Weekly Case Digests — Nov. 9-13, 2015

Listen to this article

Wisconsin Court of Appeals – Civil

Civil

WI Court of Appeals – District III

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

Foreclosure – Summary Judgment

2014AP1272 Audrey Gallow v. Bert F. Roehl

Bert Roehl appeals a summary judgment of foreclosure granted in favor of Audrey and Robert Gallow. We affirm.

Civil

WI Court of Appeals – District II

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

Determination of Parentage

2015AP219-AC S.R. v. Circuit Court for Winnebago County

S.R. and C.L. appeal from a circuit court order denying their “Joint Petition for Determination of Parentage.” For the following reasons, we affirm.

Civil

WI Court of Appeals – District IV

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

General Appeal –  Certiorari Review

2014AP852 Fredrick Jones v. William Pollard

Tingia Wheeler appeals a circuit court order that affirmed a prison disciplinary decision on certiorari review. He raises seven issues on appeal. We reject each of Wheeler’s arguments and affirm for the reasons explained below.

Civil

WI Court of Appeals – District IV

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

Rezoning of Property – Constitutionality

2014AP1914 McKee Family I, LLC v. City of Fitchburg

McKee Family I, LLC, challenges a decision of the City of Fitchburg, Wisconsin, to rezone property that McKee owns. McKee argues that Fitchburg was not entitled to rezone this property because, even though McKee had not yet applied for a building permit to develop the property before Fitchburg approved the challenged rezoning, McKee had obtained a vested right in the preexisting zoning classification and therefore the rezoning constitutes a taking. McKee contends that it obtained this vested right by getting as far as it did in the City’s development planning process. The circuit court granted summary judgment to Fitchburg, dismissing McKee’s claims. In addition to the argument based on an asserted vested right at the time of the rezoning, McKee raised additional takings arguments in its summary judgment submissions. As pertinent to the preserved issues that McKee raises on appeal, the court concluded that McKee did not have a vested right in the preexisting zoning classification and that its constitutional claims fail as a result. McKee appeals. For the reasons set forth below, we affirm the judgment of the circuit court.

Affirmed.

Criminal

WI Court of Appeals – District I

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

Denial of Postconviction Motion

2014AP1564 State of Wisconsin v. Timothy Eric Gibson

Timothy Eric Gibson, pro se, appeals from an order of the circuit court that denied his postconviction motion without a hearing. As the issue has already been litigated in a prior appeal, we affirm.

Affirmed. Per Curiam.

Full Text

Criminal

WI Court of Appeals – District III

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

Delinquency – Sexual Assault – Constitutionality

2014AP2419 State v. Colton M.

Colton M. appeals a dispositional order adjudicating him delinquent for repeated sexual assault of the same child in violation of WIS. STAT. § 948.025(1)(e). Colton argues § 948.025(1)(e) is unconstitutional as applied to him, a child under the age of sixteen, and therefore the delinquency finding against him should be vacated. We disagree and affirm the order.

Affirmed.

Full Text

Criminal

WI Court of Appeals – District II

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

Ineffective Assistance of Counsel

2014AP290 State of Wisconsin v. Ronnie L. Famous

Ronnie L. Famous appeals from an order denying his WIS. STAT. § 974.06 (2013-14) postconviction motion for a new trial on grounds including ineffective assistance of counsel, newly discovered evidence, and failure to try the controversy fully. We reject Famous’s contentions with the exception that, as the State concedes, he is entitled to an evidentiary hearing on whether postconviction counsel was ineffective for failing to raise the ineffective assistance of trial counsel who did not call two witnesses to testify on Famous’s behalf. Thus, we reverse in part and remand for an evidentiary hearing on that claim, but otherwise affirm.

Reversed and remanded in part.

Affirmed in Part.

Full Text

Criminal

WI Court of Appeals – District II

Officials: GUNGDRUM, J.

OAR – Sufficiency of Evidence

 2015AP1335-CR State of Wisconsin v. Mendell Stokes

Mendell Stokes appeals from a judgment of conviction for operating after revocation (OAR), arguing that his fine for the offense must be commuted to a forfeiture because “the record does not include ‘competent proof’ that his license was revoked as a result of a prior OWI.” For the following reasons, we affirm

Affirmed

Full Text

Criminal

WI Court of Appeals – District IV

Officials: Lundsten, Sherman and Blanchard, JJ

Pleas & Sentencing – Sentence Adjustment

2014AP982-CR State of Wisconsin v. Jamie R. Anderson

The question here is whether sentence adjustment under WIS. STAT. § 973.195 is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. As we explain further in the discussion section below, an enhanced misdemeanor prison term is imposed when (1) a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under WIS. STAT. § 973.01(1) is a possibility and (2) the court actually chooses to impose prison time. We conclude that persons serving an enhanced misdemeanor prison term are eligible for sentence adjustment under § 973.195. Accordingly, we reverse the circuit court.

Reversed and Remanded

Full Text

Criminal

WI Court of Appeals – District II

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

Ineffective Assistance of Counsel

2014AP2538-CR State of Wisconsin v. Matthew L. Dennis

Full Text

Criminal

WI Court of Appeals – District IV

Officials: LUNDSTEN, J.

2015AP331-CR State of Wisconsin v. Daniel Scott Klinkenberg

Daniel Klinkenberg appeals the circuit court’s judgment convicting him, after a jury trial, of retail theft. He also appeals the circuit court’s order denying his motion for postconviction relief. Klinkenberg argues that the evidence was insufficient to support the jury’s guilty verdict. Klinkenberg also argues that he received ineffective assistance of trial counsel. I conclude that the evidence was sufficient and that Klinkenberg fails to show that trial counsel was ineffective. Accordingly, I affirm the judgment and order.

