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Weekly Case Digests — August 1 – 5, 2016

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2016//

Weekly Case Digests — August 1 – 5, 2016

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Livell Figgs v. Alex Dawson et al

Case No.: 15-2926

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

Focus: Deliberate Indifference

Respondent not entitled to qualified immunity

“At the time Figgs presented his complaints, it was clearly established by decisions in closely analogous cases that the failure to investigate a claim that an inmate is being held longer than the lawful term of his sentence violates the Eighth Amendment if it is the result of indifference. See Haygood v. Younger, 769 F.2d 1350, 1354‐55 (9th Cir. 1985) (holding that the Eighth Amendment is violated when prolonged detention is the result of deliberate indifference, where prison officials failed to investigate claims in prisoner’s letter questioning the method used to compute his release date); Sample v. Diecks, 885 F.2d 1099, 1108‐10 (3d Cir. 1989) (holding same, where senior record officer failed to take substantive action on prisoner’s claim that he was being held despite the expiration of his sentence); Alexander v. Perrill, 916 F.2d 1392, 1397‐99 (9th Cir. 1990)(rejecting defendants’ qualified immunity argument and concluding that the right to be free from incarceration beyond the expiration of one’s sentence was clearly established, where prison officials failed to investigate the prisoner’s claim that he was incorrectly denied credit for time served in a foreign jail). While, to be clearly established, “a right must be specific to the relevant factual context of a cited case and not generalized with respect to the Amendment that is the basis of the claim,” the “very action in question” need not have previously been held unlawful for a public official to have reasonable notice of the illegality of some action. Viilo v. Eyre, 547 F.3d 707, 710‐11 (7th Cir. 2008) (citing Brosseau v. Haugen, 543 U.S. 194, 198‐99 (2004) and Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Viewing the record in the light most favorable to Figgs, the evidence supports his claim that Fishel’s conduct violated his established constitutional right to be free from cruel and unusual punishment. Thus, Fishel is not entitled to qualified immunity.”

Affirmed in part

Vacated and remanded in part

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7th Circuit Court of Appeals

Case Name: Mikeal G. Cole, Jr. v. Carolyn W. Colving

Case No.: 15-3883

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges

Focus: Social Security Disability Benefits

ALJ improperly rejected clinical findings and erred in denying appellant benefits.

“Nevertheless the administrative law judge denied Cole’s application for disability benefits—primarily on the odd ground that the “timing of his filing appear[ed] to coincide with when his unemployment benefits were running out,” which the administrative judge said “suggests that it was economic need, not disabling medical conditions, that prompted” Cole to apply for benefits. That doesn’t make sense. When receiving unemployment benefits Cole didn’t need disability benefits, and probably wouldn’t have expected to be allowed to receive both types of governmental benefits at once, as receipt of unemployment benefits would imply ability to work. Unemployment benefits are generally given only to those registering as unemployed, and often on conditions ensuring that they seek work and do not currently have a job. Furthermore, we explained in Sarchet v. Chater, 78 F.3d 305, 308 (7th Cir. 1996), that people often are “reluctant” to apply for benefits and “undergo arduous administrative proceedings” until driven to do so by “desperation resulting from a personal crisis” or “the cut off of other public funds.” The presence of economic need is hardly inconsistent with having a disability; indeed the two go hand in hand.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: U.S. Bank National Association v. Cheryle A. Collins-Fuller T.

Case No.: 15-2415

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

Focus: Fundamental Defects

Appellants fail to serve third-party with complaint and has case properly dismissed due to fundamental defects.

“The Fullers came close to waiving this argument by not raising it specifically before the district court. See Larson v. United Healthcare Ins. Co., 723 F.3d 905, 918 (7th Cir. 2013). In any event, we cannot say that the court acted impermissibly by declining to provide an extension of time, see Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 933–34 (7th Cir. 2002). Whether Litton Loan had actual notice of the claims against it through its parent company is only one factor the district court may consider when deciding whetherto extend the time for service. See Cardenas v. City of Chicago, 646 F.3d 1001, 1006– 07 (7th Cir. 2011). The court was free to determine, as it did, that the Fullers’ failure over two years to pursue their claims against Litton Loan diligently—or really to pursue them at all—ruled out the necessary extension”

Affirmed

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7th Circuit Court of Appeals

Case Name: Laura A. Wierzbicki v. Greg Griswold

Case No.: 16-1334

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

Focus: Bankruptcy – Fraudulent Transfer

Transfer of debtor assets prior to filing for bankruptcy constitutes fraudulent transfer.

