Lloyd N. Johnson v. Thomas Harding

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.
October 17, 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. 2022AP1537 Cir. Ct. No. 2018CV1322

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

LLOYD N. JOHNSON,

PLAINTIFF-APPELLANT,

V.

THOMAS HARDING, DAVID MACHEREY, REMEDIOS AZCUETA, MILWAUKEE
COUNTY MENTAL HEALTH COMPLEX, MILWAUKEE COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES AND MILWAUKEE COUNTY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
LINDSEY CANONIE GRADY, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Geenen, J.

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).
No. 2022AP1537

¶1 PER CURIAM. Lloyd N. Johnson appeals an order dismissing his
breach of contract claim against Drs. Thomas Harding and David Macherey,
Remedios Azcueta, the Milwaukee County Mental Health Complex (“MHC”),
Milwaukee County Department of Health and Human Services (“DHHS”), and
Milwaukee County (collectively, “the Defendants”). Johnson alleged that the
Milwaukee County Mental Health Division Voluntary Application and Treatment
Agreement (“Agreement”) with MHC was an enforceable contract for medical
care that was breached by the Defendants. The circuit court concluded that the
Agreement was too indefinite to be an enforceable contract and that Johnson’s
breach of contract claim was duplicative of his negligence claims. The circuit
court granted the Defendants’ motion for judgment on the pleadings as to
Johnson’s breach of contract claim, and upon review, we affirm.

BACKGROUND

¶2 On February 28, 2012, Johnson voluntarily presented himself to
MHC complaining of depression, suicidal ideations, paranoia, auditory
hallucinations, delusions of guilt, shame, and other psychotic symptoms. On
February 29, 2012, the Defendants medically cleared and discharged Johnson from
MHC. On March 3, 2012, Johnson was admitted to Froedtert Memorial Lutheran
Hospital (“Froedtert”) because he had severed both of his testicles and earlobes
and cut his penis with a pair of scissors. Johnson remained at Froedtert for five
days.

¶3 On March 8, 2012, Johnson was transferred to MHC. Upon
admission, a nurse noted that Johnson was at risk for self-mutilation and had a
history of impulsive acts and self-harm. The nurse recommended that Johnson
should be evaluated for one-on-one (“1:1”) monitoring to prevent serious self-

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harm and that there was a need to be careful about Johnson’s access to dangerous
items.

¶4 At MHC, Johnson was placed on a 1:1 observation level by the
doctor that had previously medically cleared and discharged him on February 29,
2012. The doctor stated in a memo, “Please place on one to one and in own room
with I&O [Input & Output].” Between March 9, 2012, and March 15, 2012,
Dr. Macherey and a registered nurse at MHC recorded numerous instances in
which Johnson reported a continued urge to self-mutilate and remove his penis.
Between March 12, 2012 and March 14, 2012, Dr. Macherey documented that
Johnson had repeatedly talked about “finishing the job,” referring to removing his
genitals, and Dr. Macherey continued to recommend behavioral 1:1 monitoring.

¶5 On March 13, 2012, Johnson and Dr. Macherey, for MHC, signed
the Agreement. It provided:

Believing my condition may be helped by inpatient
psychiatric treatment, I hereby make application for
voluntary admission to the Milwaukee County Health
division.

I understand that this admission is for diagnostic
evaluation and/or treatment. By this application, I agree to
participate in the evaluation and/or treatment plan
developed for me.

I further understand and have been told that I have
the right to terminate this treatment agreement and leave
the facility upon submitting a written or oral request to the
treatment staff.

I also understand that if (at any time of my request
to leave) I am considered to be mentally ill,
developmentally disabled, or drug dependent, considered a
proper subject for treatment and meet a standard
dangerousness, I can be detained by the Hospital, that no
further treatment will be given without my consent, except
in an emergency; and that there will be a hearing on my
case by an officer of the court within 72 hours (exclusive of

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Saturday, Sunday, and holidays), and the court will decide
whether I should be detained further.

