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    Wisconsin Lawyer
    November 01, 2016

    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.

    Daniel D. Blinka & Thomas J. Hammer

    Appellate Procedure

    Final Orders – Pendency of Claim for Attorney Fees Due Under Contract

    McConley v. T.C. Visions Inc., 2016 WI App 74 (filed 4 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: The circuit court’s order dismissing the plaintiff’s complaint was a final order appealable as a matter of right even though there was a pending claim for attorney fees based on a contract.

    SUMMARY: McConley appealed an order granting summary judgment and dismissing his complaint against T.C. Visions Inc. After entry of the dismissal order, T.C. Visions moved for an assessment of attorney fees based on the contracts between the parties allowing the prevailing party in any litigation relating to the contracts to recover reasonable attorney fees against the nonprevailing party. Because of the pending claim for attorney fees, the court of appeals questioned whether the appeal was taken from a final order that is appealable as of right under Wis. Stat. section 808.03(1).

    The parties agreed that the contractual entitlement to attorney fees is simply a taxation of costs under Wis. Stat. section 806.06(1)(c) and (4), and that the pending claim for attorney fees does not preclude the dismissal order from being a final order appealable as of right. In a per curiam opinion, the court of appeals agreed and confirmed its appellate jurisdiction.

    Said the court, “Although our preference is to have attorney fee disputes decided before an appeal is taken from the final order or judgment disposing of the litigation so that all issues are within one appeal, our preference does not dictate our jurisdiction under Wis. Stat. § 808.03(1).... The prevailing party’s claim for an award of attorney fees due under a contract does not affect the finality of a judgment or order that disposes of the entire matter in litigation as to one or more of the parties. Here the … order dismissing McConley’s complaint is a final order appealable as of right and appellate jurisdiction is confirmed” (¶ 11).

    Civil Procedure

    Small Claims – Estates – Thefts – Attorney Fees

    Estate of Miller v. Storey, 2016 WI App 68 (filed 16 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: A small-claims damages award was reversed on sundry grounds, including that the circuit court failed to let the jury decide exemplary damages, the total award exceeded the limit for small-claims judgments, attorney fees were improperly awarded, costs were erroneously doubled, and part of the award was wrongly deemed to be restitution.

    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.

    SUMMARY: In a small-claims proceeding arising out of the mismanagement of an estate, the circuit court awarded damages totaling more than $52,000. The judgment included restitution, exemplary damages, double statutory costs, and actual attorney fees. The case involved alleged financial mismanagement by Storey of her uncle’s estate while she cared for him in his final days.

    The court of appeals reversed in an opinion, authored by Judge Seidl, that covered a wide range of issues. Initially, the court rejected Storey’s contention that she did not have sufficient notice of the estate’s claim for statutory theft under Wis. Stat. section 895.446. The record showed she had “ample notice” based on the estate’s proffered special-verdict question and the parties’ agreement on jury instructions (¶ 14).

    The court agreed with Storey on a plethora of other issues. First, the circuit court erred by not allowing the jury to decide whether exemplary damages were appropriate, in violation of a “clear, settled rule” (¶ 17). The law placed the onus on the estate, not Storey, to request a jury instruction or special-verdict question on exemplary damages (see ¶ 18). Second, when the jury awarded $10,000 in compensatory damages, the circuit court erred by not paring it to $5,000, the small-claims limit set by Wis. Stat. section 799.01.

    Third, the circuit court erred by awarding actual attorney fees to the estate, contrary to controlling statutory language (see ¶ 30). (The opinion features a careful discussion of statutes dealing with attorney fees.) Fourth, in light of the reduction of damages to $5,000, the circuit court also erred by awarding double costs based on Storey’s rejection of a $7,500 settlement offer under Wis. Stat. section 807.01(3) (see ¶ 31).

    Fifth, the circuit court properly admitted expert opinion on handwriting to the effect that various checks were written by “some unnamed third party,” not Storey (¶ 39). Finally, the trial judge erred in motions after verdict by deeming the judgment a “restitution” order, which contravened Wis. Stat. section 895.446(4).

