Supreme Court accepts five new cases

Madison, Wisconsin - June 10, 2011

The Wisconsin Supreme Court has voted to accept five 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 available online for the newly accepted cases are hyperlinked.

2009AP1505-CR State v. Thompson
The fundamental question raised in this case is whether a defendant must be given notice of a mandatory minimum penalty to make an informed decision on whether to go to trial.

Some background: Harry Thompson was charged with two counts of first-degree sexual assault of a child under the age of thirteen without great bodily harm.  The criminal complaint stated that upon conviction the defendant could be sentenced to a term of imprisonment not to exceed sixty years for each count.  There was no statement of a mandatory minimum penalty.  Thompson believed he could be sentenced to probation.

A jury found the defendant guilty of one of the counts and not guilty of the other. After the presentence report was filed, the circuit court noticed for the first time that the charge carried a mandatory minimum sentence of twenty-five years incarceration.  After the court brought this issue to the attention of the parties, neither of whom had been aware of the mandatory minimum sentence, the defendant moved for a new trial. 

The circuit court concluded that the failure to inform the defendant of the applicable mandatory minimum sentence prior to trial violated his constitutional due process rights. 

The court of appeals reversed, saying there was no authority to support the proposition that there is a due process right to have information that might be helpful in pursuing a plea agreement. 

The Court of Appeals deemed the defendant's reliance on cases addressing rights associated with entering a plea to be unavailing since those cases do not address right to engage in plea bargaining, much less a right to information that might affect a decision to pursue a plea bargain.  The Court of Appeals also said there was no reason to suppose that the defendant's knowledge of the mandatory minimum sentence would have led the prosecutor to make a more favorable plea offer.  The Court of Appeals specifically found that the defendant suffered no prejudice from not being informed about the mandatory minimum twenty-five-year sentence.

Thompson argues that the failure to inform him of the applicable mandatory minimum sentence of twenty-five years prior to trial is a significant constitutional question of due process which has not been previously decided by the Wisconsin Supreme Court.  He notes that this court and the Court of Appeals have previously addressed due process rights in the context of providing notice of the penalties a criminal defendant faces in cases that involve presumptive minimum penalties and in cases under the repeat offender statutes.  See, e.g., State v. Bons, 2006 WI 83, ¶70, 292 Wis. 2d 344, 383, 717 N.W.2d 133.  He says this case provides this court with the opportunity to weigh in on the same due process notice issues as they apply in the context of a mandatory minimum sentence.

The state notes that a failure to object at trial generally precludes appellate review of a claim, even one of constitutional dimension.  It says waiver is especially important here since there is no evidence the defendant suffered any prejudice by not knowing the mandatory minimum sentence for his charge. From Wood County.

2009AP2549 Johnson v. Cintas Corp.
The issue raised in this case is whether a default judgment was void because the summons and complaint named the wrong corporate defendant, meaning personal jurisdiction was never obtained over the correct corporate entity.

Some background: Robert Johnson was an employee of Cintas Corporation No. 2.  He was injured when his vehicle, which was being driven by a friend, collided with another vehicle.  His injuries resulted in permanent disability.  The plaintiff was required to use his personal vehicle in the course of his employment, and he had auto liability insurance through Cintas No. 2.  He sought treatment coverage from Cintas No. 2 through its health insurance provider.  When Cintas No. 2 refused to pay any benefits, the plaintiff filed suit. On April 19, 2007, the plaintiff served the registered agent for Cintas No. 2 with the summons and complaint naming the wrong corporate entity, Cintas Corporation, as the defendant.  Neither Cintas No. 2 nor Cintas Corporation answered the complaint. 

On May 12, 2007, the plaintiff filed the original summons and complaint naming "Cintas Corporation" as the defendant.  The record reveals that Cintas No. 2, the plaintiff's employer, is an indirect, wholly-owned subsidiary of Cintas Corporation.  Cintas No. 2 is a foreign corporation registered with the State of Wisconsin.  Cintas Corporation is a foreign corporation not registered and not doing business in Wisconsin. 

