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    Wisconsin Lawyer
    September 01, 2011

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Full-text decisions are available online at Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 9, September 2011


    Attorney Fees

    Issue Preclusion – Summary Judgment

    Harborview Office Ctr. LLC v. Nash, 2011 WI App 109 (filed 15 June 2011) (ordered published 26 July 2011)

    An office center, Harborview, was affected by water infiltration problems after it was constructed. Harborview filed suit against various entities involved in the construction but the claims were dismissed because of spoliation that occurred when Harborview remediated the building’s exterior finish without providing notice to the construction defendants. The court of appeals upheld the dismissal of Harborview’s construction claims. Harborview next sued its architect and the lawyer (Nash) who represented it during construction. Nash counterclaimed for attorney fees. The circuit court dismissed Harborview’s professional negligence claims based on the doctrine of in pari delicto (see ¶ 3). Again the court of appeals affirmed. The focus then turned to Nash’s counterclaim for attorney fees, which the circuit court dismissed, again on in pari delicto grounds.

    The court of appeals reversed in an opinion written by Judge Neubauer. Harborview essentially contended that issue preclusion barred Nash’s counterclaim, pointing to the finding of in pari delicto in the second round of litigation. The court held, however, that issue preclusion was inapplicable to Nash’s conduct. In neither the construction claim litigation nor the professional negligence claim litigation had the court actually litigated Nash’s representation. Although the court of appeals had made certain “factual assumptions” regarding Nash’s conduct in the second round of appeals, such assumptions did not give rise to issue preclusion: they are “not uncommon in summary judgment practice and such an assumption, when not premised on findings based on evidence, is not binding in subsequent disputes” (¶ 13). In sum, a genuine issue of material fact remained as to Nash’s attorney fees claim, and so summary judgment was inappropriate (see ¶ 15).

    Criminal Procedure

    Statute of Limitation – Attempted First-Degree Intentional Homicide

    State v. Larson, 2011 WI App 106 (filed 21 June 2011) (ordered published 26 July 2011)

    On Dec. 23, 2008, a summons and criminal complaint were issued, charging Larson with attempted first-degree intentional homicide, contrary to Wis. Stat. sections 940.01(1) and 939.32. The charge stemmed from a March 6, 1994, attack on a convenience store clerk. Larson was connected to the crime by a 2005 analysis of DNA collected shortly after the attack. Larson moved to dismiss, arguing the charge was barred by the statute of limitation. The circuit court denied Larson’s motion. After a two-day trial, a jury found Larson guilty. The court sentenced Larson to an indeterminate term of 15 years in prison. Larson appealed.

    The ordinary statute of limitation for felonies is six years. See Wis. Stat. § 939.74(1). However, section 939.74(2)(a) provides that a prosecution for first-degree intentional homicide may be commenced at any time. In this case, the court of appeals was called on to determine the applicable statute of limitation for an attempt to commit first-degree intentional homicide.

    In a decision authored by Judge Peterson, the court of appeals held that “Wis. Stat. § 939.74(2)(a), which provides that prosecutions ‘under [Wis. Stat. §] 940.01’ may be commenced at any time, does not apply to a prosecution for an attempted violation of that section. Accordingly, a prosecution for attempted first-degree intentional homicide must be commenced within six years. See Wis. Stat. § 939.74(1). Larson was not charged within the time period provided by the applicable statute of limitations” (¶ 16). Accordingly, the appellate court reversed the circuit court judgment.

