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2007

Supreme Court accepts seven new cases

Madison, Wisconsin - October 25, 2007

The Wisconsin Supreme Court has voted to accept seven 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.

2006AP291 Hornback v. Archdiocese of Milwaukee and Diocese of Madison

This case examines the statute of limitations as it relates to civil cases involving alleged sexual assault of a child, and whether the First Amendment bars civil actions against a religious organization for damages resulting from such assaults.

Some background: In October of 2005, Kenneth Hornback, Dennis L. Bolton, Ronald W. Kuhl, David W. Schaeffer and Glenn M. Bonn sued the Milwaukee Archdiocese and the Madison Diocese.

They allege that from 1968 to 1973, Gary T. Kazmarek, a school teacher in the Louisville, Kentucky Archdiocese, sexually abused them and that the Milwaukee Archdiocese and Madison Diocese "knew or should have known of Kazmarek’s propensity for sexually abusing children."

The lawsuit claims that from approximately 1964 to 1966, Kazmarek taught at a school in the Milwaukee Archdiocese where he allegedly sexually abused "more than two dozen children." After Kazmarek taught at a school in the Milwaukee Archdiocese, he taught at a school in the Madison Diocese where he allegedly sexually abused "up to ten children."

According to the complaint, the Milwaukee Archdiocese’s and the Madison Diocese’s alleged negligence, which the appellants claimed they did not discover until October of 2002, "was a substantial factor in causing Kazmarek’s sexual abuse of the" appellants.

The Court of Appeals determined that the circuit court did not err when it concluded that the petitioners’ claims were barred by the statute of limitations. A decision by the Supreme Court could clarify how previous court decisions, employment law and tort law relate to this case. From Milwaukee County.

2006AP2292 C. Coakley Relocation Systems v. City of Milwaukee
This case examines how the statute of limitations applies in a case involving the City of Milwaukee's exercise of its eminent domain authority on a parking lot used by C. Coakley Relocation Systems, a moving and storage company.

Some background: On Jan. 30, 2002, the city took possession of the parking lot to create a new street design in conjunction with the demolition of the Park East Freeway. The city claimed that Coakley was not a “displaced person” under Wis. Stat. § 32.19 (2) (e) and was not entitled to relocation payments.

The circuit court agreed with the city’s position, but the Court of Appeals sided with Coakley, concluding Coakley was entitled to a comparable replacement property.

After negotiations, the City offered, but Coakley rejected, $30,000 to resolve the lease of comparable replacement parking. On Dec. 13, 2004, Coakley served the City with a notice of claim to which the city did not respond.

On Sept. 29, 2005, Coakley filed a lawsuit, seeking damages and relief for relocation assistance benefits. The city moved to dismiss on the ground that the two-year statute of limitation barred the complaint.

The circuit court allowed Coakley to amend its complaint, but ultimately dismissed it – a decision upheld by the Court of Appeals. Coakley contends the decision, if it stands, will result in the abuse of condemnation powers and fosters a policy of exploitation.

A decision by the Supreme Court could clarify how the statute of limitations applies in this case. In order to have prevented the statute of limitation time limit from beginning to run, Coakley alleges it would have had to avoid giving the city possession of the property. However, the company did so to comply with a court order to vacate, Coakley contends. From Milwaukee County.

2005AP2852 Chad Novell v. Anthony and Andrea Migliaccio
This dispute arises out of the sale of a home with a leaking basement. The issue before the Supreme Court is whether “justifiable reliance” is an element of a false advertising claim brought under Wis. Stat. § 100.18.

The circuit court granted the sellers, Anthony and Andrea Migliaccio, summary judgment against the buyer, Chad Novell. The Court of Appeals affirmed on all but the false advertising claim, on which they reversed and remanded for trial.

The sellers allegedly misrepresented whether they knew about previous water damage, but the buyer ignored a building inspector’s recommendation to obtain an expert assessment of the basement based on the inspector’s suspicion that the basement has water problems. After the sale, water damage was discovered.

The Supreme Court could decide if the homebuyer’s claim of reliance on a seller’s misrepresentations in the face of the inspector’s recommendation should be deemed unreasonable as a matter of law. From Milwaukee County.

2006AP813 Ramachandra Rao v. WMA Securities, Inc.
The issue raised in this financial theft case is whether the defendant company was denied its claimed constitutional right to a jury trial on damages and whether punitive damages are available for failure to comply with discovery.

Between January 2000 and January 2003, David Novak, an employee of the defendant, stole hundreds of thousands of dollars from the account of plaintiff Ramachandra Rao. In April 2001, the defendant had terminated David Novak, also a defendant, for theft from a co-worker, but Rao was not notified.

Rao filed suit against WMA, Novak and others, claiming Novak stole a substantial amount of money, and that the defendant was vicariously liable for the thefts. Rao also alleged that the defendant was directly liable for intentional and negligent misrepresentation.

