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Weekly Case Digests — July 18-22, 2016

By: WISCONSIN LAW JOURNAL STAFF//July 22, 2016//

Weekly Case Digests — July 18-22, 2016

By: WISCONSIN LAW JOURNAL STAFF//July 22, 2016//

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7th Circuit Court of Appeals Digest

7th Circuit Court of Appeals

Case Name: Susan Shott v. Robert S. Katz

Case No.: 15-3528

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

Focus: Retaliatory Termination

Appellant discrimination claim falls for failure to state a claim.

“That analytic error was harmless, though. A plaintiff can plead herself out of court by alleging facts that show she has no legal claim. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). The retaliatory acts Shott alleged cannot plausibly be considered materially adverse. See Burlington Northern, 548 U.S. at 57. Shott did not, for example, allege that Katz was un‐ der any obligation to work with her or that he discouraged anyone else from working with her. Even if Katz’s refusal to collaborate with her was in some way motivated by disap‐ proval of herlitigation against Rush, that would not be action‐ able under § 1981. We held in Smith v. Bray, 681 F.3d 888, 898– 900 (7th Cir. 2012), that an individual employee could be lia‐ ble under § 1981 for causing an employer (under a “cat’s paw” theory) to take retaliatory action against an employee. We have not gone so far, however, as to suggest that a plain‐ tiff’s fellow employees violate the implied retaliation prohibi‐ tion in § 1981 by not seeking out the plaintiff to collaborate on professional projects.”

Affirmed

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7th Circuit Court of Appeals

Case Name: American Alternative Insurance Corporation v. Metro Paramedic Services, Inc.

Case No.: 15-2310

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

Focus: Insurance Coverage

Insurance provider owed duty to defend insured based on plain language of the policy.

“AAIC breathlessly predicts that if Metro qualifies as a named insured, then anyone could be a named insured to an AAIC policy so long as a third party alleged that that person was in a joint venture with Antioch. There are two answers to this alarm. The first is that this concern is overblown: it is un‐ clear why a third‐party plaintiff would allege that another party is in a joint venture with Antioch unless (as Federal Rule of Civil Procedure 11(b) and its state counterparts require) that plaintiff had a reasonable basis for doing so. This case is not a close one. Metro is a named insured under AAIC’s pol‐ icy with Antioch. Metro is thereby covered by the policy, and AAIC is bound to defend it. As a result, we need not consider its backup argument for coverage: that it is an “additional blanket insured.” Second, if AAIC seriously fears this result, it can always re‐draft its policies to specify each additional insured (a practice we believe is common)”

Affirmed

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7th Circuit Court of Appeals

Case Name: Logan M. Gaylord v. United States of America

Case No.: 15-1297

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

Focus: Sentencing – Ineffective Assistance of Counsel

Dismissal of appellant ineffective assistance of counsel claim based on imposition of “death results” sentence enhancer was court error.

“We disagree with the district court’s conclusion that Gaylord failed to raise the issue of ineffective assistance of counsel in his § 2255 motion. Though he did not cite Strickland v. Washington, 466 U.S. 668 (1984), or an analogous case, Gaylord did argue that his guilty plea was “uninformed, therefore involuntary” because his counsel insufficiently investigated his case. He claimed that his counsel did not provide him with the postmortem and forensic pathology reports stating that the cause of death was oxycodone and cocaine intoxication. Instead, he only saw the PSR and the plea agreement, which indicated that oxycodone was the cause of death. Thus, Gaylord was mistakenly led to believe that the oxycodone he distributed was the but-for cause of Evins’s death. See Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (“Due process requires that a guilty plea, to be valid, be made voluntarily, intelligently and knowingly.”). This is enough to raise a claim of ineffective assistance of counsel, especially given the lenient standard under which we review pro se filings. Warren v. Baenen, 712 F.3d 1090, 1099–1100 (7th Cir. 2013) (explaining that we construe pro se petitions liberally). And since Gaylord argues that his plea agreement was the product of his counsel’s ineffective assistance, he can overcome the waiver provision in the plea agreement. See Hurlow, 726 F.3d at 964.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Kathryn Marchetti et al v. Chicago Title Insurance Company et al

Case No.: 15-1240

Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges

Focus: Title Insurance – Duty to Defend

Title insurance company has no duty to defend appellant in real estate transaction gone awry.

