Weekly Case Digests — Feb. 8-12, 2016

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7^th Circuit Digests 

7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin Mark Trudeau

Case No.:14-1869

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

Focus: Consumer Protection – Meritless Appeal

Appellant raises numerous issues on appeal to combat civil contempt sanctions and provides meritless arguments.

“Trudeau tries to rescue his waived argument by suggesting it was merely forfeited because any objection in the district court would have been futile in light of Greyhound’s status as binding precedent. Wrong again. Trudeau could have preserved a challenge to the continuing vitality of Greyhound even though the district court would have been bound by that decision. Cf. Dixon v. United States, 548 U.S. 1, 4 (2006) (considering the arguments of a petitioner who preserved her objection to a well-settled jury instruction by objecting to it even though “the trial court, correctly finding itself bound by Circuit precedent, denied petitioner’s request”).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Erik Solano v. United States of America

Case No.:15-1290

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge

Focus: Ineffective Assistance of Counsel

Counsel’s failure to file an appeal upon appellant request after appellant waived right as part of plea does not equate to ineffective assistance

“But the exceptions are not available here. Solano does not assert that this plea agreement or his appeal waiver was in‐ voluntary or unknowing. Indeed, Solano told both the magistrate judge and district court that the plea agreement was knowing and voluntary and that he understood the implications of the appeal waiver. Nor are there any ambiguities or limitations in the waiver that would provide Solano with a right to appeal his conviction or sentence on any ground. Solano waived his right to appeal his conviction and sentence to any court on any ground, including any claim of in‐ effective assistance of counsel. He also agreed not to contest his conviction or sentence based on alleged ineffective assistance of counsel under 28 U.S.C. § 2255. Nor has Solano suggested that the district court relied on impermissible factors in his sentence or imposed a sentence that exceeds the statutory cap.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anna F. Robinson v. Cynthia Hagan

Case No.: 14-3585

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

Focus: Bankruptcy – Statutory Interpretation

Rare edition book meets personal property exemption requirement for appellant in Ch. 7 bankruptcy proceedings.

“The plain wording of the statute does support the trustee’s argument that the exemption applies to one “bible.” However, the trustee does not seek simply to limit Ms. Robinson to one Book of Mormon; the trustee seeks to limit Ms. Robinson to one Book of Mormon of negligible monetary value. Given that the legislature did not place a dollar limit on the subsection (a) exemptions as it did with exemptions in other subsections, this argument appears at odds with the wording and structure of the personal property exemption statute.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Matthew Bonnstetter v. City of Chicago

Case No.: 14-2977; 14-3573

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

Focus: Equal Protection Violations

Individuals disqualified from consideration for positions with Chicago Police dept. have equal protection claims dismissed.

“In addition, Applicants Bonnstetter, Gutierrez, Sauseda, and Fishwick failed to bring their Shakman claims within the appropriate statute of limitations period. A statute of limitations defense is properly considered in determining a Rule 12(b)(6) motion when the factual allegations in the complaint establish such a defense. See, e.g., O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015); United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003) (citing Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002)) (“litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense,” including statute of limitations).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lionel Bordelon v. Board of Education of the City of Chicago

Case No.: 14-3240

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

Focus: Age Discrimination

Council’s decision to now renew contract of long-tenured principal rooted in sound independent reasons, not based on his age.

“Coates’s statement is not an express remark about Bordelon’s age. Nor is it an ambiguous remark sufficient to give rise to an inference that Coates was motivated by age. Ever‐ hart clarified that he thought this statement was referring to the school’s poor academic performance, not Bordelon’s age. Council member Chantelle Allen testified that Coates did not make any statements about Bordelon’s age at the meeting. The statement made, unlike Robinson, does not even mention age. Coupled with the testimony of Everhart and Allen, no rational trier of fact could draw the inference that Coates was motivated to discriminate against Bordelon based on his age because of this statement.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kyle Carson v. All Erection & Crane Rental Corporation

Case No.: 14-3243

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

Focus: Personal Injury – Negligence

Appellant falls underneath crane of employer and fails to provide evidence that construction company was proximate cause of his injuries

“But the critical fact on which a jury would base that inference—how often the travel detent was used before the day of the accident—is something the jury would have no way to determine based on the record evidence. Nothing in the record speaks to that question, as Carson freely admits. Carson is entitled to have all reasonable inferences drawn in his favor, of course, for he was the non‐moving party on this issue at summary judgment. On this record, however, any inferences about how often the travel detent was used before the day of the accident would be “inferences relying on mere speculation or conjecture,” and Carson is not entitled to those. See Trade Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Terry Deets v. Massman Construction Company, et al.

