Weekly Case Digests — May 19-23, 2014

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Wisconsin Law Journal Case Digests, May 19-23, 2014 

CIVIL OPINIONS

Wisconsin Court of Appeals

Civil
Schools – expulsion — discrimination

Hallis Mailen appeals an order affirming a decision by the Educational Approval Board to close without action Mailen’s complaint that the Madison Media Institute violated its own rules and acted in a discriminatory manner when it expelled Mailen from the school. He argues that MMI violated the Enrollment Agreement when it failed to give him a written notice of termination and an opportunity to appeal, that MMI violated school policies when it failed to accommodate his disability, that MMI discriminated against him based on disability and age, and that the EAB did not lawfully delegate the decision to close the investigation to its staff. We affirm the circuit court’s order. This opinion will not be published.

2013AP951 Mailen v. State of Wisconsin Educational Approval Board

Dist IV, Dane County, Remington, J., Per Curiam

Attorneys: For Appellant: Dusso, William L., Madison; For Respondent: Murphy, Anne Christenson, Madison

CIVIL PROCEDURE

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — Rooker-Feldman doctrine

Where an interpleader action does not seek to upset a state court judgment, the Rooker-Feldman doctrine does not require that it be dismissed.

“Arnold’s goal in this litigation is to obtain a declaratory judgment that he is not liable to whichever claimant loses in the interpleader dispute. This potentially sweeps more broadly than a request to decide only which party is entitled to the stock. We already have explained why, if the district court on remand determines that KJD has the superior claim to the stock, it can order Arnold to transfer the stock to KJD. Such a ruling would not disturb the state court’s judgment, nor would it fail to give that judgment full faith and credit, because the question of liability implicates more than the disposition of the shares. The state court’s judgment might entitle the Corporate Defendants to some other remedy against Arnold. If the interpleader court concludes that the Corporate Defendants have the superior claim to the stock, then it could either stop there or proceed to decide the related question whether Arnold remains liable to KJD in some way. It would be premature for us to rule on those questions at this stage, since anything we might say would be based on speculation about the outcome of the interpleader dispute. In addition, as we now point out, the interpleader court might wish to abstain on some or all of these issues.”

Vacated and Remanded.

12-1715 & 12-1894 Arnold v. KJD Real Estate LLC

Appeals from the United States District Court for the Southern District of Illinois, Murphy, J., Wood, J.

Wisconsin Court of Appeals

Civil
Civil Procedure — frivolous actions — postjudgment interest

This case is before us for a second time. In a previous opinion, we affirmed the circuit court’s decision granting summary judgment to the Woelfel Family Revocable Trust and its co-trustees, Christian and Mary Woelfel, (collectively, the Woelfels) on Bradley Allen’s claim for a prescriptive easement. See Allen v. Woelfel Family Rev. Trust, No. 2012AP2415, unpublished slip op. (WI App May 14, 2013). Following our decision, the circuit court granted the Woelfels’ motion for sanctions against Allen, concluding Allen frivolously continued his prescriptive easement claim following the close of discovery. The court ordered Allen to pay a portion of the Woelfels’ attorney fees, and the judgment stated the attorney fee award would accrue interest at a rate of twelve percent per year. Allen now appeals.

We conclude the circuit court properly determined Allen frivolously continued his prescriptive easement claim. We therefore affirm in part. However, we agree with the parties that the court erred by applying a 12 percent interest rate. We therefore reverse in part and remand with directions that the court amend the judgment to provide for an interest rate of 4.25 percent per year. This opinion will not be published.

2013AP2420 Allen v. Woelfel Family Revocable Trust et al.

Attorneys: For Appellant: Linz, Nicholas, Green Bay; For Respondent: Houlihan, John C., Minoqua

FAMILY LAW

Wisconsin Court of Appeals

Civil
Family — contempt

Matthew Flannery and Natasha Henning share joint legal custody and physical placement of their minor child, G.R.F. Flannery filed motions alleging that Henning had denied him periods of physical placement with G.R.F. and that Henning had failed to follow a court order regarding physical placement of G.R.F. The circuit court denied Flannery’s motions, and Flannery now appeals.

On appeal, Flannery argues that the circuit court should have found Henning in contempt and granted him additional periods of physical placement and costs and attorneys fees because Henning: (1) intentionally violated a court-ordered placement schedule when she intentionally and unreasonably denied Flannery periods of physical placement with G.R.F.; and (2) “fail[ed] to appear in person” at an August 26, 2013 hearing. For the reasons set forth below, I reject Flannery’s arguments and affirm the circuit court’s order. This opinion will not be published.

2013AP2296 In re the Contempt Proceeding in re the Paternity of G.R.F.: Henning v. Flannery

Dist IV, Lafayette County, Johnston, J., Kloppenburg, J.

