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    Vol. 79, No. 8, August 2006

    Court of Appeals Digest

    This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    * *

    Civil Procedure

    Claims Against Government - Service of Disallowance of Claim - Service "On the Claimant" Required

    Pool v. City of Sheboygan, 2006 WI App 122 (filed 3 May 2006) (ordered published 28 June 2006)

    On May 25, 2004, Pool filed a notice of claim and claim against the city of Sheboygan, alleging inverse condemnation without compensation. On Sept. 8, 2004, the city sent a notice by certified mail to Pool, disallowing Pool's claim and advising him of the six-month statute of limitation for bringing a lawsuit on the claim. However, the city did not check the box on the certified mail receipt indicating "restricted delivery." On Sept. 9, 2004, Pool's adult daughter received the notice of disallowance and signed the certified mail receipt of service.

    On March 22, 2005, Pool filed a petition against the city for ascertainment of compensation. The city moved to dismiss the petition because it was untimely under Wis. Stat. section 893.80(1g), which states in pertinent part, "no action on a claim under this section ... may be brought after 6 months from the date of service of the notice of disallowance." The circuit court granted the city's motion to dismiss. It concluded that Pool had "actual notice" of the disallowance and that this was sufficient to satisfy the requirements of section 893.80(1g) and to trigger the six-month limitation period. In a majority decision authored by Judge Brown, the court of appeals reversed.

    Section 893.80(1g) explicitly states that the notice of disallowance of a claim "shall be served on the claimant by registered or certified mail." The appellate court concluded that the statute is plain on its face. "[T]he notice of disallowance served on Pool's daughter is insufficient to comply with the statute because she is not the claimant. There is nothing unclear or open to interpretation in the statute's language that the notice of disallowance must be served on the claimant" (¶ 10). The court rejected the city's contention that actual notice was sufficient for purposes of section 893.80(1g) (see ¶ 11).

    Judge Snyder filed an opinion concurring in part and dissenting in part.

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    Criminal Procedure

    Guilty Pleas - Advising Defendant Regarding Potential Punishment

    State v. Sutton, 2006 WI App 118 (filed 17 May 2006) (ordered published 28 June 2006)

    In the truth-in-sentencing (TIS) regime, a sentence to prison must be bifurcated into two components, a term of initial confinement followed by a term of extended supervision. In TIS terminology, the term of initial confinement plus the term of extended supervision equals the term of imprisonment.

    In this case the defendant pleaded guilty or no contest (the opinion does not specify whether guilty or no contest pleas were entered) to two felonies. At the plea hearing the court advised him of the maximum term of imprisonment for each crime. It did not, however, advise him of the maximum term of initial confinement for each crime. The defendant moved for postconviction relief, arguing that his pleas were not knowingly, intelligently, and voluntarily entered because the judge did not advise him of the maximum terms of initial confinement that he faced. The circuit court denied the motion. In a decision authored by Judge Snyder, the court of appeals affirmed.

    The circuit court's duty when accepting a plea of guilty or no contest is codified in Wis. Stat. section 971.08 and also is elucidated in the supreme court's opinion in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). The statute requires the circuit court to determine that the defendant understands "the potential punishment if convicted," and Bangert requires a court to "establish the accused's understanding of ... the range of punishments" associated with the crime charged. Said the court of appeals, "[t]he [circuit] court here personally informed [the defendant] of the maximum term of imprisonment under TIS, even though the maximum term of confinement was not made explicit by the court. We hold that the circuit court has met the standard articulated by our supreme court in Bangert and no additional dissection of the potential punishment is required" (¶ 15).

    Confessions - Valid Waiver

    State v. Backstrom, 2006 WI App 114 (filed 9 May 2006) (ordered published 28 June 2006)

    A jury convicted Backstrom of sexual assault of a child. On appeal the defendant contended that the trial court improperly admitted an incriminating statement that he made, while in custody, to a prosecutor (Carroll). Although the prosecutor did not reread to the defendant the Miranda warnings, the trial court found that a valid waiver the defendant had given the day before carried over to this interrogation.

    The court of appeals, in a decision authored by Judge Wedemeyer, affirmed. "Backstrom raises a single issue in this appeal: whether his constitutional rights were violated when the prosecutor failed to formally re-advise him of his Miranda rights before conducting the interview in her office" (¶ 9). "The trial court's findings, which are supported by the testimony from the Miranda-Goodchild hearing, are not clearly erroneous. The record demonstrates that Backstrom was properly advised of his Miranda rights during his conversation with [Detective] Andritsos on July 13th and that he agreed to waive those rights. He then was reminded of those rights the next morning when he was brought into Carroll's office. Backstrom himself admitted during his trial testimony that he remembered Carroll asking him if he recalled Andritsos advising him of the Miranda warnings, and that he said he did in fact recall being read his rights" (¶ 11). Wisconsin case law does not require a rereading of the Miranda warnings in a situation in which the totality of the circumstances demonstrates that the suspect validly waived his rights based on an earlier set of warnings and waiver.

