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Supreme Court accepts five new cases

Madison, Wisconsin - January 11, 2008

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, issues, and counties of origin are listed below. Court of Appeals opinions/certification memos available online for the newly accepted cases are hyperlinked.

2005AP3093  Manning v. Necedah Area School District
This case, which involves a bus driver who was accused of fondling students, addresses questions about the duty of school officials to report suspected sexual contact.

The Court of Appeals affirmed, concluding that the plaintiffs failed to show the Necedah Area School District breached a ministerial duty under § 48.981, Stats., to report suspected abuse. The Court of Appeals also concluded that the facts of record did not support a finding of a known and present danger.

The Supreme Court has been asked to determine whether the legislature, in enacting Wis. Stat. § 893.80(4), intended to limit immunity to matters involving governmental legislation or judicial discretion. More specicially in this case, if immunity is available given the circumstances. From Adams County.

2006AP424  Sanders v. Estate of Sanders
This case, which is before the Court for a second time, could help clarify when an order in a probate case can be considered final for the purpose of appeal. The Court of Appeals dismissed Diana Sanders’ 2002 appeal as premature; it dismissed a 2006 appeal as belated.

Some background: In 2000, following a will contest, David Sanders’ will was admitted to probate, giving his assets to his brothers and nephews and expressly excluding his wife, Diana. Diana and the estate disputed the value of property and the characterization of the assets as marital property.

The parties eventually reached some agreement, but some disputes remained about how much Diana would have to pay for farm property, based on different outside offers. On June 12, 2002, the trial court granted the guardian ad litem’s motion for relief from the settlement agreement and ordered the parties to pursue an $800,000 offer that was contingent on rezoning. Diana, who would be required to pay half the value, sought to purchase the property based on one half of a $375,000 offer.

Diana appealed, and in a Feb. 4, 2003 summary order, the Court of Appeals dismissed the first appeal, concluding the previous court orders were not final.

In 2006, the Supreme Court granted Diana’s first petition for review of an order dismissing for the second time her appeal in the in the probate of her husband’s estate.

This court summarily vacated the 2006 dismissal order and remanded to the Court of Appeals for consideration in light of two other cases. On remand, the Court of Appeals again concluded her appeal was belated and dismissed.

In this petition for review Diana raises one issue:  Whether a February 10, 2006 probate order was final for purpose of appeal. From Waupaca County.

2006AP1239-CR  State v. Her
This criminal case examines whether the state breached a plea agreement by acknowledging at a sentencing hearing that its sentencing recommendation pursuant to the plea agreement had been based on a factual error.

Some background: On Oct. 25, 2000, Her and an associate, Tong Xiong, were stopped by a Sheboygan police officer. Xiong and Her sped off after the officer determined that the care they were riding in had been stolen in Michigan. They subsequently broke into a rural home, pointed a deer rifle at the homeowner and bound the homeowner’s hands and feet before stealing his vehicle.

Approximately two years later, Xiong was arrested and ultimately pled guilty to one count of false imprisonment while armed and masked and one count of carjacking while masked. The circuit court sentenced Xiong to 10 years of initial confinement and five years of extended supervision on false imprisonment count and fifteen years of initial confinement and ten years of extended supervison the carjacking count -- to be served concurrently.

In 2004, police were finally able to track down and arrest Her, who was initially charged with the same offenses as Xiong plus a third count of intimidating a witness.

Operating under a mistaken recollection of the sentence Xiong received, the district attorney offered Her a plea agreement including ten years of initial confinement and five years extended supervision – five years fewer initial confinement.  Her accepted the agreement and entered the appropriate pleas.  The district attorney realized his mistake prior to sentencing and told Her's counsel that while he would stick with the agreed-upon sentencing recommendation, but would acknowledge his mistake at the sentencing hearing if questioned by the court.  The court did question the district attorney and he explained his mistake in making the plea offer, but still made the agreed-upon recommendation.

Her filed a motion alleging that the state had breached its plea agreement. Her also claims ineffective assistance of counsel for failing to object to the alleged breach of plea agreement.

The Court of Appeals concluded that the district attorney’s honest answer to the court’s inquiry about the disparity in sentences did not constitute a breach of the plea agreement.

A decision by the Supreme Court could clarify the competing interests created by a plea agreement, which is subsequently undermined by truthful comments by a prosecutor. From Sheboygan County.

2006AP1566  Estate of Dale Otto v. Physicians Ins. Co.
This medical malpractice case involving two doctors, a medical clinic and their insurers, examines whether a default judgment was properly entered against an insurance company that allegedly failed to file a timely answer.

Some background: In 2003, the estate of Dale Otto and his surviving family members alleged that two physicians failed to diagnose that Mr. Otto’s gastroesophageal reflux disease had been replaced by metastic esophageal cancer. They suit named the two doctors, the clinic and two fictitious insurers.

The names of the fictitious insurers were replaced in an amended complaint with two real insurance companies, including Physicians Insurance Co. (PIC). The doctors and the clinic filed an answer in which they denied liability, but PIC was not listed in the text of the answer nor the signature block.

The attorney representing the doctors and clinic, who also had done work on behalf of PIC in the past, said his office had forgotten to include PIC on the list of answering defendants. The estate contends more than a dozen additional filings also failed to include PIC, however.  After several months of further proceedings in the case and PIC's motion for leave to file an amended answer that included PIC, the estate moved for a default judgment against PIC, which the circuit court granted.  The estate also dismissed its claims against the doctors and clinic.  The circuit court found PIC was liable to the plaintiffs in the total amount of $801,760, which was reduced slightly on appeal.