Case No.: 15-1411

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

Focus: Racial Discrimination – Title VII

Factual dispute exists as to whether appellant layoff has racial implications. Summary judgment grant is reversed.

“We are puzzled by the district court’s conclusion that Todt’s statement related directly to his decision not to rehire Deets rather than his decision to terminate Deets. True, in or‐ der for a statement to be probative of discriminatory intent, it must be “related to the employment decision in question.” Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000) (internal quotations marks omitted). But Todt made the statement at the time he informed Deets he was being laid off, see Oest v. Ill. Dept. of Corr., 240 F.3d 605, 611 (7th Cir. 2001) (explaining that a statement’s “temporal proximity” to the adverse action “is often crucial” when determining whether statement qualified as direct evidence of discrimination), and directly in response to Deets’s inquiry about the basis for his termination. We are similarly puzzled by the defendants’ contention at oral argument that the motivation behind Deets’s layoff was immaterial because he was not entitled to work on the Liebherr crane when it went back into service. The parties do not dispute that Deets had lost seniority on that machine when it went out of service. But just because Deets was not entitled to that position does not permit MTA to lay him off because of his race. Title VII applies even to at‐will emplo ment and does not permit an employer either to fail to hire or to fire workers based on race. See Green v. Am. Fed’n of Teachers/Illinois Fed’n of Teachers Local 604, 740 F.3d 1104, 1105 (7th Cir. 2014); Loucks v. Star City Glass Co., 551 F.2d 745, 747–48 (7th Cir. 1977).”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Janko Branko Jankovic v. Loretta E. Lynch

Case No.:15-2144

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.

Focus: Removal Proceedings – Immigration

Appellant that fraudulently obtained lawful refugee status in US order to be removed – Fails to identify legal reasoning to allow wife to stay.

“Although no rule with legal effect requires pre-hearing disclosures, the Immigration Court Practice Manual §3.3(g) urges litigants to include written summaries with witness lists, in order to reduce risk that the IJ will need to grant a continuance to allow additional preparation. The agency’s counsel listed MacQueen as a potential witness, with this description: “Mr. Macqueen is expected to testify regarding the respondent’s service in the Republika Srpska Special Police Brigade.” Jankovic thinks this inadequate. More than a year before the hearing, Jankovic’s lawyer asked the IJ to exclude MacQueen’s proposed testimony and for permission to present a rebuttal expert. The IJ denied the former motion but granted him leave to present a rebuttal expert. Shortly before the hearing, the agency’s lawyer orally described MacQueen’s planned testimony, and Jankovic said on the record that this proffer satisfied his concerns. After MacQueen testified, Jankovic did not put on a rebuttal witness or request a continuance to allow additional time for that purpose. That failure, coupled with his concession that the oral description sufficed, likely waives his current line of argument, see Skorusa v. Gonzales, 482 F.3d 939, 942 (7th Cir. 2007), but even if it doesn’t we’ve explained why the argument does not carry the day.”

Petition for Review Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Lawrence McCarroll

Case No.:15-2492

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Sentence Reduction

Appellant not entitled to resentencing despite amendments to the sentencing guidelines

“McCarroll attempts to avoid the limitation on relief available under § 3582(c)(2) by asserting that a “’sentencing range’ and ‘guideline range’ are not necessarily the same.” Because the “guidelines range” is calculated using a specific total offense level and criminal-history category, he posits, his “sentencing range” is lower due to the 2-level decrease in offense level under Amendment 782. McCarroll cites no authority supporting this contention, but instead urges us to look to the purpose of Amendment 782—reducing the prison population—and hold that a rule making ineligible any defendant whose guidelines range remains unchanged would violate that purpose by making relief unavailable for thousands of prisoners”

Affirmed

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7^th Circuit Court of Appeals

Case Name: James Varsamis, et al. v. Iberia, Lineas Aereas de Espana; Hans-Peter Baumeister v. Deutsche Lufthansa, AG.

