Wisconsin Lawyer
Vol. 85, No. 6, June 2012
Contracts
Payment – Jury Instructions – Forfeiture
Best Price Plumbing Inc. v. Erie Ins. Exch., 2012 WI 44 (filed 3 May 2012)
When Willtrim's rental property incurred plumbing-related water damage, its insurer, Erie, agreed to reimburse it for repair costs. Willtrim contacted Best Price Plumbing, which sent a repair proposal to Erie. Erie never signed or returned the proposal. Nonetheless, Best Price did the work and submitted to Erie an invoice for approximately $9,000. Erie issued a two-part check to Willtrim and Best Price. Ultimately, the check bore endorsements by both Willtrim and Best Price. Willtrim deposited the money into its account, but Best Price denied ever seeing or signing the check and claimed it did not receive payment for its services from Willtrim.
Best Price sued Erie for payment. Erie contended that 1) there was no contract between it and Best Price and, alternatively, 2) it satisfied any contract by issuing the two-party check. A jury returned a verdict in favor of Erie. In motions after verdict, the circuit court changed the jury's answer to favor Best Price, relying on State v. Kenosha Home Telephone Co., 158 Wis. 371, 148 N.W. 877 (1914), which was first brought to the court's attention after trial. The rule from Kenosha Home Telephone provides that in a situation in which a contract is otherwise silent, the place of payment is deemed to be the creditor's place of business. (Here Trimble claimed he had Best Price employees endorse the check at his rental properties.) In an unpublished decision, the court of appeals reversed, finding that the circuit court lacked justification to change the jury's answer.
The supreme court affirmed the court of appeals in a majority opinion authored by Justice Bradley. At the outset, the case presented a conflict concerning the correct standard of review: did it raise a question of law or one of fact? (See ¶ 28.) Kenosha Home Telephone set forth the following rule: "When a contract for the payment of money is silent as to the place of payment, the law implies that payment shall be made at the place of business of the creditor, in the absence of any legitimate inferences to the contrary" (¶ 33). The jury, however, was never instructed about this rule nor asked questions about it on the special verdict (see ¶ 35). At no time did Best Price object to the instructions or the special verdict nor did it request an instruction based on Kenosha Home Telephone; thus, Best Price forfeited any error (see ¶ 37). See Wis. Stat. § 805.13(3).
"A party is not permitted to save its legal arguments until after trial, only to present those arguments if the party dislikes the jury's ultimate conclusion. '[I]f attorneys are not required to raise issues at the trial court level, there is less of an incentive for attorneys to diligently prepare their cases for trial ... [and] it may result in hardship to one of the parties'" (¶ 41).
Next, the supreme court assessed the facts in light of the instructions used at trial. There was conflicting evidence related to the contract's terms and whether Erie discharged its duties. Trimble's credibility was "called into question," but the record supported the jury's verdict. The court also added that "[b]efore concluding, we pause briefly to make the following observation. Even if the jury had been instructed about the default rule from Kenosha Home Telephone, it could have relied on evidence discussed above to reach the same verdict. A properly instructed jury could have relied on the endorsed check and Trimble's testimony to make the 'legitimate inference' that the default rule was inapplicable" (¶ 56).
Justice Ziegler, joined by Justice Roggensack, dissented. They concluded that the circuit court properly treated Best Price's postverdict motion as a motion for judgment notwithstanding the verdict. Applying the "appropriate" standard of review, they would have upheld the circuit court's decision granting Best Price judgment as a matter of law.
