Vol. 77, No. 2, February 2004

Court of Appeals Digest

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

Contracts Municipal Law Criminal Procedure Property Insurance

Motor Vehicle Law Prisoners Separation of Powers Torts

Contracts

Releases - Future Claims - Fraud

Gielow v. Napiorkowski, 2003 WI App 249 (filed 26 Nov. 2003) (ordered published 17 Dec. 2003)

The Gielows sued the Napiorkowskis for misrepresentations regarding the condition of a home they had sold to the Gielows. The trial court granted summary judgment in favor of the Napiorkowskis based on a "release of all claims" given to them by the Gielows in settling prior litigation between the same parties.

The court of appeals, in a decision written by Judge Nettesheim, reversed and remanded. "Giving a reasonable meaning to all of the language of the release, we conclude that the release is ambiguous on the question of whether the parties intended a global release or a release limited to the Gielows' claims in the prior litigation. In addition, we take note that the Napiorkowskis drafted the release. As such, the ambiguities in the document are construed against them" (¶ 17). Moreover, the law also recognizes that the consideration given for a release is a proper factor to consider, and here there was a substantial disparity between the release ($8,500) and the damage claim in this action ($80,000).

The court also determined that the summary judgment record raised material issues of fact on the Gielows' claim of mutual mistake and unilateral mistake based on fraud. "More specifically, the summary judgment evidence raises the legitimate question of whether the parties, in the words of the jury instruction, '[were] unaware of the existence of a past or present fact material to their agreement' or '[were] conscious or aware of, or alerted to, the possibility that a fact does or does not exist, and they waive any inquiry or make no investigation with respect to [such fact] ....' We similarly hold that the summary judgment evidence raises a material question of fact on the Gielows' related claim of unilateral mistake based on alleged fraud. 'A mere mistake on the part of one, in the absence of fraud on the part of the other, is not such to avoid a contract obligation'" (¶ 28) (citations omitted). Finally, the court ruled that there also were material questions of fact regarding the "fraud in the inducement" exception to the economic loss doctrine.

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Criminal Procedure

Truth-in-Sentencing - County Jail Confinement as Condition of Extended Supervision Prohibited

State v. Larson, 2003 WI App 235 (filed 23 Oct. 2003) (ordered published 19 Nov. 2003)

The defendant was convicted of homicide by intoxicated use of a vehicle. The court imposed a bifurcated sentence under the truth-in-sentencing laws of 5 years' confinement followed by 10 years' extended supervision. One condition of the extended supervision was that the defendant be incarcerated in the local jail for two days a year on the anniversary of the fatal accident.

On appeal the defendant argued that Wis. Stat. section 973.01 does not authorize the circuit court to order periodic jail confinement as a condition of extended supervision. In a decision authored by Judge Dykman, the court of appeals agreed. The court analyzed section 973.01(2) and (5) and concluded that this statute prohibits confinement as a condition of extended supervision.

Admissibility of Incriminating Statements Given to Private Person - Coercion by Private Person

State v. Moss, 2003 WI App 239 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)

The defendant pleaded no contest to a charge of second-degree sexual assault of a child after the circuit court denied his motion to suppress an incriminating statement that he gave to the Ozaukee County Social Services Department. In the statement, he admitted to having sexual contact with the victim. The defendant argued that his statement was coerced by his pastoral counselor. The counselor had advised the defendant that he (the pastoral counselor) was a mandatory reporter and therefore was compelled under state law to report the defendant's confidences to legal authorities. He told the defendant to report his actions to the authorities and that if he did not do so, then the pastoral counselor would do so. As a result, the defendant reported the incident. [On appeal, the parties agreed that, in fact, the pastoral counselor was not a mandatory reporter within the meaning of Wis. Stat. section 48.981(2).]

As described by the court of appeals, the issue before it was whether the improper coercion of a defendant's incriminating statement by a person who is not a state agent offends constitutional due process such that the statement is inadmissible. In a decision authored by Judge Nettesheim, the appellate court concluded that "there is no due process violation where, as in this case, a private citizen coerces a confession from another private citizen and there is no state action or state nexus" (¶ 2).