¶6 On March 15, 2012, Dr. Macherey ordered that Johnson continue
behavioral 1:1 monitoring “for self-mutilating behavior,” but on the same date,
Dr. Macherey also ordered that behavioral 1:1 monitoring be discontinued. On
March 18, 2012, Johnson had his wound dressing changed three separate times.
During one of these dressing changes and when Johnson was not on 1:1
observation, Johnson accessed a pair of surgical scissors left in his room, which he
then used to sever his penis.

¶7 On February 14, 2018,1 Johnson sued the Defendants in Milwaukee
County Circuit Court, and in an amended complaint filed on May 5, 2020, alleged
the following causes of action: negligence (Counts I and II); violation of article I,
section 6 of the Wisconsin Constitution (Count III); violation of Wisconsin’s Safe
Place Statute, WIS. STAT. § 101.11 (2021-22)2 (Count IV); and breach of contract,
i.e., breach of the Agreement (Count V). Johnson also asserted that the statutory
cap on compensatory damages, WIS. STAT. § 893.80(3), violated equal protection
and was therefore unconstitutional as applied to him.

¶8 On July 31, 2020, the Defendants filed a motion for partial judgment
on the pleadings pursuant to WIS. STAT. § 802.06(3) seeking dismissal of
Johnson’s non-negligence claims, Counts III-V. In response, Johnson conceded
his claims under Counts III and IV, and they were dismissed. In a separate written

1
In 2014, Johnson filed suit in federal court alleging violations of 42 U.S.C. § 1983, but
on January 18, 2018, the federal district court dismissed Johnson’s federal claims with prejudice
and relinquished jurisdiction over Johnson’s remaining state law claims.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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decision and order, the circuit court granted the Defendants’ motion with respect
to Count V, and denied Johnson’s demand for damages in excess of the statutory
cap. The circuit court concluded that the Agreement was too indefinite to be an
enforceable contract and that Johnson’s contract claim was duplicative of his
negligence claim.

¶9 The parties ultimately settled Johnson’s remaining negligence claims
for the statutory cap of $50,000, preserving Johnson’s right to pursue any rights
available to him via his breach of contract claim. The circuit court entered a final
order of dismissal. Johnson appealed the circuit court’s order solely as to the
dismissal of his breach of contract claim.

¶10 For the reasons set forth below, we affirm.

DISCUSSION

¶11 “An order granting judgment on the pleadings presents a question of
law that is reviewed de novo.” Soderlund v. Zibolski, 2016 WI App 6, ¶21, 366
Wis. 2d 579, 874 N.W.2d 561. In reviewing such orders, we first consider
whether the complaint states a claim, and if so, we consider whether the
responsive pleading creates a genuine issue of material fact. McNally v. Capital
Cartage, Inc., 2018 WI 46, ¶23, 381 Wis. 2d 349, 912 N.W.2d 35. “Judgment on
the pleadings is proper only if there are no genuine issues of material fact.” Id.

¶12 In order to state a claim for breach of contract, a plaintiff must allege
the existence of an enforceable contract. See Brew City Redevelopment Grp.,
LLC v. The Ferchill Grp., 2006 WI App 39, ¶11, 289 Wis. 2d 795, 714 N.W.2d
582. In evaluating whether an enforceable contract was formed, we examine
whether the terms of the alleged contract are “definite as to the parties’ basic

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commitments and obligations.” Management Comput. Servs., Inc. v. Hawkins,
Ash, Baptie & Co., 206 Wis. 2d 158, 178, 557 N.W.2d 67 (1996). “A contract
must be definite and certain as to its basic terms and requirements to be
enforceable.” Metropolitan Ventures, LLC v. GEA Assocs., 2006 WI 71, ¶22,
291 Wis. 2d 393, 717 N.W.2d 58. Additionally, a contract is illusory and
unenforceable where the contract is conditional on some fact or event that is
wholly under one party’s control and their bringing it about is left solely to their
discretion. Id. at ¶33. Whether an enforceable contract was formed is a question
of law that we review de novo. Id. at ¶22.

