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Weekly Case Digests — Nov. 20-Nov. 22, 2017

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

Weekly Case Digests — Nov. 20-Nov. 22, 2017

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

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Elmer F. Wiman

Case No.: 16-3929

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

Focus: Structural Error – Voir Dire – Juror Questions

Elmer Wiman was convicted by a jury of robbing a credit union, carrying a firearm during and in relation to a crime of violence (the robbery itself), and possessing a firearm as a felon. On appeal he raises a narrow challenge: that the district court’s failure before the start of voir dire to swear the venire to answer questions truthfully is a structural error that warrants a new trial. We disagree, conclude that any error here is harmless, and affirm the judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Odell Givens

Case No.: 16-4198

Officials: BAUER, FLAUM, and SYKES, Circuit Judges

Focus: Sentencing Guidelines

Givens raises three challenges to his sentence. First, he contends that the court erred by imposing the supervised release condition prohibiting him from traveling outside the jurisdiction without permission. Second, he argues that the written judgment’s inclusion of a $400 special assessment was error because the court failed to include it in its oral pronouncement of his sentence. Finally, he contends that the written judgment erroneously fails to define “excessive use of alcohol.” The sentence is affirmed and the case is remanded for the limited purpose of correcting the written judgment regarding excessive use of alcohol.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Tracy Conley

Case No.: 15-3442

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges

Focus: Sufficiency of Evidence – Motion for Acquittal Denied

Tracy Conley was ensnared in a now familiar government set up in which a government actor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one unarmed guards). Conley took the bait and ended up with a sentence of 180 months’ imprisonment on drug distribution and weapons charges. He moved the district court for acquittal or a new trial and when that was denied, appealed the decision to this court. We affirm.

Conley argues that the government failed to meet its burden of establishing sufficient evidence to support his conviction on the conspiracy charges and thus the district court erred by denying his post-trial motion for acquittal. To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government had to prove the existence of a conspiracy to possess with intent to distribute a controlled substance and that Conley knowingly or intentionally became part of the agreement. United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014); United States v. Mire, 725 F.3d 665, 678 (7th Cir. 2013). Similarly, to sustain a conviction for attempt, the government had to prove that Conley intended to possess cocaine with the intent to distribute it and knowingly took a substantial step toward that goal. United States v. Fiedeke, 384 F.3d 407, 411–12 (7th Cir. 2004).

Affirmed

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7th Circuit Court of Appeals

Case Name: Francis J. Golla v. Office of the Chief Judge Cook County, et al.

Case No.: 15-2524

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

Focus: Title VII Violation

Francis Joseph Golla brought this Title VII race discrimination action against his former employer, the Office of the Chief Judge of Cook County, Illinois, and Cook County, Illinois, itself for purposes of indemnifying any judgment(collectively, “Defendants”). After discovery, the district court granted Defendants’ motion for summary judgment. Golla appeals that decision, and we affirm

Golla argues that he presented sufficient evidence of race discrimination within the Social Services Department to survive summary judgment. Golla stresses the similarities in job titles and duties with Taylor and surmises that the only explanation for Taylor’s higher pay grade is his race. Golla also points to the comments of his African‐American supervisor, Whitehead, as evidence of racial animus in the Social Services Department.

In short, the evidence as a whole was insufficient for a reasonable jury to conclude that the Office paid Golla at a lower pay grade than Taylor on account of his race. Therefore, Defendants are entitled to summary judgment. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Defendants.

Affirmed

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7th Circuit Court of Appeals

Case Name: Thomas Edward Chapman v. Yellow Cab Cooperative, et al.

Case No.: 17-1758

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

Focus: Fair Labor Standards Act Violation – Employment Violation Clause

Chapman contends in this suit under the Fair Labor Standards Act that this arrangement makes him an “employee” of Yellow Cab. He alleges that, after he complained about not receiving the minimum wage, Ali Mohamed, the President of Yellow Cab, told Giri that Chapman was “fired” (in other words, would not be dispatched to passengers who called Yellow Cab seeking a ride). Giri then terminated the sublease. Chapman submits that Mohamed’s action violates the Act’s anti retaliation clause, 29 U.S.C. §215(a)(3).

