Weekly Case Digests — Sept. 28-Oct. 2, 2015

Listen to this article

7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: BAUER, KANNE, and WILLIAMS, Circuit Judges

Contract Interpretation – EPA Investigation Costs

No.14-3634

Peoples Gas Light and Coke Company v. Beazer East, Inc.

Indemnification clause agreement entered between appellant and defendant-appellee’s predecessor barred recovery of costs related to environmental investigation.

“Federal courts look to whether a pre-CERCLA indemnification clause is specific enough to include CERCLA liability or general enough to include any and all environmental liability. Beazer East, 34 F.3d at 211. The 1920 agreement contains clear and unequivocal language that Koppers’ obligation to operate the coke plant is assumed “without liability of any character on the part of ‘Koppers’” (emphasis added). This is precisely the kind of broad and general release language that has been construed by courts to encompass CERCLA liability. See E.I. Du Pont de Nemours and Co. v. United States, 365 F.3d1367, 1373 (Fed. Cir. 2004)(holding that an indemnification clause reciting the government’s agreement to hold a contractor “harmless against any loss, expense, or damage” arising out of the performance of certain work and not due to the personal failure of the contractor to exercise good faith covered CERCLA liability); SmithKline Beecham Corp.,89 F.3d at 159–60 (holding that a contract that indemnified the buyer against “all material liabilities relating to the conduct of the business prior to the First Closing Date … which are not assumed by the Buyer” under a different subsection contained the “sort of broad language in pre-CERCLA contracts” that encompasses CERCLA liability); Purolator Prods. Corp. v. Allied Signal, Inc., 772 F. Supp. 124 (W.D. N.Y. 1991) (holding that a provision indemnifying for “all liabilities and obligations … relating to or arising out of the Assets” was expansive enough to include CERCLA liability); American Nat’l Can Co. v. Kerr Glass Mfg. Corp., No. 89-C-0168, 1990 WL 125368, *3 (N.D. Ill. August 22, 1990) (indemnity provision covering “any claim of any kind or nature whatsoever with respect to the business … arising out of the facts or events occurring prior to the Closing Time” was sufficiently broad to encompass future CERCLA liability). It is readily apparent from a plain reading of paragraph 48 that the parties sought to release Koppers from all future claims, including environmental liability, arising out of Koppers’ operation of the plant. Accordingly, we agree with the district court that the language of the 1920 agreement bars Peoples’ claim for contribution from Koppers under CERCLA § 113(f)(3)(B).”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

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

Personal Jurisdiction – Sanctions

No.12-3446; 14-2007; 14-3153

Philos Technologies, Inc. v. Philos & D, Inc.

Contracted executed in Ilinois insufficient to establish minimum contact for personal jurisdiction. Sanctions imposed on appellants improper

“The deal before us is categorically different from the franchise relationship held to confer personal jurisdiction on an out-of-state franchisee in Burger King. The defendant there had “entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida.” Burger King, 471 U.S. at 480. Here, the agreement was neither highly structured nor long-lasting; instead, it was in essence a contract for the provision of goods to a Korean company. The mere fact that Philos Tech produced those goods in Illinois (possibly at the behest of Korean-based PLST) is largely incidental to the jurisdictional analysis and does not automatically confer jurisdiction over foreign defendants who otherwise lack significant connections to Illinois. Cf. Walden, 134 S. Ct. at 1125 (defendant’s actions did not constitute sufficient contacts with forum state “simply because he allegedly directed his conduct at plaintiffs whom he knew had [forum state] connections”).”

