PER CURIAM. We review the referee Stanley F. Hack's recommendation that we suspend Attorney Linda C. Smith's license to practice law for a period of two years for professional misconduct. This matter involves 17 allegations of misconduct allegedly committed in connection with a failed business transaction. Neither the Office of Lawyer Regulation (OLR) nor Attorney Smith has appealed the referee's recommendation. Therefore, the matter is submitted to the court for review pursuant to SCR 22.17(2).

FINE, J. One-hundred and eleven plaintiffs in Milwaukee County circuit-court consolidated cases 2004-CV-8584 and 2004-CV-8585 appeal the circuit court's dismissal on summary judgment of their complaints. Ten plaintiffs have not appealed.

BRIDGE, J. Ricardo Gonzalez appeals a judgment convicting him of second-degree sexual assault causing bodily injury and second-degree sexual assault while the victim was unconscious. Gonzalez offers five grounds for reversing the conviction and remanding the case for a new trial: (1) the circuit court erred by permitting the State to present evidence that, several months earlier, Gonzalez initiated sexual intercourse with his then-wife without her consent while she was sleeping; (2) defense counsel's failure to impeach Gonzalez's ex-wife with a prior conviction constituted ineffective assistance of counsel; (3) the court erred when it instructed the jury that "bodily injury" was defined as "physical pain or harm;" (4) the charges against Gonzalez were multiplicitous; and (5) due to the cumulative effect of the errors at trial, a new trial is warranted in the interest of justice. We conclude that the circuit court erred when it admitted evidence of the prior sexual act with Gonzalez's ex-wife, and also when it instructed the jury on the definition of "bodily injury." We therefore, reverse and remand for further proceedings. Because we are remanding the matter, we also choose to address Gonzalez's multiplicity argument.

WEDEMEYER, J. Victor Vasquez appeals from an order denying his motion for postconviction relief under WIS. STAT. § 974.06(4) (2005-06). Vasquez claims that he should be granted a new trial because the State introduced hearsay statements of a key witness that violated Vasquez's rights under the Confrontation Clause, as defined in Crawford v. Washington, 541 U.S. 36 (2004). Vasquez also claims that he was held without an initial appearance for more than forty-eight hours, in violation of County of Riverside v. McLaughlin, 500 U.S. 44 (1991). He states that because his confession was given after the forty-eight hour mark, it was illegally obtained and therefore should be suppressed.

KESSLER, J. Jaime Romero appeals from a judgment of conviction based on a guilty plea entered after the trial court denied his motion to suppress evidence seized during the execution of a search warrant, pursuant to WIS. STAT. § 971.31(10) (2005-06). Romero contends that the affidavit submitted by law enforcement in support of the search warrant did not establish probable cause for issuance of the warrant. We agree and reverse.

CURLEY, P.J. Adonis R. Grady appeals the judgment convicting him of felony murder, contrary to WIS. STAT. § 940.03 (2001-02), and the order denying his postconviction motion. Grady contends that: (1) both of his trial attorneys were ineffective and he was entitled to a Machner hearing concerning his allegations; (2) the trial court erroneously exercised its discretion in limiting cross-examination concerning the conditions under which Grady and Ryan Davis, one of Grady's accomplices, gave their statements to police and in refusing to permit the introduction of evidence of Grady's rejection of an offer of immunity; (3) newly discovered evidence requires a new trial; and (4) a new trial should be granted in the interest of justice. We disagree and affirm.

BRUNNER, J. Stephen Sherman appeals judgments of conviction for sexually assaulting children. He also appeals orders denying his motions for postconviction relief. Sherman contends he is entitled to resentencing because the circuit court failed to consider sentencing guidelines, disregarded evidence about sentences in other sexual assault cases, and refused to give weight to an expert opinion. We reject Sherman's arguments and affirm.

PER CURIAM Harrison Franklin appeals from a judgment of conviction of first-degree recklessly endangering safety, armed robbery and bail jumping as a habitual offender, and from an order denying his motion for postconviction relief. He claims that the trial court erred in refusing to give instructions on lesser included offenses and attempt, that he was entitled to dismissal on the violation of his right to a speedy trial, and that the DNA surcharge should not have been imposed. We affirm the judgment and order in part and reverse that part of the judgment and order regarding imposition of the DNA surcharge. We remand for entry of an amended judgment of conviction.

BRIDGE, J. Becky Reissmann appeals a circuit court judgment allowing the Port Edwards School District (the District) to recoup health insurance premiums paid on her behalf while she was on leave during her pregnancy. Reissmann contends that the District is barred from recovery under the Wisconsin Family and Medical Leave Act (FMLA) and also by federal regulations issued under the federal FMLA. We disagree and affirm the circuit court.

PER CURIAM. Sergio Hernandez appeals from a judgment entered on the jury's finding that Weiler and Company, Inc. is not liable for injuries Hernandez suffered when his arm got caught in a mixer/grinder manufactured by Weiler. Weiler cross-appeals from the judgment asserting that Hernandez has no right to recovery. We reject Hernandez's claim of evidentiary error and challenge to the form of the verdict and affirm the judgment. We reverse that part of the judgment imposing costs under WIS. STAT. § 814.04 (2005-06), because that version of the statute does not apply in this case. We direct the entry of an amended judgment. We do not address the cross-appeal.

PER CURIAM. Walter Schutz appeals from an order and amended judgment increasing the amount of time the parties' child, Jordan, has physical placement with his mother, Michelle Schutz. Walter argues that the circuit court erred in concluding that there had been a substantial change in circumstances since the last order affecting placement was entered and that the circuit court erroneously exercised its discretion in concluding that the modified placement schedule was in Jordan's best interest. We affirm.

