Court of Appeals Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Note: Each case summarized in the Court of Appeals Digest includes its new public domain citation.

| Attorneys | Civil Procedure | Criminal Procedure | Insurance | Prisoner Litigation | Probate | Torts | Trials |

Attorneys

Pro Hac Vice Admission - Revocation

Obey v. Halloin, 2000 WI App 99 (filed 18 April 2000) (ordered published 31 May 2000)

Attorney Ball was admitted pro hac vice to represent several clients in pending cases. A separate and earlier appeal had already upheld the revocation of Ball's pro hac vice admission - in that case. Based on Ball's misconduct in that other matter, the circuit court revoked his pro hac vice admission in this case as well.

The court of appeals, in an opinion written by Judge Hoover, affirmed the revocation. SCR 10.03(4) (1998) gives circuit courts the discretion to revoke pro hac vice admissions "for conduct in any Wisconsin court that manifests incompetency or an unwillingness to abide by the rules of professional conduct or the decorum of the court" (¶ 2). Ball unsuccessfully argued to the effect that revocation had to be predicated upon misconduct before the revoking court. The court sharply distinguished Ball's privilege to practice on a pro hac vice admission from that enjoyed by attorneys licensed in Wisconsin. Under SCR 10.03(4) a court can withdraw pro hac vice admission "for conduct that may fall short of that necessary for disciplinary action" (¶ 11). On the record before it, the court of appeals found no abuse of discretion.

Civil Procedure

Mandatory Arbitration - Injunctions - Federal Remedies - Insurance

Appleton Papers Inc. v. The Home Indemnity Co., 2000 WI App 104 (filed 4 April 2000) (ordered published 31 May 2000)

The defendant insurer, the Home Indemnity Co. (Home), appealed an order enjoining it from pursuing both its federal district court action to compel arbitration under the Federal Arbitration Act (FAA) and the arbitration proceedings it had initiated against the plaintiff. The dispute related to various deductibles and retrospective premium agreements, all of which contained mandatory arbitration clauses. The circuit court enjoined the defendant (Home) from pursuing remedies under the FAA and, according to the court of appeals, "implicitly relied on the McCarran-Ferguson Act's grant of supremacy to state laws regulating the business of insurance to 'reverse preempt' the FAA" (¶ 1).

The court of appeals, in an opinion written by Judge Hoover, reversed. In summary, the court held that the injunction was improper because "the circuit court may not enjoin Home from presenting to a federal court a question concerning the application of a federal remedy. Wisconsin courts have no power to limit, modify, or control the power of federal courts by enjoining a litigant from pursuing an in personam action seeking remedies in that court"
(¶ 3). The court further observed that "[b]ecause of the potential application of McCarran-Ferguson to this case, the federal court will necessarily determine the application of Wisconsin laws regulating the business of insurance to the arbitration clause. We therefore determine the validity of the arbitration clauses under Wisconsin law. We reject Home's various contentions that the deductible and retrospective premium agreements are not governed by the insurance laws of this state. We conclude that Wis. Stat. § 631.85 applies to the agreements and invalidates the arbitration clauses" (¶ 4).

Criminal Procedure

Weapons - Return to Owner

State v. Perez, 2000 WI App 115 (filed 26 April 2000) (ordered published 31 May 2000)

Perez was convicted of carrying a concealed weapon. He had driven his van into a ditch. When officers arrived, they observed several firearms in the van. After his conviction, the trial court granted his motion seeking the guns' return. The circuit court ordered them returned to Perez.

The court of appeals, in an opinion written by Judge Brown, affirmed. Section 968.20(1m)(b) bars the return of dangerous weapons to a person "who committed a crime involving the use" of the weapon. The court held that "the mere fact that the firearm is with a person is not enough" to preclude the weapon's return (¶ 6). The opinion clarifies "the firearm's involvement need not be active," as where a robber displays a gun without putting it into "action or service" (¶ 7). In this case Perez had done nothing of the sort. Had the legislature seen fit, it could have barred the return of guns to those who "use or possess" them.

Judge Nettesheim dissented on the ground that the legislature intended to apply section 968.20(1m)(b) to persons convicted of carrying concealed weapons.

Probation Revocation - Administrative Appeal - Right to Counsel

State ex rel. Mentek v. Schwarz, 2000 WI App 96 (filed 19 April 2000) (ordered published 31 May 2000)

Following formal revocation proceedings, the defendant's probation was revoked. He sought certiorari review of the revocation, but his petition for the writ was dismissed because he failed to exhaust his administrative appeal remedies prior to filing the circuit court petition. In his appeal to the court of appeals, he claimed that he was denied effective assistance of counsel when his attorney decided not to seek an administrative appeal of his probation revocation despite his request to do so.

