Weekly Case Digests — Dec. 26-30, 2016

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Midwest Operating Engineers Welfare Fund, et al v. Cleveland Quarry, et al

Case No.: 15-2628; 15-3221; 15-3861; 16-1870

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

Focus: Labor & Employment – Collective Bargaining Agreement

The plaintiffs in this labor litigation are employee welfare and pension funds (we’ll drop “and pension” to simplify the opinion). Three defendants are named. Each is a division (not, so far as we are able to determine, a subsidiary) of RiverStone Group, Inc., a producer of crushed stone, sand, and gravel. Each division is a defendant in a separate, but nearly identical, suit before a different district judge. The judges were apparently confused by the fact that each division had a separate collective bargaining agreement, but that turns out to be a distinction without a difference. The proper defendant is the company, RiverStone, not its divisions, and we shall assume it is indeed the one and only defendant in what is really one case, not three cases.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Manistee Apartments, LLC v. City of Chicago

Case No.: 15-3113

Officials: POSNER, FLAUM, and MANION, Circuit Judges

Focus:

Plaintiff Manistee Apartments sued the City of Chicago alleging that the City violated their due process rights by refusing to release judgment liens until the debtors paid attorneys’ fees and costs. The district court dismissed the plaintiff’s class action complaint, holding that the plaintiff  suffered no deprivation of a constitutionally protected property interest. The court also denied the plaintiff’s motion for reconsideration and for leave to file an amended complaint. For the reasons below, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Anthony S. Foreman et al v. Brian Wadsworth, et al

Case No.: 15-3096

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

Focus:

Anthony Foreman, who used to own a restaurant in Rockford, Illinois, brought this suit under 42 U.S.C. § 1983 and Illinois tort law. He alleged that a state prosecutor and four Rockford police officers conspired to push him out of business by bringing false criminal charges against him. Foreman argued—contrary to settled Supreme Court precedent, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976)—that the state prosecutor should not be entitled to absolute immunity for his actions in an official prosecutorial role, including bringing charges against Foreman. The district court rejected this contention and then publicly censured Foreman’s lawyer for making it without offering a non-frivolous argument in favor of overturning Imbler. See Fed. R. Civ. P. 11(c). The court then granted summary judgment for the police officers. We affirm the judgment and the order of censure

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Teamsters Local Union No. 727 Health and Welfare Fund et al v. L&R Group of Companies

Case No.: 16-2037

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

Focus: Collective Bargaining Agreement – ERISA – Audit

Three pension and welfare funds regulated by the Multiemployer Pension Plan Amendments Act (MPPAA), which is codified as part of the Employee Retirement Income Security Act (ERISA), filed this suit to collect what they described as shortfalls in contributions due during 2003 through 2008 from System Parking, Inc., which had entered into four collective bargaining agreements with Teamsters Local 727. But the funds did not sue System Parking. Instead they sued “L&R Group of Companies.” The answer to the complaint also used that name, as did the district court’s judgment. The mismatch between the litigant and the name of the business obligated to make contributions led us to call for supplemental briefs, which reveal that there is no such thing as “L&R Group of Companies.” This poses two problems under Fed. R. Civ. P. 17. Rule 17(a) says that suits must be conducted in the name of the real parties in interest, and Rule 17(b) says that only persons or entities with the capacity to sue or be sued may be litigants. The odd name “L&R Group of Companies”, which the opening brief on appeal described as “not a corporation” with no further detail, led us to wonder whether it might be a partnership, a holding company organized as a trust, or perhaps a membership organization. But the supplemental briefs reveal that it is none of these. Counsel for appellant, while styling their client as “L&R Group of Companies”, state variously that it is “a description that refers to a series of business entities” or a “rubric” that several companies use in their business. But a “description” or a “rubric” is not a juridical entity. See, e.g., Schiavone v. Fortune, 477 U.S. 21 (1986) (the name of a magazine is not suable). Rule 17(a) says that litigation must proceed in the name of the real party in interest, and a “rubric” is not any kind of entity. You can’t sue a “rubric” any more than you could sue the Chicago River or the Magnificent Mile as a proxy for the City of Chicago. The judgment in this case directs “L&R Group of Companies” to pay almost $2 million, but a rubric does not have a bank account.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Leonard Loventhal v. Zisl Taub Edelson