“Indeed, the Marchettis appear to have turned a profit on the transaction, because they did not perform all of the planned work before they gave up their claim of ownership. The Marchettis tell us that $100,000 in renovation work was done. Jonathon Marchetti was the contractor and may have profited in that capacity, and at all events $100,000 is less than the construction-loan amount of $155,000. In the district court the Marchettis contended that they lost the profits they had anticipated from renting the improved property, but they have now acknowledged that the policy does not cover consequential damages. They suffered no capital loss, and that is all Chicago Title promised to make good. Since Chicago Title relieved them of the burden of the loan and mortgage, leaving them loss-free, it acquired the Marchettis’ claim against the fraud’s perpetrator and was entitled to collect from the restitution award”

Affirmed

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7th Circuit Court of Appeals

Case Name: Gilbert Knowles v. Randy Pfister

Case No.: 15-1703

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

Focus: Injunction – Prisoners Rights

Appellant prisoner demonstrated entitlement to imposition of preliminary injunction allowing him to wear religious medallion.

“RLUIPA states that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc–1(a). The “unless” clause doesn’t seem applicable to the plaintiff in this case, who is willing to wear his medallion under his shirt whenever he’s outside his cell to protect himself from being identified as a gang member. Cf. Schlemm v. Wall, 784 F.3d 362, 366 (7th Cir. 2015). And while the warden contends that other inmates might see the medallion while the plaintiff is showering, nothing in the record supports this contention; there isn’t even evidence that the plaintiff ever wears his medallion in the shower, or that the wearing of a pentacle medallion, whether openly or under one’s shirt, by any prisoner at Pontiac has ever caused a problem.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Brian A. Miller

Case No.: 15-2239

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

Focus: Sufficiency of Evidence – Conditions of Supervised Release

Appellant proffers no compelling reason to negate his conditions of supervised release. Evidence provided more than sufficient for conviction.

“Miller offers no reason why we should not hold that his speculative challenges are not ripe. The closest he comes is by implying that his probation officer would unfairly interpret this condition of supervised release so that he could revoke his supervised release and relieve himself of supervising Miller during the time he is back in prison. We believe that is an unfair characterization of probation officers generally and should not constitute grounds for this court to con‐ sider speculative concerns about supervised‐release conditions. Should Miller be given a vindictive probation officer whose sole goal is to return him to prison, we expect that he would bring that to the district court’s attention”

Affirmed

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7th Circuit Court of Appeals

Case Name: Laura J. Hatcher v. Board of Trustees of Southern Illinois University et al.

Case No.: 15-1599

Officials: ROVNER and WILLIAMS, Circuit Judges, and SHAH, District Judge

Focus: Title VII

Appellant fails to support claim she was denied tenure due to her gender, however, asserts valid claim for retaliation under title VII.

“It is possible that the dean and provost were harder on Dr. Hatcher than on her male colleagues during tenure review, and some of her colleagues seemed to think that was the case. It should not be a source of pride for SIU that Dr. Hatcher is the first woman to be considered for tenure in the political science department in almost 20 years. The subjectivity of the tenure review process can obscure bias, making it exceedingly difficult to address entrenched inequalities which not only have a negative impact on female faculty with tenure aspirations, but also on the institutions of higher learning that are deprived of their contributions. However, Title VII only permits us to go so far in addressing this problem; in order for a plaintiff to prevail at summary judgment, she cannot simply show she was treated differently. She must provide evidence that creates a material dispute over whether the reason her employer gives for the differential treatment is unworthy of belief. We see no evidence from which a reasonable jury could draw that conclusion here. So the district court did not err in granting summary judgment to SIU on the gender discrimination claim.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: John W. Dawkins v. United States of America

Case No.: 16-2683

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

Focus: Challenge to Sentence

Application for sentence amendment denied.

