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Weekly Case Digests — Jan. 12-16, 2015

By: WISCONSIN LAW JOURNAL STAFF//January 16, 2015//

Weekly Case Digests — Jan. 12-16, 2015

By: WISCONSIN LAW JOURNAL STAFF//January 16, 2015//

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CIVIL

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

A bankruptcy judge has authority to make an award of fees after dismissal of the bankruptcy proceeding and the consequent revesting of the assets of the debtor’s estate in the debtor.

“There is no novelty to the idea that a court has besides its ordinary jurisdiction a ‘clean-up’ jurisdiction (‘ancillary’ jurisdiction, it is commonly called) to take care of minor loose ends. It is implicit in two of the statutory provisions we cited earlier, 11 U.S.C. § 330(a)(1) and 28 U.S.C. § 1334(b). Most though not all cases recognize that bankruptcy courts have such authority. Compare In re 5900 Associates, Inc., 468 F.3d 326, 330–31 (6th Cir. 2006); In re Taylor, 884 F.2d 478, 481 (9th Cir. 1989), and In re Dahlquist, 751 F.2d 295, 298–99 (8th Cir. 1985), with In re Advanced Computer Technology Act, Inc., 2013 WL 5661203 (D. Puerto Rico Oct. 15, 2013), and Iannini v. Winnecour, 487 B.R. 434, 438–40 (W.D. Pa. 2012). If the bankruptcy judge in this case, realizing that a request for fees would be coming from Wolf, had delayed the bankruptcy, the creditors would as we said have been hurt. So a sensible course of action was to dismiss the bankruptcy and leave for later a determination of how much Sweports owed Wolf. An alternative would have been to lift the automatic stay of suits by creditors of a debtor that is in bankruptcy. The creditors, including Wolf, could then have proceeded with efforts to collect their debts even though the bankruptcy hadn’t yet been dismissed. But there’s no reason why dismissing the bankruptcy and leaving for later a determination by the bankruptcy judge of how much Sweports owed Wolf should be thought an alternative outside the judge’s jurisdiction. The judge suggested no reason—just the bare, formalist conclusion that with dismissal he had lost jurisdiction to do anything further that would be related to the bankruptcy.”

Reversed and Remanded.

14-2423 In re: Sweports, Ltd.

Appeal from the United States Bankruptcy Court for the Northern District of Illinois, Goldgar, Bnkr. J., Posner, J.

Wisconsin Court of Appeals

Civil Commitment
dangerousness

APPEAL from orders of the circuit court for Milwaukee County:  JANE V. CARROLL, Judge.  Affirmed.

Andy S. appeals from the circuit court’s involuntary mental commitment order and the order denying his motion for postdisposition relief.  He contends that the County failed to show by clear and convincing evidence that he was a danger to himself or others under Wis. Stat. § 51.20(1)(a)2.  We disagree and affirm.

2014AP001885 Milwaukee County v. Andy S.

DISTRICT I; Milwaukee County; JANE V. CARROLL; BRENNAN, J.

Attorneys: For Appellant: Breffeilh, John Richard For Respondent: Rhodes, Jennifer K.

Wisconsin Court of Appeals

Civil Procedure
Personal jurisdiction

Advertisements on third party web sites and phone conversation do not meet the minimum contacts requirement and therefore are insufficient to establish personal jurisdiction.

“Consistent with the Hy Cite court’s observation in that case, Fidelity’s advertisements on its own website, cars.com, or other third-party sites represent merely potential contacts with the state of Wisconsin. See Hy Cite, 297 F. Supp. 2d at 1161. Significantly, Carlson has neither alleged nor shown facts suggesting Fidelity targeted Wisconsin residents with its Internet advertisements any more than any other state’s residents; instead, the advertisements were ‘accessible to everyone regardless of location.’ See id.; see also Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997) (observing that ‘cyberspace’ may be accessed by anyone, located anywhere, who has an Internet connection). There is no evidence suggesting Fidelity sent unsolicited communications into Wisconsin or advertised for any of the relevant websites within Wisconsin. See Hy Cite, 297 F. Supp. 2d at 1164. Moreover, Fidelity does not control who views or responds to its own website or those of third parties. See id.; Riverside, 362 S.W.3d at 654. Further, the two phone calls between Carlson and Fidelity—one from and one to Carlson’s wife’s cell phone—do not constitute significant contact by Fidelity with Wisconsin, as they amounted to no more than five minutes of conversation and were initiated by Carlson. See Hy Cite, 297 F. Supp. 2d at 1164; Marschke, 743 N.W.2d at 410; see also Johnson Litho, 344 Wis. 2d 374, ¶¶21, 28 (which party initiates contact for a business relationship is relevant in determining whether sufficient minimum contacts with the forum state have been established).