Case No.: 16-1290

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

Focus: Bankruptcy

Mrs. Edelson filed a Chapter 13 bankruptcy petition in the U.S. Bankruptcy Court for the Northern District of Illinois, hoping to erase a debt owed by her. She and her husband Claude (who did not join her peti‐ tion or file his own) had in 2001 bought a single‐family home in Chicago that the parties refer to as the “Farwell Resi‐ dence,” and together became the owners of the home as “tenants by the entirety.” Thirteen years later, about seven months before Mrs. Edelson filed her bankruptcy petition, the couple conveyed the home to the husband’s living trust. The conveyance states that “the beneficial interest” in the trust is held by both Mr. and Mrs. Edelson, “husband and wife, as tenant[s] by the entirety.” Mrs. Edelson’s bankruptcy petition named as one of her unsecured creditors Leonard Loventhal, a former husband; her debt to him—just over $92,000—was based on a judg‐ ment that he’d obtained against her. Often in a Chapter 13 bankruptcy plan some of the debtor’s most important prop‐ erty is deemed “exempt”—i.e., not available for paying off creditors. Mrs. Edelson proposed a payment plan that would give Loventhal $16,000 over five years, but she designated the Farwell Residence as exempt. In his appeal to us Lov‐ enthal challenges the designation of the Edelsons’ house as exempt, obviously hoping the property will become a part of Mrs. Edelson’s assets that he can draw on.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Charles Murphy v. Robert Smith, et al

Case No.: 15-3384

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

Focus: Sovereign Immunity – Damage Award – Attorney Fees

Plaintiff Charles Murphy was an inmate in the Vandalia Correctional Center in Illinois. On July 25, 2011, correctional officers hit Murphy, fracturing part of his eye socket, and left him in a cell without medical attention. Murphy sued under 42 U.S.C. § 1983 and state-law theories. A jury awarded him damages on some of those claims, including some state-law claims, and the district court awarded attorney fees under 42 U.S.C. § 1988. Two of the defendants now appeal and challenge two aspects of the judgment. They argue that state-law sovereign immunity bars the state-law claims and that the Prison Litigation Reform Act requires that 25 percent of the damage award be used to pay the attorney fee award. We affirm on the sovereign immunity defense. The Illinois doctrine of sovereign immunity does not apply to state-law claims against a state official or employee who has violated statutory or constitutional law. See Leetaru v. Board of Trustees of University of Illinois, 32 N.E.3d 583 (Ill. 2015). Murphy alleged and ultimately proved such violations here. On the attorney fee issue, however, we reverse. Under 42 U.S.C. § 1997e(d), the attorney fee award must first be satisfied from up to 25 percent of the damage award, and the district court does not have discretion to reduce that maximum percentage. We remand for entry of a modified judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Ryan Leaver v. Gary Shortess

Case No.: 15-2730

Officials: EASTERBROOK, MANION, and SYKES, Circuit Judges

Focus: Probable Cause – Qualified Immunity

Ryan Leaver was arrested in Montana on a Wisconsin warrant for theft by lessee after he failed to return a rental car to Hertz Rent-A-Car in Appleton, Wisconsin. He spent more than two months in a Montana jail before being extradited to Wisconsin. The theft charge was eventually dropped. Leaver then filed this suit under 42 U.S.C. § 1983 alleging that the investigating officer, Sergeant Gary Shortess of the Outagamie County Sheriff’s Department, intentionally or recklessly omitted certain exculpatory information from his police reports that would have defeated probable cause for the charge and accompanying warrant. The district court granted summary judgment for Shortess. We affirm. No evidence suggests that Shortess was personally aware of the information Leaver claims was wrongly omitted from the police reports. And even if he was aware of it, qualified immunity applies. It’s not clear that the information would have negated probable cause.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Bruce Jones

