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• Arbitration/ Statutes/ Contracts/ Statutory Construction-Interpretation/ Venue
  
  Moe v. Blackhawk Excavating
  Docket: 2008AP002629 10-29-09
  

  VERGERONT, J. This interlocutory appeal concerns the proper venue for an application to confirm an arbitration award. The issue is whether Wis. Stat. § 788.09 (2007-08),[1] which provides that proceedings to confirm an arbitration award take place in "the county within which such award was made," is controlling over a conflicting contract clause. Specifically, the contract between the parties provides that venue over disputes shall be in Lafayette County, but the application to confirm was filed in the circuit court of Green County, where the award was made. The circuit court concluded the arbitration statute was controlling and that the application was properly filed in Green County. For the reasons stated below, we affirm. We decline to address the argument that a portion of the award—that made pursuant to the employment agreements—is not subject to ch. 788.
• Contracts/ Attorney Fees/ Judicial Authority-Discretion/ Damages/ Waiver Of Issue/ Settlement Offer
  
  Shadley v. Stys
  Docket: 2008AP002861 10-27-09
  Recommended for Publication
  

  BRENNAN, J. Tim Stys, Pamela Stys, and Monticello Insurance Company (collectively referred to herein as "the Stys") appeal the judgment granting attorney fees to Gwen Shadley as the "successful party" under the language of the parties' house-moving contract. Shadley cross-appeals from the same judgment arguing that the trial court erred in: (1) construing two contract terms, "expected and ordinary stresses" and "risks of moving"; and (2) erroneously exercising its discretion in denying damages based on the same. We reverse the trial court's decision on attorney fees and remand the issue consistent with this opinion. With respect to the trial court's holding on damages, we find that Shadley waived that issue by failing to raise it before the trial court, and we affirm the trial court on those grounds.
• Contracts/ Declaratory Judgment/ Evidence
  
  Town Bank v. City Real Estate
  Docket: 2008AP001845 10-28-09
  Recommended for Publication
  

  ANDERSON, J. Town Bank, A Wisconsin Banking Corporation, filed a complaint for declaratory relief against City Real Estate Development, LLC (CRED) asking the trial court to grant declaratory relief and find that the parties entered into a stand-alone $2.5 million loan and that Town Bank fully performed its obligations under that loan. Town Bank moved the trial court to grant summary judgment on its complaint and for dismissal of CRED's counterclaims on the grounds that the only loan obligations Town Bank had were under a Term Credit Agreement (TCA) and an incorporated $2.5 million note and that Town Bank fully performed those obligations. CRED contended that Town Bank was also obligated to provide an additional $6.5 million loan under a prior loan commitment and the TCA. Town Bank responded that the TCA's integration clause and the parole evidence rule precluded consideration of any prior agreement in construing the TCA. The trial court denied Town Bank's motion finding that the TCA was ambiguous as to whether it was a stand-alone transaction. The case was tried to the jury, and the judgment was entered, ordering that CRED recover from Town Bank the sum of $600,000, as claimed delay damages arising from Town Bank's failure to provide the additional loan amount of $6.5 million, plus statutory fees and costs in the amount of $20,359.48.
• Contracts/ Employment Law/ Arbitration/ Release/ Statutes
  
  Cirilli v. Country Insurance
  Docket: 2008AP003071 10-28-09
  Recommended for Publication
  

  NEUBAUER, P.J. Country Insurance & Financial Services appeals from a circuit court order denying its motion to compel arbitration of a complaint brought by its former agents. The former agents allege that Country breached their Agent's Agreement by refusing to pay them termination commissions. The Agent's Agreement contains a mandatory arbitration provision applicable to any claim or controversy relating to or arising out of the agency relationship with Country, the Agent's Agreement or termination of the Agent's Agreement. The agents contend that the arbitration provision is inapplicable because, in a separate settlement agreement and release, Country released any claims or defenses it could assert as justification for refusing to pay the termination commissions due to them under their Agent's Agreements. The trial court agreed and found that the release, which does not contain an arbitration clause, governs this dispute and effectively supersedes the Agent's Agreement's mandatory arbitration clause. We disagree. Because the former agents' complaint seeks payment of commissions under the Agent's Agreement, this dispute falls squarely within that agreement's mandatory arbitration clause. Whether Country released any claim or defense to the agents' claims for commissions requires an analysis of the merits of the dispute, resolution of which is to be considered exclusively in arbitration. We reverse and remand with an order to compel arbitration.
• Criminal Law/ Evidence/ Sanctions/ Evidence Preservation/ Constitutional Law-Due Process
  
