Weekly Case Digests — March 21-25, 2016

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7^th Circuit Court of Appeals Digests 

7th Circuit Court of Appeals

Case Name: Vee’s Marketing Inc. v. United States of America

Case No.: 15-2441

Officials: POSNER and WILLIAMS, Circuit Judges, and PALLMEYER, District Judge

Focus: Tax Assessment

Appellant fails to file proper report associated with tax deductions and is properly assessed penalties.

“When later Vee strategically terminated his participation in the plan, the plan used $147,000 from the reserve account to buy a paid-up life insurance policy for Vee with a face value of $400,000. That was the amount payable upon Vee’s death to his beneficiaries, but it wasn’t all that the reserve account could be used for. CJA told its customers that the paid-up policy could be sold, and it even helped find buyers. As explained in Ohio National Life Assurance Corp. v. Davis, 803 F.3d 904, 908 (7th Cir. 2015), it is lawful in many states (including Vee’s state, Wisconsin, although generally not until five years after the issuance of the policy, see Wis. Stat. § 632.69(12)) to purchase the beneficial interest in an existing policy on the life of the insured. Vee thus could if he wanted sell the beneficial interest in his post-retirement life insurance policy. He would be taxed on his income from the sale but he would not have been taxed on the income that had gone into his accumulation reserve and thus financed his acquisition of the life insurance policy that he then sold.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Paul D. Dimmett v. Carolyn W. Colvin

Case No.: 15-2233

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

Focus: Disability Benefits

Court reliance on testimony and acceptance of magistrate judge recommendation without analysis was improper.

“And so we have in this case still another example of fatally weak testimony by a vocational expert. See, e.g., Alaura v. Colvin, 797 F.3d 503, 507–08 (7th Cir. 2015); Browning v. Col‐ vin, 766 F.3d 702, 708–12 (7th Cir. 2014); Hermann v. Social Security Administration, 772 F.3d 1110, 1112–14 (7th Cir. 2014). Compounding the weakness, both the administrative law judge, in uncritically accepting the vocational expert’s testimony, and the vocational expert, in failing to under‐ stand the requirements of the jobs he mistakenly thought the plaintiff capable of performing, appear to have ignored the most current manual of job descriptions—the O*NET (see O*NET, www.onetcenter.org/overview.html). It’s true that the Social Security Administration, while aware of the obsolescence of the Dictionary of Occupational Titles, hasn’t endorsed the O*NET and in fact is developing its own parallel classification system. See Social Security Administration, Occupational Information System Project, www.ssa.gov/disability research/occupational_info_systems. html. But this system is not expected to be rolled out for at least three more years, leaving a vacuum that the O*NET may fill. And so we point out that the O*NET entry for “laundry and dry‐cleaning workers” explains that the worker must “apply bleaching powders to spots and spray them with steam to remove stains,” “spray steam, water, or air over spots to flush out chemicals,” “mix bleaching agents with hot water in vats,” “mix and add detergents, dyes, bleaches, starches and other solutions and chemicals,” and “sprinkle chemical solvents over stains.” O*NET, Laundry and Dry‐Cleaning Workers, www.onetonline.org/link/summary/51‐6011.00. So the job is wholly unsuitable for Dimmett. As for a dining‐room attendant, O*NET lists “stamina” as required (and surely it’s required by a laundry or dry‐cleaning worker as well—the most disagreeable of the three jobs for someone with serious respiratory problems), defining it as “the ability to exert yourself over long periods of time without getting winded or out of breath.” O*NET, Dining Room and Cafeteria Attend‐ ants and Bartender Helpers, www.onetonline.org/link/ summary/35‐9011.00. And “order filler” may require techno‐ logical skills that the plaintiff does not have. Id., Order Fillers, Wholesale and Retail Sales, www.onetonline.org/link/sum mary/43‐5081.04. And affecting all these jobs, though the plaintiff’s heel spur is not disabling in itself the pain it causes would, by further impairing his stamina, further limit his ability to perform any of them. The administrative law judge said that the pain wasn’t recurring and wouldn’t interfere with the plaintiff’s working, but in saying this he ignored uncontradicted evidence that orthotic shoe inserts would not give the plaintiff sufficient relief from his pain. And he did not explain why he found only partially credible the plain‐ tiff’s testimony that the heel spur caused pain that impedes his daily functioning.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Mario Rainone

Case No.: 14-3154

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

Focus: Jury Instruction – Exclusionary Rule

Appellant unsuccessfully argues that court giving jury instruction on joint possession and admittance of unfairly prejudicial evidence warrants a new trial.

