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Supreme Court accepts seven new cases

Madison, Wisconsin - January 17, 2007

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

2005AP1034 Kristie L. M., et al v. Dennis E. M.
Did the lower courts infringe on petitioner’s constitutional right to have a relationship with his child when they expanded the definition of “severe” bruising under certain statutes to include any bruising? (Links are not available to cases disposed of by summary order). From Dodge County

2005AP1629 G. Stone, et al v. Acuity
This case presents the question whether an insurer must notify an insured of the availability of additional underinsured motorist (UIM) coverage as an option within a personal umbrella endorsement and, if so, whether retroactive coverage is an appropriate remedy for an alleged failure to comply with such notice requirements. 

G. Vaughn Stone was riding his bicycle when he was hit by a van. Stone had UIM coverage with Acuity, but brought action seeking more money under an umbrella policy. Acuity argued the umbrella policy did not provide UIM coverage, but the trial court ruled wording of the umbrella endorsement was ambiguous and awarded Stone $500,000.

The appeals court affirmed, deciding Acuity failed to comply with proper notification requirements for UIM coverage, and that the insured was entitled to supplemental insurance as a remedy. Acuity asked the Supreme Court to review. From Milwaukee County

2005AP1945 John Doe 1, et al v. Archdiocese of Milwaukee
This case consolidates three lawsuits involving allegations of sexual abuse by Roman Catholic priests, one of whom is now dead. In 2005, three John Does sued the Archdiocese of Milwaukee for fraud and negligent supervision. They claimed that a priest had abused them at times from 1973 to 1976, and that the Archdiocese was aware at the time the priest had previously been convicted of sexually molesting a child but did not disclose it. In another case, a man alleged that another priest had sexually abused him during the early 1980s. Like the John Does, he alleged claims for fraud and negligent supervision. The circuit court dismissed the plaintiffs' claims, citing the statute of limitations. The court of appeals affirmed. The plaintiffs contend that the statute of limitations should not have started to run until they become aware of the prior conviction and earlier incidents of abuse in 2004, making their lawsuits timely. The Supreme Court is expected to determine if the statute of limitations bars their claims. From Milwaukee County

2005AP2202-CR State v. House
This criminal case addresses whether a circuit court properly denied a motion to suppress evidence obtained through the interception of cellular telephone calls. Jeffrey Allen House was among a group of people charged with conspiracy to deliver cocaine. Wisconsin statutes set out a procedure for law enforcement officials to apply for a court order to intercept calls. However, such law enforcement tools are only available to investigate certain crimes. House contends an order from the chief judge of Milwaukee County was unlawful because it authorized the interception of communications relating to racketeering and money laundering, which he contends fall outside the scope of the statute. He concedes drug offenses fall within the scope of the statute, however. The Supreme Court is expected to rule if the wiretap was lawful. From Milwaukee County

2005AP2492 J. Russ v. E. Russ
This case, which was certified by the District I Court of Appeals, involves an apparent conflict between rules governing joint bank accounts and those governing fiduciary duties of an agent under a durable power of attorney. The joint banking rule provides that an owner of a joint bank account may withdraw and use funds in the account as the owner chooses, even if the funds were deposited by another owner. The power of attorney rule provides that an agent owes fiduciary duties to the person executing the power of attorney. The Court of Appeals has asked the Supreme Court to determine which rule should control when both are apparently applicable.

In approximately 1992, Johnnie Russ moved into the home of her son Elliott and opened a joint bank account with him. Johnnie's income was deposited into the account and Elliott used it for various purposes. In 1999, Johnnie signed a durable power of attorney, appointing Elliott as her agent. The power of attorney remained in effect until Oct. 10, 2002, when Johnnie was declared incompetent and Marion Schwartz was appointed as her guardian. On March 10, 2003, Schwartz sued Elliott Russ on behalf of Johnnie Russ to recover funds that Elliott had spent for purposes other than taking care of his mother after the signing of the power of attorney. The trial court initially ruled that Elliott had breached his fiduciary duty under the power of attorney by depositing Johnnie's income into a joint bank account where another person had access to it. But the court denied a money judgment. The trial court ultimately concluded that Elliott was not obligated under the terms of the power of attorney agreement to account separately for Johnnie Russ' money and effectively modified its decision. Schwartz appealed. From Milwaukee County

2005AP2743 A. Rouse v. T. Clark Medical Center, et al
In this medical malpractice case, Aaron T. Rouse appeals from a judgment dismissing his claim against the University of Wisconsin Hospitals & Clinics Authority (WHCA). He maintains the trial court erred in holding that UWHCA is a political corporation entitled to protection.

In May 2001, Rouse was involved in a motor vehicle accident and initially treated at Theda Clark Medical Center, Inc., and then at UWHCA’s facility in Madison. In September 2004, Roused filed medical malpractice actions against both the medical center and UWHCA. UWHCA filed motions to dismiss, claiming Rouse failed to file proper notice of his claim in the manner required for in cases involving a political corporation. The circuit court dismissed the case, and the appeals court affirmed the decision. From Calumet County

2005AP2837 Trinity Petroleum v. Scott Oil Co., Inc.
This case, involving a dispute between a petroleum products provider and a distributor, addresses the state’s frivolous claims statutes. After summary judgment was granted in its favor, Scott Oil Co. moved for frivolousness sanctions against Trinity Petroleum Inc. The circuit court denied the motion because those statutes had been repealed by the time the motion for sanctions was filed, and Scott Oil did not comply with procedural mandates of the new statute. The appeals court affirmed. A Supreme Court decision is expected to determine if the newer statute applies retroactively. From Waukesha 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). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court.

