Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure/Evidence | Commercial
Law | Contracts | Courts | Criminal Procedure | Torts | Worker's Compensation |
Civil Procedure/Evidence
Jurors as Witnesses Learned Treatises Offers to
Settle
Broadhead v. State Farm
Mut. Ins. Co., No. 97-0904 (filed 26 Feb. 1998)
(ordered published 25 March 1998)
Plaintiff was injured in an automobile accident. The parties
stipulated to liability and tried the damages issue. After the trial
commenced, one juror belatedly remembered having seen the plaintiff do
some work at his house. The judge excused the juror and rejected a
defense request to call the former juror as a witness to the plaintiff's
ability to do physical labor. The jury awarded the plaintiff about
$40,000 in damages. On appeal the defendant raised several evidentiary
issues. The court of appeals, in an opinion written by Judge Deininger,
affirmed.
First, the court upheld the trial judge's decision to exclude
testimony by the former juror. The former juror had heard nearly an
entire day of testimony. The marginal probative value of his proffered
testimony, combined with the difficulties of impeaching a former member
of the jury panel, justified the judge's decision to exclude the
testimony under section 904.03. The court of appeals stated that it
found "it hard to envision any circumstance under which it would be
appropriate to allow a person who has been discharged from a jury in
midtrial to testify before the same jury." The defense also argued that
it should have been permitted to call the former juror's wife or father
to testify to the plaintiff's physical condition. The court ruled,
however, that the defense had failed to make an adequate offer of proof
that described what, if any, relevant testimony these witnesses could
provide.
Second, the court of appeals addressed the proper foundation for
learned treatises under section 908.03(18) of the Wisconsin Statutes.
During a videotaped deposition, a doctor read from several articles that
appeared in recognized journals. The trial judge erred by permitting the
jury to hear this part of the deposition. The plain language of section
908.03(18) requires a showing that the writer of the article is
a recognized expert in the area; the reputation of the journal is not
dispositive. The error was, however, harmless.
Finally, the court rejected the plaintiff's contention that she was
entitled to double costs. The defense had offered to settle for "$42,000
with costs." At trial the plaintiff obtained a judgment for $42,141,
which consisted of $38,116 in damages plus taxable costs of $3,536 and
post-verdict interest of $488. The case law construing section 807.01(3)
of the Wisconsin Statutes mandates that the offer and judgment must be
compared exclusive of costs.
Commercial Law
Statute of Frauds "Merchant"
Harvest Store Cooperative
v. Anderson, No. 97-2762-FT (filed 24 Feb. 1998) (ordered
published 25 March 1998)
Anderson was a forklift operator who did not own a farm but who "has
cows and grows corn." During a phone conversation with Harvest Store,
Anderson discussed the sale of 5,000 bushels of corn. Harvest Store sent
an "unsigned confirmation of contract in the mail" but Anderson sold the
corn to someone else at a better price. Harvest Store sued him for the
$5,000 it allegedly cost them to replace Anderson's corn with that
purchased at a higher price. Anderson defended on statute of frauds
grounds, but the court ruled this defense was unavailable because the
oral contract was "between merchants." Wis. Stat. § 402.201(1). In
the judge's words, "a farmer who sells grain is a merchant."
Judge Cane, writing for the court of appeals, reversed. The issue has
generated a great deal of discussion under the U.C.C. and conflicting
case law. The term "merchant" does not "attach to the casual or
inexperienced seller." The determination must be made on a case-by-case
basis. The record established Anderson's limited experience selling
crops. He had never seen a sale confirmation contract before his
encounter with Harvest Store. In sum, Anderson's "three prior
experiences, involving relatively small quantities of corn that he drove
to the scale and sold without any written contract, put him in the
category of the casual and inexperienced seller."
Contracts
Voidable Contracts Election of Rights
Gaugert v. Duve,
No. 97-0355 (filed 25 Feb. 1998) (ordered published 25 March 1998)
In 1988 the Gaugerts purchased some land from Duve. At that time Duve
signed a contract purportedly giving the Gaugerts a right to "first
refusal for extra land." In 1995 Duve discussed selling the remaining
land to another party. The Gaugerts demanded the right to exercise their
option. Some months later Duve mailed the Gaugerts a written offer
allowing them to exercise their option. After the Gaugerts exercised
their option, Duve claimed that the original 1988 "first refusal" option
was invalid and rescinded the proffered option. Following a bench trial,
the judge found that the Gaugerts had not defrauded Duve in 1988 but
that the 1988 option was void for lack of consideration and because no
meeting of the minds had occurred. The judge also ruled that no
"election of rights" had occurred in part because Duve did not actually
know that the contract was unenforceable when he gave the Gaugerts the
opportunity to exercise the option.
The court of appeals, in an opinion written by Judge Brown, reversed.
Election of rights is not limited to cases of fraud. "Election" is "a
choice, shown by an overt act, between two inconsistent rights, either
of which may be asserted at the will of the chooser alone." Nor should
election be confused with waiver, which requires a "voluntary and
intentional relinquishment of a known right." An election "is effective
even though there is no intent to relinquish the other, inconsistent
right." Under prevailing authority, "it would be inequitable to regard
an election of rights as final unless the party having the right of
election was aware, or should have been aware, of all material facts
making one option more desirable than the other."
