CaseLaw Express 01/25/2010 - State Bar of Wisconsin

Court of Appeals Cases

Criminal Law/ Evidence/ Sentencing/ Judicial Authority-Discretion/ Elements Of Crime

State v. Becerra
Docket: 2009AP000600 01-20-10
CURLEY, P.J. Jesse Becerra appeals from the judgment, entered following a jury trial, convicting him of battery, and from the judgment convicting him of kidnapping and false imprisonment, contrary to WIS. STAT. §§ 940.19(1), 940.31(1)(a) and 940.30 (2007-08). Becerra also appeals from the order denying his postconviction motion. He argues on appeal that there was insufficient evidence to convict him of the crimes of kidnapping and false imprisonment and that the trial court erroneously exercised its discretion when it imposed a twenty-year sentence. Because the State proved all the elements of kidnapping and false imprisonment and the trial court properly exercised its discretion at sentencing, we affirm.
Criminal Law/ Jury Bias/ Evidence/ Batson Challenge/ Timeliness/ Miranda/ Constitutional Law/ Ineffective Assistance Of Counsel

State v. Blunt
Docket: 2008AP003204 01-20-10
CURLEY, J. James T. Blunt, pro se, appeals the judgment, entered following a jury trial, convicting him of first-degree intentional homicide while armed with a dangerous weapon, as a party to the crime, contrary to WIS. STAT. §§ 940.01(1)(a), 939.63, and 939.05 (2005-06). On appeal, Blunt claims that the trial court erred when it denied his motion to suppress; that there was insufficient evidence to support his conviction; and that there was racial discrimination in the jury selection process preceding his trial. Because the trial court's findings of fact during the suppression motion were not clearly erroneous; because the evidence was sufficient to support Blunt's conviction; and because Blunt forfeited his Batson challenge by failing to make a timely objection, we affirm.
Criminal Law/ Plea Agreement Breach/ New Factor/ Sentencing/ Procedure

State v. Gray
Docket: 2009AP000977 01-20-10
PER CURIAM. Kenneth M. Gray, pro se, appeals an order denying his motion to modify his sentence. He argues that: (1) the State breached the plea bargain; (2) the State used a falsified petition to waive him to adult court; and
Criminal Law/ Sentencing/ Constitutional Law Mootness/ Judicial Authority-Discretion

State v. Morris
Docket: 2009AP000436 01-20-10
PER CURIAM. Deon M. Morris has appealed from a judgment convicting him of uttering a forgery, party to the crime, in violation of WIS. STAT. § 943.38(2) (2007-08), and sentencing him to one year of initial confinement and two years of extended supervision, consecutive to another sentence he was serving for a Milwaukee County offense. Morris also appeals from an order denying his motion for postconviction relief.
Criminal Law/ Sentencing/ Restitution/ Probation/ Good Faith/ Judicial Authority-Discretion

State v. Genge
Docket: 2009AP001379 01-20-10
ANDERSON, J. Eric D. Genge takes issue with the circuit court's finding that paying $1329.42 towards court ordered restitution of $20,206.37 over a two-year period was not a good faith effort to pay restitution and the ensuing decision to extend his probationary term an additional two years. We affirm, because during his two years on probation, Genge failed to meet the rehabilitative goals of probation.
Default Judgment/ Reopen

Kopp v. Delaney
Docket: 2009AP000453 01-21-10
PER CURIAM. John Delaney appeals a default judgment which was entered against him after he failed to appear at a scheduling conference. We affirm for the reasons discussed below.
DNR/ Roads & Highways/ Regulations/ Regulations Construction-Interpretation/ Public Trust Doctrine/ Timeliness/ Statutes/ Jurisdiction