The court observed that its rejection of the defendant's constitutional due process claim did not render statements such as those at issue in this case automatically admissible. Given the coercive effect of the pastoral counselor's actions, the defendant could have availed himself of Wisconsin's rules of evidence to challenge the reliability of his statement. The court cited Boyer v. State, 91 Wis. 2d 647, 284 N.W.2d 30 (1979) for the proposition that a trial court has the authority to exclude a statement pursuant to Wis. Stat. section 904.03 if the statement is so unreliable that its probative value is substantially outweighed by the danger of prejudice and confusion.

Sentencing - Breach of Plea Agreement - Investigating Detective's Letter to the Court

State v. Matson, 2003 WI App 253 (filed 26 Nov. 2003) (ordered published 17 Dec. 2003)

In exchange for a guilty plea in this case, the prosecution and defense agreed to jointly recommend to the court a specific sentence that was less than the maximum provided for by law. After the defendant pleaded guilty but prior to sentencing, the investigating detective on the case sent a letter to the sentencing court, asking for the maximum sentence. The sentencing judge then forwarded the detective's letter to the presentence investigation writer. The court ultimately imposed a sentence that was substantially greater than that jointly recommended by the parties.

The issue on appeal was whether the detective's letter to the court asking for a prison sentence greater than that agreed to in the plea bargain constituted a violation of the plea agreement. In a majority opinion authored by Judge Higginbotham, the court of appeals concluded that it did. It held that the statements of the investigating officer, written on police department letterhead and submitted in the officer's capacity as the investigating officer on the case, constituted statements of the prosecutor and amounted to a material and substantial breach of the plea agreement. "Investigating officers are so integral to the prosecutorial effort that to permit one to undercut a plea agreement would, in effect, permit the state to breach its promise. If the prosecutor is obligated to comply with plea bargain promises, then the prosecutor's investigating officers may not undercut those promises by making inconsistent recommendations" (¶ 25). In the view of the court, such a material and substantial breach of the plea agreement precluded any need to consider what the sentencing judge would have done had the breach not occurred.

By way of remedy for the breach, the defendant did not seek to withdraw his plea but instead sought specific performance, a new sentencing by a different judge with a new presentence report. "While the choice of remedy is not up to the defendant, if a defendant seeks only specific performance, we can simply order resentencing by a different judge. The less extreme remedy of specific performance is always preferred" (¶ 33). The court concluded that a new circuit judge should conduct the defendant's sentencing and that, to avoid any further taint in the case, a new presentence investigation should be conducted, without consideration of the detective's letter, and a new report completed by an agent from another county.

Judge Dykman filed a dissenting opinion.

Sentencing - Ability of Defendant to Pay a Fine - OWI Sentencing Guidelines

State v. Kuechler, 2003 WI App 245 (filed 29 Oct. 2003) (ordered published 17 Dec. 2003)

The defendant was convicted of a seventh offense OWI and sentenced to a three-year term of confinement and a two-year period of extended supervision. After seeking guidance from local sentencing guidelines for prohibited alcohol concentration (PAC) offenses, the court also imposed a fine of $8,852 including surcharges. Among the issues raised in his motion for postconviction relief, the defendant claimed that the court erred in not considering his ability to pay the fine. Postconviction relief was denied and the defendant appealed.

In a decision authored by Judge Anderson, the court of appeals affirmed in part and reversed in part. With regard to the defendant's contention that the trial court imposed the fine without first ascertaining his ability to pay, the appellate court reversed. Because the defendant timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue. Such a hearing is necessary to avoid an unconstitutional application of the statutes and it does not appear in the record that there was such a hearing.

The appellate court reminded the trial court that, upon remand, it should be mindful of the various factors for determining whether to impose a fine and its amount that have been identified by the American Bar Association and cited with approval by the Wisconsin Supreme Court. See ABA Standards on Sentencing Alternatives and Procedures sec. 2.7(c).

Finally, the appellate court reminded the state's trial judges that, in the words of the supreme court, "much time could be saved if trial courts would follow the practice of ascertaining the defendant's ability to pay a fine at the time of sentencing." See State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 296, 201 N.W.2d 778 (1972).

Hearsay - Confrontation

State v. Hale, 2003 WI App 238 (filed 29 Oct. 2003) (ordered published 19 Nov. 2003)

Hale and Jones were charged with armed robbery and homicide and were convicted in separate trials. A witness, Sullivan, testified in Jones's trial but was "unavailable" (he couldn't be located) for Hale's trial. The judge at Hale's trial admitted Sullivan's testimony from Jones's trial under the former testimony exception, Wis. Stat. § 908.045(1).

