Weekly Case Digests — Dec. 4-Dec. 8, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Larry Alexander, et al. v. Ingram Barge Company

Case No.: 16-4264

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

Focus: Negligence Claim – Inland Navigation Rules

At 5:33 in the evening on April 18, 2013, a 14‐barge tow pushed by the M/V Dale A. Heller was sucked into a powerful cross‐current and broke up. Some of the barges crashed (or allided, as mariners would say) into the Marseilles Dam; some sank; some were saved. The accident happened during record‐breaking rains and high water, and a day later, the nearby town of Marseilles experienced significant flooding. This lawsuit, brought by a group who call themselves the Flood Claimants, represents an effort to fix blame for the allision and to recover for their flood damage. The Flood Claimants were stymied, however, when the district court ruled that the United States, which manages the Dam through its Army Corps of Engineers, was immune from suit for its role in the allision, and that the Corps was solely responsible for the accident.

The Flood Claimants believe that Ingram Barge, the company that owns and operates the Dale Heller, shares some of the blame because of its failure to follow certain inland navigation rules and its more general negligence. We conclude, however, that the facts found by the district court were not clearly erroneous, and that those facts support the court’s assignment of sole responsibility to the Corps.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States Equal Employment Opportunity Commission v. Auto Zone, Inc., et al.,

Case No.: 15-3201

Officials: WOOD, Chief Judge, and FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, and BARRETT, Circuit Judges.

Focus: Petition for Rehearing

On consideration of the EEOC’s petition for rehearing, the panel has voted unanimously to deny rehearing. A judge in active service called for a vote on the request for rehearing en banc. A majority of judges in active service voted to deny rehearing en banc. Chief Judge Wood and Judges Rovner and Hamilton voted to grant rehearing en banc. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.

Denied

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7^th Circuit Court of Appeals

Case Name: Gabriela Rodriguez v. Jefferson B. Sessions, III

Case No.: 17-1568

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, District Judge

Focus: Immigration – Cancellation of Removal Proceedings

This case presents a question closely connected with one this Court recently decided: when does a conviction for violating a protective order make a person ineligible for the cancellation of removal proceedings?

Gabriela Rodriguez was placed in removal proceedings— that is, she was scheduled to be deported—some 10 years after she entered this country from Mexico without inspection by United States authorities. She sought cancellation of her removal on the ground that it would cause her five dependent children, whom she raises alone, exceptional hardship. See 8 U.S.C. § 1229b(b)(1). One of her children is a cancer survivor who requires routine doctor visits to monitor his remission. The immigration judge who handled Rodriguez’s case decided that she was statutorily ineligible for cancellation because she had been convicted of violating an order of protection in 2001. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed this decision. Because Rodriguez is ineligible for cancellation, we agree, and deny the petition for review.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Village of Bedford Park, et al., v. Expedia, Inc., et al.

Case No.: 16-3932; 16-3944

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, District Judge.

Focus: Statutory Interpretation – Local Hotel Tax Ordinances

Thirteen Illinois municipalities (“the municipalities”) assert that the Appellees‐Cross‐Appellants, which are online travel agencies (“OTAs”), have withheld money owed to them under their local hotel tax ordinances. The OTAs operate their online travel websites under the “merchant model”; customers pay an OTA directly to re‐ serve rooms at hotels the OTA has contracted with. The participating hotels set a room rental rate. The OTA charges the customer a price that includes that rate, the estimated tax owed to the municipality, and additional charges for the OTA’s services. After the customer’s stay, the hotel invoices the OTA for the room rate and taxes, and remits the taxes collected to the municipality. The municipalities argue that they have been shorted tax revenue over the years because the OTAs do not remit taxes on the full price that customers pay.

To illustrate, assume a 5 percent tax. If a customer books a room directly with a hotel for $100 a night, the hotel collects $5 for taxes and remits that to the municipality. But if a customer books a room through an OTA for $100 and the hotel’s room rental rate is only $60, the OTA pays the hotel $63 and the hotel remits $3 to the municipality. The municipalities seek to collect the additional $2 from the OTAs. But none of the municipal ordinances place a duty on the OTAs to collect or remit the taxes, so the municipalities have no recourse against the OTAs. The OTAs are entitled to summary judgment against all of the municipalities.

