Weekly Case Digests — Nov. 10-14, 2014

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Wisconsin Law Journal’s Case Digests – Nov. 10-14, 2014

CIVIL OPINIONS

CIVIL PROCEDURE

Wisconsin Court of Appeals

Civil Procedure – contempt — attorney fees

Rynders Realty, Inc. appeals an order granting two motions for contempt pursuant to Wis. Stat. § 785.01(1)(a) and (b). Rynders argues the circuit court erred in: (1) failing to hold an evidentiary hearing on the motions for contempt; (2) imposing remedial contempt sanctions when there was no continuing contempt; and (3) awarding duplicate attorneys’ fees. We affirm. This opinion will not be published.

2013AP2665 Minocqua Land Investments LLC v. Rynders Realty Inc. et al.

Dist III, Oneida County, Bloom, J., Stark, J.

Attorneys: For Appellant: Trebatoski, Chris J., Milwaukee; For Respondent: Hodan, Patrick J., Milwaukee; Handelsman, Alexander, Milwaukee; Blair, Melissa S., Milwaukee; Lippman, Trevor C., Milwaukee

CIVIL RIGHTS

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

Civil Rights — religious discrimination

Where a religious organization had a long history of lenience towards underage drinking, a university’s severing ties with the organization was not the result of discrimination.

“As is apparent from the Klein video that we cited at the outset of this opinion, Rabbi Klein is lively, engaging, eminently approachable, enthusiastic, and one might even say charismatic. Were he more responsible concerning underage and excessive drinking by the kids who frequent the Chabad house, the university would have maintained its affiliation with the house. Klein says that the university should have told him to exercise closer supervision over alcohol consumption at the house, as a condition for retaining the affiliation, and that had the university done this he would have complied. In other words, he wants a second chance. But he admits that he never asked for that second chance. He had gotten away for more than a quarter of a century with an irresponsible attitude toward excessive underage drinking that went on under his nose in the Chabad house, and seems to have thought that he could continue to do so, with impunity, indefinitely. He was given multiple chances. He was warned repeatedly, but did not react. Why should he be given fourth and fifth and nth chances? Had he stepped forward on his own initiative and promised to mend his ways, the Tannenbaum Chabad House might still be a Northwestern University affiliate.”

Affirmed.

14-1055 Lubavitch-Chabad of Illinois Inc. v. Northwestern University

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Posner, J.

INSURANCE

Wisconsin Court of Appeals

Insurance — homeowners policies — bad faith

Where an insurer paid market value rather than actual cash value after the destruction of a home, summary judgment was improperly granted to the insurer on the insured’s breach of contract and bad faith claims.

“While we will not rehash the facts in their entirety here, we will highlight those we find especially persuasive, including the fact that Allstate’s first appraiser, Van Caster, initially calculated the property’s actual cash value at approximately $113,000, yet Allstate inexplicably rejected that value and insisted that a second appraiser value the property based on market value. Allstate then repeated its insistence on use of market value with subsequent appraisers, even though the policy said nothing about the use of market value to determine coverage and even though the terms of the policy, the nature of the policy, the amount of coverage purchased, and commonly accepted definitions of ‘actual cash value’ — including the definition espoused in Allstate’s own website — clearly demonstrate that Allstate should have paid for the replacement of the property minus depreciation or the policy limits (including the ten-percent upgrade to bring the dwelling up to current standards)—whichever sum was smaller. In sum, given the facts of record, a reasonable trier of fact could certainly conclude that Allstate: (1) breached the terms of its policy; (2) acted in bad faith; and (3) should be, as the complaint states, ‘estopped from disregarding the actual cash value declared in its policy declarations upon which its premium was based.’”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2739 Coppins v. Allstate Indemnity Co.

Dist. I, Milwaukee County, Van Grunsven, J., Curley, J.

Attorneys: For Appellant: Konz, Michael P., Appleton; Fuehrer, Erik L., Appleton; For Respondent: O’Brien, Barbara A., Milwaukee; Silver, Patryk, Milwaukee

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Professional Responsibility — suspension

Where attorney Arik J. Guenther has been suspended four times, and committed a third-offense drunk driving, a one-year suspension is appropriate.

