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Weekly Case Digests — June 27-July 1, 2016

By: WISCONSIN LAW JOURNAL STAFF//July 1, 2016//

Weekly Case Digests — June 27-July 1, 2016

By: WISCONSIN LAW JOURNAL STAFF//July 1, 2016//

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7th Circuit Case Digests

7th Circuit Court of Appeals

Case Name: Semir D. Sirazi, et al v. General Mediterranean Holding, SA et al

Case No.: 15-3655, 15-3505

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

Focus: Award of Damages – Settlement Agreement

Award of damages upheld minus punitive damages.

“Rezko breached the settlement agreement by failing to pay Sirazi anything, and the jury could as it did find GMH liable for tortious interference with contract because it induced Rezko to flout his agreement to repay Sirazi. But Sirazi’s suit also charges GMH with unjust enrichment and conspiracy, and this may seem piling on unjustly. But it isn’t. A person or firm can tortiously interfere with a contract with‐ out obtaining any money from his tort. But GMH did obtain money from defrauding Sirazi, by deflecting to itself money owed Sirazi. It was thus enriched unjustly. Likewise it con‐ spired with Rezko to transfer his property to it without pay‐ ing anything to Sirazi, thus further deflecting to GMH money owed Sirazi. As there was no possible excuse for the de‐ liberate misconduct, amounting to theft, in which GMH engaged, there is no basis for overruling the jury’s award of $5 million in punitive damages against GMH.”

Affirmed in part

Reversed in Part

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7th Circuit Court of Appeals

Case Name: Jacob Saathoff et al. v. Andre Davis

Case No.: 15-3415

Officials: FLAUM and MANION, Circuit Judges, and ALONSO, District Judge.*

Focus: 4th amendment Violation

Appellants reproduce evidence in their favor without addressing countervailing evidence and district courts analysis.

“When it ruled on plaintiffs’ motion for a new trial, the district court applied the proper standard, citing Mejia, and reasoned as follows: At trial, this court had the opportunity to observe the manner and demeanor of the witnesses who testified. During their testimony, all three Plaintiffs, by their body language and choice of words, showed that they were angry and believed that they were entitled to substantial damages for the loss of their dog. It appeared that Plaintiffs’ presentation of evidence was more focused on damages than liability. This court wants to be clear that Plaintiffs did present evidence from which a jury could have found in their favor. However, in contrast to the Plaintiffs, Defendant came across on the witness stand as a very reasonable person who came into a chaotic, emergency situation and did what he thought was best at the time. This court therefore concludes that the jury was presented with a legally sufficient amount of evidence from which the jury could reasonably derive its verdict in favor of Defendant. We find no fault with this assessment of the evidence at trial, which also showed that Davis had prior experience with pit bulls and knew they could be vicious. And the dog involved in this fight was indeed described as vicious. Davis offered plausible reasons for rejecting alternative courses of action, including the risk of danger to the bystanders. Plaintiffs are adamant that this risk was not “immediate,” but they fail to acknowledge that a vicious dog was involved and the situation thus could have changed at any moment.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Charles A. Evans

Case No.: 15-2287

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

Focus: Sentencing

Pleading guilty does not assure any reduction in sentence for acceptance of responsibility.

““When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, ‘he is presumed not to have accepted responsibility.’” United States v. Ewing, 129 F.3d 430, 435 (7th Cir. 1997) (quoting United States v. Larsen, 909 F.2d 1047, 1050 (7th Cir. 1990)). In “extraordinary cases,” a defendant may initially obstruct justice and later accept responsibility. U.S.S.G. § 3E1.1 cmt. n.4; United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000). Evans compares himself to the defendant in United States v. Lallemand, who cooperated with the police by retracting his instruction to an accomplice to destroy evidence. 989 F.2d 936, 937–39 (7th Cir. 1993), abrogated in unrelated part by United States v. Vizcarra, 668 F.3d 516, 523–25 (7th Cir. 2012). But the analogy is unsound because the defendant in Lallemand tried to terminate the planned obstruction immediately after he was arrested, whereas Evans embarked on a course of obstructive conduct after—and because—he had been detained on a probation hold.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Women’s Health Link, Inc. v. Fort Wayne Public Transportation Corp.

Case No.: 16-1195

Officials: POSNER and SYKES, Circuit Judges, and YANDLE, District Judge.

Focus: Advertising – Freedom of Expression

Summary judgment in favor of respondent that denied appellant ad from being presented was improper.

“But this is an aside. What is important is not what other advertisers are permitted to do but that Citilink’s ad censor‐ ship policy is limited to ad content, and the content of Health Link’s proposed ad lacks the faintest suggestion of a political, religious, or moral aim or agenda. The district judge missed this essential point, stating that Citilink’s “restrictions on non‐commercial, political, religious, and moral speech apply to the advertiser, not to the service providers listed on their websites.” No, the restrictions are limited to the advertisement; and the ban on non‐commercial speech in the bus ads is inapplicable to public service announcements, such as Health Link’s proposed ad.”

Reversed with instruction to enter judgment for appellant

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7th Circuit Court of Appeals

Case Name: Nancy J. Thomas v. Carolyn W. Colvin

Case No.: 15-2390

Officials: WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges

Focus: Disability Benefits – Supplemental Security Income

ALJ improperly omitted ailments from appellants list of impairments and improperly denies appellant request for benefits.