“Rainone mischaracterizes the evidence at trial. There was substantial evidence that more than one person could have possessed the gun. Cozzo testified that others had access to Rainone’s bedroom and that guests would occasionally enter the room. The fact that other people had access to, and in fact did access, Rainone’s bedroom supports a reasonable inference that they could have possessed the gun. Rainone even tried to use this evidence to his advantage at trial by suggesting that other people possessed the firearm. For example, during Rainone’s opening statement, he argued that the firearm was recovered from “an area that people have joint access to” and he described all of the other individuals who had access to Rainone’s bedroom. The joint possession instruction properly informed the jury that Rainone could still have possessed the gun even if others had also possessed the firearm.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Kellie Pierce v. Zoetis, Inc. et al

Case No.: 15-1900

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

Focus: Failure to State A Claim

Appellant alleging tortious interference with a business relationship fails to state a claim.

“On appeal, Pierce presumably concedes that acts within the scope of Heuchert’s duties as her supervisor cannot provide the basis for relief. Instead, she focuses on Heuchert’s comment at the sales conference in Dallas questioning whether Pierce was sleeping with her coworker. Although the statement would presumably fall outside of the scope of Heuchert’s employment relationship with Pierce, she must still demonstrate that Heuchert committed an illegal act to achieve her end. In Levee v. Beeching, the Court of Appeals of Indiana reaffirmed that illegal conduct is an essential element in a claim for tortious interference with a business relationship, 729 N.E.2d 215, 222 (Ind. App. 2000). Although the court noted that there was no “definition or test” for demonstrating the required “‘illegal conduct,’” it concluded that defamation did not satisfy the illegal conduct element. Id. at 222–23. Although Pierce criticizes Levee for failing to cite cases in support of its conclusion, she offers no reason to believe Levee is not good law or that the Indiana Supreme Court would deviate from the appellate court’s conclusion that defamation cannot satisfy the illegal conduct element of a tortious interference claim. See, e.g., Golden v. State Farm Mut. Aut. Ins. Co., 745 F.3d 252, 255 (7th Cir. 2014) (noting that our task when sitting in diversity is to ascertain substantive content of state law as decided by the highest state court or as that court would decide the facts of the case before us). Thus, even if we assume that Heuchert’s comment at the banquet was defamatory towards Pierce and that it interfered with some valid business relationship of Pierce’s (a big assumption), her claim would still fail because Heuchert committed no illegal act.

Affirmed

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7th Circuit Court of Appeals

Case Name: Calvin Davis v. United States of America

Case No.: 14-3019

Officials: BAUER, ROVNER, and WILLIAMS, Circuit Judges

Focus: Retroactive Application – Sentencing

Alleyne v. United States  has not been declared applicable retroactively and as such, appellant’s claim that judge’s sentencing findings increased the statutory minimum term of imprisonment fails.

