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COURT OF APPEALS DECISION DATED AND RELEASED September 19, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0562
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
OLSTEN CORPORATION,
Plaintiff-Respondent,
v.
PATRICIA G. HASS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Patricia Hass appeals from a circuit court order
entering a judgment against her in favor of Olsten Corporation in the amount of
$345,000 for breach of contract and punitive damages. She argues that the circuit court erred: (1) by failing to notify her that her
trial was set as the primary trial for October 31, 1994, leaving her without
time to hire counsel; (2) by failing to grant a continuance; and (3) by failing
to inform her that evidence introduced at trial had to be offered and accepted
before it could be considered by the jury.
She asks for a new trial in the interest of justice because the real
controversy was not fully tried. For
the reasons set forth below, we affirm.
BACKGROUND
In 1985, Patricia Hass (Hass)
signed a contract with Olsten Corporation (Olsten) to become an Olsten licensee
in La Crosse, Wisconsin, providing temporary workers to area businesses under
the Olsten name. In conducting that
business over the next several years, Olsten built relationships with area
employers. In 1989, in derogation of
her contract, Hass changed the name under which she did business to
"Olympic." She also converted
to her own use several large checks from area employers which were intended for
Olsten.
In addition to pressing
criminal charges against Hass, in 1990 Olsten brought the civil suit underlying
this appeal. Olsten sought restitution
and punitive damages. At the request of
first one party, then another, the civil case was set over for trial several
times, among other reasons, because Hass was imprisoned on criminal convictions
and because she sought additional time to hire an attorney. The case was tried in October 1994, and
resulted in a restitution and punitive damages verdict of $345,000 in Olsten's
favor. Postconviction motions followed,
then this appeal.
OCTOBER TRIAL DATE/HIRING AN ATTORNEY
Hass argues that the
circuit court erred in failing to timely notify her that her trial was set as
the primary trial for October 31, 1994.
Hass relied on the court's practice during previous set-overs whereby
the court sent her written notification by mail of the new trial date. Hass claims that she did not receive
notification until five days before the trial date, and then only by accident
when the attorney of an acquaintance informed her that he had seen her case
posted as primary. Hass then attempted
to hire an attorney, but was unable to obtain one on such short notice. Hass also argues that the circuit court
erred in denying her motion for continuance.
The record contains a
pretrial order dated October 21, 1993, informing Hass that her case was set as
a back-up case for October 31, 1994.
More importantly, however, the pretrial order also set an August 1, 1994
date for naming expert witnesses, an October 1, 1994 date for conducting
discovery, and an October 15, 1994 date for filing motions capable of
being determined before trial. A
reasonable person desiring to hire an attorney would have done so before the
deadlines in the pretrial order ran, regardless of the trial date.
Hass attempts to parlay
into circuit court error her self-serving statement that she planned to hire an
attorney after discovery closed, no experts could be named and no motions could
be brought. Her assertion is unsupported
by common sense or the record. Hass
concedes that she made no effort to hire an attorney until a few days before
the October 31, 1994 trial date, at which time all the pretrial deadlines had
already run.
The decision to grant or
deny a continuance is within the discretion of the circuit court. Robertson-Ryan & Associates, Inc.
v. Pohlhammer, 112 Wis.2d 583, 586-87, 334 N.W.2d 246, 249 (1983). In light of the unreasonable delay in hiring
an attorney before the pretrial order dates, the circuit court did not
erroneously exercise its discretion in maintaining the October 31, 1994 trial
date. Further, the history of this case
shows a three-and-one-half-year period of delay, during which Hass requested,
and was granted, a set-over to hire an attorney. Her failure to do so when granted a previous continuance bolsters
the circuit court's decision.
EVIDENCE
At trial, Hass had her exhibits marked, and
she cross-examined Olsten's witnesses regarding her exhibits.[1] However, she did not offer her exhibits into
evidence. When she tried to argue from
her exhibits in closing argument, the circuit court precluded her from doing so
because her exhibits were not evidence.
Hass argues that the circuit court erred in failing to advise her that
her exhibits had to be offered and accepted before they could become evidence
from which she could make a closing argument, or before the jury could consider
her exhibits.
A circuit court has the
duty to protect the rights of litigants who appear in court. Village of Big Bend v. Anderson,
103 Wis.2d 403, 407, 308 N.W.2d 887, 890 (Ct. App. 1981). However, a court cannot serve as both
advocate and judge. State v.
Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992). The right to self-representation is not a
license not to comply with relevant rules of procedural and substantive
law. Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Waushara
County v. Graf, 166 Wis.2d 442, 452, 480 N.W.2d 16, 20 (1992). Hass knew that she was disadvantaged in
appearing without an attorney, but did not inform herself of elemental rules of
evidence. It was not the court's
responsibility to act as her advocate and inform her of shortcomings in her
case or her presentation of it.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.