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CaseLaw Express
Week of January 30, 2012

 Supreme Court Cases
  • Attorney Discipline

    Office of Lawyer Regulation v. Milos
    Docket: 2011AP002625 02-03-12
    PER CURIAM. This is a reciprocal discipline matter. The Office of Lawyer Regulation (OLR) filed a complaint against Attorney Mark Milos seeking the imposition of discipline reciprocal to that imposed by the Illinois Supreme Court. On September 26, 2011, the Illinois Supreme Court suspended Attorney Milos' Illinois law license for 90 days, effective October 17, 2011, based on two counts of misconduct. Attorney Milos and the OLR have entered a stipulation under SCR 22.12 for the imposition of discipline reciprocal to that imposed by the Illinois Supreme Court. After our review of the matter, we accept the stipulation and impose the same 90-day suspension imposed by the Illinois Supreme Court. We also require that Attorney Milos comply with the terms and conditions established by the Illinois Supreme Court. Because the parties' stipulation does not address the issue of costs, and because the stipulation requests that this court issue a final order consistent with the stipulation, no costs will be imposed.
  • Criminal Law/ Jurors/ Peremptory Challenge/ New Trial/ Juries/ Ineffective Assistance of Counsel

    State v. Sellhausen
    Docket: 2010AP000445 02-01-12
    SHIRLEY S. ABRAHAMSON, C.J. This is a review of a published opinion of the court of appeals. The court of appeals reversed the judgment of conviction of Sharon A. Sellhausen, the defendant, and the order denying post-conviction relief of the circuit court for Sheboygan County, L. Edward Stengel, Judge.
  • Criminal Law/ Motor Vehicle Law/ Fleeing Police/ Traffic Stops/ Statutes/ Jury Instructions/ Evidence/ Good Faith Exception to Fleeing Police/ Statutory Construction-Interpretation/ Self Defense/ Victim/ Right to Present Defense/ Constitutional Law

    State v. Hanson
    Docket: 2008AP002759 02-01-12
    PATIENCE DRAKE ROGGENSACK, J. This is a review of a published decision of the court of appeals that affirmed the judgment of the circuit court, holding Daniel H. Hanson guilty of fleeing a traffic officer, a felony under Wis. Stat. § 346.04(3) (2007-08). The jury found that Hanson knowingly fled a sheriff's deputy after a traffic stop, and that Hanson's "willful or wanton disregard" of the officer's signal interfered with or endangered the officer or the public. The jury rejected Hanson's self-defense claim by which he asserted that his flight toward a police station was motivated by his fear that the traffic officer would "beat" or "kill" him. Further, Hanson argues that the circuit court should have admitted evidence of the traffic officer's character on the theory that the officer was a "victim" for purposes of admitting character evidence under Wis. Stat. § 904.04(1)(b). Finally, Hanson briefly raises a constitutional claim that he was deprived of the right to present a defense, and that a new trial is warranted in the interest of justice.
  • Insurance/ Summary Judgment/ Declaratory Judgment/ Duty to Defend/ Liability/ Contracts/ Contract Construction-Interpretation/ Negligence/ Evidence/ Four Corners Rule/ Definition of Motor Vehicle Law

    Olson v. Farrar
    Docket: 2009AP002385 01-31-12
    ANN WALSH BRADLEY, J. Mt. Morris Mutual Insurance Company seeks review of a published decision of the court of appeals reversing the circuit court's grant of a declaratory and summary judgment in its favor. Todd Olson filed suit against Robert Farrar, alleging he was liable for property damage to Olson's trailer home and vehicle. Farrar's insurer, Mt. Morris, sought a declaration that it had neither a duty to defend nor a duty to indemnify Farrar under the terms of its insurance policy.
 Court of Appeals Cases
  • Contracts/ Arbitration/ Conscionability/ Consumer Contract/ Creditor/ Debtor/ Procedure Unconscionable/ Waiver of Right to Class Action/ Small Claims/ Attorney Fees

    Cottonwood Financial v. Estes
    Docket: 2009AP000760 01-31-12
    Recommended for Publication
    PETERSON, J. Darcie Estes appeals a judgment and an order confirming an arbitration award and an order compelling arbitration. Estes argues that the arbitration agreement was unconscionable and, therefore, unenforceable. In an opinion dated May 25, 2010, we concluded that the arbitration agreement was substantively unconscionable because it required Estes to waive her ability to proceed as part of a class. We therefore reversed and remanded for evidentiary findings on whether the agreement was also procedurally unconscionable.
  • Contracts/ Damages/ Evidence/ Dealership/ Wisconsin Fair Dealership Law (WFDL)/ Discovery/ New Trial/ Judicial Authority-Discretion/ Economic Good Cause

