PER CURIAM. David V. Jennings III has appealed a referee's report recommending the denial of Attorney Jennings' petition for reinstatement of his license to practice law in Wisconsin. We adopt the referee's report and conclude that Attorney Jennings has failed to demonstrate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin; that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; and that his conduct since revocation has been exemplary and above reproach, that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards, and that he can safely be recommended as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts. As a result, we deny Attorney Jennings' petition for reinstatement and direct him to pay the costs of this reinstatement proceeding.

PER CURIAM. In this disciplinary proceeding, we review the report and recommendation of Referee Timothy L. Vocke that Attorney Jeffrey R. Kohler be publicly reprimanded for his professional misconduct in failing to comply with an opposing party's discovery request and with court orders to provide discovery, and in making misrepresentations to the court that he had complied.

PER CURIAM. We review the report and recommendation of the referee, Reserve Judge John B. Murphy. Based on a stipulation between the parties, the referee found that Attorney Arik Guenther had committed three violations of the Supreme Court Rules of Professional Conduct for Attorneys. As discipline for those violations, the referee recommended that Attorney Guenther's license to practice law in Wisconsin be suspended for a period of nine months, that he be required, as a condition of any reinstatement of his license, to pay restitution to a former client in the amount of $3,227.27, and that he pay the costs of this disciplinary proceeding.

MICHAEL J. GABLEMAN, J. This is a review of a published decision of the court of appeals affirming the entry of summary judgment in favor of Apple Valley Gardens Association, Inc. (the "Association") by the Circuit Court for Waukesha County, Paul F. Reilly, Judge. Three issues are presented. First, may a condominium complex prohibit the rental of condominium units through an amendment to the bylaws, or must such a restriction be placed in the condominium's declaration? Second, does the condominium declaration at issue here create a right to rent that precludes the enforcement of a bylaws amendment prohibiting condominium rentals? And third, does a prohibition on the rental of condominium units render title to those units unmarketable in violation of Wis. Stat. § 703.10(6) (2007-08)?

ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published court of appeals' decision that affirmed the decision of the Waushara County Circuit Court, Thomas T. Flugaur, Judge. The circuit court concluded that Heritage Farms, Inc. could not be awarded double damages and attorney fees pursuant to Wis. Stat. § 26.21(1) (2007-08) because that statute applies only to railroad corporations and none of the defendants are a railroad corporation. The court of appeals affirmed, and as a result, Heritage Farms petitioned this court for review. We granted the petition for review and reverse the court of appeals.

VERGERONT, J. In this action Francis and Karen Groshek claim their former attorney, Michael G. Trewin, breached his fiduciary duty to them in the course of purchasing their property, which included their homestead. The circuit court denied Trewin's motion for summary judgment and, after a trial to the court, determined that Trewin had breached his fiduciary duty. The court ordered rescission of the contract, awarded punitive damages in the amount of $38,200, and dismissed Trewin's counterclaim for eviction and unpaid rent. Trewin appeals, contending that the court erred in denying his motion for summary judgment, in finding that he had breached his fiduciary duty, in awarding punitive damages, and in dismissing his counterclaim.

PER CURIAM. Martin Terrell Arrington appeals from a corrected judgment of conviction for two counts of armed robbery with the threat of force and for possessing a firearm as a felon, and from a postconviction order denying his resentencing motion. The issue is whether the trial court imposed a lengthier sentence for Arrington's refusal to answer the presentence investigator's questions about his involvement in the present and prior offenses. We conclude that the trial court's consideration of Arrington's negative attitude toward and uncooperativeness with the presentence investigator as consistent with his past behavior and as negatively reflecting on his character was not improper, nor was it punishing Arrington for exercising his Fifth Amendment right against self-incrimination, when considered in the context of the entire record. Therefore, we affirm.

PER CURIAM. Earl Jones, Jr., appeals from an order summarily denying his postconviction motions for a new trial and for the appointment of counsel. Jones raises the issues of whether the trial court erroneously exercised its discretion in failing to: (1) compel the State to analyze and compare a splinter of wood recovered from the victim with the wood from the bat used to beat the victim; (2) act in response to the prosecutor's allegedly improper comments during closing argument; and (3) instruct the jury to sign only one verdict relating to felony murder and armed robbery. We conclude that Jones's fourth postconviction motion is procedurally barred for his failure to currently allege a sufficient reason for failing to previously raise or for renewing these issues as required by State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994) and State v. Tillman, 2005 WI App 71, ¶¶25-27, 281 Wis. 2d 157, 696 N.W.2d 574. Therefore, we affirm.

