PER CURIAM. We review a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney David G. Merriam. The stipulation sets forth ten counts of professional misconduct by Attorney Merriam. It requests that the court suspend Attorney Merriam's license to practice law in Wisconsin for 90 days, that the court require Attorney Merriam to provide quarterly certifications that he is complying with his health care provider's depression treatment recommendations for a period of two years, and that the court require Attorney Merriam to join and participate in the State Bar of Wisconsin's Practice411 practice management service. After reviewing the matter, we accept the stipulation and impose the requested discipline as well as the conditions on Attorney Merriam's post-suspension practice of law.

PER CURIAM. We review the report and recommendation of the referee, the Honorable Timothy L. Vocke, that Attorney Jeffrey T. Roethe receive a public reprimand and bear the full costs of this proceeding. Because no appeal has been filed, we review the referee's report and recommendation pursuant to SCR 22.17(2). We approve and adopt the referee's findings of fact and conclusions of law. We agree that Attorney Roethe's professional misconduct warrants a public reprimand. We also find it appropriate to require Attorney Roethe to pay the full costs of this disciplinary proceeding, which are $24,630.53 as of December 16, 2009.

PATIENCE DRAKE ROGGENSACK, J. We review a decision of the court of appeals affirming the circuit court's decision granting summary judgment in favor of Forward Geneva National, LLC, and other defendants (collectively, the Developer) and denying plaintiffs' motion for summary judgment. Both the circuit court and the court of appeals agreed that the "Declaration of Covenants, Conditions, Restrictions and Easements for the Geneva National Community" (the Community Declaration), which controls the overall development of Geneva National, does not violate Wis. Stat. ch. 703 (2007­08), the Condominium Ownership Act. The court of appeals concluded that the Community Declaration established a master-planned community that is not subject to ch. 703 and that the terms of the Community Declaration are unambiguous, which "the complainants full-well knew existed" before they purchased in Geneva National.

SNYDER, J. Tory L. Rachel appeals from an order denying his petition for supervised release from his WIS. STAT. ch. 980 (2007-08) commitment. He contends that the circuit court applied the wrong legal standard and misplaced the burden of proof on him rather than on the State when denying his petition. The circuit court held that Rachel must prove by clear and convincing evidence that the criteria for granting supervised release were satisfied. Because the legislature has extensively revised the relevant statutes, and because the circuit court properly interpreted the implications of these revisions, we affirm the order of the circuit court.

PER CURIAM. Steven Kilian returned a leased vehicle to Mercedes-Benz-USA, LLC under Wisconsin's Lemon Law, WIS. STAT. § 218.0171 (2007-08). He appeals from an order and judgment dismissing his claims against Mercedes-Benz, and the lessor, Mercedes-Benz Financial (hereafter Financial), for alleged violations of the Lemon Law after Financial notified Kilian that he was delinquent on lease payments. Mercedes-Benz and Financial cross-appeal seeking reversal of the circuit court's determination that the lawsuit is not frivolous. We affirm the judgment and the denial of costs and attorneys fees for a frivolous action.

PER CURIAM. Kristopher Rosche appeals a judgment convicting him of second-degree sexual assault of a child as a repeat offender. He challenges an evidentiary decision, a comment made by the prosecutor during closing argument, and a jury instruction. We affirm the conviction for the reasons discussed below.

SNYDER, J. Susan Sucharski appeals from a judgment of conviction on one count of fourth degree sexual assault as party to a crime. She contends the circuit court failed to correctly instruct the jury and improperly barred character evidence from reaching the jury. She further appeals from an order denying her postconviction motion for a new trial. We affirm the judgment and the order.

PER CURIAM. Matthew Greene appeals a judgment of conviction for one count of aggravated battery with intent to cause great bodily harm and one count of first-degree reckless injury, both as a party to a crime and as a repeater. He argues there was insufficient evidence at trial to support the verdict. We affirm.

HOOVER, P.J. Karon Asmus appeals judgments convicting her on her guilty pleas of two counts of identity theft. She contends the trial court should have dismissed the complaints because the State did not bring her to trial within 120 days after her request pursuant to the Intrastate Detainer Act, WIS. STAT. § 971.11 (2007-08). We conclude Asmus waived this issue by entry of her guilty pleas.

PER CURIAM. Victor Hasel appeals from a judgment convicting him of repeated sexual assaults of the same child, and an order denying his motion for postconviction relief. The issue is whether the victim's recantation entitles him to a new trial, either because it is newly discovered evidence, or in the interest of justice. We affirm.

PER CURIAM. Michael Storzer, pro se, appeals an order denying his motion for sentence modification. Storzer argues there is a new factor justifying sentence modification, he was sentenced on the basis of inaccurate information and the court erroneously exercised its discretion by denying his motion without a hearing. Storzer alternatively argues he is entitled to a new trial in the interests of justice. We reject these arguments and affirm the order.