“Thomas also criticizes the ALJ’s failure to grapple with records from Thomas’s physical therapy sessions in his assessment of what the objective medical evidence says about her limitations. Even though a physical therapist is not an acceptable medical source for determining a claimant’s impairments, this evidence may be used to show the severity of an impairment and how it affects a claimant’s ability to function. See 20 C.F.R. § 416.913(d)(1); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). The second physical therapist’s initial evaluation and a progress note contained detailed discussions of Thomas’s pain and movement limitations, including that Thomas had difficulty with heel and straight leg raises and bending. The ALJ ignored those statements, however, and noted only that “a resulting progress note indicated that the claimant’s complaints of pain were rather vague” and that, “on at least two occasions, the claimant refused to do more than lay [sic] in a prone position, reportedly secondary to ‘pain all over’ and dizziness” (even though these are symptoms associated with fibromyalgia as well, see SRR 12-2p, 2012 WL 3104869, at *3, nn. 9). Although the ALJ was not required to mention every piece of evidence, providing “an accurate and logical bridge” required him to confront the evidence in Thomas’s favor and explain why it was rejected before concluding that her impairments did not impose more than a minimal limitation on her ability to perform basic work tasks. Roddy, 705 F.3d at 636; see Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Carlos G. Rocah v. J. Gordon Rudd, Jr. et al

Case No.: 15-1538

Officials: KANNE, ROVNER, and SYKES, Circuit Judges

Focus: Legal Malpractice

Appellant arguments for legal malpractice rife with conclusory statements of wrongdoing without stating plausible claims for relief.

“Regarding whether a complaint states a plausible claim of relief, the Supreme Court has articulated a two‐pronged approach in which a court: (1) first identifies the well‐ pleaded factual allegations by discarding the pleadings that are “no more than conclusions” and (2) then determines whether the remaining well‐pleaded factual allegations “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Here, after discarding all conclusory statements of wrongdoing, it appears that Rocha’s proposed second amended complaint merely alleges the following: that De‐ fendants engaged in fraud during communication with Ro‐ cha between June and August 2012 regarding the terms of the Fluegel settlement. (Pl.’s Proposed Second Am. Compl. ¶¶ 140–53.) Not only do Rocha’s claims fail to “plausibly give rise to an entitlement to relief,” but they are completely undercut by his own pleadings and exhibits, which establish Defendants’ honest and clear presentation of the settlement terms, including FedEx’s requirement for release of all claims by individuals and associated corporations. (Id. ¶¶ 140–53, Exs. A, B, C, D, E, G, H).  “

Affirmed

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7th Circuit Court of Appeals

Case Name: Rashaad A. Imani v. William Pollard

Case No.: 14-3407

Officials: WOOD, Chief Judge, and BAUER and HAMILTON, Cir cuit Judges.

Focus: 6th Amendment

Trial judge improperly prevented appellant from representing himself pro-se in criminal prosecution in state court.

“Only in rare cases will a trial judge view a defendant’s choice to represent himself as anything other than foolish or rash. Ajudge does not violate a defendant’s Sixth Amendment rights by explaining the risks to the defendant in detail and then giving him time to think it over before the defendant (but not the judge) makes the final decision. Wisconsin’s required colloquy serves precisely this purpose. See State v. Klessig, 564 N.W.2d 716, 721 (Wis. 1997). But in the end a competent de‐ fendant has a constitutional right to represent himself even if the judge thinks the defendant has no good reason to do so. It is the trial judge’s job to make sure the defendant makes that choice with open eyes. Nothing in Faretta or its progeny al‐ lows the judge to require the defendant to prove he is making the choice for a reason the judge finds satisfactory. See Faretta, 422 U.S. at 834–35. The state courts denied Imani his Sixth Amendment rights by preventing him from representing himself on the ground that he did not persuade the trial judge

that he had a good reason to do so. That reasoning was simply contrary to Faretta.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: John Germeraad v. Myrick Powers et al

Case No.: 15-3237

Officials: BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge. *

Focus: Bankruptcy

Trustee files motion to modify bankruptcy plan to increase debtor payments due to increase in debtor income.

“Perhaps the debtor means to argue that a plan may be modified to increase payments only when modification is necessary to bring the debtor into compliance with the good‐ faith requirement. But § 1325(a)(3), by its terms, applies only to the proponent of a plan, which obviously will not be the debtor when the modification is requested by the trustee or an unsecured creditor. Although the debtor’s good faith will have been at issue when the debtor proposed the original plan, and will be at issue when it is the debtor who requests modification under § 1329, the debtor’s good faith is not at is‐ sue when the modification is proposed by the trustee or an unsecured creditor. We also reject Owens‐Powers’s suggestion that the bankruptcy court actually denied the trustee’s modification be‐ cause he had failed to show that good faith required the in‐ crease in plan payments. Although the bankruptcy court referenced the good‐faith standard three times in its opinion, two references were merely observations that the standard applies to modification under § 1329(b)(1). See Powers, 507 B.R. at 273, 274. In the third reference, the bankruptcy court stated that “[m]odification requests, whether made by a trustee or a debtor, must be proposed in good faith, and moving to modify to circumvent the original confirmation requirements may suggest bad faith.” Id. at 272. Here, the court did not find that the trustee had, in fact, proposed the modified plan in bad faith. Rather, the court made this statement during the course of a larger discussion in which the court rejected the trustee’s suggestion that modification could be based on equitable grounds rather than on an express Code

provision. See id. at 270–73. At no point did the court suggest that it would have approved the modification if the trustee had shown that good faith “required the increase,” as the debtor suggests.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: ACF 2006 Corp v. Mark C. Ladendorf et al

Case No.: 15-3037; 15-3048

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

Focus: Apportionment of Fees – Quantum Meruit

Victims have priority over lender for funds fraudulently taken by law firm in fraud action.

