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Internet Case Analysis

Given the ubiquity of the Internet, and the growth of Internet-facilitated crime, it is noteworthy that this is the first Seventh Circuit case to consider the legality of a condition of supervised release barring Internet use without permission. Even more noteworthy is the degree of the court’s vehemence against sentencing courts imposing such a condition. Of course, this is a ...

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Warranty deed does not bar claim in equity

Execution of a warranty deed does not extinguish a co-tenant’s ability to seek equitable reimbursement for improvements made prior to the deed, the Wisconsin Court of Appeals held on Feb. 1. From 1951 to 1994, brothers Gerald and Emmett O’Connell, and their respective wives, Maxine and Annette, owned land on Spider Lake as co-tenants in common. Each couple had an ...

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Reimbursement Case Analysis

Even if an "inchoate, potential cause of action in equity" is not an "encumbrance," within the meaning of sec. 706.10(5), as the court found, the decision in this case is nevertheless incorrect, because it is a "lawful claim" within the meaning of the statute. In addition to providing that a grantor warrants that a title is free from encumbrance, subsec. ...

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Roundtable Discussion

State/Federal Forums Part 2 Choosing to file a case in state or federal court is one of the first and most important decisions a litigator makes. The forum will determine the rules lawyers must follow and the way the case will be treated by the court. Bringing a case in the wrong forum can have serious repercussions for the lawyer ...

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Arbitrators can award punitive damages

“The majority’s result is unnecessary, and unfortunate for Wisconsin farmers and others who sell commodities to organizations capable of litigating until the cows come home.” Hon. Charles P. Dykman In dissent An arbitrator can award attorney fees and punitive damages, the Wisconsin Court of Appeals held on Jan. 27. However, a court cannot award attorney fees incurred in proceedings to ...

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Arbitration Case Analysis

One question raised by the decision is whether there is any substantive difference between the approach adopted by the court and the federal rule that, "arbitrators may award punitive damages unless the arbitration agreement provides otherwise." The court was adamant that it was not adopting the federal rule, but merely holding that the arbitrator’s decision to award them was not ...

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Roundtable Discussion

State/Federal Forums Left to Right: Janet L. Heins, Heins Law Office LLC; John D. Finerty Jr., Michael Best & Friedrich LLP; Ann Althouse, UW Law School; Nora M. Platt, Quarles & Brady LLP; Paul J. Scoptur, Aiken & Scoptur SC; Hon. William C. Griesbach, U.S. District Court, Eastern District of Wisconsin Part 1 Choosing to file a case in state ...

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Section 103.43 limited to manual laborers

The Wisconsin Court of Appeals held on Jan. 26 that only manual laborers may recover attorney fees for fraud in the inducement to employment, under sec. 103.43. In 1999, Christina Bellon read an advertisement for a tenure track faculty position at Ripon College. On Jan. 31, 2000, she met with David Seligman, Ripon’s vice president and dean of faculty at ...

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Section 103.43 Case Analysis

Given the weakness of the case for misrepresentation, the case may not be the best candidate for review in the Supreme Court. However, whether sec 103.43 can remain limited to manual laborers, as the court held, without violating the Equal Protection Clause, is an issue that the court should address soon. However well-meaning and necessary when enacted, the statute is ...

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Moving forward with Booker

Lawyers representing clients in federal criminal cases need to be looking at factors beyond those listed in the federal guidelines when addressing the court about sentencing. That’s one of the important lessons following the U.S. Supreme Court’s recent sentencing-related decisions. T. Christopher Kelly, who argued U.S. v. Booker before the U.S. Supreme Court, said lawyers need to realize that judges ...

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Pool's exculpatory clause held invalid

“It would be unrealistic to require that an employee be authorized to ‘bargain’ about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility.” Hon. Patience D. Roggensack, Concurring An exculpatory clause that does not give the signer an opportunity to bargain over its terms is contrary to public ...

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Exculpatory Case Analysis

In the wake of this decision, all exculpatory clauses in use should be reviewed. However, it is not clear whether it is even possible to draft an enforceable clause after this decision. Two of the deficiencies of the clause in the case at bar can easily be remedied. The word "fault" can be changed to "negligence." In addition, waivers can ...

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Service Case Analysis

The decision remands the case to the circuit court to determine whether actual authority was granted to Levy by Mansfield, but the attorneys will likely find little guidance as to what constitutes actual authority. While the court found no shortage of cases holding that actual, rather than apparent, authority is necessary to confer agency to accept service, courts will not ...

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Lying-in costs depend on ability to pay

What the court held Case: Rusk County Department of Health and Human Services v. Thorson, No. 04-2267. Issue: Can a court order a father to pay a mother’s lying-in expenses, even though he has no ability to pay? Holding: No. Pursuant to section 767.51(3)(e), a father’s ability to pay is a prerequisite. Counsel: Carol A. Conklin, Ladysmith, for appellant; Michael ...

