June 9, 2011

 

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·         whether the Court of Appeals decision is published or unpublished, and, if it is published, the citations to the public domain citation and the official reports for the Court of Appeals decision.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 June 9, 2011.  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

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

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

Affirmed

05/20/2011

2011 WI 33

3

Brown

05/27/2009

Pub

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

2008AP1830

            MBS-Certified Public Accountants, LLC v. Wisconsin Bell

            Inc.

 

Does the voluntary payment doctrine bar a plaintiff from seeking damages under Wis. Stat. §§ 100.18, 100.207 and §§ 946.80 – 946.88 where the legislature created private rights of action for damages from prohibited billing practices?

 

Must individuals pay illegal charges or fees “under protest” to preserve the right to bring a statutory claim for damages where the legislature did not include a protest requirement in the statutes?

 

Is there an exception to the voluntary payment doctrine (See Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, 255 Wis. 2d 447, 649 N.W.2d 626 and Butcher v. Ameritech Corp., 2007 WI App 5, 298 Wis. 2d 468, 727 N.W.2d 546) that prevents alleged violators of Wis. Stat. §§ 100.18, 100.207 and §§ 946.80 – 946.88 from asserting the doctrine?

 

03/16/2011

REVW

1

Milwaukee

09/29/2010

Unpub

2008AP1972

            Thomas W. Jandre v. Physicians Insurance Company of

            Wisconsin

 

Does Wis. Stat. § 448.30 (patient informed consent) require a physician to advise a patient about tests and treatments for possible alternative health problems which are unrelated to the diagnosed condition?  (See Scaria v. St. Paul Fire & Marine Insurance Co., 68 Wis. 2d 1, 227 N.W.2d 647 (1975), Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995) and Bubb v. Brusky, 2009 WI 91, 321 Wis. 2d 1, 768 N.W.2d 903).

 

03/16/2011

REVW

2

Fond du Lac

10/27/2010

2010 WI App 136

330 Wis. 2d 50 792 N.W.2d 558

 

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

--

2008AP2759-CR

              State v. Daniel H. Hanson

 

Whether a driver of a vehicle can be convicted of attempting to elude a law enforcement officer under Wis. Stat. § 346.04(3) while on a cell phone with a 911 intake dispatcher and driving to a police station.

 

Whether an officer is a “victim” (See State v. Haase, 2006 WI App 86, 293 Wis. 2d 322, 716 N.W.2d 526) in the context of an “eluding an officer” offense such that the charged offender may present victim character evidence under Wis. Stat. § 904.04(1)(b) at trial.

 

02/08/2011

REVW

2

Kenosha

11/17/2010

Pub

2010 WI App 146

 ___ Wis. 2d ___

792 N.W.2d 203

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

Reversed and Remanded

04/29/2011

2011 WI 24

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

Reversed and Remanded

04/29/2011

2011 WI 25

2

Sheboygan

01/27/2010

Pub

2010 WI App 11

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

04/13/2011

 

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

Affirmed

03/22/2011

2011 WI 18

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

Reversed

03/23/2011

2011 WI 19

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

Affirmed

04/26/2011

2011 WI 22

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

04/19/2011

 

4

Portage

01/27/2010

Unpub

2009AP438

              David Bushard v. Steven A. Reisman

 

Whether the dissolution of a business partnership was concluded in accordance with the provisions of Wis. Stat. § 178.15 and the terms of the partnership agreement.

 

12/07/2010

REVW

Oral Arg

04/14/2011

3

Pierce

07/28/2010

Unpub

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

Reversed

03/25/2011

2011 WI 20

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

2009AP608

              John Adams, et al. v. State of Wisconsin

 

Does the Livestock Facility Siting Law (Wis. Stat. § 93.90) prohibit a local government from imposing conditions in a Conditional Use Permit (CUP) for a Confined Animal Feedlot Operation (CAFO) for water quality monitoring and compliance with state water quality standards?

 

Was the Department of Agriculture, Trade and Consumer Protection given the power by the legislature to revoke local zoning authority to protect surface and groundwater resources by omitting state water quality standards as a “performance standard” in the administrative rule (Wis. Admin. Code § ATCP 51) for the siting and expansion of CAFOs?

