Michael S. Polsky v. Daniel E. Virnich
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2009 WI 66 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP203 Michael S. Polsky, as receiver for Communications Products Corporation, Plaintiff-Respondent-Cross-Appellant, v. Daniel E. Virnich and Jack M. Moores, Defendants-Appellants-CrossRespondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 7, 2009 January 7, 2009 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Grant Michael Kirchman JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ROGGENSACK, J., did not participate. ATTORNEYS: For the plaintiff-respondent-cross appellant there were briefs by Robert J. Kasieta, Andrew J. Parrish, and the Kasieta Legal Group, LLC, Madison, and oral argument by Robert J. Kasieta. For the defendants-appellants-cross respondents there were briefs by Donald K. Schott, Valerie L. Bailey-Rihn, James Richgels, and Quarles & Brady LLP, Madison, and Jeffrey O. Davis and Quarles & Brady LLP, Milwaukee, and oral argument by Donald K. Schott. An amicus curiae brief was filed (in the court of appeals) by Thomas J. Arenz and Whyte Hirschboeck Dudek SC, Milwaukee, on behalf of Risk Management Association. An amicus curiae brief was filed by John E. Knight, James E. Bartzen, Kirsten E. Spira, and Boardman, Suhr, Curry & Field LLP, Madison, on behalf of the Wisconsin Bankers Association, and oral argument by John E. Knight. An amicus curiae brief was filed by William Haus and Haus, Roman and Banks, LLP, Madison, on behalf of the Sheet Metal Workers International Local Union No. 565. 2 2009 WI 66 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP203 (L.C. No. 2004CV285) STATE OF WISCONSIN : IN SUPREME COURT Michael S. Polsky, as receiver for Communications Products Corporation, Plaintiff-Respondent-Cross-Appellant, FILED v. JUL 7, 2009 Daniel E. Virnich and Jack M. Moores, David R. Schanker Clerk of Supreme Court Defendants-Appellants-CrossRespondents. APPEAL from a judgment of County, Michael Kirchman, Judge. ¶1 PER CURIAM. the Circuit Court for Grant Certification vacated. The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice Prosser, Michael N. Patrick Jr., J. Crooks Justice Gableman would Annette would affirm. Kingsland reverse. Roggensack did not participate. Justice Ziegler, Justice David and T. Justice Patience Drake No. ¶2 2007AP203 When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue). ¶3 Accordingly, we vacate our order granting certification and remand to the court of appeals. By the Court. The order granting certification is vacated and the cause is remanded to the court of appeals. 2 No. 1 2007AP203
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