Supreme Court New Cases

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The Wisconsin Supreme Court has voted to grant review in five cases. The case numbers, issues (provided by the Office of the Clerk of Supreme Court), and counties of origin are listed below.

2007AP1253 Brunton v. Nuvell Credit Corp.

This case examines jurisdictional issues arising from a car loan. More specifically, the Supreme Court has been asked to review when a defendant is deemed to have waived a challenge of improper venue under Wis. Stat. § 431.401 — the Wisconsin Consumer Act’s venue provision.

Denice Brunton has conceded that Dane County was not a proper venue for her action under § 421.401. The parties further agree that § 421.401(2) provides that a party who appears in an action brought under the WCA may waive an objection to improper venue. The question is when and how is improper venue waived?

The Court of Appeals then concluded that Nuvell “appear[ed] and waive[d]” its objection to improper venue within the meaning of Wis. Stat. § 421.401(2) “at some point prior to filing its venue challenge.” From Dane County.

2008AP10 Solowicz v. Forward Geneva National

This dispute involves three condominium owners in Geneva National, a master-planned community near Lake Geneva and various entities associated with its development. The Supreme Court has been asked to review several issues related to restrictive covenants and possible conflicts among covenants, case law and the state’s Condominium Ownership Act, Wis. Stat. ch. 703.

More specifically, the condominium unit owners have asked the court to review: Whether the Restrictive Covenant must be reasonable to be enforceable; Whether the Restrictive Covenant, which governs a master planned community that includes condominiums, is subject to ch. 703;

Whether the Restrictive Covenant is ambiguous; and Whether the Restrictive Covenant, which may be unlimited in scope and duration, is reasonable.

The three condominium owners sought a declaratory judgment to invalidate the restrictive covenant forming Geneva National’s governing structure. The condominium owners contend the restrictive covenant is unenforceable because it grants the developer too much control, contrary to the act. They also claim the restrictive covenant is ambiguous, unreasonable, against public policy and void.

The condominium owners contend the covenant conflicts with ch. 703, which would require a developer to develop the property within three years, or 10 years, if it is expandable, and that both time limits long passed.

The developers contended before the Court of Appeals that Geneva National is a master-planned community, not a condominium venture and that it sees vast differences between condominiums and master-planned communities. The developers explained that master-planned communities present a complex development method, distinct from condominiums, requiring the developer to retain control so that it may react to varying market and government conditions in seeing its vision through and its investment secured.

A decision by the Supreme Court could clarify law in this area. From Walworth County.

2008AP912 Bank Mutual v. S.J. Boyer Const

This commercial mortgage foreclosure proceeding examines whether a bank’s waiver of a deficiency judgment against the mortgage debtor by virtue of the shortened redemption provisions in Wis. Stat. § 846.103(2) also eliminates the liability of a separate guarantor, if any deficiency remains of the mortgage debt.

The Court of Appeals held that under § 846.103(2), because the Boyers were personally liable by virtue of the guarantee they executed, the bank was precluded from proceeding against them to seek a deficiency judgment.

Bank Mutual argues the effect of the Court of Appeals’ decision is to deprive commercial lenders of their right to elect a shorter redemption period because in doing so they forfeit rights against any guarantor. The bank says it did not obtain a deficiency judgment against the Boyers. Rather, it obtained a separate money judgment under the terms of their guarantees. The Court of Appeals’ decision also conflicts with prior appellate court decisions, the bank contends.

Specifically, Bank Mutual asks the Supreme Court to review two issues:

Does a commercial mortgage holder’s exercise of the right to obtain a shortened redemption period under § 846.103(2) require it to forfeit rights against a guarantor of payment because the guarantor is a “… party who is personally liable for the debts secured by the mortgage…” under the statute?

Can a guarantor of payment contractually waive an objection to, and consent to, a mortgage holder’s election under § 846.103(2) such that all rights against the guarantor are retained?

A decision by the Supreme Court could clarify law affecting mortgage foreclosure procedures statewide. From Brown County. 2007AP1868 Johnson Controls v. London Market

This certification is the latest in a dispute over insurance coverage in an ongoing lawsuit which has already spawned two prior appeals. The Supreme Court has been asked to examine issues involving excess umbrella insurance coverage on a business and whether certain policies include a duty to defend the insured under circumstances presented. Background from the Court of Appeals: Johnson Controls has been involved in years of litigation with multiple insurers over coverage for the potential costs associated with cleaning up environmental pollution at numerous sites covered by various policies.

Johnson Controls has now settled with a number of the insurers involved in the litigation, including with one insurer for less than the full policy amount, but continues to seek coverage and a defense from an excess umbrella insurer. The present appeal deals only with whether London Market has a duty to defend Johnson Controls under the terms of its excess umbrella liability policy. The facts necessary to resolve the appeal are undisputed and center on the policy language.

The certification from the Court of Appeals raises two primary questions:

Should a duty to defend be imported from an underlying umbrella insurance policy into an excess umbrella liability policy by language in the excess policy stating that it is subject to the same terms, definitions, exclusions and conditions as the underlying policy “except as otherwise provided”? The excess policy explicitly promises indemnification for certain liabilities but makes no mention of a duty to defend other than as noted above. Is the excess liability carrier’s duty to defend primary in nature, such that it may be triggered even if the excess policy expressly requires exhaustion of the underlying policy as a precondition to liability and the underlying policy has not been exhausted?

A decision by the Supreme Court could develop law in this area and affect both insurers that provide excess umbrella policie
s and the individuals or businesses that purchase such policies. From Milwaukee County.

2006AP948 Darnell Jackson v. Daniel Buchler and Matthew Frank

This case stems from a prison disciplinary action resulting from a riot at the New Lisbon Correctional Institute (NLCI) on Nov. 11, 2004.

Background: Darnell Jackson was found guilty of inciting the riot, which resulted in injuries to several correctional staff members.

The Supreme Court has been asked to review several issues:

Did the inclusion on a prison disciplinary committee of a prison official who briefly interviewed Jackson regarding the riot violate Jackson’s right to a fair and impartial decision maker?

Did Jackson exhaust his administrative remedies regarding the production of a surveillance videotape, and may the Supreme Court review the issue even if he failed to exhaust his administrative remedies?

Does the obligation of governmental authorities to produce exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963), apply to prison disciplinary proceedings? If so, what should be the process to determine if the information is exculpatory and what should be the remedy for failure to produce it?

Was there sufficient evidence to support Jackson’s violation of a prison regulation? From Dane County.