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Weekly Case Digests — Aug. 31-Sept. 4, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 4, 2015//

Weekly Case Digests — Aug. 31-Sept. 4, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 4, 2015//

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7th CIRCUIT COURT OF APPEALS – CIVIL

Officials: FLAUM, RIPPLE, and WILLIAMS, Circuit Judges

ADA & FMLA Violations –

No.14-3125 Terrence Preddie v. Bartholomew Consolidated School Corporation

Circumstances surrounding appellant’s non-renewal of employment contract raises FMLA concerns.

“Given this guidance, we must conclude that the evidence shows that, no later than November 2010, Mr. Preddie had placed the BCSC on notice of his need for leave for his son’s sickle cell anemia. On October 31, 2010, Mr. Preddie notified Dr. Clancy, via email, that he was taking leave to care for his son who had just been hospitalized. During the conversation, which occurred on the day of Mr. Preddie’s return, “the subject of [his] son’s sickle cell anemia came up and was discussed.” According to Mr. Preddie, Dr. Clancy told him that he could not “‘keep taking off time for [his] son’” and that he needed to find “‘someone else [to] go pick him up’” when he gets sick. Mr. Preddie followed up on this conversation with an email that informed Dr. Clancy of both the seriousness of his son’s condition and the treatment it required. The same is true for Mr. Preddie’s absences related to his diabetes. In November 2010, Mr. Preddie’s wife emailed Dr. Clancy to inform her that Mr. Preddie had been hospitalized for an illness that was “affecting his diabetes in a bad way.” Dr. Clancy thanked Mr. Preddie’s wife for keeping her informed and wished Mr. Preddie “a speedy recovery.” The record, therefore, shows that Dr. Clancy was on notice of the FMLA-qualifying reasons for Mr. Preddie’s absences.”

Affirmed in part. Reversed and Remanded in part. Per Curiam.

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Civil

7th Circuit Court of Appeals

Officials:  BAUER, FLAUM, and TINDER, Circuit Judges

Due Process

No.13-3549 D.S. v. East Porter County School Corp.

Parents suit against school falls short for failure to prove up allegations.

“D.S. has not shownthat her teachers and coaches instigated, created, or increased the bullying that she experienced at school. Although D.S. argues that school officials’ inaction or ineffective responses to her reports of bullying increased the danger that she faced, the record does not support this contention. D.S. testified that she does not know whether the principal or her guidance counselor took any steps to discipline the bullies apart from the two instances where she saw each of them talk to an alleged bully. She appears to assume that, because she didn’t see school officials take more action, none occurred. Putting aside the fact that school officials do not have an affirmative duty to protect students, J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272–73 (7th Cir. 1990), this assumption is not sufficient to raise a genuine issue of material fact.1 D.S. also alleges that school personnel participated in the bullying incidents. To advance this claim, D.S. cites to instances in which one of her teachers laughed when students moved D.S.’s desk in class, her gym teacher forced her to participate in gym class while injured because she didn’t have a doctor’s note, and where she felt that her athletic abilities were not appreciated by her coaches. We agree with the district court that such actions do not satisfy the first element of the state-created danger exception and, even if they did, do not rise to the requisite level of egregiousness to satisfy the third element. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (holding that state action that shocks the conscience is conduct that may be deemed “arbitrary in the constitutional sense” and that only “the most egregious official conduct” will satisfy this inquiry); Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654–55 (7th Cir. 2011); King ex rel. King, 496 F.3d at 818–19. Thus, as D.S. has not shown that there is a genuine issue of material fact under the state-created danger standard, she cannot prevail on her § 1983 due process claim against East Porter.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials:  BAUER, ROVNER, and HAMILTON, Circuit Judges

Breach of Contract

No.15-1195 Merry Gentleman, LLC v. George and Leona Productions and Michael Keaton

Movie company allegations of breach of contract asking for $5.5 million in damages could not be sustained by a reasonable trier of fact.

“Take this case, for example. Who can say why a critically praised movie did not make money? Merry Gentleman claims as damages all $5.5 million it spent to produce the movie. If Keaton had somehow prevented completion of the movie, Merry Gentleman might well have been entitled to all expenditures made in preparation for his performance (subject, of course, to the “losing contract” limitation in § 349). But here, Keaton actually made the movie. Merry Gentleman complains that Keaton slowed down the production process and failed to publicize the movie adequately after it was finished. No doubt, these services have economic value and, on a proper showing, Merry Gentleman might have been entitled to recover damages for these shortcomings. (Imagine, for instance, if Keaton’s tardiness in submitting the first cut forced Merry Gentleman to pay the film editors for a longer period. Or, to take a more extreme example, imagine if Keaton had publicly criticized the film released to theaters so harshly that no one bought tickets to see it.) But no reasonable trier of fact could find that Merry Gentleman lost its entire investment of $5.5 million because Keaton failed to submit his first cut on time or failed to publicize the movie better. Merry Gentleman entered the directing contract to have Keaton deliver a finished movie, and he delivered one that showed well at Sundance and won some critical praise. The breaches by Keaton that Merry Gentleman alleges cannot reasonably be said to have rendered the investment completely worthless.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: KANNE and SYKES, Circuit Judges, and ELLIS, District Judge

Failure to State a Claim – Breach of Contract

No.14-3563 Steven Olson v. Bemis Company, Inc

Appellant breaches clause of settlement agreement, eradicating any obligation of defendant-respondent to pay him.

“Regardless, Bemis’s promise to pay hinged on Olson’s waiver of his claims against the company. If we treat Olson’s waiver obligation as an independent contractual obligation, then there’s no doubt that Olson materially breached the contract by filing his hybrid § 301 suit. This excused Bemis from any subsequent obligation it may have had under the agreement.8 Similarly, if we treat the waiver obligation as a condition precedent to Bemis’s payment, then Olson failed to satisfy that condition and Bemis never was under any obligation to pay. The $20,000 payment was consideration for the waiver of all of Olson’s claims—including those related to his termination—and Olson chose to challenge his discharge in court rather than take the money. He was free to make that choice, but now he must live with the consequences.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge

Retaliatory Discharge – Title VII

No.14-1713 Eric Harden v. Marion County Sheriff’s Department

Sheriff’s investigation into theft of arrested individuals property, subsequently leading to the discharge of appellant was not rooted in retaliation.