The facts of this case are not highly disputed, but their legal significance is. At issue is how the OTAs in this case—Expedia, Priceline, Travelocity, and Orbitz—function and the thirteen municipal tax ordinances. This case involves construction of municipal ordinances, which are interpreted in the same manner as Illinois statutes. Landis v. Marc Realty, L.L.C., 919 N.E.2d 300, 303 (Ill. 2009). The Court’s “primary objective is to ascertain and give effect to the intent of the legislature.” In re Consol. Objections to Tax Levies of Sch. Dist. No. 205, 739 N.E.2d 508, 512 (Ill. 2000). “The language of the statute provides the best indication of the legislature’s intent.” Id. Where a phrase or word is undefined, “[i]t is appropriate to employ a dictionary to ascertain [its] meaning.” Landis, 919 N.E.2d at 304. “A statute is ambiguous when it is capable of being understood by reasonably well‐informed persons in two or more different senses.” People v. Beachem, 890 N.E.2d 515, 520 (Ill. 2008) (quoting In re J.W., 787 N.E.2d 747, 767 (Ill. 2003)). If a statute imposing a tax is ambiguous, it must be “strictly construed against the government and in favor of the taxpayer.” In re Consol., 739 N.E.2d at 512.

The district court’s grant of summary judgment to the OTAs against all but one municipality is AFFIRMED. The district court’s grant of summary judgment to the Village of Lombard is REVERSED and summary judgment shall be entered in favor of the OTAs.

Affirmed in part. Reversed in part.

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7^th Circuit Court of Appeals

Case Name: David Mark Frentz v. Richard Brown

Case No.: 15-3479

Officials: KANNE and SYKES, Circuit Judges, and DARROW, District Judge.

Focus: Court Error – Postconviction Motion Denied

David Frentz filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 after the Court of Appeals of Indiana affirmed the denial of his petition for postconviction relief in state court. That petition attacked Frentz’s conviction for the January 24, 2005 murder of his housemate, Zackary Reynolds. Before his trial on that charge, Frentz had filed a notice that he would pursue a defense of not guilty by reason of insanity, but, after consulting with an expert, did not pursue the defense. Frentz was convicted by a jury of the murder, and of associated drug charges, and sentenced to 59 years of imprisonment. He appealed to the Court of Appeals of Indiana, which affirmed. He then filed his postconviction petition in Indiana court alleging ineffective assistance of counsel for, among other things, not having pursued the insanity defense. His petition was denied, and he appealed to the Court of Appeals of Indiana, which affirmed the denial.

The Indiana Supreme Court denied transfer of the case, and Frentz filed a petition for writ of habeas corpus in the Southern District of Indiana. The district court denied the petition, and declined to issue a certificate of appealability. This Court then granted the certificate, finding that Frentz had made a substantial showing of the denial of his right to effective assistance of counsel because counsel failed to pursue an insanity defense. Because the Indiana appellate court did not unreasonably apply federal law in denying Frentz’s postconviction petition, we now affirm the district court’s decision.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Betco Corporation, LTD., v. Malcolm D. Peacock, et al.

Case No.: 17-1133

Officials: MANION, KANNE, and HAMILTON, Circuit Judges

Focus: Court Error – Time Barred Claim

Betco Corporation purchased the as‐ sets of two bioaugmentation companies from Marilyn and Malcolm Peacock. The Asset Purchase Agreement included the sale of equipment at the Peacocks’ Beloit, Wisconsin plant. Betco asked Malcolm to remain at the Beloit plant after the sale as president. Eventually, Betco discovered that the Beloit plant was delivering defective products to customers. It filed this suit against the Peacocks and their holding companies for fraud, negligent misrepresentation, breach of contract, and breach of the duty of good faith and fair dealing.

Betco raises two issues on appeal. First, Betco appeals the district court’s summary judgment dismissal of its breach of contract claim. It argues that the court erred in finding that the claim was time‐barred. Second, Betco appeals the district court’s judgment on the duty of good faith claim. It argues that the court erred in finding that Malcolm had not violated this duty and that Betco failed to prove damages even if he had violated it.  After two rounds of summary judgment and a bench trial, the district court dismissed the entirety of Betco’s suit. Betco appeals the dismissal of its breach of contract and breach of the duty of good faith and fair dealing claims. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Hyatt Franchising, LLC., v. Shen Zhen New World I, LLC, et al.

