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Weekly Case Digests — September 18 to September 22, 2017

By: WISCONSIN LAW JOURNAL STAFF//September 22, 2017//

Weekly Case Digests — September 18 to September 22, 2017

By: WISCONSIN LAW JOURNAL STAFF//September 22, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Gerald Winfield v. Stephanie Dorethy, Warden

Case No.: 16-3316

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, District Judge.

Focus: AEDPA

On July 25, 2000, after a four-day bench trial, Cook County Circuit Court Judge Leo E. Holt found Gerald Winfield guilty of the attempted murder of Jarlon Garrett. On direct appeal and again on post-conviction review, the Illinois appellate courts rejected Winfield’s challenges to his conviction and thirty-year prison sentence. By agreement of the parties, a federal district court later reviewed Winfield’s conviction under a less deferential standard than called for after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), and granted Winfield’s petition for a writ of habeas corpus. In a motion under Federal Rule of Civil Procedure 59(e), the state then sought to reverse its concession that the pre-AEDPA standard applied, which the district court understandably denied as waived. Nevertheless, we are compelled by AEDPA case law and principles of state comity to reverse the district court’s finding of waiver.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Kendrick Lee v. Lisa Avila

Case No.: 15-1976

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

Focus: Ineffective Assistance of Counsel

Lee urges us to apply de novo review to his remaining claim regarding counsel’s failure to object to aspects of the prosecutor’s closing argument. No path to de novo review is available here. The Richter presumption applies and Lee has failed to rebut it. Lee has not given us any good reason to think that counsel’s failure to object during closing argument was either deficient or prejudicial, let alone that the state court’s implicit contrary conclusion was unreasonable.

Affirmed

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7th Circuit Court of Appeals

Case Name: Mary R. Richards v. U.S. Steel

Case No.: 16-2436

Officials: WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge

Focus: Humans Rights Act Violation – Emotional Distress Claim

Mary Richards filed this lawsuit against her employer, U.S. Steel. As the case comes to us, all that remains is an Illinois state‐law claim for intentional infliction of emotional distress. On that claim, the district court entered summary judgment against Richards on the ground that it is preempted by the Illinois Human Rights Act, 775 ILCS 5/8‐111(D). Although our analysis of the preemption issue differs from the district court’s take on it, we agree that the emotional‐distress claim fails as a matter of law. U.S. Steel can be held responsible for only a subset of the factual allegations that Richard relies on, and on that set of facts, U.S. Steel did not engage in “extreme and outrageous” behavior under Illinois common law. We thus affirm the entry of summary judgment against plaintiff on her emotional‐ distress claim.

Constrained to the alleged misconduct that could possibly be attributed to U.S. Steel, Richards has not established, independent of the Human Rights Act, that U.S. Steel engaged in “extreme and outrageous” behavior under Illinois common law. We thus AFFIRM the district court’s entry of summary judgment against the plaintiff on her emotional‐ distress claim.

Affirmed

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7th Circuit Court of Appeals

Case Name: Andy Mohr Truck Center, Inc. v. Volvo Trucks North America

Case No.: 16-2788; 16-2839

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

Focus: Sufficiency of Evidence

Volvo Trucks makes heavy‐duty trucks, and Andy Mohr Truck Center was one of its dealers. The dealership agreement governing their business dealings was negotiated and concluded in early 2010. Relations between them, unfortunately, soured quickly. Before too long, Volvo and Mohr were suing one another in separate federal lawsuits, which were consolidated later in the district court. When all was said and done, Mohr won a verdict of $6.5 million, and it prevailed on Volvo’s claim that it breached a commitment to build a new facility. Volvo staved off Mohr’s claim against it based on Volvo’s failure to award Mohr a Mack Truck franchise. We now have before us Volvo’s appeal and Mohr’s cross‐appeal, but before we delve into the merits, we turn to some of the nuances of heavy‐duty truck sales.

Volvo supports its evidentiary challenge to the inference of discrimination with three sub‐arguments: (1) that the comparators were not similarly situated in the relevant respects; (2) that the data that purported to show the discrimination was “cherry‐picked”; and (3) that the IDFPA applies only within the state of Indiana, and only to discrimination among Indiana dealers. Mohr defends the jury’s verdict on each of these points: it says the comparators were similar; the cherry‐picking argument was untimely; and the extraterritorial point was waived and in any event lacks merit.

Reversed and Remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: Cremation Society of Illinois, Inc. v. International Brotherhood of Teamsters Local 727

Case No.: 16-2322

Officials: BAUER and WILLIAMS, Circuit Judges, and DEGUILIO, * District Judge.

Focus: Sufficiency of Evidence

Cremation Society’s argument on appeal, is whether this unit of combined employees contained more than one employee performing bargaining unit work. As noted above, the CBA provides that “bargaining unit work” explicitly includes removals, transportation of remains, embalming, funeral directing, and all other work historically done by the bargaining unit. The Klein affidavit identified three funeral directors, Mary Sullivan (who is Klein’s wife), Eric Klemundt, and Katherine Howes, who were Cremation Society employees working exclusively at OBS and regularly performing work, such as transportation of remains, embalming, preparing bodies for cremation, and conducting funeral services. As the district court found, Klein based his affidavit on personal knowledge; he was employed by Sullivan Olson for sixteen years, including a brief period of employment by Cremation Society.

