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Week of December 1, 2008
Supreme Court Cases
Contracts/ Breach Of Contracts/ Trademark Infringement/ Damages/ Attorney Fees/ Noncompete Clause D.L. Anderson's Lakeside Leisure v. AndersonDocket: 2007AP000046 12-02-08 N. PATRICK CROOKS, J. This is a review of a published court of appeals decision concerning breach of contract and tradename infringement claims related to a business purchase agreement. The court of appeals affirmed the jury verdict finding breach and infringement but reversed the award of compensatory and punitive damages for tradename infringement, and remanded to the circuit court with an order that the attorney fee award be reduced.
Court of Appeals Cases
Contracts/ Mortgage/ Property/ Contempt/ Money Judgment Howe v. KlawitterDocket: 2008AP001187 12-04-08 DYKMAN, J. Ronald Howe appeals from an order denying his motion to hold Alvin Klawitter in contempt of court for failing to execute a satisfaction of mortgage to Howe. Howe argues that Klawitter's recovery of a money judgment against Wisconsin Glacier Springs satisfies the mortgage Howe gave to Klawitter and thus Klawitter is required to execute a satisfaction of mortgage to Howe according to the trial court order in this case. We conclude that the trial court order does not require Klawitter to execute a satisfaction of mortgage to Howe under the facts of this case, and therefore affirm.
Criminal Law/ Defense Competency/ Evidence/ Voluntary Statements/ Not Guilty By Reason Of Mental Disease Or Defect / Ineffective Assistance Of Counsel/ Appeal Barred/ Extradition State v. HaesslyDocket: 2007AP002230 12-04-08 PER CURIAM. This is the second appeal to this court arising out of William Haessly's conviction for party to the crime of first-degree intentional homicide. In the present action, Haessly appeals the denial of a postconviction motion filed under WIS. STAT. § 974.06 (2005-06), and an order denying his motion for reconsideration. We affirm the orders for the reasons discussed below.
Criminal Law/ Evidence/ Probable Cause To Arrest/ Ineffective Assistance Of Counsel/ Informants State v. GreerDocket: 2007AP002458 12-04-08 PER CURIAM. Christopher Greer appeals from a judgment of conviction and an order denying his motion for postconviction relief. We affirm.
Family Law/ CHIPs/ Juvenile Law/ Statutes/ Statutory Construction-Interpretation/ Department of Human Services (DHS)/ Guardian Dane County D.H.S. v. Jasmine D.Docket: 2008AP001974 12-04-08 DYKMAN, J. Dane County Department of Human Services (DHS) appeals from an order denying its motion for reconsideration following the court's order temporarily holding Jasmine D. in nonsecure physical custody at a shelter home. DHS argues that the trial court erred in requiring DHS to file a new CHIPS petition to continue Jasmine's placement at the shelter home. We conclude that DHS has not explained what it requested from the trial court, and thus we cannot assess whether the trial court erred in response to that request. We therefore affirm.
Family Law/ TPR/ Court's Competency/ Statutes Jamie L.L. v. Erica M.D.Docket: 2008AP002218 12-05-08 BRIDGE, J. Erica D. appeals an order of the circuit court terminating her parental rights to Dakota D.-L. She argues that the court lost competency by failing to rule on the disposition within ten days of the dispositional hearing, as required by WIS. STAT. § 48.427(1). We agree and reverse the court's order.
Inmates/ Habeas Corpus/ Constitutional Law/ Evidence/ Appeals Owens v. BoatwrightDocket: 2008AP000879 12-04-08 PER CURIAM. Thomas Owens appeals an order denying a petition for habeas corpus relief and an order denying reconsideration. He claims that there was insufficient evidence to support one of the elements of the burglary charge for which he is currently serving a prison sentence. We affirm the circuit court for the reasons discussed below.
Insurance/ Contracts/ Underinsured Motorist Law (UIM) Blum v. 1st Auto & CasualtyDocket: 2008AP001324 12-04-08 Recommended for PublicationVERGERONT, J. The issue on this appeal is the proper construction of the uninsured motorist (UM) provision in an insurance policy as applied to the situation in which the alleged tortfeasor who operated the motor vehicle was insured but the vehicle was not insured. We conclude that the policy provision is ambiguous because the title of the UM section is "Uninsured Motorist" while the insuring clause defines coverage in terms of an "uninsured motor vehicle." We also conclude that we should resolve the ambiguity consistent with the way in which the court in Hull v. State Farm Mutual Automobile Insurance Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998), resolved the ambiguity created by those same two terms in WIS. STAT. § 632.32(4)(a)1. (2005-06), the statute that requires UM coverage. Accordingly, we resolve the ambiguity in the policy language by holding that the policy does not provide UM coverage because the allegedly negligent operator of the vehicle was covered by liability insurance. We therefore affirm the circuit court's summary judgment in which it holds that the policy does not provide UM coverage.
