Important Opinions 2009: Wisconsin Supreme Court

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WISCONSIN SUPREME COURT
CIVIL OPINIONS
Administrative Law
A contractor cannot seek judicial review of an award of a state contract.
2007AP476 & 2007AP751 PRN Associates, LLC v. DOA
Issue date: June 22, 2009

Civil Procedure
A premature appeal of decisions relating to attorney fees and costs should be dismissed without prejudice.
2007AP1198 Kenosha Professional Firefighters, Local 414 v. City of Kenosha
Issue date: June 22, 2009

The circuit court did not erroneously exercise its discretion by granting a motion to withdraw admissions.
2007AP308 Luckett v. Bodner
Issue date: July 13, 2009

Constitutional Law
It does not violate the Takings Clause for a condemnor to pay the fair market value of an undivided interest in the property rather than the fair market value of each owner’s partial interest.
2006AP2866 City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Authority of the City of Milwaukee
Issue date: July 27, 2009

Consumer Protection
When a lessee buys a motor vehicle, he cannot recover the purchase price under the Lemon Law; and the award must be reduced for reasonable use.
2008AP1913-CQ Tammi v. Porsche Cars North America, Inc.
Issue date: July 27, 2009

Corporations
A minority shareholder’s direct claim for dissolution based on oppressive conduct survives a merger that eliminates the status as a shareholder.
2006AP3156 Notz v. Everett Smith Group, Ltd.
Issue date: May 4, 2009

Employment
An employee who did not meet all the requirements for retirement benefits has no vested interest in those benefits.
2007AP587 Loth v. City of Milwaukee
Issue date: Jan. 5, 2009

An employee can be eligible for permanent disfigurement benefits, even if none of her scars are visible.
2006AP2695 County of Dane v. LIRC
Issue date: Feb. 2, 2009

The Free Exercise Clause precludes employment discrimination claims under the Wisconsin Fair Employment Act for employees of a private school whose positions are closely linked to the religious mission of a religious organization.
2007AP496 Coulee Catholic Schools v. LIRC
Issue date: July 27, 2009

The WFMLA does not confer an implied statutory right to jury trial in a civil action to recover damages for a violation of the WFMLA.
2007AP1396 Harvot v. Solo Cup Co.
Issue date: July 27, 2009

An unenforceable noncompete clause can be severed from enforceable customer and confidentiality clauses in an employment contract.
2007AP617 Star Direct, Inc., v. Dal Pra
Issue date: July 20, 2009

Evidence
The duty to preserve relevant evidence is discharged when a party or potential litigant with a legitimate reason to destroy evidence provides reasonable notice of a possible claim, the basis for that claim, the existence of evidence relevant to the claim, and a reasonable opportunity to inspect that evidence; such notice can be properly effectuated by mailing a letter via first-class mail.
2006AP3003 American Family Mut. Ins. Co. v. Golke
Issue date: July 20, 2009

Insurance
A vehicle insured by the son of the vehicle’s owner is not a covered auto under the owner’s business policy covering a different vehicle.
2006AP2662 Lisowski v. Hastings Mut. Ins. Co.
Issue date: Feb. 2, 2009

Repeated exposure to asbestos is a single occurrence under a manufacturer’s insurance policy.
2008AP333-CQ Plastics Engineering Co. v. Liberty Mutual Ins. Co.
Issue date: Feb. 2, 2009

A Benefits After Medicare Stops provision in a Medicare Supplemental Insurance policy, or Medigap policy, is ambiguous and must be construed against the insurer to provide coverage at a hospital’s standard rate for a patient’s hospital confinement after her Medicare Part A benefits were exhausted.
2007AP000934 Froedtert Memorial Lutheran Hospital Inc. v. National States Insurance Company, et. al
Issue date: May 18, 2009

An appraisal clause in an insurance contract need not explicitly state that appraisal is binding on the parties to be binding.
2007AP1992 The Farmers Automobile Insurance Association v. Union Pacific Railway Co.
Issue date: July 20, 2009

