Citizens Community Federal v. Silver, Freedman & Taff, L.L.P. et al

Filing 108

ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 44 Motion for Summary Judgment. Defendants' motion is GRANTED with respect to Martin L. Meyrowitz, P.C. and DENIED in all other r espects. Plaintiff's motion is GRANTED IN PART as to defendants' obligation to meet the standard of care for "specialists" for the legal malpractice claim and DENIED in all other respects. Signed by District Judge Barbara B. Crabb on 1/30/2014. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CITIZENS COMMUNITY FEDERAL,
OPINION AND ORDER
Plaintiff,
12-cv-648-bbc
v.
SILVER, FREEDMAN & TAFF, L.L.P.,
BARRY P. TAFF, P.C., MARTIN L. MEYROWITZ, P.C.
and NANCY M. STILES, P.C.,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, plaintiff Citizens Community Federal contends that defendants
Silver, Freedman & Taff, L.L.P.; Barry P. Taff, P.C.; Martin L. Meyrowitz, P.C.; and Nancy
M. Stiles, P.C. committed legal malpractice and breached their fiduciary duties in drafting
employment and benefits contracts for plaintiff and James Cooley, plaintiff’s then president
and CEO, when they did not make any provision for the forfeiture of Cooley’s retirement
benefits if he were terminated from his position for cause. Subject matter jurisdiction exists
under 28 U.S.C. § 1332 because plaintiff’s and defendants’ citizenship is diverse and the
amount in controversy exceeds $75,000.
Defendants have moved for summary judgment on the ground that this court lacks
personal jurisdiction over them, dkt. #36, but that motion will be denied. Defendants
waived the defense by waiting too long to act on it, but even if they had not waived it, it

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would be denied on the merits. Defendants also ask the court to dismiss defendant Martin
L. Meyrowitz, P.C., because they say this defendant was not involved in drafting the
contracts in question. Because plaintiff has not responded to this argument, I will grant this
motion. Plaintiff has filed a cross motion for partial summary judgment and requests that
the court rule on the applicable standard of care and on defendants’ negligence as part of
plaintiff’s legal malpractice claim. Dkt. #44. Defendants do not dispute the standard of
care, so I will grant plaintiff’s motion in that respect, but deny it as to the question of
defendants’ negligence.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.

UNDISPUTED FACTS
Plaintiff is a federally chartered savings association whose charter lists its home office
as Eau Claire, Wisconsin. Beginning in or around March 2001, plaintiff enlisted legal
assistance from defendant Silver, Freedman and Taff, L.L.P., a law firm and limited liability
partnership with its principal place of business in Washington, D.C. The firm’s partners are
11 professional corporations with citizenship in Washington, D.C. Three of the partners
are the other defendants in this case: Martin L. Meyrowitz, P.C.; Nancy M. Stiles, P.C. and
Barry P. Taff, P.C. During 2001 and 2002, Silver, Freedman and Taff’s website described
its business as “specializing” in executive compensation, among other things, and described
Barry P. Taff as an expert in executive compensation.

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Plaintiff sought the defendant firm’s legal advice on its transition from a credit union
to a mutual savings bank. From March 2001 until June 2009, the firm performed more than
$1,000,000 of legal services for plaintiff and plaintiff’s parent corporation, including the
drafting of an employment contract for plaintiff’s then-president and CEO, James Cooley.
Nancy M. Stiles (principal of defendant Nancy M. Stiles, P.C.) drafted the contract between
March and May 2001. Section 7 of the contract covers termination and provides that all
of plaintiff’s obligations under that contract would cease if the employee is terminated for
cause. The contract does not state that other benefits would also be forfeited in the event
of termination for cause. Stiles does not recall discussing termination provisions with
plaintiff at any time.
Between June 2002 and August 2002, the defendant firm, and Barry P. Taff, in
particular, drafted a supplemental executive retirement plan and directors’ retirement plan
for plaintiff. Cooley participated in the supplemental executive retirement plan.
The directors’ plan contained a “termination for cause” provision, providing that no
benefits would be paid under the plain if the director was terminated for cause. However,
the supplemental executive retirement plan contained no “termination for cause” provision.
In other respects, the supplemental executive retirement plan’s provisions contained
language similar to that provided in the Office of Thrift Supervision’s regulations on
employment contracts. (The Office of Thrift Supervision was a federal agency charged with
overseeing federal savings associations.)
The only discussion Taff recalls with plaintiff about termination provisions was one

