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Week of September 15, 2008

Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Chvala
    Docket: 2006AP001423 09-18-08
    PER CURIAM. We review the recommendation of the referee, Kim Peterson, that the petition of Charles J. Chvala for the reinstatement of his license to practice law in this state be granted. Because no party has responded to or appealed from that report and recommendation, our review proceeds under SCR 22.33(3).
Court of Appeals Cases
  • Criminal Law/ Juries/ Constitutional Law/ Evidence/ Prosecutorial Closing/ Ineffective Assistance Of Counsel

    State v. Moore
    Docket: 2007AP002779 09-16-08
    FINE, J. Otis Leo Moore appeals a judgment entered after a jury found him guilty of two counts of first-degree sexual assault of a child, see WIS. STAT. § 948.02(1), and an order denying his postconviction motion. Moore claims that: (1) he was denied the right to an impartial jury; (2) the trial court erred in admitting expert testimony about why children delay in reporting sexual assaults; (3) the expert improperly gave her opinion on whether the victims were telling the truth; (4) the prosecutor improperly told the jury during closing arguments that Moore made delayed reporting an issue; and (5) there was insufficient evidence to support the jury verdicts. We affirm.
  • Criminal Law/ Restitution/ Sentencing/ Judicial Authority-Discretion

    State v. Hoffman
    Docket: 2007AP001358 09-17-08
    SNYDER, J. Michael C. Hoffman appeals from a restitution order. As we understand Hoffman's appeal, he contends that the trial court erred in imposing restitution after his sentence was completed, that the restitution victim lacks credibility, that the restitution amount is excessive, and that the restitution is beyond his ability to pay. We affirm the order.
  • Criminal Law/ Sentencing/ Constitutional Law-Due Process

    State v. Henden
    Docket: 2007AP000594 09-16-08
    PER CURIAM. Chad Henden appeals an order denying his motion to vacate a judgment imposing sentence after the revocation of Henden's probation. Henden argues he is entitled to resentencing because the circuit court relied on inaccurate information. We reject Henden's argument and affirm the order.
  • Criminal Law/ Sentencing/ Judicial Authority-Discretion

    State v. Evans
    Docket: 2007AP002183 09-16-08
    PER CURIAM. Jason J. Evans appeals from the judgment of conviction entered against him and the order denying his motion for postconviction relief. He argues that the circuit court erroneously exercised its discretion when it sentenced him because: (1) the court did not consider mitigating factors, treatment and mental health issues, the parties' recommendations, and the recommendation in the presentence investigation report; (2) the court failed to explain the objectives and the reasons for the length of the sentence it imposed; (3) the court did not identify reasons for imposing consecutive sentences; and (4) the court did not find him eligible for the Earned Release Program, and unduly delayed his eligibility date for the Challenge Incarceration Program. He also argues that the circuit court erred when it denied his motion for postconviction relief. Because we conclude that the circuit court properly exercised its sentencing discretion, we affirm the judgment and order.
  • Criminal Law/ Sentencing/ Jurisdiction/ Pleas/ Ineffective Assistance Of Counsel/ Waiver Of Claims/ Appeal Barred

    State v. Smith
    Docket: 2007AP002120 09-16-08
    PER CURIAM. Tommy Smith, Jr. appeals from an order denying his motion for postconviction relief. He argues that: (1) the trial court lacked jurisdiction to sentence him because a court commissioner conducted his preliminary hearing; (2) the circuit court erred during sentencing when it considered read-in offenses; and (3) his trial counsel was ineffective for allowing him to enter a plea when the preliminary examination was improper, and for not informing him about the read-in charges. We conclude that the claims are either waived or barred, and we affirm the order of the circuit court.
  • Criminal Law/ Writ Of Coram Nobis/ Pleas/ Ineffective Assistance Of Counsel

    State v. Mazariegos
    Docket: 2007AP001819 09-16-08
    PER CURIAM. Luis Fernando Mazariegos appeals from the order denying his petition for a writ of coram nobis. He argues that the circuit court erred when it denied his petition. Because we conclude that the writ of coram nobis is not available to Mazariegos, we affirm.
  • Insurance/ Negligence/ Summary Judgment/ Intentional Acts/ Jury Instructions/ Statute Of Limitations/ Failure To Supervise

