Weekly Case Digests — Oct. 17-21, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Paula Y. Williams v. Office of the Chief Judge of Cook County, Illinois, et al

Case No.: 15-2325; 15-2554

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

Focus: Title VII – Unlawful Termination

Paula Williams was told she was fired from her position as a probation officer for abandoning her job. She brought this lawsuit alleging that she was actually fired for contesting a workers’ compensation claim, reporting another employee’s misconduct, being African‐American, and reporting co‐workers for racial hostility. Because Williams has failed to establish a material factual dispute as to any of her claims, we affirm the district court’s grant of summary judgment to the defendants.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eric Uhlig v. Fluor Corp, et al

Case No.: 14-2815

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

Focus: Retaliation – False Claims Act

Eric Uhlig brought False Claims Act and retaliation claims against his former employer, Fluor Corporation, and related entities (collectively, “Fluor”). Fluor contracted with the United States Army to provide, among other services, electrical engineering work in Afghanistan. Uhlig says Fluor violated the False Claims Act when it knowingly breached the terms of its Army contract by using unlicensed electricians as journeymen and billing the government for the services. Uhlig also contends Fluor wrongfully terminated Uhlig as a whistleblower in violation of 31 U.S.C. § 3730(h). The district court granted summary judgment for Fluor. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: FedEx Freight, Inc. v. National Labor Relations Board, et al

Case No.: 16-1360; 16-1395

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

Focus: Petition to Decertify Union

The petitioner, FedEx Freight, Inc., a subsidiary of FedEx Corporation, uses trucks rather than planes to transport freight. This case concerns the workers at its terminal in Stockton, California, an inland seaport, at which the company employs 50 truck drivers and 27 dock‐ workers—the latter use forklifts to load and unload the trucks that use the terminal. A Teamsters Local petitioned the Labor Board to be permitted to organize the drivers. Rejecting the company’s contention that the local should represent the dockworkers as well on the ground asserted by the company that the drivers and the dockworkers share a community of interest, the Board concluded that a drivers-only unit was proper and submitted the issue to a secret‐ ballot election of the drivers, who voted to be represented by the local union in collective bargaining. The company asks us to overrule the Board, and the Board asks us to enforce its order

Petition Denied

Cross-Petition Granted

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7^th Circuit Court of Appeals

Case Name: Sun Life Assurance Co of Canada v. U.S. Bank National Association

Case No.: 16-1049

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

Focus: Life Insurance – Statutory Interpretation

In 2007 an insurance company named Sun Life (the defendant in this case and the appellant in this court) issued a $6 million policy on the life of a wealthy 81‐year‐old named Charles Margolin. He died in 2014. U.S. Bank (the plaintiff in this suit and the appellee in this court) had bought the policy three years before Margolin’s death, becoming the policy’s beneficiary. U.S. Bank is designated in the caption as a securities intermediary, however, because Margolin’s policy either is a security or has been bundled together with other life insurance policies to create a security or securities, and be‐ cause U.S. Bank bought the policy as an intermediary on be‐ half of another investor. See Jenny Anderson, “Wall Street Pursues Profit in Bundles of Life Insurance,” New York Times, Sept. 5, 2009, www.nytimes.com/2009/09/06/business/06ins urance.html?_r=1 (visited Oct. 11, 2016). Sun Life declared that it would refuse to pay U.S. Bank the policy proceeds until it investigated the policy’s validity. That refusal, should it ripen from tentative to definitive up‐ on completion of the investigation, would be profitable be‐ cause during the seven years that the policy was in force Sun Life had collected and retained almost $2.5 million in premiums paid by the successive owners of the policy. And even if Sun Life was ordered to return the premiums, see Venisek v. Draski, 150 N.W.2d 347, 353–54 (Wis. 1967), it would save $6 million if it didn’t have to pay U.S. Bank the policy proceeds. Reacting to Sun Life’s declaration and armed by Wisconsin’s requirement that insurers in Wisconsin pay claims within 30 days, Wis. Stat. § 628.46, U.S. Bank brought this diversity suit against Sun Life, and prevailed in the district court; the district judge ruled that the bank was entitled to the policy proceeds—the $6 million—plus statutory interest and “bad faith” damages for Sun Life’s foot dragging.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James Blasius v. Angel Automotive, Inc

