Supreme Court accepts 11 new cases

Madison, Wisconsin - May 12, 2006

The Wisconsin Supreme Court has voted to accept 11 new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions and certifications available online for the newly accepted cases are hyperlinked.

2004AP2468 Wis. DOR v. River City Refuse Removal, Inc.
This case involves tax penalties imposed by the Wisconsin Department of Revenue (DOR) when the agency discovered in an audit that River City Refuse Removal had received transfers of assets such as trucks and trailers from its parent company without paying use tax. The Tax Appeals Commission reversed the DOR, the circuit court reversed the Tax Appeals Commission, and the Court of Appeals reversed the circuit court.

The Supreme Court is expected to decide two questions: (1) is a subsidiary corporation liable for sales and use tax normally imposed upon acquisitions by one corporation from another of taxable vehicles where the acquisitions were made from other subsidiary corporations without consideration in non-mercantile transactions? (2) Did the Wisconsin Tax Appeals Commission correctly reverse the Department of Revenue’s assessed negligence penalty for a subsidiary’s failure to pay tax upon four other categories of items in addition to the vehicles? From Dane County.

2004AP3238 Brew City Redevelopment Group, LLC v. The Ferchill Group
Justice Jon P. Wilcox is not participating in this case.

This case involves the development of the former Pabst Brewing Co. land in Milwaukee. The Court of Appeals opinion notes that, “[a]s with many attempted major developments of potentially very valuable urban land, especially those that come into court, this matter has been marked by ill-will.”

There are three questions before the Supreme Court: (1) is there a malevolent action exception to the economic-loss doctrine? (2) Can a plaintiff pursue a tortious interference with contract claim against persons affiliated with and acting on behalf of an LLC without alleging that the individuals acted out of a personal motive inconsistent with the LLC’s interest? (3) Does the intra-corporate conspiracy doctrine preclude a conspiracy claim against persons affiliated with and acting on behalf of an LLC? From Milwaukee County.

2005AP423 K. McNeil v. B. Hansen, et al
This case involves an employee who was injured when a Jeep lurched forward at the quick lube where he worked. The question for the Supreme Court is whether the actions of the injured man’s coworker (leaning into the Jeep and turning the key in the ignition) constitute "operation of a motor vehicle" for purposes of determining whether the victim will be able to file a tort claim or will be limited to pursuing workers compensation. From Milwaukee County.

2005AP584-CR State v. J. Brown
This case involves a defendant who was sentenced under Truth-in-Sentencing, released on extended supervision, and then returned to prison after allegedly violating the rules of supervision.

The Supreme Court is expected to answer two questions: (1) What standard of review should appellate courts apply when reviewing circuit court decisions to send offenders back to prison following revocation of extended supervision? (2) Did the circuit court – which declined to follow a Department of Corrections (DOC) recommendation on the length of re-incarceration and instead imposed a longer period of confinement – err in denying a motion for reconsideration that sought to explain the DOC’s process for making re-confinement recommendations? From Milwaukee County.

2005AP661-CRNM State v. M. Parent
This case involves a man who is serving time for theft. After his attorney filed a ‘no merit’ report declining to pursue an appeal, Parent sought a copy of the pre-sentence investigation (PSI) that was prepared in his case, and his request was denied. PSIs are prepared to assist the court in sentencing. They generally contain substantial personal information about the defendant and a statement from the victim (s).

The Supreme Court is expected to answer two questions: (1) what procedure is to be followed and what factors are to be considered when deciding whether a defendant should receive a copy of a PSI to facilitate his or her response to a no-merit report and (2) should motions filed by the State seeking access to a PSI be filed in the Court of Appeals or in the circuit court? From Eau Claire County.

2005AP995 M. Kasten v. Doral Dental USA, LLC
This case involves a woman who received an approximately one-quarter interest in a Wisconsin Limited Liability Company (LLC) in a divorce settlement and then sought access to various company records when the owners put the company up for sale. When she did not receive all that she had requested, she sued.

The Court of Appeals notes that “[t] his case presents a classic books-and-records dispute, but in an emerging context…. A careful and considered canvas of LLC jurisprudence reveals that the scope of a member’s right to inspect an LLC’s records and the question of whether an e-mail is a company record subject to a member’s inspection have not been touched upon in Wisconsin.”

The questions before the Supreme Court are (1) Whether the Wisconsin Limited Liability Company Law grants a broad right of member access to limited liability company records, and (2) if the statute grants members a broad inspection right, whether e-mails can be classified as “records” under Wis. Stat. § 183.0405(2) such that they are subject to a member’s inspection. From Ozaukee County.

2005AP1407 Estate of F. Rille, et al v. Physicians Ins. Co., et al
This is a medical malpractice case filed by the family of a man who died after he was given a prescription that allegedly exceeded the maximum recommended dose. The family sued both the physician and the pharmacy, Osco Drug, but the trial court dismissed the case against the pharmacy. The physician asked the court to sign an order containing language that would preserve her right to potentially file a cross-claim against Osco Drug, which the court did. Still, her eventual claim against Osco was dismissed on the basis of issue preclusion.

This appeal centers on the extent of a litigant’s responsibility – when that litigant wants to preserve the right to file a contribution claim – to object to a motion for summary judgment that is filed against another litigant. From Waukesha County.