The court of appeals, in an opinion written by Judge Brown, affirmed Hale's conviction for homicide and armed robbery. First, the court held that the transcript of Sullivan's testimony was properly introduced under the former testimony exception because Hale and Jones had similar motives and interests in attacking Sullivan's credibility, specifically, "to discredit any link between Hale and the murder weapon" (¶17). Because they were charged as parties to the crime, "it was irrelevant whether it was Jones or Hale who actually fired the gun" (Id.).

Second, the court addressed whether admission of the hearsay evidence violated the confrontation right. Prior case law "bound" the court to view the former testimony exception as "firmly rooted," although the court expressed some misgivings about the breadth of an earlier decision (¶23). In particular, the court stated that "were we to write this decision on a clean slate, we would conclude that the former testimony exception, when used to permit the introduction of testimony from a codefendant's trial in which the defendant did not participate, is not a 'firmly rooted' hearsay exception" (¶30). Nonetheless, on the record before it, the court could "conceive of no possible reason to question the trustworthiness and reliability of Sullivan's testimony" [at the earlier trial]. For example, because Sullivan and Hale were good friends, Sullivan had no motive to falsely inculpate Hale.

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Insurance

Rimes Hearing - Wrongful Death

Petta v. ABC Ins. Co., 2003 WI App 241 (filed 21 Oct. 2003) (ordered published 19 Nov. 2003)

Following the death of their mother, the plaintiffs brought a wrongful death claim against the tortfeasors. Travco Insurance was added as a subrogated party because it had paid $14,000 in funeral expenses. The children settled with the tortfeasors and agreed to indemnify them against any subrogated claims, including Travco's. At a Rimes hearing, Travco stipulated that the children had not been made whole but contended that Rimes was inapplicable because they were Travco's insureds (¶3). The trial court ruled in favor of the children.

The court of appeals, in an opinion written by Judge Hoover, reversed. The children were "indeed entitled to bring their medical and funeral expenses claim on behalf of the payor, Travco. They do not, however, own the claim exclusively, nor are they entitled to retain the proceeds of their claim when they did not pay the expenses" (¶9) (emphasis in original). The children were not "injured" by the medical and funeral expenses or the damage to the car because Travco "paid for it" (¶12).

Nor did Rimes somehow dictate a different result. "When we are faced with the possibility that either an insurer or its insured must go unpaid because a tortfeasor has a limited pool of funds from which to pay damages, it is deemed preferable that the insurer go unpaid and bear the loss the insured paid it to assume" (¶14). No such relationship was involved here because the children paid nothing to Travco to receive benefits, nor did the wrongful death statute allow the children to stand in their mother's "'shoes' vis-à-vis her relationship with Travco" (¶14). "But for [their] indemnification agreement, there were two separate causes of action against [the tortfeasor]."

UM - UIM - "Duplicate" Payments

Fischer v. Midwest Security Ins. Co., 2003 WI App 246 (filed 20 Nov. 2003) (ordered published 17 Dec. 2003)

Heather was injured in an accident and incurred medical expenses in excess of $100,000. Her total damages exceed $150,000. Heather and her parents (the Fischers) carried both UM (uninsured) and UIM (underinsured) coverage under a policy with Midwest Insurance. The tortfeasor had liability coverage with a maximum of $25,000 per person and $50,000 per accident. Midwest paid the Fischers $125,000 under their UM coverage but sought to limit the UIM coverage. The Fischers sought a declaratory judgment on insurance coverage and the court ruled that the policy entitled Heather to both UM and UIM coverage.

The court of appeals, in a decision written by Judge Dykman, affirmed in an opinion that confronted an "issue of first impression": "[M]ay an insured recover compensatory damages under separate UM coverage and UIM coverage in a single accident? Wisconsin has well-developed law regarding UM and UIM coverage. Nevertheless, no authority has addressed the situation where an insured has claims from a single accident for both UM and UIM coverage because of the insurance status of multiple-tortfeasors" (¶ 7).