We reject Cremation Society’s assertion that Klein’s statements are “bare” and “unsupported.” Cremation Society fails to present any evidence to rebut Klein’s affidavit. More‐ over, Grantham’s deposition testimony also corroborates Klein’s affidavit and supports the conclusion that Cremation Society’s funeral directors performed covered work at the time of Sullivan Olson’s repudiation. The undisputed evidence shows that, as a single employer, Cremation Society and Sullivan Olson had more than one employee engaged in bargaining unit work. Therefore, Sullivan Olson’s unilateral repudiation was not lawful under the one‐man unit rule. Accordingly, the district court properly granted summary judgment in the Union’s favor.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sabrina Roppo v. Travelers Commercial Insurance Co, et al.

Case No.: 15-3171

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

Focus: Amended Complaint – Lack of Jurisdiction

Ms. Roppo now renews her argument that federal jurisdiction is lacking and therefore asks us to vacate the district court’s judgment. She also contends that, even if the district court had jurisdiction, we should reverse its judgment because the third amended complaint sufficiently states claims of fraudulent misrepresentation, negligent misrepresentation, and negligence under Illinois law, as well as violations of the Illinois Insurance Code and the Illinois Consumer Fraud and Deceptive Business Practices Act. We cannot agree with her submission and, for the reasons set forth in this opinion, we affirm the district court’s dismissal of Ms. Roppo’s third amended complaint.

Affirmed

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7th Circuit Court of Appeals

Case Name: Cynthia Archer v. John T. Chisholm, et al.

Case No.: 16-2417

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

Focus: Fourth Amendment Violation – John Doe Procedure

While Governor Scott Walker was leading the charge for controversial changes to Wisconsin’s public union laws, plaintiff‐appellant Cynthia Archer was at his side, drafting the law and advocating for its passage. At the same time, the Milwaukee County State’s Attorney’s Office was investigating allegations of misconduct against Archer and several of the governor’s close associates, using Wisconsin’s unique “John Doe” procedure. Archer sees a connection between the legislative campaign and the John Doe investigation. She alleges that she was targeted because of her work on the union bill and her affiliation with Governor Walker. Although Archer was never charged with wrongdoing, she filed this section 1983 action against three prosecutors and three members of the investigative team. The district court dismissed the case on the basis of immunity. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jaime C. Lopez

Case No.: 16-2269

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

Focus: Court Error – Witness Testimony

A jury convicted Jaime Lopez of fifteen counts of wire fraud, four counts of money laundering, and one count of securities fraud in connection with his participation in a fraudulent investment scheme. Lopez challenges his conviction based on various evidentiary rulings that he argues deprived him of a fair trial. We affirm.

Lopez raises four issues on appeal, each of which, he argues, constitutes grounds for a new trial. First, he argues that the district court erred in allowing a government witness to testify that payments Lopez made to his investors were “lulling payments.” Second, Lopez contends that the government’s references to Bernie Madoff in its closing argument denied him a fair trial. Third, he argues that the court erred in denying his request to label his witness, Michael Aldering, an “expert” in front of the jury. Finally, Lopez contends that the court improperly prevented him from introducing extrinsic evidence of a prior inconsistent statement by a government witness. We address each argument in turn

Affirmed

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7th Circuit Court of Appeals

Case Name: Illinois Bible Colleges Association, et al. v. Lindsay K. H., Chair of the Illinois Board of Higher Education

Case No.: 16-1754

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

Focus: Equal Protection and Establishment Clause Violation

On appeal, the plaintiffs pursue only their federal constitutional claims. They first argue the Illinois regulations violate the Establishment Clause by entangling the government with their religious operations. However, the plaintiffs have not sought certification of approval from the State under the applicable statutes. Therefore, there is no basis to believe that the regulations would infringe on their religious beliefs or practices or would unnecessarily entangle the government in religion. Accordingly, the plaintiffs’ Establishment Clause claim must fail. Likewise, the plaintiffs’ Free Exercise claim fails because the statutes are neutral laws of general application and apply equally to secular and religious institutions.

The plaintiffs’ Equal Protection claim fares no better: While the state statutes exempt older educational institutions from the governing mandates, the law is clear that, when no improper discrimination is involved, the government may include a grandfather clause in legislation without violating the guarantee of Equal Protection. Finally, the student-plaintiff alleges a violation of his right to practice a profession of his choice. But the regulations do not impact that choice. Rather, they merely determine whether he may obtain a degree from specific post-secondary institutions. The district court, therefore, properly dismissed the plaintiffs’ complaint and we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Antonio Walter, et al.

