Year in Review 2008: Important Opinions

Listen to this article

WISCONSIN SUPREME COURT

CIVIL OPINIONS

Antitrust

Taverns are immune from Wisconsin antitrust law under the implied repeal doctrine, despite agreeing not to offer drink specials.
2005AP1063 Eichenseer v. Madison-Dane County Tavern League, Inc.
Issue date: 5/12/2008

Civil Procedure

Municipalities do not have a right to intervene in an action challenging a state law on constitutional grounds, even if the case could impede their ability to protect their financial interests.
2005AP2540 Helgeland v. Wisconsin Municipalities
Issue date: 2/18/2008

Even though a press release accused a speaker of advocating murder, the circuit court properly found the speaker’s libel suit frivolous, because the speech was ambiguous, and awarded attorney fees.
2006AP396 Donohoo v. Action Wisconsin Inc.
Issue date: 6/16/2008

A property owner who has been given conditional rezoning approval from a county may seek declaratory judgment that a town’s zoning ordinance is unconstitutional.
2005AP2257 Olson v. Town of Cottage Grove
Issue date: 6/9/2008

A probate order containing a stipulation and order of dismissal, but reserving appellate rights, is a final appealable order.
2006AP424 Sanders v. Sanders
Issue date: 6/23/2008

A court should not cite unpublished Court of Appeals’ decisions, even to say they were wrongly decided.
2005AP2767 City of Sheboygan v. Nytsch
Issue date: 6/30/2008

The entry of default judgment extinguishes a defendant’s right to a jury on the issue of damages.
2006AP813 Rao v. WMA Securities, Inc.
Issue date: 7/7/2008

A circuit court may sua sponte grant relief from a default judgment.
2005AP2935 Larry v. Harris
Issue date: 7/14/2008

Where an insurer files an answer on behalf of its insured, but not itself, default judgment against the insurer was properly granted.
2006AP1566 Estate of Otto v. PIC
Issue date: 7/14/2008

A court need not state on the record why it is departing from the statutory deadlines in setting a scheduling order.
2006AP1094 & 2006AP1956 Hefty v. Strickhouser
Issue date: 7/21/2008

A Supreme Court justice is not required to disclose all contributions to his campaign.
2006AP396 Donohoo v. Action Wisconsin, Inc.
Issue date: 8/4/2008

Constitutional Law

A zoning classification that does not permit any use without a conditional permit violates substantive due process.
2006AP450 Town of Rhine v. Bizzell
Issue date: 7/7/2008

Contracts

The economic loss doctrine does not apply to claims under the Home Improvement Practices Act.
2005AP886 Stuart v. Weisflog’s Showroom Gallery, Inc.
Issue date: 4/7/2008

A buyer need not prove reasonable reliance to prevail on a false advertising claim under sec. 100.18.
2005AP2852 Novell v. Migliaccio
Issue date: 6/2/2008

Damages for tradename infringement need only be proved with reasonable, not absolute, certainty.
2007AP46 D.L. Anderson’s Lakeside Leisure Co. v. Anderson
Issue date: 12/8/2008

Environmental Law

Material constitutes asbestos-containing material under Wis. Admin. Code NR 447.02 and 40 C.F.R. Pt. 763, Subpt. E., App. E, 1.7.2.1, if any layer of a multi-layer sample contains greater than one percent asbestos.
2005AP1829 State v. Harenda Enterprises, Inc.
Issue date: 3/24/2008

Family

Tracing principles may be applied to determine an asset’s identity as individual property under a marital property agreement.
2005AP1588 Steinmann v. Steinmann
Issue date: 6/2/2008

Insurance

Where an insurer failed to provide an insured with notice of the availability of UIM coverage as part of their umbrella insurance, the insured is entitled to reformation with minimum coverage necessary to conform to sec. 632.32(4m).
2005AP1629 Stone v. Acuity
Issue date: 4/21/2008

Where a termination of benefits under an ERISA-governed plan was arbitrary and capricious, benefits must be reinstated.
2005AP2643 Summers v. Touchpoint Health Plan, Inc.
Issue date: 6/2/2008

An insurer may retain in full a subrogation settlement with a tortfeasor and a tortfeasor’s insurer after its insureds have settled with the tortfeasor and the tortfeasor’s insurer for an amount less than necessary to make the insureds whole, even though the tortfeasor’s insurance policy limits were sufficient to cover all claims, including those of both the insureds and the insurer.
2006AP976 Muller v. Society Insurance
Issue date: 6/9/2008

A CGL policy covering advertising injury includes trademark and copyright infringement accomplished by mailing samples.
2006AP1153 & 2006AP1974 Acuity v. Bagadia
Issue date: 6/23/2008

An insurer has a duty to defend an insured alleged to have built a home too close to the shoreline in violation of a restrictive covenant.
2006AP405 Liebovich v. Minnesota Ins. Co.
Issue date: 7/7/2008

An intentional act
s exclusion in a homeowner’s policy bars coverage for negligence in failing to prevent another named insured’s intentional sexual contact with a minor.
2006AP818 J.G. v. Wangard
Issue date: 7/21/2008