    Confrontation - Forgetful Witness

    State v. Rockette, 2006 WI App 103 (filed 31 May 2006) (ordered published 28 June 2006)

    Rockette was convicted of murder and other offenses. His principal contention on appeal was that prior statements allegedly made by a key prosecution witness, who claimed not to recall the statements, should not have been used against him.

    The court of appeals, in an opinion written by Judge Anderson, affirmed. Rockette argued that the witness's asserted memory loss denied Rockette the right to confront his accuser; in essence, "[the accuser] could not be cross-examined on the veracity of the statements imputed to, but not admitted by, him" (¶ 18). The court relied on two U.S. Supreme Court decisions in which the Court held that the confrontation right is satisfied when the person who allegedly made the statements that the person now cannot recall is produced as a witness subject to cross-examination.

    "Fensterer [Delaware v. Fensterer, 474 U.S. 15, 18 (1985)] and Owens [United States v. Owens, 484 U.S. 554, 556 (1988)]teach us that the key inquiry for Confrontation Clause purposes is whether the declarant is present at trial for cross-examination, takes the oath to testify truthfully and answers questions asked of him or her by defense counsel. These cases also plainly inform us that the Confrontation Clause does not guarantee that the declarant's answers to those questions will not be tainted by claimed memory loss, real or feigned" (¶ 24). The court of appeals said that the Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36 (2004), did not alter these earlier holdings.

    The court also addressed and rejected three other claimed errors: alleged improper vouching by the prosecutor; the exclusion of evidence of lies told by the same witness; and the withholding of exculpatory evidence.

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    Operator - Trucks - Unloading

    Bauer v. Century Sur. Co., 2006 WI App 113 (filed 2 May 2006) (ordered published 28 June 2006)

    Bauer, a truck driver, delivered a turbine to a job site. While assisting in unloading the turbine, Bauer was injured when a crane operator, Johnston, struck a power line and thereby caused explosions and an electrical surge. Bauer sued Johnston and Johnston's commercial automobile and general liability insurance carrier on the theory that Johnston was "operating" Bauer's truck by unloading it. The circuit court granted summary judgment in favor of the insurer.

    The court of appeals, in an opinion authored by Chief Judge Cane, reversed. "It is undisputed that if Johnston was loading or unloading the flatbed truck when the power line incident occurred, Great West must provide insurance coverage to Johnston under the policy" (¶ 6). Wisconsin has expressly adopted the "complete operation doctrine" under which the "loading and unloading" is deemed to cover the "entire process" (see ¶ 10). "Here, an examination of both Bauer's and Johnston's actions reveals that the unloading process began when Johnston raised the crane into the power lines. Bauer and Johnston took several `preparatory' steps for unloading the turbine from the truck" (¶ 13). The court distinguished other cases on the ground that Johnston and Bauer were "actively taking steps to unload the turbine" when the accident occurred.

    Unidentified Vehicle - Hit-and-Run

    DeHart v. Wisconsin Mut. Ins. Co., 2006 WI App 129 (filed 23 May 2006) (ordered published 28 June 2006)

    The plaintiff argued that "the unidentified motor vehicle that struck another vehicle and forced [the plaintiff's] vehicle off the road is an `unidentified motor vehicle involved in a hit-and-run accident,' pursuant to Wis. Stat. § 632.32(4)(a)2.b., and therefore the statute mandates coverage" (¶ 1). The circuit court disagreed with the plaintiff.

    The court of appeals, in a decision written by Judge Peterson, reversed in an opinion that grappled with whether coverage applied only if the plaintiff's vehicle was itself struck by another vehicle. Other decisions that the court examined required physical contact for a "hit-and-run," but involved two-car accidents in which "any contact that occurred would necessarily be between the insured vehicle and the unidentified vehicle" (¶ 9). Other case law involved a collision between an unidentified vehicle and another vehicle, which in turn struck the insured vehicle (two collisions) (see ¶ 12). Here the plaintiff alleged that the unidentified vehicle struck the second vehicle, which in turn forced the plaintiff's vehicle off the road - only one collision. Nonetheless, the court held that coverage was sufficiently alleged. The physical contact with the second vehicle furthered the public policy of protecting against fraud (see ¶ 15).

