WISCONSIN SUPREME COURT

November 19, 2010

wisconsin supreme court

table of pending cases

Clerk of Supreme Court

Telephone: (608) 266-1880

Facsimile: (608) 267-0640

Web Site: www.wicourts.gov

Wisconsin Supreme Court Case Access: http://wscca.wicourts.gov

The following table describes pending cases the Supreme Court has accepted on petition for review, bypass, certification and original jurisdiction.

The cases included for the first time (that is, the most recently accepted cases) are marked with an * next to the case number. After the Supreme Court decides a case, the date of oral argument or date of submission on briefs is replaced with the date of the Supreme Court decision and abbreviated mandate. That mandate will generally be listed in the table for two months and then the case will be removed from the table.

The information in the table, from left to right, is as follows:

· the case number;

· an abbreviated caption of the case (case name);

· a statement of the issue(s);

· the date the Supreme Court accepted the case;

· the method by which the case came to the Supreme Court: REVW = Petition for review, CERT = Certification, CERQ = Certified Question, BYPA = Petition to bypass, ORIG = Original Action, WRIT = Petition for supervisory writ, REMD = Remanded from the U.S. Supreme Court;

· the date of oral argument or submission on briefs; or the date of the Supreme Court decision and an abbreviated mandate;

· the Court of Appeals district from which the case came, if applicable; the county;

· the date of the Court of Appeals decision, if applicable;

· whether the Court of Appeals decision is published or unpublished, and, if it is published, the citations to the public domain citation and the official reports for the Court of Appeals decision.

The statement of the issue is cursory and does not purport to be an all-inclusive, precise statement of the issues in the case. Readers interested in a case should determine the precise nature of the issues from the record and briefs filed with the Supreme Court.

The following table covers cases accepted and decisions issued through November 19, 2010. Please direct any comments regarding this table to the Clerk of Supreme Court, P.O. Box 1688, Madison, WI 53701-1688, telephone (608)266-1880.

