Court of Appeals Digest
Recent Decisions
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.
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Attorneys
Conflicts of Interest - Incompetent Clients
Guerrero v. Cavey,
2000 WI App 203 (filed 20 July 2000) (ordered published 27 Sept.
2000)
The guardian ad litem for Lillian P. sought the disqualification of
attorney PC who represented both Lillian and her son, Lester. The GAL
asserted that PC had a conflict of interest and that Lillian was
incompetent to waive it. The court refused to disqualify PC primarily
because another attorney agreed to act as "co-counsel" during PC's
representation of Lillian, who also had executed a waiver of the
conflict.
The court of appeals, in a decision written by Judge Roggensack,
reversed the circuit court. Lillian was a 90-year-old woman who was
adjudged incompetent because of dementia. The court found that attorney
PC had an actual conflict of interest. Lester sought to purchase
Lillian's house at a price below market value. Moreover, Lester was
living in Lillian's house without paying rent and wanted to persuade
Lillian to leave her protective placement in a group home and return to
her house, a scenario that the court found would give Lester a "better
opportunity" to get the house. In sum, if PC "is to vigorously represent
Lester, she must find ways to block the sale" to a buyer willing to pay
substantially more for the house than Lester. Thus, Lillian's and
Lester's interests were adverse ( 17).
The court next addressed whether Lillian properly waived PC's
conflict of interest. Because Lillian had been adjudicated incompetent,
she was "legally incapable" of executing a waiver ( 19). On this record
PC never challenged Lillian's incompetence. Indeed Lillian's increasing
confusion and anxiety had progressed to the point of attacks on
caregivers and her commitment to secure mental health facilities.
Finally, the presence of "co-counsel" in no way ameliorated PC's
conflict of interest.
Attorney Fees
Frivolous Actions - Pre-suit Consultation - Fees For
Ancillary Proceedings
Lenhardt v.
Lenhardt, 2000 WI App 201 (filed 2 Aug. 2000) (ordered
published 27 Sept. 2000)
The plaintiff sued her son, seeking specific performance of an
alleged agreement to transfer title to a vacant lot to her. The circuit
court found her action frivolous and awarded attorney fees to the
defendant. Among the issues on appeal was the correctness of that
award.
The precise question before the court of appeals was whether the
circuit court had authority under Wis. Stat. section 814.025 to award
attorney fees for pre-suit consultation in the case as well as for legal
work on a harassment injunction that was obtained by the defendant
against the plaintiff in connection with their ongoing dispute about the
property in question. The injunction was obtained before the plaintiff
filed her suit for specific performance of the party's alleged
agreement.
With regard to attorney fees for pre-suit consultation, the court of
appeals held that, as long as the fees are sufficiently related to the
cause of action before the court, it is their reasonableness, not the
time they were incurred, that determines whether the court has authority
to use its discretion in awarding them. In this case, the defendant met
with an attorney to discuss the very problem that eventually caused the
plaintiff to file what turned out to be a frivolous lawsuit. The fact
that the discussion took place prior to the filing of the complaint did
not render those fees unrecoverable under the statute cited above.
The court of appeals reached the opposite conclusion, however,
regarding the attorney fees awarded for the harassment injunction. It
concluded that the trial court was without authority to award those
fees. The harassment injunction was a completely separate, albeit
related, proceeding to that in which the fees were awarded. The statute
only gives the trial court authority to award attorney fees for the
action or proceeding before it, not for all ancillary proceedings
precipitated by the frivolous action but not before the court.
Creditor-debtor Law
Medical Services - Consumer Act - "Installment"
Payments
Dean Medical Center S.C. v.
Conners, 2000 WI App 202 (filed 10 Aug. 2000) (ordered
published 27 Sept. 2000)
Dean Medical Center obtained a judgment against the defendant for
medical services provided to his son. On appeal he claimed that the
judgment was invalid because Dean failed to give him personal notice as
required by the Wisconsin Consumer Act (WCA). Affirming the judgment,
the court of appeals, in a decision written by Judge Roggensack, held
that the "transaction involved here was not a consumer credit
transaction to which the WCA applied" (¶ 1).
No prior case law had addressed "whether an overdue debt which is not
subject to a finance charge and is paid over a period of several months
is a consumer credit transaction solely because it was paid over time."
