CaseLaw Express 12/07/2009 - State Bar of Wisconsin

Court of Appeals Cases

Criminal Law/ Collateral Estoppel/ Constitutional Law-Double Jeopardy/ Procedure

State v. King
Docket: 2009AP000028 12-01-09
PER CURIAM. Michael Anthony King petitions for leave to appeal from a non-final order denying his motion to dismiss the amended information. The issue is whether the solicitation charges relating to the conspiracy charge for which King had been acquitted are barred by double jeopardy or collateral estoppel. We grant the petition and conclude that prosecuting King for solicitation after he was acquitted of conspiracy on much of the same evidence is not barred by double jeopardy. We also conclude that collateral estoppel does not bar the solicitation prosecution because the jury did not specify what it actually decided in its verdict of acquittal. Therefore, we affirm and remand for further proceedings.
Criminal Law/ Defense/ Jury Instructions/ Statutes/ Statutory Construction-Interpretation

State v. Lesik
Docket: 2008AP003072 12-01-09
Recommended for Publication
PETERSON, J. Christopher Lesik appeals a judgment of conviction for sexual assault of a child. Lesik argues the sexual assault of a child statute is unconstitutionally overbroad because the definition of sexual intercourse does not explicitly exclude conduct occurring for the purpose of providing medical care. He also contends the instruction the circuit court gave the jury did not fully cover his theory of defense. We disagree and affirm.
Criminal Law/ Evidence/ Statutes/ Ineffective Assistance Of Counsel/ Jury Instructions

State v. Kotecki
Docket: 2008AP002006 12-01-09
FINE, J. Stephen P. Kotecki appeals judgments entered after a jury found him guilty of two counts of felony bail jumping and one count of violating a restraining order, see WIS. STAT. §§ 946.49(1)(b) and 813.125(7). He also appeals the orders denying his postconviction motions. He argues that the evidence was insufficient to support the guilty verdicts, that the real controversy was not tried, see WIS. STAT. § 752.35 (discretionary reversal by the court of appeals), and that his trial lawyer gave him ineffective representation. We affirm.
Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Proof

State v. Freer
Docket: 2008AP002233 12-03-09
Recommended for Publication
HIGGINBOTHAM, J. Stephen Freer appeals a circuit court order denying his motion to dismiss and a judgment of conviction entered on a jury verdict for misdemeanor intimidation of a crime victim contrary to WIS. STAT. § 940.44(2) (2007-08), and felony bail jumping. Freer contends that the State failed to prove the crime because the victim intimidation statute plainly excludes from its reach the scenario here, an act of intimidation that occurs after a complaint has been sought. We reject Freer's interpretation of § 940.44(2), and affirm.
Family Law/ TPR/ Constitutional Law-Due Process/ Incarceration/ Statutes

Kia M.E. v. Jerome E.O.
Docket: 2009AP002383 12-03-09
HIGGINBOTHAM, J. Jerome O. appeals an order terminating his parental rights to his daughter Keirrah under WIS. STAT. § 48.415(4). He contends that the sole ground for terminating his rights under the statute was that he was incarcerated, and therefore, under applicable Wisconsin case law, his substantive due process rights were violated. We agree and conclude that § 48.415(4), as applied to Jerome, is not narrowly tailored to achieve the State's compelling interest in protecting children from unfit parents. We therefore reverse.
Insurance/ Torts/ Invasion Of Privacy/ Statutes/ Evidence

Gillund v. Meridian Mutual
Docket: 2008AP001301 12-01-09
Recommended for Publication
BRENNAN, J. Daniele Gillund appeals from two circuit court orders: (1) granting summary judgment to Meridian Mutual Insurance Company ("Meridian") and State Automobile Mutual Insurance Company ("State Automobile"); and (2) granting summary judgment to Harleysville Insurance Company ("Harleysville"). The circuit court concluded that none of the three homeowners' insurance policies covered the claimed personal injury to Gillund. We agree that there is no coverage under the Meridian and State Automobile policies and, therefore, affirm that circuit court order. But we conclude that the circuit court's order regarding coverage under the Harleysville policy must be reversed and remanded, because Harleysville's failure to file any pleading and its filing of improper affidavits make summary judgment analysis impossible.
Landlord-Tenant/ Damages/ Attorney Fees/ Costs/ Administrative Regulations/ Statutes

Boelter v. Tschantz
Docket: 2009AP001011 12-01-09
HOOVER, P.J. Terri Boelter appeals a judgment, and an order denying her motion for reconsideration, entered after a trial de novo on claims against her landlord. Boelter seeks double damages, costs, attorney fees, punitive damages, and rent abatement due to claimed improper withholdings from her security deposit and a failure to remedy unsafe conditions. We agree, in part, with Boelter's arguments and remand for further fact-finding, the calculation and awarding of costs, attorney fees, and rent abatement, and consideration of punitive damages.
OWI/ Collateral Attack/ Right To Counsel/ Constitutional Law

