Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Note 2: BMO was represented in the Circuit Court case by Daniel Charles Warner Narvey and Andrew Oettinger, according to CCAP. Mohns was represented by John Edward Machulak.. The full decision in Mohns Inc. v. BMO Harris Bank National Association is here. Majority: Justice Rebecca Grassl Bradley (36 pages) Justices Brian Hagedorn and Annette Ziegler did not participate. ![]() The upshot We hold: (1) the circuit court did not erroneously exercise its discretion when it imposed judgment on liability as a sanction for BMO's discovery violations; (2) because the law does not permit recovery of damages for both breach of contract and unjust enrichment arising from the same conduct, the award of damages for unjust enrichment must be set aside; and (3) the punitive damages award must be overturned because it was based upon an award of damages for the contract claims, and punitive damages are recoverable only in tort. "Lie, lie, lie, shift blame on somebody else, anybody else but themselves, and say, nope, didn't happen, when the evidence is in their computer system, in their files, it is in the minds of their employees who aren't produced for deposition, who aren't made available to speak the truth." – Waukesha County Circuit Judge Kathryn Foster Background This case arises from a condominium construction venture between Paul Bouraxis, the developer; Mohns, the general contractor; and BMO (as successor-by-merger to M&I Marshall & Ilsley Bank), the bank financing the project, known as the Hickory Hills Condominiums. Bouraxis secured a commercial construction and mortgage loan (initially from M&I) to build 26 units, each housing four condominiums, on vacant land Bouraxis owned in New Berlin, Wisconsin. As Mohns completed portions of the project, it submitted paperwork to the bank's title company in order to draw payment from BMO for materials, subcontractors' work, and Mohns' own work, upon the title company's confirmation that the work had been completed.... In 2010 and 2011, Mohns had concerns about whether it would be paid for its work because Mohns' draw requests for payment were not being paid promptly.... Mohns sought reassurance from BMO banker Patrick Caine....Caine assured Mohns that it would be paid....Caine also sent a letter dated July 20, 2011 directly to Mohns' materials supplier, indicating that the supplier would be paid if it provided the materials to Mohns for the project. Based on these assurances, Mohns continued construction and submitted paperwork for two draws in July and one in August. Unbeknownst to Mohns, during this time BMO had been working to sell the Bouraxis construction loan along with some other loans. In late July 2011, BMO sold the Bouraxis loan to MIL Acquisition Venture, LP. BMO took a loss on the sale as the purchase price was based on the value of the property, which was significantly less than the original loan amount. Mohns learned about the sale sometime in August. BMO banker Caine assured Mohns that he would forward the August draw to MIL, the new owner of the loan, for payment. Mohns continued work on the property until October 2011.... (Mohns was not paid for work it did in 2011. – WJI) In February 2016, Mohns filed a complaint against BMO alleging three causes of action: (1) BMO breached its contract to pay Mohns for its work on the condominium project; (2) BMO was unjustly enriched by the construction work Mohns provided on the condominium project, which increased the value of the loan sold by BMO; and (3) BMO misrepresented to Mohns that funds were available to pay it for the work it performed on the project, which BMO would pay Mohns if it continued constructing the condominiums. The complaint alleged that if Mohns proved the misrepresentation "was intentional and/or in reckless disregard of Mohns' rights," Mohns should receive punitive damages.... In September 2016, Mohns served BMO with interrogatories, requests to admit, and a request for production of documents. BMO served responses in October 2016, but in lieu of producing any documents, stated that all documents had been previously produced in the 2014 MIL lawsuit. BMO's responses to the interrogatories and request for admissions contained more objections than answers. BMO also objected to producing the loan sale agreement, claiming it was subject to a confidentiality agreement between BMO and MIL. In December 2016, Mohns served BMO with a notice for a deposition of a corporate representative who could explain BMO's discovery responses. On January 6, 2017, BMO filed a motion for summary judgment. On January 11, 2017, BMO produced Patrick Caine for the corporate representative deposition. Caine could not explain BMO's responses to discovery. He could not answer questions related to the merger, or topics listed in the deposition notice regarding the sale of the loan. Caine testified he did not know on July 20, 2011 that the loan was being sold to MIL despite multiple June 2011 emails discussing the sale of the loan, including a June 16, 2011 email indicating Caine knew the loan would be sold. On January 26, 2017, Mohns filed a motion to compel discovery and a request for discovery sanctions against BMO. Mohns' brief in support of the motion said its attempt to narrow the issues for trial via written discovery requests had been thwarted by BMO's "evasive responses" and by its refusal to produce a corporate representative who had any knowledge about the topics relevant to Mohns' claims or who could explain BMO's evasive responses.... In February 2017, the circuit court held a hearing on pending motions, including Mohns' motion to compel and BMO's motion for summary judgment. The circuit court found BMO in violation of discovery rules and granted Mohns' motion to compel because Mohns certainly had the right to ask for "who knew what when" and "not get the runaround...." The circuit court expressed frustration at BMO's handling of discovery, believing BMO was "stalling" or "playing a form of a legal shell game...." Caine testified he did not know on July 20, 2011 that the loan was being sold to MIL despite multiple June 2011 emails discussing the sale of the loan, including a June 16, 2011 email indicating Caine knew the loan would be sold.
