|
Week
of May 5, 2008
Supreme Court Cases
Antitrust/ Price Fixing/ Summary Judgment/ Immunity/ Statutes Eichenseer v. Madison-Dane County Tavern LeagueDocket: 2005AP001063 05-06-08 DAVID T. PROSSER, J. This is an antitrust case. The plaintiffs accuse 24 taverns in the immediate vicinity of the University of Wisconsin campus in Madison and the Madison-Dane County Tavern League, Inc. (collectively, the defendants) of horizontal price-fixing violations under Wis. Stat. § 133.03(1) because, in response to pressure from city government to ban all drink specials after 8 p.m. in the city, the 24 taverns agreed to eliminate drink specials at their establishments on Friday and Saturday nights after 8 p.m. We review here a published decision of the court of appeals, Eichenseer v. Madison-Dane County Tavern League, Inc., 2006 WI App 226, 297 Wis. 2d 495, 725 N.W.2d 274, affirming the circuit court's grant of summary judgment to the defendants.
Criminal Law/ Appeal Dismissed State v. HerDocket: 2006AP001239 05-09-08 PER CURIAM. Sou Her petitioned for review of the decision of the court of appeals, State v. Her, No. 2006AP1239-CR, unpublished slip op. (Wis. Ct. App. Aug. 29, 2007), affirming a judgment of conviction for false imprisonment and carjacking while masked and affirming an order denying his postconviction motion for resentencing. After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude that this matter must be dismissed as improvidently granted.
Court of Appeals Cases
Class Action/ Attorney Fees/ Costs/ Settlement/ Standing Kiser v. JungbackerDocket: 2007AP000853 05-07-08 Recommended for PublicationNEUBAUER, J. The appeal in this class action springs from the award of attorney fees and costs in the settlement liquidating a commercial real estate investment limited partnership. The general partner and its general partners and affiliated entities appeal from the order approving the class action settlement and awarding attorney fees and costs, specifically challenging only the fees and costs. We conclude that the appellants do not have standing to appeal because they are not "aggrieved." We affirm, but remand for the trial court to address the matter of an unpaid discovery sanction imposed earlier against the certified class and its attorneys.
Criminal Law/ Complaints/ Evidence/ Custody/ Evidence Ruling/ Ineffective Assistance Of Counsel/ Prosecutorial Closing State v. PletzDocket: 2007AP000107 05-07-08
State v. Pletz
Docket: 2007AP000512 05-07-08
PER CURIAM. Eric Pletz appeals from a judgment convicting him of attempted child enticement contrary to WIS. STAT. § 948.07(1) (2003-04) and from an order denying his postconviction motion seeking a new trial. We conclude that the criminal complaint was legally sufficient, the circuit court correctly denied Pletz's motion to suppress his inculpatory statement because Pletz gave the statement voluntarily before he was in custody, Pletz waived his challenge to allegedly improper closing argument by the prosecutor, and Pletz's trial counsel did not render ineffective assistance with regard to seeking a change in venue and alleged juror bias. Therefore, we affirm.
Criminal Law/ Evidence/ Evidence Ruling/ Consent/ Searches/ Arrest State v. WesleyDocket: 2007AP001177 05-06-08 FINE, J. Tyrone M. Wesley appeals a judgment entered after a jury found him guilty of armed robbery with the threat of force, see WIS. STAT. § 943.32(2); attempted armed robbery with the threat of force, see WIS. STAT. §§ 943.32(2), 939.32; and being a felon in possession of a firearm, as an habitual criminal, see WIS. STAT. §§ 941.29(2)(a), 939.62. Wesley claims that the trial court erred when it denied his motion to suppress. We affirm.
Criminal Law/ Ineffective Assistance Of Counsel State v. GajewskiDocket: 2007AP001849 05-06-08 PER CURIAM. Jordan Gajewski appeals a judgment convicting him of third-degree sexual assault, and an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel. Because we conclude Gajewski's trial counsel was ineffective, we reverse the judgment and order and remand the matter for a new trial.
Criminal Law/ Ineffective Assistance Of Counsel/ Pleas/ Plea Withdrawal/ Right To Jury Trial/ Sentencing State v. GumanDocket: 2007AP001205 05-06-08 CURLEY, P.J. Mark L. Guman, pro se, appeals the judgment convicting him of two counts of second-degree sexual assault by threat of use of force, contrary to WIS. STAT. § 940.225(2)(a), two counts of second-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(2), and one count of kidnapping, contrary to WIS. STAT. § 940.31(1)(b) (1997-98). He also appeals the orders denying his postconviction motions.
