PER CURIAM. Attorney Glenn J. Blise appeals the referee's report recommending a public reprimand, together with restitution and costs. The Office of Lawyer Regulation (OLR) filed a six-count complaint against Attorney Blise alleging misconduct with respect to one client matter. John R. Decker was appointed referee. Referee Decker concluded the OLR met its burden to prove four counts, three of which involve Attorney Blise's failure to properly communicate with his client and a fourth charging his failure to refund an unearned fee. Referee Decker concluded, however, that two counts alleging failure to disclose facts and provide information during the OLR investigation should be dismissed due to lack of proof.

ANN WALSH BRADLEY, J. Acuity, A Mutual Insurance Company, seeks review of a published court of appeals decision affirming the circuit court's denial of Acuity's motion for declaratory judgment. Acuity sought a declaration that the accident here was not a hit-and-run accident under the terms of the uninsured motorist (UM) policy issued to James and Glory Zarder. The circuit court and court of appeals determined that Acuity was not entitled to a declaratory judgment even though the occupants of the vehicle that allegedly struck thirteen-year-old Zachary Zarder stopped to check on his wellbeing before departing.

NEUBAUER, P.J. This appeal stems from a contract between Mantz Automation, Inc., and Mantz Holdings, LLC, (collectively "Mantz") and Construction Specialists Required, Inc. (CSR), for the construction of a manufacturing facility. After discovering defects in a cement floor installed by one of CSR's subcontractors, Mantz sued CSR for breach of contract, breach of implied warranty, negligence and misrepresentation. CSR's commercial general liability insurer, Navigators Insurance Company, requested a declaratory judgment that Mantz's claim for property damage did not trigger coverage under its policy and, therefore, it had no duty to defend CSR. The circuit court granted Navigators' motion for summary judgment and Mantz appeals. Because Mantz's claim for property damage is based on faulty workmanship and not an "occurrence" under Navigators' policy, we affirm the circuit court's order for judgment.

PER CURIAM. Knox Enterprises, Inc., d/b/a Knox Cabinets, and David L. Knox (collectively, "Knox"; where necessary to distinguish,

PER CURIAM. Victor L. Cruz, pro se, appeals an order denying his motion for sentence modification. The circuit court ruled that Cruz's challenge to a penalty enhancer was both meritless and a WIS. STAT. § 974.06 (2007-08) claim barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). The circuit court also determined that a change in parole policy did not constitute a "new factor" justifying modification. We agree and we affirm the order.

PER CURIAM. Paul N. Streff, pro se, appeals from orders denying his motions for postconviction relief and for reconsideration. Because the claims are barred, we affirm.

PER CURIAM. Donald Newell appeals a judgment convicting him of ten counts of second-degree sexual assault for having intercourse with a person suffering a mental deficiency. The convictions are substantially based on Newell's sixteen-page written statement.

PER CURIAM. Garceia Coleman, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2007-08) motion for a new trial. The circuit court determined that the motion was procedurally barred by State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574, because Coleman failed to raise the issues in his motion in response to a prior no-merit report. Coleman contends Tillman is inapplicable because, in the no-merit process, appellate counsel and this court missed the issues he now raises. Coleman thus believes that, under State v. Fortier, 2006 WI App 11, 289 Wis. 2d 179, 709 N.W.2d 893, he has a valid reason for not raising the issues previously and can escape the procedural bar. We reject Coleman's argument and affirm the circuit court.

PER CURIAM. Derrick Rohm appeals a judgment of conviction on ten counts of burglary contrary to WIS. STAT. § 943.10(1m)(a), and an order denying his motion for postconviction relief. Rohm argues the circuit court failed to provide sufficient reasons for the length of confinement ordered, relied on inaccurate information at sentencing, and erroneously exercised its discretion when ordering significant restitution to insurers, and contends his trial counsel provided ineffective assistance. We conclude the circuit court set forth sufficient reasons for the sentence. However, we also conclude the court prejudicially relied on inaccurate information at sentencing, and erred when setting restitution. We therefore reverse and remand for resentencing and reconsideration of restitution. Because we reverse on these other grounds, we do not reach Rohm's ineffective assistance of counsel argument.

PER CURIAM. Matthew Hildebrand appeals from a judgment of conviction of two counts of third-degree sexual assault of a child and from an order denying his postconviction motion for sentence modification and credit. We conclude that Hildebrand is entitled to sentence credit for the time in jail on Fond du Lac county charges that were, pursuant to the plea agreement, read-in, and that upon resentencing the circuit court properly exercised its discretion in giving Hildebrand a longer sentence. We affirm the judgment and order in part; reverse them in part, and remand with directions to give Hildebrand the sentence credit he is due.