In a majority decision authored by Judge Snyder, the court of appeals concluded that the petitioner's ineffective assistance of counsel claim must fail because neither state nor federal constitutional law recognizes a right to effective assistance of counsel on an appeal of a probation revocation. Constitutional due process recognizes only a conditional guarantee of appointed counsel during probation revocation hearings, determined on a case-by-case basis. On administrative appeal, a probationer may be assisted by counsel, but there is no due process right or conditional right to appointed counsel or effective assistance of counsel. Appointed counsel for the probation revocation stage does not have a constitutional duty to ensure that the probationer's administrative appeal is filed on time and in proper form. This obligation falls to the probationer.

In this case the petitioner did not file a timely administrative appeal, no appeal was recorded, and thus his administrative remedies were not exhausted pursuant to Wis. Stat. section 801.02(7). As such, the circuit court's dismissal of his petition for certiorari review was appropriate.

Judge Brown dissented.

Criminal Complaints - Attached Documents - Reliability of Hearsay Sources

State v. Smaxwell, 2000 WI App 112 (filed 26 April 2000) (ordered published 31 May 2000)

The defendant was charged with a criminal violation of the OWI statute. The facts supporting that charge were not specifically contained in writing within the four corners of the criminal complaint. Rather, an investigator for the district attorney's office, who was not the arresting officer, swore under oath to the truthfulness and reliability of an unsworn police incident report prepared by the arresting officer. The unsworn incident report was attached to the criminal complaint. The circuit court dismissed the complaint because it did not use the legal term "incorporated by reference" to meld the incident report into the complaint.

In a decision authored by Judge Brown, the court of appeals reversed. It found that the trial court's decision put form over substance. The criminal complaint used the term "attached" to refer to the police report, and this is basically the same thing as saying that the incident report was "incorporated by reference." To incorporate a document into a criminal complaint, some statement in the body of the complaint must indicate that another document is intended to be included in the complaint. That was done here.

The defendant also argued that an investigating officer who has no eyewitness knowledge of an incident cannot swear to the truthfulness and reliability of an unsworn incident report prepared by the arresting officer. The court of appeals held that an investigator who is not an eyewitness can swear to the reliability and truthfulness of the arresting officer's incident report where that report is reliable.

A number of factors in this case indicate that the arresting officer, whose incident report was relied upon, had personal and observational reliability. The officer observed and participated in the facts set forth in the police report and, as the courts have previously held, information based on the personal observations of police officers made while acting in their official capacity is considered trustworthy. Further, the arresting officer had personal and observational reliability because, even though he did not swear to the truthfulness of the incident report under oath, falsifying that report would have subjected him to felony prosecution for misconduct in public office.

Finally, the arresting officer was reliable because the investigator who swore to the complaint swore that he had an opportunity to review the unsworn incident report and that such documents were kept in the normal and ordinary course of police business. The investigator also swore that he believed the document to be truthful and reliable and that incident reports prepared by the arresting officer had proven on numerous occasions in the past to be accurate and reliable. In short, said the court, the investigating officer was able to swear to the reliability of the arresting officer's incident report because the arresting officer was a reliable eyewitness.

Preliminary Hearings - State's Appeal Following Dismissal

State v. Wilson, 2000 WI App 114 (filed 19 April 2000) (ordered published 31 May 2000)

The circuit court refused to bind the defendant over for trial following a preliminary examination in his felony case. The state appealed and the defendant moved to dismiss the appeal, arguing that under Wis. Stat. section 974.05(1)(a), the state may not appeal as of right from a dismissal at the preliminary examination but instead must seek discretionary review before the court of appeals pursuant to Wis. Stat. section (Rule) 809.50.

In a per curiam decision the court of appeals concluded that the circuit court's order dismissing the case was a final order. Accordingly, it was appealable by the state as a matter of right pursuant to section 974.05(1)(a).

Insurance

Motorcycles - Exclusions - Sponsorship Statute

Beerbohm v. State Farm, 2000 WI App 105 (filed 20 April 2000) (ordered published 31 May 2000)

The court of appeals, in an opinion written by Judge Dykman, affirmed the trial court's grant of summary judgment to an insurer. The trial court ruled that a policy excluding coverage for motorcycles did not violate sections 632.32 and 344.33 of the Wisconsin Statutes, that the insurer did not acquire liability as the insurer of the teenage driver's father under the Wisconsin sponsorship statute, and that the insurer was not liable under the policy's "newly-acquired vehicle clause."

