Wisconsin Supreme Court accepts five new cases

Madison, Wisconsin - October 14, 2013

The Wisconsin Supreme Court has voted to accept five new cases and acted to deny review in a number of other cases. The case numbers, issues, and county of origin are listed below. The Court of Appeals' opinion for the newly accepted case is hyperlinked where available.

2012AP5 CED Properties v. City of Oshkosh
This case involves a challenge to a special assessment levied by the city of Oshkosh against a property owner for portions of a road construction project at the corner of Jackson Street and Murdock Avenue. The Supreme Court examines notice pleadings and the "relation back" statute -- Wis. Stat. § 802.09(3).

Relation back doctrine provides that an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time.

Some background: Property owner CED Properties filed a lawsuit challenging the constitutionality of a $19,241.73 special assessment for concrete paving. It turned out that the City was actually assessing CED $38,646.66 – $19,241.73 relating to the Murdock Avenue portion of the project, and $19,404.93 relating to the Jackson Street portion.

CED said it was unaware of special assessment for the Jackson Street portion of the project until the discovery phase of its initial legal challenge. CED asked the court to find the special assessment void and unenforceable, and it filed an amended complaint relating to the Jackson Street portion of the property.

The city admitted it did not comply with the requisite statutory procedural steps and consented to summary judgment that the assessment referenced in CED's original complaint was null and void. However, the city argued that CED's claim regarding the Jackson Street special assessment was untimely since it was not filed within the 90-day period set forth in § 66.0703(12)(a), Stats.

The circuit court ruled in favor of the city. A divided Court of Appeals' affirmed, concluding that although the notice pleading and relation back statutes applied, they did not save CED's claim.

The Court of Appeals said CED's original complaint failed to identify a claim related to the Jackson Street special assessment because it failed to set forth basic facts giving rise to that claim. It said the notice of appeal indicated only that CED was appealing "the special assessment as further described in the complaint" and the only special assessment described was the $19,241.73 special assessment related to the Murdock Avenue portion of CED's property. The Court of Appeals also rejected CED's alternate claim that its Jackson Street assessment claim in the amended complaint related back to the original complaint and was therefore timely. The court concluded as argued by the city that the city levied two special assessments, one related to Murdock Avenue and one related to Jackson Street.

Court of Appeals Judge Paul F. Reilly dissented, concluding that CED appealed the assessment of the entire Jackson Street – Murdock Avenue intersection improvement project. Reilly said CED's appeal clearly also included the portion of the assessment for the Jackson Street part of the property, noting the original complaint gave notice of an appeal of the "special assessment" for the "Jackson Street – Murdock Avenue intersection improvement project."

Reilly said the confusion inherent in the original complaint was directly attributable to the city's failure to prepare the proper report as required by § 66.0703(5). Reilly noted that under Wisconsin's liberal notice pleading rule, all pleadings shall be construed to do substantial justice, and a complaint must be read most favorably to the plaintiff. From Winnebago County.

2012AP122 Anthony Gagliano & Co. v. Openfirst
In this case, the Supreme Court examines whether Wisconsin law allows a landlord of commercial property to recover unpaid rent, not only a defaulting tenant, but also from that tenant's temporary sub-tenant.

The Court of Appeals reversed a circuit court order dismissing the claim of landlord Anthony Gagliano & Co. (Gagliano), Inc. against Quad Graphics, New Electronic Printing Systems, LLC, Openfirst, LLC, and Robert Kraft, in connection with space leased from Gagliano.

Some background: In May of 2000, Gagliano entered a lease agreement with Electronic Printing Systems, Inc. as tenant for two spaced at 300 N. Jefferson St. in Milwaukee. Kraft operated Electronic Printing Systems under the business name Openfirst.

The lease was to expire on June 23, 2006 for one space and another was set to expire six years after the tenant took occupancy. The lease provided that the tenant and all guarantors of the lease "shall remain fully liable under this lease and their guarantees, respectively, despite any sublease or assignment."

Over several years, a series of transactions occurred affecting ownership of Electronic Printing Systems, the lease and associated loan agreements.

In November 2002 the assets of Electronic Printing Systems, Inc. and Openfirst, Inc. were sold to New Electronic Printing Systems, and Gagliano's leases with the original Electronic Printing Systems and Openfirst were assumed by the new entity. Ownership of New Electronic Printing Systems eventually transferred to Quad Graphics as part of a larger transaction.

Some of these transactions affected assignment of the leases and what may happen in the event of a loan default.

