Weekly Case Digests — March 16-20, 2015

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CIVIL

Wisconsin Court of Appeals
Family – custody – physical placement

APPEAL from a judgment of the circuit court for Milwaukee County:  MAXINE A. WHITE, Judge.  Affirmed.

DISTRICT I; Milwaukee County; MAXINE A. WHITE, Curley, P.J., Brennan, J. and Thomas Cane

2013AP002856 Michael Schumacher v. Jaime Bartel

U.S. Court of Appeals For the Seventh Circuit
Immigration – Asylum – Bosnia

A Bosnian Muslim asylum applicant failed to show he would be subjected to torture based on the civil war that occurred from 1992 to 1995.

“Lenjinac argues that the fact that he is likely to be imprisoned or detained upon his return combined with evidence that torture is commonplace in Bosnian prisons satisfies his burden of proof. But it does not. As the BIA explained in its opinion, although Lenjinac points to reports of life-threatening prison conditions and incidents of torture in Bosnian prisons, none of the record evidence establishes that it is more likely than not that Lenjinac will be tortured or abused. Under the high burden for obtaining CAT protection, reports that torture occurs in a foreign country and its prisons are insufficient bases for relief without evidence that the petitioner will be tortured if he returns. See, e.g., Rashiah, 388 F.3d at 1133 (upholding BIA’s denial of CAT relief where record contained evidence of torture in alien’s home country, but no evidence that applicant himself would be targeted). See also Selimi v. Ashcroft, 360 F.3d 736, 740–41 (7th Cir. 2004) (holding evidence of ‘political turmoil, civil strife, and many human rights abuses’ without evidence that applicant was personally targeted was an insufficient basis for granting asylum, which requires a lower burden of proof than CAT protection). Neither Lenjinac’s familial losses during the Bosnian civil war, his heritage, nor his lack of home to return to, establish that he would be more vulnerable to mistreatment than the general prison population. Additionally, there is no evidence in the record that Bosnian prison conditions are intended to inflict pain or suffering on prisoners. See Abdoulaye, 721 F.3d at 491–92 (holding evidence of harsh prison conditions without evidence that those conditions are intended to inflict pain or suffering on prisoners is insufficient to carry burden of proof to establish likelihood of torture for CAT deferral). Thus, although Lenjinac expresses fear of torture upon his return to Bosnia- Herzegovina, the record fails to establish that such torture is more likely than not and thus does not compel a result contrary to the BIA’s conclusion.”

Petition Denied.

14-1807 Lenjinac v. Holder

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

Wisconsin Court of Appeals
Insurance – CGL policies – automobile exclusions

A dum truck and a trailer are “autos” under a CGL policy’s exclusions.

“The commercial general liability policy defines ‘auto’ as a ‘land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment,’ but states that ‘“auto” does not include “mobile equipment.”’  In pertinent part, the policy excludes coverage for injury or damage ‘arising out of the ownership, maintenance, use or entrustment to others of any … “auto” … owned or operated by … any insured.’ We conclude that, under these unambiguous terms, the exclusion applies to pertinent uses of both the trailer and the dump truck here, and therefore there is no coverage.”

Affirmed in part and Reversed in part.

Recommended for publication in the official reports.

2014AP966 Cooper v. Rick’s Blacktop & Paving Co.

Dist. IV, Dane County, Anderson, J., Blanchard, J.

Wisconsin Supreme Court
Insurance – CGL policies – pollution exclusions

The escape of natural gas from a damaged pipe constitutes a pollution condition under a CGL policy’s pollution exclusion.

“[T]o qualify as a pollution condition under Chartis’s CPL policy, the contaminant must also be released in concentrations above those ‘naturally present in the environment.’ In the instant case, the natural gas released at the site of the explosion and fire indisputably occurred in concentrations above those ‘naturally found in the environment.’ The escape of natural gas from the damaged pipe was, therefore, a pollution condition under Chartis’s CPL policy.”

Reversed.

2013AP1303 Acuity v. Chartis Specialty Ins. Co.

Abrahamson, C.J.

U.S. Court of Appeals For the Seventh Circuit
Insurance – Title insurance

A standard title insurance policy excludes coverage for unfunded work.