    Truck Equipment, Inc. v. Stoughton Trailers
    Docket: 2010AP003123 01-31-12
    PETERSON, J. Stoughton Trailers, LLC, appeals a judgment, entered on a jury verdict, awarding Truck Equipment, Inc. $1,231,988. The jury found that Stoughton improperly terminated a dealership agreement with Truck Equipment, and it rejected Stoughton's defense that Stoughton's poor economic circumstances provided good cause for the termination. On appeal, Stoughton argues the circuit court erred by admitting evidence of its parent company's financial health, which it contends was not relevant to the good cause analysis. However, we conclude that, by relying on a commingled income statement to demonstrate its losses, Stoughton opened the door to the admission of its parent company's financial information. We therefore affirm.
  • Contracts/ Warranty Construction-Interpretation/ Evidence/ Construction Contract/ Liability/ Damages

    Dierl v. Lindal Cedar Homes
    Docket: 2010AP002256 01-31-12
    PER CURIAM. Lindal Cedar Homes, Inc., a manufacturer of custom home kits, appeals a judgment finding it liable for roof repairs under a ten-year limited warranty certificate. It asserts that no "major structural defect" existed to trigger warranty coverage, insufficient evidence supports an award for future repairs to a lower section of the roof, and the circuit court erroneously failed to find liable the construction contractor, Carson Builders, Inc. We reject Lindal's arguments and affirm.
  • Criminal Law/ Constitutional Law/ Traffic Stops/ Evidence/ Ineffective Assistance of Counsel/ Prosecutorial Misconduct

    State v. Marshall
    Docket: 2011AP000106 01-31-12
    PER CURIAM. David Marshall appeals an order denying his pro se postconviction motion in which he challenged his convictions on two counts of second-degree recklessly endangering safety as a repeater. He argues that his trial counsel was ineffective for failing to assert a violation of Marshall's Fourth Amendment rights when two law enforcement officers attempted to effect a Terry stop, and for failing to cross-examine the officers with prior inconsistent statements. He also argues prosecutorial misconduct for presenting perjured testimony. We reject these arguments and affirm the order.
  • Criminal Law/ Constitutional Law-Due Process/ Sentencing/ New Factor/ Resentencing/ Judicial Authority-Discretion/ Sentence Colloquy

    State v. Wojczak
    Docket: 2010AP003138 02-02-12
    PER CURIAM. Michael Wojczak appeals the circuit court judgment convicting him of intentionally causing great bodily harm to a child, contrary to Wis. Stat. § 948.03(2)(a) (2009-10), and the order denying Wojczak's motion for postconviction relief. Wojczak seeks resentencing, arguing that the circumstances surrounding his then-girlfriend's (now-wife's) pregnancy are a new factor that justifies resentencing. Alternatively, Wojczak argues that the sentencing court erroneously exercised its discretion and violated Wojczak's due process rights because he had insufficient notice of and opportunity to address the significance of the pregnancy and because he was sentenced based on inaccurate information regarding the pregnancy. We agree with Wojczak that his right to due process was violated at sentencing because the sentencing court relied on inaccurate information. We reverse and remand for resentencing.
  • Criminal Law/ Evidence

    State v. Xolot
    Docket: 2010AP003017 01-31-12
    PER CURIAM. Pedro Xolot appeals from a judgment, entered upon a jury's verdict, convicting him of four felonies. He contends that the evidence was insufficient to sustain his conviction for attempted second-degree sexual assault. We disagree and affirm.
  • Criminal Law/ Evidence/ Ineffective Assistance of Counsel/ Statutes/ Record Testimony

    State v. Turner
    Docket: 2011AP000746 01-31-12
    PER CURIAM. Lawrence Turner appeals a judgment convicting him of sexual assault of a child and an order denying his postconviction motion in which he alleged ineffective assistance of counsel. He argues that the trial court erred when it received in evidence at the bench trial a video recording of the six-year-old victim's statement and that his trial counsel was ineffective when dealing with Turner's allegation that someone coached the victim during her trial testimony. We reject these arguments and affirm the judgment and order.
  • Criminal Law/ Inmates/ Sentencing/ New Sentence/ Hearing/ Judicial Authority-Discretion/ Statutes