Nor did this record support defendant's arguments. First, no evidence
suggested that when defendant incurred the obligation the parties agreed
that it could be paid over time. Second, the court would have to
"rewrite" the agreement in order to permit "those services to create a
consumer debt simply by virtue of nonpayment." Third, Dean's custom was
not to offer patients the option of paying in installments, at least
when the services are provided. (¶ 12)
The court also addressed and rejected another line of argument to the
effect that "third-party creditors may not recover from a noncustodial
parent when a paternity judgment establishes the noncustodial parent's
liability for medical expenses of a child" (¶ 14).
Criminal Law
Felon in Possession of Firearm (Second Offense) -
Application of Habitual Criminality Statute
State v. Gibson,
2000 WI App 207 (filed 2 Aug. 2000) (ordered published 27 Sept.
2000)
Wis. Stat. section 941.29(2)(a) makes it a Class E felony for a
person who has previously been convicted of a felony to possess a
firearm. Subsection (2m) of that statute provides that the offense is a
more serious Class D felony if the defendant has previously been
convicted of violating this statute.
The defendant was charged with the Class D felony version of this
offense because he had previously been convicted of possessing a
firearm. On top of that, the state added an allegation that he was an
habitual offender under the general repeater statute (Wis. Stat. §
939.62), thereby exposing him to a greater penalty under that statute as
well.
The question before the court of appeals was whether the habitual
criminality enhancer may be applied to a conviction for a second offense
felon in possession of firearm violation. In a decision authored by
Judge Brown, the court of appeals held that the second offense felon in
possession statute (the Class D felony) creates its own separate offense
and is not itself a penalty enhancer. Because it is a separate crime and
not a penalty enhancer, it can support the application of the habitual
criminality statute. Thus, it was proper for the circuit court to apply
the general repeater statute to the crime of felon in possession of a
firearm (second offense).
Theft of Firearms - Multiplicity
State v.
Trawitzki, 2000 WI App 205 (filed 31 Aug. 2000) (ordered
published 27 Sept. 2000)
The defendant was part of a group that burglarized a home. Ten
firearms were taken from the premises. The next day, several of the guns
were hidden near a bridge.
The state charged the defendant with burglary, with 10 counts of
theft of a firearm, and with five counts of concealing stolen property.
Except for the burglary charge, all of these charges were brought under
the theft statute, which prohibits not only the taking and carrying away
of another's property but the concealment of it as well. That statute
has elevated penalties if the property stolen is a firearm. See Wis.
Stat. § 943.20(1)(a) and (3)(d)5.
The defendant contended that the theft and concealment charges were
multiplicitous and therefore in violation of the Double Jeopardy Clause.
In an opinion authored by Judge Deininger, the court of appeals rejected
that argument and affirmed the convictions.
"Multiplicity" is the term used to describe the charging of a single
criminal offense in more than one count. Multiplicitous charges violate
the double jeopardy provisions of the Wisconsin and U.S. Constitutions.
To resolve multiplicity claims, the court first looks to see whether the
multiple charges are identical in law and in fact.
In this case, the multiple charges were indeed identical in law.
However, the court of appeals was satisfied that each charge was based
on sufficiently different facts - the individual identity and
characteristics of each firearm that was stolen - to render each
separate charge different in fact from the others. Because the multiple
counts were sufficiently different in fact from one another, the
presumption is that the Legislature intended to allow multiple
punishments. However, the court must examine the statute to ascertain
whether there are any indications of a legislative intent to the
contrary. Here, the court could not identify any such contrary
intention. Among other things the court noted that, by enacting the
statute in question, the Legislature sought to address a special
societal concern - the proliferation of guns among criminals. And, since
the theft of each individual firearm potentially places another weapon
in the hands of a criminal for use in another crime, it is not
inappropriate to separately penalize the taking or concealment of each
one.
Criminal
Procedure
Double Jeopardy - Revision of Sentence
State v. Willett,
2000 WI App 212 (filed 9 Aug. 2000) (ordered published 27 Sept.
2000)
The defendant faced sentencing for three convictions on the same day.
He was also expected to be sentenced four days later on an earlier
charge when his probation on that earlier charge was revoked. The
circuit court stated that it wanted to make the sentences in the new
case consecutive to the sentence in the old case, but did not believe it
had the authority to do so. Accordingly, the new sentences were not made
consecutive to the sentence to be imposed later for the old charge as to
which the defendant's probation was being revoked.
