No decisions were released.

• Contracts/ Administrative Regulations/ Damages
  
  Wauzeka Heating v. Doll
  Docket: 2008AP001357 08-06-09
  Wauzeka Heating v. Doll
  Docket: 2008AP002435 08-06-09
  

  HIGGINBOTHAM, J.[1] Judy Doll appeals a judgment entered in favor of Wauzeka Heating and Cooling, LLP (Wauzeka) ordering her to pay the outstanding balance on a contract she had with Wauzeka for the installation of heating, ventilation and air conditioning (HVAC) units and ductwork in her home, and an order denying her motion for reconsideration. She contends that the circuit court erred in concluding that contract language requiring payment of the balance "on completion" did not require Wauzeka to provide units that were operational as installed. She also seeks damages for alleged violations by Wauzeka of three provisions of the Home Improvement Code, Wis. Admin. Code §§ ATCP 110.02(6)(f), 110.02(9)(b), and 110.05(2) (Sept. 2001).
• Contracts/ Property/ Summary Judgment/ Misrepresentation/ Warranties
  
  Chowanec v. Jamstep Properties, LLC
  Docket: 2008AP002638 08-04-09
  

  BRENNAN, J. Jamstep Properties, LLC, appeals from a judgment entered in favor of John Chowanec following the summary judgment ruling that Jamstep breached the real estate contract between the two. The court also dismissed Jamstep's claim seeking rescission of the contract. Jamstep argues in this appeal that the trial court erred in dismissing its rescission claim, which was based on misrepresentations Chowanec made prior to the sale. The trial court correctly ruled, as a matter of law, that there could be no justifiable reliance on any verbal misrepresentations because Jamstep drafted the contract, and that contract included provisions asserting that the "BUYER ACCEPTS THE PROPERTY 'AS-IS, WHERE-IS' SELLER MAKES NO WARRANTIES EXPRESSED OR IMPLIED." Accordingly, we affirm.
• Contracts/ Uniform Commercial Code (UCC)/ Services/ Goods/ Rescission
  
  Wisconsin Dairyland Fudge v. Transform, Inc.
  Docket: 2008AP002009 08-06-09
  

  PER CURIAM. Transform, Inc., appeals an order awarding Wisconsin Dairyland Fudge Co. rescission of its contract with Transform for the purchase of office equipment. The issues are: (1) whether the trial court properly determined that the contract was primarily one for goods, rather than services, and (2) if for goods, whether the trial court properly awarded Dairyland the remedy of rescission. We affirm.
• Contracts/ Uniform Commercial Code (UCC)/ Statutes
  
  Kraenzler v. Brace
  Docket: 2008AP001709 08-05-09
  Recommended for Publication
  

  BROWN, C.J. This is a Uniform Commercial Code (U.C.C.) case. More specifically, this case is about whether parties may completely opt out of the U.C.C. when drafting contract terms in a security agreement or if some provisions in the U.C.C. are unwaivable. Robert and Lynn Brace (Brace) loaned Werner Kraenzler and Michael Newville (Kraenzler) money to fund a business venture. The terms of the loan were written in a security agreement between Brace and Kraenzler. In Wisconsin, the U.C.C. provides the basic framework for commercial transactions for businesses and individuals.[1] Wis. Stat. § 401.102(2). There is an exception to the U.C.C. that allows parties in mutual agreement to opt out of the standard provisions governing commercial transactions. Sec. 401.102(3). But there is also an exception to this exception that certain rights cannot be varied by contracting parties. Id. The issue in this case concerns the exception to the exception, where a party in default cannot waive certain rights in a contract. We hold that where the U.C.C. requires, those provisions may not be waived or varied by contracting parties. Because the circuit court ruled that all limitations in the U.C.C. may be varied by agreement, we reverse and remand with directions that the circuit court examine the rights of the parties in light of the relevant U.C.C. provisions which we hereafter discuss.
• Criminal Law/ Evidence/ Witnesses/ Statutes
  
  State v. Austin
  Docket: 2008AP002894 08-05-09
  Recommended for Publication
  

  NEUBAUER, P.J. James F. Lala appeals from a circuit court judgment convicting him of four counts of possession of child pornography, contrary to Wis. Stat. § 948.12(1m) (2003-04).[1] Lala contends that the trial court erred in finding that the child depicted in the photographs was engaged in sexually explicit conduct, and in finding that Lala knew the character and conduct to be sexually explicit. Because we conclude that there is sufficient evidence to find beyond a reasonable doubt (1) that the child was engaged in sexually explicit conduct within the meaning of § 948.12(1m), and (2) that Lala knew the character and content of this sexually explicit conduct, we affirm the judgment of conviction on four counts of possession of child pornography.
• Criminal Law/ Ineffective Assistance Of Counsel/ New Trial
  