“We start with the Alleyne claim. Indubitably, this claim, which is based on a change in law post‐dating Davis’s plea and sentence, is one that is not barred by the plea agreement’s waiver. R. 300 at 13 ¶ 19b; see also § 2255(f)(3). But there are, nonetheless, multiple problems with the claim. Alleyne holds that any factual determination that increases the statutory mandatory minimum term to which a defendant is subject (in that case, the fact that a defendant “brandished” a gun) must be charged in the indictment and proven beyond reasonable doubt to the factfinder. 133 S. Ct. at 2161‐63. It is, first of all, not at all clear why Alleyne is of any help to Davis. He was subject to a 10‐year statutory minimum based on the amount of heroin involved in the trafficking conspiracy—an amount that was charged in the indictment and to which he pleaded guilty. So the minimum term was not the result of any determination made by Judge Kapala at sentencing. Perhaps Davis could assert a variant of an Alleyne claim in the sense that it was the judge’s findings as to his criminal history (including his convictions in the military court martial) that rendered him ineligible for a below‐minimum sentence. See § 5C1.2(a)(1). Davis himself points this out in a footnote in his opening brief. Davis Br. at 12 n.3. The problem with this variant, however, is that criminal history findings are generally exempt from the Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), line of precedents entitling a defendant to a formal charge and a trial on facts that expose him to harsher penalties. See Almendarez‐Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998). And the Supreme Court in Alleyne itself said that it was “not revisit[ing]” the holding of Almendarez‐Torres. 133 S. Ct. at 2160 n.1. See United States v. Long, 748 F.3d 322, 329 (7th Cir.) (enhanced mandatory minimum properly applied notwithstanding that findings as to prior convictions that triggered the enhancement were made by judge rather than jury), cert. denied, 134 S. Ct. 2832 (2014). But, in any case, the clearest impediment to the Alleyne claim is the one that Judge Kapala cited: the Supreme Court has not held that Alleyne applies retroactively to cases on collateral review. Our decision in Simpson notes that it is only the Supreme Court that has authority to declare Alleyne retroactive, 721 F.3d at 876, and unless and until it does so, Davis cannot claim the benefit of Alleyne in a 2255 motion. See also Crayton v. United States, 799 F.3d 623, 624 (7th Cir.), cert. denied, 136 S. Ct. 424 (2015); Walker v. United States, 810 F.3d 568, 574 (8th Cir. 2016) (“every circuit to consider this issue has concluded that Alleyne does not apply retroactively”) (collecting cases). The district court was thus on firm ground in dismissing this claim.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Katherine Liu v. Cook County, Illinois

Case No.: 14-1775

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

Focus: Title VII – Discrimination

Appellant fails to present evidence of discrimination.

“On this record, we cannot agree with Dr. Liu that the defendants’ stated non-discriminatory reason for the actions they took was “highly questionable.” Dr. Liu points to nothing in the record supporting her argument that defendants “created” a false “trail of alleged wrongdoing.” In fact, she continues to defend on the merits her many decisions not to operate on patients with appendicitis. And her complaints about the fairness of the process she received and defendants’ tendency to introduce additional evidence do not show that defendants secretly “directed” all the stages of independent review or served as “the prosecutors, the witnesses, and the jury.” While Drs. Keen, Madura, and Donahue were certainly involved in presenting the case against her, she has presented no evidence that they controlled these bodies’ decision-making.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Roger G. Cocker v. Terminal Railroad Association of St. Louis Pension Plan

Case No.: 15-2690

Officials: POSNER, FLAUM, and EASTERBROOK, Circuit Judges

Focus: ERISA – Benefits – Monthly Payments

It was proper for payment to appellant in retirement to be offset by payments already rendered once appellant initially retired.

“Imagine two employees of Union Pacific, each entitled to the same retirement benefit of $2,311.73 a month. Employee A chooses that monthly benefit to begin at his normal retirement age, while Employee B chooses instead the actuarially equivalent benefits stream of $1,022.94 a month to begin now and thus continue for a longer period. Suppose A and B retire from Union Pacific the same day, go to work for Terminal Railroad the same day, are paid the same salary, retire from Terminal the same day, and were it not for the deduction of their Union Pacific benefits would be entitled by the Terminal Plan to the same monthly benefit of $4000. The plaintiff’s position, echoed by the district court, is that A would be entitled to a monthly retirement benefit from Terminal’s plan of $1,688.27 ($4000 minus $2,311.73), while B would be entitled to $2,977.06 ($4000 minus $1,022.94). That is senseless given the above assumptions about their work history, and is not required by the plan document. The plan administrator permissibly interpreted “payable” to require that the plan’s benefits be offset by the total value of the benefits received by the employee under a different plan; otherwise the plan would be conferring a windfall on an employee who could vary the monthly payments that he received under that other plan.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. William Rivera & Juan Duenas

Case No.: 15-1740, 15-2637

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Warrantless Search & Seizure – Motion Suppress

Appellants consenting to confidential information entering premises invalidated need for search warrant.

