|
Recent Decisions
This column summarizes selected published
opinions of the Wisconsin Court of Appeals. Full-text
decisions are available on WisBar's legal resources page.
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.
|
Civil Procedure
Burden of Proof - "Five-sixths Rule"
Nommensen v. American
Continental Ins. Co., 2000 WI App 230 (filed 27 Sept. 2000)
(ordered published 18 Oct. 2000)
In this medical malpractice action, a jury found that the defendant
hospital was negligent but that the negligence was not a cause of the
damages. The court of appeals, in a decision written by Judge
Nettesheim, affirmed. The appeal raised three issues.
First, plaintiff argued that Wis JI-Civil 200, the burden of proof
instruction, misstated the law. The instruction reads that jurors must
be satisfied "to a reasonable certainty by the greater weight of the
credible evidence that 'yes' should be the answer" (¶13). In sum,
the plaintiff contended that the word "probability" should replace
"certainty" because the latter connotes a subjectively higher standard.
The court rejected the argument because Wis JI-Civil 200 reflects
"standing law as announced by the supreme court," which the court of
appeals is powerless to change.
Second, plaintiff argued that the verdict failed to satisfy the
five-sixths rule, Wis. Stat. section 805.09(2), because two jurors who
dissented from the negligence finding against defendant hospital were
not the same two who dissented from the "no causation" finding. Case law
does not require, however, that the same 10 jurors must agree on every
question; "[r]ather, the rule requires that the same ten jurors must
agree on all questions necessary to support a judgment on a particular
claim" (¶18). In this case the jury's finding of no causation,
"standing alone," resolved the entire claim.
Finally, the court rejected the contention that a nurse's testimony
went beyond the issues drawn by the pleadings and the pretrial orders.
The discussion is fact-intensive and raises no novel issues of law.
Judge Brown concurred and wrote separately to urge the supreme court
to consider the "reasonable certainty" standard of proof.
Contracts
Promissory Estoppel - Subcontractors
Seater Construction Co. v.
Rawson Plumbing Inc., 2000 WI App 232 (filed 27 Sept. 2000)
(ordered published 18 Oct. 2000)
A general contractor brought an action against a plumbing
subcontractor on a claim of promissory estoppel. The general contractor
had won a bid on a construction project relying on the subcontractor's
bid for the plumbing work. The subcontractor, however, refused to honor
its bid. The trial court ruled in favor of the general contractor.
The court of appeals, in a decision written by Judge Snyder,
affirmed. There are three elements to promissory estoppel. The first two
are issues of fact that are entrusted to the trier of fact's discretion.
First, "was the promise one which the promisor should reasonably expect
to induce action or forbearance of a definite and substantial character
on the part of the promisee?" Second, "did the promise induce such
action or forbearance?" (¶20) The record adequately supported both
affirmative findings by the trial court.
The third issue is a policy question for the court: "Can injustice be
avoided only by enforcement of the promise?" Relying on a 1992 decision,
the court held that justice demanded that the promise be enforced and
the general contractor compensated for $45,000 in damages caused by
subcontractor's nonfeasance: "the subcontractor's bid induced the
general contractor to submit a bid and accept an offer for a
construction project" (¶33).
Criminal Procedure
Probation With County Jail Condition - Good Time - Authority
of Department of Corrections Over Confinement Condition of
Probation
State v. Fearing,
2000 WI App 229 (filed 21 Sept. 2000) (ordered published 18 Oct.
2000)
The defendant was convicted on a plea of no contest of delivery of a
controlled substance. The court withheld sentence and placed him on
probation for a period not to exceed 30 months with several conditions.
One of those conditions was that he serve six months in the county jail
with work release privileges but without good time. The court then
stayed three months of that six-month period of confinement and stated
that the three months stayed "could be imposed at the discretion of [the
defendant's probation] agent, if he or she deems it appropriate"
(¶1).
The defendant appealed, arguing that the trial court did not have the
statutory authority to order the term of jail confinement to be served
without good time. He also argued that the court did not have the
authority to authorize the probation agent to impose the stayed
three-month jail time at his or her discretion.
In a decision authored by Judge Vergeront, the court of appeals
affirmed in part and reversed in part. It concluded that the defendant
"was not entitled to good time during the term of jail confinement
imposed as a condition of probation and, therefore, the judge did not
err in directing that he receive no good time" (¶2). This
conclusion was premised on governing statutes and on the case of Prue v.
