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Case Digests

00-2854 Tezak v. U.S.

“[C]onflicting testimony was presented about the filing of an appeal. The district court did not credit Casey’s deposition testimony, which the court stated indicated a bias against Popuch on Casey’s part due to the check forgery. Also, given Tezak’s vocal and commanding participation in his defense presentation, the court found it improbable that even though the record contained numerous correspondence ...

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99-1069 Neff v. Pierzina

“[T]he determination whether an insurer has been prejudiced by the lack of timely notice is essentially a question of fact. The fact finder’s determination should not be set aside unless it is clearly erroneous. Wis. Stat. sec. 805.17(2). Wisconsin Stat. sec. 632.26(2) states that ‘the risk of nonpersuasion is upon the person claiming there was no prejudice.’ This statement signals ...

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98-2595-CR State v. Eason

“In the 17 years since Leon became law, there is no evidence here, and none has been offered, that the good faith exception has given rise to increased police abuse or oppression… [W]e find that Article I, Section 11 of the Wisconsin Constitution guarantees more protection than the Fourth Amendment provides under the good faith exception as adopted in Leon.” ...

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00-3090 U. S. v. Espinoza

“Given Espinoza’s resistive physical response to the officers’ attempt to gain forcible entry into his home (holding the door shut to prevent the officers from entering) we fail to see how the officers’ alleged failure to wait an objectively reasonable amount of time before forcing the doors caused any harm to Espinoza’s interests (whether in privacy or property) protected by ...

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01-1086, 01-1087 In Re the Termination of Parental Rights to Shawna B.A., Bridgette P.A.: Brown County Department of Human Services v. Kenyota A.

Kenyota A. appeals from orders terminating his parental rights to his two children. Kenyota argues the trial court lost competency to proceed because the initial hearing was not completed within thirty days of the petition’s filing and the fact finding hearing was not held within forty-five days of the initial hearing. This court concludes that under Wis. Stat. sec. 48.315, ...

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99-2296-CR State v. Henderson

“The rule against ‘rehabilitating’ a warrant after-the-fact by information known to the police but not included in the warrant application… applies only to challenges to the sufficiency of a search warrant under the warrant clause, not challenges to the manner of execution of a search warrant under the reasonableness clause. The cases recognized that allowing the probable cause basis for ...

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00-1992 Herlache v. Zahran, et al.

Robin and Karen Zahran have appealed pro se from an order entered in the trial court on June 20, 2000, establishing the amount to be paid by them for the redemption of property which was the subject of a sheriff’s sale held on June 6, 2000. The sheriff’s sale resulted from a foreclosure judgment entered in the trial court on ...

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00-3174 U.S. v. Mitchell

“The officers, upon their arrival at the scene, clearly did not have sufficient information to immediately arrest Mitchell for being a felon in possession. However, we are of the opinion that the combination of a report of shots being fired, the rapid response time of the officers (approximately 90 seconds), the fact that Mitchell matched the general (albeit limited) description ...

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00-1739 In Re: the Termination of Parental Rights to Jayton S. v. Tykila S.

“Due to the severe nature of terminations of parental rights, termination proceedings require heightened legal safeguards against erroneous decisions. Although termination proceedings are civil proceedings, M.W. v. Monroe County Dep’t of Human Servs., 116 Wis.2d 432, 442, 342 N.W.2d 410 (1984), the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that ‘[i]n order for parental ...

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00-2078 Putnam, et al. v. Time Warner Cable

Where the plaintiff customers did not allege that they had received late bills, or that they intended to disregard the bills and late fees, the circuit court did not abuse its discretion in dismissing the customers’ claims for declaratory and injunctive relief. The customers separately alleged that the late fee constituted unlawful liquidated damages; we conclude that, despite certain significant ...

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00-2453-CR State v. Stannard

Scott Stannard appeals from a judgment convicting him of theft and an order denying his motion for postconviction relief. Stannard contends that the presentence report writer was biased against him, prejudicing the sentencing process. We affirm. This opinion will not be published. Dist I, Milwaukee County, Flanagan, J., Per Curiam Attorneys: For Appellant: Michael T. Sullivan Jr., Milwaukee For Respondent: ...

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00-4008 & 00-4166 U.S. v. Watts

“While the Sixth Circuit’s reading of Apprendi is now perhaps a tenable one (and might indeed be the wave of the future), it is not, at this point, our reading. It is true, as noted by the Sixth Circuit, that the Apprendi majority did quote Justice Stevens’ concurrence in Jones for the proposition that ‘it is unconstitutional for a legislature ...

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00-2180 Industry to Industry, Inc. v. Hillsman Modular Molding, Inc.

Plaintiff corporation had been defendant corporation’s exclusive Wisconsin sales representative for 28 years when defendant terminated the agreement with 90 days’ notice. Defendant did not pay plaintiff commissions for orders submitted during the 90-day period; plaintiff brought this action alleging breach of contract and violation of the Wisconsin Sales Representative’s Act. The Act defines representatives as “persons;” Wisconsin Stat. sec. ...

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00-3309 Oak Brook Bank v. Northern Trust Co.