0 Comments
![]() By Gretchen Schuldt March 26 update – The County Board approved the measure to reduce cannabis fines. The Milwaukee Journal Sentinel has a story here. The Milwaukee County penalty for marijuana possession would drop from up to $500 to $1, under a proposal introduced by a group of county supervisors. "In achieving racial equity, disparities in the criminal justice system, including marijuana and paraphernalia possession laws, must be eradicated," the resolution said. County Supervisor Joseph Czarnezki, who also is a WJI Board member, said Thursday that marijuana possession prosecutions disproportionately affect low-income and minority communities. The state should fully legalize cannabis, he said. "This is a step in that direction," he said. Other sponsors include Supervisors Sylvia Ortiz-Velez, Ryan Clancy, Steven Shea, Sequanna Taylor, Willie Johnson, Jr., Liz Sumner and Marcelia Nicholson. The existing county ordinance calls for forfeitures of $250 to $500 and the county usually levies a $275 penalty, according to the proposal. When additional fees are added in, however, the total jumps to about $484. A $1 penalty would really cost $142.26 once fees and surcharges are included, according to a court official. The new penalty also would apply to possession of drug paraphernalia ordinance violations. There were 187 county marijuana tickets issued in 2019, according to the resolution. Under the existing ordinance, "some individuals may not be able to afford the fine and fees associated with a marijuana possession citation, which may result in their case being sent to collections or an increased charge, which is less likely to be collected by Milwaukee County and can affect an individual's financial situation, including their credit scores," the resolution said. State law also mandates that information, including photographs and fingerprints, of people arrested for offenses – including minor ordinance violations – involving controlled substances be submitted to the State Department of Justice. The arrest information is available to anyone performing a criminal background check through the department. The county ordinance applies to cases involving 25 grams or less of marijuana. Law enforcement can still issue state tickets, if necessary, for amounts larger than that, the ordinance said. The proposal cites a 2020 ACLU report that found that Black people are 3.64 times more likely that Whites to be arrested for marijuana possession, despite similar usage rates. ACLU-Wisconsin found that Black Wisconsinites were 4.2 time more likely than White Wisconsinites to be arrested for possession than Whites and that Wisconsin ranks 14th in the country for the largest racial disparities in marijuana possession arrests. Wisconsin also was one of 17 states that saw a jump in cannabis possession arrests from 2010 to 2018 "despite an increasing shift in attitudes toward decriminalization and legalization of marijuana," the resolution said. WJI reported that Black people were defendants in 77% of marijuana possession cases in Milwaukee Municipal Court in 2019, despite making up just 39% of the city's population. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Majority: Justice Brian Hagedorn (19 pp.) Concurrence: Justice Rebecca Grassl Bradley (10 pp.), joined by Justice Annette Ziegler Concurrence: Justice Rebecca Dallet (7 pp.), joined by Justices Ann Walsh Bradley and Jill Karofsky. The full opinion is here. ![]() The upshot While this court need not always follow federal constitutional interpretation in lockstep, we conclude that neither the Wisconsin Constitution nor the purposes underlying the Miranda warnings support a judicially-created rule treating all incarcerated individuals as "in custody." In the alternative, (Brian L) Halverson contends that his incriminating statements should be suppressed because he was "in custody" under the traditional Miranda custody test. We disagree and conclude that Halverson was not in custody for purposes of Miranda. Background The question in this case concerns the scope of "custody" for purposes of Miranda. The defendant, Brian L. Halverson, was an inmate in jail when he returned a call from an officer regarding an incident at Halverson's prior correctional institution. During the short call, the officer asked Halverson about an inmate's missing property, and Halverson admitted that he took and destroyed the property. No Miranda warnings were given. Halverson argues that his statements must be suppressed because he was in custody as an inmate in jail, and therefore he also was most assuredly "in custody" for purposes of Miranda. In a 1999 case, this court agreed. Relying on United States Supreme Court precedent, we held "that a person who is incarcerated is per se in custody for purposes of Miranda." In 2012, however, the United States Supreme Court clarified this is not what federal law requires. In Howes v. Fields, the Court concluded that the Constitution contains no such per se rule. The Court emphasized that "custody" for purposes of Miranda is a term of art; it is not consonant with the inability to leave or with incarceration generally. Whether a suspect was "in custody" depends on an inquiry of the totality of the circumstances, looking to the degree of restraint and coercive nature of the interrogation.... The circuit court relied on (an officer's) uncontested testimony as factual background, but it granted Halverson's motion to suppress. The circuit court concluded it was bound to apply Armstrong's per se rule that incarcerated individuals are in custody for Miranda purposes.... The State appealed and the court of appeals reversed. The court of appeals held that the per se rule adopted by this court in Armstrong