On June 15, 2007, the plaintiff moved for default judgment.  In response, Cintas Corporation filed an emergency motion to strike and dismiss for lack of personal jurisdiction saying the plaintiff incorrectly identified Cintas Corporation as his employer.

The circuit court entered a default judgment against Cintas No. 2 after the court orally allowed the plaintiff to amend the caption by substituting Cintas No. 2 for Cintas Corporation since Cintas No. 2 was never served with a summons and complaint naming it as a defendant. 

On July 20, 2007, attorneys for Cintas No. 2 filed an answer to the original and amended complaints, a motion to dismiss for lack of personal jurisdiction, and a motion to intervene on behalf of Cintas No. 2.  The circuit court declined to hear the motions on the grounds the court had already held a hearing, had granted an amendment to the pleadings, and had granted default judgment against Cintas No. 2.  The circuit court advised that Cintas No. 2 could file a motion for relief from judgment under § 806.07, Stats.  Cintas No. 2 did this and after briefing, the circuit court vacated the default judgment.

The plaintiff filed a motion for reconsideration saying that based on information obtained during discovery, Cintas No. 2 had previously filed actions in Wisconsin using the name Cintas Corporation.  After more briefing, the circuit court granted the motion for reconsideration and held that because Cintas No. 2 effectively held itself out to the public and the plaintiff as Cintas Corporation, the default judgment was reinstated.  A subsequent hearing on damages was held.  Judgment was held in favor of the plaintiff for $272,371.89.  Cintas No. 2 appealed, and the court of appeals reversed and remanded. 

The issue before the Supreme Court is whether a default judgment entered against Cintas Corporation No. 2 was void because the summons and complaint named Cintas Corporation.

Johnson asserts that naming Cintas Corporation rather than Cintas No. 2 in the summons and complaint was merely a technical, rather than a fundamental, defect that did not deprive the circuit court of jurisdiction.

Cintas No. 2 says that the defect in the summons and complaint was a fundamental defect that deprived the circuit court of personal jurisdiction over Cintas No. 2. From Kenosha County.

2009AP2057-CR  State v. Stevens 
This case examines Miranda rights when a suspect in a child sexual assault case invoked his right to counsel and then initiated further discussion with police. However, before he formally waived his rights and gave an additional statement, his attorney appeared at the station asking to speak with him, at the request of the suspect’s mother.  The attorney was turned away.

 Some background: David W. Stevens, a registered sex offender, was arrested at an apartment complex after a nine-year-old girl alleged he had physical contact with her in the apartment complex swimming pool. 

In the first interview with police, Stevens was read his Miranda rights, which he waived.  See Miranda v. Arizona, 384 U.S. 436 (1966).  Stevens made certain admissions.  Stevens then stated he wanted to speak to his lawyer.  There is no dispute the detective then terminated the interview, at 10:35 a.m.  The admissibility of these initial statements is not challenged.

The detective then took Stevens back to his cell, which was estimated to take approximately twenty or thirty seconds.  Stevens told the detective he changed his mind and wanted to waive his right to counsel and continue speaking with the detective.  The detective declined because Stevens had invoked his right to counsel. 

At Steven’s request, the detective agreed to speak with him later. Before interviewing Stevens again, a detective again read Stevens his Miranda rights and Stevens waived his right to counsel.  Stevens admitted he had intentional contact with the girl in the pool.

Before trial, Stevens moved to suppress the statements from his second interview, claiming (1) he invoked his right to counsel during the first interview; (2) the detectives did not tell him counsel had appeared at the station to speak with him; (3) one detective did not tell the other detective that a lawyer had requested to speak with Stevens; and (4) one of the detectives did not listen to a voicemail left by the attorney before interviewing Stevens a second time.

The circuit court concluded, Stevens did not knowingly waive his right to counsel before the second interview, because he did not know counsel had appeared at the station to see him. 
The court of appeals reversed.

Stevens asks the Supreme Court to review if police violated the demands of Miranda by denying an attorney access to the suspect prior to the second waiver of his Miranda rights.