Affirmed.

Recommended for publication in the official reports.

2014AP695 Carlson v. Fidelity Motor Group, LLC

Dist. II, Ozaukee County, Malloy, J., Gundrum, J.

Wisconsin Court of Appeals

Civil Procedure
Retroactive interest – constitutionality

Retroactive reduction of the interest rate applicable to a judgment under sec. 807.01(4) is unconstitutional.

“Precedents establish that there was no public interest sufficient to outweigh the substantial impairment of laws that (1) retroactively applied a cap on certain medical malpractice damages, see Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995); (2) retroactively increased limits on certain wrongful death damages, see Neiman v. American Nat’l Prop. & Cas. Co., 2000 WI 83, 236 Wis. 2d 411, 613 N.W.2d 160; and (3) retroactively abrogated, in part, joint and several liability in a negligence claim, see Matthies, 244 Wis. 2d 270.  Cintas 2 acknowledges these precedents but offers no argument concerning what public interests the amendment of WIS. STAT. § 807.01(4) serves that would outweigh the substantial impairment of individual private interests.  The act itself contains no such provision or explanation,2 and we can think of nothing that distinguishes the public/private interests balance in this case from the balance determined in those precedents.”

“Having concluded that WIS. STAT. § 807.01 is substantive, not procedural, we further conclude that retroactively changing the interest rate that attaches to a statutory offer of settlement under § 807.01(4) would be unconstitutional.  The applicable rate of interest under § 807.01(4) is the rate that was in effect on the date that the offer of settlement was filed.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2013AP2323 Johnson v. Cintas Corp. No. 2

Dist. II, Kenosha County, Bastianelli, J., Brown, J.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Consolidation

The district court erred in dismissing a plaintiff’s Monell claim after resolution of the claims against individual officers.

“Several procedural missteps require a remand here. First, the judge wrongly assumed that Swanigan was waiving all but two theories of Monell liability and dismissed the entire suit based on that mistaken premise. Moreover, under Rule15(a)(1)(B) of the Federal Rules of Civil Procedure, Swanigan was entitled to amend his complaint within 21 days of a responsive pleading or motion to dismiss, which would have been the next step after the stay was lifted, as it should have been. And a sua sponte dismissal for failure to state a claim—a merits adjudication—is improper.”

Vacated and Remanded.

12-1261 Swanigan v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Sykes, J.

Wisconsin Court of Appeals

Civil Procedure
sanctions

APPEAL from an order of the circuit court for Milwaukee County:  DAVID A. HANSHER, Judge.  Affirmed.

Mary Jane Stephanek, pro se, appeals an order of the circuit court, dismissing her case with prejudice as a sanction for egregious behavior and litigating in bad faith.  Stephanek has failed to show that the circuit court erred, so we affirm the order.

2014AP000502 Mary Jane Stephanek v. Kohn Law Firm

DISTRICT I; Milwaukee County; DAVID A. HANSHER; Curley, P.J., Kessler, Brennan, JJ.

Attorneys: For Appellant: For Respondent: Ambrosh, David A.

U.S. Supreme Court

Communications
Cellphone towers

Section 332(c)(7)(B)(iii) requires localities to provide reasons when they deny applications to build cell phone towers.

This conclusion follows from the Act’s provisions, which both preserve and specifically limit traditional state and local government authority. It would be considerably difficult for a reviewing court to determine whether a locality’s denial was “supported by substantial evidence contained in a written record,” §332(c)(7)(B)(iii), or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” §332(c)(7)(B)(i)(I), or regulated siting “on the basis of the environmental effects of radio frequency emissions,” §332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial. And nothing in the Act suggests that Congress meant to use the phrase “substantial evidence” as anything but an administrative law “term of art” that describes how “an administrative record is to be judged by a reviewing court.” United States v. Carlo Bianchi & Co., 373 U. S. 709.

731 F. 3d 1213, reversed and remanded.

13-975 T-Mobile South, LLC, v. City of Roswell

Sotomayor, J.; Alito, J., concurring; Roberts, C.J., dissenting; Thomas, J., dissenting.

