Weekly Case Digests — Oct. 5-Oct. 9, 2015

Listen to this article

7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

Constitutionality of City Ordinance

No. 14-3678 Discount Inn, Inc. v. City of Chicago

Difficulty in complying with city ordinance not grounds to deem ordinance unconstitutional.

“We do worry that compliance with the weed ordinance may be difficult. We are not reassured by the City’s statement that a property owner “can use a ruler to determine whether a plant is more or less than ten inches tall and can likewise use simple arithmetic to determine the average height of the plants on his property.” What if there are a thousand plants, and therefore a thousand measurements to be made and the results then averaged? But difficulty of compliance is not a persuasive ground for deeming the ordinance unconstitutional.”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

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

Insurance – Ambiguous Terms – Denial of Coverage

No. 14-1805 Defender Security Company v. First Mercury Insurance Company

The term “publication” not ambiguous as utilized in insurance policy

“Under Indiana law, a “failure to define terms in an insurance policy does not necessarily make it ambiguous.” Am. Family Life Assurance Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind. Ct. App. 1998) (citation omitted). And “[a]n ambiguity does not exist simply because a controversy exists between the parties, each favoring an interpretation contrary to the other.” Newnam Mfg., Inc. v. Transcon. Ins. Co., 871 N.E.2d 396, 401 (Ind. Ct. App. 2007) (citations omitted). Rather, “an ambiguity exists where the provision is susceptible to more than one reasonable interpretation.” Russell, 700 N.E.2d at 1177. Where there is ambiguity, “insurance policies are to be construed strictly against the insurer.” Newnam, 871 N.E.2d at 401 (citation omitted) Here, the parties each favor a specific interpretation of the term “publication.” Defender argues that the term publication is susceptible to its definition, and it points to a decision of the United States District Court of the Southern District of Ohio as supporting its view. In that case, under similar facts, the district court concluded that publication occurred at the moment that the conversation was disseminated to the recording device. See Encore Receivable Mgmt., Inc. v. Ace Prop. and Cas. Ins. Co., No. 1:12-cv-297, 2013 WL 3354571, at *9 (S.D. Oh. Jul. 3, 2013), vacated on May 19, 2014. But, as noted, Encore was vacated while on appeal. Id. Defender cites to no other cases that establish its view of publication. For the reasons we described above, including Indiana’s definition of publication in the defamation context, we conclude that the term publication was not susceptible to Defender’s interpretation. It was not ambiguous as used in the Policy”

Affirmed

Civil

7^th Circuit Court of Appeals

Officials: EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.

ERISA

No. 15-1274 ;14-3174; 14-2322 Pennsylvania Chiropractic Association v. Independence Hospital

Service provider not a “beneficiary” under ERISA & Insurer not required to utilize fee-for-service system in paying providers.

“The Second Circuit recently held that a network contract between a medical provider and an insurer does not make that provider a “beneficiary” under ERISA. See Rojas v. CIGNA Health & Life Insurance Co., 793 F.3d 253 (2d Cir. 2015). Plaintiffs insist that Rojas contradicts this circuit’s approach, established in Kennedy, but we have explained why Kennedy and similar opinions do not support plaintiffs’ position. Rojas concludes that every circuit that has addressed the subject has distinguished between providers’ status as assignees of particular claims to benefits and providers’ status as voluntary members of a network established by an insurer. See 793 F.3d at 258, discussing Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc., 770 F.3d 1282, 1289 (9th Cir. 2014); Hobbs v. Blue Cross Blue Shield of Alabama, 276 F.3d 1236, 1241 (11th Cir. 2001); and Ward v. Alternative Health Delivery Systems, Inc., 261 F.3d 624, 627 (6th Cir. 2001). The language of those other decisions is not as clean as the Second Circuit’s—and the Second Circuit’s use of “standing” as a synonym for statutory coverage itself leaves something to be desired—but our review of the decisions in other circuits leads us to agree with Rojas that the distinction between assignment of particular claims and status as an in network provider is supported by the case law. And, more to the point, it is supported by the language of ERISA. Nos. 14-2322 et al.”