Case No.: 15-2994

Officials: MANION and ROVNER, Circuit Judges, and BLAKEY, District Judge. *

Focus: Negligence – Sufficiency of Evidence – Res Ipsa Loquitur

In July 2009, Appellant James Blasius purchased a used 2005 Ford Excursion. In June 2012, Blasius entrusted Appellee Angel Automotive, Inc. (“AAI”) with upgrading the vehicle to make it “safe” and “reliable.” Blasius alleges that AAI negligently betrayed that trust when, one day and about 200 miles after pick up, the vehicle caught fire and was destroyed. The district court granted summary judgment for AAI after concluding that: (1) Blasius failed to present evidence that AAI’s work proximately caused the fire; and (2) the doctrine of res ipsa loquitur did not apply. Blasius appealed. For the reasons explained be‐ low, the decision of the district court is REVERSED.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Calvin Whiting v. Wexford Health Sources , Inc. et al

Case No.: 15-1647

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

Focus: Deliberate Indifference – 8^th Amendment

While serving a probation-revocation sentence in an Illinois prison, Calvin Whiting fell ill with what turned out to be a rare form of non-Hodgkin’s lymphoma. A prison doctor initially diagnosed an infection and prescribed antibiotics and nonprescription pain relievers. It

was not until two months later that the doctor ordered a biopsy and the cancer was discovered. Whiting filed this lawsuit under 42 U.S.C. § 1983 against the prison doctor and the prison’s private medical provider alleging that they were deliberately indifferent to his serious medical needs during the two months that his cancer went undiagnosed. The district court granted summary judgment to both defendants. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicholas Hess v. The Board of Trustees of Southern Illinois University, et al

Case No.: 16-1064

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges

Focus: Violation of Due Process – Sovereign Immunity

Nicholas Hess was suspended and later expelled from Southern Illinois University (SIU) after he was arrested for aggravated battery. Hess sued the Board of Trustees of the university, as well as several school administrators in their individual and official capacities, for violations of his procedural and substantive due-process rights. After dismissing some of the claims as barred by sovereign immunity, the district court awarded summary judgment to defendants on the remaining claims. We affirm.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justin Robert White

Case No.: 2015AP780-CR

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

Focus: Excessive Restitution – Court Error

Justin Robert White appeals a judgment of conviction entered upon his guilty plea to one count of armed robbery. He also appeals an order denying his motion for postconviction relief. He argues, first, that the circuit court imposed excessive restitution. We agree. Second, he argues that the circuit court wrongly denied his postconviction motion for a comprehensive order that covers all of his financial obligations in this case and governs the priority of his payments. Again, we agree. Accordingly, we modify the judgment, reverse the order denying postconviction relief, and remand with directions.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eric L. Hill

Case No.: 2015AP1236-CR

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

Focus: Invoking Right to Counsel

Eric L. Hill appeals a judgment of conviction entered after a jury found him guilty of first-degree intentional homicide by use of a dangerous weapon and attempted armed robbery. He contends the circuit court erred when it admitted his custodial confession because, he says, the confession

followed his invocation of his right to counsel. Because we conclude that Hill did not unambiguously invoke his right to counsel, that he waived any right to counsel he may have invoked, and that any error in admitting his confession is harmless beyond a reasonable doubt, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Larry Holden Dunn, Jr

Case No.: 2015AP1409-CR

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

Focus: Ineffective Assistance of Counsel

Larry Holden Dunn, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. He contends that his trial counsel was ineffective. He also contends that he is entitled to a new trial in the interests of justice. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gregory Sean Gorak

Case No.: 2015AP636-CR

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge.