“Lastly, Harden contends that it was highly unusual to investigate an arrestee’s theft allegation. Thus, he argues, the fact that the Sheriff’s Department initiated the theft investigation in the first place is evidence of pretext. In Baker v. Ma‐ con Resources, Inc., 750 F.3d 674 (7th Cir. 2014), we said that “selective enforcement or investigation of a disciplinary policy can [ ] show pretext.” Id. at 677. Baker is distinguishable, however, for two reasons. First, the employer in Baker had reason to believe that the plaintiff’s supervisors had violated the same company policy as the plaintiff with regard to the same incident, but failed to “offer[] a reason why, at the same time it fired [the plaintiff] … , it chose not to investigate whether her own supervisors violated the same reporting rule.” Id. Our use of the phrase “selective investigation” did not refer to the initiation of the investigation in the first instance, but the manner in which the investigation was conducted once initiated. Here, by contrast, the Internal Affairs investigators did not selectively investigate the theft accusation; they interviewed each and every person involved in the arrest of Rybolt. And although the Sheriff’s Department did not typically initiate arrestee theft investigations, there is no evidence in the record that the Department had actually concluded that these other arrestee theft accusations had merit (unlike the Rybolt accusation). Thus, there is no evidence that the Department “selectively enforced” the disciplinary policy either. Second, in addition to selective investigation, the court in Baker also found flagrant inaccuracies and inconsistencies in the employer’s supposed reason for the terminating the plaintiff. Id. In this case, by contrast, there is no evidence that the investigation was conducted in bad faith or that the investigation was not the true basis for Harden’s termination.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and MANION, Circuit Judges

Ineffective Assistance of Counsel

No.13-3889 Israel Ramirez v. United States of America

Failure of counsel to presentence report characterization of appellant crimes and failure to timely request for certificate of appealability necessitates a reversal.

We agree with Ramirez that trial counsel’s performance was deficient. An attorney’s failure to object to an error in the court’s guidelines calculation that results in a longer sentence for the defendant can demonstrate constitutionally ineffective performance. See United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Ramirez points out that sentencing counsel believed at the time that Ramirez had the requisite convictions to make him a career offender. But by that time, Be‐ gay had been decided and counsel should have known that the two Texas convictions were suspect. See Begay, 553 U.S. at 141. Counsel also said that he unsuccessfully had tried to get the Texas records. He complained that he would have had to subpoena them from the Texas county in which Ramirez was convicted, and that this “would have been extremely difficult to do and time consuming.” This lack of desire to uncover the truth was deficient. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (deficient performance includes errors arising from “oversight, carelessness, ineptitude, or laziness”). (Ramirez’s new counsel obtained the records with little difficulty, and they are now available to this court.)”

Vacated and remanded.

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Civil

7th Circuit Court of Appeals

Officials: BAUER, MANION, and SYKES, Circuit Judges

Due Process – Qualified Immunity – Absolute Immunity

No.13-3343; 13-3346; 13-3347 Robert Lee Stinson v. James Gauger, Lowell T. Johnson, and Raymond Rawson

Defendant-respondents not entitled to absolute immunity for misconduct during investigation.

“Indeed, the Supreme Court recently noted, if only in passing, that the distinction drawn in Buckley III—between alleged misconduct during trial and trial preparation (for which a prosecutor is absolutely immune) and alleged misconduct during an investigation (for which a prosecutor has only qualified immunity)—applies to witnesses as well. In Rehberg the Court held that a witness is entitled to absolute immunity for his testimony before a grand jury and for preparing grand-jury testimony. 132 S. Ct. at 1507. The Court was careful to note, however, that absolute immunity does not extend “to all activity that a witness conducts outside of the grand jury room. For example, we have accorded only qualified immunity to law enforcement officials who falsify affidavits … and fabricate evidence concerning an unsolved crime.” Id. at 1507 n.1 (citing, among other cases, Buckley III, 509 U.S. at 272–76). Here, Stinson accuses the odontologists of fabricating their opinions during the investigative phase of the Cychosz case, before probable cause existed. In light of Rehberg and the principles outlined in Buckley III, absolute immunity does not apply to this alleged misconduct.”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

Officials: KANNE and SYKES, Circuit Judges, and Ellis, District Judge

Toxic Tort – Exclusion of Expert Testimony

No.14-3448 C.W. & E.W. v. Textron, Inc.

Appellant expert’s reliance on attenuated data not sufficient to pass Daubert test.

“The appellants misread the district court’s decision. The district court imposed no such requirement. Instead, it faulted the appellants’ experts for failing to adequately extrapolate from the studies they had. To be sure, the district court also rejected some of the studies as too attenuated from the appellants’ case. But its rejection of these studies is not tantamount to a requirement of absolute precision. Instead, its rejection is a recognition of an analytical gap too wide to be bridged. Take, for example, the rejected study that analyzed the carcinogenic effect of vinyl chloride on lab rats.7 Cesare Maltoni, et al., Carcinogenity Bioassays of Vinyl Chloride Monomer: A Model of Risk Assessment on an Experimental Basis, 41 Envtl. Health Persp. 3 (1981). This study found no statistically significant increase in the number of tumors developed by rats that were fed 0.03 milligrams of vinyl chloride per kilogram of bodyweight, (0.03 mg/kg), of vinyl chloride per day (4 to 5 days per week, for 59 weeks), over the control group of rats that were fed only olive oil. Id. at 16, 21. Remarkably, 0.03 mg/kg is ten times higher than the amount the appellants allegedly ingested—Dr. Ryer-Powder estimates they ingested 0.003 mg/kg. And the rats ingested it over a period of time much longer, at least in rat years, than the children’s exposure here. Given these facts, Dr. Ryer-Powder’s conclusion that this study shows that C.W. and E.W. are now at an increased risk of developing cancer was an inferential leap that the district court was rightly unwilling to make.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: RIPPLE, WILLIAMS, and SYKES, Circuit Judges

Tax Income Classification

No.14-2190 Craig Patrick v. CIR

Monies paid to appellants in government settlement stemming from qui tam claim properly classified as other income rather than capital gain.

“Treating a relator’s reward as a capital gain would contravene the long-recognized rule that a “capital gain” generally involves a “realization of appreciation in value accrued over a substantial period of time” of an initial investment of capital. Comm’r v. Gillette Motor Transp., Inc., 364 U.S. 130, 134–35 (1960); see also Alderson, 686 F.3d at 797. But here Patrick made no initial investment in some asset. Instead, he expended time and effort to discover and document Kyphon’s fraud, and that work was not an investment of capital. See Alderson, 686 F.3d at 797. Further, there was no “realization of appreciation in value” of an underlying investment that “accrued over a substantial period of time.” Gillette Motor Transp., Inc., 364 U.S. at 134. Patrick had an interest in a portion of the government’s recovery, but that interest did not grow in value over time. It did not even vest until the government received its recovery. See Vt. Agency of Natural Res., 529 U.S. at 772”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: CUDAHY, KANNE, and HAMILTON, Circuit Judges.

Abuse of Discretion – Dismissal

No.14-2158 Peggy Pendell v. City of Peoria, Illinois

Appellant failure to attend two depositions in appellant-commenced civil rights suit was properly dismissed.