    State v. Lettenberger
    Docket: 2011AP000546 02-01-12
    PER CURIAM. Steven Lettenberger appeals from a judgment convicting him of assault by a prisoner and from a postconviction order denying his motion for a new sentencing hearing. We affirm because the circuit court properly exercised its sentencing discretion.
  • Criminal Law/ Motor Vehicle Law/ Traffic Stops/ Statutes/ Statutory Construction-Interpretation/ Evidence/ Probable Cause

    State v. Boyd
    Docket: 2011AP001056 02-01-12
    Recommended for Publication
    BROWN, C.J. Terrance T. Boyd was pulled over for driving a car with an Illinois license plate displayed at the rear, but no license plate in front. The officer who stopped Boyd testified that, to his knowledge, Illinois vehicles typically carry a license plate in the front and in the back. So he believed that Boyd's car should have had a plate in the front as well. Boyd was eventually charged with possession of marijuana with intent to deliver. We uphold the stop. It is undisputed that Boyd was issued two plates in the state of Illinois. Wis. Stat. § 341.15(1) (2009-10) states that: "[w]henever 2 registration plates are issued for a vehicle, one plate shall be attached to the front and one to the rear of the vehicle." (Emphasis added.) This means that, if any state issues two plates, the corresponding automobile must display two plates to drive legally in Wisconsin. We reject Boyd's reliance on language in the statute detailing the requirements for registering a vehicle in Wisconsin as in any way controlling. We affirm.
    State v. Boyd
    Docket: 2011AP001056E 02-03-12
    PLEASE TAKE NOTICE that corrections were made to paragraph 7 in the above-captioned opinion which was released on February 1, 2012.
  • Criminal Law/ New Trial/ Ineffective Assistance of Counsel/ Evidence/ Closing Argument

    State v. Benjamin
    Docket: 2010AP002919 02-01-12
    PER CURIAM. Marcus S. Benjamin has appealed from a judgment convicting him of one count of first-degree sexual assault of a child and one count of incest with a child, both convictions as a repeat offender. He has also appealed from an order denying his motion for postconviction relief. We affirm the judgment and order.
  • Criminal Law/ Repeat Offender/ Sentencing/ Sentence Modification/ Statutes

    State v. Holan
    Docket: 2011AP001717 01-31-12
    HOOVER, P.J. Christopher Holan appeals a judgment of conviction for two counts of misdemeanor battery and one count of disorderly conduct, all as a repeater, and an order denying postconviction relief. He argues his admission to the prior conviction that formed the basis for the repeater enhancement was defective, and, therefore, his sentence should be commuted to the maximum penalties for the offenses without the repeater enhancer. We affirm.
  • Criminal Law/ Sentence Modification/ Judicial Authority-Discretion

    State v. McKay
    Docket: 2010AP003002 01-31-12
    PER CURIAM. Edward McKay, Jr., appeals a judgment convicting him of robbery with use of force and theft. He also appeals an order denying his postconviction motion in which he requested sentence modification based on a more lenient sentence given to his co-defendant, Aaron Algee. McKay argues the court improperly exercised its discretion and denied him his equal protection right by refusing to consider Algee's sentence and establish a rational basis for the disparate treatment. We reject that argument and affirm the judgment and order.
  • Criminal Law/ Sentencing/ Sentence Modification/ New Factor

    State v. Boyden
    Docket: 2011AP000977 02-01-12
    Recommended for Publication
    NEUBAUER, P.J. Anthony C. Boyden appeals from a trial court order denying his motion for sentence modification. Prior to his sentencing in 2004, Boyden initiated contact with law enforcement and voluntarily assisted in the investigation of a suspected drug trafficker and his drug trafficking gang. Boyden contends that his substantial assistance to law enforcement prior to sentencing was unknowingly overlooked at sentencing. He further argues that the fruits of his assistance, which were not realized until after sentencing, constitute a new factor for purposes of sentence modification. We conclude that Boyden has failed to demonstrate that the trial court erred in its determination that his substantial assistance to law enforcement was not unknowingly overlooked at sentencing. However, consistent with our holding in State v. Doe, 2005 WI App 68, 280 Wis. 2d 731, 697 N.W.2d 101, we conclude that the fruits of Boyden's presentence assistance may constitute a new factor for purposes of sentence modification. We reverse the trial court's order denying Boyden's sentence modification request and remand for the trial court's consideration of Boyden's request in light of Doe.
  • Elections/ Intervenors/ Right to Intervene/ Recalls/ Petitions/ Statutes/ Timeliness/ WI Constitution/ Protection of Interest/ Representatives of Groups/ Remedy/ Intervention

