Wisconsin Supreme Court accepts review of six new cases, including
attorney sanctions case
April 25, 2011 – The Wisconsin Supreme Court accepted review of
six new cases, including one that asks the court to decide whether
appeals court judges violate due process by sanctioning lawyers for
allegedly filing false certifications regarding an appendix to an
In January, the
Office of the State Public Defender (SPD) filed
a petition with the supreme court to review a case in which an
appeals court judge imposed a $150 fine against the public defender
representing the appellant for failure to comply with Wis. Stat. section
809.19(2). That provision requires an appellant’s brief to include
an appendix with certain information.
The petition states that the practice of imposing sanctions without
first providing notice and an opportunity to be heard violates due
process of law and asks the court to vacate the sanctions aspect of the
opinion in the underlying case, State v. Nielson,
“Notice and opportunity to be heard would have allowed the agency
or appointed attorney to explain exactly why the court was wrong in
its allegation that the appendix content and certification rules were
violated,” First Assistant SPD Joseph Ehmann wrote in his
The petition also asks the court to determine whether section 809.19(2)
is unconstitutionally vague on its face or as applied to the case, and
whether an appeals court circumvents the procedure for resolution of
ethics issues when concluding that “false certifications”
violate the ethical duty of candor to the tribunal.
According to the SPD’s petition, there have been 23 known cases
of a judge imposing sanctions for failure to comply with section
including at least 17 in the past year. The State Bar of
Wisconsin’s Appellate Practice Section supports the
SPD’s petition and obtained
approval from the State Bar Board of Governors to file
an amicus brief in the case.
The supreme court also accepted review in five other cases, briefly
summarized below. Summaries are derived, in part, from notice by the
Wisconsin Court System. Full summaries can be found at www.wicourts.gov.
2010 WI App 165 (Nov. 18, 2010)
This case examines the proper scope of review for a court to determine
an insurance company’s duties to defend and indemnify an insured
under a personal liability policy that generally excludes coverage for
“property damage” resulting from a “motorized
Robert Farrar used his farm tractor to pull Todd Olson’s mobile
home while Olson followed behind. But the tractor was not powerful
enough to tow the mobile home uphill. The trailer rolled backwards, and
caused damage to Olson’s truck and mobile home.
Farrar’s insurance policy covered damage caused by a mobile home
trailer, but not property damage that resulted from a trailer
“carried on, towed by, or attached to” a motor vehicle.
Farrar’s insurance carrier argued the policy excluded coverage
because the tractor was a “motor vehicle” towing the mobile
home. The policy defined “motor vehicle” as a trailer or
semi-trailer subject to vehicle registration or “designed for use
on public roads.”
Ultimately, the appeals court ruled
the insurance coverage was not excluded by the policy. The issue for the
Wisconsin Supreme Court concerns the appeals court’s proper scope
Farrar’s insurer argues appeals court review was limited to the
“allegations set forth within the ‘four corners’ of
the complaint and the provisions within the policy,” not extrinsic
facts or evidence beyond the four-corners of the complaint.
However, the appeals court ruled that “when an insurer has not
refused to provide a defense prior to a determination of coverage and
the question before the court is not whether the insurer has an initial
duty to defend its insured but rather whether coverage is provided under
the policy in question, the court’s review is not limited by the
v. May, 2010AP177 (Jan. 6, 2011)
In this certification case, the supreme court is asked to decide
whether child support orders that set minimum (floor) payment amounts
are unenforceable as against public policy.
After divorce, Michael May agreed to pay Suzanne May no less than
$1,203 per month in child support for no less than 33 months. But after
17 months, May requested a downward adjustment to account for an
involuntary loss of employment.
A circuit court denied May’s request, concluding that the
33-month “floor” was not against public policy and therefore
enforceable. May appealed. The District IV Wisconsin appeals court certified
the case to the Wisconsin Supreme Court.
In Wisconsin, “ceiling” stipulations are unenforceable.
That means a support-receiving parent can seek an increase in child
support payments, even if the parties stipulated to a maximum payment,
if there has been a change in circumstances.
But, according to the appeals court, the supreme court has never
squarely decided whether floor payment agreements are unenforceable.
Castle v. Orion,
2011 WI App 9 (Dec. 7, 2010)
This case examines whether circuit courts and court commissioners have
authority to compel supplemental examination of a corporate
entity’s books and records if the entity shares common ownership
with the judgment debtor.
Douglas Larson was the sole member of Wisconsin-based Orion
Construction LLC. Larson also owned Orion Logistics LLC, a related
Crown Castle USA, Inc. obtained a default judgment against Orion
Construction in Pennsylvania based on Crown Castle’s claim that
Orion Construction constructed faulty cell towers.
Thus, Orion Construction became a judgment debtor, and the court
commissioner ordered an accounting of Orion Construction’s assets
for payment of the judgment. Orion Construction indicated that it had no
assets, and no books or records pertaining to its assets.
Crown Castle believed Larson made fraudulent transfers to conceal
assets, and sought examination of the books and records of Orion
Logistics LLC. The Outagamie County Circuit Court granted Crown
Castle’s request, and Orion Logistics appealed.
The appeals court held
the circuit court had authority under Wis. Stat. section 816.03 to
require Orion Logistics to submit to supplemental examination of its
books and records.
Orion Logistics argues that Wis. Stat. section 816.03 does not give
circuit courts or court commissioners authority to subject a non-party
to supplemental examination.
Farms v. Markel Ins. Co., 2011 WI App 12 (Dec. 2,
This case examines whether plaintiffs are entitled to double damages
where a defendant negligently started a forest fire that damaged or
destroyed the plaintiffs’ land.
As a favor to landowner and business owner Jack Scimeca, Jeffrey Knack
lit and maintained a large burn pile of brush, stumps, and building
materials at the Lake of the Woods Campground in Marquette County in
April of 2003. The fire escaped the pile and burned 572 acres of
Plaintiff insurer Heritage Farms, Inc. sought double compensatory
damages under Wis. Stat. section 26.21(1), which provides that in
addition to penalties provided by section 26.20, private landowners
whose property is destroyed by forest fire may recover double damages
“if the fires occurred through willfulness, malice or
Heritage Farms moved for double compensatory damages and reasonable
costs for legal representation, as well as 12 percent interest on the
doubled portion of damages.
The circuit court granted attorneys’ fees, but not double damages
or interest, reasoning that the case did not present a situation in
which the court should use its discretion to impose double damages. The
appeals court affirmed.
Heritage Farms argues that double damages are mandatory, or at least
presumed, once there is a finding of willfulness, malice, or
State v. Goss,
The Supreme Court will examines whether a driver with four prior OWI
convictions, which carries a prohibited alcohol concentration of 0.02
percent, may be subject to a preliminary breath screening test based on a lower level of evidence supporting
Police stopped Goss for having an obscured rear license place, and
subsequently arrested him after detecting an odor of intoxicants and
administering a preliminary breath test (PBT).
Goss argued that under County of Jefferson v. Renz, 231 Wis.
2d 293, 603 N.W.2d 541 (1999), merely smelling alcohol on his breath was
insufficient grounds to administer the PBT.
The appeals court ruled the odor of alcohol, information that Goss had
four prior OWI’s and was subject to a lower PBT level of 0.02
provided probable cause to believe Goss was in violation of OWI