State, 63 Wis. 2d 109, 216 N.W.2d 43 (1974). (In footnote the appellate
court noted language from Prue that a circuit court has authority to
order good time when it imposes confinement in jail as a condition of
probation. This, of course, was not done in this case.)
Finally, the court agreed with the defendant that the judge did not
have the statutory authority to delegate to the probation agent the
discretion to impose the three months of jail time that the court had
stayed.
Forfeiture of Vehicle Used to Commit Felony - Proportionality
Test to Determine Whether Forfeiture Violates Excessive Fines
Clause
State v. Boyd,
2000 WI App 208 (filed 23 Aug. 2000) (ordered published 29 Sept.
2000)
The defendant was convicted of felony endangering safety by use of a
dangerous weapon contrary to Wis. Stat. Section 941.20(2)(a). This
conviction arose from events that occurred at the Elkhart Lake Police
Department. The defendant, angry with the police department because he
had been arrested for OWI three days before, twice drove around the
police station's block, stopped his truck in front of the station, got
out and fired a .22 caliber handgun at the station's door. He then drove
away.
After the defendant was convicted, the state commenced an action
seeking forfeiture of the defendant's truck pursuant to Wis. Stat.
Section 973.075(1)(b)1m because the defendant had used it to commit a
felony. After hearing the evidence in the forfeiture action, the circuit
court ruled that the truck, valued at $28,000, should be sold and the
first $10,000 from the proceeds should be paid to the Elkhart Lake
Police Department. The court reasoned that, if the entire $28,000 value
of the vehicle were forfeited, the forfeiture would violate the U.S.
Constitution's prohibition of excessive fines. The state appealed and
the court of appeals, in a decision authored by Judge Anderson, affirmed
the circuit court.
To determine the excessiveness vel non of a forfeiture, the U.S.
Supreme Court has adopted a standard commonly referred to as "the
proportionality test." See United States v. Bajakajian, 524 U.S. 314
(1998). In that case the court held that "the touchstone of the
constitutional inquiry under the Excessive Fines Clause is the principle
of proportionality: The amount of the forfeiture must bear some
relationship to the gravity of the offense it is designed to punish ...
. A punitive forfeiture violates the Excessive Fines Clause if it is
grossly disproportionate to the gravity of the defendant's offense"
(¶11). In the simplest terms, the Supreme Court applied the
proportionality test by considering the following factors: the nature of
the offense, the purpose for enacting the statute, the fine commonly
imposed upon similarly situated offenders, and the harm resulting from
the defendant's conduct.
Applying these factors to the present case, the appellate court began
by noting the seriousness of the defendant's conduct and its potential
for severe injuries that could have resulted from it. Nevertheless, the
court was troubled by the disparity between the forfeiture amount of
$28,000 sought by the state and the maximum fine for the crime in
question, which is $10,000. Although acknowledging the seriousness of
the defendant's conduct, the court concluded that imposing the full
forfeiture would be an excessive fine. The harm that the defendant
actually caused was minimal and will be sufficiently satisfied from the
reduced forfeiture amount ordered by the court ($10,000). The court
further observed that the purpose of the forfeiture statute - to deter
offenders from using their vehicles to commit a felony - will not be
significantly impacted as the situation in this case is not likely to
recur.
Auto Stops - Reasonable Suspicion of Criminal
Behavior
State v. Fields,
2000 WI App 218 (filed 6 Sept. 2000) (ordered published 18 Oct.
2000)
Just before midnight, a police officer was patrolling a rural area in
Outagamie County in a marked squad car. He was driving southbound on Van
Boxtel Road approaching the intersection with Ranch Road. Van Boxtel has
stop signs at the intersection for both northbound and southbound
traffic. Ranch Road has no stop signs.
When the officer was 50-70 yards from the intersection, he noticed a
northbound vehicle stopped at the stop sign on Van Boxtel. There was no
other traffic. After the officer stopped at the stop sign for southbound
traffic, the northbound vehicle, which was driven by the defendant,
remained stopped for 5-10 seconds. It then pulled away from the stop
sign and the officer stopped it. The defendant's operating privilege was
revoked. He pled guilty to operating after revocation (second offense)
following denial of his motion to suppress on the grounds of an unlawful
stop of his vehicle.
At the suppression hearing the officer testified about his reasons
for stopping the vehicle. He explained that he had been a police officer
for three years and that a vehicle usually stops under these
circumstances for several seconds less. He thought the length of the
defendant's stop at the stop sign was unusual and that the driver might
be a drunk driver or someone whose license is revoked or suspended.