“Turning to the appropriate level of discipline, we agree with the referee that the seriousness of Attorney Guenther’s misconduct and our practice of imposing progressively stronger sanctions require a one-year suspension of Attorney Guenther’s license to practice law in this state. Unlike the disciplinary proceeding involving Attorney Soldon, this is the fifth time that Attorney Guenther has committed misconduct serious enough to warrant a suspension. He was already disciplined for very similar misconduct in Guenther III. Specifically, although he had been disciplined in that proceeding for criminal convictions that arose out of improper actions toward his then-wife, he subsequently chose to violate a domestic abuse injunction by sending legal documents to her directly. Further, although he had been disciplined in Guenther III for his second offense of operating a motor vehicle with a PAC, he engaged in the conduct again, leading to a third PAC conviction. This repetition of misconduct makes the violations in this matter more troubling and worthy of a lengthier suspension, which hopefully will impress upon him the seriousness of his misconduct and the need to conform his conduct to both the criminal laws of this state and the Rules of Professional Conduct for Attorneys.”

2012AP967-D OLR v. Guenther

Per Curiam.

Attorneys: For Complainant: Hendrix, Jonathan E., Madison; For Respondent: Guenther, Arik J., Jackson

Wisconsin Supreme Court

Professional Responsibility — revocation

Where attorney Pablo Carraza admits 38 violations of the rules of professional responsibility, revocation is appropriate.

“Having reviewed Attorney Carranza’s petition, the OLR’s summary of the matters it is investigating, and the OLR’s recommendation, we accept Attorney Carranza’s petition for the revocation of his license to practice law in Wisconsin. See SCR 22.19(1), (2), and (5). The seriousness of Attorney Carranza’s misconduct demonstrates the need to revoke his law license to protect the public, the courts, and the legal system from the repetition of misconduct; to impress upon Attorney Carranza the seriousness of his misconduct; and to deter other attorneys from engaging in similar misconduct. See In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279 Wis. 2d 583, 694 N.W.2d 910. Because Attorney Carranza petitioned for the consensual revocation of his Wisconsin law license before the appointment of a referee, and because the OLR has not requested the imposition of costs, we do not assess the costs of this disciplinary proceeding against Attorney Carranza.”

2014AP1242-D OLR v. Carraza

Per Curiam.

PROPERTY

Wisconsin Court of Appeals

Property – foreclosure — standing

Larry N. Scruggs, pro se, appeals from a trial court order denying Scruggs’s motion to reopen a default judgment pursuant to Wis. Stat. § 806.07(1)(d) and (h) (2011-12).[1] We conclude, as we did in 2011 when Scruggs appealed a similar order, that Scruggs lacks standing to challenge the default judgment because he was dismissed as a party in 2009. In addition, this court concludes that the appeal is frivolous because Scruggs “knew, or should have known, that the appeal … was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.” See Wis. Stat. Rule 809.25(3)(c)2. Therefore, we remand for the assessment of costs and fees, including reasonable appellate attorney fees, pursuant to Rule 809.25(3). This opinion will not be published.

2013AP2635 Wauwatosa Savings Bank v. Scruggs et al.

Dist I, Milwaukee County, Van Grunsven, J., Per Curiam

Attorneys: For Appellant: Scruggs, Larry N., pro se; For Respondent: Neary, Elizabeth A., Waukesha; Schoendorf, Michael T., Waukesha

REMEDIES

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

Remedies — False Claims Act

Where a pharmacist’s allegations under the False Claims Act were implausible, the case was properly dismissed.

“Because Thulin’s FCA claim lacks a legal basis as pleaded, it is inherently implausible and properly was dismissed. For the sake of completeness, we briefly address Thulin’s argument concerning the adequacy of his allegations that Shopko ‘knew’ it was submitting false claims. To be liable under the FCA, Shopko must have acted with ‘actual knowledge,’ or with ‘deliberate ignorance’ or ‘reckless disregard’ to the possibility that the claims it submitted were false. King-Vassel, 728 F.3d at 712; 31 U.S.C. § 3729(a)(1)(A), (b). Thulin contends that his complaint plausibly suggested that Shopko acted with ‘reckless disregard’ as we defined the term in King-Vassel, 728 F.3d at 712-13, because he alleged that Shopko is a ‘sophisticated,’ ‘multi-regional’ business that developed and programmed the PDX system and should have been aware of federal statutes and regulations governing the submission of claims to Medicaid. In reaching a contrary conclusion, Thulin contends, the district court must have ignored King-Vassel’s explication of ‘reckless disregard.’ We disagree. Thulin’s allegations would not be sufficient to satisfy his pleading requirement even if Shopko’s billing practices were contrary to the ‘Federal Assignment Law.’ Although ‘[m]alice, intent, and other conditions of a person’s mind may be alleged generally,’ Fed. R. Civ. P. 9(b), vague allegations that a corporation acted with reckless disregard—i.e., grossly negligently or with reason to know of facts that would lead a reasonable person to realize that it was submitting false claims, see King-Vassel, 728 F.3d at 713—simply by virtue of its size, sophistication, or reach do not clear even this lower pleading threshold. Such allegations may suggest a possibility that Shopko acted with reckless disregard, but they do not ‘nudg[e]’ Thulin’s claims ‘across the line from conceivable to plausible.’ Iqbal, 556 U.S. at 680.”