“Dawkins argues in his reply that Mathis provides an independent basis for authorization. He cites Alexander v. United States, 121 F.3d 312 (7th Cir. 1997), for the proposition that any intervening change in the law would allow a successive application. This proposition clearly is not true, and Alexander does not say otherwise; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization. See 28 U.S.C. §§ 2255(h)(2), 2244(b)(2)(A); Alexander, 121 F.3d at 314–15 (denying application because applicant did “not point to any new rule made retroactive by the Supreme Court and [did] not have new evidence showing his innocence”). Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241. See Brown v. Caraway, 719 F.3d 583, 594–96 (7th Cir. 2013); In re Davenport, 147 F.3d 605, 611–12 (7th Cir. 1998). We note that any § 2241 petition would need to be filed in the district where the petitioner is in custody. See 28 U.S.C. § 2241(a); FED. R. APP. P. 22(a). “

Application Denied

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7th Circuit Court of Appeals

Case Name: FDIC et al v. Kenneth E. Hoffman, Jr.

Case No.: 15-3326; 15-3327

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

Focus: Settlement Release

Settlement and release agreement did not free appellant from larger obligation

“The specific provisions in the Hoffman‐FDIC agreement refer to the $157,300 debt secured by mortgages on three Milan properties. A reasonable interpretation of what these specific provisions mean leaves no ambiguity. The contract states that the FDIC believes it is entitled, by the particular loan de‐ fault at issue, to foreclose on the three Milan properties. It states that the FDIC will accept, in lieu of foreclosure, the deeds to these three properties. And with the deeds in lieu of foreclosure, the Hoffmans’ $157,300 obligation is wiped out. On the specific language of this contract, therefore, the meaning is unequivocal: Hoffman’s $157,300 obligation is the loan forgiven.”

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert Schaefer, et al v. Walker Bros, Enterprises, Inc., et al

Case No.: 15-1058

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

Focus: FLSA Violation

Restaurant meets statutory minimum for payment of minimum wage.

“Schaefer asserts that the poster is “not enough” but does not explain why it is inadequate. If posters don’t count, what’s the point of requiring them? In lieu of making an argument, Schaefer points us to Driver v. AppleIllinois, LLC, 917 F. Supp. 2d 793, 801–03 (N.D. Ill. 2013). Driver thought the Department of Labor’s own pre-2011 poster inadequate because it did not contain all five pieces of information specified by the 2011 regulation, and in particular omitted the requirement that employees keep their tips unless the employer uses tip pooling. But regulatory changes are not retroactive, see Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), and we have explained why the statute on its own does not necessarily call for all of the advice required by the regulation. It would be hard to fault an employer for providing exactly the information the Department of Labor then required, in the Department’s own words. Schaefer does not contend that he was unable to keep all tips he received. The handbook and poster together supply the restaurants’ workers with the three pieces of information that we believe constitute the statutory minimum.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Jennifer Lynn Smith v. Dale James Lantz

Case No.: 2015AP221

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

Focus: Child Support

Jennifer Smith appeals an order denying her motion to modify physical placement and child support for the minor children she shares with her ex-husband, Dale Lantz. Smith contends the circuit court erred by denying the motions. We reject Smith’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Clveland F. Powell

Case No.: 2015AP852-CR

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

Focus: Ineffective Assistance of Counsel

Cleveland Powell, convicted by a jury of three counts of burglary of a building or dwelling and one count of theft of movable property, appeals his convictions and the order denying his postconviction motion for a new trial. Powell alleges his trial attorney was ineffective for failing to call Nicholas Raimondi as a witness at trial and for failing to introduce DNA evidence from a state crime lab report. We agree with Powell’s claim concerning his attorney’s failure to call Raimondi as a witness. We therefore reverse the judgment of convictions and order denying postconviction relief, and remand to the circuit court for further proceedings.