Insurance/ Dog Bite/ Animals/ Liability/ Statutes/ Animal Owner/ Keeper/ Statutory Construction-Interpretation/ Evidence Pawlowski v. American Family MutualDocket: 2007AP002651 12-03-08 Recommended for PublicationNEUBAUER, J. Colleen and Thomas Pawlowski appeal from a summary judgment granted in favor of American Family Mutual Insurance Company and Nancy L. Seefeldt. The Pawlowskis contend that the trial court erred in its determination that Seefeldt was not strictly liable under the dog bite statute, WIS. STAT. § 174.02 (2005-06), for injuries sustained by Colleen when a dog kept at Seefeldt's residence was let out the front door by its legal owner, Walter Waterman. The dog bite statute holds persons who "own, harbor or keep" a dog strictly liable for any damages the dog causes. A statutory keeper may be simultaneously liable with an owner. The trial court concluded that at the moment of injury, the dog's legal owner had control of the dog and, therefore, Seefeldt was not a statutory keeper under § 174.02. We reverse the trial court's ruling.
Ordinances/ Ordinance Construction-Interpretation/ Constitutional Law-Equal Protection/ Towns & Cities/ New Trial City of Wausau v. JusufiDocket: 2008AP001107 12-02-08 Recommended for PublicationBRUNNER, J. Zack Jusufi appeals a circuit court judgment finding him guilty of two municipal ordinance violations for failing to enforce the City of Wausau's restaurant smoking ban within his restaurant. Jusufi contends the City's ordinance banning smoking in restaurants is unconstitutional. Specifically, he argues the ordinance's differential treatment of restaurants and private clubs violates equal protection. Because there is a rational basis for the ordinance's classification and differential treatment of restaurants and private clubs, we affirm the judgment.
Property/ Condemnation/ Damages/ Statutes/ Statutory Construction-Interpretation/ Summary Judgment Kalal v. Dane CountyDocket: 2008AP000077 12-04-08 BRIDGE, J. Ralph Kalal appeals an order granting summary judgment in favor of Dane County in his action seeking compensation under WIS. STAT. ch. 32 (2005-06) for the taking of his property in a condemnation proceeding. He asserts claims for replacement of business expenses under WIS. STAT. § 32.19(4m)(b), for loss of personal property under § 32.19(3)(a), for net rental loss under WIS. STAT. § 32.195, and for the value of his leasehold under WIS. STAT. § 32.09. We reject each of his claims and therefore affirm.
Property/ Condemnation/ Estoppel/ Waiver Of Rights/ Easements/ Declaratory Judgment/ Eminent Domain Andrews v. W.P.S.C.Docket: 2007AP002541 12-02-08 Recommended for PublicationPETERSON, J. Patricia Andrews appeals a summary judgment dismissing her claim challenging Wisconsin Public Service Corporation's (WPSC) condemnation of her property. Andrews argues WPSC, by either waiver or estoppel, lost the right to condemn her property. We disagree and affirm.
Property/ Contracts/ Administrative Regulations/ Unfair Trade Practices Mortag v. SorooshDocket: 2007AP001669 12-02-08 PER CURIAM. Suzy Mortag appeals a judgment arising out of a dispute over a home improvement project. Mortag contends the circuit court erred by denying her motion for judgment notwithstanding the verdict. Mortag insists Edward Soroosh, d/b/a Pinewood Builders, and Pinewood, Inc. (collectively, "Soroosh"), committed an unfair trade practice as a matter of law, thereby entitling her to double damages and attorney fees. We disagree and affirm the judgment.
Property/ Procedure/ Compensation/ Doctrine Of Exhaustion Of Administrative Remedies/ Department Of Transportation (DOT) Lamar Central Outdoor v. D.O.T.Docket: 2008AP000439E 12-03-08
Property/ Roads & Highways/ Statutes/ Evidence/ Summary Judgment/ Timeliness/ New Trial/ Burden Of Proof Quinnell Revocable Trust v. Town of QuincyDocket: 2007AP002105 12-04-08 LUNDSTEN, J. The Town of Quincy appeals a circuit court judgment in favor of the JoAnn Quinnell Revocable Trust. The dispute centers on whether a dead-end section of road abutting Quinnell's property is public or private. The Town argues that the circuit court should have dismissed Quinnell's action because she failed to establish an ownership interest in that section of the road. The Town also argues that the disputed portion of the road became public by common law dedication because the Town's state transportation aids maps, which include the disputed portion, are conclusive evidence that the Town accepted a dedication of that land. Finally, the Town argues that it is entitled to a new trial. We reject the Town's arguments. Accordingly, we affirm the judgment.