Case No.: 17-2071

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

Focus: Fee-Shifting

In September 2012 Hyatt and Shen Zhen New World I entered into an agreement providing that Shen Zhen would renovate a hotel in Los Angeles and operate it using Hyatt’s business methods and trademarks. Two years later Hyatt declared that Shen Zhen had not kept its promises. An arbitrator concluded that Shen Zhen owes Hyatt about $7.7 million in damages plus about $1.3 million in attorneys’ fees and costs. Hyatt filed this suit under the diversity jurisdiction and asked a district court to enforce the award. The court did just that. 2017 U.S. Dist. LEXIS 59455 (N.D. Ill. Apr. 19, 2017). Shen Zhen appeals. Shen Zhen’s principal arguments concern the arbitrator’s rulings with respect to Lynn Cadwalader, who represented it during the negotiations that led to the contract with Hyatt. Shen Zhen asked the arbitrator to issue a subpoena that would have required Cadwalader to give a deposition; the arbitrator said no. The arbitrator stated that Cadwalader lacked any information bearing on the parties’ contractual dispute, which arose two years after she had stopped working for Shen Zhen. The arbitrator also declined to disqualify Hyatt’s law firm, DLA Piper, which Cadwalader joined in July 2015, about three years after the contract was signed. Cadwalader had not represented Shen Zhen since October 2012. The arbitrator concluded that DLA Piper’s ethics screen ensured that no confidential information would reach the lawyers representing Hyatt in 2015 and 2016. Shen Zhen maintains that it is entitled to relief under 9 U.S.C. §10(a)(3), which provides that a judge may set aside an arbitrator’s award “where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced”. Like the district court, we do not see how either branch of Shen Zhen’s argument comes within this language.

More than 25 years ago, this court held that commercial parties that have agreed to final resolution by an arbitrator, yet go right on litigating, must pay their adversaries’ attorneys’ fees. See Continental Can Co. v. Chicago Truck Drivers Pension Fund, 921 F.2d 126, 128 (7th Cir. 1990). The American Rule requires each side to bear its legal fees in an initial round, but an entity that insists on multiplying the litigation must make the other side whole for rounds after the first. Cf. 28 U.S.C. §1927. Section 14.4 of the contract between Hyatt and Shen Zhen includes a fee-shifting clause, so it is unnecessary to make a separate fee-shifting order under Continental Can, but if the parties cannot agree on how much Shen Zhen owes for pointlessly extending this dispute through the district court and the court of appeals, Hyatt should apply for an appropriate order.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Donnell Jehan

Case No.: 17-1779

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

Focus: Sentencing Guidelines – Plea Agreement

Donnell Jehan appeals from the order denying his motion under 18 U.S.C. § 3582(c)(2) to reduce his prison sentence for his role in a drug conspiracy. The district court denied that motion on the ground that Jehan’s sentence is based on a binding plea agreement, not on a Guidelines range affected by an amendment to the Sentencing Guidelines. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: Floyd May v. Sylvia Mahone, et al.

Case No.: 15-3395

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

Focus: Jurisdiction

Floyd May, a pro se appellant and an Illinois prisoner, claims in this suit under 42 U.S.C. § 1983 that two prison physicians failed to provide constitutionally adequate medical care while treating his non-Hodgkins lymphoma. The district court entered summary judgment for the defendants, and Mr. May has appealed. Before addressing the merits, we must decide whether we have jurisdiction. That question turns on whether Mr. May filed a timely notice of appeal. Because we cannot determine this issue on the existing record, we remand the case to the district court for the limited purpose of determining if and when Mr. May tendered a notice of appeal to prison authorities.

Accordingly, we remand this case to the district court for the limited purpose of determining whether Mr. May submitted a notice of appeal on or before August 10, 2015, in compliance with Rule 4(c). We will retain jurisdiction over the appeal.

Remanded with instructions; Jurisdiction Retained

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7^th Circuit Court of Appeals

Case Name: Frederick C. Cashner, Jr., v. John J. Widup, et al.

Case No.: 17-1079

Officials: Rudy Lozano

Focus: Vacated Judgment

IT IS ORDERED that the nonprecedential disposition and judgment dated November 28, 2017, are VACATED as improvidently issued. This appeal remains under consideration by the court.