    NGI Commitments – Conditional-Release Petitions

    State v. Randall, 2011 WI App 102 (filed 21 June 2011) (ordered published 26 July 2011)

    In 1976, Randall was charged with multiple felonies committed in 1974 and 1975 that involved burglarizing several businesses and a police station. During one of the burglaries, he shot and killed two police officers; he was 16 years old at the time. He pleaded not guilty and not guilty by reason of mental disease or defect (NGI). During the first phase of a bifurcated trial, the jury found Randall guilty of two counts of first-degree murder, four counts of burglary, and one count of operating a motor vehicle without the owner’s consent. In lieu of the second phase, the parties stipulated, based on a diagnosis of paranoid schizophrenia, that Randall was not guilty by reason of mental disease or defect for the two murder counts and one count each of burglary and operating a motor vehicle without the owner’s consent. Randall was committed to Central State Hospital on those four charges. He was sentenced to time served in jail and probation with a stayed sentence for the remaining burglary convictions.

    Since the time of his original commitment, Randall has on multiple occasions unsuccessfully petitioned for conditional release. In the present litigation, the circuit court denied the petition for conditional release, concluding that the state had met its burden of proving that Randall was still a danger to himself or others under Wis. Stat. section 971.17(2). In a decision authored by Judge Brennan, the court of appeals affirmed.

    The first issue confronted by the court involved the standard of review it should apply when reviewing a circuit court’s finding of dangerousness under section 971.17(2). The appellate court concluded that the proper standard of review is the sufficiency of the evidence test (see ¶ 13). When applying this standard, the appellate courts “give deference to the trial court’s determination of credibility and evaluation of the evidence and draw on its reasoning and adopt the trial court’s reasonable inferences. If there are multiple reasonable inferences, we will adopt the inference that the trial court adopts” (¶ 14).

    On a petition for conditional release, it is the state’s burden to prove by clear and convincing evidence that the commitment should continue because the individual is presently a danger to himself, herself, or other people. The Wisconsin Supreme Court has directed circuit courts to determine dangerousness by considering the statutory factors listed in section 971.17(4)(d) and balancing the interests at stake. The nonexhaustive list of factors in section 971.17(4)(d) that the court may, but is not required to, consider in determining dangerousness includes 1) the nature and circumstances of the crime; 2) the person’s mental history and present mental condition; 3) where the person will live and how the person will support himself or herself; 4) what arrangements are available to ensure that the person has access to and will take necessary medication; and 5) what arrangements are possible for treatment beyond medication (see ¶¶ 15-16).

    In this case, the court of appeals concluded that the following evidence and reasonable inferences therefrom support the circuit court’s conclusion that Randall cannot safely be discharged without presenting a danger to others: “(1) the brutal nature of Randall’s crimes; (2) Randall’s behavior while institutionalized, and (3) the mental health experts’ testimony” (¶ 18). The appellate court agreed that Randall’s brutal acts, for which he was found guilty, are evidence of dangerousness (see ¶ 21). Second, evidence of “Randall’s devious, secretive and intentional rule-breaking behavior [while confined at Winnebago and Mendota Mental Health Institutes], similar to his behavior at the time of his crimes, demonstrates that he continues to be dangerous” (¶ 29).

    Lastly, the appellate court concluded that “credible evidence and reasonable inferences from the mental health witnesses’ testimony, supports the trial court’s findings that Randall was not mentally ill at the time of his crimes [experts now conclude that Randall had been misdiagnosed and was not schizophrenic at the time of his original crimes (¶ 31)], was never treated for mental illness with any medication and continues to engage in the same type of behavior that he exhibited at the time of his original crimes” (¶ 33). Although experts at the conditional-release trial testified that Randall presents a low risk of dangerousness, the circuit court was not obligated to reach the same conclusion (see ¶ 40).

    Said the court, “[i]n sum, the absence of any mental-illness explanation for Randall’s brutal and violent crimes and his secretive rule-breaking behavior that was so similar to his behavior at the time of the original crimes, reasonably led the trial court to find that Randall remained dangerous” (¶ 41).

