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    Wisconsin Lawyer
    February 01, 2012

    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. 85, No. 2, February 2012


    Appellate Procedure

    Guardianships – Final Orders – Forfeiture

    Townsend v. Massey, 2011 WI App 160 (filed 10 Nov. 2011) (ordered published 14 Dec. 2011)

    In May 2010, Townsend petitioned for a guardianship for Willa, her mother, who suffered from dementia. After a hearing, the circuit court issued a written order granting the guardianship, naming Townsend as temporary guardian, and granting Townsend authority to “control” visitation and communication with certain family members, the Masseys, who allegedly upset Willa. In July 2010, the circuit court issued an order granting a permanent guardianship, naming Townsend as the guardian, and giving her authority to restrict personal contact between Willa and the Masseys for 90 days. Following a hearing in November 2010, the court ordered that Townsend would have “ongoing power to control or supervise the Masseys’ contact with Willa” (¶ 6). On Dec. 27, 2010, the Masseys filed a notice of appeal in which they appealed all three orders.

    The court of appeals affirmed the circuit court’s orders in an opinion authored by Judge Lundsten. In affirming, the court of appeals did not reach the merits of the Masseys’ claims, because it found procedural deficiencies in the Masseys’ appeal. Appeals must be filed within 90 days of a final order. The May 2010 and July 2010 orders were final orders. The circuit court’s observation that the May or July orders might be altered in the future did not make them nonfinal orders.

    “We agree with Townsend that there is no rule preventing guardianship matters from generating a series of final orders. See Wis. Stat. § 54.63 (providing for further proceedings to address expansion of a guardianship order) and Wis. Stat. § 54.64(2) (providing for further proceedings for review and modification of guardianships)[.] ... The July 2010 order was final and appealable because it stated on its face that it was final for purposes of appeal and it did not require further action. Indeed, the circuit court made this clear when it explained that, going forward, ‘[i]f something has to be reviewed by the court, parties can make a petition to that effect’”
    (¶¶ 16-17).

    Although the Masseys’ appeal from the November 2010 order was timely, they nonetheless forfeited their claims by raising them for the first time on appeal. The court of appeals rejected the Masseys’ contention that they had raised these “issues,” however obliquely, in the circuit court. In rejecting their contention, the appellate court offered just one example of a new issue raised for the first time on appeal. The Masseys contended that Willa should have been present at the November 2010 hearing, yet they never raised this argument with the trial judge. Rather, they “requested” that the court directly communicate with Willa (see ¶ 20).

         “By raising the general issue of whether the circuit court should hear from Willa, the Masseys apparently believe that they have preserved all of the arguments they might now make regarding the circuit court’s competency to proceed at the November hearing because Willa was absent. That is incorrect” (¶ 21). Case law reaffirms “that the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court” (¶ 25).  A contrary rule “would seriously undermine the
    incentives parties now have to apprise circuit courts of specific arguments in a timely fashion so that judicial resources are used efficiently and the process is fair to the opposing party” (¶ 26).

    Civil Procedure

    Separate Lawsuits – Same Claims

    Barricade Flasher Serv. Inc. v. Wind Lake Auto Parts, 2011 WI App 162 (filed 16 Nov. 2011) (ordered published 14 Dec. 2011)

    Barricade Flasher Service Inc. (Barricade) sued several defendants for fraud, conversion, and other claims in Milwaukee County Circuit Court. Those defendants in turn sought contribution and indemnification from Wind Lake Auto Parts (Wind Lake), which was added as a third-party defendant. Barricade’s belated motion to add Wind Lake as a defendant was denied because it was made after the deadline for the parties to amend their pleadings. Barricade later filed suit against Wind Lake in Racine County. The Racine County Circuit Court dismissed the complaint on grounds that it dealt with the same theory of recovery as the Milwaukee case. See Wis. Stat. § 802.06(2)(a)10.

    The court of appeals affirmed in an opinion written by Judge Reilly. “Bringing a new action against a different party is not enough to get around Wis. Stat. § 802.06(2)(a)10. As the circuit court noted, the Racine County lawsuit against Wind Lake is based on facts and circumstances that would be brought out in the Milwaukee County lawsuit. There is no basis for Wind Lake to defend itself against two lawsuits stemming from the same claim. Barricade had its chance to add Wind Lake as a party and did not do so. Barricade’s only remedy is to appeal the Milwaukee County circuit court’s decision to deny Barricade’s motion to extend the deadline to amend its complaint” (¶ 8).

    The court of appeals relied on a case (Aon Risk Services Inc. v. Liebenstein, 2006 WI App 4, 289 Wis. 2d 127, 710 N.W.2d 175) that had been partially overruled by the supreme court but remains “persuasive,” though not “controlling,” precedent (¶ 9).