CURLEY, P.J. Anthony Q. Wallace appeals the judgment entered following a jury trial finding him guilty of: three counts of second-degree sexual assault; two counts of false imprisonment; one count of child abuse, intentionally causing harm; one count of intimidating S.R., a victim, with threats of force; and battery to S.R., all as a repeater, contrary to WIS. STAT. §§ 940.225(2)(a), 940.30, 948.03(2)(b), 940.45(3), 940.19(1), and 939.62(1)(a)-(c) (2005-06). Wallace contends that there was insufficient evidence to convict him: (1) of two counts of second-degree sexual assault concerning the victim, C.B.; (2) of one count of second-degree sexual assault of the victim, S.R.; and (3) of the count charging him with intimidation of S.R. Because sufficient evidence was presented to support the three charges of second-degree sexual assault, we affirm. As to the charge of intimidating a witness, we note that while the amended information and the amended judgment of conviction both reference WIS. STAT. § 940.45(3), a felony, the trial court read the jury instruction for WIS. STAT. § 940.44, a misdemeanor. We conclude there was sufficient evidence to support Wallace's conviction for misdemeanor intimidation of a witness. Consequently, we affirm the conviction of a violation of § 940.44 and remand the matter to the trial court to correct the judgment to reflect a conviction of § 940.44, rather than § 940.45(3), and to resentence Wallace on this count.

PER CURIAM. Danuele Jasper Harper appeals from a judgment of conviction for three robberies, and from a postconviction order denying his plea withdrawal motion. The issue is whether trial counsel was ineffective for failing to move to suppress Harper's statements and for advising him to plead guilty. We conclude that trial counsel did not render ineffective assistance, and that it was Harper's personal decision to plead guilty without moving to suppress his statements. Therefore, we affirm.

PER CURIAM. In 1995, Tracy Tamette Davis was convicted of six counts of burglary as an habitual criminal. She appealed, but this court agreed with her attorney's assessment that there was no potential merit in further postconviction or appellate proceedings. See WIS. STAT. RULE 809.32 (1997-98). Eight years later, Davis sought postconviction relief under WIS. STAT. § 974.06 (2005-06), arguing that trial counsel had been ineffective for failing to specifically request concurrent sentences. The circuit court denied Davis's motion, and Davis appeals. Because we conclude that the circuit court correctly held that Davis's motion was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-182, 517 N.W.2d 157, 162 (1994) (postconviction claims that could have been raised in prior postconviction or appellate proceedings are barred absent defendant articulating a sufficient reason for failing to raise the claims in the earlier proceedings), we affirm.

FINE, J. Paul Anthony Butler appeals the judgment convicting him of unlawfully possessing a firearm as a felon, see WIS. STAT. § 941.29(2)(a), entered on his no-contest plea. He also appeals the circuit court's order denying his motion for postconviction relief. He argues that he should be able to withdraw his plea, contending essentially that his lawyers gave him ineffective assistance because: (1) they did not seek to suppress the gun he had; and (2) his first lawyer, who was permitted to withdraw, appeared before the circuit court for a number of scheduling-type matters without Butler's presence. We affirm.

HIGGINBOTHAM, P.J. Mathew E. Levin moves for reconsideration of our decision affirming the circuit court's order dismissing two wage claim cases against his employer for alleged nonpayment of overtime and vacation pay, Levin v. Gass & Riegert Auto Complex, Inc., Nos. 2008AP578, 2008AP579, unpublished slip op. (WI App Nov. 20, 2008). The court concluded that Levin failed to exhaust his administrative remedies before filing the instant action in small claims court. We grant Levin's motion for reconsideration and conclude that Levin was not required to exhaust available administrative remedies before filing his wage claim action in circuit court under WIS. STAT. § 109.03(5). We therefore conclude that the circuit court erred in precluding Levin's state court claims under the doctrine of exhaustion of administrative remedies and reverse the circuit court's order dismissing Levin's small claims complaint and remand for further proceedings.

PER CURIAM. Rebecca Owen, formerly Hanke, appeals from two postdivorce orders. Owen argues the circuit court erred by denying a motion for reconsideration challenging the termination of maintenance, denying double damages for the misappropriation of vehicles from a marital business, and denying sanctions for evidence spoliation. Owen also appeals an order denying relief from judgment. We conclude this court lacks appellate jurisdiction over the order denying the motion for reconsideration and we therefore dismiss that portion of the appeal. We affirm the order denying relief from judgment.