Case No.: 16-1209 & 16-1325

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

Focus: Brady Violation and Abuse of Discretion

The obligation of the prosecution to turn over any favorable evidence to the defendant, first announced in Brady, is one aspect of the due process right. Appellants Antonio Walter and Kenneth Bell assert in this appeal that the prosecution failed to live up to its Brady obligations. They also argue that the district court abused its discretion under Federal Rule of Evidence 404(b) by admitting, over objection, evidence of Bell’s prior drug sales. Even granting that there may have been a Rule 404(b) error, it is a close question whether it was harmless, especially for Walter. In the end, however, this does not matter, because we conclude that the Brady error requires a new trial for both defendants.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. McKenzie J. Carson

Case No.: 15-3421

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

Focus: Sufficiency of Evidence and Jury Instructions

A jury convicted McKenzie Carson of four counts of violating the federal sex trafficking statute. Three of those counts alleged that Carson engaged in sex trafficking with knowledge that the victims were forced, threatened or coerced. The other count alleged that Carson was involved in the sex trafficking of a person under the age of eighteen. He asks this court to reverse his conviction and remand for a new trial, claiming that he was prevented from eliciting relevant testimony from his victims, that he was precluded from effectively cross examining a key witness, that the district court errantly admitted evidence of un‐ charged “bad acts,” and that he was prejudiced by incorrectly worded jury instructions. We find no reversible error and thus affirm the decision of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael R. Moreno

Case No.: 15-3312

Officials: WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge

Focus: Sentencing Guidelines

Alpha‐PVP is a designer drug that produces a powerful stimulant effect in its users. This effect, plus the drug’s high potential for abuse, landed Alpha‐PVP on the federal government’s Schedule I of controlled substances. Michael Moreno pled guilty to importing Alpha‐ PVP from China and dealing the drug in northwestern Wisconsin. He now appeals the 80‐month prison sentence imposed by the district court for that drug trafficking. Specifically, Moreno argues that the district court assigned the wrong offense level to Alpha‐PVP when calculating the Sentencing Guidelines range. Alpha‐PVP is not specifically listed in the Sentencing Guidelines drug‐quantity tables, so the Guidelines required the district court to determine the “most closely related” controlled substance, U.S.S.G. § 2D1.1, appl. n.6, and then use that drug’s offense level for Alpha‐PVP. After holding an evidentiary hearing, the district court found that the most closely related drug is methcathinone, which is another Schedule I controlled substance. Although we have a different take than the district court on the legal question of how to apply the pertinent Guideline, we affirm because the district court’s careful and thorough factual finding was correct.

Affirmed

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7th Circuit Court of Appeals

Case Name: Susan Priddy, et al. v. Health Care Service Corporation

Case No.: 16-4127

Officials: WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge

Focus: Class Action Suit – Class Certification 

Health Care Service Corporation (HCSC) is one of the nation’s largest health insurance providers. This appeal presents the question whether the district court erred by certifying a class action against HCSC. The named representatives assert that HCSC is violating federal and Illinois law by the way in which it is using third-party affiliates to provide various services. We conclude that the record fails to support class certification, and so we vacate the certification and remand for further proceedings.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Daniel J. Ratajczak, et al. v. Land O’ Lakes, et al.

Case No.: 16-3418

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

Focus: RICO Violation and Choice-of-law Clause

We have three appeals: (1) Land O’Lakes contends that it is entitled to treble damages under RICO and a state-law counterpart (which we do not mention again); (2) the Ratajczaks contend that Packerland’s insurers had to defend and indemnify them in Land O’Lakes’s suit; (3) the Ratajczaks maintain that their own insurer must indemnify them for much of what they paid to Packerland’s buyer in settlement. We tackle the subjects in that order.

The policy provides for the application of New York law. This was a multijurisdictional business transaction. Beazley is based in the United Kingdom. Its adjuster for U.S. claims is located in New York. It is understandable that Beazley prefers to designate one state’s law for all of its business in this nation; it can become familiar with New York law more easily than it can master (and price) the intricacies of many states’ insurance laws. The Ratajczaks are sophisticated business people and entered this transaction with eyes open; they cannot escape the choice-of-law clause in this policy. New York permits insurers to insist on having control of settlements. Vigilant Insurance Co. v. Bear Stearns Cos., 10 N.Y.3d 170, 177–78 (2008). So the Ratajczaks lose for two reasons: the deductible offsets the maximum damages for breach of a general warranty, and they settled without Beazley’s consent. Other arguments have been considered but do not require discussion.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jamie Owens v. Old Wisconsin Sausage Company Inc.

Case No.: 16-3875

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

Focus: Title VII Violation – Wrongful Termination

Owens argues that Old Wisconsin terminated her for asserting a claim of sexual harassment under Title VII. The basis for her claim is that when she was questioned as to her relationship with Kobussen, she refused to answer and responded that she believed the questions to be “borderline sexual harassment.”

The only arguable evidence that the FLSA reports played a role in the termination is in the employer’s termination memo. That memo from her employer reciting the basis for the termination includes allegations that Owens failed to support company policies and commented on such to other employees, that she frequently commented about employee issues before all facts were known, and that she often made statements of fact with inadequate information leading to additional work to confirm actual facts. Owens argues that those grounds encompass her claims to Old Wisconsin of FLSA violations, but does not dispute Old Wisconsin’s contention that she failed to offer solutions to those FLSA problems that she identified. Moreover, those statements in the memo relate to the manner in which she communicated and analyzed issues, and her professionalism with management and other employees, which are distinct from any FLSA reports to her employer.

But regardless of that evidence, the deeper and insurmountable problem is that Owens repeatedly and consistently, in this court and in the district court, argued that the reason for her termination was her failure to answer the questions posed to her regarding her relationship with Kobussen. In fact, she argues that the memo provided by her employer with the reasons for her termination was an after-the-fact attempt at obfuscation of the actual reason, which was the questioning about her relationship. Accordingly, under her own argument, there was no causal link between her FLSA allegations and her termination, and the district court properly granted summary judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Otis B. Grant v. The Trustees of Indiana University, et al.