“The norm that victims of a lawyer’s breach of trust have a remedy notwithstanding the later grant of a security interest to a commercial lender is one of long standing and is reflected in Indiana by §30-4-3-22(c)(2). Section 23-1.5-2-7 tells us that the use of the corporate form to hold assets of a legal practice does not change that norm. It follows that the Victims have priority over the Lender in the funds that the Conour Firm is entitled to receive from the Lawyers.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Jaded Mahelet Ruvalcaba Martinez v. Peter Valdez Cahue

Case No.: 16-1609

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

Focus: International Child Abduction Remedies Act

Respondent’s failure to return child to Mexico to parent with legal custody of the child was improper.

“Martinez’s initial decision to move A.M. to Mexico was lawful: she had sole custody over A.M. under Illinois law, and neither Illinois law nor the Convention precluded her from moving with her son to Mexico with or without Cahue’s permission. Cahue had no rights of custody over A.M. that qualified Martinez’s position. Once in Mexico, A.M. adapted readily to his new home, such that by August 2014, when his father refused to return him, he was being kept from his habitual residence. Cahue retained A.M. in violation of Martinez’s rights of custody under Mexican law—rights that she exercised continuously. Cahue’s retention of A.M. was therefore wrongful under the Convention. Finally, applying a defense here would not serve the aims of the convention.”

Reversed with order to return child to Mexico

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7th Circuit Court of Appeals

Case Name: John J. Otrompke v. Bradley Skolnik et al

Case No.: 15-3875

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

Focus: Standing

Appellant cannot bring suit enjoining enforcement of Rule 12(3) of Indiana Rules for Admission to the Bar due to lack of standing.

“He lacks standing because he’s failed to show that unless he obtains a judgment against the defendants he will be harmed because until then Rule 12(3) will remain in effect and prevent his admission to the Indiana bar. The rule will harm him only if he would be admitted to the Indiana bar were the rule to be invalidated but not otherwise. And that is highly unlikely, as we know from our previous involvement in his tempestuous relations with the Illinois bar authorities. After the state’s Committee on Character and Fit‐ ness deemed him unfit to practice law, citing his failure to acknowledge on his bar and law school applications his multiple arrests and firings over the previous decade, he sought to obtain admission by suing the state’s Board of Admissions in federal district court. He lost, see Otrompke v. Chairman of the Committee on Character & Fitness for the First Judicial District of Illinois, 2005 WL 3050618 (N.D. Ill. Nov. 7, 2005), didn’t appeal, but ten years later again sued the Board of Admissions (along with the Illinois attorney general, who has however no authority with regard to bar admission standards), again lost, this time appealed—and lost still again. In Otrompke v. Hill, 592 F. App’x 495, 497 (7th Cir. 2014), affirming the district court’s dismissal of his suit after modifying the dismissal to base it on want of jurisdiction, we explained that the Rooker‐Feldman doctrine divested the district court of jurisdiction to review the state supreme court’s decision rejecting his application.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Board of Trustees of the Automobile Mechanics’ Local No. 701 Union and Industry Pension Fund v. Full Circle Group, Inc. et al

Case No.: 15-2497

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

Focus: Successor Liability

Court prematurely makes ruling on successor liability

“As noted in Tsareff v. ManWeb Services, Inc., supra, 794 F.3d at 845, “substantial continuity in the operation of the business before and after the sale” of its assets is a requirement for successor liability. For had the business not changed there would be no reason for its financial structure to change—no reason therefore to allow the successor company to obtain a windfall by acquiring assets free of liabilities, leaving its predecessor with liabilities but no assets. Enough evidence was presented of continuity of business between HMC and FCG to preclude summary judgment in favor of FCG on grounds of discontinuity, and enough no‐ tice that FCG (which is to say Mark Hannah) had notice of HMC’s pension fund liability to preclude summary judgment on the ground that FCG lacked notice of possible successor liability.”

Affirmed in part

Reversed and remanded in part

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7th Circuit Court of Appeals

Case Name: Marcos Gray v. Marcus Hardy

Case No.: 13-3413

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: Cruel & Unusual Punishment

Court prematurely dismissed appellants 8th amendment violation claims related to inhumane conditions of appellant prison cell.