FINE, J. LaShaun J. appeals the circuit court's order terminating her parental rights to Aaron A. In essence, she contends that the circuit court erroneously exercised its discretion. We disagree and affirm.

PETERSON, J. Nicole W.'s parental rights were terminated under WIS. STAT. § 48.415(10). This statute permits termination if (1) a parent's child is found to be in need of protection or services due to abandonment, abuse, or neglect, and (2) the parent's rights were previously involuntarily terminated to another child within the prior three years. Nicole argues the statute is unconstitutional on its face and as applied to her. We disagree.

PER CURIAM. Phillip Saeger appeals an order dismissing his complaint against Rock County. We conclude the County is immune from suit, and we affirm.

VERGERONT, J. Michael Schlieve appeals the judgment entered after a jury verdict finding him guilty of operating a motor vehicle with a prohibited alcohol concentration, in violation of WIS. STAT. § 346.63(1)(b). He contends the circuit court erred in two ways in denying his motion to suppress. First, he asserts, the court erred in concluding that the statute that provided the asserted basis for the traffic stop, WIS. STAT. § 347.13(3), requires that the license plate lamp actually be lighted and, second, the circuit court erred in concluding that the arresting officer had probable cause within the meaning of WIS. STAT. § 343.303 to obtain a preliminary breathalyzer test (PBT) from him. For the following reasons, we affirm.

PETERSON, J. The City of Washburn appeals an order granting Nathan Kreinbring's suppression motion. The City argues the circuit court erred by concluding Kreinbring was seized when a police officer shined a spotlight on his car. We agree. We therefore reverse and remand.

VERGERONT, J. Sharon R. Carroll appeals the judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, in violation of WIS. STAT. § 346.63(1)(a) (OWI). She contends the circuit court erred in denying her motion to suppress evidence because, she asserts, the arresting officer did not have the requisite reasonable suspicion to stop her vehicle for a violation of WIS. STAT. § 346.072, Passing Stopped Emergency Vehicles. We conclude the circuit court did not err and we therefore affirm.

KESSLER, J. In A.B.C.G. Enterprises, Inc. v. First Bank Southeast, N.A., 184 Wis. 2d 465, 515 N.W.2d 904 (1994), the Wisconsin Supreme Court considered whether claim preclusion barred a mortgagor's mortgage-related claims against a mortgagee where the mortgagee was previously granted numerous default judgments of foreclosure. See id. at 471. The court held that the mortgagor "was required to counterclaim in the prior [foreclosure] action[s] because the claims, if successfully litigated, would nullify the prior default judgments entered in favor of [the mortgagee] or impair rights established in the initial action[s]." Id. Because the mortgagor had not counterclaimed in the original foreclosure actions, its claims were barred by claim preclusion and the common-law compulsory counterclaim rule. Id.

PETERSON, J. In 2003, the City of Green Bay condemned a department store in downtown Green Bay. The store was owned by Wisconsin Mall Properties, LLC and leased to Saks, Inc. Saks and the City claimed the condemnation extinguished Saks' obligations under the lease. A prior appeal in this case established that Saks' obligations under the lease continued, despite the condemnation. On remand, the circuit court held that Saks had breached the lease. Now Saks, related corporate entities, and the City appeal the judgment granting damages for the breach to Wisconsin Mall. They claim the court: (1) erroneously imported information from the condemnation proceeding, (2) improperly granted attorney fees to Wisconsin Mall, and (3) incorrectly applied postjudgment interest. We agree the court incorrectly applied postjudgment interest, but we disagree with the first two arguments. Wisconsin Mall cross-appeals the judgment setting the prejudgment interest rate. We agree with Wisconsin Mall. We therefore affirm in part, reverse in part, and remand for further proceedings.

VERGERONT, J. The Lawtons' claims for adverse possession and, alternatively, prescriptive easement of two adjacent portions of land were dismissed after a trial to the court. The disputed portions are the "two-rod strip" and the driveway. The court rejected the claim as to both portions because it determined that the Lawtons had not established the eastern boundary of one portion, the driveway, with the definiteness required by Droege v. Daymaker Cranberries, Inc., 88 Wis. 2d 140, 146, 276 N.W.2d 356 (Ct. App. 1979). On appeal, the Lawtons contend that, based on the undisputed evidence and the stipulation to the survey, they established as a matter of law adverse possession of the two-rod strip. They also contend that the evidence was sufficient for the court to find the eastern boundary of the driveway with the definiteness required by Droege and thus they have established adverse possession to the driveway. In the alternative, the Lawtons contend, the findings made by the circuit court support the grant of a prescriptive easement in their favor.