State v. Ehmke
Docket: 2009AP000539 12-02-09
PER CURIAM. Consuelo Ehmke appeals from a judgment, entered upon her guilty plea, convicting her of operating while intoxicated, fifth or subsequent offense. Before pleading guilty, she attempted to collaterally attack a prior conviction. We agree with Ehmke that she has made a prima facie showing that she was denied the right to counsel. We reverse.
OWI/ Traffic Stops/ Reasonable Suspicion/ Evidence/ Constitutional Law

State v. Whitford
Docket: 2009AP001412 12-01-09
PETERSON, J. Timothy Whitford appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, fourth offense. Whitford argues the traffic stop was unlawful. We affirm.
Personal Injury/ Damages/ Stipulations/ Evidence/ Causation

Bray v. Gateway Insurance Company
Docket: 2008AP003223 12-03-09
DYKMAN, P.J. Clayton Bray appeals from a damages award in his personal injury action against Gateway Insurance Company following a default judgment in Bray's favor. Bray contends that the trial court erred in excluding some of his claimed damages from the damages award based on its finding that those damages were not caused by the accident in this case. First, Bray argues that the trial court was required to find that the accident caused all of his claimed medical expenses because Gateway stipulated or judicially admitted that those expenses were caused by the accident. Bray then contends that the default judgment established causation as alleged in his complaint and thus the court erred by requiring Bray to prove causation at the damages hearing. Finally, Bray contends that the court's finding that some of his claimed damages were not caused by the accident was clearly erroneous because the only evidence presented at the hearing was that all of Bray's claimed damages were caused by the accident. We reject each of Bray's contentions, and affirm.
Torts/ Civil Procedure/ Fraud/ Misrepresentation/ Fifth Amendment/ Discovery/ Mitigation/ Evidence/ Jury Instructions/ Verdicts

S.C. Johnson v. Morris
Docket: 2008AP001647 12-02-09
Recommended for Publication
BROWN, C.J. Tom Russell and Thomas H. Buske raise a host of issues, most of them without merit. But three issues are novel and require us to discuss them at length. We will identify these three issues and give our brief answer first and then discuss them seriatim. After that, we will deal with the meritless issues. Ultimately, we affirm the trial court in all respects.