Reversed

Full Text

Civil

7^th Circuit Court of Appeals

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Agency – Union Investigation

No. 14-3729; 14-3528 NLRB v. Caterpillar, Inc.

Company re-enactment video not sufficient replacement for on-site investigation of employee death.

“Earlier we cited the Second Circuit’s decision in the Hercules case. The Labor Board’s decision upheld in that case contains some pungent observations that are pertinent to the present one: “In no sense then, is there merit to Respondent’s argument that whatever rights the Union has to access are to be nullified because OSHA conducted an investigation.” Hercules Inc., 281 N.L.R.B. 961, 964 (1986). “It defies all reason to maintain that the cause of the accident could be analyzed without a physical examination of the premises … . Although witness reports, production reports, and operating manuals no doubt are quite valuable in compiling a comprehensive investigation, these are independent of, and supplementary to, a site inspection.” Id. at 967. “The potential for controlling the results by controlling the investigator simply is so obvious that we need not dwell on the claim that Respondent’s air sampling reports are a viable alternative to the Union’s independent inspection. It is elementary that here, as with the accident investigation, a verifiable, fair, accurate, and complete investigation necessitates the Union having access to conduct its own air monitoring. The need for such live study by the Union is compelling.” Id. at 968. “The Union is not obligated to rely solely on reports and information obtained by others. It is entitled to its own independent examination of the facilities and this entitlement is unrelated to the Respondent’s contention that its own studies and examinations are performed with such accuracy and expertise that no independent verification is required. Such position amounts to an absolute, closed-door policy and renders irrelevant the balancing test that is required to be done. Moreover, it would appear that the circumstances create a presumption not only of relevancy and need, but of access as well.” Id. at 970.”

Company petition to review denied

Full Text

Civil

7^th Circuit Court of Appeals

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

Cruel & Unusual Punishment

No. 14-2489 Ronald Beal v. Brian Foster

7^th Circuit Court of Appeals – Criminal

Criminal

7^th Circuit Court of Appeals

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

Joinder –  Removal from Courtroom

No. 13-2982

United States of America v. Dahveed Dean

No. 13-2078

United States of America v. Terrance P. Daniels

Appellants not prejudiced by joinder of cases. Appellant conduct equated to surrender of rights to be present during court proceedings.

“A jury can easily understand that evidence related to the August 25 robbery does not establish guilt for the August 2 or December 20 robbery. In fact, the jury’s acquittal of Dean of the gun charge in Count VI shows that the jury methodically considered the evidence for each count and charge separately. 1 In response Dean and Daniels point to a statement the district court made during trial that the remaining evidence that day would apply to the entire case, when the evidence only applied to the December 20 bank robbery charges against Dean. Again, some additional facts are needed: Prior to the start of trial, Dean’s attorney had asked the district court to instruct the jury that certain evidence was only related to the August 25 robbery charges against Daniels. “

“When Daniels stopped rambling, the district court explained to Daniels that he had a constitutional right to be present during the trial, but that with his conduct he was surrendering that right. The district court then gave him one last opportunity to assure the court that he would “obey the Court’s rules and not disrupt this Court’s proceedings no matter what [he] believe[d] [his] sovereign status,quote/unquote,is.”The district court then said: “What I’m going to ask you one more time: Are you able and do you promise to not disrupt this trial?” Daniels responded again with his nonsensical ramblings: “I conditionally accept your offer upon proof of claim—” At that point the district court barred Daniels from trial, but stressed that “when he obeys this Court’s orders and raises his hand, is sworn in and promises this Court that he will not be disruptive and not cause an unfair trial for his codefendant Mr. Dean and to the government, then he will be allowed to return to the courtroom.””

Affirmed

Full Text

WI Supreme Court

WI Supreme Court

Disciplinary Proceeding

2014AP2476-D OLR v. Phillip J. Ramthun

Attorney license suspended for failure to comply with OLR investigation, pay bar dues and adhere to CLE requirement.

