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Week of January 25, 2010
Court of Appeals Cases
Contracts/ Claim Preclusion/ Replevin Larson v. RossDocket: 2009AP002049 01-28-10 PER CURIAM. Terrance Larson appeals an order dismissing his complaint against Timothy Ross. The circuit court held that this action was barred by the doctrine of claim preclusion. We agree, and therefore affirm.
Corporations/ Liability/ Officers/ Contracts/ Receivership/ Fiduciary Duty/ Creditor/ Debtor Polsky v. VirnichDocket: 2007AP000203 01-28-10 Recommended for PublicationLUNDSTEN, J. Daniel Virnich and Jack Moores appeal the circuit court's judgment against them on a $6.5 million jury verdict in favor of Communications Products Corporation. The two men were officers of Communications Products, as well as its sole owners. The claims in this action were brought by a receiver, alleging that Virnich and Moores breached their fiduciary duties to the corporation. Virnich and Moores argue that the receiver's claims are barred under Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298. We agree that Beloit Liquidating controls and, accordingly, reverse the judgment against Virnich and Moores and remand with directions to the circuit court to dismiss the receiver's claims against them.
Criminal Law/ Constitutional Law/ OWI/ Traffic Stops/ Motor Vehicle Law/ Evidence/ Consent To Search/ Search & Seizure/ Evidence Ruling State v. HolmDocket: 2009AP001053 01-27-10
State v. Holm
Docket: 2009AP001054 01-27-10
State v. Holm
Docket: 2009AP001055 01-27-10
State v. Holm
Docket: 2009AP001056 01-27-10 SNYDER, J. Daniel J. Holm appeals from judgments convicting him of possession of marijuana and operating a motor vehicle while under the influence of an intoxicant. He contends that the circuit court erred when it denied his motion to suppress evidence obtained during the investigative stop. He argues that the police officer did not articulate with specificity the facts prompting the traffic stop and that he did not voluntarily give his consent to the subsequent search of his vehicle. We affirm the judgments.
Criminal Law/ Evidence/ Evidence Ruling/ Attorney/ Constitutional Law-Due Process/ Time Limits On Arguments/ Procedure State v. WilliamsDocket: 2009AP000205 01-26-10 KESSLER, J. Roosevelt M. Williams appeals from a judgment of conviction for second-degree sexual assault with use of force, false imprisonment and battery, contrary to WIS. STAT. §§ 940.225(2)(a), 940.30 and 940.19(1) (2007-08). Williams argues that he is entitled to a new trial because the trial court: (1) erroneously admitted hearsay evidence from the victim's friend concerning what the victim told him about the assault; and (2) allowed trial counsel only thirty minutes to present his closing argument, thereby denying Williams due process and a fair trial. We reject Williams's arguments and affirm the judgment.
Criminal Law/ Ineffective Assistance Of Counsel/ New Evidence/ New Trial State v. James H.P.Docket: 2007AP002670 01-28-10 PER CURIAM. James H.P., Jr. appeals a judgment, entered after a court trial, convicting him of repeated sexual assault of the same child while as a person responsible for the child's welfare, contrary to WIS. STAT. §§ 948.025(1) and (2m) (2007-08). James also challenges the denial of his motion for postconviction relief. James seeks a new trial on grounds his trial counsel was ineffective by failing to call him as a witness during a suppression motion hearing. James also contends there is newly discovered evidence justifying a new trial. We reject James's arguments and affirm the judgment and order.
Criminal Law/ Ineffective Assistance Of Counsel/ Right To Counsel / Pleas/ Sentencing Credit/ Pro Se/ Repeat Offender/ Sentencing/ Present In Court State v. PhifferDocket: 2009AP000339 01-28-10 PER CURIAM. Earl D. Phiffer appeals a judgment of conviction for one count each of obstructing an officer, fleeing an officer, and second-degree recklessly endangering safety as a repeat offender. He also appeals the order denying his motion for postconviction relief. Phiffer argues that the circuit court erred by not allowing him to be present at his trial, by not allowing him to hire an attorney to represent him at trial, by not allowing him to represent himself at trial, by allowing the State to amend the criminal complaint after he entered his plea, by not properly applying a penalty enhancer, and by not granting him sentence credit for time he spent in jail while this matter was pending. He also alleges ineffective assistance of counsel. Because we conclude that none of these issues has merit, we affirm the judgment and order.