Affirmed.

13-3638 Thulin v. Shopko Stores Operating Co., LLC

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

Wisconsin Court of Appeals

Remedies — domestic abuse injunctions

Korry Ardell appeals the circuit court’s order upholding a domestic abuse injunction that Nicole Thomas initially obtained against him before a court commissioner. Ardell argues that: (1) the court commissioner’s initial injunction decision was based on insufficient evidence; (2) the circuit court “erroneously found that the commissioner found Thomas more credible than Ardell”; (3) the court erred by refusing to consider Thomas’s failure to respond to Ardell’s requests for admissions; (4) the court erred in refusing to admit Thomas’s personal phone records; (5) the court misunderstood the time line of pertinent events; and (6) the court improperly relied on a public records request made by Ardell as a basis for the injunction. We reject these arguments and affirm. Not recommended for publication in the official reports.

2014AP295 Thomas v. Ardell

Dist I, Milwaukee County, White, J., Lundsten, J.

Attorneys: For Appellant: Mason, Rebecca Kathryn, Racine; For Respondent: Gonring, Michael J., Milwaukee; Harpke, Lauren, Milwaukee

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Trusts and Estates — undue influence

St. Paul Evangelical Lutheran Church (the Church) appeals an order of the trial court admitting the will of Gerald Mahr into probate. Specifically, the Church contends that Ignacio Vasquez unduly influenced Mahr, convincing Mahr to leave the entire residue of his estate to Vasquez. We affirm. Not recommended for publication in the official reports.

2014AP341 In re the estate of Gerald G. Mahr

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

Attorneys: For Appellant: Russell, Patrick R., Brookfield; For Respondent: Nash, Randall L., Milwaukee; Lippman, Trevor C., Milwaukee; Lynch, Matthew A., Thiensville; Fricker, Robert E., Wauwatosa; Rustad, Roger A., West Allis; Kingstad, David G., Greenfield; Doyle, Catherine M., Milwaukee; Magee, Brenda, pro se; Resnick, Janet, pro se

CRIMINAL OPINIONS

U.S. Court of Appeals For the Seventh Circuit

Firearms; Making false statements; mistake of fact

Where the district court prevented the defendant from introducing evidence of a mistake of fact in a prosecution for making false statements in connection with the purchase of a firearm, the conviction must be reversed.

“The government contends that the testimony from the prosecutor about whether he made a plea offer was irrelevant, or, if relevant, it was not necessary to obtain this testimony from him as only Bowling could testify about what he knew when filled out the form. We disagree. The county prosecutor’s testimony presents a possible defense and thus is clearly relevant. See Fed. R. Evid. 401; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993) (holding that the basic standard of relevance under Rule 401 is “a liberal one.”). Bowling does not have to testify and should not be foreclosed from cross-examining the county prosecutor simply because he could personally say what he knew. Knowledge, or its absence, may be proved by all the facts and circumstances of the case. See United States v. Craig, 178 F.3d 891, 895 (7th Cir. 1999). Where cross-examination of a witness produces facts necessary to establishing a defense, the defendant may choose to rely on that testimony without having to testify himself. This is a strategic determination to be made by the defendant and his counsel. Here, the record suggests that only three persons could have testified concerning whether a plea offer had been communicated to Bowling: the county prosecutor, Bowling’s state counsel, and Bowling. Obviously, neither Bowling’s counsel, nor Bowling, should have to testify where the prosecutor is available as a witness. A jury is most likely to regard his testimony as objective as he does not have a personal interest in the outcome of Bowling’s federal case. Clearly the county prosecutor was the logical source for such testimony.”

Reversed and Remanded.

13-3895 U.S. v. Bowling

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Manion, J.

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

Shielding Unauthorized Aliens — Sufficiency of the evidence

Assisting illegal aliens who lack social security numbers in obtaining legal title to automobiles does not constitute shieling unauthorized aliens under 8 U.S.C. 1324(a)(1)(A)(v)(I).