“Gray’s grievance demonstrates the prison and warden’s knowledge of the conditions about which he is complaining. The response he received was signed by Warden Hardy. The grievance and response are thus sufficient to create a triable issue of fact on deliberate indifference. See Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“an inmate’s letters to prison administrators may establish a basis for § 1983 liability” where “the communication, in its content and manner of transmission, gave the prison official sufficient notice to alert him or her to an excessive risk to inmate health or safety” (internal quotation marks omitted)). (We note that Warden Hardy does not rely on Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc), which held, following Ashcroft v. Iqbal, 556 U.S. 662 (2009), that knowledge of subordinates’ misconduct is not enough for liability. 701 F.3d at 204. Regardless, Gray alleges that Hardy not only knew about the problems but was personally responsible for changing prison policies so that they would be addressed.)”

Reversed and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Bruce Middleton et al v. American Family Mutual Insurance Company, et al

Case No.: 2015AP52

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

Focus: Insurance Proceeds – Foreclosure

Bruce and Angela Middleton appeal a summary judgment granted in favor of Wells Fargo Bank, N.A. and Select Portfolio Servicing, Inc. (collectively, Wells Fargo), declaring Wells Fargo is entitled to proceeds owed under the dwelling coverage section of a property insurance policy issued by American Family Mutual Insurance Company. The Middletons argue the terms of the mortgage do not give Wells Fargo the right to claim the insurance proceeds and Wells Fargo waived any claim to the insurance proceeds by electing foreclosure in lieu of a deficiency judgment. The Middletons also contend the note they signed was discharged in bankruptcy and, therefore, cannot be enforced. Alternatively, the Middletons argue Wells Fargo is estopped from seeking more than $95,017.57 from the subject insurance policy proceeds. For the reasons stated below, we reject these arguments and affirm the judgment.

WI Court of Appeals – District III

Case Name: John Pechacek v. State Farm Mutual Automobile Insurance Company et al

Case No.: 2015AP528

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

Focus: Uninsured Motorist Coverage

State Farm Mutual Automobile Insurance Company appeals a summary judgment in this dispute regarding uninsured motorist (UM) coverage. Joann Pechacek has three motor vehicle insurance policies with State Farm, one for each vehicle she owns. Following the accident at issue, State Farm paid Pechacek an amount equal to the per-person limit of UM coverage available under the policy describing the vehicle in which Pechacek was riding at the time of the accident. State Farm contends the circuit court erred when it determined Pechacek was entitled to “stack” UM coverages provided by the other two motor vehicle policies. Because a “drive other car” exclusion in these two policies precludes coverage for the accident at issue (and therefore precludes stacking of the three policies’ coverage limits), we agree with State Farm and reverse.

WI Court of Appeals – District I

Case Name: Ralph Sasson v. Stephen Kravit, et al

Case No.: 2015AP618

Officials: Kessler, Brennan and Brash, JJ.

Focus: Court Error – Abuse of Discretion

Sasson appeals, arguing that: (1) the trial court erred in granting summary judgment because his claims were legally sufficient and material factual disputes existed; (2) the trial court misused its discretion in finding Sasson made a judicial admission when he agreed on the record that he had been found in contempt; (3) the trial court erred in finding Sasson’s claims to be barred by the doctrine of issue preclusion; (4) the trial court erred in finding he had engaged in a pattern of frivolous litigation and in finding Sasson’s claims to be frivolous in this case; and (5) the trial court misused its discretion in viewing Sasson’s motion for relief from judgment as a motion for reconsideration. We agree with the trial court and affirm. We conclude that each of Sasson’s claims here is based on faulty factual and legal premises, namely, Sasson’s arguments that: (1) he was never subject to a “standing seal order” in the first lawsuit prohibiting him from releasing the deposition; and (2) he was never found in contempt in the first lawsuit for releasing the deposition, and even if he was found in contempt, he should not have been. Because the record is clear that Sasson was found in contempt in the first lawsuit and never appealed the contempt finding, we need not revisit that issue. And because our decision in Sasson I clearly established that he was subject to the “standing seal order” in the first lawsuit and properly sanctioned with the dismissal of all claims as a sanction for his egregious conduct and bad faith, we need not (and cannot) revisit that issue. See Cirilli v. Country Ins. & Fin. Servs., 2013 WI App 44, ¶8, 347 Wis. 2d 481, 830 N.W.2d 234 (citation omitted) (issue preclusion prevents relitigation of issues that have actually been litigated in a prior proceeding).

WI Court of Appeals – District III

Case Name: State of Wisconsin v John Wayne Allen

Case No.: 2015AP958-CR

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

Focus: Resentencing – Court Error

John Wayne Allen appeals a judgment sentencing him to one hundred years’ imprisonment and an order denying his motion for resentencing. He contends the sentencing court erroneously exercised its discretion by failing to acknowledge an actuarial assessment that scored Allen as a

low risk to reoffend, by imposing the maximum consecutive sentences instead of the least amount of confinement necessary, and by imposing an excessively harsh sentence. We reject these arguments and affirm the judgment and order.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lester David Roberts

Case No.: 2015AP1117-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Sentence Modification

Lester David Roberts appeals a judgment convicting him of two counts of injury by intoxicated use of a vehicle. He also appeals an order denying his postconviction motion. Roberts argues that his sentence should be modified based on a “new factor,” his statutory ineligibility for the challenge incarceration program and the earned release program (now known as the substance abuse program). We affirm.

