PER CURIAM. Attorney P. Nicholas Hurtgen has filed a petition for consensual license revocation pursuant to SCR 22.19. He states he cannot successfully defend against pending charges of professional misconduct relating to his conviction, entered following a guilty plea, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2 in connection with a long-running federal investigation of corruption in the administration of former Illinois Governor Rod Blagojevich.

FINE, J. The City of Milwaukee appeals the order granting summary judgment to Metropolitan Associates, a Wisconsin Limited Partnership, declaring unconstitutional Wis. Stat. § 74.37(4)(c) & (4)(d), amended and created by 2007 Wis. Act 86, §§ 8 and 9 respectively, and enjoining the City from relying on those subsections in connection with challenges to the assessment of real property brought under § 74.37.[1] We reverse.

ANDERSON, J. This is an appeal from a judgment of conviction from the Kenosha county circuit court finding Cleveland R. Tidwell guilty of attempted theft from the person of another contrary to Wis. Stat. § 939.32
(2007-08).[1] This court affirms the decision of the circuit court.

CURLEY, P.J. Joseph Bach appeals an amended judgment entered after a jury convicted him of first-degree intentional homicide while using a dangerous weapon, see Wis. Stat. §§ 940.01(1)(a) & 939.63 (2003-04), and an order denying his motion for postconviction relief.[2] Bach claims that he was denied the effective assistance of counsel due to his trial counsel's failure to investigate, consult with, and call experts during his trial to support his defense of inadvertent or accidental discharge of a firearm and to offer opinions regarding his intoxication at the time of the shooting and its impact on his ability to form the requisite intent and to safely handle a firearm. Because Bach's version of the events that transpired was at odds with the explanation offered by the independent firearms analyst he retained for purposes of the postconviction proceedings, Bach has not established that he suffered prejudice as a result of his trial counsel's decision not to consult with and call a firearms expert at trial. In addition, because Bach failed to show with specificity what a consultation with or the testimony of a psychological expert would have revealed and how the outcome of the proceeding would have been different, his claim for ineffective assistance on this basis also fails. Accordingly, we affirm.

PER CURIAM. Christopher L. Servantez appeals a judgment, entered upon a jury verdict, convicting him of one count each of possession of tetrahydrocannabinols (THC or marijuana), operating a motor vehicle while intoxicated, operating a motor vehicle with a prohibited alcohol concentration and operating after revocation. The charges arose from a traffic stop and subsequent vehicle search. According to a state crime lab report, Servantez's blood alcohol content was 0.24 and plant materials found in his car contained THC. Servantez also appeals an order denying his postconviction motion seeking a new trial on the possession charge for several reasons, among them that trial counsel was ineffective for failing to object that the crime lab report was inadmissible hearsay. We conclude that a new trial is unwarranted. We affirm.

PER CURIAM. Howard A. Perkins appeals from a judgment of conviction and from an order denying his postconviction motion for plea withdrawal. The dispositive question on appeal is whether the State presented sufficient evidence at the postconviction hearing to prove that Perkins knowingly, intelligently, and voluntarily entered his guilty plea to second-degree reckless homicide as a party to a crime. We conclude that the State met its burden of proof, and we affirm.

ANDERSON, J.[1] Michael A. Woodford appeals from an order extending his probation for one year merely to insure continued restitution payments of $200 per month. We reverse, since the record supports the conclusion that Woodford has met the rehabilitative goals established by the court as conditions of probation and extending probation serves no purpose other than "debt collection."

BRENNAN, J.[1] Donte S. Wilder appeals from a judgment entered after Wilder pled guilty to carrying a concealed weapon, contrary to Wis. Stat. § 941.23. Wilder challenges the denial of his motion to suppress the weapon, which he asserts was discovered during an illegal search. Wilder raises two issues on appeal: (1) whether, under a Fourth Amendment analysis, officers seized Wilder when they asked him to step out of his car and, if so, (2) whether the seizure was properly based upon an anonymous tip. Because I conclude that there was no seizure when the officers asked Wilder to exit his car, I affirm the trial court.

BROWN, C.J. The doctrine of respondeat superior provides that an employee's conduct is imputed to the employer when the employee is acting within the scope of his or her employment. This makes the employer vicariously liable based on the agency relationship even where there is no wrongful conduct by the employer. James Cape & Sons Company sued one of its employees, Daniel Beaudoin, and the two companies that colluded with Beaudoin in a bid-sharing scheme, Streu Construction Co. and Vinton Construction Co. Beaudoin, Streu and Vinton convinced the circuit court that the doctrine of respondeat superior applied such that the court was required to view Cape to be part of the bid-rigging scheme, even though the scheme allegedly harmed Cape and drove it out of business. As to Beaudoin, the issue was settled long ago in Zulkee v. Wing, 20 Wis. 429, [*408] (1866), in which our supreme court held that respondeat superior applies "only as between the master or principal and third persons"; the doctrine has no application in a suit between an employer and employee. Id.at 431, [*409-10]. And, as to Streu and Vinton, we conclude that persons colluding with the employee are prohibited from imputing the employee's conduct to the employer just as the employee is so precluded. We reverse and remand for further proceedings not inconsistent with this opinion.

