May 2006



This calendar contains cases that originated in the following counties:










9:45 a.m.                             04AP2318                        First American Title Ins. Co. v. Dennis A. Dahlmann      

10:45 a.m.   04AP2065   Jo-El Hanson v. American Family Mutual Insurance Company



9:45 a.m.       05AP508   Adams Outdoor Advertising, Ltd. v. City of Madison



9:45 a.m.                          04AP2322                        Mark Sonday v. Dave Kohel Agency, Inc.

10:45 a.m.         05AP323   Wisconsin Mall Properties, LLC v. Younkers, Inc.

1:30 p.m.     04AP2010-CR    State v. Lionel N. Anderson  


FRIDAY, APRIL 28, 2006

9:45 a.m.     05AP948-CR   State v. Jamale A. Bonds

10:45 a.m.   04AP2996-D   Office of Lawyer Regulation v. Terry L. Nussberger

1:30 p.m.     05AP2061-BA   Dominic J. Anderson v. Board of Bar Examiners






9:45 a.m.


2004AP2318               First American Title Insurance Co. v. Dennis A. Dahlmann


This is a review of a decision of the Wisconsin Court of Appeals, District IV (headquartered in Madison), which affirmed an order of the Dane County Circuit Court, Judge John C. Albert presiding.


            This case involves a downtown Madison hotel whose underground parking garage encroaches upon adjacent city-owned property. The Supreme Court is expected to address whether a landowner’s unintended encroachment on neighboring property renders the title either defective or unmarketable, and whether the title company must cover the owner for damages to the title in this situation.

            Here is the background: In January 1999, Dennis A. Dahlmann purchased the Madison Inn, located at Frances and State streets in downtown Madison. As part of the process, the seller provided a 1994 survey with an affidavit indicating that nothing had changed in the ensuing five years. Dahlmann acquired a title insurance policy from First American Title Insurance Co., and Dahlmann’s attorney asked First American to delete several exceptions to coverage based upon the information in the survey. The following exceptions to coverage were deleted before the policy was issued:


1.      Any discrepancies or conflicts in boundary lines, any shortage in area, or any encroachment or overlapping of improvements.

2.      Any facts, rights, interests or claims which are not shown by the public record but which could be ascertained by an accurate survey of the land.

3.      Public or private rights in such portion of the subject premises may be presently used, laid out or dedicated in any manner whatsoever, for street, highway, and/or alley purposes.  


Three years later, Dahlmann discovered the survey had been inaccurate. It did not reveal that the hotel’s underground parking garage encroached on Frances Street – a fact that came to light in the course of street repairs. Old building plans that showed the encroachment were discovered in a box at the Madison Inn. Neither Dahlmann nor his attorney nor First American had looked at these plans prior to the closing.

The City took Dahlmann to court to collect an annual fee for the privilege of using City land, and Dahlmann turned to First American, which filed this action seeking a declaration that it was not liable to Dahlmann. Dahlmann counterclaimed. The circuit court found in favor of First American and the Court of Appeals affirmed this decision, concluding that coverage did not exist and that the deletions in the insurance policy did not create coverage for the encroachments:


A title insurance policy insures an owner’s title to a given description of land and only that description of land. What is at issue here is an improvement that goes beyond that description of the land and encroaches onto other land. Dahlmann asks First American for compensation for an encroachment upon adjacent property; he, in essence, asks First American to insure that part of Frances Street upon which his land encroaches. However, First American never agreed to insure anything beyond the boundaries of the description of land provided in the policy; that description does not include Frances Street.


Dahlmann has now brought the matter to the Supreme Court, where he argues that the encroachment damages the marketability of the property and creates a defect in the title, and that situations such as this are the reason that property owners carry title insurance. He underscores the importance of this case to all real estate owners, pointing out that, “In a society in which property rights are so important that they have constitutional protection, and where the real estate market is a source of enormous wealth, it would be difficult to find a more widespread form of insurance.”

First American, on the other hand, argues that the lower courts got it right: title companies should not be expected to provide insurance coverage for improvements that are outside the legal description of the property that is insured.

