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Year In Review: Important Opinions 2010
By: WISCONSIN LAW JOURNAL STAFF//January 12, 2011//
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A comprehensive listing of the Wisconsin Supreme Court and Wisconsin Court of Appeals published opinions from 2010.
Wisconsin Supreme Court
CIVIL OPINIONS
Business
A franchisee who has materially breached a dealership contract need not repair all harm done to cure the breach.
2008AP1385 Volvo Trucks North America v. DWD
Issue date: March 22, 2010
Civil Procedure
Where the defendant’s attorney was not served with the amended complaint, it was error to enter default judgment.
2008AP1494 Miller v. The Hanover Ins. Co.
Issue date: July 19, 2010
The Supreme Court has jurisdiction to review any order of the Court of Appeals.
2008AP2440-LV Parker v. Beverly Enterprises, Inc.
Issue date: July 19, 2010
Where two entities share offices, have the same registered agent, and the same attorney, a complaint against one relates back to an earlier complaint filed against the other.
2009AP828 Tews v. NHI, LLC
Issue date: Dec. 27, 2010
Constitutional Law
Damage to property caused by the government’s removing groundwater from property is not compensable as a taking.
2008AP921 E-L Enterprises, Inc., v. Milwaukee Metropolitan Sewerage District
Issue date: July 12, 2010
Article XIII, Section 13 of the Wisconsin Constitution – the marriage amendment – was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments.
2008AP1868 McConkey v. Van Hollen
Issue date: July 5, 2010
Retroactive application of secs. 102.17(4) and 102.66(1), to shift responsibility for traumatic work injuries from the Work Injury Supplemental Benefit Fund to the employer or insurer, is unconstitutional.
2008AP3135 Society Insurance v. LIRC
Issue date: July 19, 2010
The legislature’s transfer of $200 million from the Injured Patients and Families Compensation Fund to the Medical Assistance Trust Fund is unconstitutional.
2009AP728 Wisconsin Medical Society, Inc., v. Morgan
Issue date: July 26, 2010
Consumer Protection
In an action under the Wisconsin Consumer Act, an objection to venue must be intentionally waived.
2007AP1253 Brunton v. Nuvell Credit Corp.
Issue date: July 5, 2010
Contracts
In a breach of contract claim against a computer consultant, an expert witness is not required to survive summary judgment.
2007AP2861 Racine County v. Oracular Milwaukee, Inc.
Issue date: April 12, 2010
An unambiguous merger clause in a term credit agreement bars the admission of parol evidence.
2008AP1845 Town Bank v. City Real Estate Development, LLC
Issue date: Dec. 20, 2010
Corporations
Where a corporation’s book value cannot be determined because the corporation’s books do not accurately reflect assets and liabilities, a buy-sell agreement based on book value is unenforceable.
2007AP477 Ehlinger v. Hauser
Issue date: July 5, 2010
Employment
A corporation cannot be ordered to reinstate in-house counsel as a remedy for discrimination when front pay is available instead.
2008AP1703 Sands v. Menard, Inc.
Issue date: July 26, 2010
Insolvency
Claims under sec. 128.17(2) are claims against property of the debtor’s estate, not claims against property of the issuer of the standby letters of credit.
2007AP2791 ADMANCO, Inc., v. 700 Stanton Drive, LLC
Issue date: July 19, 2010
Insurance
Even though a driver stopped and inquired whether an insured was injured after an accident, the insured is entitled to UM coverage, where the driver left without leaving information after the insured said he was not hurt.
2008AP919 Zarder v. Humana Ins. Co.
Issue date: May 24, 2010
An insured with a deductible for its liability coverage has a cognizable bad faith claim against its insurance company when the company has control over settlement of a third-party claim and engages in bad faith conduct toward the insured, even though the judgment does not exceed the policy limits.
2008AP1303 Roehl Transport, Inc., v. Liberty Mutual Ins. Co.
Issue date: June 28, 2010
Even though an insurance policy is an indemnity-only excess umbrella policy that does not promise a defense, the insurer has a duty to defend its insured.
2007AP1868 Johnson Controls, Inc. v. London Market
Issue date: July 5, 2010
Section 632.32(4) did not mandate coverage in a situation where the sole alleged tortfeasor was insured and his insurance equaled the level of UM coverage in the injured insured’s policy.
2008AP1324 Blum v. 1st Auto & Casualty Ins. Co.
Issue date: July 19, 2010
Health insurers are obligated to pay maternity coverage for surrogate mothers.
2008AP2937 Mercycare Ins. Co. v. Wisconsin Commissioner of Insurance
Issue date: July 26, 2010
Juveniles
The obligation of the Department of Health and Human Services to provide supervision implicitly includes assisting the parents to meet the conditions of return of the children.
2008AP3065, 2008AP3066, 2008AP3067, 2009AP136, 2009AP137 & 2009AP138 Sheboygan County Department of Health & Human Services v. Tanya M.B.
Issue date: July 5, 2010
Open Records
Government employees’ personal e-mails are not subject to the open records laws.
2008AP967-AC Schill v. Wisconsin Rapids School District
Issue date: July 26, 2010
Prisons
Where evidence is inconclusive, and does not contradict evidence in a prison discipline hearing, it is unnecessary to decide whether a prisoner has a right to exculpatory evidence.
2006AP948 Jackson v. Buchler
Issue date: Dec. 20, 2010
Property
A master-planned community is not subject to the Condominium Ownership Act.
2008AP10 Solowicz v. Forward Geneva National
Issue date: March 29, 2010
A court has discretion to order specific performance when a buyer breaches a contract for the purchase of real property.
2008AP1735 Ash Park, LLC v. Alexander & Bishop, Ltd.
Issue date: June 14, 2010
Where a residential lease does not unambiguously make the tenant liable for damage caused by any act of the tenant, the landlord is responsible pursuant to sec. 704.07.
2008AP1700 Maryland Arms Limited Partnership v. Connell
Issue date: July 12, 2010
Summary judgment is improper where it is unclear whether an easement was intended to convey riparian rights.
