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    Wisconsin Lawyer
    November 01, 2014

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

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


    Contingency Fees – Sharing – Prejudgment Interest

    Winston v. Guelzow, 2014 WI App 96 (filed 12 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: The circuit court properly found that a lawyer was not entitled to share in a contingency fee following the termination of a joint law practice, and the circuit court did not err by not awarding prejudgment interest.

    SUMMARY: “This case involves a fee dispute between two personal-injury attorneys who practiced together for several years and then parted ways” (¶ 2). Essentially, the two lawyers, Winston and Guelzow, shared office space before ending their association. When they decided to end their association, they gave clients the option of choosing Winston, Guelzow, or some other lawyer for further services, and they provided all clients with a letter containing the joint recommendation that they choose Guelzow, which all did.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    Although Winston assisted Guelzow on the files as an “associate,” he soon left to join a firm in a different city. There was no contract for dividing the contingency-fee earnings. Later, Winston sued Guelzow for an equal share of the contingent fees earned on these cases. In a bench trial, the judge found that Winston was entitled to quantum meruit compensation but that Winston had failed to prove his damages, except in one case for which the fees were undisputed. Winston appealed.

    The court of appeals affirmed in an opinion authored by Judge Hoover. Contrary to Winston’s assertion, Tonn v. Reuter, 6 Wis. 2d 498, 95 N.W.2d 261 (1959), did not control the outcome because Winston withdrew from representation; he was not “fired” without cause by the client (see ¶ 12). Although Winston disputed that he had withdrawn, the record clearly supported the trial judge’s finding (for example, Winston’s joint recommendation that clients continue with Guelzow) (see ¶ 15). Nor did Guelzow breach their “operating agreement,” which failed to address what happens on dissolution of the combined law practices (see ¶ 16).

    Finally, the circuit court properly rejected Winston’s demand for prejudgment interest under Wis. Stat. section 138.04. Although some amounts were undisputed, the total amount due Winston remained disputed; Winston cited no authority for his contention that “partial judgment interest may be awarded based on limited amounts not in dispute” (¶ 18).

    Criminal Procedure

    Recorded Statements – One-Party Consent – Minors

    State v. Turner, 2014 WI App 93 (filed 26 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: A 15-year-old sexual assault victim voluntarily consented to wear a microphone when discussing past crimes with the assailant, her father.

    SUMMARY: The defendant was convicted of sexual assaulting his daughter several times. The victim was age 6 when the first assault occurred and age 15 when she sought protection. The police asked the girl to wear a “wire” and then speak with her father about recent assaults. Her father unwittingly incriminated himself. Police immediately arrested him, and he confessed. He filed a motion to suppress the recorded statements and all derivative evidence, arguing that use of the wire violated the state’s electronic surveillance law because the victim was under age 16 and could not give lawful consent. The circuit court denied the suppression motion, and the defendant pleaded guilty.

    The court of appeals affirmed in an opinion authored by Reserve Judge Cane. Although minors cannot consent in many situations, the court was unpersuaded that the legislature had “foreclosed a minor from consenting to color-of-law interception of his or her conversations” (¶ 22). Instead, the court held that a minor’s consent is governed by the Fourth Amendment’s voluntariness standard (see ¶ 23).

    Relying on case law, the court of appeals concluded that “when determining whether a minor has the capacity to consent to color-of-law surveillance under Wis. Stat. § 968.31(2)(b), courts should consider the totality of the circumstances to determine whether consent was voluntarily given”(¶ 29). Especially pertinent are “the minor’s knowledge, intelligence, and maturity” (¶ 30). The record fully supported the trial judge’s finding that the minor had voluntarily consented (see ¶ 32).


    Expert Opinion – Daubert

    State v. Giese, 2014 WI App 92 (filed 27 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: Expert-opinion testimony was admissible under the Daubert reliability standard.

    SUMMARY: Giese was found asleep in a roadway approximately three miles from where his car was found. A blood test later showed a blood alcohol concentration (BAC) of 0.181. Giese was charged with several operating-while-intoxicated (OWI) offenses because he was a repeat offender with a high alcohol level. In a pretrial motion, the defense challenged the admissibility of testimony by a toxicologist based on “back extrapolation,” namely, the toxicologist’s projection of Giese’s BAC at the time he was driving, approximately four hours before he gave a blood sample. The trial judge, applying the Daubert standard [Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993)] found in Wis. Stat. section 907.02, ruled that the opinion testimony was admissible. The defendant appealed this nonfinal order.

    The court of appeals affirmed in an opinion authored by Chief Judge Brown. This is the first published decision discussing the admissibility of expert evidence under Wis. Stat. section 907.02, which was amended in 2011 to incorporate the Daubert reliability standard. “The standard is flexible but has teeth. The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion” (¶ 19). Excluded, then, is “ipse dixit” testimony, in which a witness relies on credentials rather than a reliable method (see ¶ 20).

    The record in this case showed “the general acceptance of retrograde extrapolation in the field of toxicology and its widespread admission by state courts”
    (¶ 24). The expert’s opinion was supported by more than a single test result: “Giese was found lying in a roadway at 2:12 a.m.; he said he had crashed his vehicle three hours earlier, started walking away from the scene, and fell asleep in the road; there were no bars or restaurants along the route he walked and no alcohol containers found in his car or along that route; and his blood sample drawn an hour or so later had a blood alcohol concentration of .18” (¶ 25).

    Giese’s “real dispute” was less with the science than the factual assumptions the expert made. “It is true that the calculation would be more reliable if the expert had more facts about exactly when and what Giese drank. However, under the circumstances, we think Giese’s questions go to the weight of the evidence, not to its admissibility” (¶ 28).