“In the absence of a solid reason for condemning the joint venture reflected in P&D’s articles of incorporation as a “sham,” we cannot be confident that Philos Tech was untruthful in its filings about its dealings with P&D and the Parks. On such a murky record, where the legal implications of the parties’ actions are so uncertain, the court was wrong to characterize Philos Tech’s bid for personal jurisdiction in the Northern District of Illinois as unscrupulous or underhanded. Philos Tech’s argument that personal jurisdiction over Defendants existed was not baseless. If Philos Tech had not taken such a passive position at the critical hearing, then there would have been some chance that the district court might have found personal jurisdiction. (Several Korean courts have found that it was a joint venture partner of P&D, after all.) A court should not impose sanctions on a party that loses an argument, as long as the argument was not entirely groundless. See Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 990 F.2d 957, 963 (7th Cir. 1993). Philos Tech had enough support for its contentions related to personal jurisdiction to avoid Rule 11 sanctions.”

Affirmed in part

Vacated in part

Full Text

Civil

7^th Circuit Court of Appeals

Officials: RIPPLE, KANNE, and SYKES, Circuit Judges.

Writ of Habeas Corpus

No. 13-3454

Fedell Cafeey v. Kim Butler

Appellant allegations of misconduct at trial are without merit.

“We agree with the district court’s conclusion and analysis. Iacullo’s statements to Walker would have added little to the reliability analysis under Chambers and nothing to the materiality analysis. So Iacullo’s statements to the police still would have been inadmissible. But Caffey argues that the statements somehow show foul play by the prosecution. Caffey’s argument is sketchy, but he seems to suggest that the prosecution procured Iacullo’s unavailability at trial, and ensured her silence about Kendall’s drug use, in exchange for an agreement not to charge her with murder. As the district court found, there is no evidence of any such agreement. Nor do the facts plausibly suggest the existence of a tacit agreement or understanding. There is nothing untoward about Iacullo’s invocation of her Fifth Amendment privilege; she was, after all, charged with obstruction of jus‐ tice and may have been guilty of worse. And there is nothing suspicious about the fact that Iacullo was not charged with murder. One of the prosecutors testified before the district court that the State considered bringing such charges but decided not to because it could not place Iacullo at the murder scenes. “

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and ROVNER, Circuit Judge, and SPRINGMANN, District Judge.

Title VII – Discrimination – Copyright Infringement

No.14-2402

Gregory Rahn v. Board of Trustees of Northern Illinois University

University failure to hire appellant for tenured position fails to constitute discrimination. Failure to point out specific violations of relevant copyright law fatal to infringement claim.

“To prevail under the direct method, a plaintiff must produce “either direct or circumstantial evidence that would permit a jury to infer that discrimination motivated an adverse employment action.” Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792, 802 (7th Cir. 2014). Direct evidence is evidence of discriminatory intent without resort to inference, such as an admission of discriminatory intent often referred to as “smoking gun” evidence. Ripberger v. Corizon, 773 F.3d 871, 877 (7th Cir. 2014); Hutt v. AbbVie Products, LLC, 757 F.3d 687, 691 (7th Cir. 2014). Here, there is no such direct evidence. Rahn submits that the statement by Vohra regarding hiring a qualified minority candidate over a white one is dispositive direct evidence that he was not hired because of his race. Vohra, however, did not make the decision to eliminate Rahn from consideration. The search committee, applying the factors deemed relevant to the job, eliminated him from consideration. Vohra chose between the two candidates submitted to him by the committee, but Rahn was not in that pairing. Accordingly, the statement by Vohra is not evidence “without resort to inference” that the hiring decision was based on his race.“

“It is impossible to discern the basis for this claim, however, because the plaintiffs fail to cite to a single case in presenting this argument. The only legal citations in this portion of the argument relate to the sections concerning the proper weight that the district court should have given to certain affidavits in considering his copyright claim. As to the legal basis for the copyright claim itself, the plaintiffs neither identify the relevant copyright law nor do they identify the aspects of the law that the defendants allegedly violated. Instead, they devote the entirety of this argument to speculative assertions that Rahn’s forwarding of the power point presentation was somehow coerced, or that the power point was distributed to competitors within NIU”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

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

4^th Amendment – Arrest Warrant – Consent

No. 14-1641

Terez Cook v. Anthony O’Neill

Consent given by fiancé of appellant to enter apartment where appellant was subsequently arrested, along with existence of valid arrest warrant negates appellant’s claims for 4^th amendment violations.