Vacated

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7^th Circuit Court of Appeals

Case Name: Marybeth Lauderdale v. Illinois Department of Human Services

Case No.: 16-3830

Officials: MANION and KANNE, Circuit Judges, and MILLER, District Judge.∗

Focus: Equal Pay Act Violation

Marybeth Lauderdale alleges she was paid substantially less than her male colleague despite taking on twice the responsibility. The Equal Pay Act, Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment prohibit state employers from paying an employee less based on her sex. However, the record indicates that the pay discrepancy in this case was not based on sex. Therefore, the district court’s grant of summary judgment for the defendants-appellees is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kyle W. Oberg

Case No.: 17-1546

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

Focus: Sentencing Guidelines

Kyle Oberg possessed large quantities of child pornography that he produced himself. On his home desktop computer, investigators found more than three hundred sexually explicit photos and three videos of his five-year old daughter exposing her genitals. He pleaded guilty to two counts of sexual exploitation of a minor and one count of possession of visual depictions of a minor under age twelve engaged in sexually explicit conduct. The district judge sentenced him to a within-Guidelines, 30-year prison term—the statutory maximum for one count of sexual exploitation, 18 U.S.C. § 2251(e). He argues on appeal that his sentence is substantively unreasonable because the Sentencing Guidelines for child pornography offenses are too severe and because the judge did not correctly weigh the factors set forth in 18 U.S.C. § 3553. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kelly J. Cosgriff, et al. v. County of Winnebago, et al.

Case No.: 17-1396

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

Focus: Procedural Sufficiency of State Remedies – Local Tax System

A dog bit a Roscoe Township employee on Kelly and Anita Cosgriff’s property. After the employee and the township sued the Cosgriffs, the Cosgriffs started a petition campaign encouraging taxpayers to notify the township that its employees should not trespass on private property.  The Cosgriffs’ next property assessment set by the township was significantly higher than their last. The Cosgriffs challenged the increased assessment through a hearing before the Winnebago County Board of Review, the Illinois County in which Roscoe Township is located. The Board ruled in favor of the Cosgriffs and substantially reduced the new assessment.

The Cosgriffs then sued Winnebago County and numerous individual defendants in federal district court. The Cosgriffs principally allege that the defendants acted unconstitutionally when they increased the Cosgriffs’ property assessment because the Cosgriffs spoke out against township employees trespassing on private property.   The district court dismissed the Cosgriffs’ § 1983 claims, reasoning that comity principles barred federal courts from hearing these federal claims. The court also relinquished supplemental jurisdiction over the remaining state‐law claims. The Cosgriffs appealed the dismissal of their federal claims.

“The focus is on the procedural sufficiency of state remedies, not their substantive outcomes.” Id. at 714. Thus, consistent with our previous decision in Capra, the Cosgriffs cannot bring their tax‐related claims in federal court. Because the Cosgriffs challenge the administration of a local tax system under § 1983, their claims fall outside the scope of the statute, in accordance with Fair Assessment. The available state remedies are plain, adequate, and complete.   The Cosgriffs did not appeal the district court’s decision to relinquish supplemental jurisdiction over their remaining state‐law claims. Accordingly, we AFFIRM the district court’s dismissal of the Cosgriffs’ federal‐law claims and relinquishment of jurisdiction over their state‐law claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Miguel Adorno v. Michael Melvin

Case No.: 16-2273

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

Focus: Due Process Violation – Voir Dire

Miguel Adorno, an Illinois prisoner, was convicted of attempted murder using a firearm. On direct appeal he challenged certain remarks by the trial judge about the state’s burden of proof. More particularly, he argued that the judge’s comments—delivered impromptu during voir dire—invited the jury to convict on less than the reasonable-doubt burden of proof required by the Constitution’s guarantee of due process of law. He also claimed that the judge’s remarks violated state law. The Illinois Court of Appeals addressed only the state-law argument and rejected the claim; the court made no reference to federal law. Adorno then sought federal habeas relief under 28 U.S.C. § 2254. Applying de novo review, the district judge found a due-process violation and granted the petition.

