That is, it makes no sense to isolate the sixty-day timing specification from the overall safety requirements. The question is not what other safety precautions might have been taken, but whether the safety requirements provided by DOT were reasonably precise specifications. The undisputed evidence demonstrates that they were" (¶ 11). Second, Mathy undisputedly conformed to those specifications. Third, there were no dangers known to Mathy but not to the DOT.

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    Government Immunity - Ministerial Acts - Known Danger

    Umansky v. ABC Ins. Co., 2008 WI App 101 (filed 26 June 2008) (ordered published 30 July 2008)

    Umansky, a camera operator, was killed when he fell from a platform at Camp Randall Stadium. The plaintiffs sued Fox, the stadium's director of facilities, for negligence. The circuit court awarded summary judgment in favor of Fox based on governmental immunity.

    The court of appeals reversed in a decision written by Judge Vergeront that discussed immunity in light of both the ministerial-duty and the known-danger exceptions. The court made various rulings regarding the ministerial-duty exception, which must ultimately be determined on remand, but held that the known-danger exception did not apply.

    First, the court looked to the pleadings. As to the ministerial-duty exception, "The allegation of a failure to provide railings in violation of 29 C.F.R. § 1910.23(c)(1) does allege a specific act Fox failed to perform, and this, the plaintiffs assert, is the source of his ministerial duty" (¶ 25). (Wisconsin administrative rules adopt this OSHA provision and apply it to public employment and buildings.)

    The court rejected numerous arguments to the effect that the rule does not create a ministerial duty. First, the principle of "nondelegability" did not prevent a suit against a state employee (Fox) (see ¶ 31). Second, "the `law' that is asserted to be the source of a ministerial duty need not specify the employee position that is responsible for the duty specified in the `law.' Accordingly, the fact that the relevant statute and regulations impose the duty for a safe place on the employer, not on the employee position that Fox holds, is not a basis for concluding he did not have a ministerial duty to comply with 29 C.F.R. § 1910.23(c)(1)" (¶ 42). Third, the generality of Fox's job description with respect to safety did not preclude ministerial duties. Fourth, there is no "blanket rule" to the effect that compliance with safety regulations is invariably discretionary (¶ 46). Fifth, the regulation imposed a duty to comply "at all times," not at some specific time (¶ 47).

    In sum, the complaint alleged a ministerial duty. "The regulation on its face therefore mandates a railing `on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.' … The duty to have a railing meeting the regulation's requirements is imposed by law, it is absolute, certain and imperative, and it requires performance in a specified manner and upon specified conditions that are not dependent upon the exercise of judgment or discretion…. Finally, the allegations that Fox was `specifically responsible for the safety of the facility, including compliance with the state and federal regulations,' are sufficient to allege that Fox had a ministerial duty to comply with 29 C.F.R. § 1910.23(c)(1)" (¶ 48).

    The court next turned to the summary judgment record and concluded as follows: "(1) Fox was responsible for compliance with state and federal safety regulations and this job responsibility is sufficient to impose on him the duty to comply with 29 C.F.R. § 1910.23(c)(1) insofar as the regulation applies to his employer. (2) Given the height and structure of the platform (including the upper and lower platforms) and at least one open side, Fox had a ministerial duty to have a standard railing or an alternative as specified in 29 C.F.R. § 1910.23(c)(1) on the open side or sides of the upper platform, if Fox's employer was required by state law to comply with this regulation as to this platform" (¶ 66).

    Finally, the known-danger exception to immunity did not apply. "The height of the platform and absence of a railing was evident to anyone on the platform, and one could use the platform without falling. It had been used for several years by ABC Inc. and other broadcasting companies. The known danger exception as applied in the case law has been reserved for situations that are more than unsafe, where the danger is so severe and so immediate that a specific and immediate response is demanded. The undisputed evidence here does not show that the unsafe platform presented this degree of danger" (¶ 70).

    Worker's Compensation - Exclusivity

    Torres v. Morales, 2008 WI App 113 (filed 18 June 2008) (ordered published 30 July 2008)

    Torres lived and worked in Texas but traveled to Wisconsin for a work-related seminar. While in Wisconsin Torres was killed in a car accident; the car was driven by his coemployee. Torres's estate and family sued various defendants but the circuit court dismissed the complaint on the ground that the Wisconsin Worker's Compensation Act (the Act) provided the exclusive remedy for Torres's coworker's alleged negligence.

    The court of appeals affirmed in an opinion written by Chief Judge Brown. The Act's exclusivity provision barred Torres's claims. "The conditions for [w]orker's [c]ompensation liability are set out in Wis. Stat. § 102.03(1)(a)-(f). The parties agree that Torres sustained an injury and that the injury occurred while he was `performing service growing out of and incidental to his or her employment.' See paras. (a), (c). There is no dispute that the conditions of paras. (d), (e) and (f) are met. The disagreement between the parties is over para. (b), the requirement that `at the time of the injury, both the employer and employee are subject to the provisions of this chapter.' The issue is whether an out-of-state employee and employer are subject to the Act when the employee is injured in Wisconsin in the course of his or her employment" (¶ 6). The Act's applicability was supported by the statute's language. And while no case had addressed "this exact factual pattern, the courts have nevertheless stated that an in-state injury in the course of employment will trigger worker's compensation, regardless of the employee's residency or the employer's place of business" (¶ 9).

    In sum, the court was "convinced that Wisconsin's worker's compensation jurisprudence clearly recognizes that an in-state injury in the course of employment will give rise to coverage under the Act. Further, purely as a matter of logic, we question the Estate's claim that no `employment relationship' existed between Torres and his employer in this state. Torres' employer sent Torres to Wisconsin as a part of his work. Torres was working for his employer when he was injured. In our view, when an employee is working in this state at the behest of his or her employer, that employee and that employer have an `employment relationship' in this state" (¶ 13).

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