Weekly Case Digests — July 17 to July 21, 2017

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^7th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Jorge Baez-Sanchez, et al.  v. Jefferson B. Sessions III, et al.

Case No.: 16-3784; 17-1438

Officials: WOOD, Chief Judge,

Focus: Pleadings – Appellant’s Jurisdictional Statement

There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws. This imposes needless costs on everyone involved. The briefs filed by respondent Sessions and appellee Air Line Pilots are STRICKEN. Each one must file a new brief within seven days of this order; the new brief must contain a jurisdictional statement that complies with all of the requirements of FRAP 28(b) and Circuit Rule 28(b), and if necessary, statements that comply with FRAP 28(a) and Circuit Rule 28(a).

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. Conrad Gonzalez

Case No.: 16-1932

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

Focus: Court Error – Admittance of Evidence

A jury found Conrad Gonzalez guilty of bank robbery. Gonzalez challenges his conviction on due process grounds, arguing that the identification procedures employed by police officers in the investigation of the robbery were so unnecessarily suggestive that they created a substantial likelihood of irreparable misidentification. Although we agree that there were significant problems with the challenged identification procedures, we conclude that any error in admitting them was harmless.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Vladimir Cojocari, et al., v. Jefferson B. Sessions III

Case No.: 16-3941

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

Focus: Immigration – Adverse Creditability Findings

Vladimir Cojocari, a citizen of Moldova, seeks asylum, withholding of removal, and protection under the United Nations Convention Against Torture. His wife Veronica Moraru is a derivative applicant for this relief. The immigration judge denied the application and ordered the couple removed, and the Board of Immigration Appeals dismissed their appeal. The couple has petitioned for review in this court under 8 U.S.C. § 1252.

We grant their petition. The Board’s decision rested on the immigration judge’s adverse credibility finding. Judicial review of credibility determinations is deferential, and reviewing courts rarely overturn credibility findings by agency adjudicators. Such findings are not beyond judicial review, however. This is one of those relatively unusual cases where the agency’s credibility finding is arbitrary and capricious. As we detail below, the immigration judge made mountains out of molehills, fashioned inconsistencies from whole cloth, and held Cojocari’s efforts to obtain corroborating documents against him. We remand for a fresh assessment of Cojocari’s credibility, preferably by a different immigration judge

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated report on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Mary Haley, et al. v. Kolbe & Kolbe Millwork Co.

Case No.: 16-3192

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges

Focus: Negligence – Defective Product

Seven pairs of spouses and one individual filed this putative class action against Kolbe & Kolbe Millwork Company, alleging that Kolbe sold them defective windows that leak and rot. Plaintiffs brought common-law and statutory claims for breach of express and implied warranties, negligent design and manufacturing of the windows, negligent or fraudulent misrepresentations as to the condition of the windows, and unjust enrichment. The district court granted partial summary judgment in Kolbe’s favor on a number of claims, eventually excluded plaintiffs’ experts and denied class certification, and ultimately found that plaintiffs’ individual claims likewise could not survive without expert support. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jennifer R. Wilson-Trattner v. Robert Campbell, et al.

Case No.: 16-2509

Officials: BAUER and EASTERBROOK, Circuit Judges, and DEGUILIO, District Judge.

Focus: Court Error – Sentencing Guidelines

In this appeal, the Plaintiff argues that the district court incorrectly granted summary judgment for the defense on three of her claims: a substantive due process claim under 42 U.S.C. § 1983, a failure to train claim under 42 U.S.C. § 1983 and an intentional infliction of emotional distress claim under Indiana law. Each of these is based on allegations that officers of the Hancock County, Indiana Sherriff’s Department improperly responded to the Plaintiff’s complaints of domestic abuse. For the reasons that follow, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jason J. Tyson

Case No.: 16-2194

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Court Error – Sentencing Guidelines

Tyson argues that he is entitled to resentencing because his Wisconsin burglary conviction does not qualify as a “crime of violence” as contemplated by the Sentencing Guidelines, and therefore, the court set the incorrect base offense level for his Guidelines calculation. Indeed, shortly after Tyson’s sentencing, we held that because the Wisconsin burglary statute covers a “greater swath of conduct” than the elements of the Guidelines offense, it cannot serve as a predicate offense under § 2K2.1(a). United States v. Edwards, 836 F.3d 831, 838 (7th Cir. 2016).

At the hearing, the court went out of his way to explain his view that the Guidelines range was too high and that the calculated recommendation was not serving as the basis for the sentence he imposed. The court described the applicable range as “off the reservation” and noted that the Guidelines present “very fertile ground for the court to impose something different.” There is no indication in the record that the calculation error in any way affected the fairness or integrity of Tyson’s sentencing proceedings. Therefore, Tyson cannot satisfy the fourth condition, and his challenge cannot survive plain error review

Affirmed

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7^th Circuit Court of Appeals

Case Name: Monarch Beverage Co., Inc. v. David Cook

Case No.: 15-3440

Officials: JOEL M. FLAUM, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge DIANE S. SYKES, Circuit Judge

Focus: Amendment – Word Change

The concurring opinion in this case issued June 30, 2017, is amended as follows: The word “Monarch’s” in the final sentence at page 15 should be “Indiana’s”.

