Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Appellate Procedure | Construction Law | Contribution | Criminal Procedure | Torts |
Appellate procedure
Sex Predator Law Commitments -Time to Initiate Appeal
State v.
Brunette, No. 96-2351 (filed 12 June 1997) (ordered published
29 July 1997)
The circuit court committed the defendant to the custody of the
Department of Health and Social Services because it determined that he
was a sexually violent person under the provisions of Chapter 980 of the
Wisconsin Statutes, the sex predator law. 118 days later he filed a
notice of appeal from the commitment order. The issue before the court
of appeals was whether the defendant initiated his appeal in a timely
fashion.
The defendant contended that he had 120 days to file a notice of
appeal under the provisions of section 808.04(5) of the Wisconsin
Statutes. However, the court of appeals concluded that this statute does
not apply to those who are committed under chapter 180. Section
808.04(5) provides that "a person imprisoned or in the intensive
sanctions program on a criminal sentence against whom a civil final
judgment or order is rendered has 120 days in which to appeal the civil
judgment or order." The defendant in this case was not imprisoned under
a criminal commitment but instead under a chapter 980 civil commitment.
Consequently, his time limits for initiating an appeal of the chapter
980 commitment order is governed by the 45/90 day rule for civil
appeals. See Wis. Stat. 808.04(1). Because his notice of appeal
was filed 118 days after entry of the civil commitment order, it was
untimely. A failure to timely file a notice of appeal from a final
judgment or order in a civil case deprives the court of appeals of
jurisdiction. Accordingly, the court was compelled to dismiss this
appeal.
Construction law
Discovery Rule - Builder's Negligence - Contract Claims
Williams v. Kaerek
Builders Inc., No. 96-2396 (filed 18 June 1997) (ordered
published 29 July 1997)
The plaintiffs sued their builder because their basement leaked. They
moved into their home in December 1987. When they immediately observed
leaks and seepage, they contacted the builder who made various
representations ("all new homes" leak) and attempted patchwork
solutions. In 1994 the owners hired a waterproofing company which
discovered that the basement drain tiles had been improperly installed.
The plaintiffs filed their claim in 1995, alleging negligence and breach
of contract. The trial court granted summary judgment to the
builder.
The court of appeals, in an opinion written by Judge Brown, reversed
in part and affirmed in part. Applying the discovery rule to the
negligence claim, the court held that in cases "involving faulty
workmanship, a builder's representation can result in a justifiable
delay of discovering the cause." The reasonableness of the plaintiffs'
reliance presented a question of fact for the jury. The claim sounding
in contract was not, however, subject to the discovery rule. And despite
its conclusions on the negligence issue, the court of appeals declined
to apply equitable estoppel to the contract claim because the trial
judge had not abused his discretion in rejecting that argument.
Contribution
Cognizable Contribution Claims - Ripeness
Diamond v.
Ruszkiewicz, No. 96-1798 (filed 18 June 1997) (ordered
published 29 July 1997)
The parties to this appeal signed a business note in the amount of
$40,000. The maker of the note was plaintiff Historic Dining Inc.
Plaintiffs Diamond and Hudick are officers of this corporation. When the
note was made, Diamond and Hudick signed both in their capacity as
officers of Historic Dining and as individuals. Barbara Ruszkiewicz also
signed the note in an individual capacity.
Historic Dining defaulted on the note and the bank called it due for
the sum of $40,000 plus interest. Another corporation, Historic
Renovations Inc., of which Diamond and Hudick are officers, paid the
interest due on the note and shortly thereafter Historic Renovations
signed a new note with the bank for $40,000, which paid the original
note.
The bank then consolidated the debt for Historic Renovations when it
made a new loan to that corporation for $280,000. That loan was secured
by real property and was backed by Diamond's and Hudick's personal
guarantees. Barbara was not asked to sign as a guarantor on that
note.
Diamond, Hudick and Historic Dining subsequently filed an action
against Barbara (and also against her husband under a marital property
theory) for contribution, seeking one-third of the original $40,000 loan
amount. At the close of the plaintiff's case, the circuit court granted
the defendants' motion to dismiss, finding that Diamond and Hudick had
failed to prove their contribution claim. The trial court found that no
evidence had been presented that showed they had paid any part of the
debt to the bank from their individual funds, nor had Historic Dining
paid the debt.
The issue presented was whether the appellants have a cognizable
claim for contribution from the defendants. The court of appeals, in a
decision authored by Judge Snyder, concluded that, because a
contribution claim requires that the party claiming the right has paid
the debt of another and that requirement was not satisfied in this case,
the decision of the trial court should be affirmed.
The law of contribution is well settled. It is based upon the belief
that those who insure or become a surety with another ought to share the
results of a default. A guarantor's claim for contribution must rest on
the ground that he or she has paid more than his or her equitable share
as against the coguarantors in order to discharge a common liability.
However, there is a clear distinction between payment and purchase.
Payment extinguishes and discharges indebtedness, whereas purchase
merely transfers the indebtedness. If a debt is not discharged, no claim
for contribution can arise.
