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Supreme Court accepts five new cases

Madison, Wisconsin - May 27, 2010

The Wisconsin Supreme Court has voted to accept five new cases. The Court also acted to deny review in a number of cases. The case numbers and counties of origin are listed below. The Court of Appeals’ opinions and certification memo available online for the newly accepted cases are hyperlinked.

2008AP2897 Northern Air Serv. v. Link 
This complicated civil action arises from an intra-family struggle over control and management of a group of companies owned by members of the Link family, including Jay and Jack Link, opponents in this case who have separately petitioned the Supreme Court.

Some background: The father, Jack, and the younger brother, Troy, were aligned against the older brother, Jay, in a dispute over leadership of the companies, which includes Link Snacks, maker of beef jerky and other products.

The parties dispute the exact series of events, but at some point the parties “agreed” to Jay’s termination and a buyout with terms set out in a “departure memorandum.” 

In 2005, Jack and Troy filed an action seeking specific performance of the buy-out, alleging that Jay had breached his fiduciary duty to the companies. Jay counterclaimed, alleging breach of fiduciary duties and seeking rescission of certain stock sales.

Jay claimed the actions taken by Jack and Troy to remove him as an officer and shareholder in the companies were wrong. He sought to recover the difference between what his shares are worth (fair value) and the discounted price at which two of the companies were permitted to redeem his shares (fair market value). Jay claimed he was entitled to a buyout of his shares at fair value on the basis of shareholder oppression.

In January 2008, the circuit court for Washburn County granted summary judgment to Jack and Troy on their specific performance claims, but held that the claims of breach of fiduciary duty and oppression required a trial. Those two issues proceeded to a jury trial in May 2008. The issues were divided into three phases, and the jury deliberated four weeks.

The jury found that Jay breached fiduciary duties and the departure memorandum and interfered with Link Snack’s prospective economic advantage. The jury also found that Troy breached his fiduciary duties to Jay and that Jack breached his fiduciary duties to Jay by forcing Jay out of the various family owned companies in alleged violation of company bylaws in a covert effort to acquire Jay’s shares for less than their fair value. The result was a compensatory damage award of $763,000 and a $5 million punitive damages award. The jury also concluded that Jack breached his duties intentionally or in reckless disregard of Jay’s rights.

The parties ask the Supreme Court to examine issues involved in waiver of appellate rights, the “benefit-estoppel doctrine” and requirements for filing post-trial motions when a case is split up into separate issues by the trial court. The benefit estoppel doctrine provides that a party to an appeal may be held under certain circumstances to have waived its right to appeal to the extent it has voluntarily accepted the benefits of the judgment it is challenging. The Supreme Court also is asked to examine the application and effect of jury instructions on punitive damages in the context of complex litigation. From Washburn County.

2009AP2973 Tammy W-G. v. Jacob T.
This certification asks the Supreme Court to revisit a previous Court of Appeals’ decision and to resolve a question involving the interpretation of one of the grounds for termination of parental rights. At issue here is subsection (6) of Wis. Stat. § 48.415, addressing whether a parent has established a “substantial parental relationship” with the child.

Some background: Tammy and Jacob lived together throughout Tammy’s pregnancy and several months after their daughter’s birth in January 2005. According to Tammy, Jacob attended most of her medical appointments during the pregnancy and was present the girl’s birth. After the birth, Tammy described Jacob as a “stay at home dad” who provided primary care to the girl for approximately four months, both before and after Tammy returned to work.

In May 2005, however, Tammy separated from Jacob and took the girl with. Jacob had very limited contact with the girl after the separation. In April 2009, Tammy filed a petition seeking termination of his parental rights under § 48.415(6), alleging he had essentially no relationship with the child for about four years and that he was a sloppy parent during the months he cared for the child.

Wis. Stat. § 48.415(6) provides that “failure to assume parental responsibility” is a ground for termination. 

This ground requires proof that “the parent ... ha[s] not had a substantial parental relationship with the child.”  Wis. Stat. § 48.415(6)(a).  “Substantial parental relationship” is defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.”  Wis. Stat. § 48.415(6)(b). 

The only ground for termination litigated at the fact-finding hearing in August 2009 was Jacob’s alleged failure to assume parental responsibility.