““Probable cause to arrest is an absolute defense to any claim under Section 1983 against police officers for wrongful arrest.” Mustafa v. City of Chicago, 442 F.3d 544, 548 (7th Cir. 2006). And that is when there’s no warrant—here there was one. Once Cook acknowledged to the officers that his street names were “BN” and “Rex,” there was additional probable cause to arrest him for the robbery. As for damages for loss of personal property of Cook seized by the police and not returned, that property was seized after Thede, following Cook’s arrest, had consented to a search of the apartment. As it was her apartment, not Cook’s (he was not a joint tenant), she had authority to consent.”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.

Title VII – Frivolous Appeal

No. 14-1511

Afram Boutros v. Avis Rent A Car System, LLC

Appellants appeal on basis of evidentiary error and denial of post-trial motion held as frivolous.

“The Rule 403 argument is frivolous. Boutros did not object to this evidence on Rule 403 grounds, so the claim is unpreserved. See FED.R.EVID. 103(a);see also Williams v. Dieball, 724 F.3d 957, 961–63 (7th Cir. 2013). Although Rule 103 permits plain-error review of forfeited claims of evidentiary error, in civil cases this review is available only in “extraordinary circumstances.” Williams, 724 F.3d at 963. This requires Boutros to show that “(1) exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage of justice will result” if review is denied. Id. (quoting Estate of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005)). Boutros has neither acknowledged nor made any effort to shoulder this burden.”

Affirmed.

Order to Show Cause Issued

Full Text

Civil

7^th Circuit Court of Appeals

Officials: BAUER, POSNER, and MANION, Circuit Judges.

Cruel & Unusual Punishment –

No. 14-1169

Donald A. Smith v. Thomas Dart

Appellant inadequate food and contaminated water claims improperly dismissed by district court.

“The district court dismissed Smith’s inadequate food claim on the ground that his complaint did not suggest that meals served at the jail are nutritionally deficient or present a substantial danger of harm. Smith’s first letter adds to this claim by alleging, among other things, that his “[f]ood is well below nutritional value.” At the motion to dismiss stage, these six words make all the difference under our precedent. See Antonelli, 81 F.3d at 1432 (holding inmate’s allegation of a “nutritionally deficient diet” sufficient to “state a claim for a violation of the Due Process Clause or the Eighth Amendment”). This claim, therefore, should not have been dismissed.”

“In his first letter, Smith further alleges with respect to this claim that “the [correctional officers] do not drink the water yet we have to and it is a known fact that the water in the jail is polluted and contains high levels of alpha + beta radiation also cyanide and lead.” Certainly, the presence of contaminants such as cyanide and lead may render water unsafe to drink. Thus, accepting Smith’s allegations as true, as we must at this stage, we cannot say Smith’s allegations of contaminated water fail to state a claim upon which relief can be granted.”

Reversed in Part

Affirmed in Part

Full Text

WI Court of Appeals – Civil

Civil

WI Court of Appeals – District I

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

Worker’s Compensation – Benefits

2014AP1635

David Dollar v. Aurora Health Care Metro, Inc.

Appellant David Dollar appeals an order affirming the Labor and Industry Review Commission’s decision denying him worker’s compensation benefits. Dollar argues that the Commission’s decision is not supported by credible and substantial evidence. We affirm.

