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Weekly Case Digests — Oct. 13-17, 2014

By: WISCONSIN LAW JOURNAL STAFF//October 17, 2014//

Weekly Case Digests — Oct. 13-17, 2014

By: WISCONSIN LAW JOURNAL STAFF//October 17, 2014//

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Wisconsin Law Journal’s Case Digests — Oct. 13-17, 2014

CIVIL OPINIONS

CIVIL COMMITMENT

Wisconsin Court of Appeals

Civil Commitment
sufficiency of the evidence

Steven H. appeals from an order for commitment. Steven argues that there was insufficient evidence to find him dangerous to others. We disagree and affirm the circuit court. This opinion will not be published.

2014AP1435-FT In the matter of the mental commitment of Steven H.

Dist II, Kenosha County, Rossell, J., Neubauer, P.J.

Attorneys: For Appellant: Kay, Timothy T., Brookfield; Moyer, John F., Kenosha

CIVIL PROCEDURE

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

Civil Procedure
summary judgment

Where the plaintiff offered no excuse for failing to timely file a response to a motion for summary judgment, summary judgment is affirmed.

“Against a rule of attribution the plaintiff cites Hill v. United States, 762 F.3d 589, 591 (7th Cir. 2014), where after noting that ‘ordinarily … the pratfalls of a party’s lawyer are imputed to the party,’ we said that ‘given the unusual gravity of the plaintiff’s injuries, the absence of any suggestion of prejudice to the defendant from the delay in suing, and the district judge’s cursory treatment of the issue of equitable tolling, we have decided that the judgment should be vacated and the case remanded to the district court for further consideration of the tolling issue.’ It was an unusual case. The plaintiff, suing under the Federal Tort Claims Act in respect of prison violence that had cost him one eye and greatly impaired the vision in his other eye and that he attributed to the negligence of the Bureau of Prisons, had recently been evicted from the halfway house to which he had been consigned upon his release from prison and had failed to notify the court of his new address. The district court denied the plaintiff’s plea of equitable tolling not because of his lawyer’s delay in filing suit but because of the plaintiff’s failure to keep the court advised of his changes of address. So while the plaintiff’s lawyer had bobbled his case, the ground of dismissal was the plaintiff’s bobble, which we thought, given his physical condition, was a weak ground for dismissal. We did not rule that his case should not have been dismissed, but we remanded for a fuller consideration of the unusual issue that it presented. There is nothing comparable in this case. As we said, the judge should not have told the plaintiff there would be no extensions of time, no matter what, for responding to the hospital’s motion for summary judgment. But because no excuse for missing the deadline was ever offered, the ‘no extensions no matter what’ threat was never carried out.”

Affirmed.

14-1449 Sheikh v. Grant Regional Health Center

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Posner, J.

CIVIL RIGHTS

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

Civil Rights
exhaustion

Where jail officials misled a prisoner about the availability of a grievance procedure, the district court improperly dismissed his civil rights suit for failure to exhaust administrative remedies.

“Although ‘when administrative procedures are clearly laid out … an inmate must comply with them in order to exhaust his remedies,’ Pavey v. Conley, 663 F.3d 899, 905 (7th Cir. 2011), we have in this case, as in Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014), a muddle created by the people running the jail. When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005). When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1224–25 (9th Cir. 2010); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002).”

Reversed and Remanded.

13-3602 Swisher v. Porter County Sheriff’s Department

Appeal from the United States District Court for the Northern District of Indiana, Nuechterlein, Mag. J., Posner, J.

LABOR AND EMPLOYMENT

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

Employment
ADA

A shareholder and member of the board of directors is not an employee under the ADA.

“Taking all six factors as a whole, we conclude that Bluestein was an employer as a matter of law. In sum, she was a full physician-shareholder and board member in a small medical professional corporation. She had an equal right to vote on all matters coming before the board, shared equally in the firm’s profits and liabilities, and participated in decisions to hire and fire employees. She even voted on her own termination. Although she was subject to general workplace policies regarding her hours, vacation, scheduling and patient assignments, all the physician-shareholders were subject to the same policies, and all had an equal right to influence those policies. She reported to no one and the details of her work as an anesthesiologist were not supervised or controlled by anyone at the firm. Although she often found herself in the minority position among her fellow physician-shareholders, it is her right of control that matters to the analysis. Our conclusion that she was an employer is fatal to all of her discrimination claims. We therefore need not consider the merits of the individual discrimination claims and we affirm summary judgment in favor of Central Wisconsin.”

Affirmed.

