Aug. 29, 2018 – The Wisconsin Supreme Court’s 2018-19 term is right around the corner, and the court recently accepted review of 21 civil cases, including one involving a continuing noise nuisance claim by a yacht club in the Village of Sister Bay.
The Village of Sister Bay successfully defended a noise nuisance claim by the Yacht Club at Sister Bay Condominium Association Inc., which had objected to the “noise pollution” generated by evening concerts at a village band shell near the Yacht Club.
After informal resolution failed, the Yacht Club served a notice of claim upon the village, and a complaint in circuit court. The village filed a motion to dismiss, arguing the Yacht Club failed to serve a notice of injury within the statutory 120-day period and never filed an itemized statement of relief, which is required by Wis. Stat. section 893.80.
The circuit court dismissed the case, but a state appeals court reversed, concluding the Yacht Club failed to provide timely written notice of the claim but the circuit court prematurely dismissed the case because it was plausible that an exception applied.
That is, the Yacht Club was not required to prove, at the motion-to-dismiss-stage, that the village had actual notice and was not prejudiced by the untimely notice of claim.
However, the appeals court also rejected the Yacht Club’s assertion that a continuing nuisance resets the 120-day notice of injury requirement. Although the first injury occurred in 2014, when the band shell opened, concerts continued in successive years.
Thus, the supreme court is expected to decide how the 120-day notice of injury requirement applies to continuing nuisance claims against governmental bodies. The Yacht Club argues that each nuisance-causing concert reset the 120-day period.
Other Civil Cases
In addition to the noise nuisance case and six criminal cases, the supreme court accepted review in 20 other civil cases, from insurance and family law cases, to corporate, contract, labor, employment, property tax, commitment, and juvenile cases.
Grigg v. Aarrowcast Inc. (Insurance)
Paula Grigg, the special administrator of the estate of Raymond Grigg, who was a business executive and shareholder before he died, brought an action to establish the decedent’s rights under a liability policy that an insurer issued to his former company.
The policy insured against the “wrongful acts” of directors and officers. A circuit court determined that the insurer had no duty to defend Grigg in a New York lawsuit, among other determinations relating to notice of claims and issue preclusion.
The insurer said there was no duty to defend because the legal claims were directed at Grigg’s conduct as a shareholder, not as an “executive” of his former company. An appeals court reversed, concluding that the insurer had a duty to defend.
West Bend Mutual Ins. Co v. Ixthus Medical Supply Inc. (Insurance)
West Bend Mutual insured Ixthus Medical and its principal under a commercial general liability policy. West Bend argued that it did not have a duty to defend Ixthus in connection with a trademark infringement lawsuit based on a “knowing violation” exclusion. Ixthus argued that it was covered under an “advertising liability” clause.
The circuit court agreed with West Bend. But a state appeals court reversed, concluding the complaint alleged facts sufficient to trigger West Bend’s duty to defend.
Steadfast Ins. Co v. Greenwich Ins. Co.(Insurance)
Known as the “rain event lawsuits,” the Milwaukee Metropolitan Sewerage District (MMSD) tendered its defense to Steadfast and Greenwich. Steadfast accepted and Greenwich denied. Steadfast reimbursed MMSD $1.55 million upon settlement.
Steadfast then sued Greenwich, and a trial court determined that Greenwich breached a duty to defend and owed Steadfast the $1.55 million plus $325,000 in attorney fees. An appeals court upheld the trial court judgments. Now, the supreme court may decide.
Engelhardt v. City of New Berlin (Governmental Immunity)
This case involves the tragic death of an eight-year old girl while swimming at a day camp directed by the New Berlin Parks and Recreation Department. The girl’s parents filed suit against New Berlin, and the circuit court rejected the city’s claim that it was immune from the lawsuit as a governmental entity. The appeals court reversed.
Michaels v. Lyons(Family Law, Grandparent Visitation)
Grandmother Jill Kelsey filed a petition requesting visitation rights under Wis. Stat. section 767.43(3), which says the court may grant reasonable visitation rights to a grandparent if “the grandparent has maintained a relationship with the child or has attempted to maintain a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child,” among other requirements.
The child’s unmarried parents significantly reduced Kelsey’s contact with her granddaughter based on the conclusion that Kelsey had put her in harm’s way. The circuit court granted some grandparent visitation rights, with conditions.
Peter Ogden Fam. Trust 2008 v. Bd. of Review, Town of Delafield (Property Tax)
The Town of Delafield’s Board of Review sustained a 2016 property tax assessment on property owned by Peter Ogden Family Trust.
The assessment was based on an assessor’s change in classification of the Trust property, from agricultural and agricultural forest to residential.
The Trust argues that the reclassification was based on the mistaken belief that crops must be grown on property for a business purpose in order to support an agricultural land classification. A state appeals court disagreed and ruled in favor of the Trust.
The Wisconsin Court of Appeals certified the caseto the Wisconsin Supreme Court for review to clarify “the standard of proof required for a grandparent to overcome the presumption favoring the parent’s visitation decision.”
Koss Corporation v. Park Bank (Embezzlement, Fiduciary)
Koss Corporation sued Park Bank after a Koss employee embezzled $34 million from Koss through banking transactions, alleging Park Bank violated Wisconsin’s Uniform Fiduciaries Act (UFA) by ignoring “red flags” that would have uncovered the scam.