    Motor Vehicle Law

    OWI – Motor Bicycles

    State v. Koeppen, 2014 WI App 94 (filed 28 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: A motor bicycle is a “motor vehicle” within the meaning of the OWI statutes, at least when the motor bicycle being operated is self-propelled rather than pedaled.

    SUMMARY: The OWI statute prohibits operating a “motor vehicle” while under the influence of an intoxicant. In this case the defendant was charged with operating a motor bicycle in violation of the OWI statute. “[A] motor bicycle is essentially a bicycle with a motor added, such that the bicycle can be pedaled or can be self-propelled using the motor” (¶ 1). The issue before the courts was whether a motor bicycle is a motor vehicle within the meaning of the OWI statute. For present purposes, the Motor Vehicle Code defines a motor vehicle as a vehicle that is “self-propelled.” See Wis. Stat. § 340.01(35).

    The circuit court dismissed the complaint, holding that a motor bicycle is not a motor vehicle. In a decision authored by Judge Lundsten, the court of appeals reversed. It concluded that “a plain-language reading [of the relevant statutes] leads to the conclusion that a ‘motor bicycle’ is a ‘motor vehicle’ for purposes of the OWI/PAC statute, at least when the motor bicycle being operated is self-propelled, rather than pedaled” (¶ 9).

    Municipal Law

    License Denial – Taverns – Certiorari Review

    Smith v. City of Milwaukee, 2014 WI App 95 (filed 26 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: Under the prevailing four-part certiorari review standard, the city acted properly in denying a tavern’s license renewal; the circuit court mistakenly applied a de novo standard based on case law that has been overturned.

    SUMMARY: The city denied a tavern’s application to renew its Class B tavern license based on numerous complaints by neighbors and on the volume of police responses to disturbances at the premises. The tavern appealed to the circuit court, which conducted a de novo review of the record. Although the tavern had been “disorderly or riotous,” the judge found that the city’s nonrenewal decision was excessive (¶ 6).

    The court of appeals reversed in an opinion authored by Judge Curley. The circuit court conducted the de novo hearing pursuant to the court of appeals decision in Nowell v. City of Wausau, 2012 WI App 100, 344 Wis. 2d 269, 823 N.W.2d 373 (Nowell I). However, the supreme court later reversed this decision in Nowell v. City of Wausau, 2013 WI 88, 351 Wis. 2d 1, 838 N.W.2d 852 (Nowell II), in which the court held that certiorari is the correct standard of review in cases such as this.

    The tavern argued that the court of appeals should not apply the certiorari standard of review to the city’s decision, as mandated by Nowell II,because it was not the law when the circuit court heard the case. Rejecting this position, the court held that Nowell II applies retroactively for a variety of public policy reasons (see ¶ 13).

    The court then applied the four-part certiorari review standard in upholding the city’s nonrenewal determination. First, the city council acted within its jurisdiction. Second, it acted according to law. Third, the city’s action was neither arbitrary nor oppressive. Fourth the record “substantiates” the city’s decision (see ¶¶ 19-22).


    Property Taxes – Assessments

    Joseph Hirschberg Revocable Living Trust v. City of Milwaukee, 2014 WI App 91 (filed 19 Aug. 2014) (ordered published 25 Sept. 2014)

    HOLDING: The circuit court did not err either in upholding the assessment of the plaintiff’s property or in making various evidentiary rulings at trial.

    SUMMARY: This case involved a challenge to assessments of the plaintiff’s property. The city of Milwaukee assessed the property (and placed the property on the city’s assessment roll) using a mass-appraisal technique, which was necessary because more than 150,000 parcels of Milwaukee real estate are revalued every year. The city denied the plaintiff’s challenge, and this action for excessive assessment under Wis. Stat. section 74.37(3)(d) followed.

    At trial, the plaintiff relied on its own assessment that was compiled using a comparable-sales approach and an income-capitalization approach and that concluded that the fair market value was considerably lower than the assessed value. The city assessor conducted his own individualized appraisal of the property using a comparable-sales approach; his conclusion as to fair market value was higher than the assessed value. The circuit court upheld the original assessment, finding that the assessed value was not excessive and that the plaintiff was not entitled to any refund.

    In a decision authored by Judge Kessler, the court of appeals affirmed. Beginning with the standard of review, the appellate court noted that a circuit court must give presumptive weight to the assessor’s assessment (see ¶ 9). It then concluded that the circuit court correctly applied Wisconsin property assessment law when it found that the city assessor’s method of analysis was more reliable than that used by the plaintiff, the plaintiff’s evidence did not rise to the level of being significant contrary evidence, and the plaintiff had not overcome the presumption that the assessment was correct
    (see ¶¶ 25-26).

    The court of appeals further concluded that the trial judge did not err in admitting evidence about the city assessor’s individual assessment of the property. The plaintiff attempted to exclude this evidence on grounds that it contradicted the assessment values for the property listed in the city’s assessment roll. Said the court of appeals, “The circuit court upheld the original assessments and properly relied on [city assessor] Weissenfluh’s report and testimony to make that determination. The court appropriately admitted Weissenfluh’s report and testimony to explain how he arrived at his current opinion of the assessment values, and to explain how and why the values differed from the original assessment values. [Plaintiff] Hirschberg was in no way prejudiced by this decision, as the taxes already paid could not be increased beyond those paid by Hirschberg and accepted by the [c]ity” (¶ 15).

    Lastly, the court of appeals concluded that the circuit court did not err in refusing to allow the plaintiff to solicit testimony that, on appeal, the plaintiff claimed was relevant to the issue of whether the assessment of its property violated the uniformity clause of article VII, section 1 of the Wisconsin Constitution. “We note that Hirschberg did not raise the uniformity issue in its complaint when it challenged the assessment values in the circuit court. Hirschberg has therefore forfeited any challenges based on the uniformity clause” (¶ 18).

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