A CGL policy does not provide coverage for claims of statutory misrepresentation under sec. 100.20.
2005AP1287 Stuart v. Weisflog’s Showroom Gallery, Inc.
Issue date: 7/21/2008

An insurer has no duty to defend a battery claim under a homeowner’s policy that contains an intentional injury exclusion, even if the insured claims self-defense.
2006AP939 Estate of Sustache v. American Family Mut. Ins. Co.
Issue date: 7/21/2008

Judicial Discipline

Where Justice (then-judge) Annette Ziegler presided in 11 cases involving a party, when her husband served on the board of directors of that party, a public reprimand is appropriate.
2007AP2066-J Wisconsin Judicial Commission v. Ziegler
Issue date: 6/2/2008

Juveniles

Where the parties in a TPR trial stipulated that the child had been found to be in need of protective services, the parent’s right to a jury trial was not violated.
2007AP8 In re the termination of parental rights to Lyle, D.E.
Issue date: 6/2/2008

Labor

A circuit court properly vacated an arbitration award that was contrary to sec. 767.405 and to constitutional separation of powers principles.
2006AP964 Racine County v. International Association of Machinists
Issue date: 7/7/2008

Municipalities

Section 81.38 requires county funding for only those bridges built on highways in existence at the time of a bridge’s construction.
2006AP2554 Town of Madison v. County of Dane
Issue date: 7/14/2008

Open Records

A municipality may not avoid liability under the open records law by contracting with an independent contractor assessor for the collection, maintenance, and custody of its property assessment records and by then directing any requester of those records to the independent contractor assessor who has custody of the sought-after records.
2005AP1473, 2006AP174 & 2006AP175 WIREdata, Inc. v. Village of Sussex
Issue date: 6/30/2008

The Mental Health Act precludes disclosure of copies of statements of emergency detention that are in the possession of the police department, absent written informed consent or a court order.
2006AP3092 Watton v. Hegerty
Issue date: 7/7/2008

An entity is a quasi-governmental corporation within the meaning of the open records law if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status.
2006AP662 State v. Beaver Dam Area Development Corp.
Issue date: 7/21/2008

There is no deliberative process privilege protecting deliberations during closed meetings from discovery requests in a lawsuit.
2005AP1026 Sands v. The Whitnall School District
Issue date: 7/21/2008

Partnerships

The partner retiring from a partnership has the burden of proving profits attributable to the business’ use of the retiring partner’s right in the property.
2005AP2607 Estate of Matteson v. Matteson
Issue date: 6/9/2008

Property

Section 893.13(2) does not toll the two-year statute of limitations for seeking relocation benefits.
2006AP2292 C. Coakley Relocation Systems, Inc. v. City of Milwaukee
Issue date: 6/30/2008

The economic loss doctrine bars claims for misrepresentation in a residential real estate sale.
2005AP2855 Below v. Norton
Issue date: 7/7/2008

Tax

Property taxes must be based on market value, rather than actual rents.
2006AP1859 Walgreen Co. v. City of Madison
Issue date: 7/14/2008

Where a computer program requires customization to be useful to the customer, it is exempt from sales and use tax.
2004AP3239 DOR v. Menasha Corp.
Issue date: 7/21/2008

Torts

A property owner is not liable for injuries caused by an underage drinker who consumed alcohol on the defendant’s property, where the owner did not provide the alcohol.
2006AP364 Nichols v. Progressive Northern Ins. Co.
Issue date: 3/31/2008

Where a law firm allowed a client’s patent to expire, summary judgment should not have been granted on the client’s malpractice action.
2005AP3190 AccuWeb, Inc. v. Foley & Lardner
Issue date: 4/7/2008

Providing alcohol to a minor does not make a defendant jointly and severally liable for the minor’s subsequent actions.
2005AP2796 Richards v. Badger Mutual Insurance Co.
Issue date: 6/9/2008

Diagnosis during a medical peer review process is immune from liability, even if negligently performed.
2006AP1521 Rechsteiner v. Hazelden
Issue date: 7/21/2008

Employers have no duty to seek out and disclose information to an employee’s subsequent employers or the public at large concerning a former employee’s history of misconduct or antisocial behavior.
2006AP291 Hornback v. Archdiocese of Milwaukee
Issue date: 7/21/2008

Where an attorney’s benefit did not come out of the pocket of his client, there is no breach of fiduciary duty.
2005AP1527 Berner Cheese Corp. v. Krug
Issue date: 7/21/2008

CRIMINAL OPINIONS

Criminal Procedure

Despite discovery violations and trial court errs, the cumulative effect of the errors is harmless.
2006AP882-CR State v. Harris
Issue date: 3/17/2008

A criminal defendant does not have a statutory or constitutional right to compel production of police investigation reports and other nonprivileged materials by subpoena duces tecum prior to the preliminary examination.
2006AP1826-CRAC State v. Schaefer
Issue date: 4/7/2008

An invocation of the Fifth Amendment Miranda right to counsel is a defendant’s request for the assistance of an attorney in dealing with custodial interrogation by the police.
2005AP3087-CR State v. Hambly
Issue date: 2/18/2008