During discovery, Rao was dissatisfied with responses from WMA president Barry Clause, and moved to compel discovery. The circuit court granted the motion, as well as a second order compelling discovery.

In May 2005, the circuit court concluded that the defendant’s submissions were unreasonably late and ordered the defendant to pay $2,000 to the plaintiff’s attorneys. The circuit court eventually struck the defendant’s answer and entered default judgment in favor of Rao.

The circuit court awarded the plaintiff more than $500,000 in damages. The Court of Appeals affirmed in part, reversed in part, and remanded. The Court of Appeals affirmed the circuit court’s decision to strike the defendant’s answer and to enter default judgment in favor of the plaintiff. But the Court of Appeals also concluded that the circuit court did err in denying the defendant the right to present evidence showing a lesser amount of damages than claimed by the plaintiff.

The Supreme Court could decide if the defendant was entitled to a jury trial on the issues of damages following the entry of default judgment on the issue of liability and whether an award of punitive damages based on a failure to disclose information should be precluded. From Rock County.

2006AP918 Finder v. American Heartland Insurance Co.
This certification examines whether Wis. Stat. § 632.24 subjects and insurance company to direct liability in Wisconsin for an insured’s negligent conduct in Wisconsin, where the insurance policy was not delivered or issued in the state.

The District IV Court of Appeals asks the Supreme Court to decide if the Supreme Court should overrule, modify or change language from a previously published decision related to “direct action” against an insurer. More specifically, the Court of Appeals wants the Supreme Court to consider if Kennison v. Wellington Ins. Co., 218 Wis. 2d 700, 582 N.W.2d 69 (Ct. App. 1998) was wrongly decided.

The direct action statute is intended to protect successful plaintiffs from having to pursue insolvent defendants before proceeding against the defendants’ insurers.

Some background: On Oct. 4, 2001, plaintiff, Carrie Finder, a Wisconsin resident, was involved in an automobile accident in Fort Atkinson, Wis. Michael Alm, an Illinois resident at the time, rear-ended her vehicle. Alm was insured by American Heartland Insurance Company, which did not issue or deliver a policy to Alm in Wisconsin.

Finder sued Alm and American Heartland. She timely served the summons and complaint on American Heartland but did not timely serve Alm. After the statute of limitations had run, American Heartland moved for summary judgment, arguing that the circuit court lacked jurisdiction over it because the policy had not been issued in Wisconsin. The circuit court granted summary judgment in favor of American Heartland. Finder appealed.

A decision by the Supreme Court could clarify how the direct action statute applies in this case. From Jefferson County.

2006AP64-CR State v. Straszkowski
The issue presented in this case is whether a defendant’s plea was unknowing and involuntary because he allegedly didn’t know that a dismissed charge would be read in for sentencing purposes and what the effect of reading in would be.

Some background: David G. Straszkowski was a defendant in a number of criminal cases in Clark County. Pursuant to a plea agreement, Straszkowski pled guilty to one count of second-degree sexual assault of a child, one count of possession of drug paraphernalia, and one count of issuing a worthless check. In exchange for those guilty pleas, a second charge of second-degree sexual assault of a child and a second charge of issuing a worthless check were dismissed and read in for sentencing purposes.

The pre-sentence investigation report recommended some jail time and probation. However, the circuit court sentenced Straszkowski to five years of initial confinement to be followed by ten years of extended supervision. Straszkowski filed a motion for postconviction relief, seeking to withdraw his plea or to modify his sentence. Straszkowski argued that he did not understand that the dismissed charges would be treated as read-ins, which meant that he was admitting the facts of those charges alleged in the complaint. Straszkowski contends his plea questionnaire indicated that the remaining charges were simply to be dismissed, and that if he had known the court could consider allegations from the dismissed charges at sentencing, he would not have entered his plea.

The circuit court denied the motion to withdraw the guilty plea as well as the motion for modification of the sentence. On appeal, the Court of Appeals rejected Straszkowski’s argument that his plea was unknowing and involuntary because he did not understand the effect of the read in procedure.

A decision by the Supreme Court could determine whether a plea hearing must include an explanation of the impact of a read-in and whether a judge must ensure that the defendant understands the explanation of the read-in procedure. From Clark County.

2004AP1104-CR and 2004AP1105-CR State v. Keyes
This case examines how Wis. Stat. § 779.02 (5), Wisconsin’s theft by contractor statute, applies to a situation where a prime contractor also acts as a subcontractor and takes a profit on materials it supplies to a project before all other subcontractors are paid.