“Protecting construction lenders against the risk of cost overruns is the job of other insurance products and financial instruments. Performance bonds, for example, require the bonding company to complete a project if the contractor defaults. See generally 1 MICHAEL T. MADISON, supra, § 6:24 (2001). Or, as BB Syndication did here, construction lenders can insist on a guarantee from a third party (in this case Trilogy’s owner). That’s not to say that title insurance can never be used to guarantee unfunded work; but the standard-form title policy is not meant to cover this type of risk, so lenders need to explicitly contract for this protection. One way to do so is to purchase the so-called ‘Seattle Endorsement—basically, a promise from the title company not to invoke Exclusion 3(a) for liens arising from insufficient funds. See id. § 6:19.

Affirmed.

13-2785 BB Syndication Services, Inc., v. First American Title Ins. Co.

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

Wisconsin Supreme Court
Professional Responsibility – Revocation

Where attorney Jolie M. Semancik was convicted of embezzlement, revocation is appropriate discipline.

“We also agree that the allegations in the OLR’s complaint have been established and that Attorney Semancik engaged in the misconduct alleged in the complaint, namely, a violation of SCR 20:8.4(b).  We further agree that revocation is an appropriate sanction for Attorney Semancik’s serious misconduct, and we agree that she should pay the full costs of the proceeding.”

2013AP2780-D OLR v. Semancik

Per Curiam.

Wisconsin Supreme Court
Professional Responsibility

Where attorney Tina M. Dahle neglected numerous client matters, a 2 and half year suspension is appropriate.

“The undisputed facts show a clear pattern of neglect by Attorney Dahle of her clients’ needs and objectives and disregard of her obligations as an attorney.  We agree with the referee’s observation that the recommended suspension of two years and six months both recognizes Attorney Dahle’s eventual full cooperation with the disciplinary process and does not unduly depreciate the seriousness of her professional misconduct.”

2013AP1137-D OLR v. Dahle

Per curiam.

Wisconsin Court of Appeals
Property – foreclosure

APPEAL from a judgment of the circuit court for Milwaukee County:  JEFFREY A. CONEN, Judge.  Affirmed.

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

2013AP002867 LNV Corporation v. Keith L. Willock

Wisconsin Court of Appeals
Remedies – harassment injunctions

APPEAL from an order of the circuit court for Milwaukee County:  DANIEL A. NOONAN, Judge.  Reversed and cause remanded.

DISTRICT I; Milwaukee County; DANIEL A. NOONAN, Curley, P.J., Kessler, J., Thomas Cane

2014AP000911 Samantha Webster v. Dawayne Gatzow

Wisconsin Court of Appeals
Torts – asbestos

APPEAL from a judgment of the circuit court for Brown County:  WILLIAM M. ATKINSON, Judge.  Reversed and cause remanded with directions.

DISTRICT III; Brown County; WILLIAM M. ATKINSON, Hoover, P.J., Stark, Hruz, JJ.

2014AP000531 June Calewarts v. CR Meyer & Sons Company

CRIMINAL

Wisconsin Supreme Court
Criminal Procedure – Due process – notice

Even though the allegations in a criminal complaint are 12 and 15 years old, and cover a period of several months, the complaint is sufficient.

“Taking account of all of the circumstances surrounding the charges against Kempainen, we hold that he was given sufficient notice of the nature of the charges against him and that he is able to plead and prepare a defense.  Despite the passage of 12 and 15 years from the dates of the alleged assaults, the complaint puts forth sufficient detail such that Kempainen was aware of the charges against him.”

“We hold that in child sexual assault cases, courts may apply the seven factors outlined in Fawcett, and may consider any other relevant factors necessary to determine whether the complaint and information ‘states an offense to which [the defendant can] plead and prepare a defense.’  Holesome, 40 Wis. 2d at 102.  No single factor is dispositive, and not every Fawcett factor will necessarily be present in all cases.  Second, we hold that the complaint and information provided adequate notice of when the alleged crimes occurred and thus did not violate Kempainen’s due process right to plead and prepare a defense.  We therefore affirm the court of appeals and remand to the circuit court with the instructions to reinstate the complaint and information against Kempainen.”

Affirmed.

2013AP1531-CR State v. Kempainen

Gableman, J.

Wisconsin Court of Appeals
Criminal Procedure – due process – juror inattentiveness

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DENNIS R. CIMPL and STEPHANIE ROTHSTEIN, Judges.  Affirmed.