Week of November 30, 2009 Supreme Court Cases Attorney Discipline Office of Lawyer Regulation v. Langkamp Docket: 2008AP002283 12-01-09 PER CURIAM. We review the amended stipulation filed by Attorney Jay M. Langkamp and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12, wherein Attorney Langkamp admits to the facts and misconduct alleged by the OLR as set forth in the parties' stipulation. Attorney Langkamp admits to 15 counts of misconduct involving four clients. The misconduct includes failing to communicate with a client; unilaterally terminating his representation of clients and failing to protect the clients' interests by giving them reasonable notice to employ another attorney; failing to refund the portion of fees that were not earned; and failing to provide a written response to client grievances. Attorney Discipline Office of Lawyer Regulation v. Nussberger Docket: 2009AP000353 12-04-09 PER CURIAM. We review the stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Terry L. Nussberger regarding his professional misconduct in handling the probate of the estate of V.K. The OLR and Attorney Nussberger stipulate Attorney Nussberger violated his duties of competence and diligence in probating the estate and agree the appropriate discipline would be a public reprimand. Court of Appeals Cases Criminal Law/ Collateral Estoppel/ Constitutional Law-Double Jeopardy/ Procedure State v. King Docket: 2009AP000028 12-01-09 PER CURIAM. Michael Anthony King petitions for leave to appeal from a non-final order denying his motion to dismiss the amended information. The issue is whether the solicitation charges relating to the conspiracy charge for which King had been acquitted are barred by double jeopardy or collateral estoppel. We grant the petition and conclude that prosecuting King for solicitation after he was acquitted of conspiracy on much of the same evidence is not barred by double jeopardy. We also conclude that collateral estoppel does not bar the solicitation prosecution because the jury did not specify what it actually decided in its verdict of acquittal. Therefore, we affirm and remand for further proceedings. Criminal Law/ Defense/ Jury Instructions/ Statutes/ Statutory Construction-Interpretation State v. Lesik Docket: 2008AP003072 12-01-09 Recommended for Publication PETERSON, J. Christopher Lesik appeals a judgment of conviction for sexual assault of a child. Lesik argues the sexual assault of a child statute is unconstitutionally overbroad because the definition of sexual intercourse does not explicitly exclude conduct occurring for the purpose of providing medical care. He also contends the instruction the circuit court gave the jury did not fully cover his theory of defense. We disagree and affirm. Criminal Law/ Evidence/ Statutes/ Ineffective Assistance Of Counsel/ Jury Instructions State v. Kotecki Docket: 2008AP002006 12-01-09 FINE, J. Stephen P. Kotecki appeals judgments entered after a jury found him guilty of two counts of felony bail jumping and one count of violating a restraining order, see WIS. STAT. §§ 946.49(1)(b) and 813.125(7). He also appeals the orders denying his postconviction motions. He argues that the evidence was insufficient to support the guilty verdicts, that the real controversy was not tried, see WIS. STAT. § 752.35 (discretionary reversal by the court of appeals), and that his trial lawyer gave him ineffective representation. We affirm. Criminal Law/ Statutes/ Statutory Construction-Interpretation/ Proof State v. Freer Docket: 2008AP002233 12-03-09 Recommended for Publication HIGGINBOTHAM, J. Stephen Freer appeals a circuit court order denying his motion to dismiss and a judgment of conviction entered on a jury verdict for misdemeanor intimidation of a crime victim contrary to WIS. STAT. § 940.44(2) (2007-08), and felony bail jumping. Freer contends that the State failed to prove the crime because the victim intimidation statute plainly excludes from its reach the scenario here, an act of intimidation that occurs after a complaint has been sought. We reject Freer's interpretation of § 940.44(2), and affirm. Family Law/ TPR/ Constitutional Law-Due Process/ Incarceration/ Statutes Kia M.E. v. Jerome E.O. Docket: 2009AP002383 12-03-09 HIGGINBOTHAM, J. Jerome O. appeals an order terminating his parental rights to his daughter Keirrah under WIS. STAT. § 48.415(4). He contends that the sole ground for terminating his rights under the statute was that he was incarcerated, and therefore, under applicable Wisconsin case law, his substantive due process rights were violated. We agree and conclude that § 48.415(4), as applied to Jerome, is not narrowly tailored to achieve the State's compelling interest in protecting children from unfit parents. We therefore reverse. Insurance/ Torts/ Invasion Of Privacy/ Statutes/ Evidence Gillund v. Meridian Mutual Docket: 2008AP001301 12-01-09 Recommended for Publication BRENNAN, J. Daniele Gillund appeals from two circuit court orders: (1) granting summary judgment to Meridian Mutual Insurance Company ("Meridian") and State Automobile Mutual Insurance Company ("State Automobile"); and (2) granting summary judgment to Harleysville Insurance Company ("Harleysville"). The circuit court concluded that none of the three homeowners' insurance policies covered the claimed personal injury to Gillund. We agree that there is no coverage under the Meridian and State Automobile policies and, therefore, affirm that circuit court order. But we conclude that the circuit court's order regarding coverage under the Harleysville policy must be reversed and remanded, because Harleysville's failure to file any pleading and its filing of improper affidavits make summary judgment analysis impossible. Landlord-Tenant/ Damages/ Attorney Fees/ Costs/ Administrative Regulations/ Statutes Boelter v. Tschantz Docket: 2009AP001011 12-01-09 HOOVER, P.J. Terri Boelter appeals a judgment, and an order denying her motion for reconsideration, entered after a trial de novo on claims against her landlord. Boelter seeks double damages, costs, attorney fees, punitive damages, and rent abatement due to claimed improper withholdings from her security deposit and a failure to remedy unsafe conditions. We agree, in part, with Boelter's arguments and remand for further fact-finding, the calculation and awarding of costs, attorney fees, and rent abatement, and consideration of punitive damages. OWI/ Collateral Attack/ Right To Counsel/ Constitutional Law State v. Ehmke Docket: 2009AP000539 12-02-09 PER CURIAM. Consuelo Ehmke appeals from a judgment, entered upon her guilty plea, convicting her of operating while intoxicated, fifth or subsequent offense. Before pleading guilty, she attempted to collaterally attack a prior conviction. We agree with Ehmke that she has made a prima facie showing that she was denied the right to counsel. We reverse. OWI/ Traffic Stops/ Reasonable Suspicion/ Evidence/ Constitutional Law State v. Whitford Docket: 2009AP001412 12-01-09 PETERSON, J. Timothy Whitford appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, fourth offense. Whitford argues the traffic stop was unlawful. We affirm. Personal Injury/ Damages/ Stipulations/ Evidence/ Causation Bray v. Gateway Insurance Company Docket: 2008AP003223 12-03-09 DYKMAN, P.J. Clayton Bray appeals from a damages award in his personal injury action against Gateway Insurance Company following a default judgment in Bray's favor. Bray contends that the trial court erred in excluding some of his claimed damages from the damages award based on its finding that those damages were not caused by the accident in this case. First, Bray argues that the trial court was required to find that the accident caused all of his claimed medical expenses because Gateway stipulated or judicially admitted that those expenses were caused by the accident. Bray then contends that the default judgment established causation as alleged in his complaint and thus the court erred by requiring Bray to prove causation at the damages hearing. Finally, Bray contends that the court's finding that some of his claimed damages were not caused by the accident was clearly erroneous because the only evidence presented at the hearing was that all of Bray's claimed damages were caused by the accident. We reject each of Bray's contentions, and affirm. Torts/ Civil Procedure/ Fraud/ Misrepresentation/ Fifth Amendment/ Discovery/ Mitigation/ Evidence/ Jury Instructions/ Verdicts S.C. Johnson v. Morris Docket: 2008AP001647 12-02-09 Recommended for Publication BROWN, C.J. Tom Russell and Thomas H. Buske raise a host of issues, most of them without merit. But three issues are novel and require us to discuss them at length. We will identify these three issues and give our brief answer first and then discuss them seriatim. After that, we will deal with the meritless issues. Ultimately, we affirm the trial court in all respects.		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