Property/ Taxation/ Court's Authority/ Statutes/ Towns & Cities Trailwood Ventures, v. Village of KronenwetterDocket: 2008AP001221 12-02-08 Recommended for PublicationHOOVER, P.J. Trailwood Ventures, LLC, and Alliance Holdings, LLC, appeal a judgment reinstating the Village of Kronenwetter's tax assessments on the companies' real estate parcels. The companies also appeal an order denying their motion for reconsideration. Because we conclude the court exceeded its statutory authority, we reverse the judgment and order and remand the case for further proceedings consistent with this opinion.
Small Claims/ Garnishment/ Jurisdiction/ Statutes/ Default Judgments/ Service Of Process/ Due Diligence Shank Hall, Inc. v. HorowitzDocket: 2007AP002341 12-02-08
Shank Hall, Inc. v. Howard
Docket: 2008AP000583 12-02-08 KESSLER, J. In these consolidated appeals, Gary Howard a/k/a Gary Horowitz and Investment Tax, Inc. (collectively, "Horowitz"), appeal from: (1) a non-earnings garnishment order directing that Horowitz's bank release $12,115.24 to Shank Hall, Inc., which has an unsatisfied small claims judgment against Horowitz, as well as an order denying Horowitz's motion to vacate and dismiss the underlying small claims judgment (appeal number 2007AP2341); and (2) an order denying Horowitz's motion for relief from the 1996 small claims judgment (appeal number 2008AP583). We affirm.
Summary Judgment/ Legal Malpractice/ Collateral Attack Roehl v. GisselmanDocket: 2008AP000891 12-04-08 PER CURIAM. Bert Roehl appeals an order granting Attorney Sharon Gisselman summary judgment on Roehl's legal malpractice action against her. Roehl challenges the circuit court's determination that there was no dispute of material fact regarding whether Gisselman negligently failed to collaterally challenge a prior OWI conviction while representing Roehl on an OWI-5 charge. For the reasons discussed below, we reverse the summary judgment order, and remand for further proceedings.
Traffic Stops/ Ordinances/ Reasonable Suspicion/ Motor Vehicle Law/ Statutes/ State Regulations/ Constitutional Law State v. ForkesDocket: 2008AP001544 12-03-08 BROWN, C.J. The potential issue in this case is an interesting and novel one. We understand that issue to be whether a local traffic officer has authority to effectuate a stop of a vehicle solely based on a presumed violation of a local ordinance relating to vehicle equipment, which ordinance in turn is based on a department of transportation administrative rule rather than a statute. The trial court answered that question by holding that WIS. STAT. ch. 110, the chapter under which WIS. ADMIN. CODE § TRANS. 305.15(5)(a) is made punishable, provides in particular part, that "[a]ll law enforcement officers shall assist [the state traffic patrol] in enforcing [ch. 110] and orders or rules issued pursuant thereto." WIS. STAT. § 110.07(1)(b). The defendant in this case appeals this determination, arguing that localities have no authority to pass ordinances resulting in greater legal exposure to drivers than the statute promulgated by the legislature, and the officer's stop in this instance was predicated on the errant local ordinance rather than any desire to assist the state patrol.
Worker's Compensation/ Estates/ Juvenile Law/ Child Labor Laws/ Public Policy Estate of Reif v. Automotive Truck Services, Inc.Docket: 2007AP002582 12-03-08 PER CURIAM. The Estate of Joshua Reif, by his parents, appeal from the order of the circuit court that dismissed their complaint against Automotive & Truck Services, Inc. The Reifs argue on appeal that the circuit court erred when it determined that the Reifs' claims are governed exclusively by the Worker's Compensation Act, WIS. STAT. ch. 102 (2005-06), and when it determined that Joshua's death was caused by an accident. Specifically, the Reifs argue that since the tasks Joshua was assigned to perform violated the child labor laws, then they should not be limited to recovering only under the Worker's Compensation Act. Because we conclude that the circuit court did not err, we affirm.
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Also of Interest
State Bar seeks member input on recusal standards
In response to two petitions before the Wisconsin Supreme Court, the Board of Governors seeks feedback on judicial recusal reform options. More
Board of Bar Examiners extends CLE reporting deadline to March 2
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