    Friends of Scott Walker v. Brennan
    Docket: 2012AP000032 02-03-12
    PER CURIAM. Several recall campaign committees appeal an order denying their motion to intervene in a suit brought by Governor Scott Walker's campaign committee and an elector against the Government Accountability Board. We conclude that the recall committees are entitled to intervene as a matter of right. Therefore, we reverse the order denying intervention and remand with directions for the circuit court to vacate its later rulings that were made without the participation of the intervenors.
  • Family Law/ Divorce/ Waiver of Payment for Transcripts/ Statutes/ Indigent

    Schroeder v. Schroeder
    Docket: 2010AP002765 01-31-12
    PER CURIAM. Ronald Schroeder, pro se, appeals the circuit court's order, entered after a Girouard hearing, denying his request to waive payment for transcripts. See State ex. rel Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 159, 454 N.W.2d 792, 797 (1990) (indigent appellant entitled to transcript without payment if he or she "has an arguably meritorious claim"). This court affirms.
  • Family Law/ TPR/ Constitutional Law-Due Process/ Admissions/ Evidence/ Judicial Authority-Discretion/ Discovery/ Withdrawal of Admissions

    Dane County v. Kevin D.
    Docket: 2011AP002748 02-02-12
    SHERMAN, J. Kevin D. appeals an order of the circuit court terminating his parental rights to Nevaeh D. Kevin contends that his due process rights were violated when factual assertions in Dane County Department of Human Services' requests for admissions were deemed admitted due to his failure to respond timely to those requests. He also contends that the circuit court erroneously exercised its discretion by denying his motion to withdraw the deemed admissions. I affirm.
  • Family Law/ TPR/ Statutes/ Jury Instructions/ Ineffective Assistance of Counsel/ Waiver of Rights

    Heather T.C. v. Donald M.H.
    Docket: 2010AP000467 02-01-12
    GUNDRUM, J. Donald M. H. appeals from the termination of his parental rights on the grounds of abandonment and failure to assume parental responsibility. See Wis. Stat. § 48.415(1), (6). First, Donald claims the trial court erred when it did not submit jury instructions and two separate verdicts related to two separate alleged periods of abandonment. Second, Donald claims he was denied effective assistance of counsel when his trial counsel failed to request separate jury instructions and separate verdicts for each claim of abandonment, and when counsel failed to elicit testimony or introduce other evidence regarding specific activities Donald claims he did with his son, such as going fishing, to the zoo, and on nature hikes, which Donald believes would have shown he had a substantial parental relationship with his son. Donald has waived his right to object to the jury instructions and verdict on abandonment and has not shown that his trial counsel's performance was ineffective. We affirm. Following a brief procedural history, we first address the jury instructions and verdict on abandonment; we then turn to the ineffective assistance of counsel claims.
  • Mental Health/ Chapter 51 Commitments/ Evidence

    Winnebago County v. Nathan W.
    Docket: 2011AP002099 02-01-12
    REILLY, J. Nathan W. appeals from an order extending his civil commitment for mental health treatment. Nathan argues that Winnebago County failed to make the requisite showing of dangerousness, which in recommitment proceedings may be satisfied by showing that the individual would be a proper subject for commitment if treatment were withdrawn. Wis. Stat. § 51.20(1)(am). Because the evidence presented at Nathan's commitment hearing and all the reasonable inferences therefrom support the commitment, we affirm.
  • Mental Health/ Chapter 55/ Protective Placement/ Evidence/ Guardian/ Incompetent

    Outagamie County v. Gregory M.
    Docket: 2011AP001978 01-31-12
    MANGERSON, J. Gregory M. appeals an order for protective placement. He contends the evidence in support of the protective placement order was insufficient. We disagree and affirm.
  • Personal Injury/ Insurance/ Property/ Negligence/ Liability/ Contracts/ Contract Construction-Interpretation