Criminal Procedure
Search and Seizure – Unlawful Entry of Home to Make Arrest – Admissibility of Evidence Obtained After Defendant's Removal from Premises
State v. Felix, 2012 WI 36 (filed 3 April 2012)
The present case involved a warrantless in-home arrest of Felix that allegedly violated Payton v. New York, 445 U.S. 573 (1980), in which the U.S. Supreme Court held that, even if police officers have probable cause to arrest a defendant, entering the defendant's home without a warrant to accomplish an arrest violates the Fourth Amendment (see ¶ 29). However, in New York v. Harris, 495 U.S. 14 (1990), the U.S. Supreme Court held that even if an arrest violates Payton, evidence subsequently obtained from the defendant while the defendant is outside the home, in lawful police custody, is not the product of the illegal arrest and is admissible, so long as police had probable cause to make the arrest (see ¶ 34). The Harris Court further concluded that the admissibility of such evidence need not be analyzed under Brown v. Illinois, 442 U.S. 590 (1975) (see id.).
Brown set forth three factors for courts to consider in deciding whether evidence obtained following unlawful police conduct must be suppressed under the exclusionary rule as the fruit of the poisonous tree or is admissible as sufficiently attenuated from the illegality: 1) temporal proximity between the illegal activity and the evidence, 2) presence of intervening circumstances, and 3) purpose and flagrancy of the official misconduct (see ¶ 31).
After being taken into custody, Felix gave a statement at the police station, and police officers also obtained physical evidence (a buccal swab and clothing) from him. The issue before the Wisconsin Supreme Court was whether article I, section 11 of the Wisconsin Constitution demands suppression of this evidence unless under Brown it is sufficiently attenuated from the unlawful entry of his home, or whether the admissibility of such evidence is governed by the special rule of Harris.
In a majority decision authored by Justice Crooks, the supreme court continued its "usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court's interpretation of the Fourth Amendment. Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements outside of the home after Miranda rights were given and waived, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of the home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence" (¶ 51). (In its analysis the court noted that evidence found or statements taken inside the home following an entry in violation of Payton is subject to suppression (see ¶ 40).)
Justice Prosser filed a concurring opinion. Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.
Family Law
Child Support – Enforceability of Unmodifiable Floors on Child Support for a Limited Period
May v. May, 2012 WI 35 (filed 3 April 2012)
This case was before the supreme court on certification from the court of appeals. The certified question was whether a stipulation and order establishing a 33-month unmodifiable floor for child support payments is enforceable. The court addressed this issue by surveying extensive case law and discerning a framework governing child support stipulations and orders.
The first principle in that framework is that ceilings on child support payments are presumed to be invalid. "The foundation for this rule is long-established: the best interests of the child require that a payee spouse cannot be deprived of the ability to seek a modification in child support" (¶ 34).
Second, an unmodifiable floor on child support payments that is not limited in duration or that has an excessively long duration may violate public policy. "Just as payees have a duty, and therefore must have the ability, to protect the best interests of the children, payors have a duty, and therefore also must have the ability, to protect the best interests of their children. Stated otherwise, an unmodifiable floor of excessive duration has the potential to impose undue hardship on the payor parent's ability to provide for the best interests of the children, thereby negatively affecting the children's relationships with that parent" (¶ 35).
However, the supreme court declined to adopt a rule that unmodifiable floors that are limited in duration are invalid per se. It noted that agreements that provide an unmodifiable child support floor for a limited period of time often are created to lessen litigation between the parties. "Repetitive litigation and the tension it creates are not in the best interests of children" (id.).
Third, in situations in which the parties to a child support order have entered into a stipulation in regard to child support for a limited period of time and the circuit court has adopted the stipulation, courts will attempt to give effect to the parties' intentions so long as the stipulation was entered into freely and knowingly, was fair and equitable when entered into, and is not illegal or violative of public policy.
"In this context, a court's review typically will consider the doctrine of equitable estoppel, by which a party may be precluded from challenging an agreement when the elements of estoppel set forth in Rintelman [v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984)] are satisfied" (¶ 36). Rintelman articulated the elements of estoppel as being whether 1) both parties entered into the agreement freely and knowingly; 2) overall, the settlement is fair and equitable; and 3) the agreement is not illegal or violative of public policy. In the event that the elements of estoppel are met, courts have the equitable authority to decide whether to hold the parties to their bargain or to release them from it (see id.).
