CaseLaw Express 12/22/2008 - State Bar of Wisconsin

Court of Appeals Cases

Chapter 980 Commitments/ New Hearing/ Evidence

State v. Mitchell
Docket: 2008AP000153 12-16-08
KESSLER, J. Tommie L. Mitchell appeals from a judgment and commitment order finding him to be a sexually violent person under WIS. STAT. ch. 980 (2001-02). He seeks a new trial on grounds that the trial court erroneously exercised its discretion when it allowed "the [S]tate's witnesses to give hearsay testimony concerning the facts of two alleged sexual incidents of which Mitchell was never charged nor convicted." We reject his argument because the record reflects that Mitchell was indeed charged and convicted of crimes in connection with both of those incidents. We affirm the judgment and order.
Contracts/ Employment Law/ Choice Of Law/ Declaratory Judgment/ Public Policy/ Forum Selection

Martin v. Stassen Insurance
Docket: 2008AP000942 12-16-08
FINE, J. John Martin appeals a judgment dismissing his declaratory-judgment action against his former employer, the Stassen Insurance Agency, Inc. Martin claims that the circuit court erred when it upheld choice-of-law and forum-selection clauses in an employment contract requiring that any dispute between Martin and Stassen Insurance be resolved by Illinois law in certain Illinois state or federal courts. We affirm.
Contracts/ Public Policy/ Damages/ Negligence/ Judicial Authority-Discretion/ Corporations/ Statutes

Grafft v. Jensen
Docket: 2008AP000185 12-18-08
VERGERONT, J. This is a negligence action filed by James Grafft against the accountant who provided services for Injection Technologists, Inc. (ITI), of which Grafft was an investor, lender, and part owner at the time. On Grafft's prior appeal we held that the circuit court had erred in deciding, after a trial to the court, that his initial investment in ITI and his personal loan to ITI were not recoverable as damages based on public policy grounds. We also held that the circuit court had not erred in offsetting Grafft's damages by the value of the ITI assets he retained. We remanded to the circuit court for additional findings on damages. On remand the circuit court determined that Grafft's total damages were $58,804.61 reduced to $29,402.30 because of Grafft's 50% contributory negligence.
Criminal Law/ Contracts/ Inmates/ Civil Conspiracy/ Constitutional Law-Due Process

Heimermann v. McCaughtry
Docket: 2007AP002961 12-18-08
PER CURIAM. Scott A. Heimermann appeals from the orders that dismissed all of his claims against Joanne Swyers and denied his motion for reconsideration. Heimermann argues that the circuit court erred when it dismissed his claims, when it denied his motion for reconsideration, and when it granted costs to Swyers, and asks this court to order the circuit court to allow him to amend his complaint. Because we conclude that the circuit court did not err, we affirm.
Criminal Law/ Hearings/ Warrants/ Probable Cause/ Discovery

State v. Hoak
Docket: 2007AP002847 12-17-08
PER CURIAM. Ralph A. Hoak appeals a judgment entered upon his guilty plea convicting him of three counts of possession of child pornography and an order denying him postconviction relief. Hoak contends that he is entitled to a Franks/Mann hearing on his claim that the affidavit supporting the search warrant omitted critical information; he should be allowed additional discovery on that issue; and the affidavit did not establish probable cause to issue a warrant. We disagree and affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Evidence/ Juries/ Right To Remain Silent

State v. Dallas
Docket: 2008AP000549 12-17-08
PER CURIAM. Tion Charles Dallas appeals from a judgment of conviction of burglary and from an order denying his motion for postconviction relief. He challenges the trial court's handling of questions and a request for testimony from the jury during deliberations and argues that his trial counsel was ineffective for not opposing the introduction of other act evidence with evidence that the other act was not unique. We reject his claims and affirm the judgment and order.
Criminal Law/ Sentencing/ Sentencing Modification/ New Factor/ Judicial Authority-Discretion/ Evidence

State v. Morgan-Owens
Docket: 2008AP000887 12-16-08
FINE, J. Mistie L. Morgan-Owens appeals a judgment entered on her guilty plea to armed robbery with the threat of force, as a party to the crime. See WIS. STAT. §§ 943.32(2), 939.05. She also appeals the order denying her postconviction motion for sentence modification. Morgan-Owens claims that: (1) the circuit court erroneously exercised its sentencing discretion; (2) she was sentenced on inaccurate information; and (3) a new factor warrants sentence modification. We affirm.
Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Sex Offender Registry/ Constitutional Law