Case No.: 16-1958

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

Focus: Due Process Violation and Breach of Contract

On appeal, Grant contends that the district court inappropriately granted summary judgment on five claims. Grant, who is African American, maintains that the University: (1) discriminated against him on the basis of race; (2) retaliated against him for his complaints against two University officials; (3) denied him due process of law; (4) defamed him in the South Bend Tribune; and (5) breached a contract created by the University’s handbook. In viewing the evidence in the light most favorable to Grant, we find that Grant has failed to produce admissible evidence demonstrating there exists any disputed issue of fact as to these five claims. So we affirm the district court’s judgment in the defendants’ favor.

Affirmed

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7th Circuit Court of Appeals

Case Name: Charles Krik v. Exxon Mobil Corporation, et al.

Case No.: 15-3112

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

Focus: Court Error – Abuse of Discretion

On appeal, we review a district court’s decision to deny a motion for a new trial for an abuse of discretion. United States v. Lawrence, 788 F.3d 234, 244 (7th Cir. 2015). Whether the district court applied the Daubert framework properly is a question we review de novo but we review the decision to exclude or admit the expert witness testimony for an abuse of discretion only. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835 (7th Cir. 2015). The party seeking to introduce the expert wit‐ ness testimony bears the burden of demonstrating that the ex‐ pert witness testimony satisfies the standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Krik does not dispute that the district court identified and applied the appropriate Daubert framework, rather, he argues that Judge Shah made an errant factual determination that the cumulative exposure theory was the same as the “each and every exposure” theory that Judge Lee had barred. We therefore review this decision and the decision to exclude the cumulative exposure‐based testimony for an abuse of discretion. Judge Shah found that the cumulative exposure theory was the same as the “each and every exposure” theory and prohibited testimony based on this theory and the reasoning of Judge Lee supplemented by his own analysis. We agree and therefore conclude that it was not an abuse of discretion to exclude the testimony nor to deny the motion for a new trial.

Krik’s proffered expert testimony on causation did not meet the standards required under Federal Rule 702 and Daubert and without it his case was fatally weak. Krik, 2015 WL 5050413 at *4 (J. Shah). Krik was not prejudiced by Mobil’s investigation because judgment in favor of the defendants was inevitable once it became clear that Krik could not prove causation. The Appellee’s Motions to Strike Appellant’s Letter of Supplemental Authority is denied. The decision of the district court is affirmed in all respects, including the assignment of costs and fees.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Tamichale L. Paige

Case No.: 16-4128

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

Focus: Motion to Suppress Evidence

A grand jury indicted Tamichale Paige with one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and one count of possession with intent to distribute crack cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Mr. Paige moved to suppress the firearm and the drugs; he claimed that the police officer who conducted the search, Officer Tiara Sheets-Walker, had no lawful basis to pat him down or to search his vehicle. After an evidentiary hearing before a magistrate judge, the district court denied Mr. Paige’s motion. Mr. Paige then entered a conditional plea of guilty to both counts, reserving his right to appeal the denial of his motion to suppress. Mr. Paige was sentenced to twenty-eight months’ imprisonment and four years of supervised release.

Mr. Paige now submits that the district court erred in holding that Officer Sheets-Walker had probable cause to arrest him. He contends, therefore, that the search of his person and vehicle cannot be justified as incident to a lawful arrest. We cannot accept this argument. The district court correctly denied the motion to suppress; Officer Sheets-Walker had probable cause to arrest Mr. Paige for possessing marijuana1 and for operating a vehicle while impaired. She also had probable cause to believe that Mr. Paige’s vehicle contained evidence of criminal activity. We therefore affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Right Field Rooftops, LLC, et al. v. Chicago Cubs Baseball Club, LLC, et al.

Case No.: 16-3582

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

Focus: Breach of Contract and Motion to Amend

On appeal, the Rooftops challenge the district court’s dismissal of their attempted monopolization, breach‐of‐contract, and breach of the non‐disparagement provision claims. The Rooftops also contend that district court erred in denying their motion to amend. We will address each argument in turn.

Here, the district court determined that the Rooftops’ proposed amendments would be futile. The Rooftops’ pro‐ posed amendments addressed their antitrust claims. The Rooftops sought to include Northside Entertainment Holdings, LLC as a defendant in an attempt to evade the Sherman Act’s baseball exemption. However, Ricketts operates this entity, and it, in turn, owns and operates the Cubs. Based on our discussion of Toolson above, we find that the baseball exemption applies with equal force to Northside. If the exemption applied to the owner and general manager in Toolson, we see no reason that it would not extend to the entity that owns the Cubs, and the Rooftops have not offered a compelling one. Furthermore, according to the Rooftops’ amended complaint, Northside is engaged in the same conduct as the other Cubs defendants that we already found exemplifies “the business of providing public baseball games for profit.” Consequently, we agree with the district court that this amendment would be futile, as the baseball exemption applies to Northside. Based on this conclusion, we need not review the Rooftops’ additional proposed amendments regarding the relevant market.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Antuan Wayne McClinton