Petitions for writs

Marathon County

  • 2006AP2813-W State ex rel. Da Vang v. Wis. COA
  • 2006AP2720-W State ex rel. Hall v. DOC

Milwaukee County

  • 2006AP2689-W State ex rel. Flores v. COA
  • 2006AP2751-OA Von Flowers v. Watters
    Justice N. Patrick Crooks did not participate.
  • 2006AP3021-W State ex rel. Darne v. Hill
  • 2006AP3071-W State ex rel. Leiser v. Wallace

Winnebago County

  • 2006AP 2828-W State ex rel. Zehner v. Adashun

Petitions to bypass

Marathon County

  • 2006AP910 O’Grady v. Marathon Co.

Sheboygan County

  • 2006AP187 Marriage of: Doherty

Petitions for review

Brown County

  • 2005AP3132 State v. Doughty
  • 2006AP441 State v. Stordeur
    Justice N. Patrick Crooks did not participate.
  • 2006AP555 Int. of Richard J.D. and 2006AP556 State v. Richard J.D.
  • 2006AP799-CR State v. Jones
  • 2006AP1031 Brown Co. DHS v. Virjean L.

Columbia County

  • 2005AP2515 Algee v. Divine Savior

Crawford County

  • 2006AP745-CR State v. Wayne

Dane County

  • 2005AP1093 Kroeplin v. Wis. DNR and 2005AP2427 Lakeland Times v. DNR
    Justice Patience Drake Roggensack dissents.
  • 2005AP1619-CR & 2005AP2399 & 2005AP2622 State v. Obriech
  • 2005AP1647-CR State v. Mitchell
  • 2005AP2108 Sehmann v. General Casualty Ins. Cos.
  • 2005AP2128-CR State v. Lynch
  • 2005AP2480-CR State v. Harmon
  • 2005AP2613-CR State v. Dahl
  • 2005AP2614 Wantuch v. Luebow
    Justice David Prosser Jr. dissents.

Douglas County

  • 2006AP645-FT Kampa v. LIRC

Dunn County

  • 2006AP598-CR State v. Chas. S.

Eau Claire County

  • 2005AP2708 State V. Huusko
  • 2006AP161-CR State v. Halvorson
    Justice Louis B. Butler Jr. dissents.

Grant County

  • 2006AP501 Milprint v. Flynn
    Justice David Prosser Jr. and Justice Patience Drake Roggensack dissent.

Iowa County

  • 2005AP1613 Olson v. Darlington Mutual
    Chief Justice Shirley S. Abrahamson dissents.

Jefferson County

  • 2005AP1293-CR State v. Vogelsberg
  • 2005AP1317 State v. Grosskopf

Kenosha County

  • 2005AP1306-CR & 2005AP1307-CR State v. Cibario
  • 2005AP1594 & 2005AP1595State v. Witkowski

La Crosse County

  • 2004AP2211-CR State v. Goyette

Lincoln County

  • 2006AP99-CR State v. Ohlmann

Marathon County

  • 2005AP2009 & 2005AP2010 & 2005AP2011 State v. Smith
  • 2006AP678-CR State v. Rockman

Milwaukee County

  • 2004AP3098 State v. Jarmon
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
  •  2005AP1580-CR State v. Jackson
  • 2005AP2003 Cuellar v. Ford Motor
    Justice Patience Drake Roggensack did not participate.
  • 2005AP2072 State v. Crawford
  • 2005AP2457-CR State v. Kuhn
    Justice David Prosser Jr. did not participate.
  • 2005AP2766 State v. Blunt
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
  • 2005AP2805-CR State v. McKay
  • 2005AP3059 State v. Wheeler
    Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
  • 2006AP1026-W State ex rel. Williams v. Grams
  • 2006AP1304 thru TPR to: Jesus D.-P., Reynalis P., Jeremy D. -P and Tania A.
  • 2006AP1307 State v. Tania P.
  • 2006AP1649-W State ex rel. Lee v. Endicott
  • 2006AP2131-W State ex rel. Gilmore v. Pollard

Oneida County

  • 2006AP686-CRNM State v. Kikkert

Pierce County

  • 2004AP1331-CR State v. Hipler
  • 2006AP1157-CR State v. Ingli

Racine County

  • 2005AP2516 State v. Miller
  • 2005AP2557-CR State v. Jones
  • 2005AP2759 State v. Pryor
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP68 Foreclosure Action: Osterberg v. Lincoln State Bank
  • 2006AP545 State ex rel. Borzych v. Kingston

Shawano County

  • 2005AP2983 Thusuis v. Hintz
    Chief Justice Shirley S. Abrahamson dissents.
  • 2006AP1001-CR State v. Gumieny

Walworth County

  • 2005AP2160 Maize v. Blaedow

Washington County

  • 2006AP22 Singer v. Rutter
    Justice Patience Drake Roggensack dissents.

Waukesha County

  • 2006AP251-CR State v. Eckert

Waupaca County

  • 2005AP2024 State v. Dopke

For more information contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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