Case No.	Caption/Issue(s)	SC Accepted	CA Dist/ Cty	CA Decision
2006AP948	Jackson v. Buchler Was the petitioner denied a fair and impartial decision maker in violation of due process and equal protection of law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution? Did the petitioner fail to exhaust his administrative remedies concerning his claim that he was unconstitutionally denied the opportunity to review a videotape, and if he has failed to exhaust his administrative remedies, may the court nonetheless decide the issues set forth in the petition for review and listed below? See Wis. Stat. § 801.02(7)(b); Wis. Admin. Code § DOC 310.05; State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686; State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 586 N.W.2d 63 (Ct. App. 1998); Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App.), rev. denied, 207 Wis. 2d 284, 560 N.W.2d 273 (1996). Does the obligation of governmental authorities to produce exculpatory information, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, apply to all or some prison disciplinary proceedings, and, in particular, to the disciplinary proceeding against the petitioner? See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Piggie v. Cotton, 344 F.3d 674 (7^th Cir. 2003); State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 585 N.W.2d 640 (Ct. App. 1998). If there is an obligation on governmental authorities to produce potentially exculpatory information, what should be the process for determining whether the information sought is exculpatory and what should be the remedy for the failure to produce it? Was the petitioner deprived of due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution when he was denied the right to obtain a videotape that he contends is exculpatory evidence? Was the petitioner deprived of due process and equal protection when there was insufficient evidence of his guilt, as he contends?	04/14/2009 REVW Oral Arg 12/01/2009 and 09/15/2010	4 Dane	12/13/2007 Unpub
2006AP1229/ 2006AP2512/ 2007AP369	Casper v. American International South Insurance Co. Casper v. National Union Fire Ins. Co. of Pittsburgh, PA Casper v. National Union Fire Ins. Co. of Pittsburgh, PA For "excusable neglect," is it necessary to have evidence of the actions that caused the neglect or of the reasons why a "carefully structured process to respond to complaints" did not work if the party failed to timely respond? -- OR Did failure to answer the complaint in a timely manner constitute excusable neglect? Under Wis. Stat. ss 632.24 and 631.01(1), can a direct action claim against an insurer be maintained where the insurance policy was not delivered or issued for delivery in Wisconsin but the insurance policy covers the insured's "business operations" conducted in this state? Can a corporate officer be held personally liable for negligence that occurs while he is performing his job and is within the scope of this employment for a solvent and insured corporation? Do public policy factors and a lack of forseeability preclude a finding of negligence as a matter of law?	06/28/2010 REVW Oral Arg 12/01/2010	1 Milwaukee	12/22/2009 Pub 2010 WI App 2 323 Wis.2d 80 779 N.W.2d 444
2007AP35	David Rasmussen v. General Motors Corporation, et al. Whether Wisconsin’s long-arm statute, Wis. Stat. § 801.05 (1) (d), subjects a foreign parent corporation to personal jurisdiction in Wisconsin.	09/14/2010 REVW Oral Arg 01/05/2011	1 Milwaukee	06/30/2010 Unpub
2007AP203	Michael S. Polsky v. Daniel E. Virnich Whether the holding of Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, prohibits receivers from asserting claims, on the corporation’s behalf, of breach of fiduciary duty to the corporation. Whether corporate officers and directors acting against the interests of the corporation “enjoy a unity of interest” with the corporation, requiring application of the intracorporate conspiracy doctrine. Is a conspiracy claim actionable without an underlying actionable violation of an independent right? Whether a corporation’s tort claim accrues before a claim is enforceable when the alleged tortfeasors are the only individuals who can enable the corporation to assert the claim.	09/22/2010 REVW Oral Arg 02/03/2011	4 Grant	02/24/2010 Pub 2010 WI App 20 323 Wis. 2d 811 779 N.W.2d 712
2008AP322	Nestle USA, Inc. v. Wis. Dept. of Revenue What evaluation standards are to be used by the Tax Appeals Commission to assess specialized manufacturing facilities that have a limited market? (See Wis. Stat. § 70.32(1), State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 686, 173 N.W.2d 627 (1970) and State ex rel. Northwestern Mut. Life Ins. Co. v. Weiher, 177 Wis. 445, 448, 188 N.W. 598 (1922)). Whether the tax assessment of a manufacturing facility should be based upon its unique value to the present owner or upon market value.	03/09/2010 REVW Oral Arg 09/07/2010	4 Dane	11/24/2009 Pub 2009 WI App 159 776 N.W.2d 589
2008AP1139	State v. Omer Ninham Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile. Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.	09/13/2010 REVW Oral Arg 01/05/2011	3 Brown	05/27/2009 Pub 2010 WI App 64, 316 Wis. 2d 776, 767 N.W.2d 326
2008AP1296-CR	State v. Janet A. Conner What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses? Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense? Whether a defendant received adequate notice of the nature and cause of the criminal accusations in an information (See State v. Cheers, 102 Wis. 2d 367, 403 – 04, 306 N.W.2d 676 (1981) and State v. Copening, 103 Wis. 2d 564, 576, 309 N.W.2d 850 (1981)).	03/16/2010 REVW Oral Arg 10/06/2010	4 Richland	10/28/2009 Pub 2009 WI App 143 775 N.W.2d 105
2008AP1845	Town Bank v. City Real Estate Development, LLC In a construction finance contract, is an integration clause to specifically identify and expressly negate antecedent agreements required before parol evidence may be barred to determine the contracting parties’ intent? (See Federal Deposit Ins. Corp. v. First Mortgage Investors, 76 Wis. 2d 151, 157-58, 250 N.W.2d 362 (1977) and Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 607-08, 288 N.W.2d 852 (1980)). Is parol evidence that does not conflict with a subsequent written agreement always admissible to show whether an antecedent agreement was intended to be superceded?	03/09/2010 REVW Oral Arg 09/07/2010	2 Waukesha	11/24/2009 Pub 2009 WI App 160 777 N.W.2d 98
2008AP1968-CR	State v. Patrick R. Patterson Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)? Can one contribute to the deliquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions? Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?” Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?	03/17/2010 REVW Affirmed 11/17/2010 2010 WI 130	4 Juneau	11/24/2009 Pub 2009 WI App 161 776 N.W.2d 602
2008AP2045	Evelyn Werner v. Kenneth Hendree Whether litigation was final to invoke appellate jurisdiction under Wis. Stat. § 808.03 with respect to actions taken by a non-party where litigation as to damages continued. Does “insurance applicable” in Wis. Stat. § 895.46 require the State to pay a judgment against a State employee when the employee did not cooperate with the litigation defense? Does the “particular way” requirement described in Lodl v. Progressive Northern Ins. Co., 2002 WI 71, 253 Wis.2d 323, 646 N.W.2d 314, conflict with Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d672 (1977), and Domino v. Walworth County, 118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984) when analyzing the “known danger” exception to a governmental officer’s tort immunity?	03/16/2010 REVW Oral Arg 10/07/2010	2 Waukesha	07/29/2009 Pub 2009 WI App 103 320 Wis.2d 592 770 N.W.2d 782
*2008AP2206-CR	State v. Charles Lamar Whether, at resentencing, a defendant would be entitled to credit on a new sentence for time spent confined on a vacated sentence, which was served concurrently with another non-vacated sentence, when the new sentence is imposed consecutively to all other sentences (See Wis. Stat. § 973.04).	10/27/2010 REVW Oral Arg 03/08/2010	1 Milwaukee	09/29/2009 Pub 2009 WI App 133 321 Wis.2d 334 773 N.W.2d 446
2008AP2595	Wanda Brethorst v. Allstate Property and Casualty Ins. Co. Whether a finding of wrongful denial of benefits is a condition precedent to proceeding with discovery in a first-party bad faith claim based on wrongful denial of benefits. In a first-party bad faith claim, if a finding of wrongful denial of benefits is a condition precedent to proceeding with bad faith discovery, does the trial court err if it refuses to grant the insurance company’s motion to bifurcate the issues for discovery? Do the same policy considerations that make it error for the trial court to refuse a motion to bifurcate simultaneous bad faith and breach of contract claims – avoiding undue prejudice to the insurance company, avoiding jury confusion and promoting settlement – make it error to refuse a motion to bifurcate the same two issues when the insured’s only claim is bad faith?	02/24/2010 CERT Oral Arg 09/07/2010	2 Racine	--
2008AP2765-CR	State v. David D. Funk Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).	09/24/2010 REVW Oral Arg 02/01/2011	4 Juneau	04/28/2010 Unpub
