Wisconsin Business and Commercial Litigation

In Simandl & Murray v. Mainstreet Homes, the appellate court reviewed Milwaukee County Judge Elsa Lamelas’s grant of summary judgment to a law firm suing to recover unpaid legal fees.  When the affidavits supporting the summary judgment motion didn’t attach or authenticate the bills, the circuit court relied on the bills that were attached to the complaint.  While the defendant had denied in its answer that the bills were accurate, and that the bills reflected reasonable work and fees, the court granted summary judgment anyway, and the appellate court upheld the decision.  I always thought that denials in the complaint were sufficient until the moving party proved up a prima facie case by evidence as defined in the statutes, but apparently, the standards are now a little more generous.

Mainstreet’s argument fails because it ignores the summary judgment procedure. The trial court was first obligated to look at the pleadings. The complaint stated that Simandl & Murray was retained by Mainstreet, Simandl & Murray provided legal services to Mainstreet which amounted to approximately $27,000, Simandl & Murray sent requests for payments along with itemized bills and no money was paid on the account, and Mainstreet did not object to the bills. In addition, the complaint contained the letter of engagement stating what work Simandl & Murray was to do for Mainstreet and the hourly rate of the lawyers. It also contained all the itemized bills sent to Mainstreet. The answer filed by Mainstreet denies knowledge or information sufficient to form a belief as to the truth of the averments, but also lists the following as affirmative defenses: improper service of process; lack of personal jurisdiction; that Mainstreet is a dissolving limited liability company and any distribution of its assets is subject to Chapter 184 of the Wisconsin Statutes; and finally, that Simandl & Murray breached the contract by engaging in a conflict of interest. Inasmuch as the pleadings state a claim, the trial court was required to then examine the moving party’s affidavits for evidentiary facts and other proof. Here, Attorney Simandl explained in his affidavit that his firm was hired by Mainstreet, that there was no conflict as the issue of a conflict was addressed in the letter of engagement, that work was done and monthly bills sent, and that Mainstreet failed to pay them.

It’s an interesting decision, and definitely worth reading the entire analysis.  I can tell you that my summary judgment submissions will not change as a result of this case, and I don’t think that most others will change theirs, either.  But it’s good to know that you’ve got options.

In a case arising out of Madison, the Court of Appeals decided that to qualify under the business records exception to the hearsay rule, a party must provide testimony of someone with personal knowledge of how the business records were prepared and used.  Palisades Collection v. Kalal puts Wisconsin in the minority, according to Dave Ziemer of the Wisconsin Law Journal:

Nationwide, there is a consensus among the federal courts of appeal that third party business records are admissible evidence under the hearsay exception in FRE 803(6).

Ziemer’s article about the case provides some interesting insights into the Wisconsin rule and its comparison with other jurisdictions, pointing out many that go exactly the opposite direction:

However, there is a plethora of federal cases holding that records created by a third party and integrated into another entity’s records is admissible as the record of the custodian entity, provided the custodian relied on the accuracy of the record. (U.S. v. Adefehinti, 510 F.3d 319 (D.C.Cir.2007); Air Land Forwarders, Inc. v. U.S., 12 F.3d 1338 (Fed.Cir.1999); U.S. v. Childs, 5 F.3d 1328 (9th Cir. 1993); U.S. v. Duncan, 919 F.2d 981 (5th Cir. 1990); Resolution Trust Corp. v. Eason, 17 F.3d 1126 (8th Cir. 1994).)

The Eighth Circuit reaffirmed this principle just last month in Brawner v. Allstate Indemnity Co., No. 08-3544 (8th Cir., Jan. 8, 2010).

In addition, on facts materially identical to those in the case at bar, Massachusetts highest court held that the records were admissible business records. (Beal Bank, SSB, v. Eurich, 831 N.E.2d 909 (Mass. 2005).)

Regardless, for now, those of you who intend to rely on the business records of another company to prove your case would be wise to come prepared with a witness who has personal knowledge of the creation and use of those records.

Witness photo courtesy Extraordinary Chambers in the Courts of Cambodia flickr photostream through this creative commons license.