Weekly Case Digests — Dec. 29, 2014 – Jan. 2, 2015

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U.S. Court of Appeals For the Seventh Circuit
Bankruptcy
Fraud

A debt that a bankrupt incurs after his debts have been discharged in bankruptcy, but that he wouldn’t have incurred had it not been for a prepetition claim, is not dischargeable if the underlying claim is not.

“What dooms (but not the only thing that dooms) Ruben’s effort to escape the arbitrators’ assessment of expenses is that the assessment was a result of his freely chosen decision to participate in the arbitration. Had he not participated, Bell would instead have pressed her fraud claims against him in her adversary proceeding, and it is inconceivable that the bankruptcy court—the host as it were of the adversary proceeding—would have assessed substantial costs against him. The bulk of the $171,504.54 in costs assessed against Ruben by the arbitration panel—$150,304.54 (87.6 percent)—was for the expenses and compensation of the arbitrators. Courts don’t make litigants pay judges’ salaries. But arbitrators, being secretive, wielding very broad discretion, being far less rule-bound than courts—and not being paid for their work by the government—charge their salaries to the parties to the arbitration. By asking to be allowed into the arbitration, Ruben voluntarily exposed himself to assessments the amount of which he could not have calculated in advance. It is odd to think that because Ruben chose to roll the dice, Bell should be deprived of the costs that the arbitrators awarded her.”

Affirmed.

14-1475 In re: Ruben

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

Wisconsin Court of Appeals
Civil Procedure
appeal – inadequate briefing

APPEAL from an order of the circuit court for Langlade County:  FRED W. KAWALSKI, Judge.  Affirmed.

Richard Selenske, pro se, appeals an order denying his petition to probate the will of his father, Peter Selenske, twenty-eight years after Peter’s death.  This is Selenske’s ninth appeal related to the probate and distribution of assets from his parents’ respective estates.  For the reasons outlined below, we affirm the order.

DISTRICT III; Langlade County; FRED W. KAWALSKI, Judge; Hoover, P.J., Stark and Hruz, JJ.

2014AP000578 Richard Selenske v. Estate of Louise Selenske

Attorneys: For Appellant: For Respondent: De Vos, Robyn J.

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure
Costs

Costs were properly awarded for a frivolous challenge.

“In general the period over which plan reductions may be aggregated to determine whether a partial termination has occurred is a single plan year. But we held in a Matz decision in 2000 that because nothing ‘requires a significant corporate event to occur within a plan year, Matz can combine terminations from 1994, 1995 and 1996, provided that he show that the corporate events of those years were related. We believe this view reflects the realities of the modern corporate world. Mergers and corporate reorganizations have grown into large and complex events, and often cannot be completed in one year. Furthermore, to establish a rigid rule that only terminations in individual plan years can be counted allows an unscrupulous employer to terminate some participants in December of one year and January of the next year, thereby eviscerating … the purpose of protecting employee benefits … . We are convinced that the requirement that the multiple year terminations be proven related prevents a plaintiff from gaining undue advantage too.’ Matz v. Household Int’l Tax Reduction Investment Plan, 227 F.3d 971, 977 (7th Cir. 2000) (citations omitted), vacated on unrelated grounds, 533 U.S. 218 (2001) (mem.); see also Rev. Rul. 2007? 43, supra.”

Affirmed.

14-1683 & 14-2507 Matz v. Household International Tax Reduction Investment Plan

Appeals from the United States District Court for the Northern District of Illinois, Gottschall, J., Posner, J.

Wisconsin Court of Appeals
Family
child support – modification

APPEAL from an order of the circuit court for Outagamie County:  DEE R. DYER, Judge.  Reversed and cause remanded for further proceedings.

Donald Pulda appeals a postdivorce order denying modification of child support. We conclude the circuit court erroneously exercised its discretion by determining Donald’s actions precluded modification of his child support obligation. Accordingly, we reverse the order and remand for further proceedings.

2014AP001706-FT            Susan Pulda v. Donald Pulda

DISTRICT III; Outagamie County; DEE R. DYER; Hoover, P.J., Stark and Hruz, JJ.

Attorneys: For Appellant: Metz, Scott D. For Respondent: Hoff, Alan S.

U.S. Court of Appeals For the Seventh Circuit
Immigration
CAT

An alien facing removal may not raise new issues not raised before the BIA.

“While Duarte may have requested that the IJ and the Board consider the same evidence for other claims, he did not ask them to consider the same arguments that he now asks us to consider. To determine whether an issue has been raised at an earlier proceeding, courts look to whether a party actually argued it, not whether the argument bears some relation to the evidentiary record. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010). To do otherwise would effectively eliminate waiver and preserve every issue for review. At no point in the earlier proceedings did Duarte argue that he would be tortured upon return to Mexico. Because no such arguments were made, neither the IJ nor the Board issued a ruling on the matter. For us to review this issue, we would have to speculate about which arguments Duarte would have made in earlier proceedings as well as the specific grounds for denying them. In other words, there is nothing for us to review.”