Case No.: 15-1792

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

Focus: Sentencing Guidelines – 5^th & 6^th Amendment Violation

This appeal in a criminal case presents an unusual combination of offenses: health care fraud and unlawful possession of firearms and ammunition. Defendant Bruce Jones was both a family counselor and a firearms enthusiast who collected dozens of guns and thousands of rounds of ammunition. Jones had a prior felony conviction, so it was a federal crime for him to possess firearms and ammunition. The FBI discovered these weapons while investigating Jones for allegedly fraudulent health care billing. A federal grand jury charged Jones with three counts of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of health care fraud in violation of 18 U.S.C. § 1347. The district court bifurcated the case for separate trials on the firearms charges and the health care fraud charge. The juries convicted Jones on all counts. The district court sentenced Jones to 90 months in prison on his fraud conviction and 100 months on each felon-in-possession conviction, with all terms to be served concurrently. Jones appeals and raises four distinct issues. First, he contends that the ex parte pretrial restraint of certain life insurance policies violated his Fifth and Sixth Amendment rights. Second, he argues that the district court erroneously denied his request for new counsel during his fraud trial. Third, he contends that he was denied the opportunity to testify at his fraud trial. Fourth, he challenges the court’s sentencing guideline computation. We affirm in all respects.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: West Bend Mutual Insurance Company v. Paul W. Schumacher, et al

Case No.: 14-2731

Officials: POSNER, RIPPLE, and HAMILTON, Circuit Judges

Focus: Workers Compensation – Legal Malpractice – Causation

In 2013, West Bend Mutual Insurance Co. (“West Bend”) brought this legal malpractice action against its former counsel, Paul Schumacher, and his law firm, Roddy, Leahy, Guill & Ziema, Ltd. (“RLGZ”). The gravamen of the complaint is Mr. Schumacher’s alleged performance in defending a workers’ compensation claim in 2005 and 2006. The district court dismissed the second amended complaint on the defendant’s 12(b)(6) motion and terminated the case. In the district court’s view, the complaint failed to set forth with sufficient specificity a cause of action for legal malpractice. We agree; the complaint fails to state plausibly the causation and harm elements required under Illinois legal malpractice law. Accordingly, we affirm the judgment of the district court.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: John Erickson Coahuila Hernandez

Case No.: 16-3147

Officials: BAUER and FLAUM, Circuit Judges, and SHADID, Chief District Court Judge

Focus: Child Custody – Foreign National

On December 18, 2015, Hernandez filed a Verified Petition for Return of Minor Child to Mexico and Issuance of a Show Cause Order. On February 29, 2016, the District Court held an evidentiary hearing, at which Hernandez, Cardoso and Alma Cardoso, Cardoso’s sister, testified. Following the testimony of all witnesses, the Court sua sponte, and without objection from either party, took testimony from the child, in chambers, and outside the presence of counsel or the parties. After questioning of the child, the District Court allowed both parties until March 14, 2016, to file objections to any questions posed to the child. Neither party filed any such objections. Following the evidentiary hearing, the District Court allowed briefing and then entered its Order on July 13, 2016. In its Order, the District Court found that Cardoso testified

credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. The District Court also specifically noted it observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence, taken as true, provides clear and convincing evidence that there is a grave risk of physical or psychological harm to A.E. if he is returned to Hernandez’s custody. This appeal followed.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Karen Smith v. Capital One Bank, et al

Case No.: 16-1422; 16-1423

Officials: FLAUM and KANNE, Circuit Judges, and MAGNUS‐ STINSON, District Judge. *

Focus: Bankruptcy – Co-Debtor Stay

Plaintiff‐appellant Karen Smith filed for bankruptcy. During the course of the bankruptcy proceedings, defendant‐appellee Capital One Bank USA, N.A. (“Capital One”), represented by defendant‐appellee Kohn Law Firm S.C. (“Kohn”), filed suit against Smith’s husband to collect on a credit card debt he owed. Appellant Smith initiated an adversary proceeding in the bankruptcy court, alleging that appellees had violated the co‐debtor stay of 11 U.S.C. § 1301. The bankruptcy court granted summary judgment for appellant Smith, holding that Capital One’s lawsuit against Smith’s husband had violated the co‐debtor stay due to the operation of Wisconsin marital law, Wis. Stat. § 766.55, which makes marital property available to satisfy certain kinds of debts. On interlocutory appeal, the district court reversed the bankruptcy court, holding that the co‐debtor stay did not apply despite the application of Wisconsin marital law. We affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Betty L. Brown v. Carolyn W. Colvin