was effectively overruled by the United States Supreme Court in Howes, and it declined to readopt the per se rule under the Wisconsin Constitution. It further concluded that Halverson was not in custody for purposes of Miranda under the totality of the circumstances. We granted Halverson's petition for review and agree with the court of appeals. The guts The issues in this case center on the nature of "custody" for purposes of determining whether Miranda warnings must be administered. Halverson contends he was in custody for two independent reasons. First, Halverson argues all incarcerated individuals should be deemed "in custody" for purposes of Miranda solely due to their incarceration. Although the United States Supreme Court rejected a per se rule to this effect, he asks us to adopt this approach under the Wisconsin Constitution. Second, if we decline that request (as we do), Halverson asserts the totality of the circumstances nonetheless demonstrates he was in custody for purposes of Miranda.... Miranda is a judicially instituted effort to protect against self-incrimination by creating an unrebuttable legal presumption of coercion whenever the warnings are not administered.... The Miranda custody analysis proceeds in two steps. First, courts "ascertain whether, in light of 'the objective circumstances of the interrogation,' a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" This requires examining the totality of the circumstances, including relevant factors such as "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." The inability to leave and terminate the conversation, however, is not enough on its own to trigger the need for Miranda warnings....Instead, courts proceed to the second step in the custody analysis where they ask "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (In Howe) the (U.S. Supreme) Court expressly rejected a categorical rule that questioning an inmate is custodial. Instead it reviewed and re-emphasized the two-step, totality-of-the-circumstances custody inquiry established in prior cases. Using that analysis, it reasoned that incarcerated individuals are not automatically in custody for purposes of Miranda. The Court offered three reasons to support its conclusion – all centering on whether the environment necessarily contains the same coercive pressures that animated the Court's holding in Miranda. First, questioning an incarcerated person does not involve the same kind of shock accompanying someone arrested in the first instance, and therefore the coercive pressures are substantially diminished. Second, incarcerated individuals have far less pressure to speak with the hope of securing release. They know that when the questioning is finished, they will remain incarcerated. Finally, incarcerated individuals know that their questioners "probably lack authority to affect the duration of [their] sentence." Therefore, the Court held that incarceration alone does not necessarily implicate the same anti-coercion interests that motivated the Court's prophylactic efforts in Miranda. In this case, the court of appeals correctly deduced that it was bound to follow the United States Supreme Court's decision in Howes rather than our earlier decision in Armstrong.... *** Halverson recognizes that Miranda warnings are a prophylactic tool fashioned to protect the privilege against self-incrimination, a right independently protected in both constitutions. Halverson therefore asks this court to create an expanded prophylactic to protect a person's rights under the Wisconsin Constitution.... We have generally interpreted Article I, Section 8 (of the Wisconsin Constitution) consistent with the protections afforded by the Fifth Amendment. Halverson provides no textual or historical basis to suggest any meaningful difference between the two provisions meriting an expanded judicially-created prophylactic rule. Nor do we see any basis in the Wisconsin Constitution for Halverson's request. Instead, Halverson focuses chiefly on the argument that incarceration inherently creates the kind of custodial circumstances meriting Miranda warnings. We agree, however, with the Supreme Court's determination in Howes that a per se rule does not serve the anti-coercion purposes of Miranda....Halverson's circumstances do not even satisfy the standard requirements for custody under Miranda's framework. Further, no facts in Halverson's case indicate coercion or anything close to it. And that is the whole point of requiring Miranda warnings in the first place.... This was why the United States Supreme Court rejected the per se rule in Howes, and Halverson offers no strong reasons to diverge from this rationale. Halverson has an alternative argument——namely, that he was "in custody" for purposes of Miranda under the prevailing two-step inquiry examining the totality of the circumstances.... For many of the same reasons, proceeding to the second step of the custody analysis, we conclude Halverson's environment did not "present[] the same inherently coercive pressures as the type of station house questioning at issue in Miranda." He spoke to Officer (Matthew) Danielson over the phone in the jail's community room where he was alone, without physical restraints, and could sit or stand at will. The interview lasted less than five minutes, and during that time Officer Danielson kept his tone calm. These circumstances are nowhere close to the kind of coercive pressures of station-house questioning that sparked the Supreme Court's holding in Miranda. ![]() Concurrence I join the majority opinion in full. I write separately to address the petitioner's reliance on State v. Knapp. Because the Knapp court's interpretation of Article I, Section 8 of the Wisconsin Constitution lacks any mooring in text or history, this court should restore the original meaning of this constitutional provision.... The Wisconsin Supreme Court held that the Wisconsin Constitution's analog to the Fifth Amendment – Article I, Section 8 – affords greater protections than the United States Constitution. In particular...