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Supreme Court accepts six new cases

Madison, Wisconsin - September 2, 2008

The Wisconsin Supreme Court has voted to accept six 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.

2006AP3156 Notz v. Everett Smith Group, Ltd., et al
This is a dispute between a former minority shareholder and a former majority shareholder in a business called Albert Trostel & Sons. Edward Notz, the plaintiff, was a longtime minority shareholder in the business. The Everett Smith Group is the former majority shareholder. Notz claims that Smith Group tried to shortchange him by freezing him out of potentially profitable expansions of certain product groups. The circuit court and the Court of Appeals both dismissed certain claims, and permitted others to move forward. During the appellate process, the company became the subject of a merger and Notz received cash for the value of his shares.

Now, the Supreme Court is expected to decide whether Notz, as a former minority shareholder, may pursue a direct action against Smith Group and whether Smith Group was acting within the law by forcing dismissal of a claim for shareholder oppression under Wis. Stats. § 180.1430(2)(b) by initiating a cash-out merger while the claim was pending. From Milwaukee County.

2007AP203 Polsky v. Virnich
This case began when a small business called Communications Products Corp. (CPC) defaulted on at least one loan from the American Trust & Savings Bank. Michael Polsky, acting as CPC receiver, commenced the lawsuit on CPC’s behalf, alleging that CPC’s directors paid themselves excessive salaries instead of paying the bills. CPC won a $6.5 million jury verdict in circuit court. Daniel Virnich and Jack Moores, CPC’s directors/officers/sole shareholders, are seeking reversal of the verdict, arguing that, as the firm’s sole shareholders, they are immune from liability. The Wisconsin Court of Appeals certified this case to the Supreme Court. The Supreme Court is expected to decide if, under its opinion in a 2004 case (Beloit Liquidating Trust v. Grade), directors and officers who own a corporation have any fiduciary duty to creditors or to the corporation when the corporation is insolvent, but still a going concern. From Grant County.

2007AP308 Luckett v. Bodner
This medical malpractice case began when Tywanda Luckett experienced complications after a tubal ligation in August 2000. While in intensive care, she suffered cardiac arrest resulting in permanent severe brain damage, apparently due to the administration of certain drugs. She died in August 2005. In the Supreme Court, the petitioners (medical providers and insurers) are seeking review of a Court of Appeals decision that affirmed a circuit court order granting the plaintiffs' request (made two weeks before trial) to withdraw their pre-trial admissions regarding Luckett’s lack of cognitive functioning over a five-year period. In reviewing this decision, the Supreme Court is expected, among other things, to clarify the standard in Wis. Stat. § 804.11(2) for determining prejudice when deciding whether to grant withdrawal of a pre-trial admission. From Milwaukee County.

2007AP1396 Harvot v. Solo Cup Company
This case began when Kelly Harvot, who had worked for Solo Cup Company for about 20 years, developed degenerative disc disease. She missed several days of work for which she was denied medical leave, and ultimately was fired. She filed a claim against the company and an administrative law judge ordered Solo to reinstate Harvot with back pay, to pay her legal fees, and more. With the administrative matter complete, Harvot sued the company and requested that a jury hear her case. The circuit court concluded that she did not have a constitutional right to a jury trial, and instead allowed her a bench trial (a trial to a judge, rather than a jury). Harvot appealed that decision to the Court of Appeals, which certified the matter to the Supreme Court.

The Supreme Court is expected to decide, among other questions, whether the Wisconsin Family or Medical Leave Act confers an implied statutory right to a jury trial in a civil action for damages. From Winnebago County.

2007AP1403 State v. Fernandez
This is an appeal by Alberto Fernandez, who pleaded ‘no contest’ to charges that he stole a car while drunk and drove it recklessly in a rail yard, injuring a railroad employee. As part of the sentence, the circuit court ordered Fernandez to pay the victim nearly $69,000 in restitution at a rate of $400 per month. That order is the subject of this appeal, which the Court of Appeals certified to the Supreme Court. Fernandez maintains that the court exceeded its authority by ordering restitution payments extending far beyond his two-year probation. He argues that he can only be compelled to pay $9,600 – the amount that he can pay during his period of probation – and says that a 2003 Wisconsin Court of Appeals opinion (State v. Loutsch) supports his position.

The Supreme Court is expected to revisit the Court of Appeals interpretation of the state statute governing restitution Wis. Stat. § 973.20(5)(a) and clarify whether defendants can be compelled to pay restitution beyond the end of their sentence. From Fond du Lac County.

2007AP1526-W In the matter of the John Doe petition: State of Wisconsin ex rel. Ira B. Robins v. The Honorable Patrick J. Madden
This case began when Ira Robins filed a petition in Taylor County Circuit Court seeking a John Doe proceeding against Taylor County District Atty. Karl Kelz. The matter was handled by Iron County Circuit Court Judge Patrick J. Madden, who found no probable cause and dismissed the petition. Robins was also unsuccessful in the Court of Appeals. He is now asking the Supreme Court to clarify the legal standard to be applied in determining whether to begin a John Doe investigation. From Taylor 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.


  • 2007AP2605 State v. Hoeft


  • 2007AP1262 Schauer v. Diocese of Green Bay
    Justice David Prosser Jr. did not participate.
  • 2007AP2032-CRNM State v. Bonds


  • 2007AP579 State v. Hettinger
  • 2007AP675 AFSCME v. WLEA
  • 2007AP1591 State v. Ward
  • 2007AP2035-CR State v. Dahlk
  • 2008AP884-W Jacobs v. Raemisch
  • 2008AP1277-W Roberts v. Jess
  • 2008AP1478-W Terry v. Huibregtse


  • 2008AP228 DOC v. Lilly


  • 2007AP279 State v. Good

Eau Claire

  • 2006AP1892-CR State v. Her
  • 2007AP558 State v. Frederick


  • 2008AP1480-W Jacobs v. Circ. Ct. for Grant Co.


  • 2007AP1910 Delaney v. Delaney


  • 2007AP1503-CR State v. Mcelvaney

La Crosse

  • 2007AP1346-CR State v. Carter
  • 2007AP1970 Pierce v. La Crosse Truck Center


  • 2007AP2565 Desbrow v. Porter


  • 2006AP2913 Ratajczak Tr. v. Flegel
  • 2007AP528-CR State v. Ott


  • 2006AP1117-CR State v. Staples
  • 2006AP2393 State v. Mack S.
  • 2006AP2413 State v. Martin
  • 2006AP2811-CR State v. Harwell
  • 2006AP3035-W Graham v. Wallace
  • 2007AP106-CRNM State v. Sellers
  • 2007AP350 State v. Limehouse
  • 2007AP540-CR State v. Ferrell
  • 2007AP1059-CR State v. Battle
  • 2007AP1205 State v. Guman
  • 2007AP1377-CR State v. Jackson
  • 2007AP1381-CR State v. Nealy
  • 2007AP1470 Burns v. Kingston
  • 2007AP2229-CR State v. Wright
  • 2007AP2526 State v. Carrasquillo
  • 2008AP211 State v. Terry L.M.
  • 2008AP257-CR State v. Lohman
  • 2008AP332-W Winston v. Pollard
  • 2008AP715-W Belton v. Circ. Ct. for Milw. Co.
  • 2008AP1115-W Hooker v. Circ. Ct. for Milw. Co.
  • 2008AP1176 Goldman Sachs v. Yancey
  • 2008AP1476-W James v. Pollard


  • 2007AP2770 Mahner v. REW Motors


  • 2007AP196 Ruch v. Wood


  • 2006AP2108-AC Wisth v. Wisth


  • 2008AP314/315-CR State v. Johnson


  • 2007AP415 McElvaney v. Schwarz


  • 2007AP834 Richland Co. HHS v. Brandon L.Y.


  • 2006AP2584-CR State v. White
  • 2008AP789 Weber v. Weber
  • 2008AP1607-W Lamon v. Huibregtse


  • 2007AP1842 City of Shawano v. Ford


  • 2007AP2377 State v. Pieschel


  • 2007AP2751 State v. Brent S.


  • 2006AP2802-CR State v. Bennett
  • 2007AP812 Devine v. Notter


  • 2007AP2874 City of Menasha v. Liebhauser
  • 2008AP156 City of Neenah v. James

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