Decision

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7^th Circuit Court of Appeals

Case Name: Southern Illinois Power Cooperative v. Environmental Protection Agency et al.

Case No.: 16-3398 & 17-1442

Officials: BAUER, RIPPLE, and SYKES, Circuit Judges

Focus: Petition Transfer

Southern Illinois Power Cooperative seeks review of a final rule of the Environmental Protection Agency designating Williamson County, Illinois, as a nonattainment area for national air quality standards for sulfur dioxide. The rule in question is not limited to Williamson County; it makes attainment designations for 61 geographic areas spanning 24 states. The EPA moves to dismiss transfer the petition to the D.C. Circuit under the terms of the judicial-review provision of the Clean Air Act, which designates that circuit as the exclusive venue for review of “nationally applicable” agency actions. 42 U.S.C. § 7607(b)(1). We agree that the challenged rule is nationally applicable and therefore transfer the petition to the D.C. Circuit. Our decision conflicts with Madison Gas & Electric Co. v. EPA, 4 F.3d 529 (7th Cir. 1993). But Madison Gas is inconsistent with the text of § 7607(b)(1) and is therefore overruled.

Transferred

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7^th Circuit Court of Appeals

Case Name: Ben Baker v. Federal Bureau of Investigation

Case No.: 16-4188

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

Focus: Freedom of Information Act – Disclosure of Redacted Information

This appeal challenges a district court decision that dismissed with prejudice the plaintiff’s suit against the FBI under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B). Initially the plaintiff, Baker, sued to obtain all records connected to an investigation in which he was interested, but the FBI gave him only redacted records, and so now he seeks disclosure of the redacted (i.e., hidden from him) names.

As for the names of the Chicago officers who either assisted the FBI or were investigated but not charged, Baker argues that, under Illinois law, Illinois public officials have no expectation of privacy in “information that bears on [their] public duties.” 5 ILCS 140/7(c). But this provision, which Baker relies on, is merely an exception to one of the categories of information exempt from disclosure under Illinois’s Freedom of Information Act; it provides that “Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” is exempt from disclosure, but “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”

Baker gives us no reason to believe that the Illinois Act determines the scope of FOIA exemptions, which are federal. The district court was correct, moreover, to express concern that disclosing the names of the Chicago officers could expose them to harassment without conferring an offsetting public benefit and would thus be an unwarranted invasion of their personal privacy. Last Baker asks us to remand the case to the district court for consideration of whether to award him attorneys’ fees on the ground that his suit had prompted the FBI to release extensive records that it had refused to produce until he sued. See Batton v. IRS, 718 F.3d 522, 525 (5th Cir. 2013). As he never asked the district court to award attorneys’ fees, there is no ruling on them for us to review—though as the district court’s judgment did not forbid him to seek an award of attorneys’ fees, he still can do so. See Anderson v. U.S. Dep’t of Health & Human Services, 3 F.3d 1383, 1385 (10th Cir. 1993).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Branko Bogdanov

Case No.: 16‐4106

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

Focus: Sufficiency of Evidence and Sentencing Guidelines

Branko Bogdanov pleaded guilty to two criminal counts stemming from his family’s multi‐million dollar shoplifting scheme: one count for conspiring to transport stolen goods in interstate commerce, 18 U.S.C. § 2314, and one count for a substantive violation of the same law. The district court sentenced him to 48 months’ imprisonment and entered a preliminary order of forfeiture in the amount of $2.8 million. Bogdanov now challenges both the sufficiency of the evidence supporting the forfeiture order and the total loss amount that supported his advisory sentencing guidelines range. Because we find no error in either calculation, we affirm the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: International Union of Operating Engineers Local 139, et al. v. Brad D. Schimel et al.

Case No.: 16-3736 & 16-3834

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

Focus: Validation of Wisconsin’s Right-to-work Law

The International Union of Operating Engineers, Local 139 and Local 420 (“IUOE”), challenged Wisconsin’s right-to-work law. The district court determined that this Court’s decision upholding Indiana’s nearly-identical law, Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014), controlled in this case, and the court dismissed IUOE’s complaint with prejudice. For the following reasons, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marvin L. Bennett

Case No.: 16‐3769

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Sentencing Guidelines

Marvin Bennett, the defendant and appellant in this case, pleaded guilty to possession of a fire‐ arm by a felon, in violation of 18 U.S.C. § 922(g)(1). Ordinarily the maximum punishment for that crime is 120 months (10 years) in prison. See 18 U.S.C. § 924(a)(2). But the Armed Career Criminal Act (ACCA, as it’s usually called), 18 U.S.C. § 924(e), ordains a minimum sentence of 180 months (15 years) in prison for persons who violate section 922(g)(1) after having accumulated three or more convictions for committing a “violent felony.” Bennett, the defendant‐appellant in this case, pleaded guilty to having violated section 922(g)(1), and his plea agreement provided that he would be sentenced to 180 months. But before his sentencing hearing Bennett argued that one of his three previous convictions— the conviction for violating an Indiana law that punishes resisting law enforcement, Ind. Code § 35‐44‐3‐3—is not a crime of violence. (Section 35‐44‐3‐3 has since been recodified in largely the same form as section 35‐44.1‐3‐1, but all references here are to the version of the statute in effect at the time of Bennett’s offense.) The district judge disagreed and sentenced him to 180 months in prison, precipitating this appeal. Bennett’s plea agreement waived his rights to appeal, but the government has agreed not to enforce the waiver. See Nunez v. United States, 546 F.3d 450, 452 (7th Cir. 2008).

