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Abrahamson criticizes Wisconsin Supreme Court’s “untoward dismissal” of fully briefed and argued case, offers advice on preserving issues

Maya Elaine Smith v. Jeff Anderson, 2017 WI 43, dismissing a petition for review of 366 Wis. 2d 808, 874 N.W.2d 347 (Ct. App. 2016)(unpublished); case activity (including briefs)

Recently, SCOW has marched ahead and decided issues that the parties did not properly preserve or brief–to the detriment of indigent defendants.  Recall what happened a few weeks ago in State v. Denny and earlier in State v. Sulla and State v. Smith. But in this case, after briefing and argument by the parties and an amicus curiae, a 3-justice majority (Ziegler and RG Bradley didn’t participate) showed remarkable restraint. It issued a per curiam opinion dismissing a petition for review as improvidently granted because nobody preserved an issue the court of appeals declined to decide. The upshot? It appears that SCOW has rescued West Bend Mutual Insurance Company from an appellate blunder and possible defeat. The blunder presents a teachable moment for appellate lawyers trying to preserve issues for supreme court review.

Here’s Justice Abrahamson’s take on what happened and advice for how to handle the situation where the court of appeals decides some, but not all, of the issues briefed to it.

¶14 SHIRLEY S. ABRAHAMSON, J.   (dissenting).  This court seriously errs in dismissing this petition for review as improvidently granted.  It errs because the parties and the public need a decision from this court on the important issues the parties presented, briefed, and argued in this court.
¶15 This dismissal embodies regrettable appellate practice given the circumstances of this case and the court’s scanty workload.

¶16 This dismissal has unnecessarily caused these parties and the amicus curiae expense and delay without giving the parties, the amicus, or the public the benefit of a decision on important issues.
¶17 The parties have been awaiting a final appellate decision for more than two years since the circuit court issued its judgment.  Obviously, they have incurred substantial expenses.  The circuit court entered judgment on November 25, 2014.  The court of appeals issued its decision on December 22, 2015.  This court granted R&B Construction’s petition for review on April 6, 2016.  R&B Construction, Inc., West Bend Mutual Insurance Company, and Wisconsin Defense Counsel Inc., as amicus curiae, all filed briefs in this court.  This court held oral argument on October 18, 2016.
¶19 We granted review of these [insurance] issues because they are law-developing. Resolving the first issue relating to third-party practice would have given this court the opportunity to explain the proper application of the four-corners rule in duty-to-defend cases involving third-party complaints and answers.

¶20 The case also presents yet another important opportunity to educate litigants and ourselves about preserving issues for review in this court. We have missed a good opportunity to once again clarify the rules of appellate practice.

¶21 Furthermore, the court’s case load is scanty. We probably will decide fewer than 55 cases from September 2016 through June 2017 (up from fewer than 45 cases from September 2015 through June 2016). ¶

¶22 Here are the circumstances leading to the untoward dismissal in the instant case.

¶23 The court of appeals held in favor of West Bend Insurance on coverage, a dispositive issue. As a result, the court of appeals need not, and did not, decide whether certain policy exclusions precluded a duty to defend. Because West Bend Insurance failed to assert in this court that its duty to defend was precluded by policy exclusions, an argument that would have supported the decision of the court of appeals, West Bend Insurance waived (forfeited) its right to have this court decide the policy exclusion issue as a matter of right.

¶24 To preserve the issue of the effect of the policy exclusions for review as a matter of right in this court, West Bend Insurance was required to present the issue of policy exclusions to this court. It could have accomplished this goal in one of two ways.

¶25 West Bend Insurance could have presented the issue of policy exclusions to this court in its response to R&B Construction’s petition for review. Wisconsin Stat. § (Rule) 809.62(3)(d) provides: “If filed, the response may contain any of the following: . . . (d) Any alternative ground supporting the court of appeals result or a result less favorable to the opposing party than that granted by the court of appeals.”  West Bend did not present the issue of policy exclusions in its response to R&B Construction’s petition for review.

In footnote 4 to this paragraph, Justice Abrahamson adds:

Michael S. Heffernan gives the following practice tip in Appellate Practice and Procedure in Wisconsin § 23.13 (7th ed. 2016), regarding a response to a petition for review:

It is particularly important to file a response if the respondent believes that there are alternative grounds to support the underlying decision, or if there are issues that need to be decided other than those relied on by the court of appeals. See State v. Smith, 2016 WI 23, ¶41, 367 Wis. 2d 483, 878 N.W.2d 135, petition for cert. filed (U.S., Oct. 10, 2016 (No. 16-6409); see also Wis. Stat. Ann. § 809.62(3), Judicial Council Committee cmt.——2008. West Bend Insurance did not have to file a cross-petition. It had no adverse decision from which to cross-petition. See Wis. Stat. § (Rule) 809.62(7); In Interest of Jamie L., 172 Wis. 2d 218, 232–33, 493 N.W.2d 56 (1992); Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 23.13 (7th ed. 2016). West Bend Insurance did not file a cross-petition.

¶26 Alternatively, West Bend Insurance could have asserted and discussed the issue of policy exclusions in its brief in this court. West Bend Insurance’s brief in this court did not present or develop this issue of policy exclusions.

¶27 Having taken neither alternative course of action, West Bend Insurance has not preserved this issue for review as a matter of right.

¶28 In light of West Bend Insurance’s failure to preserve the issue of policy exclusions as a matter of right, the court has three alternative courses of action it might take in the instant case: (1) The court may review the issue; (2) the court may decide West Bend Insurance has waived (forfeited) the right to a review of the issue; or (3) the court may remand the issue to the court of appeals for a review of the decision of the circuit court on the issue.

¶29 Holding West Bend Insurance to have waived (forfeited) the application of its policy exclusions is especially apt in the instant case. The court should not decide the issue without briefs.7 Nor should the court examine the briefs filed in the court of appeals on appeal from the circuit court in lieu of requiring briefs here. The order granting the petition for review explicitly states that if a party wishes to rely on any materials in its brief to the court of appeals, the material has to be restated in the brief filed in this court. Nor should the court order additional briefs here or remand the issue to the court of appeals. West Bend Insurance was fully cognizant of the policy exclusion issue and obviously decided not to raise it in this court. There is no compelling reason to give West Bend Insurance another kick at the can.

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