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he had with Cooley. In that discussion, Taff told Cooley he would not use a “termination
for cause” provision that divests benefits from employees in the event of termination in
either retirement plan under normal circumstances, unless plaintiff desired to do so. But he
advised adopting the termination clause in plaintiff’s directors’ plan, for “cosmetic” reasons.
He did not explain why he did not give the same advice for the provision in the executive
plan.
In June 2009, plaintiff asked the defendant firm to inform it whether an employee’s
retirement benefits under the supplemental executive retirement plan would be affected by
termination for cause, as compared to voluntary termination. The firm responded that
under either voluntary or involuntary termination, the result would be the same because,
without a termination for cause provision, plaintiff must pay retirement benefits to
participants in the supplemental executive retirement plan even if they are terminated for
cause.
In September 2009, the board of directors of plaintiff’s parent company voted to
terminate Cooley for cause. Cooley asserted that he was entitled to supplemental executive
retirement benefits upon reaching retirement age (65). In July 2012, Cooley reached age 65
and he submitted his claim for retirement benefits. Plaintiff took the position that it did not
have to pay those benefits to Cooley. Cooley filed a lawsuit against plaintiff, alleging that
plaintiff had violated its employment contract with him. (It is disputed whether and to what
extent plaintiff’s subsequent settlement of that lawsuit and other agreements with Cooley
included settlement of retirement benefits provided under the supplemental executive

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retirement plan.)
Plaintiff filed this lawsuit on September 7, 2012, and defendants filed an answer on
November 13, 2012, raising an affirmative defense of personal jurisdiction. Defendants did
not seek dismissal of the suit on this ground until they filed their motion for summary
judgment on September 27, 2013. During that year of litigation, defendants filed their joint
Rule 26 report with plaintiff, requested interrogatories and documents from plaintiff,
provided plaintiff with more than 43,000 pages of documents in discovery, responded to
plaintiff’s interrogatories, attended plaintiff’s four fact depositions and scheduled deposition
of plaintiff’s expert witness.

OPINION
A. Subject Matter Jurisdiction
Plaintiff argues that defendants committed legal malpractice and breached their
fiduciary duties when they drafted an employee contract and retirement plan for plaintiff’s
former president and CEO James Cooley that did not provide for the termination of
retirement benefits if Cooley was discharged for cause. Because plaintiff’s claims arise under
state law, subject matter jurisdiction for this case exists under 28 U.S.C. § 1332, which
requires complete diversity between plaintiff and defendants and the existence of more than
$75,000 in controversy. With respect to the amount in controversy, plaintiff alleges that
it is entitled to more than $1,000,000 in damages and defendants do not challenge that
estimate. With respect to the parties’ citizenship, plaintiff says that, as a federal savings

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association, its principal place of business determines its citizenship and its principal place
of business is in Wisconsin. It also says that the defendant firm’s partners, including
defendants Martin L. Meyrowitz, P.C.; Nancy M. Stiles, P.C. and Barry P. Taff, P.C., are
all incorporated and have their principal places of business in Washington, D.C., making all
defendants citizens of Washington, D.C.

