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Week of September 23, 2013

WisBar's CaseLaw Express™ is a benefit of State Bar of Wisconsin membership. Delivered each Monday, this service alerts subscribers to the decisions handed down by the Wisconsin Suprelme Court and Court of Appeals during the previous week. Access archives for previous issues on WisBar.org. Members may subscribe to this service by contacting Customer Service at (608) 257-3838 or (800) 728-7788. Members who wish to grant access to their support also should contact Customer Service to register them for this service.

Supreme Court

There are no Supreme Court Cases for last week.

    Court of Appeals

    • Animals; Contracts; Unjust Enrichment; Replevin; Liens; Evidence; Statutes; Compensation

      Errata: Grace Shaw Kennedy v. Amy S. Hunter   [PDF Version]
      Docket: 2013AP000121     2013-09-24     

      PLEASE TAKE NOTICE that corrections were made to paragraph 14 in the above-captioned opinion which was released on September 19, 2013. A corrected electronic version in its entirety is available on the court's website at www.wicourts.gov.

    • Conversion; Statutes; Employment Law; Negligence; Causation; Conspiracy

      Midwestern Helicopter, LLC v. William Coolbaugh   [PDF Version]
      Recommended for Publication
      Docket: 2013AP000060     2013-09-25     

      NEUBAUER, P.J. This case is about the conversion of a helicopter when it was allowed to be used beyond the scope authorized by its owner. A managerial employee of Midwestern Helicopters, LLC (Midwestern), allowed a pilot to take a helicopter on a skydiving job after the owner of Midwestern had established a policy that commercial events required his written permission. The pilot ended up hitting a power line and crashing the helicopter. Midwestern sued both the employee and the pilot for conversion and negligence. The theory of the case was that the employee and the pilot took the helicopter without permission from Midwestern and property damage resulted. The case was tried to the court, and the trial court ruled that the employee’s unauthorized permission to the pilot to take the helicopter out for the skydiving event, along with the resulting damage, constituted conversion. We agree and affirm.

    • Criminal Law; Constitutional Law; Search & Seizure; Warrants; Probable Cause

      State v. Andrew B. Kellett   [PDF Version]
      Docket: 2013AP000111-CR     2013-09-25     

      PER CURIAM. Andrew Kellett appeals from a judgment convicting him of possession of THC, second and subsequent. He contends the evidence should have been suppressed because it was obtained pursuant to an unlawful warrantless search. We disagree and affirm.

    • Criminal Law; Evidence; Prosecution Closing

      State v. Nicole A. Smith   [PDF Version]
      Docket: 2012AP002605-CR     2013-09-26     

      PER CURIAM. Nicole Smith appeals her criminal conviction for causing a child between the ages of thirteen and eighteen to view sexual activity contrary to Wis. Stat. § 948.055 (2011-12),[1] and an order denying her motion for a new trial.[2] She challenges the sufficiency of the evidence and remarks made by the prosecutor in closing argument. We affirm for the reasons discussed below

    • Criminal Law; Fraud; Property; Statutes; Evidence; New Trial; Ineffective Assistance of Counsel; Contracts

      State v. Greg LaPean   [PDF Version]
      Docket: 2012AP002309-CR     2013-09-26     

      Sherman, J. Greg LaPean appeals a judgment of conviction for transferring encumbered property with the intent to defraud, in violation of Wis. Stat. § 943.84(2)(a) (2011-12),[1] and an order denying his motion for postconviction relief. LaPean asks us for any one of three forms of relief: (1) reverse his conviction because the evidence was insufficient to support it; (2) reverse his conviction and grant him a new trial because the real controversy was not tried; or (3) remand his case for a Machner[2] hearing because he alleges that his postconviction motion set forth a sufficient factual basis to demonstrate that his trial counsel was ineffective. We affirm.