    Buckel v. Allstate Indemnity
    Docket: 2007AP001836 09-17-08
    SNYDER, J. Daniel D. Buckel and Theresa M. Brzykcy appeal from a summary judgment in favor of the defendants. Buckel and Brzykcy argue that the circuit court erred when it did not allow the questions of intent and parental negligence to proceed to the jury. They further argue that the definitions of "intentional" in the defendants' insurance policies were ambiguous and should have been interpreted in favor of the insureds to provide coverage. We affirm the judgment.
  • Insurance/ Privilege/ Statutes/ Statutory Construction-Interpretation

    Deloitt & Touche v. Koken
    Docket: 2007AP002014 09-18-08
    VERGERONT, J. The issue on this appeal is the scope of the privilege established in WIS. STAT. § 601.465 (2005-06) for the Office of Commissioner of Insurance (OCI). We agree with the circuit court that the privilege does not apply to the facts of this case, although our reasoning is somewhat different. We therefore affirm the court's order denying reconsideration, in which it reaffirmed its ruling granting the motion to compel the deposition of the then OCI deputy commissioner, Randy Blumer.
  • Juvenile Law/ Criminal Law/ Delinquent/ Pleas/ Ineffective Assistance Of Counsel/ Judicial Authority-Discretion/ Evidence/ Constitutional Law/ Searches

    State v. Maxwell P.
    Docket: 2008AP000526 09-17-08
    NEUBAUER, J. Maxwell P., a person under the age of seventeen, appeals from an order denying his motion to vacate a dispositional order of delinquency resulting from a no contest plea to possession of tetrahydrocannibinols (THC), contrary to WIS. STAT. § 961.41(3g)(e). Maxwell's postdisposition motion alleges ineffective assistance of counsel. Maxwell argues that the circuit court erred in denying his postdisposition motion without a hearing and requests remand for an evidentiary hearing. We conclude that Maxwell's motion failed to allege sufficient material facts that, if true, would entitle him to relief. We therefore conclude that the circuit court did not erroneously exercise its discretion in denying Maxwell's motion without an evidentiary hearing. We affirm the order.
  • Medical Malpractice/ Judgments/ Modification Of Judgment/ Post Settlement Offer Interest/ Calculation Of Interest

    Morrison v. Rankin
    Docket: 2008AP000422 09-16-08
    Recommended for Publication
    BRUNNER, J. Elizabeth Morrison appeals an amended judgment following a motion for satisfaction of judgment by Medical Protective Company. Morrison contends the circuit court erroneously modified the original judgment after concluding that Medical Protective paid the appropriate amount of post-settlement-offer interest under WIS. STAT. § 807.01(4). We reject Morrison's arguments and affirm the judgment.
  • OWI/ Forfeiture/ Jury Instructions/ Evidence

    Town of Brookfield v. Fouliard
    Docket: 2007AP002141 09-17-08
    NEUBAUER, J. Daniel J. Fouliard appeals pro se from a civil forfeiture conviction of operating a motor vehicle while under the influence of an intoxicant contrary to WIS. STAT. § 346.63(1)(a). Fouliard was convicted following a jury trial. Fouliard argues on appeal that the trial court erred in
  • Personal Injury/ Damages/ Immunity/ Master-Servant/ Statutes

    Mason v. A.C.E. American Insurance
    Docket: 2007AP001483 09-16-08
    PER CURIAM. The Lions Club of Gleason Area, Inc., and its insurer appeal a judgment, entered on a jury's verdict, in favor of Russell Mason and his family for injuries Mason sustained while at an event on the Club's property. The Club further appeals orders denying its motion for summary judgment and to change verdict answers. Mason cross-appeals an order reducing to zero the amount of damages the jury awarded for Deborah Mason's nursing services.
  • Personal Injury/ Duty To Protect/ Negligence/ Statutes

    Kolstad v. White Birch Inn
    Docket: 2007AP002970 09-16-08
    PER CURIAM. Steven and Susan Kolstad appeal a summary judgment dismissing their personal injury action against White Birch Inn, its owner and its insurer. Their action is premised on injuries Steven sustained in a fight in the Inn's parking lot with members of a wedding party that had a reception at the Inn. The Kolstads argue the Inn breached its duty to protect patrons from harm by not employing a bouncer and by serving alcohol to intoxicated and underaged assailants. Because the supporting papers establish no issue of material fact and the defendants are entitled to judgment as a matter of law, we affirm the judgment. See WIS. STAT. § 802.08(2).
  • Prohibited Alcohol Concentration (PAC)/ Pleas/ Evidence/ Traffic Stops/ Reasonable Suspicion/ Probable Cause To Arrest/ Constitutional Law/ Waiver Rule