    Schinner v. Gundrum
    Docket: 2011AP000564 02-02-12
    Recommended for Publication
    BLANCHARD, J. Marshall Schinner appeals a summary judgment dismissing West Bend Insurance Company from his suit against West Bend and its insured, Michael Gundrum. Schinner alleges that he sustained serious injuries after being assaulted by an underage guest at a party Gundrum hosted on family business property. Schinner argues that the circuit court erred in concluding that there was no "occurrence" under the Gundrums' homeowner's insurance policy and, separately, that an exclusion pertaining to non-insured locations bars coverage. We agree with Schinner on both points. We apply case law addressing when a physical assault qualifies as an "accident" for purposes of insurance coverage and, in doing so, conclude that the assault here was an "occurrence." We also conclude that the non-insured location exclusion does not apply, because Schinner's injuries did not "arise out of" the family business property. Accordingly, we reverse the judgment and remand for further proceedings.
  • Property/ Misrepresentation/ Contracts/ Contract Breach/ Theft by Fraud/ Warranty/ Sales/ Reliance/ Summary Judgment

    Dillhyon v. Dunn
    Docket: 2011AP001175 02-01-12
    PER CURIAM. In this defective-basement case, Michael D. and Ilene L. Dillhyon appeal a judgment dismissing their misrepresentation, breach-of-contract and theft-by-fraud claims against Patricia A. Dunn, a/k/a Patricia A. Wiesner, and Kenneth L. Wiesner (the Wiesners), who sold the Dillhyons a house. The common thread in the claims is the reasonableness of the Dillhyons' reliance on the Real Estate Condition Report the Wiesners prepared. We conclude that the information the Dillhyons had in hand should have signaled the prudence of the further investigation the contract permitted, such that their reliance was not reasonable. We affirm.
  • Summary Judgment/ Contracts/ Discovery/ Damages/ Contract Construction-Interpretation

    Transwood, Inc. v. WRR
    Docket: 2011AP000503 01-31-12
    PER CURIAM. Transwood, Inc., appeals a summary judgment dismissing its contract claims against WRR Environmental Services Co., Inc. Transwood argues the circuit court erroneously determined that the contract did not provide for interest charges on late payments. It further argues the court erred by determining WRR had paid all principal balances due because the court erroneously denied Transwood's request for an extension of time to conduct discovery. We disagree and affirm.
  • Summary Judgment/ Malicious Prosecution/ Sanctions/ Guardian Ad Litem/ Placement/ Contempt

    Kramshuster v. Schwefel
    Docket: 2010AP003020 01-31-12
    PER CURIAM. Gary A. Kramschuster and Stephanie M. Przytarski, both pro se, appeal from a circuit court order granting summary judgment to Attorney Laura R. Schwefel. Kramschuster and Przytarski sued Schwefel for malicious prosecution based on actions she took as guardian ad litem for Przytarski's minor child. On appeal, Kramschuster and Przytarski challenge the circuit court's order denying their claims and declining to sanction Schwefel for filing a late brief. We affirm.
  • Summary Judgment/ Ordinary Care/ Breach of Duty/ Negligence/ Administrative Code/ Contracts

    Weather Shield Mfg. v. Compass Group
    Docket: 2010AP002992 02-02-12
    SHERMAN, J. Weather Shield Manufacturing and its insurer, Continental Casualty Insurance Company, appeal an order of summary judgment dismissing Weather Shield's negligence claims against Compass Group USA, Inc., C.L. Swanson, and their insurers. We conclude that the undisputed facts do not permit a finding that Compass and Swanson breached a duty of ordinary care and that summary judgment was therefore appropriate. Accordingly, we affirm.
  • Zoning/ Declaratory Judgment/ Ordinance/ Statutes/ Towns & Cities/ Counties/ Procedure

    Adams Outdoor Advertising v. County of Dane
    Docket: 2010AP000178 02-02-12
    Recommended for Publication
    HIGGINBOTHAM, J. Dane County appeals a circuit court's declaratory judgment holding that a town billboard ordinance enacted pursuant to Wis. Stat. § 60.23(29) (2009-10) (the "town billboard statute") preempts a county's billboard ordinance enacted under Wis. Stat. § 59.69(1) and (4) (the "general zoning statute"). This dispute stems from Adams Outdoor Advertising, L.P.'s efforts to construct an advertising billboard on a highway located in the Town of Madison. Adams sought permits from the Town and from the Wisconsin Department of Transportation to construct the billboard, but not from Dane County. Adams brought a declaratory judgment action in circuit court to clarify whether Adams was required to obtain a billboard construction permit from the County. The court granted summary judgment in favor of Adams, declaring that, because the Town's billboard ordinance preempts the County's billboard ordinance, Adams was not required to obtain a permit from the County before constructing the billboard.
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