Gieseke v. State Dept. of Transp., Div. of Highways

• Decision Date: 12 May 1988
• Docket Number: No. 87-1056,87-1056
• Citation: 426 N.W.2d 79,145 Wis.2d 206
• Parties: Robert C. GIESEKE and Virginia L. Gieseke, Plaintiffs-Respondents, v. STATE of Wisconsin DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 79

426 N.W.2d 79

145 Wis.2d 206

Robert C. GIESEKE and Virginia L. Gieseke, Plaintiffs-Respondents, v. STATE of Wisconsin DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Defendant-Appellant.

No. 87-1056.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 12, 1988.

Opinion Released May 12, 1988.

Opinion Filed May 12, 1988.

Donald J. Hanaway, Atty. Gen., and Donald W. Smith, Asst. Atty. Gen., for defendant-appellant.

Benjamin Southwick, Richland Center, for plaintiffs-respondents.

Before DYKMAN, EICH and SUNDBY, JJ.

DYKMAN, Judge.

The State of Wisconsin, Department of Transportation, appeals from a $30,791.99 judgment entered in a condemnation action. The issues are whether the trial court abused its discretion by refusing to disqualify plaintiffs' attorney, and by allowing a videotape into evidence. Because we conclude the trial court properly exercised its discretion in both instances, we affirm.

FACTS

Robert and Virginia Gieseke own a farm located at the intersection of State Trunk Highway 80 and County Trunk Highway C in Richland County. As part of a highway improvement project, the state and county agreed to a land trade, in which Hwy. 80 north of the intersection became County Hwy. C and Hwy. C north of the intersection became Hwy. 80. The state also condemned about two and one-half acres of plaintiffs' land and awarded them $17,350. Plaintiffs appealed to the circuit court, pursuant to sec. 32.05(11), Stats. ¹ Plaintiffs' attorney was also the county's corporation counsel. The state moved to disqualify him because of a conflict of interest between the county and plaintiffs. The trial court concluded that the county was not a party to the action and had no monetary interest at stake, and therefore refused to disqualify plaintiffs' attorney.

At trial, plaintiffs attempted to introduce a videotape into evidence which showed five scenes of Robert Gieseke driving his tractor from his farm onto new Hwy. 80. The state objected. The trial court viewed the videotape without the jury. In one scene, a videocamera operator rode on the tractor as it pulled onto the highway. In the other four scenes the videocamera operator was in an automobile on Hwy. 80, traveling toward the Gieseke farm as the tractor pulled onto the highway. During the videotaping, plaintiffs' attorney would signal Gieseke to pull onto the highway when the automobile approached. The videocamera operator testified as to how the videotape was made and was subject to cross-examination. The trial court concluded that the videotape was relevant and had a proper foundation, and permitted plaintiffs to show it to the jury.

The jury found that the fair market value of the property was $155,625 before the taking and was $118,625 after the taking, making plaintiffs' loss $37,000. The trial court added litigation expenses, subtracted the $17,350 already received, and granted judgment on the verdict. The state appeals.

The state claims the trial court abused its discretion because it relied upon an incorrect view of the law in not disqualifying plaintiffs' attorney. A trial court abuses its discretion if it relies upon an incorrect view of the law. State ex rel. North v. Goetz, 116 Wis.2d 239, 245, 342 N.W.2d 747, 750 (Ct.App.1983).

The state argues that plaintiffs' attorney should have been disqualified because the county employs plaintiffs' attorney as its part-time corporation counsel. "Attorneys are obligated to avoid even the appearance of impropriety." City of Whitewater v. Baker, 99 Wis.2d 449, 453, 299 N.W.2d 584, 586 (Ct.App.1980). A trial court must intervene where the professional misconduct of an attorney affects the substantial rights of the parties. Ennis v. Ennis, 88 Wis.2d 82, 97, 276 N.W.2d 341, 347 (Ct.App.1979).

In Baker, we concluded that no finding of unethical behavior was necessary, and that the trial court "need only find the attorney has undertaken representation of a client whose interests are adverse to those of the former client." Baker, 99 Wis.2d at 453, 299 N.W.2d at 586.

In Harvey v. Harvey, 202 Wis. 553, 560, 231 N.W. 580, 583 (1930), the court pointed out that "[a]n attorney is an officer of the court charged by every rule of law and by the highest ethical consideration to keep inviolate the confidence of his client, and he should never under any circumstances make that relationship a basis of personal gain in another action against his client."