  State v. Crossley
  Docket: 2008AP001129 08-04-09
  

  KESSLER, J. Elisha J. Crossley appeals from a judgment of conviction, entered after a jury trial, for arson of property other than a building and burglary of a building, contrary to Wis. Stat. §§ 943.03 and 943.10(1m)(a) (2005-06).[1] He also appeals from an order denying his motion for postconviction relief.[2] Crossley argues he is entitled to a new trial based on trial counsel ineffectiveness and in the interest of justice. We reject his arguments and affirm the judgment and order.
• Criminal Law/ New Evidence
  
  State v. Vernio
  Docket: 2008AP002681 08-04-09
  

  PER CURIAM. Michael Baudelaire Vernio appeals an order[1] denying his postconviction motion in which he requested a new trial based on newly discovered evidence. Because the trial court correctly concluded the new evidence would not have altered the result of the jury trial, we affirm the order.
• Criminal Law/ New Trial/ New Evidence/ Exculpatory Evidence
  
  State v. Rolack
  Docket: 2007AP001442 08-06-09
  

  PER CURIAM. Ira Rolack appeals a judgment convicting him of first-degree reckless injury. He also appeals orders denying him postconviction relief from the judgment. He argues for a new trial based on newly discovered evidence and his claims that the State withheld exculpatory evidence. We affirm.
• Criminal Law/ Pro Se/ Evidence/ Jury Instructions/ Ineffective Assistance Of Counsel/ Verdicts
  
  State v. Groves
  Docket: 2008AP002745 08-04-09
  

  PER CURIAM. Sheffield Groves, Sr., pro se, appeals from a judgment of conviction entered after a jury found him guilty of two counts of first-degree intentional homicide as a party to a crime. See Wis. Stat. §§ 940.01(1)(a), 939.05 (2003-04).[1] Groves also appeals from an order denying his pro se motion for postconviction relief.[2] Groves argues that the evidence at trial was insufficient to sustain his convictions, the jury was improperly instructed, his trial counsel was ineffective in failing to challenge the jury instructions, and the verdicts were inconsistent. We reject his contentions and affirm.
• Criminal Law/ Right To Counsel/ New Trial / Hearing Impaired/ Constitutional Law
  
  State v. Jones
  Docket: 2008AP002342 08-04-09
  

  PER CURIAM. Dwight Glen Jones appeals from a judgment of conviction and from an order denying his postconviction motion seeking a new trial. Jones, who is hearing-impaired, asserts that he was unable to communicate with his trial attorney. He seeks a new trial, conducted with the assistance of substitute counsel. We reject his contentions and affirm.
• Criminal Law/ Statutes/ Juries/ Charges/ Convictions/ Jury Instructions/ Ineffective Assistance Of Counsel
  
  State v. Gracia-Soto
  Docket: 2008AP002579 08-04-09
  

  PER CURIAM. Michael Garcia-Soto appeals a judgment convicting him of repeated sexual assault of a child and an order partially denying his postconviction motion. A jury convicted Garcia-Soto of that offense (Count 1) and a separate count of sexually assaulting the same victim (Count 3). The jury acquitted Garcia-Soto of three other charges. In response to Garcia-Soto's postconviction motion, the State conceded the conviction on both Counts 1 and 3 violated Wis. Stat. § 948.025(3),[1] and elected to dismiss Count 3. The court vacated the conviction on Count 3 and denied Garcia-Soto's challenges to Count 1. Garcia-Soto contends the error in submitting Count 3 to the jury taints the verdict regarding Count 1 and his trial counsel was ineffective for failing to challenge the duplicitous charging, failing to object to the "generic verdict forms," and failing to demand a jury instruction on unanimity. We reject these arguments and affirm the judgment and order.
• Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Internet/ Evidence
  
  State v. Lala
  Docket: 2008AP002893 08-05-09
  

  PER CURIAM. David Austin appeals from a judgment of conviction of first-degree sexual assault of a child and from an order denying his motion for postconviction relief. He argues that his examination of one of his defense witnesses was prejudicially limited and that the evidence is insufficient to support the conviction because no reasonable jury could believe the victim's testimony. We reject his claims and affirm the judgment and order.
• Criminal Law/ Warrants/ Probable Cause/ Good Faith/ Exception/ Franks Challenge
  
  State v. Park
  Docket: 2008AP002403 08-04-09
  

  BRENNAN, J. Alex B. Park appeals from an order entered following a Franks v. Delaware, 438 U.S. 154 (1978) hearing, where the trial court found that Special Agent Eric J. Szatkowski did not make false statements in his affidavit for the application of the search warrant used to search Park's home and computer and that there was probable cause to issue the search warrant. Park argues in this appeal that paragraphs 15, 19, 20, 26, and 30 in the affidavit contain false statements, which Szatkowski made intentionally or with reckless disregard for the truth.[1] Park contends that the affidavit was insufficient to establish probable cause to search his computer, both with and without the challenged statements, and asserts that the good faith exception does not apply. Because the challenged statements in the affidavit were not false or made with reckless disregard for the truth, and the affidavit states sufficient facts to support probable cause to conduct the search, we affirm.[2]
• Family Law/ Divorce/ Marital Estate/ Property/ Gift/ Inheritance/ Valuation
  