Criminal Law/ Ineffective Assistance Of Counsel/ Statutes/ Evidence State v. TammsDocket: 2008AP002968 01-27-10 NEUBAUER, P.J. Ross J. Tamms appeals from an order denying his motion for postconviction relief based on his allegation of ineffective assistance of trial counsel. Tamms was convicted of stalking, as a repeater, in violation of WIS. STAT. § 940.32(2) and (3)(b) (2001-02). Tamms argues that his trial counsel was ineffective in three respects: (1) counsel failed to object to the application of a revised version of Wisconsin's antistalking statute to conduct occurring prior to the effective date of the revision; (2) counsel failed to offer any argument relating to the victim's lack of knowledge that Tamms had driven by her apartment--an act constituting a basis for the fulfillment of the "course of conduct" requirement under the stalking statute; and (3) counsel failed to object to the introduction of evidence relating to an act not mentioned in the complaint and outside the time frame for the course of conduct pled in the complaint and failed to object to the State's request to enlarge the course of conduct time frame so as to include this act. Tamms argues that counsel's representation was deficient and prejudicial and the trial court erred in denying his motion for postconviction relief. We reject Tamms' arguments and affirm the order.
Criminal Law/ Jury Instructions/ Juries/ Ineffective Assistance Of Counsel/ Procedure State v. BurrisDocket: 2009AP000956 01-26-10 KESSLER, J. Donovan M. Burris appeals from a judgment of conviction for first-degree reckless injury while armed and being a felon in possession of a firearm, contrary to WIS. STAT. §§ 940.23(1)(a), 939.63 and 941.29(2)(a) (2007-08), and from an order denying his motion for postconviction relief. Although Burris appealed from his entire judgment of conviction, he presents no argument concerning his conviction for being a felon in possession of a firearm. Therefore, we affirm that conviction. See State v. Johnson, 184 Wis. 2d 324, 344, 516 N.W.2d 463 (Ct. App. 1994) ("On appeal, issues raised but not briefed or argued are deemed abandoned."). With respect to his conviction for first-degree reckless injury, Burris offers four arguments in support of his request that we reverse his conviction and remand for a new trial: (1) the trial court erroneously answered the jury's question concerning whether after-the-shooting conduct could be considered in a manner which misled the jury; (2) the trial court erred when it allowed the State to cross-examine Burris on an irrelevant issue and then also allowed the State to present rebuttal evidence on that issue; (3) trial counsel provided ineffective assistance in several respects; and (4) a new trial is warranted in the interest of justice. We conclude that Burris is entitled to a new trial based on his first argument and, therefore, we do not consider the other issues. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ("[C]ases should be decided on the narrowest possible ground."). We reverse Burris's conviction for first-degree reckless injury and remand for further proceedings.
Criminal Law/ New Trial/ Interest Of Justice/ Evidence/ Prosecutorial Closing State v. BurnsDocket: 2009AP000118 01-28-10 VERGERONT, J. Alan Burns appeals the judgment convicting him of ten counts of second degree sexual assault of a child under sixteen years of age, in violation of WIS. STAT. § 948.02 (2007-08), and the order denying his postconviction motion for a new trial. He asks this court to exercise our discretionary power of reversal under WIS. STAT. § 752.35 because, he asserts, the real controversy was not fully tried. We conclude that the real controversy was fully tried and we therefore affirm.