2008AP1546 Konneker v. Romano
Issue date: July 12, 2010
A mortgagee foreclosing under the shortened redemption period provided for by sec. 846.103(2) does not forfeit the right to obtain a judgment against a guarantor of payment even though it must waive its right to collect any deficiency from the debtor.
2008AP912 Bank Mutual v. S.J. Boyer Construction, Inc.
Issue date: July 19, 2010
Unless a conveyance states otherwise, an easement is transferable.
2008AP1144 Borek Cranberry Marsh, Inc., v. Jackson County
Issue date: July 26, 2010
Where an easement grants a means of access to enjoy the servient property, the easement cannot be used to access other property.
2008AP2028 Grygiel v. Monches Fish & Game Club, Inc.
Issue date: July 26, 2010
Tax
Sales of admission to concerts performed by the Milwaukee Symphony Orchestra are subject to sales tax.
2008AP1684 Milwaukee Symphony Orchestra, Inc., v. Wisconsin Department of Revenue
Issue date: May 10, 2010
The developer is liable for declared, but unbuilt, condominium units.
2007AP2886 The Saddle Ridge Corp. v. Board of Review for Town of Pacific
Issue date: June 28, 2010
Torts
The owner of a home is strictly liable for injuries caused by a dog that belongs to her housemate.
2007AP2651 Pawlowski v. American Family Mut. Ins. Co.
Issue date: Jan. 4, 2010
Where an attorney bought property from former clients without informing them that the contract would benefit him and potentially disadvantage them, the attorney breached the fiduciary duty, and rescission is appropriate.
2008AP787 Groshek v. Trewin
Issue date: July 5, 2010
Where a government employee disregarded specific instructions, the ministerial duty exception to governmental immunity applies.
2008AP89 Pries v. McMillon
Issue date: July 12, 2010
Where a city made no express guarantees they would remedy a construction defect, the 10-year builders statute of repose bars liability.
2008AP2812 Hocking v. City of Dodgeville
Issue date: July 12, 2010
A negligence claim based on failure to warn is barred by the general rule that an employer is not liable in tort for injuries sustained by an independent contractor’s employee while he or she is performing the contracted work.
2008AP170 Tatera v. FMC Corp.
Issue date: July 26, 2010
Trusts and Estates
The burden of paying state and federal taxes on nonprobate assets is on the estate.
2009AP1021 Estate of Sheppard v. Schleis
Issue date: May 10, 2010
CRIMINAL OPINIONS
Constitutional Law
Due process does not require a finding of dangerousness to issue an order compelling involuntary medication of a person committed under Chapter 971.
2007AP2767-CR State v. Wood
Issue date: March 29, 2010
Criminal Procedure
Under sec. 971.19(12), venue for an action against a public official alleging misconduct in public office is in the county where the defendant resides.
2008AP552-CR State v. Jensen
Issue date: May 31, 2010
A circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest; and the court need not recuse itself after doing so.
2008AP755-CR State v. Conger
Issue date: July 5, 2010
Where a defendant did not validly waive his right to counsel, the circuit court could not violate his right to self-representation.
2008AP1521-CR State v. Imani
Issue date: July 12, 2010
A reasonable observer’s perception of a court’s comments are not indicative of whether the court improperly relied on race or gender.
2008AP810-CR State v. Harris
Issue date: July 19, 2010
Indigent defendants do not have a right to reject appointed counsel in favor of substitute counsel.
2008AP2342-CR State v. Jones
Issue date: July 19, 2010
Where a defendant is told that he faces a maximum possible sentence that is higher, but not substantially higher, than that authorized by law, the circuit court has not violated the plea colloquy requirements, and the defendant is not entitled to an evidentiary hearing on whether his plea was knowingly entered.
2009AP3-CR State v. Cross
Issue date: July 19, 2010
Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism.
2008AP697 State v. Henley
Issue date: July 26, 2010
A defendant may not raise issues in a subsequent sec. 974.06 motion that he could have raised in response to a no-merit report, absent a sufficient reason for failing to raise the issues earlier in the no-merit appeal.
2007AP795 State v. Allen
Issue date: July 26, 2010
A juvenile may not offer evidence in the reverse waiver hearing for the purpose of contradicting the offense charged.
2007AP2827-CRAC State v. Kleser
Issue date: July 26, 2010
It did not violate due process to charge a defendant with a crime roughly 36 years after the alleged offenses.
2007AP2711-CR State v. McGuire
Issue date: July 26, 2010
Convictions for both first-degree reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence are not multiplicitous.
2008AP1968-CR State v. Patterson
Issue date: Nov. 22, 2010
Evidence
Where evidence that a child had previously been sexually assaulted would not be admissible, it was not ineffective assistance of counsel for the attorney not to attempt to present the evidence.
2008AP1185-CR State v. Carter
Issue date: May 31, 2010
It was error to permit a defendant to introduce allegedly false prior accusations of sexual assault by the complainant.
2008AP652-CR State v. Ringer
Issue date: July 19, 2010
Motor Vehicles
It does not violate a defendant’s right to present a defense to exclude admission of a preliminary breath test.
2007AP1898-CR State v. Fischer
Issue date: Feb. 8, 2010
Prior suspensions of a driver’s operating privilege under another state’s ‘zero tolerance’ law are convictions within the meaning of secs. 343.307(1)(d) and 340.01(9r).
2008AP3144-CR State v. Carter
Issue date: Dec. 13, 2010
Search and Seizure
An officer cannot search a cell phone without a warrant, but if he has probable cause, he may answer incoming calls.
2007AP1378-CR State v. Carroll
Issue date: Feb. 8, 2010
A court order authorizing the installation and monitoring of a GPS tracking device on a vehicle constitutes a valid warrant.
2008AP658-CR State v. Sveum
Issue date: July 26, 2010
Although the officers’ entry was unlawful, the fruits of a subsequent search are admissible, where the suspect voluntarily gave officers consent to search.
2008AP880-CR State v. Artic
Issue date: July 26, 2010
The exclusionary rule bars the use of evidence obtained by a law enforcement officer in his execution of an arrest warrant that was void from the beginning because the warrant had no basis in fact or law.