Case No.: 14-2414; 14-2633

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

Focus: Damages – Airline Delay

Appellants not entitled to damages for delay in flight

“It is not uncommon for the airline that sells the tickets for an international flight to arrange for another airline to provide service over part of the route. Sometimes that other airline–the bridge carrier, we’ll call it—experiences delay in its segment of the flight, and if substantial the delay may entitle the passengers to damages. The question presented by these two appeals is in what circumstances the bridge carrier is liable for those damages, and in what circumstances the originating carrier, which sold the tickets, is liable. In both cases the plaintiffs sued on behalf of a class, but the suits were dismissed at the summary judgment stage before any classes were certified.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ariana Blanche v. United States of America

Case No.: 15-1868

Officials: BAUER and HAMILTON,Circuit Judges, and PETERSON, * District Judge

Focus: Federal Tort Claims Act – Injuries at Birth

Appellant claims under FTCA untimely and are therefore dismissed

“By examining the circumstances to determine when Latoya had enough information to know or reasonably suspect that Arianna’s injuries were caused by her prenatal care providers, we find that this case is distinguishable from E.Y. ex rel. Wallace. In E.Y. ex rel. Wallace, the plaintiff did not receive the child’s diagnosis until a year after the delivery, and had no indication that her prenatal care could have caused the child’s injury until she received the partial prenatal medical records. Here, although Latoya claims that it took a year for her to understand that Erb’s Palsy involved nerve damage, it is undisputed that when she left the hospital she knew that Arianna was diagnosed with Erb’s Palsy, that Arianna’s arm was in a sling, that Arianna had weighed 11.7 pounds at birth which caused her to become lodged in the birth canal during delivery, and that Arianna’s injury resulted from her delivery. A reasonable person would have inquired into whether the prenatal care providers caused Arianna’s injury by failing to detect Arianna’s weight beforehand and recommend a C-Section rather than a vaginal delivery. Also, similar to the plaintiff in Arteaga (who experienced the same injury), Latoya was suspicious early on that the injury was preventable, as evidenced by her meeting with an attorney within a few weeks of Arianna’s birth.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Titan International, Inc.

Case No.:14-3789

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

Focus: IRS Summons – Inspection of Tax Records

Company required to comply with IRS request to re-inspect books despite previous review and despite 26 U.S.C. Sec. 7605(b) right to deny inspection.

“This case is more like Digby than Reineman. The IRS first inspected Titan’s 2009 records to verify its net operating loss in connection with an audit of its 2009 tax return. The IRS now seeks to inspect those same records for the purpose of auditing Titan’s 2010 tax return in order to determine the validity of its 2010 net-operating-loss carryforward. Much like the pass-through loss at issue in Digby (and unlike the deduction at issue in Reineman), the net-operating-loss carryforward on the 2010 tax return cannot be verified unless the IRS inspects the 2009 records. Accordingly, the summons for inspection of Titan’s 2009 books and records for the purpose of auditing its 2010 tax return does not require written notice and a finding of necessity by the Secretary under § 7605(b).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Aaron Thompson

Case No.: 15-2008

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

Focus: Motion to suppress

Appellant inviting informant into his home defeats arguments for expectation of privacy and 4^th amendment violations.

“Here, Thompson invited the informant into the apartment for the purpose of engaging in a drug transaction. While there, the informant did not “see, hear, or take anything that was not contemplated” as part of the illegal drug transaction. See Lewis, 385 U.S. at 210; see also Scherer, 673 F.3d at 182. That the informant recorded his observations on video did not transform the consensual encounter into a search for purposes of the Fourth Amendment.”

Affirmed

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WI COURT OF APPEALS

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Raymond E. Woods

Case No.: 2014AP2622-CR

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

Focus: Newly Discovered Evidence

Raymond E. Woods appeals a judgment convicting him of first-degree reckless homicide, with use of a dangerous weapon, and felon in possession of a firearm. He also appeals an order denying his postconviction motion. Woods argues that he is entitled to a new trial based on newly discovered evidence. In the alternative, Woods seeks a new trial in the interests of justice. See WIS. STAT. § 752.35 (2013-14). We affirm

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dennis C. Strong, JR.

