Wisconsin Supreme Court Accepts Three More Cases

Posted on Categories Wisconsin Civil Litigation, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System, Wisconsin Supreme Court

Supreme Court sealThe Wisconsin Supreme Court recently voted to accept review in three more cases, one criminal case and two civil ones.

The criminal case is State v. Popke, 2008AP446-CR. From the court’s website, “A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.”

The first civil case is Osborn v. Dennison, 2007AP1799. Again, the description from the court’s website:

This case involves a dispute over a failed residential real estate transaction and whether the sellers elected the remedy of liquidated damages, preventing the sellers from obtaining their actual damages.

Some background: Harold Dennison offered to purchase the home of Douglas and Martha Osborn, using the standard WB-11 Residential Offer to Purchase form approved by the Department of Regulation and Licensing. He deposited $2,000 in earnest money with the broker in connection with his offer. The parties reached an agreement.

After two previously scheduled closing dates had passed, Osborn elected to take advantage of his right to conduct a pre-closing inspection. He and the brokers for both parties discovered damp insulation and damp walls in the basement. Dennison requested another extension of the closing date to address these issues, but the Osborns rejected that request and the deal did not close.

The Osborns subsequently directed their broker to hold the earnest money and place the house back on the market. They also told their broker that they intended to sue Dennison for actual damages after the house had been sold. Dennison requested his earnest money be returned, but did not receive it at that time.

The Osborns sold their house to another buyer in October 2005. In April 2006, they filed a complaint against Dennison, which alleged breach of the sales agreement and sought actual damages.

The Osborns say they never requested nor received the earnest money and that Dennison never authorized it to be released to them. Dennison filed a motion to dismiss, which apparently raised the defense that the Osborns had elected the liquidated damages represented by the earnest money. On June 23, 2006, the Osborns directed their broker to return the earnest money to Dennison. The circuit court denied the motion to dismiss in July 2006. The Osborns then filed an amended complaint, which noted that they had authorized the return of the earnest money and which again sought actual damages.

Summary judgment motions were filed by both sides. The circuit court granted the partial summary judgment motion filed by Dennison and ruled that the Osborns were limited to collecting the $2,000 in earnest money as liquidated damages. The circuit court believed that the Osborns had irrevocably elected the remedy of liquidated damages when they had refused Dennison’s request in May 2005 for the return of his earnest money. The Court of Appeals affirmed.

The Osborns ask the Supreme Court to review if under these circumstances they “retained” the earnest money and thereby irrevocably elected the remedy of liquidated damages and forfeited their right to actual damages. From Kenosha County.

And the other civil case is Baldwin-Woodville Sch. v. West Central Ed., 2008AP519. Again, from the court’s website: “In this case involving a dispute over a teacher’s pay rate, the Supreme Court has been asked to review application of the ‘perverse misconstruction’ doctrine and if courts may vacate arbitration awards where parties gave the arbitrator express authority to decide procedure and timeliness.”

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