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2007

Supreme Court accepts twelve new cases

Madison, Wisconsin - May 3, 2007

The Wisconsin Supreme Court has voted to accept twelve 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/certification memos that are available online for the newly accepted cases are hyperlinked.

2006AP405 Liebovich v. Minnesota Insurance Co.
This case involves the question of whether it was “fairly debatable” that a specific homeowner’s insurance policy provided coverage for an “offense” involving a building setback restriction.

Gregory A. Liebovich was sued by two contiguous neighbors on Geneva Lake who claimed he built his house in violation of a setback restriction. Liebovich’s insurance company refused to defend, telling him the policy did not cover the liability claimed in the suit.

Liebovich hired his own attorney to defend the suit, which resulted in an award of damages against Liebovich, in the sum of $10,000, plus costs and disbursements. He then sued the insurance company to recover the attorney fees he incurred in his own defense. The circuit court granted summary judgment to the insurance company, but the Court of Appeals reversed, concluding that because coverage was fairly debatable, the insurance company had a duty to defend Liebovich. The question this court will answer is whether coverage is fairly debatable, resulting in a duty on the part of the insurer to defend Liebovich. From Walworth County

2006AP364 Nichols v. Progressive
This case presents questions about the scope of “social host” liability in Wisconsin. “Social host” liability is based on the concept that, under certain circumstances, a party host serving alcohol should be responsible for the acts of guests committed under the influence of alcohol. Most states, including Wisconsin, have laws imposing liability on social hosts where alcohol is served to a minor.

On the evening of June 4, 2004, Edward and Julie Niesen allowed a large group of high-school students to hold a party on their property. They did not provide alcohol to their underage party guests, but allegedly knew that some underage guests were consuming alcohol and did not supervise or prevent it.

One of the underage guests drove away from the party under the influence of alcohol. She collided with another vehicle, injuring its occupants, all members of the Nichols family.

The Nichols sued, alleging that the Nielsens were negligent. The trial court concluded that they failed to state a claim for common law negligence, in part because the defendants did not actually provide or serve alcohol to the underage driver. The Court of Appeals reversed part of the decision, concluding that the family had established a claim for common law negligence. The Court of Appeals’ decision would permit the case to go to trial. The Supreme Court is expected to consider whether a common law negligence claim may be used to impose liability on the social hosts in this situation . From Columbia County.

2005AP2607 Estate of James Matteson v. Robert Matteson
This case, resulting from a dispute over the dissolution of a business partnership, examines the detailed calculations used to determine an outgoing partner’s profit share and the continuing partner’s compensation.

In 2001, James left the Matteson Communications partnership, causing its dissolution. Robert continued the business as an LLC, but the two were unable to agree as to what Robert should pay James for his share of the company.

James died shortly after his retirement, and his estate sued. After three and one-half years of litigation and three days of trial, the circuit court awarded James’ state a share of the value of the business at the date of dissolution and a share of the profits earned between the date of dissolution and the date of trial. Both parties appealed, each alleging a multitude of errors in the court’s calculation. From Fond du Lac County.

2005AP1527 Berner Cheese Corp. v. Lyle A. Krug, et al.
This complex case began as a dispute between Berner Cheese Corporation and its vice president of sales and marketing, who, after resigning his post, was subject to a zealous effort by Berner to recover proprietary information on customers and cheese formulas. The effort included a raid on the offices of Dairy Source, Inc. (DSI), one of Berner’s suppliers, where the ex-employee kept an office. DSI sued, and Berner ultimately paid DSI $1.35 million to settle the claim.

After the settlement, additional disputes were aired. Berner sued its corporate counsel, Lyle Krug, for legal malpractice, and Berner’s defense counsel, the law firm of Brennan, Steil, Basting, and MacDougall, S.C., sued Berner for unpaid legal bills.

The trial court’s dismissal of two of Berner’s claims against Krug, the corporate counsel, is the basis for this appeal. The dismissed claims were for breach of fiduciary duty and punitive damages. The Court of Appeals affirmed the dismissal of these claims.

