CaseLaw Express 06/07/2010 - State Bar of Wisconsin

Court of Appeals Cases

Administrative Regulations/ Administrative Law Construction-Interpretation/ Constitutional Law/ Damages/ Summary Judgment/ Immunity/ Federal Statutes

Henke-Clarson Funeral Service v. Jackson
Docket: 2009AP000363 06-03-10
DYKMAN, P.J. The State of Wisconsin Department of Regulation and Licensing, the State of Wisconsin Funeral Directors Examining Board and individuals within both organizations (collectively "the board") appeal from a circuit court decision denying its motion for summary judgment and granting summary judgment to Cassandra Clarson, Roger Henke and Henke-Clarson Funeral Home (collectively Henke and Clarson). The board argues that it is entitled to summary judgment, because all the defendants are entitled to both qualified and absolute immunity. It also argues that, on the facts of this case, Henke and Clarson are not entitled to declaratory or injunctive relief regarding the constitutionality of the board's administrative rules regulating funeral directors.
Contracts/ Choice Of Law/ Insurance/ Coverage/ Public Policy/ Summary Judgment/ Declaratory Judgment

Swan & Associates v. American Safety Casualty
Docket: 2009AP000531 06-02-10
PER CURIAM. Swan & Associates, Inc., and Robert Swanfeld (collectively Swan) appeal a judgment and an order dismissing their coverage claims against American Safety Casualty Insurance Company. Swan argues the circuit court erred by enforcing a Georgia choice-of-law provision in the insurance agreement. We affirm the court's choice-of-law determination, but remand for a determination of coverage under Georgia law.
Contracts/ Corporations/ Settlements/ Assignment/ Offset/ Post Judgment Interest/ Waiver/ Statutes/ Default Judgment

Sabee v. Amalgamated International
Docket: 2009AP001149 06-02-10
PER CURIAM. Amalgamated International Enterprises, LLC, Draper Products, Inc., and Lois Sabee (Amalgamated) appeal a summary judgment declaring (1) Amalgamated is not entitled to postjudgment interest on a judgment it obtained by assignment, and (2) Lois may therefore not claim credit for postjudgment interest paid to Amalgamated. Amalgamated argues it is not bound by an agreement, made prior to the judgment's assignment, waiving postjudgment interest. We disagree and affirm.
Criminal Law/ Ineffective Assistance Of Counsel/ Insurance/ Sentencing/ Judicial Authority-Discretion

State v. Dougan
Docket: 2009AP000050 06-02-10
PER CURIAM. Don Allan Ray Dougan appeals a judgment, entered upon a jury's verdict, convicting him of two counts of repeated sexual assault of the same child and one count of possession of a firearm by a felon. Dougan also challenges the order denying his motion for postconviction relief. Dougan argues he was denied the effective assistance of trial counsel, the presentence report writer violated his constitutional rights, and the circuit court erroneously exercised its sentencing discretion. We reject these arguments and affirm both the judgment and order.
Criminal Law/ Sentencing/ Notice/ Constitutional Law-Due Process/ Probation

State v. Jensen
Docket: 2009AP001922 06-02-10
PER CURIAM. William Jensen, Jr., appeals an amended judgment of conviction extending and modifying his probation. Jensen argues he was not afforded due process because he did not receive notice of the proceedings. We agree. We therefore reverse and remand for the circuit court to vacate the amended judgment of conviction and enter an order terminating Jensen's improperly extended probation.
Criminal Law/ Sentencing/ Resentencing

State v. Byrne
Docket: 2009AP001792 06-02-10
PER CURIAM. Michael T. Byrne appeals a judgment sentencing him for attempted second-degree sexual assault of a child. He also appeals an order denying his postconviction motion for resentencing alleging he was sentenced on erroneous information. Because we conclude the trial court inappropriately used the sentencing guidelines for the completed crime of second-degree sexual assault of a child, we reverse the judgment and order and remand the matter for resentencing.
Criminal Law/ Statutes/ Sentencing/ Sentencing Credit/ Sentencing Modification/ Statutory Construction-Interpretation

State v. Bleskacek
Docket: 2009AP001654 06-02-10
PER CURIAM. Daniel J. Bleskacek appeals an order denying his motion for a sentence adjustment pursuant to WIS. STAT. § 973.195. The circuit court concluded it lacked authority to reduce the initial confinement term that Bleskacek had already served. Bleskacek also appeals an order denying his motion to modify the sentence based on a new factor. Because we conclude the circuit court lacked authority to adjust the sentence under § 973.195 and Bleskacek failed to establish a new factor, we affirm the orders.
Employment Law/ Statutes/ Defamation/ Unemployment Compensation/ Wages/ Public Policy

