Wisconsin Lawyer
Vol. 79, No. 9, September
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
Complaint - Missing Signature - Curable Defect - Relation-back
Statute
Rabideau v.
Stiller, 2006 WI App 155 (filed 27 June 2006) (ordered
published 26 July 2006)
Rabideau sued Stiller in a lawsuit arising out of a traffic accident.
The complaint was not signed but was attached to a properly signed
summons. Stiller filed a motion to dismiss the action based on the
unsigned complaint. On the same day, Rabideau filed an amended summons
and complaint, which were almost identical to the initial documents,
except that both were now properly signed and the complaint contained
two additional paragraphs. The circuit court denied the motion to
dismiss because the error was technical (see ¶¶ 2,
5).
The court of appeals, in an opinion written by Judge Hoover,
affirmed. The initial complaint was defective because it lacked a
signature. The court declined "to determine whether the failure to sign
the complaint here is properly considered a technical or a fundamental
defect" (¶ 14). Wis. Stat. section 802.05(1)(a) "explicitly
provides a remedy for pleadings that have been improperly subscribed":
an improperly subscribed pleading shall be stricken "unless it is signed
promptly after the omission is called to the attention of the pleader or
movant" (id.). In short, an omitted signature is a curable
defect whether it is labeled technical or fundamental. The record in
this case established that the defect was promptly cured. Not until
Stiller filed his motion to dismiss did Rabideau have notice of the
problem, which her lawyer cured the same day.
The court also rejected Stiller's contention that, because the
statute of limitation had expired, the amended summons and complaint
cannot relate back under Wis. Stat. section 802.09(3). "Applying the
relation-back statute to pleadings used to cure a subscription
requirement omission is consistent with the remedial language of Wis.
Stat. § 802.05(1)(a). Nothing in Wis. Stat. §§ 802.05 or
802.09 suggests otherwise" (¶ 21).
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Criminal Law
Homicide by Negligent Operation of a Vehicle -
Meaning of Criminal Negligence
State v.
Schutte, 2006 WI App 135 (filed 22 June 2006) (ordered
published 28 July 2006)
The defendant was convicted by a jury of three counts of homicide by
negligent operation of a vehicle, in violation of Wis. Stat. section
940.10(1). The charges arose out of an incident in which the defendant
driver's three passengers were killed. The defendant's vehicle, which
was traveling on an icy highway on a snowy February night, crossed the
centerline and collided with a truck heading in the opposite direction.
In a decision authored by Judge Deininger, the court of appeals affirmed
the convictions.
Among the issues on appeal was whether the defendant's conduct rose
to the level of criminal negligence. The court noted that "Wisconsin
judges and legislators have long grappled with the difficult question of
when a person whose negligent conduct results in unintended harm should
be subjected to criminal prosecution and penalties" (¶ 17).
The legislature has defined "criminal negligence" as "ordinary
negligence to a high degree, consisting of conduct that the actor should
realize creates a substantial and unreasonable risk of death or great
bodily harm to another." Wis. Stat. § 939.25(1). "The decisions [in
prior cases] make clear that, in order to convict someone of violating
§ 940.10, the State must satisfy jurors beyond a reasonable doubt
that the defendant engaged in conduct, which, under all of the
circumstances present, the defendant should have realized created a
substantial and unreasonable risk of death or great bodily harm to
another person. See Wis. Stat. § 939.25(1). A defendant
may avoid criminal liability if jurors determine that the State failed
to establish beyond a reasonable doubt that the defendant's conduct
while operating a vehicle rose to that level of culpability because,
under the circumstances under which the defendant was driving, either
the risk of life-threatening consequences was not a substantial one, or
if it was, the circumstances, such as the presence of an emergency,
rendered the risk not unreasonable" (¶ 29).
On the facts of this case, the court concluded that "the State
presented sufficient evidence for jurors to reasonably conclude, beyond
a reasonable doubt, that [the defendant's] conduct prior to the
collision was criminally negligent within the meaning of Wis. Stat.