2008AP2897	Link Snacks, Inc. v. Jay E. Link Under Wis. Stat. § 895.043(3), may the circuit court submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff? Does the twenty-day period for filing motions after verdict in Wis. Stat. § 805.16(1) begin to run only upon the final disposition of the entire litigation? Under the benefit-estoppel doctrine, does the plaintiff’s compliance with an unconditional circuit court order requiring him to sell his shares in defendant corporation entered over his object constitute a voluntary waiver of his appellate rights? Does the benefit-estoppel doctrine require dismissal of the plaintiff’s appeal when the issues raised in the appeal neither challenged nor depended upon the reversal of the order under which he received the alleged “benefit” – that is, the payment for hs shares at the price sought to be paid by defendant corporation? Is the benefit-estoppel doctrine inapplicable because the petitioner’s appeal could not have left him in a worse position than the circuit court order under which he received payment for his services?	05/13/2010 REVW Oral Arg 10/06/2010	3 Washburn	11/17/2009 Unpub
2008AP2929	Wendy M. Day v. Allstate Indemnity Company Whether an insurance policy was unambiguous and public policy did not require coverage as established in Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989) and Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 539 N.W.2d883 (1995).	09/22/2010 REVW Oral Arg 01/06/2011	3 St. Croix	06/30/2010 Pub 2010 WI App 72 325 Wis. 2d 370 784 N.W.2d 694
2008AP3007-CR	State v. Brad E. Forbush Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (the Sixth Amendment prohibits the police from questioning a person represented by an attorney on criminal charges without the attorney present). What impact does Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) have upon the facts of this case and State v. Dagnall?	03/16/2010 REVW Oral Arg 09/14/2010	2 Sheboygan	01/27/2010 Pub 2010 WI App 11
2008AP3144-CR	State v. Gerard W. Carter Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)? What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?	03/09/2010 REVW Oral Arg 09/15/2010	2 Walworth	10/28/2009 Pub 2009 WI App 156 775 N.W.2d 297
*2008AP3170	Lake Beulah Management District v. DNR Does the legislative framework of Wis. Stat. §§ 281.34 and 281.35 define the Department of Natural Resources’ (DNR) authority to regulate various categories of high capacity wells? Does the DNR’s general authority in Wis. Stat. §§ 281.11 and 281.12 impose a duty upon the DNR to consider the impact of high capacity wells on surface waters? In a proceeding under Wis. Stat. ch. 227, can documents that the parties did not offer as part of the record but were in the possession of the agency’s attorney in connection with a prior proceeding be deemed a part of the record before the agency?	11/05/2010 REVW Oral Arg 03/09/2011	2 Walworth	07/28/2010 Pub 2010 WI App 85 787 N.W.2d 926
2008AP3182	Steve Ottman v. Town of Primrose Whether the appellate court’s standard of review concerning land use decisions by a government unit is limited to the standards in Klinger v. Oneida County, 149 Wis. 2d 838, 845, 440 N.W.2d 348 (1989) (Whether the board kept within its jurisdiction; whether it proceeded on a correct theory of law; whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and whether the evidence was such that it might reasonably make the order or determination in question).	09/14/2010 REVW Oral Arg 01/04/2011	4 Dane	03/31/2010 Unpub
2008AP3235	Curt Andersen, et al. v. Department of Natural Resources Is an administrative permit review hearing an appropriate forum for adjudicating disputes concerning the application of federal law, in a federally delegated program where the Environmental Protection Agency (EPA) has approved the state’s rules and where the EPA has not objected to the permit that does not have the limits or analyses that a party sought?	07/22/2010 REVW Oral Arg 11/03/2010	3 Brown	05/26/2010 Pub 2010 WI App 64
2009AP25-CR	State v. Olu A. Rhodes Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.	09/24/2010 REVW Oral Arg 02/03/2011	1 Milwaukee	08/25/2010 Unpub
2009AP118	State v. Alan Keith Burns Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?	05/13/2010 REVW Oral Arg 11/03/2010	4 Richland	01/28/2010 Unpub
2009AP120	Dawson v. Town of Jackson Does “acting together” under Wis. Stat. § 82.21(2) require that the separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway across municipal lines be counted in the aggregate as if the boards voted as one board? Does the prescribed method of certiorari review pursuant to Wis. Stat. § 82.21(2) preclude a declaratory judgment action? Should the respondents be equitably estopped from asserting any position inconsistent with their prior actions and representations to the town boards which led up to the joint meeting to consider the respondents’ application to discontinue the town-line road?	05/13/2010 REVW Oral Arg 10/01/2010	2 Washington	01/06/2010 Pub 2010 WI App 24
2009AP191	State ex rel. Stupar River LLC v. Town of Linwood Board of Review Whether a tax assessment was made in accordance with the provisions of Wis. Stat. § 70.32 (1).	09/22/2010 REVW Oral Arg 02/01/2001	4 Portage	01/27/2010 Unpub
2009AP246	Phillips v. U.S. Bank N.A. Does a cause of action exist for breach of an implied duty of good faith and fair dealing in an at-will employment relationship that permits a court to invalidate the express, written terms of an otherwise discretionary bonus plan?	06/28/2010 REVW Affirmed 11/19/2010 2010 WI 131	1 Milwaukee	02/02/2010 Pub 2010 WI App 35 781 N.W.2d 540
2009AP472	State v. David J. Balliette Under what circumstances is an evidentiary hearing into the effectiveness of postconviction counsel required where a postconviction motion under Wis. Stat. § 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review? Whether postconviction counsel was ineffective under the “clearly stronger” standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is “clearly stronger” than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue).	08/31/2010 REVW Oral Arg 01/04/2011	2 Winnebago	03/10/2010 Unpub
2009AP524	Metropolitan Associates v. City of Milwaukee Does the court of appeals holding – that portions of Wis. Stat. § 74.37, as amended by 2007 Wisconsin Act 86, do not violate the equal protection clause – conflict with this court’s decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141?	12/15/2009 REVW Oral Arg 04/12/2010; Reargued 10/07/2010	1 Milwaukee	09/09/2009 Pub 2009 WI App 157
2009AP538	Steven T. Kilian v. Mercedes-Benz USA, LLC, et al. Whether an automobile manufacturer violated Wisconsin’s Lemon Law (See Tammi v. Porsche Cars North America, Inc., 2009 WI 83, ¶44, 320 Wis. 2d 45, 768 N.W.2d 783) entitling the consumer lessee to an award of attorney fees and damages under Wis. Stat. § 218.0171 (7) against the automobile lessor.	09/14/2010 REVW Oral Arg 01/05/2011	2 Waukesha	04/26/2010 Unpub
2009AP564	DeBoer Transportation, Inc. v. Charles Swenson Does Wis. Stat. § 102.35 (3) require employers to provide injured workers special accommodations for personal obligations not provided to uninjured workers? If Wis. Stat. § 102.35 (3) requires employers to provide injured workers special accommodations for personal obligations, what standard should the Commission apply when determining which special accommodations should be granted?	09/14/2010 REVW Oral Arg 01/06/2011	4 Wood	04/26/2010 Pub 2010 WI App 54 324 Wis. 2d485 781 N.W.2d 709
2009AP567-CR	State v. Miguel Marinez Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child's videotaped statement without excerption of the hand-burning references? Did the court of appeals err by applying the de novo standard of review to the circuit court's decision admitting the minor child's videotaped statement without excerption of the hand-burning references? Did the court of appeals err by giving undue weight to the fact that no evidence of Marinez's conviction for burning the minor child's hands was introduced to the jury?	06/29/2010 REVW Oral Arg 11/02/2010	4 Jefferson	03/18/2010 Unpub
2009AP688	Susan Foley-Ciccantelli v. Bishop's Grove Condominium Association, Inc. Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?	04/19/2010 CERT Oral Arg 10/06/2010	2 Waukesha	--
2009AP775	E-Z Roll Off, LLC v. County of Oneida Whether Wis. Stat. ch. 133 antitrust claims are exempt from the notice requirements of Wis. Stat. § 893.80 (1).	09/24/2010 REVW Oral Arg 02/02/2011	3 Oneida	06/30/2010 Pub 2010 WI App 76 325 Wis. 2d 423 785 N.W.2d 645
2009AP806-CR	State v. Marvin L. Beauchamp Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811? Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?	09/13/2010 REVW Oral Arg 01/04/2011	1 Milwaukee	03/31/2010 Pub 2010 WI App 42 324 Wis. 2d 162 781 N.W.2d 254