“The district court also found that the benefit of avoiding further family conflict was too “nebulous” to “support a finding of reasonable equivalence” in the bankruptcy context, where a transfer would put an insolvent debtor’s valuable property beyond the reach of creditors. See In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (explaining that under Texas Uniform Fraudulent Transfer Act intangible, non‐economic benefits, such as preservation of marriage, did not constitute reasonably equivalent value); Image Worldwide, 139 F.3d at 577 (explaining that UFTA took phrase “reasonably equivalent value” from 11 U.S.C. § 548(a)(2)); In re Bargfrede, 117 F.3d 1078, 1080 (8th Cir. 1997) (concluding that “non‐economic benefits in the form of a release of a possible burden on the marital relationship and the preservation of the family relationship” are “sufficiently analogous to other intangible, psychological benefits” that they do not constitute reasonably equivalent value under 11 U.S.C. § 548); In re Treadwell, 699 F.2d 1050, 1051 (11th Cir. 1983) (concluding that love and affection do not constitute “reasonably equivalent value” under § 548). As cold and unsentimental as that rule might seem, it is easier to understand from the perspective of creditors, most of whom would probably be unwilling to volunteer to pro‐ vide a financial subsidy to enhance the insolvent debtor’s family relationships by allowing the debtor to put valuable property beyond their reach.

Affirmed

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7th Circuit Court of Appeals

Case Name: Alvernest Kennedy v. Charles A. Huibregtse et al

Case No.: 15-3743

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

Focus: In Forma Pauperis

Hiding of assets precludes appeal for in form pauperis action

“The appeal thus is doomed by 28 U.S.C. § 1915(e)(2)(A), which provides that “notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that … the allegation of poverty is untrue.” That is an exact description of this case; and even if, as some cases suggest, a plain‐ tiff can be excused if his misstatements were made in good faith, Lee v. McDonald’s Corp., 231 F.3d 456, 459 (8th Cir. 2000); Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990), this is not such a case, involving as it does a deliberate, material lie. In Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002), we remarked that “dismissal with prejudice may have been the only feasible sanction for this perjury designed to defraud the government. Dismissal without prejudice would have been no sanction at all, unless perchance the statute of limitations had run in the interim, which it must not have done or the plaintiff would not be complaining about the fact that his suit was dismissed with prejudice. And a monetary sanction would probably be difficult to collect from a litigant assiduous in concealing as‐ sets.””

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Carey Ray

Case No.: 14-3799; 15-3193

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

Focus: Sufficiency of Evidence

Overwhelming evidence supports appellant conviction; judge modifies condition of supervised release despite pending appellate case and appellant sentence is vacated.

“A defendant who asks the judge to change one or a few conditions under §3583(e)(2) is entitled to waive his rights under Rule 32, and a given request might be understood to signify a desire to bypass a full hearing without the necessity of a formal waiver. But when the prosecutor is the one who proposes a change, no waiver by the defense can be implied. Ray protested the procedure and did not relinquish his rights under Rule 32.”

Conviction Affirmed

Sentence vacated and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Miles Musgraves

Case No.: 15-2371

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

Focus: Search Warrant – Sufficiency of Evidence – Sentencing Guidelines

Sufficient evidence existed to find probable cause for search warrant; Court lacked sufficient evidence to tie appellant to cocaine package at any time for several other counts.

“The government did not present evidence establishing a substantial connection between Musgraves and Smith’s car. The facts here differ from the joint occupancy cases cited by the government, where a connection between the defendant and the contraband’s location is a given. The only evidence of proximity is the series of 911 calls from Musgraves indicating that he had seen Smith with the contraband nearby No witnesses were able to place Musgraves in proximity to the car and therefore the contraband, and apart from the government’s framing theory, there is no evidence supporting an inference that Musgraves had the power and intention to exercise control over the firearm in Smith’s car. We therefore reverse the felon-in-possession conviction under Count 4 of the indictment.”