WEDEMEYER, J. John D.C. appeals from an order affirming the paternity judgment and denying his motion seeking to dismiss the State's paternity action. John asserts that: (1) a paternity action cannot be brought based on the circumstances in this case; (2) the paternity judgment is incomplete as it does not contain orders regarding legal custody, physical placement and child support; and (3) the paternity action should have been dismissed in that the action was contrary to the best interests of the minor child. Because we resolve each of John's assertions in favor of upholding the order, we affirm.

PETERSON, J. Kevin B. appeals an order terminating his parental rights. He argues the trial court lost competency to exercise jurisdiction because it failed to complete the fact finding hearing within mandatory time limits and did not properly grant a continuance pursuant to WIS. STAT. § 48.315(2). We conclude the court complied with statutory time limits and therefore affirm.

PER CURIAM. Eddie Baker appeals from an order dismissing his class action seeking a declaratory judgment. The issues are whether the party to a crime statute, WIS. STAT. § 939.05 (2005-06), is unconstitutional as violative of the double jeopardy, due process, and equal protection clauses of the United States and Wisconsin Constitutions, and whether § 939.05 deprives Baker of his right to the effective assistance of counsel, and deprives the circuit court of subject matter jurisdiction. We conclude that § 939.05 is constitutional, and does not deprive Baker of the effective assistance of counsel, or the circuit court of subject matter jurisdiction. Therefore, we affirm.

BRUNNER, J. The Labor and Industry Review Commission (Commission) appeals an order of the circuit court reversing a Commission decision that dismissed Joyce Aldrich's Wisconsin Fair Employment Act (WFEA) claims against Best Buy, Inc. The circuit court concluded the Commission erred when determining that Aldrich's claims were barred by the doctrine of claim preclusion. We agree that Aldrich's claims are not barred by the doctrine of claim preclusion, and we affirm the circuit court's order.

KESSLER, J. Brenda Rutherford appeals pro se from a circuit court order affirming the Labor and Industry Review Commission's decision. The Commission upheld the decision of the Department of Workforce Development (DWD), Equal Rights Division (ERD), which dismissed Rutherford's disability discrimination complaint against Wackenhut Corporation (Wackenhut) because of her failure to obtain certified copies of her medical records and her failure to disclose to Wackenhut that she intended to use the copies of medical records at the hearing. We reverse and remand for further proceedings consistent with this opinion.

SNYDER, J. Adam D. Berlanga appeals from a judgment of conviction of operating a motor vehicle while intoxicated (OWI), second offense, in violation of WIS. STAT. § 346.63(1)(a). He contends that the trial court erred in denying his motion to suppress evidence because the arresting officer lacked a reasonable suspicion to stop his vehicle. We affirm the judgment of conviction.

PER CURIAM. Stephen Chicilo appeals a circuit court judgment upholding the Washburn County Board of Adjustment's decision denying his request for a variance. Chicilo argues the Board applied the wrong standard, and its decision lacked a factual basis and represented the Board's will rather than its judgment. He also argues the circuit court should have allowed him to conduct discovery. We reject his arguments and affirm the judgment.

PETERSON, J. Midwest Amusement Park, USA International Raceway (Midwest) appeals a small claims judgment awarding GFS Innovative Marketing Solutions, LLC damages for breach of contract. Midwest has failed to comply with the rules of appellate procedure in numerous respects, including filing a deficient appendix, filing a false appendix certification, citing to its appendix rather than the record, and filing a late reply brief. See WIS. STAT. RULE 809.19. We summarily dismiss Midwest's appeal as a sanction for these violations. See WIS. STAT. RULE 809.83(2).

HIGGINBOTHAM, P.J. David R. Strociek appeals pro se the circuit court's order granting summary judgment to Beloit Clinic, SC (the Clinic), in the Clinic's small claims action to collect unpaid medical bills. We conclude that Strociek's admissions resulting from his failure to respond to the Clinic's discovery request left no genuine issues of fact to be tried. Accordingly, we affirm.

KESSLER, J. National States Insurance Company (National States) appeals the award of summary judgment to Froedtert Memorial Lutheran Hospital, Inc. (Froedtert) and The Loren Ledger Trust, holding that the National States contract required it to pay the actual charges billed by Froedtert for inpatient hospital care of Kathleen Ledger after all of her Medicare Part A benefits had been exhausted, and to pay interest on the unpaid amount pursuant to WIS. STAT. § 628.46(1) (1999-2000). We conclude that summary judgment was proper because there were no material facts in dispute, and that National States' insurance contract required it to pay all of the hospital charges incurred by its insured for Medicare-eligible services after Medicare Part A benefits were exhausted, and affirm.

PER CURIAM. Jeffrey Ebensperger appeals that portion of a summary judgment dismissing his unjust enrichment claim. He contends there are genuine issues of material fact regarding whether a family trust was unjustly enriched by improvements he made to the land. Because we agree summary judgment was inappropriate, we reverse that portion of the judgment and remand for further proceedings on the unjust enrichment theory only.

LUNDSTEN, J. The Town of Spring Valley has adopted a zoning ordinance that effectively bans a sign that Arthur Donaldson wants to erect along a highway directing travelers to an attraction that he owns. Donaldson filed a complaint against the Town seeking a declaratory judgment that the Town's ban on his proposed sign is preempted by WIS. STAT. § 84.30(3)(a) (2005-06). The circuit court agreed, and issued a judgment in favor of Donaldson. The Town appeals. We conclude that the Town's ban is not preempted by § 84.30(3)(a) and, therefore, reverse and remand with directions.