Some background: In 2001, Jim and Rose Wettstein entered into a written design-build agreement with Keyes to Design (owned by Matthew and Angela Keys) to build a home in Onalaska. The agreement set out the services and the payment process. Keyes to Design was to receive monthly payments for its prime contractor services and Wis. Stat. to be paid for Matthew Keyes' labor at the rate of $50/hour. The agreement did not identify specific subcontractors who were to perform parts of the work, although the Keyes assert that the Wettsteins approved proposals that showed that Angela Keyes was to provide certain materials for the house. The payments for these materials that the Keyes took from the construction draws allegedly included Angela Keyes' profits.

At some point, the title company that was retained to administer the draws went to the construction site and concluded that the percentage of completion did not correspond to the amount of draws to date. The Wettsteins eventually terminated the contract with Keyes to Design and kicked the Keyes off the building site. At that time there were unpaid amounts still owing to a number of subcontractors. The Keyes were eventually charged with violating the theft by contractor statute.

The Keyes appealed the circuit court’s pre-trial decision that there was probable cause to believe they violated the theft by contractor statute. The Court of Appeals affirmed.

A decision by the Supreme Court could clarify the theft by contractor statute and provide guidance to lower courts and contractors about what is allowed or prohibited under the statute. From La Crosse 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.

Certifications

Buffalo

  • 2006AP2662 Lisowski v. Hastings Mut. Ins. Co.
    Chief Justice Shirley S. Abrahamson concurs. Justice Ann Walsh Bradley dissents.

Petition for Supervisory Writ

Milwaukee

  • 2007AP2171-W Isom v. COA

Sheboygan

  • 2007AP1640-W Hoefler v. Doherty
  • 2006AP2703 Hoefler v. Doherty

Petitions for review

Brown

  • 2006AP1257 State v. Williams

Dane

  • 2004AP2864 State v. Greene
  • 2006AP595 Myers v. Litscher
  • 2006AP1494 Duarte-Vestar v. Doe
  • 2006AP1768 Ball v. Schneiter
  • 2006AP2161 Akbar v. Frank
    Justice N. Patrick Crooks did not participate.
  • 2006AP3180 Carolina Builders v. Dietzman

Dodge

  • 2005AP2946-CR State v. Price

Dunn

  • 2006AP1704 Cigan v. Schembera & Smith

Fond du Lac

  • 2007AP765-CRNM State v. Henderson

Green Lake

  • 2006AP2493 Blonigen v. Wallace

Marathon

  • 2006AP952 Tompkins v. Tompkins
  • 2006AP1484 Wendt v. Bajet Van Lines
  • 2006AP2902-CR State v. Jeffrey
    thru 2006AP2904-CR

Milwaukee

  • 2004AP2525-CRNM State v. Smith
  • 2004AP3096-CR State v. Simmons
  • 2005AP2409-CRNM State v. Griffin
    2005AP2410-CRNM
  • 2005AP2727 State v. Thomas
  • 2006AP290-CR State v. Buckner
  • 2006AP843-CR State v. Byrd
  • 2006AP844-CR
  • 2006AP868-CR State v. Rice
  • 2006AP1223-CR State v. Laumann
    2006AP1224-CR
  • 2006AP1338 State v. Wood
  • 2006AP2030 State v. Edwards
  • 2006AP2270 Jones v. Courtyard Apts.
    Justice Patience Drake Roggensack dissents.

Outagamie

  • 2006AP3157-CRNM State v. Little
  • 2006AP3204-CR State v. Hawk

Portage

  • 2006AP1477 Genskow v. Kurszewski

Price

  • 2006AP2311 Park Manor v. DHFS
    Justices David T. Prosser and Patience Drake Roggensack dissent.

Racine

  • 2006AP3121 Leigha N.K. v. Jason B.

Rock

  • 2005AP3021 City of Janesville v. Briarmoon
  • 2006AP1460-CR State v. Knight

Sauk

  • 2006AP256-CR State v. Ward
    thru 2006AP259-CR
  • 2006AP2835-CR State v. Rivas
  • 2006AP2932-CR State v. Hogoboom
  • 2007AP72 State v. Bamaca-Hernandez

Sawyer

  • 2006AP3112 Cambier v. Integrity Mut.

Taylor

  • 2006AP2403 Smith v. Smith

Walworth

  • 2006AP1398 Certified Power v. Beierle
  • 2006AP2606 Buchholz v. Buchholz

Washington

  • 2005AP1584 Konitzer v. Batzler
    Justice Annette Kingsland Ziegler did not participate.
  • 2006AP943 Washington Co. v. Village of Jackson
    Justice Patience Drake Roggensack dissents. Justice Annette Kingsland Ziegler did not participate.

Waukesha

  • 2006AP1323 Gende v. Cannon & Dunphy
    Justice Annette Kingsland Ziegler did not participate.

Winnebago

  • 2006AP2484 Sanderfoot Masonry v. Raehl
  • 2006AP2754 Seibert v. Bartow

Wood

  • 2005AP1101-CR State v. Talbot
    Chief Justice Shirley S. Abrahamson dissents.

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

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