    Complaint – Relation Back – Parties

    Wiley v. Laufer Family Ltd. P’ship, 2011 WI App 158 (filed 22 Nov. 2011) (ordered published 14 Dec. 2011)

    Wiley fell in the parking lot of a roller rink in February 2006. In April 2008, she sued the rink’s operator, Skateland, for negligently maintaining the premises and for a safe-place violation. A scheduling order required parties to amend their pleadings, if necessary, by mid-September 2008. In April 2010, more than a year after the three-year statute of limitation had expired, Wiley amended her complaint to name an additional defendant, M.M.N., which owned the building used by Skateland. The circuit court granted summary judgment dismissing M.M.N., ruling that this claim did not relate back to the timely claims against Skateland.

    The court of appeals affirmed in an opinion authored by Judge Curley. The relation-back statute, Wis. Stat. section 802.09(3), allows parties to amend pleadings to add new parties even after the statute of limitation has expired if three conditions are met: “(1) the claim the party seeks to assert in the amended complaint must arise out of the transaction, occurrence, or event set forth or attempted to be set forth in the original complaint; (2) the added party must receive notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits within the period provided by law for commencing a claim; and (3) within the period provided by law for commencing a claim, the added party must know, or should know that, but for a mistake concerning the identity of the proper party, the action would have been brought against the added party” (¶ 9).

    The parties agreed that only the third condition was in dispute. The court held that “M.M.N. should not have expected to be added as a defendant in this case because M.M.N. is merely the building owner; it has no role in owning, operating, or managing the business of Skateland; and Wiley’s original complaint asserts no claim against any owner or alleged owner of the building. For this same reason, we cannot conclude that Wiley made a ‘mistake’ with respect to the relation-back inquiry as she was, as of July 2008, apprised of the fact that the owner, operator and manager of the Skateland business was a separate entity from the party who owned the building in which the business was housed” (¶ 10).

    “In sum, this is a case where the plaintiff, after suing the roller rink business for negligence and then learning that the business operator and building owner were two separate entities, failed to file a claim against the building owner until well after the statute of limitations expired. Because the original complaint did not assert a claim against the building owner, we hold that the building owner should not have known that – but for a mistake concerning the identity of the proper party, the action would have been brought against it, and consequently the amended complaint did not relate to the original complaint pursuant to Wis. Stat. § 802.09(3)” (¶ 15).

    Notice of Claim – Claims Against State Agents – Service on Attorney General

    Hines v. Resnick, 2011 WI App 163 (filed 23 Nov. 2011) (ordered published 14 Dec. 2011)

    Wisconsin Statutes section 893.82(3) provides in pertinent part that “no civil action or civil proceeding may be brought against any state officer, employee or agent” unless a claimant first timely “serves upon the attorney general written notice of a claim.” Section 893.82(5) requires that the notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.”

    The defendants moved to dismiss the plaintiffs’ claim because the plaintiffs addressed the notice of claim to the attorney general’s post office box rather than to his capitol office, thereby violating the requirements of section 893.82(5). The circuit court denied the motion, concluding that the plaintiffs complied with the statute. In a decision authored by Judge Blanchard, the court of appeals affirmed.

    No matter how a sender addresses certified mail to the attorney general, the mail is not actually delivered to or received by anyone at the office in the state capitol assigned to the attorney general. Instead, the state follows a procedure under which an authorized agent receives the attorney general’s certified mail at a U.S. Postal Service branch in Madison and then delivers it to a single place, the attorney general’s office on West Main Street in Madison, and not to the capitol office. This occurs regardless of whether the mail is addressed to the capitol office, the Main Street office, or the attorney general’s post office box (see ¶ 1).

    The appellate court concluded that “a notice is properly served if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, or post office box, or any combination of those addresses, assuming that the notice otherwise complies with Wis. Stat. § 893.82(5)” (¶ 24).

    Costs – Recovery – Stipulations

    Estate of Radley v. Ives, 2011 WI App 144 (filed 20 Oct. 2011) (ordered published 29 Nov. 2011) 

    Radley’s estate brought a medical malpractice action against ThedaCare based on its failure to properly monitor Radley’s anticoagulation medication in the days before his death. Before trial, the parties stipulated that ThedaCare was causally negligent for Radley’s death and that it was responsible for Radley’s funeral expenses. The issue at trial was ThedaCare’s liability for Radley’s pre-death pain and suffering. A jury found no damages stemmed from ThedaCare’s negligent monitoring of Radley’s medication. In motions after trial, the court awarded the estate costs pursuant to Wis. Stat. section 814.03(1).

    The court of appeals affirmed in an opinion written by Judge Higginbotham. The sole issue was whether the estate was entitled to statutory costs. “In this case, the circuit court entered a judgment incorporating the parties’ stipulations that ThedaCare’s negligence was a substantial factor in causing Mr. Radley’s death, and that ThedaCare would pay the Estate $10,052.07 for Radley’s funeral expenses. We conclude that, regardless of the jury’s zero dollar verdict on the question of Radley’s pain and suffering resulting from ThedaCare’s negligence, the Estate made a ‘recovery’ within the meaning of Wis. Stat. § 814.01(1) when the court entered a final judgment that included a recovery in the amount of $10,052.07” (¶ 16).

