CaseLaw Express 02/22/2010 - State Bar of Wisconsin

Court of Appeals Cases

Complaints/ Timeliness/ Statute Of Limitations/ Personal Injury/ Relation Back Doctrine

Tews v. N.H.I.
Docket: 2009AP000828 02-18-10
PER CURIAM. Ryan Tews appeals a judgment dismissing his complaint against Wisconsin Electric Power Company. The court dismissed the complaint as untimely, under the applicable statute of limitations. We affirm.
Criminal Law/ Appeal Barred/ Statute

State v. Covington
Docket: 2009AP001093 02-17-10
PER CURIAM. Julius M. Covington, pro se, appeals from an order that denied his postconviction motion filed pursuant to WIS. STAT. § 806.07(1)(d) (2007-08). The circuit court determined that § 806.07 is inapplicable to a criminal defendant's postconviction challenges and that Covington's claim is procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree and affirm.
Criminal Law/ Evidence/ Statutes/ Statutory Construction-Interpretation

State v. Schroeder
Docket: 2008AP002810 02-17-10
PER CURIAM. Ronald Schroeder appeals a judgment convicting him of, among other things, two counts of sexual assault and twenty-seven counts of capturing a nude representation. Schroeder argues (1) the sexual assault statute is unconstitutionally overbroad, and (2) there was insufficient evidence to prove the nude representation charges. We reject both arguments and affirm.
Criminal Law/ Miranda/ Sentencing/ Judicial Authority-Discretion

State v. Pugh
Docket: 2009AP001313 02-17-10
CURLEY, P.J. Antonio Pugh appeals the judgment, entered following a jury trial, convicting him of armed robbery with threat of force, as a habitual criminal, contrary to WIS. STAT. §§ 943.32(2) and 939.62 (2007-08). Pugh also appeals from the order denying his postconviction motion. He argues that the trial court erroneously exercised its discretion both when denying his motion to suppress his statements given during the booking process and at sentencing. When Pugh admitted his real name was Antonio Pugh and volunteered that he was wanted for armed robbery, the booking process was ongoing and the routine booking exception applied so that Miranda warnings were not required. In addition, the trial court properly exercised its discretion at sentencing. We affirm.
Criminal Law/ Plea Agreement Breach/ Prosecutorial Remarks/ Constitutional Law-Due Process/ Ineffective Assistance Of Counsel

State v. Duckett
Docket: 2009AP000958 02-17-10
Recommended for Publication
BRENNAN, J. Robert L. Duckett appeals a judgment of conviction for first-degree reckless injury while armed, and an order denying his postconviction motion. Duckett argues that the prosecutor's remarks during the sentencing hearing breached the parties' plea agreement, in violation of his right to due process. We affirm the circuit court.
Criminal Law/ Pleas/ Plea Withdrawal/ Resentencing/ Knowingly, Voluntarily & Intelligently/ Plea Colloquy

State v. Robert L.H.
Docket: 2009AP000629 02-18-10
PER CURIAM. Robert L.H. appeals an order denying his WIS. STAT. § 974.06 (2007-08) motion for postconviction relief. The circuit court denied relief after an evidentiary hearing. The issues are whether Robert is entitled to withdraw his plea and in the alternative, whether he is entitled to a new sentencing hearing. We conclude that he is entitled to neither, and therefore affirm.
Criminal Law/ Right To Counsel/ Right To Presentencing/ Ineffective Assistance Of Counsel/ Evidence/ Harmless Error

State v. Carter
Docket: 2009AP000378 02-17-10
Recommended for Publication
CURLEY, P.J. Brandon J. Carter appeals from a judgment convicting him of being a felon in possession of a firearm and of disorderly conduct while armed, contrary to WIS. STAT. §§ 941.29(2)(a), 947.01, and 939.63 (2005-06). He also appeals from the trial court's order denying his motion for postconviction relief. Carter argues that he was denied his right to counsel and his right to be present when the trial court took sworn testimony from a witness during an ex parte hearing and later allowed the testimony to be introduced during his jury trial to impeach the witness. In addition, Carter contends that he was denied the effective assistance of trial counsel when counsel failed to object to testimony during his jury trial that he was known to carry firearms.
Criminal Law/ Right To Public Trial/ Ineffective Assistance Of Counsel

