Court of Appeals Digest
by Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
Editor's Note: Each case summarized in the Court of
Appeals Digest includes its new public domain citation.
| Attorney Fees | Civil Procedure |
Criminal Law | Criminal Procedure | Employment Law | Family Law | Insurance | Property | Torts |
Attorney Fees
Settlements - Reasonableness - Contingent Fees - Worker's
Compensation
Meyer v. Michigan Mutual
Ins. Co., 2000 WI App 53 (filed 2 Feb. 2000) (ordered published
22 March 2000)
The trial court entered a judgment approving a settlement and
distributing the proceeds in accordance with section
102.29(1), Statutes, of the Worker's Compensation Code. The insurer
appealed on the ground that the court had improperly awarded a one-third
contingent fee as part of the "reasonable cost of collection" and failed
to consider the appropriate factors under SCR
20:1.5(a) (1999). The fee came to $333,333.33
The court of appeals, in a decision written by Judge Snyder, affirmed
on that issue. The trial court had considered more than the bare
existence of the contingent fee contract. It also weighed the
substantial hours spent on the case, the attorneys' effort, the size of
the claim, and the risk of failure. These are factors embraced by SCR
20:1.5(a). Apart from the worker's compensation claim, the dispute
entailed pleading and discovery tied to a third-party liability action
plus several appeals.
The court reversed, however, based on the judge's err in entering a
$1 million judgment solely in the name of the plaintiff, Meyer. Section
102.29(1) expressly requires that funds be distributed to the
employer or the employer's insurance carrier. Meyer's judgment was
limited to only that amount he was entitled to receive under section
102.29(1). On this record, Meyer was entitled to only one-third of
the $666,000 that remained after deducting the collection costs. The
worker's compensation carrier was entitled to the remaining $444,000 for
the benefits it had paid.
Civil Procedure
Intervention - Wis. Stat. Section 803.09 - Status of Intervenor
vis-à-vis Other Parties to the Litigation
Kohler Co. v. Sogen
International Fund Inc., 2000 WI App 60 (filed 9 Feb. 2000)
(ordered published 22 March 2000)
In this case the court of appeals considered what it deemed an issue
of first impression in Wisconsin: the status of an intervenor in a civil
action. Section
803.09 of the Wisconsin Statutes provides a mechanism whereby anyone
who claims "an interest relating to the property or transaction ... of
the action" and needs to protect this interest by participating in the
action shall be permitted to intervene in the action. The statute
applies in special proceedings as well as in ordinary civil actions
unless a special procedure statute indicates to the contrary.
In a decision authored by Judge Anderson, the court of appeals
concluded that an intervenor's status after intervention is the same as
all other participants in the proceeding. It summarized this status by
relying upon a federal case that discusses intervention under Fed. R.
Civ. P. 24, which is essentially the same as Wis. Stat. section
803.09. In Schneider v. Dumbarton Developers Inc., 767 F.2d
1007, 1017 (D.C. Cir. 1985), the U.S. Court of Appeals characterized the
status of an intervenor as follows: "When a party intervenes, it becomes
a full participant in the lawsuit and is treated just as if it were an
original party. The intervenor renders itself vulnerable to complete
adjudication by the federal court of the issues in litigation between
the intervenor and the adverse party. It is said to assume the risk that
its position will not prevail and that an order adverse to its interests
will be entered. As we said recently, 'The possibility that the
plaintiff will be able to obtain relief against the
intervenor-defendant' is part of the 'price' paid for intervention."
Criminal Law
Battery by Prisoner - Application to Person in Custody on Probation
Hold
State v.
Fitzgerald, 2000 WI App 55 (filed 9 Feb. 2000) (ordered 22
March 2000)
The defendant was on probation for disorderly conduct. While on
probation, he failed to keep an appointment with his probation agent and
the agent issued an apprehension request directing that he be taken into
custody. After being taken into custody on the apprehension request, the
defendant bit the finger of one of the officers involved, drawing blood.
As a result, he was charged with one count of battery by a prisoner
contrary to Wis. Stat. section
940.20(1).
Pursuant to this statute, "any prisoner confined to a state prison or
other state, county or municipal detention facility who intentionally
causes bodily harm to an officer, employee, visitor or another inmate of
such prison or institution, without his or her consent, is guilty of a
Class D felony." The issue in this case was whether the defendant, as a
probationer in custody under a probation hold, was a "prisoner" for
purposes of this statute. In a decision authored by Judge Nettesheim,
the court of appeals concluded that he was.