    Criminal Law

    Minimum Sentences for Certain Child Sex Offenses – Wis. Stat. Section 939.617

    State v. Holcomb, 2016 WI App 70 (filed 3 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: If a defendant is convicted of possession of child pornography, Wis. Stat. section 939.617(2) authorizes a circuit court to depart from a presumptive three-year minimum term of confinement in prison and impose either probation or initial confinement of less than three years but only if the defendant is not more than 48 months older than the child-victim.

    SUMMARY: The defendant was convicted of several counts of possession of child pornography contrary to Wis. Stat. section 948.12. His conduct involved taking photographs of children and making them available online (see ¶ 17). His appeal was focused on Wis. Stat. section 939.617, which prescribes minimum sentences for certain child sex offenses, including violations of section 948.12.

    Wisconsin Statutes section 939.617(1) provides that for covered crimes the court shall impose a bifurcated sentence and “the term of confinement in prison portion of the sentence shall be at least … 3 years” unless specific exceptions are met.

    The exception at issue in this case is found at Wis. Stat. section 939.617(2), which provides that “[i]f the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record, the court may impose a sentence that is less than the sentence required under sub. (1) or may place the person on probation under any of the following circumstances: …. (b) If the person is convicted of a violation of [Wis. Stat. §] 948.12 [possessing child pornography], the person is no more than 48 months older than the child who engaged in the sexually explicit conduct.”

    The defendant argued that the probation option under this statute is limited to cases in which the defendant is no more than 48 months older than the child-victim (not the situation in this case) but that all defendants are eligible for a period of confinement of less than three years if the court finds that a shorter sentence will serve the best interests of the community and the public will not be harmed.

    In a decision authored by Judge Hagedorn, the court of appeals disagreed with the defendant’s interpretation of the statute. It concluded that “[Wis. Stat. section] 939.617(2) authorizes a circuit court to depart from the minimum and impose either probation or initial confinement of less than three years only if the defendant is not more than forty-eight months older than the child-victim” (¶ 1).

    Physical Abuse of a Child – Wis. Stat. Section 948.03 – “Great Bodily Harm”

    State v. Davis, 2016 WI App 73 (filed 30 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: A reasonable jury could conclude that the bone fractures sustained by the infant victim constituted “great bodily harm” for purposes of the child abuse statute.

    SUMMARY: The Wisconsin Criminal Code establishes several different levels of bodily harm, including “great bodily harm” and “substantial bodily harm.” Great bodily harm is defined as “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.” Wis. Stat. § 939.22(14). Substantial bodily harm is defined as “bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.” Wis. Stat. § 939.22(38) (emphasis added).

    In this case the defendant was convicted by a jury of two counts of physical abuse of a child by recklessly causing great bodily harm to an infant victim. See Wis. Stat. § 948.03. He argued that this statute was inapplicable because the injuries that formed the basis of the charges against him involved fractured bones – a type of injury that constitutes substantial bodily harm but not great bodily harm.

    In a decision authored by Judge Kess-ler, the court of appeals began its analysis by noting that the child abuse statute under which the defendant was prosecuted penalizes “bodily harm” and “great bodily harm” but makes no provision for “substantial bodily harm”; “[t]here is no offense of physical abuse of a child by causing substantial bodily harm” (¶ 16).

    The court then went on to address whether bone fractures can constitute great bodily harm even though they are specifically included in the list of injuries constituting substantial bodily harm.

    The state argued that the multiple fractures sustained by the infant victim in this case constituted great bodily harm. It conceded that the fractures did not involve a risk of death, disfigurement, or permanent or protracted loss or impairment of any part of the victim’s body but were nonetheless great bodily harm under the language of Wis. Stat. section 939.22(14) because they involved other serious bodily injury. Case law construing the great-bodily-harm statute establishes that the phrase “or other serious bodily injury” was designed “as an intentional broadening of the scope of the statute to include bodily injuries which were serious, although not of the same type or category as those recited in the statute” (¶ 20).

    The court of appeals noted that the statute defining great bodily harm antedates the provision creating a definition of substantial bodily harm and that the legislature did not remove the other-serious-bodily-injury language from the definition of great bodily harm when it established a definition of substantial bodily harm. It is thus “not out of the question to expect some overlap” between the two definitions (¶ 21). “Just because all fractures meet the definition of substantial bodily harm, that does not imply that a particular fracture, or multiple fractures as is the case here, cannot be serious enough to qualify as an ‘other serious bodily injury’ for purposes of being great bodily harm” (¶ 21).