Case No.: 2016AP424-CR

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

Focus: Sentencing Guidelines

Antuan W. McClinton appeals a circuit court order denying his motion to vacate a sentence imposed after revocation of his probation. McClinton contends that he served his probation concurrently with an earlier-imposed prison sentence and that he completed service of that probation before the Department of Corrections initiated revocation proceedings. He asserts that the sentence imposed following revocation is therefore illegal. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tarrel T. Robertson

Case No.: 2016AP568-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Motion to Suppress Evidence Denied

Tarrel T. Robertson appeals the judgment entered on his guilty plea to possession of a firearm by a felon as a repeater. See WIS. STAT. §§ 941.29(2)(a), 939.62(1)(b) (2013-14). He argues that the circuit court erred in denying his motion to suppress. Robertson also appeals the order denying his postconviction motion to vacate the DNA surcharge on grounds that it constituted an ex post facto punishment. We uphold the circuit court’s order denying his motion to suppress and, therefore, affirm the judgment of conviction in part. However, we reverse the portion of the judgment and postconviction order relating to the DNA surcharge and remand with directions that the circuit court apply the surcharge statute that was in effect when Robertson committed the crime in this case.

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WI Court of Appeals – District III

Case Name: The Schroeder Family Revocable Trust v. Douglas Schroeder

Case No.: 2016AP940

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

Focus: Revocable Trust – Statues of Limitations

Douglas argues the applicable statutes of limitation precluded all of the Trust’s claims against him, including its memorialization claim. We reject this argument because each of the payments Douglas made pursuant to the contract of sale constituted an acknowledgment and renewal of the debt, so as to toll the running of the applicable statute of limitations. Douglas also argues the circuit court ignored the contract’s plain language when it concluded he was required to make payments to the Trust rather than to the individuals named in the contract. We conclude the circuit court properly interpreted the contract as requiring that the Trust receive all payments resulting from the sale of the Trust’s real property. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Devon T. Allen

Case No.: 2016AP1509-CR; 2016AP1510-CR

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

Focus: Evidentiary Hearing

Devon T. Allen appeals the judgments of conviction entered on his guilty pleas and the order denying his postconviction motion to withdraw those pleas. He argues that he is entitled to an evidentiary hearing on his Bangert motion because it makes a prima facie showing that the circuit court failed to fulfill its duty to ensure that he understood his constitutional rights to subpoena witnesses and to remain silent at trial. We conclude an evidentiary hearing was not required because there was no defect in the plea colloquy and affirm the judgments and order.

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WI Court of Appeals – District I

Case Name: Milwaukee Police Association and Daniel J. Vidmar

Case No.: 2016AP1573

Officials: Kessler, Brash and Dugan, JJ.

Focus: Abuse of Discretion

The Milwaukee Police Association (the “Association”) and Daniel Vidmar (collectively the “MPA”) appeal the order dismissing their declaratory judgment action. The MPA asserts that we should reverse the circuit court’s order and declare as follows: (1) the City of Milwaukee (the “City”) has not complied with the political party requirement of WIS. STAT. § 62.50(1h)(2015- 16);(2) the training “time limits” of § 62.50(1h) and MILWAUKEE CODE OF ORDINANCES § 314 (2008) (“MCO”) 2 are mandatory; (3) the current members of the Board of Fire and Police Commissioners (the “Board”) are not in compliance with the training requirements of § 62.50(1h) and MCO § 314; and (4) the circuit court improperly limited the scope of discovery.

We disagree and conclude that (1) the Board is in compliance with the political party requirement of WIS. STAT. § 62.50(1h); (2) the training is mandatory under § 62.50(1h) and MCO § 314, however, the timing of that training is directory; (3) the Board is in compliance with the training requirements; and (4) the circuit court’s limits on discovery were a proper exercise of its discretion. Therefore, we affirm the circuit court.

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WI Court of Appeals – District I

Case Name: Naythan A. Schwab v. Levi M. Webb, Jr.,

Case No.: 2016AP1809

Officials: KESSLER, J.

Focus: Proof of Service and Claim Dismissal

Naythan A. Schwab, pro se, appeals an order of the circuit court dismissing his action against Levi M. Webb, Jr., without prejudice. Because there is no evidence in the record that the defendant was ever served with the complaint, we affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clarence J. Beal

Case No.: 2016AP1817-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Abuse of Discretion – Sentencing Guidelines

Clarence J. Beal appeals a judgment convicting him of two counts of attempted armed robbery as a party to a crime, one count of substantial battery, and one count of misdemeanor obstructing an officer. Beal also appeals an order denying his motion for postconviction relief. Beal argues that the circuit court misused its sentencing discretion. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Samuel A. Teague

Case No.: 2016AP1936-CR

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

Focus: Sentencing Guidelines

Samuel Teague appeals an order denying his motion for sentence modification, in which he argued: (1) the ten-year sentence is excessive; (2) the circuit court lacked the authority to impose a consecutive sentence; (3) he is entitled to additional sentence credit; and (4) the sentencing court relied on erroneous information provided by the State. The circuit court issued an order denying the motion, concluding it was earlier deemed denied because the court did not act on the motion within ninety days pursuant to WIS. STAT. § 973.19 (2015-16). Teague filed a motion for reconsideration, arguing the ninety-day restriction did not apply because the circuit court ordered briefing on the postconviction motion. The circuit court denied the motion for reconsideration, and Teague appeals that order as well. We affirm the orders.