HIGGINBOTHAM, J. This case involves a dispute over an air pollution permit for the construction of a coal-fired power plant in Marathon County. The Wisconsin Department of Natural Resources (DNR) issued the air pollution permit to Wisconsin Public Service Corporation and Dairyland Power Cooperative (collectively, WPSC) for the Weston Generating Station Unit 4 power plant (Weston 4). Sierra Club appeals the circuit court's decision affirming the DNR's "best available control technology" (BACT) determinations for the air emissions construction permit.

PER CURIAM. Gerald Small appeals a divorce judgment dividing his and Tatyana Small's property and denying his request for maintenance. He argues the circuit court erred by (1) including certain property in the marital estate, and (2) concluding he had sufficient income, without maintenance, to become self-supporting at a standard of living comparable to what he enjoyed during the marriage. Tatyana cross-appeals that part of the judgment dividing their property, contending the court should have treated certain assets as both property and income. We affirm.

PER CURIAM. Robert Selenske and RnS Farms appeal a judgment based on a jury verdict finding that Selenske unduly influenced his late mother in some real estate and stock transactions. Selenske contends a juror, Ronald Seis, was statutorily, objectively and subjectively biased. Because we conclude Selenske is estopped from raising that issue, we affirm the judgment.

FINE, J. Desmond Jones appeals the circuit court's order partially overturning a jury verdict entered in his favor. The order dismissed Jones's wrongful-eviction claims against Courtyard Apartments, LLP, Roger Carlton, Brenda Carlton, Wayne Huehns, Janet Huehns, Milwaukee County Sheriff, Deputy Brian Anderson, Deputy Jon Nilsen and Aegis Corporation. Jones argues the circuit court: (1) erroneously exercised its discretion when it dismissed his claims as a sanction for lying to the circuit court, (2) should have allowed punitive damages to go to the jury, and (3) erred in dismissing his constitutional claims. We affirm.

HOOVER, P.J. E-Z Roll Off, LLC, appeals a judgment dismissing its complaint for failure to provide Oneida County a timely notice of injury and claim as required by WIS. STAT. § 893.80(1). E-Z Roll Off primarily argues its WIS. STAT. ch. 133 antitrust claim was exempt from the statutory notice requirements. If not exempt, then E-Z Roll Off contends its notice was timely because there was a continuing violation. As its final alternative, E-Z Roll Off asserts Oneida County had actual notice and was not prejudiced by the failure to give the statutory notice. We agree ch. 133 antitrust claims are exempt from § 893.80(1)'s notice requirements and, therefore, reverse the judgment and remand.

SNYDER, J. Bryan W. Fricano appeals from an order denying his motion to reopen an implied consent adjudication stemming from a September 2008 traffic stop. Fricano contends that his attorney's failure to timely request a refusal hearing should not have been imputed to him. He further contends that the circuit court should have reopened the implied consent hearings based on excusable neglect under WIS. STAT. § 806.07(1)(a). Because the circuit court did not have competency to hear the matter, we dismiss this appeal.

PER CURIAM. Shawn and Thomas Heuring appeal from an order granting summary judgment to MSA Professional Services, Inc. and A-1 Excavating, Inc., government contractors accused of negligently designing and constructing a street in the City of Hurley. The circuit court, concluding the contractors were "agents" of the City and entitled to government immunity, dismissed the Heurings' personal injury claims. We agree MSA and A-1 were acting as agents of the City and are entitled to immunity. Consequently, we affirm.

VERGERONT, J. This adverse possession claim concerns approximately seventeen acres of undeveloped land in a larger tract of several hundred acres primarily used for hunting by the titleholder, Newell Easley. Easley appeals the circuit court's determination that the plaintiffs established title to the disputed area by adverse possession. We conclude that, properly applying the presumption in favor of the titleholder and placing the burden of proof on the plaintiffs, the hunting and related activities of the plaintiffs' predecessors do not constitute open, notorious, visible, exclusive, and hostile use of the disputed area. We also conclude that a swampy area and a man-made drainage ditch do not constitute a substantial enclosure as required by WIS. STAT. § 893.25(2)(b)1. (2007-08). Finally, we conclude the plaintiffs have not established adverse possession under the doctrine of acquiescence, assuming without deciding that this is an alternative means of proving adverse possession. Accordingly we reverse and remand.

PETERSON, J. Kay and Peter Boerst appeal a judgment declaring the location of the boundary line between their property and an adjacent property. The Boersts argue the circuit court erred when it determined (1) the parties acquiesced to a different boundary than described in their deeds, and (2) a corner marking the section line between the properties was obliterated. We conclude the circuit court correctly determined the parties acquiesced to the boundary line, but that it erred when it found the section corner was obliterated. We therefore affirm in part, reverse in part, and remand with directions.