  State v. Gordon
  Docket: 2008AP001969 10-27-09
  

  PER CURIAM. The State appeals an order excluding testimony as a sanction for failing to preserve surveillance video at the Bayfield County Jail. The State argues that the circuit court erroneously exercised its discretion by failing to apply the proper legal standard, and by reaching a conclusion not supported by facts in the record. We agree and therefore reverse the order.
• Criminal Law/ Motor Vehicle Law/ Evidence/ Evidence Ruling/ Ineffective Assistance Of Counsel/ Reasonable Suspicion/ Waiver Of Issue
  
  State v. Ringle
  Docket: 2008AP001721 10-29-09
  

  PER CURIAM. Frank Ringle appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm.
• Criminal Law/ Pleas/ Knowingly, Voluntarily & Intelligently/ Charges/ Plea Withdrawal/ Ineffective Assistance Of Counsel
  
  State v. Starlin
  Docket: 2008AP002380 10-29-09
  

  PER CURIAM. Tyree Starlin appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm.
• Criminal Law/ Sentencing/ DNA Surcharge/ Motions/ Procedure
  
  State v. Wynn
  Docket: 2008AP002309 10-27-09
  

  PER CURIAM. Darril A. Wynn appeals pro se from a postconviction order denying his motion to quash the DNA surcharge imposed as a condition of his sentence. The issues are whether the trial court failed to follow alleged precedent and to liberally construe Wynn's pro se motion to allow his untimely challenge. We conclude that the trial court was not obliged to re-open a final judgment entered in 2002 to retroactively apply a Wisconsin case decided in 2008, and that liberal construction cannot render timely Wynn's belated challenge to the trial court's exercise of discretion in imposing a DNA surcharge as a condition of his sentence. Therefore, we affirm.
• Criminal Law/ Sentencing/ Sentencing Modification/ Judicial Authority-Discretion
  
  State v. Smith
  Docket: 2009AP000135 10-27-09
  

  PER CURIAM. Raymond Bernard Smith appeals from a judgment of conviction entered on his guilty plea to one count of burglary in violation of Wis. Stat. § 943.10(1m)(a) (2005-06).[1] He also appeals from an order denying his postconviction motion for sentence modification. Smith alleges that the circuit court erroneously exercised its sentencing discretion by failing to consider the appropriate sentencing factors and failing to explain the linkage between those factors and the sentence. We conclude that the circuit court did not erroneously exercise its sentencing discretion and did not err in denying Smith's motion for sentence modification. Therefore, we affirm.
• Default Judgment/ Excusable Neglect/ Procedure/ Judicial Authority-Discretion
  
  Community Bank & Trust v. Fogle
  Docket: 2009AP001554 10-28-09
  

  PER CURIAM. Indymac Federal Bank, FSB, appeals from the order of the circuit court that struck its answer and entered a default judgment in favor of Community Bank & Trust, and the order that denied its motion for reconsideration. Indymac argues that it established excusable neglect for failing to timely file its answer. This appeal was expedited under Wis. Stat. Rule 809.17 (2007-08).[1] We conclude that the circuit court properly exercised its discretion when it struck Indymac's answer and denied the motion for reconsideration. We affirm.
• Family Law/ Divorce/ Child Support/ Property Division/ Placement
  
  Carroll v. Van Boxtel
  Docket: 2009AP000252 10-27-09
  

  PER CURIAM.[1] Jami L. Carroll appeals an order determining property division, child support and physical placement issues. Jami argues: (1) the circuit court failed to order her ex-husband Brent Van Boxtel to pay 12% interest on the division of a retirement account not timely paid; (2) certain language in the divorce judgment did not constitute a child support order; and (3) the court considered improper factors and failed to consider proper statutory factors regarding placement. We disagree and affirm.
• Family Law/ Divorce/ Child Support/ Shirking
  
  Michalski v. Michalski
  Docket: 2008AP001836 10-29-09
  

  PER CURIAM. Dana Michalski appeals from an order modifying the child support provision in the judgment divorcing her from Kevin Michalski. The order reduced Kevin's child support obligation from $650 per month to $191.53 per month. The court reduced support based on its finding that circumstances beyond Kevin's control caused him to lose the business that supplied him with sufficient income to pay $650 per month.[1] We conclude that Kevin did not present sufficient evidence showing that his loss of income occurred due to circumstances outside his control. We therefore reverse, and remand for a redetermination of the issue.
• Family Law/ TPR/ Evidence
  