 

Is there a legal distinction between a local zoning authority’s licensing or “siting” of a CAFO and its “regulation” of the facility for compliance with state water quality standards?

 

Does the Livestock Facility Siting Review Board have authority to remove conditions of a CUP that requires compliance with state water quality standards and the means to monitor compliance?  Did the state siting board exceed its authority in modifying the Town’s permit rather than reversing it entirely?

 

Even if a town must satisfy the prerequisites in Wis. Stat. § 93.90(3)(ar) prior to imposing conditions on a siting permit, may those conditions refer to and monitor compliance with state standards?

 

02/11/2011

REVW

4

Rock

07/28/2010

Pub

2010 WI App 88 327 Wis. 2d 676 787 N.W.2d 941

2009AP639

              Tracy J. McReath v. Timothy J. McReath

 

Whether a court may double count the value of a divorcing professional’s “professional goodwill” by first valuing the professional’s business practice, including all of its associated goodwill, for property division purposes, and then award maintenance based upon the professional’s earning capacity.

 

12/07/2010

REVW

Oral Arg

04/13/2011

4

Sauk

08/25/2010

Pub

2010 WI App 101

___ Wis. 2d ___

789 N.W.2d 89

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

Reversed and Remanded

05/24/2011

2011 WI 36

2

Waukesha

--

2009AP694-CR

              State v. Rickey R. Denson

 

Should the constitutional right of a criminal defendant not to testify and remain silent at trial be recognized as a fundamental right that can only be waived personally by a defendant with an on-the-record colloquy? (Cf., State v. Jaramillo, 2009 WI App39, 316 Wis.2d 538, 765 N.W.2d 855).

 

Should the only appropriate remedy for failure to engage in an on-the-record colloquy regarding the right not to testify at trial be a new trial?

 

Should the failure to engage in an on-the-record colloquy regarding the right not to testify be subject to a harmless error analysis?

 

12/08/2010

REVW

Oral Arg

04/14/2011

4

Rock

Unpub

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

Affirmed

05/03/2011

2011 WI 27

1

Milwaukee

03/31/2010

Pub

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

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

Reversed and Remanded

05/17/2011

2011 WI 32

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

03/09/2011

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

Affirmed

05/10/2011

2011 WI 28

1

Milwaukee

04/26/2010

Unpub

2009AP1351-CR

             State v. Gregg B. Kandutsch

 

May a report from an electronic monitoring device be admitted into evidence without expert testimony as to the scientific validity, accuracy, and reliability of the device?

 

Is a report generated by an electronic monitoring device inadmissible hearsay?

 

01/12/2011

REVW

Oral Arg

04/15/2011

3

Marathon

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

Reversed

05/24/2011

2011 WI 35

3

Oneida

07/28/2010

Pub

2010 WI App 94

325 Wis. 2d 740

787 N.W.2d 54

2009AP1469 /

2009AP1470

             Covenant Healthcare System, Inc. v. City of Wauwatosa

 

Whether a specific hospital outpatient facility is a tax exempt property under Wis. Stat. § 70.11 (4m) (a) (2007 – 08).  (See St. Clare Hosp. of Monroe, Wis., Inc. v. City of Monroe, 209 Wis. 2d 364, 563 N.W.2d 170 (Ct. App. 1997) and St. Elizabeth Hospital, Inc. v. City of Appleton, 141 Wis. 2d 787, 416 N.W.2d 620 (Ct. App. 1987)).

 

12/07/2010

REVW

Oral Arg

04/15/2011

1

Milwaukee

09/29/2010

Pub

2010 WI App 125

*2009AP1505-CR

             State v. Harry Thompson

 

Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson's constitutional due process rights.

 

Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence, therefore entitling Thompson to a new trial.

 

Whether the court of appeals exceeded its authority and neglected to adhere to prior precedent when it decided issues of ineffective assistance of counsel.

 

REVW

05/25/2011

4

Wood

Unpub

2009AP1557

             260 North 12th Street, LLC v. State of Wisconsin

             Department of Transportation

 

Whether there is a risk of double taking implicating due process violations in situations where the state reduces the just compensation award by contamination remediation estimates, while leaving open the potential for penalty assessments against the property owner for remediation costs under other regulations.