“[A] federal reserve bank is open to the public for substantially all of its banking functions whenever the check-processing department is open for the receipt of checks, which in the case of the Federal Reserve Bank of Chicago is 24 hours of every day that the bank is open. The few cases dealing with the meaning of “banking day” under ...

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98-CR-0104 U.S. v. Acosta, et al.

“In the trial of this criminal case I used a verdict form in which special interrogatories on all elements of the crime preceded a question on guilt or innocence… My reasons for using this verdict form appear in the transcript, but I thought I would put them on paper and publish them, because, although such a verdict form is unusual, ...

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99-1058 Nankin v. Village of Shorewood

“We are unable to identify any difference in situation or circumstance between properties located in populous counties and properties located in other counties in the state that would necessitate different legislation for the classes in challenging their property assessment. Properties in both classes are assessed and reviewed in the same manner, regardless of the population of the county in which ...

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00-1389 Maple Leaf Farms, Inc. v. State of Wisconsin – DNR

According to expert testimony elicited at the administrative hearing, landspreading manure improperly results in the release of pollutants to surface water or groundwater. If applied near streams, or on fields with drainage tile systems, runoff of pollutants into surface waters is likely. We reject the farm’s claim that because the federal Clean Water Act does not regulate off-site manure spreading, ...

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00-3419 Warsco v. Preferred Technical Group

“Despite Rau’s and Weingardt’s affidavits, which support the view that the payment to PTG was not part of the purchase price for Presidential’s assets, we believe that the nature of these transactions precludes summary judgment, at least on the record as presently constituted. The fact that the asset sale and the note purchase were conditioned upon each other indicates that ...

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99-3193 Vandenberg v. Continental Ins. Co., et al.

Because we find that reasonable persons in the position of the plaintiff in the present case could reasonably believe that they had coverage under this exception for the supervision and control of their own child, the rule of narrow construction against the insurance company applies to resolve the ambiguity in favor or the insured. Because there remain issues of fact ...

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01-0328 In Re the Termination of Parental Rights to Erin R. S.

Even though the trial court erred in its belief that the law mandates the questions to be considered in tandem, a close reading of the court’s disposition shows that the law was, in actuality, followed. As to the first question, the trial court was obviously convinced that the mother’s chemical abuse prevented her from cooperating with attempts to help her ...

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00-1281 Carroll v. DeTella

“The record establishes that the presence of lead in the water is due to the corrosion of the water pipes, which are made of lead that dissolves in the water – but only when the water is still, as it is overnight, when no one is using it. When the water is flowing, the lead in the pipes does not ...

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98-3002, 98-3300 Brunson v. Ward

“Brunson and Progressive contracted for $25,000 of UIM insurance, and Brunson paid a premium for that amount of coverage. However, Wis. Stat. sec. 632.32(4m)(d), in effect at the time Brunson purchased his policy, required UIM coverage of at least $50,000. By operation of law, the higher level of coverage is ‘read in,’ even though it was not reflected in the ...

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00-2176 Cohn, et al. v. Town of Randall

In the absence of a showing of detrimental reliance by the residents, we conclude that the town may still, after 70 years, accept the continuing offer to dedicate the roads for public use. We also find that the town’s actions in declaring the roads to be public highways, levying assessments, and awarding bids were not arbitrary, but rational acts based ...

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00-4161, 00-4175 Builders Association of Greater Chicago v. County of Cook

“A law that grants preferential treatment on the basis of race or ethnicity does not deny the equal protection of the laws if it is (1) a remedy for (2) intentional discrimination committed by (3) the public entity that is according the preferential treatment (unless, as is not argued here, the entity has been given responsibility by the state for ...

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99-1052 Danner v. Auto-Owners Insurance

“The duty of good faith and fair dealing is implied in the insurance contract. We interpret insurance contracts to meet the reasonable expectation of the insured. Therefore, we conclude that the correct view is that the duty of good faith and fair dealing exists at all times, including during the investigation, evaluation and processing of an underinsured motorist claim. “An ...

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01-0610-FT In the Matter of the Mental Commitment of Cheryl L.M.: Sheboygan County v. Cheryl L.M.

Cheryl L.M. appeals from an order entered pursuant to Wis. Stat. sec. 51.20(13)(g)3 extending her commitment to the Winnebago Mental Health Institute (WMHI) for 12 months. Cheryl maintains that Sheboygan County failed to present sufficient evidence to prove that she would be a proper subject for commitment extension if treatment were withdrawn. We affirm because we conclude that the County ...

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99-3023 Hoffman v. Caterpillar, Inc.

“Viewing the evidence in the light most favorable to Hoffman, we find that there is an issue of fact as to whether Hoffman would be able to operate the high-speed scanner. Because “Congress perceived that employers were basing employment decisions on unfounded stereotypes,” Siefken v. Vill. of Arlington Heights, 65 F.3d 664, 666 (7th Cir.1995), the ADA discourages employment decisions ...

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99-1142 Danbeck v. American Family Insurance Co.

“As this contract is written, UIM benefits are owed only when the tortfeasor’s liability insurance is insufficient to cover the UIM policyholder’s damages. According to the plain language of the policy, that insufficiency does not arise unless and until the full limits of the tortfeasor’s policy are paid out. In other words, the tortfeasor ‘motorist’ is not ‘underinsured’ as a ...

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