Farady-Sultze v. Aurora Medical Center
Docket: 2009AP002429 06-02-10
Recommended for Publication
BROWN, C.J. Aurora Medical Center of Oshkosh, Inc., fired Mary K. Farady-Sultze from her job after discovering that it had mistakenly overpaid her for a period between June 13, 2008, and October 13, 2008, and concluding that Farady-Sultze kept those overpayments to herself. Farady-Sultze sued Aurora, noting that an exception to Wisconsin's employee-at-will doctrine occurs when the termination violates public policy. She claimed that the firing was contrary to WIS. STAT. § 103.455 (2007-08) (outlining the process due before an employer may deduct wages for faulty workmanship, loss, theft or damage). But we hold that Aurora did not run afoul of this statute, which is designed to offer certain protections for an employee who has earned wages taken away. Here, Farady-Sultze never earned the extra payments; the statute does not protect her. We also reject her intentional infliction of mental distress and defamation claims and affirm.
Family Law/ Divorce/ Martial Property Agreement (MPA)/ Contracts/ Property Division/ Judicial Authority-Discretion

Arnold v. Arnold
Docket: 2009AP002105 06-02-10
PER CURIAM. Denise Arnold appeals from an order which amended a judgment of divorce on remand following Robert Arnold's appeal from the original judgment of divorce. Under the amended judgment Denise, who was awarded the parties' home, was required to pay Robert $85,140 for his share of equity in the home. She argues that the parties' marital property agreement (MPA) should have been enforced with the inequitable provision regarding the sale of the home severed and that the circuit court lacked authority to modify specific provisions of the original judgment of divorce. Robert cross-appeals the order arguing that the unequal property division is an erroneous exercise of discretion. We conclude that the circuit court made a proper division of the marital property and we affirm the order.
Family Law/ TPR/ Ineffective Assistance Of Counsel/ Evidence/ Jury Instructions

State v. Maceo W.
Docket: 2009AP003098 06-02-10
BRENNAN, J. Maceo W. appeals from the trial court's order terminating his parental rights to Jalacea W. and from the trial court's order denying his motion for post-termination relief. He contends, on numerous grounds, that his trial counsel was ineffective. We disagree and affirm.
Family Law/ TPR/ Pleas/ Knowingly, Voluntarily & Intelligently

Brown County v. Brenda B.
Docket: 2010AP000321 06-02-10
HOOVER, P.J. Brenda B. appeals orders terminating her parental rights to her son, Desmond F., and denying her postdisposition motion. She contends her motion presented a prima facie case she did not knowingly and intelligently enter her no contest plea to the grounds portion of the petition. Specifically, Brenda argues the court inadequately informed her of the potential dispositions and failed to inform her she was waiving her constitutional right to parent. We conclude the court was not required to advise Brenda of the additional statutory sub-dispositions or of her constitutional right to parent. We therefore affirm.
Personal Injury/ Medical Malpractice/ Statute Of Limitations

Mehra v. Chang
Docket: 2009AP000013 06-02-10
PER CURIAM. Nilima Mehra appeals pro se from a corrected order dismissing her medical malpractice claims against Drs. Steven I. Chang, John E. Whitcomb and Robert C. Hardie, and St. Luke's Medical Center ("the doctors and St. Luke's"). We conclude that Mehra's claims are barred by the three-year statute of limitations. We therefore affirm.
Towns & Cities/ Zoning/ Ordinances/ Ordinance Construction-Interpretation/ Jurisdiction

Players Pizza & Pub v. City of Oshkosh
Docket: 2009AP001259 06-02-10
SNYDER, J. Players Pizza & Pub, LLP, (Players) appeals from an order affirming the decision of the board of Zoning Appeals for the City of Oshkosh. In this zoning case, the circuit court upheld the board's determination that Players' parking lot, which existed as a legal, nonconforming use prior to 2005, was removed and reconstructed such that it now needed to conform to zoning code drainage and setback standards. Players contends that the board acted arbitrarily and unreasonably when it interpreted the code and applied it to the work done on the parking lot. Players asserts that the work performed was not reconstruction, and that Players should be permitted to continue the use of its nonconforming parking lot. We agree and reverse the order of the circuit court.


