In Daniel J. Hennessy, Jr. v. Wells Fargo Bank, N.A. (2019AP001206), the Wisconsin Court of Appeals ruled that a Mexican court judgment applying Mexican law was valid in Wisconsin under principles of comity, a legal principle where political entities recognize each other’s judicial acts.

Facts

The Hennessys planned to build a new condominium building on property in the city of San José del Cabo located in Mexico. Mexican law limits ownership of certain types of real property by non-Mexican citizens such as the Hennessys. For this reason, the Hennessys placed the property (and mortgage) in trust with a Mexican entity as trustee. Per the agreement, if the Hennessys defaulted, and the bank holding the mortgage made a request, the Mexican trustee would “sell the Trust Property and use the income received from the sale to pay” the bank. 

The Hennessys defaulted on the loan and Wells Fargo Bank initiated a form of foreclosure action in a Mexican federal court. The court awarded Wells Fargo Bank $ 7,500,000.00 plus interest. 

After a failed appeal to the Mexican appellate courts, the Hennessys filed an action in Milwaukee County Circuit Court and sought a declaration “that Wells Fargo is barred from asserting any action or claim against the Hennessys to enforce any obligation under” the mortgage. The action was based on Wisconsin’s six-year statute of limitations for breach of contract claims. (WIS. STAT. § 893.43(1)) Separately, Wells Fargo Bank counterclaimed and asked the court to make the Mexican judgement enforceable. 

After weighing this evidence and the arguments of the parties, the circuit court found that the Mexican judgment was valid under Mexican law and required enforcement under the principles of comity. 

Decision

The Court of Appeals addressed two questions: whether the circuit court clearly erred in finding that the Mexican judgment was valid under Mexican law and whether it erroneously exercised its discretion in recognizing the Mexican judgment for domestication in Wisconsin. It sided with the circuit court on both issues. 

 After analyzing its role in reviewing the circuit court and contrasting the Hennessys’ claims with the actual fact findings, the court concluded: “[A]t most the Hennessys point to grounds for potential legitimate differences of opinion about what the Mexican court may have intended to establish in the Mexican judgment, but not to clear error by the circuit court.”

It also added on the comity issue,

“It is important to recognize that we review the circuit court’s comity decision based on the circuit court’s findings about Mexican law, including the degree to which the Mexican judgment represents a final judgment. The circuit court found that the Mexican judgment represented a judicial determination that Wells Fargo, as the creditor, could recover the deficiency after the sale of the Mexican property…We cannot say this was clear error.” 

In a published decision released September 16th, the Wisconsin Court of Appeals (District II) awarded attorneys fees to the Friends of Frame Park because their lawsuit over an open records request played a “substantial factor” in the release of the records.

Facts

In response to the City of Waukesha building a baseball stadium in Frame Park, a group of Waukesha citizens, property owners, and taxpayer formed Friends of Frame Park to track how the stadium used taxpayer funds.

In 2017, Friends of Frame Park submitted an open records request to the City of Waukesha for any letters of intent, memorandum of understanding, or lease agreements between the City and Big Top Baseball, a private organization that runs several baseball franchises.

The City denied the request, citing an exception to open records requests where “competitive or bargaining reasons” require it. Friends of Frame Park sued. Two days later, the City sent the draft contract since there was “no longer any need to protect the City’s negotiating and bargaining position.” The City then sought to dismiss the case.

Friends of Frame Park moved for court costs and attorneys fees, per Wis. Stat. § 19.37(2)(a), since a plaintiff can recover attorneys fees even if the record is disclosed so long as the lawsuit played a “substantial factor” in the disclosure. The City claimed the lawsuit did not play a substantial factor and that it would have released the contract anyway because the “competitive or bargaining ” exception no longer existed.

Decision

The Court of Appeals began its analysis by describing the confused case law about causation in public records lawsuits, finding it would lead to “absurd results” to credit a lawsuit every time the government releases an open records request after someone sued. It found:

This discussion is not meant to be entirely dismissive of causation, particularly given the significant precedent on which it is based. Rather, we seek to clarify the application of that test where, as here, an authority claims that the expiration of a public record exception, rather than the requester’s lawsuit, was the reason for what would otherwise be an unreasonable delay in the release of a record.