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WI Court of Appeals – District III

Case Name: J&T Lending, LLC v. Donald F.Nitschke et al

Case No.: 2015AP877

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

Focus: Foreclosure

Donald F. Nitschke and Kristal R. Nitschke (collectively referred to as “the Nitschkes” unless the context requires otherwise) appeal an order denying their motion for reconsideration of a summary judgment of foreclosure granted in favor of J & T Lending, LLC. We affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Giancarlo Giacomantonio

Case No.: 2015AP968-CR

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

Focus: Admission of Evidence

Giancarlo Giacomantonio appeals from a judgment of conviction of sexual exploitation of a child, contrary to WIS. STAT. § 948.05(1)(a) (2013-14), entered after a jury trial. Giacomantonio contends on appeal that: (1) photographs of text messages found on the victim’s phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) his right to present a defense was infringed upon when the trial court refused to conduct an in camera review of the victim’s mental health records We affirm because we conclude: (1) the proper foundation was laid for authentication of the photographs of text messages; and (2) the trial court did not err in refusing to conduct an in camera review of the victim’s mental health records because the defendant failed to satisfy his burden of showing materiality to the defense as set forth in State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993) and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298. We discuss each issue in turn below.

Recommended for publication

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WI Court of Appeals – District I

Case Name: Stephanie M. Przytarski v. Ted B. Vallejos

Case No.: 2015AP1912

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

Focus: Child Support

We conclude that Przytarski abandoned her challenge to the June 13, 2013 child support order. The record conclusively shows that although she checked the box for a de novo review of the child support (as well as the custody and placement issues), she never once even mentioned child support, much less argued for modification of it, in the seventeen months, ten or more motions, and eight hearings held between filing her motion for a de novo review and the trial court’s final decision on the de novo motion on November 14, 2014. Additionally, when Judge Rosa concluded the fifth and final day of the court trial on Przytarski’s motion for de novo review and Judge Rosa failed to mention child support, Przytarski never objected or asked for a ruling on child support. Issues pled but not argued before the trial court are deemed abandoned. Eckes v. Keith, 143 Wis. 2d 209, 210 n.1, 420 N.W.2d 417 (Ct. App. 1988). See also Santiago v. Ware, 205 Wis. 2d 295, 311 n.10, 556 N.W.2d 356 (Ct. App. 1996). Accordingly, we agree with Judge Van Grunsven that Przytarski’s challenge to both the June 13, 2013 child support order and Judge Rosa’s confirmation of same on June 17, 2015, were untimely. Consequently, we affirm the decisions of June 17, 2015, and August 27, 2015. The June 13, 2013 child support order stands.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Clayton M. Miller

Case No.: 2015AP2074

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

Focus: Court Error – Sentence Modification

Clayton Miller, pro se, appeals an order denying his motion for sentence modification. Miller argues: (1) the circuit court relied on inaccurate information when sentencing him; (2) fifteen new factors warrant sentence modification; (3) four conditions of his extended supervision are

unconstitutional; (4) the circuit court erroneously exercised its sentencing discretion with respect to the conditions of extended supervision; and (5) the circuit court was obligated to grant his sentence modification motion because the State did not oppose it. We reject Miller’s arguments and affirm

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WI Court of Appeals – District I

Case Name: Gary A. Kramschuster et al v. Law Offices of Andrew C. Ladd, LLC

Case No.: 2016AP436

Officials: BRENNAN, J.

Focus: Jurisdiction

Gary Kramschuster and Stephanie Przytarski (“Przytarski”), pro se, appeal the December 2, 2015 order denying their motion for reconsideration. Przytarski contends that her February 29, 2016 notice of appeal was timely filed and that this court has jurisdiction. Because this court concludes that it does not have jurisdiction, the appeal is dismissed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. C.A.P.

Case No.: 2016AP824

Officials: BRENNAN, j.  

Focus: Court Error – Abuse of Discretion

C.A.P. appeals from an order terminating her parental rights to her daughter, K.S.L. (“K.”). She argues that the trial court erroneously exercised its discretion when at the Termination of Parental Rights (“TPR”) dispositional hearing, it excluded her brother and grandmother from testifying and declined to permit her trial counsel to recall a witness on the final afternoon of trial. As a result of these witness limitations, she argues, the trial court “fail[ed] to consider the relevant evidence necessary for making the proper determinations of the best interests of the child,” and she seeks reversal of the order

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WI Court of Appeals – District II

Case Name: Benjamin Romero et al v. West Bend Mutual Insurance Company et al

Case No.: 2014AP2882

Officials: HAGEDORN, J.

