State ex rel. Universal Processing Servs. of Wis., LLC v. Circuit Court of Milwaukee Cnty.
Decision Date | 29 March 2017 |
Docket Number | Case No.: 2016AP923-W |
Citation | 892 N.W.2d 267,374 Wis.2d 26 |
Parties | STATE of Wisconsin EX REL. UNIVERSAL PROCESSING SERVICES OF WISCONSIN, LLC, Petitioner, v. CIRCUIT COURT OF MILWAUKEE COUNTY and the Honorable John J. DiMotto, presiding, Samuel B. Hicks and Merchant Card Services, Inc. Respondents. |
Court | Wisconsin Supreme Court |
For the petitioners, there was a brief by Ryan M. Billings, Robert L. Gegios, Melinda A. Bialzik and Kohner, Mann & Kailas, S.C., Milwaukee, and oral argument by Ryan M. Billings.
For the respondent the cause was argued by David C. Rice, assistant attorney general, with whom on the brief(s) was Brad D. Schimel, attorney general.
For the respondent, there was a brief by Joan M. Huffman, Paul R. Erickson and Gutglasas, Erickson, Bonville & Larson, S.C., Milwaukee, and oral argument by Joan M. Huffman.
Universal Processing Services of Wisconsin, LLC d/b/a Newtek, the plaintiff-petitioner, petitions this court, pursuant to Wis. Stat. § (Rule) 809.71 (2015-16),1 for a supervisory writ. Newtek asks the court to exercise its constitutional authority to vacate an order of the Circuit Court for Milwaukee County, John J. DiMotto, Judge, appointing retired Judge Michael Skwierawski as the referee and to vacate unlawful orders of the referee issued pursuant to the reference. Samuel Hicks and his Idaho company, Merchant Card Services, are the defendants-respondents. The Circuit Court for Milwaukee County and the Honorable John J. DiMotto, presiding, are also named as respondents. The respondents oppose the petition.
¶2 Newtek argues that the circuit court's order appointing the referee expanded the role of referee into the role of de facto circuit court judge in violation of the Wisconsin Constitution and Wis. Stat. § (Rule) 805.06, a rule adopted by this court.2 Newtek does not challenge the constitutionality of Wis. Stat. § (Rule) 805.06, governing references to a referee.3
¶3 The dispute underlying this petition arises from a lawsuit initiated by Universal Processing Services of Wisconsin, LLC d/b/a Newtek (Newtek), a bankcard processing services company, the plaintiff-petitioner, against one of its independent sales agents, Samuel Hicks, and his Idaho company, Merchant Card Services (collectively, Hicks), the defendants-respondents.
¶4 The following issues are presented:
¶5 For the reasons set forth, we conclude as follows:
¶6 We begin in Part I by setting forth the procedural facts relating to the appointment of the referee and the Order of Reference.
¶7 On August 27, 2014, after nearly a decade of successful collaboration between Newtek and Hicks, Newtek terminated Hicks' contract. On September 16, 2014, Newtek brought an action against Hicks in the Circuit Court for Milwaukee County, John J. DiMotto, Judge, alleging breach of contract, tortious interference with contract, breach of fiduciary duty, and misappropriation of confidential information and trade secrets. Newtek demanded a jury trial.
¶8 The contract included restrictive covenants. The enforceability of these restrictive covenants is central to the underlying dispute. Hicks filed an answer to the complaint, asserting affirmative defenses and counterclaims and seeking nearly $17 million in damages.
¶9 Because the contract provided for injunctive relief, Newtek promptly sought and received an ex parte temporary restraining order from a duty judge just a few days after filing the complaint. The circuit court (Judge DiMotto) affirmed and reaffirmed the temporary restraining order.
¶10 Over the course of the next several months, the parties began extensive discovery. The parties periodically appeared before the circuit court for scheduling conferences and motion hearings.
¶11 In early 2015, Newtek moved to amend the scheduling order to extend the deadlines for naming experts and providing expert reports. Hicks opposed the extension and filed a motion to compel discovery.
¶12 On February 17, 2015, the circuit court held a hearing on Newtek's motion to amend the scheduling order and decided to appoint a referee to the case. At the hearing, Newtek described the case as a "classic big case" with numerous issues and production of a substantial number of documents in discovery (50,000 thus far):
¶13 The circuit court granted Newtek's request for extension in part and also gave Hicks an extension. The circuit court expressed frustration with the already cumbersome discovery, especially the attorneys' conduct, stating:
Well you know, the one thing that I put a real high value on are [sic] attorneys being reasonable. Quite frankly, it seems to...
To continue reading
Request your trial- State v. Counihan
- McAdams v. Marquette Univ.
- Ramirez v. Tegels, 14-cv-802-jdp
- State v. Wilson