2008AP2231-CR State v. Hess
Issue date: July 26, 2010
Police officers’ warrantless entry into an apartment and subsequent search was supported by probable cause and justified by exigent circumstances when the officers corroborated three of the four details relayed by an anonymous informant, knocked and announced their presence, and immediately heard footsteps running from the door.
2008AP266-CR State v. Robinson
Issue date: July 26, 2010
Officers legally entered a home pursuant to their community caretaker function, where the door was open, no one answered, and two people were sleeping on the floor next to cocaine.
2008AP1204-CR State v. Pinkard
Issue date: July 26, 2010
The good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.
2007AP1894-CR State v. Dearborn
Issue date: July 26, 2010
When a search incident to arrest is conducted by law enforcement officers who act in objectively reasonable reliance on clear and settled precedent authorizing that search, but the search is later declared unconstitutional, the remedy of exclusion does not apply to bar admission of the illegally obtained evidence.
2007AP900-CR State v. Littlejohn
Issue date: July 26, 2010
Sentencing
A defendant can constitutionally be required to register as a sex offender even though his underlying conviction is not of a sexual nature.
2008AP1011 State v. Smith
Issue date: March 29, 2010
Where a defendant was in custody in another state in connection with the course of conduct for which he is sentenced in Wisconsin, he is entitled to sentence credit.
2006AP1811-CR State v. Carter
Issue date: July 19, 2010
Sexually Violent Persons
Section 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing, when a sexually violent person petitions for discharge.
2008AP52 State v Arends
Issue date: June 21, 2010
Wisconsin Court of Appeals
CIVIL PUBLISHED
Business Law
A receiver’s cause of action against two officers/owners of a now-insolvent business for breaching their fiduciary duties to the corporation must be dismissed under Beloit Liquidating Trust v. Grade, 2004 WI 39, because the business was still a going concern during the time of the alleged misconduct.
2007AP203 Polsky v. Virnich and Moores
Issue date: Feb. 8, 2010
Civil Procedure
An order stating that it is final for purposes of appeal is the final disposition.
2009AP2368 Black v. City of Kenosha Housing Authority
Issue date: Jan. 11, 2010
Issue preclusion does not apply where the previous lawsuit involved other parties and claims.
2009AP540 Flooring Brokers, Inc., v. Florstar Sales, Inc.
Issue date: Feb. 15, 2010
Where a plaintiff attempted to obtain a defendant’s address from his attorney and family friend, hired two private investigators, and tried national clearinghouses, before publishing service under Chapter 985, the plaintiff was reasonably diligent in attempting service, and it was error to dismiss the complaint.
2009AP747 Loppnow v. Bielik
Issue date: April 12, 2010
Where requests for admissions were only two months overdue when a party moved to withdraw the admissions, the opposing party was not prejudiced, and the trial court should have permitted withdrawal.
2009AP838 Rivera v. Perez
Issue date: June 28, 2010
The partial dismissal of a prisoner lawsuit does not count as a strike for purposes of the three-strike provision contained in sec. 801.02(7)(d) of the Wisconsin Prisoner Litigation Reform Act.
2009AP1850 State of Wisconsin ex rel. Henderson v. Raemisch
Issue date: Aug. 2, 2010
Although an auto accident occurred in Wisconsin, Minnesota law governs the issue of insurance coverage where the policy was issued in Minnesota.
2009AP483 Kender v. Auto Owners Ins. Co.
Issue date: Aug. 16, 2010
When a client believes an attorney has consented to arbitration without authorization, it is the client’s burden to show that the action was unauthorized.
2009AP1264 D&D Carpentry, Inc., v. U.S. Bancorp
Issue date: Aug. 23, 2010
An arbitration agreement that provides for continuing jurisdiction of the arbitration board does not conflict with sec. 788.09.
2009AP2415 Sewart v. Silvercryst Limited, Inc.
Issue date: Sept. 20, 2010
It was not an abuse of discretion not to preclude an insurer from contesting coverage as a sanction for not producing the policy in response to discover requests.
2009AP1321 Zarnstorff v. Neenah Creek Custom Trucking
Issue date: Oct. 25, 2010
Where the plaintiff named the wrong defendant, and the trial court permitted the plaintiff to amend the complaint and then immediately entered default judgment, the judgment must be reversed.
2009AP2549 Johnson v. Cintas Corp. No. 2
Issue date: Nov. 22, 2010
A court’s subject matter jurisdiction is not affected by its errors of law.
2008AP2587 & 2009AP739 Dustardy H. v. Bethany H.
Issue date: Dec. 27, 2010
Civil Rights
Where a police department released a statement of emergency detention to the subject’s employer, it violated sec. 51.30(4).
2009AP1924 Milwaukee Deputy Sheriff’s Association v. City of Wauwatosa
Issue date: June 21, 2010
A recipient of rent assistance cannot sue under Section 1983 after termination of her benefits without first seeking certiorari review.
2009AP1656 Collins v. City of Kenosha Housing Authority
Issue date: July 26, 2010
Constitutional Law
Even though a notice denying housing assistance stated the denial was the result of a disorderly conduct citation, the notice was inadequate.
2009AP2204 Bratcher v. Housing Authority of the City of Milwaukee
Issue date: June 14, 2010
Consumer Protection
Where a motor vehicle dealer made so many modifications that the manufacturer’s warranty did not cover the vehicle, and the buyer alleges he was told it would be covered by warranty, summary judgment was improperly granted on the buyer’s sec. 100.18 claim against the dealer.
2009AP617 Goudy v. Yamaha Motor Corp., USA
Issue date: March 29, 2010
An arbitration provision that prohibits a consumer from proceeding as part of a class is substantively unconscionable.
2009AP760 Cottonwood Financial, Ltd., v. Estes
Issue date: May 31, 2010
Contracts
Where a patient signed a form acknowledging that no guarantees have been made to him, he cannot sue the doctor for failure to cure his pain.