  State v. Marcia A.
  Docket: 2009AP001947 10-27-09
  State v. Marcia A.
  Docket: 2009AP001948 10-27-09
  

  BRENNAN, J.[1] Marcia A. appeals orders terminating her parental rights to her children, Ariana A. (born 6/29/98) and Javani L. (born 12/7/05). She argues that the trial court erred in terminating her parental rights when it: (1) gave undue weight to the adoptive parent's testimony that she would maintain a relationship between Marcia and the children; and (2) inappropriately considered matters extraneous to the decision to terminate. I affirm.
• Harassment Injunction/ Statutes/ Burden Of Proof/ Evidence
  
  Van Den Heuvel v. Krutz
  Docket: 2009AP000517 10-28-09
  

  PER CURIAM. Tammy Krutz appeals an order granting Joseph Van Den Heuvel's petition for a harassment injunction. The resolution of this case rested upon an implicit credibility determination, a matter within the circuit court's discretion. We conclude the "reasonable grounds" burden of proof under Wis. Stat. § 813.125 (2007-08)[1] has been satisfied and that the injunction was permissible in scope. We affirm.
• Inmates/ Constitutional Law/ Discrimination/ Department of Corrections Regulations
  
  Polzin v. Olson
  Docket: 2008AP001716 10-29-09
  

  PER CURIAM. Gerald Polzin appeals from an order dismissing his action brought under 42 U.S.C. § 1983. We affirm.
• Medical Malpractice/ Negligence/ Informed Consent Claim/ Evidence/ Judicial Authority-Discretion
  
  Walton v. Deaton
  Docket: 2007AP002406 10-29-09
  

  HIGGINBOTHAM, J. Lynne Walton appeals a judgment entered on a jury verdict dismissing her informed consent and medical negligence claims against Dr. Nancy Deaton, and an order denying her motion for a new trial on the informed consent claim. Walton allegedly suffered injuries resulting from the vaginal delivery of her son, Kyle. She alleges that Dr. Deaton failed to discuss with her treatment and diagnostic options that may have mitigated her injuries, including a late-term ultrasound to ascertain the baby's size and a cesarean section delivery.
• OWI/ Evidence/ Evidence Ruling/ Public Officer/ Employment Law
  
  State v. McPike
  Docket: 2008AP003037 10-29-09
  Recommended for Publication
  

  LUNDSTEN, J. Police detective Jeffrey McPike is facing a trial on an OWI charge. He moved the circuit court to suppress test results and statements he made after a police supervisor ordered him to submit to a preliminary breath test (PBT). The circuit court granted McPike's suppression motion after applying State v. Brockdorf, 2006 WI 76, 291 Wis. 2d 635, 717 N.W.2d 657. In Brockdorf, the supreme court adopted a two-part subjective/objective test for deciding whether a public officer's statements must be suppressed because the statements have been coerced by the officer's public employer. Because the facts of McPike's case are substantially similar to those in Brockdorf, we conclude, as the court did in Brockdorf, that suppression is not required. We reverse the circuit court's order with one exception. For reasons we will explain, we affirm the part of the order suppressing the PBT results. We remand for further proceedings.
• OWI/ Evidence/ Reasonable Suspicion / Traffic Stops
  
  State v. Martin
  Docket: 2009AP001211 10-28-09
  

  BROWN, C.J.[1] This is a "weaving within one's own lane" case. Predictably, Eric J. Martin propounds that State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, is the standard by which all "weaving within one's own lane" cases must be measured and asserts that the facts in his case are less egregious than those in Post such that we should reverse. But Martin overstates the significance of Post. As lately clarified by our supreme court in State v. Popke, 2009 WI 37, ¶24, 317 Wis. 2d 118, 765 N.W.2d 569, Post stands only for the proposition that "weaving within a single lane of traffic, by itself, does not establish reasonable suspicion" necessary to conduct an investigative stop of a vehicle. So, rather than compare individual cases to Post, the mission of Wisconsin's courts is to decide each case on its own merits based on the totality of the circumstances. Here, the officer followed Martin for a full mile, observing that he was weaving in his own lane throughout. This is a significant amount of time to be weaving and the officer was justified in stopping Martin because of it. We affirm.
• Personal Injury/ Statutes/ Negligence/ Statutory Construction-Interpretation/ Mistrial/ Judicial Authority-Discretion/ Special Verdicts
  