13-3724, 14-1256 & 14-1257 Bluestein v. Central Wisconsin Anesthesiology SC

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Rovner, J.

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

Employment
ERISA

Contracts under ERISA must be in writing to be enforceable.

“Pension and welfare funds are entitled to rely on the writings they receive. Central States Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148 (7th Cir. 1989) (en banc), analogizes them to holders in due course, not to simple third-party beneficiaries whose rights can be cut off at the contracting parties’ whim. Usually they are not privy to negotiations between unions and employers; they cannot tell when one or the other (or both) had mental reservations. Pension and welfare funds set both benefit levels and contribution rates based on actuarial calculations, and those calculations depend on the terms of the written agreements that control coverage and eligibility. That’s why funds can enforce the writings they receive. Gerber Truck Service held that a multi-employer pension fund can enforce a contract as written even though the union and the employer have a side agreement that certain parts of the contract will be ignored. See also, e.g., Central States Pension Fund v. Schilli Corp., 420 F.3d 663 (7th Cir. 2005); Central States Pension Fund v. Joe McClelland, Inc., 23 F.3d 136 (7th Cir. 1994). Whatever reservations Abramson had were not conveyed to the funds until August 2009, much too late.”

Reversed and Remanded.

13-3613 Russ v. South Water Market Inc.

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Easterbrook, J.

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Professional Responsibility
public reprimand

Where attorney Carl H. Creedy entered into business with a non-attorney client, and did not supervise the partner, and created conflicts of interest, a public reprimand is appropriate.

“Our rules provide that where, as here, a respondent pleads no contest to allegations of misconduct pursuant to SCR 22.14, the referee shall make a determination of misconduct in respect to each allegation to which no contest is pled and for which the referee finds an adequate factual basis in the record. The referee rendered a thorough and thoughtful report in which he summarized the evidence from the hearing and made detailed factual findings and conclusions.”

“As relevant to this matter, the referee explicitly stated that he found Attorney Creedy to be both credible and professional. He believed that Attorney Creedy was unaware that Murphy was improperly accepting advance fees until confronted by a claimant’s lawyer in March 2010. He deemed Murphy to be a less than credible witness, noting that Murphy is currently serving time for felony convictions related to a variety of fraud-related transactions. Moreover, the referee observed that ‘it was clear that [Murphy] had personal animosity toward [Attorney] Creedy and went out of his way to express that animosity.’”

2013AP1439-D OLR v. Creedy

Per Curiam.

Attorneys: For Complainant: Krohn, Robert G., Edgerton; Weigel, William J., Madison; For Respondent: Creedy, Carl H., Orfordville

Wisconsin Supreme Court

Professional Responsibility
revocation

Where attorney Joshua F. Stubbins made repeated misrepresentations to his clients, to his law firm, and to opposing counsel, billed for work he never performed, lacked diligence, and took actions on behalf of his clients without their knowledge or consent, revocation is appropriate.

“As noted above, Attorney Stubbins’s petition states that he cannot successfully defend himself against the misconduct allegations that have arisen from the OLR’s investigations. In the petition Attorney Stubbins asserts that he is freely, voluntarily, and knowingly (1) giving up his right to contest the OLR’s allegations of misconduct and (2) asking for the revocation of his license to practice law in this state. He also acknowledges that he has the right to retain counsel in this matter, but states that he has chosen to represent himself. Finally, Attorney Stubbins states that he is aware of the consequences of the revocation of his license, including his obligation to follow the requirements of SCR 22.26 and the need to complete the formal reinstatement process outlined in SCRs 22.29 through 22.33 in the event that he would ever seek the reinstatement of his license.”

2014AP1622-D OLR v. Stubbins

Per Curiam.

Attorneys: For Complainant: Weigel, William J., Madison; For Respondent: Stubbins, Joshua F., Rockville, MD

PROPERTY

Wisconsin Court of Appeals

Property
specific performance

Developer Charles Ghidorzi formed Crabtree Ridge, LLC, for the sole purpose of purchasing a parcel of land from Cohan Lipp, LLC. Crabtree breached the contract. The issue is the propriety of the remedy the circuit court fashioned — specific performance at the contract price. Given the heightened deference we accord a circuit court sitting in equity, we affirm. We also affirm the award of prejudgment interest, attorneys’ fees, and costs. This opinion will not be published.

2014AP139 Cohan Lipp LLC v. Crabtree Ridge LLC et al.

Dist III, Marathon County, Moran, J., Per Curiam

Attorneys: For Appellant: Sinderbrand, Carl A., Madison; Wilkinson, Tyler, Madison; For Respondent: Pines, Lester A., Madison

TAX

Wisconsin Court of Appeals

Tax
fee in lieu of room tax

A city cannot impose taxes on condominium owners who choose not to rent out their properties.