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    Motor Vehicle Law

    OWI - Collateral Attack on Prior OWI Convictions

    State v. Hammill, 2006 WI App 128 (filed 2 May 2006) (ordered published 28 June 2006)

    The defendant appealed a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), fifth offense, and an order denying his postconviction motion. Among other things he argued that the circuit court should not have counted a village of Cameron OWI conviction for penalty enhancement purposes because the village did not have jurisdiction to convict him. In an opinion authored by Judge Peterson, the court of appeals affirmed.

    In the village of Cameron case, the defendant was arrested for OWI-first offense on Jan. 1, 1991. On Jan. 28, 1991 he was arrested for OWI in Eau Claire, which violation also was charged as a first offense. He pleaded to both cases on the same day, with the Eau Claire conviction occurring first. The defendant asserted that the village of Cameron charge then became an OWI-second and that the Cameron municipal court did not have subject matter jurisdiction over a second OWI offense (which is criminal). Because the Cameron court lacked subject matter jurisdiction, the defendant contended, the resulting conviction is a nullity and cannot be counted for penalty enhancement purposes in the present case.

    The state responded that the defendant's challenge to the village of Cameron conviction is barred by State v. Hahn, 2001 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528."Hahn established `a bright-line rule that applies to all cases' for attacking the validity of a prior conviction during an enhanced sentence proceeding based on the prior conviction" (¶ 16). Hahn held that "a circuit court may not determine the validity of a prior conviction during an enhanced sentence proceeding predicated on the prior conviction unless the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior conviction. Instead, the offender may use whatever means [are] available under state law to challenge the validity of a prior conviction on other grounds in a forum other than the enhanced sentence proceeding" (¶ 16) (citation omitted).

    Because the defendant's challenge to the village of Cameron conviction was not grounded on an alleged violation of his right to counsel, the state argued that he could not collaterally attack the village of Cameron conviction in the present case based on a lack of subject matter jurisdiction. The defendant replied that Hahn did not specifically address whether a void judgment could be used to enhance a sentence. Said the appellate court, "[w]e disagree. Hahnis a broad, bright-line rule. Since [the defendant's] challenge to his Village of Cameron conviction is not based on the denial of his right to counsel, the challenge is barred by Hahn" (¶ 17).

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    "Preoccupied Worker" Doctrine - Known Hazards

    Bain v. Tielens Constr. Inc., 2006 WI App 127 (filed 16 May 2006) (ordered published 28 June 2006)

    The defendant, Tielens Construction, was the general contractor for a new house. Its crew had constructed the house's frame, including a stairwell, and, as was customary, installed a protective but temporary railing over the stairwell. Subcontractors doing plaster and drywall work removed the railing and failed to replace it when they finished their work. When Bain arrived to paint the interior of the house, he noticed the open stairwell and attempted to find materials on site to make his own railing but, finding none, nevertheless began painting. As he was painting, Bain would walk backward to stay out of the cloud of paint particles produced by his sprayer. While painting the ceiling, Bain stepped into the unprotected stairwell and fell, sustaining multiple injuries.

    Bain sued Tielens, alleging negligence, a safe place statute violation, and other claims. (The drywall and plaster subcontractors settled.) The circuit court granted summary judgment to the defendant. It determined that Bain was more negligent than Tielens as a matter of law for essentially two reasons. First, Bain had notice of the open stairwell. Second, despite this notice, he nonetheless proceeded with his painting (see ¶ 7). In a decision authored by Judge Hoover, the court of appeals reversed.

    With regard to Bain's knowledge of the open stairwell, the parties disputed the applicability of the "preoccupied worker doctrine." As described in Wis. Jury Instruction-Civil 1051, this doctrine states: "Momentary diversion of attention or preoccupation of a worker in the performance of work minimizes or reduces the degree of care that would otherwise be required of him or her; nevertheless, a worker has the duty to use the same degree of care for his or her safety that an ordinarily prudent worker would use under such conditions (when preoccupied with work) (when his or her attention was momentarily diverted by work)."

    Said the court, "[t]his rule is grounded in public policy. It recognizes that a worker who is necessarily in the location of a hazard, and who necessarily must be absorbed in his or her work to efficiently perform the job, `has only a limited ability to watch out for the hazards, and a momentary preoccupation is not negligence if ordinary prudent work[ers] under such conditions would have acted similarly.' Walsh v. Wild Masonry Co., 72 Wis. 2d 447, 453-54, 241 N.W.2d 416 (1976)" (¶ 10).