Further, late at night, vehicles regularly try to evade squad cars by
traveling in opposite directions, pulling into driveways, or making
other maneuvers to get out of sight.
In a decision authored by Judge Peterson, the court of appeals
reversed. It concluded that the officer lacked reasonable suspicion to
stop the defendant's vehicle. To execute a valid investigatory stop
consistent with the Fourth Amendment prohibition against unreasonable
searches and seizures, a police officer must reasonably suspect, in
light of his or her experience, that some kind of illegal activity has
taken or is taking place. An inchoate and unparticularized suspicion or
hunch will not suffice.
The primary emphasis in the officer's testimony seemed to be a
suspicion that the defendant was going to try to evade him. While flight
from police is a strong indication of a guilty mind or a guilty purpose,
and thus a justification to conduct a temporary investigative stop, the
defendant in this case did not flee or evade. The officer only thought
that the longer-than-normal stop might be a prelude to evasion. Further,
the minimal number of seconds by which the defendant's stop exceeded a
normal stop is too scant a basis for inferring a guilty mind.
The officer also posited that the facts might suggest a drunk driver
or someone whose license was revoked or suspended. While there is no
doubt that the officer had a hunch that something amiss was going on, an
investigative stop cannot be based on such an inchoate and
unparticularized suspicion or hunch.
In sum, based on the totality of the circumstances, the appellate
court could not conclude that the defendant's slightly
longer-than-normal stop at the stop sign, at that time and in that
location, gave rise to the level of "specific and articulable facts"
necessary to justify reasonable suspicion that the defendant had
committed or was committing an unlawful act.
Extensions of Mandatory Release for Filing Certain Actions -
Wis. Stat. Section 807.15
State ex rel. Garel v.
Morgan, 2000 WI App 223 (filed 6 Sept. 2000) (ordered published
18 Oct. 2000)
The circuit court ordered the Department of Corrections to extend the
defendant's mandatory release date by 180 days as a sanction for
providing false information to the court. This order was entered
pursuant to Wis. Stat. section 807.15(2)(c), which authorizes an
extension of a prisoner's mandatory release date in any action or
special proceeding brought by a prisoner if the court finds that any of
the following apply: 1) the action or special proceeding was filed for a
malicious purpose; 2) the action or special proceeding was filed solely
to harass the party against which it was filed; and 3) the prisoner
testifies falsely or otherwise knowingly offers false evidence or
provides false information to the court. The statute specifically
provides that "this section applies to prisoners who committed an
offense on or after Sept. 1, 1998." (Emphasis supplied.)
The critical issue in this case is whether the "offense" that must be
committed on or after Sept. 1, 1998, in order for section 807.15 to
apply, refers to the underlying offense for which the prisoner is
incarcerated or to his or her "litigation abuse" offense. In a decision
authored by Judge Snyder, the court concluded that the plain and
unambiguous language of the statute clearly indicates that it was
intended to apply only to those prisoners who committed a crime on or
after Sept. 1, 1998. In this case the defendant is in prison as a result
of probation and parole revocations from a 1995 or earlier conviction.
His underlying crime clearly predates Sept. 1, 1998 and thus the circuit
court did not have the authority to extend his mandatory release date
pursuant to section 807.15.
Family Law
Modification of Physical Placement of Children - Two-year
"Truce"
Trost v. Trost,
2000 WI App 222 (filed 2 Aug. 2000) (ordered published 18 Oct. 2000)
Keith and Lori Trost were divorced by stipulated agreement in July,
1997. Under that agreement, Lori had primary physical placement of the
couple's daughter. Keith had physical placement "at reasonable and
liberal times" including, at a minimum, Monday through Friday after day
care until 5:15 p.m. and alternating weekends. The plan did not work out
and the parties had disagreements over the child's placement.
Dissatisfied with the amount of time he was seeing his daughter, Keith
sought to have the placement agreement enforced. The circuit court,
after recognizing that the existing schedule was "absolutely
meaningless" because it gave Keith placement during the day while the
child was in school, set a new placement schedule by which Keith had
physical placement on newly specified days.
In a decision authored by Judge Brown, the court of appeals reversed
that part of the trial court's order that set a new placement schedule.
The question before the court was not whether the circuit judge properly
exercised discretion in modifying the placement order, but whether the
court had authority to modify the placement order within two years of
the initial placement order.