DISTRICT I; Milwaukee County; DENNIS R. CIMPL, STEPHANIE ROTHSTEIN, Curley, P.J., Kessler, J. Thomas Cane

2013AP002768-CR State v. Christopher D. Jackson

U.S. Court of Appeals For the Seventh Circuit
Criminal Procedure – Right to speedy trial

The speedy-trial clock does not begin to run upon the filing of a federal complaint and detainer.

“Had the speedy-trial clock begun to run upon the filing of the complaint and detainer, the U.S. Attorney would have been under pressure to indict Richardson forthwith and proceed with all deliberate speed to trial—with the result that Richardson would have been fighting prosecution by two sovereign entities, the State of Indiana and the United States of America, at the same time. If the state decided to take a pass, it would be throwing away its domestic-battery charge, which had no counterpart in the federal case. If the feds took a pass, they would be throwing away gun charges more extensive than those involved in the state prosecution. And had the state and federal prosecutions proceeded simultaneously, Richardson might squawk at having to defend himself in two trials at the same time, while if one trial were delayed he would complain of a speedy-trial violation.”   Affirmed.

14-1901 U.S. v. Richardson

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Posner, J.

Wisconsin Court of Appeals
Evidence – medical records – harmless error

APPEAL from a judgment of the circuit court for Barron County:  J. MICHAEL BITNEY, Judge.  Affirmed.

DISTRICT III; Barron County;  J. MICHAEL BITNEY, Hoover, P.J., Stark, Hruz, JJ.

2014AP001758-CR State v. Wade M. Richey

Wisconsin Court of Appeals
Parole – judicial review

APPEAL from an order of the circuit court for Douglas County:  KELLY J. THIMM, Judge.  Affirmed.

DISTRICT III; Douglas County; KELLY J. THIMM, Hoover, P.J., Stark, Hruz, JJ.

2014AP001347 Jamie D. Jardine v. Kathleen Nagle

Wisconsin Court of Appeals
Sentencing – discretion

APPEAL from a judgment and an order of the circuit court for Marinette County:  DAVID G. MIRON, Judge.  Affirmed.

DISTRICT III; Marinette County; DAVID G. MIRON, Hoover, P.J., Stark and Hruz, JJ.

2014AP000711-CR State v. Timothy C. Christ

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Supervised release; conditions

Unsupported conditions of supervised release must be vacated, even if the defendant does not appeal them.

“In Siegel, we vacated a number of conditions of supervised release that were ‘inappropriate, inadequately defined, or imposed without the sentencing judge’s having justified them by reference to the sentencing factors in 18 U.S.C. § 3553(a).’ Id. at 717. In Thompson, we reiterated our concern regarding these vague conditions, as well as the manner in which they are imposed. See generally 2015 U.S. App. LEXIS 604 (addressing four cases consolidated on appeal).”

“We cannot overlook the presence of plain error. United States v. Muriel, 418 F.3d 720, 723 n.1 (7th Cir. 2005) (‘A court of appeals may notice plain error even though the error was not brought to the court’s attention.’ (citing Fed. R. Crim. P. 52(b))). Relevant to the case at hand, the error need not be clear or obvious—or exist at all—at the time of sentencing. The error must, however, be ‘clear and uncontroverted at the time of appeal.’ United States v. Ross, 77 F.3d 1525, 1539 (7th Cir. 1996) (citing Fed. R. Crim. P. 52(b) (emphasis added)). It must also affect substantial rights and ‘seriously impugn the fairness, integrity, or public reputation of judicial proceedings.’ United States v. Cary, 775 F.3d 919, 923 (7th Cir. 2014). That is what we have here.”   Affirmed in part, and Vacated in part.

14-1384 U.S. v. Sewell

Appeal from the United States District Court for the Northern District of Indiana, Springmann, J., Kanne, J.

Wisconsin Court of Appeals
Use of a computer to facilitate a sex crime – Computer

A cell phone can never constitute a computerized communication system, under sec. 948.075

“The jury was asked whether McKellips’ cell phone, itself, constituted a computerized communication system.  Instead, the court should have asked the jury whether McKellips’ various alleged uses of the cell phone constituted communication via a computerized communication system. This question was the primary issue at trial.  We therefore conclude the real controversy was not tried, and we grant McKellips a new trial in the interest of justice.”

Reversed and Remanded.

Recommended for publication in the official reports.

2014AP827-CR State v. McKellips

Dist. III, Marathon County, Moran, J., Hoover, J.