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• Chapter 980 Commitments/ Statutes/ Burden Of Proof/ Judicial Authority-Discretion/ Evidence
  
  State v. Thiel
  Docket: 2007AP002742 03-18-09
  

  SNYDER, J. Dennis R. Thiel appeals from an order denying his petition for supervised release from his WIS. STAT. ch. 980 (2005-06) commitment. He contends that the circuit court applied the wrong legal standard and misplaced the burden of proof on him rather than on the State when denying his petition. Because the legislature has extensively revised the relevant statutes, and those revisions support the circuit court's exercise of discretion, we affirm the order of the circuit court.
• Criminal Law/ Ineffective Assistance Of Counsel
  
  State v. Bell
  Docket: 2008AP001003 03-18-09
  

  PER CURIAM. Jermaine Bell appeals from judgments of conviction for second-degree recklessly endangering safety, battery and disorderly conduct, all as a repeater, as domestic abuse and by use of a dangerous weapon, and from an order denying his postconviction motion alleging ineffective assistance of trial counsel. He contends that trial counsel conceded his guilt during closing argument, failed to investigate the victim's mental illness and failed to advance a defense theory of "accident." We conclude that Bell was not deprived of effective assistance of counsel. We affirm the judgments and order.
• Criminal Law/ Ineffective Assistance Of Counsel/ New Trial
  
  State v. Laguna
  Docket: 2008AP000507 03-17-09
  

  PER CURIAM. Mark Laguna appeals a judgment, entered upon a jury's verdict, convicting him of second-degree intentional homicide. Laguna also appeals the denial of his postconviction motion for a new trial. Laguna seeks a new trial on the basis of ineffective assistance of trial counsel or, alternatively, in the interest of justice. We reject Laguna's arguments and affirm the judgment and order.
• Criminal Law/ Miranda/ Constitutional Law/ Right To Counsel/ Custody
  
  State v. Luko
  Docket: 2008AP001990 03-18-09
  

  NEUBAUER, J. David C. Luko appeals from a judgment of conviction for intentionally shooting a caged or staked animal, operating a firearm while intoxicated, and negligently mistreating an animal contrary to WIS. STAT. §§ 951.09, 941.20(1)(b), and 951.02. Luko admitted to the charged offenses after waiving his Miranda rights during a custodial interrogation. Luko argues that the waiver was not valid because he was represented by counsel at the time of questioning and because he had invoked his Miranda rights during the preceding investigation, prior to his arrest. Because Luko's Sixth Amendment right to counsel had not attached at the time of questioning and because Wisconsin law does not recognize an anticipatory invocation of Miranda rights, we uphold the trial court's order denying Luko's motion to suppress his statement. We affirm the judgment.
• Criminal Law/ Right To Represent Self/ Constitutional Law/ Right To Counsel
  
  State v. Darby
  Docket: 2008AP000935 03-19-09
  Recommended for Publication
  

  VERGERONT, J. James Darby appeals the judgment of conviction for aggravated battery and the order denying postconviction relief, presenting two issues for our review. The first issue is whether Darby was denied his constitutional right to represent himself at trial, which requires us to decide as a threshold matter whether Darby is correct that the circuit court had an obligation to advise him of his right to self-representation. This is a question of first impression in Wisconsin. Consistent with case law from other jurisdictions, we conclude that a defendant must clearly and unequivocally declare a desire to represent himself or herself in order to invoke that right and the circuit court has no obligation to advise a defendant of that right prior to a clear and unequivocal declaration. Because Darby did not make a clear and unequivocal declaration, he was not denied the right to self-representation.
• Damages/ Verdicts/ Economic Loss Doctrine/ Regulations/ Attorney Fees/ Judicial Authority-Discretion
  
  W.E.D. Development v. A.B.C. Insurance
  Docket: 2008AP000977 03-18-09
  

  PER CURIAM. RE/MAX Realty 100 and Bunch & Associates (collectively RE/MAX) appeal from a judgment in favor of WED Development, LLC, for the sum it expended in settling a lawsuit against WED and William and Elaine Honeyager filed by Stephanie and Jason Barwick, clients of RE/MAX. WED cross-appeals from the judgment challenging the remittitur of the jury's damage verdict. We reject RE/MAX's claims that a directed verdict should have been granted, the economic loss doctrine bars recovery, and it was error to permit proof of the settlement amount and attorney fees as damages. We reject both parties' argument that the remittitur of damages was improper. We affirm the judgment.
• Employment Law/ Jurisdiction/ Writs
  
  Westphal v. City of Kenosha
  Docket: 2008AP001485 03-18-09
  

  PER CURIAM. City of Kenosha firefighter Randy Westphal appeals from a judgment dismissing his certiorari action and sustaining an order of the Police and Fire Commission for the City of Kenosha. We agree with the Commission that we have no jurisdiction to review Westphal's WIS. STAT. § 62.13(5) (2007-08) appeal. We also agree that the Commission acted within its jurisdiction in imposing the discipline it did. We affirm.
• Employment Law/ LIRC/ Unemployment Insurance/ Preclusion/ Statutes/ Procedure
  
  Lampone v. L.I.R.C.
  Docket: 2008AP000734 03-17-09
  

  CURLEY, P.J. Stephanie Lampone (Lampone) appeals an order dismissing her action that sought to overturn the Labor and Industry Review Commission's (LIRC) denial of her request for reconsideration of its decision denying her unemployment insurance benefits. She also sought a de novo hearing on the underlying decision denying her unemployment insurance benefits. Lampone contends that the trial court erred when it dismissed her action based on the "Doctrine of Preclusion." We conclude that Lampone's failure to comply with the statutory appeal process precludes judicial review of LIRC's decision. Therefore, this court affirms the trial court's ruling, albeit on other grounds. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985) (We may affirm a trial court's decision on other grounds even if we do not agree with its reasoning.).
• Family Law/ Divorce/ Maintenance/ Sanctions/ Notice/ Settlement Agreements
  
