Court of Appeals Digest

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

Civil Procedure

Discovery Violation - Excluded Evidence - "Egregious Conduct"

Sentry Ins. Co. v. Davis, 2001 WI App 203 (ordered published 26 Sept. 2001)

Sentry Insurance brought a declaratory judgment action seeking a declaration that its policy did not provide liability coverage to Davis, its insured. The trial court refused to consider a document produced by Sentry after the discovery and briefing deadlines had passed. Based on the record before it, the court found that Sentry's policy did provide coverage. Sentry appealed.

The court of appeals, in an opinion written by Judge Deininger, affirmed. The record clearly demonstrated that Sentry had violated the trial court's discovery and briefing orders. The argument on appeal concerned the severity of the sanctions. The court of appeals analyzed the exclusion of the "new" document as "effectively 'causing the ultimate dismissal' of a plaintiff's case," a determination that requires findings of (1) egregious conduct, and (2) no "clear and justifiable excuse" for the violations. Since Sentry failed to offer any reason for its tardy production of the document, it had no "clear and justifiable excuse." As to the first factor, the court clarified that "egregious" and "bad faith" are not synonymous. Absent bad faith, Sentry's conduct was nonetheless sufficiently "egregious," especially in light of the "timeline of significant events in the litigation" ( 22).

Discovery - Bad Faith - Default Sanction

Brandon Apparel Group Inc. v. Pearson Properties Ltd., 2001 WI App 205 (ordered published 26 Sept. 2001)

Based on a finding that the plaintiff had engaged in bad-faith discovery practices, the circuit court awarded default judgment to the defendant, including damages for counterclaims. The court of appeals, in an opinion written by Judge Roggensack, affirmed.

First, case law supported the grant of default judgments as sanctions based on findings of bad faith, as when a party intentionally delayed, obstructed, or refused the requesting party's discovery demands. The record demonstrated a "clear and continuing pattern of intentional, deliberate discovery violations," including the plaintiff's refusal to attend his deposition despite a court order ( 14). Furthermore, a court can grant a default judgment for such misconduct without having to consider the imposition of a lesser sanction.

Second, the trial court was not required to receive additional evidence of damages for purposes of the default judgment. Here the offending party did not contest a third-party complaint that claimed damages of $500,000 under terms of a "side agreement" and an additional $500,000 as a sanction. Nor did he ever request a hearing to dispute the damages amount.

Criminal Procedure

Expert Testimony - Compelled Psychological Examination

State v. Davis, 2001 WI App 210 (ordered published 26 Sept. 2001)

The defendant was charged with sexually assaulting a child. Pursuant to State v. Richard A.P., 223 Wis. 2d 777 (Ct. App. 1998), he notified the court that he intended to offer expert psychological testimony to the effect that he did not fit the "profile of a sex offender" and was therefore "unlikely" to have committed these crimes. The state moved the court for an order compelling the defendant to submit to a psychological examination by its own expert. The defendant declined and the trial court ruled that such a compulsory examination violated his right against self-incrimination.

In this interlocutory appeal, the court of appeals, in an opinion written by Judge Brown, reversed. The court held, in summary, that "a defendant who presents such expert testimony puts his or her mental status in issue and thereby waives the right against self-incrimination." For this reason, a "defendant who manifests the intent to introduce Richard A.P. testimony may be ordered to submit to a psychiatric evaluation by an expert chosen by the State" ( 1).

First, the right against self-incrimination does not prohibit the compulsory examination by the state's expert when the defense proffers its own expert. Undoubtedly such experts rely heavily on statements made by the defendant. "A defendant who intends to present Richard A.P. evidence through an expert is using that expert as a conduit for presenting the defendant's statements about his or her sexual history, sexual preference, and sexual attitudes. Were the defendant to take the stand and testify about these subjects, he or she would be deemed to have waived his or her privilege and would be required to submit to cross-examination. The defendant cannot be permitted to avoid this result by using an expert as a surrogate" ( 9). Moreover, considerations of fairness and the "quest for truth" fully supported the rule of reciprocal access to the defendant.

The court also refused to distinguish between a defense that focuses on an element of the offense and an affirmative defense. Finally, the court held that should the defendant submit to an examination conducted by the state's expert yet decide not to offer Richard A.P. evidence at trial, the state is foreclosed from "introducing any evidence derived from the state-sponsored exam on the issue of guilt" ( 20).