Focus: Insurance Coverage

The primary issue is whether Fairview’s policy with Addison covered the accident. The circuit court concluded it did, resting in part on the conclusion that the BSAA driver was acting as Fairview’s agent at the time of the accident. We reverse and conclude that the BSAA driver was not acting as Fairview’s agent. Accordingly, Addison’s policy did not cover the accident.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: Ray A. Peterson d/b/a Master Builders, v. Gene P. Ganta

Case No.: 2015AP329

Officials: HIGGINBOTHAM, J.

Focus: Court Error

Regardless, Ganta cannot complain about the trial court finding that the notice to pay set December 17, 2014, as the due date for the delinquent rent. We conducted an independent review of the record. The only testimony that would support this finding came from Ganta himself. As for Ganta’s contention that the court erroneously found that Ganta failed to timely pay the delinquent rent, Ganta testified that the notice to pay required payment by December 17 and Ganta conceded during his testimony that Peterson did not receive the rent in the mail until December 20. Based on the deadline set by the notice to pay by December 19 and Ganta’s testimony that Peterson did not receive the rent until December 20, we conclude that the court’s finding that Ganta failed to timely pay his delinquent rent is not clearly erroneous. Accordingly, we affirm

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Victor H. Benitez

Case No.: 2015AP1602-CR

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

Focus: Ineffective Assistance of Counsel

his case arises from a single-car accident in which four of the five occupants were killed. Victor Benitez, the sole survivor, appeals from a judgment of conviction and an order denying his motion for postconviction relief. Following a jury trial, Benitez was convicted of thirteen counts, including twelve homicide-related charges. Benitez argues that: (1) the evidence was insufficient to support the jury’s conclusion that he was driving the car at the time of the crash; (2) the circuit court erred in denying his ineffective assistance of counsel claims without a hearing; and (3) his sentence was unduly harsh. We reject each of these claims and affirm.

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WI Court of Appeals – District IV

Case Name: Chris A. Brenz v. State Farm Insurance

Case No.: 2015AP2061

Officials: SHERMAN, J.

Focus: Court Error – Negligence

Chris Brenz appeals a judgment of the circuit court dismissing Brenz’s small claims action against State Farm Insurance Company to recover for damages he allegedly sustained in a motor vehicle accident with State Farm’s insured, Jack Harned. For the following reasons, I affirm.

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WI Court of Appeals – District IV

Case Name: Wisconsin Cranberry Cooperative v. Groupe Alimonco, Inc.

Case No.: 2015AP2079

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

Focus: Breach of Contract

Following a bench trial, the circuit court agreed with the Seller’s position that the Seller was entitled to damages equal to the difference between the original contract price of the rejected cranberries and the Graceland sale price, multiplied by the volume of cranberries rejected by the Buyer, because the Graceland sale was a resale of the rejected cranberries. That is, the court determined that the Graceland sale involved cranberries that sufficiently conformed to the cranberries identified in the eight contracts breached by the Buyer, and was made “in good faith and in a commercially reasonable manner.” In a decision on incidental damages arising from the same eight breaches, the court awarded the Seller its freezer-storage costs for storing the volume of cranberries rejected by the Buyer. See WIS. STAT. §§ 402.706(1) and 402.710. The Buyer appeals, arguing that the court improperly allowed the Seller to recover any damages, either based on the statutory seller’s resale remedy or the freezer-storage costs. For the following reasons, we disagree and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Vernon Memorial Hospital v. Kristine M. Weigel

Case No.: 2015AP2218

Officials: KLOPPENBURG, P.J.

