Wisconsin Business and Commercial Litigation

In Engel v. Parker, 2011AP25 (January 4, 2012), the Wisconsin court of appeals considered the case of two adjoining landowners fighting over a piece of property that varied from 15-23 feet in width and ran for about a quarter mile between the parties’ parcels of land.  The Engel family purchased its parcel in 1954.  At that time, there was an existing barbwire fence on the far side of the disputed piece of property.  The fence existed until 1982.  It was undisputed that the Engel’s use of the property constituted adverse possession.

The Parkers bought the next-door parcel in 2003.  A 2006 survey showed that the strip of land actually belonged to the Parkers, and in 2008, the Parkers erected a fence along the recorded boundary.  Engel sued in 2009, alleging that he aquired title by adversely possessing the property in question. 

The Parkers moved for summary judgment, arguing that the time to bring an adverse possession claim expired in 2004.  Engel argued that the Wis. Stat. 893.33(5) owner-in-possession exception applied — “[The statute of limitations] does not apply to any action commenced or any defense or counterclaim asserted, by any person who is in possession of the real estate involved as owner at the time the action is commenced.” – barring the application of the statute of limitations.  The court agreed, dismissing the Parkers’ argument that Engel was not in possession of the property at the time the suit was filed, as the language of the statute seems to require.

To support its decision, the court cited language from O’Neill v. Reemer, 2003 WI 13, 259 Wis. 2d 544, 657 N.W.2d 403:

It is illogical to construe a statute with a purpose of eliminating stale claims in such a way that after 50 years of staleness a right of ownership in record title is resurrected. In adverse possession cases, it is the record title to the property that has lain dormant and stale. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner’s title is extinguished.

More convincing for the court was the similar analysis in Herzog v. Bujniewicz, 32 Wis. 2d 26, 31, 145 N.W.2d 124 (1966), leading to the conclusion that:

Once title is secured by adverse possession the possessor need not keep the flag of hostility waving forever. 

Because it was undisputed that Engel adversely possessed the property from 1954 to 1974, he was entitled to the owner-in-possession exception.

Back in July of 2010, I wrote about Cottonwood, a court of appeals case holding that class-action waivers run afoul of Wis. Stat. § 421.106(1), and are therefore unenforceable against consumers.  Then came Cottonwood II, in which the Wisconsin Supreme Court on December 20, 2011 considered the US Supreme Court case AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and its impact on the Cottonwood decision.  According to the Wisconsin State Bar’s Joe Forward,

However, in Concepcion, the nation’s high court ruled (5-4), that the Federal Arbitration Act (FAA), section 2, preempts state laws that classify “most collective-arbitration waivers in consumer contracts as unconscionable.” Id. at 1746, 1753.

After Concepcion, the Wisconsin Supreme Court vacated Cottonwood I and remanded for reconsideration. In Cottonwood II, the appeals court ruled that, “[i]n light of Concepcion,” the classwide arbitration waiver at issue “is enforceable and is not substantively unconscionable.”

Thus, under Concepcion and Cottonwood II, Wisconsin consumers cannot challenge similar arbitration provisions.

You can read the rest of Forward’s article here. 

But now there’s a new twist to the story.  The Supreme Court, on January 11, withdrew its Dec. 20 opinion.  It’s anyone’s guess as to where we’re headed from here, but it certainly seems like this won’t be good news for any Wisconsin business with a class-action waiver in its consumer contracts.