2009AP828	Ryan C. Tews v. NHI, LLC Does filing a motion for summary judgment without any supporting affidavit render it a motion to dismiss? Do the deadlines for summary judgment affidavits as set forth in Wis. Stats. § 802.08(2) begin to apply as of the date of filing a de facto motion to dismiss as though it were a motion for summary judgment? When the Defendant movant filed its first affidavit in support of summary judgment five days before the hearing, did that require the Plaintiff to file his reply that same day or be defaulted? Do factual issues raised only in a brief responding to a de facto motion for dismissal but captioned “Notice of Motion for Summary Judgment,” wherein no affidavit was filed by either party, then convert the motion to dismiss to a motion for summary judgment? Can a Defendant’s default summary judgment motion be properly granted upon a de facto motion to dismiss based on Plaintiff’s failure to raise an issue of fact by affidavit, even though Defendant’s mislabeled Motion for Summary Judgment was not supported by an affidavit? Does a Plaintiff’s reliance on miscaptioning of a de facto notice of motion to dismiss labeled a “Notice of Motion for Summary Judgment” filed without a supporting affidavit constitute excusable neglect, or no neglect at all, for not filing an affidavit, when no affidavit was filed by the moving party to which Plaintiff could respond? Did the trial court misapply Wis. Stats. §§ 802.06(2) and 802.08(2) and abuse its discretion when refusing to consider Plaintiff’s affidavit filed one day following Defendant’s very first affidavit in a procedure commenced by a mislabeled motion for summary judgment? Did the trial court create an ex post facto scheduling order for a muddled Motion to Dismiss/Motion for Summary Judgment denying Plaintiff reasonable notice, due process of law, and his day in court? Does the Court of Appeals’ comment on insufficiency of disregarded relation back arguments in a brief and an affidavit from Plaintiff disregarded as untimely constitute dicta?	05/13/2010 REVW Oral Arg 10/07/2010	4 Jefferson	02/18/2010 Unpub
2009AP956-CR	State v. Donovan M. Burris Was the trial court's supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996).	09/21/2010 REVW Oral Arg 02/02/2011	1 Milwaukee	02/24/2010 Unpub
*2009AP1007	BNP Paribas v. Olsen’s Mill, Inc. Whether, under Wis. Stat. ch. 128 proceedings, a creditor’s security interest was correctly valued leaving the balance of the creditor’s claim unsecured. (See Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321, 326, 195 N.W.2d 664 (1972)). Whether a creditor’s security interest was impermissibly destroyed in proceedings under Wis. Stat. ch. 128.	10/27/2010 REVW Oral Arg 03/02/2011	2 Green Lake	Unpub
*2009AP1209-CR	State v. Brian T. St. Martin Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene? Did the seizure of illegal drugs occur as a result of a search warrant that was issued after the initial search of the premises? Was the warrant invalid because the affidavit accompanying the warrant application contained inaccurate and misleading information? Did the trial court err by “redacting” the affidavit after concluding that it contained false statements?	10/27/2010 CERT Oral Arg 03/08/2011	2 Racine	--
*2009AP1249-CR	State v. Esteban M. Gonzalez Whether a pattern jury instruction confused or mislead a jury such that the instructions violated a defendant’s due process rights. Whether a trial court erred in its handling of a jury’s questions during deliberations. Whether particular evidence constituted substantial facts sufficient to corroborate the defendant’s alleged statements under the corroboration rule (See State v. Bannister, 2007 WI 86, ¶26, 302 Wis. 2d 158, 734 N.W.2d 892).	10/27/2010 REVW Oral Arg 03/08/2011	1 Milwaukee	08/25/2010 Pub 2010 WI App 104
2009AP1252-CR	State v. Shantell T. Harbor Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a defendant demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).	09/22/2010 REVW Oral Arg 02/01/2011	1 Milwaukee	04/26/2010 Unpub
*2009AP1422	Jessica L. Siebert v. Wisc. Amer. Mut. Ins. Co. Whether negligent entrustment of an automobile triggers insurance coverage where a jury has determined there is no coverage for negligent operation of the vehicle. Whether a jury’s finding that an automobile operator acted outside the scope of the owner’s permission to use the vehicle precludes an injured passenger from showing that the owner negligently entrusted the operator with the car.	10/27/2010 REVW Oral Arg 03/02/2011	3 Oneida	07/28/2010 Pub 2010 WI App 94 325 Wis. 2d 740 787 N.W.2d 54
*2009AP1558	John R. Steffens v. BlueCross BlueShield of Illinois Is an employment based (ERISA) healthcare plan entitled to reimbursement when a plan participant asserts in the course of personal injury litigation that corrective surgery resulted from an automobile accident and secures a settlement from the tortfeasor that compensates the cost of surgery? Whether a settlement from a tortfeasor to the plan participant can be construed to satisfy the third element of judicial estoppel in subsequent litigation; namely, that the party to be estopped has convinced the first court to adopt its position (See Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994)).	10/27/2010 REVW Oral Arg 03/01/2011	3 Outagamie	09/29/2010 Unpub
2009AP1559	Peter S. Boerst v. Mark Henn, et al. Whether the doctrine of acquiescence (See Buza v. Wojtalewicz, 48 Wis. 2d 557, 562-63, 180N.W.2d 556 (1970)) established a boundary between parcels of land from a common grantor.	09/14/2010 REVW Oral Arg 12/01/2010	3 Ashland	06/30/2010 Pub 2010 WI App 80 325 Wis. 2d 445 784 N.W.2d 736
2009AP1669	Roger H. Fischer, Sr., et al. v. Pamela A. Steffen, et al. Whether the amount of an award to an injured plaintiff should be reduced by the amount that the plaintiff’s insurer had paid for medical expenses pursuant to the analysis set forth in Paulson v. Allstate Ins. Co., 2003 WI 99, 263 Wis. 2d 520, 665 N.W.2d 744, even though the plaintiff's insurer, without notice to or participation by an injured plaintiff, arbitrated its claim against the defendant's insurer in a separate arbitration proceeding and lost. Does the collateral source rule allow the plaintiff to collect all damages from a defendant and his/her insurer in such a situation? Is a distinction between medical expenses and property damage relevant to the question of whether a plaintiff's recovery can be reduced under a Paulson analysis?	09/21/2010 REVW Oral Arg 01/06/2011	2 Sheboygan	05/26/2010 Pub 2010 WI App 68 325 Wis. 2d 382 783 N.W.2d 889
2009AP1714	Emjay Investment Company v. Village of Germantown Whether Wis. Stat. ch. 66 permits a contingent special assessment rendering the 90-day appeal limitation of Wis. Stat. § 66.0703 (12) (a) inapplicable. Did a municipality adopt a final resolution in accordance with Wis. Stat. § 66.0703 (8) (c) triggering application of the 90-day appeal limitation of Wis. Stat. § 66.0703 (12) (a)? May the special assessment be challenged by a means not barred by the 90-day limitation of Wis. Stat. § 66.0703 (12) (a)?	09/22/2010 REVW Oral Arg 02/02/2011	2 Washington	07/28/2010 Unpub
2009AP1874-AC	Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee Whether a direct legislation ballot question put before voters complied with the statutory requirement that it contain “a concise statement” of an ordinance’s nature, in compliance with Wis. Stat. § 9.20(6) (2007 – 08).	03/16/2010 CERT Cert. Vacated, Remanded	1 Milwaukee	--
*2009AP2021	Lake Beulah Management District v. Village of East Troy Whether the Department of Natural Resources, or municipalities and other governmental entities having the same powers as municipalities, or any other entity, has the authority to consider adverse environmental impacts of high capacity wells with capacities to withdraw less that two million gallons per day.	11/05/2010 REVW Oral Arg 03/09/2011	2 Walworth	09/29/2010 Pub 2010 WI App 127
*2009AP2315	Joyce Affeldt v. Green Lake County What is the distinction between a “recorded” and an “unrecorded” highway under the newly enacted Wis. Stat. ch. 82? Whether evidence of ancient fences, trees and buildings within an alleged right-of-way rebuts the presumption of a four-rod (66 feet) width accorded to an unrecorded highway under Wis. Stat. § 82.31. Whether retroactive application of the four-rod statutory presumption to an unrecorded highway existing before the enactment of the statute violates the federal and state constitutional “takings” clauses.	10/27/2010 REVW Oral Arg 03/02/2011	2 Green Lake	08/25/2010 Unpub
*2009AP2433-FT	Patrick A. Topolski v. Ellen J. Topolski Whether an ex-spouse’s receipt of benefits under a pension plan constitutes retirement benefits, thereby triggering the property division of a divorce judgment, or disability benefits which do not implicate the property division.	10/27/2010 REVW Oral Arg 03/01/2011	2 Waukesha	Unpub
*2009AP2845-W	Madison Metro. School Dist. v. Circuit Court for Dane County Whether a circuit court, pursuant to Wis. Stat. § 120.12(18) (school district has a duty to coordinate and provide continuity of educational programming for pupils receiving education services as the result of a court order under § 938.34(7d)) and § 938.45 (court may take certain actions if the district contributed to delinquency of minor) has the authority to craft an order which would override a school district’s prior determination to expel a juvenile under § 120.13(1)(c)1.	10/27/2010 REVW Oral Arg 03/01/2011	4 Dane	Unpub
2009AP2973	Tammy W-G. v. Jacob T. Whether State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752 may be inconsistent with both the language of Wis. Stat. § 48.415(6) and constitutional due process rights that must be accorded parents before parental rights may be terminated?	05/13/2010 CERT Oral Arg 10/01/2010	4 Grant	--
2010AP321	Brown County Dept. of Human Services v. Brenda B. Did the trial court correctly exercise its discretion in denying a parent’s motion to withdraw a no contest plea that grounds existed for termination of parental rights without an evidentiary hearing?	09/13/2010 REVW Oral Arg 12/01/2010	3 Brown	07/28/2010 Unpub