  Smith v. Smith
  Docket: 2008AP002590 08-04-09
  

  PER CURIAM. Nancy Smith appeals an order after remand and the denial of a motion for reconsideration. On a previous appeal, we determined a farm Nancy acquired from her grandmother during the course of her marriage was not entirely gifted or inherited, and remanded for a determination of what portion of the farm was gifted. Nancy now claims the increased value of the gifted portion remained individual property. She also challenges the method of valuation. We affirm.
• OWI/ Reasonable Suspicion/ Evidence/ Traffic Stops/ Constitutional Law
  
  State v. Carpenter
  Docket: 2009AP000220 08-06-09
  

  VERGERONT, J.[1] Carpenter appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, first offense, contrary to Wis. Stat. § 346.63(1)(a), and operating a motor vehicle with a prohibited alcohol concentration of .10 or more, first offense, contrary to Wis. Stat. § 346.63(1)(b). He contends the arresting officer did not have reasonable suspicion to prolong a stop that originated after he drove off without paying for gas. He also contends the officer did not have reasonable suspicion that he was driving while under the influence of an intoxicant and thus the field sobriety tests the officer administered were unlawful. He therefore argues that the circuit court should have granted his motion to suppress evidence. We conclude the circuit court properly denied the motion. Accordingly, we affirm the judgment of conviction.
• OWI/ Traffic Stops/ Reasonable Suspicion/ Evidence
  
  State v. Reis
  Docket: 2008AP002769 08-05-09
  

  BROWN, C.J.[1] Mary L. Reis appeals her conviction for operating a vehicle while intoxicated, second offense, in violation of Wis. Stat. § 346.63(1)(a) on the grounds that the state trooper did not have reasonable suspicion to stop her vehicle. Reis was stopped after a trooper observed her car weaving within her travel lane. To support her appeal, Reis relies on State v. Post, 2007 WI 60, ¶¶26-27, 301 Wis. 2d 1, 733 N.W.2d 634, in which our supreme court rejected a proposed rule that weaving within a single lane, on its own, gives rise to reasonable suspicion. Reis argues that because she was only weaving within her travel lane, her case does not meet the requirements of Post. In response to Reis, we cite State v. Popke, 2009 WI 37, ¶27, __ Wis. 2d __, 765 N.W.2d 569, where our supreme court recently addressed the method for assessing reasonable suspicion. In Popke, the court reiterated that the totality of the circumstances test based on the unique facts presented in each case, and not a comparison to Post, remains the sole procedure for finding reasonable suspicion for a stop. Popke, 2009 WI 37, ¶27. We conclude that, under the totality of the circumstances, the trooper had reasonable suspicion to stop Reis' vehicle and affirm.
• Personal Injury/ Statute Of Limitations/ Statutory Construction-Interpretation/ Summary Judgment
  
  Donaldson v. West Bend Insurance
  Docket: 2008AP002289 08-04-09
  Recommended for Publication
  

  KESSLER, J. William M. Berg appeals from an order dismissing his counterclaim against Debra Donaldson. At issue is whether Berg's counterclaim, which was filed more than three years after the incident that caused his personal injuries, was barred by the statute of limitations found in Wis. Stat. § 893.54 (2007-08).[1] We conclude that § 893.54 is the applicable statute of limitations, but that the statute of limitations was tolled pursuant to Wis. Stat. § 893.14 when Donaldson filed her personal injury action arising out of the same incident. Because of the tolling, Berg's counterclaim was timely filed. Therefore, we reverse the order dismissing Berg's counterclaim and remand for further proceedings.
• Sanctions/ Statutes
  
  Schapiro v. Pokos
  Docket: 2008AP001373 08-04-09
  

  PER CURIAM. S.A. Schapiro appeals from an order imposing a $250 monetary sanction against him for refusing to withdraw motions alleging professional misconduct against opposing counsel for which there was no evidentiary support. The issues are whether Rebecca Pokos and Progressive Classic Insurance Company (collectively referred to as "Progressive") afforded Schapiro the twenty-one-day safe harbor period required by the sanctions statute, Wis. Stat. § 802.05(3)(a)1. (2007-08), and whether Progressive's motion for sanctions was sufficiently specific to alert Schapiro to precisely the conduct allegedly warranting the sanction.[1] We conclude that Progressive provided Schapiro with the twenty-one-day safe harbor period required by § 802.05(3)(a)1. to withdraw his motion; his insistence in pursuing an albeit modified and less offending reconsideration motion did not absolve him from violating the sanctions statute. We further conclude that Progressive's allegations of how Schapiro violated the sanctions statute were sufficiently particularized to identify the offending conduct. Therefore, we affirm.