Consent to Search - Prior Testimony - "Dangerous Weapons"

State v. Tomlinson, 2001 WI App 212 (ordered published 26 Sept. 2001)

A jury convicted the defendant of first-degree reckless homicide for killing the victim with a baseball bat. The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The court rejected three claims of error. First, the trial court properly found that police had consent to search the defendant's home. A "teenage girl" opened the door for police, permitted them to enter, and allowed them to "follow her into the house." Reasonable inferences supported a finding that the girl was the defendant's daughter, who had "common authority" over the home. On this point the court was persuaded by case law from other jurisdictions that "a teenage child has actual common authority to consent to an entry, at least into the common areas of the shared home" ( 18). The record demonstrated that the girl (possibly age 14 or 15) had "acquired the discretion to admit persons of [her] own authority" ( 19). Moreover, the defendant was present in the kitchen and did not object to the officers' presence.

Second, the court upheld the admissibility of a key witness's testimony given at the preliminary examination. The testimony was admissible under the former testimony exception to the hearsay rule, Wis. Stat. section 908.045(1). It also satisfied the Sixth Amendment confrontation right because the evidence fell within a "firmly rooted" exception. Moreover, the witness was unavailable because, when called by the state, he repeatedly asserted his right against self-incrimination despite the trial court's direction that he testify regardless. Although agreeing that a "more complete record" would have been made had the judge held the witness in contempt, the trial transcript demonstrated that the witness "persistently refused to answer the questions, and there was no offer of proof that further inquiry would have made a difference to [him]" ( 29). Finally, the defendant's "opportunity" to cross-examine the witness at the preliminary examination was sufficient for both confrontation and hearsay purposes.

Third, the defendant conceded the factual issue of whether a baseball bat is a dangerous weapon. Thus, the court of appeals was not forced to consider whether it was plain error for the judge to in effect direct a verdict on this issue by an instruction that stated, "Dangerous weapon means a baseball bat."

Insanity Plea - Bifurcated Trial - State Cannot Call Defendant Adversely in Responsibility Phase

State v. Langenbach, 2001 WI App 222 (ordered published 26 Sept. 2001)

The defendant was charged with numerous felonies and initially entered pleas of not guilty and not guilty by reason of mental disease or defect. Subsequently, he entered pleas of no contest to the charges, but retained his pleas of not guilty by reason of mental disease or defect.

A jury was scheduled for the mental responsibility phase of this case. Prior to trial, the state filed a motion asking to call the defendant adversely as a witness during this phase, arguing that he had no Fifth Amendment privilege at this stage of the proceeding. The trial court denied the motion. This interlocutory appeal followed.

In a decision authored by Judge Snyder, the court of appeals affirmed. It held that the defendant's Fifth Amendment privilege against compelled testimonial self-incrimination continues through the mental responsibility stage of his criminal trial. Said the court, "it is irrelevant that [the defendant] has already pled guilty; his Fifth Amendment privilege does not terminate after his guilty plea but continues with him through disposition and a potential appeal" ( 11).

Search and Seizure - "Automobile Exception" to the Warrant Requirement

State v. Marquardt, 2001 WI App 219 (ordered published 26 Sept. 2001)

This case addresses numerous search and seizure issues. Among them are several relating to the "automobile exception" to the warrant requirement and whether its application is limited to searches of vehicles located in public places. On these issues the facts are brief. The defendant was arrested at his home. At the time of the arrest, his locked vehicle was parked in his driveway. That vehicle was confiscated and subsequently searched without a search warrant.

Under federal law the elements required to satisfy the automobile exception to the warrant requirement have changed over time. Currently, a warrantless search of a vehicle does not offend the Fourth Amendment [or its counterpart in the Wisconsin Constitution] if there is probable cause to search the vehicle and the vehicle is readily mobile. Issues concerning whether the police could have obtained a warrant before searching are not relevant to the analysis. See 31.

In this case, the court concluded that there was probable cause to search the defendant's vehicle and that the vehicle was readily mobile. With regard to the latter, the court rejected the defendant's argument that once he was arrested, the vehicle was no longer readily mobile. His arrest would not prevent other unknown individuals from moving the vehicle. Further, the court was not concerned by the fact that the car was seized and impounded before it was searched. The U.S. Supreme Court has held that the justification to conduct a warrantless search does not vanish once the car has been immobilized.

The defendant also challenged the application of the automobile exception in this case, with the argument that the exception only applies to vehicles in public places. Rejecting this argument, the court observed that the U.S. Supreme Court in its more recent automobile exception cases has not recognized a public place requirement. And the court could identify no controlling precedent under the Wisconsin Constitution that would compel a different result.