Case No.

Caption/Issue(s)

SC Accepted

Dist/

Cty

Decision

2006AP948

Jackson v. Buchler

Was the petitioner denied a fair and impartial decision maker in violation of due process and equal protection of law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution?

Did the petitioner fail to exhaust his administrative remedies concerning his claim that he was unconstitutionally denied the opportunity to review a videotape, and if he has failed to exhaust his administrative remedies, may the court nonetheless decide the issues set forth in the petition for review and listed below? See Wis. Stat. § 801.02(7)(b); Wis. Admin. Code § DOC 310.05; State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686; State ex rel. Smith v. McCaughtry, 222 Wis. 2d 68, 586 N.W.2d 63 (Ct. App. 1998); Santiago v. Ware, 205 Wis. 2d 295, 556 N.W.2d 356 (Ct. App.), rev. denied, 207 Wis. 2d 284, 560 N.W.2d 273 (1996).

Does the obligation of governmental authorities to produce exculpatory information, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, apply to all or some prison disciplinary proceedings, and, in particular, to the disciplinary proceeding against the petitioner? See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Piggie v. Cotton, 344 F.3d 674 (7^th Cir. 2003); State ex rel. Ortega v. McCaughtry, 221 Wis. 2d 376, 585 N.W.2d 640 (Ct. App. 1998).

If there is an obligation on governmental authorities to produce potentially exculpatory information, what should be the process for determining whether the information sought is exculpatory and what should be the remedy for the failure to produce it?

Was the petitioner deprived of due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 9 of the Wisconsin Constitution when he was denied the right to obtain a videotape that he contends is exculpatory evidence?

Was the petitioner deprived of due process and equal protection when there was insufficient evidence of his guilt, as he contends?

04/14/2009

REVW

Oral Arg

12/01/2009 and 09/15/2010

Dane

12/13/2007

Unpub

2006AP1229/ 2006AP2512/ 2007AP369

Casper v. American International South Insurance Co.

Casper v. National Union Fire Ins. Co. of Pittsburgh, PA

For "excusable neglect," is it necessary to have evidence of the actions that caused the neglect or of the reasons why a "carefully structured process to respond to complaints" did not work if the party failed to timely respond? -- OR Did failure to answer the complaint in a timely manner constitute excusable neglect?

Under Wis. Stat. ss 632.24 and 631.01(1), can a direct action claim against an insurer be maintained where the insurance policy was not delivered or issued for delivery in Wisconsin but the insurance policy covers the insured's "business operations" conducted in this state?

Can a corporate officer be held personally liable for negligence that occurs while he is performing his job and is within the scope of this employment for a solvent and insured corporation?

Do public policy factors and a lack of forseeability preclude a finding of negligence as a matter of law?

06/28/2010

REVW

Oral Arg

12/01/2010

Milwaukee

12/22/2009

Pub

2010 WI App 2

323 Wis.2d 80

779 N.W.2d 444

2007AP35

David Rasmussen v. General Motors Corporation, et al.

Whether Wisconsin’s long-arm statute, Wis. Stat. § 801.05 (1) (d), subjects a foreign parent corporation to personal jurisdiction in Wisconsin.

09/14/2010

REVW

Oral Arg

01/05/2011

Milwaukee

06/30/2010

Unpub

2007AP203

Michael S. Polsky v. Daniel E. Virnich

Whether the holding of Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, prohibits receivers from asserting claims, on the corporation’s behalf, of breach of fiduciary duty to the corporation.

Whether corporate officers and directors acting against the interests of the corporation “enjoy a unity of interest” with the corporation, requiring application of the intracorporate conspiracy doctrine.

Is a conspiracy claim actionable without an underlying actionable violation of an independent right?

Whether a corporation’s tort claim accrues before a claim is enforceable when the alleged tortfeasors are the only individuals who can enable the corporation to assert the claim.

09/22/2010

REVW

Oral Arg

02/03/2011

Grant

02/24/2010

Pub

2010 WI App 20 323 Wis. 2d 811

779 N.W.2d 712

2008AP322

Nestle USA, Inc. v. Wis. Dept. of Revenue

What evaluation standards are to be used by the Tax Appeals Commission to assess specialized manufacturing facilities that have a limited market? (See Wis. Stat. § 70.32(1), State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 686, 173 N.W.2d 627 (1970) and State ex rel. Northwestern Mut. Life Ins. Co. v. Weiher, 177 Wis. 445, 448, 188 N.W. 598 (1922)).

Whether the tax assessment of a manufacturing facility should be based upon its unique value to the present owner or upon market value.

03/09/2010

REVW

Oral Arg

09/07/2010

Dane

11/24/2009

Pub

2009 WI App 159

776 N.W.2d 589

2008AP1139

State v. Omer Ninham

Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile.

Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.

09/13/2010

REVW

Oral Arg

01/05/2011

Brown

05/27/2009

Pub

2010 WI App 64, 316 Wis. 2d 776, 767 N.W.2d 326

2008AP1296-CR

State v. Janet A. Conner

What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?

Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?

Whether a defendant received adequate notice of the nature and cause of the criminal accusations in an information (See State v. Cheers, 102 Wis. 2d 367, 403 – 04, 306 N.W.2d 676 (1981) and State v. Copening, 103 Wis. 2d 564, 576, 309 N.W.2d 850 (1981)).

03/16/2010

REVW

Oral Arg

10/06/2010

Richland

10/28/2009

Pub

2009 WI App 143

775 N.W.2d 105

2008AP1845

Town Bank v. City Real Estate Development, LLC

In a construction finance contract, is an integration clause to specifically identify and expressly negate antecedent agreements required before parol evidence may be barred to determine the contracting parties’ intent? (See Federal Deposit Ins. Corp. v. First Mortgage Investors, 76 Wis. 2d 151, 157-58, 250 N.W.2d 362 (1977) and Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 607-08, 288 N.W.2d 852 (1980)).

Is parol evidence that does not conflict with a subsequent written agreement always admissible to show whether an antecedent agreement was intended to be superceded?

03/09/2010

REVW

Oral Arg

09/07/2010

Waukesha

11/24/2009

Pub

2009 WI App 160

777 N.W.2d 98

2008AP1968-CR

State v. Patrick R. Patterson

Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?

Can one contribute to the deliquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?

Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”

Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?

03/17/2010

REVW

Affirmed

11/17/2010

2010 WI 130

Juneau

11/24/2009

Pub

2009 WI App 161

776 N.W.2d 602

2008AP2045

Evelyn Werner v. Kenneth Hendree

Whether litigation was final to invoke appellate jurisdiction under Wis. Stat. § 808.03 with respect to actions taken by a non-party where litigation as to damages continued.

Does “insurance applicable” in Wis. Stat. § 895.46 require the State to pay a judgment against a State employee when the employee did not cooperate with the litigation defense?