New Electronic Printing Systems struggled, and on Sept. 1, 2008, it provided notice to Gagliano that it intended to vacate and surrender the premises on or before Oct. 31, 2008. Both New Electronic Printing Systems and Quad Graphics vacated the premises. Gagliano was fully compensated for the period of their actual occupancy.

On Dec. 8, 2008, Gagliano filed suit for breach of the lease against New Electronic Printing Systems, Openfirst, LLC, and various predecessor tenants and guarantors for rent for the remainder of the extended lease term.

Gagliano subsequently amended its complaint to add Quad Graphics, among others, as a defendant.

The amended complaint advanced two alternate theories of liability against Quad Graphics: (1) that Quad Graphics was directly liable as the assignee of the leases; and (2) that Quad Graphics was acting as New Electronic Printing Systems' and Openfirst, LLC's alter ego.

Quad Graphics moved for summary judgment on both of Gagliano's claims, arguing it was not an assignee and that Gagliano had waived any right to assert an alter ego claim. The circuit court granted Quad Graphics' motion and dismissed all of Gagliano's claims against it.

The remaining parties went to trial in July of 2011. After Gagliano rested its case, the circuit court ruled as a matter of law that Gagliano had failed to properly serve its notice of lease extension on New Electronic Printing Systems. The court dismissed all claims relating to the extended lease period. The remaining issues went to the jury, which returned a verdict in favor of the defendants. Gagliano appealed.

The Court of Appeals reversed, remanding for further proceedings including, if appropriate, a determination and apportionment of damages. Quad Graphics has appealed to the Supreme Court, contending there is a fundamental difference between an assignee and a subtenant that makes a difference in this case.

Quad Graphics says while in general, a landlord may recover unpaid rent from a tenant's assignee, it may not recover unpaid rent from a subtenant.

Gagliano argues because Quad Graphics occupied the premises as an assignee of New Electronic Printing Systems' leases, Quad Graphics was obligated to pay rent as long as it was entitled to occupy the premises.

2012AP337-CR State v. Sarfraz
This case examines Wis. Stat. § 972.11(2)(b)1, a provision in the state's Rape Shield Law, and the possible relevance of a complainant's alleged prior sexual conduct to the defendant's case. Wis. Stat. § 972.11(2)(b)1 provides that a complainant's sexual history with the defendant may be sufficiently probative of a material issue to overcome the prejudicial nature of such evidence.

Some background: Muhammad Sarfraz was convicted after a jury trial of second-degree sexual assault by use of force in the woman's apartment on May 15, 2010.

There's no dispute that Sarfraz and the woman knew each other and that the woman and her father had lived with Sarfraz and his wife after the woman and her father immigrated to the United States. It's also not disputed that the woman and her father eventually moved out to their own apartment. However, the facts surrounding the incident on May 15, and the nature of the prior relationship between the woman and Sarfraz, are very much in dispute.

The woman said Sarfraz entered her apartment while masked and armed with a knife. She said she immediately recognized Sarfraz after pulling off the mask during a struggle that resulted in property damage and bloody injuries to both Sarafraz and the woman. Police were eventually called by neighbor who found the woman partially clothed and bloodied in the apartment hallway. She told the neighbor she had been raped. Police arrested Sarfraz after stopping the taxi he was driving. The arresting officers reported a laceration on the right side of Sarfraz's face and the recovery of a bloody knife from the taxi.

After pleading not guilty, but prior to the commencement of his jury trial, Sarfraz filed a motion to admit evidence of prior consensual sexual activity between he and the victim. He contended the evidence would support his defense that the sexual activity on May 15, 2010, was consensual and that the two had a romantic relationship prior to the date of the alleged assault.

The trial court held a pretrial evidentiary hearing on Sarfraz's motion during which Sarfraz and the woman told dramatically different stories.

Sarfraz said that he and the woman often engaged in "fondling and touching and all that stuff," including masturbation, but not intercourse. He said that his wife knew about the relationship with the woman and demanded the woman and her father move out. Sarfraz said the sexual relationship continued after the woman and her father moved into their own apartment.

The woman testified that she never had a romantic relationship with Sarfraz and never engaged in any sexual or physical activity with him. She stated that she and her father moved out of Sarfraz's apartment because her father found a job, not because Sarfraz's wife demanded that they leave. She also stated that before the alleged assault, the only time Sarfraz came to her apartment was to help her move.

