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    Wisconsin Lawyer
    June 10, 2009

    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.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Wisconsin LawyerWisconsin Lawyer
    Vol. 82, No. 6, June 2009

    Civil Procedure

    Scheduling Orders – Expert Testimony

    Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42 (filed 19 Mar. 2009) (ordered published 29 Apr. 2009)

    Parker sued a physician, Blumhofe, who allegedly had negligently performed a vascular bypass procedure. The jury returned a defense verdict, and Parker appealed on several grounds.

    The court of appeals affirmed in an opinion authored by Judge Higginbotham. Parker’s central argument was that the defense’s “key expert,” Koslow, should have been barred from testifying because the defense failed to name Koslow by the time established in the pretrial scheduling order. The court of appeals held that the trial judge properly exercised his discretion in allowing the testimony. “This dispute centers on the proper legal standard a circuit court is to apply to determine whether to grant a motion to extend the time for complying with a scheduling order” (¶ 13). After discussing case law and competing rules, the court relied on Schneller v. St. Mary’s Hospital, 162 Wis. 2d 296, 470 N.W.2d 873 (1991) (Schneller II) in concluding that “the excusable neglect standard set forth in Wis. Stat. § 801.15(2)(a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, Wis. Stat. § 802.10 provides the applicable ‘standards and procedures’ courts apply to such motions. Moreover, requiring courts to evaluate untimely motions under the excusable neglect standard would infringe upon the circuit court’s broad discretion in addressing untimely motions to amend scheduling orders.... As the supreme court explained in Schneller II, 162 Wis. 2d at 310, such discretion ‘permits the court to take steps ranging from granting the requested relief to dismissing the moving party’s case, [and] is absolutely essential to the court’s ability to efficiently and effectively administer its calendar’” (¶ 19). The court, however, carefully limited its holding “to the type of motion presented here, an untimely motion to enlarge a scheduling order deadline” (¶ 20).

    The court next addressed three evidentiary rulings on expert testimony. First, it rejected Parker’s contention that Koslow had changed his opinions in the time between his deposition and his trial testimony. The court found no inconsistency in his testimony (see ¶ 25). Second, the defendant doctor properly offered an opinion about whether her own conduct met the standard of care; her counsel’s disclaimer at a deposition pertained only to the care provided by other providers, not her own. Finally, the trial judge properly precluded expert testimony from one of Parker’s treating physicians. “Here, while it is apparent from his deposition that Dr. Wesley was among Parker’s treating physicians, the deposition contains no discussion of Dr. Wesley’s training or specific expertise. Moreover, Dr. Wesley’s curriculum vitae was not made a part of the deposition record. Finally, the proffered deposition testimony was cumulative to opinions already presented by at least two of Parker’s other expert witnesses. We therefore conclude that the circuit court acted within its discretion in denying introduction of Dr. Wesley’s deposition” (¶ 29).

    Claim Preclusion – Foreclosure Action

    Kowske v. Ameriquest Mortgage Co., 2009 WI App 45 (filed 24 Mar. 2009) (ordered published 29 Apr. 2009)

    In 2006 Kowske sued Ameriquest, on the grounds that in 2003 the latter had made misrepresentations and engaged in unfair trade practices when providing a mortgage to Kowske to refinance some real property. Ameriquest moved to dismiss on the ground that Kowske’s claims were barred by claim preclusion, specifically, Kowske’s failure to defend a foreclosure action that led to a default judgment in 2004. The 2004 judgment was, however, vacated and dismissed when Kowske paid the mortgage loan. Ameriquest contended that the 2006 claims were compulsory counterclaims that should have been asserted in 2004. The circuit court granted Ameriquest’s motion to dismiss the 2006 claims based on claim preclusion.