First, the policy unambiguously excluded coverage for liability arising out of the use of a motorcycle. Nor did the exclusion contravene section 632.32(6), which does not list "motorcycles" as a prohibited subject of exclusion. The court also rejected a series of intricate arguments to the effect that the motorcycle exclusion violated section 344.33, the financial responsibility law. In essence, the plaintiff argued that "an automobile policy must comply with Wis. Stat. § 344.33 even when the insured is not otherwise subject to the financial responsibility laws" (¶ 14).

Second, the court agreed that the teenager's father remained liable under the sponsorship statute, but it disagreed that the insurer "must extend coverage for injuries caused by the use of a motorcycle, when such coverage is contrary to the clear language of its policy" (¶ 22). Prior case law did not support this contention.

Prisoner Litigation

Writ of Certiorari - Time Limitations for Commencing Certiorari Actions

State ex rel. Collins v. Cooke, 2000 WI App 101 (filed 5 April 2000) (ordered published 31 May 2000)

The inmate filed a pro se certiorari action requesting relief from decisions of the disciplinary committee and program review committee at the correctional institution in which he was confined. The circuit court dismissed his certiorari petition because he failed to commence the certiorari action within 45 days of the government's decision as to which review was sought.

On appeal the inmate contended that the circuit court wrongly interpreted Wis. Stat. section 893.735, which establishes the 45-day time limitation, arguing that it only applies to certiorari actions made "on behalf of a prisoner," not by the prisoner himself or herself.

In a decision authored by Judge Snyder, the court of appeals concluded that any petition for writ of certiorari under section 893.735 must be made within 45 days of the government's decision, regardless of whether the petition is filed by the prisoner or by his or her counsel.

Probate

Wisconsin Basic Will - Failure to Sign Next to Gifted Property

Caflisch v. Staum, 2000 WI App 113 (filed 25 April 2000) (ordered published 31 May 2000)

The deceased died in 1998. She had provided for the disposition of her property with the use of a standard Wisconsin basic will. See Wis. Stat. § 853.55. The will was signed in 1991.

The will lists four godchildren in its "disposition of property" section. Next to each recipient's name are two boxes, one for describing the property gifted and the other for the signature of the testator. The form instructs the testator to affix his or her signature next to each gift and warns that, if there is no signature next to any box, no gift is made.

In this particular case there was no signature next to the gift for one of the recipients. Nevertheless, the probate court concluded that the testator had substantially complied with the instructions and found the gift to that recipient valid.

In a decision authored by Judge Peterson, the court of appeals reversed. The controlling statute requires the testator to sign in the appropriate box to make a valid gift and, in this case, that was not done.

The legislature amended the basic will statute in 1997. Section 853.51(1)(a) (1997-98) only requires the testator to complete the blanks, boxes, and lines "substantially in accordance with the instructions." However, this language only applies "to deaths occurring after January 1, 1999, except with respect to irrevocable governing instruments executed before that date." In this case the deceased died in 1998 and the substantial compliance amendment was inapplicable. Further, the court concluded that the will in question was not an irrevocable governing instrument.

Torts

Recreational Immunity Statute - Condominium Associations

Bethke v. Lauderdale of La Crosse Inc., 2000 WI App 107 (filed 13 April 2000) (ordered published 31 May 2000)

The plaintiff purchased a waterfront condominium and bought a boat slip on the condominium association's dock. He was injured while attempting to access his boat and sued the condominium association alleging, that his injuries were caused by its negligence. The association is responsible for operating and maintaining the common areas of the complex and each condominium owner is a member of it.

The association moved for summary judgment, claiming that the plaintiff's suit was barred by Wis. Stat. section 895.52, Wisconsin's recreational immunity statute. The association contended that, as a nonprofit organization, it was immune from liability for the plaintiff's injuries. The circuit court agreed.

In a decision authored by Judge Deininger, the court of appeals affirmed. It concluded that the association was immune from liability under section 895.52 as a nonprofit organization. It further held that the application of the statute to the present facts did not violate the plaintiff's right to equal protection of the laws.

Statute of Limitations - Medical Malpractice

Anderson v. Sauk Prairie Mem. Hosp., 2000 WI App 108 (27 April 2000) (ordered published 31 May 2000)

The plaintiff appealed the dismissal of her medical malpractice claim against the Wisconsin Patients Compensation Fund (the Fund). The court of appeals, in an opinion written by Judge Deininger, reversed.