“Consider the one thing most likely to induce an unauthorized alien to reside in the United States: employment. It is unlawful to employ an alien whose visa does not authorize work. 8 U.S.C. §1324a. But the penalties for violating this statute are fines, §1324a(e), and imprisonment capped at six months, §1324a(f). What sense could it make to set six months as the maximum punishment for employing an unauthorized alien, while allowing imprisonment for five years under §1324(a)(1)(B)(ii) for someone who makes it just a little easier for the same alien to get clear title to the car used to drive to work? It is far better to read §1324(a)(1)(A)(iv) as inapplicable to the provision of goods and services that are attractive to unauthorized aliens, legally residing aliens, and citizens alike.”

Reversed.

13-3430, 13-3468, 13-3516, 13-3517 & 13-3559 U.S. v. Borrero

Appeals from the United States District Court for the Northern District of Indiana, DeGuilio, J., Easterbrook, J.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal Procedure — ineffective assistance — new trials

Frank Whitehead appeals a judgment convicting him of one count of first-degree sexual assault of a child and one count of threats to injure or accuse of a crime. He also appeals an order denying postconviction relief. Whitehead argues his trial attorney was ineffective. In the alternative, he seeks a new trial in the interest of justice. We reject these arguments and affirm. This opinion will not be published.

2014AP460-CR State v. Whitehead

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

Attorneys: For Appellant: Schertz, Dennis, Hudson; For Respondent: Blank, Daniel W., Superior; Winter, Tiffany M., Madison

Wisconsin Court of Appeals

Criminal Procedure — plea withdrawal — competency

Mark Lindblom appeals an order denying his Wis. Stat. § 974.06 motion for plea withdrawal. Because Lindblom has been discharged from his sentence and is no longer “in custody” as required by § 974.06, we conclude the circuit court lacked competency to entertain Lindblom’s motion. As a result, we reverse and remand for the circuit court to vacate its order and dismiss Lindblom’s motion. This opinion will not be published.

2014AP319 State v. Lindblom

Dist III, Burnett County, Kutz, J., Per Curiam

Attorneys: For Appellant: Rebholz, James A., Milwaukee; For Respondent: Tarver, Sandra L., Madison; Norine, William L., Siren

Wisconsin Court of Appeals

Criminal Procedure — plea withdrawal — ineffective assistance

Billie Joe Cannon, pro se, appeals a judgment entered after he pled guilty to one count of possessing a firearm while a felon. He also appeals an order denying postconviction relief. We reject his claims and affirm. This opinion will not be published.

2013AP2858-CR State v. Cannon

Dist I, Milwaukee County, Guolee, Pocan, JJ., Per Curiam

Attorneys: For Appellant: Cannon, Billy Joe, pro se; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

Wisconsin Court of Appeals
Criminal Procedure — new trials

Michael Hess appeals a judgment of conviction for possession of methamphetamine. Hess argues there was insufficient evidence to convict him. We reject Hess’s insufficiency of the evidence argument, but we reverse and remand for a new trial in the interest of justice. Not recommended for publication in the official reports.

2014AP268-CR State v. Hess

Dist III, Barron County, Babler, J., Hoover, P.J.

Attorneys: For Appellant: Bechtold, Frederick A., Taylor Falls, Minn.; For Respondent: Balistreri, Thomas J., Madison; Beranek, Angela L., Barron

Wisconsin Court of Appeals

Criminal Procedure — Confrontation Clause — ineffective assistance

Rudolph D. Powells, pro se, appeals an order of the circuit court that denied his postconviction motion for relief under Wis. Stat. § 974.06 (2011-12) without a hearing. Powells complains that the circuit court violated his right to confrontation by allowing certain testimony at trial and that trial counsel was ineffective for not challenging that testimony or the State’s ballistics expert’s testimony. We conclude that the circuit court properly denied the motion, so we affirm the order. This opinion shall not be published.

2012AP2688 State v. Powells

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

Attorneys: For Appellant: Powells, Rudolph D., pro se; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal Procedure — ineffective assistance

It was not deficient performance for an attorney to fail to consult objective sentencing data before advising a client that a nonprison sentence was a possibility if he pleaded guilty.

“In addition, although a defense attorney is free to consider sources of objective sentencing data, failing to do so is not ineffective assistance. Sentencing in Wisconsin is individualized. State v. Gallion, 2004 WI 42, ¶48, 270 Wis. 2d 535, 678 N.W.2d 197. The sentencing commission and sentencing guidelines have been abolished. State v. Barfell, 2010 WI App 61, ¶4, 324 Wis. 2d 374, 782 N.W.2d 437. The court will not consider that data at sentencing. So its relevance is limited. The reality is that whatever the objective sentencing data shows about overall sentencing, a defendant’s chances of a particular sentence are individual. A defendant’s situation in trying to predict the sentence he or she will receive is similar to the situation of a person diagnosed with a serious illness. Data may show that only 25% of people survive the disease, but for any particular individual, the chances of survival are black or white, zero or 100%. Likewise, few individuals convicted of both charges Carlson was facing may obtain nonprison sentences, but for any particular individual, the chances were zero or 100%. And in Carlson’s individual situation, if a nonprison sentence was his hope, pleading guilty was a sound strategy — perhaps the only realistic strategy — for achieving that outcome.”