Week of May 31, 2010 Supreme Court Cases Property/ Contracts/ Specific Performance/ Damages/ Interest Award/ Statutes/ Impossibility Defense/ Judgments Ash Park, L.L.C. v. Alexander & Bishop, Ltd. Docket: 2008AP001735 06-03-10 ANN WALSH BRADLEY, J. The petitioner, Alexander & Bishop, Ltd., seeks review of a published decision of the court of appeals affirming the orders of the circuit court. After Alexander & Bishop breached a contract to purchase a parcel of real estate from Ash Park, LLC, the circuit court granted summary judgment in favor of Ash Park and ordered specific performance of the contract. It also imposed interest on the purchase price. Court of Appeals Cases Administrative Regulations/ Administrative Law Construction-Interpretation/ Constitutional Law/ Damages/ Summary Judgment/ Immunity/ Federal Statutes Henke-Clarson Funeral Service v. Jackson Docket: 2009AP000363 06-03-10 DYKMAN, P.J. The State of Wisconsin Department of Regulation and Licensing, the State of Wisconsin Funeral Directors Examining Board and individuals within both organizations (collectively "the board") appeal from a circuit court decision denying its motion for summary judgment and granting summary judgment to Cassandra Clarson, Roger Henke and Henke-Clarson Funeral Home (collectively Henke and Clarson). The board argues that it is entitled to summary judgment, because all the defendants are entitled to both qualified and absolute immunity. It also argues that, on the facts of this case, Henke and Clarson are not entitled to declaratory or injunctive relief regarding the constitutionality of the board's administrative rules regulating funeral directors. Contracts/ Choice Of Law/ Insurance/ Coverage/ Public Policy/ Summary Judgment/ Declaratory Judgment Swan & Associates v. American Safety Casualty Docket: 2009AP000531 06-02-10 PER CURIAM. Swan & Associates, Inc., and Robert Swanfeld (collectively Swan) appeal a judgment and an order dismissing their coverage claims against American Safety Casualty Insurance Company. Swan argues the circuit court erred by enforcing a Georgia choice-of-law provision in the insurance agreement. We affirm the court's choice-of-law determination, but remand for a determination of coverage under Georgia law. Contracts/ Corporations/ Settlements/ Assignment/ Offset/ Post Judgment Interest/ Waiver/ Statutes/ Default Judgment Sabee v. Amalgamated International Docket: 2009AP001149 06-02-10 PER CURIAM. Amalgamated International Enterprises, LLC, Draper Products, Inc., and Lois Sabee (Amalgamated) appeal a summary judgment declaring (1) Amalgamated is not entitled to postjudgment interest on a judgment it obtained by assignment, and (2) Lois may therefore not claim credit for postjudgment interest paid to Amalgamated. Amalgamated argues it is not bound by an agreement, made prior to the judgment's assignment, waiving postjudgment interest. We disagree and affirm. Criminal Law/ Ineffective Assistance Of Counsel/ Insurance/ Sentencing/ Judicial Authority-Discretion State v. Dougan Docket: 2009AP000050 06-02-10 PER CURIAM. Don Allan Ray Dougan appeals a judgment, entered upon a jury's verdict, convicting him of two counts of repeated sexual assault of the same child and one count of possession of a firearm by a felon. Dougan also challenges the order denying his motion for postconviction relief. Dougan argues he was denied the effective assistance of trial counsel, the presentence report writer violated his constitutional rights, and the circuit court erroneously exercised its sentencing discretion. We reject these arguments and affirm both the judgment and order. Criminal Law/ Sentencing/ Notice/ Constitutional Law-Due Process/ Probation State v. Jensen Docket: 2009AP001922 06-02-10 PER CURIAM. William Jensen, Jr., appeals an amended judgment of conviction extending and modifying his probation. Jensen argues he was not afforded due process because he did not receive notice of the proceedings. We agree. We therefore reverse and remand for the circuit court to vacate the amended judgment of conviction and enter an order terminating Jensen's improperly extended probation. Criminal Law/ Sentencing/ Resentencing State v. Byrne Docket: 2009AP001792 06-02-10 PER CURIAM. Michael T. Byrne appeals a judgment sentencing him for attempted second-degree sexual assault of a child. He also appeals an order denying his postconviction motion for resentencing alleging he was sentenced on erroneous information. Because we conclude the trial court inappropriately used the sentencing guidelines for the completed crime of second-degree sexual assault of a child, we reverse the judgment and order and remand the matter for resentencing. Criminal Law/ Statutes/ Sentencing/ Sentencing Credit/ Sentencing Modification/ Statutory Construction-Interpretation State v. Bleskacek Docket: 2009AP001654 06-02-10 PER CURIAM. Daniel J. Bleskacek appeals an order denying his motion for a sentence adjustment pursuant to WIS. STAT. § 973.195. The circuit court concluded it lacked authority to reduce the initial confinement term that Bleskacek had already served. Bleskacek also appeals an order denying his motion to modify the sentence based on a new