¶13 In his amended complaint, Johnson alleged that by signing the
Agreement, the Defendants agreed to provide “mental health treatment,” “care,”
and “medical treatment” until he was no longer a danger to himself or others.
Johnson alleged that the Agreement constituted a promise that the Defendants
would protect Johnson from harming himself. Johnson argues that these promises
were breached when the Defendants discontinued 1:1 monitoring and allowed
Johnson unsupervised access to a pair of surgical scissors.

¶14 We disagree with Johnson and conclude, as did the circuit court, that
the Agreement is too indefinite and uncertain to form an enforceable contract.
Considering both the language of the Agreement and the surrounding
circumstances, it is clear that the Agreement is an application for admission to
MHC under WIS. STAT. § 51.10, the statute governing the voluntary admission of
adults to an approved inpatient treatment facility.

¶15 First, by its title and language, the Agreement is undoubtedly an
application for admission to MHC. The Agreement’s title refers to the document
as a “voluntary application and treatment agreement,” and the first sentence

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acknowledges that applicants, believing their condition may be helped by inpatient
psychiatric treatment, “make application for voluntary admission to the
Milwaukee County Health division.” Whether to actually admit Johnson is within
the sole discretion of MHC. See Metropolitan Ventures, 2006 WI 71, ¶33.

¶16 Additionally, the plain language of the Agreement contains no
reasonably definite or certain promises between Johnson and MHC. While the
first paragraph purports to bind Johnson to participate in the evaluation/treatment
plan that MHC might develop for him if he is admitted, the Agreement also
contains an acknowledgement of his rights under WIS. STAT. § 51.10(5)(c): that
he can terminate treatment and leave the facility at will upon request unless he is
determined by the treatment director to be dangerous and a statement of
emergency detention is filed. Id. These are not reasonably definite or certain
contract terms for mental health care. Rather, they are recitals and
acknowledgements of the statutory requirements for voluntary admission to MHC
under § 51.10 and the statutory rights and obligations of both Johnson and MHC
under § 51.10(5)(c). That is, even if the Agreement did not state it, Johnson would
still have a statutory right to terminate treatment at will, and MHC would still have
the statutory obligation to detain him if certain statutory factors were met. These
rights and obligations stem from § 51.10, not the Agreement.

¶17 Johnson argues that the parties contracted for reasonable mental
health treatment to protect Johnson from his known ideations of self-harm and for
a specifically tailored treatment plan to be implemented, but nothing in the
Agreement states this. The Agreement does not address the condition for which
Johnson was to be admitted or treated. There is no medication or therapy plan.
There is no discrete treatment or procedure prescribed. The Agreement does not
set forth any independent obligations for the Defendants. Nothing written in the

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Agreement implies that the parties understood each other to be undertaking any
specific obligations aside from potentially admitting Johnson to MHC. There
were no reasonably certain promises made between the parties. Therefore, the
Agreement is not an enforceable contract.3

¶18 Johnson also argues that the circuit court erred when it dismissed his
breach of contract claim as duplicative of his negligence claims because, at the
pleading stage, he is allowed to plead a medical malpractice claim as both a
negligence and a breach of contract claim. Doing so at the pleading stage,
Johnson argues, does not result in double recovery. While it is true that medical
malpractice actions in Wisconsin may sound in either tort or contract,
McMahon v. Brown, 125 Wis. 2d 351, 353, 371 N.W.2d 414 (Ct. App. 1985), and
double recovery on the same set of facts is generally prohibited, Wills v. Regan,
58 Wis. 2d 328, 345, 206 N.W.2d 398 (1973), we need not reach this issue
because the Agreement is not an enforceable contract upon which a breach of
contract claim can be based.

¶19 In sum, we conclude that the Agreement is too indefinite and
uncertain to form an enforceable contract. Johnson did not state a valid claim for
breach of contract, and accordingly, we affirm the circuit court’s order.

By the Court.—Order affirmed.

3
Johnson also argues that the circuit court improperly characterized his breach of
contract claim as alleging a “contract to cure.” See VanHierden v. Swelstad, 2010 WI App 16,
323 Wis. 2d 267, ¶10, 779 N.W.2d 441. Because we conclude that the Agreement is not an
enforceable contract, we need not resolve this issue.

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No. 2022AP1537

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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