Chapman’s brief on appeal presents new allegations that make his claim of an employment relation seem stronger. But the place and time to make those allegations was in the district court, in response to the judge’s order. A plaintiff who disobeys an order from a district judge cannot hope to have his case revived by attempting belated compliance in the court of appeals.

Affirmed

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7th Circuit Court of Appeals

Case Name: Michael Collins v. Village of Palatine, Illinois

Case No.: 16-3395

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

Focus: Class Action – Statute of Limitations

When a plaintiff files a complaint on behalf of a proposed class, the statute of limitations for the claim is tolled for each member of the class. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 550 (1974). The tolling continues until the case is “stripped of its character as a class action.” United Airlines, Inc. v. McDonald, 432 U.S. 385, 393 (1977) (quoting FED. R. CIV. P. 23 advisory committee’s note to 1966 amendment). This “stripping” occurs immediately when a district judge denies class certification, dismisses the case for lack of subject-matter jurisdiction without deciding the class-certification question, or otherwise dismisses the case without prejudice. The question before us is whether a dismissal with prejudice also strips a case of its class-action character. The district court concluded that it does. We agree and adopt a simple and uniform rule: Tolling stops immediately when a class-action suit is dismissed—with or without prejudice—before the class is certified.

Affirmed

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7th Circuit Court of Appeals

Case Name: Adam Yeoman v. William Pollard

Case No.: 15-3489

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

Focus: Abuse of Discretion – Stay Denied

Adam Yeoman is serving a lengthy sentence in a Wisconsin prison after entering a plea of “no contest” to a charge of attempted first degree intentional homicide. Before filing his federal petition for habeas corpus relief, he exhausted some but not all of his claims in the Wisconsin courts. In presenting his mixed petition to the district court, Yeoman requested that the court enter a stay and hold his petition in abeyance so that he could return to state court and exhaust his remedies there. The court declined to enter the stay after concluding that Yeoman lacked good cause for the request. The court then dismissed the petition with prejudice, and Yeoman appeals. We affirm

Yeoman contends that a stay in his case does no harm to the goals of the AEDPA. Because he is not under a sentence of death, he has no incentive to delay execution of his sentence. On the contrary, he has every incentive to resolve his case as quickly as possible in order to overturn his conviction or shorten his term of imprisonment. Moreover, he asserts, the Supreme Court held in Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), that a “petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” But Yeoman’s first argument does not account for the AEDPA’s “interests of comity and federalism [which] dictate that state courts must have the first opportunity to decide a petitioner’s claims,” or the interest in finality, which does not apply exclusively to capital cases.

Moreover, Yeoman misreads the Supreme Court’s reasoning in Pace. Yeoman characterizes Pace as holding that a petitioner’s reasonable confusion about state filing deadlines will ordinarily constitute “good cause” for a stay. He asserts that his confusion about exhaustion requirements similarly provided good cause for seeking a stay, and that the court abused its discretion here in denying him a stay. Finally, Yeoman asserts that the denial of the stay and dismissal of his claims forever precludes habeas review of his unexhausted claims. But any unavailability of federal review would be due entirely to Yeoman’s failure to exhaust his claims in state court first. In short, there was no abuse of discretion in the district court’s decision to deny the stay on the ground that Yeoman lacked good cause for failing to exhaust his claims.

Affirmed

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7th Circuit Court of Appeals

Case Name: Thomas Taylor v. James W. McCament, Acting Director, U.S. Citizenship & Immigration Services

Case No.: 17-1943

Officials: FLAUM, RIPPLE, and MANION, Circuit Judges.

Focus: Immigration – Administrative Procedure Act – Visas

Appellant Thomas Taylor applied for a U-visa in 2014. United States Citizenship and Immigration Services (“USCIS”) determined that Taylor was eligible, but placed him on a waiting list because the relevant statute prohibits the agency from issuing more than 10,000 U-visas per year. Taylor filed suit in district court, alleging that USCIS’s prior delay in promulgating regulations for the U-visa program caused the backlog in applications. He asserted claims under the Administrative Procedure Act (“APA”) and the Mandamus Act, and asked the court to compel USCIS to immediately issue 80,000 U-visas to those on the waiting list. The district court determined that Taylor lacked standing and accordingly dismissed his complaint for lack of subject matter jurisdiction. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Robert DeKelaita

