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• Attorneys/ Breach Of Trust/ Conversion/ Attorney Fees/ Contracts/ Attorney Lien/ Damages/ Statutes/ Summary Judgment/ Judicial Authority-Discretion
  
  Lorge v. Rabl
  Docket: 2007AP002133 08-14-08
  Recommended for Publication
  

  DYKMAN, J. Robert Lorge appeals from an order granting partial summary judgment to Michael Riley in Lorge's action following Riley's substitution as counsel for Lorge in a personal injury case, and Riley's subsequent recovery and disbursement of a settlement amount. Lorge claims that Riley is liable for breach of trust and conversion for failing to hold in trust an amount sufficient to cover his attorney's lien, and that Lorge is entitled to treble damages pursuant to WIS. STAT. § 895.446 (2005-06).
• Chapter 980 Petitions/ New Evidence/ Probable Cause
  
  State v. Jelks
  Docket: 2007AP001810 08-12-08
  

  PER CURIAM. Gregory Jelks appeals from an order denying his 2006 discharge petition, and granting reconsideration and vacating the trial court's prior order that determined there was probable cause to proceed to trial on his 2005 discharge petition. The issue is whether Jelks's discharge petitions demonstrate probable cause, as interpreted by State v. Combs, 2006 WI App 137, ¶32, 295 Wis. 2d 457, 720 N.W.2d 684, which was decided after the trial court's probable cause determination on the 2005 petition, prompting the reconsideration motion and guiding the probable cause determination on the 2006 petition. We conclude that Jelks has not demonstrated that what he characterizes as "new research" is "new"; it is merely a "new way to interpret" the same results, that were in fact used previously and does therefore not constitute probable cause pursuant to Combs. Therefore, we affirm.
• Contracts/ Breach Of Warranty/ Damages/ Economic Loss Doctrine/ Statute Of Limitations
  
  Renaissance Learning, Inc. v. Omron Corporation
  Docket: 2007AP002173 08-13-08
  

  PER CURIAM. Renaissance Learning, Inc., appeals from an order granting summary judgment to Omron Corporation. Renaissance sought to recover the over $2.5 million damages it incurred when a component part Omron supplied to an intermediary manufacturer with which Renaissance had contracted failed in use. We agree with the circuit court that Renaissance's breach of contract and breach of implied warranty claims fail for lack of privity of contract, its tort claims are barred by the economic loss doctrine and its WIS. STAT. § 100.18 (2005-06) claim fails for lack of intent to mislead. We affirm.
• Criminal Law/ Constitutional Law/ Community Caretaker/ OWI/ Evidence
  
  Washington County v. Palmer
  Docket: 2008AP000280 08-13-08
  

  ANDERSON, P.J. This is a Fourth Amendment community caretaker case. Steven P. Palmer appeals from a circuit court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant. On July 17, 2007, at 10:48 p.m., sometime after Palmer pulled his vehicle over to the side of a highway with its hazard lights flashing, a police officer passed by. The officer decided to check on the stopped vehicle. The officer pulled in behind the vehicle to see if Palmer needed assistance. The police squad car's red and blue emergency lights were activated simultaneous to Palmer activating his left-turn signal. Palmer then deactivated his left-turn signal and reactivated his hazard lights. The officer's inquiry led to the discovery that Palmer was intoxicated. Palmer argues that he was unlawfully seized by the time the officer approached Palmer's side window and observed signs of intoxication. We disagree. Assuming that a seizure occurred, we conclude that it was lawful because the officer was acting in a community caretaker capacity. We affirm the judgment.
• Criminal Law/ DNA Testing/ Plea Withdrawal/ Ineffective Assistance Of Counsel/ Evidence
  