It remains to consider the bearing of the distinction emphasized in recent cases, notably Mathis v. United States, 136 S. Ct. 2243 (2016), between a statute that creates multiple offenses by listing alternative elements of a crime and one that creates a single offense that can however be committed by different means. The government argues that subsection (b)(1)(B) of Ind. Code § 35‐44‐3‐3 creates three separate offenses. But even if that is true, the offense of which Bennett was convicted is not a violent felony, so the statutory maximum sentence for the crime to which he plead guilty is 120 months. The sentence to which he plead—180 months— exceeds the statutory maximum, which is a ground to vacate the plea. See United States v. Gibson, 356 F.3d 761 (7th Cir. 2004). The judgment of the district court is therefore reversed, the plea vacated, and the case remanded to that court for further consideration.

Reversed, Vacated, and Remanded

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7^th Circuit Court of Appeals

Case Name: Regina Gwynn Baines v. Walgreen Co.,

Case No.: 16-3335

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

Focus: Sufficiency of Circumstantial Evidence

This appeal provides an example of circumstantial evidence that allows a reasonable inference that an employer acted with unlawful intent. Plaintiff Regina Baines alleges that when her former employer Walgreens refused to rehire her in 2014, it intentionally retaliated against her for complaining about race discrimination several years earlier. Baines sued Walgreens for retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. The district court granted summary judgment for Walgreens. The court said it found no evidence linking Baines’ protected activity (filing EEOC charges) and Walgreens’ adverse employment actions (failing to rehire her).

We reverse. While Baines did not offer direct evidence of a causal link, she offered sufficient circumstantial evidence to satisfy the summary judgment standard. She offered evidence that the manager who handled her earlier EEOC charges intervened in the 2014 decision not to rehire her, and that she did so in ways that deviated significantly from Walgreens’ standard hiring procedures. Walgreens offers no explanation for this unusual behavior. It insists instead on its own version of events. That approach might work in a trial, but it cannot sustain summary judgment. Other circumstantial evidence includes missing records of Baines’ application and her interview scores, a decision to hire instead someone less qualified, and dishonest answers from Walgreens decision-makers when asked to explain their decisions. If a jury believes Baines’ evidence, it could reasonably find that Walgreens unlawfully retaliated against her.

Baines does not rely on evidence of “suspicious timing” to support her claim. She relies instead on testimony from Lisa Martin and a good deal of other circumstantial evidence. Moreover, unlike many retaliation cases, here the adverse employment action was failure to rehire, not termination or demotion. Because Baines had not worked at Walgreens since 2008, her 2014 application was Walgreens’ first opportunity to retaliate for her 2009 EEOC charge. Under these circumstances, the time gap is understandable and presents a question for a jury at trial rather than a judge on summary judgment. We REVERSE the grant of summary judgment, and we REMAND for further proceedings consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Robert Hudson v. Jacqueline Lashbrook

Case No.: 16‐3152

Officials: POSNER, MANION and KANNE, Circuit Judges

Focus: Court Error – Plea Deal

Appellant Robert Hudson was granted habeas relief by a federal district judge, who ordered the state of Illinois to reoffer a plea deal. State prosecutors complied with that writ, but a state judge refused to accept the deal. Since Hudson received all the relief he sought in his 2 No. 16‐3152 first habeas action, we affirm the dismissal by the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Detlef Sommerfield v. City of Chicago

Case No.: 12‐1506 & 13‐1265

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

Focus: Court Error – Attorney’s Fees

After years of protracted litigation, a jury awarded Chicago Police Officer Detlef Sommerfield $30,000 in his workplace discrimination suit. For his efforts, Sommerfield’s lawyer requested $1.5 million in attorney’s fees, a sum the district court reduced to $430,000. Sommerfield now appeals, challenging the district court’s handling of his case and, in particular, its refusal to grant his attorney the full $1.5 million. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Phil Lamont Trent

Case No.: 16-3960

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

Focus: Court Error – Abuse of Discretion

Defendant-Appellant Phil Trent distributed heroin that killed Tyler Corzette. He was charged in a five-count indictment, which included two counts related to Corzette’s death. Trent now argues that this limitation violated his Sixth Amendment right to confrontation and was an abuse of discretion. We disagree and hold that the court committed no error in its ruling.