Citizens For U, Inc. v. D.N.R.
Docket: 2008AP002537 01-21-10
Recommended for Publication
VERGERONT, J. Citizens for U, Inc., challenges the Department of Natural Resources' (DNR) decision approving the petition to abandon a portion of County Highway U that provides public access to the Wisconsin River. Citizens for U contends the replacement public access is not equivalent or superior to that abandoned and therefore DNR's own regulations prohibit approving the petition. The circuit court affirmed DNR's decision and Citizens for U appeals.
Employment Law/ Contracts/ Non-Compete Clauses/ Statutes/ Statutory Construction-Interpretation

Frank D. Gillitzer Electric v. Andersen
Docket: 2009AP000939 01-20-10
Recommended for Publication
BRENNAN, J. Frank D. Gillitzer Electric Co., Ltd. ("Gillitzer"), appeals the granting of summary judgment, dismissing all of Gillitzer's claims against its former employees: Marco L. Andersen, James J. Mickol, John J. Mickol, Kyle Wolf and Kevin Ihde (collectively referred to as the "former employees"). The circuit court granted the former employees' summary judgment motion on the grounds that the training reimbursement provision of the parties' "Educational And Non-Competition Agreement" (the "Agreement"), requiring the former employees to repay the cost of their apprenticeship program, was unenforceable because it was: (1) a restrictive covenant under WIS. STAT. § 103.465 (2007-08) and (2) inextricably linked to the invalid non-compete provision. We conclude that the reimbursement provision is enforceable because it is not textually linked or intertwined with the Agreement's concededly invalid non-compete provision. Accordingly, we reverse the order of the circuit court.
Family Law/ Divorce/ Child Support/ Child Support Modification/ Evidence

Reiser v. Benvenuto
Docket: 2009AP000117 01-20-10
PER CURIAM. Anthony C. Benvenuto has appealed from an order denying his motion for a reduction in child support for his two sons, and requiring him to pay $4015 in orthodontia expenses. We affirm the trial court's order.
Family Law/ Divorce/ Property Division/ Gifts

Rayala v. Rayala
Docket: 2008AP001943 01-20-10
PER CURIAM. Elizabeth Rayala appeals the property division portion of a judgment dissolving her marriage to Daniel Rayala. Specifically, Elizabeth argues the trial court erred by concluding Daniel's partnership interest in Rayala Cranberry Company is nonmarital property. Elizabeth also claims the trial court erred by failing to include earnings arising from the 2006 harvest in the marital estate. We reject Elizabeth's arguments and affirm the judgment.
Juvenile Law/ Criminal Law/ Delinquent/ Procedure/ Statutory Time Limits/ Statutes/ Statutory Construction-Interpretation

State v. Robert H.
Docket: 2009AP001975 01-20-10
PETERSON, J. Robert H. appeals an order finding him delinquent. Robert argues the circuit court incorrectly concluded the State complied with the time limits for requesting and filing a delinquency petition. As a result, he argues the court was required to dismiss the petition. We agree with Robert that the State did not comply with the time limits, but we do not agree this obligated the court to dismiss his petition. Therefore, we reverse and remand for the circuit court to determine the proper remedy for the State's failure to timely request and file a delinquency petition.
New Trial/ Dental Malpractice/ Evidence/ Damages/ Verdicts/ Burden Of Proof

Forbes v. Stoeckl
Docket: 2009AP000381 01-20-10
PER CURIAM. Tammy Forbes appeals the judgment entered upon a unanimous jury verdict dismissing her dental malpractice claim against Clemens K. Stoeckl, D.D.S., d/b/a Stoeckl Family Dentistry. Forbes contends she is entitled to a new trial in the interest of justice because the verdict is contrary to the great weight of the evidence, and because the jury's failure to award her any damages renders the verdict perverse. We disagree and affirm.
OWI/ Ineffective Assistance Of Counsel/ Evidence/ Evidence Ruling/ Error/ Statutes/ Statutory Construction-Interpretation