Labor
Where an arbitrator’s construction of a collective bargaining agreement has a foundation in reason, it cannot be vacated by a court.
2008AP519 Baldwin-Woodville Area School District v. West Central Education Association
Issue date: June 22, 2009

State ratification of a collective bargaining agreement is insufficient to amend the public records law.
2007AP1160 Milwaukee Journal Sentinel v. DOA
Issue date: July 20, 2009

Open Records
An appeal from the circuit court under the open records law must be filed within 20 days.
2007AP2584 Zellner v. Herrick
Issue date: July 20, 2009

Property
A condominium bylaws amendment prohibiting the rental of condominium units is permissible under sec. 703.10(3).
2007AP191 Apple Valley Gardens Ass’n., Inc., v. MacHutta
Issue date: April 6, 2009

A seller’s failure to direct return of the buyer’s earnest money prior to or at the same time suit is filed for actual damages forecloses the seller’s option to seek actual damages for the alleged breach of a residential of
fer to purchase.
2007AP1799 Osborn v. Dennison
Issue date: July 20, 2009

Remedies
Where a county cured its violations of a consent decree before plaintiffs moved for contempt, the county can’t be held liable for remedial contempt.
2006AP803 Christensen v. Sullivan
Issue date: July 27, 2009

Tax
Where property was approved for purchase by an Indian tribe before Jan. 1, 1983, but not formally accepted by the U.S. government until after, the tribe is not entitled to refunds of cigarette taxes paid on cigarettes sold on the property.
2007AP1985 Ho-Chunk Nation v. DOR
Issue date: June 22, 2009

Torts
Damages for forest fires pursuant to sec. 26.21(1) are not limited to railroad corporations; and gross negligence is not required.
2007AP983 Heritage Farms, Inc., v. Markel Ins. Co.
Issue date: April 6, 2009

Cheerleading is a sport within the meaning of the recreational immunity statute, sec. 895.525(4m)(a).
2006AP1886 Noffke v. Bakke
Issue date: Feb. 2, 2009

A nonprofit organization may be entitled to recreational immunity, even though it was incorporated under Chapter 180.
2007AP45 De La Trinidad v. Capitol Indemnity Corp.
Issue date: Feb. 2, 2009

The 1976 Medical Device Amendments to the Federal Food, Drug and Cosmetic Act preempt state law negligence, strict liability and loss of consortium claims.
2006AP1506 Blunt v. Medtronic, Inc.
Issue date: Feb. 23, 2009

Third parties lack standing to sue accountants for misappropriation.
2006AP1573 & 2006AP2290 Krier v. Vilione
Issue date: June 16, 2009

An attorney who provides estate services can be sued by beneficiaries for intentionally aiding and abetting his client’s unlawful act.
2007AP1638 Tensfeldt v. Haberman
Issue date: July 20, 2009

While bystanders may recover when injured by an unreasonably dangerous product, the determination of whether the product is unreasonably dangerous is based on the expectations of the ordinary consumer, rather than a bystander.
2006AP2933 Horst v. Deere & Co.
Issue date: July 20, 2009

A claim for defective design cannot be maintained here where the presence of lead is the alleged defect in design, and its very presence is a characteristic of the product itself.
2006AP2670 Godoy v. E.I. du Pont de Nemours and Co.
Issue date: July 20, 2009

A claim for negligent infliction of emotion distress to a bystander is not actionable against a health care provider.
2006AP2599 Phelps v. Physicians Ins. Co. of Wisconsin, Inc.
Issue date: July 20, 2009

An employer is not liable for the negligence of an employee while he works side jobs.
2006AP2910 Behrendt v. Gulf Underwriters Ins. Co.
Issue date: July 20, 2009

An uphill landowner has no duty to prevent storm water from running from its property to a downhill owner’s property.
2007AP1754 Hocking v. City of Dodgeville
Issue date: July 20, 2009

Federal safety regulations impose a ministerial duty on state actors, and they are not immune for injuries resulting from failure to follow them.
2007AP385 Umansky v. ABC Insurance Co.
Issue date: July 27, 2009