2009AP544 VanHierden v. Swelstad
Issue date: Jan. 11, 2010
In a breach of contract action by a law firm, a summary judgment motion stating that the firm was retained, and sent regular itemized bills, which were not paid is sufficient to warrant summary judgment.
2009AP1247 Simandl & Murray, S.C., v. Mainstreet Homes, LLC
Issue date: May 31, 2010
A contract for performance of a personal service is precluded by the party’s death.
2009AP1307 Ryan v. Estate of Sheppard
Issue date: July 19, 2010
Even though a lender accepted repayment, it is not barred from enforcing a prepayment penalty, where the borrower sent a letter reserving its right to contest the provision and then did contest it.
2009AP2721 BVB1, LLC v. Investors Bank
Issue date: Nov. 1, 2010
Dealerships
In determining whether the Wisconsin Fair Dealership Law applies, it is not relevant whether the dealer was able to find another supplier after termination of the relationship.
2009AP1731 The Water Quality Store, LLC, v Dynasty Spas, Inc.
Issue date: July 26, 2010
Debtor-Creditor
Possession is critical to the existence of a livestock lien.
2009AP1722 Premier Community Bank v. Schuh
Issue date: Aug. 2, 2010
Punitive damages are not recoverable under the Uniform Fraudulent Transfers Act.
2009AP2420 C & A Investments v. Kelly
Issue date: Oct. 25, 2010
Circuit courts and court commissioners have authority under secs. 816.03 and 816.06 to require a third-party company sharing common ownership with a judgment debtor to submit to a supplemental examination.
2009AP3029 Crown Castle USA, Inc., v. Orion Construction Group, LLC
Issue date: Dec. 13, 2010
Employment
The training reimbursement provisions of an apprenticeship agreement is severable from an unenforceable non-compete provision.
2009AP939 Frank D. Gillitzer Electric Co., Ltd., v Andersen
Issue date: Jan. 25, 2010
Where a factual dispute exists whether an employer terminated an at-will employee to avoid paying accrued benefits, summary judgment was improperly granted the employer on the employee’s wrongful termination claim.
2009AP246 Phillips v. U.S. Bank, N.A.
Issue date: Feb. 8, 2010
The reasonable cause standard in sec. 102.35(3) does not require employers to deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need.
2009AP564 deBoer Transportation, Inc., v. Swenson
Issue date: April 5, 2010
Section 103.455 does not apply to termination of an employee who was mistakenly overpaid, and did not notify the employer.
2009AP2429 Farady-Sultze v. Aurora
Issue date: June 7, 2010
A covenant not to compete that is contained in a stock option is not subject to sec. 103.465, but must instead be evaluated according to the rule of reason.
2009AP1353 The Selmer Company v. Rinn
Issue date: July 19, 2010
An employer seeking to rebut a claimant’s prima facie odd-lot case need not produce evidence it disclosed to prospective employers the claimant’s age, disability, and other facts about the claimant, or show that the employer referred the claimant to prospective employers with specific job openings actually available.
2009AP1877 Cargill Feed Division v. LIRC
Issue date: Aug. 9, 2010
Injuries incurred at work are not self-inflicted, although the tasks performed that caused them exceeded the employee’s work restrictions.
2009AP2594 Pick ‘N Save Roundy’s v. LIRC
Issue date: Aug. 30, 2010
An employer paying the medical expenses of an employee in institutional care can be required to pay the costs of transfer to a residential setting, even if it is not medically necessary.
2009AP1628 LaBaree v. LIRC
Issue date: Oct. 11, 2010
An in-home caregiver providing services under the long-term support community options waiver program is an employee of the County for worker’s compensation purposes.
2009AP1845 County of Barron v. LIRC
Issue date: Oct. 25, 2010
The right to rebut the report of an independent medical examiner does not include the right to cross-examination.
2010AP208 Aurora Consolidated Health Care v. LIRC
Issue date: Dec. 6, 2010
Environmental Law
The DNR is entitled to great weight deference in interpreting the Clean Air Act and federal regulations administering the Act.
2009AP648 Sierra Club v. DNR
Issue date: July 5, 2010
Evidence
In an action to recover credit card debt by a debt collector who purchased the account, the testimony of a representative of the debt collector that the account statements were accurate is inadmissible hearsay.
2009AP482 Palisades Collection LLC v. Kalal
Issue date: Feb. 15, 2010
Family
Where one parent is deceased, the family is not intact, and a court can order grandparent visitation.
2009AP40 Rick v. Opichka
Issue date: Jan. 18, 2010
Pension payments must be treated as part of the marital estate, subject to a presumptive 50/50 division.
2009AP852 In re the Marriage of: Kelly v. Kelly
Issue date: March 22, 2010
A court lacks the authority under sec. 767.451(3) to sua sponte modify a physical placement order.
2009AP94 In re the Marriage of: Stumpner v. Cutting
Issue date: April 19, 2010
A losing party is not entitled to a reduction in attorney’s fees for time spent on unsuccessful claims, if the winning party achieved substantial success and the unsuccessful claims were brought and pursued in good faith.
2009AP2241 Rand v. Rand
Issue date: July 5, 2010
The former same-sex partner of a child’s parent is not a parent for purposes of guardianship.
2009AP720 & 2009AP721 Wendy M. v. Helen E.K.
Issue date: July 5, 2010
Salable professional goodwill is not excluded from divisible property.
2009AP639 McReath v. McReath
Issue date: Aug. 9, 2010
In a protective placement trial, it violated the respondent’s rights to remove him from court for disruptive behavior without warning him first that he could be removed.
2009AP804 Jefferson County v. Joseph S.
Issue date: Dec. 6, 2010
It was not an abuse of discretion, after awarding guardianship of a child to the child’s grandmother, to decline to address the mother’s request for visitation.
2010AP363 Stephen R. v. Ilana C.
Issue date: Dec. 13, 2010
A court cannot reduce child support to compensate for amounts the payor provided to the payee’s child from a previous marriage.