    The court of appeals affirmed in a decision authored by Judge Kessler. The key case is A.B.C.G. Enterprises Inc. v. First Bank Southeast N.A., 184 Wis. 2d 465, 515 N.W.2d 904 (1994), which “held that the mortgagor ‘was required to counterclaim in the prior [foreclosure] action[s] because the claims, if successfully litigated, would nullify the prior default judgments entered in favor of [the mortgagee] or impair rights established in the initial action[s].’ Because the mortgagor had not counterclaimed in the original foreclosure actions, its claims were barred by claim preclusion and the common-law compulsory counterclaim rule” (¶ 1). In this case the court of appeals held that A.B.C.G. Enterprises also governs in a situation like this, in which the mortgagor pays off the loan before the foreclosure sale and the default judgment is vacated and dismissed on the mortgagee’s motion. Both parties agreed that there was an identity of causes and parties (see ¶ 18). Kowske conceded the application of the common- law compulsory counterclaim rule but argued that here an “essential element” was missing, “namely, a final judgment on the merits in a court of competent jurisdiction” (¶ 21).

    The court held that Ameriquest’s later motion to vacate and dismiss the judgment did not bar claim preclusion. “Contrary to Kowske’s assertion, the order dismissing the action based on Kowske’s payment of the mortgage was a final judgment on the merits in the foreclosure action. Ameriquest’s actions to clear the title were based on Kowske’s acceptance of the rights Ameriquest established in the foreclosure action. The order dismissing the judgment of foreclosure was not based on an error in the original judgment of foreclosure, but rather on the successful attainment of the judgment of foreclosure and the subsequent payment of the mortgage by Kowske. That trial court order ended litigation between the parties concerning the mortgage and foreclosure, and neither party appealed from that order. To allow Kowske, years later, to bring claims based on the already satisfied mortgage and foreclosure would be directly contradictory to the common-law compulsory counterclaim rule” (¶¶ 24-25).

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    Criminal Procedure

    Right to Self-representation –Invoking the Right

    State v. Darby, 2009 WI App 50 (filed 19 Mar. 2009) (ordered published 29 Apr. 2009)

    The Sixth Amendment to the U.S. Constitution and article I, section 7 of the Wisconsin Constitution guarantee a criminal defendant both the right to assistance of counsel at trial and the right to self-representation at trial. The issues before the court of appeals in this case, which are matters of first impression in Wisconsin, involve what a defendant must do to invoke the right to self-representation and whether the circuit court must advise a defendant of that right.

    In a decision authored by Judge Vergeront, the court of appeals held that “a defendant must clearly and unequivocally declare a desire to represent himself or herself in order to invoke that right” (¶ 1). It found support for this conclusion in numerous cases in other jurisdictions (both state and federal) that “have expressly held that a defendant must clearly and unequivocally make such a declaration in order to invoke the right to self-representation” (¶ 19).

    A related issue was whether a circuit court has an obligation to inform a defendant of the right to self-representation in the absence of a clear and unequivocal declaration by the defendant. The court of appeals concluded that “the circuit court has no obligation to advise a defendant of that right prior to a clear and unequivocal declaration” (¶ 1). It also held that “a defendant’s expressions of dissatisfaction with his or her current attorney or a request for another attorney do not constitute a clear and unequivocal declaration that the defendant wants to proceed pro se” (¶ 26).

    Criminal Trials – Revoking Waiver of Right to Testify on One’s Own Behalf

    State v. Winters, 2009 WI App 48 (filed 10 Mar. 2009) (ordered published 29 Apr. 2009)

    The defendant appealed from a judgment entered after a jury found him guilty of first-degree reckless homicide (Wis. Stat. § 940.02(1)). He also appealed from an order denying his postconviction motion. Among the issues raised on appeal was whether the trial court erroneously exercised its discretion when it denied the defendant’s request to testify on his own behalf the day after he had waived that right and after testimony in the case was closed. In denying the request the judge found that allowing the defendant to revoke his waiver of the right to testify would result in prejudice to the state (see ¶ 10).

    There was no dispute that the defendant’s original waiver of the right to testify was valid. The defendant complained, however, that “the trial court should have permitted him to revoke his waiver of his right to testify after he changed his mind overnight. He also blames the trial court for not holding a hearing to allow him to provide an offer of proof as to what his testimony would be and whether it would have been prejudicial to the State” (¶ 14). The state responded that the defendant’s failure to make an offer of proof at trial or in the postconviction motion operated as a waiver of his right to have this issue decided. In a decision authored by Judge Brennan, the court of appeals agreed with the state.

    The determination of whether to allow a defendant to testify after the evidence has closed and after he or she has previously executed a valid waiver of the right to testify is left to the discretion of the trial court. See State v. Arredondo, 2004 WI App 7, 269 Wis. 2d 369, 674 N.W.2d 647. A trial court must consider whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings and, if so, whether the defendant has a reasonable excuse for failing to present the testimony during the defendant’s case-in-chief (see ¶ 21). 

    The problem here was that the defendant did not make an offer of proof when the trial court made its ruling. Wisconsin Statute section 901.03(1) requires a party challenging the trial court’s ruling excluding evidence to make such an offer. Said the appellate court, “Without an offer of proof, the trial court could not consider the potential for prejudice and neither can we” (¶ 21). The appellate court would have to speculate about the substance of the testimony the defendant claimed he would have given at trial, which it is not permitted to do. In sum, “[the defendant’s] failure to provide an offer of proof either at trial or in the form of an affidavit in his postconviction motion prevents this court from considering whether the trial court erred in denying his request to withdraw his waiver of his right to testify” (¶ 24).

    As for the defendant’s claim that the trial court was obligated to elicit the substance of his testimony before denying his request to withdraw the waiver of the right to testify, the appellate court responded that “[the] obligation to make an offer of proof was on [the defendant], not on the trial court” (¶ 19). “[T]he trial court was not under any obligation in this instance to be the instigator of an offer of proof” (¶ 22).

    Wisconsin Electronic Surveillance Control Law – One-party Consent

    State v. Ohlinger, 2009 WI App 44 (filed 12 Mar. 2009) (ordered published 29 Apr. 2009)

    Using the Internet, the defendant located a person he thought was a woman willing to let him engage in sexual conduct with her 12-year-old daughter. In fact, the defendant had found a law enforcement officer pretending to be such an individual. The Internet communication led to a telephone conversation between the defendant and two female police officers, one posing as the mother and the other posing as the daughter. Another officer, acting without a warrant, intercepted and recorded the conversation. During the conversation the defendant expressed his desire and intent to engage in sex acts with the “mother” and the “daughter,” and the parties agreed to meet for this purpose. When the defendant showed up at the meeting place, he made contact with the officer posing as the mother and was arrested. He later was charged with attempted first-degree sexual assault of a child and child enticement, both as a persistent child sex offender.

    The defendant moved to suppress the warrantless recording of the telephone conversation, alleging that it was inadmissible under Wisconsin’s Electronic Surveillance Control Law (Wis. Stat. §§ 968.27-.33). The circuit court denied the suppression motion, and the defendant challenged that ruling on appeal. In a decision authored by Judge Lundsten, the court of appeals affirmed the circuit court’s decision.

    The focus of this appeal was the one-party consent exception to the electronic surveillance statutes. Wisconsin Statute section 968.31(2)(b) provides that it is not unlawful “[for] a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.” As characterized by the court of appeals, “[the defendant’s] general argument is that the one-party consent exception does not apply where, as here, the intercepting person is a law enforcement officer and the party to the communication who consents to the intercept is also a law enforcement officer. He seems to say that at least one of these parties must be a private citizen. When [the defendant] gets more specific, however, his argument is different – he asserts that the intercepting person may never be a police officer because the phrase ‘person acting under color of law’ does not include law enforcement officers” (¶ 11).

    The appellate court rejected the argument that the one-party consent exception applies only when law enforcement officers work in concert with cooperating private citizens. “We conclude that the exception may apply when one or more law enforcement officers are both the intercepting and consenting parties. Similarly, we reject [the defendant’s] argument that the phrase ‘person acting under color of law’ in § 968.31(2)(b) excludes law enforcement officers” (¶ 24).

    Juveniles Charged in Adult Court – Reverse Waiver Hearings

    State v. Kleser, 2009 WI App 43 (filed 10 Mar. 2009) (ordered published 29 Apr. 2009)

    The state appealed a nonfinal order of the circuit court transferring jurisdiction of a juvenile, who was charged with first-degree intentional homicide, battery by a prisoner, and substantial battery, from adult criminal court to juvenile court pursuant to Wis. Stat. section 970.032(2). This procedure is commonly called a reverse waiver. The court of appeals granted the state’s petition for leave to appeal the nonfinal order and, in a decision authored by Judge Brennan, reversed the circuit court’s order.

    The defendant waived his right to a preliminary hearing on the criminal charges. The circuit court then scheduled a reverse waiver hearing to determine whether to retain adult court jurisdiction or transfer jurisdiction to the juvenile court. The court must retain adult jurisdiction unless the juvenile proves by a preponderance of the evidence that he or she could not receive adequate treatment in the adult system, transfer back to juvenile jurisdiction would not depreciate the seriousness of the offense, and retaining the juvenile in the adult system is not necessary to deter the juvenile or other juveniles from committing the offense he or she is charged with committing (see ¶ 24).

    Among the issues on appeal was whether, at a reverse waiver hearing, the juvenile may introduce evidence that contradicts the criminal complaint (in cases in which the preliminary hearing has been waived) or that contradicts facts found at the preliminary hearing (in cases in which a preliminary hearing has been held). The court of appeals concluded that “the plain, unambiguous meaning of Wis. Stat. § 970.032(2) is that evidence of facts of the offense contrary to the preliminary examination or, where the right to a preliminary examination is waived as it was here, the criminal complaint, is not admissible at a reverse waiver hearing” (¶ 36). Said the court, “The proper place for the juvenile’s attack on the charges (before the actual trial) is at the preliminary hearing” (¶ 29).

    The court of appeals also held that the circuit court committed error when it considered hearsay as substantive evidence at the reverse waiver hearing (see ¶ 47). “Wisconsin Stat. § 970.032(2) makes no provision for the admission of hearsay at a reverse waiver hearing. Where a statute does not specifically authorize hearsay, it is generally prohibited, see Wis. Stat. § 908.02” (¶ 46). The court also held that “rules of opinion evidence apply to a reverse waiver hearing as they do to a trial” (¶ 4).

    Judicial Substitutions – Timing

    State v. Wisth, 2009 WI App 53 (filed 31 Mar. 2009) (ordered published 29 Apr. 2009)

    The court of appeals affirmed Wisth’s conviction and sentence for issuing worthless checks. “Wisth raises a single issue on appeal: whether the trial court erroneously denied his request to substitute the assigned judge pursuant to Wis. Stat. § 971.20(5), where Wisth’s request was made prior to sentencing after his probation was revoked” (¶ 1). Wisth had pleaded guilty before Judge A and was placed on probation by Judge B, who handled the sentencing hearing because of court congestion. Judge B had withheld sentence, so when Wisth’s probation was revoked several years later, he was sentenced by Judge C, who was assigned the case on rotation. Wisth had unsuccessfully attempted to replace Judge C.

    Writing for the court of appeals, Judge Kessler navigated the substitution statute’s tangled history, which “demonstrates a legislative intent to limit substitutions of newly assigned judges to requests prior to trial” (¶ 13). The court concluded that “the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved, a criminal ‘trial’ is complete for purposes of this statute. Section 971.20(5) did not provide authority for Wisth to seek a substitution prior to his sentencing after revocation. Therefore, we affirm the judgment” (¶ 14).

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    UM Coverage – Commercial Policies

    Mittnacht v. St. Paul Fire & Cas. Ins. Co., 2009 WI App 51 (filed 4 Mar. 2009) (ordered published 29 Apr. 2009)

    The plaintiff was injured by an uninsured driver while driving his own car during the course of his employment. His personal insurer paid its uninsured motorist (UM) coverage, but his employer’s insurer, St. Paul, refused to pay UM coverage under a commercial policy. It was undisputed that the plaintiff’s car was not a “covered” vehicle under the policy’s UM agreement, but it arguably was covered under separate liability provisions. The circuit court granted summary judgment in favor of St. Paul.

    The court of appeals affirmed in an opinion written by Judge Neubauer. The plaintiff argued that section 632.32 mandates UM and medical payments coverage “because his personal ‘nonowned’ auto used in the conduct of his employer’s business is a ‘covered auto’ under the policy’s separate liability insuring agreement(¶ 6). Prior case law established “that a limitation on UM coverage under a commercial policy does not violate Wis. Stat. § 632.32(4)(a) as long as the restriction does not apply to the purchaser or policyholder, but only to its employees. Given this holding, the absence of any contrary indication in the statutory language of § 632.32(4)(a), and the policy language, we conclude that the UM statute does not require UM coverage for this employee’s personal non-owned auto under St. Paul’s policy” (¶ 13).

    Nor was coverage mandated by section 632.32(3), which provides that “the UM insuring agreement’s ‘same provisions’ shall apply to any person using the identified motor vehicles in the same manner as that afforded the named insured. That agreement does not identify John’s car. We decline the Mittnachts’ invitation to interpret the statute to require ignoring the separate policy insuring agreements, separate definitions and separate coverages. This interpretation is not reasonable and finds no support in the statute or Wisconsin case law” (¶ 17). Finally, section 632.32(4)(b) did not require coverage for medical payments. 

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    Municipal Law

    Towns – Ultra Vires

    Town of Clayton v. Cardinal Constr. Co., 2009 WI App 54 (filed 11 Mar. 2009) (ordered published 29 Apr. 2009)

    After a town’s electors twice voted against authorizing the building of a second fire station, the town board nonetheless approved it and contracted for the station’s construction after the board was advised that elector authorization was unnecessary. A few months later, the town board, now with some new members, voted unanimously to halt further construction and to cancel the contract on the ground that the contract required elector authorization. In the ensuing litigation, the circuit court granted summary judgment in favor of the town, and the contractor appealed.

    The court of appeals affirmed in a decision by Judge Neubauer. “The issue on appeal is whether the town board exceeded its statutory authority when it contracted for the construction of a fire station without elector approval, therefore rendering the contract with Cardinal Construction void as ultra vires” (¶ 8). The court held that Wis. Stat. section 60.55 does not authorize town boards to override the elector authority set forth in section 60.10(2)(e) and (f). “Simply put, if a town board chooses to meet the requirements of Wis. Stat. § 60.55 by providing housing for fire protection services and also chooses to purchase land and construct that housing – rather than, for example, contracting with another to provide fire protection – then the town board must proceed with the authorization of the town meeting under Wis. Stat. § 60.10(2)(e) and (f) to purchase land and construct a building. Therefore, these statutes work together as a framework for providing fire protection services if a town chooses to do so through the purchase of land and construction of a fire station” (¶ 15).

    The court of appeals also rejected the contractor’s arguments that other provisions in Wis. Stat. chapter 60 authorized the town board to dispense with elector approval. “Neither Wis. Stat. § 60.55 nor Wis. Stat. § 60.23 provide[s] an exception to the power conferred on the town meeting to authorize the construction of town buildings, nor was the town board permitted to exercise village powers which are in direct conflict with the statutes governing towns and town boards” (¶ 28).

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    Unjust Enrichment – Knowledge

    Buckett v. Jante, 2009 WI App 55 (filed 4 Mar. 2009) (ordered published 29 Apr. 2009)

    Buckett paid the property taxes on a portion of his neighbors’ property for more than 25 years, but neither he nor his neighbors, the Jantes, knew it. The parties learned about the incorrect payments after the Wisconsin Department of Transportation condemned the parcel and paid the Jantes $63,000. Buckett sued for a portion of the condemnation sale price, relying on unjust enrichment (see ¶ 1). The circuit court rejected Buckett’s unjust enrichment claim because the Jantes had no knowledge that Buckett was paying their taxes.

    The court of appeals reversed in a decision authored by Chief Judge Brown. It held that “when a party mistakenly confers a monetary benefit, or other easily returnable benefit, on another, that party is entitled to restitution from the benefited party who, upon learning of the mistaken payment, refuses to repay the money. Buckett’s claim that his inadvertent tax payments unjustly enriched the Jantes is therefore viable. Buckett had demanded repayment from the Jantes, giving them knowledge of the benefit, and which demand the Jantes refused. Therefore, unless there has been a double payment of taxes, an issue we will get to in a moment, the Jantes have accepted, retained and appreciated the tax payments, and the retention of those benefits without payment to Buckett is inequitable. Buckett sufficiently pled a claim of unjust enrichment” (¶ 21). The court remanded the case for trial because the Jantes raised a disputed issue of material fact on whether the county double taxed the parcel, that is, both Buckett and the Jantes paid taxes, leaving the county as the benefited party.

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