Trent also objected to the testimony of Illinois State Police Sergeant James Rieck, a government witness who had investigated Trent while undercover. During that investigation, Sergeant Rieck had communicated with Trent in person and by telephone. At trial, Sergeant Rieck identified Trent’s voice in the phone calls. Trent objected to this identification, claiming that the government had not laid the necessary foundation. He asserts that argument again on appeal. We disagree and hold that the court also did not err in allowing that testimony.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Gregory F. Young

Case No.: 16‐3733

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

Focus: Court Error – Procedural Error and Sentencing Guidelines

Gregory F. Young pled guilty to one count of unlawful possession of a firearm by a felon. He challenges his sentence on appeal, asserting that the court procedurally erred by relying on a clearly erroneous fact and by incorrectly applying guidelines commentary when determining his sentence. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Milwaukee Police Association, et al. v. Edward A. Flynn, et al.

Case No.: 16‐3743

Officials: ROVNER, WILLIAMS, and HAMILTON Circuit Judges

Focus: Constitutional Due Process and Wages

Daniel Vidmar, Christopher Manney, and Rudolfo Gomez, Jr. were discharged from the Milwaukee Police Department, for cause, by Police Chief Edward Flynn. Their benefits and pay stopped immediately. They appealed their terminations to the Board of Fire and Police Commissioners (the “Board”), which rejected their appeals and they were permanently discharged. The former officers claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. Along with the Milwaukee Police Association, they brought this lawsuit alleging that they were denied constitutional due process and wages. The district court rejected their claims and granted judgment on the pleadings, finding that under Wisconsin law the former officers were not entitled to employment or pay and benefits between discharge by the chief and affirmation of discharge by the Board.

This appeal followed, and we affirm. Under Wisconsin law, the former officers had no property interest in employment once they were discharged for cause by Chief Flynn. They were provided a full and adequate appellate process, and their discharges were upheld in accordance with Wisconsin law. And, they were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under Wisconsin law as they were not employed during this time. So we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tate & Lyle Americas, LLC, et al.  v. Glatt Air Techniques Inc.,

Case No.: 16-3893 & 17-1045

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

Focus: Court Error – Admittance of Evidence

The plaintiff, which for simplicity we’ll call just Tate, sells ingredients used in the food and beverage industry. The defendant, Glatt, a member of a substantial German conglomerate called the Glatt group, sells processing equipment to the food industry. In 2008 Tate and Glatt made a contract whereby Glatt would for $7,042,022 design and build a three-story-tall food-manufacturing machine called a granulator, which would be installed on Tate’s premises in Sycamore, Illinois. The following year, after the granulator was up and running, it caught fire and was seriously damaged. The product being processed at the time of the fire was a corn product that was flammable and during processing gave off flammable dust.

More than three years later Tate brought this lawsuit against Glatt, basing federal jurisdiction on diversity of citizenship and claiming that the fire had resulted from defects in the granulator—either failure to install a fire-suppression system or defects in filters essential to filtering the flammable dust from the exhaust of the machine.

Glatt argues that the judge should not have allowed Tate to argue to the jury that any of the filters in the granulator were defective, because before the trial Tate had in response to a request for admissions by Glatt admitted not being “presently aware of anyone that observed cracked, chipped, or poorly fitting filters in the Granulator following work performed by Dynacoil [a Glatt contractor, shortly before the fire],” and Tate also admitted not having discovered “any evidence that one or more of the Granulator filters or filter housings [was] cracked, chipped or poorly fitting at the time the September 17, 2009 fire started.”

Glatt’s brief recites a laundry list of additional alleged errors in the proceedings below, relating to the admission of evidence, its request for additional discovery, and other matters. But its arguments are close to being cursory, and the issues they raise were resolved soundly by the trial judge. Because we find that neither the magistrate judge nor the jury committed a reversible error, the judgment of the district court is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Steven A. Lauth v. Covance, Inc.

Case No.: No. 16-2939

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

Focus: Wrongful Termination – Age Discrimination and Retaliation

Steven Lauth was terminated from his position at Covance Central Laboratories, Inc. on October 25, 2012. He sued Covance, raising claims of age discrimination and retaliation. The district court granted summary judgment in favor of Covance. The court also awarded certain costs to Covance. Lauth appeals from both orders.

Lauth also claims that Covance disciplined and terminated him as retaliation for making his AlertLine complaint and for filing charges of discrimination with the EEOC. To survive summary judgment on his retaliation claim, Lauth must establish that (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Hutt v. AbbVie Prods. LLC, 757 F.3d 687, 693 (7th Cir. 2014) (citation omitted). As with the discrimination claim, we no longer recognize a distinction between direct or indirect evidence, and instead consider all of the record evidence to determine whether a causal link exists. See Ortiz, 834 F.3d at 765–66.

Lauth has not cited any evidence, other than his own speculation, that might indicate Covance used the litany of complaints and the documented history of his communication issues as a cover for its retaliatory motive. That speculation is insufficient to raise a question of fact, particularly in light of the Covance’s consistent, longstanding, and progressive concerns about his behavior. See Argyropolous v. City of Alton, 539 F.3d 724, 737 (7th Cir. 2008) (mere speculation that employer lied to conceal true motives insufficient to withstand summary judgment).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daniel Proctor v. Kul Sood, et al.

