Category Archives: Supreme Court

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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

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

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

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

More Confusion in Wisconsin's Supreme Court?

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

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

Violation of OSHA Standards Now More Costly in Wisconsin

Last week, the Wisconsin Supreme Court resolved its first case of the year. It affirmed, by an equally divided court, the published opinion of the court of appeals in Sohn v. LIRC, 350 Wis. 2d 469. The Wisconsin Court of Appeals had earlier held that an employer was required to make the “penalty” payment under Wis. Stat. … Continue reading this entry

After the Bank Forecloses, Must It Actually Sell Your House?

The Wisconsin Supreme Court will answer this question in Bank of New York v. Carson, No. 2013AP544. It heard argument in this case last Tuesday. The case began more than 3 1/2 years ago when a widow—physically and financially unable to care for her house—vacated her house and did not answer or dispute foreclosure. During the … Continue reading this entry

Wisconsin Supreme Court 2013-2014 Term Summary Part 3: Recap of Cases Affecting Wisconsin Businesses

This post is the third in a series of posts analyzing the 2013-14 term of the Wisconsin Supreme Court. For our previous posts click here and here. This post provides in a nutshell what businesses need to know about the cases from last year’s term of the Wisconsin Supreme Court. We already have written about … Continue reading this entry

Wisconsin Supreme Court 2013-2014 Term Summary Part 2: A Divided Court?

This post is the second in a series of posts analyzing the 2013-14 term of the Wisconsin Supreme Court. For our previous post click here. In our last post, we observed that the Wisconsin Supreme Court released unanimous opinions more quickly than non-unanimous opinions and that the court had released opinions very slowly this year. … Continue reading this entry

Wisconsin Adopts Twombly, Though "No One Is Sure What Twombly Means"

In Data Key Partners v. Permira Advisers LLC, 2014 WI 86, the Wisconsin Supreme Court adopted the “plausibility” pleading standard articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which overruled the Conley v. Gibson, 355 U.S. 41 (1957), “beyond doubt”/”no set of facts” standard. Now, in … Continue reading this entry

Wisconsin Supreme Court’s Decision in Associated Bank N.A. v. Collier Changes the Rules for Collecting Judgments

In Wisconsin, supplemental proceedings under Wis. Stat. ch. 816 are the principal tool by which a judgment creditor can discover assets of the judgment debtor in aid of collection. But for the last 15 years, they have also been the mechanism by which sophisticated judgment creditors have obtained a lien in all the personal property … Continue reading this entry

The Doctrine of Equitable Assignment is Alive and Well in Wisconsin

That was the holding of the Wisconsin Supreme Court in an opinion issued on Thursday in Dow Family, LLC v. PHH Mortgage Corporation, 2014 WI 56. The facts of the case are similar to thousands of foreclosure cases prosecuted in Wisconsin every year, but with a couple of interesting twists, which we summarized in a … Continue reading this entry

Wis. Supreme Court Accepts New Case: When Are Covenants Not to Compete Illusory for At-Will Employees?

Last month, the Wisconsin Supreme Court accepted the Court of Appeals’ certification in Runzheimer Int’l, Ltd. v. Friedlen, No. 13AP1392 (Apr. 15, 2014). The intermediate appellate court had certified the following question: “Is consideration in addition to continued employment required to support a covenant not to compete entered into by an existing at-will employee?” This case arises out of … Continue reading this entry

Weissman v. Tyson: The Latest Developments in Donning and Doffing in Wisconsin

Earlier this month, the Wisconsin Supreme Court accepted the parties’ voluntary dismissal in Weissman v. Tyson Prepared Foods, 2012AP2196, assuring the precedential status of the court of appeals’ decision. Tyson addressed the compensability under Wisconsin law of time that employees spend pre-shift and post-shift preparing for work by putting on and taking off standard personal protective gear such as gloves, safety … Continue reading this entry

Wisconsin Supreme Court Hears Case Involving Equitable Assignment of Mortgages

Today the Wisconsin Supreme Court heard arguments in Dow Family LLC v. PHH Mortgage Corp., 2013AP221, a case involving the Mortgage Electronic Registration System (MERS), an electronic mortgage tracking system operated by MERSCORP. (The oral argument is available on WisconsinEye here.) The result in the case could affect mortgage lending throughout Wisconsin.… Continue reading this entry