The policy provided both UM and UIM coverage. Midwest had three possible theories by which to limit or eliminate both UM and UIM coverage: 1) the limits of liability contained in the Declarations page; 2) a reduction clause; and 3) the ban against duplicate payments. The court found it unnecessary to address the reduction clause contention. As for the Declarations page, "the policy anticipates and covers two different kinds of risks. We conclude subsec. A in each endorsement's Limit on Liability provision limits the insured's recovery in one accident to the maximum amounts identified in the Declarations. This limitation does not preclude recovery under more than one type of coverage; thus, subsec. A does not prevent the Fischers from recovering under both their UM and UIM coverage in a single accidental" (¶ 16). The court also held that the policy "does not render payments under separate UM and UIM coverage duplicate payments for the same elements of loss" (¶ 23). It reasoned that "UM and UIM describe two different types of loss caused by two different types of risks" (¶ 22). In the end the court found that the policy provision was ambiguous and construed it against Midwest.

Exclusions - Lack of Notice

Kozlik v. Gulf Ins. Co., 2003 WI App 251 (filed 19 Nov. 2003) (ordered published 17 Dec. 2003)

Leverance was a "repeat" customer of Enterprise Rent-a-Car who always took the personal accident insurance (PAI), issued by Gulf Insurance Company. Leverance was killed while driving the rented car in a drunken condition. When sued for the PAI benefits, Gulf asserted an alcohol exclusion, but the trial court ruled that it was not enforceable because Leverance was not given a copy of the policy or a summary of its provision when renting this particular car.

The court of appeals, in a decision authored by Judge Brown, affirmed. First, the court reviewed the record and held that "the trial court correctly determined that Leverance did not have notice of the terms and conditions contained in the November 30 rental agreement" (¶ 11).

It next addressed whether Gulf could nonetheless rely on the alcohol exclusion despite the lack of notice. No Wisconsin case "speak[s] to whether an insurer can rely on policy exclusions when it fails to inform the insured of the policy's coverage and limitations" (¶ 12). Cases from other jurisdictions are split. The court of appeals decided, however, "that it would be unjust to permit an insurance company to accept premiums and then deny liability based on an exclusion of which the insured was not aware because the insurance company had not informed him or her of the exclusion or given him or her the means to ascertain its existence. Purchasers of insurance policies, like the one at issue here, commonly rely on the assumption that they are fully covered by the insurance that they buy.... We therefore hold that an insurer may not deny coverage based on limitations or exclusions in a policy, even if clearly stated, where the insured was not otherwise informed of such provisions" (¶ 15). (The court also held that Gulf was responsible for prejudgment interest based on an offer to settle that complied with Wis. Stat. section 807.01.)

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Motor Vehicle Law

OWI - Proof of Prior Convictions When Prior Record an Element of OWI Offense

State v. Van Riper, 2003 WI App 237 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)

The defendant went to trial on a charge of third offense driving with a prohibited alcohol concentration. Before trial, he stipulated that he had operated the vehicle and that he had a blood alcohol content in excess of the .08 limit that applied to him by virtue of his prior record. However, he contested the remaining element of the offense - the alleged two prior OWI convictions. This last element was tried to the court.

At the trial the state filed a certified Wisconsin Department of Transportation (DOT) transcript of the defendant's driving record, which reflected a prior Minnesota OWI conviction and a prior Wisconsin OWI conviction. The circuit court received the certified driving record as evidence and ruled that it established beyond a reasonable doubt the defendant's status as a repeat offender.

The court of appeals, in a decision authored by Judge Nettesheim, affirmed. The court held that the certified driving transcript was admissible evidence, and that it established the defendant's repeater status as an element of the prohibited alcohol concentration offense beyond a reasonable doubt. A certificate bearing the state of Wisconsin DOT seal and the signature of the Division of Motor Vehicles administrator accompanied the defendant's DOT driving record. Both Wisconsin case law and statutes support the admission at trial of this type of certified document as proof of the defendant's prior convictions.

OWI - Nonconsensual Blood Draw Following Breath Test

State v. Faust, 2003 WI App 243 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)

After the defendant was arrested for OWI, he was taken to the local police department, where he agreed to provide a sample of his breath for chemical analysis. The breath test reflected a blood alcohol content of .09, which was .01 above the prohibited alcohol concentration (.08) pertinent to the defendant as a third offender. The officer then advised the defendant that he would seek a blood test as well. The defendant refused to consent to the blood test, and a forced blood sample was subsequently drawn from him at the hospital. That sample reflected a blood alcohol level of .10.