Criminal Law/ Sentencing/ Sentencing Modification/ Sentencing Credit/ Earned Release Program/ Judicial Authority-Discretion State v. KuykendollDocket: 2007AP001995 05-06-08 FINE, J. Kenyatta Kuykendoll appeals a judgment entered on his guilty plea to burglary of a building or dwelling, see WIS. STAT. § 943.10(1m)(a), and an amended judgment modifying his pre-sentence credit. He also appeals an order denying his postconviction motion for sentence modification. Kuykendoll claims that the circuit court: (1) erroneously exercised its sentencing discretion; (2) erroneously determined that he was ineligible for the Challenge Incarceration and Earned Release Programs; (3) sentenced him on the basis of allegedly inaccurate and incomplete information; (4) erred when it sua sponte reduced his pre-sentence credit; and (5) erroneously exercised its discretion in denying his sentence-modification motion. We affirm.
Damages/ Summary Judgment/ Misrepresentation/ Reliance/ Statutes/ Statutory Construction-Interpretation Cuene v. HilliardDocket: 2007AP000124 05-06-08 Recommended for PublicationHOOVER, P.J. Wallace Hilliard appeals a summary judgment awarding Herbert Cuene, Jr., damages for Hilliard's failure to disclose material facts in a securities sale. Hilliard contends summary judgment was inappropriate because Cuene did not prove reliance or causality, Hilliard was not required to disclose certain facts, and there are genuine issues of material fact as to the relevance of the omitted statements. We conclude reliance is not an element of Cuene's claim, causality is established, and Hilliard's omitted statements are relevant as a matter of law and were therefore required to be disclosed. Thus, we affirm the judgment.
Family Law/ Divorce/ Marital Estate/ Property Division/ Pre Nuptial/ Judicial Authority-Discretion Wisth v. WisthDocket: 2006AP002108 05-07-08 PER CURIAM. William Wisth appeals pro se from a judgment of divorce from Catherine Wisth. He argues that gifted property should not have been sold to satisfy outstanding obligations, that the parties' prenuptial agreement should have been enforced to preclude inclusion of his real estate holdings in the marital estate, and that an equal division of all the property was an erroneous exercise of discretion. We reject his claims and affirm the judgment as a proper exercise of discretion.
-
Guardianship/ Protective Placement/ Court's Competency/ Statutes/ Statutory Construction-Interpretation
Dane County D.H.S. v. Michael L.Docket: 2007AP001641 05-08-08 HIGGINBOTHAM, P.J. Michael L. appeals an order of guardianship and protective placement. He argues that the circuit court lost competency when it heard the petition for guardianship and protective placement without his attendance in court as required by WIS. STAT. §§ 55.10(2) (2005-06) (effective November 1, 2006) and 880.08(1) (2003-04). We agree and therefore reverse.
Insurance/ Underinsured Motorist Law (UIM)/ Contracts/ Post Verdict Interest/ Statutes/ Statutory Construction-Interpretation/ Stacking Kelley v. A.A.A. Auto ClubDocket: 2007AP001171 05-06-08 WEDEMEYER, J. Spence M. Kelley appeals from a judgment entered after a jury trial and postverdict motions. He raises several contentions: (1) the trial court erred in ruling that his underinsured motorist (UIM) coverage under the two policies he had from the AAA Auto Club Insurance Association could not be stacked; (2) the reducing clause in the policy was both ambiguous and contextually ambiguous and therefore should not have been applied; and (3) the trial court erred in ruling that the postverdict interest would commence from the date the motions were decided, rather than the date of the verdict. Because AAA's policy contains a valid anti-stacking clause, the trial court did not err in ruling that the two policy limits could not be stacked in this case. Because the reducing clause in AAA's policy was neither ambiguous nor contextually ambiguous, the trial court did not err in reducing the jury award by the amount paid by the tortfeasor in this case and the worker's compensation payments. Because WIS. STAT. § 814.04 (2003-04) requires interest to commence on the date of the verdict in this case, the trial court erred in delaying the start of interest to the date the postverdict motions were decided. Accordingly, we affirm the judgment, but order the trial court to amend the judgment so that postverdict interest is calculated from the date of the jury verdict.