    Real Property

    Foreclosure – Sheriff’s Sale – Payment Date

    First Banking Ctr. v. Twelfth St. Investors LLC, 2011 WI 103 (filed 15 June 2011) (ordered published 26 July 2011)

    In this foreclosure action, the circuit court initially rejected Twelfth Street Investor’s contention that the winning bid by Brozak Holdings at a sheriff’s sale was too low. An appeal followed. The circuit court then instructed Brozak Holdings not to pay the remaining purchase price until the appeal was completed. The court of appeals affirmed the circuit court’s confirmation of the sheriff’s sale and remanded the case. Twelfth Street Investors then argued that Brozak Holdings violated Wis. Stat. section 846.17 because it failed to pay the balance due within 10 days of confirmation of the sheriff’s sale. The circuit court ruled that the 10-day period ran when the court notified Brozak Holdings following remand.

    The court of appeals affirmed in an opinion authored by Judge Reilly. The court succinctly framed the issue and its holding as follows: “The issue in this appeal is: after an appellate court affirms the amount of a sheriff’s sale and remits the case back to the circuit court, must the circuit court provide the purchaser with notice as to when payment of the remaining balance is due? We agree with the circuit court’s conclusion that when an appeal prevents a purchaser of foreclosed property from paying the remaining purchase price within ten days after confirmation of a sheriff’s sale per Wis. Stat. § 846.17, the purchaser is entitled to notice from the circuit court as to when the ten-day period begins to run” (¶ 2).

    “[A] buyer of a foreclosed property has ten days after the confirmation of the sale to pay the remaining balance of the purchase price. Twelfth Street Investors argues that Brozak Holdings failed to comply with this provision because Brozak Holdings did not pay the remaining $760,000 of its purchase price within ten days after we remitted the record back to the circuit court. The problem with this argument is that § 846.17 refers to a ten-day window after the confirmation of a sheriff’s sale – the statute says nothing about what happens after remittitur” (¶ 8).

    Brozak Holdings had attempted to pay the remaining balance within the 10 days but was informed by the court’s clerk that it should wait until after the appeal had been decided. “Wisconsin Stat. § 846.17 does not clarify when the ten-day period for paying the remaining purchase price begins to run after a case is remitted following an appeal.… We hold that when the appeals process interrupts a purchaser’s ability to pay the remaining balance of the purchase price, the purchaser is entitled, upon remand, to notice from the circuit court as to when the ten-day period begins to run” (¶ 16).

    Sexually Violent Persons

    Discharge Hearings – “Change”

    State v. Ermers, 2011 WI App 113 (filed 30 June 2011) (ordered published 26 July 2011)

    Ermers was convicted of assorted sexual offenses against young children in the 1980s and 1990s. In 2003, he was ordered committed as a sexually violent person under Wis. Stat. chapter 980. Experts testified that Ermers was a pedophile with an antisocial personality disorder who presented a substantial risk of committing another sexually violent offense. Ermers filed a petition for discharge in 2009, pointing to new research on the risk of reoffending and a report concluding Ermers was no longer a sexually violent person. The circuit court granted the state’s motion to dismiss Ermers’ petition.

    The court of appeals reversed in an opinion written by Judge Vergeront. The court succinctly summarized its legal analysis and conclusions at paragraph 16: “In the following paragraphs we first examine Pocan, 267 Wis. 2d 953, which held, under a prior version of Wis. Stat. § 980.09, that an expert opinion based on new actuarial tables entitled the committed person to an initial hearing on his discharge petition. We next examine Arends [2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513], which addresses the current version of § 980.09. We conclude that Arends does not resolve the issue whether the Pocan holding retains validity under the current version of § 980.09. We then examine a very recent case from this court, State v. Richard, 2011 WI App 66, No. 2010AP1188 (Apr. 27, 2011), that discusses Pocan, but does not resolve the issue presented in this case.

    “With this background from the case law, we analyze the disputed statutory language in § 980.09(1). We conclude that the ‘change’ referred to includes not only a change in the person himself or herself, but also a change in the professional knowledge and research used to evaluate a person’s mental disorder or dangerousness, if the change is such that a fact-finder could conclude the person does not meet the criteria for a sexually violent person.”