The judge’s voir dire comments must be viewed “in the context of the entire charge,” not in isolation. Jones v. United States, 527 U.S. 373, 391 (1999). Taken as a whole, nothing in the judge’s remarks creates a reasonable likelihood that the jury “underst[ood] the phrase [‘reasonable doubt’] to mean something less than the very high level of probability required by the Constitution in criminal cases.” Victor, 511 U.S. at 14. Put slightly differently, the judge’s remarks do not suggest that the jurors would have understood that they were free to convict Adorno on less than proof beyond a reasonable doubt. Because the conviction was not tainted by a due-process violation, the order granting habeas relief was unwarranted and is reversed.

Reversed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ahyoh E. Cowans

Case No.: 2014AP900

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

Focus: Plea Withdrawal

Ahyoh E. Cowans appeals an order denying his collateral attack on a judgment convicting him of felony murder. Cowans argues that he should be allowed to withdraw his guilty plea because he was coerced into entering it by co-defendant Aaron Deal. We affirm.

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WI Court of Appeals – District I

Case Name: 2015AP2319-CR

Case No.: State of Wisconsin v. Willie Brownlee, Jr.

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

Focus: Court Error – Inadmissible Evidence

Willie Brownlee Jr. appeals from a judgment of conviction, entered upon a jury’s verdict, for one count of possession of cocaine, fifteen to forty grams, with intent to deliver, contrary to WIS. STAT. §961.41(1m)(cm)3 (2015-16). He also appeals from the order of the trial court denying his motion for postconviction relief. Brownlee argues that the evidence obtained from his vehicle after a traffic stop should have been suppressed because the police officers did not have probable cause to search the vehicle based on the smell of burnt marijuana, nor did they have consent to perform a search of the vehicle.

Brownlee also contends that the trial court erred in admitting text messages from Brownlee’s cell phone because they were not sufficiently authenticated. Furthermore, Brownlee asserts that the texts relating to drug transactions involving pills and marijuana, as opposed to cocaine transactions that would support the charge against him, were erroneously admitted because they were other acts evidence that was inadmissible. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ronald S. DePaoli

Case No.: 2016AP608

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

Focus: Ineffective Assistance of Counsel

Ronald DePaoli appeals an order denying his WIS. STAT. § 974.06 (2015-16) motion for a new trial alleging he received ineffective assistance from his postconviction counsel. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clifton Lee Williams, Jr.

Case No.: 2016AP1044

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

Focus: Ineffective Assistance of Counsel – Plea Agreement Violation

Clifton Lee Williams, Jr., pro se, appeals from an order denying his collateral attack on a judgment convicting him of one count of second-degree reckless homicide, as a party to a crime, and two counts of felon in possession of a firearm. Williams argues that: (1) he should have been convicted of two charges, not three charges, because he entered guilty pleas to only two charges; (2) his plea agreement was void as a matter of public policy; (3) trial counsel ineffectively represented him by failing to advise him that the plea agreement was void as a matter of public policy; (4) the prosecutor violated the plea agreement by recommending the maximum sentence; (5) the plea colloquy was deficient; (6) he was sentenced on the basis of inaccurate information; and (7) postconviction counsel provided him ineffective assistance during his direct appeal by failing to raise these issues. We reject Williams’s arguments. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Keithany Martease Brodie

Case No.: 2016AP1949-CR

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

Focus: Sentencing Guidelines

Keithany Martease Brodie appeals judgments convicting him of first-degree intentional homicide by use of a dangerous weapon, armed robbery, and felon in possession of a firearm. Brodie argues that the circuit court misused its sentencing discretion because it failed to explain why it made him eligible for parole after fifty-six years of imprisonment and why it deviated from the recommendations of the parties as to his parole eligibility. Brodie also argues that the circuit court misused its discretion by failing to adequately explain why he was ordered to serve a consecutive sentence on one charge. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christian Aleks Bisbach

Case No.: 2016AP2399-CR

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

Focus: Sufficiency of Evidence

Christian Aleks Bisbach appeals a judgment of conviction entered after a jury found him guilty of twelve counts of incest stemming from his sexual relationship with an adult sister, K.R. Bisbach argues that he is entitled to a new trial either because the evidence was insufficient to support the jury’s verdicts or because his confession was insufficiently corroborated. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Chad Gebhardt, et al. v. Bruce R. Bosben, et al.

Case No.: 2016AP2531

Officials: Sherman, Blanchard, and Fitzpatrick, JJ.