Conspiracy and Attempt - Conviction of Multiple Inchoate Crimes -
Multiplicity
State v. Moffett
and State v. Denson,
2000 WI App 67 (filed 10 Feb. 2000) (ordered published 22 March
2000)
The defendants, together with a woman, planned to kill the woman's
husband. The plan was that the three of them would furnish a gun to a
person named "Zake," who was to gain entry to the victim's house and
murder him in his sleep. However, instead of killing the intended
victim, Zake only wounded him.
The defendants were charged with conspiring to commit first-degree
intentional homicide under the inchoate conspiracy statute (Wis. Stat.
section
939.30) and with being parties to the crime of attempted
first-degree intentional homicide.
The defendants moved to dismiss the conspiracy charge, arguing that
Wis. Stat. section
939.72, which provides that no person may be convicted "for
conspiracy and ... as a party to the crime which is the objective of the
conspiracy," bars prosecution for both inchoate conspiracy to commit
murder and attempted murder. The circuit court agreed and ordered the
state to amend its information to drop one of the charges.
The court of appeals reversed in a decision authored by Judge Eich.
The charges in this case involved two inchoate offenses: conspiracy and
attempt. Section
939.72 only bars simultaneous convictions for an inchoate crime and
a completed crime. Accordingly, the filing of the dual charges in this
case did not violate section
939.72.
The defendants also contended that the dual charges in this case were
multiplicitous. The appellate court rejected this contention as well.
Each of the two crimes requires proof of a fact for conviction that the
other does not. Further, there was no indication that the Legislature
has clearly intended that cumulative punishments for these two offenses
should be barred.
Criminal Procedure
Probation - Rejection of Probation in Midst of Probationary
Term
State v. McCready,
2000 WI App 68 (filed 23 Feb. 2000) (ordered published 22 March
2000)
After serving close to one year on probation, the defendant moved the
court to terminate probation. At the hearing, he appeared with counsel.
Counsel informed the court that he had tried to discourage the defendant
from refusing probation and had warned the defendant of the risk of
prison time. The court lifted the defendant's probation and sentenced
him to a prison term.
The issue before the court of appeals was whether a probationer has
the right to refuse probation - not only when it is first imposed - but
at any time while serving it. In a decision authored by Judge Brown, the
court of appeals concluded that a defendant has the right to reject
probation at any time during the course of the probationary period.
Mandatory Release - Holding Inmate in Prison Beyond Mandatory
Release Date Unlawful
State ex rel. Olson v.
Litscher, 2000 WI App 61 (filed 16 Feb. 2000) (ordered
published 22 March 2000)
The defendant was in prison for sexual assault and reached his
mandatory release date. At that time the Department of Corrections (DOC)
had been unable to locate a residence for him. DOC thus transferred him
from the state prison in Oshkosh to the Kenosha Correctional Center, a
minimum-security state penal institution.
The defendant petitioned the circuit court for a writ of habeas
corpus, contending that his continued incarceration beyond his
statutorily mandated release date was an unlawful restraint of his
personal liberty. In a decision authored by Judge Brown, the court of
appeals agreed. There is nothing in either the Administrative Code or
the Wisconsin Statutes that authorizes DOC to detain a person past his
or her mandatory release date. Whether or not a place has been found for
an inmate, he or she must be released on the mandatory release date.
Sentencing - Sentence "Consecutive to Revocation" of Parole
State v. Cole,
2000 WI App 52 (filed 9 Feb. 2000) (ordered published 22 March 2000)
The defendant was convicted of theft and the court sentenced him to
three years in prison "consecutive to revocation." At the time of the
offense, conviction, and sentencing on the theft charge, the defendant
was on parole for another crime. His parole was revoked shortly after
the conviction and sentencing on the theft offense.
The defendant claimed that the court was without authority to impose
consecutive sentences in this situation. Specifically, he argued that
because he was on parole and his parole had not yet been revoked, he was
not serving a sentence when the three-year prison term "consecutive to
revocation" was imposed and the order requiring the theft sentence to be
served consecutively should be voided.
Wis. Stat. section
973.15(2)(a) provides that "the court may impose as many sentences
as there are convictions and may provide that any such sentence be
concurrent with or consecutive to any other sentence imposed at the same
time or previously." The appellate court, in a decision authored by
Judge Anderson, concluded that this statute allowed the trial court to
impose the consecutive sentence on the theft conviction under the
circumstances as described above. In footnote, the court noted that if a
sentence is ordered to be served after revocation, there remains a
possibility that the parole may not be revoked. It urged circuit courts
to consider this contingency in their sentencing remarks when imposing
such a sentence. In this situation, the court could direct that in the
event that parole is not revoked, the sentence on the new charge should
commence forthwith.
