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Supreme court accepts three new cases

Madison, Wisconsin - December 21, 2009

The Wisconsin Supreme Court has voted to accept three new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked. 

2007AP2886 Saddle Ridge Corp. v. Town of Pacific Bd. of Review
This case involves a dispute about who is responsible for paying taxes on declared but not yet built condominium units. A decision by the Supreme Court could have broad financial implications for condominium owners and developers throughout the state.

Some background: This case involves the 2006 assessment of 41 declared-but-not built condominium units in the Town of Pacific.  Saddle Ridge is the developer of the three condominiums.  The Town notified Saddle Ridge it would assess the vacant land as 41 separate tax parcels.  The Town assessed the parcels at $32,000 each. The prior year the Town had assessed the parcels at $5,000 each.  Saddle Ridge objected to the 2006 assessment before the Board of Review for the Town of Pacific (Board), arguing it did not own the vacant land. 

Saddle Ridge argued the individual owners of the built units were the proper owners of the land.  In support of this argument, it cited the terms of the condominium declarations, as well as relevant statutes and provisions from the Property Assessment Manual for the Wisconsin Assessors.  Following a hearing, the Board voted in a tie, thus upholding the assessment. 

Saddle Ridge took its case to the circuit court, which reversed the Board’s decision and sent it back to the board, ordering it to vacate the assessment.  The circuit court concluded that the tax parcels represented common elements of each condominium project and were assessable as such to the various unit owners.  The Board appealed, and the Court of Appeals affirmed with Judge Charles P. Dykman dissenting,

The Board has asked the Supreme Court to review:

  • Who is assessable for the fair market value of declared but unbuilt condominium units?
  • Is the property in condominiums assessable to its beneficial owner, just as all other real property is assessable to its beneficial owner?
  • Is the condominium developer the beneficial owner of the declared but unbuilt units that will be built on undeveloped land?

From Columbia County.

2008AP1494   Miller v. The Hanover Ins. Co.
This complicated insurance case resulting from a car accident, examines issues related to insurance subrogation rights and the proper form of service involved in serving a civil complaint.

Some background, according to the Court of Appeals: In August 2003, Vearl Miller was seriously injured in an automobile accident which occurred in the scope of his employment with Car Quest.

 In June 2004, Vearl and his wife, Wanda, sued the driver of the other vehicle, alleging negligence. Vearl claimed damages for his injuries and Wanda claimed damages for loss of consortium, and society and companionship. The Millers included as defendants the other driver’s insurer, and Vearl’s UIM insurer. The Millers also named Zurich, which had issued a policy to Car Quest’s parent company, General Parts, as a party claiming subrogation for worker’s compensation it had paid or would pay to Vearl.

When Zurich received the Millers' summons and complaint, it followed the special claims handling instructions of its insured, General Parts, to forward the claim to GAB Robins Risk Management Services (GAB), a third-party claims administrator. 

By February of 2005, the Millers had resolved their disputes with the tortfeasor and his insurer, and those defendants were dismissed from the case.  The circuit court entered a stipulation and order for disbursement of the settlement funds provided by that tortfeasor and his insurer.  The order provided for payments to Zurich for its subrogation claim and to Zurich's counsel.  The Millers' attorney asked the circuit court to keep the case open as to various defendants, including Zurich, but Zurich was never advised of this fact.

On June 7, 2006, the Millers filed an amended complaint naming Zurich as a defendant and claiming Zurich provided UIM coverage in its policy issued to Car Quest.  The amended complaint alleged that Zurich provided $2 million of UIM coverage.  The Millers demanded actual and punitive damages, attorney fees, costs, and any other compensation deemed appropriate.
On June 20, 2006, the Millers served Zurich by serving Zurich's registered agent, instead of serving Zurich’s attorney of record. A Zurich employee who received the documents for processing mistakenly  believed that they  were duplicates of other pleadings she had processed several days earlier.  Thus, she did not send the pleadings in this case to GAB. As a result, Zurich did not timely answer the amended complaint, and the Millers moved for default judgment.  Several weeks later, Zurich, by Atty. Craig Nelson, filed an answer and motion for extension of time to file an answer.  After several hearings, the circuit court entered a default judgment in favor of the Millers.  Zurich moved for reconsideration, which was denied.  Zurich then moved for relief from the default judgment in the interest of justice.  That motion was also denied.

The circuit court issued an order limiting the Millers' recovery to $2 million, based on language contained in the amended complaint.  It also ordered the damages prorated between the Miller plaintiffs. 