    Nor was recovery for costs precluded because the recovery was based on a stipulation and judgment (see ¶ 17). Such an outcome was also consistent with public policy. “The Estate incurred costs to file the complaint and litigate the case in order to obtain a recovery. The Estate would not have incurred the cost to litigate had ThedaCare accepted liability and paid damages prior to the filing of the lawsuit. The costs statute is designed to compensate parties such as the Estate for having to vindicate their rights in court regardless whether the case is tried or resolved upon stipulations” (¶ 19).

    Criminal Procedure

    Right to Counsel – Revocation of Waiver of Counsel

    State v. Rhodes, 2011 WI App 145 (filed 12 Oct. 2011) (ordered published 29 Nov. 2011)

    The record in this case established that the defendant knowingly, intelligently, and voluntarily waived his right to counsel. On appeal, he argued that the circuit court erred when it denied his efforts to thereafter reinstate the right to counsel. Neither party was able to point to controlling Wisconsin authority on the issue of reinstating the right to counsel once it has been waived.

    In a decision authored by Judge Curley, the court of appeals agreed with the parties’ joint position that a defendant’s request to withdraw from self-representation and proceed with the assistance of counsel rests in the circuit court’s discretion. First, other jurisdictions have squarely reached this conclusion. Second, a request to reinstate the right to counsel is akin to a request for substitution of counsel, which is reviewed for an erroneous exercise of discretion (see ¶ 27). The court declined to adopt the defendant’s position that reinstatement must be granted unless the record shows an apparent effort to delay or disrupt proceedings on the eve of trial or once trial is underway. Said the court, “we do not agree that the circuit court’s exercise of discretion is so narrowly circumscribed” (¶ 29).

    Although courts have a strong interest in safeguarding a defendant’s access to professional legal representation, other factors necessarily play an important role in a court’s deliberation concerning a postwaiver request for counsel (see ¶ 30). “Thus, cases reflect wide agreement that, once waived, the Sixth Amendment right to counsel is no longer absolute” (id.) (citations and internal quotes omitted).

    “Courts generally give weight to the timing of an effort to revoke self-representation, particularly where ... the timing of the motion is part and parcel with the consideration of whether disruption would result if the motion was granted. Thus, as the trial date draws nearer, the ... court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice. Similarly, a circuit court should consider the timeliness of a request for substitution of counsel. Eleventh-hour requests are generally frowned upon as a mere tactic to delay the trial” (¶ 31) (citations and internal quotes omitted). However, “[a] circuit court may err by denying a request to revoke pro se status when the denial is merely to punish the defendant or is based on a rigid insistence on expedition in the face of a justifiable request for delay” (¶ 43) (citation and internal quotes omitted).

    In a fact-intensive analysis applying these and other considerations, the appellate court concluded in this case that the circuit court properly exercised its discretion when it did not permit the defendant to withdraw his waiver of the right to counsel.

    Sentencing – DNA Surcharge

    State v. Ziller, 2011 WI App 164 (filed 16 Nov. 2011) (ordered published 14 Dec. 2011)

    Ziller was convicted of reckless endangerment. At sentencing the circuit court imposed a $250 DNA surcharge. On appeal, Ziller argued that State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, requires circuit courts to explain their reasons for imposing a $250 DNA surcharge and further requires the judge to explicitly state whether the defendant has the ability to pay the surcharge.

    All defendants convicted of a felony are required to provide a DNA sample to the State Crime Laboratory. Wis. Stat. § 973.047(1f). Because this was the first time Ziller was convicted of a felony, he was required to submit a DNA sample. When a defendant’s felony conviction is for certain classes of sexual assault, the circuit court must impose a $250 surcharge on the defendant. Wis. Stat. § 973.046(1r). For all other felonies, the circuit court has discretion in determining whether to impose the $250 surcharge. Wis. Stat. § 973.046(1g). Because Ziller was convicted of a felony that was not a sexual assault, the circuit court’s decision to impose a surcharge on him under section 973.046(1g) was discretionary (see ¶ 9).

    In a decision authored by Judge Reilly, the court of appeals concluded that the defendant’s interpretation of the Cherry decision is wrong. “Cherry does not require a circuit court to use any ‘magic words.’ The decision to impose a DNA surcharge in this case fell within the circuit court’s sentencing discretion and the court properly exercised its discretion in imposing the surcharge” (¶ 2).

    “[T]he circuit court considered the primary sentencing factors in reaching its sentencing decision. Given that the court found that Ziller had the ability to pay $10,000 in restitution based on his employability, there was no reason for the court to restate that Ziller had the ability to pay the $250 DNA surcharge” (¶ 13). Moreover, given that Ziller stated at sentencing that he wanted “to make things right with the victims,” the court was well within its discretion to order him to pay the DNA surcharge rather than forcing this cost upon the public (see ¶ 11). “If Ziller is asking this court to adopt a rule whereby a circuit court must explicitly describe its reasons for imposing a DNA surcharge, we decline to adopt such a rule” (¶ 12).

