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 1, 138 N.W.2d 162 (1965), when the county court had refused to act on filings from a nonlawyer executor of an estate. The Supreme Court addressed a similar question more recently in Jadair Inc. v. U.S. Fire Ins. Co., 562 N.W.2d 401, 209 Wis.2d 187 (1997) , where a nonlawyer signed a notice of appeal on behalf of a corporation. The filings in both cases were ineffective; the court’s rationale was that these nonlawyers were engaged in the unauthorized practice of law.

Given that history, our readers should not be surprised by the result in Ditech Financial LLC v. Estate of Stacey, No. 2016AP2371 (Wis. Ct. App. Feb. 15, 2018), a recent per curiam decision issued by District IV of Wisconsin’s Court of Appeals. The appellant, Michael Stacey, who was not a lawyer, was the personal representative of the Estate of James G. Stacey. He sought to appeal the sheriff’s sale of the decedent’s former residence.

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Seventh Circuit Explains Unique Feature of Diversity Statute

A feature of 28 U.S.C. § 1332, the diversity-jurisdiction statute, may make you scratch your head and wonder why it’s there. In the Seventh Circuit’s March 15, 2018 decision in Hyland v. Liberty Mutual Fire Ins. Co., No. 17-2712, Judge Frank Easterbrook explained the origin of § 1332(c)(1) and the role that Wisconsin law played in its adoption. The statute is an exception tacked onto the familiar rule that a corporation is deemed to be a citizen of every state by which it has been incorporated and of the state in which it has its principal place of business. But, the text continues:

in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant

the insurer is also deemed to be a citizen every state of which the insured is a citizen. § 1332(c)(1)(A).

The Hyland case arose in Illinois. The plaintiff’s son (on whose behalf she sued), was a passenger in a vehicle driven by Smith and was severely injured when Smith drove into two parked cars. Plaintiff’s state court action against Smith resulted in a default judgment for $4.6 million. The uncollectible Smith—arguably entitled to a defense of the action by Liberty Mutual, which had insured the owner of the car Smith was driving—assigned any claim that she had against Liberty Mutual to the plaintiff. Plaintiff sued Liberty Mutual in federal court for failure to defend Smith, and the district court awarded judgment for the whole $4.6 million.

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Seventh Circuit Sanctions an Appellant for Failing To Include the District Court’s Rulings with Its Opening Brief

Seventh Circuit Rule 30(a) requires an appellant to “append to [its] opening brief[] the judgment under review and its adjoining findings of fact and conclusions of law.” Rule 30(b) further requires an appellant to include any other opinions or orders that bear on the issues on appeal, and subparagraph (d) requires an appellant to certify that it has met the requirements of the rule.

Let Jaworski v. Master Hand Contractors, Inc., No. 16-3601 (7th Cir. Feb. 15, 2018), serve as a warning to any would-be scofflaws of Circuit Rule 30. The decision, written by Judge Diane Sykes, sanctioned the appellant, Master Hand Contractors, for failing “to submit critical district-court opinions with its opening brief.” Slip op. 2.  “The purpose of an appeal,” the court explained, “is to evaluate the reasoning and result reached by the district court.” Id. at 4. The court cannot “do this job,” however, “if the written orders and transcript pages containing the appealed decision are not before [it].” Id.

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Seventh Circuit Considers Diversity Jurisdiction in Trust Dispute

In Doermer v. Oxford Fin’l Group, Ltd., No. 17-1659 (7th Cir. Mar. 7, 2018), the Seventh Circuit had before it an example of what Chief Judge Diane Wood called a “depressingly common” type of litigation: “[f]amily disputes over who owns what.” In resolving the appeal, the court resolved a couple of interesting diversity jurisdictional issues that such disputes can present.

Brother Richard and sister Kathryn don’t get along. Richard previously sued Kathryn over control of a family foundation, but the case was dismissed because Richard lacked capacity under Indiana law to bring a derivative action; the Seventh Circuit affirmed in Doermer v. Callen, 847 F.3d 522 (7th Cir. 2017).

This time Richard sued Kathryn’s financial advisor for allegedly giving her negligent advice that caused her to mismanage a family trust, of which they are the two beneficiaries, as well as two of the three trustees. Richard, a citizen of Illinois, sued the advisor in state court in that state. The advisor, a citizen of Indiana, removed to federal court, invoking diversity jurisdiction. Richard objected to removal on two grounds—that he had named Kathryn (also a citizen of Indiana) as an “involuntary plaintiff,” so that there were Indiana citizens on both sides of the litigation; and that the “real party in interest” is the trust, which takes its citizenship from that of both trustees, so that (again, in his view) there were Indiana citizens on both sides of the litigation. The Seventh Circuit rejected both arguments.

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In the Age of Airbnb, the Seventh Circuit Explains the “Reasonable Diligence” Required for Personal Service in Wisconsin

Wis. Stat. § 801.11(1)(c) allows a plaintiff to resort to service by publication when, through efforts that amount to “reasonable diligence,” he has been unable to serve the defendant in person.

The Seventh Circuit’s recent decision in Cunningham v. Montes, No. 17-2516 (7th Cir. Feb. 21, 2018), written by Judge Frank Easterbrook, considered whether the plaintiff had exercised “reasonable diligence” in the context of a defendant who had two known homes, one in California and the other in Wisconsin, and had listed the California home for rent by the week on the Internet. Attempting personal service at only one of those homes, the court held, did not amount to “reasonable diligence.”

Cunningham’s process server had been unable to locate the defendant, Montes, at his home in Wisconsin, and Montes refused to provide his location when he answered the phone. Regardless, the Seventh Circuit held that Montes’s refusal to provide his whereabouts to a process server over the phone did not amount to evading service; and “Wisconsin,” the court explained, “requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address.” Slip op. 3.

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