  State v. Wingo
  Docket: 2007AP001803 08-12-08
  

  PER CURIAM. Andre Derrick Wingo appeals from an order denying his postconviction motions. The issues are whether Wingo is entitled to: (1) postconviction deoxyribonucleic acid ("DNA") testing; (2) withdrawal of his Alford plea to third-degree sexual assault; and/or (3) a new trial for trial counsel's ineffectiveness for failing to conduct discovery, and because of newly discovered evidence. We conclude that Wingo is not entitled to postconviction relief because: (1) there is not now and never was any physical evidence to test; (2) neither the absence of physical evidence nor the collateral consequence of sex offender registration constitutes a manifest injustice necessary for post-sentence plea withdrawal; and (3) trial counsel was not ineffective for failing to discover nonexistent physical evidence when the prosecution against Wingo depended upon the testimony of Wingo's former girlfriend, and the lack of physical evidence does not constitute newly discovered (non)evidence. Therefore, we affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Jury Instructions/ Evidence
  
  State v. Tolonen
  Docket: 2007AP001939 08-13-08
  

  PER CURIAM. Eric L. Tolonen appeals from the order that denied his motion for postconviction relief alleging that he received ineffective assistance of counsel. Because we conclude that he did not receive ineffective assistance of postconviction or trial counsel, we affirm.
• Criminal Law/ Ineffective Assistance Of Counsel/ Self-Defense/ Jury Instructions/ Evidence
  
  State v. Dillard
  Docket: 2006AP003135 08-14-08
  

  PER CURIAM. James Dillard appeals an order denying postconviction relief from a judgment convicting him of first-degree intentional homicide, first-degree recklessly endangering safety, and attempted second-degree intentional homicide. Dillard was convicted in 1995, and we affirmed his conviction in 1996. In 2006, Dillard filed a WIS. STAT. § 974.06 (2005-06) motion alleging that he received ineffective assistance from the attorney who represented him on his appeal. After a hearing, the circuit court denied the motion. We affirm.
• Criminal Law/ New Trial/ Jurors/ Judicial Authority-Discretion/ Juries/ Constitutional Law
  
  State v. Gonzalez
  Docket: 2007AP002160 08-12-08
  Recommended for Publication
  

  CURLEY, P.J. Jose F. Gonzalez appeals from a corrected judgment of conviction entered after a jury found him guilty of first-degree intentional homicide as a party to a crime, contrary to WIS. STAT. §§ 940.01(1)(a) and 939.05 (2003-04). He also appeals from the order denying his postconviction motion. Gonzalez contends that he is entitled to a new trial because the trial court erred when it designated a juror, who a witness recalled went to school with the witness and Gonzalez, as an alternate and subsequently dismissed the juror prior to deliberations. We reject Gonzalez's arguments because the trial court properly exercised its discretion in designating the juror in question as an alternate. Therefore, we affirm.
• Criminal Law/ Not Guilty By Reason Of Mental Disease Or Defect/ Jury Instructions/ Statutes/ Statutory Construction-Interpretation/ Juries/ Evidence/ Voir Dire/ Procedure
  
  State v. Wakeman
  Docket: 2007AP001955 08-12-08
  

  HOOVER, P.J. Susan Wakeman appeals a judgment of conviction, entered upon a jury's verdict, on one count of first-degree intentional homicide. Wakeman asserts multiple trial court errors and further contends the jury erred when it concluded that, although she suffered a mental disease or defect, she was able to appreciate the wrongfulness of her conduct or conform her behavior to the law. We reject Wakeman's arguments and affirm the judgment.
• Criminal Law/ Plea Withdrawal/ Ineffective Assistance Of Counsel/ Appeal/ Barred
  
  State v. Bowers
  Docket: 2007AP002795 08-12-08
  

  PER CURIAM. David E. Bowers, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2005-06) motion. The circuit court denied the motion on the ground that Bowers's claims were barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Because the circuit court did not err, we affirm.
• Criminal Law/ Plea Withdrawal/ Judicial Authority-Discretion/ Ineffective Assistance Of Counsel
  
  State v. Brush
  Docket: 2007AP002260 08-13-08
  

  NEUBAUER, J. Jason M. Brush appeals from a judgment of conviction for first-degree recklessly endangering safety, battery to a probation officer and false imprisonment, all by use of a dangerous weapon and as a repeat offender. Brush contends that the trial court erred when it applied the wrong legal standard to his presentence motion for plea withdrawal. We reject Brush's argument. We conclude that the trial court's decision reflects a proper exercise of discretion both in its understanding of the law and its application to Brush's motion. We therefore affirm the judgment.
• Criminal Law/ Pro Se/ Waiver Of Right To Counsel/ Sentencing/ Resentencing
  
