PER CURIAM. We review a report and recommendation filed by the referee, Stanley F. Hack, recommending this court suspend Attorney Neil R. McKloskey's license to practice law for 60 days and impose the costs of this disciplinary proceeding on him. No appeal has been filed, so the court considers this matter pursuant to SCR 22.17(2).

PER CURIAM. The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would affirm. Justice David T. Prosser, Jr., Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would reverse. Justice Patience Drake Roggensack did not participate.

N. PATRICK CROOKS, J. This case concerns an interlocutory appeal before the court of appeals of a circuit court's pretrial order. The order permitted the defendant-appellant, Jason L. McClaren (McClaren), to introduce in connection with his claim of self-defense what is commonly referred to as "McMorris evidence"----evidence of violent acts the victim had committed which McClaren knew about at the time of the alleged crime, and which would bear on the reasonableness of the claim of self-defense----but only on the condition that he provide a summary of that evidence prior to trial so that the court could make a pretrial determination of its relevance and admissibility. McClaren objected to that requirement on the grounds that the court had no authority to require disclosure of such evidence and that doing so violated certain constitutional rights. He contended that the proper time to resolve concerns about admissibility would be after the testimony was elicited at trial and drew an objection. He sought and was granted review of the non-final order at the court of appeals.

PATIENCE DRAKE ROGGENSACK, J. We review a published decision of the court of appeals, which reversed in part and affirmed in part a decision of the circuit court. There are two questions presented for our review: (1) whether Dr. Matthew Lindemann (Lindemann) was a borrowed employee of St. Joseph's Hospital of Milwaukee (St. Joseph's), and was therefore an employee of a health care provider subject to Wis. Stat. ch. 655 and Wis. Stat. § 893.55(4) (1997-98); and (2) whether Gregory Phelps (Gregory) can recover damages caused by Lindemann's negligence on a theory of the negligent infliction of emotional distress to a bystander. We conclude that Lindemann was a borrowed employee of St. Joseph's, and was therefore an employee of a health care provider under ch. 655. As a result, ch. 655 governs Gregory's claim. We further conclude that ch. 655 does not permit claims arising from medical negligence other than those listed in Wis. Stat. §§ 655.005(1) and 655.007, and the negligent infliction of emotional distress to a bystander is not one of those claims. Therefore, Gregory's claim is not actionable under Wisconsin law. Accordingly, we reverse the decision of the court of appeals, and remand the cause to the circuit court to issue an order dismissing Gregory's claim.

PATIENCE DRAKE ROGGENSACK, J. We review an unpublished decision of the court of appeals that affirmed a decision of the circuit court granting summary judgment in favor of OHIC Insurance Company and other defendants (collectively, OHIC). Our review requires us to address two issues: (1) whether the claim of the Estate of Robert V. Genrich (the estate) for "injury" to Robert Genrich (Robert) that resulted in his death and allegedly was caused by medical negligence is precluded by Wis. Stat. § 893.55(1m)(a) (2005-06) as untimely-filed; and (2) whether Kathy R. Genrich's (Kathy) wrongful death claim based on Robert's death accrued on the date of Robert's "injury."

MICHAEL J. GABLEMAN, J. This is a review of a published decision of the court of appeals affirming the entry of summary judgment against Joseph Donaubauer ("Donaubauer") by the Circuit Court for Milwaukee County, Francis Wasielewski, Judge. This case is a dispute between an insurer and an insured over the proper replacement value of a home that had burned down. Donaubauer, the homeowner, challenges the validity and outcome of an appraisal award determining the replacement value of the home.

SHIRLEY S. ABRAHAMSON, C.J. The defendants (physicians, hospitals, and insurers) seek review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Milwaukee County, Christopher R. Foley, Judge, in favor of the plaintiffs. The circuit court granted the plaintiffs' motion under Wis. Stat. § 804.11(2) (2005-06) to withdraw three admissions that the plaintiffs made in response to the defendants' request for admissions. The court of appeals affirmed the order of the circuit court.

DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals, Osborn v. Dennison, 2008 WI App 139, 314 Wis. 2d 75, 758 N.W.2d 491, affirming the judgment of the Kenosha County Circuit Court, Barbara A. Kluka, Judge. The case requires interpretation of the now-mandatory WB-11 Residential Offer to Purchase form approved for residential real estate transactions by the Wisconsin Department of Regulation and Licensing. See Wis. Admin. Code § RL 16.03 (Note) (Oct. 2008).

N. PATRICK CROOKS, J. This is a review of an unpublished court of appeals decision affirming an order granting summary judgment to Silvan Industries, Inc. (Silvan) and its insurer, Gulf Underwriters Insurance Co. (Gulf). Silvan and Gulf were among those sued by Kenneth Behrendt (Behrendt) after he was injured when a tank exploded while he was using it at his job in an oil change business. The tank had been fabricated as a favor to Behrendt's employer; it was made as a side job by someone who worked at Silvan at the time, and it was subsequently customized for use in the oil change business. Behrendt claimed that Silvan was negligent in permitting the tank to be made as a side job and vicariously liable for its employee's conduct in making the tank, but Silvan won dismissal of the claims, and the court of appeals affirmed. Behrendt sought review here of the court of appeals' decision.

ANNETTE KINGSLAND ZIEGLER, J. This case is before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2007-08). Glen and Louann Hocking (hereinafter, "the Hockings") brought an action against the City of Dodgeville and a number of individuals for negligence, unlawful taking, and creating and maintaining a nuisance. Relevant to this appeal is the allegation of negligent maintenance of a nuisance against defendants Charles and Joan O'Rourke and Amy Crubaugh-Schrank (collectively hereinafter "the defendants"). The circuit court concluded that no liability could arise because these defendants did not owe a duty to the Hockings under these circumstances. The Hockings appealed, and the court of appeals certified this case to the supreme court, which we accepted.

PER CURIAM. First National Bank in Viroqua (the Bank) appeals a money judgment entered in favor of Jackson County. The County cross-appeals the judgment. The court entered judgment for $4395, plus costs, on one of the County's seven claims against the Bank, and dismissed the other six. The Bank contends that the circuit court should have dismissed the County's complaint in its entirety. The County contends that it was entitled to damages on all seven of its claims. We agree with the Bank that the court should have dismissed all of the claims, and therefore reverse and remand for an order dismissing the County's complaint.

PER CURIAM. Cletes Mark Crawford, pro se, appeals from an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2007-08). The circuit court denied Crawford's motion as procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm.

CURLEY, P.J. Shelby Peter Fairconatue, Jr., appeals the corrected judgment convicting him of one count of armed robbery­threat of force, as a party to the crime, and one count of felon in possession of a firearm, contrary to WIS. STAT. §§ 943.32(2), 939.05, and 941.29(2)(a) (2003-04). He also appeals the orders denying his postconviction motions. On appeal, Fairconatue contends: (1) that the conviction must be reversed and the case dismissed because his constitutional right to a speedy trial was violated; (2) that his confession was not corroborated by a significant fact, thereby resulting in insufficient evidence to convict him of the armed robbery charge; (3) that his first statement given to the police was coerced and involuntary and should have been suppressed; and (4) that his second statement was a "sew up" confession which violated his due process rights. He also argues that the trial court erroneously exercised its discretion in refusing to modify his sentence after he was found ineligible for the Challenge Incarceration Program (CIP) and the Earned Release Program (ERP). We determine that: (1) there was no constitutional speedy trial violation; (2) his confession was corroborated by a significant fact--that is, that an armed robbery took place; (3) his first statement to police was neither involuntary nor coerced; (4) the claim of an illegal "sew up" confession was waived; and (5) the trial court properly determined that his ineligibility for CIP and ERP was not a new factor and no modification of his sentences was required. As a result, we affirm.

PER CURIAM. Darrell Kenyatt Campbell appeals from a judgment of conviction after a jury convicted him of first-degree intentional homicide while armed. Campbell argues that the circuit court erred when it denied his motion to suppress his custodial statements. Because we conclude that the circuit court properly denied the motion, we affirm.

