The Wisconsin Supreme Court held oral arguments on Monday, Nov. 4 and will also hold oral arguments on Monday, Nov. 25. Cases of note include:

 

Mueller v. TL90108, LLC (Wrongful Taking and Detention) – Nov. 4

In this case, the Supreme Court will determine what constitutes the “cause of action” in a wrongful taking and wrongful detention case and thus triggers the six-year statute of repose under Wis. Stat. §§ 893.35 and 893.51.

In 2017, the owners of a valuable classic car that was stolen in 2001 filed this complaint to recover the car against TL90108, which had bought the stolen car. TL argued that the plaintiffs’ claims were barred by the six-year statute of repose, which TL said began in 2001, when the car was first stolen.

The Court of Appeals found that the plaintiffs’ claims were not barred because the cause of action took place not when the wrongful taking occurred but when the wrongful detention occurred, i.e. when the plaintiffs demanded return of the car and TL refused.

The Supreme Court will decide whether the statute of repose in §§ 893.35 and 893.51 can begin again when the current possessor wrongfully detains property that had been wrongfully taken beyond the statute of repose.

 

Lang v. Lions Club of Cudahy Wisconsin, Inc. (Recreational Immunity) – Nov. 4

In this case, the Supreme Court will decide whether a sound engineer setting up cords at a musical performance was the “agent” of the event organizer, making the sound engineer immune from liability under Wisconsin’s recreational immunity statute (Wis. Stat. § 895.52).  

At an event run by the Lions Club, plaintiff Antoinette Lang tripped over an electrical cord placed by sound engineer Fryed Audio, LLC. Fryed’s principal and a member of the band using the cords, Steve Fryed, positioned the cord prior to the event. While a separate case ruled the Lions Club was entitled to recreational immunity, the appeals court said Fryed was not an “agent” or “occupier” immune under the statute (Wis. Stat. § 895.52). Read more about the case.

 

DSG Evergreen Family Limited Partnership v. Town of Perry (Eminent Domain) – Nov. 4

The Supreme Court will determine whether plaintiffs have a private right of action and whether claim preclusion applies in eminent domain cases where the town promised but did not uphold certain construction standards after compensation proceedings.

The land taken by the Town of Perry in this case included a road, and the condemnation petition required the town to replace the road at a different location. DSG argued that the new road did not meet the “same construction standards” as the former road, violating the petition.

The appeals court held that DSG had no private right of action requiring the town to comply with certain construction standards under Wis. Stat. § 82.50(1) in completing the new road. Furthermore, DSG had no private right of action under the town’s ordinances.

The appeals court further held that claim preclusion applied because DSG failed to bring up its road construction standards argument in previous proceedings regarding just compensation for the eminent domain condemnation of its property. Read more about the case.

 

Emer’s Camper Corral, LLC v. Alderman (Negligent Procurement) – Nov. 25

The Supreme Court will review this issue of first impression: whether plaintiffs claiming negligent procurement by an insurance agent must establish that they could have obtained a non-injurious policy but for their agent’s alleged negligence.

In this case, the appeals court held that Camper Corral failed to produce evidence that it could have otherwise obtained a desired policy, so its agent Alderman did not cause Camper Corral’s damages. With no Wisconsin precedent to rely on, the appeals court looked to a Minnesota decision that requires plaintiffs to show they would have been able to obtain the desired policy terms absent the agent’s negligence. Camper Corral did not produce evidence to prove it could have obtained the desired hail damage policy, so its negligence claim failed. Read more about the case.

 

On Oct. 21, the Wisconsin Supreme Court held oral arguments in the second challenge in state courts to the laws passed in the 2018 extraordinary session (2017 Acts 368, 369, and 370).

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the laws passed in the 2018 extraordinary session are an unconstitutional violation of the separation of powers doctrine. The Wisconsin Supreme Court will review whether provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional power and whether committee oversight without opportunity for a gubernatorial veto violates constitutional separation of powers.

At oral arguments, Justices asked questions regarding whether the attorney general’s authority lies in the executive or legislative branch of state government. Plaintiffs argued the attorney general is a part of the executive branch described in Wis. Const. Art. V § 4, which enforces the law.  The defendant Legislature argued Art. VI § 3 allows the Legislature to determine the powers and duties of the attorney general.

Justice Kelly noted that, if the attorney general was part of the executive branch, the attorney general would, potentially, be subordinate to the governor. In reality, the attorney general can take different positions and act outside the governor’s purview.

Chief Justice Roggensack pointed out a federal statute similar to Act 369 provisions requiring Legislative oversight of settlement agreements. The Chief Justice and others did note that the Legislature may be able to remove some but not all of the attorney general’s powers.

A significant portion of the argument also focused on bicameralism. Plaintiffs argued the provision of Act 369 allowing the Joint Committee for Review of Administrative (JCRAR) rules to suspend rules multiple times subverts the Wisconsin’s Constitution because JCRAR can stop rules, which have the force of law, without votes in both chambers of the Legislature.

This case is one of several challenging the 2018 extraordinary session laws. Read more about the extraordinary session litigation.