Case No.: 2014AP2848-CR

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

Focus: Plea Withdrawal

Dennis Strong, Jr., appeals a judgment of conviction and an order partially denying his motion for postconviction relief. Strong argues the circuit court erroneously rejected his request to withdraw his nocontest pleas prior to sentencing. We reject Strong’s argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles E. BIshop

Case No.: 2015AP454

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

Focus: Ineffective Assistance of Counsel

Charles E. Bishop, pro se, appeals an order denying his motion for postconviction relief. Because the circuit court properly rejected Bishop’s claims of ineffective assistance of counsel, we affirm.

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WI Court of Appeals – District I

Case Name: WI Dept. of Workforce Development v. Nikkie L. Wallenkamp and Arby’s Restaurants

Case No.: 2015AP716

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

Focus: Claim for unemployment insurance

The Department of Workforce Development (DWD) appeals an order of the circuit court affirming a decision of the Labor and Industry Review Commission (LIRC). The DWD contends that LIRC erred in finding that Nikki Wallenkamp did not conceal facts about her wages and employment status while seeking unemployment insurance benefits. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.S.

Case No.: 2015AP1634

Officials: BRASH, J.         

Focus: Sex Offender Registration – Minor

D.S. appeals an order requiring him to register as a sex offender for life, and an order denying his postdisposition motion to stay the registration requirement.  D.S. seeks a new hearing on sex offender registration, arguing that: (1) the circuit court relied on inaccurate and improper information in the form of a study performed by a psychologist at Lincoln Hills School regarding the recidivism rate of sexual offenders released from the school; and (2) that the circuit court relied on information from the Juvenile Sex Offender Assessment (JSOAP-II) that was inaccurately interpreted as predicting a juvenile’s risk to reoffend. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Gregory M. Radaj

Case No.: 2015AP21-CR

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

Focus: Plea Withdrawal – Resentencing

Gregory Radaj appeals from a judgment convicting him of four counts of burglary as party to the crime on his no contest pleas. Radaj also appeals from a postconviction order denying his motion to vacate the DNA surcharge imposed by the circuit court at sentencing, withdraw his no contest pleas or be resentenced. We agree with the circuit court that Radaj did not establish a basis either to withdraw his no contest pleas or be resentenced. We uphold the imposition of the DNA surcharge as a proper exercise of discretion on the record before us. Therefore, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Everett Sennholz

Case No.: 2015AP118-CR

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

Focus: Ineffective Assistance of Counsel

After a four-day trial, the jury found Everett Sennholz guilty of four counts of sexual assault of a child under thirteen, in violation of WIS. STAT. § 948.02(1) (2013-14). The victim was his granddaughter E.M. The assaults occurred over two decades ago from the time E.M. was eight years old until she was twelve when she and her sisters lived with their grandparents. Sennholz alleges that his conviction resulted from numerous errors defense counsel made at trial. We disagree and affirm the judgment of conviction and the order denying his motion for postconviction relief.

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WI Court of Appeals – District II

Case Name: Wilson Land Holdings, LLC v. Town of Wilson

Case No.: 2015AP700

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

Focus: Declaratory Judgment – Notice – Contract Enforcement

The Town of Wilson appeals from a circuit court order granting Plaintiff Wilson Land Holdings, LLC’s (WLH) motion for partial summary judgment, denying the Town’s motion for partial summary judgment, and entering declaratory judgment in favor of WLH. The Town claims the circuit court erred in finding that the Town had actual notice sufficient to satisfy WLH’s WIS. STAT. § 893.80 (2013-14) notice of claim requirement, in holding that laches did not bar WLH’s claim related to the nonannexation provision at issue, and in concluding that all necessary parties had been joined in the action. The Town further contends the court erred in determining the nonannexation provision in its contract with WLH is unenforceable because it was not noted as an exception in the deeds to the property at issue. For the following reasons, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Richard J. Slayton

Case No.: 2015AP1255-CR

Officials: REILLY, P.J.

