This calendar includes cases that
originated in the following counties:
Columbia
Dane
Dodge
Fond du Lac
Rock
Walworth
To be heard in the
Wisconsin Supreme Court Hearing Room, 231 East Capitol:
TUESDAY, NOVEMBER 6, 2007
9:45 a.m. 06AP662 State v. Beaver Dam Area Development
Corporation, et al.
10:45 a.m. 05AP2257 Walter
J. Olson v. Town of Cottage Grove
WEDNESDAY, NOVEMBER 28, 2007
9:45 a.m. 05AP1527 Berner Cheese Corp. v. Lyle A. Krug,
et al.
10:45 a.m. 05AP2607 Estate
of James H. Matteson v. Robert Matteson, et al.
1:30
p.m. 06AP364 Shannon Nichols, et al. v.
Progressive Nrthrn Ins., et al.
THURSDAY, NOVEMBER 29, 2007
9:45
a.m. 06AP405 Gregory A. Liebovich v. Minnesota
Insurance Co., et al.
10:45 a.m. 04AP3239 Wisconsin
Department of Revenue v. Menasha Corp.
1:30 p.m. 06AP2761 Wisconsin Realtors Assoc., et al. v.
Town of West Point
The Supreme
Court calendar may change between the time you receive this synopsis and when
the cases are heard. It is suggested
that you confirm the time and date of any case you are interested in by calling
the Clerk of the Supreme Court at 608-266-1880. That office will also have the
names of the attorneys who will be arguing the cases.
Radio and TV, and print
media wanting to take photographs, must make media requests 72 hours in advance
by calling Supreme Court Media Coordinator Rick Blum at 608-271-4321. Summaries
provided are not complete analyses of the issues presented.
WISCONSIN SUPREME COURT
TUESDAY, NOVEMBER 6, 2007
9:45 a.m.
This
is a certification from the Wisconsin Court of Appeals, District IV
(headquartered in Madison). The Court of Appeals may certify cases that it
believes cannot be resolved by applying current Wisconsin law. The Wisconsin
Supreme Court, as the state's preeminent law-developing court, often accepts
such certifications. This case began in Dodge County Circuit Court, Judge
Richard O. Wright, presiding.
2006AP662 State
v. Beaver Dam Area Development Corp.
The
District IV Court of Appeals asks the Supreme Court to establish an analytical
framework for determining whether an entity is a quasi-government corporation
as it relates to Wisconsin’s open meetings and public records law, and then to
apply the framework to the facts of this case.
Some
background: The state sought a judgment, declaring that the Beaver Dam Area
Development Corporation (BDADC) is subject to the open meetings and public
records laws and an order for the corporation to comply with the laws.
The
circuit court held that the corporation is not subject to the open meetings and
open records law because it does not meet the definition of a
“quasi-governmental corporation” within the meaning of these statutes. The
state appealed.
The
state emphasizes that two city officials, serve on the corporation’s board by
virtue of their positions as city officials; that the corporation originally
had only one employee, who had previously worked for the city as the economic
development director; and that the corporation was originally housed at city
hall. The BDADC receives about 80 percent of its funding from the city.
The
corporation, on the other hand, emphasizes its independent creation and freedom
from city control and the role of private individuals on the corporation's
board of directors. The two city officials are non-voting members, and voting
members are private citizens. The BDAC has cooperation agreements with the
city, although it has no authority to obligate the city to do
anything.
In
stating their cases, both sides refer to a 1991 attorney general opinion in
which then-Attorney General Jim Doyle concluded that for purposes of the open
meetings law “quasi-governmental corporations” are not limited to non-stock
body politic corporations.
In
that case, the attorney general concluded that the Milwaukee Economic
Development Corporation was subject to the open meetings and public records
laws. He did not, however, develop a general list of factors that are significant
in determining the status of corporations as "quasi-governmental" or
private.
The
Court of Appeals notes the potential significance of a decision by the Supreme
Court: “… the more narrow the definition of ‘quasi-governmental corporation,’
the greater the ability of governments to delegate public functions to entities
that are shielded from public scrutiny… On the other hand, genuinely private
corporations presumably should be allowed to conduct their affairs, including
some degree of interaction with government bodies or public issues, without
themselves becoming entirely subject to the open meetings and public records
laws…”
WISCONSIN SUPREME COURT
TUESDAY, NOVEMBER 6, 2007
10:45 a.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Dane County Circuit Court
decision, Judge Angela B. Bartell, presiding.
2005AP2257 Olson
v. Town of Cottage Grove
In this case, the Supreme Court could clarify the proper standard
of review in cases where the circuit court resolves a declaratory judgment
action by means of summary judgment and the Court determine the point at which
a controversy is “ripe.”