Decision

Civil

WI Court of Appeals – District III

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

Guardianship – Custody

2014AP2429; 2014AP2428

Susan Frederick v. Andrew Clay

These cases involve the untimely deaths of the parents of two minor children, C.S. and M.S., a circumstance that has led to significant conflict among surviving family members about the children’s rearing. Susan Frederick is the children’s maternal grandmother. After her son-in-law’s and daughter’s deaths only a few years apart, Frederick filed petitions for guardianship of C.S. and M.S. The children’s maternal grandfather, Andrew Clay, and their paternal grandmother, Janice S., also filed guardianship petitions and, in the alternative, sought visitation rights to the children pursuant to WIS. STAT. § 54.56. After a three-day trial, the circuit court appointed Frederick guardian, but ordered more visitation, or less restrictive visitation, with Janice and Clay than Frederick wanted. Frederick appeals, arguing the “expansive” visitation orders entered in these cases were contrary to both the United States Constitution and provisions within WIS. STAT. ch. 54. Frederick contends that all of these authorities require that her opinions as guardian, as well as the opinions of the children’s deceased mother as testified to by others at trial, regarding visitation be given presumptive force. Frederick also argues the circuit court exceeded its statutory authority to order “reasonable visitation” and erroneously exercised its discretion by ordering unsupervised, overnight visitation with Clay. We need not decide whether the circuit court was required to presume Frederick’s visitation proposal was in the children’s best interests. Regardless of whether such a requirement exists, the court applied such a presumption in these cases, because it followed the procedure proposed by Frederick’s attorney, and because it clearly used Frederick’s visitation proposal as the template for its ultimate visitation determinations. We further conclude the circuit court did not exceed its statutory authority by entering the visitation orders at issue, nor did the court erroneously exercise its discretion with respect to Clay’s visitation. Accordingly, we affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District III

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

First Amendment – Dismissal of Claims – Court Error

2014AP2479

Eric N. Soderlund v. David B. Zibolski

Eric Soderlund appeals an order that granted David Zibolski’s motion for judgment on the pleadings and dismissed Soderlund’s claims. Soderlund argues the circuit court erroneously determined he failed to state a retaliation claim under 42 U.S.C. § 1983 (2012) for violation of his First Amendment rights. We hold: (1) Soderlund failed to plead a claim against Zibolski in his official capacity; (2) based on our adoption of the federal incorporation-by-reference doctrine, the circuit court properly considered a document referenced in the complaint without transforming Zibolski’s motion into one for summary judgment; and (3) Soderlund’s speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen. Accordingly, we affirm.

Decision

Affirmed – Recommended for Publication.

Civil

WI Court of Appeals – District II

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

Municipalities – Contract

2014AP1576

City of Menasha v. Waverly Sanitary District

The City of Menasha, the Town of Harrison and the Waverly Sanitary District entered into an intermunicipal agreement that neither the City nor the Town “shall make any attempt to dissolve and take over” the sanitary district without the others’ consent. Part of the territory in the Town incorporated into the Village of Harrison, and now, the City seeks a declaration that it has the right to take over the Waverly Sanitary District, despite its agreement. We conclude that the agreement to opt out of the statutory scheme governing transfer of ownership and control of a town sanitary district when part of a territory served by the district incorporates, is expressly authorized under WIS. STAT. § 60.79(2) (2013-14)1 and affirm the circuit court’s dismissal of the City’s complaint for declaratory judgment asserting its right to ownership and control the town sanitary district

Decision

Civil

WI Court of Appeals – District II

Officials: NEUBAUER, C.J.

CH. 51 Commitment – Insufficiency of Evidence

2015AP504

Kenosha County v. C.M.M.

C.M.M. appeals the circuit court’s order committing her under WIS. STAT. ch. 51 and the circuit court’s order for involuntary administration of medication.  C.M.M. argues that there was insufficient evidence to find her dangerous pursuant to WIS. STAT. § 51.20(1)(a)2.d. We disagree and affirm.

Decision

Civil

WI Court of Appeals – District II

Officials: GUNDRUM, J.

Attorney Fees – Frivolous Suit

2015AP721

John M. Kelly v. Deniis Krizan

Dennis Krizan appeals pro se from a circuit court judgment ordering Krizan to pay John M. Kelly, Attorney at Law, LLC (Kelly2 ) $1000, plus statutory costs, under the equitable doctrine of quantum meruit, for legal services Kelly provided Krizan. Kelly moves on appeal for a determination that Krizan’s appeal is frivolous, and Kelly seeks related costs and fees. For the following reasons, we affirm the judgment of the circuit court, but also conclude that Krizan’s appeal is not frivolous.

