author: KESSLER, J.

text:
    Jerome J. Miezin and Patricia Miezin, Plaintiffs-Appellants, v. Midwest Express Airlines, Inc., Defendant-Respondent, ABC Insurance Company, Defendant.
    Court of Appeals

      No. 2004AP868.

      Submitted on briefs March 1, 2005.

      Decided May 17, 2005.

    2005 WI App 120
    (Also reported in 701 N.W.2d 626.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of James P. Brennan of Brennan & Collins of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Eric J. Van Vugt and Joshua B. Fleming of Quarles & Brady LLP of Milwaukee and Clem C. Trischler of Pietragallo, Bosick & Gordon of Pittsburgh, Pennsylvania.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review denied 8-25-05.

   KESSLER, J.

¶ 1. At issue in this case is whether a plaintiff can pursue a state common-law negligence claim alleging that an airline negligently failed to warn passengers about the dangers of deep vein thrombosis ("DVT"), or whether such claims are preempted by federal law. Jerome J. Miezin and Patricia Miezin (collectively, "Miezin") appeal from a judgment dismissing their state common-law negligence and loss of consortium claims, respectively, against Midwest Express Airlines, Inc., ("Midwest"). Miezin argues the trial court erroneously granted summary judgment in Midwest's favor after concluding that Miezin's state common-law negligence claim is preempted by federal law and, in the alternative, that Midwest had no duty under Wisconsin common law to warn airline passengers about the dangers of DVT.

¶ 2. We affirm the judgment because we conclude that Miezin's claim, based solely on a state common-law negligence theory, is impliedly preempted by the Federal Aviation Act of 1958, 49 U.S.C. § 40101, et seq. (previously codified at 49 U.S.C. App. § 1301, et seq.) ("Federal Aviation Act"). Because we affirm on that ground, we do not consider whether Miezin's claim is also expressly preempted by the preemption provision of the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1) (previously codified at 49 U.S.C. App. § 1305(a)(1)), or whether, in the absence of preemption, Wisconsin common law would impose on airlines a duty to warn their passengers about the dangers of DVT. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground"). Finally, because Miezin does not argue there is any independent basis upon which Patricia's claim for loss of consortium would survive once the state common-law negligence claim is dismissed, we affirm, without discussion, the dismissal of Patricia's claim.

BACKGROUND

¶ 3. The background facts that formed the basis of Miezin's personal injury claim are largely undisputed. Jerome Miezin traveled on a Midwest flight from Milwaukee to Boston on October 15,1999, and returned on October 23. Both flights were less than three hours long.

¶ 4. After his return to Milwaukee, Miezin experienced pain in his leg. On October 27, Miezin was diagnosed with DVT, a clotting condition that develops in the deep veins of the lower extremities. Doctors also determined that Miezin has a "Factor V Leiden" genetic condition which predisposes him to blood clots. It is undisputed that Miezin did not know he had this genetic condition until he was diagnosed with DVT, which occurred after he completed the flights.

¶ 5. Miezin filed this action, alleging that he has suffered permanent disability and disfigurement as a result of DVT, which he claimed he developed because Midwest negligently failed to advise Miezin that:

before and during the flights from Milwaukee to Boston and Boston to Milwaukee he should get up out of his seat and move around the cabin of the aircraft and exercise his toes and feet and lower legs and upper legs to promote circulation in those body parts and in failing to advise him to drink liquids and wear loose clothing and avoid stockings or socks with tight elastic below the knees and in failing to advise him to get up and walk about at least once an hour and failing to advise him to massage his toes, feet, ankles, lower legs and knees and exercise his calf muscles to stimulate blood circulation and in failing to advise him to exercise during his flights to promote circulation and... was otherwise negligent in failing to provide proper conditions and atmosphere for [Miezen].

In other words, as Miezen explains in his brief, he alleged that Midwest failed to inform passengers about the dangers of DVT arising from airline travel.

¶ 6. Midwest moved for summary judgment. The trial court granted the motion, concluding that Miezin's state common-law negligence claim is preempted by the Federal Aviation Act and, in the alternative, that Midwest had no duty under Wisconsin common law to warn airline passengers about the dangers of DVT. This appeal followed.

STANDARD OF REVIEW

¶ 7. We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

DISCUSSION

¶ 8. Miezin argues that his state common-law negligence claim is not preempted by federal law and that under Wisconsin's common law, Midwest had a duty to warn its passengers about the dangers of DVT. We conclude that Miezin's claim is impliedly preempted by the Federal Aviation Act and, therefore, affirm the judgment.

¶ 9. "A fundamental principle of the Constitution is that Congress has the power to preempt state law." Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (citation omitted). However, analysis of preemption claims begins with the presumption that "Congress does not intend to supplant state law." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).

¶ 10. The United States Supreme Court has recognized three methods by which Congress can exercise its preemptive power: express preemption, implied field preemption, and implied conflict preemption. Express preemption occurs when Congress enacts an express provision for preemption in any congressional act. See Crosby, 530 U.S. at 372. Under implied field preemption, Congress can impliedly preempt state law if "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (internal quotation marks and citations omitted). Finally, implied conflict preemption will be found "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (internal quotation marks and citations omitted).

¶ 11. Numerous courts have addressed whether the Federal Aviation Act impliedly preempts state common-law negligence claims brought by airline passengers. In one such case, the Third Circuit Court of Appeals found implied federal preemption of "the entire field of aviation safety." See Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3d Cir. 1999). At issue in Abdullah was an allegation that American Airlines was liable under territorial (Virgin Islands) common law for injuries passengers sustained when their aircraft encountered severe turbulence. Id. The passengers alleged that the pilot and the flight crew were negligent in failing to avoid the turbulent conditions and to "give warnings reasonably calculated to permit plaintiffs to take steps to protect themselves." Id. (footnote omitted).

¶ 12. The court concluded that "the [Federal Aviation Act] and relevant federal regulations establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions." Id. at 367. The court explained: "[B]ecause of the need for one, consistent means of regulating aviation safety, the standard applied in determining if there has been careless or reckless operation of an aircraft, should be federal; state or territorial regulation is preempted." Id. at 372. Nonetheless, the plaintiffs were not barred from pursuing state and territorial law remedies based on allegations that federal standards of care were violated. See id. at 375. The court held: "Even though we have found federal preemption of the standards of aviation safety, we still conclude that the traditional state and territorial law remedies continue to exist for violation of those standards." Id.

¶ 13. Not all courts have taken such a broad view of federal preemption of air safety standards. Indeed, some have explicitly declined to follow Abdullah. See, e.g., Sakellaridis v. Polar Air Cargo, Inc., 104 F. Supp. 2d 160 (E.D.N.Y. 2000) (recognizing that the Second Circuit, in contrast to the Third Circuit, has held that the Federal Aviation Act does not preempt state common-law claims). The Seventh Circuit Court of Appeals has not considered Abdullah, although two district court decisions have observed that the Seventh Circuit has acknowledged broad preemption by the Federal Aviation Act in other contexts. See Deahl v. Air Wisconsin Airlines Corp., No. 03C5150, 2003 WL 22843073, at *2 (N.D. Ill. Nov. 26, 2003) ("[TJhere is dicta, in the Seventh Circuit, stating tort claims based on inadequate equipment are preempted.") (citing Bieneman v. City of Chicago, 864 F.2d 463, 471 (7th Cir. 1988)); In re Lawrence W. Inlow Accident Litigation, No. IP 99-0830-C H/G, 2001 WL 331625, at *15 n.11 (S.D. Ind. Feb. 7, 2001) ("The Seventh Circuit has not addressed [Federal Aviation Act] preemption recently, although it has acknowledged the broad preemptive scope of the [Act] in a different context.") (citing Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 404 (7th Cir. 1974)).

¶ 14. Although there are- conflicts among courts in the general application of implied preemption by the Federal Aviation Act, the only two cases of which we are aware that involved DVT warnings to airline passengers found implied preemption of state common-law standards of care. See Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004); and In re Deep Vein Thrombosis Litigation, No. MDL 04-1606 VRW| et al., 2005 WL 591241 (N.D. Cal. Mar. 11, 2005).