The defendant filed a motion to suppress the blood test results, arguing that since the breath test had already established that his blood alcohol content exceeded the prohibited limit, there was no longer any exigency justifying a warrantless blood draw at the hospital. The circuit court granted the motion.

On this appeal neither party questioned that pursuant to Wisconsin's implied consent law, a law enforcement officer who has obtained a voluntary sample of breath, blood or urine for chemical testing may request that the driver give a second, different sample for testing. Rather, the specific issue on appeal was whether the exigent circumstances exception to the Fourth Amendment applies to a warrantless blood draw after a law enforcement officer has already obtained a valid, voluntary breath test.

In a majority decision authored by Judge Brown, the court of appeals held that "once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exist" (¶ 1). The court reached this conclusion by application of language in State v. Krajawski, 2002 WI 97, in which the supreme court instructed that "the exigency that exists because of dissipating alcohol does not disappear until a satisfactory, useable chemical test has been taken." Unless a law enforcement officer has some basis for believing that the first test is unreliable or unusable, the exigent circumstances permitting the officer to conduct a forcible blood draw no longer exist.

In this case the record contained no evidence that the police were concerned about the breath test being in any way unsatisfactory or unusable. For example, there was no evidence that the equipment was not working properly or that the defendant's breath sample was insufficient. Further, the officer acknowledged that he had no reason to believe that the defendant was under the influence of some other type of controlled substance, and that he did not request the blood test for the purpose of detecting the presence of controlled substances.

In a footnote, the court observed that there was no dispute in this case that the officer believed that the breath test was valid. It was also undisputed that the defendant's blood alcohol content exceeded the legal limit applicable to him. "We express no opinion as to whether exigent circumstances would remain if the defendant tested under the limit. We will leave it up to a future court to decide whether a result unfavorable to police is. . . not 'satisfactory and usable' such that exigent circumstances remain" (¶ 16 n.2).

Judge Nettesheim concurred, indicating that he disliked the result in this case but that he had no choice but to affirm, given the passage from Krajawski cited above.

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Municipal Law

Municipal Trials - Trials De Novo on Appeal

City of Pewaukee v. Carter, 2003 WI App 260 (filed 19 Nov. 2003) (ordered published 17 Dec. 2003)

Defendant Carter received two citations for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC). A trial was held in the municipal court. At the close of the city's case against Carter, his attorney moved for dismissal on the ground that the city had failed to meet its burden of proof. The court granted the motion. The city then appealed the municipal court's decision and requested a new trial before the circuit court pursuant to Wis. Stat. section 800.14(4). Carter brought a motion to dismiss the action, arguing that this statute did not countenance a new trial in the circuit court under the circumstances of this case. The circuit court agreed.

In a majority decision authored by Judge Anderson, the court of appeals affirmed. Section 800.14(4) provides that either party to a circuit court appeal from a municipal court decision may request that a new trial be held in the circuit court. Applying Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App. 1999), the court of appeals concluded that this statute does not permit a new trial before the circuit court when the case was judicially resolved, but not fully litigated on the merits, before the municipal court. "In order for a matter to be resolved on the merits, both parties must have exercised the prerogative to present or to rest their case. Carter's case was 'judicially resolved' (that is, resolved by a question of law) but was not fully litigated on the merits when the municipal court granted his motion to dismiss made immediately after the city rested. The circuit court properly rejected the city's appeal for a new trial" (¶ 21).

In footnote, the court observed that section 800.14(5) provides that if there is no request for a new trial under section 800.14(4), an appeal to the circuit court shall be based upon a review of the transcript of the municipal proceedings. Thus, the city had an opportunity to seek a meaningful review of the municipal court's judgment through an appeal on the record under section 800.14(5).

Judge Brown filed a dissenting opinion.

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Property

Land - Right of First Refusal - Triggering Event

Wilber Lime Products Inc. v. Ahrndt, 2003 WI App 259 (filed 25 Nov. 2003) (ordered published 17 Dec. 2003)

Wilber Lime Products (WLP) held a right of first refusal to 25 acres of a farm owned by Robert Ahrndt. After Ahrndt's death, his estate sold the entire farm, including the parcel, to Renee Ahrndt. The trial court held that this sale triggered WLP's right to purchase the 25 acres.