State v. Smith
Docket: 2008AP001011 12-16-08
Recommended for Publication
HOOVER, P.J. James Smith appeals a judgment of conviction for his failure to comply with the reporting requirements of Wisconsin's sex offender registry. Smith complains the registry scheme is unconstitutional as applied to him because the underlying crime of which he was convicted lacks a sexual element. We reject his challenges and affirm the judgment.
Criminal Law/ Traffic Stops/ Motor Vehicle Law/ Evidence/ Search & Seizure/ Constitutional Law

State v. Hebert
Docket: 2008AP001420 12-16-08
PER CURIAM. Ashley Hebert appeals a judgment of conviction for one count each of possessing tetrahydrocannabinols (THC) with intent to deliver and possessing drug paraphernalia. Hebert argues the circuit court erred by denying her motion to suppress evidence obtained after the traffic stop was concluded. We agree. We therefore reverse and remand.
Employment Law/ Collective Bargaining/ Contracts/ Agencies/ Jurisdiction/ WERC/ Constitutional Law/ Statutes/ County

Ozaukee County v. Labor Association of Wisconsin
Docket: 2007AP001615E 12-15-08
Family Law/ Divorce/ Child Support/ Attorney Fees/ Statutory Interest/ Statutes

Frisch v. Henrichs
Docket: 2008AP000054 12-17-08
PER CURIAM. The post-divorce disputes between Heidi Frisch and Ronald Henrichs are again before this court. Frisch appeals from a circuit court order finding that she owes Henrichs $44,977 in child support arising from a change in placement of one of their children, denying Frisch interest on awards payable to her by Henrichs, and denying Frisch attorney's fees from Henrichs for overtrial during previous proceedings in this court and the Wisconsin Supreme Court. We affirm Frisch's child support obligation and the circuit court's refusal to award attorney's fees to her for the previous appeals. We reverse the circuit court's refusal to award statutory interest to Frisch and remand for further proceedings relating to that issue.
Family Law/ TPR/ Default Judgment/ Notice/ Evidence

Kenosha County D.H.S. v. Kimberly B.
Docket: 2008AP001715 12-17-08
Kenosha County D.H.S. v. Kimberly B.
Docket: 2008AP001715E 12-18-08
NEUBAUER, J. Kimberly B. appeals from a trial court order denying her postdisposition motion for relief from a trial court order terminating her parental rights to her daughter, Kaylee. Kimberly argues that the trial court erred in entering a default judgment in the "grounds" phase of the termination of parental rights (TPR) proceeding without first finding that her failure to appear at that hearing was egregious or in bad faith. We conclude that the trial court was entitled to enter a default judgment based on Kimberly's failure to appear either in person or by counsel at the initial hearing and that Kimberly subsequently failed to meet her burden of proving that she was entitled to postdisposition relief under WIS. STAT. § 806.07. We therefore affirm the trial court's order.
OWI/ Dismissed Without Prejudice/ Judicial Authority-Discretion

State v. Jobson
Docket: 2008AP000367 12-18-08
PER CURIAM. John Jay Jobson appeals an order dismissing his prosecution on three charges without prejudice. Jobson contends that the trial court's decision not to attach prejudice to the dismissal is an erroneous exercise of its discretion. We disagree, and therefore affirm.
Towns & Cities/ Ordinances/ Ordinances Construction-Interpretation/ Constitutional Law-Due Process/ Zoning/ Nuisance

Town of Manitowish Waters v. Malouf
Docket: 2008AP001839 12-16-08
Town of Manitowish Waters v. Malouf
Docket: 2008AP001840 12-16-08
HOOVER, P.J. Marcella and Philip Malouf appeal judgments entered for violations of a town ordinance on their respective properties. The Maloufs contend the ordinance is unconstitutional and, alternatively, they had a vested right to the existing use of their land. We disagree and affirm the judgments.