2009AP1202 In re the Marriage of: Ladwig v. Ladwig
Issue date: May 24, 2010
Insurance
The insurer of a child’s father is not liable to the child’s mother for wrongful death of the child.
2008AP2929 Day v. Allstate Indemnity Co.
Issue date: April 19, 2010
An insurer does not waive its subrogation rights by going to arbitration.
2009AP1669 Fischer v. Steffen
Issue date: May 3, 2010
An insured’s notice of a claim to its insurers was not untimely when, at the time the claim arose, it was not an insured occurrence under Wisconsin law.
2009AP286 Westport Ins. Co. v. Appleton Papers, Inc.
Issue date: June 14, 2010
The father of a stillborn fetus can sue the mother for negligence in a car accident that caused the death.
2009AP1993 Tesar v. Anderson
Issue date: Aug. 9, 2010
When an insurer forgoes a reservation of rights and exclusively controls the defense of a lawsuit, obtaining a result to the detriment and prejudice of the insured, it is barred from denying coverage.
2009AP2176 Maxwell v. Hartford Union High School District
Issue date: Aug. 30, 2010
The loss of a third party’s personal property, not necessary to work being done by an insured, is not excluded from coverage by a care, custody, or control exclusion.
2009AP2810 Accola v. Fontana Builders, Inc.
Issue date: Sept. 27, 2010
Once rain strikes the ground, it becomes surface water within the meaning of an insurance policy’s exclusion of coverage for water damage.
2010AP16 American Family Mut. Ins. Co. v. Schmitz
Issue date: Oct. 25, 2010
Bat guano is not a pollutant under a homeowner’s policy’s pollution exclusion clause.
2009AP2768 Hirschhorn v. Auto-Owners Ins. Co.
Issue date: Oct. 25, 2010
An insurer must present evidence that a tractor is designed to be operated on public roads to include it within a motor vehicle exclusion.
2009AP2385 Olson v. Farrar
Issue date: Nov. 29, 2010
A CGL policy with an automobile exclusion does not cover negligent entrustment of an automobile.
2010AP441 Flejter v. West Bend Mut. Ins. Co.
Issue date: Nov. 29, 2010
A CGL policy does not provide coverage for volitional acts of negligent misrepresentation.
2009AP2266, et al. Doe v. Archdiocese of Milwaukee
Issue date: Nov. 29, 2010
An insurance exclusion that excludes coverage for insureds and other persons who reside on the insured premises is not ambiguous.
2010AP663 Progressive Northern Ins. Co. v. Olson
Issue date: Dec. 13, 2010
Juveniles
Where a police officer questioned a juvenile in the squad car on the way to the station, without recording the conversation, her statements must be suppressed.
2009AP3109 State v. Dionicia M.
Issue date: Aug. 30, 2010
Labor
Persons civilly committed because they were sexually violent are not covered by the FLSA.
2009AP884 State ex rel. Tran v. Speech
Issue date: April 5, 2010
Contentions by County of Milwaukee employees that the County owes them increased vacation benefits under a County ordinance must be first resolved by a grievance under the Association’s collective-bargaining agreement with the County.
2009AP1622 Milwaukee Deputy Sheriffs’ Association v. County of Milwaukee
Issue date: July 12, 2010
Multiple acts by a union, none of which is arbitrary individually, cannot be considered arbitrary in the aggregate.
2009AP1524 SEIU v. WERC
Issue date: Aug. 30, 2010
An arbitration decision that a county violated the union’s collective bargaining agreement by reducing work hours is not void.
2010AP535 Milwaukee District Council 48 v. Milwaukee County
Issue date: Dec. 27, 2010
Medical Malpractice
In a claim alleging negligence in the duty to provide informed consent, the rule remains that a physician must disclose what … a reasonable person in the patient’s position [would] want to know in order to make an intelligent decision with respect to the choices of treatment or diagnosis; and we reject PIC’s assertion that the Wisconsin Injured Patients and Families Compensation Fund should be responsible for paying its pro rata share of the taxable costs and interest based on its share of the judgment, because the plain meaning of WIS. ADMIN. CODE §INS 17.35 (Mar. 2010) and WIS. STAT. ch. 655 obligate PIC to pay all of the judgment interest in this case.
2008AP001972 Jandre v. PIC, et al.
Issue date: Oct. 4, 2010
Municipalities
Under sec. 82.21(2), when towns act together to determine whether to approve or deny a petition to lay out, alter, or discontinue a town highway, the total votes cast must be counted together to determine the result.
2009AP120 Dawson v. Town of Jackson
Issue date: Jan. 11, 2010
An erosion control inspection fee of seven dollars per one thousand square feet is reasonable.
2009AP1042 Edgerton Contractors, Inc., v. City of Wauwatosa
Issue date: Feb. 22, 2010
A plaintiff alleging a municipality violated the state antitrust laws need not file a notice of claim pursuant to sec. 893.80(1) before filing suit.
2009AP775 E-Z Roll Off, LLC v. County of Oneida
Issue date: May 17, 2010
A municipality’s assurance that it will assume responsibility for maintaining a drainage system is not grounds to allow dissolution of a drainage district.
2009AP556 Town of Stiles v. Stiles/Lena Drainage District
Issue date: June 28, 2010
Where a municipal ordinance requires developers to pay impact fees and provides an appeal process, developers must use that process before filing suit to challenge the fees.
2009AP2166 St. Croix Home Builders Association, Inc., v. Township of Oak Grove
Issue date: June 28, 2010
The Livestock Facilities Siting Review Board has authority to approve, reverse in whole, or reverse in part, a municipality’s approval of an expanded livestock facility.
2009AP608 Adams v. State of Wisconsin Livestock Facilities Siting Review Board
Issue date: July 5, 2010
Natural Resources
The DNR reasonably construed and applied its own regulations regarding abandonment of property and replacement public access to navigable waters, and it did not violate the public trust doctrine.
2008AP2537 Citizens for U INC., et al. v. DNR, et al.
Issue date: Feb. 1, 2010
The DNR has authority to determine whether provisions within a state-issued wastewater discharge permit comply with federal law.
