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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


¶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. See City of Oshkosh v. Winkler, 206 Wis. 2d 538, 547, 557 N.W.2d 464 (Ct. App. 1996) (Where we refused to apply waiver when a party gave only a scant argument to the trial court on a particular theory, but provided case authority and detailed analysis for this theory on appeal). The trial court was not blindsided by the State on appeal as Markwardt suggests. Even the short argument given by the State gave the trial court some idea of the State’s position. See id. at 548. If the court did not feel comfortable making a ruling because of the limited depth of the State’s analysis, it could have simply requested further briefing. See id.


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