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‘Specializing in‘ not an ambiguous term

“The concepts of ‘primarily’ and ‘specializing in’ are clear. Additionally, that various fact-finders may apply those concepts differently in apparently similar cases does make the concepts themselves ambiguous or vague. The restrictive covenants are valid.” Hon. Ralph Adam Fine, Wisconsin Court of Appeals A deed restriction prohibiting operation of a “casual, theme-type restaurant specializing in Mexican food” is not vague, ...

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Covenant Case Analysis

With a better drafted restrictive covenant, the Tumbleweeds restaurant could easily have avoided the result in this case — leaving it up to the whim of a jury whether a Chili’s restaurant constitutes a “Mexican restaurant,” or serves “primarily Mexican food,” or is a restaurant “specializing in Mexican food.” Tumbleweeds’ problem on remand will be that an urban jury is ...

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Village liable for unbonded contractor

“Municipal liability for failure to ensure that a contractor furnishes a proper bond protects subcontractors, taxpayers and the municipality itself.” Hon. Charles P. Dykman Wisconsin Court of Appeals A municipality is liable to a subcontractor for its failure to ensure that a prime contractor obtained a payment bond, the Wisconsin Court of Appeals held on July 29. The court also ...

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Subcontractors Case Analysis

Two questions regarding the notice of claim issue stand out immediately upon reading this decision. The first is why the court wrote as if this were an issue of first impression, rather than simply stating that this issue was settled by the Wisconsin Supreme Court 34 years ago in Smith v. Town of Pershing, 10 Wis.2d 352, 102 N.W.2d 765 ...

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Temporary files suffice to prove possession

A computer user can be convicted of possessing child pornography, even if the images were not saved on the computer, the Wisconsin Court of Appeals held on July 21. The court also held that probable cause supported searching the computer, where the defendant was alleged to have taken Polaroid photographs of a 14-year-old girl. A.J., a 14-year-old girl, was employed ...

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Warrant Case Analysis

The majority opinion is remarkable in its discussion of probable cause for the near total absence of discussion of State v. Schaefer, 2003 WI App 164, 266 Wis.2d 719, 668 N.W.2d 760. The court does cite the case, but only for the boilerplate proposition that the great deference given to a magistrate’s decision on probable cause “furthers the Fourth Amendment’s ...

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Attorney can testify at Harrison hearing

The Wisconsin Court of Appeals held on July 21 that, when a defendant claims that his decision to testify was the result of the court’s admission of illegal evidence, his attorney and defendant can be compelled to testify at an evidentiary hearing. On July 26, 2000, the State issued an arrest warrant for Christopher Anson and charged him with three ...

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Testimony Case Analysis

Notwithstanding the court’s decision, attorneys should vigorously contest that part of the decision that holds a defendant and his attorney can be compelled by the State to testify at an evidentiary hearing, if necessary. The court held that a defendant and attorney can be compelled to testify, without any discussion whatsoever of the attorney-client privilege, and cited no authority for ...

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Beyond Google — Alternate Search Engines Enhance Research

The majority of us in the legal field utilize the Internet on a daily basis. E-mail access and research via the Web is commonplace. The type of research conducted could range from locating a phone number, to obtaining a government form, to gathering company data, to finding a recent court decision. If the searcher is not sure of the Web ...

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Dog-bite case challenges

“They’re not the easiest cases to try, just about everybody on a jury owns a dog and likes dogs and sees themselves in the position of the defendant.” Lynn R. Laufenberg, Laufenberg & Hoefle, Milwaukee Dog-bite cases dominated the discussion during the annual summary of developments in general negligence and insurance law at the Wisconsin Academy of Trial Lawyers summer ...

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Issues for review must be specifically stated

“On the facts presented here, Kolupar did not fully satisfy her burden to produce evidence of the hours worked, and Judge Cooper could have reduced her award, perhaps to a nominal amount, solely on that basis.” Hon. David T. Prosser Wisconsin Supreme Court The Wisconsin Supreme Court held on July 13 that, when a prevailing plaintiff under a fee-shifting statute ...

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Review Case Analysis

The decision is unfortunate, for, as the dissent notes, Kolupar has indeed been victimized twice — once by the defendants, and once by the judicial system. Nevertheless, the decision is not as bad for consumers as the court of appeals’ decision was, and logical inconsistencies in the decision may be exploitable. First, at least Kolupar obtained remand on the issue ...