Stevens also asks the Supreme Court if its decision in Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, mean that the court of appeals' decision in State v. Middleton, 135 Wis. 2d 297, 399 N.W.2d 917 (Ct. App. 1986) has no precedential value whatsoever because that case was overruled in State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776? From Waukesha County.

2010AP826 Marquez v. Mercedes-Benz
This certification from the Court of Appeals examines whether an “ordinary burden of proof” or a “middle burden of proof” applies to an allegation of intentional bad faith on the part of a consumer under Wis. Stat. § 218.0171, the state’s “Lemon Law.”

Some background: This case is here on appeal and cross-appeal after a trial on remand from the appellate court.  The consumer, Marco Marquez, sued the manufacturer, Mercedes-Benz USA, LLC, alleging it failed within 30 days to refund the purchase price of a car that failed to conform to its warranty after reasonable attempts to repair the car had failed.  See § 218.0171.  Failure to refund in a timely manner permits double damages under the Lemon Law.  Mercedes-Benz defended on the ground that Marquez intentionally acted in bad faith by not providing Mercedes-Benz with information needed to meet the thirty-day deadline.

The circuit court initially entered summary judgment in favor of Marquez.  In Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, 312 Wis. 2d 210, 751 N.W.2d 859 (Marquez I), the Court of Appeals ruled that a consumer who intentionally thwarts the manufacturer's attempt to make the refund is not entitled to the statutory remedies of double damages under Wisconsin's lemon law.  The court of appeals remanded for a fact determination whether Marquez acted in bad faith.  See id., ¶¶2-3, 22.
Before the trial on remand, the parties disagreed as to the burden of proof that must be met for the jury to find Marquez intentionally failed to act in good faith in dealing with Mercedes Benz.

The circuit court rejected Marquez's request for the middle burden, which is evidence that is clear, satisfactory, and convincing to a reasonable certainty.  The court instructed the jury to apply the ordinary burden, requiring Mercedes-Benz to prove Marquez's bad faith by the greater weight of credible evidence to a reasonable certainty.  The jury found that Marquez acted in bad faith.

On post-verdict motions, however, the circuit court granted Marquez's request to change the jury's verdict and directed verdict in favor of Marquez.  

Mercedes-Benz again appealed, disputing its liability for double damages.

It argues: (1) whether credible evidence supported the verdict; (2) whether Marquez was entitled to double damages when his unjustified failure to disclose critical information and affirmative misrepresentations caused Mercedes-Benz to breach its Lemon Law duty; and (3) whether the circuit court erred in overturning the jury verdict because it rejected Mercedes-Benz's request to call Marquez's counsel as a witness. 

Marquez cross-appealed, arguing the middle burden of proof applies to Mercedes-Benz's claim of intentional bad faith conduct by Marquez. 

In certifying the issue of cross-appeal, the court of appeals assumes for purposes of the certification credible evidence supports the jury's finding of bad faith and, therefore, the trial court's finding to the contrary was erroneous.  See Certification at 3, n.3.  It also notes it is undisputed Marquez would in any event be entitled to a refund.

A decision by the Supreme Court could clarify the burden of proof used to determine bad faith under the Lemon Law. From Waukesha County.

2009AP3075  State v. Ryan
This case examines the doctrine of “judicial estoppel” and results from an eminent domain seizure along the Menomonee River for the Marquette Interchange reconstruction in Milwaukee.
The doctrine of judicial estoppel prevents a party from contradicting previous declarations made during the same or an earlier proceeding, if the change in position adversely affects the proceeding or constitutes a fraud on the court. 

Some background: The Supreme Court is reviewing a Court of Appeals' decision affirming a circuit court summary judgment imposing a forfeiture in the amount of $37,691.25 against Basil Ryan, plus a mandate that Ryan pay for the removal of a sunken barge from the river.

Ryan and the State of Wisconsin are at odds over who was responsible for causing or allowing a  barge to sink in navigable water while the property along which it was moored was used for part of the reconstruction project.

Ryan owned a property that abutted the Menomonee River at 260 N. 12th Street in Milwaukee. He operated at least a couple of businesses on the property, including an auto towing/storage business and a limestone supply business.  Ryan asserts that he did not personally own these business, but that they were owned by Ryan Enterprises, a corporation.  Ryan claims he was merely a shareholder and employee of the corporation.