Case No.: 16-1066

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

Focus: Disability Benefits – Experts

Betty Brown applied for disability benefits on the ground that her bad back and obesity left her in too much pain to work. The Social Security Administration denied Brown’s application, and after holding a hearing, an administrative law judge (ALJ) upheld the denial, concluding that Brown could perform sedentary work associated with six jobs identified by a vocational expert. Brown challenges this denial of benefits on several grounds. First, she argues that the ALJ insufficiently considered her obesity. We disagree. The ALJ repeatedly stated that he had considered Brown’s obesity, discussed multiple treatment records that identified the obesity, and rejected the opinions of several government-related experts that insufficiently accounted for the obesity. Brown also contends that the ALJ improperly relied on the vocational expert’s testimony from the administrative hearing, claiming that the expert failed to provide enough information to justify her departure from the Dictionary of Occupational Titles—which provides occupational information about myriad jobs in the U.S. economy—and failed to verify the source of the data on which her jobs-related opinions were based. But Brown forfeited most of these arguments by failing to object to the expert’s testimony during the hearing, and the one error that the ALJ did commit was harmless. However, we agree with Brown that the ALJ violated the Treating Physician Rule when he rejected certain opinions proffered by Brown’s doctor regarding Brown’s ability to sit and stand for prolonged periods of time. In substituting his own opinions for the doctor’s, the ALJ focused on facts that did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. So we vacate the ALJ’s denial of benefits and remand the case for further proceedings.

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Riley J. Wilson v. Career Education Corporation

Case No.: 16-1063

Officials: RIPPLE, ROVNER, and SYKES, Circuit Judges

Focus: Breach of Contract – Unjust enrichment – Good Faith and Fair Dealing

Riley Wilson sued Career Education Corporation (CEC) alleging that CEC owed him the payment of bonuses for students that he had recruited, as an admissions representative, to CEC’s culinary arts college. This is the second appeal by Wilson in this case. Wilson initially argued that he was entitled to the bonuses under numerous legal theories, including that: (1) CEC breached its employment contract with him by failing to pay the bonuses; (2) CEC was unjustly enriched; and (3) CEC violated an implied covenant of good faith and fair dealing that is implicit in the contract. In his first appeal to this court, we upheld the dismissal of the claim on the first two grounds, but a majority held that the complaint survived dismissal on the claim that CEC violated the implied covenant of good faith and fair dealing. Wilson v. Career Educ. Corp., 729 F.3d 665 (7th Cir. 2013) (Wilson I). We remanded for further proceedings on that claim.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jose J. Urena

Case No.: 15-3663

Officials: EASTERBROOK and ROVNER, Circuit Judges, and SHADID, Chief District Court Judge

Focus: Exclusion of Evidence – Mistrial

Jose Urena, who was born in and is a citizen of Mexico, was indicted on one count of being an alien found in the United States after having been previously deported, in violation of 8 U.S.C. § 1326(a). The indictment alleged that Urena had been deported and removed from the United States on March 4, 2011, and that he was found in Kane County, Illinois on November 26, 2012, without previously having obtained the express consent of the Secretary of Homeland Security to be admitted into the United States. Urena was convicted at a jury trial held in the Northern District of Illinois and was sentenced to the custody of the Bureau of Prisons for a period of 100 months, followed by a three‐year term of supervised release. Urena was also directed, at the term of his prison sentence, to surrender to an authorized official of the Homeland Security Department for a determination on the issue of deportability. Urena appeals raising two issues. First, Urena appeals the District Court’s refusal to exclude evidence of Urena’s seven prior removals under Rule 404(b) of the Federal Rules of Evidence. Second, Urena appeals the District Court’s denial of Urena’s Motion for a Mistrial after the prosecution published to the jury an exhibit that included the fact of Urena’s prior conviction for “Felony Class 4 Cocaine Possession.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Nathaniel Jackson v. Lieutenant David Wilils, et al