The Millers appealed from an order for damages after they obtained a default judgment on their amended complaint seeking underinsured motorist (UIM) coverage from Zurich. The Millers contend that the court erred in limiting their damages based on the language in their amended complaint and in prorating the damages award between the plaintiffs.

Zurich cross appealed from the orders granting default judgment, denying it relief from the judgment, and the judgment award.  The Court of Appeals affirmed the circuit court orders granting default judgment to the Millers and denying Zurich relief from the judgment.  It also affirmed the circuit court's order assessing the Millers’ damages and the part of the order limiting the Millers' damage award to $2 million.  It reversed the part of the circuit court's order pro-rating the damages award between the Millers.

In its petition for review, Hanover asked the Supreme Court to review if, under Wis. Stat. § 801.14(2), when a defendant has not been dismissed as a party to an action, may a plaintiff serve an amended complaint on that defendant directly and not serve that defendant’s attorney of record or even provide him with a copy of the pleading under the series of circumstances involved in this case.

In their petition for cross review, the Millers ask the Supreme Court to review one question:

Did the court of appeals err when it upheld the trial court's decision limiting the Millers' $9,666,314.98 damages award to $2 million recovery based on the allegations of the amended complaint, the insurance policies and the law related to default judgment? From Monroe County.

2009AP524  Metropolitan Associates v. City of Milwaukee 
This case examines the constitutionality of 2007 Act 86, which amended statutes that guide the process used to challenge property tax assessments.

Some background: Milwaukee Metropolitan Associates, a Wisconsin Limited Partnership, challenged its 2008 property assessment in the city of Milwaukee. The company contends that changes made to Wis. Stat. § 74.37 after a previous Supreme Court ruling failed to address equal protection concerns.

Specifically, Milwaukee Metropolitan Associates, a Wisconsin Limited Partnership, has asked the Supreme Court to review the question: Does the Court of Appeals holding – that portions of Wis. Stat. § 74.37, as amended by 2007 Wisconsin Act 86 (Act 86), do not violate the equal protection clause – conflict with this court's decision in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141?

Prior to the enactment of 2007 Wis. Act 86 and prior to the Nankin decision, the procedures in § 74.37 for challenging an alleged excessive assessment of real property were limited by § 74.37(6), which declared that § 74.37 “does not apply in counties with a population of 500,000 or more.”

Milwaukee County is the only Wisconsin county with a population exceeding 500,000.  Under § 74.37, a property owner claiming that the property was assessed too high could file a claim for an excessive assessment with the taxing authority.  If that claim was disallowed, a property owner not living in Milwaukee County could commence an action in circuit court to recover the amount of the claim not allowed as long as the property owner timely paid the tax asserted to the owed. A Milwaukee County property owner was limited to appealing from the board’s determination via an action for certiorari.

The Nankin court concluded that the differences between those sets of rights were so significant as to rise to the level of an equal protection violation.  The Nankin court struck § 74.37(6) from the statute but left the rest of § 74.37 fully operative.  Following Nankin, all taxpayers challenging their property tax assessments could use the action route under § 74.37(3)(d). 
In 2007 Wis. Act 86, the legislature created new §§ 70.47(7)(c) and (16)(c), which permitted municipalities, including first-class cities, which are covered in paragraph (16)(c) to enact ordinances providing certain changes to their board of review procedures.  The new act gives municipalities the ability to opt out of the action route, leaving only certiorari review available,  by the adoption of an appropriate ordinance.

The City of Milwaukee adopted such an ordinance, and Metropolitan filed suit on behalf of itself and other similarly situated taxpayers seeking a declaration that the opt-out provision deprived it of equal protection.  The circuit court concluded that §§ 8 and 9 of Act 86 created a distinct classification of citizens, taxpayers whose municipalities had, and taxpayers whose municipalities had not, adopted ordinances under the statute. 

The circuit court concluded the legislation treated the “favored” and “disfavored” classes significantly differently and found there was no rational basis for that distinction.  The circuit court struck down § 8 and 9 of Act 86, leaving all other provisions of §§ 70.47 and 74.37, as amended, in place.  The only change effected by the circuit court's decision was that municipalities could no longer invoke § 74.37(4)(c) and (4)(d) to prevent taxpayers from filing claims and actions under § 74.37.  The city appealed, and the Court of Appeals reversed.