2008AP3235 Andersen v. DNR
Issue date: April 19, 2010
The DNR’s BACT limits for sulfur dioxide and nitrogen oxide emissions is reasonable.
2009AP648 Sierra Club v. DNR
Issue date: May 24, 2010
Where the DNR did not consider an affidavit that contradicted other information at its disposal, in deciding whether to authorize a middling well, the DNR misused its discretion.
2008AP3170 Lake Beulah Management Dist. v. DNR
Issue date: June 21, 2010
The DNR’s authority over wells preempts ordinances by local sanitary districts.
2009AP2021 Lake Beulah Management District v. Village of East Troy
Issue date: Aug. 30, 2010
Property
In calculating whether a deck within a shoreland setback area exceeds 200 square feet, only that part of the deck within the setback is counted.
2009AP209 Propp v. Sauk County Board of Adjustment
Issue date: Jan. 18, 2010
Pre-existing easement rights may be considered by a jury when determining just compensation in a condemnation action under sec. 32.06(10).
2009AP1008 Fields v. ATC, LLC
Issue date: March 22, 2010
Where property owners have mistakenly assumed for a century that a road is the property line between adjacent properties, that boundary is established by the doctrine of acquiescence.
2009AP1559 Northrop v. Opperman
Issue date: May 17, 2010
Hunting does not constitute open, notorious, visible, exclusive, and hostile use of property enabling the hunter to obtain title by adverse possession.
2009AP757 Peter H. & Barbara J. Steuck Living Trust v. Easley
Issue date: May 24, 2010
Where closing documents plainly stated that a mortgage was a second mortgage, it does not have priority over the first mortgage.
2009AP669 & 2009AP1878 First Bank of Highland Park v. Summer Haven, LLC
Issue date: May 24, 2010
A circuit court has the discretionary authority to modify or terminate easements when it is impossible to accomplish their primary purpose.
2009AP1178 Mnuk v. Harmony Homes, Inc.
Issue date: Aug. 9, 2010
Where property owners accept a negotiated offer under sec. 32.06(2a), and then successfully litigate for a higher award, they are not entitled to litigation expenses.
2009AP2784 Klemm v. American Transmission Co., LLC
Issue date: Aug. 16, 2010
A landowner cannot challenge a taking by the DOT in an eminent domain proceeding on the grounds that the proposed road is unsafe.
2009AP1615 Kauer v. DOT
Issue date: Sept. 13, 2010
Evidence concerning environmental contamination and remediation is admissible in an eminent domain proceeding.
2009AP1557 260 North 12th Street, LLC, v. DOT
Issue date: Sept. 20, 2010
In a foreclosure action, the notice requirements in sec. 846.165(1) do not apply when the defendant failed to appear.
2009AP2273 Wells Fargo Bank, N.A., v. Biba
Issue date: Sept. 27, 2010
A clerk of circuit court needs to comply strictly with the notice requirements in sec. 32.06(8) in order to commence the sixty-day time limit for an appeal pursuant to sec. 32.06(10).
2009AP2583 Dahir Lands, LLC, v. American Transmission Co, LLC
Issue date: Nov. 22, 2010
Public Health
A person has a primary need for residential custody in § 55.08(1)(a) when the person has a primary need to have someone else exercising control and supervision of the person in the person’s place of residence for the purpose of protecting the person from abuse, financial exploitation, neglect, and self-neglect.
2009AP1997 Jackson County Department of Health & Human Services v. Susan H.
Issue date: June 7, 2010
Real Property
Painting a wall can be a misrepresentation under sec. 100.18(1) if it is done to hide evidence that the basement leaked.
2009AP1576 Novell v. Migliaccio
Issue date: May 3, 2010
Schools
A resident school district may not limit the number of student transfers to nonresident school districts under sec. 118.51(6).
2010AP829-AC School District of Stockbridge
Issue date: Oct. 4, 2010
Sex Offender Registration
A sex offender cannot be convicted of failing to provide his post-release address, where he was unable to locate post-release housing.
2009AP1643-CR State v. Dinkins
Issue date: Nov. 29, 2010
Tax
A circuit court cannot declare a property owner exempt from future property taxes.
2009AP2568 Northwest Wisconsin Community Services Agency, Inc., v. City of Montreal
Issue date: July 26, 2010
Where a health care facility has set hours that do not include overnight care, it is a doctors’ office and is not exempt from property taxes.
2009AP1469 & 2009AP1470 Covenant Healthcare System, Inc., v. City of Wauwatosa
Issue date: Aug. 16, 2010
Where there is no evidence that real estate transactions were sale-leasebacks, the transactions were admissible in determining the fair market value of the properties.
2009AP2775 Great Lakes Quick Lube LP vs. City of Milwaukee
Issue date: Dec. 20, 2010
Torts
The trial court properly dismissed plaintiff’s defamation cause of action on the basis that the statute of limitations barred her claims, even though defendant allegedly posted defamatory material to a Web site that can still be accessed.
2009AP596 Ladd v. Uecker
Issue date: Feb. 1, 2010
Making an audio recording of neighbors is not invasion of privacy if the microphone is placed in the defendants’ own home.
2009AP463 Poston v. Burns
Issue date: May 10, 2010
Although a doctor failed to inform a patient that a tumor was cancerous, the five-year statute of repose runs from that date, and not when the patient discovered the failure.
2009AP2965 Pagoudis v. Korkos
Issue date: May 31, 2010
The statute of limitations for malicious prosecution is two years.
2009AP1319 Turner v. Sanowski
Issue date: June 28, 2010
The defendant’s notice of a dangerous condition is not required for a safe place claim.
2009AP2111 Gennrich v. Zurich American Ins. Co.
Issue date: July 26, 2010
A subcontractor working on a government project is entitled to immunity where it conformed to the approved specifications.
2009AP2297 Bronfeld v. Pember Companies, Inc.
Issue date: Oct. 11, 2010
Unless the presumption in Rule 908.03(6m)(bm) has been rebutted, medical bills are sufficient to prove past damages.