Four months later, the circuit court was convinced that its earlier
ruling that the new sentences could not be consecutive to the old one
was based on an erroneous understanding of the law. Accordingly, the
court changed the three new sentences so that they would be consecutive
to the sentence on the old charge that was imposed after probation was
revoked. This was done over the double jeopardy objections of the
defendant.
In an opinion authored by Judge Brown, the court of appeals reversed
the circuit court. It agreed with the defendant that the sentence
modification violated the prohibition against double jeopardy. The
defendant had a legitimate expectation of finality in the sentence that
had originally been imposed and had already been serving that sentence
for four months when the trial court modified it. Further, this was not
a situation where there was a "slip of the tongue" on the part of the
trial court. Rather, the trial court had an incorrect understanding of
the law governing its sentencing authority. Said the appellate court,
double jeopardy prevents the state from using this error, four months
later, to seek a stiffer sentence for the defendant. That the trial
court wanted to impose a consecutive sentence to begin with is of no
moment; what the trial court actually did was to impose a valid,
concurrent sentence. The Double Jeopardy Clause prevents the trial court
from going back, four months later, to redo the sentence.
Orders to Produce - Prisoner Transports to Court -
Defendant's Liability for Fees and Costs
State v. Dismuke,
2000 WI App 198 (filed 8 Aug. 2000) (ordered published 27 Sept.
2000)
The defendant was convicted of armed robbery and given a lengthy
prison sentence. The circuit court imposed "applicable costs," ordering
the defendant to pay fees and travel costs generated by the sheriff in
connection with the service of numerous orders to produce him from
prison (where he was serving a sentence for a prior conviction) for his
circuit court appearances in the present case. On appeal he contended
that these costs are not authorized by Wis. Stat. section 973.06 and,
further, that the assessment of these costs against him violated his
constitutional rights to due process and equal protection.
The court of appeals, in a decision authored by Judge Curley,
affirmed. It concluded that section 973.06 permits the assessment of
costs for the service of an order to produce and for the attendant
travel fees. The court further concluded that the taxation of costs in
connection with the service of an order to produce did not violate the
defendant's constitutional rights.
OWI Investigations - Warrantless Blood Draws
State v. Thorstad,
2000 WI App 199 (filed 17 Aug. 2000) (ordered published 27 Sept.
2000)
The defendant was arrested for OWI and taken to a hospital for a
blood test. The officer informed the defendant about the implied consent
law and he agreed to take the blood test. At no time did the defendant
request that he be given the opportunity for some other test, nor did he
ever refuse to take the blood test.
The defendant filed a motion to suppress the results of the blood
test, arguing that it was an unreasonable search in violation of the
Fourth Amendment. The circuit court agreed and suppressed the test
result. The state appealed.
In a decision authored by Judge Dykman, the court of appeals
reversed. In order for a blood draw in a case like this to be
permissible under the Fourth Amendment, the following four requirements
must be met: 1) the blood draw must be taken to obtain evidence of
intoxication from a person lawfully arrested for an impaired driving
violation or crime; 2) there must be a clear indication that the blood
draw will produce evidence of intoxication; 3) the method used to take
the blood sample must be a reasonable one and performed in a reasonable
manner; and 4) the arrestee must present no reasonable objection to the
blood draw. See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d
399 (l993). The court of appeals concluded that the Bohling requirements
were met in this case and accordingly the blood draw was a reasonable
search under the Fourth Amendment.
In its opinion the court considered the applicability of a 9th
Circuit case entitled Nelson
v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), in which the
federal court held that "when an arrestee requests but is denied the
choice of an available breath or urine test, the exigency used to
justify the warrantless blood test continues only because of the ...
failure to perform the requested alternative test." In those
circumstances the federal court believed that blood tests are not only
unnecessary and unreasonable, but also violate the Fourth Amendment's
warrant requirement. The Wisconsin Court of Appeals distinguished
Nelson. It noted that Nelson was a class action where the 9th Circuit
limited the plaintiff class to those who had requested or consented to a
breath or urine test instead of a blood test. In this case the defendant
did not request either alternate test. Further, the court held that
Nelson is not binding authority in Wisconsin.