§§ 939.25 and 940.10. The State's evidence established not
only that [the defendant's] car crossed the highway centerline, but from
the evidence the State presented, jurors could also reasonably conclude
that [the defendant] was driving too fast for prevailing weather and
road conditions, and, while on a curve in the highway, she attempted to
engage in other tasks [either changing a compact disc or leaning down to
pick up a French fry] and took her eyes off the road and one hand off
the steering wheel. We conclude the evidence at trial, viewed most
favorably to the conviction, was such that jurors, acting reasonably,
could have determined, beyond a reasonable doubt, that [the defendant]
engaged in conduct that she should have realized `create[d] a
substantial and unreasonable risk of death or great bodily harm to
another.' See § 939.25(1)" (¶ 34).
The court observed that "[h]ad the State's only evidence of [the
defendant's] pre-collision conduct been that, on a snowy evening with
icy road conditions, her vehicle crossed the highway centerline and
collided with an oncoming vehicle, we might agree that [the defendant's]
convictions under Wis. Stat. § 940.10 could not be sustained. That
is so because the violation of a traffic statute, standing alone, does
not necessarily prove that a defendant engaged in criminally negligent
conduct. The trial court properly instructed jurors that the violation
of a traffic statute, such as Wis. Stat. § 346.05(1) (requiring
motorists to `drive on the right half of the roadway'), `does not
necessarily constitute criminal negligence. You may consider this along
with all the other evidence in determining whether the defendant's
conduct constituted criminal negligence.' See Wis JI - Criminal
1170" (¶ 24).
The appellate court also concluded that "the trial court did not
erroneously exercise its discretion in admitting evidence of [the
defendant's] marijuana use prior to the collision. The evidence was
relevant to the jury's determination of whether [the defendant] was
criminally negligent at the time of the collision, and its probative
value was not substantially outweighed by the danger of unfair
prejudice" (¶ 4).
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Criminal Procedure
Miranda - Anticipatory Invocation of Miranda
Rights - Electronic Recording of Confessions
State v.
Kramer, 2006 WI App 133 (filed 8 June 2006) (ordered published
26 July 2006)
Kramer was convicted of first-degree intentional homicide, attempted
first-degree intentional homicide, and theft from a person or corpse. On
appeal, he argued that his convictions should be reversed and remanded
for a new trial because, among other reasons, certain pretrial
statements he made should have been suppressed because: 1) he invoked
his Fifth Amendment right to counsel during a standoff with police; and
2) the state allegedly deliberately failed to electronically record the
interrogations during which the statements were made. In a decision
authored by Judge Higginbotham, the court of appeals affirmed.
During a standoff with police, which occurred after the defendant had
fired shots at officers, the defendant told the police to get him an
attorney. He was not provided with counsel either during the standoff or
later that day when he was arrested and taken into custody. Once in
custody, he was interrogated twice. Before both interrogations the
defendant was read his Miranda rights and given a written
Miranda form to review. Both times he waived his rights,
including his right to counsel, and agreed to speak with officers.
The defendant contended that the statements he made while in police
custody after the standoff must be suppressed under Miranda v.
Arizona, 384 U.S. 436 (1966) andEdwards v. Arizona, 451
U.S. 477 (1981) because he requested an attorney during the standoff and
police officers subsequently questioned him in the absence of counsel.
The defendant did not address whether he was "in custody" within the
meaning of Miranda when he requested counsel. Rather, he
asserted that the officers were required to honor his request because it
preceded police questioning. The court of appeals disagreed.