Affirmed in part

Reversed in part

Vacated and remanded in part

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7th Circuit Court of Appeals

Case Name: Carole Cheney v. Standard Insurance Company and Long Term Disability Insurance

Case No.: 15-1794

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges

Focus: Disability Benefits – Court Error

Court erred in interpreting insurance policy and made factual findings unsupported by evidence on the record.

“The court also thought that Cheney’s “reasonable expectations” of coverage were relevant and appropriate to consider, in light of ERISA’s purposes. Ruttenberg, 413 F.3d at 668 n.19 (citing Second, Fourth, Sixth, and Ninth Circuit precedent). No one disputes that “ERISA maintains the basic goal of ‘protecting employees’ justified expectations of receiving the benefits their employers promise them.’” Young v. Verizonʹs Bell Atl. Cash Balance Plan, 615 F.3d 808, 819 (7th Cir. 2010) (quoting Cent. Laborersʹ  Pension Fund v. Heinz, 541 U.S. 739, 743 (2004)) (allowing reformation of plan in favor of the plan be‐ cause scrivener’s error did not actually lead employees to expect greater benefits). But the reasonable‐expectation doctrine is related to actual reliance by the employee. We can find no evidence here from which the district court could have concluded that Cheney had an expectation, let alone relied on an expectation, of receiving disability benefits based on her 2010 earnings.”

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Eric Berg v. New York Life Insurance Company, et al

Case No.: 15-1410

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

Focus: Breach of Contract – Disability Benefits

Contract provision misinterpreted to include temporal element by court without any language on its face lending support o such a interpretation.

“These hypotheticals show why it would have made no sense to impose a requirement that a physician visit deter‐ mines the time when a disability commenced. Illinois courts do not read insurance policies in such a counter‐intuitive way. The insurers suggest there could be some way for these un‐ fortunate individuals to show cause for the late detection, but this is just another effort to re‐write the policy. There is no show‐cause exception to the “Injury and Sickness” provision; it determines basic eligibility. Show‐cause provisions do exist elsewhere in the policies, in the Notice of Claim and Proof of Disability or Loss provisions. This is further evidence that the provisions’ temporal effect is at least ambiguous, and there‐ fore must be construed against the insurers under Illinois law. Gillen, 830 N.E.2d at 582. If Berg can prove that his essential tremor prevented him from performing his pit broker duties in September 2007, then he was disabled under the policies starting at that time. The facts in the light most favorable to Berg show just that”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Patrick L. Giddeon v. Edward A. Flynn, et al

Case No.: 15-3464

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

Focus: Deprivation of Rights

Appellant requirement to sit in squad car on hot day for 30 minutes did not cause him to admit that gun found in car, of which the appellant was a passenger, was his.

“Giddeon complains about the discomfort he experienced from having to sit in the squad car for half an hour on a hot day (the outside temperature was almost 90°F), but there is no evidence that he was overcome by the heat or that it caused him to admit that the gun was his. One of the car doors was open during almost the entire 30 minutes, so the interior temperature was probably close to the outside temperature. 90°F is hot, but it is a common summer temperature in the midwest and is not disabling.”

Affirmed in part

Reversed and remanded in part

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7th Circuit Court of Appeals

Case Name: FTI Consulting, Inc. v. Merit Management Group, LP

Case No.: 15-3388

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

Focus: Bankruptcy – Safe Harbor

Section 546(e) Safe Harbor provision in the Bankruptcy Code does not protect transfers made through financial institutions where the entity is only a conduit and not a debtor or transferee.