2010AP28 Correa v. Leavitt
Issue date: Nov. 29, 2010
A claim that a probation agent negligently supervised a probationer was properly dismissed.
2010AP577 Broome v. State of Wisconsin Department of Corrections
Issue date: Dec. 6, 2010
An insurance exclusion that excludes coverage for insureds and other persons who reside on the insured premises is not ambiguous.
2010AP663 Progressive Northern Ins. Co. v. Olson
Issue date: Dec. 13, 2010
Section 26.21 does not mandate that double damages be awarded in situations where a private owner’s property is destroyed by a forest fire which occurred though negligence.
2010AP355 Heritage Farms, Inc., v. Markel Ins. Co.
Issue date: Dec. 13, 2010
Trusts and Estates
Where the petitioner for formal administration of an estate failed to move the case forward, the court properly found the conduct egregious, but dismissal of the petition without prior notice violated due process.
2009AP1591 Theis v. Short
Issue date: July 12, 2010
CRIMINAL PUBLISHED
Armed Robbery
Where a bank robber implied he had a gun in his pocket, the evidence was sufficient to support a conviction for armed robbery.
2009AP708-CR State v. Rittman
Issue date: March 1, 2010
Child Enticement
When there is evidence that a defendant had an intention to take a child to a place that is partially screened or hidden from view, a jury may find that it is with the purpose to take the child away from public safety.
2009AP559-CR State v. Pask
Issue date: April 5, 2010
Child Pornography
Individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person’s computer hard drive, nonetheless knowingly possess those images in violation of sec. 948.12(1m).
2008AP1763-CR State v. Mercer
Issue date: April 5, 2010
Criminal Procedure
The Sixth Amendment does not prohibit police from questioning someone represented by an attorney on criminal charges without the attorney present.
2008AP3007-CR State v. Forbush
Issue date: Jan. 4, 2010
Where the defendant’s attorney failed to obtain evidence that the defendant did not have herpes, and whether he had herpes was a central component of the case, he is entitled to a new trial.
2009AP645-CR State v. Jeffrey A.W.
Issue date: Jan. 18, 2010
The trial court’s failure to conduct a colloquy to determine that a defendant is knowingly waiving his right to testify does not require a new trial.
2009AP516-CR State v. Garcia
Issue date: Jan. 18, 2010
Admission of a witness’ testimony given at an ex parte hearing where neither the defendant nor his attorney was present was improper.
2009AP378-CR State v. Carter
Issue date: Feb. 22, 2010
A prosecutor did not breach a plea agreement that he recommend unspecified prison time, even though he referenced the specific time recommendation contained in the presentence investigation report.
2009AP958-CR State v. Duckett
Issue date: Feb. 22, 2010
It does not violate due process for the prosecutor to replay a witness’ recorded testimony during closing arguments, if the recording was properly admitted during trial.
2009AP83-CR State v. Marinez
Issue date: March 8, 2010
Where a suspect waived his right to counsel, the court need not consider whether the officer’s actions constituted interrogation.
2009AP786-CR State v. Reynolds
Issue date: March 22, 2010
A guilty plea waives an objection that the State failed to try the defendant within 120 days after her request pursuant to the Interstate Detainer Act.
2008AP2980-CR & 2008AP2981-CR State v. Asmus
Issue date: March 29, 2010
Where an informant who had previously worked for the government elicits confessions from a defendant while a cell-mate, but does so not at the government’s direction, but purely in the hope of getting further sentencing consideration, the Sixth Amendment right to counsel is not violated.
2009AP429-CR State v. Lewis
Issue date: April 5, 2010
Where the state failed to preserve exculpatory evidence – threatening voice mails from the victim to the defendant – dismissal is an appropriate remedy.
2009AP1684-CR State v. Huggett
Issue date: April 12, 2010
The statutory deportation warning must be given at the plea hearing, even if it was earlier given at the arraignment.
2009AP2162 & 2009AP2163 State v. Vang
Issue date: July 12, 2010
To institutionalize someone found not guilty by reason of mental disease or defect, a court need not find that the defendant poses a risk of physical property damage, rather than theft of property.
2009AP1822-CR State v. Brown
Issue date: July 12, 2010
A defendant need not object to venue prior to trial to be entitled to have a jury instruction on venue.
2009AP1434-CR State v. Schultz
Issue date: July 26, 2010
It was ineffective assistance of counsel for a defendant’s attorney not to object to evidence that the defendant exercised his Fourth Amendment rights by refusing to consent to a search.
2009AP1436-CR State v. Banks
Issue date: July 26, 2010
Where two felony murder charges both involved property crimes that resulted in death, joinder was proper.
2009AP2256-CR & 2009AP2257-CR State v. Linton
Issue date: Sept. 6, 2010
Where a John Doe petition alleges facts sufficient to establish a criminal offense, the John Doe judge must refer it to the district attorney.
2009AP2578-W & 2010AP636-W Naseer v. Miller
Issue date: Sept. 20, 2010
Where an intake worker intentionally delayed charging a juvenile until after his 17th birthday, the juvenile was deprived of his due process right to juvenile adjudication.
2009AP1151-CR & 2009AP1152-CR State v. Bergwin
Issue date: Sept. 20, 2010
Where the defendant made numerous telephone calls to the victim to dissuade her from testifying against him, admission of her statements to police does not violate the Confrontation Clause.
2009AP1540-CR – 2009AP1543-CR State v. Baldwin
Issue date: Nov. 8, 2010
Where a defendant initiated conversation after invoking his right to counsel, his statements are admissible.
2009AP3040-CR State v. Hampton
Issue date: Nov. 8, 2010
Where a defendant could not show that evidence had exculpatory value, the State’s destruction of it did not violate his due process rights.
2009AP2658-CR State v. Munford
Issue date: Nov. 22, 2010
Arguing inconsistent theories of defense is not ineffective assistance of counsel.
2010AP165-CR State v. Marks
Issue date: Nov. 29, 2010
Where the judge failed to remove his daughter-in-law from the jury panel, the defendant is entitled to a new trial.