“Pendell argues that the district court abused its discretion here, but she is incorrect. After twice failing to complete her deposition, Pendell violated her duty to show up at her resumed deposition, despite having received ample notice of it and a warning that failing to appear may lead to dismissal. Furthermore, by ignoring that duty, she put opposing counsel to needless expense and delayed the court’s calendar. In addition, because she lied to the court in asserting that she did not know about the resumed deposition, she gave the court no reason to believe that she would respect the judicial process. See Greviskes v. Univs. Research Ass’n, Inc., 417 F.3d 752, 759 (7th Cir. 2005) (affirming decision to dismiss suit where plaintiff lied to court about discovery); Dotson v. Bravo, 321 F.3d 663, 667–669 (7th Cir. 2003) (same). Given these factors, and with Pendell’s suit otherwise showing little promise after two years of litigation, the district court committed no abuse of discretion in dismissing the case. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Fischer, 446 F.3d at 666; Halas, 16 F.3d at 165.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: BAUER and HAMILTON, Circuit Judges, and ELLIS, District Judge.

Writ of Habeas Corrpus – Timeliness – Actual Innocence Exception

No.13-3141 Myron Gladney v. William Pollard

Appellants writ of habeas corpus petition filed over a decade after his conviction became final was untimely and he did not meet the actual innocence exception for extending the time limit; as such, his petition was properly dismissed.

“Under § 2244(d)(1)(D), a petitioner has an additional year to file any claim starting from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Under equitable tolling principles, a petitioner need not count the time during which he (1) pursues his rights diligently, and (2) “some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (citation and internal quotation marks omitted).”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges

Motion for Summary Judgment – Failure to Properly Respond

No.15-1095 Subah Packer v. Trustees of Indiana University School of Medicine

Appellant failure to respond to Defendant-respondent motion for summary judgment with references  “parts of the record confirming that there are genuine disputes of material fact . . .”

“However, as proof of Brater’s differential treatment of men and women, Packer supplied only general cites to the depositions of two witnesses, along with a cite to one paragraph of her own affidavit. The district court was well within its discretion to disregard the two deposition cites, which did not point the court to particular page numbers of the depositions, in violation of both Rule 56(c)(1)(A) and Local Rule 56-1(e). It is not the court’s role or obligation to read an entire deposition or affidavit in an effort to locate the particular testimony a party might be relying on; the court ought to know what portion of a witness’s testimony the party is invoking so that it can focus its attention on that testimony and assess whether it is admissible and actually supports the fact or inference for which it is cited. See Waldridge, 24 F.3d at 923 (court is entitled to rely on “roadmaps” required by local summary judgment rules, “and without them the court should not have to proceed further, regardless of how readily it might be able to discern the relevant information from the record on its own) (citing, inter alia, Bell, Boyd Lloyd v. Tapy, 896 F.2d 1101, 1102–03 (7th Cir. 1990)); see also D.Z. v. Buell, supra, 2015 WL 4652778, at *5.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges

Pleas & Sentencing – Expungement

No.14-2961 Michael A Kelley v. Greg Zoeller

Appellant attempts to expunge record prior to establishment of expungement statute.

“Finally, we note that the State of Indiana did not have a statute allowing for expungement of criminal convictions until 2013, nearly forty years after Kelley asserts that Indiana prosecutors agreed to expunge his conviction upon successful completion of his federal sentence. See Ind. Code § 35-38-9-1 et seq. (2013); Taylor v. State, 7 N.E.3d 362, 366–67 (Ind. Ct. App. 2014) (noting that the Indiana legislature passed the expungement statute in 2013 in order to give “individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction–especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen”). Although Kelley cited the FYCA as the law authorizing expungement of his federal conviction, he has never cited any Indiana law that would have allowed expungement of a state conviction in 1975. Nor has he ever asserted that prosecutors tried to mislead him regarding the terms of his plea agreement or the availability of expungement in Indiana, and we note that he was represented by counsel at the time. It therefore seems unlikely that his 1975 plea agreement with the State of Indiana contained the terms that Kelley asserts.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: BAUER, FLAUM, and WILLIAMS, Circuit Judge

Bankruptcy – Collection

No.14-2420; 14-2546 Saint Catherine Hospital of Indiana, LLC v. Indiana Family and Social Services

Hospital Assessment Fees held to be a pre-petition claim subject to an automatic stay.

“That St. Catherine’s continued operation as an eligible hospital on July 1, 2012 may have been required in order for the 2013 HAF to be assessed does not change our analysis. This fact would simply make the claim “contingent” upon the hospital’s continued eligibility on July 1, 2012. A “contingent” claim is one conditioned upon some future event that is uncertain. See In re Rosteck, 899 F.2d at 697 (quoting Grady, 839 F.2d at 200) (defining contingent as “[p]ossible but not assured; doubtful or uncertain; conditioned upon some future event which is itself uncertain or questionable …. impl[ying] that no present interest exists, and that whether such interest or right will ever exist depends upon a future uncertain event”). And as noted above, the Code’s definition of “claim” explicitly includes any “right to payment, whether or not such right is … contingent” upon some future event, which may or may not happen after the filing of a bankruptcy petition. See 11 U.S.C. § 101(5)(A). Thus, assuming FSSA’s reading of Provider Bulletin BT201217 is accurate, it would simply mean that had St. Catherine ceased to be an eligible hospital prior to the beginning of the fiscal year 2013, a contingency for its 2013 HAF liability would not have been met. It would not mean that the underlying claim did not already exist”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

Officials:  BAUER, FLAUM, and WILLIAMS, Circuit Judges

Foreclosure – Abuse of Discretion

 No.14-1491 United Central Bank v. KMWC 845, LLC

Appellant acquiescence to applicability of Illinois law waived any argument that Wisconsin law applied to foreclosure action.

“On appeal, UCB contends that no waiver occurred because it cited to Wisconsin law in both its second amended complaint and motion for summary judgment. In its second amended complaint, UCB cites to two Wisconsin statutes: Wis. Stat. Ann. §§ 846.103 and 846.162 (West 2015). These statutes pertain to procedural aspects concomitant to foreclosure proceedings on Wisconsin properties; they do not speak to what state law governs Mortgage I. In its summary judgment motion, UCB cited to a single Wisconsin case for a general proposition of law. At no point, however, did UCB argue or assert that Mortgage I was governed by Wisconsin law. In fact, UCB’s summary judgment motion is devoid of any choice-of-law discussion; UCB never claimed that it was the original mortgage’s choice-of-law provision, not the mortgage amendment’s choice-of-law provision, which determined the law applicable to its foreclosure claim on Mortgage I. The sole statement that UCB appears to have made regarding choice-of-law came in its response to the appellees’ motion for summary judgment. In its response, UCB explicitly acknowledged that “[t]wo of the three mortgages”—Mortgages II and III—“contain provisions that provide Wisconsin law shall govern,” thus implying that the third mortgage—Mortgage I—selected Illinois law. Furthermore, UCB did not cite a single Wisconsin case in its response to the appellees’s motion for summary judgment; instead, it argued Illinois law throughout. In response to the appellees’ contention that Illinois law applied to Mortgage I, UCB did not direct the district court’s attention to the original mortgage choice-of-law provision, nor did it argue that the original choice-of-law provision should be applied instead of the mortgage amendment’s choice of law provision. Plainly stated, UCB did not raise the arguments presented in its motion for reconsideration prior to the district court’s summary judgment decision.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges

Subject Matter Jurisdiction – Administrative Enforcement Proceeding

No. 15-1511 Laurie A. Bebo v. Securities and Exchange Commission

Appellant attempt to circumvent an administrative and judicial review by filing suit in federal court to question the authority of the SEC to conduct a de novo review fails.