Case No.: 14-3226

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

Focus: Limiting Jury Instruction – Abuse of Discretion

Nathaniel Jackson, an inmate in the custody of the Illinois Department of Corrections, filed a complaint pursuant to 42 U.S.C. § 1983 alleging that his rights under the Eighth Amendment were violated by prison officials. He brought the lawsuit against David Willis, a Lieutenant at

Logan Correctional Center, and Eddie J. Payne, a correctional officer at Pinckneyville Correctional Center, in connection with an incident that occurred at Logan on August 4, 2011, during his transfer from Dixon Correctional Center to Pinckneyville. Jackson alleged that he was unconstitutionally subjected to excessive force and also alleged a failure to protect by the refusal of his request to be placed in a prison in which he had no known enemies. The details surrounding the Eighth Amendment claim are of limited relevance to the issues in this appeal. In brief, Jackson was scheduled to be transferred from Logan to Pinckneyville, but when he arrived at Logan he refused to transfer to Pinckneyville stating that he had made enemies with correctional officers there. He asserted that he had a right to refuse a transfer. In support of that contention, he testified that he had witnessed other prisoners refuse transfers from Logan, and they were placed in segregation and issued a disciplinary ticket. He further asserted that in May 2007, he refused a transfer to Shawnee Correctional Center while he was at Logan because prison employees were his enemies there, and he was allowed to stay at Logan. In the August 4, 2011, incident, Jackson’s refusal to transfer met with a different reaction. He testified that a number of officers lifted him over their heads and threw him, head first, into the van, causing injury. The officers disputed his testimony as to the manner in which he was transported. They testified that he refused to walk to the van, and that they carried him there, but that he stepped inside of his own accord and was not thrown into it. They further asserted that once inside the van he never claimed any injury, nor did he request any medical treatment. Following a trial, a jury returned a verdict in favor of the defendants and against Jackson. On appeal, counsel for Jackson argues that he is entitled to a new trial because the court refused to grant a continuance when his attorney withdrew on the eve of trial, the court improperly admitted a 7‐year‐old disciplinary report without a limiting instruction or explanation, and the court abused its discretion in admitting a 12‐year‐ old burglary conviction as evidence of Jackson’s truthfulness. None of those alleged errors rendered the trial unfair and command a new trial

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Allan Hancock

Case No.: 15-1956

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

Focus: Probable Cause – Search Warrant

Michael Allan Hancock was indicted on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and on one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Before trial, Mr. Hancock challenged the search warrant that had led to his arrest by requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). In support of that motion, he maintained that critical evidence bearing on a confidential informant’s credibility had been omitted from the probable cause affidavit. Following the magistrate judge’s recommendation, the district court denied the motion.   Mr. Hancock also moved in limine to preclude the use of prior convictions as the basis for the § 922(g)(1) count. He maintained that the release document issued to him by the Colorado Department of Corrections lulled him into believing that all of his rights, including the right to possess a weapon, had been restored. The district court, assessing the release document within its four corners, held that the document did not communicate any restoration of rights to Mr. Hancock. A jury later convicted Mr. Hancock on both counts of the indictment. The court imposed concurrent sentences of 120 months on each count. Mr. Hancock now challenges both of these rulings. We conclude that, viewed in its totality, the probable cause affidavit amply supports the issued search warrant. We also agree with the district court that, on its face, the release document does not speak to the restoration of rights. We therefore affirm Mr. Hancock’s convictions

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Aaron Marjala v. Fox News Network, LLC, et al

Case No.: 2015AP1831

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

Focus: Defamation

Aaron Marjala appeals from an order of the circuit court that dismissed his defamation claims against Fox News Network, LLC (“Fox News”), Lee Armstrong, Megyn Kelly, and Robert Whitaker. Marjala claims that the circuit court erred when it dismissed his claims because the defendants’ claims are false and capable of defamatory meaning, which should defeat their respective dispositive motions. We conclude the circuit court reached the appropriate result, so we affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rachel M. Helmbrecht

Case No.: 2015AP2300-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Expungement – General Appeal

Rachel M. Helmbrecht appeals a judgment of conviction, following a guilty plea, to one count of possession of methamphetamine. Helmbrecht also appeals the order denying her motion for

postconviction relief, in which the circuit court denied her request for expungement. We affirm.