    Alibi Defense – Sleeping Jurors

    State v. Saunders, 2011 WI App 156 (filed 22 Nov. 2011) (ordered published 14 Dec. 2011)

    A short time after a home was burglarized, police officers stopped Saunders because he roughly matched the suspect’s description. Stolen property from the burglary was found near him. He claimed to have visited a nearby house to visit a man named Paul, but Paul was not at home and Saunders was unable to remember the address. At trial, Saunders testified to substantially the same story but added the detail of encountering a mountain biker who first offered to sell him the stolen property (an iPod) but then tossed it in the bushes when police officers approached. Saunders was convicted of burglary.

    The court of appeals affirmed in an opinion written by Judge Curley. First, the prosecutor did not violate the procedures governing alibi defenses by asking the jury to consider why “Paul” never testified. Wis. Stat. § 971.23(8)(a).
    An “alibi” defense alleges that the defendant was somewhere else when the crime occurred. The state may not comment on the withdrawal of an alibi defense or the defendant’s failure to call any alibi witnesses.

    Here the alibi statute was inapplicable: “(1) Saunders never filed a notice of alibi; and (2) Paul could not have been an alibi witness. Thus, because the statute did not apply, the prosecutor did not err by commenting on Paul’s absence at trial” (¶ 23). “Paul would not have been able to vouch for Saunders’ whereabouts during the night of the burglary. ... Contrary to Saunders’ assertions, the fact that he himself testified that he was elsewhere during the commission of the burglary does not mean that Paul would have done so. Indeed, the best Paul could have done would have been to corroborate Saunders’ testimony that he (Paul) was not at home during the time that Saunders allegedly went there. However, this is far different from an account that Saunders ‘was elsewhere at the time the alleged incident took place’” (¶ 24).

    Second, Saunders claimed that he was entitled to a new trial because a juror was asleep during part of the trial. He did not, however, raise this issue at trial. For this reason, the court found that he had forfeited the right to claim error. The court of appeals also formulated a bright-line rule for future cases. “We therefore conclude that any party who notices that a juror may have fallen asleep at trial must bring the issue to the trial court’s attention during trial as soon as practicable after the person notices the sleeping juror. We further conclude that, because Saunders waited until after trial to bring the issue to the trial court’s attention, he forfeited his right to appeal the trial court’s discretionary resolution of this issue. Because Saunders forfeited his right to contest the sleeping juror, the trial court did not err in upholding the conviction or in denying Saunders’ postconviction motion” (¶ 32).

    New Evidence – New Trial

    State v. Avery, 2011 WI App 148 (filed 4 Oct. 2011) (ordered published 29 Nov. 2011)

    Avery was convicted of robbery in 1994. In 2007, he hired experts to apply a digital-enhancement technique to the 1994 surveillance video that recorded the robbery. The digital test was developed after 1994. Essentially, the defendant contended that the person depicted in the recording was several inches shorter than he was and thus that he could not be the robber. The defense expert supported the defendant’s theory. The prosecution expert concluded that the results were ambiguous and did not positively exclude the defendant. Both experts agreed that the digital-enhancement technique was a “valid” method, differing only over its application. The trial judge ruled that the testimony did not support a new trial based on newly discovered evidence.

    The court of appeals reversed in an opinion written by Judge Kessler. In granting a new trial, the court focused on the digital-enhancement evidence in light of the court’s discretionary power under Wis. Stat. section 752.35. The court noted, however, that admissibility of the evidence was assessed under the old rule governing expert testimony, not the Daubert standard that became effective in February 2011. See Wis. Stat. § 907.02. Here, the defendant had “vigorously litigated” his identity as the robber at trial and in postconviction proceedings (see ¶ 44). Case law does not require that the new evidence “totally destroy” the prosecution’s theory (see ¶ 39). “The jury was precluded from hearing photogrammetry evidence because, at the time of trial, the specific technique to sufficiently enhance the video surveillance evidence did not exist” (¶ 45). Accordingly, the real controversy had not been tried in the light of the test’s probative value.

    Judge Brennan dissented. She concluded that the new test created a “possibility” but not a “probability” of a different result on retrial (¶ 47). Moreover, the new evidence did not “discredit” the evidence offered at the 1994 trial such that it overcame the judicial policy of finality (see ¶ 48).

    Search and Seizure – Failure to Challenge Court Order Directing Defendant to Provide DNA Sample – Ineffective Assistance of Counsel Claim Rejected

    State v. Ward, 2011 WI App 151 (filed 18 Oct. 2011) (ordered published 29 Nov. 2011)

    In 2005, the state charged Ward with breaking into a woman’s home and sexually assaulting her. The evidence showed that the victim called the police after the assailant left her home. She was examined at a hospital, and a nurse took a sample of semen from her leg. Police officers found fingerprints matching Ward’s in the victim’s home. At a hearing after the case was commenced, the prosecutor obtained from a court commissioner an order directing Ward to provide a sample of his DNA so that it could be compared with the DNA profile of the semen found on the victim’s leg; the order was not supported by evidence under oath. The defendant’s DNA and the DNA extracted from the semen found on the victim matched. A jury convicted the defendant of burglary and first-degree sexual assault.