    In this case the appellate court concluded a reasonable jury could conclude that the defendant caused great bodily harm to the victim L.D. “L.D. suffered from not just one, but multiple, fractures. L.D. was an infant when she sustained multiple broken ribs, four broken leg bones, and a broken bone in her foot. She also sustained hemorrhages and bruising around her eyes…. Accordingly, we reject [the defendant’s] argument that L.D.’s broken bones do not constitute ‘great bodily harm” (¶ 22).

    Employment Law

    Employee Nonsolicitation Provisions – Restrictive Covenants

    The Manitowoc Co. v. Lanning, 2016 WI App 72 (filed 17 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: A nonsolicitation of employee (NSE) provision is a restrictive covenant subject to Wis. Stat. section 103.465, and the NSE provision here was not enforceable.

    SUMMARY: Lanning, a long-time employee of the Manitowoc Co., was a “big fish” whose employment agreement contained an NSE provision. The NSE provision prohibited him from directly or indirectly soliciting, inducing, or encouraging any Manitowoc employee “to terminate their employment” with Manitowoc or to “accept employment with any competitor, supplier or customer of Manitowoc” (¶ 1). Lanning quit in 2010, went to work for a competitor, and actively solicited multiple Manitowoc employees in violation of the NSE provision. The circuit court granted summary judgment in Manitowoc’s favor, also awarding attorney fees and costs.

    The court of appeals reversed in an opinion authored by Judge Hagedorn. First, the court held that the NSE provision is subject to Wis. Stat. section 103.465, which regulates the use of restrictive employment covenants. “Case law has made clear that § 103.465 applies to any covenant between an employer and employee that ‘seeks to restrain competition’ or operates as a ‘trade restraint’” (¶ 14). Second, the NSE provision in Lanning’s contract was overbroad. “An overbroad provision is not reasonable and enforceable simply because the employer enforces it in a reasonable manner…. This is precisely what § 103.465 was enacted to prevent” (¶ 19).

    The court extensively discussed why the NSE provision was overbroad, such as its inclusion of current employees who might be solicited to work for businesses that do not compete with Manitowoc or who hold “positions that do not pose a unique competitive risk” (¶ 30).

    Health Care Records

    Confidentiality – Failure to State a Claim – Internal Access – Unrecorded Information

    Wall v. Pahl, 2016 WI App 71 (filed 30 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: The plaintiff’s complaint failed to state a claim on which relief could be granted based on his allegations that the defendants had improperly released his patient health care records or withheld records from him.

    SUMMARY: Wall, a former patient at Gundersen Lutheran Health System, brought suit against Gundersen and two of its employees. He contended that the employees violated Wis. Stat. section 146.82, which prohibits the release of patient health care records except in specific circumstances enumerated in the statute. Wall also asserted that Gundersen violated Wis. Stat. section 146.83(4)(b) by improperly concealing or withholding patient health care records from him. The circuit court granted the defendants’ motion to dismiss for failure to state a claim.

    The court of appeals affirmed in an opinion authored by Judge Stark. The court first addressed the claims against the two employees. After closely examining the pertinent statutes, the court conceded that “the interplay between Wis. Stat. § 146.816 and Wis. Stat. § 146.82 is not clear cut, and interpreting the statutes in context with one another yields more questions than answers” (¶ 20). Nonetheless, the court held that “interpreting Wis. Stat. 146.82 to apply to the dissemination of patient health care records from the organization holding the records to its own employees would assuredly lead to unreasonable results” (¶ 21).

    It agreed with the two defendants that interpreting the statute “to apply to internal use of patient health care records would run the risk of entering into a field with ‘no sensible or just stopping point’” (¶ 22) (citation omitted). In short, monitoring internal access to records by employees imposes “too unreasonable a burden” (¶ 23).

    The court cautioned, however, that it was not giving “those employees carte blanche to access patient records for nefarious purposes without consequences. We merely hold that an employee’s internal access to patient records is not the type of conduct governed by §146.82” (¶ 24). In sum, Wis. Stat. section 146.82 applies when information is disclosed to anyone outside the organization (see ¶ 26).