The court of appeals said that Miranda safeguards apply only
to custodial interrogations (see ¶ 9). The court
concluded that "[the defendant's] pre-custody invocation of his right to
counsel was not an invocation of his right to counsel under
Miranda and therefore his ensuing post-Mirandized inculpatory
statements made while undergoing custodial interrogation need not be
suppressed" (¶ 14). "Our holding here, however, is not meant to
suggest that there are no exceptions to the general rule that a
defendant may not anticipatorily invoke Miranda. For example,
there might be situations where a request for counsel at the conclusion
of a standoff situation is so intertwined with imminent interrogation
that the invocation should be honored. That did not occur here" (¶
15).
The defendant next argued that his statements made in the two
interrogations should have been suppressed because law enforcement
personnel failed to make electronic recordings of the interrogations,
even though the interrogation room was equipped with working video
equipment. He urged the court of appeals to adopt a general exclusionary
rule mandating the exclusion of statements made by adults during police
interrogation if the interrogation is not electronically recorded. In
essence he asked the court to extend to adults the rule established by
the Wisconsin Supreme Court in State v. Jerrell C.J., 2005 WI
105, 283 Wis. 2d 145, 699 N.W.2d 110, which makes inadmissible at trial
some unrecorded statements made by juveniles during custodial
interrogations. "The supreme court in Jerrell established this
rule pursuant to its broad superintending and supervisory authority over
the court system granted to it under Article VII, Section 3 of the
Wisconsin Constitution" (¶ 17). The court of appeals was not
persuaded that, as an intermediate appellate court, it has the authority
to adopt the sort of sweeping new exclusionary rule proposed by the
defendant (see id.).
In a footnote the court noted that "[t]he legislature recently
enacted 2005 Wis. Act 60, §§ 31-40, establishing the policy
`to make an audio or audio and visual recording of a custodial
interrogation of a person suspected of committing a felony unless a
condition under s. 972.115(2)(a)1. to 6. applies or good cause is shown
for not making an audio or audio and visual recording of the
interrogation.' 2005 Wis. Act 60, § 31. The legislature enacted
these provisions long after [the defendant's] interrogations in this
case. Therefore, the relief provided in this act is not available to
him" (¶ 17 n.4).
Home Improvement Practices
Violation of Administrative Code Coupled with
Other Wrongdoing - Double Damages for Entire Damage Award
Stuart v. Weisflog's
Showroom Gallery Inc., 2006 WI App 109 (filed 3
May 2006) (ordered published 28 June 2006)
A jury found that the defendant, Weisflog's Showroom Gallery Inc.,
induced the plaintiffs to enter into an architectural contract and a
subsequent home remodeling contract by use of false, deceptive, or
misleading trade practices, contrary to Wisconsin Administrative Code
section ATCP 110.02. (Wisconsin Administrative Code chapter ATCP 110,
entitled "Home Improvement Practices," was adopted under authority of
Wis. Stat. section 100.20, the fair trade practices statute. A person
who suffers a monetary loss because of a violation of chapter ATCP 110
may sue the violator directly under section 100.20(5) and may recover
twice the amount of the loss, together with costs and reasonable
attorney fees.) The jury further found that the defendant had
negligently performed the construction called for in the remodeling
contract. The jury awarded the plaintiffs $95,000 and apportioned 25% of
the damages award to the administrative code violation and 75% to the
negligence claim. On postverdict motions, the trial court doubled only
the misrepresentation damages. In a decision authored by Judge
Nettesheim, the court of appeals affirmed in part and reversed in
part.
Addressing what it characterized as a "novel question," the court
held that "§ 100.20(5) (2003-04) authorizes doubling of an entire
damage award when a violation of the Home Improvement Practices Act,
Wis. Admin. Code ch. ATCP 110 (Oct. 2004) (ATCP 110), is coupled with
additional wrongdoing, separate and apart from the § 100.20/ATCP
110 violation, which contributes to the loss" (¶ 1). The court
concluded that the verdict question asking the jury to apportion the
damages as described above was erroneous (see ¶ 50). "We
see no place in this framework for apportioning damages where, as here,
the damages flowed from the initial misrepresentation. Had the Gallery
not made its misrepresentations inducing the contracts, the [plaintiffs]
may well have not entered into the contracts in the first instance and
thereby avoided the harm. In short, the misrepresentations were the
catalyst for the harm" (¶ 49). Accordingly, the full award of
damages should have been doubled (see ¶ 50).