The Court of Appeals asks the Supreme Court whether State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, requires the court to interpret Wis. Stat. § 48.415(6) as a stand-alone test for unfitness, rather than as a threshold question addressing whether a person has a constitutionally protected parental right requiring a finding of unfitness before parental rights may be terminated?

The Court of Appeals also asks that if Quinsanna D., requires the court to interpret Wis. Stat. § 48.415(6) as a stand-alone test for unfitness, does this the statute comport with constitutional protections afforded parents? From Grant County.

2009AP118 State v. Burns 
In this child sexual assault case, the Supreme Court is asked to review if a new trial must be held in the interest of justice because the case was not fully tried. The defendant contends his case was not fully tried because the circuit court prevented certain evidence from being introduced, and because the state argued there was no other explanation for the victim’s post-assault behavior other than the defendant’s guilt.

Some background, according to the Court of Appeals: Alan Burns was charged with 12 counts of second-degree sexual assault of a 14 year-old relative in 2004. Eleven of the counts were by reason of sexual contact, and one by reason of sexual intercourse.

After reporting these assaults by Burns, the alleged victim disclosed that she had been repeatedly sexually assaulted by another male relative since she was four years old, most recently in 2004. Before Burns’ trial, the other relative was charged with three counts of repeated sexual assault of a child. Those charges remained pending at the time of Burns’ trial. The other relative was later convicted of two counts.

At some point during the investigation, the girl told the police (1) that she had said to a friend that she had been a virgin prior to Burns' assault and that she didn't think she was a virgin any longer, (2) that she was worried about being pregnant, and (3) that the other relative had never molested her.

Burns filed a motion in limine asking for the ability to cross-examine the girl regarding these statements and her claims against the other relative. The state asserted that cross-examination on these points would run afoul of Wisconsin's rape shield law, Wis. Stat. § 972.11(2). Burns acknowledged that his requested cross-examination did not come within a statutory exception in the rape shield law, but he argued that he was nonetheless entitled to question the girl on these topics because of his constitutional right to present a defense.

The circuit court denied Burn's motion in limine and prohibited him from questioning the girl regarding her abuse allegations against the relative. With the jury unaware of those allegations, Burns called the relative to the stand, where he testified that the girl was untruthful. In addition, during closing argument, the prosecutor argued that there was nothing else going on in the girl's life that would have caused her abnormal behavior. The jury ultimately found Burns guilty on all counts presented to it.

Burns filed a post-conviction motion for a new trial. The circuit court dismissed the count alleging sexual intercourse due to insufficient evidence, but denied the remainder of the motion relating to the counts alleging sexual contact. The circuit court concluded that the real controversy on those counts was the girl's credibility, which had been fully tried.

Burns appealed the judgment convicting him of ten counts of second degree sexual assault of a child under 16 years of age, in violation of Wis. Stat. § 948.02 (2007-08), and the order denying his post-conviction motion for a new trial. Among other things, he argued that the prosecutor's closing argument had improperly asked the jury to infer a fact (there was no other reason for the girl's abnormal behavior) that the prosecutor knew to be false because of the pending allegations against the other relative. See State v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372. The Court of Appeals concluded that the prosecutor's argument, even if improper, did not mean that the real controversy in Burns' case had not been tried, and affirmed the convictions for unlawful sexual contact.

The Supreme Court may determine, among other things, whether the prosecutor's argument was proper, and if so, whether it prevented the real controversy from being fully tried, especially in light of the circuit court's order preventing Burns from questioning the girl about her allegations of abuse against the other relative. From Richland County.

2009AP120 Dawson v. Town of Jackson 
This case examines the process involved for vacating highway property located along the border of two townships. The Supreme Court is asked to review whether votes cast by members of two town boards at a joint meeting are to be counted as if the boards voted as one. The Court also is asked to review if the property owners who applied with each town to have a portion of the highway vacated should have been precluded from seeking a declaratory judgment and if they should have been prevented from asserting any position inconsistent with their prior actions and representations to the town boards.

Some background: Dale Dawson, Gudrun Dawson and Edward Thomas (the Dawsons) applied to both towns, Cedarburg and Jackson, seeking to vacate a portion of the town highway known as Wausaukee Road. By letter dated Aug. 30, 2007, the Dawsons requested a joint meeting of the town boards to consider their application. The joint meeting took place on Jan. 9, 2008. The town board for each municipality consists of five members. All five Jackson board members attended the meeting, but only three members of Cedarburg’s board were present.