The Fund argued that the plaintiff had not served it in a timely manner and that the claim was barred by the statute of limitations. After carefully reviewing the case law on this issue, the court concluded that three principal cases "dispose of the question presently before us. The statutory limitation period set forth in Wis. Stat. § 893.55(1) applies only to the commencement of an action against the health care providers and does not apply to the naming of the Fund as a defendant. Although a medical malpractice plaintiff is required to name the Fund as a party to the action, see Wis. Stat. § 655.27(5), the plaintiff may do so after the time period prescribed in Wis. Stat. § 893.55(1) has passed. So long as the health care providers were sued before the statute of limitations had run, and so long as the Fund is named in time for it to participate in and defend against the lawsuit, the plaintiff's suit against the Fund must be allowed to proceed" (¶ 12). Finally, the court ruled that the plaintiff's later service of process was timely and effective despite a "failed" earlier attempt.

Medical Malpractice - Vicarious Liability

Lewis v. Physicians Ins. Co., 2000 WI App 95 (filed 25 April 2000) (ordered published 31 May 2000)

The trial record demonstrated without dispute that a laparotomy pad was left inside of the plaintiff during gall bladder surgery. A second surgery was needed to remove the pad. Two nurses, employed by the hospital, had the duty to check for the pads. Neither nurse was employed by the surgeon. The issue on appeal was "whether a surgeon, as the 'captain' of the operating room, is vicariously liable for the negligence of operating room personnel not selected by the surgeon, where the surgeon is not negligent."

The court of appeals, in an opinion written by Judge Fine, answered "no" and reversed the circuit court. This was not a case in which either the surgeon or someone else was negligent; the plaintiff admitted that the surgeon was not negligent. Rather, the plaintiff relied on a flawed "captain of the ship" rationale. No Wisconsin appellate court had ever imposed liability in a medical malpractice case on this basis, and it found only weak support in the case law of other states.

Negligence Per Se - OSHA Violations

Taft v. Derricks, 2000 WI App 103 (filed 4 April 2000) (ordered published 31 May 2000)

The defense appealed a judgment based on a jury verdict that found him 55 percent at fault for injuries sustained when the plaintiff was injured while working on his farm. The court of appeals, in an opinion written by Judge Hoover, reversed in part and affirmed in part.

The pivotal issue concerned whether the judge erred "by instructing the jury to find [the defendant] negligent if he violated the general duty clause of the Occupational, Safety, and Health Act (OSHA)." The court held that this instruction was erroneous. Negligence per se requires a determination that the legislature intended a statutory infraction to form the basis of civil liability. The "substantial weight of federal and state authority" holds that OSHA violations are not negligence per se.

In this case the erroneous instruction centered on OSHA's "general duty clause." This could not support a negligence per se theory because "29 U.S.C. § 653(b)(4) expressly prohibits using OSHA to enlarge or affect in any manner the common law duties and obligations of employers" (¶ 20). The court was further influenced by the defendant's status as a "small farmer."

Trials

Jury Selection - Erroneous Exercise of Peremptory Challenge

State v. Nantelle, 2000 WI App 110 (filed 11 April 2000) (ordered published 31 May 2000)

The sole issue in this case was whether the circuit court erred by failing to permit the defendant to correct his counsel's mistaken exercise of a peremptory challenge after the jury was accepted but before it was sworn. In a decision authored by Judge Hoover, the court of appeals concluded that, as a matter of law, no peremptory strikes may be exercised after both parties have accepted the jury they have chosen, even though the jury is not yet sworn.

The court also concluded that, even if the circuit court had the discretion to replace the mistakenly struck juror, it would nevertheless affirm the circuit judge's decision denying the substitution. Many reasons were articulated for this conclusion. The court noted that the substitution of jurors after the parties accepted the jury would have disrupted the jury selection process, would have revealed to the jury which party wanted a particular juror, and may have upset the strategy that attends the alternating exercise of peremptory strikes as occurred in this case. Finally, although there is no dispute that this was an honest mistake by defense counsel, the court noted that allowing a party to change a peremptory strike after the jury is chosen could encourage a dishonest mistake by an unscrupulous attorney.

Finally, the court concluded that even if the circuit judge committed error by declining the defense request to substitute jurors, the error was harmless. This case is not governed by State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), because the defendant was not required to exercise a peremptory strike to rectify a trial court error and there is no reasonable possibility that the presence on the jury of the juror defense counsel intended to strike contributed to the conviction.

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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