Case No.: 17-1644

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

Focus: Sufficiency of Evidence

Attorney Robert DeKelaita thought he had found the perfect recipe for success: identify a niche and become the expert. But he overlooked the part about complying with the law: his niche included helping clients submit fraudulent asylum applications. When it caught up with him, the government charged him with engaging in a single, decade‐long conspiracy through which he facilitated the submission of nine fraudulent asylum applications. DeKelaita contends that it failed to prove such an overarching conspiracy, and that at best the evidence at trial showed only several in‐ dependent conspiracies, none of which was properly subject to prosecution. Our review of the evidence convinces us otherwise. DeKelaita was charged with and convicted on only one conspiracy count. The jury had sufficient evidence to convict DeKelaita for either the charged conspiracy or a subsection of it. That is all the law requires, and so we affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brotherhood of Locomotive Engineers and Trainmen, et al. v. Union Pacific Railroad Company

Case No.: 17-1563

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

Focus: Non-frivolous Argument

The Union argues in the alternative that MAPS must be a change in policy rather than an application of existing contractual authority because it conflicts with the terms of a separate agreement—Article 18 of the Southern Pacific Western Lines Agreement.

MAPS imposes a “three-strike” policy that counts prior license revocations as strikes. The Union argues that since MAPS allows the Railroad to escalate punishment based on past license revocations, then license revocations must be “information concerning discipline.” Further, since nothing in MAPS distinguishes between revocations more or less than five years old, it contends that MAPS and Article 18 cannot coexist. It concludes that MAPS implements a change in disciplinary policy, not just an interpretation or application of an existing policy, and thus the dispute over its implementation is major.

Again, the Railroad has a non-frivolous argument for the compatibility of the two policies. This in turn (if accepted by an arbitrator) would mean that MAPS has not changed the prior rules. In the Railroad’s view, license revocations fall within Article 18’s exception for violations of the Federal Railroad Administration (FRA) regulations.

Union Pacific must do very little to show that this dispute is minor. It has passed that low bar and shown that the proper forum for further proceedings under the RLA system is arbitration. Observing that the playing field is tilted heavily in favor of arbitration, the district court agreed with the Railroad that the dispute is minor, and it accordingly dismissed the lawsuit in favor of arbitration. Although the Union has made a number of good points, we conclude that there is at least a non-frivolous argument that interpretation of the agreement between the parties, not change, is at stake. We therefore affirm the district court’s decision dismissing the suit for lack of subject-matter jurisdiction.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Richard Daniel Benson

Case No.: 2016AP211-CR

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

Focus: Ineffective Assistance of Counsel

Richard Benson appeals his convictions on six felony charges entered on a jury verdict, as well as a circuit court order denying his postconviction motions. Benson claims his trial counsel rendered constitutionally ineffective assistance and contends the circuit court erred when it denied his Batson challenge to the State’s peremptory strike of one juror. We reject Benson’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Murray

Case No.: 2016AP481-CR

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

Focus: Ineffective Assistance of Counsel and Sufficiency of Evidence

Anthony Murray appeals from a judgment of conviction, entered upon a jury’s verdict, for two counts of repeated sexual assault of the same child contrary to WIS. STAT. § 948.025(1)(d) (2015-16)1 , and one count of first-degree child sexual assault, intercourse with a person under twelve, contrary to WIS. STAT. § 940.02(1)(b). Murray also appeals from an order denying his motion for postconviction relief on grounds of ineffective assistance of counsel.

On appeal, Murray argues that the judgment of conviction should be vacated and the case dismissed because the evidence was insufficient to support his conviction on both counts of repeated sexual assault of the same child. Murray also reiterates his argument in his postconviction motion that he is entitled to a new trial, or at least a Machner hearing, because his trial counsel was ineffective for failing to object to certain out-of-court statements of the victim on grounds that they were inadmissible hearsay. We reject Murray’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Raymundo Lucero, et al. v. Amerisure Insurance Company, et al.

Case No.: 2016AP1422

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

Focus: Indemnification –  

 

This appeal relates to a dispute over indemnification and insurance between defendants in a personal injury action. The negligence and safe-place claims—filed by drywall installer Raymundo Lucero and his wife for damages related to an on-the-job accident—ultimately settled, leaving only the third-party claims for indemnification and insurance. The defendants are the owner of the property where Lucero was working when he was injured, the general contractor on the construction project, and the subcontractor for whom Lucero was working, along with their respective insurers. At this stage, the dispute centers on the contracts defining the terms of the defendants’ relationships and the parties’ respective insurance policy contracts. Each defendant claimed that contracts limited its responsibility to pay the Luceros’ damages or exempted it entirely from responsibility.