Does the “particular way” requirement described in Lodl v. Progressive Northern Ins. Co., 2002 WI 71, 253 Wis.2d 323, 646 N.W.2d 314, conflict with Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d672 (1977), and Domino v. Walworth County, 118 Wis. 2d 488, 347 N.W.2d 917 (Ct. App. 1984) when analyzing the “known danger” exception to a governmental officer’s tort immunity?

03/16/2010

REVW

Oral Arg

10/07/2010

Waukesha

07/29/2009

Pub

2009 WI App 103

320 Wis.2d 592 770 N.W.2d 782

*2008AP2206-CR

State v. Charles Lamar

Whether, at resentencing, a defendant would be entitled to credit on a new sentence for time spent confined on a vacated sentence, which was served concurrently with another non-vacated sentence, when the new sentence is imposed consecutively to all other sentences (See Wis. Stat. § 973.04).

10/27/2010

REVW

Oral Arg

03/08/2010

Milwaukee

09/29/2009

Pub

2009 WI App 133

321 Wis.2d 334 773 N.W.2d 446

2008AP2595

Wanda Brethorst v. Allstate Property and Casualty Ins.

Co.

Whether a finding of wrongful denial of benefits is a condition precedent to proceeding with discovery in a first-party bad faith claim based on wrongful denial of benefits.

In a first-party bad faith claim, if a finding of wrongful denial of benefits is a condition precedent to proceeding with bad faith discovery, does the trial court err if it refuses to grant the insurance company’s motion to bifurcate the issues for discovery?

Do the same policy considerations that make it error for the trial court to refuse a motion to bifurcate simultaneous bad faith and breach of contract claims – avoiding undue prejudice to the insurance company, avoiding jury confusion and promoting settlement – make it error to refuse a motion to bifurcate the same two issues when the insured’s only claim is bad faith?

02/24/2010

CERT

Oral Arg

09/07/2010

Racine

2008AP2765-CR

State v. David D. Funk

Whether a juror was subjectively and/or objectively biased under the test set forth in State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999).

09/24/2010

REVW

Oral Arg

02/01/2011

Juneau

04/28/2010

Unpub

2008AP2897

Link Snacks, Inc. v. Jay E. Link

Under Wis. Stat. § 895.043(3), may the circuit court submit the issue of punitive damages to the jury in the absence of evidence warranting a conclusion to a reasonable certainty that the party against whom punitive damages may be awarded acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff?

Does the twenty-day period for filing motions after verdict in Wis. Stat. § 805.16(1) begin to run only upon the final disposition of the entire litigation?

Under the benefit-estoppel doctrine, does the plaintiff’s compliance with an unconditional circuit court order requiring him to sell his shares in defendant corporation entered over his object constitute a voluntary waiver of his appellate rights?

Does the benefit-estoppel doctrine require dismissal of the plaintiff’s appeal when the issues raised in the appeal neither challenged nor depended upon the reversal of the order under which he received the alleged “benefit” – that is, the payment for hs shares at the price sought to be paid by defendant corporation?

Is the benefit-estoppel doctrine inapplicable because the petitioner’s appeal could not have left him in a worse position than the circuit court order under which he received payment for his services?

05/13/2010

REVW

Oral Arg

10/06/2010

Washburn

11/17/2009

Unpub

2008AP2929

Wendy M. Day v. Allstate Indemnity Company

Whether an insurance policy was unambiguous and public policy did not require coverage as established in Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989) and Whirlpool Corp. v. Ziebert, 197 Wis. 2d 144, 539 N.W.2d883 (1995).

09/22/2010

REVW

Oral Arg

01/06/2011

St. Croix

06/30/2010

Pub

2010 WI App 72 325 Wis. 2d 370 784 N.W.2d 694

2008AP3007-CR

State v. Brad E. Forbush

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 (the Sixth Amendment prohibits the police from questioning a person represented by an attorney on criminal charges without the attorney present).

What impact does Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) have upon the facts of this case and State v. Dagnall?

03/16/2010

REVW

Oral Arg

09/14/2010

Sheboygan

01/27/2010

Pub

2010 WI App 11

2008AP3144-CR

State v. Gerard W. Carter

Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?

What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?

03/09/2010

REVW

Oral Arg

09/15/2010

Walworth

10/28/2009

Pub

2009 WI App 156

775 N.W.2d 297

*2008AP3170

Lake Beulah Management District v. DNR

Does the legislative framework of Wis. Stat. §§ 281.34 and 281.35 define the Department of Natural Resources’ (DNR) authority to regulate various categories of high capacity wells?

Does the DNR’s general authority in Wis. Stat. §§ 281.11 and 281.12 impose a duty upon the DNR to consider the impact of high capacity wells on surface waters?

In a proceeding under Wis. Stat. ch. 227, can documents that the parties did not offer as part of the record but were in the possession of the agency’s attorney in connection with a prior proceeding be deemed a part of the record before the agency?

11/05/2010

REVW

Oral Arg

03/09/2011

Walworth

07/28/2010

Pub

2010 WI App 85

787 N.W.2d 926

2008AP3182

Steve Ottman v. Town of Primrose

Whether the appellate court’s standard of review concerning land use decisions by a government unit is limited to the standards in Klinger v. Oneida County, 149 Wis. 2d 838, 845, 440 N.W.2d 348 (1989) (Whether the board kept within its jurisdiction; whether it proceeded on a correct theory of law; whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and whether the evidence was such that it might reasonably make the order or determination in question).

09/14/2010

REVW

Oral Arg

01/04/2011

Dane

03/31/2010

Unpub

2008AP3235

Curt Andersen, et al. v. Department of Natural Resources

Is an administrative permit review hearing an appropriate forum for adjudicating disputes concerning the application of federal law, in a federally delegated program where the Environmental Protection Agency (EPA) has approved the state’s rules and where the EPA has not objected to the permit that does not have the limits or analyses that a party sought?

07/22/2010

REVW

Oral Arg

11/03/2010

Brown

05/26/2010

Pub

2010 WI App 64

2009AP25-CR

State v. Olu A. Rhodes

Whether a criminal defendant’s constitutional right to confront a witness in cross-examination was infringed, and, if so, whether the infringement was harmless error.

09/24/2010

REVW

Oral Arg

02/03/2011

Milwaukee

08/25/2010

Unpub

2009AP118

State v. Alan Keith Burns

Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?

05/13/2010

REVW

Oral Arg

11/03/2010

Richland

01/28/2010

Unpub

2009AP120

Dawson v. Town of Jackson

Does “acting together” under Wis. Stat. § 82.21(2) require that the separate votes taken by two governing bodies in deciding an application to lay out, alter, or discontinue a public highway across municipal lines be counted in the aggregate as if the boards voted as one board?

Does the prescribed method of certiorari review pursuant to Wis. Stat. § 82.21(2) preclude a declaratory judgment action?

Should the respondents be equitably estopped from asserting any position inconsistent with their prior actions and representations to the town boards which led up to the joint meeting to consider the respondents’ application to discontinue the town-line road?