The Supreme Court is expected to explore the bounds of an attorney’s duties to a client, and to clarify the circumstances under which a client can mount a claim for punitive damages against an attorney whose advice is not sound. From Rock County.

2005AP1588 In Re the Marriage of: Steinmann v. Steinmann
This is a divorce case involving Rose Steinmann (owner of Dairy Source, Inc., a litigant in 2005AP1527, another case the Court accepted this month) and Tony Steinmann (the ex-employee in 2005AP1527). The couple’s 10-year marriage ended in divorce in December 2004.

In granting the divorce, the circuit court judge awarded Tony $2,000 per month in maintenance. This current case arises from (1) Rose’s challenge to that award, and (2) Rose’s contention that the trial court erred in splitting the couple’s assets 50/50.

She argues that, although the assets were titled to both spouses, they were purchased with money that she had earned and therefore should have been awarded to her. The Court of Appeals affirmed the circuit court, finding no precedent for tracing marital assets back to their original buyer – except in cases involving gifted or inherited property.

Rose claims that the trial court erred by refusing to trace the source of the assets, and award them to her as contemplated in the parties’ marital property agreement. She also contends that the trial court erroneously failed to make any provision for apportionment/ payment of an income tax liability. Further, she claims that the maintenance award was erroneous because the trial court improperly determined the parties’ marital standard of living. The Supreme Court is expected to determine whether tracing marital assets, as Rose proposes to do in this case, is lawful, and whether the property division and maintenance awards were proper. From Walworth County.

2005AP1829 State v. Harenda Enterprises, Inc.
This case, which turns on the language of federal regulations adopted by the state, involves a dispute over rules and statutes regulating asbestos contamination.

Harenda Enterprises performed an asbestos inspection at the Milwaukee County Auditorium under a contract with the Wisconsin Center District as part of a renovation project.

The state charged Harenda with relying on the wrong method of assessing the asbestos content of parts of the auditorium, and as a result, proper precautions allegedly weren’t taken during removal.

The trial court sided with the state, determining that the company failed to apply proper testing standards. The District I Court of Appeals reversed, concluding that statutory language trumped the rules. From Milwaukee County.

2005AP2257 Olson v. Town of Cottage Grove
In this case, Walter Olson, a real estate developer, challenged a Town of Cottage Grove ordinance, which, in some instances, requires transfer of development rights when property is developed.

Olson, the owner of Klosterman Farm, attempted to subdivide about 70 acres into residential lots. He received conditional approval to rezone his property from an exclusive agricultural district to residential district and was given a year to record the plat with the Dane County Register of Deeds.

However, as a condition of town approval, Olson said he would have been required under the town ordinance to purchase an additional 350 acres of farmland to comply with a provision in the Town’s Smart Growth Plan, which requires transfer of development rights.

Olson sought a declaratory judgment challenging the ordinance on constitutional and other grounds. The trial court granted the town’s motion for summary judgment. The Court of Appeals reversed and cause remanded for further proceedings. From Dane County.

2006AP806-CR State v. William Troy Ford
In this criminal case, William Troy Ford is challenging his conviction for battery, bail jumping and conspiracy to bribe a witness, all as a repeat offender.

Some background: Ford and a female companion entered a gas station in Ashland. While the woman was at the counter to pay for her merchandise, Ford struck the clerk from behind with a beverage bottle, hitting the clerk in the face and allegedly threatened him with a stapler before demanding the clerk’s car.

Ford asks the supreme court to review two issues: whether the circuit court erred in not declaring a mistrial when the victim identified the courtroom bailiff as the person who had come into the gas station after the incident and suggested that he call the police (thereby making him a potential witness); and whether the circuit court erred in allowing witnesses to testify about the contents of a surveillance videotape that was not currently playable but could potentially have been restored by further efforts.

Ultimately, a jury acquitted Ford of an attempted robbery charge and convicted him on the other counts. The District III Court of Appeals in Wausau affirmed the circuit court's rulings and the convictions. From Ashland County.

2006AP1114-CR State v. Michelle R. Popenhagen
This criminal case examines whether a person has a reasonable expectation of privacy in bank records such that bank records obtained through a subpoena that did not comply with statutory requirements should be suppressed as evidence in the prosecution of a theft and check-cashing scheme.