“At any rate, this unsettled issue does not affect the outcome in this case. We think the most critical thread in the case law is the first Free Enterprise Fund factor: whether the plaintiff will be able to receive meaningful judicial review without access to the district courts. The second and third Free Enterprise Fund factors, although relevant to that determination, are not controlling, for the Supreme Court has never said that any of them are sufficient conditions to bring suit in federal district court under § 1331. We therefore assume for purposes of argument that Bebo’s claims are “wholly collateral” to the administrative review scheme. Even if we give Bebo the benefit of that assumption, we think it is “fairly discernible” that Congress intended Bebo to proceed exclusively through the statutory review scheme established by § 78y because that scheme provides for meaningful judicial review in “an Article III court fully competent to adjudicate petitioners’ claims.” See Elgin, 132 S. Ct. at 2137.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: POSNER, KANNE, and ROVNER, Circuit Judges

Bankruptcy –

No. 15-1416 Michael D. Schwartz v. Barclays Capital Inc.

Appellants increased persona expenditures in the wake of bankruptcy considered bad fatih and warranted dismissal of bankruptcy petition.

“The bankruptcy judge, focusing, as we’ve just said is proper, on “for cause” cut loose from the three subsections in section 707(a), dismissed the Schwartzes’ petition for bankruptcy because of their failure to use any of their earnings or assets to pay any part of the debt they owed Barclays. By spending even more than their substantial income for private purposes, they depleted the assets available to pay their creditors. No one is asking them to live in a tent, dress in rags, drive a 1950 Chevy, or emulate Mme. Loisel in Guy de Maupassant’s short story “The Necklace” (“La Parure”) who loses a borrowed necklace that she believes to be very valuable and ruins herself and her husband financially in order to remunerate the owner, only to discover in the end that the necklace was a fake, made of glass and worth almost nothing. What the Schwartzes failed to do was pay as much of their indebtedness as they could without hardship. Their action was deliberate and selfish, and provides good cause for denying the discharge. The dismissal of their petition will place them under greater pressure to pay off, or at least pay down, their debts than if they’re permitted to persist in living high on the hog (relative to the average American family, which cannot afford to spend $11,100 a month on consumption) in the face of a considerable indebtedness”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: POSNER, ROVNER, and HAMILTON, Circuit Judges

Improper Dismissal – Untimely Filing

No.14-3426 William Nally v. Parthasarathi Ghosh

Circuit court dismissal of prisoner’s suit rooted in improper conduct by prison medical staff as untimely was inappropriate given delays beyond prisoner’s control.

“The defendant now knows that he was diabetic or prediabetic in 2007, but there is no indication that he learned this until November 2010. True, he alleges that in 2009 his eyesight began to deteriorate rapidly and he suffered excruciating leg cramps and numbness in his left foot—all of which are possible symptoms of diabetes. Michael Dansinger, “High Blood Sugar, Diabetes, and Your Body,” WebMD (September 3, 2014), www.webmd.com/diabetes/how-sugaraffects-diabetes?page=2. Yet he may not have known that these were possible symptoms of diabetes—or indeed that he was diabetic or prediabetic, for the symptoms first occurred in 2009 and as far as appears it was not until November 2010 that he learned that the defendants’ failure to take any action in response to his abnormal glucose blood counts was the cause, or a likely cause, of the symptoms. The statute of limitations in federal tort suits starts to run when a person knows that he is injured and knows what caused his injury. United States v. Kubrick, 444 U.S. 111, 117–25 (1979). “Knowledge of the injury and its cause should stimulate inquiry,” as we said in Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) (emphasis added). Nally may not have known of the cause of his distressing symptoms until November 2010, and the two-year statute of limitations would have been tolled during the interval between that discovery and his filing suit because he was exhausting prison administrative remedies as a prelude to suing. “

Reversed and Remanded

Hamilton concurring

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Civil

7th Circuit Court of Appeals

Officials:FLAUM, MANION, and HAMILTON, Circuit Judges

Breach of Contract – Nonconforming goods

No.14-3315; 14-3306 JMB Manufacturing, Inc. v. Harrison Manufacturing, LLC

Buyer attempts to circumvent the economic loss doctrine by bringing suit for negligent misrepresentation.

“There are two problems with this argument. First, even if Bienias made affirmative misstatements about whether the goods would or did comply with the contract’s specifications, he still made them within the scope of his authority as an agent for Summit. Holding Bienias personally liable for statements made within the scope of his authority as an agent to Summit would effectively “make the agent the promisor when the parties had arranged their affairs to put the principal, and only the principal, on the line.” See Greg Allen Construction, 798 N.E.2d at 173. Under Child Craft’s theory, however, a buyer bringing a breach of contract claim against a seller would always be able to bootstrap a negligent misrepresentation claim against any corporate employee who promised that the goods would conform to the contract’s specifications. That view of personal liability would work a dramatic change in Indiana law of business organizations and would effectively nullify the economic loss doctrine in cases of non-conforming goods.  “

Reversed in part. Affirmed in part

7th CIRCUIT COURT OF APPEALS – CRIMINAL

Criminal

7th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Frivolous Appeal – Pleas & Sentencing – Sentencing Error

No.14-2154; 13-3711 United States of America v. Robert Maday

Appeal of sentence given by two separate judges for crimes that were interrelated both in time and fact not held as frivolous.