B. Personal Jurisdiction
1. Waiver
Although parties may object to subject matter jurisdiction at any time, they do not
have the same leeway when it comes to personal jurisdiction. They waive the defense when
their conduct might lead the plaintiff to believe that defendants have given up the defense
and submitted to jurisdiction, Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th
Cir. 1993), or when they allow or encourage the court to expend resources that would go to
waste if the case is dismissed. American Patriot Insurance Agency, Inc. v. Mutual Risk
Management, Ltd., 364 F.3d 884, 887-88 (7th Cir. 2004). Misleading or wasteful conduct
may include serious delay in urging the defense of personal jurisdiction or participation in
the litigation by participating in discovery, hearings or scheduling. Blockowicz v. Williams,
630 F.3d 563, 566 (7th Cir. 2010) (defendant waived personal jurisdiction “by participating
in the district court proceedings, which included both briefing and oral arguments addressing
the merits of the plaintiff’s claim.”); Mobile Anesthesiologists Chicago, LLC v. Anesthesia
Associates of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010) (“To waive or

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forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable
expectation that it will defend the suit on the merits or must cause the court to go to some
effort that would be wasted if personal jurisdiction is later found lacking.”).
In this case, the litigation has gone on for more than a year. Defendants waited until
the time for filing summary judgment motions to raise their personal jurisdiction defense,
a defense they could have raised soon after being served with the complaint. Defendants
have also participated with plaintiff in scheduling conferences and creating a joint pretrial
conference report. Furthermore, defendants have been active in discovery.
Defendants cite American Patriot Insurance Agency, Inc., 364 F.3d at 887-88, a case
in which the court of appeals found that the defendant had not waived its venue defense
despite its nine-month delay and participation in discovery, but defendants’ actions in this
case are more egregious. Defendants’ activities have not been those of a party that expects
the court to dismiss the case for lack of jurisdiction. Id. (personal jurisdiction and improper
venue “defenses are strictly for the convenience of the defendant; he doesn’t have to engage
in discovery to know whether the forum chosen by the plaintiff is a convenient one; and so
there is no reason to allow him to lie back, wait until the plaintiff has invested resources in
preparing for suit in the plaintiff’s chosen forum, wait perhaps to assess his prospects in that
forum, and only then demand that the case start over elsewhere.”).
Defendants say that plaintiff would have had to conduct the same discovery it already
has even if defendants had moved for dismissal or summary judgment on personal
jurisdiction earlier. It is difficult to take this argument seriously. Defendants produced more

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than 43,000 documents in response to plaintiff’s requests, and plaintiff deposed four of
defendants’ witnesses, yet defendants’ proposed findings of fact on the question of personal
jurisdiction are a mere six pages long, with only two pages of supplemental facts from
plaintiff. Defendants did not need to obtain voluminous discovery to determine personal
jurisdiction. Waiting more than a year into litigation, nearing the date of trial, is too late
to seek dismissal of the case in reliance on a defense that could have been raised earlier.
Accordingly, I conclude that defendants have waived any defense for lack of personal
jurisdiction.

2. Merits
Even though defendants have waived the defense of personal jurisdiction, I also
conclude that plaintiff has made a prima facie case that it exists. Hyatt International Corp.
v. Coco, 302 F.3d 707, 713 (7th Cir. 2002). In a diversity jurisdiction matter such as this
one, a plaintiff must show that (1) the laws of the forum state provide for personal
jurisdiction over defendants and the cause of action asserted; and (2) the exercise of personal
jurisdiction over the defendant must be constitutionally sound. Giotis v. Apollo of the
Ozarks, Inc., 800 F.2d 660, 664-65 (7th Cir. 1986).

a. Wisconsin long arm statute
The applicable state law in Wisconsin is its long arm statute, Wis. Stat. § 801.05,
which the Wisconsin Supreme Court has determined is to be liberally construed in favor of

