Wisconsin Business and Commercial Litigation

Under 2011 Wisconsin Act 69, which I wrote about in a previous post, judgment interest in Wisconsin will drop dramatically.  Effective as of December 2, 2011, the interest rate on civil judgments is no longer 12%, but rather 1% over the prime rate, adjusted periodically.  As if there weren’t enough traps for Wisconsin lawyers out there, now there’s a new math requirement. 

It appears that the new requirements affect judgments entered on or after December 2, 2011, rather than applying only to suits filed after the effective date.  I don’t know about you, but I’m going to have to get a new calculator.

To add to the downside, there will be a much reduced incentive to pay judgments quickly.  I’m guessing the intent was to help businesses out, but what about the businesses that own judgments that aren’t being paid for years at a time?  As you Wisconsin attorneys know, a judgment is just a piece of paper, and collection is the real issue.  With this incentive gone, I’m expecting collections to be much more difficult in the future.

Photo courtesy purpleslog via this license.

As reported by the Wisconsin State Bar’s Joe Forward, both houses of the Wisconsin Legislature have passed a bill lowering the interest rate on civil money judgments.  Currently at 12% annual interest, the legislation would drop the rate to 1% over the prime rate in effect on January 1 and June 30 of each year.  As if figuring out the interest due on judgments wasn’t complicated enough for lawyers, many of whom got into this profession to avoid math altogether.  The bill is headed to Governor Scott Walker for his consideration.

The bill was a Republican measure, and passed along party lines.  Read Forward’s article for more information on the opposing points of view.

In Radley v. Ives (Oct. 20, 2011), the Wisconsin Court of Appeals wrestled with the costs statute, Wis. Stat. 814.01.  In this medical malpractice case, William Radley was hospitalized following a heart attack.  While his discharging physician recommended daily anticoagulant tests, a ThedaCare physican at the Veterans Home where Radley moved determined daily anticoagulant testing was unnecessary.  Radley died of excessive blood loss two days after the first anticoagulant test was performed. 

ThedaCare stipulated that its negligence in monitoring Radely’s anticoagulants were a substantial factor in causing his death, and that, because it was responsible for about $10,000 in funeral expenses, the court could answer the funeral expenses question on the jury verdict.  A trial was held regarding pre-death pain and suffering caused by ThedaCare, in which the jury awarded no damages. 

Following the trial, the plaintiff submitted a bill of costs pursuant to Wis. Stat. 814.01(1).  Over ThedaCare’s objections, the trial court awarded costs to the plaintiff.  The appellate court agreed with the trial court, reasoning:

 Based upon the plain language of Wis. Stat. § 814.01(1) and Hartwig’s interpretation of “recovery” in an early version of the statute, we conclude that a plaintiff obtains a “recovery” and is entitled to statutory expenses under § 814.01(1) when litigation results in a court judgment awarding a recovery. A prevailing plaintiff for purposes of § 814.01(1) is a plaintiff who is awarded a recovery in a judgment, not, as ThedaCare incorrectly suggests, a plaintiff who obtains a recovery as a result of a recovery dispute resolved by a trial.

The lesson here is that when settling and permitting a judgment to be taken, be aware that the rule in Wisconsin is that costs will be awarded unless the parties agree differently. 

Dr. Tom photo courtesy aue04117’s photostream via this license.

In Crown Castle v. Orion Construction (Dec. 7, 2010), the District 3 Court of Appeals considered whether a judgment creditor could obtain supplemental examination of the books and records of a corporate entity sharing common ownership with the judgment debtor.  The short answer is yes.  The Court was so concerned enough about cagey debtors avoiding the responsibility to pay by moving assets that it cited an 1885 case to make its point:

The order and scope of the examination of a judgment debtor in a proceeding supplementary to execution are largely in the discretion of the judge or commissioner before whom such examination is being taken. This is necessarily so, because, if the debtor has concealed property which is sought to be discovered, he is called to testify against his supposed interest, and will always give his testimony reluctantly. Unless a comprehensive and searching examination be allowed, an artful debtor might defeat the discovery sought. To apply to such an examination the strict technical rules governing the examination of a witness on the trial of a cause, or even the less strict rules applicable to a cross-examination, which it more nearly resembles, would be to impair greatly the efficiency and usefulness of the remedy intended to be given by the proceeding, and, in many cases, to destroy it entirely.

As important to the court’s considerations were other telltale signs like no records or assets of any sort in the judgment debtor.  If you’re looking to enforce a judgment against a knowledgeable judgment debtor, have a look at this case.