U.S. Supreme Court

Consumer Protection
TILA

A borrower exercising his right to rescind under the Truth in Lending Act need only provide written notice to his lender within the 3-year period, not file suit within that period.

Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the right to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condition precedent to rescission, hardly implies that the Act thereby codified rescission in equity.

729 F. 3d 1092, reversed and remanded.

13-684 Jesinoski v. Countrywide Home Loans, Inc.

Scalia, J.

Wisconsin Court of Appeals

Insurance
UIM coverage – notice

APPEAL from a judgment of the circuit court for Marathon County:  GREGORY E. GRAU, Judge.  Affirmed.

Ricky and Janet Raygo appeal a summary judgment dismissing their underinsured motorist (UIM) claim against their automobile insurer, State Farm Mutual Automobile Insurance Company.  The Raygos sought UIM coverage for injuries Ricky sustained in a February 27, 2012 accident.  The circuit court concluded the Raygos were not entitled to UIM coverage under three policies issued by State Farm, pursuant to altered policy terms that took effect shortly before the accident.  The Raygos argue the altered policy provisions never went into effect because State Farm failed to provide notice as required by the policies.  We reject the Raygos’ argument and affirm.

2014AP001547 Ricky W. Raygo v. American Family Mutual Insurance Company

DISTRICT III; Marathon County; GREGORY E. GRAU; Hoover, P.J., Stark, Hruz, JJ.

Attorneys: For Appellant: Tyndall, Susan R., Laughlin, Theresa B.,Tyndall, Susan R., Laughlin, Theresa B. For Defendant: Kramer, John A., Dolata, Timothy J. For Respondent: Hebl, Andrew Bryant, Gendreau, Chad R., Skiles, Randall M.

Wisconsin Court of Appeals

Motor Vehicles
TPR; due process

APPEAL from an order of the circuit court for Milwaukee County:  MARK A. SANDERS, Judge.  Affirmed.

Kiwana L. appeals from an order terminating her parental rights to Jasmine P.  She complains that the circuit court violated her substantive due process rights when it found grounds for termination because she believes that the conditions of return were not narrowly tailored to address her mental health issues.  For the reasons which follow, we disagree and affirm.

2014AP002306 State v. Kiwana L.

DISTRICT I; Milwaukee County; MARK A. SANDERS; BRENNAN, J.

Attorneys: For Appellant: Bowe, Ann T. For Respondent: Spies-Karas, Jenni

CRIMINAL

U.S. Supreme Court

Bank robbery
Sufficiency of the evidence

A bank robber “forces [a] person to accompany him,” for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance.

At the time the forced-accompaniment provision was enacted, just as today, to “accompany” someone meant to “go with” him. The word does not, as Whitfield contends, connote movement over a substantial distance. Accompaniment requires movement that would normally be described as from one place to another. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another, and that surely sufficed. The severity of the penalties for a forced-accompaniment conviction—a mandatory minimum of 10 years, and a maximum of life imprisonment—does not militate against this interpretation, for the danger of a forced accompaniment does not vary depending on the distance traversed. This reading also does not make any other part of §2113’s graduated penalty scheme superfluous.

548 Fed. Appx. 70, affirmed.

13-9026 Whitfield v. U.S.

SCALIA, J.

Wisconsin Court of Appeals

Criminal Procedure
habeas corpus – timeliness

APPEAL from an order of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

Maurice Montell Hardy, pro se, appeals the circuit court’s order denying his motion brought pursuant to Wis. Stat. § 974.06

(2011-12), challenging his 1996 conviction for second-degree assault.  He argues that his conviction should be overturned because the Milwaukee Police Department has destroyed the physical evidence from his case.  We affirm the circuit court’s order denying his motion.

2014AP000594 State v. Maurice Montell Hardy

DISTRICT I; Milwaukee County; JEFFREY A. WAGNER; Curley, P.J., Kessler, J., Thomas Cane

Attorneys: For Appellant: For Respondent: Loebel, Karen A., O’Neil, Aaron R.

Wisconsin Court of Appeals

Criminal Procedure
successive appeals

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

Mark L. Guman, pro se, appeals an order of the circuit court, denying his Wis. Stat. § 974.06 (2011-12)[1] motion without a hearing.  The circuit court concluded that Guman’s motion was procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).  We agree with the circuit court, so we affirm the order.

2014AP000845 State v. Mark L. Guman

DISTRICT I; Milwaukee County; DENNIS P. MORONEY; Curley, P.J., Kessler, J., Thomas Cane

Attorneys: For Appellant: For Respondent: Loebel, Karen A., Winter, Tiffany M.