“The fact that the ‘fee in lieu of room tax’ is imposed by contract does not change its character or provide the City with the authority to impose such a tax. See Milwaukee& Suburban Transp., 6 Wis. 2d at 311-12. In short, the ‘fee in lieu of room tax’ is a revenue generator for the City that is imposed on a certain class of residents without legislative permission and is therefore illegal. See id. at 306. The court’s award of summary judgment to the City is reversed, and the cause is remanded for further proceedings consistent with this opinion.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP137 Bentivenga v. City of Delevan

Dist. II, Walworth County, Koss, J., Reilly, J.

Attorneys: For Appellant: Williams, David C., Lake Geneva; For Respondent: Koch, Steven A., Elkhorn

TORTS

Wisconsin Court of Appeals

Torts
damages — future medical expenses

A jury awarded Chad Prebish $177,750 in personal injury damages, including $51,500 for future medical expenses. Prebish appeals, arguing the circuit court should have changed the jury’s answer to the special verdict question on future medical expenses to $105,590. We conclude credible evidence supports the jury’s answer. We modify the judgment to correct a mathematical error and, as modified, affirm. This opinion will not be published.

2013AP2482 Prebish v. Bristol West Insurance Company et al.

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

Attorneys: For Appellant: Biegert, Matthew A., New Richmond; For Respondent: Schaps, James A., St. Paul, Minn.

Wisconsin Court of Appeals

Torts
qualified immunity

Monroe County and its insurer Wisconsin County Mutual Insurance Corporation (collectively, the County or jail personnel) appeal an order that denied the County’s summary judgment motion to dismiss a negligence claim brought against it by the Estate of Adrianna Seroy and by the individuals Zachary Seroy, Dhakari Seroy, and Deonte Seroy (collectively, the Estate). For the reasons discussed below, we conclude that the circuit court should have granted summary judgment in the County’s favor on the grounds of qualified immunity. Accordingly, we reverse the summary judgment order and remand with directions that the court dismiss the negligence action against the County. This opinion will not be published.

2013AP2772 Estate of Adrianna Seroy et al. v. Leuck et al.

Dist IV, Monroe County, Bjerke, J., Per Curiam

Attorneys: For Appellant: Bohl, Charles H., Milwaukee; Cranley, Paul D., Madison; Simatic, Kurt, Milwaukee; For Respondent: Goff, Steven B., River Falls; Heidt, Martha H., River Falls; Tool, Tracy N., River Falls

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Trusts and Estates
laches

Kathleen Miller’s grandmother, Rosie Smith, died in 1987, after telling Miller she would inherit Rosie’s entire estate. Miller did not seek to enforce her perceived right to the real property comprising Rosie’s estate until 2011, after Miller’s father died and it was believed he had fraudulently transferred the real property into his own name. The circuit court concluded the equitable doctrine of laches barred Miller’s efforts to enforce her grandmother’s will and set aside the allegedly fraudulent conveyances. We agree with the circuit court that the undisputed facts establish the elements of laches. Further, we conclude the court did not erroneously exercise its discretion when it applied the doctrine. Accordingly, we affirm. This opinion will not be published.

2013AP2135 Miller v. The Estate of Arthur D. Smith Sr. et al.

Dist III, Douglas County, Thimm, J., Per Curiam

Attorneys: For Appellant: Alderman, Kimberly L., Madison; Dahm, Chelsey Suzanne, Madison; For Respondent: Gramstrup, Chris A., Superior; Salzer, Theodore D., Superior

CRIMINAL OPINIONS

Wisconsin Court of Appeals

Abandonment of a Child
sufficiency of the evidence — intent

Addison Steiner appeals the circuit court’s judgment convicting him of abandonment of a child under Wis. Stat. § 948.20. Steiner also appeals the circuit court’s order denying his motion for postconviction relief from the judgment. The parties dispute whether the evidence is sufficient to support Steiner’s conviction, with each arguing that the sufficiency of the evidence depends on whether the element of “intent to abandon” a child under § 948.20 requires intent to leave the child permanently. Additionally, the State argues, as a threshold matter, that Steiner forfeited this issue by failing to object during closing argument when the prosecutor made clear that the prosecutor’s theory was that abandonment need not be permanent. We conclude that Steiner fails to show that there is a true sufficiency of the evidence issue here, and we agree with the State that Steiner forfeited the statutory interpretation issue he now raises. We affirm. Not recommended for publication in the official reports.