The appellate court also concluded that 1) the economic loss doctrine
did not apply in this case because the core agreement between the
parties was one for services (see ¶ 4); 2) the plaintiffs'
claims were not barred by the statute of limitation because the
discovery rule covering tort claims applied in this case and the
plaintiffs filed suit two years after discovering the construction
defects, which was well within the six years prescribed by Wis. Stat.
section 893.52 (see ¶¶ 26-27); and 3) the circuit
court erred in determining the amount of attorney fees (see
¶¶ 51-57).
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Insurance
UIM - "Reside with"
Bauer v. USAA Casualty
Ins. Co., 2006 WI App 152 (filed 29 June 2006) (ordered
published 26 July 2006)
Bauer appealed from an order dismissing her underinsured motorist
(UIM) claim against her insurer, State Farm. The issue was whether the
UIM coverage applied to her son, who was killed while riding in a car
driven by a friend.
The court of appeals, in an opinion written by Judge Dykman, affirmed
the circuit court's determination that the son did not "reside primarily
with" Bauer for purposes of the UIM coverage. Wisconsin case law has not
construed this particular phrase, and the court rejected Bauer's
arguments that other cases construing the word "resident" were
applicable.
"The word `primarily' focuses [the court's] analysis on where a
person's primary residence is located" (¶ 5). "The cases Bauer
relies on do not interpret an insurance policy which includes the word
`primarily' or `primary.' The modifier `primarily' makes the phrase
`resides primarily with you' unambiguous, at least as applied to the
facts of this case. Merriam Webster's Collegiate Dictionary 925 (10th
ed. 1993) defines `primarily' as `for the most part,' or `chiefly.' One
meaning it gives `primary' is `of first rank, importance or value,' or
`principal.' To have a `primary' residence under this commonly accepted
definition means there can only be one primary residence. Because one
cannot `primarily reside' in more than one place the use of the modifier
`primarily' avoids the uncertainties that were a cause of the disputes
in [the four cases under discussion]" (¶ 11). The record supported
the finding that Bauer's son did not "reside primarily with" her at the
time of his death.
UIM - Exclusions
Anderson v.
Pellett, 2006 WI App 151 (filed 21 June 2006) (ordered
published 26 July 2006)
Anderson was driving his motorcycle on a state highway. He lost
control of the motorcycle and laid the bike down on the road. While
checking on the health of his passenger a few minutes later, Anderson
was struck and killed by a passing vehicle. His estate sued the other
driver but also brought a claim under Anderson's own underinsured
motorist (UIM) coverage. The circuit court granted summary judgment in
favor of the UIM insurer on the ground that the coverage was excluded
under Anderson's policy.
The court of appeals, in an opinion written by Judge Snyder,
reversed. The policy language in question excluded coverage for injuries
sustained "while `occupying' any motorized vehicle having fewer than
four wheels" (¶ 7). Case law construing occupancy uses a
vehicle-orientation test, a multifactor test that looks to whether "the
party was vehicle-oriented or highway oriented at the time of the
injury" (¶ 8). "Applying the vehicle-orientation test to the facts
and construing the definition narrowly, we conclude that Anderson was
not vehicle-oriented at the time he was hit. Anderson had left the
motorcycle behind and was approximately fifty feet away from it when the
accident occurred. He was talking to Callaway, who had been thrown from
the vehicle and was standing off to the side of the road. His
`overriding concern' was Callaway's condition rather than the
motorcycle. Anderson was neither walking toward the motorcycle nor
turning toward the cycle when he was hit. Callaway estimated that
approximately five minutes passed from the time she was thrown off the
motorcycle to the time Anderson was hit by Pellett's car. By the time he
was hit, Anderson had severed his relationship with the motorcycle and
turned his focus to Callaway and her health and safety" (¶ 13).