“The misconduct in this case is extensive. The amended complaint alleges, and the referee determined, that Attorney Ramthun committed at least 46 separate instances of professional misconduct in some 13 client matters between 2007 and 2014. Given the breadth and scope of the misconduct and the fact that the factual allegations were not seriously challenged by Attorney Ramthun, we will only summarize the client matters and the referee’s extensive findings of misconduct.”

License Suspended for two years

Per Curiam

WI Supreme Court

Disciplinary Proceeding

2013AP2235-D OLR v. Kristy Joi Downing

Finding of incompetency leads to attorney suspension of license.

“On May 16, 2013, the State of Michigan Attorney Discipline Board ordered that Attorney Downing’s Michigan law license be transferred to inactive status for an indefinite period of time due to a finding of incompetency entered by a Michigan judge. Attorney Downing failed to notify the Office of Lawyer Regulation (OLR) of the Michigan order within 20 days of the effective date.”

Attorney license suspended

Per Curiam

Full Text

WI Court of Appeals – Civil

Civil

WI Court of Appeals – District III

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

Franchise Law – Arbitration Process

2014AP1849 Building Werks Holdings, LLC v. Paul Davis Resotration, Inc.

We conclude Building Werks’ concerns about the fairness of the arbitration process are insufficient to permit anticipatory judicial intervention. Building Werks must submit its claims in this lawsuit to arbitration in accordance with the franchise agreements before seeking to vacate any award as tainted by fraud, bias or a manifest disregard of the law. However, because Building Werks’ unconscionability claim was directed solely at the validity of the arbitration provisions, and not the entire franchise agreements, the case law dictates it was a proper subject for judicial resolution. We conclude the circuit court properly granted summary judgment on the unconscionability claim because, as a matter of law, Building Werks has not demonstrated procedural or substantive unconscionability. Furthermore, the circuit court acted within its discretion in not compelling additional discovery with respect to the unconscionability claim. Accordingly, we affirm.

Decision

Civil

WI Court of Appeals – District III

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

Breach of Contract – Damages

2014AP2492 Don Frazier v. CJB Rentals, LLC

Don Frazier appeals judgments and an order granting CJB Rentals, LLC, strict foreclosure on a land contract and awarding $1 nominal damages to Frazier in his breach of contract action against CJB Rentals and Christopher J. Bauer. After a trial to the court, the circuit court initially ruled in Frazier’s favor on the breach of contract action and set the matter for further proceedings to establish Frazier’s damages. On reconsideration, the court concluded it lacked authority to bifurcate liability and damages under WIS. STAT. § 805.05(2) (2013-14). Concluding Frazier failed to prove damages, the court awarded Frazier nominal damages and granted strict foreclosure on the land contract. Because we conclude Frazier adequately proved damages and, to prevent Bauer’s unjust enrichment, should have been awarded title to the property, we reverse the judgments and order and remand the matter with directions.

Decision

Civil

WI Court of Appeals – District III

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

Paternity Petition

2014AP2656 Douglas L. V. Arika B.

Douglas L. appeals an order dismissing, without prejudice, his petition to determine paternity. Douglas argues the circuit court erroneously concluded that a paternity determination was not in the best interest of the child. Arika B. cross-appeals, arguing the petition should have been dismissed with prejudice. We reject Arika’s argument and conclude the circuit court was authorized to dismiss the petition without prejudice. However, the court set forth no factual findings underlying its decision. Because the WIS. STAT. § 767.863(1m) best-interest-of-the-child determination is subject to de novo review, we are unable to address Douglas’s argument. Accordingly, we affirm in part; reverse in part, and remand with directions to make detailed factual findings.