The trial judge appropriately found "that Duve was unaware of his
option to avoid the contract when he sent the notice." The court of
appeals found, however, that Duve should have been aware of these two
options, especially since he had benefit of legal counsel throughout the
relevant time period. "Having elected to execute the contract, Duve can
no longer contend that the contract was void for lack of consideration
and mutuality."
Courts
Municipal Courts Power of Judge to Order Defendant to Appear
Personally Default Judgment for Nonappearance
City of Sun Prairie v.
Davis, No. 97-1651 (filed 26 Feb. 1998) (ordered published 25
March 1998)
The City of Sun Prairie charged the defendant in a civil forfeiture
action with violating its operating a motor vehicle while intoxicated
ordinance. The citation indicated that the appearance of the defendant
at an initial court appearance was mandatory, but he chose not to
appear. Instead, the firm of lawyers representing him sent a letter to
the court on the defendant's behalf, and the court entered not guilty
pleas on both charges.
Thereafter the court issued an order directing the defendant to be
present for trial. The defendant's attorney wrote back objecting to the
order requiring the defendant to be present and asserting that the court
had no authority to make such an order. Counsel stated that the
defendant would not comply with the order as he had chosen to have
counsel be present instead. The court then responded with a further
order indicating that, if the defendant did not appear personally at his
trial, the court would impose one or more sanctions that could include
entry of judgment against him.
When the defendant did not appear for trial, the court found that he
had intentionally and egregiously violated orders of the court which it
had issued to efficiently manage the case, and it granted judgment
against the defendant and in favor of the city, as a sanction for
disobedience of the court's orders.
The defendant appealed to the circuit court, which affirmed the order
of the municipal court. The court of appeals, in a majority decision
authored by Judge Roggensack, affirmed. The majority concluded that a
municipal judge has inherent authority to order a civil litigant to be
present at trial and that nothing in the statutes or in the Wisconsin
Constitution precludes sanctioning the violation of such a court order
by entering judgment against the violator. The court cautioned that a
sanction that terminates litigation on the merits should not be imposed
unless the violating party's conduct is egregious and without a clear
and justifiable excuse. The appellate court was satisfied that the
record in this case showed a reasonable basis for the municipal court's
determination that the defendant's conduct was egregious and was not
supported by any clear and justifiable excuse. The defendant was not
sanctioned because he chose to have counsel present at his trial but
rather because he flaunted two court orders directing him to personally
appear at the trial.
Judge Dykman filed a dissenting opinion.
Judge's Personal Notes Access by Litigants
State v. Panknin,
No. 97-1498-CR (filed 25 Feb. 1998) (ordered published 25 March
1998)
In this appeal the defendant continued his pursuit for access to
notes for his sentencing prepared by the trial court and sealed in the
court record. His argument was that the trial court should be compelled
to make the notes available so that he can determine if the court relied
upon inaccurate information or other improper factors in imposing his
sentence. In a decision authored by Judge Anderson, the court of appeals
affirmed the order of the circuit court denying the defendant access to
the judge's personal notes.
In sum, the court concluded that the notes of judges, whether cryptic
or formal, do not represent their final ruling or decision; that is only
represented in oral decisions rendered from the bench, memorandum
decisions, written orders or judgments, or opinions from the court of
appeals and the supreme court. "In many cases it takes a great deal of
work to reach a final ruling or decision: the back roads traveled, the
dead ends encountered should not be accessible to a litigant." It is
only the final reasoning process that judges are required to place on
the record that is representative of the performance of judicial duties.
Accordingly, access to a judge's notes by the litigants would
significantly disrupt the judicial decisional process.
In footnote the court commented that a judge's personal notes should
not be placed in the clerk of court's file. The better practice is to
maintain notes in chambers where their confidential nature can be
ensured.
Criminal Procedure
Prosecuting Attorneys Conflict of Interest
State v. Stehle,
No. 97-1160-CR (filed 4 Feb. 1998) (ordered published 25 March 1998)
The defendant was charged with several counts of burglary. He
maintained that the assistant district attorney's prosecution of the
case in which one count involved the burglary of the home of the ADA's
ex-wife and their adult daughter constituted a conflict of interest
requiring the assistant district attorney to withdraw from the case.
In a decision authored by Judge Anderson, the court of appeals
concluded that, because the assistant district attorney immediately
revealed the potential conflict of interest to both the defendant and
his attorneys and did so before the defendant entered his no contest
plea to the charges, once the defendant pled no contest he waived review
of any potential conflict of interest claim. A no contest plea,
voluntarily and understandingly made, constitutes a waiver of all
nonjurisdictional defects and defenses. A claim that a prosecutor should
be disqualified for a conflict of interest does not implicate a trial
court's jurisdiction and is waived by a plea of no contest.
Moreover, courts generally require a prima facie showing of prejudice
before invalidating prior proceedings based on a conflict of interest.
In this case the defendant made no showing that the purported conflict
in any way affected his criminal prosecution.