PER CURIAM. Judith Hansen appeals an order amending a divorce judgment. The order converted Judith's family support award to maintenance, and replaced a percentage award with a fixed amount. She contends that the award is an erroneous exercise of discretion because it is inadequate under the circumstances. We affirm.

PER CURIAM. Bickford Farms, Inc., and Paul and Cyd Bickford (the Bickfords), appeal an order dismissing their complaint against Alliant Energy Corporation. The complaint presented a stray voltage claim against Alliant, and against Wisconsin Power and Light (WPL). The trial court granted summary judgment to Alliant on undisputed evidence that WPL, rather than Alliant, provided the Bickfords with the electrical service that allegedly damaged their dairy farm operations. Although WPL undisputedly provided the electrical service in question, we conclude that a factual dispute remains whether Alliant negligently participated in testing of the stray voltage problem. We therefore reverse the dismissal order.

ANDERSON, J.[1] Stanley W. F. contends that the circuit court erred in determining the evidence presented at the Watts[2] review hearing justified his continued protective placement. We disagree with the reliance on Zander v. County of Eau Claire, 87 Wis. 2d 503, 275 N.W.2d 143 (Ct. App. 1979), by Stanley, the State, and the circuit court. We hold that the diagnosis of Stanley's degenerative brain disorder was improperly overlooked by the court. We do not affirm the circuit court on the grounds it relied upon for its ruling, nonetheless, because the diagnosis of Stanley's degenerative brain disorder is still on record and presently unchallenged, we are ultimately able to affirm that Stanley is in need of continued protective placement. See Linda L. v. Collis, 2006 WI App 105, ¶63, 294 Wis. 2d 637, 718 N.W.2d 205 (court may affirm on grounds different than those relied on by the circuit court).

SNYDER, J. Zurich American Insurance Company, Valiant Insurance Company, and Northern Insurance Company of New York (together, Zurich) appeal from a declaratory judgment, which concluded that they had a duty to defend Streu Construction Company and Vinton Construction Company, with regard to allegations of negligence against them. James Cape & Sons sued Streu, Vinton and five individuals for damages arising from a criminal construction bid-fixing conspiracy. The insurers rejected the defendants' tender of the defense in this lawsuit. The circuit court held that the insurers had breached their duty to defend and entered a declaratory judgment in favor of coverage on the rationale that the Cape complaint had alleged four claims of negligence against the corporate insureds.[1]

Kessler, J. This is an interlocutory appeal of a trial court order granting a motion filed by defendants William M. Judge and U.S. Title & Closing Services, LLC (collectively, "the Defendants"),[1] to disqualify plaintiff Gustavo Montalvo's counsel, William R. Steinmetz, from this action. Montalvo argues we should reverse the order on three bases: (1) the doctrines of waiver and/or laches bar the Defendants from disqualifying plaintiff's counsel; (2) SCR 20:1.9 (effective July 1, 2007) does not bar Steinmetz from representing the plaintiff; and (3) the trial court erred in disqualifying Steinmetz without holding an evidentiary hearing on disputed facts. We reverse and remand for reinstatement of Steinmetz as Montalvo's counsel because we conclude that waiver and laches bar the Defendants' motion to disqualify Steinmetz, which was not filed for over five months after the case began. Because we decide this case based on application of the doctrines of waiver and laches, we do not consider Montalvo's other arguments. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

ANDERSON, J.[1] Geraldine Booker appeals pro se from a conviction for failing to stop at a red traffic light in violation of Wis. Stat. § 346.37(1)(c)1. She raises two issues on appeal. First, she complains that she was denied legal counsel to represent her and second, she asserts that it was improper for her to receive a traffic warning citation for violating a yellow traffic light in violation of § 346.37(1)(b) and a uniform citation for running a red traffic light for the same incident. While we agree that two citations for the same incident would constitute "piling on" and result in a fifteen-yard penalty in the National Football League, http://www.nfl.com/rulebook/penaltysummaries (last visited 8/25/2009), we are constrained to affirm.

LUNDSTEN, J.[1] Richard Castleberry appeals a circuit court judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration of 0.158, as a second offense, in violation of Wis. Stat. § 346.63(1)(b). The issue is whether the circuit court erroneously exercised its sentencing discretion.

NEUBAUER, P.J.[1] Eugene W. Kosky appeals from a judgment of conviction for operating with a prohibited alcohol concentration, fourth offense, contrary to Wis. Stat. § 346.63(1)(b). Kosky contends that the trial court erred in denying his motion to suppress evidence because the officer lacked probable cause for the stop and there was no reasonable suspicion that a traffic regulation had been violated. We conclude that at the time of the stop the officer had a reasonable suspicion that Kosky was violating a traffic regulation by operating a vehicle without functioning taillights. We therefore affirm the judgment.