KESSLER, J. Willie L. Parchman appeals from a judgment of conviction for one count of first-degree intentional homicide, party to a crime, contrary to WIS. STAT. §§ 940.01(1)(a) and 939.05 (1999-2000). He also appeals from orders denying his motion and supplemental motion for postconviction relief. Parchman argues that the trial court erroneously exercised its discretion when it denied him an evidentiary hearing to explore the following bases for granting him a new trial: (1) the State failed to fully disclose its prosecution agreements with two witnesses; (2) there is newly discovered evidence that Parchman's brother committed the crime; (3) Parchman was denied the effective assistance of trial counsel; and (4) the real controversy was not fully tried and therefore the interest of justice requires a new trial. We reject Parchman's arguments and affirm the judgment and orders.

PER CURIAM. Joshua Brust appeals a judgment of conviction for second-degree sexual assault of a child. Brust argues his revoked deferred guilty plea agreement should be reinstated because the State failed to sufficiently prove a material breach. Alternatively, Brust argues he is entitled to withdraw his guilty plea because his attorney provided ineffective assistance and Brust's plea was not entered knowingly, voluntarily, and intelligently. Brust further argues his sentence was unduly harsh. We reject Brust's arguments and affirm.

HIGGINBOTHAM, P.J. Chase E. Kaczmarski appeals a circuit court order denying his motion to enforce compliance with a deferred prosecution agreement, and a judgment of conviction entered against him based on a guilty plea to second-degree sexual assault of a person who has not attained the age of sixteen. He seeks a court order dismissing the charge with prejudice. The issue on this appeal is whether the deferred prosecution agreement, drafted by the district attorney, permits the district attorney to resume prosecuting Kaczmarski for the underlying charge after the period of deferred prosecution has expired for a breach of the agreement which occurred during the deferral period. We conclude that the plain language of the agreement provides two potential remedies to the district attorney in the event of a breach by Kaczmarski, neither of which permits the district attorney to resume prosecution of the underlying charge after the period of deferred prosecution has expired. We therefore reverse and remand with directions to vacate the judgment of conviction for second-degree sexual assault of a person who has not attained the age of sixteen and enter an order dismissing the charge with prejudice.

FINE, J. Troy Jahnke appeals the default judgment entered against him on July 7, 2008, for $221,954. Although he does not separately appeal the circuit court's order of September 9, 2008, denying his motion seeking vacatur of the default judgment, and does not even reference the September order in his October 1, 2008, notice of appeal, we construe the notice of appeal to encompass the September 9 order. See WIS. STAT. RULE 809.10(1)(f) ("An inconsequential error in the content of the notice of appeal is not a jurisdictional defect."); cf. State v. Long, 163 Wis. 2d 261, 263 n.1, 471 N.W.2d 248, 249 n.1 (Ct. App. 1991) (appeal from non-final order denying a motion to suppress evidence construed to encompass the judgment of conviction when the appeal was filed after entry of the judgment). We affirm.

BRENNAN, J. Cleveland Lee appeals pro se from a judgment entered following the grant of summary judgment in favor of Harambee Community School, Inc., dismissing Lee's counterclaims seeking unpaid compensation he claimed Harambee owed him. Lee makes four claims on appeal: (1) the trial court erred in finding that Lee provided "personal services" to Harambee and that the two-year statute of limitations under WIS. STAT. § 893.44(1) (2007-08) was applied to bar his counterclaims for unpaid compensation; (2) the trial court erred when it found he was estopped from pursuing a claim for unjust enrichment; (3) the computation on the six-year statute of limitations for the travel reimbursement was erroneous; and (4) the court of appeals should exercise its discretionary reversal power under WIS. STAT. § 752.35 because the real controversy has not been fully tried and/or justice has miscarried. We affirm the trial court on all issues.