 

03/16/2011

REVW

1

Milwaukee

 10/27/2010

Pub

 2010 WI App 138

329 Wis. 2d 748

792 N.W.2d 572

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

2009AP1579

               State v. Edwin Clarence West

 

Does 2005 Wis. Act 434 § 118 (codified at Wis. Stats. § 980.08 (4) (cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent?

 

01/11/2011

REVW

Oral Arg

05/03/2011

1

Milwaukee

Unpub

2009AP1643-CR

               State v. William Dinkins, Sr.

 

Whether a soon-to-be-released prison inmate could be convicted for failing to comply with the address reporting requirement of Wis. Stat. § 301.45 (2) (a) 5 when he allegedly did not have an address at least 10 days prior to his release from prison.

 

03/16/2011

REVW

4

Dodge

12/14/2010

Pub

2010 WI App 163

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

Affirmed

05/24/2011

2011 WI 34

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) © 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

Affirmed

05/17/2011

2011 WI 31

2

Washington

07/28/2010

Unpub

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

04/13/2011

 

2

Walworth

09/29/2010

Pub

2010 WI App 127

*2009AP2057-CR

               State v. David W. Stevens

 

If a suspect in custody initiates communication with the police after previously invoking his Miranda right to consult with an attorney but has yet to again waive his Miranda rights, do the police violate the demands of Miranda by denying an attorney access to the suspect prior to the second waiver of his Miranda rights?

 

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

 

05/24/2011

REVW

2

Waukesha

Unpub

2009AP2176

              Dawn L. Maxwell v. Hartford Union High School District

 

Does a policy of insurance contain actual coverage for amounts due under a performance contract and for lost salary and benefits, triggering a duty to indemnify for such amounts?

 

Does Wisconsin law recognize an exception permitting the application of _stoppels and waiver to create insurance coverage where none exists in the policy when, in the absence of bad faith or a breach of the duty to defend, an insurer provides a defense to an insured but does not issue a reservation of rights letter?

 

If Wisconsin law recognizes the above exception, is prejudice to the insured present as a matter of law, or must an insured prove actual conflict of interest or other harm as a result of the insurer’s provision of the defense?

 

When the element of waiver or equitable _stoppels are met as a matter of law, must the court of appeals remand for the circuit court to exercise its discretion in deciding whether to apply the doctrines?

 

If Wisconsin law recognizes the exception identified above, should the exception have retroactive application?

 

02/08/2011

REVW

2

Washington

09/29/2010

Pub

 2010 WI App 128

329 Wis. 2d 654

791 N.W.2d 195

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

2009AP2385

            Todd Olson v. Robert Farrar

 

What is the scope of review when an insurer provides its insured with an initial defense pursuant to a reservation of rights, moves to intervene, bifurcate and stay the coverage issues from the issues on the merits, and seeks a judicial declaration that the insurer owes no duty to defend nor indemnify?

 

Whether the property damage resulted from “a utility, boat, camp or mobile home trailer” and the “trailer” was attached to a motor vehicle.

 

Whether coverage is precluded by an exclusion in the policy concerning property used by or in the care of the insured.

 

04/12/2011

REVW

4

Monroe

12/14/2010

Pub

2010 WI App 165

330 Wis. 2d 611

794 N.W.2d 245

2009AP2422-CR

               State v. David W. Domke

 

Whether defendant’s counsel performed deficiently at trial under Strickland v. Washington, 466 U.S. 668 (1984) when he believed that testimony of a therapist was admissible over a hearsay objection and was not aware that the exception for medical diagnosis or treatment in Wis. Stat. § 908.03(4) does not apply to a social worker.  See State v. Huntingon, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998).

 

Did a defendant suffer prejudice under Strickland from the cumulative effect of trial counsel’s decision to call the victim’s mother as a witness and his failure to seek exclusion of a therapist’s testimony under Huntington?

 

02/08/2011

REVW

3

Oconto

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

*2009AP2549

               Robert Johnson v. Cintas Corporation

 

Whether the default judgment was void because the summons and complaint named the wrong corporate defendant, meaning personal jurisdiction was never obtained over the correct corporate entity.