Decision

Civil

WI Court of Appeals – District II

Officials: REILLY, P.J.

Ch. 51 Commitment – Insufficiency of Evidence

2015AP1469-FT

Ozaukee County v. M.L.G.

M.L.G. appeals orders for his mental commitment and involuntary medication on the grounds that there is insufficient evidence that he is dangerous and that he is substantially incapable of making an informed choice about his medication. We affirm.

Decision

Civil

WI Court of Appeals – District IV

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

Medical Malpractice – Summary Judgment

2014AP939

Beyonce Ortega De La Cruz v. St. Mary’s Hospital, Inc.

In this medical malpractice case, Beyonce Ortega De La Cruz brought suit against St. Mary’s Hospital, Inc., Dr. Randall Brown, M.D., Dr. Caitlin D’Agata, M.D., the Injured Patients and Families Compensation Fund (the Fund), and the Medical Protective Company (collectively, the respondents), seeking to recover for injuries she allegedly sustained during delivery. Beyonce was unsuccessful at trial and now appeals summary judgments and judgments of the circuit court entered on jury verdicts. Beyonce’s numerous arguments on appeal are set forth in detail below.

Decision

Civil

WI Court of Appeals – District II

Officials: Higginbotham, Sherman, and Blanchard JJ.

Money Judgment – Debt Collection – Garnishment

2014AP2155

Orlando Residence, Ltd. V. Kenneth E. Nelson

This case arises from Orlando Residence’s efforts to collect on a federal court money judgment against Kenneth Nelson. As part of its collection efforts, Orlando Residence pursues garnishment against the employer of Kenneth’s wife, Susan, for collection on the debt as marital property. Susan opposes garnishment, on the grounds that the predecessor creditor on the debt now collectable by Orlando Residence had notice, at the time the debt was created, of a marital property agreement between Kenneth and Susan that declared Susan’s income and acquisitions to be her individual property, free from the claims of Kenneth’s creditors. Susan appeals the order of the circuit court requiring the employer to comply with the garnishment. For the following reasons, we affirm.

Decision

Civil

WI Court of Appeals – District IV

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

Non-Profit – Tax Exemption

2015AP429

SSM Health Care of Wisconsin, Inc. v. City of Fitchburg

SSM Health Care of Wisconsin, Inc., which owns and operates St. Mary’s Hospital, sought a refund for property taxes levied by the City of Fitchburg against all of SSM’s personal property that was located in a renal center and a sleep center owned and operated by SSM in Fitchburg during the 2009, 2010, and 2011 tax years. On summary judgment, the circuit court held that some of SSM’s personal property in the two centers is exempt from tax under WIS. STAT. § 70.11(4m)(a) (2013-14), the non-profit hospital tax exemption, and that SSM is entitled to a refund for that tax-exempt personal property. The City appeals and argues that the circuit court erred in granting summary judgment in favor of SSM for two reasons: (1) the non-profit hospital tax exemption under WIS. STAT. § 70.11(4m) does not apply here because the renal center and the sleep center are each used as a “doctor’s office” and, therefore, all of the personal property located in each center is taxable; and (2) SSM initially sought tax exemption for “all” personal property in each center and, according to the City, SSM cannot subsequently “convert a request for a total tax exemption into a partial exemption in the midst of litigation.” For the reasons set forth below, we reject the City’s arguments and affirm.

Decision

WI Court of Appeals – Criminal

Criminal

WI Court of Appeals – District III

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

Constitutionality of Statute – Wis. Stat. §948.14

2014AP2084-CR

State of Wisconsin v. Christopher J. Oatman

Christopher Oatman appeals a judgment of conviction for eight counts of intentional photographing of a minor by a registered sex offender without consent, contrary to WIS. STAT. § 948.14.1 Oatman argues the statute is both unconstitutional as applied and on its face due to overbreadth. Because § 948.14 is unconstitutionally overbroad, we reverse in part and remand with directions to dismiss all such charges against Oatman.

