Buske v. Peckham
| Decision Date | 28 June 2012 |
| Docket Number | No. 2011AP650.,2011AP650. |
| Parties | Paige BUSKE, Plaintiff–Appellant, State of Wisconsin Department of Health and Family Services, Dodge County Human Services, and American Family Mutual Insurance Company, Involuntary–Plaintiffs, v. Karie PECKHAM, Defendant, David A. Miller and American Family Mutual Insurance Company, Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Jefferson County: William F. Hue, Judge. Affirmed.
Before SHERMAN and BLANCHARD, JJ., and CHARLES P. DYKMAN, Reserve Judge.¶ 1DYKMAN, J.
This is an appeal from a judgment dismissing Paige Buske's motor vehicle negligence claims against American Family Mutual Insurance Company. Buske raises an issue not presented to the circuit court. She asserts that the court erred by responding to a jury question without consulting the parties or their attorneys. We conclude that Buske forfeited the right to raise this issue by failing to make a post-trial motion asserting the alleged error. We elect to address the issue despite Buske's forfeiture. We conclude that the circuit court erred by responding to the jury's question without consulting the parties' attorneys. We also conclude that the error was harmless. We therefore affirm.
¶ 2 Buske sued David Miller, Karie Peckham, and American Family Mutual Insurance Company for personal injuries sustained when she was dragged by a vehicle driven by Miller, but owned by Peckham and insured by American Family. American Family defended the lawsuit against it by asserting that Miller was using Peckham's vehicle without Peckham's permission. The jury found that Miller was using Peckham's vehicle without Peckham's expressed or implied permission. Buske asserts that she is entitled to a new trial because, when the circuit court received the jury's written question: “What's the legal definition of implied permission?”, the court wrote back, without consulting with the parties' attorneys: “I cannot define this as a matter of law.” Buske did not challenge this alleged error by motion after verdict.
¶ 3 In Ford Motor Co. v. Lyons, 137 Wis.2d 397, 416–17, 405 N.W.2d 354 (Ct.App.1987), we concluded: “Initially, we turn to several issues raised at the conclusion of Lyons' brief which we deem waived [forfeited] because they were not raised in the motions after verdict.” We repeated this in J.K. v. Peters, 2011 WI App 149, ¶¶ 25–26, 337 Wis.2d 504, 808 N.W.2d 141, and explained that the reason for requiring alleged errors to be raised in motions after verdict is to permit trial courts to be given an opportunity to correct errors without costly and time-consuming appeals. Id., ¶ 27.
¶ 4 It is clear that Buske's failure to challenge the circuit court's alleged error in motions after verdict forfeited her issue. Buske claims that this issue was not forfeited because the circuit court did not offer the parties an opportunity to object to the court's answer to the jury's question because they were not present when the court answered the jury's question. That is factually correct, but it evades the question.
¶ 5 Buske asserts that Ollinger v. Grall, 80 Wis.2d 213, 223, 258 N.W.2d 693 (1977), holds that failure to object during trial can be corrected before the return of the verdict. Therefore, she argues, since she had no opportunity to object during trial, she did not waive or forfeit her right to raise the issue on appeal. Ollinger does not help Buske. The issue is not whether there were errors at trial or whether she could have raised her issue at trial. The issue is whether Buske's failure to assert the circuit court's error in motions after verdict forfeits her right to raise the issue on appeal. J.K. is unequivocal. Buske's failure constitutes a forfeiture. But we have discretion to address forfeited issues, and we exercise our discretion to do so here. See State v. Kaczmarski, 2009 WI App 117, ¶ 7, 320 Wis.2d 811, 772 N.W.2d 702.
¶ 6 Buske begins by arguing that four United States Supreme Court cases require that we reverse and remand for a new trial. However, Buske fails to recognize that holdings of the United States Supreme Court are binding on this court only when they address questions of federal law which govern the dispute before us. See State v. Gary M.B., 2003 WI App 72, ¶ 11, 261 Wis.2d 811, 661 N.W.2d 435. We will examine the four Supreme Court cases to see whether they interpret a federal legislative rule or the United States Constitution, before turning to Wisconsin precedent not cited by either party.
¶ 7 Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 82, 39 S.Ct. 435, 63 L.Ed. 853 (1919), reversed a civil judgment because the trial judge had answered a jury question in the absence of the parties and their counsel. Buske does not explain the constitutional or legislative rule violation involved in Fillippon, or which rule or constitutional provision the Supreme Court identified. We conclude that Fillippon may address federal civil procedure but nothing more. We decline to follow it.
¶ 8 Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), is a criminal case under the Prohibition Act. The Supreme Court cited Fillippon for the following: “Where a jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.” Id. at 588. The Court reversed Shields' conviction. Id. at 589. Shields gives no constitutional or legislative rule violation as a basis for its decision. We see no reason to import Shields into Wisconsin jurisprudence.
¶ 9 In Rogers v. United States, 422 U.S. 35, 38–40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), the Supreme Court cited Fillippon and Shields, but did not base its decision on their holdings. Instead, the Court found a violation of Federal Rule of Criminal Procedure 43, which guarantees a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” Id. at 39. Buske has not asserted that Wisconsin has adopted Federal Rule of Criminal Procedure 43 for use in civil trials, and in any event, we are not bound by federal rules of procedure not codifying constitutional principles. See Weber v. Weber, 176 Wis.2d 1085, 1093 n. 7, 501 N.W.2d 413 (1993).
¶ 10 Rushen v. Spain, 464 U.S. 114, 120 n. 4, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), cited Fillippon, Shields, and Rogers, and concluded that undisclosed instructions from judge to jury violated nonconstitutionally based rules of orderly trial procedure and that violations of Federal Rule of Criminal Procedure 43 can be harmless error. Rushen says nothing that requires us to consider it to be part of Wisconsin jurisprudence, and we do not.
¶ 11 Neither party cites Rowden v. American Family Insurance Co., 48 Wis.2d 25, 179 N.W.2d 900 (1970). In Rowden, the judge, court reporter, and bailiff went to the jury room for the court to answer questions the jury had asked. Plaintiff's counsel was present, though not in the jury room; defendant's counsel was not present. Id. at 29, 179 N.W.2d 900. The supreme court concluded that the judge's in-person communication with the jury was error. Id. at 31, 179 N.W.2d 900. “Unless there is a waiver, the trial court should not communicate in person with the jury in court or in the jury room in the absence of either counsel.” Id. While the judge in Buske's case did not go to the jury room to communicate with the jury, he did so by memo. The focus in Rowden was on the communication without counsel present, not the manner of communication.
¶ 12 We conclude that the circuit court erred by answering the jury's question without consulting with the parties' attorneys.1 But Rowden also held: Id. at 31, 179 N.W.2d 900. We therefore examine whether Buske was prejudiced by the circuit court's error.
¶ 13 Buske first asserts that a jury instruction which misstates the law is per se prejudicial. Therefore, we first determine whether the circuit court's answer—“I cannot define [implied permission] as a matter of law”—misstated Wisconsin law. We conclude that it did. Heaton v. Mountin, 2000 WI App 45, ¶ 16, 233 Wis.2d 154, 607 N.W.2d 322, defines “implied permission” as follows: “Implied permission arises when ... it is reasonable to infer the permittee can assume permission was granted by the named insured,” citing Arnold P. Anderson, Wisconsin Insurance Law 2–14, at § 2.3(a) (4th ed.1999).2 The circuit court erred by stating that it could not provide a definition of the phrase “implied permission” as a matter of law.
¶ 14 Even though the circuit court's instruction was incorrect, Buske is wrong in her belief that this entitles her to a new trial. In Hunt v. Clarendon National Insurance Service, Inc., 2005 WI App 11, 278 Wis.2d 439, 691 N.W.2d 904, we explained: “If a jury instruction ‘is erroneous and probably misleads the jury, we will reverse because the misstatement constitutes prejudicial error.’ ” Id., ¶ 9 (quoting Young v. Professionals Ins. Co., 154 Wis.2d 742, 746, 454 N.W.2d 24 (Ct.App.1990)). The question therefore becomes whether the erroneous instruction misled the jury.
¶ 15 We conclude that, given the question and the circuit court's non-answer, there is no probability that the judge's answer misled the jury. All the judge told the jury was that the judge could not provide an answer to the jury's question based on legal principles. The court did not refuse to give a necessary instruction, resulting in the jury not knowing that the defendant owed a different...
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