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WI Court of Appeals – District I

Case Name: Wisconsin Department of Workforce Development, et al. v. Riteway Bus Service, Inc., et al.

Case No.: 2016AP2066

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

Focus: Unemployment Benefit Claims

The Department of Workforce Development (DWD) appeals a circuit court decision affirming the Labor and Industry Review Commission’s (LIRC) decision waiving DWD’s recovery of erroneously paid unemployment benefits to three claimants. LIRC found, and the circuit court upheld, that pursuant to WIS. STAT. § 108.22(8)(c) (2015-16),1 the overpayment involved no fault of the claimants and was the result of a departmental error. We affirm.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: William T. Baker, et al. v. Rural Mutual Insurance Company, et al.

Case No.: 2016AP2203

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

Focus: Insurance Agent Negligence – Summary Judgment Improper

William and Charmaine Baker appeal a summary judgment dismissing their insurance policy reformation claim against Rural Mutual Insurance Company and their negligence claim against insurance agent Samuel Scott. We conclude there are genuine issues of material fact regarding both of the Bakers’ claims. We therefore reverse the circuit court’s grant of summary judgment and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marcos Rosas Villegas

Case No.: 2015AP2162-CR

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

Focus: Ineffective Assistance of Counsel

Villegas sought postconviction relief and was denied. On appeal, he challenges both the juvenile and adult court proceedings. He challenges the juvenile waiver proceedings as both an erroneous exercise of discretion generally, and on the grounds that his counsel provided ineffective assistance. He further maintains that he should be able to withdraw his guilty plea in adult court because the plea colloquy was defective and on the basis that he received ineffective assistance of counsel there as well. His plea withdrawal argument is premised largely on the rationale that his attorney failed to inform him that his plea would render him inadmissible to the United States and ineligible for Deferred Action for Childhood Arrivals (DACA).

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WI Court of Appeals – District II

Case Name: Waukesha County Department of Health & Human Services v. T.C.S.

Case No.: 2016AP1000; 2016AP1001

Officials: REILLY, P.J

Focus: Termination of Parental Rights

The issues in this consolidated appeal revolve around a mother’s objection to the appointment of a permanent guardian for her son pursuant to WIS. STAT. § 48.977. Mom did not contest that Johnny is a child in need of protection or services (CHIPS) under WIS. STAT. § 48.13, but objects to the permanency plan being changed from reunification to the sole goal of appointing Johnny’s grandparents as his permanent guardians. We affirm as the circuit court properly exercised its discretion given the evidence received at the combined fact-finding and dispositional hearing, and neither Mom’s fundamental right of “familial integrity” nor her procedural due process rights were violated.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Armond L. Messnick

Case No.: 2016AP2171-CR

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

Focus: Abuse of Discretion

Armond L. Messnick appeals the circuit court’s order extending his probation term for one year. Messnick argues that the circuit court erroneously exercised its discretion as it extended his probation based only on his failure to pay restitution despite his good faith effort to make payments. Given our discretionary standard of review, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Brian E. Loring

Case No.: 2016AP1784-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Motion to Suppress Evidence Denied

Brian Loring appeals a judgment of conviction for operating a motor vehicle with a restricted controlled substance in his blood, as a fifth offense. See WIS. STAT. § 346.63(1)(am) (2015-16). On appeal, Loring contends that the circuit court erred when it denied his pretrial motion to suppress the results of a blood test. Because the record demonstrates by clear and convincing evidence that Loring voluntarily consented to the blood draw, we affirm.

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WI Court of Appeals – District I

Case Name: Jason Bleichwehl v. City of Milwaukee Employee’s Retirement System

Case No.: 2016AP2265

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: City Ordinance Interpretation

Jason Bleichwehl appeals from a circuit court order affirming the final decision of the City of Milwaukee Employe’s Retirement System (“the City”) denying him a duty disability retirement allowance. He argues that the City’s interpretation of its ordinance governing eligibility for duty disability is unreasonable when applied to the facts of this case. Because the City’s interpretation of its ordinance is reasonable, we reject his arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott A. Brandsma

Case No.: 2016AP2480-CR

Officials: BLANCHARD, J.

Focus: Motion to Suppress Evidence Denied

Scott Brandsma appeals a judgment of conviction for two offenses: refusal to submit to a test for intoxication after his arrest for driving under the influence and resisting or obstructing an officer. Brandsma contends that the circuit court erred when it denied his motion to suppress evidence obtained during an investigatory stop prompted by allegations conveyed in a police dispatch report. I disagree and affirm the circuit court’s ruling.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lavelle Jackson

Case No.: 2016AP882-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Evidentiary Hearing

Lavelle Jackson appeals a judgment of conviction entered after a jury found him guilty of repeated sexual assault of the same child He claims the circuit court erred by denying his pretrial motion to admit other acts evidence concerning the victim’s prior allegation of unwanted touching by another man. He further claims the circuit court erred by denying him an evidentiary hearing on the pretrial motion. We affirm.