In this case a corporation (Historic Renovations Inc.) paid the
interest that was due on the Historic Dining note and eventually signed
a new note with the bank to pay Historic Dining's note. Diamond, Hudick
and Barbara all were individually liable on the note made by Historic
Dining. Only Diamond and Hudick were coguarantors of the second note.
However, at no time did the appellants personally pay any portion of the
Historic Dining note. While another corporation has assumed the
obligations of the Historic Dining note, that assumption might not
relieve the liability that all three personal guarantors still carry
with regard to the original note. There may yet be a point in time where
the three coguarantors will be required to pay on the original note;
however, at this time the appellants' contribution claim is premature.
Until one of them actually pays a disproportionate share under the
original note, any claim seeking contribution is not yet ripe.
Criminal procedure
Sex Offender Treatment Programs - Revocation of Probation - Failure
to Acknowledge Responsibility for Crime
State ex rel. Warren v.
Schwarz, No. 96-2441 (filed 15 May 1997) (ordered published 24
June 1997)
The defendant was convicted of first-degree sexual assault of a child
following the entry of an Alford no-contest plea. An Alford plea is one
in which the defendant pleads guilty or no contest, while either
maintaining his innocence or not admitting having committed the crime.
Prior to accepting the plea, the court advised the defendant that, in
the event the court granted probation to him, counseling likely would be
a condition and that he would have an obligation to enter into
counseling in good faith.
The trial court imposed a five-year sentence that it stayed in favor
of an eight-year term of probation. One of the conditions of probation
ordered by the court was that the defendant cooperate with any
counseling required by the Department of Corrections and complete any
counseling as ordered.
The department proceeded to revoke the defendant's probation claiming
that the defendant had violated a condition of that probation by failing
to successfully complete a sex offender treatment program in that he
failed to acknowledge responsibility for the sexual assault for which he
was convicted. Following revocation of probation the defendant filed a
petition for writ of certiorari to review the revocation order. The
circuit court affirmed the decision to revoke and the court of appeals,
in a decision authored by Judge Vergeront, affirmed the circuit
court.
The defendant's principal contention on appeal was that it was a
violation of his right to due process to revoke his probation because of
his denial of guilt for a sexual assault when the conviction for that
assault was based upon an Alford no-contest plea. The premise of the
defendant's due process argument was that the acceptance of an Alford
plea implies an assurance that the defendant will not have to admit his
guilt either during conviction or punishment. Rejecting this premise as
faulty, the court concluded that an Alford plea does not imply a promise
or assurance of anything. More accurately stated, an Alford plea, if
accepted by the court, permits a conviction without requiring an
admission of guilt and while permitting a protestation of innocence.
There is nothing inherent in the nature of an Alford plea that gives a
defendant any rights, or promises any limitations, with respect to the
punishment imposed after revocation of probation.
Accordingly, the court of appeals concluded that the defendant's
right to due process was not violated by requiring that he admit
responsibility for the sexual assault in the context of a treatment
program required as a condition of probation.
Conditions of Probation - Right to Privacy
Krebs v.
Schwartz, No. 96-2596 (filed 11 June 1997) (ordered published
29 July 1997)
The petitioner sought review of a decision revoking his probation. He
argued that the condition of probation requiring him to discuss and
receive approval from his probation agent before he engaged in an
intimate relationship with an adult female was an unconstitutional
infringement on his right to privacy.
The petitioner was convicted of first-degree sexual assault of his
daughter. He received a prison term that was stayed and instead he was
placed on probation with a variety of conditions. Among those conditions
was the one requiring prior approval for engaging in intimate
relationships.
The circuit court denied the petitioner's challenge to the revocation
brought through a petition for writ of certiorari. The court of appeals,
in a decision by Judge Anderson, affirmed.
Said the court of appeals, conditions of probation may impinge upon
constitutional rights as long as they are not overly broad and are
reasonably related to the person's rehabilitation. The condition
prohibiting the petitioner from entering into an intimate relationship
with any person without first discussing it with and obtaining his
agent's approval was held to be both reasonable and not overly broad.
The court found that the condition is rationally related to the
petitioner's rehabilitation because it forces him to be honest with
others by confronting and admitting to his sexually deviant behavior.
The condition also serves to protect the public. Because the condition
is narrowly drawn and reasonably related to the petitioner's
rehabilitation, and the protection of the public, the court concluded
that it does not violate his constitutional right to privacy.
Torts
Insurance - Medical Payments Coverage - Subrogation
Jones v. Aetna Cas. and
Surety Co., No. 96-1183-FT (filed 24 June 1997) (ordered
published 29 July 1997)
Jones was injured in an automobile accident with Alderson. Alderson
was uninsured. Jones was insured by Aetna Casualty and Surety Company
(Aetna). The Aetna policy provided uninsured motorist and medical
payments coverage. Jones made claims for medical expenses under the
policy, which Aetna paid.
Jones then sued Alderson and Aetna, seeking recovery for his
injuries. A jury awarded Jones $3,500 for his past medical and hospital
expenses, $600 for past pain and suffering and nothing for future pain
and suffering. After the verdict, Aetna sought as a setoff the $2,600 it
already had paid to Jones under the policy's medical payments provision.