The court of appeals concluded that because PIC had failed to show excusable neglect for its untimely answer, the circuit court had properly entered a default judgment against PIC regardless of the timely answer by PIC's insureds.

Since an insurer's liability derives from the liability of its insured, PIC asserts that it would be absurd to adjudge the provider defendants’ insurer liable for their negligence when the provider defendants themselves could have litigated the matter to completion and obtained a finding of no negligence and a dismissal of the plaintiff’s complaint.  PIC argues that the result of its default should at most be a finding that it had conceded providing coverage to the doctors and clinic.

The court is expected to address whether an insurer's default should result in a judgment against it for the full amount of the plaintiff's claimed damages where the insurer's insureds have filed a timely answer and denied liability. From Dunn County.

2006AP1379-CR  State v. Bruce Duncan MacArthur
This certification involves the interpretation of the statutes of limitation and whether it applies to crimes committed before the enactment of Wis. Stat. ch. 948.

Some background: In 2006, the state charged an 84-year-old former hospital Chaplin with several counts of sexual assault between March 1965 and June 1972 of three female minors who had been hospital patients. The criminal complaint states that MacArthur moved from Wisconsin in 1970. He was arrested in Missouri and waived extradition. His motion to dismiss was based upon the statute of limitations was denied. The District IV Court of Appeals granted MacArthur’s petition for leave to appeal and the state’s petition for cross-appeal.

The state claims that the six-year statute of limitations was in effect at the time of the offenses. MacArthur claims the applicable statute was the one in effect in 2006, when the charges were brought. From Dodge 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.

Petition for Supervisory Writ 


  • 2007AP2527-W Sundsmo v. Columbia Co.


  • 2007AP2517-W Tiggs v. COA


  • 2007AP2454-W Hansen v. Ct. App.


  • 2007AP2579-W Maldonado v. Schwarz


  • 2007AP1607-W Morris v. Ct. Appl. Dist. IV

Petitions for review


  • 2007AP4  Walczak v. Kum and Go


  • 2005AP2657-W Gant v. Endicott
  • 2005AP2672  State v. Cockrell
  • 2006AP1201-02 Dane Co. v. Robert A.
  • 2006AP1411-CR State v. Bong
  • 2006AP1611  Metz v. Vet. Exam. Bd.
  • 2006AP2660  Connolly v. Fok
    Justices Ann Walsh Bradley, N. Patrick Crooks and Patience Drake Roggensack did not participate.
  • 2007AP96  Robertson v. DWD


  • 2005AP3004-NM State v. Owens

Fond du Lac:

  • 2006AP1627  Mark v. Schwarz


  • 2006AP3014  Schuett v. Hanson
    Justice Patience Drake Roggensack dissents.


  • 2006AP1475  State V. Smalley


  • 2006AP2166-CR State v. Heibing


  • 2006AP2909-CR State v. Smith


  • 2005AP206-CRNM State v. Salazar
  • 2005AP1843  State v. Gregory
  • 2005AP2345  State v. Werns
  • 2005AP3108  Huber v. Benik
  • 2006AP349  Satterfield v. Schwarz
  • 2006AP366-CR State v. Tillman
  • 2006AP929-CR State v. Gralinski
  • 2006AP1106  State v. Martin
  • 2006AP1453  Sanders v. Schwarz
  • 2006AP1605-CR State v. Therrian
  • 2006AP2034-CR State v. Grant
  • 2006AP2035-CR State v. Salas
  • 2006AP2194-CR State v. Otis
  • 2006AP2363  State v. Rhodes
  • 2006AP2603-04 State v. Lawana R.
    Justice Ann Walsh Bradley dissents.
  • 2006AP2708  State v. Ray
  • 2006AP2988  State v. Jones
  • 2006AP3032-33 State v. David K.
    Justice Ann Walsh Bradley dissents.
  • 2006AP3152-CR State v. Rushing
  • 2006AP3196-CR State v. Dansby
  • 2007AP51  Clayton v. Am. Family
    Justice Annette Kingsland Ziegler did not participate.
  • 2007AP1316  State v. Karon E.
  • 2007AP1386-W Johnson v. Lundquist


  • 2006AP2456  State v. Garcia
  • 2007AP1006  State v. Ellis


  • 2006AP1705  Allstate Ins. vs. Brunswick Corp.
    Justice Annette Kingsland Ziegler did not participate.


  • 2006AP2505-CR State v. Hibbler
  • 2006AP2596  Sabol v. LIRC
    Justice Ann Walsh Bradley did not participate.
  • 2006AP3078-CR State v. Knowlin


  • 2006AP1979  Roach v. Schwartz
  • 2006AP2875  Rock Co. DHS v. Staci M.


  • 2006AP2384  Martinez v. Pavlik
  • 2007AP965  State v. Hoeft


  • 2007AP2138-CR State v. Bosman
    Justice Patience Drake Roggensack dissents.


  • 2007AP56-CRNM State v. Sekola


  • 2006AP2388-CR State v. Newer


  • 2006AP2184  Bleecker v. Vill.of Dousman
  • 2006AP2585  Zurich v. LIRC
  • 2006AP2908  Countrywide v. Schmidt
    Justice N. Patrick Crooks did not participate.

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

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