    The court also upheld dismissal of the claim against Gundersen that alleged that Gundersen violated Wis. Stat. section 146.83(4)(b) by improperly concealing or withholding patient health care records from the plaintiff. Specifically, he claimed that Gundersen had violated the statute by blocking and hindering him from investigating the reason why and the authority upon which the two Gundersen employees had accessed his health care records.

    The appellate court disagreed. The statutory definition of a patient health care record “does not encompass mere information that is not reduced to a record” (¶ 28). Because there was no allegation that Gunderson had concealed or withheld any patient health care records, the plaintiff had not stated a claim.

    Motor Vehicle Law

    Implied Consent – Voluntary Consent

    State v. Blackman, 2016 WI App 69 (filed 3 Aug. 2016) (ordered published 28 Sept. 2016)

    HOLDING: The circuit court erroneously concluded that the defendant’s consent to the withdrawal of blood pursuant to the implied consent law was coerced.

    SUMMARY: This case concerns Wisconsin’s implied consent law. See Wis. Stat. § 343.305. Traditionally the use of this statute to obtain a breath, blood, or urine sample was tied to the arrest of the defendant for an operating while intoxicated (OWI)-related offense. However, in 2009, the legislature expanded the statute by creating Wis. Stat. section 343.305(3)(ar)2., which provides for the taking of a blood, breath, or urine sample from a driver involved in an accident that causes death or great bodily harm to a person when an officer has evidence that the driver violated a traffic law. “Notably, the amendment created a statutory fact pattern which does not require evidence of impairment from alcohol or a controlled substance” (¶ 4).

    Wisconsin Statutes section 343.305(9)(a)5. codifies the issues to be decided at an implied consent refusal hearing if the defendant refused a chemical test for intoxication and is prosecuted for that refusal. Among the statutorily specified issues are whether the officer had probable cause to believe the defendant driver was under the influence of alcohol or a controlled substance and whether the defendant was lawfully arrested for an OWI-related offense.

    When the legislature expanded the reach of the implied consent law by enacting Wis. Stat. section 343.305(3)(ar)2., it neglected to amend the proofs required at a refusal hearing to account for situations in which a chemical test was requested from a driver who was involved in a serious accident after violating a traffic law but who was not arrested for an OWI-related offense. Thus a driver charged for refusing a test requested under Wis. Stat. section 343.305(3)(ar)2. should win a refusal hearing (see ¶ 5).

    In this case, defendant Blackman was involved in an accident in which he turned left in front of an oncoming bicyclist and caused great bodily harm to the cyclist. An officer asked for a sample of his blood per the implied consent law and informed him that his license would be revoked if he refused to give a sample. Blackman consented and provided a sample, which revealed a blood-alcohol content (BAC) of .10 percent.

    Blackman moved to suppress the results of the blood test, arguing that his consent to the blood test was coerced inasmuch as the statutory scheme for refusal hearings under Wis. Stat. section 343.305(9)(a)5. does not support the threatened revocation and is statutorily unenforceable. The circuit court granted the motion, finding that Blackman’s consent to taking of the blood sample was coerced.

    In a majority decision authored by Judge Reilly, the court of appeals reversed. Said the court, “We disagree with Blackman’s premise that his consent was coerced on the grounds that he would have won at a refusal hearing. The fundamental fact is that under the implied consent law, Blackman, by driving on the highway, impliedly consented to submitting a sample of his blood under the facts presented. ‘Impliedly consented,’ however, does not mean compelled. The implied consent law does not compel a blood sample as a driver has the right to refuse to give a sample. A driver may submit a sample (actual consent) or may withdraw consent (refusal) when law enforcement requests a sample. The choice is solely with the driver” (¶ 11).

    “The choice Blackman faced … was to give or not give a sample of his blood, and the choice was his alone. Had Blackman withdrawn his consent and refused to submit a sample of his blood, then what [the officer] told him was true – his license would have been statutorily revoked. The fact that Blackman could have prevailed at a refusal hearing due to the legislature’s failure to amend the refusal hearing statute does not transform Blackman’s freely given actual consent under Wisconsin’s implied consent law into a coerced submittal” (¶ 12).

    Judge Hagedorn filed a concurring opinion, writing separately “to clarify that consent under the Fourth Amendment need not be based upon a full understanding of one’s rights; it need only be voluntary” (¶ 14).

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