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Debt obligations can be maintenance

U.S. Bankruptcy Judge Robert D. Martin held on Sept. 29 that, where a marital settlement agreement classified marital debts as being part of the financial support settlement, rather than the property settlement, the debts are not dischargeable in bankruptcy. Mark D. Wedeward and Christine Ellen Weaver were divorced on Aug. 6, 2003. The parties executed a marital settlement agreement that ...

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Maintenance Case Analysis

A question raised by the decision is whether parties getting divorced can ensure that the debts will be nondischargeable in bankruptcy if they merely parrot the exact language used in the case at bar. An interpretation that they can would be consistent with the parties’ "specific and clear" intent, a primary consideration of the court in the case at bar. ...

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OLR seeks increase in citizen participation

More members of the general public may serve in the lawyer discipline process if the Wisconsin Supreme Court approves rule changes proposed in a petition the director of the Office of Lawyer Regulation filed in early November. Among other revisions, the petition proposes an increase in the goal for the proportion of non-lawyer membership in district committees to two-fifths, up ...

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Judges can set eligibility date for ERP

"To the extent that the CIP and ERP provisions are linked by nearly identical language, similar subject matter and parallel function in the Truth-in-Sentencing scheme, they are related statutes whose meaning must be harmonized." Hon. Thomas Cane Wisconsin Court of Appeals The Wisconsin Court of Appeals held on Nov. 16 that trial courts have the authority both to decide whether ...

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ERP Case Analysis

Ironically, while the similarity between subsections (3m) and (3g) of sec 973.01 is what doomed White’s case in the court of appeals, that similarity is the best chance he has to ultimately prevail in the Supreme Court, were that court to accept review in his case. The two subsections are verbatim, save for the fact that subsec. (3m)(Challenge Incarceration Program) ...

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Flight forfeits Fourth Amendment objection

When a passenger fled a parked vehicle upon an officer’s stop of the vehicle, his subsequent seizure did not violate the Fourth Amendment, even if the initial stop was unlawful, the Wisconsin Court of Appeals reluctantly held on Nov. 17. On Oct. 26, 2002, City of Kenosha Police Officer David Alfredson was patrolling an area of the city where taverns ...

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Flight Case Analysis

Given the general rule that the U.S. Supreme Court’s interpretations of the Fourth Amendment also apply to the Wisconsin Constitution, it is unlikely that the criticisms of California v. Hodari D., 499 U.S. 621 (1991) by the court of appeals will amount to anything other than dicta. Nevertheless, for attorneys wishing to make an attempt, the discussion provides an excellent ...

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Restorative justice places power in victims' hands

Janine P. GeskeMarquette Law School When Lynn BeBeau’s husband was shot and killed in the line of duty 23 years ago, she viewed the subsequent legal process as an "injustice system." Although the man who killed her husband eventually wound up in prison, the process filled her with rage. BeBeau’s husband — her high school sweetheart — was a police ...

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Economic loss doctrine inapplicable to service contracts

“Unlike contracts for products or goods, which enjoy the benefit of well-developed law under the U.C.C., no such benefit exists for contracts for services.” Hon. Ann Walsh Bradley Wisconsin Supreme Court The economic loss doctrine does not apply to contracts for services, the Wisconsin Supreme Court held on Nov. 9. Cold Spring Egg Farm raises chickens to produce eggs, and ...

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Service Contracts Case Analysis

One question the court deliberately left unanswered is whether the economic loss doctrine applies to "mixed contracts" — those for both goods and services — a question it ultimately must answer. Several methods could be used. The court could simply answer it either yes or no. This seems unlikely, however, as so many contracts, including the one in the case ...

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Labor Logic

Cease Electric case upholds tort liability for contracts to provide services

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Lead paint suit may proceed to jury

“There are genuine issues of material fact concerning each defendant’s involvement in an alleged conspiracy to promote and accomplish the sale of lead-based paint, knowing of its potentially hazardous properties.” Hon. Joan Kessler Wisconsin Court of Appeals A city can sue a paint manufacturer for abatement of toxic lead hazards under public nuisance, conspiracy, and restitution theories, the Wisconsin Court ...

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Lead Paint Case Analysis

The court’s discussion of the nuisance claim leaves a great deal unsettled, as the court seems to take away with one hand what it gives with another. The court states that creation of a nuisance has two elements: "a plaintiff must prove that the defendant’s conduct was a substantial cause of the existence of a public nuisance and that the ...

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Tips for young lawyers

“No case is worth losing your license for.” Robert L. Habush, Habush Habush & Rottier, S.C. "Don’t be a jerk." That was the most common piece of advice that Milwaukee County Circuit Court judges and veteran litigators gave to a group of young lawyers and law students. They noted that gaining a reputation as someone who is difficult to work ...