2010AP445-CR State v. Sellhausen
Issue date: Dec. 6, 2010
Eluding an Officer
A defendant can be guilty of eluding an officer even if he was driving to a police station.
2008AP2759-CR State v. Hanson
Issue date: Oct. 11, 2010
Evidence
It does not violate the Confrontation Clause to admit dying declarations.
2009AP806-CR State v. Beauchamp
Issue date: Feb. 8, 2010
After the state amended a defendant’s charge from first-degree sexual assault of a child to exposing a child to harmful material, the defendant could no longer present expert testimony regarding his psychological profile.
2009AP1249-CR State v. Gonzalez
Issue date: July 12, 2010
Evidence tying a bullet or a cartridge to a specific gun is admissible.
2009AP2835-CR State v. Jones
Issue date: Aug. 30, 2010
Statements a probationer is compelled to make to a social worker as a condition of probation cannot be used against him at sentencing after revocation.
2009AP3111-CR State v. Peebles
Issue date: Oct. 25, 2010
Forgery
Obtaining a controlled substance by fraud can also be charged as a forgery.
2009AP1172-CR State v. Fortun
Issue date: Jan. 25, 2010
Motor Vehicle
Where a defendant had two prior OWI convictions on the date of the offense, and his BAC was .048, the state could not amend the charge to operating with a prohibited BAC based on a conviction for OWI that occurred after the date of the offense.
2009AP1990-CR State v. Sowatzke
Issue date: May 31, 2010
To have reasonable suspicion to stop a vehicle for illegal window tinting, the officer must have experience differentiating legal from illegal tinting.
2008AP1815-CR & 2008AP1816-CR State v. Conaway
Issue date: Jan. 4, 2010
Prior convictions in Michigan for operating while visibly impaired count as prior drunk driving convictions in Wisconsin.
2009AP840-CR State v. Puchacz
Issue date: Jan. 25, 2010
Where a driver was following another vehicle within 500 feet with high-beams on, the officer had probable cause to stop him.
2009AP385-CR State v. Tomaszewski
Issue date: March 29, 2010
After arresting a suspect for driving while intoxicated, officers are not required to provide him both an alternative test at their expense, and another alternative test at the suspect’s expense.
2009AP3069-CR State v. Batt
Issue date: Oct. 11, 2010
Obstructing an Officer
False statements to an officer in one county cannot support a charge of obstructing an officer in a different county.
2009AP1434-CR State v. Schultz
Issue date: Aug. 23, 2010
At a sentencing after revocation of probation, the defendant has the burden of rebutting the allegations that led to revocation.
2010AP83-CR State v. Walker
Issue date: Nov. 8, 2010
Search and Seizure
When a court assesses the reasonableness of a temporary detention, it may not consider the bare fact that investigating officers know that other officers suspect an individual of involvement in prior criminal behavior because such evidence does not provide specific, articulable facts to which the court can apply the reasonable suspicion standard.
2008AP1514-CR State v. Pickens
Issue date: Jan. 4, 2010
Where the defendant’s roommate consented to police seizing a computer and reviewing it for child pornography, the defendant’s Fourth Amendment rights were not violated.
2009AP784-CR State v. Ramage
Issue date: May 24, 2010
Officers cannot conduct a search of a vehicle incident to arrest after the driver has been secured and cannot access the interior of the vehicle.
2009AP1367-CR State v. Bauer
Issue date: July 5, 2010
Where officers suspected that the defendant had committed a violent crime, they could lawfully search the area near him as an incident to his arrest.
2009AP2831-CR State v. Harrell
Issue date: Aug. 30, 2010
Where police officers did not ask to be permitted entry to a suspect’s home, and only said they would get a warrant if he did not come out to talk, there was no constructive entry of the home in violation of the Fourth Amendment.
2009AP3049 City of Sheboygan v. Cesar
Issue date: Dec. 6, 2010
Where police would risk the safety of civilians and their own by waiting to get a warrant, a warrantless entry was justified by exigent circumstances.
2009AP2690-CR State v. Ayala
Issue date: Dec. 27, 2010
Sentencing
A defendant cannot be given credit against a sentence in another jurisdiction.
2009AP896-CR State v. Brown
Issue date: Feb. 22, 2010
The repeal of the sentencing guidelines is retroactive to sentences imposed before repeal.
2009AP1568-CR State v. Barfell
Issue date: March 15, 2010
A reconfinement hearing is not a criminal proceeding for the purposes of the right against self-incrimination.
2009AP817-CR State v. Brimer
Issue date: March 22, 2010
In calculating whether a defendant is more than four years older than the victim, and thus required to register as a sex offender, the age difference is calculated by time, not age.
2009AP1210-CR State v. Parmley
Issue date: May 31, 2010
A motion to vacate a DNA surcharge must be brought within 90 days.
2009AP2089-CR State v. Singleton
Issue date: June 28, 2010
Circuit courts do not have authority to reduce a term of probation because of the defendant’s rehabilitation.
2010AP772-CR State v. Dowdy
Issue date: Nov. 1, 2010
A motion for sentence modification filed six years after the sentence was untimely.
2009AP1399-CR State v. Nickel
Issue date: Dec. 6, 2010
A court may order that a defendant have no contact with someone even if that person was not the victim of the crime.
2010AP905-CR State v. Campbell
Issue date: Dec. 13, 2010
Sexually Violent Persons
A sexually violent person seeking supervised release has the burden to show by clear and convincing evidence that the criteria for release are satisfied.
2009AP1132 State v. Rachel
Issue date: March 29, 2010
Summary judgment is not permitted in discharge proceedings involving sexually violent persons.
2009AP1232 State v. Allison
Issue date: Aug. 2, 2010
In a sexually violent persons trial, the rule of completeness does not require that the jury be informed that, if the respondent were released, his risk of reoffending would be diminished because he would be supervised for 22 years until he is 74 years old.
2009AP2445 State v. Sugden
Issue date: Nov. 29, 2010
Stalking
Conduct need not persist over a long period of time to constitute stalking.
2009AP1864-CR State v. Eichorn
Issue date: May 3, 2010
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