At some point in the early 1990s, Ryan says that Ryan Enterprises agreed to store a barge for Richard Shumacher in exchange for periodic storage fees and that eventually, Schumacher stopped paying the fees.  The barge remained in the river moored to Ryan’s property.

In connection with the eminent domain process and Ryan's attempt to obtain relocation benefits for  Ryan Enterprises and its businesses, Ryan's attorney submitted a "Relocation Business Questionnaire" to the state Department of Transportation (DOT).   The completed questionnaire contained the following statement relating to the barge:  "barge is stored by owner (Ryan)." 

In March 2005, the DOT acquired the property when it filed an award of damages in the office of the Milwaukee County Register of Deeds.  Ryan and his businesses were given 90 days (through June 28, 2005) to vacate the property. 

When Ryan had not vacated the property by the June 28, 2005 deadline, the DOT petitioned the circuit court for a writ of assistance to evict Ryan and other specified corporate entities from the property.  The circuit court ultimately issued an order for a writ of assistance as requested by the DOT.  The order contained the following provision:

[A]ll Respondents will remove all of their personal property, including the barge, and will vacate the premises located at 260 N. 12th Street, Milwaukee, Wisconsin, as more particularly described in the attachments to this order on or before August 1, 2005.

Ryan's attorney had called the court and indicated that he had no objection to the form of the order.

Ryan left the property at some point in late July 2005. On July 13, 2006, the barge sank to the bottom of the Menomonee River.  The Department of Natural Resources (DNR) then sent a notice of violation on October 9, 2006, because Ryan had not obtained a permit to place the barge in the riverbed of a navigable waterway.  Ryan's attorney sent a response letter, dated Oct. 16, 2006, to the DNR asserting that the barge had sunk due to the negligence of the DOT or its contractors.

In February 2008, the state commenced a forfeiture action against Ryan personally by filing and serving a summons and complaint.  The complaint alleged that Ryan had violated Wis. Stat. §§ 30.10(2) and 30.12(1)(a) by unlawfully placing and maintaining an obstruction (the barge) on the bed of a navigable stream without obtaining a permit to do so.  Ryan's answer asserted that the State had been in possession and control of the barge when it had sunk. The state filed for summary judgment, arguing that the DOT did not own the barge.

In an affidavit, Ryan did not dispute that the DOT had not acquired the barge.  He did contend that he personally had never owned or controlled the barge.

The court concluded that there was no issue of fact with respect to the State's potential responsibility for sinking the barge because Ryan was estopped from asserting that the barge was under the State's control at the time of its sinking and from claiming that Schumacher still owned the barge.

The circuit court ultimately found that there was no dispute of fact and granted summary judgment to the State that Ryan was personally liable for the forfeitures related to the sinking of the barge.  After conducting a short trial regarding damages, the circuit court entered a judgment against Ryan personally for $37,691.25.  The court further directed that $100,000 of the eminent domain payment, which had been held in the trust account of Ryan's attorneys, be used to pay for the removal of the barge, with any remainder of that amount being returned to Ryan. The Court of Appeals affirmed.

Ryan asks the Supreme Court to review:
- Can Ryan be found guilty under the forfeiture statutes on the grounds of judicial estoppel where he claims he made no statement to a prior court?
- Did the undisputed facts on the record establish that if judicial estoppel had not been applied, Ryan neither owned nor controlled the barge that sunk in a navigable waterway in order to be liable under the forfeiture statutes for violations of Wis. Stat. ch. 30?
- If judicial estoppel had not been applied, is there a dispute as to material fact[s] that precludes summary judgment as to whether Ryan owned or controlled the barge to be liable under the forfeiture statutes?
- Can the summary judgment procedure be used to find Ryan liable under the forfeiture statutes for violating Wis. Stat. ch. 30?  Can a defendant be found guilty under the forfeiture statutes by summary judgment motion?

