Category Archives: Wisconsin Decisions

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Wisconsin Supreme Court Clarifies Required Assessment Methodology for Section 42 Housing

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The Wisconsin Supreme Court overturned the city of Racine’s property tax assessments in Regency West Apartments LLC v. City of Racine, 2016 WI 99, clarifying in important respects the appropriate assessment methodology for I.R.C. § 42 low-income housing tax credit properties.  The court essentially rejected the trial court’s fact finding on the ground that the assessor’s … Continue reading this entry

The New Wisconsin Court of Appeals

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Bill Gates once wrote that “[w]e always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten.” Mr. Gates surely wasn’t thinking about the turnover of judges on Wisconsin’s Court of Appeals when he wrote that, but a review of the court’s membership over … Continue reading this entry

Wisconsin Court of Appeals Enforces Parties’ Stipulation to Remedies and Waiver of Judicial Review in Administrative Proceeding

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While many of us spent this past Halloween gorging on a variety of candies and sweets, Wisconsin’s court of appeals was busy rendering an opinion that likely left Travis Technology High School (“Travis Tech”) with a decidedly bitter taste in its mouth. Ceria M. Travis Academy, Inc. v. Evers, No. 2015AP2314, (Wis. Ct. App. Oct. … Continue reading this entry

Wisconsin Court Strikes Clause Restricting Solicitation of Employees

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An engineer’s employment contract provision broadly limiting his post-termination solicitation of former co-workers for competitive employment is an unenforceable restraint of trade under a new decision of the Wisconsin Court of Appeals. Manitowoc Co. v. Lanning, 2015AP1530 (Aug. 17, 2016). The decision, written by Judge Brian Hagedorn of District II, reversed a judgment for more … Continue reading this entry

Wisconsin Court of Appeals Issues Reminder of Power of Federal Arbitration Act

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In the last generation, the U.S. Supreme Court has repeatedly promoted the policy under federal law in favor of arbitrating claims, including in the area of employment law. Among other issues, the Court has held on multiple occasions that employers can require employees to submit statutory employment claims to arbitration, whether via mandatory arbitration agreements … Continue reading this entry

Beware of Unguarded Talk: A Cautionary Tale of Privilege Waiver in Wisconsin

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Loose lips sink ships. And, at least according to the Wisconsin Court of Appeals, they can sink the protections afforded to privileged communications. A decision last week in a criminal case could have considerable effect on a client’s waiver of the attorney-client privilege, in civil as well as criminal cases.… Continue reading this entry

Wisconsin Supreme Court Kicks Open Records Case to the Curb

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When Rebecca Bradley was appointed to the Wisconsin Supreme Court in October, the question arose what role she would play in cases argued this term before her appointment. Specifically, if the Court were otherwise split 3-3 on a case, would Justice R. Bradley participate in order to break the tie? The Court answered “No” in … Continue reading this entry

Does Wisconsin’s Four-Corners Rule Govern an Insurer’s Duty to Defend?

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Those who follow the work of the Wisconsin appellate courts might recognize this question as one that District II of the Court of Appeals certified to the Supreme Court nearly five years ago in Wilkinson v. Arbuckle, 2011 WI 1, 330 Wis. 2d 442, 793 N.W.2d 71, before the parties ducked an answer to the … Continue reading this entry

Wisconsin Courts Can Consider Documents Referred to in a Complaint, Even if They Are Not Attached to the Complaint

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Wisconsin’s court of appeals recently adopted the incorporation-by-reference doctrine as part of the state’s pleading standard in Soderlund v. Zibolski, No. 14AP2479 (Sept. 22, 2015). The decision, written by Judge Cane of District III (and recommended for publication in the official reports), allows a circuit court to consider documents referred to in a complaint even if those … Continue reading this entry

It’s Time to Rewrite Wisconsin’s Single-Party Listing Agreement

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A note to the drafters of Wisconsin’s single-party listing contract: It’s time to redefine what triggers the payment of a commission under the contract after a recent decision of Wisconsin’s supreme court in Ash Park, LLC v. Alexander & Bishop, Ltd., 2015 WI 65, where the court permitted a broker to collect its commission, despite … Continue reading this entry

Wis. Supreme Court Applies the Discovery Rule to Accrual of Wrongful Death Claims

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Yesterday, Wisconsin’s supreme court decided that the discovery rule—that is, the rule that a tort claim for which the legislature has provided no other rule “accrues” for statute-of-limitations purposes when the plaintiff discovers both his injury and the identity of the tortfeasor—applies to statutes of limitations for both wrongful death (belonging to close relatives to compensate … Continue reading this entry

Wisconsin Supreme Court Accepts New Cases: Occurrences, 12% Interest, and Donning and Doffing

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Last Friday, Wisconsin’s supreme court announced that it had accepted seven new cases. Three of them are of particular interest to Wisconsin businesses. In Wis. Pharmacal Co. v. Nebraska Cultures of Cal., 2013AP613/687, the court of appeals addressed whether the negligent provision of an ingredient to a probiotic manufacturer constituted an “occurrence” under a CGL policy. The … Continue reading this entry