In their cross-appeal, McShane and its insurer argue that even if this court finds that the circuit court erred as to McShane’s obligations under the relevant contracts, this court should, on alternate grounds, affirm the circuit court’s orders dismissing them from the case. Because we conclude that neither movant is entitled to judgment as a matter of law, we remand for further proceedings.

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WI Court of Appeals – District III

Case Name: River Valley Bank, et al. v. Becker Properties of Wausau LLC, et al.

Case No.: 2016AP1529

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

Focus: Frivolous Appeal – Sanctions

Cabintek, LLC, appeals an order granting summary judgment in favor of River Valley Bank foreclosing a lease against Cabintek. River Valley argued it was entitled to foreclosure of Cabintek’s leasehold interest because of its preexisting mortgage lien against the leased property, and because Cabintek’s affirmative defenses and counterclaims failed as a matter of law. The circuit court agreed.

Cabintek argues summary judgment was inappropriate because there remain genuine disputed issues of material fact regarding its affirmative defenses and counterclaims. Meanwhile, River Valley moves this court for sanctions, arguing that Cabintek filed its brief late, Cabintek filed a false certificate of service, and the instant appeal is frivolous. We affirm the circuit court’s order and also determine that Cabintek’s appeal is frivolous. We therefore grant River Valley’s motion for sanctions and remand this matter to the circuit court to determine and then award River Valley’s costs and attorney fees associated with this frivolous appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Donte L. Coleman

Case No.: 2016AP1674-CR

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

Focus: Motion to Suppress Evidence Denied

Donte L. Coleman appeals his conviction for possession with intent to deliver cocaine (between one and five grams). See WIS. STAT. § 961.41(1m)(cm)1r. (2015-16). He entered a guilty plea to this charge after the circuit court denied his motion to suppress. Because the circuit court properly concluded that the evidence Coleman sought to suppress was admissible, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Scott F. Ufferman

Case No.: 2016AP1774-CR

Officials: HRUZ, J.

Focus: Court Error – Abuse of Discretion

Scott Ufferman appeals a judgment convicting him of third-offense operating a motor vehicle with a detectible amount of a restricted controlled substance in the blood, in violation of WIS. STAT. § 346.63(1)(am). Ufferman argues the circuit court erroneously exercised its discretion in making several evidentiary rulings during his jury trial. We disagree with Ufferman and affirm the judgment.

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WI Court of Appeals – District I

Case Name: Fabiola Colin Miranda, et al. v. Luther Gaston, M.D., et al.

Case No.: 2016AP2178

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

Focus: Abuse of Discretion – Expert Testimony

Plaintiffs ask this court to reverse a judgment dismissing medical negligence claims based on an unsuccessful sterilization procedure and a subsequent pregnancy and birth. Plaintiffs argue that the trial court erred when it held that their expert witness did not satisfy the Daubert reliability standard codified in WIS. STAT. § 907.02(1) (2015-16) and excluded his testimony. That ruling deprived them of a necessary element of their prima facie case and was thus fatal to their claim. The trial court based its ruling on the expert’s failure, in deposition testimony, to identify a basis other than “life experience” for his opinion that the failure of the sterilization procedure was caused by negligence—specifically, by the “improper application” of a sterilization device known as a Filshie clip. We conclude that the trial court did not erroneously exercise its discretion when it excluded the plaintiffs’ expert, and we affirm.

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WI Court of Appeals – District I

Case Name: Eric L. Kelly v. Phillip Cole, Jr., et al.

Case No.: 2016AP2245

Officials: Kessler, Brash and Dugan, JJ.

Focus: Summary Judgment – Unjust Enrichment

Eric L. Kelly appeals the trial court’s order dismissing his unjust enrichment and promissory estoppel claims against Phillip Cole, Jr. and Gloria Cole (collectively the “Coles”). Kelly and Phillip were coworkers and friends. The Coles owned a duplex with an outstanding note and mortgage, but no longer wanted to own the property. In contemplation of selling the duplex, the Coles refinanced the note and mortgage on the duplex in the amount of approximately $29,000, which included $6000 for necessary repairs.