¶ 15. Witty was the first case to address the preemption issue with respect to DVT warnings, and involved facts similar to those presented in the instant case. Milton Witty claimed that he developed DVT while on a Delta flight from Louisiana to Connecticut. 366 F.3d at 381. He alleged that Delta negligently failed to warn passengers about the risks of DVT, provide adequate leg room and allow passengers to exercise their legs. Id. at 382. With respect to the failure-to-warn allegation, the Fifth Circuit concluded that "field preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives." Id. at 384. "Congress intended to preempt state standards for the warnings that must be given airline passengers." Id. at 383.

¶ 16. Witty's analysis was based on its recognition that there are numerous federal regulations affecting warnings and instructions that must be given to airline passengers. See id. at 384. The regulations require, for example, "no smoking" placards, "fasten seat belt" signs and specific oral briefings that must be provided on each flight. Id. Based on these regulations, Witty held:

[F]ederal regulatory requirements for passenger safety warnings and instructions are exclusive and preempt all state standards and requirements. Congress enacted a pervasive regulatory scheme covering air safety concerns that includes regulation of the warnings and instructions that must be given airline passengers ....
Allowing courts and juries to decide under state law that warnings should be given in addition to those required by the Federal Aviation Administration would necessarily conflict with the federal regulations. In this case, the conflict is more than theoretical, since Witty claims that a DVT warning should have been given, while federal regulations do not require such a warning. And any warning that passengers should not stay in their seats, but should instead move about to prevent DVT, would necessarily conflict with any federal determination that, all things considered, passengers are safer in their seats ....
Moreover, warnings by their nature conflict, in the sense that the import of one warning is diluted by additional warnings that might be imposed under state law....

Id. at 385 (footnotes and citations omitted).

¶ 17. The court in DVT Litigation essentially agreed with Witty's conclusion and analysis. 2005 WL 591241, at *10-13. The court noted that " 'the whole tenor of the [Federal Aviation Act] and its principal purpose is to create and enforce one unified system of flight rules.'" Id. at *12 (citing United States v. Christensen, 419 F.2d 1401, 1404 (9th Cir. 1969)) (emphasis supplied by DVT Litigation). "[T]o this end, the [Federal Aviation Administration] Administrator has enacted a large number of federal regulations governing the warnings and instructions that must be given to airline passengers." DVT Litigation, 2005 WL 591241, at *12. The court added:

Moreover, state-law suits based upon a failure to warn of DVT would most certainly lead to non-uniformity (anathema to the [Federal Aviation Act]), for each time a state jury sustains a failure to warn challenge, airline defendants would be forced to amend their pre-flight warnings to avoid future liability. Moreover, such state law verdicts could be inconsistent amongst themselves. For example, a jury in Arkansas might find that an airline's oral warning of DVT risks insufficient because a reasonably prudent airline would have displayed a video warning demonstrating potential preventative measures is required. A jury in California, however, could find that an oral warning before take-off is sufficient while a jury in Texas could find that an oral warning of DVT prior to take-off is insufficient unless repeated at least three hours into the flight. Juries in the other forty-seven states could reach similar or drastically different results when presented with the same question.

Id. at *13.

¶ 18. Like the court in DVT Litigation, we agree with the reasoned and well-articulated analysis offered in Witty. "[Implied f]ield preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives." Witty, 366 F.3d at 384. The pervasive regulations concerning the warnings that must be given to airline passengers indicate that "Congress left no room for the States to supplement" these regulations. See Cipollone, 505 U.S. at 516. If state requirements for announcements to airline passengers were not impliedly preempted by the Federal Aviation Act, each state would be free to require any announcement it wished on all planes arriving in, or departing from, its soil. It is hard to see how the amalgam of potentially conflicting messages promoting competing states' interests would not stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See Gade, 505 U.S. at 98 (internal quotation marks and citations omitted). Thus, on the narrow topic before us— warnings that are given to airline passengers — we conclude that the Federal Aviation Act impliedly preempts the application of state common-law negligence standards to failure-to-warn claims like that presented here.

¶ 19. In addition, like the court in Witty, "we need not decide whether a state claim for failure to warn passengers of air travel risks is entirely preempted, or, as [the Third Circuit] held, is preempted to the extent that a federal standard must be used but that state remedies are available." See 366 F.3d at 385 (footnote omitted). This is because Miezin, as he explicitly recognizes in his brief, is not claiming that Midwest violated any federal standards in failing to give a warning about DVT. Because Miezin's claim is based solely on the alleged breach of state common-law standards of care, which we conclude are impliedly preempted in this case, we affirm the grant of summary judgment in Midwest's favor.

By the Court. — Judgment affirmed.

       Miezin has not alleged that the airline violated a federal standard of care, and we therefore do not address whether he could bring a state law action alleging breach of a federal standard of care. See ¶ 19 of this opinion.

       The express preemption provision of the Airline Deregulation Act of 1978 provides:
      Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

        See 49 U.S.C. § 41713(b)(1). Miezin cites several cases that addressed whether specific incidents that occurred on airplanes were "services" under the Airline Deregulation Act. Because we decide this case based on implied preemption, we do not address whether the Airline Deregulation Act might also expressly preempt Miezin's claims.

       According to one of Miezin's experts, Factor V Leiden is present in four to six percent of the general population.

       Miezin also argues that he has established all of the factual elements of his negligence claim. Because we affirm the judgment on federal preemption grounds, we do not address Miezin's factual argument or the discovery materials offered in support of Miezin's claim.

       "We may cite to unpublished opinions from other jurisdictions." Burbank Grease Seims, LLC v. Sokolowski, 2005 WI App 28, ¶ 22 n.10, 278 Wis. 2d 698, 693 N.W.2d 89, (citing Predick v. O'Connor, 2003 WI App 46, ¶ 12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1). We do so in this opinion because we have examined several federal district court cases for their persuasive value.

       In In re Deep Thrombosis Litigation, the court appeared to base its holding solely on implied field preemption, rather than on both implied field and implied conflict preemption. See No. MDL 04-1606 VRW et al, 2005 WL 591241, *14 (N.D. Cal. Mar. 11, 2005).

       We conclude that Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004), is directly on point, and decline to address other cases discussed by the parties that involve incidents that took place during international travel, which are governed under what is commonly referred to as the Warsaw Convention, see 49 U.S.C. § 40105, and cases involving the potential application of the express federal preemption provision of the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1) (previously codified at 49 U.S.C. App. § 1305(a)(1)).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Tyler Dorbritz and Katie Dorbritz, Plaintiffs-Respondents, v. American Family Mutual Insurance Company, Defendant-Appellant, Prudential Property and Casualty Company, Defendant-Respondent, Travelers Indemnity Company of Illinois, Lisa Habersbrunner, Margaux Lember and Robert Lember, Defendants.
    Court of Appeals

      No. 2004AP1896.

      Submitted on briefs April 6, 2005.

      Decided May 17, 2005.

    2005 WI App 154
    (Also reported in 702 N.W.2d 406.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James T. Murray, Jr., of Peterson, Johnson & Murray, of Milwaukee.
    On behalf of the plaintiffs-respondents, Tyler Dor-britz and Katie Dorbritz, the cause was submitted on the brief of Paul M. Erspamer, of Lisko & Erspamer, S.C., of Waukesha.

      On behalf of the defendant-respondent, Prudential Property and Casualty Company, the cause was submitted on the brief of Daniel J. Jungen, of Law Offices of Stilp & Cotton, of Brookfield.
    Before Fine, Curley and Kessler, JJ.
   FINE, J.

¶ 1. American Family Mutual Insurance Company appeals from the trial court's grant of summary judgment in favor of Tyler and Katie Dorbritz. The trial court concluded that Margaux Lember, the driver who hit Tyler Dorbritz's car, was covered under a personal liability umbrella policy issued by American Family. American Family claims that: (1) the umbrella policy does not cover Lember, and (2) the umbrella policy is secondary to a personal liability policy issued to Lember. We affirm.

I.

¶ 2. Tyler Dorbritz was seriously injured when a car, driven by Margaux Lember and owned by Lisa Habersbrunner, hit his car. It is undisputed that Lem-ber had Habersbrunner's permission to drive the car. See, e.g., Wis. Stat. § 632.32(5)(a) (policy may limit coverage to "use that is with the permission of the named insured or an adult member of that insured's household").