Attorneys: For Appellant: Russell, Nathan R., Shullsburg; For Respondent: Bartholf, Daniel R., Monroe

INSURANCE

Wisconsin Court of Appeals

Civil
Insurance — title insurance — duty to defend — adverse possession

Trever Sire appeals a summary judgment holding that Stewart Title Guaranty Company had no duty to indemnify or defend Sire in a property dispute involving adverse possession. Sire argues the court erred for several reasons. We agree with Sire that there was arguable coverage for part of the claim, and reverse and remand with directions to grant him summary judgment holding Stewart Title breached its duty to defend. This opinion will not be published.

2013AP1853 Bye et al. v. Sire et al.

Dist III, St. Croix County, Vlack, J., Per Curiam

Attorneys: For Appellant: Waterman, R. Michael, Hudson; For Respondent: Keppel, Kathryn A., Milwaukee; Gimbel, Joshua L., Milwaukee

LABOR & EMPLOYMENT

Wisconsin Court of Appeals

Civil
Employment – workers’ compensation — scope of employment

Jacob Westerhof appeals an order affirming a Labor and Industry Review Commission decision denying his claim for worker’s compensation benefits. Westerhof argues the Commission erred by concluding that he was not performing services growing out of and incidental to his employment at the time of his injury. We reject Westerhof’s arguments, and affirm the order. This opinion will not be published.

2012AP2332 Westerhof v. State of Wisconsin Labor and Industry Review Commission, et al.

Dist IV, Dane County, Sumi, J., Per Curiam

Attorneys: For Appellant: Gillick, Michael H., Milwaukee; For Respondent: Moriarty, Richard B., Madison; Cafaro, Roland C., Milwaukee

Wisconsin Court of Appeals

Civil
Employment – WFEA — arrest record discrimination

Kenneth J. Kraemer appeals an order of the circuit court, affirming a decision by the Labor and Industry Review Commission. We affirm. Not recommended for publication in the official reports.

2013AP2030 Kraemer v. Labor and Industry Review Commission et al.

Dist I, Milwaukee County, Martens, J., Kessler, J.

Attorneys: For Appellant: Kloth, Christopher Michael, Milwaukee; For Respondent: Rice, David C., Madison; Levy, Alan M., Milwaukee

Wisconsin Court of Appeals

Civil
Employment — wage claims — preemption

An employer violates the LMRA by providing unpaid 20-minute breaks to employees, even though the CBA specifically permitted them.

“The plain language of WIS. STAT. ch. 109, and the DWD rules related thereto, demonstrate the legislative intent to set certain minimum conditions of compensation (breaks of less than 30 minutes), to give employees the tools to enforce those requirements (DWD action and/or litigation), and to prevent an employer from insulating itself from liability by contracts with the employees or any other entity. Husco’s defenses all arise out of its theory that the implication of the CBA is that it contracted away its liability to pay for breaks of less than 30 minutes. Accepting the legal theory underlying those defenses would require that we ignore the plain language of WIS. STAT. §109.03(5). ‘We cannot ignore words in a statute to achieve a desired construction. Rather, a statute should be construed to give effect to its leading idea, and the entire statute should be brought into harmony with its purpose.’ State v. Okray Produce Co., 132 Wis. 2d 145, 150, 389 N.W.2d 825 (Ct. App. 1986), superseded on other grounds by State v. Marshland Acres, Inc., 2013 WI App 72, 348 Wis. 2d 29, 832 N.W.2d 157 (internal citation omitted).”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP265 Aguilar v. Husco International Inc.

Dist. I, Milwaukee County, Amato, J., Kessler, J.

Attorneys: For Appellant: Eisenberg, Nathan D., Milwaukee; Ho, Yingtao, Milwaukee; For Respondent: Morris, Jeffrey, Milwaukee; Schaak, John C., Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — dismissal

Where attorney Peter J. Thompson’s letter to the court in response to a claim of ineffective assistance was based on legitimate concerns, the complaint against him is dismissed.

“As the letter and the testimony at the ensuing Machner hearing make clear, Attorney Thompson thought his former client intended to suborn perjury; his trial strategy was deliberate and reflected an effort to manage this concern. A lawyer with a potentially perjurious client must contend with competing considerations — duties of zealous advocacy, confidentiality, and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other. State v. McDowell, 2003 WI App 168, ¶54, 266 Wis.2d 599, 669 N.W.2d 204 (citing People v. DePallo, 754 N.E.2d 751, 753 (2001)). And, as the postconviction court would later observe, ‘[t]he perjury concerns were real.’”

2011AP2458-D OLR v. Thompson

Per Curiam.