The court of appeals, in a decision written by Judge Peterson, affirmed and also held that WLP may purchase the 25 acres at its fair market value (not at its pro rata value). The case presented an issue of first impression over which the jurisdictions are split. The circuit court's "thoughtful opinion" drew upon a Michigan case that adopted a minority approach. The court of appeals adopted instead a "middle approach" taken from a Fourth Circuit case, which held that under such circumstances the "first refusal was triggered and that awarding specific performance was consistent with the parties' intent when they agreed to the right of first refusal" (¶ 11). Nonetheless, a "simple pro rata valuation" was unfair; thus, the court remanded for an allocation of the fair market value of the property burdened by the right of first refusal. As applied to this case the court agreed that the sale of the entire 180-acre farm triggered WLP's right of first refusal to the 25 acres because they were sold as part of a "package deal." On remand, the court is to determine the fair market value of the 25 acres in question, since "the acres being sold are not all of equal value."

Easements - Bona Fide Purchaser

Turner v. Taylor, 2003 WI App 256 (filed 25 Nov. 2003) (ordered published 17 Dec. 2003)

Arising out of a "complicated history of numerous land conveyances," this appeal "centers on an easement that was last recorded in 1959 in a deed for" a specific parcel of land. The court of appeals, in a decision written by Judge Cane, reversed the circuit court's grant of summary judgment and remanded the matter with directions. The court acknowledged that its holding might have the effect of "extinguishing a legitimate interest," but that Wis. Stat. section 706.09 contemplated that very possibility (¶ 28).

The court construed Wis. Stat. section 706.09, a "title curative" statute that "extinguishes interests or claims that are adverse to or inconsistent with merchantable title when the following circumstances are present. First, the estate or interest must be purchased for valuable consideration, i.e., the purchaser must be bona fide. Wis. Stat. § 706.09(1). Second, the adverse claim or interest must fall into one of the eleven listed situations. Wis. Stat. §§ 706.09(1)(a)-(k). Third, the adverse claim or interest must not be exempt from the statute. Wis. Stat. § 706.09(3). Fourth, the purchaser must not have had affirmative or express notice of the adverse claim or interest at the time the purchaser's interest developed in law or equity" (¶ 8) (citations omitted).

The "limited issue" on appeal concerns whether the language "any interest not of record within 30 years" includes easements (¶ 9). The court held that the statute does embrace easements, relying on its plain language as bolstered by public policy and the "overall scope" of Wis. Stat. chapter 706. See ¶¶ 10-12. The court also rejected arguments that its conclusion created a conflict with the statute of limitation for recorded easements, the conservation easement exemption from the recorded easement statute of limitation, and worked to expand the mineral rights interest recording provisions. Finally, the court's conclusion did not conflict with the State Bar of Wisconsin's Abstracting Standards.

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Prisoners

County Jail Inmates - Liability of County for Medical Costs

Meriter Hospital Inc. v. Dane County, 2003 WI App 248 (filed 26 Nov. 2003) (ordered published 17 Dec. 2003)

The sheriff brought a county jail inmate to the hospital when the inmate became very ill. Within three days, the sheriff informed the prosecutor that the inmate had been hospitalized. The state immediately moved to dismiss the charges against the inmate and the trial court granted the motion. The Department of Corrections (DOC) also canceled an order to detain the inmate. The DOC did issue an apprehension request, stating that the hospital was to contact the sheriff or the inmate's probation agent before releasing the inmate from the hospital. When that time came, however, the sheriff did not detain him. Hospitalization lasted for 34 days with medical bills amounting to $187,000, which the inmate is unable to pay.

The hospital filed suit, contending that Wis. Stat. section 302.38 requires the county to pay the medical bills incurred at the hospital. Summary judgment was entered against the county but only in the amount of $8,600. In a decision authored by Judge Dykman, the court of appeals affirmed.

Wis. Stat. section 302.38 provides that the prisoner is liable for the costs of medical and hospital care outside the jail or house of correction. However, if the prisoner is unable to pay the costs, the county shall pay the costs "in the case of persons held under the state criminal laws or for contempt of court." Both parties agreed that this statute controls, that the inmate was an indigent prisoner when admitted, and that the hospital may recoup from Dane County some of the costs of his care. They disagreed, however, as to whether the statute requires the county to pay for the costs incurred after the trial court dismissed the charges against the inmate.