“But there was no newcomer invited or even permitted to join the party in this case. Nor was the informant, having driven away from the garage before the agents entered, and anyway not having returned, in danger from Rivera or Duenas such as would have justified his summoning law enforcement for aid and protection—he was well out of harm’s way. This case seems therefore not to fit either of the rationales that we’ve identified as justifying the “consent once removed” doctrine. But the district judge had a third ground, of which more later in this opinion, for denying the defendants’ suppression motion—“inevitable discovery.” See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984); United States v. Witzlib, 796 F.3d 799, 802–03 (7th Cir. 2015); United States v. Tejada, 524 F.3d 809, 812–13 (7th Cir. 2008). If officers search without a warrant, but it is certain they’d have obtained one had they applied for it, their omission is deemed harmless, and so is ignored.”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jean Lawler

Case No.: 15-1496

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

Focus: Sentencing

Court utilized improper standard in sentencing appellant.

“The Guidelines make clear that “offense of conviction” and “offense” have different meanings. Specifically, § 1B1.1 n.1 defines “offense” to mean “offense of conviction” plus “all relevant conduct.” And “relevant conduct” means “all acts and omissions … that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]” § 1B1.3(a). Together these provisions show that: (1) “offense of conviction” does not include “relevant conduct”; and (2) “offense of conviction” is narrower than “offense.” See United States v. Rebmann, 321 F.3d 540, 543–44 (6th Cir. 2003) (reaching this conclusion after textual analysis); United States v. Pressler, 256 F.3d 144, 157 n.7 (3d Cir. 2001) (same); see also United States v. Blackwell, 323 F.3d 1256, 1260 (10th Cir. 2003) (same, in the context of a different Guideline provision). The district court appears to have agreed, stating that the “offense of conviction includes only what [Lawler] was convicted of, conspiracy to possess with intent to distribute one kilogram or more of heroin” and that “a reasonable person could say the offense of conviction does not involve the death enhancement.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Martina Beverly v. Abbott Laboratories

Case No.: 15-1098

Officials: EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges

Focus: Settlement Enforcement

Handwritten agreement to settle dispute valid and enforceable.

“Beverly contends that the district court erred in relying on cases such as Elustra v. Mineo that involve oral agreements because the agreement at issue here was handwritten, not oral. But Beverly fails to cite a single case to support this contention, much less explain why the oral-versus-written distinction is relevant here. This failure amounts to forfeiture. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding that “perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority,” are forfeited on appeal). Forfeiture aside, our cases counsel that the relevant inquiry is whether the agreement at issue is sufficiently clear regarding its material terms, not whether the agreement was captured in writing. Compare Abbott Labs., 164 F.3d at 388 (involving preliminary written agreement), and Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 564 (7th Cir. 2012) (same), with Elustra, 595 F.3d at 708–09 (involving preliminary oral agreement), and Dillard, 483 F.3d at 507–08 (same).”

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Funds in the Amount of $271,080

Case No.: 15-2857

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

Focus: Civil Forfeiture

Government fails to establish the funds found pursuant to search warrant was connected to drug trafficking.

“Second, the government maintained that even if the brothers have standing to challenge the forfeiture, a jury could not reasonably conclude that the evidence does not establish by a preponderance that the money is substantially connected to drug trafficking. That convoluted phrasing is necessary because in a civil-forfeiture action it is the government, as plaintiff, that bears the burden of proving the money’s connection to drug trafficking; claimants must establish standing but are not required to prove “legitimate” ownership. See $239,400, 795 F.3d at 646. The government pointed to the circumstances in which the currency was found—in a safe to which a drug dog had alerted, bundled in stacks, along with the handwritten notes the government’s lawyer called a “drug ledger,” and near a house containing apparent drug paraphernalia. It also relied on tax records and the brothers’ disclosures about their income, which the government argued was too low to permit the accumulation of such a large sum.””

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Michael Magruder v. Fidelity Brokerage Services, LLC

Case No.:15-1846

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

Focus: Arbitration – Subject Matter Jurisdiction

Appellant seeks to receive stock certificates from respondent unsuccessfully. The issue at hand is more appropriately adjudicated at the state level.