Full Text

7^th Circuit Court of Appeals – Civil

Civil

7^th Circuit Court of Appeals

Officials: BAUER, FLAUM, and WILLIAMS, Circuit Judges.

Breach of Contract – Damages

No. 14-1416; 14-1555 BRC Rubber & Plastic, Incorporated v. Continental Carbon Company

District court incorrectly classifies agreement as a “requirements contract”

“While this provision does refer to an “obligation” on the part of BRC, it does not show that BRC was obligated to buy carbon black from Continental. The provision is more naturally read as a “right of first refusal,” meaning if BRC sought to buy carbon black from another seller at a lower price, Continental had to be given the chance to meet that price. But nothing in the “Meet or Release” provision prevented BRC from manufacturing its own carbon black or abandoning its use of carbon black altogether. In other words, the provision did not obligate BRC to buy carbon black from Continental”

Vacated and Remanded

Full Text

Civil

7^th Circuit Court of Appeals

Officials: RIPPLE, KANNE, and SYKES, Circuit Judges

Settlement Proceeds – Contingency Fee Agreement

No. 13-2434 Williams, Bax & Saltzman, P.C. v. Boley International (H.K.) Ltd

District Court refusal to provide judicial approval to finalize settlement and limitation on amount granted to firm as result of settlement was improper.

“On this analysis, the firm’s fee easily passes muster. At the initial hearing regarding the settlement, the judge acknowledged that the firm “did a terrific job for the client.” In his final order, the judge took note of “the extensive time spent by plaintiffs’ counsel in the hard-fought battle.” There is no disagreement about the complexity of the litigation, which necessitated expansive discovery and the retention of numerous expert witnesses. After all, it was this degree of time-consuming and labor-intensive preparation that drove the litigation expenses deeply (in the district court’s view, too deeply) into the Goesels’ share of the recovery. It’s ironic, then, that the “difficulty of the question[] involved”—which should work in the firm’s favor here—served as a basis for the judge to reduce the firm’s fee. Without either a quantitative or qualitative basis for objection, the firm’s bargained-for compensation cannot be called unreasonable.”

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals – Criminal

Criminal

WI Court of Appeals – District I

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

Denial of Postconviction Motion

2014AP1564 State of Wisconsin v. Timothy Eric Gibson

Timothy Eric Gibson, pro se, appeals from an order of the circuit court that denied his postconviction motion without a hearing. As the issue has already been litigated in a prior appeal, we affirm.

Affirmed. Per Curiam.

Full Text

Criminal

WI Court of Appeals – District III

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

Delinquency – Sexual Assault – Constitutionality

2014AP2419

State v. Colton M.

Colton M. appeals a dispositional order adjudicating him delinquent for repeated sexual assault of the same child in violation of WIS. STAT. § 948.025(1)(e). Colton argues § 948.025(1)(e) is unconstitutional as applied to him, a child under the age of sixteen, and therefore the delinquency finding against him should be vacated. We disagree and affirm the order.

Affirmed.

Full Text

Criminal

WI Court of Appeals – District II

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

Ineffective Assistance of Counsel

2014AP290 State of Wisconsin v. Ronnie L. Famous

Ronnie L. Famous appeals from an order denying his WIS. STAT. § 974.06 (2013-14) postconviction motion for a new trial on grounds including ineffective assistance of counsel, newly discovered evidence, and failure to try the controversy fully. We reject Famous’s contentions with the exception that, as the State concedes, he is entitled to an evidentiary hearing on whether postconviction counsel was ineffective for failing to raise the ineffective assistance of trial counsel who did not call two witnesses to testify on Famous’s behalf. Thus, we reverse in part and remand for an evidentiary hearing on that claim, but otherwise affirm.

Reversed and remanded in part.

Affirmed in Part.

Full Text

Criminal

WI Court of Appeals – District II

Officials: GUNGDRUM, J.

OAR – Sufficiency of Evidence

2015AP1335-CR State of Wisconsin v. Mendell Stokes

Mendell Stokes appeals from a judgment of conviction for operating after revocation (OAR), arguing that his fine for the offense must be commuted to a forfeiture because “the record does not include ‘competent proof’ that his license was revoked as a result of a prior OWI.” For the following reasons, we affirm

Affirmed

Full Text

Criminal

WI Court of Appeals – District IV

Officials: Lundsten, Sherman and Blanchard, JJ

Pleas & Sentencing – Sentence Adjustment

2014AP982-CR State of Wisconsin v. Jamie R. Anderson

The question here is whether sentence adjustment under WIS. STAT. § 973.195 is available to reduce confinement time for persons serving an enhanced misdemeanor prison term. As we explain further in the discussion section below, an enhanced misdemeanor prison term is imposed when (1) a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under WIS. STAT. § 973.01(1) is a possibility and (2) the court actually chooses to impose prison time. We conclude that persons serving an enhanced misdemeanor prison term are eligible for sentence adjustment under § 973.195. Accordingly, we reverse the circuit court.

Reversed and Remanded

Full Text

Criminal

WI Court of Appeals – District II

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

Ineffective Assistance of Counsel

2014AP2538-CR State of Wisconsin v. Matthew L. Dennis

Full Text

Criminal

WI Court of Appeals – District IV

Officials: LUNDSTEN, J.

2015AP331-CR State of Wisconsin v. Daniel Scott Klinkenberg

Daniel Klinkenberg appeals the circuit court’s judgment convicting him, after a jury trial, of retail theft. He also appeals the circuit court’s order denying his motion for postconviction relief. Klinkenberg argues that the evidence was insufficient to support the jury’s guilty verdict. Klinkenberg also argues that he received ineffective assistance of trial counsel. I conclude that the evidence was sufficient and that Klinkenberg fails to show that trial counsel was ineffective. Accordingly, I affirm the judgment and order.

Full Text