The appellate court concluded that a patient either must be held under the state criminal laws or for contempt of court while receiving treatment in order for the county to be liable for medical costs. In this case the patient lost his status as a person "held under the state criminal laws" after the trial court dismissed the charges against him. Accordingly, the county is liable only for the first three days of his medical treatment.

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Separation of Powers

Continuance of Court Proceedings for Legislators While the Legislature is in Session - Wis. Stat. Section 757.13

State v. Chvala, 2003 WI App 257 (filed 13 Nov. 2003) (ordered published 17 Dec. 2003)

The defendant, a senator in the Wisconsin Legislature, was charged with extortion, misconduct in public office, and violations of campaign finance statutes. The issue on appeal was whether Wis. Stat. section 757.13 prohibits the trial court from scheduling the trial in this case before the last general business floor session of the legislature concludes.

The statute provides that "when a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms."

In a decision authored by Judge Vergeront, the court of appeals concluded that this statute violates the doctrine of separation of powers if it is construed to mandate the trial court to grant the defendant's request that the trial not be scheduled until the conclusion of the legislative session. This is so because, if construed as mandatory, the statute would unduly burden the judiciary or substantially interfere with the constitutional exercise of its authority over the matter of continuances and adjournments. However, the court concluded that there is a reasonable construction of the statute that would render it constitutional. It held that "the statute may be reasonably construed to allow a court to exercise its discretion on whether to grant or deny a continuance or adjournment when a witness, party, or party's attorney is a member of the legislature in session" (¶ 24).

"We therefore construe the statute to direct the courts to consider, in the sound exercise of their discretion, that a witness, party, or party's attorney is a member of the legislature in session when such person seeks a continuance or adjournment for that reason. In keeping with the recognition that the matter of continuances or adjournments for members of the legislature in session is encompassed within the constitutional powers of the legislature, and that legislators' attendance when the legislature is in session is critical to the ability of the legislature to carry out its constitutional powers, courts should carefully consider requests for continuances or adjournments; and courts should accommodate the schedule of the legislature consistent with the demands of fairness and efficiency in the particular case" (¶ 25).

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Torts

Damages - Future Health Care Expenses

Weber v. White, 2003 WI App 240 (filed 14 Oct. 2003) (ordered published 19 Nov. 2003)

A jury awarded the plaintiffs $5,000 for future health care expenses. In a decision authored by Judge Fine, the court of appeals reversed because the award was not supported by the evidence. Specifically, "there was no evidence from which the jury could infer that Mrs. Weber's future health-care expenses were reasonably certain to occur because Dr. Hanacik's testimony was fatally contradictory" (¶14). "Dr. Hanacik's express concession that he could not give an opinion to a reasonable degree of chiropractic certainty on Mrs. Weber's future health-care expenses negated his earlier testimony where he purported to give such an estimate. The jury's verdict attempting to divine the costs of future therapy was thus based on nothing but speculation, and the $5,000 award must be vacated" (¶15) (citation omitted).

Safe Place - Notice

Megal v. Green Bay Visitor & Convention Bureau, 2003 WI App 230 (filed 7 Oct. 2003) (ordered published 19 Nov. 2003)

The plaintiff slipped on a french fry while walking down the stairway at the Brown County arena. Since she could not prove that the defendants had either actual or constructive notice of the unsafe condition, she argued that her case fell within an "exception": "there [was] a reasonable probability the unsafe condition occurred because of the nature of the business and the manner in which it is conducted" (¶1). The circuit court granted summary judgment in favor of the defendants.

The court of appeals, in an opinion written by Judge Peterson, affirmed. The first issue was whether the plaintiff's argument raised an issue of fact or law, namely, "Did the proprietor know the french fry was on the stairs?"(¶13) The court held that this was a question of law because "there [was] no dispute about the happening of events" (¶14).

The court next addressed the "narrow" exception to the "ordinary notice rules" (¶21), under which an unsafe condition can arise from the "nature of the business and the manner in which it is conducted." The case law limited the exception "to the immediate area where the dangerous condition was created, namely, at the location of the self-service. In both [cited cases], the debris fell immediately adjacent to the area from which it came. Here, the french fry was well removed from the area where it was purchased" (¶21). If the exception extends to a french fry on the stairwell, the exception would "swallow" the rule (¶22). The court observed that the arena is about 61,000 square feet in area with seating for more than 5,000 people. Patrons may take food and drinks anywhere in the arena. Moreover, the exception would then extend to "stadiums, theaters, restaurants, [and] shopping malls" (¶23).