Absent an allegation and a showing that current custodial conditions
are physically or emotionally harmful to the child's best interest, a
trial court does not have authority to change placement within two years
of the initial placement order. In this case, the trial court operated
under the mistaken view that the two-year prohibition on modification of
placement orders applied only to modification of primary placement, not
physical placement, the modern term for what was formerly known as
visitation. But, said the court of appeals, the two-year prohibition on
modification applies to any order of physical placement if the
modification would substantially alter the time a parent may spend with
his or her child. Absent a showing that the current arrangement is
harmful to the child or a showing that the modification is not a
substantial alteration in the time spent between parent and child, the
court has no authority to intervene during the two-year "truce"
period.
In sum, once the trial court determined that there was nothing
harmful to the child in the original order and further determined a
change that would be substantial, it had no authority to modify the
placement order.
Placement - Conditions
State v. Alice H.,
2000 WI App 228 (filed 28 Sept. 2000) (ordered published 18 Oct.
2000)
Alice H. appealed an order granting sole legal custody and primary
physical placement of her daughter to the girl's father. The order also
denied Alice physical placement and imposed specified conditions before
she could regain any placement rights, such as requiring Alice to
receive treatment from one of two named therapists.
The court of appeals, in a decision written by Judge Vergeront,
affirmed in part and reversed in part. First, the court held that
sufficient evidence supported Alice's denial of physical placement.
Second, the court addressed the conditions and found that they violated
Alice's rights in several respects. Case law and statutes establish that
"once a court has properly denied physical placement to a parent because
it would endanger the child's physical, emotional or mental health, the
conditions it imposes for regaining placement, if those conditions are
properly imposed, are not a further restriction on the parent's rights,
but rather a means to enable the parent to regain placement and thus
preserve their parental rights" (¶30). Moreover, "when a court
denies a parent physical placement in an action affecting the family, it
has the statutory authority to impose conditions for regaining
placement, and these conditions may include mental health treatment,
anger management, individual or family counseling, and parenting
training." But any conditions "imposed must be necessary to protect the
child from the danger of physical, emotional or mental harm if the child
is placed with the parent."
Finally, "the court may not prospectively prohibit a parent from
seeking a revision to any provision in such an order" (¶33).
Applying these principles to the record, the court of appeals held that
various conditions failed the test. For example, it was not necessary
that Alice receive services by one of two named therapists.
Insurance
Proof of Loss - Date - Statute of Limitations
Rasmussen v. Blue
Cross/Blue Shield, 2000 WI App 220 (filed 26 Sept. 2000)
(ordered published 18 Oct. 2000)
The plaintiff owned a supplemental health insurance policy. He was
placed in a nursing home between January and October 1995 and incurred
personal expense after his Medicare benefits expired. It was undisputed
that he submitted a proof of loss to his insurer within the 90-day
period required by the policy. The insurer denied the request. On June
30, 1999, the plaintiff brought this action against the insurer for
breach of contract. The circuit court ruled that the plaintiff had three
years plus 90 days to file suit and that the statute of limitations,
Wis. Stat. section 631.83(1)(b), had run nearly one year earlier.
The court of appeals, in a decision written by Judge Peterson,
affirmed. The sole issue concerned what date proof of loss had to be
furnished. The plaintiff alleged that the policy permitted proof of loss
to be filed as late as 15 months from the provision of medical services;
thus, he had three years plus 15 months within which to bring this
action. Examining the policy, the court held that the policyholder must
provide proof of loss within 90 days. The 15-month period only applies
where it is not reasonably possible for the insured to provide the
notice within the 90-day period (¶7). "Simply put," the 15-month
escape clause did not apply to the plaintiff.
Judge Cane dissented.
Motor Vehicle Law
Felony OWI - Preliminary Hearing
State v. Lindholm,
2000 WI App 225 (filed 28 Sept. 2000) (ordered published 18 Oct.
2000)
The defendant was charged with OWI. The state alleged that he had two
prior OWI convictions and that a passenger younger than 16 was in his
car when he was stopped. This combination made the offense a felony
under Wis. Stat. section 346.65(2)(f). The circuit court dismissed the
charge following a preliminary hearing because the state submitted only
a certified abstract of the Department of Transportation driving record
for the defendant as proof of his prior convictions.