Some background: Under the Town of Cottage Grove’s Smart Growth
ordinance, which was approved in July 2002, some land use districts are
categorized as “sending areas,” while others are categorized as “receiving
areas” in relation to “transfer of development rights,” or TDRs. “Sending
areas” include land designated as part of the agricultural district, while
receiving areas include residential districts.
On December 27, 2001, prior
to town approval of the Smart Growth ordinance, Walter Olson, a real estate
developer, submitted a petition to the County to rezone about 70 acres of
property known as the Klosterman Farm. Olson asked zoning be changed from A-1
EX classification to R-1 Residential in order to subdivide part of his property
into fifteen residential lots.
On October 28, 2002, subsequent to
approval of the Smart Growth ordinance, Olson filed a second, separate petition
to rezone his property, requesting an increase to 58 lots. The Dane County
Board of Supervisors conditionally approved Olson’s second zoning application
and gave him gave him an extended period of time to record the plat, but Olson
concedes he did not do so.
Olson claims that meeting the TDR requirement would require him to
purchase 350 acres of farmland at a cost of approximately $750,000. Olson
sought a declaratory judgment challenging the ordinance on constitutional and
other grounds.
The circuit court granted the town’s motion for summary judgment,
concluding that Olson failed to demonstrate there were any genuine issues of
material fact that entitled him to a trial. The circuit court also concluded
that the facts presented by the town required the legal conclusion that Olson’s
controversy was not ripe.
The Court of Appeals reversed and remanded.
The town argued the controversy was not ripe because even if the
ordinance were declared void, Olson’s ability to develop his property was not a
certainty, so any declaration by the court would be advisory. In order for
Olson to meet the ripeness requirements, Olson would first have to reapply for
rezoning from the county and for plat approval from the town, the town argued.
A decision by the Supreme Court could clarify the law on when a
controversy is ripe and the proper standard of review to be applied by an
appellate court when summary judgment is rendered in a declaratory judgment
action.
WISCONSIN SUPREME COURT
WEDNESDAY, NOVEMBER 28, 2007
9:45 a.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District IV (District
III judges presiding), which affirmed a Rock County Circuit Court decision,
Judge James E. Welker, presiding. District IV Court of Appeals is headquartered
in Madison; District III is headquartered in Wausau.
2005AP1527 Berner
Cheese Corp. v. Lyle A. Krug, et al.
This
complex case began as a dispute between Berner Cheese Corporation and its vice
president of sales and marketing, who, after resigning his post, was subject to
a zealous effort by Berner to recover proprietary information on customers and
cheese formulas. The effort included a raid on the offices of Dairy Source,
Inc. (DSI), one of Berner’s suppliers, where the ex-employee kept an office.
DSI sued, and Berner ultimately paid DSI $1.35 million to settle the claim.
After
the settlement, additional disputes were aired. Berner sued its corporate
counsel, Lyle Krug, for legal malpractice, and Berner’s defense counsel, the
law firm of Brennan, Steil, Basting, and MacDougall, S.C., sued Berner for
unpaid legal bills.
The
trial court’s dismissal of two of Berner’s claims against Krug, the corporate
counsel, is the basis for this appeal. The dismissed claims were for breach of
fiduciary duty and punitive damages. The Court of Appeals affirmed the
dismissal of these claims.
The
Supreme Court is expected to explore the bounds of an attorney’s duties to a
client, and to clarify the circumstances under which a client can mount a claim
for punitive damages against an attorney whose advice is not sound.
WISCONSIN
SUPREME COURT
WEDNESDAY, NOVEMBER 28, 2007
10:45 a.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed in part, and reversed in part, a Fond du Lac County Circuit Court decision,
Judge Robert J. Wirtz, presiding.
2005AP2607 Estate
of James Matteson v. Robert Matteson
This
case, resulting from a dispute over the dissolution of a business partnership,
examines the detailed calculations used to determine an outgoing partner’s
profit share and the continuing partner’s compensation. The partners here were
Robert R. and James M. Matteson, two halfbrothers, and the partnership was
Matteson Communications, a radio sales and service business.
In 2001, James
left the partnership, causing its dissolution. Robert continued the business as
an LLC, but the two were unable to agree as to what Robert should pay James for
his share of the company. James died shortly after his retirement, and his estate
sued. After more than three years of litigation and three days of trial, the
circuit court awarded James’ estate a share of the value of the business at the
date of dissolution and a share of the profits earned between the date of
dissolution and the date of trial.