State v. Herrera
Docket: 2009AP000590 02-17-10
PER CURIAM. Jason Herrera appeals a judgment convicting him of one count of physical abuse of a child and an order denying his postconviction motion. Herrera argues (1) he was deprived of his right to a public trial and (2) he received ineffective assistance of trial counsel. We affirm.
Criminal Law/ Sentencing Credit/ Statutes

State v. Brown
Docket: 2009AP000896 02-17-10
Recommended for Publication
BROWN, C.J. This is a sentence credit case resembling the Alphonse and Gaston cartoon. More precisely, when an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, should the circuit court grant sentence credit in Wisconsin for the time the offender spent in presentence confinement in Wisconsin? Or, may the Wisconsin court deny credit on the grounds that the foreign sovereignty may yet act to give credit in that state and, if it does, then the offender would be receiving double credit? We conclude that until the other sovereignty has actually acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of "double credit" is not ripe. So the Wisconsin court, the only court the issue of credit is before, should grant credit. Otherwise, if the other sovereignty never acts, the offender would not receive credit where credit is due. We reverse because the trial and postconviction court in this case refused to order sentence credit.
Employment Law/ LIRC/ Unemployment Insurance/ Parties/ Procedure

Willet v. L.I.R.C.
Docket: 2008AP003073 02-17-10
PER CURIAM. Stephen D. Willett, S.C. appeals an order dismissing a complaint seeking judicial review of a Labor and Industry Review Commission decision. Claiming that it did not fail to name a necessary adverse party as a defendant in the matter, Willett contends the circuit court erred by dismissing the complaint. We reject Willett's argument and affirm the order.
Family Law/ Divorce/ Property/ Division/ Judicial Authority-Discretion

Kundinger v. Kundinger
Docket: 2009AP001456 02-17-10
PER CURIAM. Larry Kundinger appeals a judgment of divorce. Larry's principal argument is that property he brought into the marriage is not subject to division. We reject his arguments and affirm.
Family Law/ TPR/ Forfeiture Of Right To Jury/ Statutes/ Statutory Construction-Interpretation/ Notice/ Default Judgment/ Procedure

State v. Jennifer M.
Docket: 2009AP001964 02-19-10
BRENNAN, J. Luis G., the father of Jenalyn G., appeals both the trial court's judgment, terminating his parental rights to Jenalyn (born 6/20/05), and the trial court's order on Luis's motion for post-judgment relief, determining that Luis had forfeited his right to a jury trial on the abandonment ground. Luis argues that the trial court erred under WIS. STAT. § 48.422 in determining that he forfeited his right to a jury trial on the original abandonment count and in not re-advising him of his right to a jury trial upon the filing of the amended petition. Because Luis failed to appear at the initial hearing, despite proper service, and remained absent from court for ten more months, I conclude that he forfeited his right to a jury trial on the abandonment ground in both petitions and affirm the judgment and order.
Personal Injury/ Government Immunity/ Schools

Krus v. Community Insurance
Docket: 2009AP000200 02-17-10
PER CURIAM. Abby Krus and her parents appeal a summary judgment dismissing their action against Abby's physical education teacher, Jeanne Druschke, the school district and their insurer. The court concluded Druschke was protected by governmental immunity for her actions that contributed to Abby's injury during a gym class. See WIS. STAT. § 893.80(4). Krus contends two exceptions to governmental immunity apply in this case: (1) the "known and compelling danger" exception; and (2) the ministerial duty exception. Because we conclude neither of these exceptions apply, we affirm the judgment.
Property/ County/ Zoning/ Procedure/ Summary Judgment/ Ordinance/ Statutes