Trials - Motions to Dismiss - Deferred Rulings - Impeachment
State v. Scott,
200 WI App 51 (filed 29 Feb. 2000) (ordered published 22 March 2000)
The court of appeals, in a decision written by Judge Schudson,
affirmed the defendant's convictions for burglary and theft. The
defendant raised two issues. First, he argued that error occurred when
the trial judge deferred and later denied his motion to dismiss at the
close of the state's case-in-chief. Case law saddles the defendant with
a difficult choice where the trial judge denies the defense's motion to
dismiss at the close of the state's case. The defense can elect to offer
no evidence whatsoever and thereby preserve the original motion, or it
can offer evidence but at the cost of having the appellate court review
the evidentiary sufficiency of the entire record. In this case
the judge exacerbated the defendant's dilemma by deferring the ruling;
thus, the defense had to elect whether to offer evidence without knowing
how the trial judge ruled on the motion.
The court of appeals suggested that "when the defense moves to
dismiss at the close of the state's case, the better practice
is for trial courts to decide the motion at the close of the state's
case." (Emphasis original.) If the judge defers, ordinarily the
defense should object to the deferral. The court of appeals agreed to
the defense's contention that in this case it should examine only
evidence presented by the state. Applying the standards governing the
review of circumstantial evidence, the court held that the evidence was
sufficient.
Second, at trial another man came forward and "confessed" that he had
committed the offenses and had enlisted the defendant's unwitting
assistance. To impeach the witness's credibility, the state assailed his
bias. Not only did the witness and the defendant know one another, but
the state also offered evidence relating to the witness's parole
eligibility date, which strongly suggested that he had nothing to lose
by claiming sole responsibility. Case law amply supported this theory of
impeachment.
Confessions - Miranda - Suppression Orders - "Fruitless"
Tree
State v. Yang,
2000 WI App 63 (filed 8 Feb. 2000) (ordered published 22 March 2000)
Yang was charged with numerous crimes arising out of a shooting in
Brown County. The trial court suppressed Yang's incriminating statements
and other evidence. The state appealed.
The court of appeals, in a decision written by Judge Hoover, affirmed
in part and reversed in part. While in custody Yang made various
incriminating statements without being properly advised of his
Miranda rights. He later made other incriminating statements
after being duly advised in accordance with Miranda. The
earlier Miranda violation did not fatally infect the second set
of statements. For suppression purposes, Miranda is a
"fruitless" tree. So long as the first statement was voluntarily given -
which it was - any Miranda defect did not taint the second set
of statements obtained in compliance with Miranda.
More significantly, the court of appeals addressed whether
physical evidence (in this case, a gun) should be suppressed as
the fruit of an earlier Miranda violation. Examining the case
law, the court held that the "logical extension" of prior cases "is that
the 'fruit of the poisonous tree' doctrine does not apply to physical
evidence discovered as the result of a statement obtained in violation
of Miranda's prophylactic rules, as opposed to a constitutional
infringement." (The court's holding "overrules" dicta in several earlier
cases that are cited in the opinion.) In short, a Miranda
violation results in the suppression of any statements made during the
course of that interrogation; later statements obtained in
compliance with Miranda as well as physical evidence obtained
as a result of the earlier (defective) statement are not suppressed.
Employment Law
At-will Employees - Tort Action Against Employer for
Misrepresentation
Mackenzie v. Miller Brewing
Co., 2000 WI App 48 (filed 22 Feb. 2000) (ordered published 22
March 2000)
The plaintiff sued his former employer seeking damages for what he
claimed was intentional misrepresentation leading him to continue his
employment at the company. He claimed that in 1987 the employer
misinformed him that a company reorganization did not affect his
position's grade level at the company and that in 1989 the employer
failed to inform him that his position had been downgraded to a lower
level.
In a majority decision authored by Judge Schudson, the court of
appeals concluded that under Tatge v.
Chambers & Owen Inc., 219 Wis. 2d 99, 579 N.W.2d 217
(1998), the plaintiff's claim for intentional misrepresentation was not
actionable in tort. Said the court, "we hold that Tatge precludes an
employee's tort claim against an employer for alleged intentional
misrepresentation that allegedly induced continuation of
employment."
The court further concluded that "the creation of an employer's duty
to disclose information potentially affecting an employee's decision to
continue employment would undermine sound public policy. It would reduce
the at-will employment flexibility that is so valuable to both employers
and employees. It would be virtually impossible to implement and
enforce. It would leave both employers and employees forever guessing at
the limits of their responsibility and potential liability."