Focus: OWI – Probable Cause

Richard Slayton challenges the sufficiency of a search warrant which authorized the taking of his blood following his arrest for operating a motor vehicle while intoxicated (OWI). Slayton argues that the affidavit provided to the magistrate was insufficient as the officer’s assertion that Slayton had prior convictions for OWI were “legal conclusions” and did not establish the source of the officer’s knowledge. We affirm as the affidavit provided probable cause that Slayton committed the offense of OWI, had prior convictions for OWI, and was refusing to submit to a test of his blood for chemical analysis.

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WI Court of Appeals – District IV

Case Name: Eric Blomdahl v. Raquel C. Peters, et al.

Case No.: 2014AP2696

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Defamation

Raquel and Mark Peters appeal a summary judgment dismissing their homeowners liability insurer, West Bend Mutual Insurance Company, from this defamation action. The circuit court concluded that the insurance policy’s business pursuits exclusion precludes coverage. The Peters argue that the exclusion does not apply because many of the allegedly defamatory statements were made after the parties stopped working for the business and because some of the statements were not necessarily associated with the business dispute. We reject these arguments and affirm the judgment.

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WI Court of Appeals – District IV

Case Name: HSBC Bank USA v. Steven R. Lisse, et al.

Case No.: 2015AP273

Officials: Lundsten, Higginbotham and Sherman, JJ.

Focus: Foreclosure – Court Error

Steven and Sondra Lisse appeal a summary judgment order that granted foreclosure to HSBC Bank USA. The Lisses contend that the circuit court erroneously exercised its discretion by denying the Lisses’ motion to extend the time to conduct discovery. They then contend that HSBC was not entitled to summary judgment. They also contend that the court erred by denying their motion for reconsideration. For the reasons set forth below, we conclude that the circuit court properly exercised its discretion as to discovery deadlines, that HSBC was entitled to summary judgment, and that the court properly denied reconsideration. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenyatta A. Clincy

Case No.: 2015AP563-CR

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Machner Hearing – Ineffective Assistance of Counsel

Kenyatta Clincy appeals from a judgment of conviction for armed robbery and from an order denying, without a hearing, his postconviction motion seeking a Machner hearing and a new trial based on ineffective assistance of counsel. Clincy argues that he is entitled to a hearing. We affirm the judgment and order.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Zachary W. Swan

Case No.: 2015AP1718-CR

Officials: SHERMAN, J.

Focus: PAC – Probable Cause

Zachary Swan appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), second offense. Swan contends that the arresting officer did not have probable cause to request that he perform a preliminary breath test (PBT) and that the results of that test, and any evidence obtained thereafter, should have been suppressed. For the reasons discussed below, I affirm.

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WI SUPREME COURT

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Walter W. Stern III

Case No.: 2013AP149-D

Focus: Disciplinary Proceedings

Attorney license reinstated and costs assessed

“Upon review of the record, we agree that Attorney Stern has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria necessary for reinstatement. Accordingly, we adopt the referee’s findings of fact and conclusions of law and we accept the referee’s recommendation to reinstate Attorney Stern’s license to practice law in Wisconsin. We further direct Attorney Stern to transmit the $585.25 surplus in his trust account to the unclaimed property unit of the Wisconsin Department of Revenue within 30 days of the date of this order.”

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WI Supreme Court

Case Name: Hoffer Properties, LLC v. State of Wisconsin, Dept. of Transportation

Case No.: 2012AP2520

Focus: Eminent Domain

Wis. Stat. Sec. 84.25(3) authorizes DOT to alter access to highway as they deem necessary. When DOT changes property owner’s access to controlled access highway but provided other access, the owner is precluded form compensation.

“Unlike in National Auto Truckstops or Seefeldt, in the present case, DOT exercised the police power pursuant to the controlled-access highway statute to replace Hoffer’s direct access with circuitous access. As we have explained previously, Wis. Stat. § 32.09(6)(b) precludes compensation under that subsection for such exercises of the police power. National Auto Truckstops and Seefeldt did not alter the rule that the provision of alternate access precludes compensation pursuant to Wis. Stat. § 32.09(6)(b) in controlled-access highway cases because neither case involved Wis. Stat. § 84.25. Likewise, they do not apply to this case”

Affirmed

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Concurred: ABRAHAMSON, A.W. BRADLEY, J.J., concur. (Opinion Filed)

Dissented: PROSSER, J., dissents. (Opinion Filed)

Did not Participate: R.G. BRADLEY, J.