The Supreme Court will clarify whether encroachments such as this one create a defect in the title to a property, and whether the title insurance company in this case is required to provide coverage for the owner’s damages. 




10:45 a.m.


04AP2065            Jo-El Hanson v. American Family Mutual Insurance Company


This is a review of a decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which reversed an order of the Milwaukee County Circuit Court, Judge Michael Guolee presiding.


            This is a personal injury case arising out of a car crash. The woman who was injured sought medical treatments, including a surgery that allegedly was not medically necessary. The Supreme Court is expected to clarify whether there is a difference between unnecessary surgery and surgery that is badly performed for purposes of allowing the accident victim to recover compensation for medical expenses.  

            Here is the background: On June 22, 2000, Jo-El Hanson’s car was rear-ended. Her vehicle was stopped at the time, and the other vehicle was moving between five and seven miles per hour. Hanson developed neck and lower back pain. While physical therapy helped the low back pain, it did not reduce the neck pain. About six months after the collision, she underwent spinal surgery that was admittedly well-done but allegedly medically unnecessary. The surgery tripled Hanson’s medical expenses, raising them from $25,000 to more than $78,000.

            At trial, the liability of the man whose car struck Hanson’s was uncontested. The only issues were whether Hanson was injured in the crash and the extent of her injuries. American Family maintained that the speed was not sufficient to cause injuries requiring surgery, and presented the testimony of an expert witness (a neurosurgeon) who said that the surgery was not medically necessary. Hanson’s attorney, on the other hand, argued that Hanson should not be penalized for having followed medical advice that she thought was sound. The attorney then engaged the expert in an exchange about whether unnecessary surgery amounts to malpractice:


Q: If a doctor does surgery that’s clearly not indicated, isn’t it malpractice?

A: It can be malpractice, but it is not necessarily malpractice.

Q: Do you think Dr. Lloyd was negligent, or incompetent, or what?

A: No, I think he did a very good job on the surgery.

Q: …Do you think he was incompetent doing the surgery to start with?

A: No, if he were incompetent he wouldn’t have done a good job on the surgery.

Q: Do you think he was incompetent in his diagnosis that led him to do surgery?

A: Yes, I clearly disagree with that, yes.


            Before the case went to the jury, the trial court gave the jury a standard instruction but added the following admonition:


Now, there’s been talk here about malpractice law, and I’ve told you there is no issue of malpractice in this case. It is a difference of opinion as to whether or not the injuries were caused by the accident. It’s a superfluous matter about one doctor talking about what another doctor should have done. It is improper in this case as far as I am concerned and should not be considered by you.


            The jury declined to award Hanson the money she sought to cover the surgery. She received the approximately $25,000 for medical expenses that accrued prior to the disputed operation. She sought a new trial, which was denied, and then filed an appeal based in part upon the judge’s instruction to the jury.

            Hanson won in the Court of Appeals. That court applied caselaw[1] from a case with a very similar set of facts and concluded that, if an accident victim exercises good faith and due care in selecting a physician, but receives improper medical treatment, the defendant insurer is liable for the full amount of damages that result from the treatment. The Court of Appeals further concluded that Hanson deserved a new trial, because the trial court erroneously instructed the jury to ignore the malpractice issue after the expert witness had testified that performing unnecessary surgery might constitute malpractice.

            Now, American Family has come to the Supreme Court, where it argues that the Court of Appeals’ ruling, if allowed to stand, will encourage plaintiffs to turn personal injury cases into medical malpractice matters in order to secure coverage for medical procedures that are unrelated to the original incident.




9:45 a.m.


2005AP508                 Adams Outdoor Advertising, Ltd. v. City of Madison


This is a certification from the Wisconsin Court of Appeals, District IV (headquartered in

Madison), with District II (Waukesha) judges presiding. The Court of Appeals may certify cases that cannot be decided by applying current Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent law-developing court, often accepts such certifications from the Court of Appeals. This case began in Dane County Circuit Court, Judge Maryann Sumi presiding.


            This case involves a question of how to value billboards for purposes of tax assessments. The Supreme Court is expected to clarify the method to be used in this valuation.

