Summary Judgment – Admissible Evidence

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WI Court of Appeals – District I

Case Name: Lanarius T. Hodges v. Michael L. Chernin

Case No.: 2019AP129

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Summary Judgment – Admissible Evidence

Lanarius T. Hodges, pro se, appeals an order of the trial court granting Michael L. Chernin’s motion for summary judgment dismissing Hodges’ action against Chernin. Hodges’ complaint alleged claims for legal malpractice, fraud, and breach of fiduciary duty against Chernin.

Essentially this case arises from Hodges’ allegations that, at the request of Hussein Govani, Chernin convinced Hodges to sign a release of potential personal injury claims arising from injuries that Hodges sustained in a shooting incident at a tavern owned by Govani. Hodges alleges that at the same time, Chernin was also representing Hodges in an unrelated criminal case, at the behest of Govani.

Chernin brought a motion for summary judgment seeking dismissal of Hodges’ complaint in this action. In support of his motion, Chernin submitted an affidavit in which he averred that a certain disc contained recorded phone calls that Hodges made while he was in custody in the Milwaukee County Jail. He then asserted that statements that Hodges made in the phone calls clearly showed that Hodges understood that by signing the release he would be giving up any potential claims that he had arising from the tavern shooting. Chernin then argued that, because Hodges understood the effect of his signing the release, Chernin could not have been the “proximate cause” of any injuries Hodges suffered as a result of signing the release.

The trial court based its decision granting the motion for summary judgment exclusively on the contents of the disc Chernin submitted. It stated that, as a result of Hodges’ knowledge of the effect of the release, the “causation chain” in each of Hodges’ claims “is broken.” This appeal followed.

We conclude that the trial court erred in relying on Chernin’s affidavit in finding that the disc constituted admissible evidence for the purpose of his summary judgment motion because Chernin lacked the requisite personal knowledge to support his averments in his affidavit. Therefore, we reverse the trial court’s order granting Chernin’s motion for summary judgment.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.