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CaseLaw Express
Week of May 3, 2010

 Supreme Court Cases
  • Estates/ Taxes/ Summary Judgment/ Federal Statutes/ Reimbursement/ Equitable Apportionment/ Contracts

    Estate of Sheppard v. Schleis
    Docket: 2009AP001021 05-04-10
    SHIRLEY S. ABRAHAMSON, C.J. This is an appeal of an order and judgment from the Circuit Court of Washington County, Patrick J. Faragher, Judge. This court granted the Estate's petition to bypass the court of appeals pursuant to Wis. Stat. §§ 808.05 and 809.60 (2007-08).
  • Taxation/ Department of Revenue/ Statutes/ Statutory Construction-Interpretation/ Statute Application

    Milwaukee Symphony Orchestra v. D.O.R.
    Docket: 2008AP001684 05-05-10
    SHIRLEY S. ABRAHAMSON, C.J. This is a review of a published decision of the court of appeals reversing a judgment of the Circuit Court for Dane County, Maryann Sumi, Judge, and remanding the cause to the circuit court to enter an order affirming the decision of the Tax Appeals Commission.
 Court of Appeals Cases
  • Attorney Fees/ Invasion Of Privacy/ Evidence/ Statutes/ Summary Judgment/ Directed Verdict

    Poston v. Burns
    Docket: 2009AP000463 05-04-10
    Recommended for Publication
    KESSLER, J. Andrea L. Burns and James D. Barr (collectively, "the Burns-Barrs") appeal from a judgment requiring them to pay $41,080.23 in attorney fees and costs associated with Karen and Barry Poston's civil action against them for invasion of privacy. See WIS. STAT. § 995.50(2)(a) (2007-08). We conclude that there is no competent evidence in the record which supports the finding that the Burns-Barrs violated § 995.50(2)(a). Therefore, we reverse and remand with directions to enter judgment in favor of the Burns-Barrs.
  • Contracts/ Arbitration/ Bad Faith/ Damages/ Summary Judgment/ Procedure/ Statutes/ Service Of Process

    J.P. Morgan Chase Bank v. Allen
    Docket: 2009AP001340 05-04-10
    PER CURIAM. In this action on a promissory note, the circuit court concluded that the borrower, Edward O. Allen, waived his contractual right to arbitrate his dispute with the lender, JP Morgan Chase Bank, N.A. (Chase). The circuit court granted summary judgment to Chase, and dismissed Allen's counterclaims. Allen appeals, and we affirm.
  • Criminal Law/ Evidence/ Judicial Authority-Discretion/ Motions/ Statutes/ Defense

    State v. Woppert
    Docket: 2008AP003156 05-05-10
    PER CURIAM. Christy M. Woppert has appealed from a judgment convicting her of second-degree reckless homicide in violation of WIS. STAT. § 940.06(1)(2007-08). We affirm the judgment.
  • Criminal Law/ Ineffective Assistance Of Counsel/ Right To Confrontation/ Impartial Court/ Sentencing/ Presentence Investigation Report (PSI)

    State v. Sterling
    Docket: 2009AP000815 05-04-10
    BRENNAN, J. Mark W. Sterling appeals a judgment entered after a jury found him guilty of attempted first-degree intentional homicide and false imprisonment, and an order denying his postconviction motions. Sterling argues that: (1) he was deprived of effective assistance of trial counsel because his trial counsel failed to object to the trial court's alleged improper interference with the prosecutor's charging decision; (2) he was deprived of an impartial tribunal when the trial court allegedly improperly interfered with the prosecutor's charging decision; (3) he was deprived of his Sixth Amendment right to confront the witness against him when the trial court prohibited him from questioning Demetrius Gaines (the victim) about his motives for testifying; and (4) he is entitled to a new sentencing hearing because the trial court erred when it failed to consider on the record whether to order a presentence investigation report ("PSI"). We affirm.
  • Criminal Law/ New Trial/ New Evidence/ Ineffective Assistance Of Counsel

