Court of Appeals Digest

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

This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

Attorneys

Legal Malpractice - Criminal Practitioners-
Experts Necessary - Issue Preclusion

Pierce v. Colwell, No. 96-1075 (filed 5 March 1997; ordered published 29 April 1997)

The trial court dismissed a legal malpractice action against an attorney. The complaint alleged that the lawyer negligently represented the plaintiff in a criminal proceeding. The alleged negligence occurred when the lawyer "failed" to object to the criminal court's "competency" based upon an omission to read the information to him at the arraignment.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed the grant of summary judgment. Under the facts of this case, the plaintiff was obligated to present some expert testimony to sustain the claim of the lawyer's negligence: A lay person could not be expected to understand how negligence could arise from the failure to read an information at arraignment where the defendant received a fair trial and was represented by counsel at all stages. (The lawyer he sued represented him only at the sentencing, not the arraignment.) Moreover, proceedings conducted after an "imperfect arraignment" are not invalid absent prejudice.

Although the court affirmed on the summary judgment issue, it rejected the argument that issue preclusion also blocked the plaintiff's malpractice complaint. The arraignment issue had been rejected in a prior appeal in the criminal case. But case law required criminal defendants to demonstrate their claims by clear and convincing evidence. Since this civil case carried only the ordinary preponderance burden (that is, a lower standard of proof), issue preclusion did not apply.

Criminal Procedure

Peremptory Strikes - Gender Discrimination

State v. Jagodinsky, No. 96-2927-CR (filed 26 March 1997; ordered published 29 April 1997)

The defendant was convicted of violating a harassment injunction regarding his former girlfriend. During voir dire the prosecutor used all four peremptory strikes to remove male jurors from the venire panel. The defendant's trial counsel argued that the prosecutor was engaging in gender discrimination but the trial judge overruled the objection.

The court of appeals, in an opinion written by Judge Brown, reversed and remanded. Prior case law establishes that the intentional "use" of gender (or race) violates the right to an impartial jury under the Fourteenth Amendment. The defendant established a prima facie case of gender discrimination: The defendant was a male and the prosecutor used all of his challenges to remove males from the panel. Once a prima facie case is shown, the burden shifts to the prosecutor (in this case) to demonstrate a sufficient gender-neutral explanation for his strikes. Relying upon Supreme Court decisions, the court formulated the following rule: A lawyer "defending an allegation that his or her peremptory strikes were used for discriminatory reasons must offer something more than a bald, but otherwise credible, statement that other nonprohibited factors were considered. Rather, he or she must demonstrate how there is a nexus between these legitimate factors and the juror who was struck." The prosecutor's explanation fell short of this standard. Thus, the defendant was entitled to a new trial.

Insurance

Subrogation - UIM Coverage - Subrogation Disallowance

Kulekowskis v. Bankers Life and Cas. Co., No. 96-0613 (filed 12 Feb. 1997; ordered published 29 April 1997)

The Kulekowskis's son was killed in a one-car accident. The driver's insurer paid its limits. The Kulekowskis then sued their insurer, American Family, based upon their UIM coverage. Bankers Life, the Kulekowskis's health-care insurer, filed a subrogation claim based upon the payment of various medical bills and expenses. The trial judge granted summary judgment in favor of Bankers Life.

The court of appeals, in an opinion written by Judge Snyder, affirmed. Bankers Life had a clear contractual right of subrogation. Its policy provided that the insurer had a right of reimbursement whether the insured collects "through a lawsuit, settlement or otherwise." (Emphasis original.)

Next, the court considered American Family's subrogation exclusion clause. Prior case law construing both UM and UIM coverage holds that "if the insurer who is seeking subrogation has a policy which 'functionally recites' the preservation of its subrogation rights without any time limitation, such language will prevail over subrogation exclusion language in a conflicting policy." In this case, the Bankers Life policy stated that the insured was required to "take no action prejudicing such rights" and contained no time limitation. The court rebuffed American Family's efforts to distinguish the earlier cases.

Mental Health

Mental Health Act -"Patients Rights" Statute

Schaidler v. Mercy Medical Center, No. 96-0645 (filed 19 March 1997; ordered published 29 April 1997)

The plaintiff sued a medical center after she was "admitted" pursuant to an emergency detention order. The circuit court dismissed all of her claims.

The court of appeals, in an opinion written by Judge Snyder, affirmed in part and reversed in part. Section 51.61 of the Wisconsin Statutes sets forth the "Patients Rights" of mental health patients admitted to a treatment facility. The trial judge ruled that the plaintiff failed to establish a nexus between any statutory violation and some harm to her. The court of appeals held that under section 51.61(7)(a) "a patient whose rights have been violated and who has suffered damages as a result may bring action."

Patients are entitled to $100 exemplary damages for each violation plus recovery for any damages as may be proved along with costs and attorney fees. But in the alternative, section 51.67(b) "provides for a cause of action which does not require that a plaintiff suffer or be threatened with actual damages; however, the plaintiff suing under this paragraph must prove that the individual or institution 'willfully, knowingly and unlawfully' violated this section." The defendant conceded certain "technical violations" but the parties failed to focus on the distinction between subsection (a) and (b) of section 51.67(7). The court remanded the case for further proceedings on whether there is a factual dispute with respect to a subsection (b) claim.

The court of appeals also addressed other issues under chapter 51 as well as claims sounding in negligence and false imprisonment. These discussions are case-specific and raise no novel questions of fact or law.