Where no realistic remedy is sought, the review is dismissed as improvidently granted.
2006AP1239-CR State v. Her
Issue date: 5/19/2008

The discovery that a government expert testified falsely about his credentials is newly-discovered evidence warranting a new trial.
2005AP2311-CR State v. Plude
Issue date: 6/16/2008

Suppression of bank documents is an appropriate remedy when the bank documents were obtained in violation of sec. 968.135.
2006AP1114-CR State v. Popenhagen
Issue date: 6/9/2008

Where the judge and district attorney were both witnesses to the offense being tried, the defendant’s rights to a fair trial were denied.
2006AP1847-CR State v. Jorgenson
Issue date: 6/23/2008

Where the court did not refer to read-in charges as admitted for sentencing purposes, the defendant’s plea was voluntarily entered.
2006AP64-CR State v. Straszkowski
Issue date: 6/30/2008

Affidavits that bank records are accurate are non-testimonial, and thus, do not implicate the Confrontation Clause.
2006AP2254-CR State v. Doss
Issue date: 7/21/2008

Evidence

It was not error to admit an attorney’s expert opinion testimony that a defendant engaged in a securities transaction.
2006AP672-CR State v. LaCount
Issue date: 6/16/2008

Where a statement was given voluntarily and at an interview totally discrete from a voice stress analysis, the statement is admissible.
2006AP1954-CR State v. Davis
Issue date: 7/7/2008

John Doe Proceedings

A John Doe judge has exclusive authority to subpoena witnesses in a John Doe proceeding under sec. 968.26.
2007AP230-W State ex rel. Hipp v. Murray
Issue date: 6/30/2008

Motor Vehicles

An officer had probable cause that a driver was intoxicated where the driver was speeding, crossed the highway’s centerline while being pursued, had alcohol on his breath, and admitted to drinking more than two beers.
2006AP3163 Washburn County v. Smith
Issue date: 4/7/2008

It was not error, in a prosecution for causing injury by intoxicated use of a vehicle, to instruct the jury to give materially impaired its ordinary meaning.
2006AP2753-CR State v. Hubbard
Issue date: 7/21/2008

Right to Jury

The circuit court, rather than the jury, decides whether a prosecution is barred by the statute of limitations.
2006AP1379-CR State v. MacArthur
Issue date: 7/7/2008

School Zone Enhancer

Sec. 939.632, the school zone penalty enhancer, is constitutional.
2006AP499-CR State v. Quintana
Issue date: 5/12/2008

Search and Seizure

Threats made by a school bus driver to a student on a bus are not oral communications as defined in sec. 968.27(12).
2005AP2175-CR State v. Duchow
Issue date: 6/16/2008

A dog sniff of the exterior of a vehicle located in a public place does not constitute a search under the Wisconsin Constitution.
2006AP974-CR State v. Arias
Issue date: 7/14/2008

After a protective sweep has been performed, a second search of the same area incident to arrest violates the Fourth Amendment.
2006AP2060-CR State v. Sanders
Issue date: 7/14/2008

Where a suspect made a reaching gesture, had a cluttered vehicle, lacked identification and had suspended driver’s license, was nervous and perspiring, and repeatedly reached into his pockets after being instructed not to, the officers had reasonable suspicion to search him.
2006AP102-CR State v. Sumner
Issue date: 7/21/2008

Sentencing

A circuit court is not required to read the original sentencing transcript in every reconfinement hearing.
2006AP562-CR State v. Walker
Issue date: 5/12/2008

Sexual Assault

Section 940.225(7) prohibits sexual intercourse with a dead victim.
2006AP2744-CR 2006AP2745-CR & 2006AP2746-CR State v. Grunke
Issue date: 7/14/2008

Theft by Contractor

Where a general contractor also acted as a subcontractor, and paid itself, but not other subcontractors, probable cause exists for a charge of theft by contractor.
2004AP1104-CR & 2004AP1105-CR State v. Keyes
Issue date: 6/9/2008

WISCONSIN COURT OF APPEALS

CIVIL PUBLISHED

Administrative Law

There is no due process right to appear before the Wisconsin Chiropractic Examining Board when it reviews the decision of an administrative law judge.
2007AP1072 Daniels v. Wisconsin Chiropractic Examining Board
Issue date: 3/17/2008

Where a pharmacist refused to fill a prescription for contraceptives, and failed to take steps to ensure the patient could obtain them elsewhere, he was properly reprimanded by the Pharmacy Examining board.
2006AP1110 Noesen v. State of Wisconsin Department of Regulation and Licensing
Issue date: 3/31/2008

A court cannot order that a contract be awarded to a bidder.
2007AP476 PRN Associates, LLC v. DOA
Issue date: 6/23/2008

Agency

An agent with power of attorney cannot commit a fraudulent transfer by disposing of the principal’s money as directed by the principal.
2007AP736 Methodist Manor Health Center, Inc. v. Py
Issue date: 1/21/2008