    State v. Hawley
    Docket: 2009AP001020 05-05-10
    PER CURIAM. Gerald Hawley appeals from a judgment of conviction for repeated sexual assault of the same child, and the order denying his motion for a new trial. Hawley argues that he should be granted a new trial in the interest of justice because the real controversy was not fully tried. Specifically, he argues that he has evidence that he did not have penile implant surgery until after the date the sexual assaults are alleged to have stopped, and that this evidence could be used to impeach the victim's testimony. We conclude that Hawley has not established a basis for granting a new trial. We affirm.
  • Criminal Law/ Right To Counsel/ Constitutional Law/ New Attorney

    State v. Henry
    Docket: 2009AP001332 05-04-10
    CURLEY, P.J. Eric Paul Henry appeals the judgment, entered following a jury trial, convicting him of first-degree intentional homicide, as a party to the crime, contrary to WIS. STAT. §§ 940.01(1)(a) and 939.05 (2007-08). Henry argues that the trial court erroneously exercised its discretion when it denied his pretrial request for new counsel so as to deprive him of his constitutional right to counsel. Because the trial court properly concluded that a substitution of counsel was not appropriate under the circumstances, we affirm the trial court's exercise of discretion.
  • Criminal Law/ Sentencing/ DNA Surcharge/ Jurisdiction

    State v. Cardine
    Docket: 2009AP000794 05-04-10
    PER CURIAM. Roosevelt Cardine, Jr., pro se, appeals from an order denying his motion to reconsider an order denying his request to "quash" a DNA surcharge. We dismiss the appeal for lack of jurisdiction.
  • Family Law/ Divorce/ Custody/ Placement/ Best Interest Of Child/ Guardian Ad Litem / Property Division/ Judicial Authority-Discretion/ Statutes/ Marital Property

    Volkmann v. Volkmann
    Docket: 2009AP001601 05-05-10
    PER CURIAM. Jacob Volkmann appeals from a judgment of divorce from Elizabeth Volkmann. He argues that it was error to decide a disputed custody issue without input from the guardian ad litem (GAL) and that the property division was not a proper exercise of discretion. We reverse those parts of the judgment challenged on appeal and remand for the appointment of a GAL to represent the child's best interest on the issue of whether Jacob's placement with the child should be supervised or unsupervised and for findings of fact and conclusions of law with respect to the property division.
  • Family Law/ TPR/ Ineffective Assistance Of Counsel/ Statutes/ Evidence

    State v. Chester C.
    Docket: 2009AP002824 05-04-10
    FINE, J. Chester C. appeals the order terminating his parental rights to Elisha Lois M.-C., and from the trial court's order denying his motion for post-termination relief. He contends that his trial lawyer gave him ineffective representation by not objecting to various hearsay statements. The trial court assumed that the lawyer should have objected but determined that Chester C. was not prejudiced as a result. We affirm.
  • Inmates/ Disciplinary/ Procedure/ Evidence/ Department of Corrections (DOC) Regulations

    Felton v. Raemisch
    Docket: 2009AP000787 05-06-10
    PER CURIAM. Stanley Felton and Tony Gray appeal an order affirming prison disciplinary decisions. They raise procedural issues regarding the disciplinary proceeding and challenge the sufficiency of the evidence used to find them guilty. The only named respondent is the secretary of the Department of Corrections. Their challenge to the sufficiency of the evidence is therefore waived. See State ex rel. Grzelak v. Bertrand, 2003 WI 102, ¶30, 263 Wis. 2d 678, 665 N.W.2d 244 (for review of substantive claims on review of prison disciplinary decision, warden must be named as respondent). We affirm on the basis of the substantive waiver, and on the merits of the procedural issues.
  • Inmates/ Parole/ Denial Of Parole/ Evidence/ Regulations