WI Court of Appeals – District III

Case Name: City of Kaukauna v. Public Service Commission of Wisconsin et al

Case No.: 2015AP1182

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

Focus: Declaratory Ruling

The City of Kaukauna appeals an order of the circuit court affirming the Public Service Commission’s (PSC) order granting Wisconsin Public Service Corporation’s (WPSC) request for a declaratory ruling that it is entitled to self-supply electric power to the Fox Energy Center. Kaukauna argues that a territorial agreement between Kaukauna and WPSC prohibits WPSC from supplying electric power to the Fox Energy Center. Specifically, Kaukauna argues that: (1) we should review the PSC’s decision under the de novo standard of review; and (2) the PSC erroneously determined that in entering into a territorial agreement, the parties did not waive their ability to provide electric service to their own property or facilities under WIS. STAT. § 196.495(3) (2013-14).  We affirm

WI Court of Appeals – District I

Case Name: Katheryn A. Ehlinger v. Hector J. Galindez

Case No.: 2015AP1428

Officials: BRENNAN, J.

Focus: Motion for Contempt

Kathryn Ehlinger appeals from an order denying her motion for contempt and reimbursement due to Hector Galindez’s failure to pay variable child support related costs. Ehlinger argues that the circuit court erred when it concluded that the evidence did not support a finding that Galindez was in contempt. Because the circuit court properly exercised its discretion, we affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Oshay Thomas

Case No.: 2015AP1518-CR

Officials: Kessler, Brennan and Brash, JJ

Focus: Court Error – Motion to Suppress

Michael Oshay Thomas appeals a judgment of conviction, following a jury trial, of being a felon in possession of a firearm. Thomas also appeals the order denying his motion for postconviction

relief. Thomas contends that the trial court erroneously denied his motion to suppress evidence. We affirm.

WI Court of Appeals – District III

Case Name: Brand MacMillan Windmiller v. Mary Fay Windmiller

Case No.: 2015AP1814

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

Focus: Divorce – Maintenance

This case concerns post-judgment litigation in a divorce case. Mary Faye Windmiller appeals from a trial court order that: (1) reduced the amount of maintenance that her ex-husband, Brand MacMillan Windmiller, is required to pay her; and (2) found her in contempt and imposed remedial sanctions against her. As to the maintenance issue, we conclude that the trial court did not adequately identify the substantial change in circumstances affecting Brand or explain why Mary’s loss of employment was not a substantial change in circumstances. The trial court also did not discuss and apply the statutory factors that must be considered before maintenance can be modified. Therefore, as to the maintenance issue only, we reverse the portions of the trial court’s order that granted Brand’s motion to reduce his maintenance payments and denied Mary’s motion to modify the maintenance she receives. We remand the case back to the trial court so that it can further consider and explain whether there has been a substantial change in circumstances with respect to either party and, if so, whether the factors in WIS. STAT. § 767.56(1c) (2013-14) justify modifying maintenance. We reject Mary’s challenge to the remedial contempt portion of the order. Finally, because we affirm in part and reverse in part, we direct that neither party is entitled to costs on appeal.

WI Court of Appeals – District III

Case Name: Tracie L. Flug v. Labor and Industry Review Commission et al

Case No.: 2015AP1989

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

Focus: Workers Compensation

Tracie Flug appeals an order affirming a decision of the Labor and Industry Review Commission that denied Flug’s worker’s compensation claim. The Commission concluded Flug was not entitled to temporary total disability benefits, permanent partial disability benefits, and medical treatment expenses that she alleged were related to a workplace injury. Flug contends the Commission made several errors of law, and she also argues the evidence was insufficient to support the Commission’s decision We reject Flug’s arguments, with one exception. For the reasons explained below, we conclude the Commission erroneously determined Flug was not entitled to disability benefits under WIS. STAT. § 102.42(1m) without first considering whether she underwent invasive treatment for a compensable injury in good faith. We therefore reverse the circuit court’s order affirming the Commission’s decision. We remand the matter to the Commission for additional fact-finding on the issue of good faith and, if necessary, for a determination of the damages to which Flug is entitled.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Antonio D. Barbeau

Case No.: 2014AP2876-CR

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

Focus: Sentencing – Extended Supervision – Error

Antonio D. Barbeau, a few months shy of his fifteenth birthday, pleaded no contest to the first-degree intentional homicide of his great-grandmother. He was sentenced to life imprisonment with the right to seek release to parole supervision on his fiftieth birthday in 2048, after thirty-five years of imprisonment. Later, at the prodding of the Department of Corrections (DOC), the circuit court discovered that Barbeau was actually eligible for release to extended supervision and not parole. The court, the district attorney, and defense counsel all agreed that the judgment should be amended so that Barbeau would be eligible for release to extended supervision in 2048. However, before the judgment was amended, Barbeau, with new counsel, moved for resentencing, arguing that the error in imposing a parole eligibility date rather than an extended supervision eligibility date was a new factor that warranted modifying his sentence so that he would be eligible for release to extended supervision after twenty, instead of thirty-five, years of imprisonment. In addition, Barbeau argued that the statutory scheme he was sentenced under violated the prohibitions against cruel and unusual punishment contained in the United States and Wisconsin Constitutions. The circuit court granted Barbeau’s motion only to the extent of amending the judgment to reflect that he was eligible for extended supervision on November 24, 2048. We reject Barbeau’s contentions that the error at sentencing is a new factor that justifies a modification of his sentence and that his sentence is cruel and unusual; thus, we affirm.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. David L. Vickers

Case No.: 2015AP1631-CR

Officials: NEUBAUER, C.J.