State v. Miller
Docket: 2009AP001509 01-20-10
CURLEY, P.J. Jerry L. Miller appeals the judgment, entered following a jury trial, convicting him of operating a motor vehicle while under the influence of an intoxicant, third offense, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2) (2007-08). He also appeals the denial of his postconviction motion. Miller argues that his trial attorney was ineffective because he "failed to take reasonable steps to locate an essential defense witness [Jamie Peaslee] and serve him with a subpoena" for his jury trial, thus preventing the jury from hearing from two witnesses who would have testified that Peaslee, who accompanied Miller the night of his arrest, admitted to them that he was the actual driver of the truck. Miller also argues that the postconviction court erred in denying his postconviction motion when it reversed the finding of the trial court and determined that Miller's trial attorney's performance was not deficient in his attempt to subpoena Peaslee, but nevertheless refused to revisit the trial court's determination that the admissions allegedly made by Peaslee to two witnesses were ambiguous, were not statements against penal interest and were uncorroborated. WIS. STAT. § 908.045(4).
OWI/ Prohibited Alcohol Concentration (PAC)/ Penalty Enhancer/ Traffic Stops/ Michigan Convictions

State v. Puchacz
Docket: 2009AP000840 01-20-10
Recommended for Publication
ANDERSON, J. Stanley W. Puchacz appeals from a judgment convicting him of operating a motor vehicle while under the influence of alcohol (OWI) and with a prohibited alcohol concentration (PAC), both as fifth offenses. Puchacz argues that the circuit court erred when it denied his motion to strike three of his four prior OWI offenses, all from Michigan, so they could not be used for sentence enhancement. We do not agree. Puchacz additionally argues that the circuit court erred in denying his motion to suppress all evidence obtained as a result of the traffic stop. Again, we do not agree. We affirm.
OWI/ Prohibited Alcohol Concentration (PAC)/ Traffic Stops/ Evidence/ Reasonable Suspicion

Fond Du Lac County v. Beaty
Docket: 2009AP001789 01-20-10
Fond Du Lac County v. Beaty
Docket: 2009AP001790 01-20-10
Fond Du Lac County v. Beaty
Docket: 2009AP001791 01-20-10
ANDERSON, J. In her appeal from a conviction for operating a motor vehicle with a prohibited alcohol concentration, in violation of WIS. STAT. § 346.63(1)(b), Jennifer E. Beaty challenges the arresting officer's traffic stop for operating her vehicle left of center. She contends that her slight swerve over the center line for two or three seconds does not constitute erratic driving that would support a traffic stop. We disagree, because a slight swerve over the center line is enough to provide the arresting officer with probable cause to believe that Beaty was operating left of center.
OWI/ Reasonable Suspicion/ Probable Cause To Arrest/ Evidence/ Regulations

State v. Tadych
Docket: 2009AP001911 01-20-10
NEUBAUER, P.J. Bradley J. Tadych appeals from a judgment of conviction for operating while under the influence, second offense, contrary to WIS. STAT. § 346.63(1)(a). Tadych raises two challenges on appeal. First, Tadych contends that the trial court erred in denying his motion to suppress evidence based on lack of sufficient probable cause to believe Tadych had violated § 346.63 prior to requesting preliminary breath test (PBT). Second, Tadych contends that the results of the preliminary breath test were erroneously admitted into evidence at the motion hearing. We conclude that the arresting officer had the requisite degree of probable cause to request a PBT. We further conclude that the results of the PBT were appropriately admitted for purposes of establishing probable cause to arrest. We therefore uphold the trial court's ruling and affirm the judgment.
Property/ Roads & Highways/ Towns & Cities/ DOT/ Damages/ Timeliness/ Statutes

Heling v. Village of Howards Grove
Docket: 2009AP000439 01-20-10
PER CURIAM. David Heling and the Heartland Hills Golf Course appeal from a judgment dismissing their claim for damage to the land owned and occupied by the golf course allegedly caused by the installation of a storm sewer in the reconstruction of a road. The circuit court determined that under WIS. STAT. § 88.87 (2007-08), Heling's claims against the Village of Howards Grove and the Wisconsin Department of Transportation are time barred. We affirm the judgment of the circuit court.
Small Claims/ Towns & Cities/ Taxation/ Frivolous/ Good Faith/ Attorney Fees/ Sanction/ Judicial Authority-Discretion