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the exercise of jurisdiction. Federated Rural Electric Insurance Corp. v. Inland Power &
Light Co., 18 F.3d 389, 391 (7th Cir. 1994) (citing Schroeder v. Raich, 89 Wis. 2d 588,
593, 278 N.W.2d 871 (1979)). Depending on defendants’ contacts with the forum state,
a court may exercise general or specific jurisdiction. General jurisdiction exists when the
defendant is “engaged in substantial and not isolated activities within” the forum state. Wis.
Stat. § 801.05(1)(d). Specific jurisdiction arises when the issue central to the case arose in
the forum state or when an injury is suffered in the forum state and the defendant has
solicited business in the state. Wis. Stat. §§ 801.05(3)-(5). Defendants say that neither
form of jurisdiction is available in this matter; plaintiff argues that both are.
I need not reach the question of general jurisdiction because plaintiff has established
a prima facie case that this court has specific jurisdiction over defendants under Wis. Stat.
§ 801.05(3), which provides for jurisdiction in “any action claiming injury to person or
property within or without this state arising out of an act or omission within this state by
the defendant.” Plaintiff says that defendants are responsible for an omission in Wisconsin
because they failed to warn plaintiff about the risk created by the contracts, thus breaching
defendants’ fiduciary duties. In addition, defendants sent communications to Wisconsin in
the course of preparing the contracts, which plaintiff says were negligently drafted.
Defendants argue that “receipt of communications within Wisconsin from a remote
defendant does not constitute an act or omission within the meaning of Wis. Stat. §
801.05(3),” Dfts.’ Br., dkt. #37, at 10, so their acts of communicating by phone, email and
mail with plaintiff could not be grounds for personal jurisdiction. Jefferson Electric, Inc. v.

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Torres, 09-C-465, 2009 WL 4884379 (E.D. Wis. Dec. 10, 2009) (“Neither the receipt of
communications within Wisconsin from a remote defendant, nor the sending of
communications from Wisconsin to a remote defendant, constitute acts or omissions within
this state by that defendant.”). Defendants’ citation to an unpublished decision by a district
court is not persuasive, particularly when the Court of Appeals for the Seventh Circuit has
reached a contrary decision. In Felland v. Clifton, 682 F.3d 665, 678 (7th Cir. 2012), the
court of appeals had “no trouble concluding that Felland ha[d] established a prima facie case
for personal jurisdiction under the ‘local act or omission’ provision” of Wisconsin’s long arm
statute (§ 801.05(3)) because the “series of alleged misrepresentations [in that case] amounts
to a ‘local act,’” id. at 679. The court cited a case from the Wisconsin Court of Appeals in
which threatening letters from outside the state formed a basis for personal jurisdiction,
Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775, 786, 535 N.W.2d 101, 105
(Ct. App. 1995), and concluded that “it is well established that injury through mail or
electronic communications satisfies section 801.05(3).” Felland, 682 F.3d at 679.
According to Felland, the central question under § 801.05(3) is whether the
communications are part of the tortious acts that form the basis of the litigation. Id.
Particularly in complex matters like the contracts at issue here, lawyers’ representation of
clients necessarily involves more than typing at a distant desk; it includes communications
among the lawyers and clients before and during the drafting process, as well as exchanges
of information and drafts. In this case, it is undisputed that the parties had such interstate
communications in the course of defendants’ drafting of the contracts.

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Furthermore,

defendants were drafting contracts for a Wisconsin plaintiff that they knew would be used
in Wisconsin as part of plaintiff’s business there. Defendants delivered these contracts to
Wisconsin. They also communicated or, in some instances, failed to communicate with
plaintiff about the contracts in Wisconsin. Communication is therefore central to both
claims; this communication occurred in Wisconsin.
Defendants argue that Felland is distinguishable because it involved an intentional
tort claim, rather than negligence, but this argument is unpersuasive for two reasons. First,
plaintiff’s breach of fiduciary duty claim is an intentional tort claim. Second, the language
used in Felland indicates that the court of appeals did not intend to so limit the rule. In
Felland, the court cited Cote v. Wadel, 796 F.2d 981, 984 (7th Cir. 1986), a case involving
a claim of legal malpractice in which a Michigan lawyer and law firm had been hired to
investigate a claim involving property located in Michigan and a tortious act occurring there.
It explained that the reason personal jurisdiction did not exist under § 801.05(3) in Cote was
because “the handful of interstate communications between the parties were at best only
tenuously connected to the conduct underlying the malpractice suit.” Felland, 682 F.3d at
679. Felland implies that Cote would have been decided differently if, as in this case, the
interstate communications were significant and directly tied to an issue central to the case.
It provides no reason to find that personal jurisdiction is not present in this case under §
801.05(3).