    In Walsh the supreme court observed: "Those cases in which the court has approved of the diversion-of-attention instruction are those in which the immediate hazard was unknown to one who was preoccupied in his work." Walsh, 72 Wis. 2d at 454. Earlier cases, however, acknowledge the possibility of being distracted from even a known hazard.

    Said the court, "[t]hese early cases can be harmonized with Walsh, which also states: `Only in those cases where the party is unaware of a particular and immediate danger because of his preoccupation or diversion of attention is he exonerated from exercising the usual care in recognizing the danger and avoiding it.' Walsh, 72 Wis. 2d at 454 (emphasis added). That is, we can say the preoccupied worker doctrine applies not only when the worker is unaware because risk is unknown from the outset and preoccupation prevents the risk's discovery, but also when the worker is unaware because concentration on the task at hand has caused the worker to forget a previously acknowledged hazard. Of course, this doctrine will not always apply. There must be sufficient evidence from which the fact-finder can infer the job caused a reasonable distraction" (¶¶ 14-15).

    The court concluded that, ultimately, this case contained too many competing facts and inferences regarding which party was negligent and to what extent. "It is more appropriately resolved by a jury, not resolved on summary judgment" (¶ 20).

    Battery - Self-Defense - Provocation

    Root v. Saul, 2006 WI App 106 (filed 2 May 2006) (ordered published 28 June 2006)

    This personal injury case arose out of a physical altercation between people who were attending a football game party. Following a jury trial, judgment was entered in favor of the defendant. On appeal the plaintiff argued that he is entitled to a new trial in the interest of justice because, among other things, the trial court denied his request to instruct the jury on provocation as a bar to a self-defense theory.

    In a decision authored by Judge Kessler, the court of appeals reversed. It concluded that "the real controversy was not fully tried because the jury was not instructed that the privilege of self-defense may be lost where the person claiming the privilege was the initial aggressor when that person had not taken action to withdraw from the conflict and made that intent to withdraw known to the other party"(¶ 1).

    Once the court concluded that Wisconsin law provides that a civil defendant may lose his or her right to claim self-defense if he or she was the initial aggressor, the court had to decide whether the facts of this case justified a jury instruction that incorporated this rule. The trial court had found that the instruction was not applicable because the defendant's conduct was not "of a type likely to provoke others to attack him...."

    The court of appeals held that this finding was clearly erroneous. "[The plaintiff] testified that [the defendant] `smashed [him] in the face with a fist.' Although [the defendant] characterized it differently, he admitted that he slapped [the plaintiff] in the face. Intentionally slapping or hitting someone in the face - acts that can be a battery - is certainly conduct that can provoke others to attack. Under these facts, a jury could find that [the defendant] was the initial physical aggressor. An instruction indicating that self-defense may not be available to [the defendant] should have been given" (¶ 28).

    Tenants - Safe Place

    Raymaker v. American Family Mut. Ins., 2006 WI App 117 (filed 2 May 2006) (ordered published 28 June 2006)

    A tenant, Raymaker, was injured in a fall from a broken attic ladder. Raymaker then sued Thomson, his former landlord. The court granted summary judgment dismissing Raymaker's various claims after determining that: "Raymaker could not meet the burden of proof on negligence; Wisconsin Stat. ch. 704 does not establish a private cause of action for its breach; Thomson had no notice of any defects and Raymaker therefore would be unable to meet his burden of proof on forseeability, a prerequisite to contract damages; and the lease did not allow for tort damages in the event of its breach" (¶ 9).

    The court of appeals, in an opinion written by Judge Hoover, affirmed. The court held that the safe place statute did not apply because Raymaker did not live in a "public building" to which the statute applies (see ¶ 13). The landlord-tenant code (Wis. Stat. ch. 704) also provided no basis for a claim on any of three different theories. First, the landlord had no notice of the ladder's defect, as required by section 704.07(2)(a)3. Second, section 704.07's legislative history provided no support for the argument that a statutory violation was negligence per se (see ¶ 22). Third, section 704.07(4) "provides the tenant with the remedy of rent abatement if the landlord fails to fulfill his repair duties and to the extent the tenant is deprived of use of the premises, but § 704.07 does not provide a private cause of action" (¶ 32).

    Finally, the court ruled that the lease itself provided no basis for a contract claim because the record did not demonstrate that the damage was foreseeable. "On this stipulated record, we conclude Raymaker's injuries are not the natural and probable results of Thomson's failure to improve the ladder. Given that Thomson had no prior problems, that Raymaker's expert could not determine if a visual inspection would have indicated any needed repairs, and that Raymaker examined the ladder and nonetheless used it instead of asking for repairs, the record establishes conclusively that it was simply unforeseeable that the ladder would collapse and cause injury"(¶ 34).

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