Knuth v. Town of Cedarburg
Docket: 2009AP001485 01-20-10
ANDERSON, J. Gordon P. Knuth contests the circuit court's determination that his small claims action was frivolous and awarding the Town of Cedarburg $4670.13 in actual attorney fees, costs and disbursements. Knuth is not appealing the circuit court's decision to dismiss the small claims case. "Rather [his] appeal IS about the ruling that the claim is 'Frivolous' and that a money judgment of $4670.13 as awarded to the Town of Cedarburg is reasonable." He asserts that the underlying action was not frivolous because his actions were not "intentional harassment." He also contends that the Town failed to prove the amount of the actual attorney fees and that the fees were reasonable.
Summary Judgment/ Contracts/ Evidence/ Receivership/ Statutes

Marshall & Ilsley Bank v. New England Builders
Docket: 2009AP000093 01-20-10
BRENNAN, J. New England Builders, Inc. ("New England") appeals a summary judgment granted to M&I Marshall & Ilsley Bank ("M&I"). New England argues that material issues of fact exist regarding whether Advance Mechanical Contractors, Inc. ("AMC") fully performed its obligations under contracts with New England. We agree, reverse the circuit court's decision, and remand the case back to the circuit court.
Summary Judgment/ Towns & Cities/ Counties/ Ordinances/ Zoning/ Procedure/ Timeliness/ Statutes

Town of Rice Lake v. County of Barron
Docket: 2009AP000647 01-20-10
PER CURIAM. The Town of Rice Lake appeals a summary judgment dismissing its request for a declaration invalidating an amendment to a Barron County zoning ordinance. The Town argues it followed the statutory procedure for vetoing the ordinance change. Because we conclude the Town substantially complied with this procedure, we reverse and remand with directions to grant summary judgment in favor of the Town.
Third-Party Complaints/ Timeliness/ Statutes/ Statutory Construction-Interpretation/ Procedure/ Judicial Authority-Discretion

Yellow Thunder v. Star Pipe Products
Docket: 2008AP002161 01-20-10
PER CURIAM. Yellow Thunder Corporation appeals a judgment dismissing its third-party complaint against Star Pipe Products, Inc., as untimely. We conclude Yellow Thunder's third-party complaint was not timely filed under WIS. STAT. § 803.05(1) and affirm.
Torts/ Towns & Cities/ Negligence/ Nuisance/ Damages/ Roads/ Government Immunity/ Administrative Code

Glaum v. City of Hayward
Docket: 2009AP000021 01-20-10
PER CURIAM. William and Martha Glaum appeal a summary judgment dismissing tort claims against the City of Hayward arising out of allegations of runoff and flooding on the Glaums' property due to the City's road enlargement and storm sewer work. The Glaums insist the circuit court erred by concluding their claims were barred by governmental immunity. We reject the Glaums' arguments and affirm.