05/13/2010

REVW

Oral Arg

10/01/2010

Washington

01/06/2010

Pub

2010 WI App 24

2009AP191

State ex rel. Stupar River LLC v. Town of Linwood

Board of Review

Whether a tax assessment was made in accordance with the provisions of Wis. Stat. § 70.32 (1).

09/22/2010

REVW

Oral Arg

02/01/2001

Portage

01/27/2010

Unpub

2009AP246

Phillips v. U.S. Bank N.A.

Does a cause of action exist for breach of an implied duty of good faith and fair dealing in an at-will employment relationship that permits a court to invalidate the express, written terms of an otherwise discretionary bonus plan?

06/28/2010

REVW

Affirmed

11/19/2010

2010 WI 131

Milwaukee

02/02/2010

Pub

2010 WI App 35

781 N.W.2d 540

2009AP472

State v. David J. Balliette

Under what circumstances is an evidentiary hearing into the effectiveness of postconviction counsel required where a postconviction motion under Wis. Stat. § 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review?

Whether postconviction counsel was ineffective under the “clearly stronger” standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is “clearly stronger” than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue).

08/31/2010

REVW

Oral Arg

01/04/2011

Winnebago

03/10/2010

Unpub

2009AP524

Metropolitan Associates v. City of Milwaukee

Does the court of appeals holding – that portions of Wis. Stat. § 74.37, as amended by 2007 Wisconsin Act 86, do not violate the equal protection clause – conflict with this court’s decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141?

12/15/2009

REVW

Oral Arg

04/12/2010;

Reargued

10/07/2010

Milwaukee

09/09/2009

Pub

2009 WI App 157

2009AP538

Steven T. Kilian v. Mercedes-Benz USA, LLC, et al.

Whether an automobile manufacturer violated Wisconsin’s Lemon Law (See Tammi v. Porsche Cars North America, Inc., 2009 WI 83, ¶44, 320 Wis. 2d 45, 768 N.W.2d 783) entitling the consumer lessee to an award of attorney fees and damages under Wis. Stat. § 218.0171 (7) against the automobile lessor.

09/14/2010

REVW

Oral Arg

01/05/2011

Waukesha

04/26/2010

Unpub

2009AP564

DeBoer Transportation, Inc. v. Charles Swenson

Does Wis. Stat. § 102.35 (3) require employers to provide injured workers special accommodations for personal obligations not provided to uninjured workers?

If Wis. Stat. § 102.35 (3) requires employers to provide injured workers special accommodations for personal obligations, what standard should the Commission apply when determining which special accommodations should be granted?

09/14/2010

REVW

Oral Arg

01/06/2011

Wood

04/26/2010

Pub

2010 WI App 54

324 Wis. 2d485

781 N.W.2d 709

2009AP567-CR

State v. Miguel Marinez

Did the circuit court erroneously exercise its discretion by admitting other acts evidence of the minor child's videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by applying the de novo standard of review to the circuit court's decision admitting the minor child's videotaped statement without excerption of the hand-burning references?

Did the court of appeals err by giving undue weight to the fact that no evidence of Marinez's conviction for burning the minor child's hands was introduced to the jury?

06/29/2010

REVW

Oral Arg

11/02/2010

Jefferson

03/18/2010

Unpub

2009AP688

Susan Foley-Ciccantelli v. Bishop's Grove Condominium

Association, Inc.

Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?

04/19/2010

CERT

Oral Arg

10/06/2010

Waukesha

2009AP775

E-Z Roll Off, LLC v. County of Oneida

Whether Wis. Stat. ch. 133 antitrust claims are exempt from the notice requirements of Wis. Stat. § 893.80 (1).

09/24/2010

REVW

Oral Arg

02/02/2011

Oneida

06/30/2010

Pub

2010 WI App 76 325 Wis. 2d 423

785 N.W.2d 645

2009AP806-CR

State v. Marvin L. Beauchamp

Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?

Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?

09/13/2010

REVW

Oral Arg

01/04/2011

Milwaukee

03/31/2010

Pub

2010 WI App 42 324 Wis. 2d 162 781 N.W.2d 254

2009AP828

Ryan C. Tews v. NHI, LLC

Does filing a motion for summary judgment without any supporting affidavit render it a motion to dismiss?

Do the deadlines for summary judgment affidavits as set forth in Wis. Stats. § 802.08(2) begin to apply as of the date of filing a de facto motion to dismiss as though it were a motion for summary judgment?

When the Defendant movant filed its first affidavit in support of summary judgment five days before the hearing, did that require the Plaintiff to file his reply that same day or be defaulted?

Do factual issues raised only in a brief responding to a de facto motion for dismissal but captioned “Notice of Motion for Summary Judgment,” wherein no affidavit was filed by either party, then convert the motion to dismiss to a motion for summary judgment?

Can a Defendant’s default summary judgment motion be properly granted upon a de facto motion to dismiss based on Plaintiff’s failure to raise an issue of fact by affidavit, even though Defendant’s mislabeled Motion for Summary Judgment was not supported by an affidavit?

Does a Plaintiff’s reliance on miscaptioning of a de facto notice of motion to dismiss labeled a “Notice of Motion for Summary Judgment” filed without a supporting affidavit constitute excusable neglect, or no neglect at all, for not filing an affidavit, when no affidavit was filed by the moving party to which Plaintiff could respond?

Did the trial court misapply Wis. Stats. §§ 802.06(2) and 802.08(2) and abuse its discretion when refusing to consider Plaintiff’s affidavit filed one day following Defendant’s very first affidavit in a procedure commenced by a mislabeled motion for summary judgment?

Did the trial court create an ex post facto scheduling order for a muddled Motion to Dismiss/Motion for Summary Judgment denying Plaintiff reasonable notice, due process of law, and his day in court?

Does the Court of Appeals’ comment on insufficiency of disregarded relation back arguments in a brief and an affidavit from Plaintiff disregarded as untimely constitute dicta?

05/13/2010

REVW

Oral Arg

10/07/2010

Jefferson

02/18/2010

Unpub

2009AP956-CR

State v. Donovan M. Burris

Was the trial court's supplemental jury instruction that was issued in response to a question from the jury and that quoted verbatim from a Supreme Court opinion an impermissibly misleading instruction under the standards established by State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996).

09/21/2010

REVW

Oral Arg

02/02/2011

Milwaukee

02/24/2010

Unpub

*2009AP1007

BNP Paribas v. Olsen’s Mill, Inc.

Whether, under Wis. Stat. ch. 128 proceedings, a creditor’s security interest was correctly valued leaving the balance of the creditor’s claim unsecured. (See Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321, 326, 195 N.W.2d 664 (1972)).

Whether a creditor’s security interest was impermissibly destroyed in proceedings under Wis. Stat. ch. 128.

10/27/2010

REVW

Oral Arg

03/02/2011

Green Lake

Unpub

*2009AP1209-CR

State v. Brian T. St. Martin

Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene?

Did the seizure of illegal drugs occur as a result of a search warrant that was issued after the initial search of the premises?

Was the warrant invalid because the affidavit accompanying the warrant application contained inaccurate and misleading information?

Did the trial court err by “redacting” the affidavit after concluding that it contained false statements?