    • Criminal Law; Ineffective Assistance of Counsel; Evidence; New Trial; Interest of Justice

      State v. Richard Carlisle Hollenbeck   [PDF Version]
      Docket: 2012AP002254-CR     2013-09-24     

      PER CURIAM. Richard Hollenbeck appeals a judgment convicting him of armed robbery and an order denying his motion for postconviction relief. Hollenbeck contends his trial attorney was ineffective for failing to seek suppression of a witness’s testimony identifying Hollenbeck as the perpetrator. He argues the witness’s initial identification of him, which occurred during the preliminary hearing, was the product of an unnecessary and impermissibly suggestive showup. Hollenbeck also contends he is entitled to a new trial in the interest of justice. We reject Hollenbeck’s arguments and affirm.

    • Criminal Law; Ineffective Assistance of Counsel; Evidence

      State v. Alejandro Rodriguez   [PDF Version]
      Docket: 2013AP000695-CR     2013-09-25     

      GUNDRUM, J.[1] Alejandro Rodriguez appeals from a judgment of conviction and from the circuit court’s denial of his postconviction motion claiming his trial counsel was ineffective. We find no error and affirm.

    • Criminal Law; New Evidence; New Trial; Appeal Barred; Procedure; Statutes

      State v. Charles Eggenberger   [PDF Version]
      Docket: 2012AP002345     2013-09-24     

      PER CURIAM. Charles Eggenberger appeals an order denying his postconviction motion for a new trial based on newly discovered evidence. We conclude Eggenberger’s motion was procedurally barred, pursuant to Wis. Stat. § 974.06(4).[1] We also conclude Eggenberger’s newly discovered evidence claim fails on the merits. We therefore affirm.

    • Criminal Law; Parole Revocation; Hearings; Evidence; Constitutional Law; Right to Confront; New Hearing

      Arthur J. Fariole v. David Schwarz   [PDF Version]
      Docket: 2012AP001729     2013-09-24     

      PER CURIAM. Arthur J. Fariole appeals the circuit court’s order affirming a decision revoking his parole. Fariole argues: (1) that the circuit court should have held an evidentiary hearing; (2) that the circuit court should have allowed him to introduce evidence showing that the testimony of Gary Klotz, one of the witnesses at the revocation hearing, was false; (3) that the circuit court erred when it stated that he admitted to a rule violation; (4) that the hearing examiner should not have allowed Klotz to testify by phone because it violated Fariole’s constitutional right to confront and cross-examine the witnesses against him; (5) that the hearing examiner improperly admitted a written statement because it was hearsay; and (6) that he is entitled to a new parole hearing or, in the alternative, an evidentiary hearing based on newly discovered evidence. We affirm.

    • Criminal Law; Pleas; Plea Withdrawal; Statutes; Immigration Warning; Sentencing; Resentencing; Judicial Authority-Discretion

      State v. Ali Mursal   [PDF Version]
      Recommended for Publication
      Docket: 2012AP002775-CR     2013-09-24     

      CURLEY, P.J. Ali Mursal appeals the judgment convicting him of second-degree sexual assault, contrary to Wis. Stat. § 940.225(2)(a) (2007-08),[1] and kidnapping as party to a crime, contrary Wis. Stat. §§ 940.31(1)(c) & 939.05 (2007-08), and appeals the orders denying his postconviction motions. Mursal argues that he is entitled to withdraw his plea because the trial court, in providing him the immigration warning pursuant to Wis. Stat. § 971.08(1)(c), did not state the statutory language verbatim, but instead gave a warning that substantially complied with the statute and included very slight linguistic differences that in no way altered the meaning of the warning. In the alternative, Mursal argues that he is entitled to resentencing because the trial court erroneously exercised its discretion. We affirm.

    • Criminal Law; Pro Se; Appeals; Judicial Authority-Discretion

      Errata: State v. Raymond L. Morrison   [PDF Version]
      Docket: 2012AP002008     2013-09-24     

      PLEASE TAKE NOTICE that corrections were made to paragraphs four and five in the above-captioned opinion which was released on September 17, 2013. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

    • Criminal Law; Restitution; Statutes; Causation

      State v. Deris D. Huley   [PDF Version]
      Docket: 2013AP000682-CR     2013-09-26     

      Sherman, J.[1] The State appeals an order of the circuit court denying its motion for reconsideration of the court’s denial of restitution to the victim of a hit and run accident. I affirm.