Affirmed.

Recommended for publication in the official reports.

2013AP2559-CR State v. Carlson

Dist. II, Ozaukee County, Williams, J., Brown, J.

Attorneys: For Appellant: Wiercioch, Gregory W., Madison; For Respondent: Weinstein, Warren D., Madison; Gerol, Adam Y., Port Washington

Wisconsin Court of Appeals

Criminal Procedure — Miranda warnings

Omarr T. Moore appeals from a judgment of conviction, entered upon his Alford plea, on one count of armed robbery as party to a crime and one count of hostage-taking.[1] He also appeals from an order denying his postconviction motion, which sought reconsideration of a motion to suppress incriminating statements Moore gave to police. Moore contends that the circuit court erred in denying the suppression motion because the State failed to meet its evidentiary burden upon re-hearing. Based on the circuit court’s factual findings, we affirm the judgment and order. This opinion shall not be published.

2014AP85-CR State v. Moore

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

Attorneys: For Appellant: Flanagan, Patrick, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Murphy, Anne Christenson, Madison

SEARCH AND SEIZURE

Wisconsin Court of Appeals

Search and Seizure — search warrants — general warrants — emails

A search warrant seeking all of a suspect’s emails for a nearly-two-year period is not an unconstitutional general warrant.

“The Fourth Amendment parameters of search and seizure law, largely developed in the context of obtaining tangible evidence, are not necessarily inapplicable to all searches for and seizures of electronic information. For example, a search warrant for a filing cabinet, located in a particular place, which contains a year’s worth of correspondence between, or relating to, two particular individuals, would normally be searched where the filing cabinet is located by the officers executing the warrant. Likewise, many documents in that filing cabinet would have nothing to do with either of those individuals. The only way the officer could distinguish between what relates to either of those individuals and what does not, is to look through all of the documents in the filing cabinet. Law enforcement officers have long had to separate the documents as to which seizure was authorized from the other documents. So far, as we have been able to discover, that necessity has not turned an otherwise valid warrant into a “general” warrant. We see no constitutional imperative that would change the result simply because the object of the search is electronic data from a specific electronic file, for a reasonably specific period of time, in the custody of a specific ISP.”

Affirmed.

Recommended for publication in the official reports.

2013AP362-CR State v. Rindfleisch

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

Attorneys: For Appellant: Gimbel, Franklyn M., Milwaukee; Keppel, Kathryn A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

SENTENCING

Wisconsin Court of Appeals

Sentencing — discretion

Anthony L. Troupe appeals a judgment of conviction, entered upon his guilty plea, on one count of substantial battery. He also appeals an order denying his postconviction motion for resentencing. Troupe contends that the circuit court failed to properly consider his character at sentencing. We disagree and affirm the judgment and order. This opinion shall not be published.

2014AP439-CR State v. Troupe

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

Attorneys: For Appellant: Peirce, Benjamin J., Wauwatosa; For Respondent: Remington, Debra L., Madison; Loebel, Karen A., Milwaukee

Wisconsin Court of Appeals

Sentencing — modification

Shaquille Oneal Trotter appeals from a judgment of conviction for armed robbery with threat of force as party to a crime, see Wis. Stat. §§ 943.32(2) & 939.05, and from an order denying his postconviction motion for sentence modification. Because the circuit court properly exercised its discretion in determining that Trotter’s ineligibility for the Challenge Incarceration Program (CIP) did not justify the modification of his sentence, we affirm. This opinion will not be published.

2014AP5-CR State v. Trotter

Dist I, Milwaukee County, Kahn, Lamelas, JJ., Per Curiam

Attorneys: For Appellant: Tauscheck, George, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Noet, Nancy A., Madison

Wisconsin Court of Appeals
Sentencing — DNA surcharge

Patrick J. Grant, pro se, appeals an order of the circuit court, denying his motion to correct “clerical errors” in his judgment of conviction. We affirm the order. This opinion shall not be published.

2013AP2406-CR State v. Grant

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

Attorneys: For Appellant: Grant, Patrick J., pro se; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison