On Point blog, page 96 of 118
Briefs: Failure of Reply Brief to Respond to Argument
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue/Holding: Reply brief failure to address argument raised in response brief may be deemed conceded for purposes of appeal, ¶23 n. 7, citing Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53,
Briefs – Response Brief Failure to Address Argument, as Implicit Concession
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: Failure of a response brief to dispute a proposition in appellant’s brief may be taken as implicit concession of the proposition, ¶6 n. 3.
Notice of Appeal – Notice of Appeal – Contents – Inconsequential Errors
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding: Footnote 1:
Patrick Jackson’s notice of appeal says that he is appealing the trial-court order denying his motion for postconviction relief. The notice of appeal does not also indicate that he is also appealing from the judgment of conviction. This defect, however, is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him.
Waiver of Argument
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding:
¶11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent.
Waiver of Argument – Failure to Cite Pertinent Authority in Trial Court Doesn’t Alone Amount to Failure to Preserve Issue
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶13 … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal.
Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: ¶44, n. 14:
The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v.
Waiver Rule and Judicial Estoppel: Inapplicable to Mere Acquiescence to Ruling Subsequently Challenged
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.
Judicial Estoppel – Objection to PSI
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding:
¶6 Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI.
Appellate Procedure: Respondent’s Waiver
State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶12 Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt,
Waiver of Issue: Jury Instruction – Failure to Object to Limiting Instruction
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.
The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n.