The trial court ruled that Sarfraz could not offer detailed evidence of the alleged prior sexual relationship. Because of the trial court's ruling, Sarfraz was not allowed to describe during trial the details of the sexual contact they allegedly shared. He portrayed the woman as the initiator of both the violence and the sexual activity that occurred on May 15. Sarfraz stated that he did not attempt to conceal his identity, but rather knocked on the door and the woman opened it when she recognized his voice.

Sarfraz was sentenced to 10 years of incarceration and five years of extended supervision. He filed a motion for post-conviction relief, alleging ineffective assistance of counsel and entitlement to a new sentence. The trial court denied the motion in a written decision. Sarfraz successfully appealed, arguing that the trial court erroneously barred evidence of the woman's prior sexual conduct with him.

The Court of Appeals ruled that the probative value of the prior sexual contact was high because that evidence allowed the jury to question the woman's possible motivations and credibility, and to question whether it was implausible that Sarfraz would have had to trick his way into the apartment.

The state appealed to the Supreme Court, arguing:

  • that the Court of Appeals' decision runs afoul of the governing statutory and case law by instructing Wisconsin trial judges to presume high probative value and low prejudicial impact of a sexual assault victim's sexual history when the law dictates the opposite;
  • that the Court of Appeals gave insufficient deference to the trial court's discretionary evidentiary decision.
  • that the Court of Appeals did not address the state's harmless error argument; i.e., that even assuming it was error to exclude Sarfraz's testimony about the alleged prior acts of consensual masturbation, it was harmless error due to the overwhelming physical and testimonial evidence against Sarfraz.

Justice David T. Prosser did not participate. From Milwaukee County.

2012AP597 Partenfelder v. Rohde
This case arises from the collision of a freight train and mini-van that occurred as people gathered for a Memorial Day parade in the village Elm Grove in 2009. The Supreme Court examines whether the Federal Railroad Safety Act ("FRSA") preempts the plaintiffs' state-law negligence and safe-place claims.

Some background: Each year, the village of Elm Grove hosts a Memorial Day parade that draws traffic into the area of several rail crossings in the village. On May 6, 2009, the village police department sent advance written notification to the Soo Line Railroad, asking that Soo Line "make every attempt to notify your train conductors of the potential for pedestrian and vehicle hazards on the tracks." The police department sent a follow-up letter, and made a phone call after not getting a response to the letters.

As predicted, traffic became congested when Scott Partenfelder and his wife, Monica Ensley Partenfelder, were traveling in separate vehicles to the parade. The couple's two-year-old son was a passenger in Monica's minivan, which got stuck on the tracks with cars behind and ahead of her as the train crossing gates came down and alarms sounded.

Scott Partenfelder and Police Officer John Krahn rushed to the minivan, got Monica out, and were working to remove the boy from his car seat when the train collided with the minivan. The boy remained strapped in his car seat and was uninjured, but Partenfelder and Krahn were seriously injured.

An investigation of the accident verified that Soo Line fully complied with the applicable rules, time tables, and orders. Scott was ticketed for driving without a valid driver's license, and Monica was cited for failing to stop clear of the tracks. She admitted to violating the law in this regard. The crew hit the emergency brakes 348.48 feet before hitting the Partenfelders' van, and the train was travelling approximately 44.8 miles per hour at the moment of impact. The speed limit at the crossing for the train was 50 miles per hour.

Krahn brought a negligence claim and Partenfelder brought a negligence claim and a safe-place claim against Soo Line Railroad Co. and Steve Rohde, a Soo Line employee who was later dismissed from the case.

Soo Line and Rohde moved for summary judgment. They argued, among other things, that the negligence and safe-place claims were preempted by the FRSA. The FRSA has a preemption clause, which reads:

(a) National uniformity of regulation.--(1) Laws, regulations, and orders related to railroad safety . . . shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement. . . . (49 U.S.C. § 20106).

The trial court granted partial summary judgment to Soo Line and Rohde, concluding that the FRSA preempted the plaintiffs' negligence and safe-place claims to the extent those claims were based on allegations that Soo Line and Rohde had a duty to slow or stop the train because of the Memorial Day parade.

A divided Court of Appeals reversed the trial court's summary judgment order on the preemption issue. The majority ruled in part that the Memorial Day parade constituted a specific, individual hazard as defined under Anderson v. Wisconsin Cent. Transp. Co., 327 F. Supp. 2d 969, 977 (E.D. Wis. 2004), and therefore claims based upon the parade were excepted from federal preemption under the FSRA.