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Choose venue wisely

“The one that I send counsel back for briefing on over and over again is the one about diversity. People will file with LLCs and partnerships and will not figure out where the members of those partnerships are located.” Hon. Barbara Crabb Chief Judge Chief Judge Barbara B. Crabb, from the U.S. District Court for the Western District of Wisconsin ...

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Bar to oppose mandatory WisTAF assessment

“We should stand up to our constituents. We understand the scope of the problem. It should be mandatory because we need the money.” Daniel L. ShneidmanGovernor The Wisconsin State Bar’s Board of Governors voted last Friday to oppose a petition filed in the Wisconsin Supreme Court by The Wisconsin Trust Account Foundation (WisTAF) that would tax every attorney $50 to ...

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‘Trial’ occurs despite directed verdict

Hon. Shirley S. Abrahamson The Wisconsin Supreme Court held on Nov. 4 that, where a municipality presents its case in a municipal trial, and the defendant is granted a directed verdict, a "trial" has occurred, and the municipality can receive a new one in circuit court. In so holding, the court reversed a published decision of the court of appeals, ...

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Trial Case Analysis

The decision corrects what was an absurd anomaly, for reasons amply given by the court, and by Judge Brown in his dissent at the court of appeals level. There is no sound reason why a municipality should be able to have a new trial, if the defendant rests his case without presenting any evidence, and then obtains a favorable verdict, ...

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Exhaustion clause held ambiguous

“It is possible that reasonable people could differ as to the meaning of the phrase ‘that apply.’” Hon. Charles P. Dykman Concurring The Wisconsin Court of Appeals held on Oct. 28 that an insured’s judgment or settlement with a law firm for malpractice triggers the exhaustion requirement in an automobile policy’s UIM coverage. Debra A. Degenhardt-Wallace and Derrick McCoy were ...

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Exhaustion Case Analysis

Insurers can avoid the result in this case in the future, merely by replacing their exhaustion clauses, if they mirror the one at issue in his case, with the one at issue in Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, 245 Wis.2d 186, 190, 629 N.W.2d 150: "We will pay under this coverage only after the limits ...

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High court hears Miller Park case

“But while the court of appeals’ interpretation may be what they wanted and what others wanted, it is not supported by the statute.” Robert L. Habush What’s a court to do when the legislature has indicated its intent to do one thing, but drafts a statute that seemingly does the exact opposite? That is the question the Wisconsin Supreme Court ...

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Labor Logic

Taxation of settlement amounts, attorney fees in employment case: A follow-up

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Revoked prisoners can appeal reconfinement

Hon. Ralph Adam Fine A defendant whose extended supervision is revoked may seek appellate relief, the Wisconsin Court of Appeals held on Oct. 19. Christopher Swiams pleaded guilty to the delivery of fewer than five grams of cocaine as a second or subsequent offense, and was sentenced on Nov. 20, 2001, to a bifurcated term of 15 months in prison ...

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Sentencing Case Analysis

In light of this decision, defendants whose extended supervision is revoked appear to have substantially greater rights than revoked parolees have. Under the parole system, a revoked parolee is sent back to prison for a period of time determined by the administrative law judge. Either the entire period remaining, or a partial period, may be ordered. Administrative review to the ...

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Settlement invalid until release is signed

A settlement agreement is not reached until the plaintiff negotiates the check, and signs and returns the release form, the Wisconsin Court of Appeals held on Oct. 20. On Dec. 17, 1999, Marderos Nersesian was involved in an automobile accident with Jacinto R. Benavidez, who was insured by American National Property and Casualty Company (ANPAC). Nersesian and his wife retained ...

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Settlement Case Analysis

The decision in the case at bar is problematic for a number of reasons. The court is correct when it finds that the Dec. 20, 2001 letter does not form a contract, inasmuch as the worker’s compensation carrier had not yet agreed. However, it seems an inescapable conclusion that, on Jan. 4, 2002, an enforceable meeting of the minds was ...

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Limitations on fire insurance can't be extended

Hon. Neal Nettesheim An insurer’s partial payments to its insured do not extend the statute of limitations for an action by the insured to collect the balance of the claim, the Wisconsin Court of Appeals held on Oct. 13. Wieting Funeral Home of Chilton, Inc., had a business owners policy through Meridian Mutual Insurance Company. On May 12, 2000, Wieting’s ...

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Insurance Case Analysis

If the decision in this case is published, as recommended, it will mark a radical departure from a long-accepted assumption that a partial payment by an insurer to its insured tolls the statute of limitations, regardless of the nature of the claim. The last time the court of appeals addressed this issue, 12 years ago, it held to the contrary ...

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