Decision

Civil

WI Court of Appeals – District I

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

Sufficiency of Evidence – Injunction

2015AP77 Alan L. Keltner v. Daniel Joseph Miller

Daniel Joseph Miller appeals from an order granting Alan L. Keltner a harassment injunction against Miller. Miller challenges the sufficiency of the evidence and the circuit court’s findings of fact, as well as its conclusion that “Miller’s conduct constituted harassment that could be properly enjoined under [WIS. STAT.] § 813.125” (2013-14). Miller also argues that the injunction “effectively prevents [Miller] from exercising his First Amendment rights,” “constitutes an impermissible prior restraint on speech,” and is “excessively broad.” We reject Miller’s arguments and affirm the order.

Decision

Civil

WI Court of Appeals – I

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

Receivership – Real Estate – Fixtures

2015AP143 Drexel Commercial Limited Partnership v. Rebecca R. DeMarb

Bouraxis, Ltd. appeals from an order approving the receivership sale of real estate, including the fixtures in the building, owned by Riverwood Village, LLC, which Bouraxis had been operating as an Omega restaurant. Bouraxis argues the “fixtures” were actually restaurant equipment or trade fixtures that it owned and should have been allowed to remove before the sale, or be paid its monetary value. Because the trial court did not err in finding that the items at issue were fixtures, we affirm.

Decision

Civil

WI Court of Appeals – District III

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

Breach of Fiduciary Duty – Court Error

2014AP2246 White Knight Commercial Funding, LLC v. Michael G. Trewin

Michael Trewin appeals a judgment granting Darryel and Mary Hearley rescission of a 2005 conveyance of real property to Trewin based on Trewin’s breach of his fiduciary duties as the Hearleys’ attorney. We agree with Trewin that the circuit court erred when it determined the applicable statute of limitations for the Hearleys’ claim was WIS. STAT. § 893.33, which establishes a thirty-year limitations period for actions affecting real property. The substance of the Hearleys’ allegations was that Trewin breached his fiduciary duties; accordingly, we conclude WIS. STAT. § 893.57 is the applicable statute of limitations, which establishes either a two- or three-year limitations period for intentional torts. We therefore reverse the judgment, but we remand to the circuit court to determine whether the applicable limitations period—whether two or three years—has not yet expired, or should not be enforced, by virtue of the discovery rule, the continuing violation theory, or equitable estoppel. The judgment also dismissed Trewin’s counterclaims for eviction and replevin and awarded the Hearleys their reasonable attorney’s fees. Trewin asserts both of these aspects of the judgment were erroneous. We affirm the dismissal of Trewin’s counterclaim for replevin, but reverse the dismissal of Trewin’s counterclaim for eviction and remand for further proceedings. We also reverse the circuit court’s award of attorney’s fees.

Decision

Civil

WI Court of Appeals – District IV

Officials: KLOPPENBURG, P.J.

Ch. 51 Commitment

2015AP799 Dane County v. T.B.

T. B. appeals an order of commitment, an order for involuntary medication and treatment, and an order denying postdisposition relief. T. B. argues that the circuit court erred in denying his postdisposition motion to vacate the order for commitment because, according to T. B., the circuit court “lost competency to adjudicate [his] case when it failed to make a verbatim record of [his] probable cause hearing, as mandated by WIS. STAT. § 51.20(5),” and the issue is not moot. For the reasons set forth below, I reject T. B.’s argument and affirm the orders.

Decision

Civil

WI Court of Appeals – III

Officials: HRUZ, J.

Termination of Parental Rights

2015AP1405; 2015AP1406 A.N. v. F.S.

F.S. appeals orders terminating his parental rights to his two minor children, B.S. and E.S. He asserts the circuit court lost competency to proceed to the dispositional phase of the termination proceedings because the court failed to explicitly state that it was finding F.S. unfit after granting the petitioner, A.N., partial summary judgment in the grounds phase. Under the applicable statutes and case law, a circuit court must find the parent unfit if it concludes grounds for termination have been established. Because the circuit court’s duty to find a parent unfit necessarily flows from the conclusion that sufficient grounds for termination exist, we conclude the circuit court’s implicit finding of unfitness was sufficient in this case. Accordingly, we affirm the orders.