Decision

Criminal

WI Court of Appeals – District I

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

Motion to Suppress – Denial of Motion

2014AP2094-CR

State of Wisconsin v. Anthony Christopher Moore

Anthony Christopher Moore appeals from a judgment, entered on a jury verdict, for one count of being a felon in possession of a firearm and one count of endangering safety by intentionally pointing a firearm at a law enforcement officer, both as a repeater. See WIS. STAT. §§ 941.29(2)(a), 941.20(1m)(b), and 939.62(1)(b) (2013-14). The sole issue on appeal is the trial court’s pretrial denial of Moore’s suppression motion. Moore argues that he was unconstitutionally seized and that all evidence obtained after that unconstitutional seizure should be suppressed. We reject his arguments and affirm the judgment.

Decision

Criminal

WI Court of Appeals – District III

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

Court Error – Abuse of Discretion

2014AP2275-CR

State of Wisconsin v. Richard D. Guite, Sr.

Richard Guite, Sr., appeals a judgment, entered upon a jury’s verdict, convicting him of first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1)(b). Guite also appeals the order denying his postconviction motion for a new trial. Guite argues the trial court erroneously exercised its discretion by admitting other acts evidence and by denying Guite’s postconviction motion for a new trial based on newly discovered evidence. Alternatively, Guite urges this court to exercise its discretionary power of reversal pursuant to WIS. STAT. § 752.35 because justice has miscarried and the real controversy has not been fully tried. We reject Guite’s arguments and affirm the judgment and order.

Decision

Criminal

WI Court of Appeals – District I

Officials: Kessler, Brennan and Bradley, JJ.

Ineffective assistance of counsel

2014AP2598-CR

State of Wisconsin v. Omega Charles Merchant

Omega Charles Merchant appeals from a judgment of conviction entered after a jury found him guilty of three counts of second-degree sexual assault of a child under the age of sixteen. See WIS. STAT. § 948.02(2) (2011-12). Merchant also appeals from an order denying his postconviction motion without a hearing. Merchant claims that his trial counsel was ineffective for failing to object to testimony describing Merchant’s reaction to police prior to his arrest. Alternatively, if the testimony was admissible, Merchant claims his trial counsel was ineffective for failing to present evidence that Merchant had reasons independent from the allegations in this case for his reaction to the police. We disagree and therefore affirm.

Decision

Affirmed. Per Curiam.

Criminal

WI Court of Appeals – District I

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

Pleas & Sentencing – Motion to Withdraw

2014AP2686

State of Wisconsin v.  Nicholas G. Mistrioty

Nicholas G. Mistrioty, pro se, appeals from an order of the circuit court that denied without a hearing his motion to withdraw his plea. Mistrioty contends the circuit court failed to apply the appropriate legal standard when evaluating his motion. Because the result is correct, we affirm.

Decision

Criminal

WI Court of Appeals – District III

Officials: STARK, P.J.

OWI – Reasonable Suspicion

2015AP462

County of Shawano v. Kory V. Ambroziak

Kory Ambroziak appeals a judgment convicting him of refusal to take a chemical breath test after an arrest for operating a motor vehicle while intoxicated (OWI). Ambroziak argues the deputy did not have reasonable suspicion to extend the traffic stop to request field sobriety testing. We disagree and affirm.

Decision

Criminal

WI Court of Appeals – District III

Officials: SEIDL, J.

OWI/PAC – Court Error – Jury Instruction

2015AP770

Little Chute Village Municipal Court v. Deniis M. Falkosky

Dennis Falkosky appeals from a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration (PAC), first offense, entered by the circuit court after a jury trial. Falkosky argues the court erroneously instructed the jury and that he was prejudiced by that error. We disagree and affirm the judgment.

Decision