    Among his contentions on appeal, the defendant claimed that his attorney was ineffective because he did not seek suppression of the DNA sample taken from him pursuant to the court commissioner’s order. To establish constitutionally ineffective assistance of counsel, a defendant must show both deficient representation and prejudice. See Strickland v. Washington, 466 U.S. 668 (1984).

    In a decision authored by Judge Fine, the court of appeals concluded that the court commissioner’s order was invalid and that the DNA sample obtained thereunder could have been suppressed. “Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here, a DNA sample may only be collected by a search warrant supported by probable cause. Ward refused to give his consent, and the State does not argue that exigent circumstances excused the warrant requirement. As Ward argues, however, and as the State concedes, a search warrant must be supported by ‘oath or affirmation’; if not, the warrant is void. The court commissioner here merely acceded to the State’s request, and directed Ward to give a DNA sample without first requiring supporting evidence be under oath” (¶ 10) (citations omitted).

    “But that does not end our analysis because even assuming that Ward’s trial lawyer should have sought suppression of Ward’s compelled DNA sample, the State could have easily cured the matter by submitting an affidavit that recited: (1) the assaults on [the victim], and (2) that Ward’s fingerprints were found in her home even though, as she testified at the trial, she did not know Ward and that to the best of her knowledge Ward had never been in her home during the six or so months she lived there. This would have more than supported a lawful warrant for a sample of Ward’s DNA. Accordingly, Ward has not shown prejudice under Strickland or that his trial lawyer was constitutionally deficient because a lawyer need not do things that accomplish nothing” (¶ 11) (citations omitted).

    In a footnote, the court of appeals noted that “[e]ffective May 22, 2010, a formal search warrant may not be necessary, an issue we need not decide, if the person from whom a DNA sample is taken meets certain criteria. See Wis. Stat. § 165.76 (2009­-2010); 2009 Wis. Act 261” (¶ 10 n.3).

    Sentencing – Imposition of DNA Surcharge – Exercise of Judicial Discretion

    State v. Long, 2011 WI App 146 (filed 18 Oct. 2011) (ordered published 29 Nov. 2011)

    Long pleaded guilty to one count of fleeing an officer causing property damage, one count of operating a motor vehicle while under the influence of an intoxicant as a fourth offense, and one count of operating after revocation as a third offense. At sentencing, the circuit court ordered Long to provide a DNA sample and to pay a DNA surcharge if he had not previously provided a sample or paid a surcharge pursuant to any other cases, stating that the sample would then be “provided in connection with this case.”

    On appeal, Long argued that the circuit court erroneously exercised its discretion when it imposed the surcharge. He did not contend that he previously provided a DNA sample or paid a surcharge pursuant to any other cases. In a decision authored by Judge Kessler, the court of appeals affirmed.

    Wisconsin Statutes section 973.047 obligates the circuit court to require anyone convicted of a felony to provide a DNA sample. Section 973.046 gives the circuit court the discretion to impose a DNA surcharge on persons convicted of most felonies and requires the circuit court to order a surcharge upon the conviction of a sex crime. In State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, the court of appeals held that the circuit court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. The Cherry court declined to limit the factors to be considered but provided some guidance for the circuit courts by identifying some factors the circuit courts could consider, including “(1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent” (¶ 10) (internal citation omitted).

    In this case, the circuit court ordered the DNA sample contingent on whether one had previously been provided. If the sample had not previously been provided, the circuit court reasoned that the DNA surcharge was appropriate because “it would be for a sample provided in connection with this case.” The appellate court concluded that
    “[b]y ordering Long to pay the DNA surcharge if, and only if, a DNA sample had not previously been provided, the circuit court considered factors that we suggested in Cherry could be pertinent to the reasoned exercise of discretion. The circuit court ... further explained its reasoning in its order denying Long’s motion to vacate the surcharge: ‘If this is the defendant’s first felony case in which he is providing a sample, there is a cost involved in connection with this case. There is a cost of drawing the sample, a cost for having it analyzed, and a cost for having it put into the [S]tate DNA database. ... The court did not simply impose a DNA surcharge because the court could do so, but because the [S]tate incurred a cost for DNA in this case where there was no prior DNA taken or submitted’” (¶ 8). In sum, “the record here reflects a reasoned exercise of discretion – not an imposition of a surcharge simply because it is possible – and satisfies the requirements we explained in Cherry” (¶ 9).

