CaseLaw Express 08/24/2009 - State Bar of Wisconsin

Court of Appeals Cases

Chapter 980 Commitments/ Evidence/ Statutes

State v. Harrell
Docket: 2008AP001269 08-18-09
PER CURIAM. Alfred Harrell appeals from a commitment order. The issue is whether there was sufficient evidence to support the trial court's general determination that Harrell was a sexually violent person, and specifically whether there was sufficient evidence of Harrell's dangerousness, namely that he has a mental disorder making it more likely than not that he will engage in a future act of sexual violence. We conclude that there is sufficient credible evidence to support the trial court's determination; a conflict in the evidence of dangerousness does not negate the existence of that evidence. Therefore, we affirm.
Criminal Law/ Appeal Barred/ Defendant's Competency

State v. Davis
Docket: 2008AP000088 08-18-09
PER CURIAM. Willie S. Davis, pro se, appeals from an order denying his postconviction motion. The trial court denied Davis's motion as procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm.
Criminal Law/ Appeal Barred/ Ineffective Assistance Of Counsel

State v. Addison
Docket: 2008AP002654 08-18-09
PER CURIAM. James A. Addison appeals from an order denying his Wis. Stat. з 974.06 (2007-08)[1] postconviction motion. The trial court denied Addison's motion as procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm.
Criminal Law/ Arrest/ Evidence/ Ineffective Assistance of Counsel/ Right To Counsel

State v. Adams
Docket: 2008AP000992 08-20-09
PER CURIAM. Bernard Adams appeals a judgment convicting him of four felonies, including attempted first-degree intentional homicide, and first-degree sexual assault. He contends that the State introduced inadmissible evidence at his trial, and that trial counsel was ineffective in his pretrial efforts to suppress that evidence. He also contends that the trial court erred by denying his motion for appointment of postconviction counsel. We affirm.
Criminal Law/ Judicial Authority-Discretion/ New Trial/ Attorney/Client Relationship/ Attorneys

State v. Kurtz
Docket: 2008AP002954 08-18-09
KESSLER, J. Jason E. Kurtz appeals from an order denying his motion for postconviction relief. Kurtz argues that he is entitled to a new trial because the trial court erroneously exercised its discretion when it denied Kurtz's pretrial motion to change counsel and when it affirmed that decision after conducting a retrospective evidentiary hearing that we ordered as a result of Kurtz's first appeal. See State v. Kurtz, No. 2007AP339-CR, unpublished slip op. ¶¶5-7 (WI App June 24, 2008) ("Kurtz I"). Because the trial court concluded that evidence at the retrospective hearing did not establish a substantial breakdown in communication at the time Kurtz requested new counsel, and because there are facts in the record supporting that conclusion, we affirm the trial court's exercise of discretion.
Criminal Law/ Pleas/ Knowingly, Voluntarily & Intelligently Plea/ Ineffective Assistance Of Counsel/ Evidence/ Miranda/ Sentencing/ Judicial Authority-Discretion

State v. Robinson
Docket: 2008AP002107 08-18-09
CURLEY, P.J. Bobby Robinson appeals the judgment, entered following his no-contest plea, convicting him of first-degree reckless homicide, as a party to the crime, contrary to Wis. Stat. зз 940.02(1) and 939.05 (1995‑ 96).[2] Robinson also appeals the order denying his postconviction motion.[3] On appeal, Robinson contends that: (1) the trial court erred in not suppressing his statements given to police; (2) his attorney was ineffective for failing to "fully litigate the voluntariness" of his confession; (3) his plea was not knowing and voluntary because he was misinformed by the trial court concerning what constituted first‑ degree reckless homicide; and (4) the trial court erroneously exercised its discretion in sentencing him to the maximum sentence of forty years. Because the trial courts' rulings in the two Miranda-Goodchild[4] hearings were not clearly erroneous, finding that Robinson was advised of his Miranda rights, understood them and voluntarily gave statements to the police; Robinson's trial attorney properly litigated the Miranda-Goodchild hearing; the trial court did not misinform Robinson about what constituted first-degree reckless homicide; and the trial court properly exercised its discretion in sentencing Robinson, we affirm.
Criminal Law/ Pleas/ Plea Withdrawal/ New Evidence/ Appeal Barred

