Schultz v. Darlington Mut. Ins. Co.

• Citation: 511 N.W.2d 879,181 Wis.2d 646
• Decision Date: 24 February 1994
• Docket Number: No. 91-2746-FT,91-2746-FT
• Parties: Valerie SCHULTZ, Gaylord Schultz and Joyce Schultz, Plaintiffs-Respondents-Petitioners, and Employers Health Insurance Company, a Domestic Insurance Company, Subrogated-Plaintiff, v. DARLINGTON MUTUAL INSURANCE COMPANY, a Domestic Insurance Company, and Theodore H. Tollackson, a/k/a Ted Tollackson, Defendants, Carroll E. Metzner, Appellant-Cross Petitioner. d
• Court: United States State Supreme Court of Wisconsin

Page 879

511 N.W.2d 879

181 Wis.2d 646

Valerie SCHULTZ, Gaylord Schultz and Joyce Schultz Plaintiffs-Respondents-Petitioners and Employers Health Insurance Company, a Domestic Insurance Company, Subrogated-Plaintiff, v. DARLINGTON MUTUAL INSURANCE COMPANY, a Domestic Insurance Company, and Theodore H. Tollackson, a/k/a Ted Tollackson, Defendants Carroll E. Metzner, Appellant-Cross Petitioner. ^d

No. 91-2746-FT.

Supreme Court of Wisconsin.

Argued Nov. 1, 1993.

Decided Feb. 24, 1994.

For the appellant cross-petitioner there were briefs by Carroll Metzner, David J. Pliner and Bell, Metzner, Gierhart & Moore, S.C., Madison, and oral argument by Steven J. Caulum.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals reversing in part an order of the circuit court for Lafayette county, William D. Johnston, Judge, which imposed plaintiffs' costs and Lafayette county's costs upon mistrial against defendant's attorney, Carroll Metzner. 173 Wis.2d 907, 499 N.W.2d 300. ¹ The issue before this court is whether the court of appeals correctly determined that the circuit court erroneously exercised its discretion in awarding plaintiffs' costs and Lafayette county's costs against Attorney Metzner. We conclude that the circuit court's exercise of discretion was not erroneous. Accordingly, we reverse that portion of the court of appeals' decision that reverses the circuit court's award of plaintiffs' costs against Metzner. We affirm that portion of the court of appeals' decision that affirms the circuit court's award of Lafayette county's costs against Metzner.

The underlying action in this case was a claim by the plaintiffs, Valerie Schultz, Gaylord Schultz and Joyce Schultz, against defendant Theodore Tollackson for damages arising from injuries sustained in an automobile accident. At trial, John Walsh and John Mitby represented the plaintiffs; Carroll Metzner and Barrett Corneille represented the defendants.

On the second day of trial, Walsh was examining one of plaintiffs' witnesses, Dr. Keith Sperling. During this testimony, Walsh interrupted Dr. Sperling and stated, "Excuse me, your Honor. There just seems to be a great deal of activity by the defendants during this doctor's testimony." There is a dispute in the record regarding where Walsh was physically located when he made this remark. Both Walsh and Metzner asserted that when Walsh made this remark, he was standing and pointing in the direction of the table at which defense counsel was seated. However, Mitby believed Walsh had been sitting and circuit court Judge Johnston stated his recollection was that Walsh had been sitting.

In response to Walsh's remark, Judge Johnston replied:

That's correct. Would the bailiff, to regulate this because we're having people coming in and out, in and out and it's become distracting, would you see that no persons come in or out during testimony and let them in at an appropriate break because we're now having so much traffic that I'm noticing the jury starting to follow that traffic movement as well. The jury needs to be undistracted as it relates to their hearing this testimony. So the bailiff and the folks who are here, if you're going to go out, you're going to stay out and you come back in during a sufficient break, but I'm not going to have traffic in and out. And this applies to all people. So counsel, if you would, see, please, that that does not occur and the bailiff make sure, then, that no persons come in or out except at an appropriate time, and that would be when testimony is completed.

After this response, Walsh continued with the direct examination of Dr. Sperling. Shortly thereafter, an investigator assisting Metzner gave him a note stating that the reason the Tollacksons had been going in and out was that Mrs. Tollackson was experiencing chest pains. The note added that she had gone to the hospital. Upon reading this, Metzner interrupted Dr. Sperling's testimony and stated:

If it please the court, I'd like to interrupt for just a second. Because of the court's admonition, I think in fairness to us the record should show that Mrs. Tollackson has been taken to the hospital with chest pains, and that is the activity that you saw in the courtroom.