Civil Procedure

Where an attorney did no more than monitor a class action being handled by other class counsel, worked less than 24 hours, and had no expertise in the law, a contingency fee of more than $136,000 is unreasonable.
2006AP3149 Maynard Steel Casting Co. v. Sheedy
Issue date: 1/28/2008

Costs may be awarded in a garnishment action.
2007AP1048 Hometown Bank v. Acuity Ins.
Issue date: 2/25/2008

Where a party signed a release, he cannot revive his suit based on a subsequent change in the law.
2007AP357 Raasch v. City of Milwaukee
Issue date: 3/24/2008

A party seeking declaratory judgment may assert laches as an affirmative defense in the complaint.
2007AP566 Zizzo v. Lakeside Steel & Mfg. Co.
Issue date: 5/5/2008

A defendant in a class action does not have standing to object to the plaintiffs’ attorney fees.
2007AP853 Kiser v. Jungbacker
Issue date: 5/12/2008

Ignorance of case law is not grounds for relief from an agreement to arbitrate.
2007AP1992 The Farmers Automobile Ins. Assn. v. Bonaubauer
Issue date: 6/9/2008

Where a defendant rejects a settlement that is less than the ultimate judgment, interest is calculated at the same rate and amount from the time of the offer to the time of payment.
2008AP422 Morrison v. Rankin
Issue date: 9/22/2008

A court may convert a motion to dismiss into a motion for summary judgment before an answer is filed.
2007AP2857 Alliance Laundry Systems, LLC v. Stroh Die Casting Co., Inc.
Issue date: 11/24/2008

Where it was unclear whether an offer of settlement included payments to the plaintiff from a third-party self-insured employer, the plaintiff is not entitled to double costs and pre-judgment interest.
2008AP527 Hadrian v. State Farm Mut. Auto. Ins. Co.
Issue date: 12/1/2008

Civil Rights

EMTALA’s medical screening requirement does not apply to inpatients; and a child necessarily becomes an inpatient for purposes of EMTALA when born at a hospital.
2006AP3013 Preston v. Meriter Hospital, Inc.
Issue date: 2/4/2008

Constitutional Law

Where strict application of the unit rule results in a lessee receiving zero compensation for a lease that is indisputably valuable, application of the rule violates the Takings Clause.
2006AP2866 City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Authority of the City of Milwaukee
Issue date: 1/28/2008

A city’s ban on smoking in restaurants, but not private clubs, does not violate the equal protection clause.
2008AP1107 City of Wausau v. Jusufi
Issue date: 12/8/2008

Consumer Protection

A consumer has a duty to act in good faith under the Lemon Law.
2007AP681 Marquez v. Mercedes-Benz USA, LLC
Issue date: 4/14/2008

Contracts

Where a defendant knew that checks he was being issued were drawn by a fiduciary for personal benefit, he is not a holder in due course.
2007AP1178 Willowglen Academy — Wisconsin, Inc. v. Connelly Interiors, Inc.
Issue date: 2/4/2008

Where a buyer of diseased cattle waited 10 months to notify the seller, he failed to give timely notice as required by sec. 402.607.
2007AP1964 Wilson v. Tuxen
Issue date: 5/26/2008

An attorney who is discharged for cause but who performed part performance benefiting the client may only recover in quantum meruit for the amount of that benefit.
2007AP2133 Lorge v. Rabl
Issue date: 8/25/2008

Corporations

Where a corporation’s majority used corporate funds to buy assets that benefited them, but not minority shareholders, the minority shareholders have a direct cause of action.
2006AP3156 Notz v. Everett Smith Group, Ltd.
Issue date: 5/19/2008

In a dispute between corporate shareholders, the prevailing part was properly awarded attorney fees from the corporation’s assets.
2007AP477 Ehlinger v. Hauser
Issue date: 8/4/2008

Debtor and Creditor

Where a second mortgagee is joined in a foreclosure action but does not participate, and then subsequently brings a second foreclosure action and is assigned the interest of the first mortgage holder, so that the first mortgagee’s request for confirmation of the sheriff sale is withdrawn, in a later, consolidated action, the circuit court did not err when it confirmed the first sale.
2007AP001753 JP Morgan Chase Bank, NA v. Green, et. al
Issue date: 4/14/2008

Employment

It violates due process for LIRC to hold an employer liable on a theory that was not raised before the ALJ.
2007AP2405 Waste Management Incorporated v. LIRC
Issue date: 3/3/2008

A claim under the Wisconsin Fair Employment Act is not precluded by the employee’s having first filed charges with the EEOC.
2007AP2026 Aldrich v. LIRC
Issue date: 3/24/2008

A religious school is not exempt from the age discrimination claim of a first grade teacher.
2007AP496 Coulee Catholic Schools v. LIRC
Issue date: 4/28/2008

The social security offset under sec. 102.44(5) may be used to reduce temporary disability benefits paid pursuant to sec. 102.43(5) during the period that the worker is engaged in a vocational rehabilitation program.
2007AP607 Michels Pipeline Construction and Bituminous Casualty Corp. v. LIRC
Issue date: 3/17/2008