State v. Stewart
Docket: 2008AP000394 08-19-09
State v. Stewart
Docket: 2008AP001874 08-19-09
PER CURIAM. Christopher Stewart appeals from the orders of the circuit court that denied his motions for postconviction relief under Wis. Stat. з 974.06 (2007-08).[1] Stewart argues that he is entitled to withdraw his plea on the basis of newly discovered evidence and on the basis that there was no factual basis to support the charge against him. Because we conclude that Stewart has not established that he has newly discovered evidence and because the claim that there was no factual basis for the plea is barred by Escalona,[2] we affirm the orders of the circuit court.
Criminal Law/ Prosecutorial Misconduct/ Closing/ Plain Error/ Constitutional Law

State v. Lammers
Docket: 2008AP002574 08-19-09
Recommended for Publication
SNYDER, J. James D. Lammers appeals from a judgment of conviction for theft, party to a crime, and from an order denying his postconviction motion for relief from that judgment. Lammers contends that prosecutorial misconduct at trial constituted plain error and violated his right to a fair trial. In particular, he asserts that the State's closing argument was fraught with impermissible commentary on the veracity of the trial witnesses and thus usurped the role of the jury as the arbiter of credibility. We disagree and affirm the judgment and order.
Criminal Law/ Sentencing/ Repeat Offender/ Statute/ Statutory Construction-Interpretation

State v. Justiniano
Docket: 2008AP002783 08-20-09
State v. Justiniano
Docket: 2008AP002784 08-20-09
BRIDGE, J.[1] Andres Justiniano appeals from judgments of conviction for three counts of disorderly conduct, in violation of Wis. Stat. з 947.01. A repeater enhancement was added to each count pursuant to Wis. Stat. з 939.62(1)(a). Justiniano contends that he was improperly sentenced as a repeat offender because the prior conviction upon which the repeater enhancement was based was no longer "of record" at the time of sentencing because it was amended from a felony conviction to a misdemeanor conviction after the criminal complaint was filed but before he was sentenced. We affirm.
Estates/ Wills/ Dead Bodies/ Disinterment/ Statutes/ Statutory Construction-Interpretation/ Laches/ Standing

Greenblatt v. Gurda
Docket: 2008AP001998 08-19-09
ANDERSON, J. This is an appeal from an order of the circuit court denying Florence Greenblatt's and Erwin Greenblatt's petition for a court order authorizing the disinterment and relocation of the remains of Tom Greenblatt (a/k/a Tom Green). This court affirms the decision of the circuit court.[1]
Family Law/ TPR/ Evidence/ Ineffective Assistance Of Counsel/ Statutes/ Constitutional Law-Due Process

Brown County DHS v. Teresa A.T.
Docket: 2009AP000176 08-18-09
HOOVER, P.J.[1] Teresa A.T. appeals orders terminating her parental rights to her daughter, Emilie R.B., and denying her postdisposition motion. Teresa argues: the court erred by interviewing Emilie off the record, and with only the guardian ad litem present; her attorney provided ineffective assistance by failing to present certain evidence concerning abandonment and failing to argue equitable estoppel; the evidence of abandonment was insufficient; and the court erroneously excluded relevant evidence at the disposition hearing. We reject Teresa's arguments and affirm the orders.
Frivolous/ Attorneys Fees/ Cost/ Sanctions/ Jurisdiction/ Statutes

Slocum v. Rivard
Docket: 2008AP002256 08-18-09
PER CURIAM. Warren Slocum, pro se, appeals from an order dismissing his lawsuit, finding it frivolous and awarding attorney fees and costs. Slocum argues his case was prematurely dismissed and that the court improperly imposed sanctions against him. We reject Slocum's arguments, affirm the order and remand the cause to include the reasonable attorney fees and costs incurred in this appeal.
Insurance/ Summary Judgment/ Contracts/ Duty To Defend/ Indemnify/ Property