“It is not clear to us that §240.15c3–3(l)(1) establishes a federal right. It says that “[n]othing stated in this section shall be construed as affecting the absolute right of a customer of a broker or dealer to receive in the course of normal business … the physical delivery of certificates for … [f]ully  paid securities to which he is entitled”. This declares that the section does not affect the customer’s right to receive certificates to which “he is entitled.” And when is a customer so entitled? That seems to be left to contracts between customer and broker, or to state corporate law.. . . One passage in Lefkovitz v. Wagner, 395 F.3d 773 (7th Cir. 2005), could be read as inconsistent with Doerge and Minor. We remarked of one particular arbitration: “[T]here was neither complete diversity nor a federal question; and an arbitration award cannot be enforced in federal court unless the dispute giving rise to the award would have been within the court’s jurisdiction to resolve had the dispute given rise to a lawsuit rather than to an arbitration.” 395 F.3d at 781. This implies a belief that, if the arbitrator resolves a federal issue, then §1331 supplies jurisdiction over an action under §9 or §10. But Lefkovitz did not hold this; it stated that neither complete diversity nor a federal question existed. Lefkovitz did not discuss Doerge or Minor and had no reason to do so. Even when a federal court finds jurisdiction, as this passage in Lefkovitz did not, an unreasoned assertion of jurisdiction lacks precedential value. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90–92 (1998) (drive by juris  dictional rulings may be ignored). The question addressed in Doerge, Minor, and our decision today simply was not on the table in Lefkovitz, which does not modify circuit law.”

Vacated and remanded w/ instructions to dismiss

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7th Circuit Court of Appeals

Case Name: Maria Stapleton, et al v. Advocate Health Care Network

Case No.: 15-1368

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

Focus: Scope of ERISA

Church affiliated organizations are not exempt or out of the reach of ERISA.

“Likewise, the district courts that have concluded that the exemption can apply to plans established by church affiliated organizations (rather than by churches) fail to make sense of the interplay between subsections (33)(A) and (33)(C)(i). See, e.g., Medina, 2014 WL 4244012, at *2. (dismissing the distinction between “established and maintained” as a “term of art”); Overall, 23 F. Supp. 3d at 829 (interpreting the word “includes” in subsection (33)(C)(i) in a manner that eviscerates the substance of subsection (33)(A)). Loyalty to the plain language principle is particularly important in this case. Advocate wishes to push the meaning of the exemption to include more organizations, and many more at that—organizations not contemplated by the primary definition in subsection (33)(A). ERISA, however, was written to protect workers who have invested their retirement savings into employer-run financial plans. And because it “is a ’remedial’ statute [it] should be ‘liberally construed in favor of protecting the participants in employee benefit plans.’” Kaplan, 810 F.3d at 182 (citing IUE AFL–CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir. 1986)); see also John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 97 (1993) (while discussing an ERISA exemption, noting that courts are “inclined, generally to tight reading[s] of exemptions from comprehensive schemes of this kind.”).”

Affirmed

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7th Circuit Court of Appeals

Case Name: Thomas Simstad, et al v. Gerald Scheub, et al

Case No.: 15-1056

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

Focus: RICO – 1^st amendment – 14^th amendment

Allegations that developers delayed subdivision project due to support of political official fall short.

“is not clear how, or whether, this type of imputed motive applies in the municipal liability context. Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 690-91 (1978), prohibits finding municipal liability through the theory of respondeat superior. We have wondered whether the cat’s-paw theory can support entity liability under the civil rights laws when the entity is a municipal corporation and the biased or retaliatory subordinate is not a policy-maker. Smith v. Bray, 681 F.3d 888, 899 (7th Cir. 2012); Waters v. City of Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2009). This is not the case, however, in which we need to confront that issue. As our discussion thus far shows, there is insufficient evidence of animus or improper motive held by anyone involved to warrant a jury instruction on the theory. The Simstads suggest that the fact that it took the Commission two years to approve the project is somehow evidence of improper motive or animus, but we cannot accept that circular reasoning.

