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2010

Supreme Court accepts one new case

Madison, Wisconsin - April 30, 2010

The Wisconsin Supreme Court has voted to accept one new case. The Court also acted to deny review in a number of cases. The case numbers and counties of origin are listed below. The Court of Appeals' certification memo available online for the newly accepted case is hyperlinked.

2009AP688  Foley-Ciccantelli v. Bishop's Grove
This certification asks the Supreme Court to examine several issues related to legal representation in a civil suit: the right of a party to be represented by counsel of choice; the right of retained counsel to represent a party; and the judicial right and authority to intervene.

Some background: The underlying case here is a slip-and-fall negligence action brought by Susan Foley-Ciccantelli and her husband, Dr. Mark J. Ciccantelli, against Bishop's Grove Condominium Association, Inc. (Bishop’s Grove) and it insurer, State Farm Fire & Casualty Company (State Farm).

The Ciccantellis alleged that Bishop's Grove had failed to properly maintain common property, causing serious injuries to an ankle when Susan Foley-Ciccantelli slipped and fell on ice in what the Ciccantellis contend is a condominium common area. As the case moved through circuit court, controversy arose over legal representation.

The Ciccantellis had retained Atty. Mark Andringa of the Waukesha law firm of Cramer, Multhauf & Hammes, LLP (CMH) to recover damages for them, and it was the CMH firm that filed the summons and complaint on their behalf. CMH had in the past provided representation regarding real estate development issues to Foster Group Ltd. (Foster Group), which was the registered agent and property manager for Bishop's Grove. The Foster Group was not a current client of the CMH firm at the time of the incident. 

After Ms. Foley-Ciccantelli’s fall, however, the CMH firm asked Wayne Foster, the principal of the Foster Group, to speak with a State Farm claims adjuster regarding condominium law and to explain to the adjuster that Bishop's Grove was responsible for maintaining the driveway and the exterior of the building as common elements of the condominium.

Bishop's Grove says that the Foster Group is its agent pursuant to a contract.  It also contends that the Foster Group is an insured under its policy with State Farm, which defines "insured" to include "any organization while acting as your (Bishop’s Grove’s) real estate manager."

As the case proceeded, Atty. Andringa sent a letter to Wayne Foster that asked about scheduling a date for Foster's deposition. Foster told the lawyer representing Bishop's Grove that the Foster Group had previously had a lengthy attorney/client relationship with CMH.  Bishop's Grove then filed a motion to disqualify the CMH firm from representing the Ciccantellis, with a supporting affidavit from Wayne Foster.

The circuit court ultimately granted the disqualification motion, stating that there was an appearance of impropriety because of CMH’s prior representation of the Foster Group. The court noted that Wayne Foster would have an important role in the resolution of the litigation.

The Ciccantellis filed a petition for leave to file an interlocutory appeal of the order disqualifying the CMH law firm from representing them. The Court of Appeals granted the petition. The Ciccantellis' brief in the Court of Appeals lists two issues to be decided on appeal:
1. Does Bishop's Grove Condominium Assn, Inc., as a non-client, have standing to assert attorney conflict of interest?
2. Is there a substantial relationship between the subject matter of CMH's previous representation of the Foster Group, who is not a party in this case, and CMH's current representation of the Ciccantellis?

In certifying the case, the Court of Appeals focuses on whether Bishop's Grove, who was neither a current client nor former client of the CMH firm, has standing to seek disqualification of that firm from representing an opposing party in a lawsuit. The Court of Appeals poses the question: Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action where the attorney previously represented a nonparty witness for the opposing side?

A decision by the Supreme Court could clarify the law regarding the standards for disqualification of attorneys, including the issue of who may seek to disqualify the attorney(s) representing an opposing party.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state's law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

Barron
2008AP2775  State v. Fankhauser - Chief Justice Shirley S. Abrahamson dissents.

Chippewa
2009AP372  County of Chippewa v. Schaefer
2010AP482-W Blackberry Comm. Farm v. Cir. Ct. Chippewa Co.

Dane
2008AP1867  KBS Construction v. McCullough Plumbing
2008AP2412-CR State v. Spangler
2009AP92-CR  State v. Kaltenberg
2009AP229-CR State v. Jackson
2009AP396  State v. Peters
2009AP548  WLEA v. State
2010AP593-W Lacy v. Huibregtse

Eau Claire
2009AP1357-58 Eau Claire Co. DHS v. Brandy H.

Fond du Lac
2009AP505  Mercer v. City of Fond du Lac

Jefferson
2008AP2605-CR State v. Waldmann

Kenosha
2008AP1510  Hach v. Am. Family Mut.

La Crosse
2009AP509-CRNM State v. Rodriguez

Marathon
2009AP2713-14-W Carter v. COA

Milwaukee
2006AP2443-47-NM State v. Terrance B.
2008AP663-65 State v. Burkett
2008AP2399-CR State v. Gorak
2008AP3202-CR State v. Hehn
2008AP3204-CR State v. Blunt
2009AP444  Ladd v. Uecker
2009AP495-CR State v. Counts
2009AP501-CR State v. Williams - Chief Justice Shirley S. Abrahamson dissents.
2009AP532-CR State v. Woods
2009AP975-CR State v. Ramirez
2009AP1404-CR State v. Hubbert
2009AP1458-W von Flowers v. Cir. Ct. Dist. I - Justice N. Patrick Crooks did not participate.
2009AP1927  State v. Devon H.
2009AP2403-04 State v. Marnika E. - Justice Ann Walsh Bradley dissents.
2009AP2670-W Collins v. Dittmann
2010AP463-W Brown v. DOC
2010AP483-W Rogers v. COA, Dist. I

Ozaukee
2008AP1095/1730 Schuh v. Al-Othman
2008AP2989 and 2009AP856 Orlando Res. v. Nelson

Outagamie
2009AP2725-W Alger v. Waters

Portage
2008AP582-CR State v. Sally

Price
2008AP3073  Willett v. LIRC
2009AP1768-FT Anderson v. Dieman

Racine
2008AP483-CRNM State v. McPherson
2008AP1647  S.C. Johnson v. Morris - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2009AP348  Grindemann v. Humphreys

Richland
2008AP2724-CR State v. Scheeler - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Sauk
2009AP2354  Melissa S. v. Edward T.K.

Sawyer
2008AP2693-CR State v. Smith

St. Croix
2010AP706-OA Bengtson v. City of Glenwood City

Vernon
2009AP1172-CR State v. Fortun

Washington
2007AP2670-CR State v. James H.P. - Justice Annette Kingsland Ziegler did not participate.
2009AP381  Forbes v. Stoeckl - Justice Annette Kingsland Ziegler did not participate.

Waukesha
2008AP2232  Marks v. Amer. Family
2008AP3187-CR State v. Berard
2009AP2923-W Kramschuster v. Cir. Ct. for Waukesha Co.

Waupaca
2006AP424  Sanders v. Est. of Sanders - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent. Justices David T. Prosser, Jr. and Patience Drake Roggensack did not participate.

Winnebago
2008AP1135-CR State v. Jacob L.G.
2008AP3134  State v. Dehn - Chief Justice Shirley S. Abrahamson dissents.
2009AP357  State v. Nigl

Wood
2009AP1872-73 Wood Co. DHS v. Gary V.

Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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