2005AP1485-CR State v. R. Lord, Jr.
This is an appeal from a man who was convicted on weapons charges after police found two guns in his car during what he claims was an illegal stop. The police said that they stopped him in order to determine the validity of the temporary license plate on his vehicle. The plate turned out to be valid.

The question before the Supreme Court is whether the defendant’s counsel was ineffective for failing to establish the authenticity of the temporary license plate that was the basis for the traffic stop. From Milwaukee County.

2005AP2336 G. Tyler v. The Riverbank
The Court of Appeals issued a memorandum opinion in this case (a very short opinion that is unavailable on the Web site). The question before the Supreme Court is if a circuit court’s denial of post-trial motions is a final order for purposes of timely filing an appeal. From Polk County.

2005AP2656 Oneida County Dept. of Social Services v. Nicole W.
This case involves the termination of a mother’s rights to her daughter. The termination was accomplished through a partial summary judgment, which is a judgment granted at the fact-finding stage of a termination of parental rights (TPR) proceeding where there is no genuine issue of material fact regarding the grounds alleged. The question before the Supreme Court is whether, in a situation where the ground for terminating parental rights is a previous termination of rights to another child (a termination that resulted from the parent’s default), a partial summary judgment is appropriate. From Oneida County.

2005AP2752 State v Shirley E.
This case involves a mother whose rights to her 5-year-old son were terminated after she was found to be in default when she failed to show up for court hearings (although her lawyer attended all hearings).

The question before the Supreme Court is whether a parent who has been defaulted in a termination of parental rights (TPR) hearing maintains the substantive due process right to be represented by counsel throughout the remainder of litigation in the case. From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. As the state’s law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

Adams County:

• 2005AP812-CR/ State v. Gruber
• 2005AP813-CR

Barron County:

• 2005AP1135 Pearson v. Prissel

Brown County:

• 2005AP221 DMK v. Town-Pittsfield
• 2005AP608-W State ex rel. Whitehead v. Kingston
• 2005AP1457-CR State v. Bowie
• 2005AP1809-CR State v. Hallada

Clark County:

• 2005AP624-CRNM State v. Newby
• Dane County:
• 2004AP2535 Curran v. Warren
• 2005AP1254 Evans v. WI Dept. of Probation & Parole
• 2005AP1381 Kypke v. Boardman- Justice N. Patrick Crooks did not participate.
• 2006AP20 State v. Obriecht

Dodge County:

• 2004AP3268-CR State v. Polster
• 2005AP82-CR State v. Unertl

Iowa County:

• 2005AP1284 Thoma v. Blankenberg- Chief Justice Shirley S. Abrahamson and Justice Louis B. Butler Jr. dissent

Jackson County:

• 2005AP2329-CR State v. Marks

Jefferson County:

• 2004AP1178 Eisenberg v. Deutsch
• 2004AP1861 Dempich v. Pekin Insurance

Kenosha County:

• 2005AP264-CR State v. Freeman
• 2005AP1052-CR State v. Thompson

La Crosse County:

• 2005AP1103 Manke v. Physicians Insurance

Manitowoc County:

• 2005AP848-CRNM State v. Sprang

Marathon County:

• 2005AP3011-W State ex. rel. Fonseca v. Wallace

Milwaukee County:

• 2003AP3406-CRNM State v. Tillery
• 2004AP66 State v. Peterson
• 2004AP1167-CR State v. Norrington
• 2004AP1329-CR State v. Jordan
• 2004AP1423-CR State v. Sallis
• 2004AP2398-CR State v. Montgomery
• 2004AP2673 State v. Mayer
• 2004AP2711-CR State v. Smith
• 2004AP2992-CR State v. Flynn
• 2004AP3169-CR State v. Gray
• 2004AP3216-CR State v. Welch
• 2004AP3392-CR State v. Hudson
• 2005AP403 Snapp v. Jean-Claude
• 2005AP446-CR State v. Anderson
• 2005AP464-CR State v. Rosemond
• 2005AP1061/ State v. Lopez
• 2005AP1271
• 2005AP1461-CR State v. Meredith
• 2005AP1989-CR State v. Wilder
• 2005AP2348-CRNM State v. Compton
• 2006AP214-W State ex. rel. Morales v. Farrey

Outagamie County:

• 2004AP3011 In re Estate of Brooks: Brooks v. Hietpas
• 2005AP1248-CR State v. Anderson
• 2005AP2404-CR State v. Buxton

Pierce County:

• 2004AP3383 The Kraemer Co. v. Pierce County Bd. of Adj.
• 2005AP951-CR State v. Wilcox

Racine County:

• 2005AP613-CR/ State v. Wright
• 2005AP615-CR

Shawano County:

• 2005AP793/ Village-Tigerton v. Minniecheske
• 2005AP1780

Washington County:

• 2004AP412 Commitment of Olson: State v. Olson

Waukesha County:

• 2005AP2748-CR/ State v. Walker (petition to bypass)
• 2005AP2751-CR

Waupaca County:

• 2005AP2340 Lorge v. Finger

Wood County:

• 2005AP894 Schmick v. Mt. Morris Mutual Ins. Co.

Winnebago County:

• 2005AP1664 Oshkosh v. Daggett

For more information contact:
Amanda Todd
Court Information Officer
(608) 264-6256

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