Focus: Exempt Transferred Interests

This case involves Bruce Bosben’s transfers of property interests to his wife, Gwen Bosben, and to an LLC owned solely by Bruce and Gwen at a time when a creditor was attempting to satisfy a money judgment against Bruce. We refer collectively to all rights, titles, interests, and assets in all of the entities and properties that Bruce transferred to Gwen and the LLC as the “transferred interests.” Bruce appeals a revised judgment of the circuit court denying Bruce’s claims that the transferred interests should be exempt from execution to satisfy the money judgment under WIS. STAT. § 815.18 (2015-16).

On appeal, Bruce challenges the portion of the revised judgment determining that the transferred interests are not exempt from execution because Bruce transferred the interests “with the intention of defrauding creditors.” See § 815.18(10). As a result of this exemption determination, the transferred interests could potentially be applied to satisfy the judgment. We reject the arguments made by Bruce, identified below, and, accordingly, affirm the revised judgment of the circuit court.

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WI Court of Appeals – District II

Case Name: Maranda A. LaFrombois, et al. v. Mark Reisen

Case No.: 2017AP74

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

Focus: Independent Contractor Status

Maranda A. Lafrombois appeals from an order granting summary judgment to Gannett Satellite Information Network, Inc. For the reasons that follow, we affirm.

Based upon the foregoing, the circuit court concluded that Reisen was acting as an independent contractor at the time of the accident. Lafrombois contends that this conclusion was erroneous, as other facts suggest that Reisen was acting as a servant instead. Lafrombois points to various obligations in the contract that affected Reisen’s work.  She also notes that Reisen was accountable for his performance, as Gannett would contact him regarding delivery errors/missed deadlines and could deduct his pay or terminate him. We are not persuaded by Lafrombois’ arguments. To begin, limited control over certain aspects of a job does not rewrite an independent contractor relationship. Moreover, the ability to hold an independent contractor accountable for a job is unremarkable and does not create a master-servant relationship.

In the end, on this record, we are satisfied that Reisen retained and exercised the right to control all significant details of the work of delivering newspapers. Accordingly, we conclude that he was an independent contractor at the time of the accident and that the circuit court properly granted summary judgment in Gannett’s favor.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tyrine Javor Donald

Case No.: 2016AP1626-CR

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

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Tyrine Javor Donald appeals a conviction for possessing heroin with intent to deliver. Following his guilty plea and conviction, Donald moved to withdraw his plea on the grounds that he received ineffective assistance of counsel. He argued that he was prejudiced by counsel’s failure to challenge the legality and scope of the police frisk that led to the evidence. Following a traffic stop, an officer had frisked Donald, and during that frisk, the officer felt an object concealed in Donald’s pants. A strip search conducted at the police station revealed that the object was a bag of heroin. The circuit court denied Donald’s motion without a hearing. We now affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Roy Lee Rogers

Case No.: 2016AP2094-CR

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

Focus: Sentencing Guidelines

Roy Rogers, pro se, appeals orders denying separate postconviction motions to vacate his 1994 sentence and modify it to life imprisonment with parole eligibility on January 1, 2020. He argues: (1) his sentence violates the Eighth Amendment prohibition against cruel and unusual punishment; (2) decisions of the United States Supreme Court regarding sentencing for juvenile offenders constitute a new factor warranting sentence modification; and (3) the sentencing court erroneously exercised its discretion when it imposed the same sentence it imposed for an adult co-defendant. We reject these arguments and affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Artillis Mitchell

Case No.: 2016AP2394-CR

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

Focus: Sufficiency of Evidence

Artillis Mitchell appeals from a judgment of conviction for one count of first-degree sexual assault by use of a dangerous weapon, as an act of domestic abuse, contrary to WIS. STAT. §§ 940.225(1)(b) and 968.075(1)(a) (2013-14). He also appeals from an order denying his postconviction motion. Mitchell challenges the sufficiency of the evidence used to convict him and asserts that his trial counsel provided ineffective assistance by failing to object to the admission of a utility knife recovered from Mitchell when he was arrested. We reject Mitchell’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Xavier Grullon

Case No.: 2016AP2404-CR

Officials: SEIDL, J.