“Judge Castillo committed two sentencing errors. One was making Maday’s sentence run concurrently with his state sentence. In doing so the judge overlooked 18 U.S.C. § 924(c), which “forbids a federal district court to direct that a term of imprisonment under that statute run concurrently with any other term of imprisonment, whether state or federal.” United States v. Gonzales, 520 U.S. 1, 11 (1997). The second mistake was to make the federal sentence that he was imposing run concurrently with the 15-year minimum sentence for being an armed career criminal. 18 U.S.C. § 924(c)(1)(D) provides that sentences for weapon brandishing, imposed under section 924(c), shall not run concurrently “with any other term of imprisonment imposed on the person” (emphasis added), which includes Maday’s 15-year sentence for being an armed career criminal. E.g., Abbott v. United States, 562 U.S. 8, 13–15, 21–22 (2010); United States v. Taylor, 581 Fed. App’x 559, 560–61 (7th Cir. 2014). “

“The remaining issue involves Judge Gettleman’s sentencing; we’ve concluded that the judge did not adequately justify his decision to sentence Maday to 30 years and make that very long sentence consecutive to an equally long state sentence (though a sentence that might be shortened considerably as a result of Illinois’s generous day-for-day credit system). Maday was, it is true, a career criminal, but one who specialized in smallish bank robberies; he doesn’t appear to have injured anyone in his crime sprees; and at age 43, when sentenced by Judge Gettleman, he was rapidly approaching the age at which most bank robbers are retired—it appears that only about 11 percent of bank robbers are 40 or older. FBI, U.S. Dep’t of Justice, Crime in the United States 310 (2002). (This figure is from the late 1990s, but we have found no data suggesting that it has risen since.) The judge said he was imposing the long sentence as a general deterrent (pour encourager les autres, as the French put it). But he discussed in detail only one of the other sentencing factors that federal judges are required by 18 U.S.C. § 3553(a) to consider in deciding on the length of a sentence—namely specific deterrence (deterring the defendant from committing further crimes upon release). See 18 U.S.C. § 3553(a)(2)(C). But what he said about it suggests that he didn’t think it would provide any justification for the sentence he was imposing. He ruminated: “Will you pose [a danger to the community] all of your life until you’re a very old man? Probably not.” Yet he sentenced Maday to a prison term that will keep him incarcerated long past the time when he is likely to be a danger to the community.”

Reversed and Remanded.

Full Text

Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and MANION, Circuit Judges

Categorical Approach – Established Precedent – Sexual Abuse/Statutory Rape

No.14-1994

United States of America v. Alejandro Zuniga-Galeana

Appellant argues for court to part ways with established precedent as it relates to the definitions of “sexual abuse of a minor” and “statutory rape.”

“At bottom, then, Zuniga’s argument is a request that we move from one side of a circuit split to another. We have repeatedly incanted that we require “compelling reasons” to depart from our precedent. See Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006) (quoting McClain v. Retail Food Employers Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005)). And we often have refused to alter our position even when every other circuit to consider a particular question disagrees with our conclusion. See Grandberry v. Keever, 735 F.3d 616, 618–19 (7th Cir. 2013); Santos, 461 F.3d at 891–93.“

Affirmed

Full Text

Criminal

7th Circuit Court of Appeals

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges

Revocation – Irrevocable Commitment

No.15-1425

United States of America v. Michael Dill

Judge prepared sentencing decision in preparation of revocation hearing not considered an irrevocable commitment.

“As Dill points out, we have cautioned district judges not to predetermine the appropriate punishment before convening a revocation hearing. See United States v. Smith, 770 F.3d 653, 655 (7th Cir. 2014); United States v. Tatum, 760 F.3d 696, 697 (7th Cir. 2014). District judges must approach revocation and sentencing hearings with an open mind and consider the evidence and arguments presented before imposing punishment. See United States v. Pulley, 601 F.3d 660, 665 (7th Cir. 2010); United States v. Pless, 982 F.2d 1118, 1129 (7th Cir. 1992). At the same time, a judge who begins the hearing without any preliminary idea of appropriate sanctions is probably not prepared. Having such an idea does not disable the judge from making the sentencing decision. See Pulley, 601 F.3d at 665; Pless, 982 F.2d at 1129–30; see also Fleenor v. Farley, 47 F. Supp. 2d 1021, 1052–53 (S.D. Ind. 1998) (sentencing judge’s statement to counsel at start of hearing that he was leaning toward imposing death sentence meant that judge was prepared, not that he had made up his mind unalterably), aff’d, 171 F.3d 1096 (7th Cir. 1999).”

Affirmed

Full Text

Criminal

7th Circuit Court of Appeals

Officials: RIPPLE, WILLIAMS, and SYKES, Circuit Judges

Sufficiency of Evidence

No.14-2799

United States of America v. Daniel Dvorkin

Appellant repeated solicitation to arrange for a contract killing sufficient to uphold conviction.

“These contentions miss the mark. Starting with the solicitation element, neither § 373(a) nor § 1958 requires that a defendant reach an economic understanding or agreement in order to solicit a violation of § 1958. See Smith, 755 F.3d at 647 (noting that “§ 1958(a) does not require that [an] offer have been made or accepted before the statute is violated”); United States v. Barefoot, 754 F.3d 226, 238 (4th Cir. 2014) (noting that “a straightforward request or directive fulfills the [solicitation] element of § 373(a)”).25 Rather, the Government merely was required to show that Mr. Dvorkin requested or “endeavor[ed] to persuade” Bevis to engage in conduct proscribed by § 1958. 18 U.S.C. § 373(a). At trial, the Government argued that Mr. Dvorkin solicited Bevis to violate § 1958 on two occasions: (1) on April 6, when he offered Bev‐ is $50,000 to procure the murder of Meyer and gave him information on Meyer’s Texas whereabouts, and (2) on April 18, when Mr. Dvorkin instructed Bevis to convince the Florida hitman to accept $50,000 in exchange for killing Meyer. These communications are each more than sufficient to sustain the jury’s finding of solicitation. “

Affirmed.

Full Text

Criminal

7th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges.

Motion to Suppress

No.13-3715; 13-3727

United States of America v. Brian Wilbourn and Adam Sanders

Among multiple other issues, officer’s conduct during car stop was more akin to a warrantless arrest, therefore drugs seized as a result of the stop that ultimately led to conviction must be reversed.

“Reasonable suspicion must be “based on articulable facts” that the person stopped may be engaged in criminal activity. Terry, 392 U.S. at 21. An officer’s reasonable suspicion should be based on “the totality of the circumstances— the whole picture.” Sokolow, 490 U.S. at 8. Here, the record is devoid of any facts to suggest that Officers Schoenecker and Corlett had reason to suspect that the persons in the Buick had committed a crime. The key term is “articulable.” The government offered extensive evidence to establish that other officers had reason to suspect that the persons in the Buick had committed a crime. But it offered no evidence to suggest that anyone communicated any basis for these suspicions to Officers Schoenecker and Corlett. Because of this, neither officer was able to articulate any grounds to justify the stop. The purpose of a Terry stop is to provide law enforcement the opportunity to stop and question a person briefly when it believes that person may be committing or may have committed a crime. This was not a Terry stop; it was more akin to a warrantless arrest. The police stopped a car and immediately proceeded to remove a passenger, place him in custody in the back of a police car, and engage in a thorough search of the automobile. These actions might have been proper if the officers had probable cause to arrest someone in the car. As it was, the officers who made the stop failed to articulate any facts addressing reasonable suspicion, still less probable cause. For this reason, the stop did not conform to the precepts outlined in Terry and was invalid.”