Attorneys: For Appellant: Thompson, Peter J., Eau Claire; For Respondent: Krohn, Robert G., Edgerton; Weigel, William J., Madison

Wisconsin Supreme Court

Civil
Professional Responsibility — reinstatement

Where attorney Naomi E. Soldon has complied with the conditions for reinstatement, reinstatement is granted.

“This court has carefully evaluated whether Attorney Soldon has indeed met the requirements for the reinstatement of her license to practice law in Wisconsin, and we conclude that she has. Attorney Soldon has acknowledged the wrongfulness of her conduct, voluntarily entered into a rehabilitation program, and by all accounts has successfully undergone treatment for her addictions. We agree with the referee that Attorney Soldon has met her burden of proof with respect to all elements needed to justify her reinstatement. We agree with the referee that, as a condition of her reinstatement, Attorney Soldon should be required to provide the OLR with quarterly reports from Dr. Longo for a period of two years to confirm that she is maintaining her sobriety and continuing to abstain from gambling. We also agree with the referee’s recommendation that Attorney Soldon should pay the full costs of the proceeding, which are $2,680.59.”

2009AP892-D & 2012AP1777-D OLR v. Soldon

Per Curiam.

Attorneys: For Complainant: Krohn, Robert G., Edgerton; Weigel, William J., Madison; Bedker, William F., Watertown; For Respondent: Soldon, Naomi E., Shorewood

Wisconsin Supreme Court

Civil
Professional Responsibility — reinstatement

Where the conduct of attorney Tracy R. Eichhorn-Hicks has been beyond reproach since his suspension, reinstatement is appropriate.

“The referee found that Attorney Eichhorn-Hicks complied with the terms of the order of his suspension. While the referee noted that Attorney Eichhorn-Hicks did not timely file the affidavit required by SCR 22.26(1)(e), the referee found this to be a technical violation and an insignificant factor in assessing the request for reinstatement. The referee found that Attorney Eichhorn-Hicks has maintained competence in learning in the law by attending various educational activities, and the referee found that Attorney Eichhorn-Hicks’ conduct since the suspension has been exemplary and above reproach.”

2011AP2326-D OLR v. Eichhorn-Hicks

Per Curiam.

Attorneys: For Complainant: Arnold, Wayne A., Rice Lake; Weigel, William J., Madison; For Respondent: Eichhorn Hicks, Tracy R., Minneapolis

PROPERTY

Wisconsin Court of Appeals

Civil
Property – foreclosure — summary judgment

Todd Schmidt appeals a judgment granting foreclosure to respondent SunTrust Mortgage, Inc., and dismissing his counterclaims. We affirm. This opinion will not be published.

2013AP949 SunTrust Mortgage Inc. v. Schmidt

Dist IV, Wood County, Potter, J., Per Curiam

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; Shah, Rishi G., Madison; For Respondent: Bailey-Rihn, Valerie, Madison; Graham, Rachel Anne, Madison

TAX

Wisconsin Court of Appeals

Civil
Tax — property tax — appeal

Warren Slocum, pro se, appeals an order denying a motion to reopen his challenge to a 2008 property tax assessment. Slocum argues there is new evidence showing that his original challenge was not a certiorari action but, rather, was timely commenced under Wis. Stat. § 74.37. We reject Slocum’s arguments and affirm the order. This opinion will not be published.

2013AP2374 Slocum v. Town of Star Prairie Board of Review

Dist III, St. Croix County, Cameron, J., Per Curiam

Attorneys: For Appellant: Slocum, Warren, pro se; For Respondent: Schoenberger, David C., Menomonie

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Criminal
Defamation — constitutionality

Daniel Worzalla appeals related judgments convicting him of defamation, stalking, and two counts of bail jumping, as well as an order denying his motion for postconviction relief. The charges were based upon allegations that Worzalla had engaged in a campaign to discredit or harm the reputation of the woman who had served as the social worker in a child protective services (CHIPS) case opened during his divorce. Worzalla raises five issues on appeal, claiming that: (1) the defamation statute was unconstitutionally applied to him; (2) the stalking statute was unconstitutionally applied to him; (3) there was insufficient evidence to support the stalking charge; (4) the sentences imposed were unduly harsh; and (5) counsel provided ineffective assistance by failing to argue that Worzalla’s actions were protected free speech.

As we will explain below, we conclude that the stalking statute was not unconstitutionally applied to Worzalla, and that the conviction on that count was supported by sufficient evidence. Therefore, counsel did not provide ineffective assistance with respect to the stalking count, which also formed the basis for the bail jumping charges. However, we accept the State’s concession that the defamation count was unconstitutionally applied to Worzalla. Accordingly, we affirm the stalking and bail jumping convictions and reverse the defamation conviction. Because the circuit court imposed consecutive sentences in a global sentencing structure, we will remand for resentencing on all the remaining counts. See State v. Sherman, 2008 WI App 57, ¶¶11-12, 310 Wis. 2d 248, 750 N.W.2d 500. It is therefore unnecessary to address Worzalla’s sentence challenge on this appeal. This opinion will not be published.