Focus: Motion to Suppress Evidence Denied

Xavier Grullon appeals a judgment convicting him of operating a motor vehicle while intoxicated (OWI) as a misdemeanor fourth offense. Grullon challenges the circuit court’s order denying his motion to suppress evidence obtained as a result of his arrest. He claims that his seizure by law enforcement prior to his arrest was constitutionally unreasonable. We affirm the judgment, concluding that, assuming a pre-arrest seizure occurred, the totality of the circumstances provided reasonable suspicion justifying Grullon’s seizure.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.C.

Case No.: 2016AP2229; 2016AP2230

Officials: KLOPPENBURG, J

Focus: Termination of Parental Rights

D.C. seeks reversal of the orders terminating her parental rights to A.RC. and D.RC., and the post-dispositional order denying D.C.’s motion to vacate based on the ground of ineffective assistance of counsel. D.C.’s sole argument on appeal is that her trial counsel provided ineffective assistance by failing to object to the circuit court’s proposed jury instructions and to request alternative jury instructions during the grounds phase of the termination of parental rights proceeding. As explained below, D.C. fails to show that the alleged deficient performance as to the jury instructions prejudiced her defense. Therefore, I affirm.

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WI Court of Appeals – District IV

Case Name: St. Raphael’s Congregation v. City of Madison

Case No.: 2016AP2319

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

Focus: Statutory Interpretation

St. Raphael’s Congregation challenges the 2014 taxation of property the Congregation owns in downtown Madison. The property includes the site of the former St. Raphael’s Cathedral, which was destroyed by an arson fire in 2005. The Congregation seeks an exemption for this property under WIS. STAT. § 70.11(4)(a).

The Congregation argues that the circuit court erred in concluding that the property here was not “necessary for [the] location … of buildings” as that phrase is used in the statute. However, we agree with the City that Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 591 N.W.2d 583 (1999), compels the conclusion that the property did not satisfy this statutory “necessary-forbuildings” requirement, and therefore was not exempt, in the 2014 tax year. Specifically, Deutsches Land holds that, for property to be “necessary for location and convenience of buildings,” the property must in fact have a building on it, something that was not true during the tax year at issue here. Accordingly, we affirm the circuit court’s order dismissing the Congregation’s challenge to the 2014 taxation of the property.

The City cross-appeals, arguing an alternative ground for affirming the circuit court’s bottom-line decision. The City disagrees with the circuit court’s conclusion that the property met the exclusive-use requirement. That is, the City contends that the court could have and should have concluded that the property was not tax exempt for the additional reason that the property did not satisfy the exclusive-use requirement. We fail to understand why a cross-appeal was necessary to raise this alternative reason for affirming the circuit court’s decision. Regardless, we need not reach this alternative argument because we agree with the City that the circuit court correctly dismissed the Congregation’s challenge based on the necessary-for-buildings requirement. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties when one issue is dispositive.”).

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William Charles Brink

Case No.: 2016AP2529-CR

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Motion to Suppress Evidence Denied

William Brink appeals a conviction for operating while intoxicated-6th offense, in violation of WIS. STAT. § 346.63(1)(a) (2015- 16),  as a repeater, and an order denying his motion to suppress evidence. Brink does not challenge the validity of the initial stop of his vehicle by police, based on an alleged equipment violation. Instead, he argues that (1) after the lawful stop, police prolonged his detention to conduct field sobriety tests without reasonable suspicion, and (2) police arrested him without probable cause. We conclude that police had both reasonable suspicion to conduct field sobriety tests and probable cause to arrest. Accordingly, we affirm the circuit court’s suppression decision.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Ginger M. Breitzman

Case No.: 2017 WI 100

Focus: Ineffective Assistance of Counsel

The ineffective assistance of counsel issue raised requires consideration of whether counsel was ineffective for any of the following reasons: (1) failing to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman’s constitutional right to free speech; (2) failing to present opening remarks consistent with Breitzman’s anticipated testimony; and (3) failing to object to testimony regarding other uncharged conduct.

As to the first, we conclude that trial counsel’s failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman’s constitutional right to free speech was not deficient performance, and thus not ineffective assistance of counsel, because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law. As to the second, we conclude that trial counsel’s theory of reasonable parental discipline, as presented in opening remarks, was not deficient performance, and thus not ineffective assistance of counsel, because it reflected trial counsel’s reasonable expectations, which were rationally based on discussions with Breitzman, and it was part of a reasonable trial strategy. As to the third, we conclude that trial counsel’s failure to object to testimony regarding uncharged conduct was not deficient performance, and thus not ineffective assistance of counsel, because declining to object was part of a reasonable trial strategy.