Week of December 15, 2008 Supreme Court Cases No decisions were released. Court of Appeals Cases Chapter 980 Commitments/ New Hearing/ Evidence State v. Mitchell Docket: 2008AP000153 12-16-08 KESSLER, J. Tommie L. Mitchell appeals from a judgment and commitment order finding him to be a sexually violent person under WIS. STAT. ch. 980 (2001-02). He seeks a new trial on grounds that the trial court erroneously exercised its discretion when it allowed "the [S]tate's witnesses to give hearsay testimony concerning the facts of two alleged sexual incidents of which Mitchell was never charged nor convicted." We reject his argument because the record reflects that Mitchell was indeed charged and convicted of crimes in connection with both of those incidents. We affirm the judgment and order. Contracts/ Employment Law/ Choice Of Law/ Declaratory Judgment/ Public Policy/ Forum Selection Martin v. Stassen Insurance Docket: 2008AP000942 12-16-08 FINE, J. John Martin appeals a judgment dismissing his declaratory-judgment action against his former employer, the Stassen Insurance Agency, Inc. Martin claims that the circuit court erred when it upheld choice-of-law and forum-selection clauses in an employment contract requiring that any dispute between Martin and Stassen Insurance be resolved by Illinois law in certain Illinois state or federal courts. We affirm. Contracts/ Public Policy/ Damages/ Negligence/ Judicial Authority-Discretion/ Corporations/ Statutes Grafft v. Jensen Docket: 2008AP000185 12-18-08 VERGERONT, J. This is a negligence action filed by James Grafft against the accountant who provided services for Injection Technologists, Inc. (ITI), of which Grafft was an investor, lender, and part owner at the time. On Grafft's prior appeal we held that the circuit court had erred in deciding, after a trial to the court, that his initial investment in ITI and his personal loan to ITI were not recoverable as damages based on public policy grounds. We also held that the circuit court had not erred in offsetting Grafft's damages by the value of the ITI assets he retained. We remanded to the circuit court for additional findings on damages. On remand the circuit court determined that Grafft's total damages were $58,804.61 reduced to $29,402.30 because of Grafft's 50% contributory negligence. Criminal Law/ Contracts/ Inmates/ Civil Conspiracy/ Constitutional Law-Due Process Heimermann v. McCaughtry Docket: 2007AP002961 12-18-08 PER CURIAM. Scott A. Heimermann appeals from the orders that dismissed all of his claims against Joanne Swyers and denied his motion for reconsideration. Heimermann argues that the circuit court erred when it dismissed his claims, when it denied his motion for reconsideration, and when it granted costs to Swyers, and asks this court to order the circuit court to allow him to amend his complaint. Because we conclude that the circuit court did not err, we affirm. Criminal Law/ Hearings/ Warrants/ Probable Cause/ Discovery State v. Hoak Docket: 2007AP002847 12-17-08 PER CURIAM. Ralph A. Hoak appeals a judgment entered upon his guilty plea convicting him of three counts of possession of child pornography and an order denying him postconviction relief. Hoak contends that he is entitled to a Franks/Mann hearing on his claim that the affidavit supporting the search warrant omitted critical information; he should be allowed additional discovery on that issue; and the affidavit did not establish probable cause to issue a warrant. We disagree and affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Evidence/ Juries/ Right To Remain Silent State v. Dallas Docket: 2008AP000549 12-17-08 PER CURIAM. Tion Charles Dallas appeals from a judgment of conviction of burglary and from an order denying his motion for postconviction relief. He challenges the trial court's handling of questions and a request for testimony from the jury during deliberations and argues that his trial counsel was ineffective for not opposing the introduction of other act evidence with evidence that the other act was not unique. We reject his claims and affirm the judgment and order. Criminal Law/ Sentencing/ Sentencing Modification/ New Factor/ Judicial Authority-Discretion/ Evidence State v. Morgan-Owens Docket: 2008AP000887 12-16-08 FINE, J. Mistie L. Morgan-Owens appeals a judgment entered on her guilty plea to armed robbery with the threat of force, as a party to the crime. See WIS. STAT. §§ 943.32(2), 939.05. She also appeals the order denying her postconviction motion for sentence modification. Morgan-Owens claims that: (1) the circuit court erroneously exercised its sentencing discretion; (2) she was sentenced on inaccurate information; and (3) a new factor warrants sentence modification. We affirm. Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Sex Offender Registry/ Constitutional Law State v. Smith Docket: 2008AP001011 12-16-08 Recommended for Publication HOOVER, P.J. James Smith appeals a judgment of conviction for his failure to comply with the reporting requirements of Wisconsin's sex offender registry. Smith complains the registry scheme is unconstitutional as applied to him because the underlying crime of which he was convicted lacks a sexual element. We reject his challenges and affirm the judgment. Criminal Law/ Traffic Stops/ Motor Vehicle Law/ Evidence/ Search & Seizure/ Constitutional Law State v. Hebert Docket: 2008AP001420 12-16-08 PER CURIAM. Ashley Hebert appeals a judgment of conviction for one count each of possessing tetrahydrocannabinols (THC) with intent to deliver and possessing drug paraphernalia. Hebert argues the circuit court erred by denying her motion to suppress evidence obtained after the traffic stop was concluded. We agree. We therefore reverse and remand. Employment Law/ Collective Bargaining/ Contracts/ Agencies/ Jurisdiction/ WERC/ Constitutional Law/ Statutes/ County Ozaukee County v. Labor Association of Wisconsin Docket: 2007AP001615E 12-15-08 Family Law/ Divorce/ Child Support/ Attorney Fees/ Statutory Interest/ Statutes Frisch v. Henrichs Docket: 2008AP000054 12-17-08 PER CURIAM. The post-divorce disputes between Heidi Frisch and Ronald Henrichs are again before this court. Frisch appeals from a circuit court order finding that she owes Henrichs $44,977 in child support arising from a change in placement of one of their children, denying Frisch interest on awards payable to her by Henrichs, and denying Frisch attorney's fees from Henrichs for overtrial during previous proceedings in this court and the Wisconsin Supreme Court. We affirm Frisch's child support obligation and the circuit court's refusal to award attorney's fees to her for the previous appeals. We reverse the circuit court's refusal to award statutory interest to Frisch and remand for further proceedings relating to that issue. Family Law/ TPR/ Default Judgment/ Notice/ Evidence Kenosha County D.H.S. v. Kimberly B. Docket: 2008AP001715 12-17-08 Kenosha County D.H.S. v. Kimberly B. Docket: 2008AP001715E 12-18-08 NEUBAUER, J. Kimberly B. appeals from a trial court order denying her postdisposition motion for relief from a trial court order terminating her parental rights to her daughter, Kaylee. Kimberly argues that the trial court erred in entering a default judgment in the "grounds" phase of the termination of parental rights (TPR) proceeding without first finding that her failure to appear at that hearing was egregious or in bad faith. We conclude that the trial court was entitled to enter a default judgment based on Kimberly's failure to appear either in person or by counsel at the initial hearing and that Kimberly subsequently failed to meet her burden of proving that she was entitled to postdisposition relief under WIS. STAT. § 806.07. We therefore affirm the trial court's order. OWI/ Dismissed Without Prejudice/ Judicial Authority-Discretion State v. Jobson Docket: 2008AP000367 12-18-08 PER CURIAM. John Jay Jobson appeals an order dismissing his prosecution on three charges without prejudice. Jobson contends that the trial court's decision not to attach prejudice to the dismissal is an erroneous exercise of its discretion. We disagree, and therefore affirm. Towns & Cities/ Ordinances/ Ordinances Construction-Interpretation/ Constitutional Law-Due Process/ Zoning/ Nuisance Town of Manitowish Waters v. Malouf Docket: 2008AP001839 12-16-08 Town of Manitowish Waters v. Malouf Docket: 2008AP001840 12-16-08 HOOVER, P.J. Marcella and Philip Malouf appeal judgments entered for violations of a town ordinance on their respective properties. The Maloufs contend the ordinance is unconstitutional and, alternatively, they had a vested right to the existing use of their land. We disagree and affirm the judgments.		Links WisBar.org WisBar Legal Research CaseLaw Express Archives Also of Interest Supreme Court accepts six new cases The Wisconsin Supreme Court has accepted six new cases and denied review in a number of cases. More Supreme Court directs staff to study concept of Access to Justice Commission The Supreme Court took up State Bar petition 08-17 regarding the creation a new Access to Justice Commission with the purpose of improving access to justice. More

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. Click here to unsubscribe from CaseLaw Express. Email list rules & usage guidelines. CONTACT Questions concerning this mailing list or the State Bar of Wisconsin's Web site should be directed to the webmaster. CaseLaw Express is published by the State Bar of Wisconsin, 5302 Eastpark Blvd., Madison, WI, 53718-2101, http://www.wisbar.org/express/ (800) 728-7788. 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.

© 2008, State Bar of Wisconsin