Brandon Winzer v. Dr. Hartmann ( 2023 )


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  •        COURT OF APPEALS
    DECISION                                          NOTICE
    DATED AND FILED                      This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    November 29, 2023
    A party may file with the Supreme Court a
    Samuel A. Christensen            petition to review an adverse decision by the
    Clerk of Court of Appeals         Court of Appeals. See WIS. STAT. § 808.10 and
    RULE 809.62.
    Appeal No.        2022AP795                                              Cir. Ct. No. 2018CV1052
    STATE OF WISCONSIN                                       IN COURT OF APPEALS
    DISTRICT II
    BRANDON WINZER,
    PLAINTIFF-APPELLANT,
    V.
    DR. HARTMANN,
    DEFENDANT-RESPONDENT,
    MERCY MEDICAL CENTER,
    DEFENDANT.
    APPEAL from an order of the circuit court for Winnebago County:
    TERESA S. BASILIERE, Judge. Affirmed.
    Before Gundrum, P.J., Grogan and Lazar, JJ.
    No. 2022AP795
    Per curiam opinions may not be cited in any court of this state as precedent
    or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
    ¶1      PER CURIAM. Brandon Winzer appeals pro se from an order of the
    circuit court. He claims the court erred “in dismissing Dr. Hartmann from all claims
    and causes of action” and in denying Winzer’s motion for the appointment of
    counsel. For the following reasons, we affirm.
    Background
    ¶2      In December 2018, Winzer filed suit alleging medical malpractice by
    Hartmann and Mercy Medical Center in connection with an alleged misdiagnosis of
    a cancerous tumor in October 2012. Mercy filed a motion to dismiss, and Hartmann
    joined the motion. The circuit court granted the motion on the basis that the case
    was time-barred. Winzer appealed, and we reversed, concluding “the allegations of
    the complaint do not establish that Winzer’s claim is time-barred as a matter of law.”
    ¶3      On remand, Hartmann moved to dismiss based on Winzer’s failure to
    serve him with the complaint. The circuit court granted the motion and dismissed
    the complaint without prejudice as against Hartmann. The court also denied a
    renewed motion by Winzer for the appointment of counsel.
    Discussion
    ¶4      Where no relevant facts are in dispute, as in this case, whether proper
    service of process has been made is a question of law we review de novo. See
    Culver v. Kaza, 
    2021 WI App 57
    , ¶14, 
    399 Wis. 2d 131
    , 
    963 N.W.2d 865
    . As to
    the circuit court’s refusal to appoint counsel, such a decision will be upheld unless
    the court erroneously exercised its discretion. See Piper v. Popp, 
    167 Wis. 2d 633
    ,
    2
    No. 2022AP795
    643, 658, 
    482 N.W.2d 353
     (1992); Joni B. v. State, 
    202 Wis. 2d 1
    , 10-11, 
    549 N.W.2d 411
     (1996).
    ¶5     With Winzer’s first issue, he claims the circuit court erred “in
    dismissing Dr. Hartmann from all claims and causes of action,” asserting the court
    erred because “it’s a miscarriage of justice for Dr. Hartmann not to be held liable
    for his actions” and because the court, according to Winzer, “made no legal
    determination as to why Dr. Hartmann was being dismissed from all claims &
    causes of action.”
    ¶6     We do not address this issue because Winzer’s six-sentence
    “argument” on it is completely undeveloped. See ABKA Ltd. P’ship v. Board of
    Rev., 
    231 Wis. 2d 328
    , 349 n.9, 
    603 N.W.2d 217
     (1999) (This court will not address
    undeveloped arguments.). Additionally, it is Winzer’s burden to demonstrate how
    the circuit court erred, and he does not attempt to show us how the court erred by
    dismissing the complaint as against Hartmann due to Winzer’s failure to serve
    Hartmann. See Gaethke v. Pozder, 
    2017 WI App 38
    , ¶36, 
    376 Wis. 2d 448
    , 
    899 N.W.2d 381
     (noting that the appellant bears the burden of demonstrating that the
    circuit court erred). An appellant cannot prevail if he does not even try.
    ¶7     As to Winzer’s assertion that the circuit court “made no legal
    determination as to why Dr. Hartmann was being dismissed from all claims &
    causes of action,” Winzer is simply wrong. The court’s April 19, 2022 order
    indicates that “all claims and causes of action against Dr. Hartmann in this lawsuit
    are dismissed” for the reasons stated by the court in its “oral ruling.” In that
    March 17, 2022 oral ruling, the court unmistakably indicated it was dismissing the
    complaint as to Hartmann because, as Winzer himself admitted before the circuit
    court, he had no proof he had served Hartmann with the complaint. See Hagen v.
    3
    No. 2022AP795
    City of Milwaukee Employes’ Ret. Sys. Annuity & Pension Bd., 
    2003 WI 56
    , ¶12,
    