    Henderson v. Graham
    Docket: 2008AP002862 05-05-10
    PER CURIAM. Titus Henderson appeals pro se from a circuit court order affirming the Parole Commission's decision to deny him parole and deferring his next parole opportunity for forty-eight months. We agree with the circuit court that the commission's decision was supported by the evidence and was in all other respects proper. We affirm.
  • Insurance/ Coverage’s/ Negligence/ Negligent Entrustment/ Summary Judgment/ Independent Concurrent Cause Rule/ Preclusion

    Siebert v. Wisconsin American Mutual
    Docket: 2009AP001422 05-04-10
    PETERSON, J. Jessica Siebert appeals a summary judgment in favor of Wisconsin American Mutual Insurance Company declaring there is no coverage for her negligent entrustment claim against Jessica Koehler. The circuit court concluded that, because there was no coverage for the driver's negligent operation of a vehicle, there was also no coverage for Koehler's negligent entrustment of the vehicle to the driver. We disagree. We therefore reverse and remand.
  • Personal Jurisdiction/ Statutes/ Contracts

    Weiskopf v. Kenworthy
    Docket: 2009AP000868 05-04-10
    KESSLER, J. Kenneth Weiskopf, Laura Weiskopf, Ariel Edmonds, Katrina Edmonds, Matthew G. Bruins and Kari A. Bruins (collectively, "Plaintiffs") appeal from an order dismissing their consolidated cases against Paul Kenworthy and Bruce Nimmer, based on lack of personal jurisdiction. The Plaintiffs argue that there is personal jurisdiction over both Kenworthy and Nimmer based on WIS. STAT. § 801.05(1)(d), (3) and (4) (2007-08). We affirm.
  • Property/ Evidence/ Summary Judgment/ Federal Foreclosure/ Preclusion

    Altman v. Messer
    Docket: 2009AP001322 05-04-10
    PER CURIAM. Francis E. Altman appeals a summary judgment dismissing his action against Christine Messer and an order denying his motion for reconsideration. Because we conclude the court improperly made findings of fact based on credibility of witnesses, we reverse the orders and remand the cause for further proceedings.
  • Property/ Unjust Enrichment/ Damages/ Equitable Lien/ Laches/ Taxes/ Summary Judgment/ Judicial Authority-Discretion

    Buckett v. Jante
    Docket: 2009AP002709 05-05-10
    PER CURIAM. Glenn and Elsie Jante appeal and Daniel Buckett cross-appeals from a circuit court judgment awarding damages and an equitable lien to Buckett on a theory of unjust enrichment because Buckett paid property taxes for the years 1981-92 on a parcel of property owned by the Jantes and their predecessors in title. On appeal, the Jantes argue that Buckett's unjust enrichment claim should have been barred by laches. On cross-appeal, Buckett seeks to recover taxes he paid on the parcel for the 1993-2005 tax years. Pursuant to a presubmission conference and this court's order of November 17, 2009, the parties submitted memorandum briefs. Upon review of those memoranda and the record, we affirm the circuit court.
  • Summary Judgment/ Property/ Eviction/ Damages/ Contracts/ Statutes/ Third-Party Complaint/ Tortuous Interference/ Jurisdiction

    Wyndham Properties v. Kingstad Law Offices
    Docket: 2008AP002755 05-04-10
    BRENNAN, J. Kingstad Law Offices, S.C., appeals a judgment entered following several decisions and orders granting summary judgment motions in favor of plaintiffs Wyndham Properties, LLC, and Mark E. Carstensen Construction & Development, Inc. (collectively referred to as "Wyndham" unless otherwise specified). The circuit court's orders determined that Kingstad was liable to Wyndham for rent, late fees, interest, build-out costs, and attorney fees, flowing from the events surrounding Kingstad's eviction from property owned by Wyndham in 2000. Kingstad argues that Wyndham accepted its surrender of the property on June 30, 2000, and that WIS. STAT. § 704.29 (2007-08) relieves Kingstad's liability for costs purportedly accrued after that date. Because Kingstad misapplies § 704.29, we affirm the circuit court.
Links
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