Johnson v. Washburn County
Docket: 2009AP000371 02-17-10
BRUNNER, J. Keith Johnson, Alf Johnson and Dolores Johnson (collectively, the Johnsons) appeal a summary judgment in favor of Washburn County and the Town of Spooner. The Johnsons argue the Town did not properly disapprove of the Johnsons' rezoning application because it did not file a certified copy of a town board resolution with the County as required by WIS. STAT. § 59.69(5)(e)3. We agree the document filed with the County was not a certified copy of a town board resolution and therefore we reverse the judgment.
Property/ Valuation/ Taxation/ Evidence/ Towns & Cities

Elbert v. Town of Erin Prarie
Docket: 2009AP001343 02-17-10
PER CURIAM. Thomas and Kathleen Elbert appeal a circuit court order affirming a Town of Erin Prairie Board of Review determination upholding the assessor's valuation of the Elberts' property. The Elberts argue the Board's determination is contrary to law because the Elberts overcame the presumption of accuracy of the assessment and the assessor failed to present any evidence, and because the Board improperly based its decision on tax equity considerations. We conclude the Board acted contrary to law by rejecting the Elberts' valuation objection due to tax equity concerns, rather than determining whether the assessment reflected the property's fair market value. We therefore reverse and remand and direct the circuit court to remand to the Board for further proceedings. See WIS. STAT. § 70.47(13).
Property/ Zoning/ Permits/ Towns & Cities/ Ordinances

Ottman v. Town of Primrose
Docket: 2008AP003182 02-18-10
DYKMAN, P.J. Steve and Sue Ottman appeal from a circuit court order that dismissed their petition for certiorari review and affirmed a decision by the Town of Primrose to deny the Ottmans' application for building and driveway permits. The Ottmans argue first that we should reframe our common law certiorari review of local government decisions to align with certiorari review of administrative agency decisions, determining our level of deference based on the circumstances surrounding the governmental decision. The Ottmans then contend that we should accord no deference to the Town's decision because it was based on errors of law. We conclude that we are required to apply the well-settled law for certiorari review of local government decisions, and we affirm under that standard of review.
Small Claims/ Default Judgments/ Excusable Neglect/ Sanctions/ Fees

Wolff v. Second Wind Boat Works
Docket: 2008AP001954 02-18-10
HIGGINBOTHAM, J. Second Wind Boat Works, LLC appeals pro se a circuit court order denying its motion to reopen a default judgment entered against it for failure to appear at a scheduling conference in Richard Wolff's small claims action against Second Wind. After finding that Second Wind showed that its failure to appear was the result of excusable neglect, and that default judgment was too harsh a sanction in this case, it nonetheless entered an order denying the motion to reopen after Second Wind failed to comply with certain sanctions imposed by the court. In effect, the default judgment in this case resulted not from Second Wind's failure to appear, but from its failure to comply with certain sanctions.
Summary Judgment/ Towns & Cities/ Ordinances/ Fees

Edgerton Contractors v. City of Wauwatosa
Docket: 2009AP001042 02-17-10
Recommended for Publication
KESSLER, J. The City of Wauwatosa appeals from a summary judgment which refunded to Edgerton Contractors, Inc., nearly $39,000 of the $43,908 inspection fee Edgerton paid pursuant to the City's Consolidated Fee Schedule that was in effect at the time Edgerton obtained an erosion control permit. The City urges us to vacate the judgment and dismiss Edgerton's action because it contends: (1) the fee schedule for erosion control inspection fees was properly adopted; and (2) the fee structure imposing an inspection fee of seven dollars per one thousand square feet of disturbed land area was reasonable. We agree with the City that the fee schedule for erosion control inspection fees was properly adopted, and we therefore reverse the trial court's conclusion to the contrary. As to the reasonableness issue, we conclude that "there are genuine issues of material fact and reasonable alternative inferences that may be drawn from undisputed material facts in this case" which preclude granting summary judgment to either party. See Village of Hobart v. Brown County, 2005 WI 78, ¶20, 281 Wis. 2d 628, 698 N.W.2d 83. Therefore, we reverse the judgment and remand for further proceedings.