Section 448.30 requires any physician who treats a patient to inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments.
2007AP619 Bubb v. Brusky
Issue date: Aug. 3, 2009

Where medical malpractice results in death, the statute of limitations begins to toll when the patient experienced a physical injurious change.
2007AP541 Genrich v. OHIC Ins. Co.
Issue date: July 13, 2009

CRIMINAL OPINIONS
Criminal Procedure
Where the circuit court had valid concerns that a sequestration order was being violated, it did not violate the defendant’s right to a public trial to bar his family from court during testimony.
2007AP5-CR State v. Ndina
Issue date: March 9, 2009

The trial judge’s mother is objectively biased and can’t serve as a juror.
2007AP400-CR State v. Tody
Issue date: May 11, 2009

A circuit court’s reference to a completed Plea Questionnaire/Waiver of Rights Form does not comply with the requirements of sec. 971.08(1) or other court-mandated duties.
2007AP905-CR State v. Hoppe
Issue date: June 8, 2009

A suspect’s Fifth Amendment rights were not violated when Miranda warnings were given to him before the start of his noncustodial interrogation, but not administered again after his interrogation became custodial during the same interview two-and-one-half hours later.
2007AP672-CR State v. Grady
Issue date: June 22, 2009

A court can require a defendant to present a pretrial summary of evidence of violent acts by the victim that support a claim of self-defense.
2007AP2382-CR State v. McClaren
Issue date: July 20, 2009

It does not violate the Wisconsin Constitution to hold a suspect incommunicado.
2007AP79-CR State v. Ward
Issue date: July 6, 2009

Evidence
Where a defendant claimed self-defense in shootin
g a police officer, it was not error to admit other acts evidence that the day before, he possessed controlled substances.
2007AP1042-CR State v. Payano
Issue date: July 27, 2009

Identity Theft
Where the defendant sent e-mails under an assumed name, the First Amendment does not bar prosecution for identity theft.
2007AP1289-CR State v. Baron
Issue date: June 29, 2009

John Doe Hearings
A judge is not required by sec. 968.26 to examine all the witnesses a complainant produces at a John Doe hearing, or to subpoena all the witnesses a complainant wishes to produce.
2007AP1526-W Robins v. Madden
Issue date: June 22, 2009

Motor Vehicles
Where a driver swerved into the left lane of traffic, an officer has probable cause that the driver violated the traffic code.
2008AP446-CR State v. Popke
Issue date: June 1, 2009

Where a driver was driving unlawfully and crashed his car into a utility pole, the officer had probable cause to believe the driver was intoxicated.
2008AP882-CR State v. Lange
Issue date: June 22, 2009

Search and Seizure
In evaluating whether a warrantless entry is justified by exigent circumstances, the critical factor is whether the underling offense is a jailable or nonjailable offense.
2007AP2095-CR State v. Ferguson
Issue date: June 22, 2009

Police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver.
2006AP1744-CR State v. Denk
Issue date: Jan. 5, 2009

Where a car was stopped on the side of the road with its hazard lights on, a police officer acted within his community caretaker function by stopping.
2007AP1834-CR State v. Kramer
Issue date: Feb. 9, 2009

Probable cause existed for issuance of a search warrant where the affidavit in support of the search warrant is based in part on statements of an unnamed participant in a police sting.
2007AP1139-CR State v. Romero
Issue date: May 18, 2009

Sentencing
For the persisent repeater statute to apply, the date of conviction for the first prior offense must precede the offense date of the second prior.
2007AP2307-CR State v. Long
Issue date: June 1, 2009

Where a defendant picks up a new charge while out on bail, sentence credit need not be applied to both the new offense and the old one.
2007AP1114-CR & 2007AP1115-CR State v. Johnson
Issue date: June 29, 2009

Stalking
A prior conviction for a violent crime is an element of the stalking crime, rather than a penalty enhancer, and is properly submitted to the jury.
2007AP105-CR State v. Warbelton
Issue date: Jan. 26, 2009