Toonen v. West Bend Mutual
Docket: 2008AP002103 08-18-09
PER CURIAM. Robert Toonen and SSAPTS, LLC (collectively Toonen) appeal a summary judgment dismissing West Bend Mutual Insurance Company from an action brought against Toonen by his neighbor, Russell Obermeier. Toonen contends the circuit court misinterpreted his insurance contract with West Bend and that there were genuine issues of material fact precluding summary judgment. We reject Toonen's arguments and affirm.
Landlord-Tenant/ Small Claims/ Contracts/ Damages/ Mitigation Of Damages

Jensen v. Zemanovic
Docket: 2009AP000423 08-18-09
HOOVER, P.J.[1] Karl Jensen appeals a small claims judgment awarding him damages for breach of a residential lease. Jensen asserts he was entitled to the full four months' rent claimed, while the court only awarded one month of rent. He argues the circuit court erred by considering parol evidence to determine terms of the lease. Jensen further argues the court made an erroneous factual finding that he did not sufficiently mitigate his damages. We reject Jensen's arguments and affirm.
OWI/ Traffic Stops/ Reasonable Suspicion

State v. Lux
Docket: 2008AP003136 08-19-09
BROWN, C.J.[1] Andrew S. Lux stands convicted of operating a vehicle while intoxicated, fourth offense. He contends that the reason for the stop, the officer's conclusion that he was driving at an unreasonable and imprudent speed, was unjustified since there was no objective evidence as to his speed, and the officer simply reacted based on what he considered to be excessive engine noise when accelerating from a stop. But evidence of speed is not the sine qua non of a violation. Rather, the question is whether the conduct observed and relied upon by the officer permitted him to reasonably suspect that Lux was driving in a reckless manner such that his speed was imprudent under the circumstances. The totality of the evidence shows that the officer had just this reasonable suspicion and the stop was proper. This court affirms.
Property/ Foreclosure/ Judgments/ Valuation/ Fair Market Value

Park Bank v. Zaddo Holdings, LLC
Docket: 2008AP001367 08-19-09
PER CURIAM. Zaddo Holdings, LLC appeals from an order confirming a sheriff's sale of foreclosed commercial property to Park Bank for $800,000 and adding $259,509.10 to the total amount of the judgment. It argues that the sale price was not fair value for the property and that the circuit court did not consider its objection to the addition to the judgment. We conclude that the evidence supports the order and affirm it.
Summary Judgment/ Evidence/ Malpractice/ Evidence Spoliation/ Doctrine Of In Pari Delicto/ Public Policy

Harborview Office v. Nash
Docket: 2008AP001988 08-18-09
Harborview Office v. Nash
Docket: 2008AP001964 08-18-09
PER CURIAM. Harborview Office Center, L.L.C., appeals[1] a summary judgment dismissing its professional malpractice claims against its former attorney, Randall Nash, and former engineer, Brian Fischer. Harborview argues the circuit court erroneously applied the doctrine of in pari delicto to dismiss the case. We disagree and affirm the judgment.