Focus: Sufficiency of Evidence – Court Error

This appeal concerns a collection action in small claims court, in which the debtor has raised a series of arguments, some of which appear to be most appropriately directed to the legislature, but all of which have no basis in the facts or controlling law. The action began when Vernon Memorial Hospital sued to recover the cost of services that it provided to Kristine Weigel. The case was transferred from La Crosse County to Vernon County, where it was tried to the circuit court. The court entered judgment for the Hospital in the amount of $7,419.10. Weigel appeals, arguing that: (1) the Vernon County circuit court’s judgment is supported neither by its findings of fact nor by sufficient evidence; (2) the La Crosse County circuit court erred in transferring the case without determining whether the Hospital’s claim arises from a transaction covered by the Wisconsin Consumer Act; and (3) the La Crosse County circuit court’s signing the order transferring the case constitutes a miscarriage of justice warranting this court’s discretionary reversal under WIS. STAT. § 752.35. As I proceed to explain, I reject Weigel’s arguments and affirm

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WI Court of Appeals – District IV

Case Name: Donald Pavlak et al. v. David W. Bechard et al

Case No.: 2015AP2249

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

Focus: Court Error – Motion for Reconsideration

Donald Pavlak and Cynthia Pavlak appeal circuit court orders dismissing their claims and entering judgments on the pleadings in favor of David Bechard and Robert Niederdorfer, as well as an order denying a motion for reconsideration. For the reasons set forth below, we affirm the judgments and orders of the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Timothy L. Finley, Jr.

Case No.: 2014AP2488-CR

Focus: Plea Withdrawal

Appellant entitled to withdraw his plea given the circumstances.

“Under the circumstances of the instant case, Bangert, Brown, Cross, and Taylor lead us to conclude that Finley is entitled to withdraw his plea: The circuit court misinformed Finley of the potential punishment he faced if convicted, information the circuit court was required to give the defendant; and the State failed to prove that when Finley entered his plea he knew the potential punishment he faced if convicted. The case law tells us that under these circumstances Finley was entitled to withdraw his plea. Bangert, 131 Wis. 2d at 283 (“When a defendant established a denial of a relevant constitutional right, withdrawal of the plea is a matter of right.”); Brown, 293 Wis. 2d 594, ¶19 (“When a guilty plea is not knowing, intelligent, and voluntary, a defendant is entitled to withdraw the plea as a matter of right because such a plea ‘violates fundamental due process.'”) (quoting Van Camp, 213 Wis. 2d at 139); see also Cross, 326 Wis. 2d 492, ¶20 (“If the State cannot meet its burden [of proving by clear and convincing evidence that the plea was knowing, voluntary, and intelligent despite the deficiencies of the plea hearing,] the defendant is entitled to withdraw his plea as a matter of right.”) (citing Van Camp, 213 Wis. 2d at 139).”

Affirmed

Concurring:

Dissenting: ZIEGLER, J. dissents (Opinion filed). BRADLEY, R. G., J. dissents (Opinion filed).

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WI Supreme Court

Case Name: Lands’ End, Inc. v. City of Dodgeville

Case No.: 2015AP179

Focus: Statutory Interpretation – Judgment Interest

Use of interest rate currently in effect as per the amended statute when judgment recovered was proper.

“Deciding when a statute applies retroactively is not always easy; it is not a mechanical task. “The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). “

Concurring: ZIEGLER, J. concurs (Opinion filed)

Dissenting: PROSSER, J. and ROGGENSACK, C. J. dissent (Opinion filed).

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WI Supreme Court

Case Name: City of Eau Claire v. Melissa M. Booth

Case No.: 2015AP869

Focus: Subject Matter Jurisdiction

Appellant forfeited her right to challenge OWI judgment by failing to timely raise issue.

“We harmonize the conflicting language in Rohner and Mikrut and determine that mischarging an OWI affects competency, not subject matter jurisdiction. At the time we decided Rohner, our case law did not clearly distinguish between the concepts of subject matter jurisdiction and competency. See Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶27 n.8, 349 Wis. 2d 234, 833 N.W.2d 665 (explaining that older case law does not clearly differentiate between the two concepts). Our decision in Mikrut further clarified Wisconsin’s jurisprudence on the distinct, but related concepts of subject matter jurisdiction and competency. Although Rohner referred to a lack of subject matter jurisdiction due to noncompliance with state statutes, we clarified, in Mikrut, that noncompliance with statutory mandates affects only a court’s competency and will never affect its subject matter jurisdiction.8 As a result, the proper characterization of the circuit court’s deficiency in Rohner was loss of circuit court competency to proceed to judgment rather than negation of subject matter jurisdiction. Accordingly, we withdraw any language from Rohner and any other case that suggests otherwise.”

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion filed).

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