Lastly, the defendant argued that the police should have obtained a warrant because there was no danger of the car being driven away or any evidence therein being destroyed. Again, relying on contemporary U.S. Supreme Court analysis, the court of appeals concluded that the fact that the officers in this case could have secured a warrant, either before towing the vehicle or before searching it at the police station, did not render the automobile exception inapplicable.

Habitual Criminality - Post-arraignment Addition of Repeater Allegation Pursuant to Plea Agreement

State v. Peterson, 2001 WI App 220 (ordered published 26 Sept. 2001)

The defendant was charged with multiple felonies and initially entered pleas of not guilty at his arraignment. Although he had a prior criminal record, neither the complaint nor the information charged him as a repeater under the habitual criminality statute. Thereafter, the parties entered into a plea negotiation whereby the state would file an amended information reducing the charges but adding allegations of habitual criminality. The court permitted the filing of the amended information, the defendant pled guilty to the charges therein, and judgments of conviction were entered. The court used the increased imprisonment time available under the repeater statute when it sentenced the defendant.

On appeal, the defendant claimed that the trial court lacked authority to sentence him as a repeater because the state had not charged him as such prior to the arraignment in his case. He relied on Wis. Stat. section 973.12(1) and cases construing it that require allegations of habitual criminality to be furnished before arraignment and the acceptance of any plea.

In a decision authored by Judge Vergeront, the court of appeals concluded that section 973.12(1) does not prohibit a defendant from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend the information to add repeater allegations. Among other reasons for its decision, the court could see no purpose served by interpreting the statute to prevent a defendant from agreeing to add repeater allegations to an information as part of a plea agreement. Since a defendant need not agree to that amendment, presumably a defendant will agree only when he or she perceives it is in his or her interest to do so.

Restitution - Police Overtime Costs to Apprehend Defendant in a Standoff Situation

State v. Ortiz, 2001 WI App 215 (ordered published 26 Sept. 2001)

The defendant was convicted of numerous offenses, including failure to comply with an officer's attempt to take a person into custody by remaining in a building while armed with a dangerous weapon, obstructing an officer while armed, disorderly conduct while armed, and threatening to injure another while armed. At sentencing, the state sought restitution to the City of Racine for $9,409, which represented overtime costs of the city's police department that were incurred because of a police standoff with the defendant when he was arrested.

The circuit court sentenced the defendant to three years in prison on the threat to injure charge. As to the other counts, the court imposed and stayed sentences and placed the defendant on probation. The court ordered the defendant to pay restitution to the city in the amount requested by the state. [Note: As treated by the court of appeals, this restitution order was imposed as part of the sentence but was not a condition of probation.]

The defendant appealed and the court of appeals, in a decision authored by Judge Nettesheim, reversed. The court began its analysis by noting that restitution in criminal cases is governed by Wis. Stat. section 973.20, which imposes a mandatory duty on the sentencing court to order restitution to the "victim" of a crime. The appellate court held that the city was not an actual or direct victim of the defendant's criminal conduct and, therefore, the trial court was without authority to order restitution for the overtime expenses incurred by the city in investigating and apprehending the defendant. It is true that a governmental entity can, in the appropriate case, be a victim entitled to restitution, such as when the defendant's conduct directly causes damage or loss to the governmental entity. When his or her conduct only indirectly causes damage or loss to the governmental entity, the entity is a passive and not a direct victim and is not entitled to restitution. See 20.

In this case, the court recognized that the police were agents of the city. However, "the fact remains that it was the police, not the city, who were the direct and actual victims of [the defendant's] crimes" ( 22). The defendant did not threaten to injure the city - he threatened to injure the officers. He did not fail to comply with an attempt by the city to take him into custody; instead, he failed to comply with the police effort to take him into custody. He did not obstruct the city - he obstructed the police. And finally, his disorderly conduct was not targeted at the city but was targeted at the police. In sum, the police, not the city, were the actual victims of the defendant's offenses and, accordingly, the city cannot recoup its collateral expenses in apprehending the defendant.

In a footnote the court also rejected the state's alternative argument that the restitution was valid as an item of costs relating to the defendant's arrest pursuant to Wis. Stat. section 973.06(1)(a). The rationale for this conclusion was that the overtime expenses were incurred in the normal course of the police operation to investigate and apprehend the defendant.

Insurance

Bad Faith - Bifurcation

Dahmen v. American Family Mut. Ins. Co., 2001 WI App 198 (ordered published 26 Sept. 2001)

The Dahmens' complaint against their insurer, American Family, involved two claims: (1) they were entitled to underinsured motorist (UIM) coverage; and (2) American Family had acted in bad faith in denying the UIM claim. The trial court denied the insurer's motion to bifurcate the claims and stay discovery on the bad faith claim until the UIM issue had been resolved.