Wisconsin Court of Appeals

Criminal Procedure
right to present defense – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  ELLEN R. BROSTROM, Judge.  Affirmed.

A jury found Edward Santiago Kuchinskas guilty of two counts of physical abuse of a child and one count of child neglect.  The victim was his nine-week-old son, O.K.  Kuchinskas appeals the judgment of conviction and the postconviction order denying him a new trial.  He claims that the circuit court violated his constitutional right to present a defense by excluding evidence that Erin Sabady, O.K.’s mother, had a history of substance abuse, and by excluding evidence that O.K. was born addicted to heroin.  Kuchinskas further claims that his trial counsel was ineffective in seeking admission of the excluded evidence, that he is entitled to a postconviction hearing to explore his allegations of trial counsel’s ineffectiveness, and that he should receive a new trial in the interests of justice.  We reject his contentions and affirm.

2013AP001100-CR      State v. Edward Santiago Kuchinskas

DISTRICT I; Milwaukee County; ELLEN R. BROSTROM; Kessler, J., Brennan, J., Thomas Cane

Attorneys: For Appellant: Bizzaro, Amelia L. For Respondent: Loebel, Karen A., Larson, Sara Lynn

Wisconsin Court of Appeals

Evidence
authentication

APPEAL from a judgment of the circuit court for Milwaukee County:  JOHN SIEFERT, Judge.  Affirmed.

William H. McCarver appeals a judgment, following a jury trial, in which McCarver was found guilty of placing food in an area accessible to rats, a violation of West Allis Revised Municipal Ordinance § 7.14(3) (2010).  We affirm.

2013AP002160 City of West Allis v. William H. McCarver

DISTRICT I; Milwaukee County; JOHN SIEFERT; KESSLER, J.

Attorneys: For Appellant: For Respondent: Merten, Jenna

U.S. Supreme Court

Habeas Corpus
Appeal

A successful habeas corpus petitioner is not required to take a cross-appeal or obtain a certificate of appealability to argue an issue on appeal.

Because Jennings is an appellee who did not cross-appeal, he may “urge” his Spisak theory unless doing so would enlarge his rights or lessen the State’s rights under the District Court’s judgment. United States v. American Railway Express Co., 265 U. S. 425. Jennings’ rights under the judgment were release, retrial, or commutation within a fixed time, at the State’s option, and his Spisak claim, if accepted, would give him no more. The State’s rights under the judgment were to retain Jennings in custody pending retrial or to commute his sentence; the Spisak claim, if accepted, would not further encumber the State. The State contends that, because the District Court’s opinion entitled Jennings only to retrial (or resentencing) without the challenged errors, each additional basis asserted by Jennings sought to lessen the State’s rights at retrial, and thus requires a cross-appeal. But this view is contrary to the ordinary behavior of courts, which reduce their opinions and verdicts to judgments precisely to define the parties’ rights and liabilities. A prevailing party seeks to enforce a district court’s judgment, not its reasoning. Rogers v. Hill, 289 U. S. 582. Thus, any potential claim that would have entitled Jennings to a new sentencing proceeding could have been advanced consistent with American Railway.

537 Fed. Appx. 326, reversed and remanded.

13-7211 Jennings v. Stephens

Scalia, J.; Thomas, J., dissenting.

Wisconsin Court of Appeals

Motor Vehicles
speeding

APPEAL from a judgment of the circuit court for Barron County:  MAUREEN D. BOYLE, Judge.  Affirmed.

Daniel Adams, pro se, appeals a judgment convicting him of exceeding a speed limit in violation of Wis. Stat. § 346.57(5).  Adams argues:  (1) the relevant speed limit sign was unofficial because there was not an established thirty-five miles-per-hour speed limit where he was stopped; (2) the circuit court lacked impartiality; and (3) he was prejudiced by the circuit court’s decision not to grant a continuance.  We affirm.

2014AP000793 County of Barron v. Daniel E. Adams

DISTRICT III; Barron County; MAUREEN D. BOYLE; HRUZ, J.

Attorneys: For Appellant: For Respondent: Beranek, Angela L.

Wisconsin Court of Appeals

Motor Vehicles
OWI – prior convictions – collateral attacks

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

James J. Socha, pro se, appeals the amended judgment, entered upon a jury’s verdict, convicting him of operating a motor vehicle while intoxicated (OWI) as a tenth or subsequent offense.  See Wis. Stat. §§ 346.63(1)(a), 346.65(2)(am)7. (2007-08).  He also appeals the order denying his motion for postconviction relief.  We affirm.

