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    Wisconsin Lawyer
    February 01, 2011

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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. 84, No. 2, February 2011

    Civil Procedure law

    Pleadings – Summary Judgment – Relation-back Statute

    Tews v. NHI LLC, 2010 WI 137 (filed 21 Dec. 2010)

    After leaving a bar, Tews entered an unlit electrical substation and suffered severe injuries when he came into contact with the transformer. His initial complaint named “We Energies,” among others, as a defendant. Shortly before the statute of limitation expired, Tews filed an amended complaint naming the “Wisconsin Energy Corporation.” After the statute of limitation had expired, counsel for both “energy” entities moved to dismiss, contending that one was a trade name and the other a holding company, and neither had responsibility for the substation where the injury occurred, which was owned and operated by Wisconsin Electric Power Co. (WEPCo). Tews then filed another amended complaint, naming WEPCo, and asked that the complaint be held to relate back to the earliest filing. Although the circuit court permitted filing of the complaint against WEPCo, it later granted summary judgment to WEPCo on the ground that Tews had failed to show a genuine issue of material fact under the relation-back statute. The court of appeals affirmed.

    The supreme court reversed in a majority opinion authored by Justice Bradley. The court discussed summary judgment procedure and the relation-back statute in considerable depth. As for summary judgment, the court held that supporting affidavits are not always required (see
    ¶ 46). Here, “the court of appeals erred when it asserted that WEPCo’s motion had initially been a motion to dismiss ‘because it relied exclusively on the [pleadings] without any reference to any facts outside that pleading’ and that ‘the proceeding did not become one for summary judgment until Tews introduced matters outside the pleadings’ in his brief in response to WEPCo’s motion. Both of these assertions rely on the unsupported premise that a motion for summary judgment must be based on something beyond the pleadings. Although a motion for summary judgment will typically present factual matters beyond the pleadings, there is no statutory requirement that it do so” (¶ 50) (citation omitted).

    As for the relation-back statute, there was no doubt that the amended complaint naming WEPCo was barred by the statute of limitation unless it “related back” to the earlier, timely complaints. Here the court canvassed the authority on pleading generally, which “should not be a ‘game of skill,’” and the relation-back statute, including a 2010 decision by the U.S. Supreme Court based on the similar federal rule.

    “Like the federal rule, Wisconsin’s relation-back statute requires the following conditions to be met when an amendment adding a new party is made after the statute of limitations has expired: (1) the claim asserted in the amended complaint arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original complaint; (2) within the period provided by law for commencing a claim, the added party received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) within the period provided by law for commencing a claim, the added party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the added party” (¶ 72).

    The complex record in this case revealed competing factual inferences that foreclosed summary judgment in WEPCo’s favor (see ¶ 80). The majority opinion emphasizes that these factual determinations did not emanate from the raw allegations in Tews’s complaints but were “based on the admitted and undisputed facts established by the defendants’ responsive pleadings” (¶ 81). Most important, a party opposing summary judgment may not rest on the mere allegations and denials in the pleadings; only in rare cases, like this one, will pleadings establish a factual basis forestalling summary judgment (see ¶ 82).

    “In sum, we conclude that an examination of the pleadings reveals the following undisputed facts: The timing of the incident is undisputed, the location of the incident is undisputed, and that Tews actually suffered injuries as a result of contact with an ‘electrical part’ is undisputed. Likewise, it is undisputed that WEPCo has offices at the same location as Wisconsin Energy, WEPCo has the same registered agent as Wisconsin Energy, and WEPCo has retained the services of the same attorney who represented We Energies and Wisconsin Energy from the outset of the case” (¶ 84).

    Justice Ziegler, joined by Justice Crooks and Justice Gableman, concurred in part and dissented in part. They agreed with the majority’s determination that as a procedural matter WEPCo’s motion was properly one for summary judgment, not a motion to dismiss. But the dissent also concluded that the trial judge properly granted summary judgment to WEPCo based on the record. “[T]he legitimacy of the relation back doctrine does not obviate the responsibility of counsel to demonstrate that the opposing party had the requisite notice. In this case, it may be that the relation back doctrine should be applicable such that WEPCo is a proper party; however, the simple truth is that counsel failed to demonstrate that the relation back doctrine applies. The majority circumvents counsel’s burden and becomes an advocate for a position that counsel did not properly set forth. The majority departs from the unambiguous directives of Wis. Stat. § 802.08 and imposes an unreasonable burden on the circuit court to scour the pleadings for any conceivable genuine issue of material fact even though counsel neglected to properly advocate that position” (¶ 88).