Decision

WI Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

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

Ineffective Assistance of Counsel

2013AP918 State of Wisconsin v. Darryl P. Benson

Appellant Darryl P. Benson appeals an order denying his postconviction motion. He argues: (1) he received ineffective assistance of appellate counsel because his lawyer did not argue that the circuit court erred when it answered a question from the jury; (2) he received ineffective assistance of appellate counsel because his lawyer did not argue that his trial counsel ineffectively represented him; (3) he received ineffective assistance of trial counsel because his trial lawyer did not object to the circuit court’s response to the jury question; and (4) the circuit court should not have denied his postconviction motion without an evidentiary hearing. We affirm

Decision

Criminal

WI Court of Appeals – District I

Officials: Kessler, Brennan and Bradley, JJ

2014AP2297-CR; 2014AP2296-CR State of Wisconsin v. Jovan T. Mull

Jovan T. Mull, pro se, appeals orders denying his motion for modification of the sentences he received for crimes he committed in 1999. The circuit court concluded that an alleged change in parole policy does not constitute a new factor warranting sentencing relief. We agree and affirm.

Decision

Criminal

WI Court of Appeals – District I

Officials: Kessler, Brennan and Bradley, JJ.

Sentencing – Sufficiency of Evidence

2014AP2477-CR State of Wisconsin v. Abraham Rodriguez

Abraham Rodriguez appeals from a judgment of conviction and from an order denying his postconviction motion. He raises arguments regarding his charges, sufficiency of the evidence, and his belief he should be resentenced. We affirm.

Decision

Criminal

WI Court of Appeals – District I

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

Sufficiency of Evidence

2014AP2675-CR State of Wisconsin v. Joshua J. Feltz

Joshua J. Feltz appeals from a judgment entered after a jury found him guilty of two counts of repeated first-degree sexual assault of the same child, contrary to WIS. STAT. § 948.025(1)(a) (2013-14)1 , and from an order denying his postconviction motion. Feltz argues: (1) the evidence was insufficient to support a conviction on the second count; (2) the police officer’s testimony that the victim appeared to be telling the truth violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984); and (3) the prosecutor’s closing argument referencing the victim’s religious schooling improperly enhanced her credibility. We affirm.

Decision

Criminal

WI Court of Appeals – District III

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

Pleas & Sentencing – Plea Withdrawal

2014AP2488 State of Wisconsin v. Timothy L. Finley, Jr.

On appeal, Finley asserts the circuit court erroneously concluded the State met its burden of showing that his plea was knowing, intelligent, and voluntary at the time it was entered. The State has abandoned the argument that it satisfied its burden, and the State also does not directly respond to Finley’s argument, and we deem the issue conceded. Instead, the State urges us to apply an alternative standard for plea withdrawal. Under the State’s proposed standard, a defendant whose plea was not entered knowingly, intelligently, and voluntarily because the maximum possible penalty was more than he or she understood, is not entitled to withdraw the plea if the defendant’s sentence is commuted—as was done here—to an amount equal to or less than the maximum sentence the defendant believed he or she could receive at the time of the plea. The State’s proposed standard appears contrary to existing case law, which we are bound to follow. We therefore reject the State’s argument, reverse the judgment and order, and remand to the circuit court for further proceedings with instructions to grant Finley’s postconviction motion for plea withdrawal.

Decision

Criminal

WI Court of Appeals – District II

Officials: NEUBAUER, C.J.

Motion to Suppress

2015AP597-CR State of Wisconsin v. John C. Martin

John Martin appeals from a judgment of conviction for possession of tetrahydrocannabinols (marijuana) in violation of WIS. STAT. § 961.41(3g)(e). Martin moved to suppress the evidence, arguing that reasonable suspicion to justify the police detention of him was lacking. The circuit court denied the motion to suppress, concluding that the police had reasonable suspicion to detain him. We agree and affirm Martin’s subsequent conviction.