Affirmed

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7th Circuit Court of Appeals

Case Name: Estate of Stanley Cora v. John C. Jahrling

Case No.: 15-2252

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

Focus: Bankruptcy

Legal malpractice judgment no dischargeable in Chapter 7 bankruptcy proceedings by appellant.

“Jahrling’s conduct amounted to at least negligence, but as Bullock shows, negligence is not sufficient to show defalcation within the meaning of § 523(a)(4). The bankruptcy court’s finding of subjective recklessness was a reasonable finding from the circumstantial evidence. In essence, the court found, Jahrling’s breaches of an attorney’s fiduciary duty to his client were so basic and the risk of harm to the client so obvious that Jahrling must have recognized them and proceeded despite the risk. We find no error in this analysis.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Larry A. Boss v. Julian Castro

Case No.: 14-2996

Officials: EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge*.

Focus: Workplace Discrimination

Appellant fails to provide any evidence sufficient to show hostile work environment or discrimination.

“The facts in this case are a far cry from the type of offensiveness that supports a hostile work environment claim. Boss was assigned tasks he did not prefer, but those tasks were far from the mind‐numbing tasks that had already been performed in Hall. Nowhere in the record are comments meant to intimidate him, threaten him, or which would be so severe or persuasive as to alter his work environment. The evidence does not suffice to show a workplace permeated with discriminatory ridicule, intimidation, and insult, or one where Boss’ supervisors acted against him for any prohibited reason. The district court properly granted summary judgment on Boss’ hostile work environment claim.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Bradley S. Gallentine

Case No.: 2014AP2910-CR

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

Focus: DNA Testing – Court Error

Bradley Gallentine, pro se, appeals an order denying his WIS. STAT. § 974.07 (2013-14)1 postconviction motion for DNA testing. Gallentine argues the circuit court erred by denying his request to retest DNA, claiming that new testing procedures would yield more favorable results than the test utilized pretrial. We reject Gallentine’s arguments and affirm the order.

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Perry R. Neal

Case No.: 2015AP228

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

Focus: Sufficiency of Claims

Perry Neal appeals an order denying his WIS. STAT. § 974.06 motion for postconviction relief, his fourth such motion following his direct appeal from a judgment of conviction in 2000 for various domestic violence offenses. We conclude all the issues Neal raises are procedurally barred under WIS. STAT. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because he has not demonstrated a sufficient reason for his failure to raise them in a prior postconviction motion. Accordingly, we affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenneth Leonard Long

Case No.: 2015AP623-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: General Appeal – Kidnapping

Kenneth Leonard Long, pro se, appeals a judgment convicting him of kidnapping and first-degree sexual assault, with use of a dangerous weapon. Long argues that: (1) his arrest was illegal; (2) he was not timely brought before a magistrate after his arrest; and (3) his confession was involuntary because the police deceived him. We affirm

WI Court of Appeals – District I

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

Case No.: 2015AP707

Officials: KESSLER, J.

Focus: Termination of Parental Rights

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Germaine Heart

Case No.: 2015AP819-CR

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

Focus: Sufficiency of Evidence

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jack M. Suriano

Case No.: 2015AP959-CR

Officials: SEIDL, J.

Focus: 6^th Amendment

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Larry V. Howard

Case No.: 2015AP1196-CR

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

Focus: DNA Surcharge

Larry V. Howard, pro se, appeals from a judgment of conviction for solicitation for first-degree intentional homicide, see WIS. STAT. § 939.30(1) (2007-08), and an order denying his postconviction motion to remove the $250 DNA surcharge. At the time Howard committed the crime, the imposition of a $250 DNA surcharge for the offense was subject to the circuit court’s discretion; however, by the time he was sentenced, the $250 DNA surcharge was mandatory for all felony convictions. Howard argues that WIS. STAT. § 973.046(1r) as it is applied to him violates the ex post facto clauses of the United States and Wisconsin Constitutions. We disagree and affirm the judgment and order of the circuit court.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Peter Brown

Case No.: 2015AP1-CR

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

Focus: Double Jeopardy – Sentence Credit

Peter Brown appeals from a judgment convicting him of being a felon in possession of a firearm and from orders denying his postconviction motion to vacate his conviction on double jeopardy grounds and for sentence credit. We affirm the circuit court in all respects.