The Workers’ Compensation Act applies to out-of-state employees driving through Wisconsin on business.
2007AP001519 Estate of Torres v. Morales
Issue date: 6/23/2008

Where a Fire and Police Board refuses to give a police officer a due process hearing, mandamus warrants an order that the hearing be held and the officer given back pay and benefits.
2007AP2433 Milwaukee Police Association v. City of Milwaukee
Issue date: 6/23/2008

Where independent contractors were paid by the hour, they are employees under the unemployment insurance laws.
2006AP2694 Gilbert v. LIRC
Issue date: 12/8/2008

Environmental Law

A defendant in an environmental regulatory case has no right to a jury trial.
2007AP2449 State v. T.J. McQuay, Inc.
Issue date: 12/1/2008

Evidence

A memo from an in-house corporate attorney to managers and other attorneys is protected by the attorney-client privilege.
2007AP1400 Dyer v. Blackhawk Leather LLC
Issue date: 8/4/2008

Family

Where a man married a woman after he had a relationship with her during the conception period, he is presumed to be the natural father of her child, and the state can file a paternity action against him.
2007AP1181 In re the Paternity of T.J.D.C.
Issue date: 3/24/2008

Where a mother is a fit parent, a court cannot order her to allow more visitation to a stepparent than she chooses to allow.
2007AP001701 Lubinski v. Lubinski (O’Rourke)
Issue date: 10/6/2008

Where a man acknowledged he was a child’s father, knowing he was not, his acknowledgement is conclusive in an action for child support.
2008AP902 In re the Marriage of: Daniel T.W. v. Joni K.W.
Issue date: 12/1/2008

Insurance

Section 605.24(3) does not nullify the permission granted by the Wisconsin State Local Government Property Insurance Fund to municipalities to waive the Fund’s subrogation rights.
2007AP1112 Wisconsin State Local Government Property Insurance Fund v. Thomas A. Mason Co.
Issue date: 2/25/2008

The issuer of a Medicare supplemental insurance policy must pay all inpatient hospital charges incurred after Medicare Part A is exhausted.
2007AP934 Froedtert Memorial Lutheran Hospital, Inc. v. National States Ins. Co.
Issue date: 3/24/2008

An insurance exclusion for criminal acts by an authorized representative of the insured precludes coverage for theft by an agent contracted to administer the insured’s worker’s compensation program.
2007AP1549 & 2007AP1918 MATC v. Frontier Adjusters of Milwaukee
Issue date: 4/28/2008

An insurance policy that excludes UIM coverage for employees is not illusory.
2007AP641 Ellifson v. West Bend Mutual Ins. Co.
Issue date: 5/19/2008

Where an insured has two UIM insurers, both may reduce coverage by payments from the other.
2007AP1342 Progressive Northern Ins. Co. v. Kirchoff
Issue date: 6/9/2008

An insurance carrier’s rejection of a tender of defense does not waive the right to contest coverage.
2007AP1426 Sisson v. Hansen Storage Co.
Issue date: 6/30/2008

Funds of staff physicians are not property owned by the hospital within the meaning of a commercial crime policy.
2007AP1983 Meriter Health Services, Inc. v. Travelers Casualty & Surety Co. of America
Issue date: 7/28/2008

Where the titled owner of a motorcycle may not have been the de facto owner, summary judgment should not be granted to the insurer pursuant to a drive other car exclusion.
2008AP184 Young v. West Bend Mutual Ins. Co.
Issue date: 9/1/2008

Personal liability umbrella policies need not include UM coverage under sec. 632.32(4)(a).
2008AP113 Etter v. State Farm Mutual Auto. Ins. Co.
Issue date: 10/20/2008

Where an insured was injured while driving a vehicle owned by her mother-in-law, who lived with the insured, she cannot recover UM benefits due to the policy’s drive-other-car exclusion.
2008AP807 Nischke v. Aetna Health Plans
Issue date: 11/10/2008

Where the alleged tortfeasor who drove a motor vehicle was insured, but the vehicle was not, the injured party cannot recover under his uninsured motorist coverage.
2008AP1324 Blum v. 1st Auto & Casualty Ins. Co.
Issue date: 12/15/2008

Juveniles

The meeting requirement for adjudicating a juvenile a habitual truant does not incorporate the notice requirements of 118.16(2)(cg).
2007AP834 In the Interest of Brandon L.Y.
Issue date: 5/5/2008

Even when all parties stipulated to dismissal of a CHIPS action pursuant to 805.04(1), the voluntary dismissal statute, the circuit court has authority to reject the dismissal.
2008AP147-W State ex rel. Kenneth S. v. Circuit Court for Dane County
Issue date: 7/7/2008

It was error in a TPR proceeding for the court to decide an element of parental unfitness.
2007AP1494 & 2007AP1495 Manitowoc County Human Services Dep’t. v. Allen J.
Issue date: 8/18/2008

Where the circuit court failed to advise a parent of the potential dispositions when accepting a plea, the plea was involuntary.
2008AP1126 Oneida County Department of Social Services v. Therese S.
Issue date: 10/6/2008