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b. Constitutional analysis
Plaintiff must also show that specific jurisdiction in this case would not offend the
Constitution’s guarantee of due process.

To do this, plaintiff must establish that (1)

defendants purposefully availed themselves of the privilege of conducting business in the
forum state or purposefully directed their activities toward the state, Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985); (2) plaintiff’s alleged injury arose from the activities
defendants undertook in the forum, id.; and (3) the exercise of jurisdiction comports with
“traditional notions of fair play and substantial justice,” International Shoe Co. v. State of
Washington Office of Unemployment Compensation & Placement, 326 U.S. 310, 316
(1945).
Analyzing the constitutionality of personal jurisdiction is not precisely the same
exercise as determining whether the plaintiff has met the requirements of the long arm
statute, but the presumption is that satisfying the statute also satisfies the Constitution.
Felland, 682 F.3d at 678 (“[C]onstitutional and statutory questions tend to merge;
compliance with the Wisconsin long-arm statute creates a presumption that constitutional
due process is satisfied.”); Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 245 Wis. 2d 396, 417,
629 N.W.2d 662, 671 (“Compliance with the [long-arm] statute presumes that due process
is met, subject to the objecting defendant’s opportunity to rebut.”).
Defendants attempt to rebut this presumption by arguing that even though their
business relationship with plaintiff was regular and long-running, it was not “continuous and
systematic” as would be required by the due process clause, and they cite another

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unpublished decision from a district court, Slinger Manufacturing Co., Inc. v. Nemak, S.A.,
08-C-656, 2008 WL 4425889 (E.D. Wis. Sept. 24, 2008), which refers only to general
jurisdiction. (In Slinger, the court held that the facts allowed for specific jurisdiction under
the Constitution.) Next, defendants say that their sales of services in the forum state are
insufficient to establish jurisdiction under the Constitution.

However, the authority

defendants cite for this proposition does not actually support their position. In Genetic
Technologies Ltd. v. Interleukin Genetics Inc., 10-cv-69-bbc, 2010 WL 3122304 (W.D.
Wis. Aug. 9, 2010), I stated that purchasing items in the forum state is not generally
sufficient to establish personal jurisdiction, but that selling items in the forum state (which
is what these defendants do) is generally sufficient to establish personal jurisdiction. Finally,
defendants say that their website cannot confer jurisdiction. This assertion is likely correct,
but it is not defendants’ website alone that establishes personal jurisdiction over them.
Rather, it is their long-running business relationship with a Wisconsin bank that provides
the basis for jurisdiction.
This relationship constitutes purposeful availment of the privileges of the forum state,
meeting the first requirement under the due process clause. Defendants engaged in an
eight-year relationship with a Wisconsin client during which they billed more than
$1,000,000. Eragen Biosciences, Inc. v. Nucleic Acids Licensing, LLC, 447 F. Supp. 2d 930,
938 (W.D. Wis. 2006) (“Defendant Benner’s solicitation, creation and maintenance of an
ongoing business relationship with plaintiff, a Wisconsin ‘citizen’ and his efforts to maintain
and increase that business through letters, telephone calls and visits to the state are evidence

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of his ‘purposeful availment’ of the privilege of conducting business within Wisconsin.”).
See also Langeman Manufacturing, Ltd. v. Pinnacle West Enterprises, 524 F. Supp. 2d 1112,
1119 (W.D. Wis.2007). As required to establish this first prong, such long-term and
extensive work was “intentional” and “expressly aimed at the forum state” and defendants
were clearly aware that any injury experienced by the plaintiff would be felt in the forum
state. Tamburo v. Dworkin, 601 F.3d 693, 704 (7th Cir. 2010) (citing Calder v. Jones, 465
U.S. 783 (1984)). See also Felland, 682 F.3d at 674-75 (citing same).
Next, as discussed in the section above, the second element is met because plaintiff’s
injury arises from defendants’ actions in the forum state: their drafting of the contracts and
their communications (or omissions) about the contracts. GCIU-Employer Retirement Fund
v. Goldfarb Corp., 565 F.3d 1018, 1024 (7th Cir. 2009) (“[P]ast contacts should either bear
on the substantive legal dispute between the parties or relate to the operative facts of the
case.”).
Finally, jurisdiction in this case must not offend “traditional notions of fair play and
substantial justice.” International Shoe Co., 326 U.S. at 316. “The following factors are
relevant: ‘the burden on the defendant, the forum State’s interest in adjudicating the
dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies, and the
shared interest of the several States in furthering fundamental substantive social policies.’”
Tamburo, 601 F.3d at 709 (quoting Burger King, 471 U.S. at 477). Taking these factors
into consideration, I find it would not be unfair for this court to exercise jurisdiction over