  State v. Adell
  Docket: 2007AP001423 08-12-08
  

  PER CURIAM. Mark A. Adell appeals from a judgment of conviction for three burglaries, and from a postconviction order summarily denying his motion for resentencing. We conclude that Adell validly waived his right to counsel and was competent to proceed pro se at sentencing; consequently, resentencing is unnecessary. Therefore, we affirm.
• Criminal Law/ Sentencing/ Repeat Offender/ Evidence
  
  State v. Long
  Docket: 2007AP002307 08-12-08
  

  PER CURIAM. Michael Long appeals judgments convicting him of false imprisonment and second-degree sexual assault as a persistent repeater. He argues that the State presented insufficient evidence as to both counts and that the persistent repeater penalty enhancer should not apply because a prior Minnesota conviction is not comparable to a serious felony in Wisconsin. We reject these arguments and affirm the judgments.
• Criminal Law/ Sentencing/ Sentencing Credit/ Statutes/ Probation
  
  State v. Sowle
  Docket: 2007AP000060 08-13-08
  

  PER CURIAM. Robert J. Sowle appeals pro se from an order denying his motion for complete discharge of an eight-year prison sentence. The convoluted procedural background contributed to a trial court decision for which we requested clarification. We ordered a limited remand to the trial court and supplemental briefing by the parties. Benefited by the new submissions, we now affirm in part and reverse in part.
• Criminal Law/ Sentencing/ Sentencing Modification/ Appeal Barred
  
  State v. Smith
  Docket: 2007AP001375 08-12-08
  

  PER CURIAM. Otha Lee Smith, pro se, appeals from an order denying a motion for sentence modification and from an order denying a motion for reconsideration. The trial court denied Smith's motions as barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm, albeit on a slightly different rationale.
• Criminal Law/ Sentencing/ Sentencing Modification/ New Factor
  
  State v. Brown
  Docket: 2007AP002554 08-12-08
  

  PER CURIAM. Larry Joe Brown, pro se, appeals from an order denying his motion for sentence modification. The circuit court rejected Brown's contention that a change in parole policy constituted a new factor. Because the circuit court did not err, we affirm.
• Criminal Law/ Sentencing/ Sentencing Modification/ New Factor/ Appeal Barred
  
  State v. Hrenak
  Docket: 2007AP001180 08-12-08
  

  PER CURIAM. Kelly Anthony Hrenak appeals from the order denying his motions for postconviction relief. He raises various arguments, none of which have merit. Because we conclude that the circuit court properly denied his motions, we affirm.
• Criminal Law/ Sentencing/ Sentencing Modification/ Presentence Investigation (PSI) Report/ Judicial Authority-Discretion
  
  State v. Trinidad
  Docket: 2007AP001309 08-13-08
  

  PER CURIAM. Johnny Trinidad, Jr., appeals from a judgment of conviction for two counts of incest with a child and an order denying his motion for postconviction relief seeking resentencing and sentence modification. Because we disagree that the trial court sentenced Trinidad based on materially inaccurate information, we affirm.
• Criminal Law/ Sex Offender Registration/ Statutes/ Judicial Authority-Discretion
  
  State v. Leffler
  Docket: 2008AP000334 08-13-08
  

  NEUBAUER, J. John K. Leffler appeals from that portion of his judgment of conviction requiring him to register as a sex offender pursuant to WIS. STAT. § 973.048(1m). Leffler contends that the trial court erroneously exercised its discretion when it failed to state the reasons underlying its determination that registration was necessary to protect the public. We reject Leffler's argument. We conclude that the trial court properly exercised its discretion and affirm the judgment.
• Insurance/ Property/ Duty To Defend/ Negligent Construction/ Breach Of Covenants
  