    The court also clarified that the “change” that must be alleged in section 980.09(1) must also be shown by the documents that are considered under section 908.09(2) for purposes of obtaining a discharge hearing (see ¶ 37 n.14).


    Dog Bites – Landlord Liability

    Ladewig v. Tremmel, 2011 WI App 111 (filed 16 June 2011) (ordered published 26 July 2011)

    A young child was injured by a pit bull owned by tenants of a rented home. The plaintiffs sued various parties, including the landlords, for failing to enforce a lease provision that banned the tenants from keeping vicious dogs, including pit bulls, on the property. The circuit court granted summary judgment in favor of the landlords. The tenants appealed.

    The court of appeals affirmed in an opinion written by Judge Blanchard that relies on Smaxwell v. Bayard, 2004 WI 101, 274 Wis. 2d 278, 682 N.W.2d 923. Smaxwell precluded liability for landlords in such cases based on public policy grounds. The plaintiffs contended that the landlords were liable under section 324A of the Restatement (Second) of Torts but the court of appeals determined that Smaxwell controlled nonetheless (see ¶ 24), and that any alteration in public policy should be made by the supreme court (see ¶ 25). Moreover, Smaxwell so controlled that a trial was unnecessary to further develop the facts; the summary judgment record sufficed (see ¶ 27).

    In sum, Smaxwell created a “blanket rule against landlord liability” in situations in which a tenant’s dog inflicts injuries (¶ 36). “The court in Smaxwell concluded that, even if liability might appear appropriate in some cases, policy factors weigh against imposing liability on any landlord who does not exercise direct control over an injury-causing dog” (¶ 39).

    Collateral Sources – Subrogation

    Blumenfeld v. Jeans, 2011 WI App 107 (filed 29 June 2011) (ordered published 26 July 2011)

    In a personal injury trial, a jury found Wray 60% at fault and Jeans 40% at fault for injuries suffered by Blumenfeld. Because Jeans was uninsured, Wray and his insurer, Erie, were ordered to pay 100% of the damages (Wray was more than 51% negligent). The circuit court rejected Erie’s argument that because Blumenfeld recovered money from his insurer under his uninsured motorist (UM) coverage, it should not have to pay the 40% of damages attributable to Jeans.

    The court of appeals affirmed in an opinion, written by Chief Judge Brown, holding that the collateral source rule applies because “Blumenfeld’s [UM] insurer expressly waived its subrogation rights against Jeans” (¶ 1). The court was “confident” that its holding comported with the purpose of the collateral source rule and the case law setting forth the rule and its exceptions. “This is precisely the type of situation that the collateral source rule was meant to address. As our supreme court has stated in the past, the collateral source rule exists to ensure that ‘[t]he tortfeasor who is legally responsible for causing injury is not relieved of his [or her] obligation to the victim simply because the victim had the foresight to arrange, or [the] good fortune to receive, benefits from a collateral source for injuries and expenses’” (¶ 8).

    Although the UM carrier expressly waived most of its subrogation rights, it did retain the right to recover money should Blumenfeld recover anything from Jeans herself. This did not, however, affect the collateral source rule’s application to Erie and Wray.

    “Prior to the accident, Blumenfeld chose to purchase an uninsured motorist policy and paid premiums for it. Then, before trial, Blumenfeld and his insurer both made strategic decisions to settle on certain terms, including a waiver of the insurer’s subrogation rights and a provision for reimbursement if and only if Blumenfeld recovered from Jeans. As we explained above, Erie became legally responsible for 100% of Blumenfeld’s damages as a result of the trial. Erie exposed itself to this possible result when it made the strategic decision to go to trial rather than settle. Blumenfeld’s choice to equip himself with uninsured motorist coverage and his favorable settlement agreement under that policy is of no concern to Erie. The collateral source rule ensures that any extra money goes to Blumenfeld, not to offset the tortfeasor’s insurer’s liability” (¶ 10).