Week of February 15, 2010 Supreme Court Cases Attorney Discipline Office of Lawyer Regulation v. Eisenberg Docket: 2007AP001083 02-18-10 PER CURIAM. Attorney Alan D. Eisenberg has appealed from a referee's report concluding that he engaged in professional misconduct and recommending that his license to practice law in Wisconsin be revoked. Court of Appeals Cases Complaints/ Timeliness/ Statute Of Limitations/ Personal Injury/ Relation Back Doctrine Tews v. N.H.I. Docket: 2009AP000828 02-18-10 PER CURIAM. Ryan Tews appeals a judgment dismissing his complaint against Wisconsin Electric Power Company. The court dismissed the complaint as untimely, under the applicable statute of limitations. We affirm. Criminal Law/ Appeal Barred/ Statute State v. Covington Docket: 2009AP001093 02-17-10 PER CURIAM. Julius M. Covington, pro se, appeals from an order that denied his postconviction motion filed pursuant to WIS. STAT. § 806.07(1)(d) (2007-08). The circuit court determined that § 806.07 is inapplicable to a criminal defendant's postconviction challenges and that Covington's claim is procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree and affirm. Criminal Law/ Evidence/ Statutes/ Statutory Construction-Interpretation State v. Schroeder Docket: 2008AP002810 02-17-10 PER CURIAM. Ronald Schroeder appeals a judgment convicting him of, among other things, two counts of sexual assault and twenty-seven counts of capturing a nude representation. Schroeder argues (1) the sexual assault statute is unconstitutionally overbroad, and (2) there was insufficient evidence to prove the nude representation charges. We reject both arguments and affirm. Criminal Law/ Miranda/ Sentencing/ Judicial Authority-Discretion State v. Pugh Docket: 2009AP001313 02-17-10 CURLEY, P.J. Antonio Pugh appeals the judgment, entered following a jury trial, convicting him of armed robbery with threat of force, as a habitual criminal, contrary to WIS. STAT. §§ 943.32(2) and 939.62 (2007-08). Pugh also appeals from the order denying his postconviction motion. He argues that the trial court erroneously exercised its discretion both when denying his motion to suppress his statements given during the booking process and at sentencing. When Pugh admitted his real name was Antonio Pugh and volunteered that he was wanted for armed robbery, the booking process was ongoing and the routine booking exception applied so that Miranda warnings were not required. In addition, the trial court properly exercised its discretion at sentencing. We affirm. Criminal Law/ Plea Agreement Breach/ Prosecutorial Remarks/ Constitutional Law-Due Process/ Ineffective Assistance Of Counsel State v. Duckett Docket: 2009AP000958 02-17-10 Recommended for Publication BRENNAN, J. Robert L. Duckett appeals a judgment of conviction for first-degree reckless injury while armed, and an order denying his postconviction motion. Duckett argues that the prosecutor's remarks during the sentencing hearing breached the parties' plea agreement, in violation of his right to due process. We affirm the circuit court. Criminal Law/ Pleas/ Plea Withdrawal/ Resentencing/ Knowingly, Voluntarily & Intelligently/ Plea Colloquy State v. Robert L.H. Docket: 2009AP000629 02-18-10 PER CURIAM. Robert L.H. appeals an order denying his WIS. STAT. § 974.06 (2007-08) motion for postconviction relief. The circuit court denied relief after an evidentiary hearing. The issues are whether Robert is entitled to withdraw his plea and in the alternative, whether he is entitled to a new sentencing hearing. We conclude that he is entitled to neither, and therefore affirm. Criminal Law/ Right To Counsel/ Right To Presentencing/ Ineffective Assistance Of Counsel/ Evidence/ Harmless Error State v. Carter Docket: 2009AP000378 02-17-10 Recommended for Publication CURLEY, P.J. Brandon J. Carter appeals from a judgment convicting him of being a felon in possession of a firearm and of disorderly conduct while armed, contrary to WIS. STAT. §§ 941.29(2)(a), 947.01, and 939.63 (2005-06). He also appeals from the trial court's order denying his motion for postconviction relief. Carter argues that he was denied his right to counsel and his right to be present when the trial court took sworn testimony from a witness during an ex parte hearing and later allowed the testimony to be introduced during his jury trial to impeach the witness. In addition, Carter contends that he was denied the effective assistance of trial counsel when counsel failed to object to testimony during his jury trial that he was