            Here is the background: In the late 1980s, the City of Madison began placing limits on the number of outdoor ads, or billboards, that it would allow. This meant that Adams Outdoor Advertising lost some of its sign sites. In 1994, Adams began an inverse condemnation action against the City. An inverse condemnation is an action brought by a property owner who argues that his/her property has been rendered useless by over-regulation and therefore should be condemned.

In support of its claimed damages, Adams had the signs assessed. A “Ruppert appraisal” was conducted and valued the signs at $5,000,000 using the income approach. The City had always used the cost-less-depreciation approach, which had resulted in assessments of $2 million, $1.4 million, and $1.35 million for the years 1991, 1992, and 1993 respectively. For 1994, however, the City adopted Adams’s Ruppert appraisal and the assessment rose to $3 million.

In 2002 and 2003, the tax years in dispute in this case, the City assessed the Adams signs at $6 million and $5.9 million, respectively. Adams objected to both assessments, arguing that the values were actually $401,984 and $337,912. The City’s Board of Review affirmed the assessments and Adams paid the taxes under protest.

Adams then commenced the lawsuit that led to the current case. It argued that the 2002 and 2003 assessments were too high, and that they should have been calculated using the “comparable sales” or “cost-less-depreciation” (a method that calculates the nuts-and-bolts cost to replace the sign, with deductions for physical deterioration) rather than “income” method (a method that takes into account the value of the sign’s location).

At trial, the City’s chief assessor explained that comparable sales data had not been available, and that the City chose to use the income approach because this approach permits an intertwining of the value of the structure with the value of the location, giving, he maintained, a truer picture of each sign’s worth. The circuit court ultimately agreed that the income approach was proper, writing, “A billboard does not generate income sitting in a warehouse; its value is a function of its permit and its location.”

Adams appealed to the Court of Appeals, which noted that no law directs the use of one valuation method over another for billboards and certified the case to the Supreme Court, which will clarify how outdoor signs are to be valued for taxation.



9:45 a.m.


04AP2322             Mark Sonday v. Dave Kohel Agency, Inc.


This is a certification of the Wisconsin Court of Appeals, District II (headquartered in

Waukesha). The Court of Appeals may certify cases that cannot be decided by applying

current Wisconsin law. The Wisconsin Supreme Court, as the state’s preeminent law-

developing court, often accepts such certifications from the Court of Appeals. This case originated in the Kenosha County Circuit Court, Judge Michael Fisher presiding.


            This case asks whether a real estate broker who lists a property that is subsequently condemned and acquired by the government is entitled to a commission.

            Here is the background: On May 15, 2002, Mark and Joyce Sonday listed two parcels of commercial real estate in the Village of Pleasant Prairie for sale with the Dave Kohel Agency. This was the second time they had listed the properties with Kohel; the first, in 2000, yielded no offers to purchase. The first parcel, called the “van parcel,” was listed at $800,000, and the second parcel, the 15-acre “military parcel,” was offered at $2.25 million. The van parcel was the site of Mark Sonday’s car restoration business; the military parcel is the home of the Kenosha Military Museum. If the parcels sold at the asking prices, Kohel would collect a commission of $183,000.

            The contract between the Sondays and Kohel was a standard, one-year contract that contained the following language:


COMMISSION: Seller shall pay Broker’s commission, which shall be earned if, during the term of this Listing:


4) A transaction occurs which causes an effective change in ownership or control of all or any party of the Property.


            About two weeks after entering into the contract with the Sondays, Kohel met with the administrator of the Village of Pleasant Prairie and suggested that the Village buy the properties. The administrator declined, and, the following month, the Village created the Community Development Authority (CDA) to develop the area. Sonday requested that Kohel not contact the Village concerning the parcels. Kohel agreed. On Feb. 12, 2003, the CDA adopted a redevelopment plan that included the Sonday land.

Negotiations between the CDA and Sonday took place, but were unsuccessful. The CDA eventually deposited $532,000 for the van parcel and $850,000 for the military parcel into an account for the Sondays and took the title to the land.  Kohel filed a lien to collect his commissions, and Sonday responded with a lawsuit.