    New Evidence – New Trial

    State v. Davis, 2011 WI App 147 (filed 25 Oct. 2011) (ordered published 29 Nov. 2011)

    The defendant was convicted of felony murder following a jury trial. The court of appeals reversed in an opinion written by Judge Kessler. The court determined that a new trial was necessary in the interest of justice because the real controversy over whether the defendant actually participated in the robbery-murder had not been fully tried.

    The court’s opinion is necessarily fact-intensive, analyzing how newly revealed evidence presented at the postconviction hearing undermined the court’s confidence in the verdict’s accuracy. Additionally, a Miranda error occurred when the jury heard evidence that, after the defendant requested an attorney, a detective nonetheless asked him to confirm the accuracy of his prior statements. Once a suspect requests counsel, all interrogation must cease. While the circuit court ruled that any error was harmless, the court of appeals assessed its “cumulative effect” in light of the newly disclosed evidence.

    Judge Fine concurred but wrote that the court did not have to address whether any Miranda error occurred when the detective asked the defendant to confirm his earlier statements.

    Family Law

    Maintenance – Payments from Estate of Payor Spouse

    Wagner v. Sobczak, 2011 WI App 159 (filed 26 Oct. 2011) (ordered published 14 Dec. 2011)

    In this case, the divorce judgment, which was entered in 2004, provided for maintenance in accordance with the parties’ oral maintenance agreement as follows: “The respondent, Dennis A. Sobczak shall pay to the petitioner, Cynthia R. Sobczak the amount of $4,900.00 per month as maintenance payments. Such payments shall be payable in the sum of $2,261.54 bi-weekly, commencing on August 25, 2004. The maintenance shall terminate on August 25, 2014, and said maintenance payments shall not be modifiable in either duration or amount under any circumstance, and, further, shall not be subject to revision as provided for in Wis. Stat. § 767.32” (¶ 2).

    In 2010, Dennis was diagnosed with cancer and he informed his ex-wife Cynthia about the serious nature of his illness. Thereafter Cynthia filed a motion to enforce the divorce judgment such that she would continue to receive her maintenance payments after Dennis’s death. The circuit court ruled that Cynthia could make a claim against Dennis’s estate for the fulfillment of the maintenance obligation. Dennis has since died.

    In a decision authored by Judge Neubauer, the court of appeals observed that while maintenance is generally modifiable as to term and amount, Wisconsin courts have recognized that parties may modify the usual statutory terms of maintenance by arriving at a contractual agreement as to maintenance (see ¶ 6). The court concluded that the language in the Sobczaks’ divorce judgment is unambiguous in precluding modification of maintenance in any circumstance, including death
    (see ¶ 9).

    “This court cannot, in the guise of construing a contract, insert what has been omitted or rewrite a contract made by the parties. If we were to accept the Estate’s invitation to terminate maintenance upon Dennis’ death despite the unambiguous terms of the parties’ agreement, we would be doing just that. We therefore uphold the circuit court’s order as to Cynthia’s claim against the Estate” (¶ 10) (citation and footnotes omitted).

    Public Records Law

    “Contractors’ Records” – Wis. Stat. section 19.36(3) – Attorney Invoices – Attorney-Client Privilege

    Juneau County Star-Times v. Juneau County, 2011 WI App 150 (filed 27 Oct. 2011) (ordered published 29 Nov. 2011)

    Juneau County was insured by Wisconsin County Mutual Insurance Corporation (the insurer) under a public-entity liability policy. This insurance contract covered the county’s defense in disciplinary proceedings relating to an employee of the Juneau County Sheriff’s Department. The insurer retained a law firm to defend the county in connection with the disciplinary matter. The law firm generated invoices (itemized bills for legal services) for its defense of the county and provided those invoices to the insurer.

    The Juneau County Star-Times sent a written request for access to the invoices to the county, explicitly citing public-records statutes. The county’s law firm provided a response to this request directly to the Star-Times, which response consisted of redacted copies of the invoices. The law firm’s response stated that all the redactions were to protect attorney-client privileged information or attorney work product. The county subsequently provided an additional written response to the Star-Times, adopting the law firm’s response as its own.

    The Star-Times filed suit against the county, alleging that its response to the open records request violated the public-records law. On summary judgment, the circuit court concluded that Wis. Stat. section 19.36(3) (the “contractors’ records” provision of the public-records law) does not apply to the invoices and that, even if it did, the county properly produced the invoices, except as they were necessarily redacted to protect the attorney-client privilege. In a decision authored by Judge Blanchard, the court of appeals reversed.

    Wisconsin Statutes section 19.36(3) states that an authority “shall make available for inspection and copying any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority” (emphasis added). There was no dispute that the insurance contract that the insurer issued to the county was “a contract entered into by” the county. The issue was whether the law firm’s invoices were produced or collected under that contract. The appellate court concluded that they were.