Week of January 18, 2010 Supreme Court Cases Attorney Discipline Office of Lawyer Regulation v. Mauch Docket: 2009AP000214 01-21-10 PER CURIAM. We review the report of Referee James G. Curtis recommending this court suspend Attorney Bartley G. Mauch's license to practice law for six months and impose the costs of this disciplinary proceeding on him. No appeal has been filed so the court considers this matter pursuant to SCR 22.17(2). Attorney Discipline Office of Lawyer Regulation v. Omdahl Docket: 2009AP000957 01-21-10 PER CURIAM. We review a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Torger G. Omdahl purportedly under SCR 22.12 for the imposition of a public reprimand as reciprocal discipline for two public reprimands that Attorney Omdahl received in the state of Michigan. The first public reprimand was issued in November 2000, and the second occurred in December 2008. Court of Appeals Cases Criminal Law/ Evidence/ Sentencing/ Judicial Authority-Discretion/ Elements Of Crime State v. Becerra Docket: 2009AP000600 01-20-10 CURLEY, P.J. Jesse Becerra appeals from the judgment, entered following a jury trial, convicting him of battery, and from the judgment convicting him of kidnapping and false imprisonment, contrary to WIS. STAT. §§ 940.19(1), 940.31(1)(a) and 940.30 (2007-08). Becerra also appeals from the order denying his postconviction motion. He argues on appeal that there was insufficient evidence to convict him of the crimes of kidnapping and false imprisonment and that the trial court erroneously exercised its discretion when it imposed a twenty-year sentence. Because the State proved all the elements of kidnapping and false imprisonment and the trial court properly exercised its discretion at sentencing, we affirm. Criminal Law/ Jury Bias/ Evidence/ Batson Challenge/ Timeliness/ Miranda/ Constitutional Law/ Ineffective Assistance Of Counsel State v. Blunt Docket: 2008AP003204 01-20-10 CURLEY, J. James T. Blunt, pro se, appeals the judgment, entered following a jury trial, convicting him of first-degree intentional homicide while armed with a dangerous weapon, as a party to the crime, contrary to WIS. STAT. §§ 940.01(1)(a), 939.63, and 939.05 (2005-06). On appeal, Blunt claims that the trial court erred when it denied his motion to suppress; that there was insufficient evidence to support his conviction; and that there was racial discrimination in the jury selection process preceding his trial. Because the trial court's findings of fact during the suppression motion were not clearly erroneous; because the evidence was sufficient to support Blunt's conviction; and because Blunt forfeited his Batson challenge by failing to make a timely objection, we affirm. Criminal Law/ Plea Agreement Breach/ New Factor/ Sentencing/ Procedure State v. Gray Docket: 2009AP000977 01-20-10 PER CURIAM. Kenneth M. Gray, pro se, appeals an order denying his motion to modify his sentence. He argues that: (1) the State breached the plea bargain; (2) the State used a falsified petition to waive him to adult court; and Criminal Law/ Sentencing/ Constitutional Law Mootness/ Judicial Authority-Discretion State v. Morris Docket: 2009AP000436 01-20-10 PER CURIAM. Deon M. Morris has appealed from a judgment convicting him of uttering a forgery, party to the crime, in violation of WIS. STAT. § 943.38(2) (2007-08), and sentencing him to one year of initial confinement and two years of extended supervision, consecutive to another sentence he was serving for a Milwaukee County offense. Morris also appeals from an order denying his motion for postconviction relief. Criminal Law/ Sentencing/ Restitution/ Probation/ Good Faith/ Judicial Authority-Discretion State v. Genge Docket: 2009AP001379 01-20-10 ANDERSON, J. Eric D. Genge takes issue with the circuit court's finding that paying $1329.42 towards court ordered restitution of $20,206.37 over a two-year period was not a good faith effort to pay restitution and the ensuing decision to extend his probationary term an additional two years. We affirm, because during his two years on probation, Genge failed to meet the rehabilitative goals of probation. Default Judgment/ Reopen Kopp v. Delaney Docket: 2009AP000453 01-21-10 PER CURIAM. John Delaney appeals a default judgment which was entered against him after he failed to appear at a scheduling conference. We affirm for the reasons discussed below. DNR/ Roads & Highways/ Regulations/ Regulations Construction-Interpretation/ Public Trust Doctrine/ Timeliness/ Statutes/ Jurisdiction Citizens For U, Inc. v. D.N.R. Docket: 2008AP002537 01-21-10 Recommended for Publication VERGERONT, J. Citizens for U, Inc., challenges the Department of Natural Resources' (DNR) decision approving the petition to abandon a portion of County Highway U that provides public access to the Wisconsin River. Citizens for U contends the replacement public access is not equivalent or superior to that abandoned and therefore DNR's own regulations prohibit approving the petition. The circuit court affirmed DNR's decision and Citizens for U appeals. Employment Law/ Contracts/ Non-Compete Clauses/ Statutes/ Statutory Construction-Interpretation Frank D. Gillitzer Electric v. Andersen Docket: 2009AP000939 01-20-10 Recommended for Publication BRENNAN, J. Frank D. Gillitzer Electric Co., Ltd. ("Gillitzer"), appeals the granting of summary judgment, dismissing all of Gillitzer's claims against its former employees: Marco L. Andersen, James J. Mickol, John J. Mickol, Kyle Wolf and Kevin Ihde (collectively referred to as the "former employees"). The circuit court granted the former employees' summary judgment motion on the grounds that the training reimbursement provision of the parties' "Educational And Non-Competition Agreement" (the "Agreement"), requiring the former employees to repay the cost of their apprenticeship program, was unenforceable because it was: (1) a restrictive covenant under WIS. STAT. § 103.465 (2007-08) and (2) inextricably linked to the invalid non-compete provision. We conclude that the reimbursement provision is enforceable because it is not textually linked or intertwined with the Agreement's concededly invalid non-compete provision. Accordingly, we reverse the order of the circuit court. Family Law/ Divorce/ Child Support/ Child Support Modification/ Evidence Reiser v. Benvenuto Docket: 2009AP000117 01-20-10 PER CURIAM. Anthony C. Benvenuto has appealed from an order denying his motion for a reduction in child support for his two sons, and requiring him to pay $4015 in orthodontia expenses. We affirm the trial court's order. Family Law/ Divorce/ Property Division/ Gifts Rayala v. Rayala Docket: 2008AP001943 01-20-10 PER CURIAM. Elizabeth Rayala appeals the property division portion of a judgment dissolving her marriage to Daniel Rayala. Specifically, Elizabeth argues the trial court erred by concluding Daniel's partnership interest in Rayala Cranberry Company is nonmarital property. Elizabeth also claims the trial court erred by failing to include earnings arising from the 2006 harvest in the marital estate. We reject Elizabeth's arguments and affirm the judgment. Juvenile Law/ Criminal Law/ Delinquent/ Procedure/ Statutory Time Limits/ Statutes/ Statutory Construction-Interpretation State v. Robert H. Docket: 2009AP001975 01-20-10 PETERSON, J. Robert H. appeals an order finding him delinquent. Robert argues the circuit court incorrectly concluded the State complied with the time limits for requesting and filing a delinquency petition. As a result, he argues the court was required to dismiss the petition. We agree with Robert that the State did not comply with the time limits, but we do not agree this obligated the court to dismiss his petition. Therefore, we reverse and remand for the circuit court to determine the proper remedy for the State's failure to timely request and file a delinquency petition. New Trial/ Dental Malpractice/ Evidence/ Damages/ Verdicts/ Burden Of Proof Forbes v. Stoeckl Docket: 2009AP000381 01-20-10 PER CURIAM. Tammy Forbes appeals the judgment entered upon a unanimous jury verdict dismissing her dental malpractice claim against Clemens K. Stoeckl, D.D.S., d/b/a Stoeckl Family Dentistry. Forbes contends she is entitled to a new trial in the interest of justice because the verdict is contrary to the great weight of the evidence, and because the jury's failure to award her any damages renders the verdict perverse. We disagree and affirm. OWI/ Ineffective Assistance Of Counsel/ Evidence/ Evidence Ruling/ Error/ Statutes/ Statutory Construction-Interpretation State v. Miller Docket: 2009AP001509 01-20-10 CURLEY, P.J. Jerry L. Miller appeals the judgment, entered following a jury trial, convicting him of operating a motor vehicle while under the influence of an intoxicant, third offense, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2) (2007-08). He