2013AP2629-CR State v. Steiner

Dist IV, La Crosse County, Levine, J., Lundsten, J.

Attorneys: For Appellant: Askins, Martha K., Madison; For Respondent: Latorraca, Donald V., Madison; Gruenke, Tim, La Crosse

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure
court commissioners

Sean F. Rowell, pro se, appeals an order of the circuit court denying his petition for a writ of habeas corpus. Rowell argues that he should be released from custody because court commissioners who presided over early proceedings in his criminal cases were “unempowered” by their failure “to perform the Official Oath of Office” or to “receive authorization through an appointment order.” We agree with the circuit court’s conclusion that Rowell has not shown he is entitled to the writ. We therefore affirm the order. This opinion shall not be published.

2014AP829 State ex rel. Rowell v. Pugh

Dist I, Milwaukee County, Sankovitz, J., Per Curiam

Attorneys: For Appellant: Rowell, Sean F., pro se; For Respondent: Loebel, Karen A., Milwaukee; Murphy, Anne Christenson, Madison

Wisconsin Court of Appeals

Criminal Procedure
defense-of-others privilege

Gabriel Justin Bogan appeals from: (1) a judgment of conviction entered after a jury found him guilty of first-degree reckless homicide with use of a dangerous weapon and first-degree recklessly endangering safety with use of a dangerous weapon, see Wis. Stat. §§ 940.02(1), 941.30(1), & 939.63(1)(b) (2011-12); and (2) the trial court’s order denying his postconviction motion. He argues that he received constitutionally ineffective assistance from his trial counsel because counsel failed to argue that the defense-of-others privilege applied, and failed to request the defense-of-others jury instruction. Because there was no evidence to support the defense-of-others privilege, we affirm. Not recommended for publication in the official reports.

2014AP285-CR State v. Bogan

Dist I, Milwaukee County, Sankovitz, Wagner, JJ., Brennan, J.

Attorneys: For Appellant: Rosen, Mark S., Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

Patrick P. Sharp appeals from orders denying his motion to withdraw his guilty pleas and denying his motion for reconsideration. We agree with the circuit court that the plea withdrawal motion is procedurally barred, so we affirm the orders. This opinion shall not be published.

2013AP2519, 2013AP2520 State v. Sharp

Dist I, Milwaukee County, Rothstein, J., Per Curiam

Attorneys: For Appellant: Meyeroff, Robert N., Milwaukee; For Respondent: Gansner, William L., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Criminal Procedure
new trials

Terez Cook appeals an order denying his “motion for entry of written order denying motion for new trial in the interest of justice.” Cook seeks entry of the order to facilitate an appeal from the circuit court’s 2010 oral rulings rejecting Cook’s motions for a new trial in the interest of justice and based on newly discovered evidence. Because the circuit court already entered an order disposing of Cook’s postconviction motions and lacks authority to enter another order disposing of these motions, and because the proposed new appeal would be procedurally barred and is meritless, we affirm the order. This opinion will not be published.

2014AP424 State v. Cook

Dist III, Marinette County, Morrison, J., Per Curiam

Attorneys: For Appellant: Cook, Terez Lamar, pro se; For Respondent: Brey, Allen R., Marinette; Noet, Nancy A., Madison

Wisconsin Court of Appeals

Criminal Procedure
postconviction discovery — ineffective assistance

David Marshall, pro se, appeals an order denying his Wis. Stat. § 974.06 motion for postconviction relief. Marshall argues the circuit court erred by denying: (1) his postconviction discovery request for access to an audio recording of the police interview of witness Matthew Krzoska; and (2) a presentence “motion to reverse judgment of guilty.” Marshall also claims he was denied the effective assistance of postconviction counsel and appears to challenge the sufficiency of the evidence to support his convictions. We reject these arguments and affirm the order. This opinion will not be published.

2013AP2386 State v. Marshall

Dist III, Outagamie County, Gage, J., Per Curiam

Attorneys: For Appellant: Marshall, David J., pro se; For Respondent: Balistreri, Thomas J., Madison; Schneider, Carrie A., Appleton

OWI

Wisconsin Court of Appeals

Motor Vehicles
OWI — probable cause

Jessica Stofflet appeals the circuit court’s judgment convicting her of operating a motor vehicle while intoxicated, as a second offense. Stofflet argues that the circuit court erred in denying her suppression motion because the officer who administered her preliminary breath test lacked the level of probable cause necessary for the test. I reject this and other arguments Stofflet makes, and affirm. This opinion will not be published.