The
circuit court concluded that as of the date of dissolution, James’ 55 percent
share of the business was worth $68,641, and that Robert had continued the
business. The circuit court also concluded that the profits from the date of
dissolution to the trial date were $282,886.80, and that the estate was
entitled to 55 percent of that amount. The circuit court then deducted $91,230
from the estate’s share of the profits in order to compensate Robert for the
time he and his wife and son had put into concluding the partnership’s affairs,
along with various other expenses.
Both parties
appealed, each alleging a multitude of errors in the court’s calculation.
The
Court of Appeals affirmed in large part, but reversed that portion of the
circuit court’s decision compensating Robert only for his work to wind up the
partnership. The Court of Appeals directed, on remand, that the circuit court
modify its judgment to award Robert compensation for his reasonable labor and
management services between the date of dissolution and the date of trial.
The
Court of Appeals noted that because the partners had no written agreement to
the contrary, the end of the partnership was controlled by ch. 178, Stats., the
Uniform Partnership Act. It noted that dissolution does not end a partnership,
and instead, the partnership continues to exist until its affairs are
concluded.
The
petition for review asks the Supreme Court to determine if the Court of Appeals
and the trial court correctly interpreted the Uniform Partnership Act and
correctly determined that interest continued to accrue on the judgment even
after judgment monies were deposited.
WISCONSIN SUPREME COURT
WEDNESDAY, NOVEMBER 28, 2007
1:30 p.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Columbia County Circuit Court
decision, Judge Richard Rehm, presiding.
2006AP364 Nichols
v. Progressive
This
case, involving an underage drunken driver and a car accident, presents
questions about the scope of “social host” liability in Wisconsin. Social host
liability is based on the concept that, under certain circumstances, a party
host serving alcohol should be responsible for the acts of guests committed
under the influence of alcohol. Most
states, including Wisconsin, have laws imposing liability on social hosts where
alcohol is served to a minor.
In
this case, the hosts are not accused of serving alcohol to the underage guest
later involved in an accident, but the hosts were allegedly aware that minors
on their property were consuming alcohol during a party they hosted.
Some
background: On the evening of June 4, 2004, Edward and Julie Niesen allowed a
large group of high-school students to hold a party on their property. One of
the underage guests, Beth Carr, drove away from the party under the influence
of alcohol. A vehicle driven by the guest collided with another vehicle,
injuring its occupants, all members of the Nichols family. The Nichols sued
Carr, her automobile insurance company, Progressive Northern Insurance Co., the
Niesens, and their homowners insurance company. Progressive settled for its
policy limit.
The
trial court concluded that the Nichols failed to state a claim for common law
negligence against the Niesens, in part because the defendants did not actually
provide or serve alcohol to the underage driver. The Court of Appeals reversed
part of the decision, concluding that the family had established a claim for
common law negligence.
The
Court of Appeals deemed it a “reasonable inference” – knowing high school
students were drinking alcohol on their property – that some of those underage
students would drive away from their property after consuming alcohol.
The
Court of Appeals’ decision, which appears to expand social host liability,
would permit the case to go to trial.
The
Supreme Court will consider whether a common law negligence claim may be used
to impose liability in this situation and have broader implications for social
liability law.
WISCONSIN SUPREME COURT
THURSDAY, NOVEMBER 29, 2007
9:45 a.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Madison), which reversed a Walworth County Circuit Court
decision, Judge Michael S. Gibbs, presiding.
2006AP405 Liebovich
v. Minnesota Insurance Co.
This
case involves the question of whether a lakefront homeowner’s insurance policy
provided coverage for liability arising out of his allegedly willful
construction of a house in violation of a deeded 125-foot setback covenant.
Some
background: Gregory A. Liebovich was sued by two contiguous neighbors on Geneva
Lake who claimed he built his house in violation of the setback restriction.
Liebovich’s insurance companies refused to defend, telling him that the policy
did not cover the liability claimed in the suit.
Liebovich
hired his own attorney to defend the suit, which resulted in an award of
damages against Liebovich, in the sum of $10,000, plus costs and disbursements.
Liebovich then sued the insurance company to recover the attorney fees he
incurred in his own defense.
AIG
argues, among other things, that the neighbors’ complaint failed to adequately
state a personal injury claim that would be covered under the policy, and that
its intentional acts exclusion applies.
The
circuit court granted summary judgment to the insurance company, but the Court
of Appeals reversed. The Court of Appeals concluded that because coverage was
“fairly debatable,” Minnesota Insurance Company and American International
Insurance Company (AIG) had a duty to defend Liebovich. The Court of Appeals
sent the case back to the circuit court to calculate the cost of Liebovich’s
defense.
The
Supreme Court is expected to decide if coverage is “fairly debatable,”
resulting in a duty on the part of the insurer to defend Liebovich. A decision
could clarify the meaning of various policy terms and have implications
statewide in situations that seem likely to recur.
