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CaseLaw Express
Week of September 14, 2009

 Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Rudolph
    Docket: 2009AP000917 09-15-09
    PER CURIAM. This is a reciprocal discipline matter. We review a stipulation entered by Attorney Paul B. Rudolph and the Office of Lawyer Regulation (OLR) under SCR 22.12 for the imposition of discipline reciprocal to that imposed by the Supreme Court of Arizona. After our review of the matter, we accept the stipulation and impose the same 30-day suspension imposed by the Supreme Court of Arizona. We also require that Attorney Rudolph comply with the terms and conditions established by the Supreme Court of Arizona. Finally, we do not assess the costs of this disciplinary proceeding against Attorney Rudolph.
 Court of Appeals Cases
  • Attorney Fees/ Judicial Authority-Discretion/ Frivolous/ Sanctions/ Statutes

    Nursing Centers, Inc. v. Cherubini
    Docket: 2008AP002641 09-15-09
    FINE, J. Robin Cherubini appeals that part of a judgment and order that did not award her attorney fees under Wis. Stat. Rules 802.05 and 804.12(3). This case arises out of consolidated actions brought against her by her former employer, Nursing Centers, Inc., alleging that she breached her employment contract by violating her non-compete and confidentiality agreements, and seeking, among other things, a temporary injunction in connection with Cherubini's alleged violations. The only issues on appeal are whether the circuit court appropriately exercised its discretion in denying Cherubini's request for actual costs under the frivolous-action rule, Wis. Stat. Rule 802.05, and whether it properly denied costs under the discovery-sanction rule, Wis. Stat. Rule 804.12(3). We affirm.
  • Criminal Law/ Evidence/ Spoilage Of Evidence/ Constitutional Law-Due Process/ Jury Instructions/ Defense/ Sentencing

    State v. McCarthy
    Docket: 2008AP000398 09-17-09
    PER CURIAM. Shane McCarthy appeals a judgment of conviction and order denying his postconviction motion. We affirm.
  • Criminal Law/ Sentencing/ Harmless Error

    State v. Mayek
    Docket: 2008AP002905 09-16-09
    PER CURIAM. Gerald S. Mayek appeals from a judgment convicting him of two counts of robbery with threat of force and from the order denying his motion for postconviction relief. He contends he is entitled to a new sentencing hearing because the circuit court failed to consider the sentencing guidelines for robbery. We agree with the circuit court that in this case the failure to do so was harmless error. We affirm.
  • Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Child Support/ Jury Instructions/ New Trial

    State v. Brayshaw
    Docket: 2008AP001171 09-16-09
    PER CURIAM. John L. Brayshaw has appealed from a judgment convicting him of eighteen counts of failure to pay child support in violation of WIS. STAT. § 948.22(2) (1999-2000). He also appeals from an order denying his motion for postconviction relief. We affirm the judgment and the order.
  • Criminal Law/ Warrants/ Statutes/ Searches

    State v. Osborne
    Docket: 2008AP001519 09-15-09
    HOOVER, P.J. Joshua Osborne appeals a nonfinal order denying his motion to suppress evidence obtained during the execution of an allegedly defective search warrant.[1] Osborne argues the warrant does not satisfy the definition of a search warrant set forth in Wis. Stat. § 968.12(1).[2] Specifically, he contends the issuing judge's failure to include language directing the officer to conduct the search violates the statute. We conclude this omission is merely a technical irregularity under Wis. Stat. § 968.22 that does not affect Osborne's substantial rights. We therefore affirm the order denying Osborne's suppression motion.
  • Family Law/ Divorce/ Child Support/ Contempt/ Court’s Competency/ Constitutional Law-Due Process/ Judicial Authority-Discretion/ Statutes/ Procedure

    Teasdale v. Marinette County
    Docket: 2008AP002827 09-15-09
    Recommended for Publication
    HOOVER, P.J. Clay Teasdale appeals a warrant and commitment order and an order denying his motion for postdisposition relief. The warrant and commitment order (commitment order) was entered after Teasdale failed to comply with the purge conditions of a remedial contempt order based on his failure to pay child support. Teasdale argues the circuit court lacked competency to proceed because the request for the commitment order was signed and filed by a nonattorney. Teasdale further argues the commitment order is invalid because he was deprived of due process when he was not notified of the request for the order and not provided a hearing to demonstrate he was unable to comply with the purge conditions. Finally, Teasdale contends the circuit court erroneously exercised its discretion at the postdisposition motion hearing because it applied an improper legal standard. We conclude the child support agency's request for a commitment order should have been stricken from the record. We therefore reverse and direct the circuit court to vacate the commitment order.
  • Guardianship/ Protective Placement/ Jury Trial/ Evidence/ Torts Claim