Justice David T. Prosser did not participate. 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:

2010AP1992  Anderson v. Hebert

2009AP3175-CR State v. Miller
2010AP306-CR State v. Reyes-Cruz
2010AP335  Deering v. Brown Co. - Justice N. Patrick Crooks did not participate.
2011AP448-W al Ghashiyah v. Cir. Ct. Brown Co. -  Justice N. Patrick Crooks did not participate.

2009AP2025  Wilson v. Trade Lake Mut. Ins. - Justice Michael J. Gableman did not participate.

2011AP131-W Moore v. Cir. Ct. for Columbia Co.

2009AP1227  State v. Freeman
2009AP2804  Berman v. Blofeld  
2010AP2498-W Sveum v. Smith
2011AP638-W Moore v. Circ. Ct. for Dane Co. 
2011AP865-W Moore v. Pollard

Eau Claire
2010AP1614-CR State v. Van Doorn
2011AP827-W Staffa v. Pollard 

Fond du Lac
2010AP1763-CR State v. Erickson

2009AP2313-CR  State v. Tiggs
2010AP1435-CR State v. Stevens

2009AP1925  State v. Smith

2009AP2627  Land’s End v. City of Dodgeville

2009AP2920  Merten v. Strauss - Justice Patience Drake Roggensack dissents.
2010AP1179-CR State v. McCredie

2010AP1181  State v. Hendrickson
2010AP1280-CR State v. Seehafer
2010AP2157  Marathon Co. DSS v. Julie H.
2011AP930-W O’Grady v. COA, Dist. III

2009 AP533  State v. Martin
2009AP2495-CRNM State v. Harris
2009AP2783  Lenzke v. Brinkmann
2009AP2984-CR State v. Minnis
2009AP3039-CR State v. Colunga
2009AP3092  State v. Robinson
2009AP3187-CR State v. Lemons
2010AP189-CR State v. Hines
2010AP190  State v. Maddox
2010AP235   State v. Kidd 
2010AP296   State v. Kletzien
2010AP298  State v. Hampton
2010AP356  State v. Hard
2010AP615  Stamm v. Holter
2010AP685  State v. Allen  
2010AP768  State v. Wallace 
2010AP779-CR State v. Jones
2010AP809   State v. Parrish
2010AP812-CR State v. Blackmore 
2010AP861-CR  State v. Higgins 
2010AP870  Lenzke v. Brinkmann
2010AP970   State v. Brown 
2010AP1090-CR  State v. Boyd 
2010AP1099-W Lipscomb v. Pollard
2010AP1103-CR State v. Katherine
2010AP1236-CR State v. Madden
2010AP1261-W Jones v. Pollard
2010AP1266-CR State v. Williams
2010AP1274  State v. Ellis
2010AP1680/81-CRNM State v. Anderson
2011AP312  State v. Simpson
2011AP514-W McGhee v. Grams  - Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and David T. Prosser dissent.
2011AP922-W Fex v. Clarke - Justice David T. Prosser did not participate.

2009AP2165  Hoffman v. Comm. Living Sol. - Justice Ann Walsh Bradley dissents.
2011AP757-W Walker v. Haines

2009AP139-W Hamilton v. Grams
2009AP145  State v. Herring
2009AP2616-CR State v. Walker
2010AP2303-FT Maher v. Maher
2011AP524-W Williams v. Cir. Ct. for Kenosha Co.

St. Croix
2008AP2728  Murr v. St. Croix. Bd. of Adj.

2010AP1429-CR State v. Brandsma

2009AP967-W Green v. Jenkins
2010AP419-CR State v. Mueller

2010AP316  Milton v. Washburn Co. - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

Washington 2010AP1046-CRNM State v. Ankebrant
2010AP1096-CR State v. Ruiz
2011AP526-W  Saeger v. Jenkins - Justice Annette Kingsland Ziegler did not participate.

2009AP1965-CR State v. Olson
2010AP108  Pheasant Run Condo v. City of Brookfield

2009XX249-CR State v. Lamb
2011AP165-W Maday v. Cir. Ct. for Winnebago Co.

2010XX1440-CR State v. Harris

Tom Sheehan
Court Information Officer
(608) 261-6640

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