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WI Court of Appeals – District III

Case Name: Auto-Owners Insurance Company v. City of Appleton, et al.

Case No.: 2016AP1227

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

Focus: Statutory Interpretation – Raze Order

Auto-Owners Insurance Company appeals an order denying its motion for an injunction prohibiting the razing of Lowell and Carol McLartys’ home following a garage fire. While unclear, it appears Auto-Owners argues the raze order in this case was invalid because the relevant provisions of the raze order statute, WIS. STAT. § 66.0413 (2015-16), do not authorize a building damaged as a result of a sudden fire to be razed. Auto-Owners also argues the raze order was unreasonable because the home could be repaired at a reasonable cost, the raze order was issued as a result of the insured’s inquiry to the municipality, and the building inspector did not personally inspect the premises before issuing the raze order. Finally, Auto-Owners contends that smoke and water damage remediation must be excluded when calculating a building’s “cost of repair.” We reject each of Auto-Owners’ arguments, primarily because they are unsupported by the statute’s plan language and evident purpose, and because they produce an absurd result. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Prince Cotton

Case No.: 2016AP1263-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel and Sufficiency of Evidence

Michael Prince Cotton appeals a judgment convicting him of four counts of first-degree sexual assault. He also appeals orders denying his motions for postconviction relief. Cotton argues: (1) he received ineffective assistance of counsel; (2) there was insufficient evidence to support the convictions; and (3) his right to a speedy trial was violated. We resolve these issues against Cotton. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Philip Myers, et al. v. Wisconsin Department of Natural Resources

Case No.: 2016AP1517

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

Focus: Permit Amendment – Legal Authority Exemptions

Philip and Terrie Myers (collectively, Myers) appeal a circuit court order entered on judicial review of a decision by the Wisconsin Department of Natural Resources (DNR). The DNR’s decision amended a 2001 permit allowing Myers to construct a pier. Myers argues the DNR lacked legal authority to amend the permit. Alternatively, Myers contends that, even if the DNR had legal authority to amend the permit, the amendment was nevertheless improper because: (1) the pier was exempt from permit requirements, pursuant to WIS. STAT. § 30.12(1k)(b) (2015-16); 1 and (2) the pier was exempt from enforcement actions, pursuant to WIS. STAT. § 30.12(1k)(cm), and the DNR’s attempt to amend the permit constituted an enforcement action. Myers also asserts the record did not support the DNR’s decision to amend the permit. The DNR cross-appeals, arguing the circuit court erred by remanding this matter to the DNR for additional fact-finding regarding the two statutory exemptions cited above.

We conclude the DNR had legal authority to amend Myers’ permit. We therefore affirm the circuit court’s order in that respect. However, based on the DNR’s factual findings, we conclude as a matter of law that neither of the two statutory exemptions Myers cites is applicable in this case. Accordingly, a remand to the DNR for further fact-finding regarding the exemptions is unnecessary, and we reverse that portion of the circuit court’s order remanding this matter to the DNR. We further conclude the record contains sufficient evidence to support the DNR’s decision to amend Myers’ permit. We therefore remand with directions that the circuit court enter an order affirming the DNR’s decision

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WI Court of Appeals – District II

Case Name: E. Glenn Porter, III, et al. v. State of Wisconsin, et al.

Case No.: 2016AP1599

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

Focus: Violation of Due Process – Anti-Combination Laws

In this appeal, E. Glenn Porter, III and Highland Memorial Park, Inc., contend two statutes, which the parties refer to as the “anticombination laws,” are facially unconstitutional on equal protection and substantive due process grounds. Generally speaking, the anti-combination laws prohibit the joint ownership or operation of a cemetery and a funeral home. The State asserts the anti-combination laws survive rational basis scrutiny and are therefore constitutionally permissible. Porter agrees the anti-combination laws are subject to rational basis review; however, he urges us to apply a more stringent form of rational basis scrutiny, sometimes referred to as “rational basis with bite.”

We conclude that, whether analyzed using traditional rational basis scrutiny or a so-called “rational basis with bite” standard, the anti-combination laws pass constitutional muster, in that Porter has failed to show beyond a reasonable doubt they are not rationally related to a legitimate government interest. We therefore affirm the circuit court’s order granting summary judgment to the State.

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WI Court of Appeals – District II

Case Name: U.S. Bank National Association v. Charles E. Stehno, et al.

Case No.: 2016AP193

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

Focus: Summary Judgement – Foreclosure  

Candice Wells appeals from a judgment of foreclosure, contending the circuit court erred in denying her summary judgment motion and granting U.S. Bank National Association’s. Wells asserts the court erroneously concluded that the mortgage on which the foreclosure is based (April 2003 mortgage) is valid; Wells claims it is invalid because only her then-husband signed it. While we agree with Wells that the April 2003 mortgage is invalid, we also agree with U.S. Bank that it is equitably subrogated to a September 2002 mortgage which was signed by Wells and her then-husband. We disagree, however, with U.S. Bank’s contention that it is equitably subrogated to a December 2002 mortgage; we disagree because that mortgage, like the April 2003 mortgage, was signed by only Wells’ then-husband. We affirm in part, reverse in part, and remand to the circuit court for further proceedings.

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WI Court of Appeals – District II

Case Name: Hartland Sportsmen’s Club, Inc. v. City of Delafield, et al.