10/27/2010

CERT

Oral Arg

03/08/2011

Racine

*2009AP1249-CR

State v. Esteban M. Gonzalez

Whether a pattern jury instruction confused or mislead a jury such that the instructions violated a defendant’s due process rights.

Whether a trial court erred in its handling of a jury’s questions during deliberations.

Whether particular evidence constituted substantial facts sufficient to corroborate the defendant’s alleged statements under the corroboration rule (See State v. Bannister, 2007 WI 86, ¶26, 302 Wis. 2d 158, 734 N.W.2d 892).

10/27/2010

REVW

Oral Arg

03/08/2011

Milwaukee

08/25/2010

Pub

2010 WI App 104

2009AP1252-CR

State v. Shantell T. Harbor

Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).

Whether a defendant demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

09/22/2010

REVW

Oral Arg

02/01/2011

Milwaukee

04/26/2010

Unpub

*2009AP1422

Jessica L. Siebert v. Wisc. Amer. Mut. Ins. Co.

Whether negligent entrustment of an automobile triggers insurance coverage where a jury has determined there is no coverage for negligent operation of the vehicle.

Whether a jury’s finding that an automobile operator acted outside the scope of the owner’s permission to use the vehicle precludes an injured passenger from showing that the owner negligently entrusted the operator with the car.

10/27/2010

REVW

Oral Arg

03/02/2011

Oneida

07/28/2010

Pub

2010 WI App 94

325 Wis. 2d 740

787 N.W.2d 54

*2009AP1558

John R. Steffens v. BlueCross BlueShield of Illinois

Is an employment based (ERISA) healthcare plan entitled to reimbursement when a plan participant asserts in the course of personal injury litigation that corrective surgery resulted from an automobile accident and secures a settlement from the tortfeasor that compensates the cost of surgery?

Whether a settlement from a tortfeasor to the plan participant can be construed to satisfy the third element of judicial estoppel in subsequent litigation; namely, that the party to be estopped has convinced the first court to adopt its position (See Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994)).

10/27/2010

REVW

Oral Arg

03/01/2011

Outagamie

09/29/2010

Unpub

2009AP1559

Peter S. Boerst v. Mark Henn, et al.

Whether the doctrine of acquiescence (See Buza v. Wojtalewicz, 48 Wis. 2d 557, 562-63, 180N.W.2d 556 (1970)) established a boundary between parcels of land from a common grantor.

09/14/2010

REVW

Oral Arg

12/01/2010

Ashland

06/30/2010

Pub

2010 WI App 80

325 Wis. 2d 445

784 N.W.2d 736

2009AP1669

Roger H. Fischer, Sr., et al. v. Pamela A. Steffen, et al.

Whether the amount of an award to an injured plaintiff should be reduced by the amount that the plaintiff’s insurer had paid for medical expenses pursuant to the analysis set forth in Paulson v. Allstate Ins. Co., 2003 WI 99, 263 Wis. 2d 520, 665 N.W.2d 744, even though the plaintiff's insurer, without notice to or participation by an injured plaintiff, arbitrated its claim against the defendant's insurer in a separate arbitration proceeding and lost.

Does the collateral source rule allow the plaintiff to collect all damages from a defendant and his/her insurer in such a situation?

Is a distinction between medical expenses and property damage relevant to the question of whether a plaintiff's recovery can be reduced under a Paulson analysis?

09/21/2010

REVW

Oral Arg

01/06/2011

Sheboygan

05/26/2010

Pub

2010 WI App 68 325 Wis. 2d 382 783 N.W.2d 889

2009AP1714

Emjay Investment Company v. Village of Germantown

Whether Wis. Stat. ch. 66 permits a contingent special assessment rendering the 90-day appeal limitation of Wis. Stat. § 66.0703 (12) (a) inapplicable.

Did a municipality adopt a final resolution in accordance with Wis. Stat. § 66.0703 (8) (c) triggering application of the 90-day appeal limitation of Wis. Stat. § 66.0703 (12) (a)?

May the special assessment be challenged by a means not barred by the 90-day limitation of Wis. Stat. § 66.0703 (12) (a)?

09/22/2010

REVW

Oral Arg

02/02/2011

Washington

07/28/2010

Unpub

2009AP1874-AC

Metropolitan Milwaukee Association of Commerce, Inc.

v. City of Milwaukee

Whether a direct legislation ballot question put before voters complied with the statutory requirement that it contain “a concise statement” of an ordinance’s nature, in compliance with Wis. Stat. § 9.20(6) (2007 – 08).

03/16/2010

CERT

Cert. Vacated, Remanded

Milwaukee

*2009AP2021

Lake Beulah Management District v. Village of East Troy

Whether the Department of Natural Resources, or municipalities and other governmental entities having the same powers as municipalities, or any other entity, has the authority to consider adverse environmental impacts of high capacity wells with capacities to withdraw less that two million gallons per day.

11/05/2010

REVW

Oral Arg

03/09/2011

Walworth

09/29/2010

Pub

2010 WI App 127

*2009AP2315

Joyce Affeldt v. Green Lake County

What is the distinction between a “recorded” and an “unrecorded” highway under the newly enacted Wis. Stat. ch. 82?

Whether evidence of ancient fences, trees and buildings within an alleged right-of-way rebuts the presumption of a four-rod (66 feet) width accorded to an unrecorded highway under Wis. Stat. § 82.31.

Whether retroactive application of the four-rod statutory presumption to an unrecorded highway existing before the enactment of the statute violates the federal and state constitutional “takings” clauses.

10/27/2010

REVW

Oral Arg

03/02/2011

Green Lake

08/25/2010

Unpub

*2009AP2433-FT

Patrick A. Topolski v. Ellen J. Topolski

Whether an ex-spouse’s receipt of benefits under a pension plan constitutes retirement benefits, thereby triggering the property division of a divorce judgment, or disability benefits which do not implicate the property division.

10/27/2010

REVW

Oral Arg

03/01/2011

Waukesha

Unpub

*2009AP2845-W

Madison Metro. School Dist. v. Circuit Court for Dane

County

Whether a circuit court, pursuant to Wis. Stat. § 120.12(18) (school district has a duty to coordinate and provide continuity of educational programming for pupils receiving education services as the result of a court order under § 938.34(7d)) and § 938.45 (court may take certain actions if the district contributed to delinquency of minor) has the authority to craft an order which would override a school district’s prior determination to expel a juvenile under § 120.13(1)(c)1.

10/27/2010

REVW

Oral Arg

03/01/2011

Dane

Unpub

2009AP2973

Tammy W-G. v. Jacob T.

Whether State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752 may be inconsistent with both the language of Wis. Stat. § 48.415(6) and constitutional due process rights that must be accorded parents before parental rights may be terminated?

05/13/2010

CERT

Oral Arg

10/01/2010

Grant

2010AP321

Brown County Dept. of Human Services v. Brenda B.

Did the trial court correctly exercise its discretion in denying a parent’s motion to withdraw a no contest plea that grounds existed for termination of parental rights without an evidentiary hearing?

09/13/2010

REVW

Oral Arg

12/01/2010

Brown

07/28/2010

Unpub