Labor

A public school system improperly barred the display of signs in the classroom supporting union activity.
2007AP840 Milwaukee Board of School Directors v. WERC
Issue date: 7/7/2008

The assignment of deputies to transport federal and state prisoners to and from a county jail pursuant to a contract for the rental of bed space is not a constitutionally protected duty of the sheriff’s office and is thus, subject to the restrictions of a CBA.
2007AP1615 Ozaukee County v. Labor Association of Wisconsin
Issue date: 11/24/2008

Municipalities

A board-up order triggers the six-month time frame before a raze order can be issued, even if the current owner did not own the property at the time of the board-up order.
2007AP300 A&A Enterprises v. City of Milwaukee
Issue date: 2/25/2008

A town has the authority under sec. 236.45(2) to impose a temporary town-wide prohibition on land division while developing a comprehensive plan.
2006AP2761 Wisconsin Realtors Association, Inc. v. Town of West Point
Issue date: 3/10/2008

Local laws banning directional signs on federal highways are not preempted by sec. 84.30(3)(a).
2007AP1418 Donaldson v. Town of Spring Valley
Issue date: 3/31/2008

Section 66.0217(11)(c) bars a town from contesting in court a direct annexation by unanimous approval under sec. 66.0217(2).
2007AP2491 Town of Merrimac v. Village of Merrimac
Issue date: 6/2/2008

A contract between a utility and a county shifting relocation costs to the county in the event of highway expansion is void and unenforceable.
2007AP1315 WEPCO v. Outagamie County
Issue date: 4/14/2008

Natural Resources

Access to piers and boat slips cannot be granted to the owner of non-riparian property.
2007AP2378 Anchor Point Condo Owner’s Ass’n. v. Fish Tale Properties, LLC
Issue date: 7/14/2008

The owner of riparian land cannot sell the land while reserving the right to use a pier.
2006AP2747 Berkos v. Shipwreck Bay Condominium Assn.
Issue date: 7/28/2008

Inaction by the government does not forfeit the public’s right to access navigable waters.
2007AP2354 Vande Zande v. Town of Marquette
Issue date: 8/18/2008

Open Records

A law enforcement agency cannot deny an open records request, merely because it has forwarded a copy of the document to the District Attorney.
2007AP323 Portage Daily Register v. Columbia County Sheriff’s Department
Issue date: 2/11/2008

Once the attorney general is no longer in office, she has no standing to litigate an open records request she began while in office.
2007AP1930 State v. Zien
Issue date: 9/22/2008

Professional Responsibility

Where an attorney’s brief contained unfounded attacks on opposing counsel, they attorney is referred to OLR for discipline.
2007AP2329 Bettendorf v. St. Croix County
Issue date: 5/26/2008

Property

A clause in a real estate contract giving the parties five days to consult with an attorney and seek modification does not render the contract illusory.
2007AP812 Devine v. Notter
Issue date: 5/12/2008

Where structures built by tenants confer no value to the landlord, they are not entitled to restitution for unjust enrichment.
2007AP38 Ludyjan v. Continental Casualty Co.
Issue date: 2/18/2008

A clause in a property agreement that it is binding on heirs, successors or assigns, applies to the entire document.
2007AP1752 The Nature Conservancy of Wisconsin, Inc.
v. Altnau
Issue date: 6/23/2008

Leaseback and repurchase provisions are not consideration sufficient to make an option to purchase a binding option contract.
2007AP1120 McClellan v. Charly
Issue date: 7/28/2008

Where a seller keeps the buyer’s earnest money after the buyer defaults, he may not sue for actual damages.
2007AP1799 Osborn v. Dennison
Issue date: 8/11/2008

Where a storage facility sold a lessor’s property without providing the required notice, judgement was properly awarded to the lessor.
2007AP002077 Cook, et. al v. Public Storage Inc.
Issue date: 10/6/2008

A party with the right of condemnation cannot lose that right by waiver or estoppel.
2007AP2541 Andrews v. PSC
Issue date: 12/8/2008

Public Health

The DHFS rule that, if an applicant for long term care services experiences a limitation to his functional abilities less than one-third of the time, he is not eligible, is invalid.
2007AP1350 Cholvin v. DHFS
Issue date: 8/4/2008

Remedies

Contempt sanctions under sec. 785.04 for continuing contempt are available, even though the contempt has ceased.
2006AP803 Christensen v. Sullivan
Issue date: 2/4/2008

Where the defendant harassed the plaintiff at a tavern, and library, and sent repeated e-mails and phone calls to third parties with the intent to harass the plaintiff, a harassment injunction was properly issued.
2007AP347 Welytok v. Ziolkowski
Issue date: 5/5/2008

Securities

Reliance is not an element of securities fraud under sec. 551.41(2).
2007AP124 Cuene v. Hilliard
Issue date: 5/12/2008

Tax

It is not unreasonable to impose special assessments for road improvement only on commercial properties, and not residential ones.
2006AP2339 Park Avenue Plaza v. City of Mequon
Issue date: 2/25/2008