Decision

Criminal

WI Court of Appeals – District I

Officials: Lundsten, Sherman and Blanchard, JJ.

Ineffective Assistance of Counsel

2013AP956-CR State of Wisconsin v. James R. Washington

James Washington appeals a judgment of conviction for four counts of first-degree intentional homicide, as party to a crime, and an order denying his motion for postconviction relief. Washington contends that he is entitled to a new trial because: (1) the jury during voir dire was given information that he claims made it more likely for them to convict him; (2) he received ineffective assistance of trial counsel; (3) a key witness recanted his testimony, which Washington asserts constitutes newly-discovered evidence warranting a new trial; and (4) the real controversy was not tried. For the reasons discussed below, we affirm.

Decision

Criminal

WI Court of Appeals – District IV

Officials: Lundsten, Higginbotham and Sherman, JJ.

Pleas & Sentencing

2013AP1237-CR State of Wisconsin v. Gerald O. Orton

Gerald Orton appeals a judgment of conviction and orders denying his postconviction motions. We affirm.

Decision

Criminal

WI Court of Appeals – District IV

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

Sufficiency of Evidence – Ineffective Assistance of Counsel

2014AP433-CR State of Wisconsin v. Patrick J. Gage

Patrick Gage appeals a judgment convicting him of two counts of first-degree sexual assault of a child under thirteen years of age and one count of second-degree sexual assault of a child under the age of sixteen and an order denying him postconviction relief. He was acquitted on another count involving the same victim and two additional counts involving a different child. Gage challenges the sufficiency of the evidence to support the verdicts; raises three claims of ineffective assistance of counsel; requests a new trial in the interest of justice; and, alternatively, seeks resentencing based upon a new factor, undue reliance on a single factor, or a determination that his sentences were unduly harsh. For the reasons set forth below, we reject each of these claims and affirm the judgment of conviction and postconviction order. We incorporate the relevant facts and standard of review in our discussion of each issue.

Decision

Criminal

WI Court of Appeals – District IV

Officials: BLANCHARD, J.

Fines & Expenses

2015AP863-CR State of Wisconsin v. Barbara J. Thiry

Five horses owned by Barbara Thiry were seized by law enforcement officers and held as part of an investigation of alleged mistreatment. Thiry was then charged with fifteen misdemeanor counts of crimes involving animals. However, the State dismissed seven counts at trial, and the jury acquitted her on seven additional counts. This left a finding of guilt and a conviction on a single misdemeanor offense: intentionally failing to provide food for one of the five horses, contrary to WIS. STAT. § 951.13(1), as penalized under WIS. STAT. § 951.18(1). Thiry appeals one aspect of the judgment of conviction. She challenges a circuit court order assessing expenses to her, specifically requiring her to reimburse Waupaca County for expenses arising from the investigation that were generated for the county related to all five of the seized horses, pursuant to WIS. STAT. § 173.24, not just the expenses related to the one horse that Thiry was convicted of mistreating. Based on a plain language interpretation of § 173.24(3), I reverse the order of the circuit court and remand with directions.

Decision

Criminal

WI Court of Appeals – District I

Officials: KLOPPENBURG, P.J.

Termination of Parental Rights

2105AP1298; 2015AP1299; 2015AP1300; State of Wisconsin v. E.P.

E. P. appeals from orders terminating his parental rights to his three adopted children: T. P. (child 1), T. P. (child 2), and J. P. (child 3). A jury found as grounds for termination of E. P.’s parental rights that the children were in continuing need of protection or services under WIS. STAT. § 48.415(2).E. P. argues that the orders should be reversed and the petitions to terminate parental rights dismissed because, according to E. P., the case “prematurely” proceeded on the grounds of continuing need of protection or services (continuing CHIPS) and, therefore, violated his right to due process. Alternatively, E. P. argues he is entitled to a new trial in the interest of justice because, according to E. P., there was an “unfair presentation of some evidence.” For the reasons set forth below, I reject E. P.’s arguments and affirm

Decision