Petition Denied.

14-2276 Duarte-Salagosa v. Holder

On Petition for Review of an Order of the Board of Immigration Appeals, Manion, J.

Wisconsin Supreme Court
Insurance
CGL policies; pollution exclusions

A pollution exclusion clause in a CGL policy unambiguously excludes coverage for well contamination caused by the seepage of cow manure.

“The Falks and injured parties further argue that it was the nitrates, not the manure, that caused the harm.  However, this argument interprets the pollution exclusion so narrowly that our adoption of it would render the exclusion almost meaningless.  Nitrates of this quantity found in a well could not occur but for excess nitrates that had formed as the result of manure application.  U.S. Envtl. Prot. Agency, Basic Information, supra note 16.  Under a causation analysis, the nitrates could not have seeped into the well, had the manure not been applied.  No one would look at well water contaminated by nitrates and conclude that the well is anything but polluted.  This argument further overlooks the fact that harmful bacteria were also found in the injured parties’ wells.  When manure infiltrates a well, it renders the well impure, unclean, and contaminates the water.”

Reversed and Remanded.

2013AP691 & 2013AP776 Wilson Mut. Ins. Co. v. Falk

Gableman, J.

Wisconsin Supreme Court
Insurance
CGL policies; pollution exlcusions

A reasonable insured would understand that decomposing septage is a “contaminant” and therefore, a “pollutant” as defined in a pollution exclusion clause when it has decomposed and seeps into a water supply.

“Furthermore, that septage fits the ordinary meaning of waste, which the policies expressly list as a pollutant, supports our conclusion that septage is a pollutant when it seeps into a water supply.  Septage is primarily composed of human urine and feces.  The ordinary meanings of feces and urine are, respectively, ‘“[w]aste matter eliminated from the bowels; excrement,”’ and ‘“[t]he waste product secreted by the kidneys.”’  Hirschhorn, 338 Wis. 2d 761, ¶34 (quoting The American Heritage Dictionary 1965).  The ordinary meaning of waste includes, among other things, ‘“[t]he undigested residue of food eliminated from the body; excrement.”’ Id. (quoting American Heritage Dictionary 2016).  In Hirschhorn, these definitions of waste, urine, and feces supported our conclusion that bat guano——which consists of bat urine and feces——was a pollutant when it infiltrated a home.  Id., ¶¶34-36.  Likewise, in the present case, these definitions support our conclusion that decomposing septage is a pollutant when it seeps into a water supply.”

Affirmed.

2012AP2521 Preisler v. General Casualty Ins. Co.

Roggensack, J.

Wisconsin Supreme Court
Torts
Dog bites – strict liability

The owner of a house is not strictly liable for attacks by dogs on the property where he neither lived in the same household as the dogs nor exercised control over the property on which the dogs were kept.

“Considering the totality of the circumstances detailed above, we conclude that Kontos was not a statutory owner of the dogs such that he could be held liable under Wis. Stat. § 174.02.  It is undisputed that Kontos did not legally own the dogs and did not exercise the requisite care, custody or control of the dogs to qualify as a keeper.  Further, he was not a harborer of the dogs.  Although Kontos provided shelter for his daughter and family by buying the house for them to live in, he exercised no control over that property and maintained a separate residence.  Ultimately, it was his daughter who provided shelter to the dogs.”

Reversed.

2012AP641 Augsburger v. Homestead Mut. Ins. Co.

Bradley, J.

CRIMINAL

Wisconsin Court of Appeals
Bail Jumping
Sufficiency of the evidence

Face-to-face contact is not required in order for a defendant to commit bail jumping by violating a no contact order.

“In sum, the jury instruction requiring the State to prove that Bowen made ‘contact with [F.B.]’ did not require the State to show that F.B. saw Bowen or that Bowen directly communicated with F.B.  F.B.’s testimony that she saw Bowen’s truck in the driveway, heard glass breaking, and heard someone walking up and down her stairs, combined with police officer testimony that Bowen was found intoxicated in F.B.’s basement, was sufficient to demonstrate that Bowen made ‘contact with [F.B.].’ As such, we affirm.”

Affirmed.

Recommended for publication in the official reports.

2014AP767-CR State v. Bowen

Dist. I, Milwaukee County, Dallet, J., Brennan, J.

Wisconsin Court of Appeals
Criminal Procedure
right to be present

APPEALS from judgments and orders of the circuit court for Milwaukee County:  MEL FLANAGAN, Judge.  Affirmed.