Where an assessor examined 13 sales of beach front property, and concluded that the only relevant factors in sales price were beach length and beach quality, it was not error to assess beach front properties on those bases.
2007AP761 Anic v. Board of Review of Town of Wilson
Issue date: 4/7/2008

To get a refund of cigarette taxes under sec. 139.323, the sale must occur on land designated as trust land on or before Jan. 1, 1983.
2007AP1985 Ho-Chunk Nation v. DOR
Issue date: 5/12/2008

Where property was purchased as part of other property, an expert’s testimony as to the value of the parcel is not entitled to the same presumption of correctness as an arms length sale of a whole plot.
2007AP2523 Forest County Potawatomi Community v. Township of Lincoln
Issue date: 9/22/2008

A court may not impose a greater real estate tax than the one the taxpayer is challenging.
2008AP1221 Trailwood Ventures, LLC v. Village of Kronenwetter
Issue date: 12/8/2008

Torts

Where a supplier sold asbestos to the plaintiff’s employer, a jury could conclude that the supplier’s asbestos caused the plaintiff’s cancer.
2007AP735 Horak v. Building Services Industrial Sales Co.
Issue date: 2/25/2008

Cheerleading is not a contact sport whose participants are immune from liability under sec. 895.525(4m).
2006AP1886 Noffke v. Bakke
Issue date: 2/25/2008

Section 26.21(1), allowing for double damages and attorney fees, for causing a forest fire, is limited to railroads.
2007AP983 Heritage Farms, Inc. v. Markel Ins. Co.
Issue date: 3/10/2008

In a medical malpractice case, the insurer of a health care provider cannot seek contribution from a non-health-care-provider employee for his or her negligence.
2007AP306 Rogers v. Saunders
Issue date: 3/10/2008

In instructing a jury in a products liability case, the circuit court did not err in refusing to submit to the jury whether the product was unreasonably dangerous to bystanders.
2006AP2933 Horst v. Deere & Co.
Issue date: 5/5/2008

Where a plaintiff went to a water park, and used an attraction, knowing he could slip and fall into the water, summary judgment was properly granted to the defendant under the open and obvious danger doctrine.
2007AP1369 Pagel v. Marcus Corp.
Issue date: 6/9/2008

In a medical malpractice case, the trial court properly did not instruct the jury on informed consent, even though the doctor did not inform a patient that he could have a CT scan.
2007AP619 Bubb v. Brusky
Issue date: 6/16/2008

Where a newspaper’s false statements were the result of confusing the plaintiff with someone else, the plaintiff cannot show actual malice.
2007AP2314 Biskupic v. Cicero
Issue date: 6/23/2008

The nondelegability to third parties of an employer’s duty under the safe place statute does not prevent suit against a state employee for failure to comply with a safety regulation adopted pursuant to sec. 101.055(3).
2007AP385 Umansky v. ABC Insurance Co.
Issue date: 7/7/2008

A contractor for the state of Wisconsin is entitled to governmental immunity from liability.
2007AP1543 Estate of Brown v
. Mathy Construction Co.
Issue date: 7/7/2008

Where a driver’s BAC was .111 and he had no prior drunk driving convictions before the automobile accident, the district court properly did not allow the plaintiff to seek punitive damages.
2007AP2621 Henrikson v. Strapon
Issue date: 9/1/2008

Where there were no building code violations at a hotel, damages were improperly awarded under the safe place statute.
2007AP667 Szalacinski v. Campbell
Issue date: 9/8/2008

The known danger exception to discretionary act immunity applies, where a government employee negligently jumped on top of a metal stall, causing it to collapse.
2008AP89 Pries v. McMillon
Issue date: 11/3/2008

Section 895.04 does not provide for the recovery of lost inheritance by a party on behalf of a class of heirs.
2007AP2793 The Estate of Thomas R. Lamers, et al. v. American Hardware Mutual Ins. Co.
Issue date: 11/3/2008

The evidence is sufficient to support a jury finding that lead paint manufacturers did not intentionally cause a public nuisance.
2007AP2873 City of Milwaukee v. NL Industries
Issue date: 12/1/2008

The owner of a home in which a tenant keeps a dog, is a keeper of the dog and is strictly liable for any damages the dog causes.
2007AP2651 Pawlowski v. American Family Mutual Ins. Co.
Issue date: 12/8/2008

Transportation

The administrative and judicial review provided in sec. 84.30(18) is the exclusive procedure for determining the legality of a billboard after a removal order has issued, even if DOT has already removed the sign.
2008AP439 Lamar Central Outdoor, LLC v. DOT
Issue date: 12/1/2008

Trusts and Estates

Attorney fees and costs must be paid out of the estate as a whole, rather than a beneficiary’s share.
2007AP42 In re the Estate of Becker
Issue date: 2/11/2008

A spouse may not bring a claim of improper gift under sec. 766.70(6) in a probate action.
2007AP1751 In re the Estate of Joyce
Issue date: 5/26/2008

Unlawful and intentional killing within the meaning of sec. 854.14 does not include assisting another to commit suicide.
2007AP2680 In re the Estate of Schunk
Issue date: 10/6/2008

