CURLEY , P.J. 1 Roderick N. Salfinger and Threshold Aeronautics, LLC (we refer to Roderick Salfinger individually as "Mr. Salfinger" and to the co-appellants collectively as "Salfinger") appeal from a final order dismissing Fairfax Media Limited, d/b/a the Sydney Morning Herald, Fairfax Media Publications Party Limited, and Fairfax Digital Australia and New Zealand Party Limited (collectively, "the Fairfax parties") for lack of jurisdiction. 1 On appeal, Salfinger asserts that the...
GUNDRUM , J. 1 Brian Harris appeals from a judgment of conviction for burglary, possession of burglarious tools, criminal damage to property, and criminal trespass, all as a repeater. He contends his Fifth Amendment right against self-incrimination was violated when the circuit court denied his motion to suppress evidence and permitted the State to use at trial incriminating, un-Mirandized comments he made to law enforcement officers while in their custody. Harris made his initial...
NEUBAUER , C.J. 1 Bank of America N.A. (the Bank) appeals from a judgment in favor of Catherine Fricano on her WIS. STAT. 100.18(1) (2013-14) 1 deceptive representation claim. A jury found the Bank's deceptive representation in the sale contract induced Fricano to enter into the purchase of a home from the Bank and awarded her compensatory damages for extensive water and mold damage despite the "as is" and exculpatory clauses in the parties' contract. We reject the Bank's challenge to...
KESSLER , J. 1 Christine Lindemann appeals a judgment of the circuit court pertaining to real estate owned by the Trust of Rene von Schleinitz. Lindemann, one of three trustees, contends that the circuit court erred when it found that a septic system servicing a home ("Hillside Cottage") on the Trust property belonged to the homeowners—her parents—rather than to the Trust. She also contends that the circuit court erroneously denied her request for an accounting of Trust expenses and for...
LaROCQUE , J. 1 Aurora Healthcare, Inc. and HealthPort Technologies, LLC (collectively "HealthPort" except as needed) appeal from non-final orders denying HealthPort's motion for summary judgment and denying its motion for reconsideration. 1 This case involves the construction and interpretation of WIS. STAT. 146.81-146.83 (2013-14) 2 to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health-records-fee statute, 146....
BRENNAN , J. 1 Christopher Joseph Allen comes to this court asking for a new sentencing hearing. He contends that State v. Leitner, 2002 WI 77, 253 Wis.2d 449 , 646 N.W.2d 341 , prohibited the circuit court from considering the fact that Allen had previously completed supervision in a case expunged pursuant to WIS. STAT. 973.015 (2013-14). 1 In Leitner, the Wisconsin Supreme Court held that a sentencing court could consider "the facts underlying a record of conviction expunged...
KESSLER , J. 1 Richard Schoen appeals an order of the circuit court affirming the Board of Fire and Police Commissioners' (the Board) decision to discharge Schoen. The Board first found that Schoen acted with excessive force, in violation of Milwaukee Police Department Rules and Procedures. 1 In determining the penalty, the Board, by an oral decision, initially announced a 60-day suspension for the violation. The Board reconsidered that decision prior to issuing its written decision,...
CURLEY , P.J. 1 The Hertz Corporation (Hertz), Hope L. Russell, and Artisan and Truckers Casualty Company (Artisan) (collectively, "the appealing parties") appeal the trial court's ruling and entry of final judgment in favor of Allstate Insurance Company (Allstate) on Allstate's motion for declaratory and summary judgment seeking a determination that there is no insurance coverage under its policy because the non-owned vehicle involved in the accident was regularly available for the...
KLOPPENBURG , P.J. 1 The question on appeal is the legality of Town of Hoard Ordinance No. 091113, which imposes an annual charge on all property owners within the Town for the cost of fire protection. Pursuant to the ordinance, the Town charged Clark County, as the owner of a medical center in the Town, $3,327.68 for fire protection for 2014. The Town brought this action for declaratory relief in an effort to compel the County to meet its obligation under the ordinance. The Town moved...
REILLY , P.J. 1 The issue presented is whether a municipality may use its police powers to build roads and levy special assessments against the land benefitted after a developer defaults in its obligation to build the roads. The Barony subdivision, a seventy-four lot subdivision in the Town of Omro, received final plat approval in 2004. By 2009, only a few of the lots had been sold and First State Bank had acquired all sixty-five remaining lots in lieu of foreclosure. As of 2009, the...
