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    Wisconsin Lawyer
    September 01, 1998

    Wisconsin Lawyer September 1998: Court of Appeals Digest

    Court of Appeals Digest

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

    | Attorneys | Criminal Procedure | Evidence | Juvenile Law | Municipal Law | Torts | Worker's Compensation |


    Attorneys

    Attorney Fees - Incivility - Sanctions

    Aspen Services Inc. v. IT Corp., No. 97-0897 (filed 10 June 1998) (ordered published 29 July 1998)

    IT Corporation leased equipment from Aspen Services. In a relatively straightforward contract dispute, a jury awarded Aspen about $18,300 in unpaid rent against IT. The judge ruled that IT's counterclaims were precluded by the lease. Under terms of the lease, Aspen also sought to recover $112,985 in attorney fees, costs, and disbursement. Based on the incivility of Aspen's attorneys in the conduct of the litigation, the judge awarded only $68,000.

    The court of appeals, in an opinion written by Judge Anderson, affirmed in an opinion that analyzes a judge's authority to control and sanction incivility among lawyers. Appellate courts will defer to the exercise of discretion by trial judges, who have been charged "to exercise more control by appropriate sanctions." Here the trial judge characterized the attorneys' behavior as "overtrial" and concluded that the attorney fees were out of proportion to the result.

    Trial courts and appellate courts have statutory and inherent powers to enforce civility in the courtroom. This authority is independent from Supreme Court Rule (SCR) 62, "Standards of Courtesy and Decorum for the Courts of Wisconsin." Although SCR 62 cannot be enforced by the Board of Attorneys Professional Responsibility, a judge can use it as a basis for imposing sanctions for incivility. In this case, the judge properly exercised his inherent and statutory power under section 802.05 of the Wisconsin Statutes in finding that "Aspen's attorney engaged in conduct which impeded IT's efforts to settle the dispute prior to the start of the lawsuit, failed to attempt to expeditiously reconcile differences through negotiations and the character of the services rendered was inappropriate." Nor was it necessary for the judge to particularize the offending conduct as opposed to characterizing counsel's general behavior based on the entire record. Judge Anderson's opinion provides numerous examples of the attorneys' incivility based on the record. In sum, the attorneys' behavior was "unprofessional, repeated, and egregious."

    The court also rejected the attorneys' argument that the trial judge had failed to exercise appropriate control. The judge "conducted himself in an exemplary manner when confronted with contentiousness between the attorneys." Not only did the judge make "every effort to keep the attorneys focused on the real issues in dispute," but "[h]e also recognized that the efficient use of limited judicial resources was not served by micro-managing the parties' discovery disputes."

    Finally, the court took up several issues relating to costs and expenses. The claim that the judge miscalculated the costs of photocopying should have been raised at the trial court level; thus, the issue was waived. The judge also exercised appropriate discretion in assessing the costs for a referee on discovery disputes and the cost of a videotape deposition. The judge properly considered the misbehavior of Aspen's attorneys in gauging allowable costs.


    Criminal Procedure

    Exculpatory Evidence - Hearsay - Harassment - Stalking

    State v. Sveum, No. 97-2185-CR (filed 7 May 1998) (ordered published 29 July 1998)

    The defendant was convicted of stalking, harassment, violating a harassment order, and criminal damage to property. Affirming the convictions, the court of appeals, in an opinion written by Judge Dykman, ruled that the evidence was sufficient and that alleged exculpatory evidence was properly excluded.

    In order to support his alibi defense, the defendant called a third-party witness who was asked to testify to a statement made by the defendant. The trial judge excluded the testimony as hearsay. Upholding this ruling, Judge Dykman explained that the statement was offered for the truth of the matter asserted; namely, the date that the defendant visited the witness to pick up a motorcycle. The court refused to consider the statement's admissibility under section 908.03(3) (statements of present state of mind) because he failed to offer it under this exception at trial.

    The court of appeals also addressed the sufficiency of the evidence supporting several counts and in the process interpreted several statutory terms. Under the harassment statute, section 947.0133(1m)(b), the "act" of harassment must be "accompanied by a credible threat." The term "accompany" means "to exist or occur in conjunction or association with." Threats uttered before the "act" of harassment can satisfy the statute as long as they still "exist" at the time of the act; that is, they produce the requisite fear in the victim. Under the stalking statute, section 940.32, the defendant's "acts" must induce fear in the victim; the State does not have to establish that the defendant's "course of conduct" induced the fear.

    Jury Trials - Dismissal of Juror During Trial for Cause

    State v. Williams, No. 97-1276-CR (filed 9 June 1998) (ordered published 29 July 1998)

    The defendant was tried before a jury of 13 on numerous felony charges. Before closing arguments and the court's instructions to the jury, the trial court dismissed one of the 13 jurors because it had come to the court's attention that this juror did not respond truthfully to certain questions on voir dire. The defendant argued that dismissal of this juror was error.

