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    Wisconsin Lawyer
    October 01, 2017

    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

    Criminal Procedure

    Double Jeopardy – Jury Deadlock – Retrial

    State v. Alvarado, 2017 WI App 53 (filed 26 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The jury’s note indicating agreement that the defendant was not guilty on the charged offense was not a verdict of acquittal.

    SUMMARY: Defendant Alvarado was charged with second-degree sexual assault. The case went to trial, and the jury was instructed to consider both second-degree sexual assault and the lesser-included offense of third-degree sexual assault. After deliberating for several hours and sending several notes to the court, the jury sent a final note stating that all jurors “agree on not guilty for the second degree” but “are hung on the third degree.” The court concluded that the jury was deadlocked and ordered a mistrial.

    The state then sought to retry Alvarado, and he moved to dismiss the second-degree charge based on the double-jeopardy provisions of the U.S. and Wisconsin constitutions. The circuit court denied his motion, and the court of appeals granted him leave to appeal. He did not argue on appeal that the circuit court erroneously exercised its discretion in ordering a mistrial or that the court should have instructed the jury on a partial verdict. Rather, he contended that the jurors’ professed agreement on the second-degree sexual assault charge constituted a final verdict. In essence, he argued that the jury’s note “was a verdict in substance, even if not in form” (¶ 10).

    In a decision authored by Judge Hagedorn, the court of appeals affirmed. Said the court: “Simply put, the jury’s note was not, in form or substance, a resolution of some or all of the factual elements of second-degree sexual assault. Because the jury was free to reconsider its currently expressed view on the second-degree sexual assault charge, the jury’s note was not a verdict of acquittal. Therefore, retrying Alvarado on the second-degree sexual assault charge does not violate double jeopardy” (¶ 19).

    Sentence Credit – Conditions of Extended Supervision

    State v. Davis, 2017 WI App 55 (filed 12 July 2017) (ordered published 30 Aug. 2017)

    HOLDINGS: 1) The defendant was entitled to sentence credit from the date of his arrest in the present case until he was received at Dodge Correctional Institution to begin serving a revocation sentence for a prior conviction. 2) The circuit court reasonably imposed absolute sobriety as a condition of extended supervision.

    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 this case the defendant argued that the circuit court erred in the calculation of sentence credit and in ordering him to maintain absolute sobriety as a condition of extended supervision. In a decision authored by Judge Gundrum, the court of appeals affirmed.

    On April 21, 2015, while on extended supervision for a 2011 felony conviction, defendant Davis made violent contact with the victim, with whom he had been ordered not to have contact as a condition of his extended supervision. Davis was arrested on that same date and charged with four criminal counts. His extended supervision in the 2011 case was revoked on July 8, 2015, at least in part due to his conduct in the 2015 case, and on July 31, 2015, he was received at Dodge Correctional Institution to serve his revocation sentence. He was sentenced in the new case on Aug. 26, 2015.

    One of the issues on appeal involved the defendant’s entitlement to sentence credit in his 2015 case. The court of appeals concluded that he was entitled to credit from April 21, 2015 (the date of arrest) to July 31, 2015 (the date on which he was received at Dodge to serve his revocation sentence). A convicted offender is entitled to credit “for all days spent in custody in connection with the course of conduct for which the sentence was imposed.” See Wis. Stat. § 973.155(1)(a).

    “[W]e hold that Davis’ sentence on his earlier conviction resumed when he was received at Dodge Correctional on July 31, 2015. With his reception at the institution, his custody was no longer ‘in connection with’ the course of conduct for which he was sentenced in this case; rather, his custody was then solely ‘in connection with’ his earlier conviction. This July 31, 2015 resuming of his sentence in the earlier case … severed the connection between the two cases. Thus, Davis is entitled to sentence credit from the time he was arrested until July 31, 2015” (¶10).

    The appellate court also concluded that the absolute-sobriety condition of extended supervision in the defendant’s 2015 case was reasonable and appropriate. “The postconviction court correctly noted what is common knowledge – that alcohol consumption ‘may impair judgment’ and is ‘often linked to violent or aggressive behavior’ – which behavior the record demonstrated is a significant problem for Davis. It was not a stretch for the court to conclude that Davis and the community will be better served by the absolute sobriety requirement” (¶ 16).

    Among other things before the circuit court was information indicating Davis has a history of substance abuse (see ¶ 15). Though Davis argued that the sentencing judge had no indication that alcohol was related to the 2015 offenses, the appellate court noted that “the law is clear that a condition of supervision need not be related to wrongful actions by a defendant in the particular case before the court” (¶ 16 n.5).

    Employment Law

    At-will Employment Agreements – Impact of Later-adopted Management Policy Regarding Procedures for Investigating Complaints Against Employees

    Bukstein v. Dean Health Sys. Inc., 2017 WI App 54 (filed 20 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The employer lawfully terminated the plaintiff pursuant to an at-will employment agreement entered into between the parties; the employer’s later adoption of a policy providing guidance on conducting investigations of complaints against employees did not modify the at-will employment agreement.

    SUMMARY: Dean Health Systems Inc. terminated the employment of physician-employee Bukstein “without cause,” pursuant to an “at-will” provision in a written employment agreement between Dean and Bukstein. Bukstein then sued Dean for breach of contract and breach of the duty of good faith and fair dealing in connection with the termination. The circuit court denied Dean’s motion for summary judgment, and Bukstein prevailed before a jury on both claims.