factor. Because we conclude the circuit court lacked authority to adjust the sentence under § 973.195 and Bleskacek failed to establish a new factor, we affirm the orders. Employment Law/ Statutes/ Defamation/ Unemployment Compensation/ Wages/ Public Policy Farady-Sultze v. Aurora Medical Center Docket: 2009AP002429 06-02-10 Recommended for Publication BROWN, C.J. Aurora Medical Center of Oshkosh, Inc., fired Mary K. Farady-Sultze from her job after discovering that it had mistakenly overpaid her for a period between June 13, 2008, and October 13, 2008, and concluding that Farady-Sultze kept those overpayments to herself. Farady-Sultze sued Aurora, noting that an exception to Wisconsin's employee-at-will doctrine occurs when the termination violates public policy. She claimed that the firing was contrary to WIS. STAT. § 103.455 (2007-08) (outlining the process due before an employer may deduct wages for faulty workmanship, loss, theft or damage). But we hold that Aurora did not run afoul of this statute, which is designed to offer certain protections for an employee who has earned wages taken away. Here, Farady-Sultze never earned the extra payments; the statute does not protect her. We also reject her intentional infliction of mental distress and defamation claims and affirm. Family Law/ Divorce/ Martial Property Agreement (MPA)/ Contracts/ Property Division/ Judicial Authority-Discretion Arnold v. Arnold Docket: 2009AP002105 06-02-10 PER CURIAM. Denise Arnold appeals from an order which amended a judgment of divorce on remand following Robert Arnold's appeal from the original judgment of divorce. Under the amended judgment Denise, who was awarded the parties' home, was required to pay Robert $85,140 for his share of equity in the home. She argues that the parties' marital property agreement (MPA) should have been enforced with the inequitable provision regarding the sale of the home severed and that the circuit court lacked authority to modify specific provisions of the original judgment of divorce. Robert cross-appeals the order arguing that the unequal property division is an erroneous exercise of discretion. We conclude that the circuit court made a proper division of the marital property and we affirm the order. Family Law/ TPR/ Ineffective Assistance Of Counsel/ Evidence/ Jury Instructions State v. Maceo W. Docket: 2009AP003098 06-02-10 BRENNAN, J. Maceo W. appeals from the trial court's order terminating his parental rights to Jalacea W. and from the trial court's order denying his motion for post-termination relief. He contends, on numerous grounds, that his trial counsel was ineffective. We disagree and affirm. Family Law/ TPR/ Pleas/ Knowingly, Voluntarily & Intelligently Brown County v. Brenda B. Docket: 2010AP000321 06-02-10 HOOVER, P.J. Brenda B. appeals orders terminating her parental rights to her son, Desmond F., and denying her postdisposition motion. She contends her motion presented a prima facie case she did not knowingly and intelligently enter her no contest plea to the grounds portion of the petition. Specifically, Brenda argues the court inadequately informed her of the potential dispositions and failed to inform her she was waiving her constitutional right to parent. We conclude the court was not required to advise Brenda of the additional statutory sub-dispositions or of her constitutional right to parent. We therefore affirm. Personal Injury/ Medical Malpractice/ Statute Of Limitations Mehra v. Chang Docket: 2009AP000013 06-02-10 PER CURIAM. Nilima Mehra appeals pro se from a corrected order dismissing her medical malpractice claims against Drs. Steven I. Chang, John E. Whitcomb and Robert C. Hardie, and St. Luke's Medical Center ("the doctors and St. Luke's"). We conclude that Mehra's claims are barred by the three-year statute of limitations. We therefore affirm. Towns & Cities/ Zoning/ Ordinances/ Ordinance Construction-Interpretation/ Jurisdiction Players Pizza & Pub v. City of Oshkosh Docket: 2009AP001259 06-02-10 SNYDER, J. Players Pizza & Pub, LLP, (Players) appeals from an order affirming the decision of the board of Zoning Appeals for the City of Oshkosh. In this zoning case, the circuit court upheld the board's determination that Players' parking lot, which existed as a legal, nonconforming use prior to 2005, was removed and reconstructed such that it now needed to conform to zoning code drainage and setback standards. Players contends that the board acted arbitrarily and unreasonably when it interpreted the code and applied it to the work done on the parking lot. Players asserts that the work performed was not reconstruction, and that Players should be permitted to continue the use of its nonconforming parking lot. We agree and reverse the order of the circuit court.		Links WisBar.org WisBar Legal Research/Fastcase CaseLaw Express Archives Also of Interest Appeals court clarifies 'concealment' exception to medical malpractice claims The appeals court held that a patient must have contact with a doctor subsequent to a negligent act to invoke the "concealment" exception to the statute of limitations for medical malpractice claims. 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