Wisconsin Supreme Court accepts review of six new cases, including attorney sanctions case

April 25, 2011 – The Wisconsin Supreme Court accepted review of six new cases, including one that asks the court to decide whether appeals court judges violate due process by sanctioning lawyers for allegedly filing false certifications regarding an appendix to an appellate brief.

In January, the Office of the State Public Defender (SPD) filed a petition with the supreme court to review a case in which an appeals court judge imposed a $150 fine against the public defender representing the appellant for failure to comply with Wis. Stat. section 809.19(2). That provision requires an appellant’s brief to include an appendix with certain information.

The petition states that the practice of imposing sanctions without first providing notice and an opportunity to be heard violates due process of law and asks the court to vacate the sanctions aspect of the opinion in the underlying case, State v. Nielson, 2010AP000387.

“Notice and opportunity to be heard would have allowed the agency or appointed attorney to explain exactly why the court was wrong in its allegation that the appendix content and certification rules were violated,” First Assistant SPD Joseph Ehmann wrote in his petition.

The petition also asks the court to determine whether section 809.19(2) is unconstitutionally vague on its face or as applied to the case, and whether an appeals court circumvents the procedure for resolution of ethics issues when concluding that “false certifications” violate the ethical duty of candor to the tribunal.

According to the SPD’s petition, there have been 23 known cases of a judge imposing sanctions for failure to comply with section 809.19(2)(a), including at least 17 in the past year. The State Bar of Wisconsin’s Appellate Practice Section supports the SPD’s petition and obtained approval from the State Bar Board of Governors to file an amicus brief in the case.

The supreme court also accepted review in five other cases, briefly summarized below. Summaries are derived, in part, from notice by the Wisconsin Court System. Full summaries can be found at www.wicourts.gov.

Olson v. Farrar, 2010 WI App 165 (Nov. 18, 2010)

This case examines the proper scope of review for a court to determine an insurance company’s duties to defend and indemnify an insured under a personal liability policy that generally excludes coverage for “property damage” resulting from a “motorized vehicle.”

Robert Farrar used his farm tractor to pull Todd Olson’s mobile home while Olson followed behind. But the tractor was not powerful enough to tow the mobile home uphill. The trailer rolled backwards, and caused damage to Olson’s truck and mobile home.

Farrar’s insurance policy covered damage caused by a mobile home trailer, but not property damage that resulted from a trailer “carried on, towed by, or attached to” a motor vehicle.

Farrar’s insurance carrier argued the policy excluded coverage because the tractor was a “motor vehicle” towing the mobile home. The policy defined “motor vehicle” as a trailer or semi-trailer subject to vehicle registration or “designed for use on public roads.”

Ultimately, the appeals court ruled the insurance coverage was not excluded by the policy. The issue for the Wisconsin Supreme Court concerns the appeals court’s proper scope of review.

Farrar’s insurer argues appeals court review was limited to the “allegations set forth within the ‘four corners’ of the complaint and the provisions within the policy,” not extrinsic facts or evidence beyond the four-corners of the complaint.

However, the appeals court ruled that “when an insurer has not refused to provide a defense prior to a determination of coverage and the question before the court is not whether the insurer has an initial duty to defend its insured but rather whether coverage is provided under the policy in question, the court’s review is not limited by the four-corners rule.”

May v. May, 2010AP177 (Jan. 6, 2011) (cert.)

In this certification case, the supreme court is asked to decide whether child support orders that set minimum (floor) payment amounts are unenforceable as against public policy.

After divorce, Michael May agreed to pay Suzanne May no less than $1,203 per month in child support for no less than 33 months. But after 17 months, May requested a downward adjustment to account for an involuntary loss of employment.

A circuit court denied May’s request, concluding that the 33-month “floor” was not against public policy and therefore enforceable. May appealed. The District IV Wisconsin appeals court certified the case to the Wisconsin Supreme Court.

In Wisconsin, “ceiling” stipulations are unenforceable. That means a support-receiving parent can seek an increase in child support payments, even if the parties stipulated to a maximum payment, if there has been a change in circumstances.

But, according to the appeals court, the supreme court has never squarely decided whether floor payment agreements are unenforceable.

Crown Castle v. Orion, 2011 WI App 9 (Dec. 7, 2010)

This case examines whether circuit courts and court commissioners have authority to compel supplemental examination of a corporate entity’s books and records if the entity shares common ownership with the judgment debtor.

Douglas Larson was the sole member of Wisconsin-based Orion Construction LLC. Larson also owned Orion Logistics LLC, a related business.

Crown Castle USA, Inc. obtained a default judgment against Orion Construction in Pennsylvania based on Crown Castle’s claim that Orion Construction constructed faulty cell towers.

Thus, Orion Construction became a judgment debtor, and the court commissioner ordered an accounting of Orion Construction’s assets for payment of the judgment. Orion Construction indicated that it had no assets, and no books or records pertaining to its assets.

Crown Castle believed Larson made fraudulent transfers to conceal assets, and sought examination of the books and records of Orion Logistics LLC. The Outagamie County Circuit Court granted Crown Castle’s request, and Orion Logistics appealed.

The appeals court held the circuit court had authority under Wis. Stat. section 816.03 to require Orion Logistics to submit to supplemental examination of its books and records.

Orion Logistics argues that Wis. Stat. section 816.03 does not give circuit courts or court commissioners authority to subject a non-party to supplemental examination.

Heritage Farms v. Markel Ins. Co., 2011 WI App 12 (Dec. 2, 2010)

This case examines whether plaintiffs are entitled to double damages where a defendant negligently started a forest fire that damaged or destroyed the plaintiffs’ land.

As a favor to landowner and business owner Jack Scimeca, Jeffrey Knack lit and maintained a large burn pile of brush, stumps, and building materials at the Lake of the Woods Campground in Marquette County in April of 2003. The fire escaped the pile and burned 572 acres of land.

Plaintiff insurer Heritage Farms, Inc. sought double compensatory damages under Wis. Stat. section 26.21(1), which provides that in addition to penalties provided by section 26.20, private landowners whose property is destroyed by forest fire may recover double damages “if the fires occurred through willfulness, malice or negligence.”

Heritage Farms moved for double compensatory damages and reasonable costs for legal representation, as well as 12 percent interest on the doubled portion of damages.

The circuit court granted attorneys’ fees, but not double damages or interest, reasoning that the case did not present a situation in which the court should use its discretion to impose double damages. The appeals court affirmed.

Heritage Farms argues that double damages are mandatory, or at least presumed, once there is a finding of willfulness, malice, or negligence.

State v. Goss, 2010AP1113-CR

The Supreme Court will examines whether a driver with four prior OWI convictions, which carries a prohibited alcohol concentration of 0.02 percent, may be subject to a preliminary breath screening test based on a lower level of evidence supporting probable cause. 

Police stopped Goss for having an obscured rear license place, and subsequently arrested him after detecting an odor of intoxicants and administering a preliminary breath test (PBT).

Goss argued that under County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), merely smelling alcohol on his breath was insufficient grounds to administer the PBT.

The appeals court ruled the odor of alcohol, information that Goss had four prior OWI’s and was subject to a lower PBT level of 0.02 provided probable cause to believe Goss was in violation of OWI laws.