NEUBAUER, J.[1] Mark P. Wiklin appeals from a judgment convicting him of both operating a motor vehicle while under the influence of an intoxicant (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC), contrary to Wis. Stat. § 346.63(1)(a) and (b). Wiklin contends that the trial court erred in denying his motion to suppress evidence because the officer did not have reasonable suspicion to conduct a valid investigatory stop, and therefore violated Wiklin's constitutional rights under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution. Because the totality of the circumstances supports a finding that the officer had the requisite reasonable suspicion to conduct an investigatory stop, we affirm. We remand for entry of judgment on either the OWI or PAC.[2]

BRIDGE, J.[1] Lawrence Gosdeck appeals from an order of the circuit court ruling that Gosdeck unlawfully refused to submit to evidentiary chemical testing, in violation of Wisconsin's implied consent law, Wis. Stat. § 343.305(9). In his main brief, Gosdeck advances a variety of policy arguments as to why his refusal to indicate to police whether he was willing or unwilling to submit to testing under the implied consent law should not be construed as a refusal. We conclude that Gosdeck's policy arguments are unpersuasive and run afoul of the requirements of § 343.305(9). We therefore affirm.

CURLEY, P.J. Phronie Toliver appeals from the judgment dismissing her complaint against Potawatomi Bingo & Casino and St. Paul Fire and Marine Insurance Company (collectively referred to as Potawatomi unless otherwise specified). Judgment was entered after Potawatomi successfully moved for a directed verdict at the close of Toliver's case. On appeal, Toliver argues that the trial court erred in three respects: (1) in granting Potawatomi's motion for a directed verdict dismissing her safe-place claim on the basis that she failed to establish evidence of notice; (2) in deciding that expert evidence was required for her to prove her safe-place claim; and (3) in dismissing her negligence claim on grounds that she failed to present evidence of Potawatomi's failure to exercise due care. Because Toliver failed to present evidence that Potawatomi had notice of an allegedly unsafe condition and failed to present evidence to support her negligence claim, we affirm.[1]

ANDERSON, P.J. This appeal involves a lien priority dispute between Lowell Management Services, Inc. and Security Bank of Kansas City. Lowell was the general contractor for a set of time-share duplexes for Geneva National PQC, LLC. The first visible commencement of the construction on the subject real estate occurred no later than April 20, 2005. Security Bank, a bank chartered in Kansas, recorded a mortgage after the start of construction on
May 9, 2005. Geneva National defaulted and Lowell started this action to foreclose on its construction lien. Security Bank filed an answer, counterclaim, cross-claim and third-party action. The trial court granted summary judgment for Security Bank, finding that its mortgage had priority over the construction lien. After review, we affirm the trial court and hold that Security Bank's recorded mortgage has priority over Lowell's construction lien.

DYKMAN, P.J. Dale and Carol Worm appeal from an order granting summary judgment to John and Laurie Ramich and Scott and Carrie Kingston (collectively, Ramiches) in the Ramiches' action for a declaratory judgment to void documents the Worms filed with the Waushara County Register of Deeds asserting ownership of a four-foot by fourteen-foot strip of land along Little Silver Lake, and an injunction to prevent the Worms from filing any further documents asserting an ownership interest in that property.[1] The Worms argue that the trial court erred in granting summary judgment to the Ramiches because the final judgment in the Ramiches' prior adverse possession action against the Worms established that the Worms own the four-foot strip. The Ramiches respond that the adverse possession judgment established that they, rather than the Worms, own the four-foot strip. We conclude that the 2004 adverse possession judgment is reasonably susceptible to both parties' interpretations, and is therefore ambiguous. We further conclude that a review of the entire record reveals that the intent of the 2004 adverse possession judgment was to include the four-foot strip in the adverse possession parcel granted to the Ramiches. Accordingly, we affirm.

CURLEY, P.J. Milwaukee Board of School Directors (MBSD) appeals the order granting summary judgment to Atlantic Mutual Insurance Company (Atlantic Mutual).[1] At issue is whether Atlantic Mutual in its capacity as surety on a performance bond is liable for its principal's, Specialty Associates, Inc., n/k/a GRS Wisconsin Inc. (SAI), warranty obligations under the construction contract. We agree with MBSD that Atlantic Mutual would be liable if SAI is found at fault. Accordingly, we reverse that portion of the trial court's ruling at summary judgment dismissing MBSD's claims against Atlantic Mutual and remand for further proceedings consistent with this decision.

BRUNNER, J. Hugh and Kathleen O'Dowd appeal a judgment granting trustee Karen Garrett and the David T. Murphy Revocable Trust dated February 19, 2004 (collectively, "Murphy"), exclusive use of an express easement along the shoreline of the O'Dowd property.[1] Because we conclude that the trial court erred when it found ambiguity in the document creating the easement, we reverse.