¶ 3. Several insurance policies were potentially in effect at the time of the accident. Lember had a personal liability policy with Prudential Property and Casualty Company, with a per-person liability limit of $100,000. Habersbrunner had a personal liability policy with American Family, with a per-person liability limit of $100,000. Habersbrunner's parents, Albert and Mary Habersbrunner, also listed Lisa Habersbrunner on a special endorsement to their personal liability umbrella policy issued by American Family. The umbrella policy had a bodily injury limit of $1,000,000.

¶ 4. American Family paid the Dorbritzes the $100,000 policy limit under Lisa Habersbrunner's personal liability policy. The Dorbritzes then sought a declaration that the umbrella policy provided coverage for Lember as a permissive user of Lisa Habersbrunner's car. See Wis. Stat. § 806.04 (uniform declaratory judgments act). The Dorbritzes also asked the trial court to determine the "relative priorities of American Family Mutual Insurance Company and Prudential Property and Casualty," and to conclude that the pobcy issued by Prudential provided "secondary coverage for damages to" them.

¶ 5. The parties then filed cross motions for summary judgment. American Family claimed that Lember did not meet the definition of an insured under the umbrella policy.

¶ 6. The Dorbritzes alleged that Lember was insured by the umbrella policy because: (1) Lisa Habersbrunner's car was covered under the endorsement to the umbrella policy; and, because the car was covered, (2) Wis. Stat. § 632.32(3)(a), the "omnibus statute," extended coverage to Lember as a permissive user of Lisa Habersbrunner's car. See Binon v. Great N. Ins. Co., 218 Wis. 2d 26, 30-31, 580 N.W.2d 370, 372 (Ct. App. 1998) (§ 632.32(3) extends coverage to a permissive user of an insured car). The Dorbritzes also asked for a declaration that, "after American Family's umbrella policy limits have been exhausted,. . . the liability insurance coverage . . . issued by Prudential Insurance to Ms. Lember, is available to cover the damages sustained by" them.

¶ 7. Prudential opposed American Family's motion for summary judgment, and supported the Dor-britzes' motion for summary judgment. In doing so, it claimed that the umbrella policy provided coverage for Lember, "[consequently, American Family's umbrella policy is next in line."

¶ 8. After a hearing on the motions, the trial court denied American Family's motion, and granted summary judgment to the Dorbritzes. It concluded that: (1) the umbrella policy covered Lisa Habersbrunner's car; (2) Lember was covered by the umbrella policy under Wis. Stat. § 632.32 as a permissive user; and (3) after the limits of American Family's umbrella policy were exhausted, the Dorbritzes could recover under the Prudential policy.

II.

¶ 9. As we have seen, the trial court decided the case on summary judgment. The parties agree that there are no contested facts and that this case presents only an issue of law. Thus, our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987) (appellate review of summary judgment determinations is de novo).

¶ 10. The construction of language in an insurance policy is also a question of law that we review de novo. Mullen v. Walczak, 2003 WI 75, ¶ 12, 262 Wis. 2d 708, 713, 664 N.W.2d 76, 79. An insurance policy is construed to give effect to the parties' intent as expressed by the policy language and interpreted as a reasonable person in the position of the insured would understand it. Ibid. A policy that is clear and unambiguous on its face should not be rewritten by interpretation to bind an insurer to a risk it never contemplated and for which the insured never paid. Ibid.

¶ 11. None of the parties to this appeal dispute that the umbrella policy, by its terms, does not name Lember. As material, the policy defines an "insured" as:

9.... a. The named insured;
b. Your relatives;
d. With respect to a car, recreational motor vehicle or watercraft, owned or leased by you, insured means:
(1) Any person using such a vehicle or watercraft; or
(2) Any person or organization legally responsible for the acts or omissions of a person for whom coverage is afforded under this policy while that person is using any such vehicles or watercraft;
g. With respect to a car, recreational motor vehicle or watercraft, owned or leased by any relative, in the care of the relative or furnished or available for regular use by that relative, you and your relatives are an insured only when this policy is so endorsed to make this relative an insured for the use of that vehicle or watercraft. The relative must be insured for the use of that vehicle or watercraft under one or more underlying insurance policies for not less than the required liability underlying insurance limit shown on the special coverage endorsement purchased with this policy.

(Bolding in original.) The policy defines "you" and "your" as "the named insured in the declarations. These words also refer to your spouse if a resident of your household." (Bolding in original.) A "named insured" is defined as "the person shown in the declarations and his/her spouse." The "named insured" in the declarations are Albert and Mary Habersbrunner. Accordingly, section 9d(l), the provision of the policy that provides coverage for "[a]ny person using such a vehicle," applies only to cars owned or leased by the named insureds, Albert and Mary Habersbrunner. See Meyer v. City of Amery, 185 Wis. 2d 537, 544, 518 N.W.2d 296, 298 (Ct. App. 1994) ("you" means the named insured in the declarations). As we have seen, the car involved in the accident was owned by Lisa Habers-brunner, who was added to the policy by a special endorsement. Thus, the issue is whether Lember is covered as a permissive user of Lisa Habersbrunner's car under the special endorsement. This requires us to engage in a two-step analysis: (1) whether Lisa Habersbrunner's car was covered under the umbrella policy; and, if her car was covered, (2) whether Wis. Stat. § 632.32(3)(a) applies. See Kettner v. Wausau Ins. Cos., 191 Wis. 2d 723, 742, 530 N.W.2d 399, 406 (Ct. App. 1995) (§ 632.32(3) applies only to cars covered under the insured's policy). We address each step in turn.

¶ 12. The special endorsement is titled: "SPECIAL ENDORSEMENT EXTENSION OF COVERAGE TO A VEHICLE OWNED BY A RELATIVE OF THE NAMED INSURED," and provides:

For an additional premium, this policy is extended to provide coverage for the relative(s) identified and listed below for the car, recreational motor vehicle or watercraft owned or leased by the relative or furnished or available for the regular use by the relative. The relative must maintain the required underlying insurance policies for not less than the required liability underlying insurance limit.

Relative(s) Name Relationship

(These relatives must be members of the named insured's household.)

Habersbrunner, Lisa M Daughter

(Typography and bolding as in original; emphasis added.) The endorsement covered Lisa Habersbrunner's car. We thus turn to whether Wis. Stat. § 632.32(3)(a) extends coverage to Lember as a permissive user of Lisa Habersbrunner's car.

¶ 13. As we have seen, Wis. Stat. § 632.32(3)(a) provides:

Required PROVISIONS. Except as provided in sub. (5) [permissible provisions], every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

(Emphasis added.) As with our de novo review of summary-judgment determinations, a trial court's application of statutes to facts that are not contested is also reviewed de novo. See State v. Wilson, 170 Wis. 2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992), denial of habeas corpus aff'd, Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993). We have recently recognized:

Application of statutes requires that we "faithfully give effect to the laws enacted by the legislature." In doing so, "[w]e assume that the legislature's intent is expressed in the statutory language." If that language is clear, we apply it as it reads because the words used by the legislature are the best evidence of its intent.

State v. Swiams, 2004 WI App 217, ¶ 5, 277 Wis. 2d 400, 404-405, 690 N.W.2d 452, 454 (citations and quoted sources omitted). "Additionally, statutes should not be applied with a hyper-technicality that swamps common sense." Rebernick v. Wausau Gen. Ins. Co., 2005 WI App 15, ¶ 6, 278 Wis. 2d 461, 466, 692 N.W.2d 348, 351, review granted, 2005 WI 60, 281 Wis. 2d 112, 697 N.W.2d 471 (No. 2004AP0487).

¶ 14. Here, the statute by its plain language provides coverage for Lember. The policy was issued to "owner[s]" Albert and Mary Habersbrunner. Lember was "any person," and Lisa Habersbrunner's car was "any motor vehicle described in the policy." American Family claims, however, that Wis. Stat. § 632.32(3)(a) applies only to policies "issued to an owner." It thus argues that because the umbrella policy was not issued to Lisa Habersbrunner, the owner of the car involved in the accident, § 632.32(3)(a) does not apply. American Family ignores § 632.32's plain meaning, which effectuates the legislative intent that coverage under that section be construed broadly. See Greene v. General Cas. Co., 216 Wis. 2d 152, 161, 576 N.W.2d 56, 60 (Ct. App. 1997); § 632.32(1) (§ 632.32 applies to "every policy of insurance issued or delivered in this state"). The statute extends coverage under the umbrella policy to Lember. See Rebernick, 2005 WI App 15, ¶ 7, 278 Wis. 2d at 467-468, 692 N.W.2d at 351-352 (umbrella policy within purview of § 632.32).