“We recognize hat we are taking a different position from the one adopted by five of our sister circuits, which have interpreted section 546(e) to include the conduit situation. See In re Quebecor World (USA) Inc., 719 F.3d 94 (2d Cir. 2013) (finding safe harbor applicable where financial institution was trustee and actual exchange was between two private entities); Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 987 (8th Cir. 2009) (finding § 546(e) not limited to public securities transactions, and exempting from avoidance Chapter 11 debtor’s payments that were deposited in a national bank in exchange for shareholders’ privately-held stock during leveraged buyout, as settlement payments made to financial institution); In re QSI Holdings, Inc., 571 F.3d 545, 551 (6th Cir. 2009) (finding HSBC’s role in a leveraged buyout “sufficient to satisfy the requirement that the transfer was made to a financial institution” although it was only the exchange agent); In re Resorts Int’l, Inc., 181 F.3d 505, 516 (3d Cir. 1999) (noting that “the requirement that the ‘commodity brokers, forward contract merchants, stockbrokers, financial institutions, and securities clearing agencies’ obtain a ‘beneficial interest’ in the funds they handle … is not explicit in section 546”); In re Kaiser Steel Corp., 952 F.2d 1230, 1240 (10th Cir. 1991) (rejecting Kaiser’s argument that “even if the payments were settlement payments, § 546(e) does not protect a settlement payment ‘by’ a stockbroker, financial institution, or clearing agency, unless that payment is to another participant in the clearance and settlement system and not to an equity security holder”).”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Kimberly Hively v. Ivy Tech Community College, South Bend

Case No.: 15-1720

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

Focus: Title VII

Court holds that Title VII does not offer redress for discrimination based on sexual orientation despite EEOC criticism.

“Because we recognize that Title VII in its current iteration does not recognize any claims for sexual orientation discrimination, this court must continue to extricate the gender non‐ conformity claims from the sexual orientation claims. We recognize that doing so creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and manner‐ isms at work, the more likely a court is to recognize a claim of gender non‐conformity which will be cognizable under Title VII as sex discrimination. See, e.g., Rene, 305 F.3d at 1068 (gay male employee taunted and harassed by co‐workers for having feminine traits successfully pleaded claim of sex dis‐ crimination under Title VII); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874‐75 (9th Cir. 2001) (noting that the abuse directed at plaintiff reflected a belief that he did not act as a man should act—he had feminine mannerisms, did not have sex with a female friend, and did not otherwise conform to gender‐based stereotypes—and thus the discrimination was closely linked to gender and therefore actionable under Title VII); Reed v. S. Bend Nights, Inc., 128 F. Supp. 3d 996, 1001 (E.D. Mich. 2015) (lesbian employee “put forth sufficient evidence in support of her allegation that she was dis‐ criminated against because she did not conform to tradition‐ al gender stereotypes in terms of her appearance, behavior, or mannerisms at work,” where her supervisor testified that she “dressed more like a male” and her “’demeanor’ was a ‘little more mannish.’”); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012) (gay man alleged sufficient facts to support a claim of sex discrimination based on his failure to comply with gender norms where he changed his last name to his husband’s and his employer re‐ fused to call him by his new name); Centola, 183 F. Supp. 2d at 410 (concluding that plaintiff’s coworkers must have surmised that the plaintiff was gay because they found him to be effeminate); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1217‐20 (D. Or. 2002) (holding that a jury could find that the employer repeatedly harassed, and ultimately discharged, the plaintiff because she did not con‐ form to the employer’s stereotype of how a woman ought to behave, both because she dated other women and because she wore male‐styled clothing).”

Affirmed

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7th Circuit Court of Appeals

Case Name: Leland O. Stevens et al v. Interactive Financial Advisors, Incorporated et al

Case No.: 15-2130

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

Focus: Conversion

Appellant fails to provide case law or facts to support appropriate timing for a demand for property in a conversion claim.

“In support of his position, Stevens only cites a single unreported federal district court opinion, which in turn cites a single Seventh Circuit case. See MacNeil Auto. Prod., Ltd. v. Cannon Auto. Ltd., 2010 WL 4823592, at *1 (N.D. Ill. Nov. 19, 2010), citing LaParr v. City of Rockford, 100 F.2d 564, 565–66 (7th Cir. 1938). MacNeil’s reliance on LaParr was misplaced: LaParr’s discussion of a “demand” relates to a controversy regarding the appropriate reference point for interest accrual, not regarding what satisfies the demand element of a conversion claim. See LaParr, 100 F.2d at 568–69. LaParr references no Illinois case that discusses the appropriate timing for a demand for property in a conversion claim, and certainly does not stand for the proposition that filing a lawsuit fulfills the demand element of a conversion claim under Illinois law. A single tangential Seventh Circuit case cited in an unpublished federal district court opinion is hardly “convincing evidence” of what Illinois law would be regarding the demand element of a conversion claim. See Field, 311 U.S. at 178. The district court’s answer to the jury’s question was correct, and not an abuse of discretion.”