Case No.: 16‐1942

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

Focus: Eighth Amendment Violation – Lack of Medical Care

Daniel Proctor, an Illinois prisoner who was confined for seven years at Hill Correctional Center, suffers from chronic abdominal pain and spasms in his colon. He sued a number of medical providers working at Hill for Wexford Health Sources—the contractor providing healthcare to Illinois prisoners—as well as several corrections officials, claiming that they violated the Eighth Amendment by not ordering a colonoscopy and endoscopy to diagnose his persistent abdominal pain. The district court granted summary judgment for the defendants. We affirm that decision.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Westfield Insurance Company v. National Decorating Service, Inc., et al.

Case No.: 16‐1439

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

Focus: Court Error – Duty to Defend

This is an insurance coverage dispute that resulted after a newly constructed multi‐story con‐ dominium building suffered water damage. The water damage was allegedly caused by the failure of the painting subcontractor, National Decorating Service, to apply an adequate coat of sealant to the exterior of the building.

On appeal, Westfield argues that the district court erred in finding that there was a duty to defend for two reasons. First, we agree with Westfield that the condominium association’s allegations of damage to individual unit owners’ property are not sufficient to trigger the duty because the condominium association, on behalf of its unit owners, lacks standing to pursue these claims.   Second, Westfield contends it owes no duty to defend because the condominium association’s complaint does not allege a covered incident under its policy. Rather, the complaint alleges that the painting contractor failed to apply an adequate amount of paint, which cannot be said to be an “accident.” Absent an “accident,” Westfield asserts that there was not a covered “occurrence” under the policy. Further, Westfield argues that because the damage alleged is to the building itself, which was a new construction and not an existing structure, the condominium association has not demonstrated that there was property damage incurred that is subject to its policy.

Here, we disagree. When the policy defines the term to include the “continuous or repeated exposure to substantially the same harmful conditions,” as it does here, the condominium association’s allegation that the painting subcontractor acted negligently is sufficient under Illinois law to constitute an “occurrence.” Further, because the painting subcontractor’s actions are alleged to have damaged parts of the building that were outside of the scope of the work for which it was engaged, the condominium association’s complaint alleges potentially covered property damage sufficient to invoke the duty to defend. Therefore, 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: Gary Jet Center, Inc. v. AFCO AvPorts Management LLC

Case No.: 16-1233

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

Focus: Contracts-Clause Claim – Federal Jurisdiction

Plaintiff-appellant Gary Jet Center, Inc. is a Fixed Base Operator (FBO) at the Gary/Chicago International Airport. Defendant-appellee Gary/Chicago International Airport Authority is a municipal corporation that owns and operates the Gary Airport. Defendants-appellees Mays, Dillard, Pritchett, Cooper, and Irving, are members of the Authority’s board. Defendant-appellee AFCO AvPORTS Management LLC manages operations at the Gary Airport.

Gary Jet filed suit on September 24, 2015. The Authority moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 19, 2015. The district court granted the motion as to the Contracts-Clause claim without prejudice on December 18, 2015. It declined to dismiss the state law claims pending further briefing on the issue of supplemental jurisdiction. At Gary Jet’s request, it relinquished jurisdiction over the state law claims on January 19, 2016. This appeal followed.

The primary issue on appeal is whether Gary Jet has stated a Contracts-Clause claim, as it is the sole basis for federal jurisdiction. The Contracts Clause provides that “No state shall … pass any … Law impairing the Obligation of Contracts … . ” U.S. CONST. art. I, § 10. Gary Jet is still operational at the Gary Airport and has not been forced to comply with the new provisions set forth in the New Minimum Standards. Further, the Authority relies upon the 2014 Settlement Agreement in which the parties agreed that the New Minimum Standards would control Gary Jet’s lease. No legislative power has been used to deny Gary Jet a remedy for a breach of the 2007 Lease. Therefore, this contract dispute has not risen to the level of a constitutional impairment. Accordingly, we find that Gary Jet has failed to state a Contracts-Clause claim. Because there is no basis for federal jurisdiction, Gary Jet’s remaining state law claims must be pursued in state court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Reginald Pittman, by his guardian Robin M. Hamilton, v. County of Madison, Illinois, et al.

Case No.: 16-3291

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

Focus: Court Error – Abuse of Discretion

On the night of December 19, 2007, Reginald Pittman, a pretrial detainee in the Madison County, Illinois, jail, hanged himself from the bars of his cell (of which he was the only occupant) with a blanket. He did not die, but he sustained brain damage that has left him in a vegetative state, cared for entirely by his mother with no government benefits. This suit, brought on his behalf, charges deliberate indifference by guards and other jail staff to the risk of his attempting suicide, in violation of the Eighth Amendment.

The key witness for Pittman was a man named Bradley Banovz (pronounced “Banoviz”), who occupied a cell adjacent to Pittman’s when Pittman hanged himself. He testified at the trial that in the five days preceding Pittman’s suicide attempt Eaton and Werner had ignored Pittman’s requests to see members of the jail’s crisis staff.