¶ 15. American Family also contends that the trial court erred when it concluded that its umbrella policy was primary to Prudential's. It claims that an umbrella policy is an excess policy, which is available only after all other sources of insurance have been exhausted. See Oelhafen v. Tower Ins. Co., 171 Wis. 2d 532, 539, 492 N.W.2d 321, 324 (Ct. App. 1992) (umbrella policy is excess over and above any type of primary coverage). The Dorbritzes and Prudential assert that American Family waived this claim because American Family did not object when the trial court declared that its policy came next at the hearing on the summary judgment motions, and issued an order to that effect. We agree.

¶ 16. Generally, we will not review an issue raised for the first time on appeal. See Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145 (1980); Vollmer v. Luety, 156 Wis. 2d 1, 10, 456 N.W.2d 797, 801 (1990). "[Rjequiring objections at trial allows the trial judge an opportunity to correct or avoid errors, thereby resulting in efficient judicial administration and eliminating the need for an appeal." Vollmer, 156 Wis. 2d at 11, 456 N.W.2d at 802. Here, American Family had several opportunities to object to the Dorbritzes' contention that American Family's umbrella policy was next in line.

¶ 17. As we have seen, the Dorbritzes and Prudential asked the trial court to declare that the umbrella policy was next in line. American Family never responded to these requests. Moreover, at the hearing on the summary-judgment motions, the trial court discussed the order of the insurance polices with the parties:

THE COURT: It's my understanding that American Family has paid the ... $100,000 limits, correct?
[DORBRITZES1 LAWYER]: Correct.
[AMERICAN FAMILY'S LAWYER]: True.
THE COURT: And so American Family now moves to the — with the court's ruling, moves to the endorsement limits, and then after that, depending on the facts, perhaps Prudential would have to be called upon to cover any additional amounts, is that the way it works?
[DORBRITZES' LAWYER]: That is.
THE COURT: Three-tier, American Family, American Family, Prudential.
[DORBRITZES1 LAWYER]: That's coverage on the vehicle usually applies first and then coverage on the driver is separate.
THE COURT: Okay.

American Family's lawyer neither objected to the trial court's ordering of the policies nor the Dorbritzes' lawyer's assertion that insurance policies covering the car are applied first.

¶ 18. Finally, after the hearing, the Dorbritzes' lawyer submitted a proposed order to the trial court declaring that, "subsequent to American Family's umbrella policy the automotive liability policy issued by Prudential to Margaux Lember is available if needed, to indemnify and defend Margaux Lember for claims for damage incurred by plaintiffs." A copy of the order was sent to American Family "with the understanding that [it] may comment or object to [the order's] form within five days." American Family did not object. American Family waived its right to contest on this appeal the trial court's setting the order of the policies.

¶ 19. American Family contends, however, that we should consider its claim in the interest of justice because, it argues, the real controversy, the relative priorities of the policies, was never properly briefed or argued. Under Wis. Stat. § 752.35, we may reverse an order and remand for entry of a proper judgment, even where no objection was made, if it appears from the record that: (1) the real controversy has not been fully tried, or (2) it is probable that justice has for any reason miscarried. Vollmer, 156 Wis. 2d at 19, 456 N.W.2d at 805. We will exercise our discretion to reverse under this statute "only in exceptional cases." State v. Cuyler, 110 Wis. 2d 133, 141, 327 N.W.2d 662, 667 (1983). This is not an exceptional case. As we have seen, American Family could have objected to the trial court's ordering of the policies, but did not. Under these circumstances, we decline to exercise our discretionary authority under § 752.35.

By the Court. — Order affirmed.

       WISCONSIN Stat. § 632.32(3)(a) provides:
      Required Provisions. Except as provided in sub. (5) [permissible provisions], every policy subject to this section issued to an owner shall provide that:
      (a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

        American Family does not argue that one or more of the exceptions in § 632.32(5) applies.

       It is undisputed that, at all times relevant to this appeal, Lisa Habersbrunner maintained the required underlying insurance policies.

       WISCONSIN Stat. § 632.32(1) provides in full: "Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person."

       WISCONSIN Stat. § 752.35 provides:

        Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.


author: CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Damian Darnell Washington, Defendant-Appellant.
    Court of Appeals

      No. 2004AP1957-CR.

      Submitted on briefs April 5, 2005.

      Decided May 17, 2005.

    2005 WI App 123
    (Also reported in 700 N.W.2d 305.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Diana M. Felsmann, assistant state public defender, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and William C. Wolford, assistant attorney general.

      Before Wedemeyer, EJ., Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. Damian Darnell Washington appeals from a judgment convicting him of one count of possession of cocaine, one gram or less, with intent to deliver, and also from an order denying his postconviction motion, which sought reconsideration of the trial court's denial of his suppression motion. Washington agrees with the trial court's determination that the police did not have reasonable suspicion to initially stop him. However, Washington contends that the trial court erred in finding he tossed the evidence before acquiescing to the show of authority, and thus, he argues, the evidence tossed after this illegal seizure must be suppressed as "fruits of the poisonous tree." We agree. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. Background.

¶ 2. On August 23, 2003, at approximately 3:00 p.m., Milwaukee Police Officers David Howard and Rudy Gudgeon were on patrol in plain clothes, and in an unmarked squad car, on the 1600 block of West Locust Street to investigate a complaint of loitering and drug sales at an allegedly vacant house. Washington was in front of the house that the police were investigating, and after one of the officers recognized him from past encounters, they ordered him to stop. Washington stopped initially, but also took a few steps backwards and allegedly looked nervous. He then threw his hands up and a towel flew out of his hand. At that point, Washington was pushed to the ground and subdued. One of the officers retrieved the towel and discovered the cocaine, which was in a baggie that had been wrapped in the towel. Washington was charged with one count of possession of cocaine, one gram or less, with intent to deliver.

¶ 3. At the suppression hearing, Officer Howard testified that he had come into contact with Washington on two prior occasions that August. He also testified that he knew Washington did not live in the area, and had been told by another officer that Washington had been apprehended for narcotic sales in the past. Although Officer Howard did not claim to have seen Washington commit a crime before the stop, he did testify that he thought Washington was involved in criminal activity, and wanted to cite him for loitering in front of the house, which he believed was vacant. He testified that he was within two to three feet of Washington when he told him to stop. Washington stopped, "but he ... had the motion that he wanted to run. I told him not to run; stand there. He continued to look nervous. He wanted to run. At that point, I'm familiar that he - what he may do. I drew my weapon." As Officer Howard got closer, he testified that Washington threw up his hands, with his palms facing backwards, and the towel flew out. Officer Howard proceeded to subdue him and pat him down.

¶ 4. Washington testified that he was in the area because he had a girlfriend that lived nearby, and he was on his way to the grocery store down the street. He asserted that the house in question was not vacant at all, that he actually knew the people who lived there, and that they were sitting on the porch that day. Washington testified that when he was walking towards the store, the officers pulled up, and the officer on the passenger side opened his door, pulled his gun, and told Washington to freeze. He testified that when the officer told him to freeze, he put his hands up, saw the gun, and "just got to walking backwards." Washington testified that he asked the officer what he had done, and the officer replied: "Stop, don’t move. If you run, we'll shoot you in your back." At that point, he testified that one of the officers pushed him down, and the other searched him. Washington also testified that he had been in contact with one of the officers on a prior occasion, and that this officer had warned him: "I know what you're doing out there, and I'm going to have you in prison again before the summer is over with."

¶ 5. On cross-examination, Washington clarified that the officers did not have their guns pulled immediately, and that he stopped when the police told him to, but started walking backwards when he saw the guns. He testified that his hands were in the air and the towel fell to the ground when one of the officers pushed him down.

¶ 6. The State argued that, under the circumstances as described by the police, Officer Howard had a reasonable suspicion to stop Washington, given what he knew about Washington, the area, and the house. Washington argued that the critical question was whether the officers had a "right to tell the defendant to stop." He insisted that he was walking down the street, which he had a right to do, and was spotted in front of the house. He was told to stop, and he did. Washington argued that regardless of whether he had been arrested before, and what the officer may have thought of him and the house, this particular stop was unreasonable. As such, he insisted that the stop was illegal, and everything discovered subsequent to that should be suppressed.

