Statutes updated from Official Statutes on: January 26, 2022
Droege argues that sufficient evidence was presented to allow adverse possession of the entire tract because the unoccupied area is contiguous to the land actually occupied. This argument ignores sec. 893.08, Stats.: "the premises so actually occupied, and no other, shall be deemed to be held adversely."
The Gorskis' claim of title is not founded upon a written instrument, judgment or decree. As such, only the premises actually occupied may be adversely possessed, and the land is adversely possessed only if it has been "protected by a substantial inclosure," or "usually cultivated or improved" for twenty years. Secs. 893.05, 893.08,, 893.09, Stats.
On October 15, 2008, Mendes filed a proof of claim for disgorgement based on California Business and Professions Code § 7031(b) in the amount of $95, 287.05. However, in support of this Motion, Mendes submitted a declaration under penalty of perjury stating at paragraph 11 that Reyes had been paid approximately $73, 893.08 through the mortgage and escrow companies. The Motion does not address or explain this discrepancy.
Europa filed its original petition against appellees Direct Access Trader Corp. f/k/a InvestIN.com and Laurence D. Briggs in 1999 seeking damages for breach of a loan agreement. The trial court granted Europa's traditional and no-evidence motions for summary judgment in December 2006. On March 29, 2007, the trial court signed a final judgment against appellees, jointly and severally, in the amount of $407, 893.08. Appellees appealed the final judgment in InvestIN.com Corp. v. Europa International Ltd., 293 S.W.3d 819 (Tex.App.-Dallas 2009, pet. denied). This court affirmed the summary judgments against InvestIN.com Corp. but reversed and rendered a take nothing judgment against Briggs. Id.
¶ 21. In addition, we conclude that the damage limitation of Wis. Stat. § 893.08(3) is not an affirmative defense that is deemed waived if not raised in a responsive pleading or by motion. The damage limitation is not listed as an affirmative defense in Wis. Stat. § 803.02(3). Furthermore, although § 802.02(3) explicitly states that affirmative defenses are not "limited to the following," the damage limitation does not fit within the criteria for determining when a matter not specified should be considered an affirmative defense. Specifically, in discussing Rule 8(c) of the Federal Rules of Civil Procedure, which is similar to Wis. Stat. § 802.02(3), Charles Wright and Arthur Miller set forth the criteria of policy, fairness, probability, and surprise for making this determination. See Charles Wright Arthur Miller, Federal Practice and Procedure § 1271 (1990). The Minnesota Supreme Court, in Snyder v. City of Minneapolis , 441 N.W.2d 781, 788 (Minn. 1989), indicated that the relevant criteria are surprise and fairness when determining whether a cap on municipal tort liability is an affirmative defense. The court concluded:
In the absence of evidence upon which a legal description of the occupied area could be based, the claim of adverse possession must fail. While absolute precision or utilization of a surveyor is not required to establish lines of occupancy, the evidence must provide a reasonably accurate basis upon which the trial court can partition the land in accordance with sec. 893.08, Stats.
We disagree. We have no reason to believe that the legislature intended § 893.25, STATS., to change the law of adverse possession. The 1979 Judicial Council Committee's Note to § 893.25 states: "This provision collects in one section all material relating to 20-year adverse possession, without change in substance. Previous ss. 893.08 and 893.09, together with part of previous s. 893.10, are integrated here . . . . This section covers the substance of previous s. 893.02, also deleted." (Emphasis added.)
Danko, an attorney, worked with Terry O'Reilly for over 13 years and became a minority shareholder in the law firm, once named O'Reilly & Danko and now named O'Reilly & Collins, the present debtor, until 2009 when his employment was terminated. Danko filed a lawsuit in December 2009 in the San Francisco County Superior Court, titled Michael Danko v. Terry O'Reilly, an individual; O'Reilly & Collins, a Professional Corporation, et al., Case No. CGC-09-495203 (the "state court action"). After a jury trial, the jury found that debtor O'Reilly & Collins breached its contract with Danko and wrongfully terminated him in 2009 in order to avoid paying Danko $2.4 million in compensation due to him. Thereafter, on July 11, 2012, a judgment was entered in the superior court in favor of Danko and against debtor as follows: for $2, 418, 744.00 in damages and expense reimbursement; for prejudgment interest in the sum of $789, 893.08; for waiting time penalties pursuant to Labor Code section 203 in the amount of $41, 538.46; total of $3, 250, 175.54; plus attorney's fees and costs as subsequently to be determined by the court. On July 13, 2012, Danko caused a notice of judgment lien…
Where the claim is not within the written description the twenty year statute applies. Sec. 893.08, Stats. 1973. Sec. 893.10(1), Stats. provides in part as follows: ". . . an adverse possession of . . . 20 years under [sec.] 893.08 . . . shall constitute a bar to an action for the recovery of such real estate so held adversely or of the possession thereof. . . . "