Marvin Dewayne Clements appeals from judgments of convictions, entered upon a jury’s verdicts, on twenty-five charges.  He also appeals from the trial court’s orders denying his postconviction motion for a new trial.  Clements contends that he has new evidence warranting a new trial, and that his removal from the courtroom for disruptive behavior violated his constitutional and statutory rights to be present during voir dire and the trial.  We agree with the trial court’s rejection of these claims, so we affirm.

DISTRICT I; Milwaukee County; MEL FLANAGAN, Judge; Curley, P.J., Kessler and Brennan, JJ.

2014AP000856-CR           State v. Marvin Dewayne Clements

Attorneys: For Appellant: Novack, Gregg H. For Respondent: Loebel, Karen A.; Johnson-Karp, Gabe

Wisconsin Court of Appeals
Criminal Procedure
ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DENNIS P. MORONEY, Judge.  Affirmed.

Terrance Ware appeals a judgment entered on a jury verdict convicting him of being a felon in possession of a firearm, and an order denying his motion for a new trial, arguing ineffective assistance of counsel.  Ware first contends that the trial court erred by denying his suppression motion because the officers lacked reasonable suspicion to do a protective search of the car Ware was driving after a traffic stop.  Ware also argues he was denied effective assistance of counsel because his trial counsel did not object to testimony of an officer regarding the veracity of another witness’s testimony, and because his trial counsel did not object when the prosecutor made an incorrect statement in closing argument.  Ware contends the trial court erred when it denied his ineffective assistance claim without a Machner hearing.

DISTRICT I; Milwaukee County; DENNIS P. MORONEY, Judge; Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge

2014AP000378-CR State v. Terrance L. Ware

Attorneys: For Appellant: Mullins, Brian Patrick For Respondent: Loebel, Karen A.; Larson, Sarah K.

Wisconsin Court of Appeals
Criminal Procedure
plea withdrawal

APPEAL from a judgment and an order of the circuit court for Brown County:  THOMAS J. WALSH, Judge.  Affirmed.

Patricia Perez appeals a judgment, entered upon her no contest pleas, convicting her of arson and two counts of second-degree reckless endangerment, all counts as party to a crime (PTAC).  Perez also appeals the order denying her postconviction motion for plea withdrawal.  Perez argues the circuit court erred by denying her plea withdrawal motion because she was not accurately informed of PTAC liability and did not otherwise understand the concept.  Because the record supports the conclusion Perez understood PTAC liability at the time she entered her no contest pleas, we affirm the judgment and order.

DISTRICT III; Brown County; THOMAS J. WALSH; Hoover, P.J., Stark and Hruz, JJ.

2014AP000010-CR           State v. Patricia A. Perez

Attorneys: For Appellant: Krahn, Ellen J. For Respondent: Lasee, David L.; Burgundy, Sarah

Wisconsin Court of Appeals
Motor Vehicles
OWI – reasonable suspicion

APPEAL from judgments of the circuit court for Fond du lac County:  GARY R. SHARPE, Judge.  Affirmed.

Jeffrey K. Krueger attacks his convictions for operating a vehicle while intoxicated and with a prohibited alcohol concentration by claiming that there was no reasonable suspicion for a stop.  He contends that the squad video directly contradicts the deputy’s testimony that Krueger’s vehicle swerved three feet over the center line while negotiating a curve in the roadway.  But the trial court found the video to be inconclusive and the deputy’s testimony credible.  Those findings are not clearly erroneous and we affirm.

DISTRICT II; Fond du lac County; GARY R. SHARPE, Judge; BROWN, C.J.

2014AP001494 County of Fond du Lac v. Jeffrey K. Krueger

Attorneys: For Appellant: Piel, Walter Arthur, Jr. For Respondent: Edelstein, Douglas R.

Wisconsin Court of Appeals
Motor Vehicles
OWI – probable cause

APPEAL from an order of the circuit court for Rock County:  RICHARD T. WERNER, Judge.  Reversed and cause remanded.

The State appeals an order suppressing evidence obtained against defendant David Kline in an operating while intoxicated (OWI) and prohibited alcohol concentration (PAC) case.  The circuit court concluded that the investigating officer transformed an investigatory stop into an arrest without probable cause when he transported defendant David Kline to the police department garage to perform sobriety tests.  We will assume for the sake of argument that the transportation constituted an arrest.  However, for the reasons discussed below, we conclude that the officer had probable cause for arrest at that time.  Accordingly, we reverse the suppression order and remand for further proceedings.

DISTRICT IV; Rock County; RICHARD T. WERNER, Judge; Blanchard, P.J., Sherman and Kloppenburg, JJ.

2013AP002628-CR           State v. David L. Kline, Jr.

Attorneys: For Appellant: Urbik, Gerald A.; Winter, Tiffany M. For Respondent: Alesia, Susan E.