¶ 7. After considering the testimony, the trial court found the initial stop unreasonable. First, the trial court found that there was nothing in the record to clearly demonstrate that the house was vacant. Second, it found that the officer had had contact with Washington on more than one prior occasion, and that he had been informed at some point that Washington and his brother previously had been arrested for drug dealing. Next, the trial court found that the location of the incident is a high crime area. However, the trial court also addressed the complaint which brought the officers to the area, stating that there was no indication as to when it was made, who made it, and who was potentially involved, and that "[t]here is no indication of why the person who was calling would have a reasonable belief of any sort that drug trafficking was occurring." The trial court also found that, on that day, Washington was standing near the porch, at the same house where Officer Howard had seen Washington before, talking to two individuals, and although the officers were traveling in an unmarked car, it was clearly visible as a police vehicle because of the Kojak light on the roof. The trial court then continued, finding that the stop, when viewed objectively, was not based on a reasonable ar-ticulable basis:

That as [the officers] were traveling, the three individuals noticed them. They all began to disburse [sic] immediately upon seeing the police. The defendant walked south on 16th Street and turned west on Locust, and the officer stopped, got out of the vehicle. And when he got out of the vehicle, he immediately told the defendant to stop.
At this point, the Court's going to conclude that there was no reasonable articulable basis to believe that the defendant was committing a crime or was about to commit a crime that would justify a Terry stop. There's no - the officer, although he testified that he was going to cite the defendant for loitering, there is no proof that's submitted regarding what the City of Milwaukee ordinance is regarding loitering, what the elements of that loitering were. And merely the officer's belief that a loitering ordinance was violated isn't a basis for this Court to conclude that there is a reasonable articulable suspicion. It's not a subjective standard. It is an objective standard of whether a reasonable person would consider that a crime was being committed.

However, the trial court then remarked:

The officer immediately called out to the defendant to stop. He got out of his squad car. He stated, stop there; I want to talk to you. He intended to cite the defendant for loitering. He clearly intended to take him into custody, and he was within two feet of him while he made this announcement.
The defendant initially stopped, looked like he was going to run, and started walking backwards, and it was at that point that the officer drew his gun. The defendant continued walking. The defendant had a towel in his hand. It was a washcloth; that he put his hands and arms up towards his shoulders and threw the towel out of his hand, and then he stopped. At that point, the defendant was pushed down to the ground and the towel was retrieved.
The Court is going to find that the defendant did not stop in response or comply with the show of authority by the police; that, therefore, there was no seizure prior to the time the defendant threw the towel out of his hand.
At that point, the Court is going to find that there is a reasonable articulable suspicion that the defendant was engaged in criminal activity, possibly drug activity. It's consistent with somebody who is involved with drugs, possessing drugs, or selling drugs to try and dispose of them at the time the officers are approaching them.

Thus, after noting the other surrounding circumstances, the trial court concluded that, at that point, a Terry stop was justified. Finally, the trial court surmised that

[e]ven if there wasn't a basis to stop the defendant with a Terry stop, the defendant lost all control and rights regarding the towel and the substance that was found afterwards, and when the towel was retrieved, the officers had probable cause to arrest the defendant at that time. And, therefore, there was not a search ... of the defendant that recovered the drugs.

The trial court concluded that having thrown the drugs away, Washington had "no reasonable expectation of privacy for them," and "[t]here was then probable cause not only to stop him, but to arrest him." As such, the trial court denied the motion to suppress. Washington subsequently pled guilty, and was sentenced to four years imprisonment, consisting of two years of initial confinement and two years of extended supervision.

¶ 8. Washington filed a postconviction motion requesting reconsideration of the denial of the suppression motion. He insisted that because the police did not have reasonable suspicion to stop him, and because he stopped in response to the police order to do so, the washcloth and drugs found after the illegal seizure should have been suppressed as fruits of the poisonous tree. Washington contended that the trial court's conclusion that no seizure occurred until after he threw the washcloth to the ground was an unreasonable extension of controlling case law. He argued that his liberty was restrained when he was ordered to stop by Officer Howard, and that he did indeed stop and acquiesce to the show of authority, even though he took a few steps backwards. Washington also differentiated his case from California v. Hodari D., 499 U.S. 621 (1991), to which the trial court referred during the suppression hearing. He argued that in that case, because the defendant fled from the police and tossed the drugs before being apprehended, the Supreme Court concluded that the defendant was not seized before throwing the drugs. To the contrary, Washington insisted that his case is distinguishable in that he did stop and was clearly seized before the drugs were tossed, and as such, the evidence should be suppressed as fruits of an illegal stop.

¶ 9. The trial court denied the motion without a hearing, concluding:

At the hearing, the court found that the defendant did not stop in response to a show of authority by police and that therefore no seizure occurred prior to the time the defendant threw away the washcloth. The court concluded that at that point the officers had reasonable suspicion that the defendant was engaged in drug activity based upon his conduct (disposing of the washcloth as the officers were approaching), what the officers already knew about the defendant, and the fact that the washcloth was bundled up in his hands and not a loose towel that one would use to wipe away sweat on a hot day (as the defendant claimed). Even if there was no reasonable suspicion for a stop, the court concluded that the defendant lost any reasonable expectation of
privacy in the washcloth or its contents when he discarded them, and that the police then had probable cause not only to stop him but to arrest him. The court stands by its findings and conclusions as set forth in the record of the suppression hearing.

In regard to Hodari D., the trial court concluded that Hodari D. "does not stand for the proposition that a defendant must give chase when there is a show of authority by police for the court to conclude that no seizure occurred." It reasoned that the Supreme Court held that a "seizure of a person" "means either the application of physical force, or, where that is absent, submission to an officer's show of authority to restrain the subject's liberty." The trial court went on to explain that no physical force was applied prior to Washington throwing the washcloth, that Washington did not comply with the officer's show of authority for the reasons it stated on the record, and thus "the abandoned washcloth and drugs were not the fruit of a seizure." Washington now appeals.

II. Analysis.

¶ 10. Washington contends that the trial court erred in denying his motion to suppress and insists that "because the police did not have reasonable suspicion to stop him, and because he stopped in response to the police order to do so, the evidence tossed after this illegal seizure must be suppressed as fruits of the poisonous tree." He disagrees with the trial court's conclusion that he did not comply with the show of police authority, arguing that "[w]hen [the] police, without lawful authority, ordered him to stop, he stopped going along his way. Even the trial court found 'the defendant initially stopped.'" (Emphasis in brief.) He contends that while he may have taken a few steps backward, that was "a natural reaction to someone pointing a gun at him," and that he was seized the moment police ordered him to stop and he did so. As such, Washington insists that the washcloth and drugs were found as a result of an illegal stop, and should have been suppressed as fruits of the poisonous tree under Wong Sun v. United States, 371 U.S. 471 (1963).

¶ 11. When reviewing a trial court's ruling on a motion to suppress evidence, we will uphold the trial court's factual findings unless they are clearly erroneous. State v. Eskridge, 2002 WI App 158, ¶ 9, 256 Wis. 2d 314, 647 N.W.2d 434. We independently decide, however, whether the facts establish that a particular search or seizure occurred and, if so, whether it violated constitutional standards. See State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830 (1990). Accordingly, what we must determine here is: (1) when Washington was seized, and (2) whether the seizure was reasonablewhether the officers had reasonable suspicion to stop him at that point.

¶ 12. The Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution guarantee citizens the right to be free from "unreasonable searches and seizures." Id. at 137. Our supreme court consistently follows the United States Supreme Court's "interpretation of the search and seizure provision of the [F]ourth [A]mendment in construing the same provision of the state constitution." Id.

¶ 13. In United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court stated that "[w]e adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained[,]" id. at 553, and concluded that "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave[,]" id. at 554. In Hodari D., a case in which the defendant fled at the approach of an unmarked police car, Hodari, turning to see that a police officer was almost upon him, tossed a rock of crack cocaine, and was eventually tackled by the police officer who chased him down. There, the Supreme Court was faced with the question of when the seizure actually occurred. The lower court held that Hodari had been seized when he saw the police officer running towards him. The state argued otherwise, and petitioned for certiorari. The Supreme Court framed the issue as "whether, at the time he dropped the drugs, Hodari had been 'seized' within the meaning of the Fourth Amendment [,]" 499 U.S. at 623 (footnote omitted), and thus, "whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield[,]" id. at 626, concluding that "it does not[,]" id.