Soo Line objects that the Court of Appeals has interpreted the "specific, individual hazard" exception in Anderson to the FRSA preemption far too broadly. It argues that the opinion empowers local government to control train speeds whenever traffic might be near railroad tracks, so that railroads would have to deviate from the operational practices dictated by federal law for even relatively mundane traffic-producing events.

A decision by the Supreme Court could potentially have wide ranging effects on railroad traffic on 3,000 miles of track in Wisconsin and possible elsewhere on interconnected rails. From Milwaukee County.

2012AP1869 Wilcox v. Est. of Hines
This case involves a dispute over the ownership of a 25-foot wide strip of land along the shore of Lake Delton. The Supreme Court examines an apparent inconsistency in case law that has developed under Wis. Stat. §893.25, the state's 20-year adverse possession statute.

More specifically, the Supreme Court reviews whether a party who publicly denies ownership in property may unwittingly acquire ownership through adverse possession, and whether this party's successor in interest — who was told at the time of sale that they were not purchasing ownership to the property in question — may likewise be deemed an owner after all. The trial court answered no; the Court of Appeals reversed.

The titleholders of the property (the Estate of Ralph Hines, Estate of William J. Newman and Lake Delton Holdings, LLC) appealed to the Supreme Court. In reaching its decision, the Court of Appeals determined that several cases broadly pronounce that the subjective intent of parties is irrelevant. Yet at the same time, and seemingly inconsistently, the adverse possession statute, Wis. Stat. § 893.25(2)(a), requires "occupation under claim of title," and several cases, at least superficially, indicate that subjective intent does matter.

Some background: In 1963, Ronald and Mary Soma purchased property separated from Lake Delton by the disputed lakefront strip. The Somas always understood that they did not own the lakefront strip. Nonetheless, from the beginning they took steps to exclude others, including putting up a "no trespassing" sign and telling people that the lakefront strip was private property.

The Somas mistakenly believed that the lakefront strip was owned by a company that operated the "Wisconsin Ducks" tours. When the Somas wanted to put out a pier from the lakefront strip, Ronald Soma asked for permission from a manager employed by the Wisconsin Ducks. Subsequently, in 1982, Wisconsin Ducks employees were making improvements to the lakefront strip, and the Somas asked for and received permission from the same manager to push some rocks to the water's edge, bring in dirt, and plant grass seed on the lakefront strip.

Thereafter, acting under the mistaken impression that they had permission from the true owner to do so, the Somas mowed and otherwise maintained the lakefront strip as if they were the owners. In 2002, the Somas sold their property to the Wilcoxes. At that time, Ronald Soma told the Wilcoxes that the sale did not include the lakefront strip because the Somas did not own the property.

Before the filing of the lawsuit that forms the basis for this appeal, neither the Somas nor the Wilcoxes knew the identities of the true titleholders. There is no evidence that the titleholders ever did anything with respect to the lakefront strip. The Wilcoxes also made landscaping improvements and maintained the lakefront strip.

Pursuant to Wis. Stat. § 893.25(2)(a) and (b), real estate is possessed adversely only if "the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right," and "[o]nly to the extent that it is actually occupied." In addition, the property must be "protected by a substantial enclosure" or "usually cultivated or improved." Pursuant to § 893.25(1), the adverse possession must be uninterrupted for 20 years.

Applying that standard to this case, the evidence showed that the Somas subjectively held the correct belief that they did not own the lakefront strip, and held the incorrect belief that their use of the property was with the permission of the true owner. Thus, it was undisputed that the Somas did not actually intend to possess the disputed property to the exclusion of the rights of others.

The trial court concluded that the Somas did not have hostile intent because they disclaimed ownership of the lakefront strip and asked for permission to make improvements. The trial court held that the fact that the Somas asked for permission to improve the property, albeit mistakenly from a non-owner, showed that the Somas had no intent that their actions be hostile to any ownership interest.

The Court of Appeals reversed, holding that the Somas' subjective belief that they did not own the lakefront strip and had no intention of possessing it to the exclusion of others was irrelevant to the Wilcoxes' adverse possession claim.

The Court of Appeals emphasized that what matters in evaluating the existence of a "hostile claim of title" is what is visible, not what is intended.