 

05/25/2011

REVW

2

Kenosha

01/31/2011

Pub

2011 WI App 5

331 Wis. 2d 51

794 N.W.2d 475

2009AP2768

               Joel Hirschhorn v. Auto-Owners Insurance Company

 

Does a standard pollution exclusion in a homeowner’s insurance policy apply to exclude coverage for a loss caused by an odor emanating from an accumulation of bat guano so severe the house needed to be demolished?

Does the standard pollution exclusion in a homeowner’s insurance policy apply to pollutants that result from natural processes or is the exclusion limited to industrial waste?

 

03/16/2011

REVW

3

Oneida

11/17/2010

Pub

2010 WI App 154

330 Wis. 2d 232

 792 N.W.2d 639

2009AP2784

               Mark Klemm, et al. v. American Transmission

               Company, LLC

 

Whether Wis. Stat. § 32.28 (3) (d) requires litigation expenses to be awarded to a property owner who conveys property in lieu of condemnation with no jurisdictional offer issued, followed by an unappealed condemnation commission just compensation award which exceeds the certified amount paid to the property owner by more than $700 and 15%.

 

01/12/2011

REVW

Reversed

05/26/2011

2011 WI 37

3

Marathon

09/29/2010

Pub

2010 WI App 131

2009AP2795

               Jaymie A. Gister, et al. v. American Family Mutual Ins.

               Co., et al.

 

Whether a charitable hospital that is legally required to provide emergency medical services to all patients, including the uninsured, may enforce a hospital lien (Wis. Stat. § 779.80) on a Medicaid recipient’s personal injury settlement from the tortfeasor as an alternative to billing Medicaid.

 

Whether the hospital is forbidden from billing the patient because the patient was eligible for public medical assistance (See Wis. Stat. § 49.49 (3m)) and, therefore, the patient does not owe a debt to the hospital that could be subject to a lien under Wis. Stat. § 779.80.

 

03/16/2011

REVW

4

Dane

12/14/2010

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)©1.

 

10/27/2010

REVW

Oral Arg

03/01/2011

4

Dane

Unpub

2009AP2907-CR

               State v. Joseph J. Spaeth

 

Whether compelled incriminating statements made to a probation agent as part of a standard requirement of probation under Wis. Admin. Code § DOC 328.04(2)(w) may be considered a “legitimate source wholly independent of compelled testimony” under Kastigar v. United States, 406 U.S. 441 (1972).

 

02/08/2011

CERT

2

Winnebago

 

2009AP2934-CR

               State v. Deandre A. Buchanan

 

Under the totality of the circumstances, did the law enforcement officer have an objectively reasonable suspicion that the defendant was armed and dangerous?

 

Did the trial court err in concluding that contraband found in the defendant’s vehicle was in “plain view?”

 

01/11/2011

REVW

Oral Arg

04/19/2011

3

Trempealeau

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

Affirmed

05/17/2011

2011 WI 30

4

Grant

--

2009AP3029

             Crown Castle USA, Inc. v. Orion Logistics, LLC

 

Whether Wis. Stat. § 816.03 (b) permits a supplemental proceeding against an entity which is neither a party to the action nor a judgment debtor.

 

Whether the court has personal jurisdiction over the entity which is neither a party to the action nor a judgment debtor.

 

04/12/2011

REVW

3

Outagamie

01/31/2011

Pub

2011 WI App 9

___ Wis. 2d ___

794 N.W.2d 272

*2009AP3075

             State v. Basil E. Ryan, Jr.

 

Can a defendant be found guilty under the forfeiture statutes on the grounds of judicial estoppel where the defendant claims he made no statement to a prior court?

 

Did the undisputed facts on the record establish that if judicial estoppel had not been applied, the defendant neither owned nor controlled the barge that sunk in a navigable waterway in order to be liable under the forfeiture statutes for violations of Wis. Stat. ch. 30?

 

If judicial estoppel had not been applied, is there a dispute as to material fact[s] that precludes summary judgment as to whether the defendant owned or controlled the barge to be liable under the forfeiture statutes?