At this point, Judge Johnston sent the jury out of the room. He then expressed disappointment in Metzner, and added his concern that providing this information to the jury raised a potential for prejudice. Judge Johnston then asked counsel to consider how to address the matter to the jury and called a recess.

After the recess, plaintiffs moved for a mistrial with costs. Walsh's co-counsel, Mitby, stated he believed that a curative instruction was not possible. Metzner then stated that in his opinion, the court had criticized his clients and the jury had a right to know why the Tollacksons had been coming in and going out of the courtroom. In response to Metzner's statement, Judge Johnston replied that his comments had been addressed to everyone.

Judge Johnston then granted the mistrial. In doing so, he reasoned that Metzner's actions created a situation in which the jury would be concerned about Mrs. Tollackson's health. Because the jury would be wondering about Mrs. Tollackson's health for the remainder of the trial, he concluded that a fair and impartial trial was no longer possible. Judge Johnston added that Metzner knew that by proceeding in this way, Metzner had deprived the court of an opportunity to handle the situation in a way that would not have raised concerns about potential prejudice.

Three weeks later, Judge Johnston conducted a hearing on the award of costs. Judge Johnston decided to award the plaintiffs' costs and the county's costs against Metzner personally, concluding that Metzner had precipitated the mistrial.

Judge Johnston detailed the reasoning supporting his decision. He began by responding to Metzner's assertions that Walsh's earlier statement had precipitated Metzner's remark. Judge Johnston stated that at this point in the trial, his own attention was focused on the witness and the jurors, not on counsels' tables. Prior to Walsh's remark, Judge Johnston "noticed a lot of activity going in and out of the back door," which was in his line of vision. He added that the jurors were becoming distracted by this activity, and were no longer focusing their attention on the witness. Thus, when Walsh made his request, Judge Johnston responded by asking the bailiff to regulate this activity, and by asking counsel to see that it did not continue. Judge Johnston added that he did not refer to either party. He concluded that Walsh's statement and his own response was a "minor point" that was "handled without problem."

Judge Johnston then moved to a discussion of Metzner's remark about Mrs. Tollackson's health. Judge Johnston offered a detailed explanation of the impact Metzner's statement had on the jury:

They were stunned. They were shocked. Some of them presented with open-mouths at that news. Started to look around at what was going on. In fact, I noted that when I excused the jury, when I was presented with that, a number of them appeared to be shaken to the point [that they began to walk off with their note pads although they had been instructed to leave them]. This was a severe blow. It was something that impacted on the jury.

Later, Judge Johnston added, "And I had no doubt, as I observed that jury and their reaction to that statement, that they all were shocked, that they were ... deeply affected by that information."

Judge Johnston also explained why Metzner's statement had such a strong impact on the jury. He stated that Metzner had presented the information in a tone that was "strong," "challenging" and "belligerent" rather than informative. He added that the information was presented "in such a manner [as] to make it an emergency type situation." In addition to tone, the nature of the information presented was serious enough to create the dramatic response by the jury, according to Judge Johnston. He postulated that when Metzner stated that Mrs. Tollackson had "chest pains," the jury likely thought she had a serious health problem. At another point, Judge Johnston stated that the information was presented "almost like a bombshell."

Next, Judge Johnston explained that the information presented injected an unrelated matter, concern for Mrs. Tollackson's health, into the trial. He was concerned that the jurors would not be able to put that information out of their minds; thus, Mrs. Tollackson's health had the potential to "become a major event that pervades and permeates the whole proceeding from that point forward." He also believed that jury sympathy, dread or concern was a potential source of prejudice. Therefore, he concluded that an impartial trial was no longer possible.

Finally, Judge Johnston pointed out that when Metzner discovered Mrs. Tollackson was having chest pains, he should have asked for a conference with the judge. Judge Johnston stated that had this occurred, he could have handled the situation in a different manner.

The court of appeals affirmed the order granting a mistrial as well as that portion of the order that required Metzner to pay Lafayette county's costs. However, the court of appeals reversed that portion of the order that required Metzner to pay the plaintiffs' costs. ² The court of appeals stated that the circuit court had abused its discretionary power to assess costs because its decision was grounded on a mistaken view of the evidence. Relying on Walsh's own statement that he had gotten up and pointed in the direction of the defendants, the court of appeals stated that the circuit court's recollection that Walsh had been sitting, if intended to be a finding of fact, was clearly erroneous. The court stated that Walsh's statement had to be given greater weight, because the circuit court judge had previously stated that he was not watching counsels'...