The court of appeals, in a decision written by Judge Nettesheim, reversed. The UIM coverage issue focused on the amount of the plaintiffs' damages in the underlying dispute: Did their damages exceed the $50,000 coverage limit of the underlying policy? In summary, the court held that bifurcation was appropriate because: "(1) the failure to bifurcate a claim of bad faith from an underlying claim for UIM benefits would significantly prejudice American Family; (2) the two distinct claims present differing evidentiary requirements that increase the complexity of the issues and the potential for jury confusion; and (3) a separate initial trial on the claim of UIM benefits increases the prospect of settlement and promotes economy by narrowing the issues for the jury and potentially eliminating the need for a later trial on the bad faith claim" ( 20).

In particular, prejudice would arise because the bad faith claim entitles the plaintiffs to "discovery of American Family's work product and attorney/client material containing information relevant as to how the Dahmens' claim was handled" ( 13). This would include the insurer's "internal determinations" and its approach to settlement. Neither carefully drafted jury instructions nor special verdicts would allay the harm; only bifurcation sufficed.

Motor Vehicle Law

OWI - Constitutionality of Blood Draw When Defendant Offers to Take Breath Test

State v. Wodenjak, 2001 WI App 216 (ordered published 26 Sept. 2001)

The defendant, who had a prior record for OWI offenses, was arrested for another OWI offense. The state trooper who arrested him had access to a functioning IntoxilyzerTM machine at the time of the arrest. However, State Patrol policy provided that the primary test for repeat OWI offenders is a blood test. Therefore, the trooper transferred the defendant to a local hospital for a blood draw.

At the hospital the trooper advised the defendant about the implied consent law and asked him if he would submit to a blood test. The defendant responded by asking if he could take a breath test. The trooper rejected this request, and the defendant then refused to take the blood test. The trooper then advised the defendant that, despite the implied consent refusal, the State Patrol policy required a blood sample from a repeat offender with or without the offender's consent. The defendant then changed his mind and submitted to the blood test.

Once the criminal OWI prosecution was commenced, the defendant moved to suppress the results of the blood test, arguing that there was no exigency under the Fourth Amendment permitting the police to perform a blood test because he had previously offered to submit to a breath test. The motion was denied and the defendant subsequently was convicted.

In a decision authored by Judge Nettesheim, the court of appeals affirmed. At the outset of its analysis the court observed that the Fourth Amendment, not the law of implied consent, should control the outcome of this case. See 5 n. 6. The seminal Fourth Amendment case in Wisconsin regarding warrantless blood draws is State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). According to Bohling, a warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime; (2) there is a clear indication that the blood draw will produce evidence of intoxication; (3) the method used to take the blood sample is a reasonable one and is performed in a reasonable manner; and (4) the arrestee presents no reasonable objection to the blood draw. A forcible warrantless blood draw does not violate the Fourth Amendment if the conditions specified in Bohling are satisfied. The defendant did not cite to any law, and the court of appeals was unaware of any, that holds that the availability of less invasive alternative tests changes the holding of Bohling and its progeny or that the police must consider such alternate tests when deciding whether to obtain a blood draw from a suspect. See 12.

"In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, [the defendant's] request for the less invasive breath test and the availability of such a test did not deprive [the state trooper] of his authority to obtain a blood sample from [the defendant] under Bohling" ( 13).

Municipal Law

Annexation - "Contiguous" Properties

Town of Campbell v. City of La Crosse, 2001 WI App 201 (ordered published 26 Sept. 2001)

The City of La Crosse annexed four properties from the Town of Campbell. A river separates the city from these properties and, although a bridge spans the river, it does not directly connect the city to any of the annexed properties and at no point do the dry lands of the city and the annexed properties meet.

These annexations were made pursuant to a petition for direct annexation. Wisconsin Statutes section 66.021(2)(a), which governs petitions for direct annexation, provides that "territory contiguous to any city or village may be annexed thereto" subject to various conditions that are not at issue in this case.

The town filed lawsuits challenging the validity of the annexation ordinances, contending that the river separates the annexed properties from the City of La Crosse and therefore the properties are not "contiguous" to any part of the city. The circuit court granted the town's motion for summary judgment.

