Vol. 70, No. 9, September
1997
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. |