The public portion of the hearing closed, and the town board members proceeded to discuss the application and to vote. Each town, on its own motion, voted separately. Jackson voted 5-0 to vacate a portion of Wausaukee Road per the application and Cedarburg voted 3-0 not to vacate.

On Jan. 14, Jackson recorded a highway order with the Washington County Register of Deeds to vacate that portion of Wausaukee Road. The Town of Cedarburg did not acknowledge that highway order.

On June 20, 2008, the Dawsons commenced a declaratory action seeking a determination that the portion of Wausaukee Road in question had been discontinued. The Dawsons then moved for summary judgment. Jackson supported the Dawsons’ motion; Cedarburg argued that the Dawsons should have sought certiorari review under Wis. Stat. § 82.15. It further argued that the votes of both town boards at the Jan. 9, 2008 joint hearing should not have been counted as a whole, with five in favor and three against; rather, the result was unanimous support from Jackson but unanimous rejection by Cedarburg and the application should have been denied.

The circuit court determined that declaratory relief was an appropriate vehicle for the Dawsons to pursue relief.  The court ruled that under Wis. Stat. § 82.21(2), the votes at the joint hearing were properly counted in the aggregate.  The circuit court did not address estoppel.  The court thus granted the Dawsons’ motion for summary judgment.  Cedarburg appealed and the court of appeals affirmed.  This petition followed. From Washington County.

2009AP828 Tews v. NHI, LLC 
In this case, the Supreme Court is asked to review a series of questions about procedural issues and requirements for the filing of documents related to summary judgments, motions to dismiss and affidavits.

Some background: On Dec. 30, 2004, the plaintiff was burned over 70 percent of his body when he walked into a Wisconsin Electric Power Company electrical substation fenced enclosure on private property owned by Nasco, the plaintiff's employer, in Fort Atkinson.  The plaintiff filed suit on Sept. 26, 2007, naming “WE Energies” as the defendant.  With leave of the trial court, based on the relation back theory, the plaintiff filed and served his second amended complaint labeling WEPCO as the proper name of the defendant on Oct. 29, 2008.  WEPCO is a wholly owned subsidiary of Wisconsin Energy Corporation.  WEPCO filed a timely answer.

On Dec. 22, 2008, WEPCO filed a document titled “Notice of Motion and Motion for Summary Judgment” to be heard on Jan. 29, 2009. No affidavit was filed with the motion.  A brief accompanying the motion alleged that the plaintiff failed to file suit against WEPCO until Oct. 29, 2008, after the statute of limitations under § 893.54, Stats., had run.  In its brief, WEPCO referenced not only § 802.08, the summary judgment statute, but also the case of Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860 (2001) for the proposition that a defendant may obtain summary judgment by establishing that the action was not timely filed. 

On Jan. 22, 2009, five business days before the hearing, WEPCO filed an affidavit stating the factual basis for summary judgment.  On January 23, the plaintiff filed a response affidavit, recognizing that WEPCO’s motion might have then been converted into a summary judgment motion.  Plaintiff’s counsel also filed a motion to extend the five-day period for serving affidavits opposing summary judgment under §§ 802.08(2) and 801.15(2)(a).

At the Jan. 29, 2009 hearing, the trial court commented that WEPCO’s initial filing without an affidavit appeared to be motion to dismiss.  However, the court denied the plaintiff's motion to extend the time for filing his response affidavit by one day, denied his request for an adjournment, and granted a default summary judgment because the plaintiff had failed to raise an issue of fact by affidavit in a timely manner.  The plaintiff appealed, and the Court of Appeals affirmed.

The Court of Appeals noted that § 802.06(2)(a) provides that a defendant may raise a statute of limitations defense by motion, and § 802.06(2)(b) provides that the motion shall become one for summary judgment only if matters outside the pleadings are presented.  The Court of Appeals reasoned that in this case WEPCO’s original motion raising the statute of limitations issue was not a motion for summary judgment because it relied exclusively on the allegation in the plaintiff’s complaint about the date of his accident and the filing date of the complaint, without reference to any facts outside that pleading. 