2013AP000281-CR      State v. James J. Socha

DISTRICT I; Milwaukee County; THOMAS P. DONEGAN; DENNIS P. MORONEY; Kessler, Brennan, JJ., Thomas Cane

Attorneys: For Appellant: Sanders, Michael C. For Respondent: Loebel, Karen A.

U.S. Court of Appeals For the Seventh Circuit

Sentencing
Proper factors

It was not plain error for the court to take into consideration statements from an individual or group that was not a named victim of the charged offense.

“In arriving at an appropriate sentence, a sentencing judge necessarily must consider not only the offense of conviction but the defendant’s broader criminal record and history. See § 3553(a)(1) & (2); United States v. Hankton, 432 F.3d 779, 789-90 (7th Cir. 2005) (quoting United States v. Hardamon, 188 F.3d 843, 849-50 (7th Cir. 1999)). Uncharged criminal acts (and the injuries inflicted upon the victims of those acts) have a bearing on whether the offense of conviction was an aberration or part of a larger pattern of criminal behavior, the likelihood of the defendant re-offending, and the need for specific deterrence. See, e.g., United States v. Laraneta, 700 F.3d 983, 987 (7th Cir. 2012). The Criminal Code makes clear that ‘[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense, which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence,’ 18 U.S.C. § 3661, and the Sentencing Guidelines likewise provide that the court has broad authority to consider any information about the defendant unless specifically proscribed by law, see U.S.S.G. § 1B1.4. See also United States v. Tucker, 404 U.S. 443, 446-47, 92 S. Ct. 589, 591 (1972). Consequently, the district court was not precluded from taking into consideration statements from victims of criminal acts other than those with which the defendant has been charged and convicted.”

Affirmed.

13-3308 U.S. v. Salutric

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

Wisconsin Court of Appeals

Sentencing
accurate information

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

Eric G. Perkins appeals a judgment of the circuit court convicting him of second-degree reckless homicide and second-degree recklessly endangering safety while armed, both with use of a dangerous weapon and as a party to a crime.  He also appeals an order denying his motion for resentencing.  Perkins argues that he was sentenced on the basis of inaccurate information about his prior criminal record.  We affirm.

2014AP000838-CR      State v. Eric G. Perkins

DISTRICT I; Milwaukee County; JEFFREY A. WAGNER; Curley, P.J., Kessler; Brennan, JJ.

Attorneys: For Appellant: Schoenfeldt, Mark A. For Respondent: Loebel, Karen A., Murphy, Anne Christenson

Wisconsin Court of Appeals

Sentencing
modification – new factors

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  TIMOTHY M. WITKOWIAK, Judge.  Affirmed.

Connie Marie Plunkett appeals a judgment convicting her of substantial battery with use of a dangerous weapon, as a party to a crime, and assault by a prisoner/throwing a bodily substance.  She also appeals the circuit court’s order denying her postconviction motion to modify her sentence.  Plunkett argues that her sentence should be reduced because she is statutorily ineligible for the Substance Abuse Program in prison.  We affirm.

2014AP000352-CR      State v. Connie Marie Plunkett

DISTRICT I; Milwaukee County; TIMOTHY M. WITKOWIAK; Curley, P.J., Brennan, J., Thomas Cane

Attorneys: For Appellant: Jarmuz, Andrew J. For Respondent: Balistreri, Thomas J., Loebel, Karen A.

Wisconsin Court of Appeals

Sentencing
discretion

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DAVID A. HANSHER and TIMOTHY M. WITKOWIAK, Judges.  Affirmed.

Cassandra D. Williams appeals an amended judgment of conviction, entered on her Alford plea, for one count of food stamp fraud, value greater than $5000.  See Wis. Stat. § 49.795(6) (2011-12). She also appeals the order denying her postconviction motion for resentencing. Because the circuit court properly exercised its discretion when it sentenced her to the maximum, we affirm.

2013AP002865-CR      State v. Cassandra D. Williams

DISTRICT I; Milwaukee County; DAVID A. HANSHER; TIMOTHY M. WITKOWIAK; Curley, P.J., Kessler, J., Thomas Cane

Attorneys: For Appellant: Rider, Andrew For Respondent: Loebel, Karen A., Larson, Sara Lynn

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