¶ 14. In that case, there was no question as to whether Hodari fled from the police. He did, and as such, the Supreme Court concluded that since he did not yield to a show of authority, he was not seized until he was tackled by the police officer. Here, we cannot conclude that Washington, like Hodari, fled from the officer's show of authority and was not seized until he was subdued by the police. The trial court found that Washington stopped when ordered to do so. Though he also continued to take a few steps backwards, and the officer may have thought that he might run, that does not equate his actions with fleeing. Indeed, he stopped and addressed the police, allegedly inquired as to what he had done, and eventually threw his hands up in the air. He stopped walking towards the store, or wherever he was going, when the police stopped within a few feet of him, and ordered him to stop. We cannot conclude, under these facts, that Washington did not yield until after he threw his hands in the air.

¶ 15. Now that we have determined that he was seized when he initially stopped after the police commanded him to do so, the relevant inquiry becomes whether the seizure was reasonable and justified. While the Fourth Amendment prohibits unreasonable searches and seizures, "the [Supreme] Court [has] recognized the legitimacy of an investigative stop as effectively meeting government interests in crime prevention and protection ... : '[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.'" Richardson, 156 Wis. 2d at 138 (quoting Terry, 392 U.S. at 22).

¶ 16. Thus, the standard for a valid investigatory stop is less than that for an arrest; an investigatory stop requires only "reasonable suspicion." See State v. Allen, 226 Wis. 2d 66, 70-71, 593 N.W.2d 504 (Ct. App. 1999). The reasonable suspicion standard requires the officer to have " 'a particularized and objective basis for suspecting the person stopped of criminal activity[,]'" Ornelas v. United States, 517 U.S. 690, 696 (1996) (citation omitted); reasonable suspicion cannot be based merely on an "inchoate and unparticularized suspicion or 'hunch[,]'" Terry, 392 U.S. at 27. When determining if the standard of reasonable suspicion was met, those facts known to the officer at the time of the stop must be taken together with any rational inferences, and considered under the totality of the circumstances. See Richardson, 156 Wis. 2d at 139-40. Stated otherwise, to justify an investigatory stop, "[t]he police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is [or was] violating the law." State v. Gammons, 2001 WI App 36, 6, 241 Wis. 2d 296, 625 N.W.2d 623. However, an officer is not required to rule out the possibility of innocent behavior before initiating a brief investigatory stop. State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).

¶ 17. In this case, while we disagree with the trial court's conclusion as to when Washington was actually seized, we do agree with the trial court's preliminary conclusion that at the time the police initially pulled over and told Washington to stop, they lacked the requisite reasonable suspicion. While the officer testified that he was going to cite Washington for loitering, he did not demonstrate a reasonable, articulable basis for doing so. Investigating a vague complaint of loitering and observing Washington in the area near a house that the officer believed to be vacant, even taken in combination with the officer's past experiences with Washington and his knowledge of the area, does not supply the requisite reasonable suspicion for a valid investigatory stop. People, even convicted felons, have a right to walk down the street without being subjected to unjustified police stops.

¶ 18. Nor are we persuaded by the State's argument that "[a] conclusion that Washington's actions in this case constituted yielding to a show of authority would encourage suspects to flee after the slightest contact with an officer in order to discard evidence and yet still maintain Fourth Amendment protections." As indicated above, this is not a case in which the "suspect" "fled" after having only "the slightest contact with an officer." First, as we concluded above, the officers did not have reasonable suspicion to stop Washington when they pulled over and ordered him to stop. Second, Washington did not flee. The officers stopped the car, presumably within feet of Washington, and ordered him to stop, which he did. The fact that Officer Howard thought that Washington was going to run because he looked nervous and took a few steps backward does not change the fact that Washington initially stopped, allegedly asked what he had done, and threw his hands in the air. At the point that he stopped walking toward the store, and submitted to the officer's command that he stop, he had been effectively seized by the police. He did not run and he did not ignore the police. The State's contentions stretch the facts further than is warranted.

¶ 19. As such, we conclude that the drugs were recovered as the result of an unreasonable stop and an illegal seizure, and thus should be suppressed by virtue of the exclusionary rule. See Wong Sun, 371 U.S. at 484-85, 487-88. Accordingly, we reverse the judgment of conviction and remand for further proceedings.

By the Court. — Judgment and order reversed and cause remanded.

        Terry v. Ohio, 392 U.S. 1 (1968).

       Washington also insisted that should the trial court find that he waived his right to present the argument that California v. Hodari D., 499 U.S. 621 (1991), is not controlling and that the washcloth and drugs were fruits of the poisonous tree, he was denied the effective assistance of counsel. The trial court found no ineffectiveness on the part of Washington's attorney.

       Washington also argues that "[i]f this court finds that [he] waived his right to present the arguments that Hodari is not controlling and that the wash cloth and drugs were fruits of the poisonous tree, [he] was denied the effective assistance of counsel." Because the trial court addressed the Hodari contention in its postconviction order, and the State has not argued waiver, asserting only that Washington's claims on appeal are without merit and he therefore could not establish ineffective assistance, we will not consider the waiver issue any further.

       Our supreme court has indicated that it "will follow the Hodari D. standard for when a seizure occurs." State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, 626 N.W.2d 777. While
        Kelsey C.R. was a case concerning a seizure conducted under the community caretaker function, this court has also employed the Hodari D. standard in a Terry stop case. See State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866, review granted, 2005 WI 21, 278 Wis. 2d 535, 693 N.W.2d 75.

       Though Washington testified that he asked the officer what he had done, and on cross-examination, Officer Howard testified that "[h]e could have said that[,]" the trial court did not make a finding in regard to this fact.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Somkhith Neuaone, Defendant-Appellant.

    Court of Appeals

      No. 2004AP196-CR.

      Submitted on briefs March 31, 2005.

      Decided May 18, 2005.

    2005 WI App 124
    (Also reported in 700 N.W.2d 298.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph J. Sczgelski of Sczy-gelski Law Firm of Manitowoc.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Eileen W Pray, assistant attorney general.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 10-3-05.

   NETTESHEIM, J.

¶ 1. Based upon a plea agreement, Somkhith Neuaone pled guilty to two counts of bail jumping and possession of cocaine, second offense. Pursuant to the plea agreement, the State agreed not to provide the trial court with audiotapes that indicated Neuaone's involvement in a separate and unrelated pending criminal matter involving Neuaone's wife. Prior to Neuaone's sentencing, the State informed the court that the tapes had inadvertently been provided to the court in the context of the pending matter against Neuaone's wife. In response, Neuaone filed a motion to withdraw his guilty pleas. However, he later withdrew this motion. Neuaone additionally filed a motion for recusal of the sentencing court, which the court denied.

¶ 2. On appeal, Neuaone argues that the State's revelation of the audiotapes constituted a breach of the plea agreement and therefore he is entitled to withdraw his pleas. Alternatively, Neuaone requests that we remand this matter for enforcement of the plea agreement before a different sentencing judge. Within the context of this latter argument, Neuaone also appears to argue that the trial court erred in denying his motion for recusal. We reject Neuaone's arguments and affirm the judgment.

BACKGROUND

¶ 3. On November 26, 2001, the State filed a criminal complaint against Neuaone alleging one count of possession of cocaine with intent to deliver, second offense, and two counts of bail jumping. The matter was assigned to Judge Gary Langhoff. Following a pretrial hearing on May 17, 2002, the parties reached a plea agreement, which they then placed on the record before Judge Langhoff. Pursuant to the plea agreement, the State would amend the possession with intent to deliver charge to one of simple possession, second offense. In exchange, Neuaone would plead guilty or no contest to the lesser charge and to the two bail jumping charges. In addition, the State agreed to recommend a sentence of twenty-two years, "[n]ine years in, and 13 years under extended supervision" to run concurrent with a sentence Neuaone was already serving. The plea agreement was documented in a plea questionnaire signed by Neuaone. Following a plea colloquy, Judge Langhoff accepted Neuaone's pleas, ordered a presentence investigation, and scheduled the matter for sentencing.