    Margaret B. v. Milwaukee County
    Docket: 2008AP002653 09-15-09
    KESSLER, J.[1] Margaret B., the mother and guardian of Aaron B., appeals, pro se, from numerous trial court orders[2] concerning the protective placement of Aaron. She seeks reversal of numerous aspects of these orders, identifying thirteen issues for our consideration.[3] We reject her arguments and affirm the orders.[4]
  • Inmates/ Civil Rights/ Constitutional Law-Due Process

    Collins v. Heise
    Docket: 2008AP003035 09-17-09
    PER CURIAM. Leonard Collins appeals an order dismissing his 42 U.S.C. § 1983 complaint against three employees of the Wisconsin Department of Corrections, Mark Heise, Renee Chyba, and Rosie Eickhoff. The court dismissed the action on the defendants' motion to dismiss the complaint. Collins contends that the complaint presented legally valid causes of action and that it was error to dismiss it. We disagree, and affirm.
  • Liens/ Offsets/ Personal Injury/ Statutes/ Fraud/ Attorney Fees

    Law Offices of Charles B. Harris v. Stone
    Docket: 2008AP000600 09-15-09
    PER CURIAM. Law Offices of Charles B. Harris, S.C. (Harris) appeals orders granting Roxann Stone a setoff against a judgment lien her ex-husband, Francis Stone, assigned to Harris. The orders permitted Ms. Stone to set off a personal injury award Mr. Stone owed her against the lien. Harris argues Ms. Stone was not entitled to the setoff because Mr. Stone transferred the lien to him to pay for legal services. We affirm.
  • LIRC/ Worker's Compensation/ Employment Law/ Evidence

    Aurora Health Care v. L.I.R.C.
    Docket: 2009AP000103 09-15-09
    Kessler, J. Aurora Health Care Metro, Inc., and Sentry Insurance A Mutual Co. (collectively, "Aurora") appeal from a circuit court order affirming a decision of the Labor and Industry Review Commission ("LIRC") that awarded worker's compensation benefits to Bernadette Morgan. Aurora argues: (1) LIRC's findings should be reversed because they are not supported by credible and substantial evidence; and (2) LIRC's award of temporary total disability was excessive. We reject Aurora's arguments and affirm.
  • OWI/ Sentencing/ Plea Agreement Breach

    State v. Huck
    Docket: 2008AP003043 09-15-09
    PETERSON, J. David Huck appeals a judgment of conviction for operating while intoxicated, fifth offense, and an order denying his postconviction motion. Huck argues he is entitled to be resentenced because the State breached his plea agreement. We affirm.
  • Property/ Annexation/ Damages/ Statute Authority/ Contracts

    Town of Waukesha v. Waukesha Limited Partnership
    Docket: 2008AP001795 09-16-09
    Recommended for Publication
    SNYDER, J. The 164 of Waukesha Limited Partnership (the Developer) appeals from a judgment in favor of the Town of Waukesha following cross-motions for summary judgment. The Developer contends that the circuit court erred when it held that an annexation waiver signed by the Developer was enforceable as a matter of law and that the Developer was liable for liquidated damages of $250,000 plus costs and attorney fees under the agreement. The Developer asserts that the Town did not have the statutory authority to request the annexation waiver and that the Town's action was coercive. It alternatively argues that the contract is unenforceable because it was not approved by the town board and, further, that it was not supported by consideration. We disagree and affirm.
  • Property/ Condemnation/ Procedure/ Jurisdiction/ Statutes/ Appraisal

    Threlfall v. Town of Muscoda
    Docket: 2008AP003103 09-17-09
    DYKMAN, P.J. Anna Threlfall and Richard Baum appeal from an order granting summary judgment to the Town of Muscoda and dismissing their action to void Muscoda's condemnation proceedings. Threlfall and Baum argue that (1) Muscoda acted beyond its authority when it condemned a fee interest in their land; (2) Muscoda failed to comply with several statutory procedural requirements prior to issuing its jurisdictional offer, thus voiding the offer; and (3) Muscoda's jurisdictional offer itself was defective, and thus void. We reject each of these contentions. Accordingly, we affirm.
Links
Also of Interest
Abrahamson argues merits of judicial elections outweigh those of appointment system
Wisconsin Supreme Court Chief Justice Shirley Abrahamson addressed a conference held to consider the future of judicial campaigns, reaffirming her belief that electing judges is better than gubernatorial appointments. More

Child support case workers improperly seeking court orders
Child support case workers in Marinette County and Door County have engaged in the unauthorized practice of law by filing their own affidavits in support of motions they draft for commitment orders, the Wisconsin Court of Appeals found. More

Plaintiffs' brief filed in challenge to Wisconsin’s 'diploma privilege'
Following the Seventh Circuit Court of Appeals decision to remand a challenge to the diploma privilege, graduates from out-of-state law schools have renewed their Commerce Clause argument. More

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