The court of appeals, in a decision authored by Judge Roggensack,
reversed. It concluded that, in a preliminary hearing, such an abstract,
as a matter of law, satisfies probable cause to believe that a
defendant, who is charged with felony OWI because he had a child under
age 16 in the vehicle, had sufficient prior OWI convictions to be bound
over for trial. While the priors are not elements of the crime, probable
cause for the number of prior OWI convictions had to be established at
the preliminary hearing because it changed the status of the offense to
that of a felony. The certified copy of the defendant's DOT driving
record was sufficient to establish this probable cause.
Municipal Law
Condemnation - Sewers Interceptors
Danielson v. Sun
Prairie, 2000 WI App 227 (filed 28 Sept. 2000) (ordered
published 18 Oct. 2000)
The city of Sun Prairie (the city) condemned for an easement to place
a "sewer interceptor" for the city's sewer system on Danielson's land,
which was located in the town of Burke (the town). Danielson and the
town brought an action in circuit court alleging that the city had to
gain the town's prior approval before the condemnation for or the
construction of the interceptor. The trial judge ruled that the city was
not required to secure the town's prior approval nor was it required to
make a relocation order as the first step in a condemnation.
The court of appeals, in a decision written by Judge Roggensack,
affirmed. Central to the issue was Wis. Stat. section 60.52, which
requires town approval when a city constructs or maintains sewer or
water "extensions." The court held that the statutory phrase,
"extensions of [a city's] sewer or water system in the town," applied
only to extensions "which can provide service to residents of the town"
(¶13). The sewer interceptor at issue in this case provided no such
"service."
The court next addressed the contention that the city violated Wis.
Stat. section 32.05(1) because it did not "adopt" the relocation order
"as the first step in the condemnation process." First, nothing on the
statute's face required such an order. Second, other related subsections
specify when certain steps must be taken before making a jurisdictional
offer, and this one did not.
Judge Dykman dissented.
Sexually Violent Persons
Unanimity Instructions - Discovery Violations -
Experts
State v. Pletz,
2000 WI App 221 (filed 12 Sept. 2000) (ordered published 18 Oct.
2000)
The court of appeals, in a decision written by Judge Wedemeyer,
affirmed an order committing the respondent as a sexually violent person
pursuant to Wis. Stat. chapter 980. On appeal the respondent raised
several issues.
First, the respondent challenged the sufficiency of the evidence.
Even though the case presented a "battle of experts" and one state's
expert failed to use the "precise definition of substantial probability"
discussed in the case law, the record adequately supported the jury's
finding.
Second, respondent argued that his right to a unanimous verdict was
violated when the judge told the jury that it need not be unanimous
about "which" mental disorder he had, only that all jurors must agree he
had "a" mental disorder. The court held that the instruction accorded
with analogous case law concerning robbery and party to the crime
liability, where unanimity is not required with respect to the
alternative ways or means of committing offenses (¶19).
Third, the trial judge did not abuse its discretion in determining
that the state did not violate discovery rules regarding expert
testimony. The court held that respondent waived any error by failing to
object before or during the expert's testimony.
Finally, no reversible error occurred when the judge admitted letters
received by one expert from the committee responsible for DSM-IV, a
handbook of psychiatric disorders. The court agreed that the letters
were not of a type reasonably relied upon by experts in the field
because they were "isolated opinions given in response to hypotheticals"
(see Wis. Stat. § 907.03), but any error was harmless.
Torts
Child Labor - Absolute Liability
Perra v. Menomonee Mutual
Ins. Co., 2000 WI App 215 (filed 6 Sept. 2000) (ordered
published 18 Oct. 2000)
Seventeen-year-old Jessica was injured while working on defendant's
farm. She was operating a cement mixer, mixing seed, when her hand was
caught in the gears. Jessica and her health-care insurer brought this
action against defendant and his insurer. The judge granted partial
summary judgment to defendants on the claim that Jessica's employment
was dangerous or prejudicial to her life, health, safety, or welfare,
contrary to Wis. Stat. section 103.65. Jessica and her insurer appealed
this determination.
The court of appeals, in a decision written by Judge Snyder,
affirmed. The issues raised questions regarding statutory and
administrative rules governing child labor. As provided by Wis. Stat.
section 103.66, the Department of Workforce Development (DWD) classified
"hazardous" employment in Wis. Admin. Code § DWD 270.06. Those
classifications are "exclusive and exhaustive" (¶11). Under DWD
270.06 "the agricultural employment prohibition is limited to minors
from ages twelve through fifteen years." Thus, plaintiffs did not state
a cause of action for absolute liability under section 103.65. (Her
negligence claim was rejected by the jury and was not the subject of
appeal.)