    In a decision authored by Judge Fine, the court of appeals disagreed. Although a trial court in Wisconsin may not substitute an alternate for a deliberating juror, it does have the discretion to discharge a regular juror for cause during trial. Failure to respond truthfully to voir dire questions is sufficient cause to discharge a juror during the trial. Contrary to the defendant's contention, specific proof of bias is not required, as it is when a party seeks to overturn an adverse verdict. Moreover, a litigant has no right to insist on the retention of a juror merely because that juror might be biased in the litigant's favor.

    In this case the trial court weighed the appropriate considerations and determined that the integrity of the trial and of the jury deliberation would be advanced if the case were given to the 12 remaining jurors. This, said the court of appeals, was a reasonable decision under the circumstances.

    Revocation of Probation - Certiorari Review in the "Court of Conviction"

    Drow v. Schwartz, No. 97-1867 (filed 19 May 1998) (ordered published 29 July 1998)

    The defendant pled no contest to several felony offenses. The court withheld sentence and placed him on probation. Ultimately, probation was revoked and the defendant was imprisoned. The revocation decision was affirmed by administrative appeal and the defendant filed a petition for a writ of certiorari to challenge the revocation. A hearing was held in circuit court and the court affirmed the revocation.

    On appeal the defendant contended that his petition for writ of certiorari was not heard in the "court of conviction." He relied upon State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971). The Johnson court concluded that the Legislature provided probationers and parolees a right to a revocation hearing, and that judicial review of that hearing is to be "directed to the court of conviction." In this case the court of appeals interpreted "court of conviction" to mean precisely what it simply provides. In so holding, it rejected the state's argument that Johnson's requirement is satisfied if the petition is heard by any circuit court sitting in the county of conviction. It granted the defendant relief because his writ of certiorari was heard in a different branch of the circuit court from that in which he was originally convicted. In footnote the court indicated that it was not suggesting that Johnson requires that the same judge who sentenced the defendant must hear the writ of certiorari.

    Prison Discipline - Certiorari Review

    State ex rel. Luedtke v. Bertrand, No. 97-3238-W

    State ex rel. Dowdley v. Circuit Court for Dane County, No. 98-0107-W (filed 11 June 1998) (ordered published 29 July 1998)

    Prisoners Luedtke and Dowdley petitioned for supervisory writs directing circuit courts to grant their petitions to commence certiorari actions under Wis. Stat. section 814.9 without payment of fees. In a decision authored by Judge Dykman, the court of appeals held that in deciding whether a petitioner's proposed action fails to state a claim, the circuit court should review the certiorari petition using the same standard that applies to ordinary civil complaints. Second, this standard of review is not "discretionary," but rather, whether a certiorari petition states a claim is a question of law, as with other civil complaints. Third, even though a certiorari petition may allege an apparently insubstantial harm, such as minimal loss of recreational time, the circuit court must consider that a more complete development of the case may reveal collateral consequences of prison disciplinary decisions. Finally, the certiorari petition need not conclusively establish that an error was committed in order to state a claim.

    Erroneous Jury Instructions - Defendant's Presence

    State v. Peterson, No. 97-3294-CR (filed 9 June 1998) (ordered published 29 July 1998)

    The court of appeals affirmed the defendant's conviction for battery to a child. The battery involved the use of excessive force in disciplining his step-daughter.

    Judge Myse, writing for the court, held that the trial judge's error in instructing the jury on the "privilege" to use force did not prejudice the defendant. The focus throughout the trial was on whether the force was "excessive." Thus, the court refused to eliminate harmless error analysis when scrutinizing erroneous substantive jury instructions.

    The court also rejected the argument that error occurred when the judge responded to the jury's questions without securing either the defendant's presence or a waiver. Violations of the defendant's right to be present are subject to harmless error analysis. Under section 971.04 of the Wisconsin Statutes, the defendant has a statutory right to be present at various proceedings. Even assuming that the trial court violated this statute, any error was harmless because the defendant's lawyer was present, the defendant failed to show what difference his presence would have made, and the trial court properly responded to the jury's inquiry.


    Evidence

    Jury Deliberations - Submitting Exhibits - Witness's Statements - Experts

    State v. Mayer, No. 97-3664-CR (filed 2 June 1998) (ordered published 29 July 1998)

    The court of appeals, in an opinion written by Judge Myse, affirmed the defendant's conviction for battering a woman that he later married. The altercation occurred at a bar before the two were married. An eyewitness provided a written statement to police describing the battery. At trial, the victim recanted but the jury heard the eyewitness's testimony and the judge received her written statement into evidence. During deliberations the jury asked to see the written statement. The trial judge permitted the jury to view the exhibit because it rebutted allegations that she was too intoxicated to be accurate.

    A judge must consider three issues when submitting exhibits to the jury: 1) Will it assist the jury? 2) Will the exhibit prejudice a party? and 3) Is there a risk that the jury will use the exhibit improperly? The written statement's "coherence and neatness" undoubtedly assisted the jury in assessing whether the witness was too intoxicated to be credible. Although the "general rule" in Wisconsin "is to read the statement to a deliberating jury rather than submitting it," the jury in this case had a "valid independent need to physically examine the statement. " Finally, there was little risk of misuse because the statement contained no inadmissible evidence.