also appeals the denial of his postconviction motion. Miller argues that his trial attorney was ineffective because he "failed to take reasonable steps to locate an essential defense witness [Jamie Peaslee] and serve him with a subpoena" for his jury trial, thus preventing the jury from hearing from two witnesses who would have testified that Peaslee, who accompanied Miller the night of his arrest, admitted to them that he was the actual driver of the truck. Miller also argues that the postconviction court erred in denying his postconviction motion when it reversed the finding of the trial court and determined that Miller's trial attorney's performance was not deficient in his attempt to subpoena Peaslee, but nevertheless refused to revisit the trial court's determination that the admissions allegedly made by Peaslee to two witnesses were ambiguous, were not statements against penal interest and were uncorroborated. WIS. STAT. § 908.045(4). OWI/ Prohibited Alcohol Concentration (PAC)/ Penalty Enhancer/ Traffic Stops/ Michigan Convictions State v. Puchacz Docket: 2009AP000840 01-20-10 Recommended for Publication ANDERSON, J. Stanley W. Puchacz appeals from a judgment convicting him of operating a motor vehicle while under the influence of alcohol (OWI) and with a prohibited alcohol concentration (PAC), both as fifth offenses. Puchacz argues that the circuit court erred when it denied his motion to strike three of his four prior OWI offenses, all from Michigan, so they could not be used for sentence enhancement. We do not agree. Puchacz additionally argues that the circuit court erred in denying his motion to suppress all evidence obtained as a result of the traffic stop. Again, we do not agree. We affirm. OWI/ Prohibited Alcohol Concentration (PAC)/ Traffic Stops/ Evidence/ Reasonable Suspicion Fond Du Lac County v. Beaty Docket: 2009AP001789 01-20-10 Fond Du Lac County v. Beaty Docket: 2009AP001790 01-20-10 Fond Du Lac County v. Beaty Docket: 2009AP001791 01-20-10 ANDERSON, J. In her appeal from a conviction for operating a motor vehicle with a prohibited alcohol concentration, in violation of WIS. STAT. § 346.63(1)(b), Jennifer E. Beaty challenges the arresting officer's traffic stop for operating her vehicle left of center. She contends that her slight swerve over the center line for two or three seconds does not constitute erratic driving that would support a traffic stop. We disagree, because a slight swerve over the center line is enough to provide the arresting officer with probable cause to believe that Beaty was operating left of center. OWI/ Reasonable Suspicion/ Probable Cause To Arrest/ Evidence/ Regulations State v. Tadych Docket: 2009AP001911 01-20-10 NEUBAUER, P.J. Bradley J. Tadych appeals from a judgment of conviction for operating while under the influence, second offense, contrary to WIS. STAT. § 346.63(1)(a). Tadych raises two challenges on appeal. First, Tadych contends that the trial court erred in denying his motion to suppress evidence based on lack of sufficient probable cause to believe Tadych had violated § 346.63 prior to requesting preliminary breath test (PBT). Second, Tadych contends that the results of the preliminary breath test were erroneously admitted into evidence at the motion hearing. We conclude that the arresting officer had the requisite degree of probable cause to request a PBT. We further conclude that the results of the PBT were appropriately admitted for purposes of establishing probable cause to arrest. We therefore uphold the trial court's ruling and affirm the judgment. Property/ Roads & Highways/ Towns & Cities/ DOT/ Damages/ Timeliness/ Statutes Heling v. Village of Howards Grove Docket: 2009AP000439 01-20-10 PER CURIAM. David Heling and the Heartland Hills Golf Course appeal from a judgment dismissing their claim for damage to the land owned and occupied by the golf course allegedly caused by the installation of a storm sewer in the reconstruction of a road. The circuit court determined that under WIS. STAT. § 88.87 (2007-08), Heling's claims against the Village of Howards Grove and the Wisconsin Department of Transportation are time barred. We affirm the judgment of the circuit court. Small Claims/ Towns & Cities/ Taxation/ Frivolous/ Good Faith/ Attorney Fees/ Sanction/ Judicial Authority-Discretion Knuth v. Town of Cedarburg Docket: 2009AP001485 01-20-10 ANDERSON, J. Gordon P. Knuth contests the