The circuit court found in favor of Kohel and entered a judgment for the $183,000 – although the commission on the amount the CDA paid would have amounted to much less. The Sondays appealed, and the Court of Appeals, as noted, certified this case.

The Supreme Court will clarify whether the broker is entitled to a commission under the standard contract when a listed property is condemned, and will weigh the public policy implications of allowing the collection of a commission.



10:45 a.m.


05AP323             Wisconsin Mall Properties, LLC v. Younkers, Inc.


This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau), which affirmed a summary judgment of the Brown County Circuit Court, Judge William M. Atkinson presiding.


            This case began when the City of Green Bay moved to condemn the old Younkers building as part of a downtown revitalization project. This case, like the other scheduled for oral argument this morning, involves a question of the impact of a public taking on private contracts.  The Court is expected to decide whether a condemnation extinguishes each party’s rights and obligations under an existing contract, if the contract specifies that these rights will survive condemnation.

            Here is the background: On June 23, 1993, Younkers signed a lease agreement for its downtown Green Bay store that contained the following clause:


[T]his lease shall not terminate, nor shall Lessee … be entitled to the abatement of any rent or any reduction … by reason of any damage to or destruction of … the demised premises from whatever cause, [or] the taking of the demised premises … by condemnation or otherwise …


            In 1994, Wisconsin Mall Properties, LLC, purchased the Green Bay property and the lease. Then, in 2001, the City of Green Bay began talking with Younkers and Mall Properties about a “friendly condemnation” of the store. No agreement could be reached, and Mall Properties sued Younkers alleging that it had improperly colluded with the City in the condemnation process and defaulted on the lease. That suit led to the current case. Ultimately, on Nov. 26, 2003, the City condemned the property and the lease.

            The City and Younkers won in the circuit court when the judge concluded that the condemnation of the lease “trumped” Mall Properties’ contract claim. Mall Properties appealed, and the Court of Appeals affirmed the circuit court.

            Now, Mall Properties has come to the Supreme Court, where it is challenging the ruling that the condemnation stops its breach of contract claim. Mall argues that the Court of Appeals opinion, if allowed to stand, will “provide a template for sophisticated commercial parties to escape their obligations, creating contractual chaos.”

            Younkers (aka Saks) and the City, on the other hand, argue that the Mall received payment not only for the property but also for the lease in the condemnation proceeding, and therefore Mall no longer has an interest in the lease.

            The Supreme Court will clarify what rights a property owner has in cases where a lessee allegedly colludes with a government entity and the property and lease ultimately are condemned. 







1:30 p.m.


04AP2010-CR                                                                        State v. Lionel N. Anderson


This is a review of a split decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which affirmed a judgment of the Milwaukee County Circuit Court, Judge Richard J. Sankovitz presiding.


            This case involves a man who was convicted of sexually assaulting a child and is seeking a new trial based upon alleged communication problems between the trial court and the jury during deliberations.

            Here is the background: Lionel N. Anderson was arrested for sexual assault after he forced a nine-year-old girl who was living in his home to perform oral sex on him.            A jury trial was held. During deliberation, the jury asked several questions. First, it wanted to review the videotape in which the girl described the assault in detail. The judge allowed this. Then, it asked to have the testimony of both Anderson and the victim read back. The judge responded by asking the jury to narrow the request to specific sections of the transcript. The jury did not answer this request and reached a verdict without further communication with the judge.

            Anderson was convicted and sentenced to 12 years’ initial confinement followed by six years’ extended supervision. He filed a post-conviction motion, which was denied, and then filed an appeal alleging that his constitutional right to a fair trail was violated when the judge allowed the jury to re-watch the videotape but denied the request to re-hear his testimony.

            The Court of Appeals affirmed the conviction, although it expressed concern that the trial judge had communicated directly with the jury without seeking input from the parties. The majority concluded that Anderson had suffered no prejudice as a result of the trial court’s communications with the jury because the State had a strong case, the defendant had a weak case, and the defendant’s testimony – had it been read back – likely would have done him more harm than good.  