Week of August 17, 2009 Supreme Court Cases No decisions were released. Court of Appeals Cases Chapter 980 Commitments/ Evidence/ Statutes State v. Harrell Docket: 2008AP001269 08-18-09 PER CURIAM. Alfred Harrell appeals from a commitment order. The issue is whether there was sufficient evidence to support the trial court's general determination that Harrell was a sexually violent person, and specifically whether there was sufficient evidence of Harrell's dangerousness, namely that he has a mental disorder making it more likely than not that he will engage in a future act of sexual violence. We conclude that there is sufficient credible evidence to support the trial court's determination; a conflict in the evidence of dangerousness does not negate the existence of that evidence. Therefore, we affirm. Criminal Law/ Appeal Barred/ Defendant's Competency State v. Davis Docket: 2008AP000088 08-18-09 PER CURIAM. Willie S. Davis, pro se, appeals from an order denying his postconviction motion. The trial court denied Davis's motion as procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm. Criminal Law/ Appeal Barred/ Ineffective Assistance Of Counsel State v. Addison Docket: 2008AP002654 08-18-09 PER CURIAM. James A. Addison appeals from an order denying his Wis. Stat. з 974.06 (2007-08)[1] postconviction motion. The trial court denied Addison's motion as procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm. Criminal Law/ Arrest/ Evidence/ Ineffective Assistance of Counsel/ Right To Counsel State v. Adams Docket: 2008AP000992 08-20-09 PER CURIAM. Bernard Adams appeals a judgment convicting him of four felonies, including attempted first-degree intentional homicide, and first-degree sexual assault. He contends that the State introduced inadmissible evidence at his trial, and that trial counsel was ineffective in his pretrial efforts to suppress that evidence. He also contends that the trial court erred by denying his motion for appointment of postconviction counsel. We affirm. Criminal Law/ Judicial Authority-Discretion/ New Trial/ Attorney/Client Relationship/ Attorneys State v. Kurtz Docket: 2008AP002954 08-18-09 KESSLER, J. Jason E. Kurtz appeals from an order denying his motion for postconviction relief. Kurtz argues that he is entitled to a new trial because the trial court erroneously exercised its discretion when it denied Kurtz's pretrial motion to change counsel and when it affirmed that decision after conducting a retrospective evidentiary hearing that we ordered as a result of Kurtz's first appeal. See State v. Kurtz, No. 2007AP339-CR, unpublished slip op. ¶¶5-7 (WI App June 24, 2008) ("Kurtz I"). Because the trial court concluded that evidence at the retrospective hearing did not establish a substantial breakdown in communication at the time Kurtz requested new counsel, and because there are facts in the record supporting that conclusion, we affirm the trial court's exercise of discretion. Criminal Law/ Pleas/ Knowingly, Voluntarily & Intelligently Plea/ Ineffective Assistance Of Counsel/ Evidence/ Miranda/ Sentencing/ Judicial Authority-Discretion State v. Robinson Docket: 2008AP002107 08-18-09 CURLEY, P.J. Bobby Robinson appeals the judgment, entered following his no-contest plea, convicting him of first-degree reckless homicide, as a party to the crime, contrary to Wis. Stat. зз 940.02(1) and 939.05 (1995‑ 96).[2] Robinson also appeals the order denying his postconviction motion.[3] On appeal, Robinson contends that: (1) the trial court erred in not suppressing his statements given to police; (2) his attorney was ineffective for failing to "fully litigate the voluntariness" of his confession; (3) his plea was not knowing and voluntary because he was misinformed by the trial court concerning what constituted first‑ degree reckless homicide; and (4) the trial court erroneously exercised its discretion in sentencing him to the maximum sentence of forty years. Because the trial courts' rulings in the two Miranda-Goodchild[4] hearings were not clearly erroneous, finding that Robinson was advised of his Miranda rights, understood them and voluntarily gave statements to the police; Robinson's trial attorney properly litigated the Miranda-Goodchild hearing; the trial court did not misinform Robinson about what constituted first-degree reckless homicide; and the trial court properly exercised its discretion in sentencing Robinson, we affirm. Criminal Law/ Pleas/ Plea Withdrawal/ New Evidence/ Appeal Barred State v. Stewart Docket: 2008AP000394 08-19-09 State v. Stewart Docket: 2008AP001874 08-19-09 PER CURIAM. Christopher Stewart appeals from the orders of the circuit court that denied his motions for postconviction relief under Wis. Stat. з 974.06 (2007-08).