2014AP823-CR State v. Stofflet

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

Attorneys: For Appellant: Bednarek, Jonas B., Madison; For Respondent: Weber, Gregory M., Madison; Mueller, Sue, Baraboo; Albrecht, Michael Xavier, Baraboo

Wisconsin Court of Appeals

Motor Vehicles
OWI — probable cause

Deborah Salzwedel appeals the judgment of conviction for third-offense operating a motor vehicle with a prohibited alcohol concentration in violation of Wis. Stat. § 346.63(1)(b). Salzwedel argues that the circuit court erred in denying her motion to suppress evidence because: (1) the officer did not have probable cause for the stop and (2) this was not an investigatory stop supported by reasonable suspicion. I conclude that the circuit court did not err in finding that there was probable cause for the stop and, therefore, I affirm the denial of the motion to suppress evidence. This opinion will not be published.

2014AP301-CR State v. Salzwedel

Dist IV, Juneau County, Curran, J., Kloppenburg, J.

Attorneys: For Appellant: Buffum, Dylan John Cyrus, Madison; For Respondent: Solovey, Michael T., Mauston; Weber, Gregory M., Madison; Burdon, Clifford C., Mauston

Wisconsin Court of Appeals

Motor Vehicles
OWI — stop and detention — community caretaker doctrine

Joshua Quisling appeals a judgment of the circuit court finding him guilty of first offense operating a motor vehicle while intoxicated pursuant to Wis. Stat. § 346.63(1)(a). Quisling argues that the circuit court erred when it concluded that the stop of the vehicle Quisling was driving was justified under the community caretaker doctrine and, therefore, the circuit court erred in denying Quisling’s motion to suppress evidence of intoxication acquired after the stop. I disagree, and affirm the circuit court. This opinion will not be published.

2013AP2743 Dane County v. Quisling

Dist IV, Dane County, Lanford, J., Lundsten, J.

Attorneys: For Appellant: Orth, John C., Middleton; For Respondent: Kaiser, Jonathon G., Madison; Lippert, Jordan, Madison

SENTENCING

Wisconsin Court of Appeals

Sentencing
discretion

In these consolidated appeals, Vincent Earl Daniels appeals from two judgments convicting him of identity theft contrary to Wis. Stat. § 943.201(2)(a) (2011–12), and from orders denying his motion for resentencing. The sole issue on appeal is whether the trial court failed to adequately explain its reasons for the sentence it imposed. We affirm. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

2014AP556-CR, 2015AP557-CR State v. Daniels

Dist I, Milwaukee County, DiMotto, Brash, JJ., Per Curiam

Attorneys: For Appellant: Roemaat, Sara Heinemann, Waukesha; For Respondent: Loebel, Karen A., Milwaukee; Murphy, Anne Christenson, Madison

Wisconsin Court of Appeals

Sentencing
three strikes law

Elijah Brooks appeals an order denying his Wis. Stat. § 974.06 postconviction motion without a hearing. In the motion, Brooks argued: (1) the judgment should be vacated because the court erroneously imposed a life sentence without the possibility of parole in reliance on Wisconsin’s “two strikes” penalty enhancer when Brooks was charged under the “three strikes” law; (2) Brooks is entitled to a new trial based on numerous evidentiary errors; and (3) he is entitled to a new trial based on ineffective assistance of trial counsel. Because we conclude the first issue is meritless and the second and third issues are procedurally barred, we affirm the order. This opinion will not be published.

2014AP143 State v. Brooks

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

Attorneys: For Appellant: Brooks, Elijah S., pro se; For Respondent: Tarver, Sandra L., Madison; Lasee, David L., Green Bay

SEXUALLY VIOLENT PERSONS

Wisconsin Court of Appeals

Sexually Violent Persons
ineffective assistance — prosecutorial misconduct

James Birkett appeals a judgment of the circuit court, which committed him as a sexually violent person under Wis. Stat. ch. 980 (2011-12), and an order denying his post-commitment motion. On appeal, Birkett argues that he received ineffective assistance of trial counsel, that the circuit court erred in admitting certain evidence, and that he was denied a fair trial because of prosecutorial misconduct. Birkett argues that the real controversy was not fully tried and requests that we use our discretionary authority under Wis. Stat. § 752.35 to reverse the circuit court. For the reasons set forth below, we affirm the judgment and the order of the circuit court. This opinion will not be published.

2012AP2652 In re the commitment of James R. Birkett

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

Attorneys: For Appellant: LeBell, Robert G., Milwaukee; For Respondent: Ozanne, Ismael R., Madison; Larson, Sara Lynn, Madison

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