            Now, Anderson has come to the Supreme Court, where he argues that the trial court’s communications with jurors violated his constitutional rights. The Court will decide whether Anderson will receive a new trial.



FRIDAY, APRIL 28, 2006

9:45 a.m.


05AP948-CR 05AP948-CR        State v. Jamale A. Bonds


This is a review of a decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which affirmed a judgment of the Milwaukee County Circuit Court, Judge Marshall B. Murray presiding.


This case involves a man who was charged with battery as a habitual criminal. The questions before the Wisconsin Supreme Court are (1) whether the State must specify which prior convictions it will be using as the basis for a “repeater” allegation before a plea is accepted, and (2) whether the online circuit court records available through the Consolidated Court Automation Programs (CCAP) are sufficient proof beyond a reasonable doubt of past convictions.

Here is the background: On Aug. 1, 2003, Jamale A. Bonds was charged with battery as a habitual criminal. The State attached three certified judgments of conviction from misdemeanor cases to the complaint in support of the repeater allegation.

Bonds pleaded not guilty. A jury trial was held and he was convicted.

At sentencing, the State acknowledged the three misdemeanor judgments but decided to rely instead upon a felony conviction for forgery to support the allegation that Bonds was a repeat offender. It presented a CCAP record showing that he was convicted of a felony on April 16, 1998, and jail booking records showing the dates of his incarceration for that crime. The court asked Bonds questions about the forgery conviction. He did not deny the conviction.

Bonds was sentenced to 18 months in prison and filed a post-conviction motion claiming that the State had failed to prove that he was a repeat offender. The trial court denied this motion. Bonds appealed, and the Court of Appeals affirmed.

Now, Bonds has come to the Supreme Court, where he makes two arguments. First, he maintains that the State should not have been permitted to change the convictions it planned to use as the basis for the repeater allegation; second, he questions whether CCAP records are sufficient to constitute proof beyond a reasonable doubt of a past conviction.

The State, on the other hand, says the lower courts correctly determined that, because Bonds was put on notice that he would be charged as a repeat offender, the State’s decision to use the felony rather than the three misdemeanors did not prejudice him. It also agrees with the lower courts’ conclusion that CCAP records are official government records and, as such, are sufficient for purposes of proving a past conviction.

Cases that present questions about computerized records have landed in state appellate courts across the country. Some of those courts have upheld the use of computerized records; others have found them insufficient. The Wisconsin Supreme Court will answer this question and decide whether Bonds will receive a new day in court.




FRIDAY, APRIL 28, 2006

10:45 a.m.


04AP2996-D               Office of Lawyer Regulation v. Terry L. Nussberger


The Wisconsin Supreme Court is responsible for supervising the practice of law in the state and protecting the public from misconduct by lawyers. Lawyers must follow a code of ethics developed by the Court. When there is an allegation that a lawyer has acted unethically, the Supreme Court’s Office of Lawyer Regulation investigates and, if warranted, prosecutes the attorney. A referee – a court-appointed attorney or reserve judge – hears the discipline cases and makes recommendations to the Supreme Court.


This case involves Atty. Terry L. Nussberger, who has practiced law in Wisconsin since 1983, and who has had past contacts with the attorney discipline system. Nussberger currently is a sole practitioner in the Rusk County community of Ladysmith.

The Office of Lawyer Regulation (OLR) has filed one count against Nussberger for violating the Code of Conduct. It is seeking a 60-day suspension of his license, a punishment that the referee who initially heard the matter also recommended. Nussberger, on the other hand, is arguing that a public reprimand is appropriate.

Nussberger was publicly reprimanded in two grievance investigations in 2003. He had submitted documents to the State Public Defender that claimed certain cases he was handling for that office were closed when, in fact, they were not. It was revealed that he submitted this paperwork prematurely in order to speed up his payment.

The current case began with a conversation between Nussberger and a client whose elderly mother had recently died. The client had hired Nussberger to handle the probate matter. Nussberger informed the woman that her mother’s assets would go mostly to repay government assistance that the mother had received. The client asked whether she could request reimbursement from the estate for work that she and her husband had done on the house. Nussberger told her she could not, but then allegedly suggested that he could pad his bills and split the extra with her.