    Said the court, “[t]here is no reasonable argument that under the terms of the insurance contract the parties did not anticipate the insurer’s collection of invoices from a law firm in the event that a defense was necessary” (¶ 17). That is what happened here; the law firm provided to the insurer copies of invoices of the type anticipated by the insurance contract. “In sum, we are satisfied that the invoices were ‘collected’ by the insurer ‘under’ the contract within the meaning of Wis. Stat. § 19.36(3), based on the terms of the County’s insurance contract, the certainty of what must occur under such a contract, and what actually occurred as a result of the County’s insurance contract and its request for a defense” (¶ 19).

    The county argued that the invoices were not collected under the insurance contract but instead under whatever contract or agreement existed between the law firm and the insurer. “However, the County [did] nothing to explain why the invoices must be considered collected under that contract instead of the contract between the County and the insurer, or, for that matter, why the invoices might not have been collected under both contracts” (¶ 23).

    The appellate court further concluded the county failed to point to evidence sufficient to survive summary judgment on the question of whether its redactions qualify as attorney-client privileged information. The attorney-client privilege “protects communications from the attorney to a client only if disclosure of the attorney-to-client communications would directly or indirectly reveal the substance of the client’s confidential communications to the attorney” (¶ 36). “Billing records are communications from the attorney to the client, and therefore revealing the records may violate the attorney-client privilege, but only if the records ‘would directly or indirectly reveal the substance of the client’s confidential communications to the lawyer’” (¶ 37)  (internal citations omitted). Many jurisdictions have concluded that billing statements that provide only general descriptions of the nature of the services performed and do not reveal the subject of confidential communications with any specificity are not privileged (see ¶ 38).

    In this case, the court of appeals (like the circuit court) examined both redacted and unredacted versions of the billing records. It concluded that the unredacted invoices, on their face, did not reveal the substance of any privileged communications (see ¶ 43). Most contained information concerning matters like attorney hours and rates, the identity of the attorney performing work, photocopy dates and prices, descriptions of legal services rendered, and so on. The court did note that “there is a small subset of redacted legal descriptions that gives us momentary pause. This subset involves descriptions of legal services that the law firm provided to the County that allude to topics of legal research conducted on a particular date, or that allude to the general fact that legal strategies were considered on a particular date (without specifying the particular strategy)” (¶ 45).

    “However, the County made no attempt to identify for the circuit court why the court should conclude that any particular description of legal services would reveal the substance of confidential communications directly or indirectly, and for that matter makes no such attempt now on appeal. Instead, the County simply provided the unredacted invoices to the court and made a blanket assertion of privilege for all redacted information. This was inadequate” (¶ 46).

    Lastly, with regard to the application of the work-product doctrine to the redacted records, the appellate court observed that the county did not develop a work-product-related argument on appeal and, accordingly, the court neither addressed nor took a position on whether any redactions could quality as attorney work product (see ¶ 48).


    Public Policy – Mutilation of Corpse

    Kidd v. Allaway, 2011 WI App 161 (filed 16 Nov. 2011) (ordered published 14 Dec. 2011)

    Eighteen-year-old Krista was a passenger in a vehicle when the driver lost control, slid into oncoming traffic, and hit another vehicle. Krista died on impact. Krista’s body was ejected from the car and landed on the roadway, where it was struck by one vehicle and then struck by a second vehicle driven by Allaway, whose car dragged the body some distance. Allaway fled the scene because he had been drinking alcohol. Krista’s parents sued Allaway for negligently mutilating their daughter’s body, which, they alleged, caused them emotional and physical injury. Specifically, they claimed that he drove through the crash scene at an unreasonable speed, striking Krista
    (see ¶ 6). The circuit court dismissed the parents’ claim against Allaway based on public policy grounds.

    The court of appeals affirmed in an opinion written by Judge Neubauer. “We begin by acknowledging that in most cases the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability”
    (¶ 11). But here the facts were “simple to ascertain” and the public policy issues were fully presented.

    The court focused on three policy factors: remoteness of the parents’ injuries from Allaway’s negligence, his culpability relative to their injuries, and whether any recovery would unreasonably burden Allaway. “While the Kidds have brought a negligent mutilation claim, the damages they seek are for their own alleged long-standing and nontransitory emotional distress and the resulting physical injuries, such as throat problems, extended and significant weight loss, continuing digestive issues and nausea, sleep issues, headaches and daily fatigue. The Kidds’ focus on the sequence of events after Allaway’s alleged negligence ignores that the Kidds lost their teenage daughter in a terrible head-on collision during which she was killed instantly, ejected from the car, landed on the road and was hit and dragged by not one, but two, vehicles. It is the entire sequence of events that results in an indirect and broken chain of causation between Allaway’s alleged negligence and the Kidds’ alleged severe emotional distress and resulting physical injuries” (¶ 16). In such a case, any causal link between Krista’s parents’ anguish and Allaway’s conduct “would be extraordinarily speculative” (¶ 19).

    “In sum, the death of the Kidds’ daughter and the injury caused by the collision, ejection and impact by the first car were all wholly unrelated to Allaway’s alleged negligence. To hold him fully responsible for the Kidds’ emotional distress (which is not only remote but would be speculative) would be wholly out of proportion to the claimed role Allaway had in the tragic sequence of events” (id.).

