Category Archives: Wisconsin Decisions

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The Need for a Marks Rule in Wisconsin

This article is the fourth and final installment in our series on the Wisconsin Supreme Court’s recently completed 2017-18 term. For previous installments, see here, here, and here. Last term, the United States Supreme Court was expected to clarify its decision in Marks v. United States, 430 U.S. 188 (1977), which adopted a rule governing … Continue reading this entry

Tetra Tech EC, Inc. v. Wisconsin Department of Revenue

This article is the third installment in our series on the Wisconsin Supreme Court’s recently completed 2017-18 term.  For previous installments, see here and here. One decision of the past term merits special attention: Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 2018 WI 75. As we predicted (see prior post), Tetra Tech was the court’s chosen vehicle … Continue reading this entry

Wisconsin Supreme Court Picks Up the Pace Under New Procedure

This installment is the second in our series on the Wisconsin Supreme Court’s 2017-18 term.  For the previous installment, click here. The United States Supreme Court made headlines earlier this year for getting behind on its work.  Fortunately, Wisconsin’s supreme court has been trending in the opposite direction.  What is behind this development? We wrote … Continue reading this entry

Overview of the Wisconsin Supreme Court’s 2017-18 Term

The Wisconsin Supreme Court’s 2018-19 term began with arguments last month, and the first opinion of the term is expected tomorrow. Before we dive into this year’s term, we thought we would review the statistics of the 2017-18 term and highlight a couple of the court’s important decisions from the term, which saw the conclusion … Continue reading this entry

Wisconsin Court of Appeals Issues Important Decision under “Borrowing” Statute

If your work involves civil litigation in Wisconsin, you’ve likely run across Wis. Stat. § 893.07, the state’s borrowing statute, which governs the application of foreign statutes of limitations to cases filed in Wisconsin. And, if you’ve had the occasion to consider § 893.07, you should make a note to remember Paynter v. ProAssurance Ins. Co., No. … Continue reading this entry

Wisconsin Court of Appeals Reinstates Tort Claims Against Operator of Firearms-Classifieds Website

The federal Communications Decency Act of 1996, in what is commonly referred to as “Section 230,” absolves from liability the “provider” of “an interactive computer service” when the plaintiff uses a theory of liability that “treat[s]” the provider “as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) … Continue reading this entry

SCOTUS Raises an Interesting Question for Appeals in Consolidated Cases in Wisconsin

The U.S. Supreme Court today decided unanimously that, when cases are consolidated under Fed. R. Civ. P. 42(a), they nevertheless remain separate cases. In Hall v. Hall, No. 16-1150, two separate cases had been consolidated and were tried together to a jury, but the district court granted a new trial in one of the cases … Continue reading this entry

Wisconsin’s Court of Appeals Holds That a Nonlawyer Personal Representative May Not Initiate an Appeal

It is not exactly a novel proposition of law in Wisconsin that a nonlawyer cannot represent a separate legal entity (as opposed to appearing pro se) in a Wisconsin court. The Wisconsin Supreme Court considered this issue over 50 years ago in State ex rel. Baker v. County Court of Rock County, 29 Wis. 2d … Continue reading this entry

Will This Term of Wisconsin’s Supreme Court Be the Last for Agency Deference in Wisconsin?

Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016). That was an immigration appeal where he argued that Chevron ought to be revisited because it “permit[s] executive bureaucracies to … Continue reading this entry

Wisconsin’s Supreme Court: Contractual Waivers of Civil Jury Trial Are Enforceable

Last year the Wisconsin Court of Appeals threw businesses a curveball when it held that a contractual waiver of the right to a jury trial was unenforceable. The holding of the case, Parsons v. Associated Banc-Corp., 2016 WI App 44, 370 Wis. 2d 112, 881 N.W.2d 793, seemed at odds with long-settled case law and … Continue reading this entry

Wisconsin Supreme Court Clarifies Required Assessment Methodology for Section 42 Housing

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

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

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

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

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

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

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?

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

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

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

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

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

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

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