Gieseke v. Department of Transportation

426 N.W.2d 79, 145 Wis. 2d 206, 1988 Wisc. App. LEXIS 390
CourtCourt of Appeals of Wisconsin
DecidedMay 12, 1988
Docket87-1056
StatusPublished
Cited by5 cases

This text of 426 N.W.2d 79 (Gieseke v. Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gieseke v. Department of Transportation, 426 N.W.2d 79, 145 Wis. 2d 206, 1988 Wisc. App. LEXIS 390 (Wis. Ct. App. 1988).

Opinions

DYKMAN, J.

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

FACTS

Robert and Virginia Gieseke own a farm located at the intersection of State Trunk Highway 80 and County Trunk Highway C in Richland County. As part of a highway improvement project, the state and county agreed to a land trade, in which Hwy. 80 north of the intersection became County Hwy. C and Hwy. C north of the intersection became Hwy. 80. The state also condemned about two and one-half acres of plaintiffs’ land and awarded them $17,350. Plaintiffs [208]*208appealed to the circuit court, pursuant to sec. 32.05(11), Stats.1

Plaintiffs’ attorney was also the county’s corporation counsel. The state moved to disqualify him because of a conflict of interest between the county and plaintiffs. The trial court concluded that the county was not a party to the action and had no monetary interest at stake, and therefore refused to disqualify plaintiffs’ attorney.

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

The jury found that the fair market value of the property was $155,625 before the taking and was [209]*209$118,625 after the taking, making plaintiffs’ loss $37,000. The trial court added litigation expenses, subtracted the $17,350 already received, and granted judgment on the verdict. The state appeals.

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

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

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

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

[210]*210In these cases, the offending attorney had represented the adverse party with respect to the subject matter of the case then being tried. Here, plaintiffs’ attorney never represented the state with respect to this highway condemnation. He cannot be disqualified because there is no conflict of interest affecting this case.

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

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

The purpose of plaintiffs’ videotape evidence was to demonstrate that the farm was not as safe after the [211]*211taking, and therefore less valuable. The trial court required plaintiffs to first lay a foundation for the videotape outside the presence of the jury. Plaintiffs’ witnesses described the making of the videotape and were subject to cross-examination. Gieseke testified that he began pulling onto the highway at his attorney’s signals. However, he testified that, when he began pulling out, he could not see the approaching car.

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

The interpretation of a statute is a question of law which we review de novo. State v. Haefer, 110 Wis. 2d 381, 387, 328 N.W.2d 894, 897 (Ct. App. 1982). The state argues that the notice provision of sec. 885.43, Stats.,3 applies to this videotape because it is "other evidence” within the meaning of sec. 885.42(2).4 The state also argues that the trial court violated sec. 885.44(H)5 because it made no written rulings on the [212]

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Gieseke v. Department of Transportation
426 N.W.2d 79 (Court of Appeals of Wisconsin, 1988)

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Bluebook (online)
426 N.W.2d 79, 145 Wis. 2d 206, 1988 Wisc. App. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gieseke-v-department-of-transportation-wisctapp-1988.