In these cases, the offending attorney had represented the adverse party with respect to the subject matter of the case then being tried. Here, plaintiffs' attorney never represented the state with respect to this highway condemnation. He cannot be disqualified because there is no conflict of interest affecting this case.

The state asserts that it is the county's interests, and not its own, that it seeks to protect. However, the state cannot object on behalf of the county. In Forecki v. Kohlberg, 237 Wis. 67, 295 N.W. 7 (1941), defendants objected to representation by one attorney of two plaintiffs because the plaintiffs had interests adverse to one another. The court held that only an attorney's former client is entitled to object when that attorney represents interests adverse to him or her. Id. at 75, 295 N.W.2d at 10.

The next issue is whether the trial court erred by admitting the videotape into evidence. We review a trial court's evidentiary rulings for abuse of discretion. Leathem Smith Lodge, Inc. v. State, 94 Wis.2d 406, 409, 288 N.W.2d 808, 810 (1980). " 'The admission of evidence touching upon the value of property appropriated in condemnation cases must be left largely to the discretion of the trial judge.' " Id. (citation omitted). "[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).

The purpose of plaintiffs' videotape evidence was to demonstrate that the farm was not as safe after the taking, and therefore less valuable. The trial court required plaintiffs to first lay a foundation for the videotape outside the presence of the jury. Plaintiffs' witnesses described the making of the videotape and were subject to cross-examination. Gieseke testified that he began pulling onto the highway at his attorney's signals. However, he testified that, when he began pulling out, he could not see the approaching car.

The state objected to the videotape's admission because: (1) it was admitted in violation of secs. 885.40 to 885.47, STATS; (2)² it was irrelevant; (3) it was highly prejudicial, misrepresentative and staged; and (4) it was "surprise" evidence, and hence unfairly prejudicial.

The interpretation of a statute is a question of law which we review de novo. State v. Haefer, 110 Wis.2d 381, 387, 328 N.W.2d 894, 897 (Ct.App.1982). The state argues that the notice provision of sec. 885.43, Stats., ³ applies to this videotape because it is "other evidence" within the meaning of sec. 885.42(2). ⁴ The state also argues that the trial court violated sec. 885.44(11) ⁵ because it made no written rulings on the state's objections and issued no order for editing of the videotape. These statutes are inapplicable. "Section 885.42, Stats., differentiates between depositions, other evidence and entire trial testimony and evidence recorded on videotapes. Sections 885.43 and 885.44 contain requirements for notice and procedure used for taking depositions. A deposition is a statement made under oath. Sec. 804.05(4), Stats." Id. at 387, 328 N.W.2d at 897. Plaintiffs did not introduce a videotape of a deposition. The requirements of secs. 885.43 and 885.44 do not apply to the videotape in this case.

The state contends the videotape was not relevant. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Section 904.01, Stats. "It is within the trial court's discretion to decide whether evidence is relevant to any issue in the case." State v. Horn, 126 Wis.2d 447, 457, 377 N.W.2d 176, 181 (Ct.App.1985), aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987). The trial court reasoned that the videotape tended to show the relative safety of the farm. The court concluded that this evidence went to the central issue of the case, which was the value of the farm after the taking. The trial court properly exercised its discretion. Hartung, 102 Wis.2d at 66, 306 N.W.2d at 20.

The state also asserts that the videotape was prejudicial because the state had no notice that the videotape was to be made, as required by sec. 885.43, Stats., and that therefore the videotape should have been suppressed because of surprise. We have already concluded that sec. 885.43 does not apply to this videotape. With regard to the issue of surprise, "[a]lthough sec. 904.03 does not list 'surprise' as a specific ground for excluding evidence, testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues." Lease America Corp. v. Ins. Co. of N. America, 88 Wis.2d 395, 400, 276 N.W.2d 767, 769 (1979). The state did not seek a continuance. The question of whether the prejudicial effect of evidence outweighs its probative value is "well within the trial court's discretion." Id. at 402, 276 N.W.2d at 770. The trial court discussed its videotape ruling during the hearing on motions after verdict:

[C]oncerning the video tape, I would be the first to acknowledge that that was a close evidentiary call for the Court. It's my feeling that the tape was presented essentially for what it was and it was not presented as some kind of an expert opinion that this is...