[1] Stewart argues that he is entitled to withdraw his plea on the basis of newly discovered evidence and on the basis that there was no factual basis to support the charge against him. Because we conclude that Stewart has not established that he has newly discovered evidence and because the claim that there was no factual basis for the plea is barred by Escalona,[2] we affirm the orders of the circuit court. Criminal Law/ Prosecutorial Misconduct/ Closing/ Plain Error/ Constitutional Law State v. Lammers Docket: 2008AP002574 08-19-09 Recommended for Publication SNYDER, J. James D. Lammers appeals from a judgment of conviction for theft, party to a crime, and from an order denying his postconviction motion for relief from that judgment. Lammers contends that prosecutorial misconduct at trial constituted plain error and violated his right to a fair trial. In particular, he asserts that the State's closing argument was fraught with impermissible commentary on the veracity of the trial witnesses and thus usurped the role of the jury as the arbiter of credibility. We disagree and affirm the judgment and order. Criminal Law/ Sentencing/ Repeat Offender/ Statute/ Statutory Construction-Interpretation State v. Justiniano Docket: 2008AP002783 08-20-09 State v. Justiniano Docket: 2008AP002784 08-20-09 BRIDGE, J.[1] Andres Justiniano appeals from judgments of conviction for three counts of disorderly conduct, in violation of Wis. Stat. з 947.01. A repeater enhancement was added to each count pursuant to Wis. Stat. з 939.62(1)(a). Justiniano contends that he was improperly sentenced as a repeat offender because the prior conviction upon which the repeater enhancement was based was no longer "of record" at the time of sentencing because it was amended from a felony conviction to a misdemeanor conviction after the criminal complaint was filed but before he was sentenced. We affirm. Estates/ Wills/ Dead Bodies/ Disinterment/ Statutes/ Statutory Construction-Interpretation/ Laches/ Standing Greenblatt v. Gurda Docket: 2008AP001998 08-19-09 ANDERSON, J. This is an appeal from an order of the circuit court denying Florence Greenblatt's and Erwin Greenblatt's petition for a court order authorizing the disinterment and relocation of the remains of Tom Greenblatt (a/k/a Tom Green). This court affirms the decision of the circuit court.[1] Family Law/ TPR/ Evidence/ Ineffective Assistance Of Counsel/ Statutes/ Constitutional Law-Due Process Brown County DHS v. Teresa A.T. Docket: 2009AP000176 08-18-09 HOOVER, P.J.[1] Teresa A.T. appeals orders terminating her parental rights to her daughter, Emilie R.B., and denying her postdisposition motion. Teresa argues: the court erred by interviewing Emilie off the record, and with only the guardian ad litem present; her attorney provided ineffective assistance by failing to present certain evidence concerning abandonment and failing to argue equitable estoppel; the evidence of abandonment was insufficient; and the court erroneously excluded relevant evidence at the disposition hearing. We reject Teresa's arguments and affirm the orders. Frivolous/ Attorneys Fees/ Cost/ Sanctions/ Jurisdiction/ Statutes Slocum v. Rivard Docket: 2008AP002256 08-18-09 PER CURIAM. Warren Slocum, pro se, appeals from an order dismissing his lawsuit, finding it frivolous and awarding attorney fees and costs. Slocum argues his case was prematurely dismissed and that the court improperly imposed sanctions against him. We reject Slocum's arguments, affirm the order and remand the cause to include the reasonable attorney fees and costs incurred in this appeal. Insurance/ Summary Judgment/ Contracts/ Duty To Defend/ Indemnify/ Property Toonen v. West Bend Mutual Docket: 2008AP002103 08-18-09 PER CURIAM. Robert Toonen and SSAPTS, LLC (collectively Toonen) appeal a summary judgment dismissing West Bend Mutual Insurance Company from an action brought against Toonen by his neighbor, Russell Obermeier. Toonen contends the circuit court misinterpreted his insurance contract with West Bend and that there were genuine issues of material fact precluding summary judgment. We reject Toonen's arguments and affirm. Landlord-Tenant/ Small Claims/ Contracts/ Damages/ Mitigation Of Damages Jensen v. Zemanovic Docket: 2009AP000423 08-18-09 HOOVER, P.J.