Michelle R. Popenhagen was accused of stealing about $29,000 by stealing from the store's receipts and by cashing dishonored checks at her employer, Save More Foods. Minocqua police requested subpoenas for Popenhagen’s bank records through the Oneida County District Attorney’s office.

However, no determination of probable cause was made in connection with the judges’ approval of the subpoenas, which is a violation of the applicable statutory procedure for obtaining a subpoena.

Popenhagen moved to suppress the bank records and statements she made after police confronted her with the records. The circuit court held that the search violated her constitutional rights, and that the remedy was to have the records suppressed.

The Court of Appeals reversed, concluding that although the bank records were obtained without a judicial finding of probable cause and in violation of state and federal statutes, suppression of the records was not required because her constitutional rights were not violated. From Oneida County.

2007AP8 Walworth Co. DHHS v. Andrea L.O.
This certification request from the District II Court of Appeals involves a case in which the parental rights of the mother and father of a two-year-old child were terminated.

The Walworth County Department of Health and Human Services petitioned Walworth County Circuit Court for the termination of parental rights of Andrea L.O. and the child’s adjudicated father.

During a court hearing, Andrea acknowledged that the child had been placed out of the home for a cumulative period of at least six months – the first element for termination.

However, the trial court did not ask Andrea if she understood that her acknowledgment meant she was giving up her right to have a jury answer the question.

The Court of Appeals has asked the Supreme Court to determine if the rationale and holding of a juvenile case involving a similar issue would apply to this case, and require the trial judge to question Andrea personally regarding her stipulation of the first element for the termination. From Walworth County.

2006AP662 State v. Beaver Dam Area Development Corp.
This certification from the District IV Court of Appeals could clarify the definition of “quasi-government corporation” as it relates to Wisconsin’s open meetings and public records laws.

The state seeks a judgment declaring that the Beaver Dam Area Development Corp. is subject to the open meetings and public records laws and an order for the corporation to comply with the laws.

The circuit court held that the corporation is not subject to the open meetings and open records law because it does not meet the definition of a “quasi-governmental corporation” within the meaning of these statutes.

A decision by the Supreme Court could affect the use of corporations that are not officially part of a local unit of government to perform functions often handled by public entities. From Dodge County.

2005AP2855 Below v. Dion and Dana Norton
This case could determine if the economic loss doctrine applies to a residential real estate transaction between private individuals.

The economic loss doctrine is intended to bar tort claims for purely economic losses in situations when the relationship between two parties involves a contract for a product. The Supreme Court has previously applied this rule of law to a commercial real estate transaction, but has not previously decided whether the doctrine applies to sales of residential real estate.

In this case, Shannon Below had purchased a home from Dion and Dana Norton and sued after discovering a break in the sewer line between the home and the street. Below asserted five causes of action, including false advertising and four forms of misrepresentation. She attempted to amend her complaint to include breach of contract, but the trial court ruled it wasn’t properly filed. The trial court further ruled that Below had not alleged a proper claim for false advertising and that the other common law misrepresentation claims were barred by the economic loss doctrine.

The Court of Appeals ruled that Below’s claim of false advertising was not barred by the economic loss doctrine and reversed that part of the decision, but affirmed the dismissal of the common law misrepresentation claims due to the economic loss doctrine. From Milwaukee County.

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). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court.

Correspondence memos

Brown

  • 2005AP2064 Martinez v. Pekin Ins.

Burnett

  • 2006AP2345-NM TPR to Megan I.R.: Burnette Co. DHS v. Tera L.R.

Clark

  • 2005AP1302 Beyerl v. Clark Elec.
    Chief Justice Shirley S. Abrahamson dissents.