Affirmed in part, reversed in part, vacated in part

Full Text

Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and MANION, Circuit Judges

Harmless Court Error

No.14-3097

United States of America v. Christopher Seifer

Appellant fails to show that conceded court error by government prejudiced his case.

“Nonetheless, the district court’s error does not entitle Seifer to a new trial because he has not shown that his random pick of the alternate juror at the close of evidence affected his substantial rights. See Mendoza, 510 F.3d at 754; Love, 134 F.3d at 601. Seifer contends that he was prejudiced because (1) we cannot tell from the record whether the 13 names in the box were written on papers of precisely the same size; (2) the district court ignored Wis. Stat. § 565.27(2)(b)(4) by conducting a “lottery” without inspecting the “equipment” before and after the drawing; and (3) juror number 13 probably expected to be the alternate and didn’t pay close attention to the evidence, thus creating an unfair jury panel. Each argument is meritless”

Affirmed

Full Text

WI COURT OF APPEALS – CIVIL

Civil

WI Court of Appeals – District I

Officials:Curley, P.J., Kessler and Brennan, JJ

Statute of Limitations – Defamation – Social Media

2014AP2393

Stephen Laughland v. John Beckett

John Beckett appeals a judgment of the circuit court, following a bench trial. The circuit court found that Beckett defamed Stephen Laughland by creating a Facebook page in Laughland’s name and posting numerous items that defamed Laughland and disparaged Laughland’s character. The circuit court found Beckett did all this with malicious intent, and awarded both general and punitive damages. Beckett argues on appeal that his postings were beyond the applicable statute of limitations for defamation actions, his posts were not defamatory, and that the evidence does not support the damages awarded. We affirm.

Decision

Affirmed – Recommended for Publication

Full Text

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz and Seidl, JJ

Eviction

2014AP2671

Zoe Ann Wesolowski v Carol Ann Coltman

Carol Coltman, pro se, appeals a summary judgment in favor of her daughter, Zoe Wesolowski, on Wesolowski’s eviction claim against Coltman and on Coltman’s counterclaims. Coltman also appeals an order dismissing her claims against various third-party defendants. We reject Coltman’s appellate arguments and affirm the judgment. We modify the order to state that Coltman’s third-party claims were dismissed without prejudice and, as modified, affirm.

Decision

Affirmed. Per Curiam

Full Text

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Real Estate – Easement

2014AP2802

Ronal M. Berg v. Thomas R. Ziel

Ronald Berg appeals a judgment concerning a recorded general easement over property owned by Thomas Ziel and Shawn Newhouse (collectively, Ziel). The judgment extinguished Berg’s existing access route, but granted Berg access on a newly created road along the edge of Ziel’s property. Berg argues prior landowners had selected the location of the general easement decades ago, thereby establishing the location of his easement. We agree with Berg and reverse and remand with directions.

Decision

Reversed and Remanded – Recommended for Publication

Full Text

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge.

Abuse of Discretion – Failure to Respond

2014AP2846-FT

Marco Araujo, M.D. v. Ronald H. Van Den Huevel

Green Box, N.A. Green Bay, LLC, and its founder and chairman, Ronald Van Den Heuvel (collectively “Green Box”) appeal a judgment awarding Marco Araujo $813,735.34, consisting of $600,000 for damages relating to a breach of contract plus prejudgment interest and costs. The circuit court entered the default judgment after striking Green Box’s answer as a penalty for its noncompliance with a discovery order. Green Box argues: (1) the court erroneously exercised its discretion by imputing Green Box’s former counsel’s conduct to the blameless defendants; and (2) the court erroneously exercised its discretion by not requiring proof of damages and by failing to respond to Green Box’s motion for reconsideration, in which it requested that the judgment be amended to require Araujo to transfer his membership units back to Green Box upon full payment of the judgment. We affirm the decision to strike the answer and grant a default judgment for the liquidated damages identified in the complaint plus interest and costs. We remand the cause with directions to amend the judgment to require Araujo to transfer his membership units back to Green Box upon full payment of the judgment.

Decision

Affirmed in part. Reversed and Remanded in part.

Full Text

Civil

WI Court of Appeals – District III

Officials: P.J., Hruz, J., and Thomas Cane, Reserve Judge.

Statute of Repose

2015AP197

Walter H. Wise v. Village of Kimberly

Walter H. Wise and his son, Walter R. J. Wise, appeal a summary judgment dismissing their property damage action against the Village of Kimberly and its insurer, Cities & Villages Mutual Insurance Company. The Wises contend the circuit court erred by concluding their action is procedurally barred by the statute of repose, WIS. STAT. § 893.89(2) (2013-14).1 We reject the Wises’ arguments and affirm the judgment.

Decision

Affirmed. Per Curiam.

Full Text

Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J. and Brennan, J. 

Summary Judgment – DOT – Administrative Remedies

2014AP2304

Chan Lee v. DOT

This case arises from a dispute over the planned removal of a driveway connecting a highway and commercial property in the city of Waukesha. The Wisconsin Department of Transportation (DOT) appeals a grant of summary judgment in favor of Chan Lee and C. Lee Development, LLC (collectively, Lee). The DOT contends that summary judgment should have been granted in its favor instead because (1) Lee failed to exhaust his administrative remedies before filing suit; and (2) the driveway at issue is not an irrevocable compensable property right but rather a temporary connection subject to permitting and revocation by the DOT. We reject the DOT’s arguments and affirm.

Decision

Affirmed. Per Curiam

Full Text

Civil

WI Court of Appeals – District II

Officials:Neubauer, C.J., Gundrum and Stark, JJ.

Reinstatement – Proper Remedy

2014AP2448

Jesus Alba v. City of Waukesha Board of Police and Fire Commission

Jesus “Jesse” Alba sought to be reinstated as City of Waukesha Fire Department (the Department) fire chief and provided back pay. The circuit court denied his statutory appeal under WIS. STAT. § 62.13(5)(i) (2013- 14), but on certiorari review found a fundamental due process violation and remanded the case to the City of Waukesha Board of Police and Fire Commission (the PFC) for rehearing. Alba appeals the circuit court’s remedy of a rehearing. The PFC cross-appeals from the portion of the order finding a due process violation and ordering a remand. We affirm in all regards.