    Waiver of Error – Damages

    J.K. v. Peters, 2011 WI App 149 (filed 27 Sept. 2011) (ordered published 29 Nov. 2011)

    This is a civil action based on a sexual assault that occurred while Peters purportedly “counseled” the victim, a 12-year-old boy (M.J.K.). The victim’s parents had asked Peters, who had been a close family friend for many years and who held a masters of social work degree, whether he could help with their son’s behavior problems. The issues on appeal involved the admissibility of expert testimony and the damages award.

    The court of appeals affirmed in an opinion authored by Judge Brennan. First, Peters waived any errors involved in the admission of expert testimony by failing to raise them in a posttrial motion. The rule applies even where a proper and timely objection is made during trial (see ¶ 25), and it applies with equal force in jury trials and bench trials (as here) (see ¶ 27). Nor was there any miscarriage of justice that otherwise warranted appellate review in the interest of justice
    (see ¶ 30).

    Second, the record supported the court’s findings on various categories of damages. The court said that proof of future loss of earning capacity, found here to be $100,000, may include evidence of a medical disability, but such evidence is not required. “While the evidence is not overwhelming, a plaintiff must be permitted to introduce evidence of a somewhat speculative nature when discussing future earning capacity, particularly when that plaintiff is a teenage boy” (¶ 37). Future care and treatment was reasonably set at $73,000, especially in light of the victim’s current emotional problems and his life expectancy of another 58 years. Past care and treatment was properly found to be about $7,700. Case law and Wis. Stat. section 908.03(6m)(bm) permit the use of medical bills to prove those expenses. A psychologist provided adequate testimony that Peters’ misconduct caused the victim’s need for those services (see ¶¶ 44-45).

    Punitive damages were also properly awarded under Wis. Stat. section 895.043(3), despite Peters’ contention that this was just a “mere touching case.” “To begin, Peters’ behavior was undeniably grievous, undertaken with malicious intent, and not only had the potential to inflict much harm upon his victims, but actually did inflict such harm. As we have previously set forth, Peters intentionally sexually assaulted M.J.K. when he was twelve years old, after months of working to gain the trust of both M.J.K. and his parents [P.K. and J.K.] for the purpose of perpetrating the abuse. The trial court found that the sexual assault resulted in excessive psychological trauma to M.J.K. and harmed his relationships with P.K. and J.K” (¶ 55). The award of $220,000 in punitive damages comported with the circuit court’s award of $480,000 in compensatory damages (see ¶ 56).

    Trusts and Estates

    Irrevocable Trusts – Medical Assistance

    Hedlund v. Wisconsin Dep’t of Health Servs., 2011 WI App 153 (filed 13 Oct. 2011) (ordered published 29 Nov. 2011)

    In 1992, Clarence and Lucille Hedlund transferred most of their assets to their children. On that same day, the children transferred those same assets to the Hedlund “family trust,” the purpose of which was to support the parents. Under the trust’s terms, upon the deaths of the Hedlunds, the assets would be distributed to the children. Following Clarence Hedlund’s death, Lucille Hedlund (Hedlund) entered a nursing home in 2008 and applied for medical assistance. She was denied because the trust assets made her ineligible. An administrative law judge (ALJ) affirmed the denial, ruling that the trust’s assets were available for Hedlund’s support. The circuit court also affirmed.

    The court of appeals affirmed in an opinion authored by Judge Vergeront. “The primary issue on appeal is whether the trust is available to Hedlund under Wis. Stat. § 49.454 for purposes of determining whether she is financially eligible for medical assistance” (¶ 5). The court reviewed the ALJ’s determination de novo.

    First, Hedlund’s assets were used to form all or part of the trust’s corpus. The court rejected Hedlund’s contention that because the assets had been first transferred to the children, they were no longer hers within the statute’s meaning. The court concluded “that ‘assets of the individual’ within the meaning of Wis. Stat. § 49.454(1)(a) are not restricted to assets that are legally owned by the individual at the time the trust is established. Reading § 49.454(1)(a) as a whole and in the context of the entire medical assistance statute, we conclude that trusts are covered under § 49.454 if the assets of the individual are transferred to another person who, at the direction or request of the individual, uses those assets to form all or part of the corpus of a trust” (¶ 17).

    The evidence reasonably supported a finding that this is what occurred here, particularly because the double transfer (parents to children to trust) occurred on the same day “in the same document” (¶ 22). “Because the trust meets the requirements of Wis. Stat. § 49.454(1)(a), the trust is considered available for purposes of medical assistance eligibility as provided in either § 49.454(2), which governs revocable trusts, or § 49.454(3), which governs irrevocable trusts” (¶ 24). The Hedlunds’ irrevocable trust “provides that the entire corpus and income is available as necessary for Hedlund’s support and general welfare” (¶ 26).        

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