    In a decision authored by Judge Blanchard, the court of appeals reversed. It agreed with Dean that the case should have been dismissed on summary judgment, because the at-will provision of the employment agreement authorized Dean to terminate Bukstein without cause (see ¶ 3). Further, it agreed with Dean’s position that Dean was under no duty to terminate Bukstein only in good faith (see ¶ 41).

    Despite the at-will provision in the employment agreement, Bukstein argued that a management policy adopted by Dean after the employment agreement was signed modified the agreement; this policy provides guidelines for Dean investigations into allegations against physician-employees. Again, the court of appeals disagreed with Bukstein.

    “We conclude that case law teaches that a policy like the one here does not modify or take precedence over an at-will employment agreement because of what we will call the ‘only when’ rule…. The ‘only when’ rule provides that policies (whether denominated as a ‘policy,’ or bearing another label, such as ‘handbook,’ ‘manual,’ or ‘procedure’) alter an established at-will employment relationship ‘only when’ the policy ‘contains express provisions from which it can reasonably be inferred that the parties intended to bind each other to a different employment relationship’ than the established at-will relationship” (¶¶ 16-17).

    In this case nothing in the Dean policy shows an intent to abandon the employment-at-will relationship. “At best, the policy provides an alternative route that Dean may or may not pursue in addressing complaints” (¶ 27). Neither party signed the Dean policy; the policy makes no reference, explicit or implied, to the at-will provision of the employment agreement; and the policy generally uses permissive language with respect to Dean investigations (see ¶¶ 29-31). Accordingly, Dean was entitled to summary judgment on each of Bukstein’s claims.


    Medical Malpractice – Damages Caps – Unconstitutional

    Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 2017 WI App 52 (filed 5 July 2017) (ordered published 30 Aug. 2017)

    HOLDING: The $750,000 cap on noneconomic damages in medical malpractice actions is unconstitutional on its face.

    SUMMARY: The plaintiff suffered severe injuries when the hospital allegedly left untreated her septic infection. Claiming medical malpractice and lack of informed consent, she sued various medical providers and the Wisconsin Injured Patients and Families Compensation Fund (the Fund). A jury found no medical negligence but did find for the plaintiff on the informed-consent claim. It awarded $15 million in noneconomic damages and $1.5 million for her husband’s loss of society and companionship.

    In post-verdict motions, the Fund moved to reduce those damages to the statutory cap amount, $750,000, set forth in Wis. Stat. section 893.55. The circuit court ruled that, while the statutory cap was constitutional on its face, it was unconstitutional as applied.

    The court of appeals affirmed on alternate grounds in an opinion authored by Judge Kessler. The court held that the $750,000 statutory cap was unconstitutional on its face based on the principles set forth in Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. “All of the conclusions reached by the supreme court in Ferdon continue to hold true today. The record before us does not support a finding that the legislative objectives articulated in Wis. Stat. § 893.55 are promoted in any way because the amount of the noneconomic damages cap is $750,000” (¶ 21).

    The court assessed data on physician retention rates, overwrought concerns about “defensive medicine,” the cost of medical insurance premiums, and the billion-plus dollars now sitting in the Fund. The holding centers on the $750,000 cap number, which the court found arbitrary and unsupported by the purported statutory goals.

    Statute of Repose – Evidence – Insurance

    Wosinski v. Advanced Cast Stone Co., 2017 WI App 51 (filed 11 July 2017) (ordered published 30 Aug. 2017)

    HOLDINGS: Judgment was affirmed in part and reversed in part on sundry issues such as the statute of repose, evidence, insurance coverage, pretrial settlement offers, and judgment interest.

    SUMMARY: One person was killed and several others injured when a concrete panel on a public parking garage fell and struck them. The plaintiffs sued various defendants, including the county, subcontractors, and insurers. A jury awarded more than $39 million in compensatory and punitive damages.

    The court of appeals affirmed in part and reversed in part in a long, fact-intensive opinion authored by Judge Brash that addresses numerous issues. The court rejected the argument by a subcontractor, ACS, that the action was blocked by the statute of repose; the court held that sufficient evidence showed the action fell within a statutory exception for concealment and misrepresentation by ACS (see ¶ 38). Nor did the trial court err by applying equitable estoppel to block ACS’s defense based on the six-year statute of limitation for contract actions against the county (see ¶ 43).

    The court also rejected several arguments premised on evidentiary rulings involving hearsay, drawings, and “other acts.” Moreover, the evidence supported the awards against ACS for punitive damages (see ¶ 74) and the deceased’s pain and suffering (see ¶ 98). The trial evidence also supported the breach-of-contract damages obtained by the county (see ¶ 105).

    Turning to the appeal by one insurer, Liberty Insurance Underwriters, the court agreed that there was coverage but reversed findings that Liberty had breached its duty to defend (see ¶ 122) and duty of good faith (see ¶ 132). It thus followed that Liberty was responsible only for its coverage, including punitive damages and emotional-distress damages, but not the entire amount of the damages as the trial court had ruled (see ¶ 139).

    Regarding the plaintiffs’ cross-appeal, the court held that a settlement offer tendered by one party was not valid under Wis. Stat. section 807.01 because it could not be fully and fairly evaluated (see ¶ 158). As to another party’s claim regarding interest on the judgment, the court ruled that the interest accrues only on the amount of damages, not damages plus taxable costs and interest (see ¶ 162).

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