BROWN, C.J. The State appeals from orders suppressing evidence against Kyle J. Graske for possession of Tetrahydrocannabinols (THC) and drug paraphernalia and dismissing a charge of operating with a detectable amount of a restricted controlled substance (first offense). The trial court dismissed the State's charges after suppressing evidence obtained during a traffic stop. The State alleges that Graske's passenger, Justin Kohel, provided the deputy with probable cause to search the car by making the "voluntary" statement "we just smoked an hour ago" to the deputy. But the statement cannot be "voluntary" or admissible because the passenger made the statement during a custodial interrogation without the benefit of Miranda rights. The State is left with only the smell of marijuana coming from the vehicle and asserts that the smell alone is probable cause to search the vehicle and arrest Graske for operating under the influence of a controlled substance. However, for the smell to provide probable cause for an operating with a controlled substances arrest, the smell must be specifically linked to Graske. Without the passenger's statement, the State had nothing linking Graske to the smell to provide probable cause to arrest. Regarding the possession of THC charge, we agree that the smell of marijuana provided probable cause to search the vehicle and backpack. The search yielded a backpack which had contraband in it. But the trial court concluded, after considering relevant testimony, that dominion and control of the backpack belonged to the passenger, not Graske. Such a finding is neither clearly erroneous nor constitutionally infirm. We affirm in total.

LUNDSTEN, J. Charles Swenson worked as a truck driver for deBoer Transportation. The question in this case is whether, under WIS. STAT.

BRUNNER, J. Thomas Batterman appeals an order finding him in contempt for failure to pay his ex-wife's health insurance premiums as required by their marital settlement agreement. We conclude the circuit court properly exercised its discretion and affirm.

BRENNAN, J. Benny O., a/k/a Bennie O., appeals from an order terminating his parental rights to Javon O. on the ground of failure to assume parental responsibility and from an order denying his motion to withdraw his no contest plea. He argues his plea was not knowing and intelligent. I affirm.

PER CURIAM. Titus Henderson appeals an order dismissing his petition for a temporary restraining order. We affirm.

ANDERSON, J. Dakota A.K. persists in pursuing the specious argument that he is entitled to a dismissal of a delinquency petition because he was not provided all discovery material before his plea hearing. He argues that the failure to provide discovery within approximately twenty-two business hours between the filing of a demand for discovery and his plea hearing supports a dismissal of the delinquency petition with prejudice. Dakota's argument lacks any legal authority or logic in support of his thesis and this court is unpersuaded by his argument. Therefore, we affirm.

VERGERONT, J. Matthew Low filed a motion in Coulee Region Municipal Court, La Crosse County, for an order vacating the judgment of conviction entered in 2003 by the La Crosse County Circuit Court for operating while intoxicated (OWI) in violation of WIS. STAT. § 346.63(1)(a). Low appealed the denial of his motion to the circuit court. The circuit court concluded that the municipal court does not have jurisdiction and, in the alternative, affirmed the municipal court's denial of the motion on the merits. Low appeals and we affirm because we conclude the circuit court correctly ruled the municipal court does not have jurisdiction to consider Low's motion.

BRUNNER, J. Robert Tomaszewski appeals a judgment of conviction, entered upon his no contest plea, on one count of operating while intoxicated, fifth or greater offense, in violation of WIS. STAT. § 346.63(1)(a). He contends evidence of his intoxication must be suppressed because police lacked reasonable suspicion to conduct a traffic stop. We conclude police reasonably suspected Tomaszewski of following within 500 feet of another vehicle while using his high beams in violation of WIS. STAT. § 347.12(1)(b). Consequently, we affirm.

PER CURIAM. Wolter Brothers Builders, Inc., appeals the grant of summary judgment in favor of its successive comprehensive general liability (CGL) insurers, Acuity, a Mutual Insurance Company and Continental Western Insurance Company. The circuit court held that Acuity and Continental had no duty to defend or indemnify Wolter because Wolter's untimely notice of claim prejudiced them. We agree. The known loss doctrine also justifies the grant of summary judgment to Continental. We affirm.

PER CURIAM. The Rustic, Inc., appeals from a summary judgment of foreclosure on a land contract. The Rustic raises three issues on appeal: (1) the circuit court failed to properly determine what constituted a default in payment under the land contract; (2) the court erred by finding a substantial default and granting foreclosure; and (3) it was inequitable to grant foreclosure. We reject the Rustic's arguments and affirm.

NEUBAUER, P.J. Allen Goudy appeals from a summary judgment order granted in favor of Yamaha Motor Corporation, USA, and Winnebagoland Kawasaki a/k/a Team Winnebagoland. Goudy purchased a new 2004 Yamaha motorcycle and a Yamaha extended service plan from Winnebagoland. Shortly after purchase, Goudy experienced ongoing problems with the motorcycle. Yamaha denied Goudy's claims under WIS. STAT. § 218.0171 (2007-08), the Wisconsin New Motor Vehicle Warranties Act (also referred to as the "Lemon Law"), because the vehicle had been modified by Winnebagoland prior to purchase so as to include over forty-two accessory parts which were not covered by Yamaha's warranty or extended service plan. Goudy subsequently filed this action against Yamaha and Winnebagoland claiming: (1) breach of express and implied warranties in common law and under the Magnuson-Moss Warranty Act, 15 U.S.C.A. § 2301-2312 (West 2010); (2) revocation of acceptance; (3) breach of contract; (4) violations of § 218.0171; and (5) violations of WIS. STAT. § 100.18(1) Wisconsin's Deceptive Trade Practices Act. The trial court determined that Yamaha and Winnebagoland were entitled to summary judgment as a matter of law and dismissed Goudy's action in its entirety and with prejudice. We affirm the trial court's ruling in all respects except one. We conclude that Goudy is entitled to pursue his claim against Winnebagoland under § 100.18. We remand for further proceedings.

PETERSON, J. Timothy Nelesen appeals a summary judgment dismissing his negligence and nuisance claims against the City of Appleton and Mike Michlig, the City's forester (collectively, the City). Nelesen argues the circuit court erred when it concluded the City was immune from liability for his claims. We disagree and affirm.