The circuit court ruled the bank may have been negligent but Koss provided no evidence that the bank engaged in bad faith, a necessary element of the claim. The state appeals court affirmed, noting banks are not liable for negligence under UFA.
Marx v. Morris (LLC, Corporate)
Two members of a limited liability company (LLC) alleged that a third LLC member engaged in self-dealing.
On certification from the appeals court, the supreme court may decide whether LLC members have standing to assert claims against other LLC members if the injury is suffered primarily by the LLC, and whether state LLC law preempts such claims.
Midwest Neurosciences Associates LLC v. Great Lakes Neurosurgical Associates LLC (Arbitration Clause)
The operating agreement of Midwest Neurosciences Associates, a group of medical practitioners, included a noncompete clause and required all disputes to be resolved through arbitration. Midwest Neurosciences filed a lawsuit against one of the members, Great Lakes Neurosurgical Associates, for a violation of the noncompete clause.
Midwest sought to compel arbitration. Great Lakes said a subsequent agreement superseded the arbitration clause. The appeals court ruled that the question of whether the arbitration clause was superseded should have been submitted to arbitration.
Portage County v. J.W.K. (Involuntary Commitment)
In this case, the circuit court extended J.W.K.’s involuntary commitment by 12 months. J.W.K. argued that Portage County did not prove, by clear and convincing evidence, that he would be a proper subject for commitment if treatment were withdrawn.
An appeals court affirmed that decision, despite J.W.K’s argument that a physician’s testimony concerning his condition was too conclusory to support his assertion that J.W.K. was a proper subject for treatment and needed medication.
Ezequiel Lopez-Quintero v. Dittmann (Habeas Corpus)
A state appeals court denied Ezequiel Lopez-Quintero’s petition for writ of habeas corpus on the basis that it was untimely. Lopez-Quintero, convicted of first-degree murder, argues that the appeals court could not deny a sufficiently pled petition, ex parte, on the basis of untimeliness by applying an irrebuttable presumption of prejudice.
State v. A.L. (Juvenile Competency)
The circuit court denied the state’s request for a reevaluation of a juvenile’s competency in a suspended delinquency matter, instead ruling that the delinquency petition must remain suspended for a statutory period after a juvenile is found incompetent. But the appeals court reversed and concluded that the applicable statute allows reevaluation.
Kieninger v. Crown Equipment Corp. (Wage Claim)
Former employees of Crown Equipment Corp. argued that the circuit court erred in applying the legal standard from the federal Employee Commuting Flexibility Act to reject their Wisconsin wage law claims. The case involves wages when employees commute via company vans versus personal vehicles.
CityDeck Landing LLC v. Brown County Circuit Court (Jurisdictional)
The question presented is whether a circuit court exceeds its jurisdiction by staying a separate arbitration proceeding involving a different dispute than the one before it, and where some of the parties to the arbitration – and the arbiter – are not parties in the circuit court action and have not been duly subjected to the circuit court’s jurisdiction.
White v. City of Watertown(Municipal, Partition Fences)
A state appeals court ruled that a state law requiring towns to impose liens on landowners who fail to contribute to the costs of maintaining or repairing shared partition fences that divide agricultural land applies to cities, as well as towns.
Dewitt v. Ferries (Adverse Possession and Cemeteries)
A circuit court ordered the transfer of a one-acre parcel of land, alleged to be a cemetery, for the Town of Forest to manage as a statutory town cemetery. Landowners, who acquired the cemetery by adverse possession, and the town, argued that the plaintiffs failed to prove the statutory requirements necessary for such transfer to occur. The appeals court reversed the order that allowed the cemetery land to be transferred.
Robertson v. Cleaver-Brooks Inc. (Product Liability, Asbestos)
The issue presented is whether the moving party on summary judgment established the absence of a genuine issue of material fact as to whether exposure to its products through repair and maintenance work caused harm to the plaintiff.
The plaintiff died from malignant mesothelioma and the estate alleged exposure to asbestos products manufactured by the defendants. The circuit court dismissed the claims as to all defendants, but the state appeals court reversed that decision.
Secura Insurance v. Ray Duerr Logging LLC (Insurance)
The question presented is whether property damages from a forest that burned thousands of acres was the result of a single, uninterrupted cause for purposes of liability coverage under a commercial insurance policy that covered a logging company, which owned the equipment suspected of starting the blaze.
The circuit court ruled there was a separate “occurrence” each time the fire entered a new parcel of real property, causing damage, and held that an aggregate policy of $2 million applied, rather than a “per-occurrence” limit of $500,000.
Milwaukee District Council 48 v. Milwaukee County (Collective Bargaining)
The circuit court ruled that certain county employees were not covered by a collective bargaining agreement at the time a county ordinance took effect, which rendered the employees ineligible for certain retirement benefits. The appeals court affirmed.
State v. C.L.K. (Termination of Parental Rights)
The circuit court terminated the parental rights of a father, C.L.K., granting a directed verdict at the close of the state’s case. C.L.K. appealed, arguing the trial court violated his due process rights because the court did not allow him to present evidence.
On appeal, the state conceded that the circuit court followed in incorrect procedure in granting a directed verdict, but concluded that the error was harmless because there was overwhelming evidence that C.L.K. had abandoned his two children.