¶ 4. However, the parties did not advise Judge Langhoff of an additional provision of the plea agreement — the State's promise that it would not reveal to Judge Langhoff the contents of recorded conversations between Neuaone and his wife, Renata. These conversations reflected Neuaone's participation in an unrelated criminal case in which Neuaone's wife was charged with attempted intentional homicide, substantial battery and false imprisonment. That case had also been assigned to Judge Langhoff.

¶ 5. On June 10, 2002, prior to Neuaone's sentencing, Judge Langhoff held a status conference at the parties' request. There, the State informed the judge that it had inadvertently violated the plea agreement by submitting the audiotapes to Judge Langhoff in the context of the criminal matter involving Neuaone's wife. Judge Langhoff responded that he had listened to the recordings in preparing for the sentencing of Neuaone's wife and that he had played the recordings in open court at the sentencing. According to Judge Lang-hoff, the conversations evidenced Neuaone's involvement in some of the events leading to his wife's arrest. The judge stated that "the statements and the things expressed on that tape may have a direct impact on the Court's view of sentencing in the case." In response, Neuaone suggested that Judge Langhoff consider re-cusing himself from Neuaone's case and transferring the matter to another judge who had not heard the tapes. Judge Langhoff adjourned the proceedings to further consider the matter.

¶ 6. Judge Langhoff next addressed the matter at a hearing on July 18, 2002, advising the parties that he saw three options: (1) the parties could proceed with sentencing with the expectation that Judge Langhoff would consider all relevant information, including the tapes; (2) Neuaone could request plea withdrawal; or (3) either party could seek the judge's recusal by filing a formal motion for recusal. Neuaone indicated that he likely would pursue the recusal option. Judge Langhoff then directed Neuaone to file a written motion seeking that relief. The judge additionally indicated his surprise that "the State would advance a plea agreement wherein relevant information would be withheld from the Court for sentencing."

¶ 7. In compliance with Judge Langhoffs directive, Neuaone filed a motion for recusal claiming that the information on the tapes had prejudiced Judge Langhoff against him. On September 12, 2002, Judge Langhoff issued a written decision denying Neuaone's motion. In his decision, the judge identified the primary issue as "whether a plea agreement which conceals relevant information from the court about the defendant's character is violative of public policy." The judge determined that the agreement did violate public policy and could not be honored by the court. Because the court was entitled to the information, Judge Lang-hoff reasoned that Neuaone had not offered valid grounds for recusal. Judge Langhoff therefore denied Neuaone's motion for recusal and scheduled the matter for sentencing.

¶ 8. At the opening of the sentencing hearing, Judge Langhoff observed that Neuaone, now represented by new counsel, had recently filed a motion to withdraw his guilty pleas. However, Neuaone's counsel responded that, after discussions with Neuaone and the State, Neuaone did not want to pursue the motion and did not want to withdraw his pleas. Judge Langhoff then recessed the proceeding to allow Neuaone and his counsel additional time to discuss the matter. When the case was recalled, Judge Langhoff engaged Neuaone in a personal colloquy, asking Neuaone whether he had had sufficient time to discuss the decision to withdraw his motion for plea withdrawal with his attorney and whether he concurred with his attorney's statement that Neuaone in fact wished to withdraw the motion seeking plea withdrawal. Neuaone responded in the affirmative. The matter then proceeded to sentencing. Neuaone appeals from the ensuing judgment of conviction.

DISCUSSION

¶ 9. On appeal, Neuaone argues that the State breached the plea agreement, that the breach was material and substantial and, therefore, that he is entitled to withdraw his pleas. In the alternative, Neuaone requests that this court enforce the plea agreement and remand for sentencing before a different judge. Neuaone also appears to argue that Judge Langhoff erred in failing to recuse himself.

¶ 10. We begin by addressing Neuaone's request for plea withdrawal. At the hearing on July 18, 2002, Judge Langhoff offered Neuaone the options of proceeding with the sentencing, seeking plea withdrawal, or seeking the judge's recusal. Neuaone opted for recusal and filed a motion seeking that relief. In support, Neuaone argued that the audiotapes revealed information detrimental to his sentencing interests and that Judge Langhoff was therefore biased against him since the judge had been exposed to the information. Judge Langhoff denied the request in a written decision. The judge ruled that the plea agreement was in violation of public policy pursuant to State v. McQuay, 154 Wis. 2d 116, 452 N.W.2d 377 (1990), because it withheld relevant sentencing information from the court. The judge concluded that information to which a sentencing court was rightly entitled could not, without more, serve as a basis for judicial bias and disqualification.

¶ 11. Just prior to his sentencing on June 20, 2003, Neuaone finally filed a motion for plea withdrawal. However, when the case was called, Neuaone's attorney immediately indicated to Judge Langhoff that Neuaone did not wish to pursue the plea withdrawal motion. The judge then recessed the case and directed Neuaone and his counsel to further discuss the matter. When the case was recalled, the judge engaged Neuaone in a personal colloquy in which Neuaone affirmed that he did not wish to pursue his motion to withdraw his guilty pleas and instead wanted to proceed to sentencing. Later, in his sentencing argument, Neuaone's counsel stated, "[Neuaone] accepts responsibility for the violations and he's not placing the blame or he's not hiding behind the issue as to the fact there [were] issues about a tape that was heard and whether that would impact on your sentencing decision . . .

¶ 12. This record unequivocally establishes that Neuaone abandoned his motion to withdraw his pleas based on the State's admitted breach of the plea agreement. The record additionally reveals that Neuaone made this decision with full knowledge that Judge Langhoff would not be honoring the plea agreement since the judge had already ruled in his earlier written decision that the plea agreement was in violation of public policy and that the judge would be considering all relevant sentencing information, including the recorded conversations. Having abandoned his request for relief based on the State's breach of the plea agreement, we reject Neuaone's attempt to resurrect it on appeal. See Herkert v. Stauber, 106 Wis. 2d 545, 560-61, 317 N.W.2d 834 (1982) (generally, an issue is not properly before us on appeal when the trial court was not given an opportunity to consider an argument and either correct itself or make a ruling that this court could then review). In short, we have nothing to review on this issue since the trial court was never asked to make a ruling on the question.

¶ 13. Neuaone also contends that the plea agreement was not in violation of public policy, and therefore the State's admitted breach of the agreement requires that we direct enforcement of the agreement on remand. We reject Neuaone's argument. As Judge Lang-hoff aptly noted in his written decision, McQuay unequivocally condemns the kind of plea agreement entered into by Neuaone and the State in this case.

Agreements by law enforcement officials, whether they be by the police or prosecutors, not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.

McQuay, 154 Wis. 2d at 125 (citation omitted). This rule "is intended to protect the integrity of the sentencing process by ensuring that the court charged with the duty of selecting an appropriate sentence for a convicted defendant is not intentionally deprived of relevant information concerning the defendant at the time of sentencing." Id. at 126. While Neuaone argues that "withholding information is certainly different from affirmatively supplying information," the fact remains that the terms of the plea agreement unequivocally required the State, in Neuaone's own words in his appellate brief, "to not provide certain audiotapes to the court either before or at sentencing regarding an attempted homicide case ... ." We fail to see how this is not an agreement to withhold relevant information from the sentencing court.

¶ 14. Neuaone also argues that the plea agreement in this case is akin to those routinely enforced plea agreements that obligate the State to "stand silent." We disagree. Our understanding of a "stand silent" agreement is that it obligates the State to refrain from offering a sentencing recommendation. Such an agreement does not obligate or permit the State to withhold relevant factual information that bears on the sentence. Other courts share a similar understanding:

As part of a plea agreement, the Government is free to negotiate away any right it may have to recommend a sentence. However, the Government does not have a right to make an agreement to stand mute in the face of factual inaccuracies or to withhold relevant factual information from the court. Such an agreement not only violates a prosecutor's duty to the court but would result in sentences based upon incomplete facts or factual inaccuracies, a notion that is simply abhorrent to our legal system.

United States v. Block, 660 F.2d 1086, 1091-92 (5th Cir. 1981).

¶ 15. We next turn to Neuaone's apparent contention that Judge Langhoff erred in denying his motion for recusal pursuant to Wis. Stat. § 757.19(2)(g) (2003-04), which governs the disqualification of a judge. It provides:

(2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:
(g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.