Because we conclude that trial counsel’s performance was not deficient, we need not address whether, in the context of ineffective assistance of counsel, there was prejudice to Breitzman, and we decline to do so. Thus, we affirm the decision of the court of appeals.

Affirmed

Concur: ABRAHAMSON, J.

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Tiffany T. Luther

Case No.: 2017 WI 98

Focus: Attorney Disciplinary Proceedings

We review the report and recommendation of Referee Jonathan V. Goodman, approving a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Tiffany T. Luther and concluding that Attorney Luther committed the professional misconduct alleged by the OLR, as stipulated by the parties. The referee determined that a public reprimand of Attorney Luther’s license to practice law is appropriate.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law and agree that a public reprimand is an appropriate sanction for Attorney Luther’s misconduct. We also find it appropriate to impose the full costs of this proceeding, which are $7,414.04 as of July 18, 2017. The OLR has confirmed that Attorney Luther paid restitution and that no additional restitution order is warranted.

Affirmed

Concur:

Dissent: ABRAHAMSON, J.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Sergio Magaña

Case No.: 2017 WI 97

Focus: Attorney Disciplinary Proceedings

We review Referee Jonathan V. Goodman’s recommendation that the court declare Attorney Sergio Magaña in default and revoke his Wisconsin law license in connection with his work in 22 client matters, his non-cooperation with the Office of Lawyer Regulation’s (OLR) investigation into his conduct, his conviction for misdemeanor operating while intoxicated (second offense), and his failure to report that conviction to the OLR and the clerk of this court. The referee also recommended that Attorney Magaña be ordered to pay restitution and the costs of this proceeding.

Because no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2).1 After conducting our independent review of the matter, we agree with the referee that, based on Attorney Magaña’s failure to answer the amended complaint filed and served by the OLR, the OLR is entitled to a default judgment. We also agree with the referee that Attorney Magaña’s professional misconduct warrants the revocation of his law license. We further agree that Attorney Magaña should pay restitution in the amounts described below, and that he should pay the full costs of this proceeding.

IT IS FURTHER ORDERED that Sergio Magaña shall pay restitution in the following amounts:

• $630 to former client M.S.;
• $420 to former client J.F.C; and
• $420 to his former law firm.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Estate of Stanley G. Miller c/o Genevieve Miller v. Diane Storey

Case No.: 2017 WI 99

Focus: Statutory Interpretation and Exemplary Damages

There are four issues on this appeal. First, we consider whether Wis. Stat. § 895.446 is an “action based in tort” under Wis. Stat. § 799.01(1)(cr) or an “other civil action” under § 799.01(1)(d). As to the first issue, we conclude that Wis. Stat. § 895.446 is an “other civil action” under Wis. Stat. § 799.01(1)(d) based on fundamental principles of statutory interpretation and the established distinctions between statutory civil claims and common law tort claims. Because we conclude that § 895.446 is an “other civil action,” we consequently conclude that the damages cap is $10,000 under § 799.01(1)(d) and that double costs are authorized under Wis. Stat. § 807.01(3). As to the second issue, we conclude that attorney fees are included within the meaning of “costs of investigation and litigation” under Wis. Stat. § 895.446(3)(b) because Stathus v. Horst, 2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165, a judicial interpretation by the court of appeals, has long stood for that proposition, and the legislature, despite taking other, subsequent action in that very statute, has not legislated so as to alter that interpretation.

As to the third issue, we conclude that the court of appeals did not err when it considered the issue of exemplary damages, in part because the issue raised was a legal question, the parties thoroughly briefed the issue, and there were no disputed issues of fact. As to the fourth issue, we conclude that our analysis as to the first issue renders analysis of the fourth issue unnecessary because our reversal of the court of appeals’ holdings on actual damages and double costs obviates the substance of the Estate’s remaining arguments. Thus, we reverse the decision of the court of appeals as to the first and second issues and affirm the decision of the court of appeals as to the third issue. Because we reverse on the first issue, we need not decide the fourth issue. We remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded

Concur: KELLY, J. concurs and dissents, joined by R. G. BRADLEY, J.

Dissent: ABRAHAMSON, J. dissents

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