Recommended for publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marie A. Martin

Case No.: 2016AP913

Officials: Brennan, P.J.

Focus: Motion To Suppress

Marie Martin appeals the trial court’s order denying her motion to suppress and the judgment of conviction for OWI-4th offense. Because we conclude that the record shows sufficient reasonable, articulable suspicions under Terry v. Ohio, 392 U.S. 1, 22 (1968), that Martin was committing or was about to commit a crime, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel. Vincent Martinz v. Brian Hayes

Case No.: 2014AP2095

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

Focus: Revocation – Ineffective Assistance of Counsel

Vincent Martinez appeals pro se from an order dismissing his petition for a writ of habeas corpus following revocation of his extended supervision. Martinez asserts the attorney who represented him at his extended supervision revocation hearing performed ineffectively. We disagree and affirm

Full Text

WI Court of Appeals – District II

Case Name: Kelly R. Rose v. Russell O. Rose

Case No.: 2015AP2646; 2015AP692

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

Focus: Divorce – Marital Settlement Agreement – Special Master

Pursuant to a stipulation entered between the parties modifying their marital settlement agreement (MSA) on placement, the parties agreed to reduce the placement of the children with Russell O. Rose to alternating weekends and to use a special master/referee to resolve any future disputes between the parties involving modification to placement. Russell subsequently moved the circuit court for increased placement and, in connection thereafter, moved for psychological evaluations of the parties and their children. The circuit court denied Russell’s motions. Russell then moved to remove the special master, which the court also denied. Russell appeals both orders, and we affirm

Full Text

WI Court of Appeals – District II

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

Case No.: 2016AP238-CR

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

Focus: Motion For New Trial – Waiver

Michael L. Washington appeals from his conviction for burglary and resisting an officer and a postconviction order denying his motion for a new trial. Washington asserts that his convictions should be vacated and he should be granted a new trial as his absence from the entirety of his jury trial violated his statutory right to be present under WIS. STAT. § 971.04(1) (2013-14).2 We affirm as Washington waived his statutory right to be present.

Recommended for publication

Full Text

WI Court of Appeals – District IV

Case Name: Jefferson County Department of Human Services v. C.C.

Case No.: 2016AP1983

Officials: Sherman, J.

Focus: Termination of Parental Rights

C.C. appeals from an order of the circuit court terminating her parental rights to L.G. C.C. challenges the circuit court’s determination on summary judgment that grounds existed to terminate C.C.’s parental rights. C.C. contends: (1) the circuit court’s summary judgment procedure at the grounds phase violated the mandatory notice provision under WIS. STAT. § 802.08(2); (2) a genuine issue of material fact exists on the issue of grounds; and (3) summary judgment was not carefully administered. I conclude that summary judgment was appropriate and, therefore, affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Judith Ann Detert-Moriarty

Case No.: 2014AP2433

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Wisconsin Equal Access to Justice Act – Fees

Judith Ann Detert-Moriarty appeals an order by the circuit court denying her motion for fees and costs under WIS. STAT. § 814.245 (2013-14), which is the Wisconsin Equal Access to Justice Act (WEAJA). The issue on appeal is whether Detert-Moriarty is entitled to attorney fees and costs under WEAJA where she was the prevailing party in a forfeiture action brought by the Wisconsin Department of Justice (DOJ) to enforce an administrative rule promulgated by a state agency, the Department of Administration (DOA). We conclude that WIS. STAT. § 814.245 does not apply to this forfeiture action because WEAJA limits the award of attorney fees and costs to a prevailing party in an action brought by “a state agency.” This action was not brought by a state agency, but rather by the State of Wisconsin, as required by WIS. STAT. § 778.02. Accordingly, we affirm the circuit court’s denial of Detert-Moriarty’s motion for costs under § 814.245, but based on a different rationale than that used by the circuit court.