Affirmed

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WI Court of Appeals

WI Court of Appeals – District III

Case Name: Steven Daniel Foster v. Regent Insurance Company, et al

Case No.: 2014AP2592

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

Focus: Uninsured Motorist Coverage

This underinsured motorist (UIM) insurance coverage dispute arises under the 2009-10 version of WIS. STAT. § 632.32 (Truth in Auto Law). 1 Steven Foster appeals a judgment awarding him $238,244.50 and taxable costs. Foster claims the circuit court erred by reducing the monetary award in the jury’s special verdict pursuant to a setoff provision in Regent Insurance Company’s UIM endorsement. Foster contends the provision is unenforceable and should not be applied. In the alternative, he argues that even if the setoff provision is valid, the court erred when it eliminated his entire award for past and future loss of earning capacity. We reject Foster’s arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: Menard, Inc. v. Department of Workforce Development, et al

Case No.: 2015AP587

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

Focus: Writ of Prohibition – Employment Discrimination

The Department of Workforce Development (DWD) appeals an order granting a writ of prohibition entered by the circuit court barring the DWD from adjudicating an employment discrimination claim brought by employee Angela Fenhouse against Menard, Inc. We affirm the writ

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joseph G. Hayes

Case No.: 2015AP742-CR

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

Focus: Sentence Modification

Joseph Hayes appeals an order denying his motion for sentence modification. Hayes argues that a new factor—specifically, his ineligibility for a prison program—justifies a reduction of his sentence. We reject Hayes’s argument and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v Alejandro Herrerra Ayala

Case No.: 2015AP865-CR

Officials: HRUZ, J.

Focus: OWI – Probable Cause

The State of Wisconsin appeals an order granting Alejandro Herrera Ayala’s motion to suppress evidence.  See WIS. STAT § 974.05(1)(d)2. The State argues police officers had probable cause to arrest Herrera Ayala for operating a motor vehicle while intoxicated (OWI). In particular, the State contends the circuit court should not have excluded the results of the standardized field sobriety tests (SFSTs) from its probable cause determination, and if any of the SFST results are considered, probable cause to arrest existed as a matter of law. The circuit court’s decision to disregard each of the SFST results was based on its findings of fact regarding the “significant communication issues between” Herrera Ayala and the arresting officer throughout the administration of the SFSTs, and the resulting unreliability of the tests as administered. Our standards for reviewing a circuit court’s factual findings require us not to disturb those findings unless they are clearly erroneous. Because we are unable to draw that conclusion based on the record in this case, we affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael L. Joy

Case No.: 2015AP960-CR

Officials: STARK, P.J.

Focus: OWI – Reasonable Suspicion

Michael Joy appeals a judgment of conviction for fourth-offense operating while intoxicated and operating a firearm while intoxicated. Joy argues the arresting officer did not have reasonable suspicion to stop him for a vehicle registration violation due to multiple factual mistakes. As a result, he contends the circuit court erred by denying his suppression motion. We disagree and affirm the judgment.

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WI Court of Appeals – District III

Case Name: St. Croix Regional Medical Center et al v. Robert Keller, et al

Case No.: 2015AP1058

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

Focus: Court Error

Robert Keller appeals a grant of summary judgment in favor of St. Croix Regional Medical Center (St. Croix). He argues the circuit court erroneously interpreted Wisconsin’s theft-by-contractor statute, WIS. STAT. § 779.02(5), and, by extension, the statute prohibiting the misappropriation of construction loan proceeds, WIS. STAT. § 706.11(3). Keller’s brief-in-chief appears principally to argue he was not liable for violations of those statutes as a matter of law, while his reply brief appears principally to argue summary judgment was inappropriate because a genuine issue of material fact existed as to whether such violations occurred. We reject both arguments. Keller also asserts the circuit court erred by awarding treble damages for the violations under WIS. STAT. § 895.446. Again, we disagree. Accordingly, we affirm the judgment