Decision

Affirmed

Full Text

Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Statutory Interpretation – Boundary Changes – Notice Requirements

2014AP2828

City of Kaukauna v. VIllage of Harrison

In 2013, the Village of Harrison was born from land within the Town of Harrison. Shortly thereafter, the Town and Village of Harrison entered into an intergovernmental cooperation agreement that transferred additional land to the Village and provided for the sharing of services between the two communities. The Cities of Kaukauna and Menasha, the Village of Sherwood, and individual property owners (collectively, the “Challengers”) argue that the intergovernmental cooperation agreement is void as it involved a “major” boundary change that exceeds the scope allowed by statute and that the Town and Village did not strictly comply with statutory notice requirements. We disagree and affirm the circuit court. The plain language of WIS. STAT. § 66.0301(6) (2013-14) does not limit the scope of boundary changes to only “modest” changes nor does it impose any notice requirements beyond those met by the Town and Village of Harrison in this case.

Decision

Affirmed – Recommended for Publication

Full Text

Civil

WI Court of Appeals – District II

Officials:GUNDRUM, J.

Eviction – Motion to Reopen

2015AP509

Wright Weber Management, LLC v. Ryan P. Walker

Ryan P. and Bobbie S. Walker, husband and wife, appeal the circuit court’s denial of their motion to reopen and vacate a judgment of eviction entered against them following a court trial. The Walkers assert that the circuit court erred in denying, without a hearing, their motion to reopen and vacate the judgment. They contend the court should have afforded them a hearing on their motion because if the allegations contained in the motion and supporting documents are true, the judgment was procured by fraud and was void, pursuant to WIS. STAT. § 806.07(1)(c) and (d) respectively. They alternatively assert that it should be reopened and vacated because relief from operation of the judgment is otherwise justified, based upon § 806.07(1)(h). For the following reasons, we affirm.

Decision

Affirmed

Full Text

Civil

WI Court of Appeals – District II

Officials: REILLY, P.J

Lack of Jurisdiction – Service of Notice of Appeal

2015AP576-FT

Village of Thiensville v. Conor B. Fisk

Conor B. Fisk was cited in municipal court with operating a motor vehicle while under the influence of intoxicants (OWI) and with a prohibited alcohol concentration (PAC) in violation of Village of Thiensville ordinances adopting WIS. STAT. § 346.63(1)(a) and (b). The municipal court acquitted Fisk on the OWI charge but convicted him on the PAC. Twenty days after trial, Fisk filed a notice of appeal of the PAC conviction with the municipal court. Fisk attached the notice to an email that he sent to the municipal prosecutor’s office account at 9:02 p.m. on the same day. The Village moved to dismiss Fisk’s appeal on the basis that Fisk failed to properly serve his notice of appeal on the Village and, therefore, the circuit court did not have jurisdiction. The court agreed and dismissed Fisk’s appeal. We reverse and remand to the circuit court to reinstate Fisk’s appeal.

Decision

Reverse and Remanded

Full Text

Civil

WI Court of Appeals – District I

Officials: Kloppenburg, P.J., Sherman and Blanchard, JJ.

Divorce – Spousal Maintenance

2014AP2712

Eva M. Ferrara Vase v. Joseph S. Ferrara, Jr

Joseph Ferrara appeals an order that denied his motion to terminate or modify maintenance paid to his ex-wife Eva Ferrara Vase. He argues that the circuit court erroneously ruled that he failed to show any substantial change in circumstances from the time of divorce to the time of his motion “that would warrant either a termination of maintenance or modification of maintenance.” Specifically, Ferrara argues that he did show substantial changes in circumstances, namely that his wages and fringe benefits decreased substantially, that the parties’ son turned eighteen, and that Vase failed to seek and obtain employment. Ferrara also argues that the court erred in failing to recognize that continuing to order the current amount of maintenance is not fair to him in light of his “need for financial resources and ability to fund a reasonable lifestyle.” We reject Ferrara’s arguments and affirm.

Decision

Affirmed. Per Curiam

Full Text

Civil

WI Court of Appeals – District I

Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ

Child Custody & Physical Placement – Modification

2014AP2942

Stephani M. Przytarski v. Ted B. Vallejos

This is an ongoing child custody and physical placement dispute between the child’s mother, Stephanie Przytarski, and the child’s adjudicated father, Ted B. Vallejos. Stephanie and Ted both filed motions to modify custody and physical placement pursuant to WIS. STAT. § 767.451(1)(a) (2013-14).2 Both requested sole custody and primary physical placement. After five days of trial over a thirteen-month period, the circuit court granted Ted’s motion and denied Stephanie’s motion, awarding Ted sole custody and primary physical placement. Stephanie appeals the order filed on November 14, 2014.

Decision

Affirmed. Per Curiam.

Full Text

Civil

WI Court of Appeals – District I

Officials: Kloppenburg, P.J., Lundsten and Higginbotham, JJ.

Grandparents Rights – Visitation

2014AP2993

Gary A. Kramschuster v. Stephanie M. Przytarski

Gary and Sandra Kramschuster appeal an order granting them supervised visits in New Jersey with their maternal grandchild. The grandparents ask this court to reverse the circuit court’s order and to grant them broader visitation rights as requested in their motion for grandparent visitation. The grandparents seek reversal of the circuit court’s visitation order on four grounds: (1) the court exhibited bias and prejudice against the grandparents; (2) the court erred by appointing Attorney Laura Schwefel to be the child’s guardian ad litem (GAL); (3) the court erred by not finding the child’s father an unfit parent; and (4) the court made various erroneous findings. As we explain, the grandparents’ arguments are either undeveloped or not persuasive. Therefore, we affirm.

Decision

Affirmed. Per Curiam.

Full Text

Civil

WI Court of Appeals – District IV

Officials: KLOPPENBURG, P.J.

Motion to Suppress – Reasonable Suspicion

2014AP332

Columbia County v. Jessica N. Johnson

Jessica Johnson appeals a judgment of conviction and the order denying her motion to suppress evidence arising out of a traffic stop. After a jury trial, Johnson was found guilty of operating a motor vehicle while intoxicated first offense and operating a motor vehicle with a prohibited alcohol concentration. Johnson argues that the arresting officer did not have the requisite reasonable suspicion to extend her detention for field sobriety testing and, therefore, the circuit court erred in denying her motion to suppress the test results and subsequent evidence of intoxication. For the reasons set forth below, I reject Johnson’s argument and affirm.

Decision

Affirmed.

Full Text

Civil

WI Court of Appeals – District IV

Officials: KLOPPENBURG, P.J.

Motion to Reopen

2015AP547

Samuel L. Buoscio v. Parker Pen Company

Samuel Buoscio appeals the order denying his motion to reopen a default judgment that had been entered against him. Buoscio filed a small claims complaint against Parker Pen Company, seeking the return of a pen that he alleges he sent for a warranty repair. Buoscio attached to the complaint a letter allegedly from Boufford acknowledging receipt of the pen and stating that the pen was being sent to a repair facility in France. The complaint included a return date of June 27, 2014. Buoscio moved to be excused from appearing on that date due to his incarceration in Ohio. Parker Pen employee Mary Boufford appeared for Parker Pen, and alleged that the letter that Buoscio attached to the complaint is fraudulent. The circuit court dismissed the case without prejudice for failure to state a claim.