Case No.: 2016AP666

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

Focus: City Permit Denial

The City of Delafield, the City of Delafield Common Council, and the City of Delafield Plan Commission (collectively the City) appeal from an order granting the motion of Hartland Sportmen’s Club, Inc. (HSC) to invalidate the City’s revocation of HSC’s conditional use permit (CUP) to operate a sport shooting range and the denial of HSC’s application for a CUP to operate a sport shooting range. We conclude that the review HSC sought of the City’s revocation of its CUP was untimely, and the circuit court should have dismissed it. However, the circuit court correctly invalidated the City’s denial of HSC’s application for a CUP because the denial was arbitrary and capricious.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robert Torres

Case No.: 2016AP1061-CR

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

Focus: Motion to Suppress Evidence

Robert Torres appeals from his judgment of conviction and the denial of his motion to suppress evidence obtained following law enforcement officers’ warrantless entry into his residence. He asserts the entry was unlawful and all evidence flowing from it must be suppressed. Because we conclude the entry was justified by the existence of probable cause and exigent circumstances, we disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John G. Tetting., Jr.

Case No.: 2016AP853-CR

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

Focus: Court Error – Jury Instructions

John Tetting, Jr. appeals a judgment of conviction for second-degree intentional homicide, party to a crime, contrary to WIS. STAT §§ 940.05(1) and 939.05 (2007-08), and an order denying his motion for postconviction relief. Tetting contends the circuit court erred in: (1) instructing the jury on second-degree intentional homicide; (2) failing to provide a more specific answer to a question from the jury during deliberations; (3) denying his postconviction motion for a new trial on the ground that the jury was presented with prejudicial improper extraneous information. Tetting also asks this court to order a new trial in the interest of justice. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Troy D. Voit

Case No.: 2016AP997-CR

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

Focus: Ineffective Assistance of Counsel

Troy Voit appeals a judgment of conviction for four counts of burglary of a motor home or trailer home, party to a crime, contrary to WIS. STAT. §§ 943.10(1m)(e) and 939.05 (2013-14), and an order denying his postconviction motion to withdraw his plea. Voit contends that the court erred in denying his motion to withdraw his plea, arguing that his motion should have been granted because he received ineffective assistance of counsel. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Ronnie Lee Thums v. Roger Leo Thums, et al.

Case No.: 2016AP1139

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

Focus: Court Error – Pleading Standards

Ronnie Lee Thums, pro se, appeals from a judgment and orders of the circuit court dismissing his claims against three sets of defendants. He argues that the circuit court committed several errors requiring reversal. We reject his arguments and affirm. First, he argues that the circuit court erred in determining that Fox and Lister were immune from suit. Second, Thums challenges the circuit court’s decision to dismiss the conspiracy claims, arguing that the court improperly imposed a heightened pleading standard for these claims. Third, he argues that the circuit court erred in granting summary judgment to Slate on the ground that Slate had no legal duty to him. We affirm the circuit court’s decision to grant the motions to dismiss Fox, Lister, and Ronnie and Carol Thums. We also affirm the circuit court’s decision granting summary judgment to Slate.

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WI Court of Appeals – District IV

Case Name: Judy L. Biermeier v. Katherine E. Campbell

Case No.: 2016AP1915

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

Focus: Ineffective Assistance of Counsel

Judy Biermeier appeals a summary judgment dismissing her complaint for legal malpractice against Attorney Katherine Campbell based on Campbell’s representation of Biermeier in a divorce action. As part of the property division, the circuit court assigned ownership of the marital house to Biermeier’s former husband, along with all debt associated with the marital house. Subsequently, the mortgage and accompanying note on the marital house went into default, and Biermeier was named in the resulting foreclosure action as sharing responsibility with the former husband for the amount due the mortgagee. In this action, Biermeier alleges that Campbell was negligent in not asking the circuit court to include in the judgment of divorce a requirement that the former husband obtain refinancing on the marital house that would have resulted in termination of Biermeier’s shared liability with her former husband on the mortgage. Biermeier alleges that she suffered damages as a result of Campbell failing to ask the court for a refinancing provision. We conclude that Biermeier has failed to submit evidence creating a genuine issue of material fact on causation and damages, and accordingly we affirm the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: 2017 WI 85

Case No.: Office of Lawyer Regulation v. Michael M. Rajek

Focus: Disciplinary Proceedings

We review Referee James R. Erickson’s report recommending, consistent with a stipulation executed by the Office of Lawyer Regulation (OLR) and Attorney Michael M. Rajek, that we dismiss a pending disciplinary complaint against Attorney Rajek. We agree with the OLR’s discretionary determination that the alleged rule violations do not warrant discipline in light of our decision in In re Disciplinary Proceedings Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439. (Rajek I.) We therefore dismiss the complaint. No costs will be imposed.

Dismissed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v.  Steven J. Sarbacker

Case No.: 2017 WI 86

Focus: Disciplinary Proceedings

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law and agree that a 60-day license suspension is an appropriate sanction for Attorney Sarbacker’s misconduct. We also find it appropriate to impose the full costs of this proceeding, which are $1,375.83 as of June 13, 2017. The OLR does not seek restitution and no restitution is ordered.

Affirmed
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