Juvenile Law/ Criminal Law/ Delinquent/ Evidence/ Evidence Ruling/ Custody/ Miranda/ Ineffective Assistance Of Counsel State v. Brent S.Docket: 2007AP002751 05-06-08 PETERSON, J. Brent S. appeals an order adjudicating him delinquent for manufacturing and delivering less then 200 grams of THC with intent to deliver or distribute on or near a school bus. Brent also appeals an order denying his postdisposition motion. Brent argues his confession should have been suppressed because he was in custody and not given Miranda warnings and because his statement was involuntary. He also alleges ineffective assistance of counsel. We disagree and affirm the orders.
OWI/ Highways & Roads/ Evidence County of Marathon v. CarlsonDocket: 2007AP002600 05-06-08 HOOVER, P.J. Daniel Carlson appeals a judgment of conviction for operating while intoxicated, first offense. He argues the evidence was insufficient to show that he was operating his vehicle on a highway. We disagree and affirm the judgment.
OWI/ Refusal/ Anonymous Tips/ Reasonable Suspicion/ Probable Cause/ Traffic Stops/ Evidence State v. PieschelDocket: 2007AP002377 05-07-08 NEUBAUER, J. Gerald Pieschel appeals an order revoking his driver's license for refusing to submit to a chemical test after his arrest for operating while intoxicated (OWI), fourth offense. He argues that an anonymous tip and deviation into another lane while turning did not give the police officer reasonable suspicion or probable cause to stop and arrest him and, therefore, any evidence obtained through the stop must be suppressed. Pieschel also contends the trial court erred in finding that his refusal to consent to a blood test was unreasonable. We disagree and affirm.
-
Probation Revocation/ Rule 21/ Constitutional Law/ Department of Corrections (DOC)/ Mootness/ Procedure
State v. CiarpagliniDocket: 2006AP001187 05-07-08 PER CURIAM. The State of Wisconsin has appealed from a trial court order striking a rule of probation (Rule 21) imposed on Robert B. Ciarpaglini in April 2004 by the Wisconsin Department of Corrections (DOC). Because Ciarpaglini's challenge to the rule was moot when the trial court made its decision, we reverse the order.
Property/ Specific Performance/ Contracts Devine v. NotterDocket: 2007AP000812 05-07-08 Recommended for PublicationBROWN, C.J. Herman J. and Marie T. Notter appeal the circuit court's judgment of specific performance in favor of Patrick B. Devine. The Notters accepted Devine's offer to purchase their property, but then notified Devine ten days before closing that they would not complete the sale. They contend here, as they did in the circuit court, that the "attorney's approval" document that the parties signed rendered the entire contract between them illusory and unenforceable. An illusory promise consists of "words in promissory form that promise nothing." 2 JOSEPH M. PERILLO AND HELEN HADJIYANNAKIS BENDER, CORBIN ON CONTRACTS §5.28, at 142 (Revised ed. 1995). Here, the disputed clause gave both parties the opportunity to obtain legal assistance and seek modification of the deal, but only within five days of the signing of the offer. We hold the contract not illusory. The attorney review period was strictly limited in time and, since the time elapsed without objection, we see no reason both parties should not be bound to the contract.
Summary Judgment/ Strict Liability/ Negligence/ Causation/ Products Liability/ Personal Injury Pierce v. La Crosse Truck CenterDocket: 2007AP001970 05-08-08 PER CURIAM. Randel Pierce appeals an order granting summary judgment in favor of La Crosse Truck Center, Inc., and Universal Underwriters Insurance Company (collectively, "La Crosse Truck Center"). We conclude that the circuit court improperly granted summary judgment because its decision was based on an error of law. We also conclude that summary judgment was not appropriate because there are disputed issues of material fact. Therefore, we reverse.
UPDATE , UNSUBSCRIBE
To update your email address
for all State Bar electronic communications and the
Wisconsin Lawyer Directory, email Customer
Service, or call (800) 728-7788. Please include your
name, email, and Bar number, if applicable.
CONTACT
Questions concerning this
mailing list or the State Bar of Wisconsin's Web site
should be directed to the webmaster.
DISCLAIMER
Due to the rapidly changing
nature of the law and our reliance on information
provided by outside sources, we make no warranty or
guarantee concerning the accuracy or completeness of the
content.
| |
 |
Also
of Interest
Incoming President Diane Diel seeks stronger justice system
Milwaukee sole practitioner Diane Diel was sworn in as the 53rd State Bar President. More
Eggs, Ethics, and Answers seminar travels to Superior, Rhinelander, and Milwaukee
Learn how to avoid malpractice traps, avert perils of metadata, avoid digital disaster, and protect you and your clients from digital disasters. More
|