Focus: Ineffective Assistance of Counsel

David L. Vickers appeals both from a judgment entered after he was found guilty of misdemeanor retail theft and bail jumping, and an order denying his motion to reverse the judgment based on trial counsel having rendered constitutionally ineffective assistance. Vickers contends that trial counsel should have investigated if John Wright, a passenger in the vehicle with Vickers when Vickers was stopped, had stolen all the property found in Vickers’ car, and that counsel should have moved to suppress that evidence. Vickers has failed to carry his burden of showing that trial counsel was ineffective; thus, we affirm.

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Armando Mezo-Reyes

Case No.: 2015AP1746-CR; 2015AP1747-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Court Error – Motion to Suppres

Armando Mezo-Reyes appeals from judgments convicting him after a jury trial of second-degree sexual assault, misdemeanor battery, and two counts of sexual intercourse with a child over sixteen, contrary to WIS. STAT. §§ 940.225(2)(a), 940.19(1), and 948.09 (2013-14).  We reject his contentions that the trial court erred in denying his motions to suppress his custodial statements and for a mistrial. We affirm the judgments in the main but reverse them in part and remand to the trial court to vacate the DNA analysis surcharges assessed for the misdemeanor convictions.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher M. Molzahn

Case No.: 2014AP2953; 2014AP2954

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

Focus: Ineffective Assistance of Counsel

Christopher Molzahn appeals judgments of conviction for two counts of stalking and one count of felony bail jumping, and the circuit court’s order denying postconviction relief. Molzahn argues that his trial counsel was ineffective in multiple respects, and that the circuit court erroneously excluded medical records evidence relevant to the stalking charges and erroneously imposed restitution for damage to the victims’ vehicles. All but one of Molzahn’s arguments relate to the stalking charges, and we reject those arguments and affirm the judgments as to the stalking convictions in every respect. As to the one argument that relates to the bail jumping charge, we agree that Molzahn’s trial counsel was ineffective and we reverse the bail jumping conviction and remand for a new trial on that charge

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher M. Marcus

Case No.: 2015AP702-CR

Officials: Lundsten, Higginbotham and Sherman, JJ.

Focus: Sufficiency of Evidence – New Trial

Christopher Marcus appeals from an order denying his motion for postconviction relief and an order denying reconsideration of his motion, as well as judgments of conviction and sentences for disorderly conduct and substantial battery, both as domestic abuse. He argues that he is entitled to have the substantial battery conviction vacated because the evidence was insufficient to convict on that charge. He also argues that he is entitled to a new trial because the circuit court gave the jury an instruction on voluntary intoxication and because trial counsel was ineffective in several respects. We reject his arguments and affirm the judgments and orders.

WI Court of Appeals – District IV

Case Name: Penny L. Springer v. Nohl Electric Products Corporation et al

Case No.: 2015AP829

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Successor Liability

Penny Springer appeals a judgment of the circuit court granting summary judgment in favor of Powers Holdings, Inc. and Fire Brick Engineers Company, Inc. (FBE Company, Inc.) (collectively, the respondents). Springer filed the present action against the respondents, seeking to hold them liable under the theory of successor liability for damages stemming from the death of Springer’s husband. For the reasons explained below, we reverse the judgment.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Frederick S. Burger

Case No.: 2015AP1210-CR

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

Focus: Motion to Suppress

Frederick Burger appeals a judgment convicting him of possession of marijuana with intent to deliver. The sole issue on appeal is whether the circuit court properly denied Burger’s motion to suppress evidence seized from Burger’s vehicle without a warrant. For the reasons discussed below, we affirm.

WI Court of Appeals – District IV

Case Name: The Segregated Account of Ambac Assurance Corporation, et al v. Countrywide Home Loans, Inc.

Case No.: 2015AP1492

Officials: Lundsten, Higginbotham, and Blanchard, JJ.

Focus: Jurisdiction

The Segregated Account of Ambac Assurance Corporation (the Segregated Account) and Ambac Assurance Corporation (collectively, “the insurers”) appeal an order dismissing for lack of personal jurisdiction the insurers’ action for fraudulent inducement against Countrywide Home Loans, Inc., a New York corporation. The insurers contend that there are three independent bases for personal jurisdiction over Countrywide in this action. However, we address only one of these arguments, because we conclude that it is dispositive in favor of the insurers. The insurers contend that Countrywide consented to general personal jurisdiction by following the requirement in WIS. STAT. § 180.1507 (2013-14)1 that, as a “foreign corporation,” Countrywide maintain in Wisconsin “a registered office and registered agent.” Based on Wisconsin Supreme Court precedent that we conclude is controlling, we agree with the insurers and accordingly we reverse.

WI Court of Appeals – District IV

Case Name: Village of McFarland v. Yazan MK Kamal

Case No.: 2015AP1672

Officials: LUNDSTEN, J.

Focus: Newly Discovered Evidence

In 2011, based on pleas of no contest, Yazan MK Kamal was convicted in municipal court for violating ordinances relating to possession of a controlled substance and operating while under the influence of an intoxicant. In 2015, Kamal sought relief from those convictions, first in the municipal court and then in the circuit court, asserting a newly discovered evidence claim. Kamal now appeals the last in a series of orders that effectively denied his requested relief. For the reasons below, I affirm.