    262 Wis. 2d 113
    , 
    663 N.W.2d 268
     (“The plaintiff has the burden to prove
    compliance with statutory service requirements, that is, to establish that the
    defendant was properly served and is therefore subject to the court’s jurisdiction.”).
    The court stated, “It is very clear under Wisconsin law, specifically under [WIS.
    STAT. §] 801.11 [(2021-22)1], personal jurisdiction and manner of serving
    summons, that there was not service, and without service you cannot have
    jurisdiction over Dr. Hartmann.” The court certainly made a “legal determination
    as to why Dr. Hartmann” was being dismissed from the case.
    ¶8       Considering the circuit court’s denial of Winzer’s request for the
    appointment of counsel, we note that this was a “renewed” request by Winzer. He
    had previously moved for the appointment of counsel, which motion was denied in
    2019. He filed a motion for reconsideration, which the court also denied. In denying
    Winzer’s most recent request for counsel, the court referred back to the reasons it
    provided in its previous order denying his earlier motion for reconsideration. In that
    order, the court stated that after reviewing relevant case law, it determined that “a
    Circuit Court should only appoint counsel after concluding that either the efficient
    administration of justice warrants it or that due process consideration outweighs the
    presumption against such an appointment.” The court noted that Winzer’s case
    “does not involve a loss of freedom or liberty interest of parenting such as in
    Joni B.”        “Moreover,” the court continued, cases like Winzer’s—a medical
    malpractice case—“if determined worthy by counsel, are often taken on a
    contingency fee basis, which does not preclude[] the Plaintiff here of [sic] obtaining
    counsel.” The court concluded that Winzer’s case “does not rebut the presumption
    1
    All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
    noted.
    4
    No. 2022AP795
    against appointment of counsel as the Court considered the government interest and
    resources and the government interest outweighs Plaintiff’s request.”
    ¶9        Winzer directs us in part to our supreme court’s decision in Piper. In
    that case, the court noted that “a presumption exists against appointment of counsel
    for an indigent civil litigant when the litigant, such as the litigant in this case, will
    not likely be deprived of personal liberty if unsuccessful in the litigation.” Piper,
    
    167 Wis. 2d at 637
    . It added that “[a] prisoner who appears in circuit court to defend
    a civil tort action pro se should not have greater rights to appointed counsel than an
    indigent defendant who is not incarcerated.” 
    Id. at 638
    . It held that
    when a prisoner is a defendant in a civil tort action, due
    process requires that the state grant the prisoner a
    meaningful opportunity to be heard. The circuit court must
    determine, subject to appellate review, how a meaningful
    opportunity to be heard is to be achieved in the particular
    case. We conclude that the defendant in this case does not
    have a constitutional right to appointed counsel, given that
    he had no liberty interest at stake, appeared personally in
    circuit court to defend himself, and had a meaningful
    opportunity to defend himself pro se.
    
    Id. at 658-59
    .
    ¶10       The Piper court, as Winzer notes, discussed three due process
    “elements” “to be evaluated in deciding whether counsel must be appointed: (1) the
    private interests at stake; (2) the risk that the procedures used will lead to erroneous
    decisions; and (3) the government’s interest at stake.” 
    Id. at 647
    . The court
    ultimately determined that the incarcerated civil defendant was not entitled to the
    appointment of counsel to defend himself against a civil lawsuit. 
    Id. at 655-56
    .
    Related to the “private interests at stake,” the Piper court stated:
    The property interest which the indigent civil litigant is
    defending in this case, while significant, is not as significant
    as the liberty interests at stake when a parent’s parental rights
    5
    No. 2022AP795
    are terminated. The interests at stake in the underlying civil
    tort action in this case are not distinguishable from those at
    stake in the every day civil tort actions brought for money
    damages.
    
    Id. at 649
    .
    ¶11     Considering the private interests at issue in the case now before us,
    we observe that Winzer, a prisoner like the civil litigant in Piper, is the plaintiff in
    this civil tort action, whereas the litigant in Piper was the defendant. The upshot of
    this is that unlike the Piper litigant, Winzer is not at risk of incurring direct financial
    loss (i.e., a civil judgment against him) if he does not put forth an ideal case. Nor is
    he at risk of greater loss of liberty or of possibly losing rights to children. See Dane
    Cnty. Dep’t of Human Servs. v. Mable K., 
    2013 WI 28
    , ¶48, 
    346 Wis. 2d 396
    , 
    828 N.W.2d 198
     (recognizing that parents in termination of parental rights cases “have
    a statutory right to representation by an attorney under WIS. STAT. § 48.23(2)”).
    Winzer’s interests are certainly no stronger than the interests of the Piper litigant.
    ¶12     In considering the second and third Piper “elements,” we note that the
    circuit court in this case also indicated that because Winzer is the plaintiff in this
    tort case, he has an opportunity to potentially secure legal representation on a
    contingency-fee basis. As the court noted, “the Plaintiff’s case, if determined
    worthy by counsel, [is] often taken on a contingency fee basis, which does not
    preclude[] the Plaintiff here of [sic] obtaining counsel.” We note that there would
    likely be a direct correlation between the amount of harm Winzer has suffered and
    the strength of his case, i.e., the likelihood of prevailing, and the likelihood an
    attorney would be willing to take his case on a contingency basis. While a
    medical-malpractice tort claim like the one initiated by Winzer may have
    complexities to it, Winzer also has a greater chance of contingent-fee representation
    if his harm is great and the law is on his side, resulting in less chance of an erroneous
    6
    No. 2022AP795
    decision on the merits of the case. Furthermore, Winzer’s case against Hartmann
    was dismissed on the basis that he failed to serve him with the complaint. While
    Winzer desired to have counsel assist him with regard to this issue, it is not complex,
    and Winzer “had a meaningful opportunity to defend himself pro se” on the issue;
    he just failed to effect service on Hartmann. See Piper, 
    167 Wis. 2d at 659
    .
    Specifically, we see little any appointed counsel could have been done to “save”
    Winzer’s case following this failure.
    ¶13    Considering all of the above factors, we conclude that “the due
    process elements do not overcome the presumption against appointment of counsel”
    for Winzer. See 
    id. at 650
    . The circuit court did not erroneously exercise its
    discretion in denying Winzer’s renewed motion for appointment of counsel.
    By the Court.––Order affirmed.
    This    opinion   will    not       be   published.   See   WIS. STAT.
    RULE 809.23(1)(b)5.
    7
    

Document Info

Docket Number: 2022AP000795

Filed Date: 11/29/2023

Precedential Status: Non-Precedential

Modified Date: 9/9/2024