Last year, around this time in fact, we wrote about the Federal Arbitration Act and the effect of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), on an argument under Wisconsin law about the unconscionability of an arbitration clause that waived a right to classwide proceedings. That case was Cottonwood Financial, Ltd. v. Estes, 2012 WI App 12, and, after an order from Wisconsin’s Supreme Court summarily disposing of the petition for review in the wake of Concepcion, the court of appeals held that the FAA preempted the unconscionability argument, ensuring that those arbitration clauses would be enforceable. Now Wisconsin’s Supreme Court has another opportunity to address Concepcion and FAA preemption in a recent certification from Wisconsin’s court of appeals.Continue reading this entry
June’s decision from the Supreme Court of Wisconsin in Estate of Kriefall v. Sizzler contains a brief exposition on fees that’s worth noting.
In Crown Castle USA, Inc. v. Orion Construction Group, LLC, No. 09AP3029 (Wis. Sup. Ct., Mar. 22, 2012), the Supreme Court, in a 4-3 decision that will be surprising to collections practitioners, concluded that a Wisconsin judgment creditor, in proceedings supplemental to entry of judgment, may not compel anyone but the judgment debtor itself to testify about the debtor’s assets.
In La Crosse Tribune v. Circuit Court for La Crosse County, No. 10AP3120 (Wis. Ct. App., Mar. 15, 2012), the Court of Appeals left a newspaper seeking a statutory fee award for its success in obtaining access to public records in a trick box with no apparent way out.
In Marlowe v. IDS Property Cas. Ins. Co., No. 11AP2067 (Wis. Ct. App. Mar. 13, 2012), the Court of Appeals, resolving an issue of first impression in Wisconsin, held that a party to an arbitration under the Wisconsin Arbitration Act, Wis. Stat. ch. 788, may not, while the arbitration is pending, seek circuit court review of a decision by the arbitrators on the scope of discovery. As a separate and independent ground for its conclusion, the court held that, where arbitrators resolve a discovery dispute by interpreting a provision in the arbitration agreement, their decision is final and not subject to judicial review.
Ignoring established precedent from a superior tribunal is one way for a court to earn a sharp rebuke from a higher court. And that is precisely what happened in a consolidated decision today in Marmet Health Care Center, Inc. v. Brown, No. 11-391, and in Clarksburg Nursing Home & Rehabilitation Center LLC v. Marchio, No. 11-394, where the Supreme Court of the United States granted writs of certiorari to the Supreme Court of Appeals of West Virginia, vacated that court’s judgments, and remanded for further proceedings — a practice known as a “GVR,” drawn from the first letter of the three words “grant,” “vacate,” and “remand.”
The Wisconsin Supreme Court held in 260 North 12th Street, LLC v. Wisconsin Department of Transportation that evidence of contamination is admissible in valuing property for condemnation purposes. 2011 WI 103. Joining what the Chief Justice in her concurrence referred to as a “slim majority” of jurisdictions to have considered the issue, the Court held that circuit courts have the discretion to allow evidence of contamination to be admitted to determine the fair value of condemned property.
The Court left unresolved interesting questions about the effect of paying contamination-reduced condemnation value on the State’s ability to sue the former owner for remediation. While it is obvious enough that a hypothetical buyer of contaminated property would take remediation costs into account in the offering price, it is less obvious that an open-market sale would result in a transaction that would allow the purchaser to sue the seller for remediation costs. If the contamination is fully disclosed and the clean-up cost incorporated into the sale price, one might expect the hypothetical transaction to include a promise by the buyer to hold the seller harmless for the contamination. If a similar protection is not available vis-à-vis the condemning authority, just compensation may have to account for this difference between a government-compelled sale and the amount for which the property could be sold in an arms’ length transaction on the open market.
That was the first question Chief Justice Abrahamson asked counsel for the defendant during oral argument today in Johnson v. Cintas Corp. (2009 AP 2549). And it was a particularly appropriate one, because the issue before the court was whether the circuit court ever acquired personal jurisdiction over Cintas Corp. No. 2 to enter a default judgment against it, though that entity had never been named in the complaint, which erroneously named only the corporate parent, Cintas Corp.
Act 61 is a new statute that will take effect on November 24 and will apply to all actions commenced on or after that day. And it’s one you should be aware of — both for its effect on venue in the circuit courts of this state and for the unique changes it makes related to venue in the state’s court of appeals.
The Wisconsin Supreme Court kicked off November with a unanimous ruling — or, at least, suggestion — that the court of appeals provide a bit more process before sanctioning lawyers who violate the rules governing appellate appendices and certifications. The vehicle for this suggestion is State v. Nielsen, a case in which the court of appeals included a footnote sanctioning Nielsen’s counsel (the Office of the State Public Defender) $150 for not complying with Wis. Stat. (Rule) 809.19(2)’s content requirement and making a “false certification.”