  McCauley v. McCauley
  Docket: 2008AP002119 03-19-09
  

  PER CURIAM. Alan McCauley appeals an order which required him to pay maintenance to his ex-wife Karen Kitelinger as a purported sanction for contempt. We agree with McCauley that the circuit court erroneously awarded maintenance without notice, an evidentiary hearing devoted to maintenance issues, or consideration of the relevant maintenance factors. We therefore reverse the order and remand the matter for further proceedings.
• Insurance/ Contracts/ Wrongful Death
  
  Nationwide Insurance v, Country Mutual
  Docket: 2008AP001705 03-17-09
  

  PER CURIAM. Jarmila Ehnle, her children Kelsey and Taylor, Nicholas Herting and Nationwide Insurance Company of America (collectively the Ehnles) appeal a summary judgment dismissing the Ehnles' wrongful death action against Country Mutual Insurance Company. Country Mutual's liability policy issued to Joseph Westart excluded coverage for a motor vehicle operated in a prearranged or organized race. The trial court concluded that the term "prearranged" is not ambiguous and, on the undisputed facts, Westart was engaged in a prearranged snowmobile race at the time of the accident that caused Douglas Ehnle's death. The Ehnles argue that "prearranged" is ambiguous and must be construed in favor of coverage, and in the context of the entire exclusion, more planning or formal rules would be required to constitute a prearranged race. We affirm the summary judgment.
• Insurance/ Underinsured Motorist Law (UIM)/ Declaratory Judgment/ Statutes/ Statutory Construction-Interpretation
  
  Estate of Her v. Scolman
  Docket: 2008AP000979 03-19-09
  

  DYKMAN, J. American Family appeals from an order granting the Hers' motion for a declaratory judgment and establishing that Ju and Pelg Her are entitled to underinsured motorist (UIM) coverage under separate policies American Family issued to the Hers. American Family contends that the "Limits of Liability" (LOL) exclusion in the policies limits American Family's total exposure for all injured persons in this case to $500,000. American Family also argues that the "Drive Other Car" (DOC) exclusion in each of the policies limits all of the injured persons to recovery under one policy, with a per occurrence maximum of $500,000. The Hers respond that the LOL and DOC clauses violate statutory requirements, and are thus impermissible and unenforceable. We conclude that the DOC clause in each of the American Family policies limits all of the injured persons to recovery under one policy, and thus American Family's total liability to the Hers is $500,000. Accordingly, we reverse.
• Medical Malpractice/ Evidence/ Experts/ Evidence Rulings
  
  Parker v. Wisconsin Patients Compensation Fund
  Docket: 2007AP001542 03-19-09
  Recommended for Publication
  

  HIGGINBOTHAM, P.J. Priscilla Parker brought this medical malpractice action against Dr. Karin Blumofe alleging that Blumofe negligently performed a vascular bypass procedure and was negligent in providing post-operative care, resulting in permanent injuries including amputation of her lower left leg. A jury returned a verdict in favor of Blumofe, and Parker appeals the judgment dismissing her claims. Parker contends that Blumofe's key expert witness, Dr. Allan Koslow, should not have been allowed to testify because Blumofe failed to name Koslow as her expert by the time established under a pretrial scheduling order, and did not demonstrate that her failure to timely name Koslow was the result of excusable neglect. Parker further contends that the circuit court erred in: (1) permitting Koslow to provide testimony at trial that was inconsistent with pretrial disclosures; (2) allowing Blumofe to offer opinion testimony at trial after she had refused to offer opinion testimony during discovery; and (3) excluding the deposition testimony of one of Parker's experts, Dr. Jon Wesley. We affirm.
• OWI/ Arrest/ Probable Cause/ Evidence/ Traffic Stops/ Custody/ Reasonable Suspicion
  
  State v. Klevesahl
  Docket: 2008AP002493 03-17-09
  

  BRUNNER, J. Luke Klevesahl appeals a judgment of conviction for operating a motor vehicle while intoxicated, second offense. He contends the court erroneously denied his motion to suppress evidence because he was under arrest before probable cause existed for the arrest. We reverse the judgment.
• OWI/ Traffic Stops/ Evidence/ Reasonable Suspicion
  
  State v. Cobos
  Docket: 2008AP002000 03-19-09
  

  HIGGINBOTHAM, P.J. Josue M. Cobos appeals a judgment convicting him of operating while intoxicated, second offense, upon a guilty plea following the circuit court's denial of his motion to suppress evidence obtained during a traffic stop. We affirm.
• Property/ Easements/ Deeds/ Riparian Rights
  
  Konneker v. Romano
  Docket: 2008AP001546 03-19-09
  

  PER CURIAM. Robert and Francis Romano appeal from an order granting summary judgment to Robert and Ann Konneker on the Konnekers' claim that they have the right to build a pier on the Romanos' lakefront property pursuant to a recorded easement. We reverse and remand with directions that summary judgment be entered in the Romanos' favor.
• Wills
  
  Lemmer v. Schunk
  Docket: 2008AP000614 03-19-09
  

  PER CURIAM. Six children of Edward A. Schunk, Jr., appeal from an order construing his will to leave the bulk of his estate to his seventh and youngest child, Megan Schunk. We conclude that the court's construction of the will is not a reasonable interpretation. An unresolved ambiguity in the will remains, however, as to whether the will disinherits three of the appellants. We therefore reverse and remand for further proceedings to resolve that remaining ambiguity.