The client said she was troubled by Nussberger’s suggestion and contacted the Ladysmith Police Department, which had her wear a recording device for her next meeting with the attorney. The transcript from that meeting ultimately led to this case. Because neither Nussberger nor the client put the plan into motion, he was not charged with any crime.

As already noted, the referee concluded that Nussberger had improperly suggested to the client that she participate in a fraud, and that this action violated the Code of Conduct. In part because of Nussberger’s past violations, the referee recommended a 60-day suspension.

In contesting this recommendation, Nussberger argues that he was not being selfish, but simply trying to help an impoverished client, and he asserts that “his punishment should be a reprimand because his bad acts had an inherent, moral good.”

The Supreme Court will determine what discipline Nussberger will receive.  



FRIDAY, APRIL 28, 2006

1:30 p.m.


05AP2061            Dominic J. Anderson v. Board of Bar Examiners


This is a petition to review a determination of the Board of Bar Examiners (BBE), an agency of the Supreme Court that checks the fitness and character of people seeking to practice law in the state of Wisconsin. The BBE also administers the Bar Exam and monitors lawyers’ compliance with continuing education requirements.


This case involves a former Monona Police Department officer who graduated ninth out of 148 in his law school class but was not admitted to the Wisconsin Bar because of concerns about his character and fitness for the practice of law. He is appealing this decision, and the Supreme Court will decide whether he will be permitted to practice law in Wisconsin.

Here is the background: Dominic J. Anderson is a native of Richland Center who interrupted his college career to serve in the military during Operation Desert Storm. He earned a number of medals for his service and ultimately led a platoon. He returned home to finish college at UW-Platteville, graduating Summa Cum Laude with a criminal justice major.

Anderson’s career in law enforcement began with a job at the Richland County Sheriff’s Department. He soon moved to the Monona Police Department, where he served from February 1996 through June 2000. While Anderson’s performance was good during his first three years in Monona, things unraveled during the final year. A performance evaluation ranked him below standard in 11 of 21 categories, and he was, at one point, placed on administrative leave following some issues with the proper performance of his duties as a police officer.

In October 1999, Anderson was charged with four counts of criminal wrongdoing relating to his conduct during a social gathering that occurred while he was off-duty.  He allegedly demonstrated what he called a “titty twister” on one woman (a colleague at the police department), and fondled and purchased drinks for another woman, who was underage. Although a jury found him not guilty of all offenses following a two day trial in June 2000, Anderson resigned from the Monona Police Department.

Anderson enrolled in law school at Washburn University School of Law in Topeka, Kansas in fall 2001 and graduated near the top of his class. He also worked as an unpaid legal extern for a federal district judge and served as an intern in the Criminal Defense Clinic.

Anderson applied for admission to the Wisconsin Bar in April 2004 and passed the Bar Exam that July. In December 2004, the BBE issued its preliminary decision to deny Anderson’s Bar application based upon a character-and-fitness report. Anderson requested and received a hearing, which was held April 6, 2005. His application was still denied, based upon concerns about his temperament, his ability to take responsibility for his actions, and his conduct as a police officer.

Now, Anderson has appealed that ruling. He argues that the record does not support a finding that he is unfit to practice law. He says that his job performance as a police officer was not egregious, but simply on occasion not up to standards. He also acknowledges that he showed poor judgment at the party that led to the criminal charges, but points out that he was acquitted by a jury. He also downplays the BBE’s concerns about his employment patterns (he was terminated from jobs at the Country Kitchen in Richland Center and Kwik Trip in Richland Center prior to going to college), arguing that two terminations from jobs in one’s youth does not show a negative pattern, especially when they occurred nearly 15 years before his application for Bar admission.

The BBE, on the other hand, points to a number of incidents in Anderson’s work history that, it says, demonstrate a pattern of poor judgment and an inability to make decisions without close supervision.

The Supreme Court will decide whether to admit Anderson to the Wisconsin Bar.






[1] Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977)