Judge Cane dissented for four reasons: "first, whether constructive notice of an unsafe condition may be charged to the arena is a fact question for the jury; second, the majority opinion rewrites the . . . exception; third, the majority opinion is improperly driven by policy considerations; and, finally, our standard of review requires reversal of summary judgment" (¶26).

Health Care Records - Defamation - Negligence

Hart v. Bennet, 2003 WI App 231 (filed 16 Oct. 2003) (ordered published 19 Nov. 2003)

Hart was enrolled in a physician assistant program when he was charged with several crimes against his girlfriend. He was eventually dismissed from the program but later sought reinstatement based, in part, on a positive letter written by Bennet, an employee at a center where Hart was enrolled in a domestic abuse program. After writing the positive letter, Bennet belatedly spoke with the victim, who painted a very different picture of Hart. Bennet then wrote another, extremely negative letter that was sent to Hart, the district attorney, and the physician assistant program. Hart's efforts to be reinstated were not successful and he began this lawsuit against Bennet. The circuit court dismissed all claims against the defendants for a variety of reasons.

In an opinion authored by Judge Vergeront, the court of appeals affirmed in part and reversed in part. First, the court held that summary judgment was properly granted in Bennet's favor on Hart's claim that the second letter violated his right to confidentiality of patient health care records under Wis. Stat. section 146.82. It was undisputed that Bennet himself was not a health care provider, as defined by Wis. Stat. section 146.81(1)(a) to (hp). "It [was] also not disputed that no licensed psychiatrist or psychologist is employed by the Center in the Men's Abuse Program and Bennet is not supervised by a licensed psychiatrist or psychologist" (¶15). The court rejected Hart's argument that the statute should be interpreted to mean "'a corporation that employs any providers'"; rather, "the more reasonable reading is that the corporation's shareholders are providers specified in paras. (a) to (hp)" (¶17) (emphasis in original).

Second, the court of appeals held that the trial court erred in dismissing the defamation claim. In particular, Bennet's recounting in the second letter of the victim's statements could give rise to defamation. It is not a defense that the tortfeasor "accurately repeated" someone else's defamatory statements (¶25). Since issues of fact remained, including whether Bennet had a conditional privilege, the claim was remanded for trial. Third, the court of appeals held that the trial court also erred in dismissing Hart's professional negligence claim, which stood apart from the issues raised under Wis. Stat. section 146.82.

Finally, the court of appeals held that the trial court properly dismissed Hart's claim for intentional infliction of emotional distress, because his own affidavit revealed no basis for finding "extreme and disabling emotional distress" (¶39).

Vicarious Liability - Franchisor

Kerl v. Rasmussen, 2003 WI App 226 (filed 9 Oct. 2003) (ordered published 19 Nov. 2003)

In June 1999 Pierce left his late-shift job at an Arby's restaurant and walked to a nearby Wal-Mart store, where he shot his former girlfriend (Kerl) and her fiancée (Jones), who worked there. Pierce then killed himself. Jones also died, but Kerl survived and suffered permanent disability. The plaintiffs sued the franchisor, Arby's, and its franchisee, the restaurant where Pierce worked, for negligent hiring, supervision, and retention (among other claims). The plaintiffs alleged that Arby's was vicariously liable for the franchisee's alleged negligence. The trial court granted summary judgment in Arby's favor.

The court of appeals, in an opinion written by Judge Dykman, affirmed. First, noting that the court of appeals had never before "addressed the issue of vicarious liability in the context of a franchise relationship" (¶10), it held that "in an action seeking to impose vicarious liability on a franchisor for the negligent actions of a franchisee, a franchisor's general right to control several aspects of a franchisee's operations is not enough. Rather, the decisive factor is whether the franchisor controls the daily operations of the franchisee such that it 'exercises a considerable degree of control over the instrumentality at issue'" (¶19).

On the facts of record, the court of appeals found that the plaintiffs failed to bring forth enough evidence to warrant a trial. For example, the licensing agreement did not give Arby's authority to "hire, fire, supervise or direct the supervision" of the franchisee's employees (¶25). Nor did the right to inspect the premises demonstrate "either a right of control or actual control" over the franchisee's supervision of its employees (¶28).

Judge Lundsten concurred with the result but did not join the majority's reasoning.

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