¶ 16. Whether a judge was a "neutral and detached magistrate" is a question of constitutional fact which we review de novo and without deference to the trial court's ruling. State v. Santana, 220 Wis. 2d 674, 684, 584 N.W.2d 151 (Ct. App. 1998). We begin with a presumption that the judge is free of bias and prejudice and the burden is on the party asserting judicial bias to show by a preponderance of the evidence that the judge is biased or prejudiced. Id. In determining the question, we apply both a subjective and an objective test. Id. We first look to the challenged judge's own determination of whether the judge will be able to act impartially. Id. Next, we look to whether there are objective facts demonstrating that the judge was actually biased. Id. at 685. This requires that the judge actually treated the defendant unfairly. Id.

¶ 17. In answering Neuaone's argument, we need not even get to the two-prong test for judicial bias because the premise for the argument is fatally flawed. Neuaone's sole basis for seeking Judge Langhoffs re-cusal was the fact that the judge had acquired information detrimental to Neuaone's sentencing interests via the State's breach of the plea agreement. But, as Judge Langhoff explained in his decision and as we have further explained in this opinion, the plea agreement was contrary to public policy and thus the judge was entitled to the information in the first instance. Moreover, the same would be true of any other judge who might have been assigned to conduct Neuaone's sentencing if Judge Langhoff had recused himself. It goes without saying that a judge's consideration of relevant sentencing information to which the judge is rightfully entitled cannot, without more, form the basis for re-cusal under a Wis. Stat. § 757.19(2)(g) motion. Other than arguing that the content of the audiotapes reflected poorly on him, Neuaone fails to otherwise demonstrate how this information translates into subjective or objective bias on the part of Judge Langhoff. We uphold the denial of Neuaone's request for recusal.

¶ 18. In the final analysis, Neuaone's core argument is that the State's breach, not the invalidity of the plea agreement, should govern this appeal. Thus, Neua-one requests that we remand this case for enforcement of the invalid plea agreement at a new sentencing before a different judge. We decline to mandate a proceeding so clearly in violation of public policy as announced by our supreme court in McQuay.

CONCLUSION

¶ 19. We hold that Neuaone abandoned his right to request plea withdrawal when he failed to pursue his motion for such relief at the sentencing hearing. We reject Neuaone's request that we remand for enforcement of the plea agreement at a new sentencing before a different judge. Finally, we conclude that Judge Lang-hoff properly denied Neuaone's motion for recusal pursuant to Wis. Stat. § 757.19(2)(g). We affirm the judgment of conviction.

By the Court. — Judgment affirmed.

       Neuaone was later charged with party to the crime of substantial battery and party to the crime of false imprisonment for his involvement in this matter. Sheboygan County Case No. 2002CF382 is still pending.

       We recognize that the transcript reflects a hearing date of August 18, 2002; however, the trial court's decision and order reflects that the hearing took place on July 18, 2002.

       Judge Langhoffs written decision indicates that both the State and Neuaone had moved for recusal. Actually, only Neuaone formally moved for recusal by written motion. The judge's statement presumably was based on the State's oral statement at the July 18, 2002 hearing that it joined in Neuaone's oral request for transfer of the case to another judge.

       Although Judge Langhoff stated that Neuaone had filed a motion to withdraw his guilty pleas, the appellate record does not include any such motion.

       Neuaone's counsel also requested the recess so that he might have time to prepare arguments relating to, among other things, "a letter that was attached to the pre-sentence report where the Court had made admonitions that it had listened to a tape from his wife's case and that that may impact on the sentencing...."

       We therefore reject Neuaone's attempt to align his case with State v. Smith, 198 Wis. 2d 820, 543 N.W.2d 836 (Ct. App. 1995), rev'd, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), in which the defendant claimed ineffective assistance of counsel for failing to object at sentencing when the prosecutor breached the plea agreement, or State v. Wills, 187 Wis. 2d 529, 523 N.W.2d 569 (Ct. App. 1994), aff'd, 193 Wis. 2d 273, 533 N.W.2d 165 (1995), in which the defendant maintained his objection to the prosecutor's alleged breach of the plea agreement prior to sentencing. See also Defendant-Appellant's Opening Brief at 9.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We are not all that certain that Neuaone is actually making this argument because he does not cite to any of the relevant and controlling law of judicial disqualification. However, Neuaone does argue that we should remand this case for sentencing before a different judge. That argument implies that there is reason to suspect the fairness of Judge Langhoff. We therefore choose to address this issue.


author: PER CURIAM.

text:
    State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Keith E. Williams, Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 2005AP453-CR.

      Submitted on cross-appellant's motion May 6, 2005.

    Decided May 18, 2005.

    2005 WI App 122
    (Also reported in 699 N.W.2d 249.)

      On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the cross-appellant's motion for an extension of time to file notice of cross-appeal of Christopher William Rose of Rose & Rose, Kenosha.
    On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the memorandum in response of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.
   PER CURIAM.

¶ 1. The State appeals from an order granting Keith E. Williams a new trial. Williams moves to extend the time for filing a notice of cross-appeal. We conclude that because Williams initiated postconviction proceedings under Wis. Stat. Rule 809.30 (2003-04), the time for filing a notice of cross-appeal may be extended. We grant the motion to extend the time and confirm jurisdiction over the cross-appeal.

¶ 2. Williams was convicted of second-degree sexual assault and false imprisonment. He filed a motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). The circuit court granted a new trial in the interests of justice and oil January 28, 2005, entered an order vacating the judgment of conviction. On February 16, 2005, the State filed a notice of appeal. Williams's motion for an extension of time to file a notice of cross-appeal suggests that the time for filing a notice of cross-appeal expired on or about March 16, 2005. See Wis. Stat. Rule 809.10(2)(b) ("A respondent who seeks a modification of the judgment or order appealed from or of another judgment or order entered in the same action or proceeding shall file a notice of cross-appeal within the period established by law for the filing of a notice of appeal, or 30 days after the filing of a notice of appeal, whichever is later."). Williams explains that it recently became apparent that a cross-appeal is necessary to obtain review of other issues in the event the circuit court's decision granting a new trial is reversed. He asserts that the extension can be granted because this is a felony appeal under Rule 809.30.

¶ 3. Wisconsin Stat. Rule 809.82(2)(b) provides that the time for filing a notice of appeal or cross-appeal of a final judgment or order may not be enlarged except in an appeal under Wis. Stat. Rule 809.30. The State's right to appeal in a criminal matter is statutorily defined. See State v. Newman, 162 Wis. 2d 41, 46, 469 N.W.2d 394 (1991). Here, the State appeals pursuant to Wis. Stat. § 974.05(l)(b). At first blush this is not an appeal brought under Rule 809.30.

¶ 4. However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). Williams's right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30. The time for a person to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended. See State v. Harris, 149 Wis. 2d 943, 946, 440 N.W.2d 364 (1989). The filing of a notice of cross-appeal is a continuation of the pursuit of postcon-viction relief under Rule 809.30. Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended.

¶ 5. Applying the same procedures to the defendant's right to appeal and to cross-appeal comports with due process. See Harris, 149 Wis. 2d at 947 n.5. It also preserves the defendant's constitutional right to raise possible error on appeal. See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) ("Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.").

¶ 6. Williams has established good cause for an extension of time to file a notice of cross-appeal. See Wis. Stat. Rule 809.82(2)(a). The time for filing the notice of cross-appeal is extended to April 19, 2005, the day the notice was actually filed.

By the Court. — Motion granted.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We take no position on whether a cross-appeal is necessary to obtain review of other issues raised in the postconviction motion. A respondent need not file a cross-appeal "when the error complained of, if corrected, would sustain the judgment, order, or portion thereof appealed from" on an alternative ground. State v. Alles, 106 Wis. 2d 368, 391, 316 N.W.2d 378 (1982). As the State observes in its response to the motion to extend the time to file a notice of cross-appeal, without filing a cross-appeal Williams may raise in his respondent's brief any adverse ruling that, if erroneous, would provide an alternative justification for a new trial.

       Wisconsin Stat. Rule 809.30(1) (b) defines "person" to be a defendant seeking postconviction relief in a criminal matter and does not include the State. The State's time to appeal in a criminal matter may not be extended. ‘