Agent - Negligence - Increased Coverage
Avery v.
Diedrich, 2006 WI App 144 (filed 7 June 2006) (ordered
published 26 July 2006)
The Averys sued their insurance agent, Diedrich, for his alleged
negligence in failing to increase their coverage as they had repeatedly
requested. The circuit court granted summary judgment on this issue in
favor of the Averys.
The court of appeals, in an opinion written by Judge Brown, reversed.
"Wisconsin case law makes clear that when an insurance agent agrees to
procure coverage that the client requests, the failure to acquire it
exposes the agent to a suit claiming negligence. This case tests whether
an agent is exposed to liability even if the client requests the
coverage and the agent has not agreed to procure it. We hold
that the insurance agent is not so exposed and reverse the circuit
court's determination to the contrary" (¶ 1).
The court thus rejected the Averys' contention that under case law
their preexisting relationship meant that Diedrich had a duty to secure
the increased coverage. "Diedrich did not enter into an agreement with
the Averys to procure additional coverage. We acknowledge that Diedrich
had a pre-existing relationship with them. However, all we can discern
from the record is that the parties contracted for Diedrich to obtain a
$150,000 policy. It is undisputed that he did so. Any increase in
coverage would not have been `pursuant to' that agreement. Thus, we
cannot conclude that the Averys' initial agreement gave rise to a duty
to procure the requested increase in coverage" (¶ 10). The
conclusion also was supported by case law from other states and by
commentators.
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Open Meetings Law
Prerequisites to Law's Applicability - Law
Inapplicable to Committees of One
Plourde v.
Habhegger, 2006 WI App 147 (filed 6 June 2006) (ordered
published 26 July 2006)
Habhegger was the building inspector, zoning administrator, and
assessor for the city of New Richmond. In Habhegger's position as the
building inspector, he evidently was the sole member of the Department
of Building Inspection. He also was a member of the city's supervisory
and safety committee, which had 14 members.
The plaintiff initiated the process for obtaining a building permit
to open a car wash on a parcel of property he owned in the city.
Habhegger informed him that a permit would not be issued unless the
plaintiff installed a street to connect the parcel to an existing
street. The plaintiff believed Habhegger reached this decision after a
"meeting" between Habhegger and five other members of the supervisory
and safety committee. The plaintiff claimed that these six members of
the committee violated the open meetings law by meeting to discuss his
permit application without providing notice of the meeting and by
failing to conduct the meeting in open session.
The circuit court dismissed the action as to the other members of the
committee but allowed the open meetings complaint against Habhegger to
proceed to a jury trial. Judgment was entered against Habhegger on the
jury's verdict. In a decision authored by Judge Hoover, the court of
appeals reversed.
There are two prerequisites for application of the open meetings law.
First, there must be a purpose to engage in governmental business as
specified in Wis. Stat. section 19.82(2), which defines "meeting" as
"the convening of members of a governmental body for the purpose of
exercising the responsibilities, authority, power or duties delegated to
or vested in the body." Second, the number of members present must be
sufficient to determine the parent body's course of action regarding the
proposal discussed (see ¶ 8).
"It is undisputed that the Supervisory and Safety Committee was
created to protect the health and safety of employees and the general
public through oversight of working conditions and work places. However,
it has no vested authority over or responsibility for the issuance of
building permits. Rather, Habhegger is the only individual authorized to
grant or deny building permits. Therefore, the first requirement for a
`meeting' was not present. That is sufficient to avoid the open meetings
law requirements" (¶ 9).
The appellate court also concluded that "the [open meetings] law does
not apply to committees of one member" (¶ 1). "Wisconsin Stat.