Recommended for publication

Full Text

WI Court of Appeals – District IV

Case Name: Partnership Health Plan, Inc. et al v. Office of the Commissioner of Insurance

Case No.: 2015AP1331

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

Focus: Surplus Funds Entitlement – Liquidation

Michael Polsky, the WIS. STAT. ch. 128 receiver for Community Health Partnership (CHP), appeals an order of the circuit court denying Polsky’s motion for an order declaring that CHP is entitled to any and all surplus funds from the liquidation of Partnership Health Plan, Inc. (PHP). Restated and summarized, Polsky contends that CHP is entitled to PHP’s surplus funds because: (1) CHP is the “owner” of PHP and as such, is entitled to any surplus funds under WIS. STAT. § 645.68(11) (2013-14); 1 (2) PHP’s board of directors adopted a resolution directing that any surplus funds are to be paid to CHP; and (3) the surplus funds constitute reimbursement to CHP for money expended by CHP on behalf of PHP. For the reasons discussed below, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Scott C. Kieson v. William Pollard

Case No.: 2015AP1534

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

Focus: Prison Disciplinary Action

Scott Kieson, an inmate at the Waupun Correctional Institution (WCI), appeals the circuit court’s order that affirmed on the merits two related administrative decisions arising out of a prison disciplinary action. Kieson also challenges the court’s decision that quashed, without reaching the merits, a portion of Kieson’s certiorari petition seeking review of two additional administrative decisions that arose out of a separate disciplinary action. For the reasons discussed below, we affirm the circuit court’s decision on the orders arising from the first disciplinary action, but reverse and remand to have the circuit court conduct further proceedings consistent with this opinion on the orders arising from the second disciplinary action.

Full Text

WI Court of Appeals – District IV

Case Name: Taylor Peterson et al v. Gundersen Clinic Professional Liability Insurance Plan, et al

Case No.: 2015AP356

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

Focus: Court Error – Discovery Sanctions – Special Verdict

Taylor Peterson appeals the circuit court’s judgment entered after a jury rejected Peterson’s informed consent (medical malpractice) claim against Dr. Elizabeth Ault Brinker and Gundersen Clinic Professional Liability Insurance Plan (Gundersen Insurance). Peterson seeks a new trial for two reasons. She argues that the circuit court erred in the special verdict form and in excluding certain deposition testimony. Peterson makes a third argument that the court erred in denying her motion for discovery sanctions. We reject Peterson’s arguments, and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John D. Myer

Case No.: 2016AP490-CR

Officials: Blanchard, J.

Focus: Motion To Suppress

John Myer challenges a suppression ruling of the circuit court in this appeal of a judgment finding him guilty of operating a motor vehicle while intoxicated, second offense. Myer argues that, while he sat apparently sleeping or unconscious in his vehicle, he was unreasonably seized by a police officer in violation of the Fourth Amendment, and therefore all evidence obtained following his seizure should have been suppressed. I affirm the circuit court’s denial of the suppression motion and denial of a motion for reconsideration because I conclude that, assuming without deciding that the officer’s conduct constituted a seizure under the Fourth Amendment, this conduct was lawful because the officer acted in a community caretaker capacity.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Regency West Apartments, LLC v. City of Racine

Case No.: 2014AP2947

Focus: Excess Taxation

The City of Racine’s appraisers valued Regency West’s property at $4,425,000 as of January 1, 2012 and at $4,169,000 as of January 1, 2013 for purposes of tax assessment. Regency West claims both appraisals fail to comply with appraisal principles required by Wisconsin law, and that those appraisals resulted in excessive taxation. Our discussion centers on whether Racine’s appraisals of Regency West’s property comply with Wisconsin law. Specifically, we review whether Racine employed the methodology required by Wis. Stat. § 70.32(1) for valuing federally subsidized property that is subject to I.R.C. § 42 restrictions;5 whether Regency West has overcome the presumption of correctness set out in Wis. Stat. § 70.49; and whether Regency West proved the tax assessments for 2012 and 2013 were excessive. We conclude that the valuation methodologies Racine used for the 2012 and 2013 assessments did not comply with Wisconsin law. Accordingly, we also conclude that Regency West has overcome the presumption of correctness for the 2012 and 2013 tax assessments, and that the circuit court and the court of appeals erred in concluding otherwise. And, finally, we conclude that Regency West has proved that Racine’s tax assessments for 2012 and 2013 were excessive. Accordingly, we reverse and remand to the circuit court to calculate the amount of Regency West’s refund.

Concurring:

Dissenting: Abrahamson, Bradley

Full Text