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WI Court of Appeals – District III

Case Name: MidCountry Bank v. Todd Bork et al

Case No.: 2015AP1142

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

Focus: Foreclosure – Court Error

MidCountry Bank appeals a judgment denying, on equitable grounds, MidCountry’s efforts to enforce a note and mortgage by foreclosing upon Todd and Carolyn Bork’s Wisconsin real property. We conclude the circuit court properly exercised its equitable discretion in denying foreclosure in this instance. We reject MidCountry’s argument that the circuit court’s exercise of discretion accomplished a double recovery for the Borks and thus was erroneous. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jose H. Reynosa

Case No.: 2015AP1447

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

Focus: Motion to Withdraw Plea

Jose Reynosa appeals orders denying his motion to withdraw his guilty pleas and his motion for reconsideration. The circuit court denied the motions on the merits without a hearing. We exercise our right to affirm the circuit court’s decisions on other grounds. See State v. Trecroci, 2001 WI App 126, ¶45, 246 Wis. 2d 261, 630 N.W.2d 555. We conclude Reynosa’s motions failed to establish a jurisdictional basis for the circuit court to consider the merits of his arguments.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Liederbach

Case No.: 2015AP1754-CR

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

Focus: Court Error – Motion to Suppress

David Liederbach appeals a judgment of conviction entered upon his guilty plea to one count of possessing a firearm in violation of a domestic abuse injunction. He claims the circuit court erroneously denied his motion to suppress evidence that police found during an investigative stop. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. William J. Thurber

Case No.: 2015AP161-CR

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

Focus: Ineffective Assistance of Counsel – Court Error

William J. Thurber was convicted after a jury trial of twelve counts of burglary, as a party to the crime, for his role in burglarizing twelve motor homes located at a storage facility. He appeals his judgment of conviction, arguing the trial court erred when it made a midtrial ruling precluding him from calling a witness to the stand due to his failure to list the witness prior to trial. Thurber also challenges the court’s denial of his postconviction motion seeking a new trial, asserting his trial counsel provided him ineffective assistance by failing to list the witness prior to trial; call a certain additional witness to the stand; obtain and use a surveillance video, map and photographs at trial; and “consult more” with Thurber prior to trial. We conclude the court1 did not err in its midtrial ruling or its determination that Thurber’s trial counsel was not ineffective. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jason R. Cooper

Case No.: 2015AP1160-CR

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

Focus: Court Error – Sentencing

Jason Cooper appeals a judgment of conviction and the circuit court’s denial of his postconviction motion. He claims the circuit court erred when it applied WIS. STAT. § 939.62 (2013-14),  a statutory criminal penalty enhancer, to his sentence and that his trial counsel performed ineffectively in failing to raise this issue before the circuit court. We conclude the court did not err in applying the enhancer and counsel was not ineffective for failing to object to its application. We affirm.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Charles Slater et al v. State of Wisconsin Department of Transportation et al

Case No.: 2015AP1628

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

Focus: Court Error – Permit

The State of Wisconsin Department of Transportation (DOT) and the State of Wisconsin Division of Hearings and Appeals (DHA) appeal from a circuit court order reversing DHA’s decision to revoke the driveway permit for commercial property owned by Charles and Sharon Slater. We conclude that DHA’s decision was correct, and the circuit court erred in reversing it. Accordingly, we reverse the circuit court and remand with directions to reinstate DHA’s decision.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Anissa E. Weier

Case No.: 2015AP1836-CR

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

Focus: Reverse Waiver – Juvenile

Anissa E. Weier appeals from a nonfinal order denying a reverse waiver to juvenile court. The dispositive issue is whether Weier met her burden to prove by a preponderance of the evidence that reverse waiver under WIS. STAT. § 970.032(2) is appropriate under the circumstances. The circuit court denied Weier’s request after determining that she failed to do so. We affirm, as the circuit court properly exercised its discretion when it rationally considered the relevant testimony, applied the proper legal standard, and reached a conclusion that a reasonable judge could reach.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Morgan E. Geyser