The Court of Appeals agreed with the city and concluded that Metropolitan failed to meet its burden to demonstrate beyond a reasonable doubt that the revised statutory scheme violated its right to equal protection. The Court of Appeals concluded that 2007 Wis. Act 86 addressed the Nankin court's concerns.

Metropolitan argues that in §§ 8 and 9 of Act 86, the legislature attempted to restore the exact discrimination which former § 74.37(6) had fostered before this court struck it down in Nankin.

The city says the pertinent inquiry is whether those distinctions are significantly different for purposes of constitutional analysis or are simply distinctions without a constitutionally meaningful difference.  The city says it is the latter. From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

2008AP1342  Kuehne v. Burdette - Justice N. Patrick Crooks did not participate.  Justice Ann Walsh Bradley dissents.
2008AP2579-CR State v. Garcia-Soto
2009AP176  Brown Co. DHS v. Teresa A.T. - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2009AP1625-W Bonds v. Grams
2009AP2466-CRLV State v. Larson

2008AP1358-CRNM State v. Hannon
2008AP2482  Est. of Lanzendorf v. Shaw

2007AP1067  Gehl v. Town Board of Town of Perry - Justice Patience Drake Roggensack dissent.
2007AP2884  Xerox Corp. v. DOR - Justices Patience Drake Roggensack and Annette Kingsland Ziegler dissent.
2008AP546  Town of Cross Plains v. Kitt’s Korner
2008AP1619-CRNM State v. Luu
2008AP3092  Obriecht v. Law Ofcs. Of Lettenberger & Glasbrenner

2009AP928-W Guman v. Bissonnette - Chief Justice Shirley S. Abrahamson did not participate.

Fond du Lac
2009AP827-W Luchinski v. Pollard

2008AP1744   Olson v. Darlington Mut. Ins. Co.

2008AP206-CR State v. Bowser - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2009AP2792-W Durigan v. COA

2008AP2540-CR State v. Kenney

2008AP1964/1988 Harborview Office Ctr. v. Nash
2008AP2039-CR State v. Mack

La Crosse
2006AP1210  H&R Block v. Swenson
2007AP2533  State v. Williams

2008AP2468-CR State v. Vega
2008AP2769-CR State V. Reis

2009AP1472-74 Marathon Co. DSS v. Lynn W.

2007AP1292-CR  State v. Pegues 
2007AP2931  DeBraska V. Quad Graphics - Chief Justice Shirley S. Abrahamson and Justices Patience Drake Roggensack, Annette Kingsland Ziegler and Michael J. Gableman did not participate. Justice David T. Prosser, Jr. concurs.
2008AP88  State v. Davis
2008AP427-CR  State v. Lobley 
2008AP1129-CR  State v. Crossley 
2008AP1373   Schapiro v. Pokos 
2008AP1481   State v. Warren
2008AP1686-CR State v. Lambert
2008AP1853-CR State v. Richard - Chief Justice Shirley S. Abrahamson dissents. 
2008AP1903  State v. Montgomery - Chief Justice Shirley S. Abrahamson and Justice David T. Prosser, Jr. dissent.
2008AP2178-CR State v. Smith
2008AP2289   Donaldson v. West Bend  - Justices Ann Walsh Bradley and Patience Drake Roggensack dissent.
2008AP2403-CR State v. Park
2008AP2840-CR State v. Mercado-Torres
2008AP2505-CR State v. Olivar
2008AP2596-CR State v. Ross
2008AP2653  Margaret B. v. Milw. Co.
2008AP2717  Harambee Comm. School v. Lee
2008AP2885-CR State v. Kobin
2009AP127-CR State v. Loggins
2009AP167  State v. Podany
2009AP1469-70 Covenant Healthcare v. City of Wauwatosa
2009AP2646-OA Pharm v. Watters
2009AP2674-OA Holman v. Watters

2007AP1052-CR State v. Miller - Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks dissent.

2008AP635  Marriage of :  Madala
2009AP2508-W Driggers v. COA

2008AP2574-CR State v. Lammers - Justice N. Patrick Crooks did not participate.

St. Croix
2008AP2550  Serier v. Central St. Croix Rod & Gun Club

2008AP3136-CR State v. Lux - Justice N. Patrick Crooks did not participate.

2008AP1545-CR State v. Thorp

2009AP47  Washington Co. v. Welch

2009AP985-FT Waukesha co. DH&HS v. Stanley W.F. - Justice David T. Prosser, Jr. dissents.

2008AP394/1874 State v. Stewart
2008AP2894-CR State v. Austin

Tom Sheehan
Court Information Officer
(608) 261-6640

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