WI Court of Appeals – District IV

Case Name: Nicole C. Maher v. Christopher R. Maher

Case No.: 2015AP1976

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Court Error – Divorce

Christopher Maher appeals a judgment of divorce, challenging the property division and the maintenance award. We understand Christopher to argue that the circuit court erroneously exercised its discretion by: (1) classifying Nicole Maher’s student loan debt as divisible marital property; and (2) failing to give sufficient weight to Christopher’s contribution to Nicole’s education and training when awarding an unequal property division in Christopher’s favor, in lieu of awarding Christopher maintenance. For the reasons set forth below, we affirm

WI Supreme Court Digests 

WI Supreme Court

Case Name: James A. Black et al v. City of Milwaukee

Case No.: 2014AP400

Focus: Statutory Interpretation – Home Rule Amendment

Supreme courts interprets application of the Home Rule amendment

“As to the first issue, we hold that Wis. Stat. § 66.0502 precludes the City from enforcing its residency requirement. The Legislature has the power to legislate on matters of local affairs when its enactment uniformly affects every city or every village, notwithstanding the home rule amendment. For purposes of the home rule amendment, an enactment is uniform when it is facially uniform. Wisconsin Stat. § 66.0502 is facially uniform because it applies to “any city, village, town, county, or school district.” Wis. Stat. § 66.0502 (2) (emphasis added). Because Wis. Stat. § 66.0502 uniformly affects every city or village, it trumps section 5-02 of the City’s charter. As a result, Milwaukee may no longer enforce its residency requirement. As to the second issue, we hold that the Police Association is not entitled to relief or damages under 42 U.S.C. § 1983. Its section 1983 claim fails because the Police Association has not met the requirements necessary to prevail on a section 1983 claim. Specifically, the Police Association has not shown a deprivation of rights, privileges, or immunities protected by the Constitution or the laws of the United States.”

CONCURRING: BRADLEY

DISSENTING: BRADLEY, ABRAHAMSON

Affirmed in Part, Reversed in Part

Full Text

WI Supreme Court

Case Name: John Doe 56 et al v. Mayo Clinic Health System – Eau Claire Clinic, Inc., et al

Case No.: 2014AP1177

Focus:

Tolling date for statute of limitations started on the date of last physical touching by doctor.

“We hold that the Does’ claims accrued on the date of the last physical touching by Dr. Van de Loo because that is the only moment at which a “physical injurious change” occurred. This is consistent with the “physical injurious change” test we use for determining accrual in medical malpractice cases. See Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481 (“[T]he determination of a ‘physical injurious change’ is the appropriate benchmark for establishing the date of ‘injury’ under Wis. Stat. § 893.55(1m)(a).”). The Does’ last appointments with Dr. Van de Loo were December 31, 2008 for Doe 56 and December 31, 2009 for Doe 57. They did not file this medical malpractice action until October 2013, more than three years after each boy’s last genital examination with Dr. Van de Loo. Accordingly, the Does’ claims for medical malpractice are time-barred by the three-year medical malpractice statute of limitations, Wis. Stat. § 893.55(1m)(a).5 Therefore, the decision of the court of appeals is affirmed.”

Affirmed

CONCURRING:

DISSENTING: BRADLEY, ABRAHAMSON

Full Text

WI Supreme Court

Case Name: Prince corporation v. James N. Vandenberg, et al

Case No.: 2014AP2097; 2014AP2295

Focus: Garnishment – Abuse of Discretion

Department of revenue is entitled to garnish a portion of a final land contract

“Given the numerous interests noted by the circuit court and the various consequences that any partitioning action would have, we cannot conclude that no reasonable judge could have denied partition under the facts herein presented. See Heyse, 47 Wis. 2d at 37 (noting that partition statutes are “permissive and within the discretion” of the circuit court to order such remedies where appropriate). Accordingly, we conclude that the circuit court demonstrated a rational decision-making process in concluding that partition was not an appropriate remedy after setting forth the relevant facts and law. Therefore, we agree with the court of appeals’ conclusion that the circuit court did not erroneously exercise its discretion by denying partition of the property based on the record then before the circuit court.”

CONCURRING: ABRAHAMSON, BRADLEY

DISSENTING: ABRAHAMSON , BRADLEY

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Supreme Court Digests

US Supreme Court

Case Name: Encino Motorcars, LLC v. Navarro et al

Case No.: 15-415

Focus: Florida Labor Standards Act

Section 213(b)(10)(A) must be construed without placing controlling weight on the Department’s 2011 regulation.

“When an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and the agency’s interpretation is reasonable. See Chevron, supra, at 842– 844. When Congress authorizes an agency to proceed through notice and-comment rulemaking, that procedure is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chevron should apply. United States v. Mead Corp., 533 U. S. 218, 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation”

Vacated and Remanded

CONCURRING: GINSBURG, SOTOMAYOR

DISSENTING: THOMAS, ALITO

Full Text

US Supreme Court

Case Name: Utah v. Strieff

Case No.: 14-1373

Focus: Admissibility of Evidence – 4th Amendment

Evidence seized incident to arrest admissible and no flagrant misconduct occurred.