Wisconsin’s Supreme Court Creates More Power for the Arbitrator

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Most commercial litigators know that a circuit court will enforce an arbitration agreement as long as a given dispute falls within the agreement’s scope. What is or is not within the scope of an agreement, however, has not always been clear. For example, could a court consider whether an arbitration request had been timely filed, … Continue reading this entry

When “Shall” Means “May”: Wisconsin Court of Appeals Allows Mortgage Lenders to Slow the Foreclosure Sale Process

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Last week we discussed the Wisconsin Supreme Court’s decision in Bank of New York v. Carson permitting circuit courts to force a mortgagee to hold a sheriff’s sale. Today we rewind the clock a bit to a decision last December by the Court of Appeals on a different aspect of Wisconsin’s foreclosure regime. In Bank … Continue reading this entry

When “Shall” Means “Shall”: Wisconsin Supreme Court Requires Mortgage Lenders to Sell Abandoned Properties in Foreclosure

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Last week the Wisconsin Supreme Court issued its decision in Bank of New York v. Carson, 2015 WI 15, a case we previewed here. The case is significant for its potential lasting effects on mortgage foreclosures in Wisconsin. The Carson case involves interpretation of Wis. Stat. § 846.102, which applies to foreclosure of “abandoned” properties. In … Continue reading this entry

Is There a Constitutional Right to 12% Interest?

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Central bankers have been the bane of a saver’s return for awhile now, but Wisconsin’s court of appeals appears to have carved out a place for litigants to earn a market-beating return. In a decision issued by District II (written by Chief Judge Brown and joined by Judges Reilly and Gundrum), the court recently decided … Continue reading this entry

No Diagnosis, No “Damages”: Wisconsin’s Construction Statute of Repose in Asbestos Cases

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How to apply Wisconsin’s construction statute of repose, Wis. Stat. § 893.89, in asbestos cases has recently been a hot topic dividing trial courts. The statute bars a broad category of claims if they are brought more than 10 years after the date of substantial completion of an improvement to real property. Many corporate defendants … Continue reading this entry

In Need of a Tune Up: Wisconsin’s Court of Appeals Considers Personal Jurisdiction in the Internet Age

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Last year, we wrote about the Seventh Circuit’s interpretation of the emerging issue of personal jurisdiction in the context of internet activity. Courts understandably have been wary of subjecting businesses to broad jurisdiction in all 50 states based solely on an internet presence. The Wisconsin Court of Appeals continued this trend with its decision last … Continue reading this entry

Undocumented Workers Are Protected by Wisconsin's FMLA

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Wisconsin’s court of appeals, in a published opinion written by Judge Reilly, recently decided that undocumented workers are protected by Wisconsin’s Family and Medical Leave Act (FMLA). Burlington Graphic Systems v. DWD, 14AP762. The decision has no practical effect on employers who comply with Wisconsin’s FMLA (and federal immigration law), but the lesson from the decision is that, if … Continue reading this entry

More Confusion in Wisconsin's Supreme Court?

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We wrote earlier this week about the new opinion drafting procedure in Wisconsin’s supreme court. To recap, the state’s justices voted 4-3 earlier this term to impose deadlines on the drafting process, presumably in response to the recent trend in which most of the court’s work has been released in the final weeks of its … Continue reading this entry

Wisconsin Supreme Court Puts Some Teeth Into Opinion Drafting Rules

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An unusual thing happened earlier this month at the Wisconsin Supreme Court. Ramon Gonzalez, an inmate, was tried for a fight in the Milwaukee County Jail. To assist the jury in identifying Gonzalez as a participant in the fight, the judge ordered him to show his teeth to the jury. This revealed the dental modifications for which Gonzalez had received … Continue reading this entry

No Need to Mail Process to the Government on a Saturday, Even if the Post Office Is Open

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In Wisconsin, a party seeking judicial review of an administrative decision must, within 30 days of service of the agency decision, file a petition for review in the trial court and serve the agency with a copy of the petition. If the 30th day falls on a Saturday and the agency is closed on Saturday, the party can wait … Continue reading this entry

When Serving Process by Mail, You Can't Send It to the Wrong Address

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If personal service of a summons and complaint cannot be accomplished, a plaintiff in Wisconsin is permitted to serve process by publication. A plaintiff serving by publication must also mail a copy of the summons and complaint to the defendant’s address when known or ascertainable. Wis. Stat. § 801.11. In O’Donnell v. Kaye, No. 13AP2651 (Ct. App. Dec. 3, … Continue reading this entry

Appraisal of Insurance Losses and the “Actual” Definition of “Actual Cash Value”

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Imagine a devastating fire renders your rental property uninhabitable. You dig out your insurance policy and are relieved to find that you are insured up to the “actual cash value” of the building. But what exactly does this phrase mean? The Wisconsin Court of Appeals recently grappled with this question in Coppins v. Allstate Indem. Co., No. … Continue reading this entry