Phillip and Kelly discussed Kelly buying the duplex for the outstanding balance on the note and mortgage. They agreed that if Kelly was able to assume the note and mortgage or obtain other financing to pay off the note and mortgage, the Coles would sell him the duplex. Kelly began repairing the duplex using the $6000. He also applied for a loan with the Coles’ lender, Brewery Credit Union (“Brewery”). After the repairs were completed, Brewery informed Kelly that his loan application was denied and that, based on the duplex’s post-repair appraisal, additional monies would be required to purchase it. Kelly did not obtain other financing. Kelly was not able to purchase the Coles’ duplex. Kelly then filed this civil action against the Coles and Brewery claiming unjust enrichment and promissory estoppel, seeking damages of $20,000 as compensation for the value of the labor and materials used to repair the duplex. The Coles filed a motion for summary judgment dismissing Kelly’s claims. The trial court granted Coles’ motion.

On appeal, Kelly maintains that there were “questions of [f]act that precluded summary judgment” and the case should be remanded to the trial court for a trial on the merits. Kelly has not identified any genuine issues of material fact. We affirm the trial court’s order. The following background facts are essential to understanding this case and are undisputed for the purposes of the summary judgment motion. In setting forth these facts, “‘[w]e view the summary judgment materials in the light most favorable to the nonmoving party.’” See Rainbow Country Rentals and Retail, Inc. v. Ameritech Publ’g, Inc., 2005 WI 153, ¶13, 286 Wis. 2d 170, 706 N.W.2d 95. We refer to additional facts in our discussion as needed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Albertino Lavon Oliver

Case No.: 2017AP310-CR

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

Focus: Ineffective Assistance of Counsel

Albertino Oliver appeals a judgment convicting him of attempted first-degree intentional homicide by use of a dangerous weapon and possession of a firearm by a felon. He also appeals an order denying his motion for postconviction relief. Oliver argues his trial attorney was ineffective in two respects. We reject his arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. R.G.

Case No.: 2017AP1078

Officials: BRENNAN, P.J.

Focus: Termination of Parental Rights

This is R.G.’s narrowly focused appeal from a termination of parental rights (TPR) post-disposition hearing at which the circuit court concluded that R.G. had failed to present new evidence that required a new disposition hearing under WIS. STAT. § 48.46. The new evidence that R.G. relied on was that after the disposition hearing, the prospective adoptive parent, D.L., was determined to be no longer suitable to adopt due to allegations of abuse to M.G. and her sibling.3 The post-disposition court rejected R.G.’s argument for a new disposition hearing, concluding that the new evidence—a post-disposition change in placement only—did not meet R.G.’s burden of establishing evidence “affecting the advisability of the court’s original adjudication” pursuant to WIS. STAT. § 48.46(1) and Walworth County Department of Health & Human Services v. Wilvina S., Nos. 2009AP1764, 2009AP1765, 2009AP1766, and 2009AP1767, unpublished slip op. ¶22 (WI App Feb. 24, 2010) (citing Schroud v. Milw. Cty. Dep’t of Pub. Welfare, 53 Wis. 2d 650, 654, 193 N.W.2d 671 (1972)). We agree

The TPR disposition adjudication statute, WIS. STAT. § 48.426(3)(a) requires a court to determine whether a child in a TPR proceeding is adoptable. The circuit court here made that finding and it is supported by the record. And although the evidence at the disposition hearing did demonstrate that D.L., the foster parent at that time, was a “prospective” adoptive resource, the statute does not require, nor did the disposition court order, that a particular person be named as the adoptive parent. In fact, the TPR order specifically states that guardianship and custody are awarded to the Division of Milwaukee Child Protective Services (DMCPS) for securing an adoption. Accordingly, we conclude that the circuit court properly exercised its discretion in denying the new disposition hearing and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Edgar Montano

Case No.: 2016AP1871-CR

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

Focus: Ineffective Assistance of Counsel

Edgar Montano appeals from a judgment of conviction and an order denying his postconviction motion. He contends that he is entitled to a new trial due to ineffective assistance of trial counsel. Alternatively, he seeks sentence modification based upon a new factor. We reject Montano’s arguments and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Michael J. Klein v. Claudine Lynn Klein

Case No.: 2016AP1916

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

Focus: Divorce – Child Placement – Spousal Maintenance

In this postdivorce judgment proceeding, Claudine Klein appeals an order denying her motion for additional placement with her children and an increase in maintenance. We affirm the order.