Due Process Outrageous Governmental Conduct
State v. Givens,
No. 97-1248-CR (filed 25 Feb. 1998) (ordered published 25 March
1998)
The defendant was charged with delivery of cocaine and heroin. The
charges stemmed from controlled drug buys arranged by the Wisconsin
Division of Narcotics Enforcement (DNE) with an informant, whose name
was Franklin. The defendant pleaded not guilty and the matter eventually
was tried to a jury.
At trial, Franklin testified to the drug buys she made from the
defendant. She explained that she herself was a heroin addict for about
20 years but was "clean" at the time of trial. Franklin admitted that
she used heroin while she was working undercover for the government in
violation of the written agreement she had entered into with the
government agents. However, she stated at trial that she never informed
the agents that she was using heroin. In fact, one of the agents
testified that he routinely asked Franklin if she was using heroin and
she answered no. Among the issues on appeal was the defendant's claim
that the state's use of Franklin as a witness constituted outrageous
conduct and violated his due process rights. The state countered that
the defendant waived any right to raise this defense on appeal because
he failed to raise it in the trial court.
The court of appeals, in a decision authored by Judge Anderson,
affirmed. The court agreed to consider the outrageous conduct issue
because the state did not controvert the fact that Franklin blatantly
violated her agreement with the government or the fact that once the
government became aware of her conduct at the preliminary hearing it
continued to use her at the trial.
The concept of outrageous governmental conduct originates from the
Due Process Clause of the Fifth Amendment. This defense requires an
assertion by the defendant that the state violated a specific
constitutional right and that the government's conduct was so enmeshed
in a criminal activity that prosecution of the defendant would be
repugnant to the American criminal justice system.
In this case the government was not enmeshed in or aware of
Franklin's heroin use. At trial, Franklin admitted that she was using
heroin and cocaine while working with the government in violation of her
agreement with government agents. However, she also testified that she
never informed the agents that she was using heroin nor did she ask them
for money to buy controlled substances. The court concluded that the
government's use of Franklin as a witness, even though she used heroin
in violation of her agreement with the government while making
purchases, did not alone amount to a violation of fundamental fairness
that shocks the universal sense of justice.
Further, in order for a defendant to successfully assert a claim of
outrageous governmental conduct, he or she must assert that a specific
constitutional right has been violated. In this case the defendant did
not identify a specific constitutional right, such as a Fifth Amendment
right against self-incrimination or a Sixth Amendment right to counsel.
The court concluded that there was no arguable merit to a claim that the
defendant's due process rights were violated by outrageous governmental
conduct.
Torts
Interference with Contracts
Burdensome and Expensive Performance
Mangum Radio Inc. v.
Brieske, No. 97-2754 (filed 19 Feb. 1998) (ordered published 25
March 1998)
When Mangum Radio attempted to purchase two radio stations in the
Tomah area, Brieske wrote a letter to the FCC complaining that Mangum
would not provide adequate sports and local news coverage for the area.
Brieske also allegedly was interested in purchasing the stations. The
FCC ultimately approved Mangum's purchase but it brought suit against
Brieske for intentionally interfering with its business relations with
the sellers. The trial judge dismissed the action.
The court of appeals, in an opinion written by Judge Eich, reversed.
The issue in this case was "whether a person whose alleged interference
with a contractual relationship results not in abandonment or
nonperformance of the contract but only in making the plaintiff's
performance of the contract more expensive or onerous may also be held
liable for his or her actions." Agreeing with Mangum that such claims
are cognizable, the court rested its holding on case law and the
Restatement (Second) of Torts section 766A. The pleadings, liberally
construed, adequately alleged that Mangum's operation of the stations
might have become more expensive because of Brieske's objections (for
example, an offer to broadcast high school basketball games). Issues of
fact for the trial court remained on whether Brieske's letter to the FCC
was a "legally protected right" or constituted intentional interference
with Mangum's economic relationship.
Worker's Compensation
Exclusivity Waiver
Brantner v. ABC
Manufacturing Co., No. 97-1523 (filed 24 Feb. 1998) (ordered
published 25 March 1998)
The plaintiff severely injured her hand at work when it became
entangled in a packaging machine. Initially she sued the machine's
manufacturer but later sought to include her employer and coemployees
after the plaintiff learned that fellow workers may have removed
guarding from the machine. The trial judge granted summary judgment
dismissing the employer, the coemployees, and the employer's general
liability insurer.
The court of appeals, in an opinion written by Judge Cane, affirmed.
The sole issue concerned whether the employer had waived the worker's
compensation exclusivity provision. Examining the pertinent cases, the
court held that it had not. Without question the plaintiff's injury fell
under the worker's compensation act and therefore its exclusivity
protection. The employer had not waived exclusivity protection by terms
of its insurance coverage. The insurance policy endorsement in question
"was intended to broaden the definition of an insured to include an
employee in situations where the worker's compensation law should not
apply." The policy continued to exclude coverage for injuries covered by
the worker's compensation law. The court's reasoning applied not only to
the claims against the employer, but those against the coemployees as
well.
This column summarizes all decisions
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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