Case No.: 2015AP1845-CR

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

Focus: Reverse Waiver – Juvenile

Morgan E. Geyser appeals from a nonfinal order denying a reverse waiver to juvenile court.2 The dispositive issue is whether Geyser met her burden to prove by a preponderance of the evidence that reverse waiver under WIS. STAT. § 970.032(2) is appropriate under the circumstances. The circuit court denied Geyser’s request after determining that she failed to do so. We affirm, as the circuit court properly exercised its discretion when it rationally considered the relevant testimony, applied the proper legal standard, and reached a conclusion that a reasonable judge could reach.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Patricia A. Enriquez

Case No.: 2015AP1850-CR

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

Focus: Pleas & Sentencing – Resentencing

Patricia A. Enriquez pled guilty to two counts of delivering controlled substances in violation of WIS. STAT. § 961.41(1)(b) (2013-14). At sentencing, after Enriquez made a statement, the circuit court judge presented the parties with information he had uncovered from the internet, which he claimed showed that Enriquez’s license to practice nursing in Texas had been revoked in 2000 because she had misappropriated morphine from the hospital where she had worked and that she had never possessed a license in Illinois. Finding that Enriquez’s character for honesty was “miserable,” based in part on the foregoing, the court sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the State had recommended. The information that Enriquez never had a nursing license in Illinois was inaccurate, and the court actually relied on that misinformation in sentencing her. Consequently, she is entitled to be resentenced. We, thus, reverse the judgment and the order and remand for resentencing before a different judge

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WI Court of Appeals – District II

Case Name: PJL Properties, LLC et al v. Kari J. Skinner

Case No.: 2015AP2071

Officials: REILLY, P.J.

Focus: Small Claims – Property Damage

PJL Properties, LLC (PJL) and Peter J. Long appeal pro se from a circuit court order dismissing the small claims complaint against Kari J. Skinner for damages resulting from painting the walls and ceiling of her rental apartment. For the following reasons, we affirm the order of the circuit court.

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WI Court of Appeals – District II

Case Name: Kenosha County v. Robert P. Adams

Case No.: 2015AP2184

Officials: REILLY, P.J.

Focus: OWI – Sufficiency of Evidence

Robert P. Adams appeals from his conviction for first offense operating while intoxicated (OWI), contrary to WIS. STAT. § 346.63(1)(a). Adams disputes the circuit court’s finding that the roadways located within Camp Sol R. Crown Boy Scout Camp were held open to the public and that the evidence was sufficient to show that he had driven intoxicated on a public highway. We affirm, as on any given day any licensed driver was free to use the roadways within Camp Sol R. Crown and the evidence established that Adams drove on a public highway while intoxicated to enter Camp Sol R. Crown

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WI Court of Appeals – District II

Case Name: Dorothy Thill et al v. Premier Real Estate Management, LLC et al

Case No.: 2015AP2618

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

Focus: Statute of Limitations

Dorothy Thill appeals from an order granting the motion of Premier Real Estate Management, LLC and Summit Lakes Apartments, LLC, for summary judgment dismissing her complaint as barred by the statute of limitations. Thill contends that the circuit court misapplied the discovery rule. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: David A. Noyce et al v. Aggressive metals, Inc. et al

Case No.: 2014AP2143

Officials: Lundsten, Higginbotham and Kloppenburg, JJ.

Focus: Statutory Interpretation – Scope

This is a worker’s compensation case. David Noyce was working for Aggressive Metals, Inc. when he was injured in a workplace accident. Noyce, the Department of Workforce Development Uninsured Employers Fund, and Nationwide Mutual Insurance Company, Aggressive Metal’s liability insurer, appeal a circuit court order affirming a Labor and Industry Review Commission decision that Aggressive Metals is not liable to Noyce or to the Fund for any compensation or reimbursement for Noyce’s injuries. In so concluding, the Commission held that Aggressive Metals was not subject to the Worker’s Compensation Act (the Act) under WIS. STAT. § 102.04 (2013-14)  on the date of Noyce’s injuries. Noyce argues that Aggressive Metals was subject to the Act on the date of his injuries, January 4, 2011, based on prior case law interpreting a statutory scheme that is similar, but not identical, to the statutory scheme at issue in this case, and which has not been reversed or distinguished. Aggressive Metals argues that it was not subject to the Act on the day Noyce was injured based on the plain language of the current statutory scheme.  We agree and, therefore, we affirm the Commission’s decision.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Travis Sedlak