Zoning and Planning

A petition for judicial review of a zoning decision filed on the thirtieth day, but after the clerk of court closed, is untimely.
2007AP1265 Hartford Citizens for Responsible Government v. City of Hartford Board of Zoning Appeals
Issue date: 6/30/2008

CRIMINAL PUBLISHED

Bail Jumping

Where a defendant signed a signature bond, he could be charged with bail jumping based on subsequent conduct, even though he was not released from custody, because of other pending cases.
2007AP2869-CR – 2007AP2872-CR State v. Dewitt
Issue date: 8/4/2008

Child Pornography

In a prosecution for possession of child pornography, the state does not have to prove that the images involved real children, rather than computer-generated pictures.
2006AP3025-CR State v. Van Buren
Issue date: 1/14/2008

Criminal Commitment

When a criminal defendant is found not guilty by reason of mental disease or defect and committed, the order should be reviewed under a sufficiency of the evidence standard.
2008AP404-CR State v. Wilinski
Issue date: 10/13/2008

Criminal Procedure

It is not ineffective assistance of counsel to argue alternative and inconsistent theories to the jury.
2007AP929-CR State v. Westmoreland
Issue date: 1/7/2008

Where a defendant was arrested and held in custody in another state, but interrogated by a Wisconsin police officer, Wisconsin law determines the admissibility of his confession.
2006AP1440-CR State v. Townsend
Issue date: 2/4/2008

Where there has been a shift of medical opinion whether a victim’s injuries were consistent with shaken baby syndrome since the trial, the defendant is entitled to a new trial.
2007AP933 State v. Edmunds
Issue date: 2/11/2008

Whenever probable cause exists to justify detention of a suspect, regardless of whether it exists on the offense under investigation, a showup identification is not necessary within the meaning of Dubose.
2006AP2502-CR State v. Nawrocki
Issue date: 2/11/2008

It was not ineffective assistance of counsel to call three witnesses whose versions of events would not contradict the testimony of the complainant.
2007AP1142-CR State v. Hannon
Issue date: 3/24/2008

Where the prosecutor told the jury that the defendant never denied committing the offense until he took the witness stand, even though she possessed two police reports showing that he did deny the crime, the conviction must be reversed.
2007AP778-CR State v. Weiss
Issue date: 4/28/2008

Where the circuit court ascertained the defendant understood the maximum penalties, the defendant is not entitled to withdraw his guilty plea.
2007AP905-CR State v. Hoppe
Issue date: 6/2/2008

It did not violate the defendant’s rights for the court to prohibit him from looking at the witness during her statement at his sentencing.
2007AP1192-CR & 2007AP1193-CR State v. Payette
Issue date: 6/9/2008

Where two charges are transactionally related, the prosecutor properly added the second charge after the defendant was bound over based on the first charge.
2007AP2061 State v. White
Issue date: 6/9/2008

A defendant claiming perfect self-defense is not obligated to disclose, prior to trial, a summary of the evidence he intends to offer in furtherance of his defense regarding what he believed to be the violent character of the victim.
2007AP2382-CR State v. McClaren
Issue date: 6/30/2008

A trial judge may inform a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offer the opportunity of plea withdrawal.
2007AP964-CR State v. Marinez
Issue date: 7/7/2008

Where a juror, a witness, and the defendant all went to school together at one time, the court properly designated the juror an alternate.
2007AP2160-CR State v. Gonzalez
Issue date: 8/18/2008

Claims of ineffective assistance of appellate counsel are not required to be raised in a sec. 974.06 proceeding when they arise after a no-merit proceeding has already been completed.
2008AP84-W State ex rel. Panama v. Hepp
Issue date: 8/18/2008

Acrimony between trial counsel and postconviction counsel is not grounds to disqualify an attorney.
2007AP1867-CR State v. Peterson
Issue date: 8/25/2008

Where a suppression motion was held, the case dismissed and refiled, a new suppression motion must be held.
2007AP1441-CR State v. Wasserman
Issue date: 9/1/2008

Where there is no evidence to support the claim of a defendant, convicted of homicide by intoxicated use of a vehicle, that the victim was also intoxicated, his motion for post-conviction discovery was properly denied.
2007AP2948-CR State v. Kletzien
Issue date: 11/10/2008

Where a defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver, the burden of proof is upon the State.
2007AP2472-CR State v. Cole
Issue date: 11/24/2008

Where a defendant did not cooperate with the procedures for court-appointed counsel on appeal, it was not an erroneous exercise of discretion to deny appointment.
2008AP435-CR State v. Kennedy
Issue date: 12/1/2008

Double Jeopardy

eWhere a defendant was charged with two counts, he can be charged with two counts of bail jumping for failing to appear in court, even though he only signed one bond.
2007AP845-CR State v. Eaglefeathers
Issue date: 12/22/2008

Evidence

In a prosecution for recklessly endangering safety, it was error to admit drug-related other acts evidence.
2007AP1042-CR State v. Payano
Issue date: 4/21/2008

CLICK HERE FOR PART 2