Decision

Affirmed

Full Text

WI COURT OF APPEALS – CRIMINAL

Criminal

WI Court of Appeals – District III

Officials:  Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Ineffective Assistance of Counsel

2014AP2083

State of Wisconsin v. John L. Phillips

John Phillips appeals an order adjudging him to be a sexually violent person under WIS. STAT. ch. 980 and an order denying his motion for a new trial based on ineffective assistance of counsel.1 On appeal, Phillips asserts he is entitled to a new trial because his attorney rendered ineffective assistance by: (1) failing to object to expert testimony regarding what Phillips labels an “extrapolation formula” describing Phillips’ risk to reoffend; and (2) failing to object to a psychologist’s testimony, given in the context of her diagnosis of antisocial personality disorder, regarding Phillips’ history of deception and lying, and to closing argument based on that testimony. We conclude Phillips’ trial counsel did not perform deficiently in either respect, and we therefore affirm.

Decision

Affirmed. Per Curiam

Full Text

Criminal

WI Court of Appeals – District I

Officials:  Curley, P.J., Kessler and Brennan, JJ.

Court Error – Prosecutor Strike of Juror

2014AP1120-CR

State of Wisconsin v. Courtney J. James

Courtney J. James appeals from a judgment of conviction entered after a jury found him guilty of one count of first-degree reckless homicide and one count of first-degree recklessly endangering safety, both with use of a dangerous weapon and as a party to the crime. See WIS. STAT.§§ 940.02(1), 941.30(1), 939.63(1)(b) & 939.05 (2013-14).1 He contends that the trial court erred when it concluded that the prosecutor’s peremptory strike of Juror 14, an African-American male, was not a violation of Batson v. Kentucky, 476 U.S. 79 (1986), because: (1) the pattern of all of the prosecutor’s strikes was sufficient to create an inference of discriminatory intent; (2) the prosecutor’s proffered reason for striking Juror 14—that is, the juror’s reaction to several questions—was not supported by the record; and (3) the trial court erred in concluding that James failed to prove purposeful racial discrimination. The State responds that the trial court properly analyzed the Batson claim and that the court’s conclusion that the prosecutor’s strike of Juror 14 was not purposeful racial discrimination was not clearly erroneous and should be affirmed. We agree with the State.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District I

Officials:  Curley, P.J., Kessler and Bradley, JJ.

Miranda/Good Child Hearing

2014AP2898-CR

State of Wisconsin v. Perk Eugene Thomas

Perk Eugene Thomas, pro se, appeals from an order of the circuit court that denied his motion for a Miranda/Goodchild1 hearing. The circuit court concluded primarily that the issues raised in the motion were procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We agree and affirm.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District II

Officials:Neubauer, C.J., Reilly, P.J., and Gundrum, J. 

Sentencing – Good Time – Revocation

2014AP2655

Christopher W. Baad v. Brian Hayes

Christopher Baade earned ninety days of “good time” while serving one year in the county jail as a condition of probation on a stayed prison sentence. Baade’s probation was revoked, and he began his prison sentence of two years of initial confinement to be followed by two years of extended supervision. Baade successfully argued to the circuit court that he should receive a full year of sentence credit as he “earned” one year as a result of the “good time” he accumulated. We reverse. “Good time” earned while on probation of a stayed sentence of more than one year is not eligible for sentence credit in the event probation is revoked.

Decision

Reversed – Recommended for Publication

Full Text

Criminal

WI Court of Appeals – District II

Officials: GUNDRUM, J.

Chemical Intoxication Test – Identification – Court Error

2015AP574

State of Wisconsin v. David Francis Walloch

David Francis Walloch appeals from the circuit court’s order finding he unlawfully refused to submit to a chemical test for intoxication, pursuant to WIS. STAT. § 343.305, after being arrested for operating a motor vehicle while under the influence of an intoxicant. Walloch’s only contention on appeal is that the circuit court erred in concluding at the refusal hearing “that the State had sufficiently identified [Walloch] as the person who refused chemical testing.” We conclude that the court did not err and affirm.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District IV

Officials: Lundsten, Higginbotham and Sherman, JJ

Warrantless Search – Destruction of Evidence

2013AP1936-CR

State of Wisconsin v. David R. Yates

David R. Yates challenges multiple warrantless searches of his home, the destruction of potentially exculpatory evidence, various evidentiary rulings at trial, and the effectiveness of his trial counsel. This appeal arises from Yates’ conviction of two counts of first-degree intentional homicide for the deaths of his five-week-old twins, and the circuit court’s denial of his motion for postconviction relief. For the reasons that follow, we reject each of Yates’ arguments. Accordingly, we affirm the circuit court.

Decision

Affirmed. Per Curiam.

Full Text

Criminal

WI Court of Appeals – District IV

Officials:  Higginbotham, Sherman and Blanchard, JJ. 

Insufficiency of Evidence

2014AP1810-CR

State of Wisconsin v. Michael L. Delaney

Michael Delaney appeals judgments of conviction for second-degree sexual assault of a child under the age of sixteen, contrary to WIS. STAT. § 948.02(2) (2013-14) as a repeater, and five counts of child enticement, contrary to WIS. STAT. § 948.07(1). Delaney contends that his convictions should be overturned because sufficient evidence was not presented at trial to prove that the offenses occurred on the dates alleged in the information, or on dates sufficiently close to the dates alleged in the information. For the reasons discussed below, we affirm.

Decision

Affirmed. Per Curiam.

Full Text

Criminal

WI Court of Appeals – District IV

Officials: Lundsten, Higginbotham, and Blanchard, JJ

Insufficiency of Evidence – Abuse of Discretion

2014AP2103-CR

State of Wisconsin v. Anthony M. Lee

Anthony Lee appeals judgments convicting him after a jury trial of multiple crimes, including burglary, battery, substantial battery, and second-degree recklessly endangering safety, all as party to a crime and by use of a dangerous weapon. Lee contends that: (1) the evidence was insufficient to support application of the dangerous weapon enhancer; (2) the evidence was insufficient to support the convictions for substantial battery and second-degree recklessly endangering safety; (3) the circuit court erred by denying Lee’s motions challenging the sufficiency of the evidence at trial; and (4) the circuit court erroneously exercised its discretion by instructing the jury as to the “natural and probable consequences” theory of liability. We conclude that the evidence was sufficient to support the enhancer and the convictions, and that the circuit court did not err by denying Lee’s motions or by instructing the jury as to the natural and probable consequences of the underlying burglary. We affirm.

Decision

Affirmed. Per Curiam

Full Text

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