Martin G. Wenke v. Gehl Company
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2003 WI 96 SUPREME COURT CASE NO.: OF WISCONSIN 01-2649 COMPLETE TITLE: Martin G. Wenke and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, Plaintiffs-Appellants, v. Gehl Company, a Wisconsin corporation, Defendant-Respondent. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 16, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Washington Patrick J. Faragher JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: WILCOX, J., did not participate. July 8, 2003 ATTORNEYS: For the plaintiffs-appellants there were briefs by Michael L. Laufenberg, Lynn R. Laufenberg and Laufenberg & Hoefle, S.C., Milwaukee, and oral argument by Lynn R. Laufenberg. For the defendant-respondent there was a brief by Francis H. LoCoco, Daniel J. La Fave and Quarles & Brady LLP, Milwaukee, and oral argument by Francis H. LoCoco. An amicus curiae brief was filed by Ralph A. Weber, Beth Ermatinger Hanan, and Reinhart Boerner Van Deuren, S.C., Milwaukee, on behalf of the Wisconsin Manufacturers and Commerce. An amicus curiae brief was filed by William C. Gleisner, III, Madison, and David M. Skoglind and Aiken & Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers. 2003 WI 96 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-2649 (L.C. No. 99 CV 0431) STATE OF WISCONSIN : IN SUPREME COURT Martin G. Wenke and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, FILED Plaintiffs-Appellants, JUL 8, 2003 v. Cornelia G. Clark Clerk of Supreme Court Gehl Company, a Wisconsin corporation, Defendant-Respondent. APPEAL from a judgment of the Circuit Court for Washington County, Patrick certification J. vacated Faragher, and cause Judge. Order remanded to the granting Court of Appeals. ¶1 PER CURIAM. The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Justice N. Patrick Crooks, Justice David T. Prosser, Jr., and Justice Diane S. Sykes would affirm. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch, and Justice Ann Walsh Bradley would participate. reverse. Justice Jon P. Wilcox did not No. 01-2649 ¶2 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. 01-2649 1
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