“As the primary judicial remedy for deterring Fourth Amendment violations, the exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804. But to ensure that those deterrence benefits are not outweighed by the rule’s substantial social costs, there are several exceptions to the rule. One exception is the attenuation doctrine, which provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593.”

Reveresed

CONCURRING:

DISSENTING: SOTOMAYOR, GINSBURG, KAGAN

Full Text

US Supreme Court

Case Name: Cuozzo Speed Technologies v. Leee

Case No.: 15-446

Focus: Leahy-Smith America Invents Act

Plaintiff challenge to patent office decision to institute inter partes review is barred by Section 314(d)

“The text of §314(d) expressly states that the Patent Office’s determinations whether to institute inter partes review “shall be final and nonappealable.” Moreover, construing §314(d) to permit judicial review of the Patent Office’s preliminary decision to institute inter partes review undercuts the important congressional objective of giving the agency significant power to revisit and revise earlier patent grants. Past practice in respect to related proceedings, including the predecessor to inter partes review, also supports the conclusion that Congress did not intend for courts to review these initial determinations. Finally, reading §314(d) as limited to interlocutory appeals would render the provision largely superfluous in light of the Administrative Procedure Act. “

Affirmed

CONCURRING: THOMAS, ALITO, SOTOMAYOR

DISSENTING: ALITO, SOTOMAYOR

Full Text

US Supreme Court

Case Name: Taylor v. United States

Case No.: 14-6166

Focus: Hobbs Act

The prosecution in a Hobbs Act robbery case satisfies the Act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds.

“Here, the Government met its burden by introducing evidence that Taylor’s gang intentionally targeted drug dealers to obtain drugs and drug proceeds. That evidence included information that the gang members targeted the victims because of their drug dealing activities, as well as explicit statements made during the course of the robberies that revealed their belief that drugs and money were present. Such proof is sufficient to meet the Hobbs Act’s commerce element. “

Affirmed

CONCURRING:

DISSENTING: THOMAS

Full Text

US Supreme Court

Case Name: RJR Nabisco, Inc. European Community

Case No.: 15-138

Focus: Statutory Interpretation – RICO

“The law of extraterritoriality provides guidance in determining RICO’s reach to events outside the United States.”

“The Court applies a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255. Morrison and Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, reflect a two-step framework for analyzing extraterritoriality issues. First, the Court asks whether the presumption against extraterritoriality has been rebutted—i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially. This question is asked regardless of whether the particular statute regulates conduct, affords relief, or merely confers jurisdiction. If, and only if, the statute is not found extraterritorial at step one, the Court moves to step two, where it examines the statute’s “focus” to determine whether the case involves a domestic application of the statute. If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the relevant conduct occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of whether other conduct occurred in U. S. territory. In the event the statute is found to have clear extraterritorial effect at step one, then the statute’s scope turns on the limits Congress has or has not imposed on the statute’s foreign application, and not on the statute’s “focus.””

Reversed and Remanded

CONCURRING: GINSBURG, BREYER

DISSENTING: GINSBURG, BREYER, KAGAN

Full Text

US Supreme Court

Case Name: Fisher v. University of Texas at Austin, et al

Case No.: 14-981

Focus: Affirmative Action

The race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause

“The University’s approach to admissions gives rise to an unusual consequence here. The component with the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but the Top Ten Percent Plan. Because petitioner did not challenge the percentage part of the plan, the record is devoid of evidence of its impact on diversity. Remand for further factfinding would serve little purpose, however, because at the time of petitioner’s application, the current plan had been in effect only three years and, in any event, the University lacked authority to alter the percentage plan, which was mandated by the Texas Legislature. These circumstances refute any criticism that the University did not make good faith efforts to comply with the law. The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests.”

Affirmed

CONCURRING:

DISSENTING: THOMAS, ROBERTS

Full Text

US Supreme Court

Case Name: Birchfield v. North Dakota

Case No.: 14-1468

Focus: Warrantless Search – Blood Tests

The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.

“The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nation’s founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere “fact of the lawful arrest” justifies “a full search of the person.” United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S. ___, the Court considered how to apply the doctrine to searches of an arrestee’s cell phone. Because founding era guidance was lacking, the Court determined “whether to exempt [the] search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Id., at ___. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest”

Vacated and Remanded

CONCURRING: SOTOMAYOR, THOMAS, GINSBURG

DISSENTING: SOTOMAYOR, THOMAS, GINSBURG

Full Text

US Supreme Court

Case Name: Mathis v. United States

Case No.: 15-6092

Focus: Sentence Enhancement

Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s prior convictions cannot give rise to ACCA’s sentence enhancement

“This case is resolved by this Court’s precedents, which have repeatedly held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The “underlying brute facts or means” by which the defendant commits his crime, Richardson v. United States, 526 U. S. 813, 817, make no difference; even if the defendant’s conduct, in fact, fits within the definition of the generic offense, the mismatch of elements saves him from an ACCA sentence. ACCA requires a sentencing judge to look only to “the elements of the [offense], not to the facts of [the] defendant’s conduct.” Taylor, 495 U. S., at 601.”

Reversed

CONCURRING: KENNEDY, THOMAS

DISSENTING: BREYER, GINSBURG, ALITO

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