 

The Wisconsin Supreme Court held oral arguments on several notable cases in September. (Calendar and case synopses.) Issues before the court included legal nonconforming uses, successor liability, and annexation.

 

Lamar Central Outdoor, LLC v. Division of Hearings & Appeals (Legal Nonconforming Use) – Sept. 4

This case will review whether the enlargement of a nonconforming outdoor advertising sign along an interstate highway caused it to lose its nonconforming status, making it illegal and subject to removal. The Supreme Court will determine whether Wis. Stat. § 84.30(14) and Wis. Admin. Code § TRANS 201.10(2)(e) prohibit enlarging legal but nonconforming signs, whether the Department of Transportation (DOT) should have provided the sign owner a right to cure, and whether DOT’s policy change violated Wis. Stat. Ch. 227 rulemaking requirements. Read more about the case.

 

Veritas Steel, LLC v. Lunda Construction Co. (Successor Liability) – Sept. 19

In this case, the Supreme Court will review the Court of Appeals’s narrow application of the “de facto merger” and “mere continuation” exceptions to Wisconsin’s general rule against successor liability. The court will review previous case law Fish v. Amsted Indus. Inc., which held that these exceptions apply when there is an identity of ownership, evidenced by a transfer of ownership for stock or a continuity of owners between the selling and purchasing entities.

Lunda Construction, which was seeking a $16 million judgment from successor company Veritas, argues that an identity of control could show a mere continuation from seller to purchaser, establishing successor liability. The appeals court acknowledged the tension between its narrow reading of the de facto merger and mere continuation exceptions in Fish and the ability of entities to achieve what is essentially a merger or continuation without satisfying the strict “identity of ownership” requirement. However, the appeals court said it is bound by Fish, and only the Supreme Court could change this interpretation of the exceptions. Read more about the case.

 

Town of Wilson v. City of Sheboygan (Annexation of Town) – Sept. 19

The Supreme Court will review Kohler Co.’s petition to annex land from the Town of Wilson to the City of Sheboygan for the purpose of developing a golf course. The City of Sheboygan adopted the annexation ordinance, and the Town of Wilson filed this lawsuit.

The Town argues that the annexation does not satisfy statutory requirements for contiguity, certified population count, and signatures. Furthermore, the City did not show there was a need for the annexed property.

On the other hand, the City argues they and Kohler followed all statutory requirements related to the annexation. Furthermore, the City argues it had a need for expanded residential housing and other economic benefits provided by the annexation.

Newly elected Justice Brian Hagedorn was sworn into the Wisconsin Supreme Court on Aug. 1, 2019, with his public investiture and swearing in ceremony held at the state capitol this week. Hagedorn, replacing retired Justice Shirley Abrahamson, will serve a 10 year term on the court.

Justice Hagedorn’s swearing in shifts the court from a 4-3 to 5-2 conservative majority. The next Supreme Court election will occur in April 2020, with current Justice Daniel Kelly running for reelection. (Read more about the 2020 candidates.)

 

In Enbridge Energy Co., Inc. v. Dane County (2019 WI 78), the Wisconsin Supreme Court held that counties may not include unenforceable permit conditions on conditional use permits.

Dane County issued Enbridge Energy a conditional use permit to expand the volume of oil pumped through a local Enbridge pipeline. The permit contained conditions requiring Enbridge to maintain two liability insurance policies. Shortly after Dane County issued the permit, the legislature passed in the 2015-16 state budget (2015 Act 55) a provision precluding counties from requiring pipeline operators to obtain insurance if the operators already carry general liability insurance including coverage for sudden and accidental pollution liability. After the law change, Dane County retained the previous insurance conditions in Enbridge’s permit, but added language indicating that the new state law made the conditions unenforceable.

Enbridge filed the instant lawsuit asking the court to remove the unenforceable insurance conditions. Additionally, several Dane County property owners filed a lawsuit asserting that Enbridge was not in compliance with the new state law insurance requirements, so they could enforce the conditions.

The Supreme Court determined that Enbridge did have the requisite insurance coverage, both comprehensive general liability and sudden and accidental pollution liability, to comply with the Act 55 requirements. Therefore, Act 55 applies and precludes Dane County and the landowners from enforcing additional insurance conditions. The Supreme Court then concluded that the circuit court properly struck the unlawful conditions from the permit, as courts can modify conditional use permits under Wis. Stat. § 59.694(10). The decision allows Enbridge to proceed with its pipeline activity without the unlawful permit conditions and without having to start over in the conditional use permit process.

In a dissent, Justice Ann Walsh Bradley argued that Enbridge did not carry the statutorily required sudden and accidental pollution liability insurance. Therefore, Act 55 preemption provisions did not apply, and Dane County could enforce the additional insurance conditions. The dissent argued Enbridge did not show it carried the proper insurance. Under a definition of “sudden” used in a previous case, the policy must cover both “abrupt and immediate” and “unexpected and unintended” pollution events. According to the dissent, the policy covered “abrupt and immediate” but not “unexpected and unintended” events. Without the requisite insurance, Dane County could enforce the additional permit conditions without state law preemption under Act 55.

Justice Abrahamson and Dallet did not participate in the case.