Finally, courts retain the equitable power to consider circumstances in existence when the stipulation is challenged that were unforeseen by the parties when they entered into the stipulation, if those circumstances adversely affect the best interests of the child. "This is so because the protection of children and intervening in their best interests constitute long-standing grounds for exercising the equity jurisdiction of the courts. Accordingly, if presented with the circumstances described above when a party seeks to enforce such an agreement and the other party seeks to modify the judgment that incorporates the agreement, courts retain the equitable authority and discretion to refuse to uphold all child support stipulations, even those that under principles of estoppel would otherwise be enforceable" (¶ 37).
After considering this framework, the supreme court, in a majority decision authored by Justice Roggensack, concluded that the parties' stipulation and order for child support is enforceable. "The parties freely and knowingly entered into the stipulation at issue, and the terms of the stipulation were fair and equitable to the parties. Furthermore, the agreement is not contrary to public policy because the circuit court retains its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affect the best interests of the children" (¶ 3). The court concluded on the facts of this case that the petitioner parent had not demonstrated the existence of such circumstances.
Justice Bradley filed a concurring opinion. Chief Justice Abrahamson dissented.
Real Property
Eminent Domain – Partitions – Billboards
Lamar Co. v. Country Side Restaurant, 2012 WI 46 (filed 4 May 2012)
Country Side owned a restaurant located near Highway 41 in Oshkosh. In 2006, Country Side leased to the Lamar Co. (Lamar) a parcel of land on which Lamar erected a billboard. As part of its plan to reconstruct Highway 41, the Wisconsin Department of Transportation (DOT) later acquired a large parcel of land that included the land leased to Lamar. In its jurisdictional offer, the DOT proposed paying Country Side and Lamar $2 million for the property: $1.34 million for the land and $65,000 for the sign.
Country Side and Lamar agreed that Lamar was entitled to approximately $85,000 for the value of the billboard plus relocation expenses. They also agreed to deposit $120,000 with the court pending a judicial determination of whether Lamar was owed more money. Lamar later filed a motion for partition, contending it was entitled to the entire sum for the value of the sign site itself. The circuit court awarded the money to Country Side. In an unpublished decision, the court of appeals affirmed, based on Lamar's acceptance of the DOT payment.
The supreme court reversed in an opinion written by Justice Ziegler. "The principal issue before us is whether the circuit court properly granted Country Side's petition for disbursement of the $120,000 to Country Side and thus properly dismissed Lamar's claim for partition under Wis. Stat. §§ 32.05(9)(a)3. and 820.01. In order to resolve that issue, we must determine whether Lamar lost its right to seek a share of the award of damages issued to Country Side and Lamar either by failing to join in Country Side's appeal of the award, as the circuit court concluded, or by signing the [DOT] Worksheet, as the court of appeals concluded" (¶ 22).
The opinion sets forth "the framework for determining just compensation when, as here, the government acquires real property jointly held by the owner of a permitted billboard and the owner of the underlying land" (¶ 23). Unquestionably Lamar was entitled to compensation for the taking of its billboard site. "If relocation expenses are shown to exist, the property owner is entitled to both the fair market value of the property taken and relocation payments" (¶ 25). Under the unit rule, the DOT properly paid the $2 million to both Country Side and Lamar. Both the land value and the value of the sign site are determined by their fair market value. Lamar was also entitled to its relocation expenses by statute (see ¶ 29).
The supreme court held that the lower courts erred in concluding that Lamar had lost its right to pursue compensation for the sign site. First, Lamar did not lose its right when it opted not to join Country Side's appeal of the $2 million award, as expressly provided by Wis. Stat. section 32.05(11). Indeed, Lamar "precisely" followed the procedures set forth in the statutes (see ¶ 36). Second, Lamar did not lose its right by obtaining its relocation expenses, as also provided by statute. The relocation payments are distinct from the $2 million award for the land's fair market value (see ¶ 37). And because Lamar's billboard conformed to the requirements of Wis. Stat. section 84.30, the court of appeals' reliance on nonconforming uses and section 84.30(8) was misplaced.