Some three hours after the suicide attempt a county detective obtained, in an interview room in the jail, a 25-minute interview with Banovz about the attempt, which was captured on video. Pittman’s lawyer attempted to introduce the video at the trial, for while Banovz testified at the trial, that was seven years after the suicide attempt and video inter- view; and while he’d been lucid and articulate in the video interview he was a terrible witness at the trial, with poor recollection, an alternately hostile and flippant demeanor, and an inability to counter evidence of his criminal record harped on by defense counsel.

The district judge brushed aside all the reasons why the video should have been allowed in evidence, and excluded it without giving any reason why it should be excluded. Having for the reasons stated no assurance that Pittman’s claim was fairly tried, we hereby vacate the judgment and remand the case for a retrial conducted in conformity with the analysis in this opinion.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Benito Mojica

Case No.: 16-2985

Officials: WOOD, Chief Judge, and BAUER and HAMILTON,

Circuit Judges.

Focus: Motion to Suppress Evidence and Sentencing Guidelines

Appellant Benito Mojica appeals his conviction on two counts for various drug-trafficking crimes. Mojica claims that the district court improperly denied his motion to suppress cocaine and other evidence. He also challenges his sentence, disputing the district court’s finding that he was jointly accountable for 18.084 kilograms of cocaine. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Estate of Dennis Simpson, et al. v. Mark E. Gorbett

Case No.: 16-2899

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

Focus: Sufficiency of Evidence

This case concerns the death of Dennis Simpson, an inmate who fell off an upper bunk while incarcerated in the Bartholomew County Jail for a drunken driving conviction. Simpson was intoxicated when he reported to the jail to serve his weekend stay, prompting officers initially to place him in a holding cell. After they thought he was sober they assigned him to an upper bunk in a two‐person cell, even though he was obviously obese. While sleeping, Simpson went into convulsions and fell off the bunk on to the hard concrete floor. He died from his injuries.

His estate sued six county employees—five officers and the sheriff—arguing that the conditions under which the jail kept Simpson and the care he received were inadequate under the Eighth Amendment. The district court found there was insufficient evidence to show the defendants were aware of, but disregarded, a risk to Simpson’s health and safety, and so granted them summary judgment. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Douglas Oaks v. Randy Pfister

Case No.: 15-2924

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

Focus: Sixth Amendment Violation – Right to Choose Counsel

In this habeas corpus case, state prisoner Douglas Oaks asks us to hold that he was deprived of his Sixth Amendment right to choose his counsel. Because he procedurally defaulted that claim during his state court proceedings, we affirm the district court’s denial of habeas relief without reaching the merits of his claim.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: County of Bayfield v. Ida Hautop

Case No.: 2016AP984

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

Focus: Motion for Relief

Ida Hautop appeals an order denying her WIS. STAT. § 806.07 (2015-16), motion for relief from a tax lien foreclosure judgment entered in favor of Bayfield County. Hautop argues she is entitled to relief from the judgment because the guardian ad litem (GAL) appointed pursuant to WIS. STAT. § 75.521(12)(b) failed to fulfill his statutory duties to Hautop. For the reasons stated below, we reject Hautop’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: Petitioner v. Dennis L. Shaw

Case No.: 2016AP1081

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

Focus: Sufficiency of Evidence

Dennis Shaw challenges the sufficiency of the evidence supporting an order granting a domestic abuse injunction. We affirm.

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WI Court of Appeals – District III

Case Name: Ronald Berg Revocable Trust v. Thomas R. Ziel, et al.

Case No.: 2016AP1287

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

Focus: Court Error – Abuse of Discretion

The Ronald Berg Revocable Trust (Trust) appeals an order determining that a recorded, non-exclusive easement formerly held by Ronald Berg (Berg) over undeveloped property owned by Thomas Ziel and Shawn Newhouse (collectively, the Ziels) was limited to twelve feet in width. The Trust argues the circuit court erred by: (1) exceeding the scope of this court’s remand order in a prior appeal of this case; and (2) awarding the Trust only a twelve-foot wide easement rather than a thirty-three-foot wide easement. We conclude the circuit court properly exercised its discretion under the remand order and in determining the easement width. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Pella Mutual Insurance Company v. Gary Hargrove, et al.

Case No.: 2016AP2032

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

Focus: Motion for Relief

Gary and Jody Hargrove appeal an order denying their motion for relief from a default judgment declaring that the Hargroves are not entitled to coverage under an insurance policy issued by Pella Mutual Insurance Company. The Hargroves argue they are entitled to relief from the default judgment pursuant to WIS. STAT. § 806.07(1)(a), (g), and (h) (2015-16). We reject the Hargroves’ arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.W.

Case No.: 2016AP2045; 2016AP2046

Officials: KESSLER, J.

Focus: Motion for Postdispositional Relief

M.W. appeals from an order terminating her parental rights to two of her children, Ma. W. and D.T. She also appeals from the order denying her motion for postdispositional relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.S.F.

Case No.: 2016AP2076

Officials: DUGAN, J.