Wisconsin Court of Appeals
Sentencing
modification – new factors

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  REBECCA F. DALLET, Judge.  Affirmed.

Nicholas James Fuchs appeals a judgment convicting him of two counts of child abuse/recklessly causing harm, one count of child abuse/recklessly causing great harm, and one count of second-degree recklessly endangering safety.  He also appeals an order denying his motion to modify his sentence.

He argues that he is entitled to sentence modification based on two “new factors.”  We affirm.

DISTRICT I; Milwaukee County; REBECCA F. DALLET, Judge; Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge

2014AP000299-CR           State v. Nicholas James Fuchs

Attorneys: For Appellant: Marion, Colleen For Respondent: Loebel, Karen A.; Weinstein, Warren D.

Wisconsin Court of Appeals
Sentencing
ambiguity

APPEAL from a judgment and an order of the circuit court for Brown County:  THOMAS J. WALSH, Judge.  Affirmed.

Charles McIntyre appeals the denial of his motion to amend his judgment of conviction.  McIntyre argues the judgment of conviction sets forth an ambiguous sentence that should be resolved in his favor.  We affirm.

DISTRICT III; Brown County; THOMAS J. WALSH, Judge; STARK, J.

2014AP000800-CR State v. Charles A. McIntyre

Attorneys: For Appellant: Schaefer, Linda J. For Respondent: Weber, Gregory M.; Lemkuil, Wendy W.; Lasee, David L.; Belair, Sarah Elyse

Wisconsin Supreme Court
Motor Vehicles
OWI – warrantless blood draws

An automobile accident creates an exigent circumstance justifying a warrantless blood draw.

“Viewing the totality of these facts and circumstances, Deputy Hoffman reasonably responded to the accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which Tullberg’s blood could be drawn so as to produce reliable evidence of intoxication.  This sort of ‘now or never’ moment is the epitome of an exigent circumstance.  See McNeely, 133 S. Ct. at 1561 (‘The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “now or never” situation.’) (quoting Roaden v. Kentucky, 413 U.S. 496, 505 (1973)) (quotation marks omitted).  However, we do not mean to suggest that a warrantless blood draw would always require a ‘now or never’ situation in order to be justified by exigent circumstances.  Rather, exigent circumstances justify a warrantless blood draw if delaying the blood draw would ‘significantly undermin[e] [its] efficacy.’ See id.  The ‘now or never’ moment in the present case quite clearly meets that test.”

Affirmed.

2012AP1593-CR State v. Tullberg

Ziegler, J.

Wisconsin Supreme Court
Motor Vehicles
OWI – warrantless blood draws – good faith exception

Suppression of the evidence obtained from warrantless blood draws is not required where the officers relied on state supreme court precedent at the time.

“Here, the police committed no misconduct and application of the exclusionary rule would be both inappropriate and unnecessary as the police acted in accordance with clear and settled Wisconsin precedent in ordering the warrantless investigatory blood draw.  ‘[T]he good-faith exception precludes application of the exclusionary rule where officers conduct a search [or seizure] in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.’ Id., ¶51.  As we explained above, our decision in Bohling was the settled law in Wisconsin for the two decades preceding the decision in McNeely.  Our holding in Bohling was clear and straightforward: ‘the dissipation of alcohol from a person’s bloodstream constitutes a sufficient exigency to justify a warrantless blood draw.’  Bohling, 173 Wis. 2d at 547.  Officer Asselin and the other police officers involved in this case followed that rule.  To apply the exclusionary rule here would be counter to the purposes for which it was created.  Where police officers have acted in accordance with clear and settled Wisconsin precedent, there is no misconduct to deter.  Dearborn, 327 Wis. 2d 252, ¶44.  We see no reason to depart from Dearborn and our application of the good-faith exception to the exclusionary rule.  As a result, the officers’ reliance on Bohling was reasonable and the results of Kennedy’s warrantless blood draw will not be suppressed.”

Affirmed.

2012AP523-CR State v. Kennedy

Gableman, J.

Wisconsin Supreme Court
Motor Vehicles
OWI – warrantless blood draws – good faith exception

Suppression of the evidence obtained from warrantless blood draws is not required where the officers relied on state supreme court precedent at the time.

“We hold that McNeely applies retroactively to the facts of this case and that the warrantless nonconsensual blood draw performed on Foster violated his right to be free from unreasonable searches and seizures.  However, we decline to apply the exclusionary rule to suppress the evidence derived from Foster’s blood.  Because the police acted in objectively reasonable reliance upon the clear and settled precedent of Bohling in effectuating the search and seizure of Foster’s blood, the good faith exception to the exclusionary rule precludes suppression of the blood draw evidence.”

Affirmed.

2011AP1673-CRNM State v. Foster

Crooks, J.