    Commercial Law

    Contracts – Merger Clause

    Town Bank v. City Real Estate Dev. LLC, 2010 WI 134 (filed 14 Dec. 2010)

    Town Bank loaned $2.5 million to a real estate development company (City Real Estate) to purchase an office building. Town Bank sought a declaratory judgment to the effect that it had complied with the term credit agreement (TCA) and was not obligated to provide further financing under the terms of a prior commitment letter. Twice the judge denied summary judgment to Town Bank. A jury found in favor of City Real Estate. The court of appeals reversed.

    The supreme court affirmed in a majority opinion written by Justice Ziegler. Town Bank was entitled to summary judgment because the TCA contains an unambiguous merger clause that foreclosed consideration of evidence of any other understandings or agreements: “when the contract contains an unambiguous merger or integration clause, the court is barred from considering evidence of any prior or contemporaneous understandings or agreements between the parties, even as to the issue of integration” (¶ 39). And assuming, without deciding, that the commitment letter constituted a separate and enforceable contract or financing, the supreme court held that Town Bank lawfully terminated that agreement because City Real Estate failed to fulfill at least two of its conditions (see ¶ 52).

    Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson. They agreed with the court of appeals and the Wisconsin Bankers Association (an amicus) that this case involved two separate, independent agreements. The majority’s approach, the dissent feared, “has the potential to yield ‘unforeseen consequences’ for the day-to-day practices of the banking industry. Because the majority’s analysis introduces uncertainty in the lending process and creates uncertainty in well-established law, [we] respectfully dissent” (¶ 60).

    Criminal Law

    Contributing to Delinquency of Child with Death as Consequence – First-degree Reckless Homicide by Delivery of Controlled Substance – Multiplicity – Meaning of “Child”

    State v. Patterson, 2010 WI 130 (filed 17 Nov. 2010)

    The defendant, Patterson, allegedly gave a controlled substance (Oxycodone) to a 17-year-old girl, and she died as a result. Among other crimes, Patterson was convicted of first-degree reckless homicide by delivery of a controlled substance (Wis. Stat. § 940.02(2)(a)) and contributing to the delinquency of a child with death as a consequence (Wis. Stat. § 948.40(1), (4)(a)). In a published decision, the court of appeals affirmed the convictions. See 2009 WI App 161. In a unanimous decision authored by Justice Crooks, the supreme court affirmed the court of appeals.

    The first question the court addressed was whether the two crimes referenced above are multiplicitous. Under the Wisconsin Constitution, multiple punishments may not be imposed for charges that are identical in law and fact unless the legislature intended to impose such punishments. “[T]he ‘elements-only’ test, to determine whether charges are identical in law and fact, is the first prong of a multiplicity analysis. The elements-only test determines the presumption under which the analysis of the second prong is to be conducted. Offenses with elements identical in law and fact establish a presumption that the legislature did not intend to permit multiple punishments. Offenses with elements that differ in law or fact establish a presumption that the legislature did intend to permit multiple punishments. Regardless of the outcome of the elements-only test, the court proceeds to the second prong to discern legislative intent. Operating under the presumption established under the first prong, the court then proceeds in a four-factor analysis to determine whether the legislature intended to permit multiple punishments for the offenses in question. This court examines (1) all relevant statutory language, (2) the legislative history and context of the statutes, (3) the nature of the proscribed conduct, and (4) the appropriateness of multiple punishments for the defendant’s conduct” (¶¶ 15–16) (citations omitted).

    The court concluded that the homicide and contributing-to-delinquency convictions were not multiplicitous. Of particular significance to the court on the matter of legislative intent was Wis. Stat. section 939.66(2), which deals with lesser-included crimes and provides that an included crime may be a “crime which is a less serious type of criminal homicide than the one charged.” The defendant argued that contributing to the delinquency of a child with death as a result is a less serious type of homicide than first-degree reckless homicide by delivery of a controlled substance.

    The supreme court disagreed. It concluded that the contributing charge “is not a type of criminal homicide because it lacks the characteristics of a traditional homicide statute” (¶ 18). The court noted that the homicide statutes are located together in chapter 940, “Crimes Against Life and Bodily Security” (¶ 23). On the other hand, the contributing-to-delinquency offense, found in chapter 948 (“Crimes Against Children”), is “more akin to other offenses spread throughout the statutes that proscribe certain conduct and impose a more serious punishment where death results” (¶ 24).

    “The language of the relevant statutes suggests that the legislature did not intend contributing to the delinquency of a child with death as a consequence to be a type of criminal homicide” (¶ 25). Further, the history of the contributing-to-the-delinquency-of-a-child statute “shows that it was created to protect children from dangerous conduct that can result in a death, and it was not created as another type of criminal homicide” (¶ 26). “The fact that this statute provides a more serious punishment for contributing to a child’s delinquency when a death occurs does not make it a homicide statute” (¶ 31).

    The court next addressed the meaning of the term child in the contributing-to-the-delinquency-of-a-child statute. The defendant argued that the statute did not apply to him because the victim in this case was 17 years old. The supreme court disagreed. Said the court, “we hold that Wis. Stat. § 948.40(1) proscribes contributing to the delinquency of any child under the age of eighteen, and thus [the defendant’s] conviction was proper. Our interpretation of Wis. Stat. § 948.40(1) is informed by the plain language and legislative history of the definition of ‘child’ in Wis. Stat. § 948.01(1), which excludes those over seventeen only for the ‘purposes of prosecuting’ such person” (¶ 66).

    The court also concluded that a single Haseltine violation by the prosecutor (asking an investigator whether he believed another witness’s statements were true) in the midst of a seven-day trial “did not ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process’” (¶ 68) (citation omitted). Lastly, the court found that the jury instruction that was given on the homicide charge was not erroneous (see ¶ 64).

    Motor Vehicle Law

    OWI – Counting Statute – Prior Illinois “Zero-tolerance” Violations

    State v. Carter, 2010 WI 132 (filed 2 Dec. 2010)

    The Wisconsin Legislature has established an accelerated penalty structure for operating while intoxicated (OWI) offenses in Wis. Stat. section 346.65(2). The severity of a defendant’s penalty for OWI is based on the number of prior convictions under sections 940.09(1) and 940.25 “plus the total number of suspensions, revocations, and other convictions counted under Wis. Stat. § 343.307(1)” [the counting statute] (¶ 3). The question before the supreme court in this case was whether the defendant’s two prior suspensions under the Illinois “zero-tolerance” law applicable to young drivers fall within the Wisconsin counting statute such that they are counted in determining the penalty the defendant faced for his subsequent OWI offense in Wisconsin. Violations of Wisconsin’s absolute-sobriety statutes governing underage persons, namely improperly refusing to submit to a test for prohibited alcohol concentration and operating with an alcohol concentration of more than 0.00 but less than 0.08, are not counted for purposes of penalty enhancement for violations of Wisconsin’s OWI statutes (see ¶ 17).

    In a majority decision authored by Chief Justice Abrahamson, the supreme court construed Wis. Stat. section 343.307(1)(d) to include the following under the Wisconsin counting statute: “convictions under the law of another jurisdiction that prohibits a person from using a motor vehicle with an excess or specified range of alcohol concentration” (¶ 30). In this context the court applied the definition of conviction as specified in section 340.01(9r): “‘Conviction’ … means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal …” (¶ 43).

    Applying these principles to the present case, the court concluded that the defendant’s two prior suspensions for violating the Illinois zero-tolerance law are to be counted for purposes of enhancing the penalties the defendant faced for his subsequent Wisconsin OWI offense. Said the court, “Carter’s two prior Illinois ‘zero tolerance’ suspensions are determinations by an authorized administrative tribunal that Carter has violated or failed to comply with the law. Therefore, the two prior Illinois ‘zero tolerance’ suspensions fall within the definition of the word ‘convictions’ under Wis. Stat. §§ 340.01(9r) and 343.307(1)(d)” (¶ 53).

    The defendant urged the court to find that an out-of-state administrative suspension under a zero-tolerance law should not be counted as a conviction for OWI-enhancement purposes when similar in-state violations are not counted for enhancement purposes. The court replied that “[t]he Wisconsin legislature could have carved out an exception for out-of-state ‘zero tolerance’ suspensions, similar to the exception it carved out for Wisconsin ‘absolute sobriety’ suspensions. It did not. Instead the legislature has promulgated language in Wis. Stat. § 343.307(1)(d) and (e) to encompass a broad array of convictions, suspensions, and revocations under the laws of another jurisdiction for counting purposes. Under these circumstances, the court cannot usurp the role of the legislature and carve out an exception for suspensions under the Illinois ‘zero tolerance’ laws” (¶ 63).

    In dissent, Justice Bradley said that “the majority’s interpretation of Wis. Stat. § 343.307(1)(d) is in error. The majority concludes that in enacting Wis. Stat. § 343.307(1)(d), the legislature intended to count a prior out-of-state youthful zero tolerance violation the same as a prior out-of-state OWI offense for purposes of sentence enhancement. A review of the legislative history reveals a very different legislative intent” (¶ 69).

    Justice Crooks did not participate in this case.

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