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Sentencing guidelines violate right to jury

“The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn’t; it did not say that.” Hon. Richard A. Posner 7th Circuit Court of Appeals The Seventh Circuit held on July 9 that the U.S. Supreme Court decision in Blakely v. Washington — striking ...

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Sentencing Case Analysis

The decision (or at least the issue) will certainly have to be reviewed by the U.S. Supreme Court, and as Judge Easterbrook stated, “soon.” Within one business day of this decision being issued, a conflict between the circuits was created when the Fifth Circuit held that Blakely v. Washington did not affect the federal sentencing guidelines. U.S. v. Pineiro, 2004 ...

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In the shadow of Alt

“[T]here effectively is going to be no separate award for pain and suffering damages between the time that the injury occurred and the time of the death, regardless of how prolonged that period might be” Lynn Laufenberg Laufenberg & Hoefle S.C. The shadow of Burnett v. Alt is hampering the prosecution of medical malpractice and even personal injury cases as ...

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Economic loss doctrine applies to real estate

“We have a written, bargained-for contract for the sale of commercial-use land between two sophisticated parties represented by counsel during the negotiation process. This is the kind of situation that is tailor made for the application of traditional contract law.” Hon. David T. Prosser Jr. Wisconsin Supreme Court The Wisconsin Supreme Court held on July 9 that the economic loss ...

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Economics Analysis

The decision casts into doubt two recent decisions of the court of appeals. The first is Insurance Co. of North America v. Cease Elec., Inc., 2004 WI App 15, 269 Wis.2d 286, 674 N.W.2d 886 (petition for review granted, Feb. 24, 2004), in which the court held that the economic loss doctrine only applies to contracts for products. Cease Electric ...

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Borrowing statute includes statutes of repose

“Wenke’s attempt to commence this action in Wisconsin epitomizes forum shopping, and validating his action would disregard one of the clear purposes of sec. 893.07.” Hon. David T. Prosser Wisconsin Supreme Court The Wisconsin Supreme Court held on July 7 that its decision in Landis v. Physicians Insurance Co. (2001), functionally overruled Leverence v. United States Fidelity & Guaranty (Ct. ...

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Borrowing Statute Analysis

Apart from the holding, which is itself a major change in the law, the decision is noteworthy for a significant change in the relevance of legislative inaction following a court decision. In Green Bay Packaging v. DILHR, 72 Wis.2d 26, 35, 240 N.W.2d 422 (1976), the Supreme Court held that legislative inaction does not “rais[] a conclusive presumption of tacit ...

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Vicarious Liability Case Analysis

Although the case affirms the court of appeals decision, it nevertheless changes the law, by making it much less likely that a fast-food franchisor can be held vicariously liable for other injuries, specifically, those resulting from defects in the food, itself. The court of appeals decision did not state so explicitly, but suggested that a franchisor would be liable for ...

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Shorter shifts can be required for disabled

“This is a sea change in Wisconsin employment law because heretofore employers were not required to forego valid business decisions to suit employees and prospective employees who were not able to undertake job-related responsibilities.” Hon. Patience D. Roggensack in dissent The Wisconsin Supreme Court held on June 30 that an employer violated the Wisconsin Fair Employment Act by refusing to ...

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Accommodation Case Analysis

When Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 200, 664 N.W.2d 651 was decided at the end of last term, it created a major difference between state interpretation of the Wisconsin Fair Employment Act and federal interpretation of the Americans with Disabilities Act, respecting what constitutes a reasonable accommodation, by requiring state employers to change job ...

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Criminal Law

Two plurality decisions emphasize ‘fruit of poisonous tree’ not applicable to Miranda violations

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Franchisor not vicariously liable for negligence

“The quality and operational standards typically found in franchise agreements do not establish the sort of close supervisory control or right to control necessary to support imposing vicarious liability on a franchisor.” Hon. Diane S. Sykes Wisconsin Supreme Court The Wisconsin Supreme Court held on June 29 that a franchisor may be held vicariously liable for the tortious conduct of ...

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Drunk driver in garage poses exigent circumstances

“Most people exit their cars shortly after parking at their homes. … We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.” Hon. Paul G. Lundsten Wisconsin Court of Appeals A police officer had exigent circumstances to justify entering the garage of a reportedly highly intoxicated driver who was sitting in ...

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Exigent Case Analysis

There are two plausible ways to read this decision: it supports a broad right of officers to enter the garages of suspected drunk drivers who just arrived home; or it is easily distinguishable in all but the most extreme cases. The circuit court found, and the court of appeals agreed, that, “as long as the driver was in the driver’s ...

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