Evidence
Other Acts - Prior Crimes
State v. Cofield,
2000 WI App 196 (filed 25 July 2000) (ordered published 27 Sept.
2000)
The court of appeals reversed the defendant's conviction for sexual
assault and kidnapping because of the erroneous admission of other act
evidence. The state alleged that he had threatened the victim with a
knife before assaulting her in his own apartment. To rebut the
defendant's claim of consent, the state offered evidence that he had
sexually assaulted two other women at knifepoint in 1986 and 1987. The
other crimes ostensibly demonstrated his "intent," "motive," or "common
plan." Writing for the court, Judge Wedemeyer applied the three-step
test set forth in State v. Sullivan. "Intent" was not an
element of the sexual assault charges. Even though intent is an element
of kidnapping, the state plainly used the evidence to prove nonconsent
to sexual intercourse. Nor did the 1986 and 1987 offenses provide a
"motive" for the present offenses; their only relevancy turned on an
impermissible character inference. For similar reasons, they also failed
to reflect a "plan" to assault the victim in this case.
Judge Schudson concurred.
Other Acts - Relevancy
State v. Bauer,
2000 WI App 206 (filed 23 Aug. 2000) (ordered published 27 Sept.
2000)
The court of appeals, in a decision written by Judge Brown, affirmed
the defendant's convictions for attempted murder and possession of an
electric weapon. While in jail awaiting trial, he solicited the murders
of two witnesses against him. The trial court admitted evidence of the
solicitation. The court of appeals held that the act of solicitation was
clearly relevant to show his consciousness of guilt and desire to escape
punishment. Moreover, the court also held that it was not necessary to
apply the Sullivan three-step test that governs other act evidence.
"Because Bauer's attempt to solicit murder was a criminal act intended
to obstruct justice and avoid punishment which demonstrates
consciousness of guilt, . . . evidence related to it is not other acts
evidence and is admissible" (¶ 7). In sum, the other acts analysis
should be reserved for instances when the proponent relies on the
similarity between the offense charged and some other act.
Insurance
UIM Coverage - Stacking - Split-limit
Liability
Ginder v. General Casualty
Co., 2000 WI App 197 (filed 2 Aug. 2000) (ordered published 27
Sept. 2000)
Ginder was injured in an accident with another driver. The other
driver's insurer settled Ginder's claim by paying its $100,000 policy
limits. Ginder sought underinsured motorist (UIM) coverage under his own
policy, which covered the automobile involved in the collision and
another vehicle. He also argued that he should be allowed to stack the
UIM coverages for the two vehicles. The trial judge agreed and found
that $200,000 in UIM coverage was available.
The court of appeals, in a decision written by Judge Snyder,
affirmed. The court construed the policy's definition of the phrase
"split-limit liability" in light of other language in the policy and the
case law on stacking. It held that the phrase "split-limit liability"
meant that the insurer's limit of liability for any one person "is the
sum of the limits of liability shown in the declaration page for each
person for UIM coverage" (¶ 16). This language conflicted with
another phrase that "apparently restricts [the insurer's] liability
limit to its coverage for a single vehicle rather than to the sum of
liability limits for all insured vehicles." The conflict language
created an ambiguity that the court resolved in the insured's favor.
Torts
Negligent Misrepresentation - Economic Loss
Doctrine
Prent Corporation v. Martek
Holdings Inc., 2000 WI App 194 (filed 31 Aug. 2000) (ordered
published 27 Sept. 2000)
The plaintiff contracted with the defendant for the provision of
customized software programs. When the software did not perform as had
been anticipated, the plaintiff sued to recover its losses. Among the
theories under which it sought recovery was negligent
misrepresentation.
One of the issues on appeal was whether the economic loss doctrine
precluded the plaintiff's claims for negligent misrepresentation. In a
decision authored by Judge Roggensack, the court of appeals held that
the negligent misrepresentation claims were precluded by the economic
loss doctrine.
The economic loss doctrine is a judicially created doctrine that
precludes a commercial purchaser of a product from suing in negligence
or strict liability to recover from the product's manufacturer a loss
that is solely economic; instead, the commercial purchaser's only
remedies are in contract, the law of warranties, and the Uniform
Commercial Code. Economic loss has been defined as that loss "in a
product's value which occurs because the product is inferior in quality
and does not work for the general purposes for which it was manufactured
and sold." It also has been defined as "damages for inadequate value,
costs of repair and replacement of the defective product, or consequent
loss of profits."
In this case the damages associated with the claims of negligent
misrepresentation arose as a result of paying the plaintiff's employees'
wages while they worked on the software project. Their nature is that of
a purely economic loss. The appellate court concluded that the economic
loss doctrine applied to these purely economic losses and that the
plaintiff's claims for negligent misrepresentation were therefore not
available.
Wisconsin Lawyer