The court also held that, even if the decision in Tatge did
not preclude the plaintiff's claim as a matter of law, the plaintiff
failed to prove the elements of an intentional misrepresentation
claim.
Among the other issues considered by the court in this lengthy
opinion was whether false complaints of sexual harassment should form
the basis for an exception to the "firmly rooted" principle precluding
punitive damages in the absence of compensatory damages. The court
answered in the negative.
Judge Fine filed a concurring opinion. Judge Wedemeyer filed an
opinion concurring in part and dissenting in part.
Family Law
Termination of Parental Rights - Time Limitations - Extensions for
Good Cause - Loss of Competency
State v. April O.,
2000 WI App 70 (filed 15 Feb. 2000) (ordered published 22 March
2000)
The respondents appealed orders terminating their parental rights.
They argued that the circuit court lost competency to proceed when it
failed to hold their initial and dispositional hearings within mandatory
time limits. Wis. Stat. section
48.315(2) allowed the court to extend those time limits, but only
upon a showing of good cause in open court.
The issue before the court of appeals was whether the circuit court
lost competency in this TPR case when, although it found that good cause
existed to extend the time limits, it did not make that finding until
after the time limits had expired.
In a decision authored by Judge Peterson, the appellate court
concluded that the circuit court did lose its competency to proceed in
this case and therefore it reversed the orders terminating the
respondents' parental rights.
Insurance
Wrongful Death - Survivors - Parents
Bruflat v. Prudential
Property & Casualty Ins. Co., 2000 WI App 69 (filed 2 Feb.
2000) (ordered published 22 March 2000)
Martin and Mary were divorced and lived in different residences.
Their son, Simon, lived with Martin although Mary had joint custody.
Simon was killed in 1998 while driving Martin's car. The other driver
was uninsured. Mary filed a claim for the proceeds of the uninsured (UM)
coverage. Martin asked the court for declaratory relief. The court
divided the proceeds between Martin and Mary.
On appeal Martin argued that since he was the named insured and Simon
resided with him, he was entitled to 100 percent of the proceeds. The
court of appeals, in a decision written by Judge Snyder, rejected the
argument and affirmed the circuit court. Simon was not married and had
no children; hence, his lineal heirs were his parents pursuant to section
895.04(1) of the Wisconsin Statutes. The court was not persuaded
that the statutes regulating UM protection overrode the design of the
wrongful death statute.
Property
Deeds - Gifts - Equity - Retitling
Wynhoff v. Vogt,
2000 WI App 57 (filed 16 Feb. 2000) (ordered published 22 March
2000)
The prime issue on this appeal concerned the trial court's power to
reform a quitclaim deed. The parties disputed title to land that had
been "gifted with strings" in the 1970s. After a bench trial, the trial
court canceled a 1974 quitclaim deed based on its equitable powers under
section
706.04 of the Wisconsin Statutes.
The court of appeals, in a decision written by Judge Snyder,
reversed. There was nothing deficient or ambiguous about the 1974 deed
"in its own right." The trial court found that there were "contingencies
and reservations in the deed that were not listed in any of the
documents" and so it read them into the deed by way of "reformation in
equity." By granting such equitable relief, the trial court's action
conflicted "with fundamental tenets of property law." First, the law
requires that parties who intend to retain an interest in property "must
expressly do so in the document of conveyance." Second, once the deed is
effective, the grantor's later remarks or conduct cannot operate
retroactively to change the deed's effect. In short, deeds "should not
be rewritten by the court."
Torts
Dog Bites - Negligence - Statutory Claim
Fifer v. Dix, 2000
WI App 66 (filed 24 Feb. 2000) (ordered published 22 March 2000)
Fifer sued Dix for injuries stemming from a dog bite. The trial court
granted summary judgment dismissing Fifer's claims sounding in
negligence and in section
174.02 (1997-98).
The court of appeals, in a decision written by Judge Deininger,
affirmed in part and reversed in part. The trial court erred in granting
summary judgment on the statutory dog-bite claim. Dix, the dog's owner,
had allowed another man and Fifer to use the dog in preparation for bear
season. Both were warned that the dog had bitten a person on a prior
occasion and should be handled carefully. Dix argued that since he was
not handling the dog when Fifer was bitten, he was not liable to third
parties under the case law. The court disagreed. It held that section
174.02(1) "unambiguously imposes strict liability on a dog owner
whose dog injures a person who is neither its owner nor its keeper."
No error occurred in the dismissal of the negligence claim. The
plaintiff Fifer provided no information contesting Dix's evidence that
he had warned Fifer and others about the dog's propensity.
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 Lawyer