    • Criminal Law; Statues; Burden Of Proof; Elements of Charge; Ineffective; New Trial; Evidence

      Errata: State v. Adrian Castaneda   [PDF Version]
      Docket: 2012AP001596-CR     2013-09-26     

      PLEASE TAKE NOTICE that corrections were made to Subheading A on p. 8 in the above-captioned opinion, which was released on August 13, 2013. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

    • Employment Law; Contracts; Attorney Fees; Damages; Prejudgment Interest; Wages; Statutes; Summary Judgment

      Thomas C. Nolasco v. Ameripath Milwaukee, S.C.   [PDF Version]
      Docket: 2012AP002714     2013-09-25     

      PER CURIAM. In this employment contract dispute, AmeriPath Milwaukee, S.C. d/b/a AmeriPath Elmbrook appeals a judgment entered in favor of pathologists Thomas Nolasco and Krishnan Unni (the Doctors). We conclude that the employment agreements are unambiguous and that the awards for damages, attorneys’ fees and prejudgment interest were proper. We affirm.

    • Family Law; Divorce; Placement; Visitation; Statutes; Property Division; Best Interest of Child; Constitutional Law

      Greg S. VanderHeiden v. Huynh Bich VanderHeiden   [PDF Version]
      Docket: 2011AP002672     2013-09-24     

      PER CURIAM. Huynh Bich VanderHeiden appeals from a judgment of divorce and from an order granting her former husband, Greg VanderHeiden, periods of visitation with Huynh’s son Evan.[1] Huynh argues the circuit court misapplied the law by granting Greg visitation with Evan, and she also challenges several of the court’s other rulings. Greg cross-appeals, arguing the court should have granted him primary physical placement of Evan. We reject both parties’ arguments and affirm.

    • Family Law; TPR; Evidence; Ineffective Assistance of Counsel

      State v. Roberta W.   [PDF Version]
      Docket: 2013AP000936     2013-09-24     

      KESSLER, J.[1] Roberta W. appeals from the order terminating her parental rights to her son, Philtarion W. She also appeals from an order denying postdisposition relief. We affirm.

    • Family Law; TPR; Ineffective; Jury Instructions; New Trial

      Ozaukee County DHS v. Callen D.M.   [PDF Version]
      Docket: 2013AP001157     2013-09-25     

      BROWN, C.J.[1] Callen D. M. appeals the termination of her parental rights to Carson E. B. Callen claims that her trial counsel was ineffective in failing to request a jury instruction on Callen’s alleged impossibility to perform the conditions required for Carson’s return to her care, because Callen was incarcerated during the final months that the petition was pending. She argues that the circuit court erred in denying, without an evidentiary hearing, her postdisposition motion for a new trial based on ineffective assistance of trial counsel.

    • Juvenile Law; Criminal Law; Waiver; New Hearing; Jurisdiction; Delinquent; Statutes; Ineffective Assistance of Counsel

      State v. Jace H.   [PDF Version]
      Docket: 2012AP002479     2013-09-25     

      REILLY, J.[1] The State sought the waiver of Jace H. into adult court, utilizing the offenses alleged in two pending juvenile court cases as the basis for the waiver petition. The juvenile court waived Jace into adult court. It was thereafter determined that the offenses alleged in one of the two juvenile cases could not legally serve as a basis to waive juvenile court jurisdiction, and the court vacated its waiver order as to those charges. The juvenile court rejected Jace’s motion to deny the waiver petition in the case where the offenses formed a legal basis for waiver. Jace appeals the denial of his request for dismissal of the waiver petition or, alternatively, for a new waiver hearing. We affirm.