LUNDSTEN , J. 1 The question here is whether sentence adjustment under WIS. STAT. 973.195 is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. As we explain further in the discussion section below, an enhanced misdemeanor prison term is imposed when (1) a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under WIS. STAT. 973.01(1) is a possibility and (2) the court actually...
NEUBAUER , C.J. 1 Tabitha A. Scruggs appeals from a judgment of conviction for burglary as a party to a crime, which imposed a $250 DNA surcharge pursuant to WIS. STAT. 973.046(1r)(a) (2013-14), 1 and an order denying her motion for postconviction relief vacating the $250 DNA surcharge. At the time Scruggs committed the crime, the imposition of a $250 DNA surcharge for that offense was subject to the court's discretion; however, by the time she was convicted and sentenced, the...
REILLY , P.J. 1 Courtney Sobonya requested expungement of her criminal record at her sentencing for possession of heroin. The trial court denied her request on the ground that granting expungement would undermine the deterrent effect of the court's sentence. Sobonya thereafter retained an expert who opined that granting expungement would not undermine the deterrent effect of the court's sentence and offered his report as a "new factor" relevant to the court's decision on expungement. The...
BLANCHARD , J. 1 Patrick Connors alleges that a foundry where he had been employed negligently allowed bacteria to be dispersed or released into the air, that he inhaled some of these bacteria while visiting the foundry, and that this resulted in illness causing bodily injury. Connors filed this direct action against the foundry's insurer. The circuit court granted summary judgment to the insurer after concluding that a pollution exclusion provision contained in the foundry's insurance...
GUNDRUM , J. 1 Rockie Douglas appeals from a final order of the circuit court affirming the decision of Brian Hayes, Administrator for the State of Wisconsin Division of Hearings and Appeals, revoking Douglas's probation based on his refusal to answer his probation agent's inquiry regarding Douglas's suspected involvement in various criminal activities while on probation. We conclude, pursuant to the Fifth Amendment to the United States Constitution and our supreme court's decision in...
BRENNAN , J. 1 Russell T. Brenner, while working for Hunzinger Construction, fell through a large hole in the floor of a building owned by Milwaukee World Festival, Inc. The accident happened while Brenner was moving a large plywood panel covering the hole. Brenner was severely injured. 2 Brenner and his wife filed suit, alleging negligence and safe-place statute claims against: (1) Milwaukee World Festival, Inc., as the owner of the building at the time of Brenner's fall, and its...
NEUBAUER , C.J. 1 This is an insurance coverage dispute arising out of the allegedly negligent installation of a water pump in a municipal well. In the underlying complaint, the subrogated insurer of the municipal utility sued the water well contractor, alleging negligent work. The water well contractor tendered its defense and indemnity to its commercial general liability insurer, which denied any duty to defend or indemnify. That case settled. The water well contractor then brought...
NEUBAUER , C.J. 1 Ryan Tentoni asserts a privacy interest in text messages sent by him and discovered through a warrantless search of Wayne Wilson's phone. Tentoni seeks suppression of the text messages and other subsequently obtained phone records as fruit of the government's illegal search of his text messages stored in Wilson's phone. Tentoni does not have an objectively reasonable expectation of privacy as he relinquished any claim to privacy in the text messages delivered to...
STARK , J. 1 A dog owned by Amanda Berg and Adam Finkler attacked a dog owned by their neighbor, Joan Kelly. Kelly intervened and was injured in the process. Kelly sued Finkler, Berg, and Berg's homeowner's insurer, Manitowoc Mutual Insurance Company, and a jury awarded her damages for her personal injuries. Berg and Manitowoc (collectively, Berg) appeal, seeking a new trial. 1 Berg argues the circuit court erroneously exercised its discretion by instructing the jury on the emergency...
HIGGINBOTHAM , J. 1 This case concerns the admission of expert testimony and alleged prejudicial statements made during closing argument in a medical malpractice suit. Braylon Seifert suffered nerve damage at birth that resulted in the permanent impairment of his left arm. Braylon brought suit by his guardian ad litem and his parents, Kimberly and David Seifert, (collectively, Braylon) against Dr. Kay Balink, the doctor who delivered Braylon, and ProAssurance Wisconsin Insurance Company (...