 

Can the summary judgment procedure be employed to find a defendant liable under the forfeiture statues for violations of Wis. Stat. ch. 30?

 

05/24/2011

REVW

1

Milwaukee

02/16/2011

Pub

2011 WI App 21

331 Wis. 2d 491

796 N.W.2d 23

2010AP177

             Suzanne R. May v. Michael T. May

 

Whether an agreement to an unmodifiable child support floor for 33 months violates public policy (Cf. Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834 and Frisch v. Henrichs, 2007 WI 102, ¶74 n.23, 304 Wis. 2d 1, 736 N.W.2d 85).

 

04/13/2011

CERT

4

Dane

--

2010AP355

             Heritage Farms, Inc., et al. v. Markel Insurance

             Company, et al.

 

Whether Wis. Stat. § 26.21 (1) creates a presumptive double damage award once there is a finding that damage occurred through willfulness, malice or negligence.

 

04/12/2011

REVW

4

Portage

01/31/2011

Pub

2011 WI App 12

___ Wis. 2d ___

793 N.W.2d 896

2010AP387-CR

              In the Matter of Sanctions Imposed in State v. Gregory K.

              Nielsen

 

Does the court of appeals’ practice of summarily imposing monetary sanctions in its written decisions violate due process?

 

Does the court of appeals’ practice of summarily imposing monetary sanctions in its written decisions for perceived attorney professional ethics infractions violate due process and impermissibly supplant procedures established by the supreme court for resolving professional ethics issues?

 

Is Wis. Stat. Rule 809.19 (2) Appendix, unconstitutionally vague on its face or as applied for purposes of imposing monetary sanctions?

 

04/12/2011

REVW

2

Racine

Unpub

2010AP445-CR

             State v. Sharon A. Sellhausen

 

Must a circuit court judge sua sponte remove an immediate family member from a panel of potential jurors?

 

If a circuit court judge does not sua sponte remove an immediate family member from a panel of potential jurors, is the defendant entitled to a new trial if the family member did not sit on the jury but the defendant exercised a peremptory strike to remove the family member?

 

02/08/2011

REVW

2

Sheboygan

12/14/2010

Pub

2010 WI App 175

 

2010AP772-CR

             State v. Carl L. Dowdy

 

Do circuit courts have authority under Wis. Stat. § 973.09 (3) (a) to reduce the length of probation?

Do circuit courts have inherent authority to reduce the length of probation?

If a circuit court has inherent authority to reduce the length of probation, what standard of review applies?

 

03/16/2011

REVW

1

Milwaukee

11/17/2010

Pub

2010 WI App 158

___ Wis. 2d ___

792 N.W.2d 230

*2010AP826

             Marco A. Marquez v. Mercedes-Benz USA, LLC

 

What is the proper burden of proof to be applied to an allegation of intentional bad faith on the part of a consumer in a lemon law action under Wis. Stat. § 218.0171, an ordinary burden of proof or a middle burden of proof?

 

05/24/2011

CERT

2

Waukesha

--

2010AP1113-CR

             State v. Jason E. Goss

 

Whether Wis. Stat. § 343.303, which carries a prohibited alcohol concentration of 0.02%, applies to subject a motorist with four prior OWI convictions to a preliminary breath screening test based on a lower level of evidence supporting probable cause.

 

04/12/2011

REVW

3

Eau Claire

Unpub

2010AP1142

             State v. Glen D. Nordberg

 

Whether the court of appeals' decision in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 441, 782 N.W.2d 443, erroneously places the burden of persuasion on the committed patient to satisfy the criteria in Wis. Stat. § 980.08(4)(cg) for granting supervised release from a Chapter 980 commitment.

 

Whether requiring a committed individual to satisfy the criteria for supervised release under Wis. Stat. § 980.08(4)(cg) by clear and convincing evidence is too onerous a burden.

 

03/18/2011

BYPA

4

Jefferson

--

2010AP1937-OA

             Wisconsin Prosperity Network, et al. v. Gordon Myse, et al.

 

Whether Wis. Admin. Code § GAB 1.28 violates constitutional guarantees of free speech.

 

11/30/2010

ORIG

 

4

Dane

--