Criminal Law/ New Trial/ Resentencing/ Appeal Barred/ Ineffective Assistance Of Counsel/ Judicial Authority-Discretion State v. MascarettiDocket: 2008AP002291 01-27-10 PER CURIAM. John D. Mascaretti has appealed from orders denying his motion and amended motion for postconviction relief under WIS. STAT. § 974.06 (2007-08). We affirm the orders.
Criminal Law/ Pleas/ Probable Cause To Arrest/ Evidence/ Warrants/ Search & Seizure State v. HowellDocket: 2008AP003116 01-26-10 CURLEY, P.J. Deon Bernard Howell appeals from an amended judgment of conviction entered after he pled guilty to possession of cocaine (more than one gram but less than five grams) with intent to deliver, contrary to WIS. STAT. § 961.41(1m)(cm)1r. (2007-08). Howell pled guilty after the trial court denied his suppression motion.
Criminal Law/ Restitution/ Statutes State v. PiotterDocket: 2009AP002005 01-26-10 FINE, J. Brian Scott Piotter appeals the judgment entered on his guilty plea to unlawful entry into a locked building. See WIS. STAT. § 943.15(1). He also appeals the circuit court's order denying his motion for postconviction relief. He contends that the circuit court erred by requiring him to pay $2,230 as restitution. We affirm in part and reverse in part.
Criminal Law/ Sentencing/ Judicial Authority-Discretion State v. AdellDocket: 2009AP000018 01-26-10 PER CURIAM. Mark A. Adell appeals from orders denying his related motions for a redetermination of his eligibility for the Earned Release Program ("Program") and for reconsideration. The issues are whether the trial court erroneously exercised its discretion when it found him ineligible for the Program at sentencing, and when it denied his subsequent motions in which he belatedly admitted a substance abuse problem, contradicting his denial of that problem at sentencing. We conclude that Adell's current claim, contradicting his earlier one, is barred by issue preclusion and by judicial estoppel; consequently, we do not address the trial court's exercise of discretion or its denial of his new sentencing factor claim. Therefore, we affirm.
Criminal Law/ Sentencing/ Judicial Authority-Discretion State v. BrownDocket: 2009AP000427 01-26-10 PER CURIAM. Keith Caviar Brown appeals from a judgment of conviction entered upon his guilty pleas to one count of possessing a firearm as a felon and one count of felony bail jumping. He also appeals from an order denying his postconviction motion. The only issue is whether the circuit court erroneously exercised its sentencing discretion. We affirm.
Defamation/ Invasion Of Privacy/ Statute Of Limitations/ Failure To State A Claim Ladd v. UeckerDocket: 2009AP000596 01-27-10 Recommended for PublicationSNYDER, J. Ann E. Ladd appeals the dismissal of her complaint and amended complaint against Robert G. Uecker and the Milwaukee Brewers Baseball Club, L.P. The court granted Uecker's and the Brewers' motion to dismiss because the court concluded that, as to most of the defamation and invasion of privacy claims, the complaint was filed beyond the statute of limitations, and the remaining allegations failed to state a claim because they involved statements protected by various privileges. We agree and affirm.
Employment Law/ Unemployment Compensation/ LIRC/ Evidence/ Statutes Mervosh v. L.I.R.C.Docket: 2009AP000271 01-26-10 BRENNAN, J. Simone N. Mervosh ("Mervosh") appeals from an order affirming a Labor and Industry Review Commission ("the Commission") decision that denied her claim for unemployment compensation. Mervosh argues that the Commission erred in reversing the hearing examiner's factual findings without adequate explanation and concluding that Mervosh did not have "good cause attributable to the employ[er]" for terminating her employment, pursuant to WIS. STAT. § 108.04(7)(b) (2007-08). We affirm.