WISCONSIN SUPREME COURT
THURSDAY, NOVEMBER 29, 2007
10:45 a.m.
This is a
review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Dane County Circuit Court
decision, Judge Steven D. Ebert, presiding.
2004AP3239 Wis.
Dept. of Revenue v. Menasha Corp.
This
case examines whether a computer software package purchased by Menasha Corp. is
a custom computer program, and therefore exempt from state sales tax, or
whether it is a pre-written program subject to taxation.
Some
background: In 1995, Menasha Corp , a large corporation with business locations
in 20 states and eight foreign countries, entered an agreement with SAP, a
German firm, to license software to help run its enterprise.
The
system included more than 70 separate software modules, but was not usable
without modifications to meet specific business needs. More than 3,000
modifications were made over a period of nearly a year to create an end product
useable by Menasha Corp. The cost of licensing and implementing the program
exceeded $23 million, including $5.2 million for licensing the core system. The
balance was used for planning, customization and implementation. Menasha
continues to pay about $975,000 per year for technical assistance, new
releases, upgrades and patches.
After
a Wisconsin Department of Revenue (DOR) audit of SAP’s American
subsidiary, the department and SAP
agreed that the software was “off-the-shelf” standardized software subject to
the state sales and use tax. SAP agreed to remit more than $1.9 million in
sales taxes for past sales and to collect taxes in future transactions. SAP’s
payment did not include sales taxes for Menasha’s project because Menasha
advised SAP that it would pay the tax itself.
Menasha
paid the sales tax, but then filed a refund claim for $342,614, a portion of
which related to the maintenance fees paid to SAP. The DOR denied Menasha’s
refund claim. The Tax Appeals Commission reversed, granting Menasha’s summary
judgment motion. The circuit court reversed that decision, concluding that
Menasha was required to prove there had been significant modification of the
program by the vendor.
The
Court of Appeals, in turn, reversed the circuit court’s order and affirmed the
Commission’s decision.
DOR
has asked the Supreme Court if judicial deference to the Commission’s legal
interpretation of DOR rules is appropriate in cases where the Commission does
not address the Department’s prior construction of its rules. Even if deference is appropriate, DOR also
asks the Supreme Court to review whether the Commission's decision was
reasonable.
WISCONSIN SUPREME COURT
THURSDAY, NOVEMBER 29, 2007
1:30 p.m.
This is a
certification from the Wisconsin Court of Appeals, District IV (headquartered
in Madison). The Court of Appeals may certify cases that it believes cannot be
resolved by applying current Wisconsin law. The Wisconsin Supreme Court, as the
state's preeminent law-developing court, often accepts such certifications.
This case began in Columbia County Circuit Court, Judge Andrew P. Bissonnette,
presiding.
2006AP2761 WRA,
Inc. v. Town of West Point
This certification from the
District IV Court of Appeals could affect the state’s Smart Growth statute and
examines whether towns in Wisconsin have the authority to place moratoriums on
new development of land while updating land-use plans.
Some Background: The Smarth
Growth statute, Wis. Stat. § 66.1101, requires Wisconsin municipalities to
develop comprehensive land-use plans by 2010.
After the statute was
enacted, the town of West Point, in conjunction with Columbia County, began
updating its comprehensive land use plan. In September, 2005, the town imposed
by ordinance an 18-month moratorium on the acceptance, review, or approval of land
division or subdivision plans. The ordinance was intended to eliminate
development pressure, which otherwise might increase because land owners and
developers sought to rush their projects to beat the planning process.
The Wisconsin Realtors
Association, Inc. and the Wisconsin Builders Association sought a declaration
that the town lacked the authority to enact the ordinance. The circuit court
granted summary judgment in the town’s favor, concluding reasonable moratoria
on subdivision of land applications were permitted by Wis. Stat. § 236.45.
The Realtors Association
appealed, challenging the town’s legal authority to enact a moratorium. The
association contends that municipalities in Wisconsin have no inherent powers,
rather only authority expressly conferred on them by statute or necessarily
implied from powers given. The association also noted that the town did not
have authority to enact zoning ordinances in the absence of a county zoning
ordinance because Columbia County had its own zoning ordinance.
The town says it is not
asserting inherent authority or any zoning authority delegated from the county.
The ability to adopt a temporary moratorium is an “ordinance governing the
subdivision of land or other division of land” as expressed in Wis. Stat. § 235.45
(1), and/or the broad grant of general police powers under Wis. Stat.
§ 61.34, the town argues.
The Court of Appeals
concluded that this case presents an issue of pressing statewide importance and
asked the Supreme Court to take it directly. The Supreme Court is expected to
decide whether a town has the authority to enact an ordinance that places a
moratorium on new development.