Focus: Court Error – Ineffective Assistance of Counsel

A.S.F. appeals the trial court’s order terminating her parental rights to her son, J.T.C., and the postdispositional court’s order denying her postdispositional motion alleging that trial counsel was ineffective because she did not object to the foster parent’s testimony that promised future contact between J.T.C. and the biological family, if termination were to occur (the “future contact testimony”).

On appeal, A.S.F. argues that (1) trial counsel was ineffective for failing to object to the future contact testimony, and (2) it was error and against public policy for the trial court to consider and rely upon the future contact testimony. She also requests a new trial in the interests of justice.

For the reasons stated below, we agree with the postdispositional court that A.S.F. has not established that trial counsel was ineffective for failing to object to the future contact testimony because Darryl T.-H. v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475, holds that future contact testimony is admissible; therefore, A.S.F. has not shown deficient performance. Margaret H. is also dispositive of A.S.F.’s public policy argument. We also deny the request for a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin  v. V.C., Jr.

Case No.: 2016AP2077

Officials: DUGAN, J.

Focus: Court Error – Ineffective Assistance of Counsel

V.C., Jr. (“V.C.”) appeals the trial court’s order terminating his parental rights to his son, J.T.C., and the postdispositional court’s order denying his postdispositional motion alleging that he was denied his right to counsel at the plea hearing, that trial counsel was ineffective because he did not object to the foster parent’s testimony that promised future contact between J.T.C. and the biological family, if termination were to occur (the “future contact testimony”), and requesting a new trial in the interest of justice.

On appeal, V.C. argues that (1) he was denied his right to counsel at the plea hearing because facts were incorporated into the record that had been presented at A.S.F.’s ground trial (the “trial”) where neither V.C. nor his attorney were present, and (2) trial counsel was ineffective for failing to object to the future contact testimony. He also requests a new trial in the interest of justice.

For the reasons stated below, we agree with the postdispositional court that V.C. was not denied his right to counsel at the plea hearing and he cannot establish that trial counsel was ineffective for failing to object to the future contact testimony. As to the denial of right to counsel claim, the record establishes that no evidence from A.S.F.’s trial was admitted at V.C.’s prove-up. As to the denial of effective assistance of counsel claim, Darryl T.-H. v. Margaret H., 2000 WI 42, ¶29, 234 Wis. 2d 606, 610 N.W.2d 475, holds that future contact testimony is admissible; therefore, V.C. has not shown deficient performance. We also deny the request for a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Santos Lee Hernandez

Case No.: 2017AP62-CR

Officials: BRENNAN, P.J.

Focus: Court Error – Suppressed Motion for Postconviction

Santos Lee Hernandez appeals from a judgment of conviction entered on his guilty plea and an order denying his postconviction motion without a hearing. Hernandez seeks to withdraw his plea on the grounds that for several reasons it was not knowingly and voluntarily entered, and he argues that his motion alleged sufficient facts to entitle him to a hearing to prove that plea withdrawal is warranted.  We disagree and affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.P.

Case No.: 2017AP612; 2017AP613

Officials: BRENNAN, P.J.

Focus: Court Error – Abuse of Discretion

K.P., the father of A.P. and J. P., appeals orders terminating his parental rights to both children. The trial court found K.P.’s failure to appear on the day of the jury trial egregious and without justifiable excuse, and it struck his contest posture and proceeded to prove-up and disposition. The trial court found that the disposition that was the in the children’s best interests was the termination of parental rights and adoption. K.P. argues that the trial court erroneously exercised its discretion in finding him in default because his conduct was not egregious. Specifically, he argues that because he showed up for some hearings, moved for visitation in March 2016, granted consent for A.P.’s therapy, and showed up for the dispositional hearing, his failure to appear for the jury trial cannot warrant a default finding. For the reasons that follow we reject his argument and affirm the trial court orders.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samuel S. Upthegrove

Case No.: 2016AP94-CR

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

Focus: Court Error – Suppressed Motion for Postconviction

Samuel Upthegrove appeals pro se from a judgment convicting him of robbery with use of force and false imprisonment both as party to the crime and from a circuit court order denying his postconviction motion without a hearing. We affirm.

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WI Court of Appeals – District II

Case Name: Anthony San Felippo v. City of Wauwatosa, et al.

Case No.: 2016AP334

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

Focus: Denial of Disability Benefits

Anthony San Felippo appeals from a circuit court order affirming on certiorari review the decision of the Labor and Industry Review Commission (LIRC) to deny him disability benefits for a respiratory condition that LIRC determined did not arise from his employment as a City of Wauwatosa firefighter. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Quentin M. Holmes

Case No.: 2016AP746-CR

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

Focus: Warrantless and Nonconsensual Blood  Draw

Quentin Holmes appeals from a judgment convicting him of operating while intoxicated (OWI), seventh, eighth, or ninth offense. We conclude that exigent circumstances justified a warrantless, nonconsensual blood draw. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin V. Larry Davis