Case No.: 2015AP905-CR; 2015AP906-CR

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

Focus: Court Error – Motion to Suppress

Travis Sedlak was tried before a jury and convicted of several drug charges related to the cultivation of marijuana in his residence, as well as possession of psilocybin and LSD. Sedlak appeals, arguing that the circuit court erroneously denied his motion to suppress evidence because the court erroneously rejected Sedlak’s argument that police illegally acquired information, necessary to obtain a subpoena for power company records, by effectively employing the services of a power company employee who made observations for the police. As a result, Sedlak contends, both the subpoena and subsequent search warrants were not supported by probable cause. We reject Sedlak’s narrow argument because he fails to show clear error in circuit court findings to the effect that a warrant was not necessary for the “private party search” that Sedlak challenges. Accordingly, we affirm

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WI Court of Appeals – District IV

Case Name: Daniel Virnich v. Jeffrey Vorwald et al

Case No.: 2015AP1600

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Court Error – Subpoena Duces Tecum

Daniel Virnich appeals a judgment of the circuit court granting summary judgment in favor of American Trust & Savings Bank (“the Bank”) and Jeffrey Vorwald, an employee and officer of the Bank (collectively, “the Respondents”). Virnich brought suit against the Respondents alleging that they had conspired with Michael Polsky to maliciously cause Virnich injury in his “reputation, trade, business or profession,” in violation of WIS. STAT. § 134.01 (2013-14). In this appeal, Virnich makes two contentions. He argues that the circuit court erred in quashing his subpoenas duces tecum served upon Polsky and the law firm of Beck, Chaet, Bamberger & Polsky, S.C., and that the evidence on summary judgment establishes a factual dispute as to Virnich’s § 134.01 claim against the Respondents. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Valerie L. Kreger-Mueller v. David M. Flores

Case No.: 2015AP2280

Officials: LUNDSTEN, J.

Focus: Family – Child Expenses

Valerie Kreger-Mueller appeals, pro se, the circuit court’s order dismissing her small claims action against her child’s father for alleged child-related expenses. For the reasons below, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Lauren Ann Erstad

Case No.: 2015AP2675-CR

Officials: LUNDSTEN, J.

Focus: OWI – Probable Cause – Blood Sample

Lauren Erstad appeals the circuit court’s judgment convicting her of operating a motor vehicle while under the influence of an intoxicant as a second offense. Erstad’s arguments relate to the search warrant that authorized the collection of a sample of her blood. Erstad does not argue that probable cause to collect the blood sample was lacking on the face of the warrant. Rather, Erstad argues that the warrant affidavit contained false information and that, without this information, probable cause was absent. In addition, Erstad argues that, although the warrant authorized collection of a blood sample, the warrant did not authorize testing the sample, and that this testing was a separate search that required an additional warrant or a warrant exception. Like the circuit court, I reject these arguments, and I affirm the judgment.

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WI Court of Appeals – District IV

Case Name: John J. Miller v. City of La Crosse

Case No.: 2016AP161

Officials: KLOPPENBURG, P.J.

Focus: Meritorious Appeal

John Miller appeals the circuit court order dismissing his small claims complaint. As explained below, Miller fails to make any meritorious argument on appeal. I therefore affirm the circuit court’s order.

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WI Court of Appeals – District IV

Case Name: Tom Weber v. Menard, Inc.

Case No.: 2016AP206

Officials: SHERMAN, J.

Focus:  Property Damage

Menard, Inc. appeals a money judgment in favor of Tom Weber. Weber brought suit against Menard in small claims court, seeking to recover for damages allegedly sustained to his camper by a forklift belonging to Menard while the camper was parked on the premises of a Menards’ store, owned by Menard. Menard challenges the circuit court’s finding that the camper was damaged at Menards by Menard’s machinery. For the following reasons, I affirm.

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