  Toldt Woods v. Madeline Square, L.L.C.
  Docket: 2007AP001763 08-13-08
  

  NEUBAUER, J. Madeline Square, LLC, and Geoffrey R. Robinson (hereinafter collectively referred to as Madeline Square) appeal from a summary judgment entered in favor of their insurer, Acuity, a Mutual Insurance Company. The issue presented is whether Acuity has a duty to defend claims made against defendants, Madeline Square, LLC, and Geoffrey R. Robinson, by Toldt Woods Condominiums Owner's Association, Inc., relating to the construction of condominiums on Madeline Square's property. The determination turns on (1) whether Toldt Woods' complaint alleges an "occurrence" under Acuity's comprehensive general liability (CGL) policy; (2) whether policy exclusions preclude coverage, and (3) whether Toldt Woods seeks "damages" covered by the policy.
• Mental Health Commitment/ Evidence/ Mistrial/ Procedure/ Mootness
  
  Manitowoc County v. Ivy S.
  Docket: 2008AP000436 08-13-08
  

  SNYDER, J. Ivy S. appeals from an order of commitment that placed her in the care and custody of the Brown County Mental Health Center, a locked inpatient facility, for six months. She contends that her commitment was the result of a trial riddled with errors, including the erroneous admission of hearsay evidence, denial of her mistrial motion, failure to sequester witnesses, and an improper special verdict form. Although Ivy's six-month commitment has ended and resolution of her appeal will have no practical legal effect, she asserts that appellate review is required to address issues likely to recur in mental health commitment hearings. The County contends that the appeal is moot and does not meet any of the accepted exceptions to the mootness doctrine. We agree with the County and affirm.
• Mental Health Commitment/ Verdict Form/ Constitutional Law-Due Process/ Jurors/ Statutes/ Evidence
  
  Sheboygan County v. Heidi G.H.
  Docket: 2008AP000918 08-13-08
  

  BROWN, C.J. Heidi G. H. appeals the orders extending her commitment due to mental illness and allowing for involuntary medication and treatment under WIS. STAT. §§ 51.20 and 51.61(1)(g)2. The orders were entered following a jury trial. Heidi's first complaint on appeal is that the verdict form asked only whether she was "dangerous to herself or to others." Heidi argues that dangerousness to herself, on one hand, and to other people, on the other hand, are separate grounds for a mental health commitment. Thus, she goes on, she has a due-process right not to be committed unless five-sixths of the jurors agree on one or the other of these grounds. Under the verdict form as written, however, the jury might have reached a five-sixths verdict when, for example, three jurors believed she was dangerous to herself, and two that she was dangerous to others. We affirm because we conclude that the different forms of dangerousness listed in § 51.20 do not constitute separate elements required for commitment. Rather, the element upon which five-sixths of the jury must agree is the overarching finding of dangerousness. We further conclude, in response to Heidi's second argument, that the jury heard sufficient evidence of Heidi's dangerousness that we must sustain its verdict.
• OWI/ Evidence/ Informed Consent/ Refusal/ Burden Of Proof/ Causation/ Statutes/ Statutory Construction-Interpretation
  
  State v. Beninghaus
  Docket: 2008AP000392 08-13-08
  

  ANDERSON, P.J. Thomas R. Beninghaus does not prevail on his challenge to the circuit court's conclusion that additional information provided by the arresting officer when he was reading the Informing the Accused form caused him to submit to the chemical test after first refusing the test. Beninghaus failed to fulfill his burden of proof and present evidence of causation. We affirm.
• OWI/ Jurisdiction
  
  State v. Kohout
  Docket: 2007AP001795 08-12-08
  

  PER CURIAM. Danny Kohout appeals from the judgment of conviction entered against him, and the order denying his motion for postconviction relief. He argues that the circuit court lacked subject matter jurisdiction over him. We reject his argument, and affirm the judgment and order.
• OWI/ Refusal/ Public Policy/ Plea Agreements/ Evidence/ Procedure
  
  State v. Quam
  Docket: 2008AP000125 08-13-08
  

  ANDERSON, P.J. Fresh off a successful direct attack on a 1992 drunk driving conviction, Alan C. Quam now mounts a challenge to the circuit court's reinstatement of the refusal charge and subsequent finding that his refusal was unreasonable. We affirm because it would thwart public policy to preclude the State of Wisconsin from pursuing the refusal charge and Quam failed to file a written request for a refusal hearing when he had the chance in 1992.
• Property/ Public Rights Access/ Public Lakes/ Road & Highways/ Statutes/ Estoppel
  