circuit court's determination that his small claims action was frivolous and awarding the Town of Cedarburg $4670.13 in actual attorney fees, costs and disbursements. Knuth is not appealing the circuit court's decision to dismiss the small claims case. "Rather [his] appeal IS about the ruling that the claim is 'Frivolous' and that a money judgment of $4670.13 as awarded to the Town of Cedarburg is reasonable." He asserts that the underlying action was not frivolous because his actions were not "intentional harassment." He also contends that the Town failed to prove the amount of the actual attorney fees and that the fees were reasonable. Summary Judgment/ Contracts/ Evidence/ Receivership/ Statutes Marshall & Ilsley Bank v. New England Builders Docket: 2009AP000093 01-20-10 BRENNAN, J. New England Builders, Inc. ("New England") appeals a summary judgment granted to M&I Marshall & Ilsley Bank ("M&I"). New England argues that material issues of fact exist regarding whether Advance Mechanical Contractors, Inc. ("AMC") fully performed its obligations under contracts with New England. We agree, reverse the circuit court's decision, and remand the case back to the circuit court. Summary Judgment/ Towns & Cities/ Counties/ Ordinances/ Zoning/ Procedure/ Timeliness/ Statutes Town of Rice Lake v. County of Barron Docket: 2009AP000647 01-20-10 PER CURIAM. The Town of Rice Lake appeals a summary judgment dismissing its request for a declaration invalidating an amendment to a Barron County zoning ordinance. The Town argues it followed the statutory procedure for vetoing the ordinance change. Because we conclude the Town substantially complied with this procedure, we reverse and remand with directions to grant summary judgment in favor of the Town. Third-Party Complaints/ Timeliness/ Statutes/ Statutory Construction-Interpretation/ Procedure/ Judicial Authority-Discretion Yellow Thunder v. Star Pipe Products Docket: 2008AP002161 01-20-10 PER CURIAM. Yellow Thunder Corporation appeals a judgment dismissing its third-party complaint against Star Pipe Products, Inc., as untimely. We conclude Yellow Thunder's third-party complaint was not timely filed under WIS. STAT. § 803.05(1) and affirm. Torts/ Towns & Cities/ Negligence/ Nuisance/ Damages/ Roads/ Government Immunity/ Administrative Code Glaum v. City of Hayward Docket: 2009AP000021 01-20-10 PER CURIAM. William and Martha Glaum appeal a summary judgment dismissing tort claims against the City of Hayward arising out of allegations of runoff and flooding on the Glaums' property due to the City's road enlargement and storm sewer work. The Glaums insist the circuit court erred by concluding their claims were barred by governmental immunity. We reject the Glaums' arguments and affirm.		Links WisBar.org WisBar Legal Research/Fastcase CaseLaw Express Archives Also of Interest Wisconsin Supreme Court adopts amended recusal rules The Supreme Court clarified some language in the recusal rules it had first adopted last fall. Under the new rules, a judge is permitted to sit on cases involving their campaign contributors or sponsors of independent campaign spending. More Employment contract�s reimbursement provision upheld despite invalid non-compete clause The Wisconsin Court of Appeals evaluated an employment contract under a long-standing test for the enforceability of contract clauses and a new test announced last year by the Wisconsin Supreme Court. More Business guilty of UPL in Ohio now soliciting clients in Wisconsin with impunity An Indiana trust mill that admitted last year to engaging in the unauthorized practice of law in Ohio is now actively soliciting clients in Wisconsin for its estate planning services. More Taxation Law Section Requests Amicus Curiae Brief Pursuant to Article VII, Section 2(a) of the State Bar of Wisconsin Bylaws, the Taxation Section has submitted a request to the Board of Governors for authorization to file an amicus curiae brief in the pending Wisconsin Supreme Court case of Metropolitan Associates, LP v. City of Milwaukee. More Court�s failure to ask defendant about right to testify remedied at evidentiary hearing A court may belatedly determine the validity of a criminal defendant�s decision not to testify at an evidentiary hearing, said the Wisconsin Court of Appeals. The court disagreed that only a new trial can remedy the lack of a colloquy. More

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