Family Law/ Divorce/ Marital Property/ Division Of Marital Property/ Judicial Authority-Discretion Bryson v. BrysonDocket: 2008AP002930 01-27-10 PER CURIAM. Neal Bryson appeals from a judgment of divorce from Kiyomi Bryson. He challenges the inclusion of military disability annuity payments in his gross income, the failure to include a bank account Kiyomi brought to the marriage in the property division, the valuation of certain real property, the inclusion of monies gifted to his parents in the property division, and the correction of the judgment after entry. We modify the judgment with respect to the premarital bank account, but otherwise conclude that the circuit court's remaining findings are not clearly erroneous and that it properly exercised its discretion. We affirm the modified judgment.
Family Law/ Divorce/ Stipulation/ Child Support Moore v. KerleeDocket: 2008AP002853 01-27-10 PER CURIAM. Thomas W. Moore challenges the circuit court's determination that he accumulated a child support arrearage to his former spouse, Kathleen M. Kerlee. Moore argues that the parties' April 2005 stipulation eliminated his child support obligation. We conclude that the stipulation was ambiguous, and we agree with the circuit court that the parties did not intend to eliminate Moore's monthly child support obligation. We affirm the circuit court order.
Family Law/ TPR/ Statutes/ Judicial Authority-Discretion State v. Marnika E.Docket: 2009AP002403 01-26-10
State v. Marnika E.
Docket: 2009AP002404 01-26-10 KESSLER, J. Marnika E. appeals from orders terminating her parental rights to her sons, Trevion E. and Traylon E. Marnika seeks a new dispositional hearing on grounds that the circuit court erroneously exercised its discretion by terminating her parental rights without addressing one of the factors enumerated in WIS. STAT. § 48.426(3) (2007-08). We affirm because we conclude that the circuit court considered all the requisite statutory factors and properly exercised its discretion.
Frivolous Claims/ Attorney Fees/ Statutes/ Contracts Kramschuster v. AckermanDocket: 2009AP001002 01-26-10 BRENNAN, J. Stephanie M. Kramschuster, n/k/a Stephanie Przytarski, pro se, appeals a judgment awarding Dr. Marc J. Ackerman $1855.61 in attorney fees based on the trial court's finding that Przytarski's $1000 claim was frivolous. Because the trial court did not, and could not, make the safe harbor finding required by WIS. STAT. § 802.05(3), we conclude that the trial court erred. Przytarski also claims the trial court erred in denying her motion to reopen; however, the record on appeal shows no evidence that the trial court denied a motion to reopen or that Przytarski even filed one. Accordingly, we reverse and remand to the trial court for further proceedings.
OWI/ Evidence/ Constitutional Law/ Right To Defense/ Judicial Authority-Discretion State v. MathewsDocket: 2009AP000478 01-28-10 LUNDSTEN, J. Megan Mathews appeals a judgment convicting her, after a jury trial, of operating a motor vehicle while under the influence of an intoxicant, as a second offense. She argues that she was deprived of her constitutional right to present a defense when the circuit court excluded certain evidence relating to the body's absorption and elimination of alcohol. I reject her argument and affirm the judgment.
OWI/ Traffic Stops/ Evidence/ Arrest/ Reasonable Suspicion/ Search & Seizure State v. LanserDocket: 2009AP002108 01-27-10 BROWN, C.J. Ronald M. Lanser pled no contest to and was convicted of operating a vehicle while intoxicated (2nd offense). He did so after his motion to suppress, arguing that the sheriff's deputy lacked reasonable suspicion to stop him, was denied. He contends on appeal that the stop occurred after an unreliable, anonymous tip and any information the deputy obtained thereafter cannot be considered. But we agree with the State that information the deputy gained from a voluntary encounter in a grocery store, coupled with the information he had obtained from the tipster and a store clerk, formed the basis for the ultimate seizure. We affirm.
Property/ Zoning/ Counties/ Ordinance/ Shoreline/ Buildings Waupaca County v. BaxDocket: 2009AP001406 01-28-10 LUNDSTEN, J. Waupaca County appeals the circuit court's order dismissing a citation issued to Jan Bax for a zoning violation. I reverse the order of dismissal and remand for further proceedings.
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