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defendants.
Wisconsin surely has an interest in serving as a forum for resident businesses to
pursue remedies for injuries inflicted by nonresident actors. Id. Plaintiff’s interest in
obtaining relief is obvious. The burden on defendants cannot be much greater than any they
shouldered during their long distance representation of this client or any greater than that
routinely tolerated by courts exercising specific jurisdiction over nonresidents.

Id.

Furthermore, defendants have not shown that the exercise of jurisdiction over them would
have “an adverse effect on the interstate judicial system’s interest in obtaining the efficient
resolution of controversies or the shared interest of the states in furthering fundamental
substantive social policies.” Id. Therefore, personal jurisdiction over defendants in this
matter comports with due process.

C. Legal Malpractice
One of plaintiff’s theories for relief against defendants is legal malpractice, which
requires showing “(1) the existence of an attorney-client relationship; (2) the acts
constituting the attorney’s negligence; (3) causation; and (4) damages.” DeThorne v.
Bakken, 196 Wis. 2d 713, 717, 539 N.W.2d 695, 697 (Ct. App. 1995) (citations omitted).
(Plaintiff argues that Wisconsin law applies to its claims and defendants do not deny that
it does, so I will apply Wisconsin law.) Plaintiff has filed a motion for partial summary
judgment, asking the court to rule on two elements of its legal malpractice claim: (1)
standard of care and (2) negligence.

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1. Standard of care
Plaintiff argues that defendants have held themselves out as “experts” on their
website, which stated at the time they represented plaintiff that they were a “Washington
D.C. based law firm specializing in securities and venture capital mergers and acquisitions,
banking and financial services, executive compensation, benefits and taxation matters.” Plt.’s
Proposed Findings of Fact, dkt. #45, ¶ 10 (emphasis added). Under Wisconsin law, when
a lawyer holds herself out as an expert in a particular area of the law, she is held to a
“standard of care consistent with that representation.” Duffey Law Office, S.C. v. Tank
Transportation Inc., 194 Wis. 2d 674, 686, 535 N.W.2d 91, 96 (Ct. App. 1995).
Defendants do not deny that they held themselves out as “experts,” so I will find that a
“specialist” standard of care applies to defendants’ conduct in this matter.

2. Negligence
In a legal malpractice claim, “whether an attorney is negligent requires a showing that
the attorney violated a duty of care.” DeThorne, 196 Wis. 2d at 717, 539 N.W.2d at 697.
The duty of care for lawyers, even specialists, is what a reasonable or prudent attorney would
have done in the same circumstance, Helmbrecht v. St. Paul Insurance Co., 122 Wis. 2d 94,
112, 362 N.W.2d 118, 128 (1985); Duffey Law Office, S.C., 194 Wis. 2d at 686, 535
N.W.2d at 96. The problem for plaintiff is that it never articulates this standard duty of
care for the situation presented in its claim.
The parties dispute whether expert testimony is required to determine this standard,