Focus: Sentence Modification

Gregory S. Gorak, pro se, appeals an order of the circuit court that denied his motion for reconsideration of an order denying his motion for sentence modification. We affirm

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WI Court of Appeals – District III

Case Name: Thomas Jansa v. Patrica Jansa, et al

Case No.: 2015AP1647

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

Focus: Sale of Real Estate – Trust

Patricia Jansa, Christine Jansa, Carol Jansa, and Catherine Pechacek (the Jansa sisters) appeal an order denying a motion to approve the sale of trust real estate. We affirm.

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WI Court of Appeals – District I

Case Name: Mark Halbman v. Mitchell J. Barrock

Case No.: 2015AP1904

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

Focus: Legal Malpractice – Sufficiency of Evidence

Mark Halbman appeals from an order of the circuit court granting the motion to dismiss of Mitchell J. Barrock d/b/a Barrock & Barrock (hereinafter “Barrock”) at the close of Halbman’s case-in-chief during the jury trial of this legal malpractice action. The court granted the motion on the basis that Halbman failed to introduce sufficient evidence of damages. Halbman contends the court erred; we disagree and affirm

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Darren Wade Caster

Case No.: 2015AP1965-CR

Officials: Hruz, J.

Focus: Suppression – Fourth Amendment

Darren Caster appeals a judgment of conviction for second-offense operating a motor vehicle while intoxicated (OWI). Caster argues the circuit court erroneously denied his motion to suppress when it determined officer Carlos de la Cruz of the City of New Richmond Police Department did not violate Caster’s Fourth Amendment rights when de la Cruz conducted a traffic stop outside of New Richmond’s municipal limits without being in “fresh pursuit” under WIS. STAT. § 175.40(2). We need not decide whether de la Cruz was engaged in fresh pursuit under that statute because we agree with the State’s alternative argument. Namely, the evidence obtained following the stop should not be suppressed because there was no constitutional violation, and any determination that de la Cruz was not acting in his official capacity under § 175.40(2) does not, under the facts of this case, merit suppression as a remedy. Accordingly, we affirm the judgment of the circuit court.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Sabrina Marie Hebert

Case No.: 2015AP2183-CR

Officials: Hruz, J.

Focus: Motion to Suppress

Sabrina Hebert appeals a judgment of conviction for second-offense operating a motor vehicle with a prohibited alcohol concentration. She contends the circuit court erred when it denied her motion to suppress because its findings of fact were clearly erroneous, and there were no reasonable grounds for law enforcement to conduct a traffic stop of her vehicle. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Wisconsin Association of State Prosecutors v. Wisconsin Employment Relations Commission

Case No.: 2015AP2224

Officials: Brennan and Brash, JJ., and Daniel L. LaRocque, Reserve Judge.

Focus: Employment – Statutory Authority

The Wisconsin Employment Relations Commission (the Commission) 1 appeals an order of the circuit court granting the following relief to the Service Employees International Union, Local 150 (Local 150) and the Wisconsin Association of State Prosecutors (WIASP): Declaratory judgment that the Commission exceeded its statutory authority in promulgating the requirement in WIS. ADMIN. CODE §§ ERC 70 and 80 (Aug. 2016) that an existing exclusive representative must file a petition in order to qualify for a recertification election under WIS. STAT. §§ 111.83(3)(b) and 111.70(4)(d)3.b. (2013-14)2 ; Declaratory judgment under WIS. STAT. § 227.40(4)(a) that the provisions in WIS. ADMIN. CODE §§ ERC 70 and 80 requiring an existing exclusive representative to file a petition in order to qualify for recertification are invalid; Reversal of the decisions of the Commission, under WIS. STAT. §§ 227.52 and 227.53, for refusing to hold recertification elections; A writ of prohibition prohibiting the Commission from enforcing the provisions of WIS. ADMIN. CODE §§ ERC 70 and 80 that require an existing exclusive representative to file a petition to qualify for a recertification election; An order granting WIASP and Local 150 recertification elections sought in September 2014 under WIS. STAT. §§ 111.83(3)(b) and 111.70(4)(d)3.b., to be held simultaneously with the December 1, 2015 elections without a new showing of interest and without the necessity of filing a petition; and An order granting that, in the event that WIASP and Local 150 win such elections, their representational status shall be treated as uninterrupted. The Commission argues that the provisions of WIS. ADMIN. CODE §§ ERC 70 and 80 at issue are presumptively valid and reasonable. The Commission further argues that these provisions do not exceed its statutory authority. Upon review, we affirm