The titleholders argue in their petition for review that the Court of Appeals' decision converts the Somas' subjective belief and express declaration that they did not own the lakeside strip into an irrelevant indication of subjective intent. The titleholders argue that because the Somas expressly declared to the Wilcoxes that they did not own the lakefront strip and it was not included in the sale, the Somas did not occupy the strip under claim of title, and therefore, the Wilcoxes cannot tack the Somas' time of possession onto that of the Wilcoxes in order to satisfy the adverse possession statute.

The Wilcoxes respond by insisting that this case merely applies the principle that, in adverse possession, the subjective intent of either party is irrelevant and the only issue is evidence of open and notorious occupation. They claim that the Somas' statement to the Wilcoxes that they did not have title to the lakeside strip at the time of the sale in 2002 is "meaningless" to the adverse possession question.

A decision by the Supreme Court could clarify law in this area. From Sauk 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:

2011AP2918 Rittenhouse v. Hulce
2012AP128/129-CR State v. Guttu
2012AP812 Brown County DHS v. Sandra N.
2012AP1353/54-CR State v. Sanchez-Villagomez
2013AP1149/50-W Jordan v. Vogel

2012AP839-CR State v. Forbes

2011AP879 Residential Funding Co. v. Nora
2011AP2148 Dugan v. Lukens
2011AP2262/2012AP662 Garic-Stankovic v. Stankovic
2011AP2577 Hewitt v. Nygren
2012AP300-CR State v. Cuesta
2012AP650 Board of Regents of UW System v. WERC - Justice Ann Walsh Bradley did not participate.
2012AP1092-CR State v. Frazier
2012AP1586 Kinzel v. Board of Regents-UW System - Justice Ann Walsh Bradley did not participate.
2012AP1811 State v. Matthews
2012AP1877-1880-CR State v. Flowers - Justice N. Patrick Crooks did not participate.
2012AP2073-CR State v. Terrell
2012AP2424 Liberty Towing v. Navistar

Eau Claire
2012AP1659-CR State v. Mills - Justice Ann Walsh Bradley did not participate.

2011AP2315 City of Platteville v. Kallembach

2011XX618-CR State v. Jensen

2012AP1616 Smiley v. Shock

2011AP2912 Roberts v. McCulloch

2012AP654-CR State v. Dominguez
2013AP1199-W Terry v. Foster

2012AP205-CR State v. Frisch

2012AP895-CR State v. Vang

2010AP3147 State v. Reynolds
2011AP1828-CR State v. Treadwell
2011AP1992/93 State v. Valoe
2011AP2089/90-CR State v. Martin
2011AP2852-CR State v. McDougle
2012AP272 State v. Downs
2012AP819 Obasi v. Milwaukee School of Engineering
2012AP1015-CR State v. Washington
2012AP1291-CR State v. Wheeler
2012AP1404 State v. Kilian
2012AP1432 State v. McFarland
2012AP1501-CR State v. Schurk
2012AP1557-CR State v. Felton
2012AP1600-CR State v. Hardison
2012AP1670-CR State v. Lumpkins
2012AP2549 Jaworski v. Pollard
2013AP565-567 State v. Marquese H.
2013AP983-W Madyun v. Cir. Ct. of Milwaukee

2012AP598-CR State v. Pauer

2012AP361-363-CR State v. Lietz
2012AP701 State v. Zastrow

2011AP905 Goeckner v. Carstensen
2011AP2102 State v. Rose

2012AP2612 Polk County DHS v. Boe H.

2011AP361 State v. Johnson
2012AP347 State v. Jordan
2012AP982-CR State v. Kosterman
2012AP1091-W Tran v. SPD

2012AP1290-W State ex. rel. Stewart v. State

2011AP2658 Household Finance Corp. v. Kennedy

2012AP290 State v. Minniecheske
2012AP1133 State v. Minniecheske

2011AP2342-CRNM State v. Read

2011AP1144-CR State v. Conaway
2011AP1632-CR State v. Miller
2012AP297-CR State v. Turner - Justice David T. Prosser, Jr. did not participate.
2012AP2696 Jenna L.C. v. Dustin J.K.V.

2012AP1123-CR State v. Conley
2012AP1165-CR State v. Anton
2012AP1786 Kilian v. Daimler Chrysler Fin. Serv. Americas - Justice Annette Kingsland Ziegler did not participate.

2012AP1651-CR State v. Tueffel
2012AP2284-CR State v. Vilinuas - Justice David T. Prosser, Jr. did not participate.
2013AP378-CRNM State v. Curry

Tom Sheehan
Court Information Officer
(608) 261-6640

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