§ 19.82(2) speaks of a meeting of the members, plural, implying
there must be at least two members of a governmental body. Moreover, the
notion of applying the open meetings law to a body of one creates
certain practical problems" (¶ 13). Said the court, "we require the
public to be granted access to discussions among governmental body
members so that the public can be informed of the debate and
decision-making process that occurs between the body's membership. But
it would be absurd, if not impossible, to require an open meeting notice
whenever a body of one would set out to contemplate a pending issue. We
do not believe the legislature intended to require public soliloquies by
single-member governmental bodies" (¶ 14).
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Property
Mortgages - Consideration - Seal
McDonald v.
McDonald, 2006 WI App 150 (filed 13 June 2006) (ordered
published 26 July 2006)
Two circuit courts granted foreclosure judgments on properties owned
in two different counties. The properties secured loans made by Sheila
McDonald to her mother-in-law, Ardyth McDonald, who had unsuccessfully
argued that the underlying notes lacked consideration.
The court of appeals, in an opinion authored by Judge Peterson,
affirmed. "We conclude the mortgages, signed under seal, are conclusive
proof of consideration for both the mortgages and the underlying note
they secure" (¶ 1). The court based its holding on Mitchell
Bank v. Schanke, 2004 WI 13, in which the supreme court stated that
"`[u]nder Wisconsin law, when an executed contract is signed under seal,
the seal is conclusive proof of consideration, and consideration may not
be impeached absent a factual showing of fraud.' The Mitchell
Bank court explained, `[A] seal imports consideration for the
mortgage. This imports consideration for the note also. In absence of
allegations of fact showing fraud the mortgage cannot be impeached for
want of consideration'" (¶ 8). The court of appeals refused to
limit Mitchell Bank to situations involving the simultaneous
execution of the mortgage and note. (The note at issue was signed five
months before the mortgages were signed.)
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Torts
Health Care Expenses - Collateral Source
Rule
Leitinger v. Van Buren
Management, 2006 WI App 146 (filed 27 June 2006) (ordered
published 26 July 2006)
The plaintiff was injured in a construction site accident. The bills
for his medical expenses totaled more than $150,000 but negotiated
discounts resulted in actual payments by his insurer of about $111,000.
During trial in the plaintiff's lawsuit against DBart and other
defendants (DBart) for his injuries, DBart introduced evidence that the
plaintiff's health insurer paid substantially less than the total amount
billed, for the purpose of showing that the total bill was unreasonably
high. The plaintiff stipulated to the amount paid as the reasonable
amount of the medical bills but reserved the right to appeal this issue
(see ¶ 8).
The court of appeals, in a decision authored by Judge Kessler,
reversed. "[T]his case presents a single legal issue: whether defendants
in a personal injury case are permitted to introduce evidence of the
amount of medical expenses actually paid, as opposed to the amount of
expenses billed, in order to show that the billed expenses were not
reasonable. We conclude that the amount paid for the plaintiff's medical
treatment by a collateral source - plaintiff's health insurance carrier
- was inadmissible, based on the application of well-established
Wisconsin law"(¶ 1).
"We recognize that DBart introduced this evidence because it believed
that the amounts billed were not reasonable. However, both
Koffman [v. Leichtfuss, 2001 WI 111] and
Ellsworth [v. Schelbrock, 2001 WI 63]recognize that
while a health insurance provider may negotiate discounted rates with a
health care provider, that negotiated rate is not evidence of the
reasonable value of those medical services for purposes of determining
damages in a tort claim. Consequently, a defendant must produce some
competent evidence other than what the insurance company paid
upon which to base its argument that the amount billed was not the
reasonable value of the services. Thus, DBart was not precluded from
introducing relevant evidence that the billed amounts were unreasonable.
For instance, DBart could have offered expert testimony as to reasonable
value of the medical services provided in support of its argument that
the amount billed for the medical services was not the reasonable value
of the services. Instead, it chose to rely solely on its assertion that
the actual amount paid by an insurance company is admissible evidence of
reasonable value. For the reasons already explained, we reject that
assertion" (¶ 18).
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