WI Court of Appeals – District II

Case Name: Adam M. Berger et al v. Herb G. Schroeder & Sons, Inc., et al

Case No.: 2015AP212

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

Focus: Home Improvement – Breach of Contract

Herb G. Schroeder & Sons, Inc. and Thomas Robert Schroeder (Schroeder) appeal from a judgment entered against them after a jury determined that they were liable to Adam and Christina Berger in relation to home improvement work. We affirm the judgment.

WI Court of Appeals – District II

Case Name: Joshua Oddsen, et al v. Elizabeth Henry et al

Case No.: 20165AP765

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

Focus: Duty to Defend – Insurance

WI Court of Appeals – District II

Case Name: John M. Kelly et al, v. Paula Brown, et al

Case No.: 2015AP777

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

Focus: Attorney Fees

Lois Noone held a power of attorney (POA) for her mother Elizabeth Carpenter. Some of Elizabeth’s other children brought an action to review certain decisions Noone made on their mother’s behalf. Attorney John M. Kelly defended Noone in the action and was paid over $25,000 in fees. During the pendency of the action, Elizabeth passed away. The circuit court concluded the underlying action was moot, but nonetheless entered an order limiting Kelly’s attorney’s fees to just $6000, asserting it had the authority to do so under WIS. STAT. § 244.16(1) (2013-14). 1 Kelly and his firm—John M. Kelly, Attorney at Law, LLC—appeal this order. Kelly argues that WIS. STAT. § 244.16(1) does not give the circuit court the authority to adjust his fees absent finding misconduct on the part of Noone. We agree and, therefore, reverse the circuit court’s order. Because we reverse on this ground, we need not address additional grounds for relief raised by Kelly.

Recommended for Publication

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Matthew A. McDowell

Case No.: 2015AP811-CR

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

Focus: Sentencing

Matthew A. McDowell appeals from a judgment of conviction entered upon his guilty pleas to first-degree reckless homicide and hiding a corpse, and from an order denying his postconviction motion for sentencing relief. McDowell argues that the sentencing court relied on inaccurate information concerning a prior domestic incident with an ex-girlfriend, and that the medical examiner’s preliminary hearing testimony concerning the nature of the victim’s injuries constitutes a new factor. Because McDowell has failed to establish the inaccuracy of any information presented at sentencing or the existence of a new factor, we affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kelly Rainey

Case No.: 2015AP1063-CR

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

Focus: Sentence Enhancer – Repeater

WI Court of Appeals – District II

Case Name: Fair Finance Corp. v. Roommates, LTD

Case No.: 2015AP728

Officials: Lundsten, Higginbotham and Sherman, JJ

Focus: Summary Judgment – Court Error

WI Court of Appeals – District IV

Case Name: Village of Black Earth v. Black Earth Meat Market, LLC

Case No.: 2015AP912; 2015AP913

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

Focus: Nuisance – Ordinance Violations

Village of Black Earth appeals the circuit court’s grant of summary judgment in favor of Black Earth Meat Market, LLC, dismissing ten citations issued by the Village against BE Meats for nuisance and traffic ordinance violations.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Shawn M. Schuett

Case No.: 2015AP1232-CR

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

Focus: Restitution – Abuse of Discretion

Shawn Schuett appeals from the restitution component of a criminal judgment and an order denying him postconviction relief. He raises two issues. First, he challenges whether the person and insurer seeking restitution (collectively, B.S.) qualified as “victims” of his crimes of conviction within the meaning of WIS. STAT. § 973.20 (2013-14). Second, he contends that the circuit court erroneously exercised its discretion by entering a restitution order without first holding a hearing. For the reasons discussed below, we conclude that B.S. met the statutory definition of a crime victim entitled to restitution, but that Schuett was entitled to a hearing to challenge the amount of restitution. Accordingly, we affirm the circuit court’s ruling regarding B.S.’s eligibility for restitution, but reverse the postconviction order and the portion of the judgment imposing restitution, and remand for a restitution hearing.