2013AP2209-CR, 2013AP2210-CR State v. Worzalla

Dist IV, Portage County, Counsell, J., Per Curiam

Attorneys: For Appellant: Alderman, Kimberly L., Madison; For Respondent: Kassel, Jeffrey J., Madison; Isherwood, Veronica Fay, Stevens Point

Wisconsin Court of Appeals

Criminal
Robbery — jury instructions — attempt

Spencer R. Wnuk appeals from a judgment of conviction entered after a jury found him guilty of robbery and two counts of battery, all as a party to the crime, and from an order denying his postconviction motion for a new trial. Wnuk argues that he is entitled to a new trial in the interest of justice because the trial court erred in instructing the jury on: (1) the offense of robbery of the victim’s cell phone and (2) the lesser included offense of attempted robbery of the victim’s wallet. We conclude that the cell phone robbery instruction was supported by the evidence, and that any error in instructing the jury on the lesser offense of attempted robbery was harmless and did not prevent a full trial on the real controversy. Therefore, Wnuk is not entitled to a new trial in the interest of justice. This opinion will not be published.

2013AP777-CR State v. Wnuk

Dist II, Walworth County, Reddy, J., Per Curiam

Attorneys: For Appellant: Koesser, Hans P, Kenosha; For Respondent: Balistreri, Thomas J., Madison; Necci, Daniel A., Elkhorn

CRIMINAL PROCEDURE

Wisconsin Supreme Court

Criminal
Criminal Procedure — expunction

If a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the time of the sentencing proceeding.

“In sum, a reasonable reading of the text of the expunction statute in view of the purpose of the statute is that the legislature included the words ‘at the time of sentencing’ to limit the point in time at which the circuit court is to make a decision about expunction, and that the phrase ‘at the time of sentencing’ means at the proceeding at which the circuit court announces the sanction.”

Affirmed.

2012AP1582-CR State v. Matasek

Abrahamson, J.

Attorneys: For Appellant: Guerard, Jeffrey J., Milwaukee; For Respondent: Gerol, Adam Y., Port Washington; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Miranda warnings — custody

Thaddeus Lietz, pro se, appeals a judgment of conviction for disorderly conduct and obstructing an officer, both as a repeater. He also appeals an order denying his motion for postconviction relief. On appeal, Lietz argues the circuit court erred by denying his suppression motion and by imposing an illegal sentence. We affirm. This opinion will not be published.

2013AP1283-CR State v. Lietz

Dist III, Outagamie County, Dyer, J., Mangerson, J.

Attorneys: For Appellant: Lietz, Thaddeus M., pro se; For Respondent: Weber, Gregory M., Madison; Schneider, Carrie A., Appleton; Maier, Andrew J., Appleton

MOTOR VEHICLES/OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles — implied consent

Wis. Stats. Sec. 343.305(3)(ar)2, which provides that when a driver “is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person and the law enforcement officer has reason to believe that [the operator of the vehicle] violated any state or local traffic law,” he must consent to a blood draw or have his license revoked, is constitutional.

“We need not resolve in this appeal potential implications that may arise from this withdrawal-of-consent concept in other contexts. What is important for current purposes is that, at least in cases of the type we now address, the implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. Framed in the terms of ‘implied consent,’ choosing the ‘yes’ option affirms the driver’s implied consent and constitutes actual consent for the blood draw. Choosing the ‘no’ option acts to withdraw the driver’s implied consent and establishes that the driver does not give actual consent. Withdrawing consent by choosing the ‘no’ option is an unlawful action, in that it is penalized by ‘refusal violation’ sanctions, even though it is a choice the driver can make.”

Affirmed.

Recommended for publication in the official reports.

2013AP852-CR State v. Padley

Dist. IV, Sauk County, Taggart, J., Blanchard, J.

Attorneys: For Appellant: Hyland, John D., Madison; Berghahn, Marcus J., Madison; For Respondent: Balistreri, Thomas J., Madison; Newton, John, Baraboo

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing — improper factors

Fabian Duarte appeals orders denying his post-conviction motion for resentencing. He contends the circuit court relied on an improper factor when imposing the sentence. We reject that argument and affirm the orders. This opinion will not be published.

2013AP1706-CR, 2013AP1707-CR, 2013AP1708-CR, 2013AP1709-CR State v. Duarte

Dist III, Brown County, Hammer, J., Per Curiam

Attorneys: For Appellant: Ziemer, David, Glendale; For Respondent: Lasee, David L., Green Bay; Johnson-Karp, Gabe, Madison