    • Legal Malpractice; Misrepresentation; Summary Judgment; Preclusion; Settlement; Contract Construction-Interpretation; Evidence; Release; Statutes; Clauses; Negligence

      James C. Bourne v. Quarles & Brady, LLC   [PDF Version]
      Docket: 2013AP000211     2013-09-26     

      LUNDSTEN, J. This is an appeal from an order dismissing from a malpractice suit an attorney who voluntarily dismissed an appeal and then failed to timely file a subsequent appeal involving the same subject matter. The attorney, Donald Schott, was the third attorney to represent the client, James Bourne, in connection with misrepresentation claims Bourne brought against a former business partner and others. Bourne retained a new attorney and brought a legal malpractice action against Schott and his previous attorneys.[1]

    • OWI; Anonymous Tips; Evidence; Traffic Stops; Reasonable Suspicion

      County of Manitowoc v. Ryan A. Spatchek   [PDF Version]
      Docket: 2013AP000986     2013-09-25     

      NEUBAUER, P.J.[1] Ryan A. Spatchek appeals from a judgment of conviction for operating while intoxicated (OWI). Spatchek was stopped after the County of Manitowoc received an anonymous tip that Spatchek was driving drunk and the arresting officer observed Spatchek cross the fog line approximately three times in about one mile. Spatchek challenged his stop on the ground that the evidence was insufficient to justify the stop. The trial court denied the motion to suppress, concluding that, given the totality of the circumstances, the officer had reasonable suspicion to stop Spatchek’s vehicle. We agree and affirm Spatchek’s subsequent conviction.

    • OWI; Probable Cause; Refusal; Revocation; Arrest; Evidence; Statutes

      State v. George R. Ferrell   [PDF Version]
      Docket: 2012AP002602     2013-09-26     

      KLOPPENBURG, J.[1] George Ferrell appeals an order finding that the arresting officer had probable cause to arrest Ferrell for operating while intoxicated, and upholding the one-year revocation of his operating privileges. Ferrell argues that the arresting officer lacked probable cause to arrest him for operating while intoxicated. This court concludes that the arresting officer had probable cause to arrest Ferrell and therefore affirms.

    • OWI; Prohibited Alcohol Concentration (PAC); Traffic Stops; Motor Vehicle Law; Collective Knowledge Doctrine; Reasonable Suspicion; Evidence Ruling

      City of Stevens Point v. Katrina L. Shurpit   [PDF Version]
      Docket: 2013AP000538     2013-09-26     

      LUNDSTEN, J.[1] Katrina Shurpit appeals her convictions on citations for operating a motor vehicle with a prohibited alcohol concentration and operating a motor vehicle while under the influence of an intoxicant. Her only challenge to her convictions is a challenge to the investigative stop that led to them. Shurpit argues that the “collective knowledge” doctrine should be applied in her favor to impute certain information to the police officer who stopped her. She also argues that, even if the doctrine is not applied, the circuit court erred in concluding that there was reasonable suspicion for the stop. I reject Shurpit’s arguments, and affirm.

    • Property; Zoning; Variance; Appeals; Procedure; Ordinances; Towns & Cities; Statutes; Writ of Certiorari; Declaratory Judgment; County; Authority

      Stephen Hegwood v. Town of Eagle Zoning Board of Appeals   [PDF Version]
      Recommended for Publication
      Docket: 2012AP002058     2013-09-25     

      GUNDRUM, J. The Town of Eagle Zoning Board of Appeals appeals from a judgment of the circuit court reversing upon certiorari review the Board’s decision to deny Stephen Hegwood two zoning variances. The Board contends the court erred when it reviewed Hegwood’s appeal as a certiorari action, arguing that Hegwood needed to bring his action as one for declaratory judgment. The Board further asserts that the court erred in concluding the Board proceeded on an incorrect theory of law in applying the town’s ordinance to Hegwood’s property.[1] We conclude that the circuit court properly considered Hegwood’s appeal as a certiorari action. We further conclude that under the statutory scheme for regulation of shorelands, the Board had no authority to enforce the town’s ordinance upon Hegwood’s shoreland property and it therefore proceeded under an incorrect theory of law when it considered and denied Hegwood’s variance request. We affirm.