  Zande v. Town of Marquette
  Docket: 2007AP002354 08-13-08
  Recommended for Publication
  

  BROWN, C.J. In Wisconsin, the state holds title to the beds of navigable lakes, ponds and rivers in trust for the public's use and enjoyment. See R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244 Wis. 2d 497, 628 N.W.2d 781. Of course, title or no, the public cannot enjoy waters that it cannot get to. Accordingly, since 1923, the legislature has required the developers of riparian land to provide, at half-mile intervals or less, routes for the public to access navigable waters. See 1923 Wis. Laws, ch. 223. In this case, surrounding landowners dispute the existence of one such public access. The parcel at issue is a strip of land connecting Marine Drive to Lake Puckaway in the Town of Marquette. It was designated as "Public Access" on the original plat, approved and filed in 1974. However, the developer of the plat later conveyed several parcels of surrounding land and included in the deeds a purported interest in the public access parcel. The plaintiff landowners (who we will collectively call the Vande Zandes) are the holders of these purported interests. They claim that the public lake access was never properly created or, alternatively, that the Town, by inaction, has abandoned it or is estopped from asserting the public's right to it.
• Property/ Sale/ Contracts/ Misrepresentation/ Warranty/ Summary Judgment
  
  Armstrong v. Zima
  Docket: 2007AP001950 08-13-08
  

  PER CURIAM. Michael Armstrong appeals from a summary judgment dismissing his claims against Steve and Ellie Zima for an alleged misrepresentation in the real estate condition report (RECR) the Zimas provided Armstrong when he purchased their home. We conclude that factual issues exist on all of Armstrong's claims which preclude summary judgment. We reverse the judgment and remand the action for further proceedings.
• Small Claims/ Damages/ Contracts
  
  Flint v. Noble
  Docket: 2007AP002923 08-14-08
  

  LUNDSTEN, J. Dale Noble appeals a circuit court small claims money judgment for $4199.28 in favor of Judith Flint. The parties' dispute arises out of Flint's purchase of a newly constructed home from Noble and/or his construction company ("Noble"). Noble argues that the circuit court erred in its interpretation of a disclosure provision in the purchase contract that obligated Noble to disclose any "completed or pending reassessment." We agree with Noble. We reverse the judgment and remand to the circuit court.
• Small Claims/ Damages/ Evidence
  
  Volbrecht v. Jackson
  Docket: 2008AP000389 08-13-08
  

  BROWN, C.J. This is an appeal of a small claims judgment for a builder of a spec home, Kenny M. Volbrecht, against the subcontractor who originally contracted to provide the drywall, Akil C. Jackson. The small claims court heard the evidence, examined the exhibits and found that Jackson had performed in an unworkmanlike manner, causing Volbrecht to have to hire a third party to repair and finish the job to his damage in the amount of $3875.
• Torts/ Negligence/ Discovery/ Privilege/ Evidence/ HIPAA/ Judicial Authority-Discretion/ Protective Orders
  
  Johannes v. Baehr
  Docket: 2007AP002332 08-13-08
  

  ANDERSON, P.J. We granted Alice L. Johannes' petition for leave to appeal, WIS. STAT. § 808.03(2) (2005-06), seeking to challenge the circuit court's order limiting the scope of discovery by barring her from learning the names of individuals who had complained that Dr. Peter H. Baehr had touched them inappropriately during the course of chiropractic adjustments. The circuit court held that Baehr had a privilege under state and federal law not to identify names of patients who had complained about inappropriate touching. The court also held that complaints involving other patients would be inadmissible other acts evidence. We now reverse the circuit court because it erroneously exercised its discretion.
• Towns & Cities/ Property/ Zoning/ Ordinance
  
  Donaldson v. Village of Johnson Creek
  Docket: 2007AP001643 08-14-08
  

  BRIDGE, J. Arthur Donaldson appeals a circuit court order affirming the Johnson Creek Village Board's denial of his preliminary plat for a residential development. He argues that Johnson Creek's action in denying his preliminary plat was arbitrary and unreasonable. We disagree and therefore affirm.