Torts
Medical Malpractice – Informed Consent
Jandre v. Physicians Ins., 2012 WI 39 (filed 17 April 2012)
Jandre went to a hospital emergency room after starting to experience facial paralysis along with other symptoms, including slurred speech and leg weakness. A doctor, Bullis, diagnosed Jandre's condition as Bell's palsy, prescribed treatment, and sent him home. Although Bullis noted the possibility that Jandre might have suffered an ischemic stroke, she did not order a carotid ultrasound nor did she advise Jandre about this procedure. A few days later, Jandre suffered a "full-blown stroke," which disabled him. Later testing revealed his carotid artery was 95 percent blocked (see ¶ 54).
Jandre sued Bullis and her insurers for negligently diagnosing his condition as Bell's palsy and for violating his rights under the informed-consent law. A jury rejected Jandre's negligent-diagnosis claim but agreed that his informed-consent rights had been violated, causing his injuries. In a published opinion, the court of appeals affirmed. See 2010 WI App 136.
The supreme court affirmed. The lead opinion, written by Chief Justice Abrahamson, was joined by Justice Bradley and Justice Crooks. Justice Prosser concurred in the decision to affirm but did not join the Chief Justice's opinion. Justice Roggensack dissented, joined by Justice Ziegler and Justice Gableman.
The 75-page lead opinion comprehensively assesses Wisconsin's informed-consent law in light of the facts before the court. "Applying the reasonable patient standard to the facts and circumstances of the present case involving a non-negligent diagnosis of Bell's palsy, we conclude that the circuit court could not determine, as a matter of law, that the physician had no duty to inform the patient of the possibility that the cause of his symptoms might be a blocked artery, which posed imminent, life-threatening risks, and of the availability of alternative, non-invasive means of ruling out or confirming the source of his symptoms" (¶ 10).
Case law and statutes have adopted the reasonable-patient approach to informed consent because it properly balances a person's right to decide what to do with his or her body while allowing "physicians to confidently perform their all-important work without fearing unfair and unpredictable liability, and ... give[s] patients a meaningful opportunity to intelligently exercise their right of self-determination" (¶ 13).
The lead opinion emphatically emphasized that Bullis was not held to a "strict liability" standard (see ¶ 27). Raising a "more subtle point," the lead opinion suggested that "this strict liability argument rests on a mistrust of juries" (¶ 29).
"Based on the limitations that are inherent in the objective, negligence-based reasonable patient standard, the limitations that are expressly included in Wis. Stat. § 448.30, and our belief that juries are capable of faithfully applying the reasonable patient standard, we conclude that the reasonable patient standard imposed on physicians in cases like the instant one is not 'essentially strict liability'" (¶ 33). The lead opinion extensively discussed case law on informed consent to supports its contention that stare decisis compelled the decision to affirm the circuit court's findings. This discussion revisits many of the policy concerns addressed in prior cases.
Concurring in the decision but not the lead opinion, Justice Prosser conceded that the "lead opinion provides a trenchant argument for affirmance and for the current direction of Wisconsin law. I am unable to join the opinion because of the reservations I have about the direction we are going" (¶ 256). Justice Prosser recommended that a "blue ribbon committee" might be better suited to "wrestle with the serious policy questions raised here" (¶ 260).
In her dissent, Justice Roggensack contended that the lead opinion would have imposed strict liability for missed diagnoses by expanding informed-consent law. She also concluded that Wis. Stat. section 448.30 is not implicated by this case because there was no failure to inform Jandre about the risks and benefits of the treatment and procedures used by Bullis. Finally, the dissent found the verdicts to be inconsistent and would have remanded for a new trial.
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