    The court of appeals also ruled that expert testimony on "battered women's syndrome" (BWS) was properly admitted despite the defendant's claim that BWS testimony is inappropriate in cases of a "single assault." The opinion canvasses the case law on BWS and the admissibility of expert psychological testimony to assist a jury.


    Juvenile Law

    "Reverse Waivers" - Wis. Stat. section 970.032(2) Not Unconstitutionally Vague

    State v. Armstead, No. 97-3056-CR (filed 23 June 1998) (ordered published 29 July 1998)

    Wis. Stat. section 970.32(2) provides that, with respect to certain juveniles charged in the first instance in adult court, the adult court shall retain jurisdiction unless the child proves by a preponderance of the evidence all of the following: 1) that, if convicted, the child could not receive adequate treatment in the criminal justice system; 2) that transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and 3) that retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused under certain statutorily specified circumstances.

    In this case the juvenile claimed that these "reverse waiver" criteria are unconstitutionally vague. In a decision authored by Judge Curley, the court of appeals disagreed. Responding to the specifics of the defendant's attacks, the court concluded that the terms "adequate treatment," "depreciate the seriousness of the offense," and "necessary to deter the child or other children" are fairly definite. The terms provide trial courts with standards to use in deciding whether to retain jurisdiction, and do not require or allow trial courts to create their own standards. Although the standards are strict and therefore make it difficult for juveniles to prove that their case meets the criteria, this does not make the standards vague. Said the court, strictness and vagueness are not synonymous. Accordingly, the court concluded that section 970.032(2) is not unconstitutionally vague.


    Municipal Law

    Zoning - Local Rule Limiting the Number of Variance Requests for the Same Property

    Tateoka v. City of Waukesha Board of Zoning Appeals, No. 97-1802 (filed 24 June 1998) (ordered published 29 July 1998)

    The City of Waukesha Board of Zoning Appeals has adopted a rule regarding rehearings and reconsiderations of zoning variance requests. It provides that "rehearings, reconsiderations and new applications seeking the same relief concerning the same property after a previous application has been denied will not be heard by the Board of Appeals unless a substantial change of conditions or circumstances has intervened between the time the matter was first decided by the Board of Appeals and the subsequent application. A change of ownership or the passage of time without additional conditions or circumstances will not justify another hearing before the Board."

    Writing for the court of appeals, Judge Nettesheim concluded that the Board of Appeals did not exceed its jurisdiction when it adopted this rule and that the rule does not conflict with Wis. Stat. section 62.23(7)(e)6, which governs the time period in which the Board should hear and decide a variance request and the notice which is to be given before doing so. The appellate court further held that the rule is reasonably related to the Board's legitimate interest in efficiency and in the finality of its decisions. As such, it did not violate the petitioner's right to due process and equal protection.

    In the course of its opinion the appellate court noted that respected commentators in the area of municipal law have observed that a rule such as the one at issue in this case is widely accepted.


    Torts

    Bad Faith - Third Parties

    Ristow v. Threadneedle Ins. Co., No. 97-0309 & 97-0678 (filed 16 June 1998) (ordered published 29 July 1998)

    A truck driver was injured while working at a port in South Carolina. He filed a claim with the port's liability insurer but never received any money. The driver then began this bad faith action against the port's liability insurer and others. The circuit court dismissed the complaint.

    The court of appeals, in an opinion written by Judge Anderson, affirmed. First, the court flatly refused to extend the tort of bad faith against insurers to cases where third-party claimants have "settled" their claim with the insurer which then breaches the settlement. The supreme court had previously rejected this extension in Kranzush v. Badger State Mutual Casualty Co. (1981). Second, the plaintiffs' breach of contract claim also was properly dismissed because it had been filed after the South Carolina statute of limitations had expired. South Carolina's statute applied by virtue of Wisconsin's borrowing statute, section 893.07(1). Moreover, the supreme court had recently held that the borrowing statute applies to contract actions. Abraham v. General Casualty Co., (1998). The last significant event giving rise to the plaintiffs' claims was the alleged breach of the settlement, which occurred in South Carolina.


    Worker's Compensation

    Compensation for Medical Treatment - Employee's Two Choices of Physicians

    Hermax Carpet Marts v. Labor and Industry Review Commission, No. 97-1119 (filed 23 June 1998) (ordered published 29 July 1998)

    Wis. Stat. section 102.42 of the Worker's Compensation Law requires an employer to compensate an injured employee for his or her medical treatment, but restricts the employee to two choices of practitioners. Among the issues in this case was whether the employee exceeded his two choices under the statute.

    In a decision authored by Judge Curley, the court of appeals concluded that, for purposes of section 102.42, an employee "chooses" a practitioner by seeking treatment from that practitioner and by seeking reimbursement for that practitioner's expenses from the employee's employer or its insurance carrier. In this case, although the injured employee sought treatment from four practitioners, he only sought reimbursement for the expenses related to two practitioners. Therefore, as a matter of law, he did not exceed his choice of physicians under section 102.42 even though he sought reimbursement for the expenses of the first and fourth practitioners who treated him.

    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.


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