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    Other Significant Cases

    Daniel W. Hildebrand

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 6, June 2006

    Other Significant Cases

    Space does not permit a more complete discussion, but the holdings of these other informative cases are summarized below.

    Constitutional Law

    • Schilling v. Crime Victims Rights Bd., 2005 WI 17, 278 Wis. 2d 216, 692 N.W.2d 623 (article I, section 9m of Wisconsin Constitution, providing that state shall treat crime victims with fairness, dignity, and respect, is not self-executing; Crime Victims Rights Board therefore had no authority to reprimand district attorney for failure to inform victims that he would play highly upsetting tape of 9-1-1 call at sentencing hearing without first warning the victims).

    Attorneys

    • State ex rel. Individual Subpoenaed v. Davis, 2005 WI 70, 281 Wis. 2d 431, 697 N.W.2d 803 (judge in John Doe proceeding has no statutory or inherent authority to require attorneys to take secrecy oath).
    • Mrozek v. Intra Fin. Corp., 2005 WI 73, 281 Wis. 2d 448, 699 N.W.2d 54 (client's guilty plea in securities fraud case does not provide issue preclusion or an in pari delicto defense to attorney malpractice).
    • Disciplinary Proceedings Against Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, and Disciplinary Proceedings Against Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367 (over three dissents, court maintains policy of assessing Office of Lawyer Regulation's full costs and attorney fees against attorneys who successfully defend portion of charges against them).

    Torts

    • Milwaukee Metro. Sewerage Dist. v. Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658 (restatement of elements of private and public nuisance requiring, as condition of liability, existing underlying tortious conduct that causes the harm).
    • Kohn v. Darlington Community Schs., 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794 (10-year statute of repose for improvements to real property bars strict liability claim involving fall from bleachers).
    • Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis. 2d 606, 699 N.W.2d 189 (economic loss doctrine, applied through contract with general contractor, bars tort claims against subcontractors).
    • Grams v. Milk Prods. Inc., 2005 WI 112, 283 Wis. 2d 511, 699 N.W.2d 167 (tort claims based on "disappointed expectations" concerning performance of product are barred by economic loss doctrine).

    Arbitration

    • Winkelman v. Kraft Foods Inc., 2005 WI App 25, 279 Wis. 2d 335, 693 N.W.2d 756 (arbitrator has authority under contract to award punitive damages and attorney fees; attorney fees not awarded for defense of action brought to set aside award).
    • Steichen v. Hensler, 2005 WI App 117, 283 Wis. 2d 755, 701 N.W.2d 1 (State Bar's attorney fee arbitration award upheld; undocumented assertions that attorney testified falsely at arbitration hearing were insufficient to defeat summary judgment upholding award).

    Procedure

    • Menard Inc. v. Liteway Lighting Prods., 2005 WI 98, 282 Wis. 2d 582, 698 N.W.2d 738 (claim preclusion applied to bar claim seeking credit for allegedly defective products that should have been brought as compulsory counterclaim in prior suit to collect on invoices for those products).
    • Dakin v. Marciniak, 2005 WI App 67, 280 Wis. 2d 491, 695 N.W.2d 867 (amended complaint does not relate back to party added after expiration of statute of limitation).
    • Sheboygan Co. Dep't of Soc. Servs. v. Matthew S., 2005 WI 84, 282 Wis. 2d 150, 698 N.W.2d 631 (circuit court's competency to proceed cannot be waived in termination of parental rights case under Wis. Stat. section 48.422(2); supreme court refused to extend holding of Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of mandatory statutory time limits under Wis. Stat. chapter 48).

    Evidence

    • State v. Denis L.R., 2005 WI 110, 283 Wis. 2d 358, 699 N.W.2d 154 (statutes requiring therapist to report child abuse extinguish therapist-patient privilege under Wis. Stat. section 905.02).
    • Carney-Hayes v. Northwest Wis. Home Care Inc., 2005 WI 118, 284 Wis. 2d 56, 699 N.W.2d 524 (defendant in medical malpractice case does not have privilege to refuse to testify concerning standard of care and whether conduct conformed to that standard).

    Insurance

    • Everson v. Lorenz, 2005 WI 51, 280 Wis. 2d 1, 695 N.W.2d 298 (no commercial general liability policy coverage for negligent misrepresentation, because claim did not result from "property damage" caused by "occurrence" or "accident").

    Business Law

    • Gottsacker v. Monnier, 2005 WI 69, 281 Wis. 2d 361, 697 N.W.2d 436 (interested LLC members were not prohibited from voting to transfer property to themselves, but were required to deal fairly in matter involving conflict of interest).
    • Hatleberg v. Norwest Bank Wis., 2005 WI 109, 283 Wis. 2d 234, 700 N.W.2d 15 (financial advisor has duty to inform settlor of errors in trust instrument).
    • Mayberry v. Volkswagen of Am. Inc., 2005 WI 13, 278 Wis. 2d 39, 692 N.W.2d 226 (damages for breach of warranty under Wis. Stat. section 402.714(2) for car is difference between vehicle's warranted value and its actual value at time and place of acceptance; use of car after repair is not special circumstance that would reduce damages).

    Administrative Law

    • Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572 (uncorroborated hearsay evidence insufficient to justify board's decision to terminate benefits).
    • Marder v. Board of Regents, 2005 WI 159, 286 Wis. 2d 252, 706 N.W.2d 110 (ex parte communications do not affect due process right of terminated employee to fair hearing before fair tribunal unless decision maker is given new and material information).

    Family Law

    • Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant & Iowa Counties, 2005 WI 106, 283 Wis. 2d 258, 700 N.W.2d 863 (rule of comity applies to govern transfer of assets of person who is subject to guardianship in another state when that person's change of residence is requested by family members).
    • Chen v. Warner, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 758 (mother's decision to forego highly compensated employment to stay at home with children was "reasonable").
    • Vlies v. Brookman, 2005 WI App 158, 285 Wis. 2d 411, 701 N.W.2d 642 (family support as substitute for child support and maintenance must be calculated to provide no less child support than would be awarded under child support guidelines).

    Municipal Law

    • Osterhues v. Board of Adjustment, 2005 WI 92, 282 Wis. 2d 228, 698 N.W.2d 701 (board of adjustment has authority to conduct de novo review, including considering new evidence, for a conditional use permit under Wis. Stat. section 59.694).
    • Lamar Cent. Outdoor Inc. v. Board of Zoning Appeals, 2005 WI 117, 284 Wis. 2d 1, 700 N.W.2d 87 (zoning board required to explain why applicant does or does not satisfy statutory criteria).

    Criminal Law

    • State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884 (Wis. Stat. section 974.07(6) gives persons convicted of crimes right to conduct DNA testing of physical evidence if they satisfy statutory prerequisites concerning biological material in government's possession).
    • State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98 (DNA evidence showing defendant was not donor of certain biological evidence at a crime scene was critical in overturning 1981 conviction).
    • State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315 (obstructing officer by providing false information was not "exculpatory denial"; State v. Espinoza, 2002 WI App 51, 250 Wis. 2d 804, 641 N.W.2d 484, overruled).

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