The trial court denied the setoff.
The court of appeals, in a decision authored by Judge Fine, reversed.
Section 632.32(4)(b) of the Wisconsin Statutes provides in pertinent
part that "under the medical or chiropractic payments coverage, the
insurer shall be subrogated to the rights of its insured to the extent
of its payments." The appellate court concluded that this statute is
plain and unambiguous. When an insurer makes payments to or on behalf of
its insured under the medical payments portion of its policy, it is
subrogated to its insured's right to recover "to the extent of its
payments." Contrary to Jones's argument and the trial court's holding,
the statute does not require that an insurer named as a defendant plead
setoff or file a counterclaim in order to recover payments it made to or
on behalf of its insured. Subrogation prevents the insured from
recouping a windfall double recovery. In this case, to deny Aetna its
statutory subrogation rights would give Jones an impermissible
windfall.
Worker's Compensation- Coworkers - Loaned Employees
Borneman v. Corwyn
Transport Ltd., No. 96-2511 (filed 3 June 1997) (ordered
published 29 July 1997)
Jason was killed when material on a flatbed trailer fell on him while
he was loading it. The accident occurred at Jason's place of employment,
Major Industries Inc. His surviving spouse commenced an action against
the trucking company alleging that its driver was negligent in Jason's
death. The circuit court dismissed the complaint based upon a summary
judgment determination that the driver was an employee "on loan" by the
trucking company to Major Industries; thus, the driver was Jason's
"coworker" and the claim barred by section 102.03(2) of the Wisconsin
Statutes.
The court of appeals, in an opinion written by Judge Mangerson,
reversed, applying the loaned employee test originally set forth in
Seaman Body Corp. v. Industrial Comm'n, (1931). The court
examined whether 1) the employee consented to work for a special
employer, thus creating a "new, superseding working relationship"; 2)
"the temporal relationship between the formation of the contract of
special employment and the actual commencement of work"; and 3) the
power of the special employer to "control" the job. The court held that
the truck driver was not a loaned employee because the driver did not
consent to a new employment contract with Major Industries immediately
before the fatal accident, "did not enter upon a special employment
contract to do work 'of and for' Major Industries, and did not
participate in the loading of the truck under Major's control." Although
there was a factual dispute over the driver's role in the loading
process, it did not present a genuine issue of material fact. The case
was remanded for trial on the issue of the driver's negligence.
Claims Against the Tortfeasor- Pain and Suffering - Future Medical
Expenses
Threshermens Mut. Ins. Co.
v. Page, No. 95-2942 (filed 15 April 1997) (ordered published
29 July 1997)
A worker's compensation carrier made payments to an injured employee
and began this action against the tortfeasor. Before trial, the judge
entered an order precluding the insurer from presenting a claim for pain
and suffering or future medical expenses; the judge limited the insurer
to payments that already had been made.
The court of appeals, in an opinion written by Judge Wedemeyer,
reversed. Section 102.29(1) of the Wisconsin Statutes clearly and
unambiguously requires three elements: "1) the action must be grounded
in tort; 2) the action must be one for the employee's injury or death;
and 3) the injury or death must be one for which the employer or its
insurer has or may have liability." The statute "clearly allows the
injured employee or the insurer to commence an action against the
third-party tortfeasor and grants each the 'same rights' to make a claim
or maintain an action." The insurer was entitled to assert the pain and
suffering claim even if the employee was not actively participating in
the claim. For the same reason the insurer was entitled to bring a claim
for future medical expenses that it may incur. The uncertainties
inherent in predicting the future present ordinary questions of fact for
the trier.
Benefits - Former and Present Employers
- Carpal Tunnel Syndrome
North River Ins. Co. v.
Manpower Temp. Services, No. 96-2000 (filed 4 June 1997)
(ordered published 29 July 1997)
In November 1992 Buczko was employed by Manpower Temporary Services.
He was assigned to work at Freedom Plastics Inc. In early 1993 he
terminated his employment status with Manpower and became a Freedom
employee. On his first day of employment at Freedom, he reported pain in
his fingers and hand that was later diagnosed as carpal tunnel syndrome.
Buczko claimed that he suffered the pain earlier, while employed by
Manpower, but had not reported it. An administrative law judge found
that Freedom was the responsible employer because Buczko had not
experienced any disability until he first reported the pain. The LIRC
adopted the finding but the circuit court reversed based upon medical
evidence that the "materially contributing cause" occurred before the
day Buczko reported the pain.
The court of appeals, in an opinion written by Judge Nettesheim,
reversed. The "time of injury" is defined by section 102.01(2)(g) of the
Wisconsin Statutes. Although the court recognized that "it may appear
unfair to obligate Freedom for Buczko's worker's compensation benefits
in light of Buczko's single day of work as a Freedom employee," the LIRC
properly determined that Buczko suffered no disability while working for
Manpower: "[h]is carpal tunnel syndrome had not yet progressed to the
point where it had '[ripened] into a disabling affliction.'"
This column summarizes all decisions
of the 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.
Wisconsin
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