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Lying-In Costs Case Analysis

In the aftermath of this decision, Wisconsin courts should expect a deluge of motions for modification of paternity orders by fathers ordered to pay mothers’ lying-in expenses. For decades, orders such as the one in the case at bar have been entered without an objection as to the lawfulness of the orders, or consideration of the statute. The "ability to ...

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Justices approve $50 fee for legal services

Lawyers can expect to find an additional fee of $50 on their annual dues statements starting this year. The state Supreme Court approved a petition last week that would use the assessment to help fund civil legal services for the poor. Indicating the need for leadership on the issue of funding legal services to the poor, the court in a ...

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State Bar will investigate legality of fee

State Bar Motion The motion approved Friday by the State Bar Board of Governors by a 24-17 vote states: “The State Bar of Wisconsin officers are directed to obtain counsel and obtain a legal opinion from said counsel as to the legality of the Supreme Court Order approving the WisTAF Petition (Petition 04-05) to impose a $50 mandatory assessment annually ...

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Federal sentencing guidelines unconstitutional

What the court held Case: U.S. v. Booker, Nos. 04-104 & 04-105. Issue: Are the federal sentencing guidelines constitutional? If not, what is the remedy? Holding: No. The guidelines are mandatory, and therefore violate the Sixth Amendment right to a jury trial. The guidelines should be followed, but treated as advisory, rather than mandatory. The U.S. Supreme Court held on ...

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Guidelines Case Analysis

Despite (or perhaps because of) the fact that the case resulted in two separate lead opinions, and four dissents, the case leaves much uncertainty. On the issue of retroactivity, the court states that courts should consider whether the issue was raised below, and whether it fails the "plain-error" test. Despite addressing Blakely in a number of cases since it was ...

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Bradley will not face re-election competition

Hon. Ann Walsh Bradley All three appellate seats up for election this April will remain in the incumbents’ hands absent significant write-in campaigns. Following last week’s deadline for filing nomination papers, Justice Ann Walsh Bradley and judges Gregory A. Peterson and Paul B. Higginbotham were not facing any challengers. Bradley will run unopposed for her second term on the state ...

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De novo preliminary hearings not allowed

“Because Wis. Stat. Sec. 970.04 lays out the only scenario in which the legislature has recognized a statutory right to a second preliminary examination on the same charge, we reject Gillespie’s contention that the circuit court erred in denying his request for a de novo preliminary hearing.” Hon. Neal Nettesheim Wisconsin Court of Appeals A criminal defendant has no right ...

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De Novo Review Case Analysis

The decision that a defendant can only obtain a review of a preliminary hearing on the record certainly comports with what everyone has always assumed was the law, or at least since State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994). Nevertheless, the conclusion that sec. 970.04 is a ...

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Guilt no bar to contract claim

What the court held Case: Winniczek v. Nagelberg, No. 04-2106. Issue: Does the "actual innocence" rule preclude an action by a guilty criminal defendant against his attorney for breach of contract? Holding: No. The rule only bars actions for legal malpractice, not contract actions. The Seventh Circuit held on Jan. 7 that the "actual innocence" rule does not bar a ...

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Actual Innocence Case Analysis

Technically, this case is an application of Illinois state law, and has no direct bearing in Wisconsin. Nevertheless, as both states have the actual innocence rule, criminal defense attorneys and their insurers should be aware of it. Wisconsin expressly adopted the actual innocence rule in Hicks v. Nunnery, 2002 WI App 87, 253 Wis.2d 721, 643 N.W.2d 809, 820-823, although ...

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Contribution Case Analysis

Parties adversely affected by the decision in this case should nevertheless preserve objections for potential review in the Supreme Court. Although the decision may not contradict any binding case law, neither does any precedent require the holding, and the holding is contrary to public policy. The court cites a great number of prior precedents to support its holding, but none ...

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Default no bar to contribution claim

Hon. Ralph Adam Fine A default judgment does not preclude the defendant from seeking contribution from other defendants, the Wisconsin Court of Appeals held on Dec. 28. SIVA Truck Leasing leased a van to Milwaukee Careers Cooperative (MCC) for use in its business of taking people to their jobs. Four passengers were injured, and sued MCC, its insurer, Cincinnati Insurance ...

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Possible punitives insufficient for diversity jurisdiction

What the court held Case: Munro v. Golden Rule Ins. Co., No. 04-1396 Issue: Can a bad faith case be brought against an insurer in federal court where the damages and attorney’s fees combined are less than $7,500? Holding: No. Any punitive damage award large enough to reach the $75,000 threshold would violate due process, so the case must be ...

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Diversity Case Analysis

The decision suffers from several defects: poor math, misrepresentation of Seventh Circuit precedent, and ignorance of Wisconsin law. First, the court states that, in order to meet the jurisdictional requirement, the jury’s punitive damage award would have to be "more than ten times" the amount of compensatory damages, when the U.S. Supreme Court has said that "few" awards exceeding that ...

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