known to carry firearms. Criminal Law/ Right To Public Trial/ Ineffective Assistance Of Counsel State v. Herrera Docket: 2009AP000590 02-17-10 PER CURIAM. Jason Herrera appeals a judgment convicting him of one count of physical abuse of a child and an order denying his postconviction motion. Herrera argues (1) he was deprived of his right to a public trial and (2) he received ineffective assistance of trial counsel. We affirm. Criminal Law/ Sentencing Credit/ Statutes State v. Brown Docket: 2009AP000896 02-17-10 Recommended for Publication BROWN, C.J. This is a sentence credit case resembling the Alphonse and Gaston cartoon. More precisely, when an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, should the circuit court grant sentence credit in Wisconsin for the time the offender spent in presentence confinement in Wisconsin? Or, may the Wisconsin court deny credit on the grounds that the foreign sovereignty may yet act to give credit in that state and, if it does, then the offender would be receiving double credit? We conclude that until the other sovereignty has actually acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of "double credit" is not ripe. So the Wisconsin court, the only court the issue of credit is before, should grant credit. Otherwise, if the other sovereignty never acts, the offender would not receive credit where credit is due. We reverse because the trial and postconviction court in this case refused to order sentence credit. Employment Law/ LIRC/ Unemployment Insurance/ Parties/ Procedure Willet v. L.I.R.C. Docket: 2008AP003073 02-17-10 PER CURIAM. Stephen D. Willett, S.C. appeals an order dismissing a complaint seeking judicial review of a Labor and Industry Review Commission decision. Claiming that it did not fail to name a necessary adverse party as a defendant in the matter, Willett contends the circuit court erred by dismissing the complaint. We reject Willett's argument and affirm the order. Family Law/ Divorce/ Property/ Division/ Judicial Authority-Discretion Kundinger v. Kundinger Docket: 2009AP001456 02-17-10 PER CURIAM. Larry Kundinger appeals a judgment of divorce. Larry's principal argument is that property he brought into the marriage is not subject to division. We reject his arguments and affirm. Family Law/ TPR/ Forfeiture Of Right To Jury/ Statutes/ Statutory Construction-Interpretation/ Notice/ Default Judgment/ Procedure State v. Jennifer M. Docket: 2009AP001964 02-19-10 BRENNAN, J. Luis G., the father of Jenalyn G., appeals both the trial court's judgment, terminating his parental rights to Jenalyn (born 6/20/05), and the trial court's order on Luis's motion for post-judgment relief, determining that Luis had forfeited his right to a jury trial on the abandonment ground. Luis argues that the trial court erred under WIS. STAT. § 48.422 in determining that he forfeited his right to a jury trial on the original abandonment count and in not re-advising him of his right to a jury trial upon the filing of the amended petition. Because Luis failed to appear at the initial hearing, despite proper service, and remained absent from court for ten more months, I conclude that he forfeited his right to a jury trial on the abandonment ground in both petitions and affirm the judgment and order. Personal Injury/ Government Immunity/ Schools Krus v. Community Insurance Docket: 2009AP000200 02-17-10 PER CURIAM. Abby Krus and her parents appeal a summary judgment dismissing their action against Abby's physical education teacher, Jeanne Druschke, the school district and their insurer. The court concluded Druschke was protected by governmental immunity for her actions that contributed to Abby's injury during a gym class. See WIS. STAT. § 893.80(4). Krus contends two exceptions to governmental immunity apply in this case: (1) the "known and compelling danger" exception; and (2) the ministerial duty exception. Because we conclude neither of these exceptions apply, we affirm the judgment. Property/ County/ Zoning/ Procedure/ Summary Judgment/ Ordinance/ Statutes Johnson v. Washburn County Docket: 2009AP000371 02-17-10 BRUNNER, J. Keith Johnson, Alf Johnson and Dolores Johnson (collectively, the Johnsons) appeal a summary judgment in favor of Washburn County and the Town of Spooner. The Johnsons argue the Town did not properly disapprove of the Johnsons' rezoning application because it did not file a certified copy of a town board resolution with the County as required by WIS. STAT. § 59.69(5)(e)3. We agree the document filed with the County