Affirmed

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Billy Demond Cooper

Case No.: 2015AP2230-CR; 2015AP2231-CR; 2015AP2332-CR

Officials: Brennan and Brash, JJ., and Daniel L. LaRocque, Reserve Judge

Focus: Ineffective Assistance of Counsel – Pro Se Request

A jury found Billy Demond Cooper guilty of five crimes related to three separate incidents involving his ex-girlfriend, including: one count of battery to a domestic abuse injunction petitioner, as a repeater; one count of violating a domestic abuse injunction; and three counts of felony bail jumping, two of which were charged as a repeater. See WIS. STAT. §§ 940.20(1m)(a), 939.62(1)(b), 813.12(8)(a), and 946.49(1)(b) (2011-12, 2013- 14).2 All of the crimes were also designated acts of domestic violence. See WIS. STAT. § 968.075(1)(a). In these three consolidated appeals, Cooper appeals from the judgments of conviction for those five crimes and from an order denying his postconviction motion seeking a new trial. Cooper argues that he is entitled to a new trial for two reasons: (1) the trial court wrongfully denied Cooper’s request to represent himself at trial; and (2) Cooper’s trial counsel provided ineffective assistance by not presenting a better argument to support the admission of a letter in which the victim recanted the battery allegation. We reject Cooper’s arguments and affirm the judgments and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kevin Raymont Evans

Case No.: 2015AP2315-CR

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

Focus: Ineffective Assistance of Counsel

Kevin Evans appeals from a judgment convicting him, after a jury trial, of possession with intent to deliver cocaine (>5-15g) and from an order denying his motion for postconviction relief. We reject his claims that defense counsel was ineffective and that a police officer’s testimony, allowed to be admitted as expert testimony, did not pass muster under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We affirm.

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WI Court of Appeals – District III

Case Name: Outagamie County v. J.J.

Case No.: 2016AP43

Officials: Seidl, J.

Focus: CH. 51 Commitment – Sufficiency of Evidence

J.J. appeals an order extending his involuntary commitment and an order for involuntary medication. He contends there was insufficient evidence to support the orders. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Jay W. Thorsland, et al v. Duane E. Wolter, et al

Case No.: 2016AP91

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

Focus: Motion to Dismiss – Court Error

Jay and Lisa Thorsland appeal an order dismissing their wrongful death claim against Robert Switalla. The circuit court determined dismissal was required because Switalla was an agent of the Wisconsin Department of Natural Resources (DNR), and the Thorslands failed to serve the attorney general with notice of their claim against him as required by WIS. STAT. § 893.82 The Thorslands argue the circuit court erred by: (1) converting Switalla’s motion to dismiss to a motion for summary judgment; (2) improperly resolving factual disputes regarding Switalla’s agency; and (3) denying the Thorslands’ motion to compel discovery. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Gretchen Paape, et al v. Al Grefsheim, et al

Case No.: 2016AP515-FT

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

Focus: Attorney Fees

Al and Linda Grefsheim, d/b/a Bay View Resort, appeal that part of a judgment awarding Gretchen and Richard Paape $9,365.23 in attorney fees. The Grefsheims argue the circuit court erred by awarding reasonable attorney fees under WIS. STAT. § 814.045, rather than the limited fees available under WIS. STAT. § 814.04(1). We agree. Therefore, we reverse that part of the judgment and remand the matter to the circuit court with directions to award $300 in attorney fees consistent with § 814.04(1).

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