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WI Court of Appeals – District II

Case Name: Nathan A. Willard v. K Smith Holdings

Case No.: 2016AP2431

Officials: HAGEDORN, J.

Focus: Court Error – Procedural Rules

Nathan A. Willard appeals from an order of the circuit court dismissing his negligence claim. He argues that the court applied the wrong procedural rules and erred in concluding that Willard failed to prove his case. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. James R. Stib

Case No.: 2017AP3-CR

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

Focus: Exclusionary Rule – Good Faith Exception

This appeal concerns whether the good faith exception to the exclusionary rule applies to evidence obtained when binding appellate precedent permitted a reasonable delay of a traffic stop to conduct a dog sniff. See State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748. James R. Stib argues that his Fourth Amendment rights were violated when his traffic stop was prolonged for the sole purpose of conducting a dog sniff in contravention of the United States Supreme Court’s holding in Rodriguez v. United States, 135 S. Ct. 1609 (2015). We affirm as the dog sniff was conducted in objectively reasonable reliance on then-existing precedent, and, therefore, the good faith exception applies and renders exclusion of the evidence an inappropriate remedy.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Trayvon M. Smith

Case No.: 2016AP1323-CR

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

Trayvon Smith appeals a judgment of conviction and an order denying postconviction relief. Smith contends that he was denied the effective assistance of counsel at trial, that the sentence imposed by the circuit court was unduly harsh, and that the evidence was insufficient to sustain the jury verdicts. For the reasons set forth below, we reject those contentions. We affirm.

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WI Court of Appeals – District IV

Case Name: Amber Steinmetz, et al. v. Wesley Clendenning, et al.

Case No.: 2016AP1436

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

Focus: Insurance – Negligence Claim

Amber and Christopher Steinmetz appeal from a judgment in favor of their former landlord, Wesley Clendenning and Clendenning’s insurer, Baraboo Mutual Insurance Company (collectively, Clendenning), entered after a jury trial on the Steinmetzes’ negligence claim against Clendenning. The Steinmetzes brought suit against Clendenning after the apartment building they resided in was totally destroyed in a fire, asserting causes of action for negligence and, separately, for damages under WIS. STAT. § 704.07(2)1 and WIS. ADMIN. CODE § ATCP 134.09(7). The circuit court entered summary judgment in favor of Clendenning on the § 704.07(2) and § ATCP 134.09(7) claims, and the negligence claim was tried to a jury, which returned a verdict in favor of Clendenning on the negligence claim. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Dorothy D. Martin, et al. v. Ronald Martin, et al.

Case No.: 2016AP2321

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

Focus: Due Process

Dorothy D. Martin, Derold J. Martin, and Deborah Ann Nickel appeal the circuit court’s order that awarded ownership of a cabin to Ronald Martin. They argue that the circuit court denied them the opportunity to fully litigate the issue of the cabin’s ownership. For the reasons that follow, we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Steven Cohen

Case No.: 2017 WI 96

Focus: Attorney Disciplinary Proceedings

Attorney Steven Cohen has appealed a report filed by Referee James C. Boll, Jr. concluding that Attorney Cohen committed four counts of professional misconduct and recommending that Attorney Cohen’s license to practice law in Wisconsin be suspended for four months. Attorney Cohen entered into a stipulation whereby he agreed that the facts alleged in the amended complaint filed by the Office of Lawyer Regulation (OLR) could be used to form a basis for his admissions to the first three counts of misconduct alleged in the amended complaint. In his appeal, Attorney Cohen argues that the evidence was insufficient to support the referee’s finding of misconduct with respect to count four of the amended complaint. He also argues that mitigating circumstances support a lesser sanction than the four-month suspension recommended by the referee.

Upon careful review of this matter, we uphold all of the referee’s findings of fact and conclusions of law and conclude that a four-month suspension of Attorney Cohen’s license to practice law is an appropriate sanction for his misconduct. As is our usual custom, we also find that Attorney Cohen should be required to pay the full costs of this proceeding, which are $8,608.20 as of July 10, 2017.

Affirmed

Concur:

Dissent:

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