Dane

  • 2005AP2355 Butcher v. Ameritech
    Chief Justice Shirley S. Abrahamson did not participate. Justice Jon P. Wilcox and Justice Patience Drake Roggensack dissent.
  • 2007AP2-W State ex rel. Davis v. Endicott  

Forest

  • 2005AP2599 State v. Socha

Milwaukee

  • 2005AP2806-CR State v. Ards

Rock

  • 2005AP1450 L.M.S. v. Atkinson

Sheboygan

  • 2004AP2583-CR State v. Savanh

Petitions to bypass memos

Grant

  • 2006AP2539, 2006AP2540, 2006AP2541 City of Platteville v. Ambort

Milwaukee

  • 2005AP2680, 2006AP1410 Onischuk v. Johnson Controls
  • 2006AP2206 Int. of Robt. T.: State v. Robert T.
    Chief Justice Shirley S. Abrahamson, Justice Jon P. Wilcox and Justice David T. Prosser dissent.

Petitions for writs

Dane

  • 2007AP494-W State ex rel. Locke v. Grams (WHC)
  • 2007AP448-W State ex rel. Obriecht v. Jenkins (WHC)

Marathon

  • 2007AP637-W State ex rel. Hall v. DOC (WSU)

Oconto

  • 2007AP39-W State ex rel. Gast v. Oconto County (WHC)

Certification memos

Kenosha

  • 2006AP939 Sustache v. American Family Mutual Ins.

Petitions for review

Ashland

  • 2006AP671-CR State v. Hoeft

Bayfield

  • 2005AP2706 State v. Werchowski

Brown

  • 2006AP800 Kohlbeck v. Pulaski
  • 2006AP2589-W State ex rel. Brooks v. Kingston

Chippewa

  • 2006AP239-CRNM State v. Jipson

Columbia

  • 2006AP982-CR State v. Beecraft
    Chief Justice Shirley S. Abrahamson did not participate.

Dane

  • 2004AP3251 Bar-Av v. Psychology Examining Board
  • 2005AP810 In re Commitment of Nelson: State v. Nelson
  • 2005AP2674 Marriage of: Wood v. Propeck
    Justice Patience Drake Roggensack did not participate.
    Justice Jon P. Wilcox and Justice David T. Prosser dissent.
  • 2006AP589 DaimlerChrysler v. DOR
  • 2006AP971 Radley v. Ives
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP1233 Carey v. Wis. Retirement Board

Fond du Lac

  • 2004AP2621-CRNM State v. Walker

Kenosha

  • 2005AP611 State v. Yates
  • 2005AP1472-C State v. Lopez
  • 2005AP1832-CRNM State v. Cowick
  • 2006AP554 Portilia v. Inf. Indus.

Kewaunee

  • 2006AP150 Salmon v. Berger

Manitowoc

  • 2005AP1583-CR State v. Yang

Marinette

  • 2006AP1339-CR State v. Brady

Milwaukee

  • 2004AP1644 Guy v. Brady
  • 2004AP2968 State v. Mitchell
  • 2004AP3348-CR State v. Stapleton
  • 2005AP95-CR State v. Roberts
  • 2005AP1328-CR State v. Blau 2005AP2459 State v. Edwards
  • 2005AP2630 Rusk v. City-Milw.
  • 2005AP3115-CR State v. Linden
  • 2005AP3179 Borman v. Sohns
  • 2006AP82 State v. West
  • 2006AP429-CR State v. Nash
  • 2006AP750-CR State v. Hernandez
  • 2006AP1118 State v. Harris
  • 2006AP1319 State v. Cianciola
  • 2006AP1972-W State ex rel. Johnson v. Milwaukee County
  • 2006AP3145-W State ex rel. Miller v. Lundquist

Portage

  • 2005AP2839-CR State v. Wille

Racine

  • 2006AP754-CRNM State v. Sanders
  • 2006AP1018-CRNM State v. Washington
  • 2006AP1066-CR State v. Medina

Washington

  • 2006AP19 Rubenzer v. Mensch, LLC
    Justice Patience Drake Roggensack dissents.
  • 2006AP1639-CR State v. Ahlers

Waupaca

  • 2006XX300-CR State v. Balthazor

Winnebago

  • 2006AP656 State v. Petersen
  • 2006AP1007 Daggett v. Stokes
  • 2006AP713-CR State v. Larson

Wood

  • 2006AP483 Anderson v. Cinci. Cas.
  • 2006AP1474 State v. Hewitt

For more information contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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