was not a certified copy of a town board resolution and therefore we reverse the judgment. Property/ Valuation/ Taxation/ Evidence/ Towns & Cities Elbert v. Town of Erin Prarie Docket: 2009AP001343 02-17-10 PER CURIAM. Thomas and Kathleen Elbert appeal a circuit court order affirming a Town of Erin Prairie Board of Review determination upholding the assessor's valuation of the Elberts' property. The Elberts argue the Board's determination is contrary to law because the Elberts overcame the presumption of accuracy of the assessment and the assessor failed to present any evidence, and because the Board improperly based its decision on tax equity considerations. We conclude the Board acted contrary to law by rejecting the Elberts' valuation objection due to tax equity concerns, rather than determining whether the assessment reflected the property's fair market value. We therefore reverse and remand and direct the circuit court to remand to the Board for further proceedings. See WIS. STAT. § 70.47(13). Property/ Zoning/ Permits/ Towns & Cities/ Ordinances Ottman v. Town of Primrose Docket: 2008AP003182 02-18-10 DYKMAN, P.J. Steve and Sue Ottman appeal from a circuit court order that dismissed their petition for certiorari review and affirmed a decision by the Town of Primrose to deny the Ottmans' application for building and driveway permits. The Ottmans argue first that we should reframe our common law certiorari review of local government decisions to align with certiorari review of administrative agency decisions, determining our level of deference based on the circumstances surrounding the governmental decision. The Ottmans then contend that we should accord no deference to the Town's decision because it was based on errors of law. We conclude that we are required to apply the well-settled law for certiorari review of local government decisions, and we affirm under that standard of review. Small Claims/ Default Judgments/ Excusable Neglect/ Sanctions/ Fees Wolff v. Second Wind Boat Works Docket: 2008AP001954 02-18-10 HIGGINBOTHAM, J. Second Wind Boat Works, LLC appeals pro se a circuit court order denying its motion to reopen a default judgment entered against it for failure to appear at a scheduling conference in Richard Wolff's small claims action against Second Wind. After finding that Second Wind showed that its failure to appear was the result of excusable neglect, and that default judgment was too harsh a sanction in this case, it nonetheless entered an order denying the motion to reopen after Second Wind failed to comply with certain sanctions imposed by the court. In effect, the default judgment in this case resulted not from Second Wind's failure to appear, but from its failure to comply with certain sanctions. Summary Judgment/ Towns & Cities/ Ordinances/ Fees Edgerton Contractors v. City of Wauwatosa Docket: 2009AP001042 02-17-10 Recommended for Publication KESSLER, J. The City of Wauwatosa appeals from a summary judgment which refunded to Edgerton Contractors, Inc., nearly $39,000 of the $43,908 inspection fee Edgerton paid pursuant to the City's Consolidated Fee Schedule that was in effect at the time Edgerton obtained an erosion control permit. The City urges us to vacate the judgment and dismiss Edgerton's action because it contends: (1) the fee schedule for erosion control inspection fees was properly adopted; and (2) the fee structure imposing an inspection fee of seven dollars per one thousand square feet of disturbed land area was reasonable. We agree with the City that the fee schedule for erosion control inspection fees was properly adopted, and we therefore reverse the trial court's conclusion to the contrary. As to the reasonableness issue, we conclude that "there are genuine issues of material fact and reasonable alternative inferences that may be drawn from undisputed material facts in this case" which preclude granting summary judgment to either party. See Village of Hobart v. Brown County, 2005 WI 78, ¶20, 281 Wis. 2d 628, 698 N.W.2d 83. Therefore, we reverse the judgment and remand for further proceedings.		Links WisBar.org WisBar Legal Research/Fastcase CaseLaw Express Archives Also of Interest Credit where credit is due: Court of appeals reverses lower court on sentence credit The court of appeals, in the recent decision State v. Brown, has reversed the Kenosha County circuit court for denying 285 days of sentence credit due an offender on parole hold in Illinois and confined in Wisconsin. 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