[1] Karl Jensen appeals a small claims judgment awarding him damages for breach of a residential lease. Jensen asserts he was entitled to the full four months' rent claimed, while the court only awarded one month of rent. He argues the circuit court erred by considering parol evidence to determine terms of the lease. Jensen further argues the court made an erroneous factual finding that he did not sufficiently mitigate his damages. We reject Jensen's arguments and affirm. OWI/ Traffic Stops/ Reasonable Suspicion State v. Lux Docket: 2008AP003136 08-19-09 BROWN, C.J.[1] Andrew S. Lux stands convicted of operating a vehicle while intoxicated, fourth offense. He contends that the reason for the stop, the officer's conclusion that he was driving at an unreasonable and imprudent speed, was unjustified since there was no objective evidence as to his speed, and the officer simply reacted based on what he considered to be excessive engine noise when accelerating from a stop. But evidence of speed is not the sine qua non of a violation. Rather, the question is whether the conduct observed and relied upon by the officer permitted him to reasonably suspect that Lux was driving in a reckless manner such that his speed was imprudent under the circumstances. The totality of the evidence shows that the officer had just this reasonable suspicion and the stop was proper. This court affirms. Property/ Foreclosure/ Judgments/ Valuation/ Fair Market Value Park Bank v. Zaddo Holdings, LLC Docket: 2008AP001367 08-19-09 PER CURIAM. Zaddo Holdings, LLC appeals from an order confirming a sheriff's sale of foreclosed commercial property to Park Bank for $800,000 and adding $259,509.10 to the total amount of the judgment. It argues that the sale price was not fair value for the property and that the circuit court did not consider its objection to the addition to the judgment. We conclude that the evidence supports the order and affirm it. Summary Judgment/ Evidence/ Malpractice/ Evidence Spoliation/ Doctrine Of In Pari Delicto/ Public Policy Harborview Office v. Nash Docket: 2008AP001988 08-18-09 Harborview Office v. Nash Docket: 2008AP001964 08-18-09 PER CURIAM. Harborview Office Center, L.L.C., appeals[1] a summary judgment dismissing its professional malpractice claims against its former attorney, Randall Nash, and former engineer, Brian Fischer. Harborview argues the circuit court erroneously applied the doctrine of in pari delicto to dismiss the case. We disagree and affirm the judgment.		Links WisBar.org WisBar Legal Research/Fastcase CaseLaw Express Archives Also of Interest Debate over judge's 'baby mama' remarks headed to Wisconsin Supreme Court Briefs outline the debate over whether a sentencing judge's racially suggestive comments should be a basis for vacating a sentence. More Wisconsin Supreme Court to consider construction of 'marriage amendment' A challenger to the constitutional amendment prohibiting same-sex marriage in Wisconsin charges that voters were asked to consider two unrelated questions in violation of the constitution's "separate amendment" rule. More Suspect's 'persistence' in furtive-type movements can be part of basis for search Court of Appeals said a police officer's reasonable suspicion justifying a protective search may also arise from the officer's safety concerns during a traffic stop in a high crime area and a suspect's unconvincing answer to a question about the vehicle's contents. More Parties cannot contract away all debtor rights in security agreement, court of appeals says Debtors and secured creditors may opt out of many Ц but not all Ц of the Uniform Commercial Code provisions when drafting a security agreement. More Agency's expertise in applying statute, not subject matter governed, is basis to defer to its interpretation Court of Appeals rejected as "unreasonable," the expectation that an agency have particular expertise in the subject matter of a statute before a reviewing court gives deference to the agency's statutory interpretation. More Lemon Law damages exclude purchase price of leased vehicle, Wisconsin Supreme Court says Justices analyzed the damages awarded under Wisconsin's consumer protection law to find what relief is available to a consumer who sues over a defective leased vehicle, but then decides to buy it while the lawsuit is pending. More

UPDATE, UNSUBSCRIBE, WHITELIST 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. Whitelist instructions. 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.

© 2009, State Bar of Wisconsin