Case No.: 2016AP1416-CR

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

Focus: Court Error – Sentencing Guidelines

Larry Davis appeals from his judgment of conviction and the denial of his postconviction motion. He contends the circuit court erred in denying his request for an additional twenty-three days of sentence credit and in ordering him to maintain “absolute sobriety” as a condition of extended supervision. We agree Davis is entitled to the sentence credit he seeks and reverse on that issue, but we conclude the court did not err in ordering absolute sobriety and affirm on that issue.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Arien J. Dunbar

Case No.: 2015AP1643-CR; 2015AP1644-CR

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

Focus: Court Error – Suppressed Motion for Reconsideration

Arien Dunbar, pro se, appeals judgments of conviction for battery and two counts of violating a domestic abuse injunction. He also appeals orders denying his motion for postconviction relief and his motion for reconsideration. Dunbar claims that the circuit court erred in denying several pretrial motions, failed to properly inform him during the plea colloquy about the consequences of his guilty plea, and relied on inaccurate information when sentencing him. Dunbar also contends that his attorneys were ineffective. We reject Dunbar’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Dr. Cara Westmark v. Gardens at Swan Creek Condominium Owners Association, Inc.

Case No.: 2016AP1140

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

Focus: Court Error – Admittance of Evidence

Gardens at Swan Creek Condominium Owners Association, Inc., appeals a judgment entered on a jury verdict in favor of Cara Westmark, a condominium unit owner. The Association argues that the circuit court erroneously admitted expert testimony from Westmark’s real estate appraiser contrary to the Daubert reliability standard codified in WIS. STAT. § 907.02. We reject this argument. The Association also argues that the court provided the jury with an erroneous damages instruction. However, by failing to lodge a particularized objection to the damages instruction, the Association “waive[d] … any error in the proposed instructions” pursuant to WIS. STAT. § 805.13(3) and, on that basis, we decline to address whether the instruction was erroneous. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eligio R. Bacallao, Jr.

Case No.: 2016AP1296-CR; 2016AP1297-CR; 2016AP1298-CR; 2016AP1299-CR

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

Focus: Court Error – Sufficiency of Evidence and Suppressed Postconviction Motion

Eligio Bacallao was convicted of multiple offenses after a trial to the circuit court at which he represented himself. Then, represented by counsel, Bacallao filed a postconviction motion for relief alleging that there was insufficient evidence to convict him of one of the offenses, third degree sexual assault, and that the circuit court erred when it allowed Bacallao to represent himself before and at trial. The court denied Bacallao’s motion without a hearing. Bacallao renews his postconviction arguments on appeal, and also argues that the circuit court erred in denying his postconviction motion without a hearing and that he is entitled to a new trial in the interest of justice. We reject each of Bacallao’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jarred S. Martens

Case No.: 2016AP2384

Officials: BLANCHARD, J

Focus: Court Error – Abuse of Discretion

This is a refusal case. Jarred Martens appeals a judgment imposing a twelve-month revocation of his operating privileges upon a determination that he unreasonably refused to submit to an evidentiary chemical test of his blood under Wisconsin’s implied consent law. Martens contends that the circuit court erred in concluding that a deputy had probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant. I disagree and affirm.

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WI Court of Appeals – District I

Case Name: Amy J. Wosinski, et al. v. Advance Cast Stone Co., et al.

Case No.: 2014AP1961; 2014AP2213; 2014AP2274; 2014AP2660; 2015AP1212

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

Focus: Court Error – Sufficiency of Evidence and Statue of Limitations

On appeal, ACS argues (1) that the claims were barred based on time limitations as set forth in WIS. STATS. §§ 893.89 and 893.43 (2015-16); (2) that there were several erroneous evidentiary rulings made during the course of the trial that prejudiced ACS; and (3) that certain damages are not sufficiently supported by the evidence and should therefore be dismissed or reduced, including the punitive damages award, the damages to the Estate of Jared Kellner for pre- death pain and suffering, and the damages to Milwaukee County.

Furthermore, Liberty appeals the trial court’s finding rendered post- verdict with regard to insurance coverage issues: that there was coverage as a matter of law. Moreover, Liberty appeals the trial court’s finding that Liberty had breached its duty to defend and duty of good faith and fair dealing, and was therefore responsible for the entire amount of the damages awarded in the verdict.

Additionally, the Kellner Plaintiffs and the Wosinski Plaintiffs filed cross-appeals on several issues: (1) that the pre-trial offer of settlement made by the Kellner Plaintiffs was valid; (2) that the Wosinski Plaintiffs are entitled to statutory interest on the entire judgment, including costs; and (3) that the statute of repose does not apply as a matter of law and, as such, summary judgment should have been granted.

In sum, we reverse the trial court’s finding that Liberty breached its duty to defend ACS and, as a result, Liberty is responsible for coverage only to the extent as provided in ACS’s policy. Additionally, we find that the determination of whether Liberty breached its duty of good faith and fair dealing is a separate tort claim that is not before this court.

We reverse and remand on the issue of coverage for the damages awarded to Milwaukee County, as they are subject to the “your work” exclusion of the policy, and therefore further findings are necessary to itemize and categorize the damages, pursuant to the Jacob case, as explained in this opinion. All other issues are affirmed. Judgments affirmed in part, reversed in part, and cause remanded for further proceedings.

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