The court then turned to whether the City properly invoked the “competitive or bargaining reasons” exception, stating: “[S]everal cases focus on whether an unreasonable delay was caused by the authority’s improper reliance on an exception under the public records law, regardless of the subsequent voluntary disclosure.”

The court concluded that the exception was unwarranted as the City could not prove it would suffer harm from releasing the documents or on other grounds, adding “the evidence shows that the only competition was from one or more business groups that may have been working to locate a Northwoods League team in a different municipality.”

The City thus did not meet the high burden of proof necessary for denying an open records request and the Court of Appeals remanded the case to the trial court to determine the appropriate amount of attorney fees.

In Timothy M. Casa De Calvo, Jr. v. Town of Hudson (2019AP185), the Wisconsin Court of Appeals upheld a circuit court decision dismissing an adverse possession claim against the Town of Hudson because the specific property was held by the Town “for highway purposes” and so not subject to adverse possession. 

Facts

Casa De Calvo purchased 3 property lots in a newly formed subdivision in 1986. He subsequently built a house and driveway on the property. The driveway was built over a platted but unimproved portion of the subdivision that was originally supposed to continue the road. Casa De Calvo did not believe the town would ever pave the section so he continued to improve and use the driveway. In 2017, he commenced a lawsuit against the Town of Hudson to claim adverse possession of the strip of land. He indisputably adversely possessed the platted but unimproved portion for the requisite 20 years. 

The Town argued that Casa De Calvo still could not claim adverse possession because the property was “for highway purposes” and therefore, under Wis. Stat. § 893.29(2)(c), met an explicit exception to adverse possession claims. 

Decision

Wis. Stat. § 893.29(2)(c) reads:

Notwithstanding sub. (1), no title to or interest in any of the following property shall be obtained by adverse possession … :
(c) Real property of a highway as defined in s. 340.01(22) and including property held by the state or a political subdivision for highway purposes, including but not limited to widening, alteration, relocation, improvement, reconstruction and construction.

The court of appeals went on to analyze what constituted “highway purposes.” Since the property was dedicated for public use as a street on the recorded subdivision plat, it found the strip could held for highway purposes.

The court further ruled against Casa De Calvo’s argument that “highway purposes” be limited to property that has already been opened for public use or that it should consider evidence regarding the town’s intent to actually use the property for that purpose. 

Casa De Calvo’s adverse possession claim therefore failed under the exception. 

Sen. Chris Kapenga (R-Delafield), Rep. Mark Born (R-Beaver Dam), and Rep. Dan Knodl (R-Germantown) are circulating legislation to shield Wisconsin businesses, schools, universities, and other entities from the threat of lawsuits alleging liability for COVID-19 exposures. Such protections would only apply to those who take adequate precautions to keep their premises safe. The Wisconsin Civil Justice Council worked with the authors on this legislation and is urging other legislators and Governor Evers to support it, too. The Legislature likely will not re-convene until January. When it does so, the Wisconsin Civil Justice Council will push to get the bill signed into law.

Related Items:

LRB 6434 (the bill)
Sen. Kapenga Press Release
WCJC Press Release

In Steinke v. Poppe (2019AP002028), the Wisconsin Court of Appeals held Poppe did not owe Steinke a duty to warn Steinke about the poor condition of his septic tank’s cover or to take other action to prevent him from falling through the cover into the tank.

Facts

Steinke hired Scott Poppe of Scott’s Septic Pumping, LLC (“Poppe”) on two occasions to pump his home’s septic tank. The first time, Poppe noted that the tank’s lid was rusty and he warned Steinke that he should get it replaced. The second time he did not say anything. 

About a month later, Steinke went for a walk on his property, stepped on the septic tank lid, and fell through. He was stuck in the tank approximately five and a half hours and experienced trauma as a result. He preceded to sue Poppe for not warning him.

Decision

The circuit court ruled for Poppe, holding that Poppe was hired to pump Steinke’s septic tank, not inspect it. As such, he owed no duty to warn Steinke about the condition of the lid on the tank. The court of appeals affirmed, though it first analyzed industry custom, the county’s  septic system ordinance, and general common law to see if any imposed a foreseeable duty. The court found they did not.