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but plaintiff concedes that its expert report provides insufficient ground on which to grant
summary judgment in plaintiff’s favor. Plt.’s Reply Br., dkt. #71, at 7. Therefore, plaintiff’s
sole argument is that defendants’ negligence is “obvious” because the way they drafted
plaintiff’s contracts violated a federal regulation.
Plaintiff’s argument is essentially that negligence per se should apply in this case
because defendants violated the regulations set forth by the Office of Thrift Supervision,
which imposes the following requirement: “[e]ach employment contract shall provide that
. . . The officer or employee shall have no right to receive compensation or other benefits
for any period after termination for cause.” 12 C.F.R. § 563.39(b)(1). Neither of the
contracts prepared by defendants contained a termination for cause provision that would
have prevented Cooley from receiving retirement benefits after his termination for cause.
Plaintiff says that because the contracts drafted by defendants do not follow the
requirements of 12 C.F.R. § 563.39(b)(1), defendants’ negligence is “obvious.” Even if
defendants’ disregard for this regulation appears irresponsible and harmful, plaintiff has
skipped several important steps in declaring that negligence is a forgone conclusion.
“The violation of a statute or an ordinance does not automatically impose civil
liability.” Holt v. Hegwood, 2005 WI App 257, ¶ 13-14, 287 Wis. 2d 853, 864-65, 708
N.W.2d 21, 26-27 (footnote omitted). Rather, plaintiff must prove that “(1) the harm
inflicted was the type the statute was designed to prevent; (2) the person injured was within
the class of persons sought to be protected; and (3) there is some expression of legislative
intent that the statute become a basis for the imposition of civil liability.” Id. (quoting

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Antwaun A. ex rel. Muwonge v. Heritage Mutual Insurance Co., 228 Wis. 2d 44, 67, 596
N.W.2d 456, 466 (1999)). Plaintiff has not discussed these elements and has made no
showing that the regulation or parties meet these requirements.
Moreover, “[a] statute that merely makes provision for the safety or welfare of the
public generally, but does not purport to establish civil liability, is not to be construed to
establish civil liability.” Id. Instead, it is the plaintiff’s burden to show through statutory
language, legislative history or otherwise, that the statute is meant to impose liability on
parties such as defendants. Id. See also Antwaun A. ex rel. Muwonge, 228 Wis. 2d at 67,
596 N.W.2d at 466 (“This court has repeatedly indicated that a statute will not be
interpreted to impose a greater duty than that imposed by the common law unless it ‘clearly
and beyond any reasonable doubt expresses such purpose by language that is clear,
unambiguous, and peremptory.’” (quoting Delaney v. Supreme Investment Co., 251 Wis.
374, 380, 29 N.W.2d 754 (1947) (citations omitted))). Plaintiff has failed to make this
showing.
For the purposes of its motion for summary judgment, plaintiff has failed to show that
defendants were negligent per se and it has made no other argument for finding defendants
negligent. Therefore, I will deny summary judgment on this aspect of the case.

D. Defendant Martin L. Meyrowitz, P.C.
Defendants have moved to dismiss defendant Martin L. Meyrowitz, P.C. from this
lawsuit on the ground that it took no part in the facts underlying the case. Aside from

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alleging that Meyrowitz solicited business from plaintiff in 2009, plaintiff has not discussed
this defendant or disputed defendants’ argument. “A failure to oppose an argument permits
an inference of acquiescence and ‘acquiescence operates as a waiver.’” Wojtas v.Capital
Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007) (quoting Cincinnati Insurance Co.
v. East Atlantic Insurance Co., 260 F.3d 742, 747 (7th Cir. 2001)). As a result, plaintiff has
waived any argument against dismissing defendant Martin L. Meyrowitz, P.C., and I will
dismiss this defendant.

ORDER
IT IS ORDERED that the motion for summary judgment, dkt #36, filed by
defendants Silver, Freedman & Taff, L.L.P.; Barry P. Taff, P.C.; Martin L. Meyrowitz, P.C.;
and Nancy M. Stiles, P.C. is GRANTED with respect to defendants’ motion to dismiss
Martin L. Meyrowitz, P.C. and DENIED in all other respects. Plaintiff Citizen Community
Federal’s motion for summary judgment, dkt. #44, is GRANTED IN PART as to
defendants’ obligation to meet the standard of care for “specialists” for the legal malpractice
claim. The motion is DENIED in all other respects.
Entered this 30th day of January, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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