    Village of Elm Grove v. Paulick
    Docket: 2008AP000816 09-17-08
    SNYDER, J. Judith M. Paulick appeals from a judgment that followed her no contest plea to driving with a prohibited blood alcohol content, first offense. Paulick contends that the circuit court erred when it denied her motion to suppress evidence obtained during the investigatory traffic stop. She argues that the stop was not supported by reasonable suspicion and that her arrest was not supported by probable cause. She further contends that the circuit court erred when it refused to allow the arresting officer's administrative hearing testimony into evidence. We affirm the judgment.
  • Property/ Easements/ Condemnation/ Public Policy/ Contracts

    Enbridge Energy v. Johnson
    Docket: 2007AP002492 09-16-08
    PER CURIAM. Peter Johnson and Karen Johnson Peters (collectively, Johnson) appeal a summary judgment granted in favor of Enbridge Energy. Johnson argues that Enbridge's use of land outside an easement and construction of additional pipelines within the easement constitute a taking that calls for the commencement of condemnation proceedings. Alternatively, Johnson challenges the easement as unenforceable and against public policy. We reject Johnson's arguments and affirm the judgment.
  • Property/ Statutes/ Counties

    Sollman v. Polk County
    Docket: 2008AP000831 09-16-08
    PER CURIAM. The appellants and intervenors-co-appellants include employees of a Polk County nursing home and their union representatives, a resident of the nursing home, and a member of the nursing home's governing committee. They appeal a summary judgment dismissing their action to enjoin the transfer of the County nursing home to a private entity. In this opinion, we refer to the appellants and intervenors-co-appellants collectively by the name of the first-captioned appellant, Sollman.
  • Taxation/ Tribes/ Property/ Evidence/ Summary Judgment

    Forest County v. Township of Lincoln
    Docket: 2007AP002523 09-16-08
    Recommended for Publication
    PETERSON, J. The Forest County Potawatomi Community and the Sokaogon Chippewa Community (the Tribes) appeal a summary judgment dismissing their claim against the Township of Lincoln (the Town) for excessive tax on two forty-acre parcels in Crandon, Wisconsin. The Tribes challenged the assessed value of the land ­ land often referred to as the Crandon mine site. The assessment was based on a Department of Revenue analysis of an April 2003 sale of the mining company that owned the land. The circuit court concluded the sale was a recent arm's-length sale of the property. The court declined to consider other factors the Tribes claimed affected the land's value.
  • Underinsured Motorist Law (UIM)/ Insurance/ Contracts

    St. Laurent v. American Manufacturer's Mutual
    Docket: 2007AP002588 09-16-08
    PER CURIAM. Amy St. Laurent appeals summary judgments dismissing her underinsured motorist (UIM) coverage claims against American Manufacturer's Mutual Insurance Company and State Farm Mutual Automobile Insurance Company. St. Laurent contends the circuit court erred when it determined: (1) her husband, Andre, was not using a "substitute vehicle" under American's insurance policy, and (2) State Farm's reducing clause was not ambiguous, precluding any further recovery from the company. We discern no error and affirm the judgments.
  • Writ Of Mandamus/ Standing/ Statutes/ Substitution Of Counsel/ Attorney General/ Private Citizen/ Mootness

    State v. Zien
    Docket: 2007AP001930 09-16-08
    Recommended for Publication
    KESSLER, J. Former Attorney General Peggy A. Lautenschlager appeals from a judgment, entered after summary judgment proceedings, dismissing a WIS. STAT. § 19.37(1)(2005-06) mandamus action that sought to compel state legislators David A. Zien and Scott L. Gunderson to provide Lautenschlager with drafts of legislation related to carrying a concealed weapon. Lautenschlager, who filed the case when she was attorney general, argues that the trial court erroneously denied her motion to substitute counsel that she filed after she was no longer attorney general, and that summary judgment should have been granted against the defendants. Gunderson cross-appeals from the trial court's holding that Lautenschlager was acting in her personal capacity when she initially requested the drafts when she was attorney general.
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