The court of appeals, in a decision authored by Judge Lundsten, reversed. The court concluded that the term "contiguous" plainly includes properties that are in physical contact and that, in this case, the annexing and annexed properties are in physical contact along the river bed. The court was unable to identify any authority for the proposition that a river running over the point of contact renders properties noncontiguous. The property of the City of La Crosse meets the annexed properties at the center of the river bed of the river that separates them. The court concluded that the annexed properties are therefore "contiguous" to the city within the meaning of the statute cited above.

Torts

Health Care Providers - "Custody and Control" Rule - Safe Place - Peer Review

Hofflander v. St. Catherine's Hospital Inc., 2001 WI App 204 (ordered published 26 Sept. 2001)

The plaintiff was involuntarily committed under Wis. Stat. chapter 51 to St. Catherine's Hospital following a suicide threat. During her two-day confinement she was "volatile and uncooperative." The plaintiff was injured when she fell from a third-story window while attempting to "escape." Her claim against the hospital alleged negligence and safe place violations. The trial court granted summary judgment in favor of the defendants. The judge ruled that the plaintiff's negligence exceeded that of the health care providers as a matter of law. Applying Jankee v. Clark County, 2000 WI 64, the court also ruled that the "custody and control" rule did not apply because the plaintiff's conduct was not foreseeable.

The court of appeals, in a decision written by Judge Brown, reversed and remanded. First, the court addressed the "custody and control" rule advanced in Jankee, which held that a "mentally disabled plaintiff may expunge the affirmative defense of contributory negligence if: (1) a special relationship existed, giving rise to a heightened duty of care; and (2) the caregiver could have foreseen the particular injury that is the source of the claim" ( 15). As a matter of law, both the hospital and its manager, Horizon, had such a special relationship. The hospital acquired the special relationship because of the "involuntary nature" of the plaintiff's commitment. Horizon's "clinical management responsibilities" triggered its status. More important, the court held that the defendant's foreseeability was not confined to the precise manner of the "elopement" (escape) in this case; namely, the risk that a patient would remove a window air conditioner and attempt to shimmy down three floors using bed sheets as ropes. Rather, the appropriate focus is on the risk of elopement itself, regardless of the form it takes. On this issue the record yielded "sufficient reasonable alternative inferences" that required findings by a jury; thus, summary judgment was inappropriate.

Second, the court addressed the safe place claim and the defendants' assertions that the plaintiff was a "trespasser" because she attempted her escape from another patient's room. The court found as a matter of law that "a person involuntarily committed to a locked psychiatric unit cannot be considered a trespasser" ( 27). The hospital also argued that the plaintiff created the "unsafe condition" by removing a window air conditioner; she contended that the air conditioner was "loose," which made it easier for her to remove. When determining whether an unsafe condition existed on the premises, said the court, "we must consider the use or purposes the premises serve." The issue was not, however, ripe for summary judgment. The court remanded for a jury "to determine whether a loose air conditioning unit, located in a room used by mentally disturbed patients, was an unsafe condition and, if so, whether" the defendants had constructive notice of the condition ( 30).

Third, the court rejected the plaintiff's argument that she was entitled to discover "JCAHO" site surveys that ostensibly related to the hospital's constructive notice of "environmental safety issues," including security of the window air conditioners. Addressing an issue of first impression, the court held that such site surveys are privileged peer review documents under Wis. Stat. section 146.38, which is designed to "encourage candid and voluntary studies and programs used to improve hospital conditions and patient care" ( 36). Thus, they are not subject to discovery.

Water Law

Dockominiums - Public Trust Doctrine

ABKA Limited Partnership v. Wisconsin Department of Natural Resources, 2001 WI App 223 (ordered published 26 Sept. 2001)

ABKA is a limited partnership that privately owned a 407-slip marina on Lake Geneva in Walworth County. In 1995 it filed a condominium declaration to convert and sell the marina boat slips to private owners as "dockominium" units. The dockominium concept is, in essence, a condominium type of ownership of the marina. Technically, the declaration defines the dockominium unit as a cubicle of space in a lock-box located within a building on marina property. The lock-box itself has no inherent value, but appurtenant to the lock-box is the exclusive use of an assigned boat slip.

By definition, a "boat slip" is a "docking place for a ship between two piers." In other words, a boat slip is the water and the lake bed under the water. Therefore, as characterized by the court of appeals, ABKA is attempting to convey a portion of the waters of Lake Geneva to the dockominium unit owners. In a majority decision authored by Judge Snyder, the court of appeals concluded that ABKA's dockominium proposal is in direct conflict with the public trust doctrine, according to which the state is directed to act as trustee of the waters within its borders and to protect the public's right to use the waters.

Judge Brown filed a dissenting opinion.