PER CURIAM. Jeanine L. Jackson appeals from a judgment dismissing her complaint against United Migrant Opportunity Services (UMOS), Cleshete Nash, Montreal Wade and Paula Lampley. Jackson alleged that Wade, a security guard at UMOS, had intentionally inflicted emotional distress on her and that Nash and Lampley, Wade's superiors at UMOS, negligently supervised Wade. A jury trial was begun and after Jackson rested, the circuit court granted the defendants' motion for a directed verdict. See WIS. STAT. § 805.14(3) ("At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence."). The circuit court subsequently granted the defendants' motion for sanctions and attorneys' fees related to a motion for injunctive relief, see Schultz v. Sykes, 2001 WI App 255, ¶53, 248 Wis. 2d 746, 787, 638 N.W.2d 604, 623, and entered judgment against Jackson in the amount of $13,759.92. Jackson appeals. We affirm.

PER CURIAM. Robert B. Moodie appeals from an order denying his motion to direct Waukesha County to pay the guardian ad litem fees he incurred as a result of his representation of the minor plaintiff, C.J. Cahala, in a medical malpractice action. The issue is whether Waukesha County is responsible for payment of the court-appointed guardian ad litem fees of the minor plaintiff in a medical malpractice action. The parties dispute certain facts relating to Moodie's representation of Cahala in the underlying malpractice action that were never presented to the circuit court. We therefore conclude that a remand is warranted for the circuit court to find the facts involving Moodie's service as Cahala's guardian ad litem and the full nature of his relationship with the plaintiffs' counsel in the underlying malpractice action.

PER CURIAM. LBX Company, LLC and Mitsui Sumitomo Insurance Company of America (collectively, "LBX") appeal the order dismissing their claims against Evanston Insurance Company and Landmark American Insurance Company. We agree with the circuit court that the policy language is unambiguous. In the meaning of this policy, a safety device is not "provided" simply by giving notice of its availability. We affirm.

BRENNAN, J. Stanley M. and Sandra Broder appeal from the trial court order declaring that the $1,000,000 personal umbrella policy they had with Acuity Insurance Company did not provide underinsured motorist coverage (UIM) for the damages the Broders incurred following an automobile accident. The Broders contend that the policy provisions create contextual ambiguity and, therefore, the umbrella policy should provide UIM coverage. Because the insurance policy is not contextually ambiguous, we reject the Broders' contention and affirm.

HIGGINBOTHAM, P.J. Jessica A. Schroeder appeals an order revoking her operating privileges for refusing to submit to a chemical breath test requested pursuant to WIS. STAT. § 343.305(2007-08). She argues that the circuit court erred in concluding that the arresting officer had probable cause to believe that she had operated a motor vehicle while under the influence of alcohol. She further argues that the court erred in finding that she failed to prove by a preponderance of the evidence that her refusal to submit a breath sample was due to a physical disability or disease. We affirm.

SNYDER, J. Craig J. Immel appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense. He contends that his arrest was not supported by probable cause and was therefore illegal. We disagree and affirm the judgment.

BRENNAN, J. Angela Terry and Ada Mercado-Rivera appeal from orders denying their motions seeking to reopen the default judgments and seeking relief from the default judgments entered in small claims court. Terry and Mercado-Rivera claim that the trial court erred in denying their motions and ask this court to "reverse the trial court denial of the motion[s] with directions to permit appellants to file their counter-claims against GE for [Wisconsin Consumer Act] violations, and direct the small claims trial court to vacate the default judgments against each appellant." Because the claims were not timely under WIS. STAT. § 799.29 (2007-08), which is the exclusive remedy for motions to reopen default judgments, and because we are bound by our decision impacting this issue in Mercado v. GE Money Bank, 2009 WI App 73, No. 2008AP1992 (released Apr. 14, 2009 and ordered published May 27, 2009), we affirm.

PETERSON, J. WISCONSIN STAT. § 66.0203(11) allows the Town of Ledgeview in Brown County--unlike any other town in the state--to bypass the ordinary process for incorporating into a village. The circuit court declared the statute unconstitutional and enjoined the Town from incorporating under the statute. We affirm.