    Actual Injury – Enhanced Risk

    Alsteen v. Wauleco Inc., 2011 WI App 105 (filed 14 June 2011) (ordered published 26 July 2011)

    For decades a corporation’s predecessor polluted a large neighborhood in Wausau. Three groups of plaintiffs sued the defendant: one group allegedly suffered severe physical injuries, including cancers, another group alleged property damage, and a third group alleged that their exposure to the toxin had “significantly increased their risk of contracting cancer.” The circuit court dismissed the third group for failing to state a claim (see ¶ 7).

    The court of appeals affirmed in an opinion authored by Judge Peterson. “First, Wisconsin law requires actual injury before a plaintiff may recover in tort, and Alsteen has not alleged any actual injury. Second, we are persuaded by the United States Supreme Court’s decision in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997), which held that an asymptomatic railroad worker who had been exposed to asbestos could not recover medical monitoring expenses under the Federal Employees’ Liability Act. Third, several other jurisdictions that have addressed the issue have articulated persuasive reasons for refusing to recognize medical monitoring claims in the absence of actual injury. We therefore affirm dismissal of Alsteen’s claim” (¶ 9). All three reasons are extensively discussed in the opinion. The discussion of Wisconsin case law (the first reason) explains that increased cancer risk is not an actual injury, nor is “mere exposure to a dangerous substance” or the need for medical monitoring.

    Worker's Compensation

    Permanent Partial Disability – Stacking Permanent Partial Disability Percentages for Two Surgical Procedures Necessitated by Same Injury

    Madison Gas & Elec. v. LIRC, 2011 WI App 110 (filed 16 June 2011) (ordered published 26 July 2011)

    Dave Parent was employed by Madison Gas and Electric (MG&E). In 1997 he sustained a left-knee injury arising out of this employment. The injury was a tear to the medial meniscus, which is cartilage in the knee joint. The injury was surgically repaired by a meniscectomy performed by Dr. Richard Lemon in 1998. At that time, Lemon assessed a permanent partial disability (PPD) rating of 5 percent, which MG&E paid. In 2007, Parent underwent a total left-knee arthroplasty (knee replacement), also performed by Lemon. This procedure was a consequence of the original injury. Lemon assessed a PPD rating of 50 percent. MG&E paid an amount equivalent to a PPD rating of 45 percent, taking a credit for the 5 percent award it had already paid based on the meniscectomy.

    Parent requested a hearing before an administrative law judge (ALJ), contending that the prior 5 percent PPD must be added to, rather than subtracted from, the post-knee-replacement 50 percent PPD. The parties stipulated that the only issue in dispute was whether MG&E was liable to Parent for a left-knee PPD totaling 55 percent, as Parent contended, or was liable for only 50 percent, as MG&E contended. The ALJ concluded that each surgical procedure that results from a given injury must receive the minimum PPD rating listed in Wisconsin Administrative Code section DWD 80.32. Accordingly, the ALJ concluded that Parent was entitled to an additional 5 percent PPD.

    On MG&E’s petition for review, the Labor and Industry Review Commission (LIRC) affirmed the ALJ’s findings and conclusion; it decided that, pursuant to Wisconsin Administrative Code section DWD 80.32(4), Parent was entitled to “stack” the PPD percentages for the two surgical procedures necessitated by the injury. MG&E appealed LIRC’s decision to the circuit court, and the circuit court reversed.

    In a decision authored by Judge Vergeront, the court of appeals reversed the circuit court’s decision. Determining that it must uphold LIRC’s interpretation of section DWD 80.32 if it is reasonable, the appellate court concluded that “LIRC’s interpretation of Wis. Admin. Code § DWD 80.32(4) to permit ‘stacking’ of surgeries to the knee necessitated by the same work injury, even when the second surgery is a total knee replacement, is a reasonable interpretation. Thus, under the applicable standard of review, we must give LIRC’s interpretation controlling weight and affirm it” (¶ 34). The circuit court erred in reversing LIRC’s decision (see ¶ 35).

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