The Court of Appeals said the labeling of a motion is irrelevant, see Buckley v. Park Building Corp., 27 Wis. 2d 425, 431, 134 N.W.2d 666 (1965).  Thus, the Court of Appeals said the proceeding did not become one for summary judgment until such time as the plaintiff introduced matters outside the pleadings on his relation back argument.  The Court of Appeals reasoned once the plaintiff raised factual issues outside the pleadings, it became his burden to set forth his evidence as required by § 802.08(3) and to do so no later than five days before the scheduled hearing.  See § 802.08(2).  It said the plaintiff failed to do this and failed to show excusable neglect. Under the circumstances, the Court of Appeals concluded that the trial court reasonably exercised its discretion when it refused to excuse the plaintiff’s delinquency and refused to consider his untimely affidavit. 

The plaintiff argues that no Wisconsin court has been faced with a fact situation where a motion begins in substance as one for dismissal but then is deemed to be converted into a motion for summary judgment by a responding party's filing of brief in response to a motion to dismiss, with no affidavit, and then when the moving party finally does file an affidavit in support of summary judgment, the responding party is time barred from replying with a contrary affidavit. 

The plaintiff says the Court of Appeals determined that without filing any affidavit, but by filing a brief that would be disregarded because it was not an affidavit, the summary judgment process in this case began on Jan. 13, 2009.  The plaintiff says the Court of Appeals failed to explain how an argument in a brief could convert a motion to dismiss into a motion for summary judgment.  The plaintiff says nonetheless the Court of Appeals concluded that the affidavit filed by plaintiff's counsel one day after the filing of WEPCO’s first affidavit failed to introduce evidence to show that the plaintiff's amended pleadings should relate back to his original complaint. 

The plaintiff reasons that under the lower courts’ view, the only way he could have filed a “timely” affidavit under § 802.0892) was to do so in the one hour and 15 minutes between the 3:15 p.m. receipt by his attorneys of WEPCO’s first affidavit and the 4:30 p.m. closing of the Jefferson County circuit court clerk’s office that same day.  From Jefferson County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

2010AP802-W Spencer v. Cray

2009AP1265-CR State v. Johnson

2008AP1558  Edwards v. Casperson
2008AP2691  State v. Mitchell
2008AP2903  Heimermann v. Thurmer
2009AP297/98-CRNM State v. McCord
2009AP482  Palisades Collection v. Kalal

2009AP204  Williams v. Schwarz

Eau Claire
2008AP3166  State v. Gallentine
2009AP942  Viscusi v. Progressive

2009AP689-CR State v. Sergent

2007AP2338-CR State v. Anderson
2009AP83-CR  State v. Marinez

2008AP3157-CR State v. Diaz
2009AP413-CR State v. White
2010AP775-W Roy v. Wilk

La Crosse
2009AP695  State v. Schumacher

2009AP1704  Maus v. Pollard

2009AP633-CR State v. Awe - Chief Justice Shirley S. Abrahamson dissents.

2008AP2316-CRNM State v. Grant
2008AP2393  State v. Benny O.
2008AP2520-CR State v. Rodriguez
2009AP428-CRNM State v. Fernandez
2009AP708-CR State v. Rittman
2009AP1387-CR State v. Smith
2009AP1964  State v. Jennifer M.
2009AP2005-CR State v. Piotter
2010AP699-W Madyun v. Cir. Ct. Milw. Co.

2008AP1852  State v. Henk

2009AP1059-CR State v. Krauss

2009AP725  State v. Taylor
2009AP1124-CR State v. Burnett

2009AP339-CR State v. Phiffer
2009AP507  Vohs v. Donovan - Chief Justice Shirley S. Abrahamson dissents.

2009AP209  Propp v. Sauk Co. BOA

2008AP2875  Baumgartner v. Bilotti

2009AP1015  State v. Foster
2009AP1764-67 Walworth Co. DHHS v. Wilvina S.

2008AP3159-CR State v. Gabelbauer - Justice Annette Kingsland Ziegler did not participate.
2009AP2791-CRNM State v. McAdory

2008AP2278-CR State v. Totzke
2009AP733-CR State v. Davis

2008AP3245/46 State v. Rhoades

2010AP501/02 Wilkins v. Cir. Ct. for Winnebago Co.

Tom Sheehan
Court Information Officer
(608) 261-6640

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