  Xiong v. Kulcinski
  Docket: 2008AP001588 10-29-09
  

  BRIDGE, J. Wayne C. Kulcinski and American Family Mutual Insurance Company separately appeal from a judgment entered in a personal injury action. The underlying action arises from an accident in which a vehicle driven by Kulcinski struck Chouader Benjamin Yang (hereinafter Benjamin) on a street near a school where the posted speed limit was fifteen miles per hour when children are present. The circuit court determined that Kulcinski was negligent as a matter of law because he was driving in excess of fifteen miles per hour at the time of the accident, in violation of Wis. Stat. § 346.57(4) (2007-08),[1] and a jury subsequently apportioned eighty percent of the causal negligence to him. Collectively, Kulcinski and American Family make three arguments on appeal: (1) Section 346.57(4) is unconstitutionally vague; (2) the circuit court erroneously exercised its discretion in denying Kulcinski's request for a special verdict question as to whether Benjamin was in the crosswalk at the time of the accident; and (3) the jury's verdict should have been set aside because a remark made by Benjamin's attorney during closing argument ran afoul of the circuit court's ruling barring discussion of settlement negotiations.[2] We reject each argument and affirm.
• Property/ Contracts/ Economic Loss Doctrine/ Damages/ Summary Judgment
  
  Shister v. Patel
  Docket: 2008AP002803 10-28-09
  Recommended for Publication
  

  NEUBAUER, P.J. This appeal stems from Alexander Shister's purchase of a home owned by Bipin and Ranjan Patel. Shister claims that he suffered damages when the Patels and their real estate broker, Rajul Bhagwanjee, failed to disclose that the Patels remodeled the basement without the proper permits and that there was a pending reassessment on the property which resulted in an increased property tax. Shister appeals the trial court's summary judgment order that the economic loss doctrine bars all tort claims against broker Bhagwanjee and her employer Coldwell Banker. The trial court further limited damages to the costs of retroactively obtaining the required permits, dismissing any damages associated with the property tax increase as too speculative. We granted Shister's leave to appeal these rulings, which we now reverse. We conclude that the economic loss doctrine does not bar Shister's tort claims against Bhagwanjee and Coldwell Banker and that the trial court erred in limiting Shister's damage claim against the defendants. We remand for further proceedings.
• Property/ Foreclosure/ Mortgage/ Evidence
  
  Roettgers Company, Inc. v. Curro
  Docket: 2008AP003049 10-28-09
  

  PER CURIAM. Jeffrey Curro appeals pro se from a foreclosure judgment. He argues that summary judgment was inappropriate because he challenged the validity of the mortgage held by Roettgers Company, Inc., and the amount due, and because he had viable counterclaims. We affirm the judgment.
• Property/ Statutes/ Easements/ "Uneconomic Remnant"
  
  Waller v. American Transmission Company
  Docket: 2009AP000411 10-28-09
  Recommended for Publication
  

  SNYDER, J. Scott N. Waller and Lynnea S. Waller appeal from an order dismissing their claims against American Transmission Co., LLC (ATC). The Wallers contend that an action pursuant to Wis. Stat. § 32.06(5) (2007-08)[1] is the exclusive remedy available to compel ATC to acquire an uneconomic remnant of their property left after ATC's acquisition of utility easements across the property. They argue that the circuit court erred when it held that the existence of an uneconomic remnant and the value of an uneconomic remnant were both issues of "just compensation" for a jury to decide under § 32.06(10). The Wallers assert that the proper forum in which to declare an uneconomic remnant and to compel the condemnor to include compensation for the remnant in its offer is in an action under § 32.06(5). We agree. Accordingly, we reverse the order dismissing the Waller's claim and direct the court to reinstate the action.
• Utilities/ Statutes/ Administrative Regulations/ Administrative Regulations Construction-Interpretation
  
  Wisconsin Power and Light v. P.S.C.
  Docket: 2008AP002823 10-29-09
  Recommended for Publication
  

  VERGERONT, J. This appeal concerns the regulation of public electric utilities under Wis. Stat. § 196.495 (2007-08),[1] called the "anti-duplication statute." The Wisconsin Public Service Commission (PSC) issued a decision allowing the Wisconsin Dells Water and Light Utility (City electric utility) to provide electricity to several new condominium developments in a newly annexed area near the Chula Vista Resort. The foundation for the PSC's decision was its construction and application of its regulation, Wis. Admin. Code § PSC 112.08(1) (May 2008),[2] and, specifically, its conclusion that the sewer lift stations owned by the City were "customers" of the City electric utility within the meaning of the regulation. WP& L asserts that the sewer lift stations cannot be "customers" of the City electric utility because they are municipal property.