(the) second Knapp court held that, "[w]here physical evidence is obtained as the direct result of an intentional Miranda violation, . . . [Article I, Section 8 of the Wisconsin Constitution] requires that the evidence must be suppressed...." The Knapp II court invented the sanction of suppressing evidence because the officer's "conduct at issue was particularly repugnant and require[d] deterrence." The Knapp II court also invoked the "preservation of judicial integrity" as a basis for contriving a different meaning for Article I, Section 8 than the United States Supreme Court gives the nearly identical Fifth Amendment.... Halverson's reliance on that case to request an expanded prophylactic to protect the privilege against self-incrimination indicates it is time for this court to revisit Knapp's holding....Restoring the proper method of interpreting Article I, Section 8 is imperative if this court takes seriously its oath to uphold the Wisconsin Constitution. The question for this court is not whether the Wisconsin Constitution should afford greater protections, but whether it "actually affords greater protection[s]...." "Because Article I, Section 8 does not require suppression of evidence obtained as the result of voluntary statements made by a criminal suspect from whom the reading of Miranda rights was withheld, only a constitutional amendment could create this remedy. The court in Knapp II acted beyond its authority in devising it. Its holding should be overturned. " – Justice Rebecca Grassl Bradley ![]() By Gretchen Schuldt Sitting in a car parked in a hotel parking lot in a high-crime area does not provide enough probably cause for police to seize and search a vehicle, the State Court of Appeals has ruled. The 2-1 decision by the District IV Court of Appeals panel turned in large part on whether the vehicle and its driver, Shondrell R. Evans, were legally seized by Town of Madison officers or whether Evans should have realized, with two squads mostly boxing him in and in the glare of police spotlights, that he was free to drive away. And while Evans' attorney, Assistant State Public Defender Thomas B. Aquino, argued that Evans' race – he is African-American – likely made him more hesitant to back his car out between the squads, neither Appeals Judge JoAnne F. Kloppenburg, author of the majority opinion, nor Appeals Judge Michael R. Fitzpatrick, who dissented from a key finding, addressed the issue in a meaningful way. The state, in its brief, did not even mention it. The basics of the case are undisputed. Town of Madison Police Officer Logan Brown, on patrol in March 2018, saw Evans and a woman leave a hotel about 2:30 a.m. Brown followed the two as they drove to the parking lot of a nearby apartment complex, park for about a minute, then return to the hotel parking lot. Evans parked in a stall in the lot, next to a car parked on his passenger side. There was a concrete barrier in front of Evans' car. Evans and the women remained in Evans' car for several minutes. Brown contacted Officer Andrew Hoffman, who was nearby. The two officers, in separate vehicles, approached Evans' car simultaneously. Brown parked a short distance away from Evans' vehicle, with the front of the squad facing the driver's side door of Evans' car. Hoffman also parked close to Evans' car. The squad was parked at about a 45-degree angle from the rear bumper of the passenger side of Evans' car. Both officers had their headlights and overhead spotlights trained on Evans' car. "And a Black man such as Evans would also have to be concerned that a police officer’s biases, subconscious or otherwise, would make the officer quick to pull the trigger." – Assistant State Public Defender Thomas B. Aquino Evans was not completely blocked in, according to the decision; he could have backed out and maneuvered around the squads to leave.
The officers got out of their cars and approached Evans' vehicle. They said they smelled marijuana. The officers subsequently searched the car and found a gun. Evans was charged with felon in possession of a firearm. He argued in court that the seizure of the car was illegal and sought to suppress the gun, but Dane County Circuit Judge Susan Crawford denied the request. First, she said, Evans was not seized until the officers began questioning him. He could have, after all, backed out and left. She also said that even if Evans' car had been seized, it was reasonable for the officers to do that “based on the officer’s observations of the individuals coming and going at that hour from the hotel parking lot in a way that seemed unusual and not explainable in a high crime area.” Evans eventually pleaded guilty and filed his appeal. The appeals panel majority rejected both facets of Crawford's reasoning. The officers both seized Evans' vehicle and lacked the legal basis to do so, Kloppenburg said. She was joined in her opinion by Appeals Judge Brian W. Blanchard. A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person would conclude that he or she was not free to leave. Evans argued that the positioning of the squad cars, combined with the officers' use of squad lights, "constituted a sufficient show of authority that a reasonable person in his position would not have felt free to leave." Aquino, in his brief, suggested that Evans might be especially hesitant to back out because of his race. |
Donate
Help WJI advocate for justice in Wisconsin
|