Weekly Case Digests — Dec. 18-Dec. 22, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: State Auto Property and Casualty Insurance Company

Case No.: 17-1700

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

Focus: Insurance Claim – Duty to Defend

In this insurance dispute, insurer State Auto Property and Casualty Insurance Company seeks a declaratory judgment that it has no duty to defend insured Brumit Services, Inc., because the latter failed to provide prompt notice of an accident that eventually led to a lawsuit. The district court concluded that the insured’s 21‐month delay in notifying the insurer was reasonable and awarded judgment to the insured. We disagree. Brumit’s failure to provide prompt notice of the accident was inexcusable under Illinois law. Therefore, we reverse the judgment of the district court.

Reversed

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7^th Circuit Court of Appeals

Case Name: Larry Kemp

Case No.: 17-1314

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

Focus: 1^st Amendment Violation

Plaintiffs Larry Kemp and Brian Woodring were Jewish inmates at prisons operated by the Indiana Department of Corrections (“DOC”). In 2014, Kemp and Woodring were transferred from one DOC facility to another in order to maintain a kosher diet. Plaintiffs allege that defendant David Liebel, the DOC Director of Religious and Volunteer Services, violated the Free Exercise Clause of the First Amendment by failing to delay that transfer until the new facility offered opportunities for Jewish group worship and study. On cross motions for summary judgment, the district court found for Liebel on the ground that plaintiffs failed to overcome Liebel’s qualified immunity defense. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kerrie Milligan-Grimstad v. Morgan Stanley, etc.

Case No.: 16-4224

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

Focus: Title VII Violation

Kerrie Milligan alleges that Morgan Stanley Smith Barney (“Morgan Stanley”) fired her on the basis of her sex and that it allowed her coworkers to create a hostile work environment. Title VII of the 1964 Civil Rights Act prohibits both. The district court granted summary judgment in Morgan Stanley’s favor, finding that Morgan Stanley dismissed Milligan for her performance and that the conduct she alleged did not create a hostile work environment. Milligan now appeals. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: James Fendon v. Bank of America, N.A.

Case No.: 17-1718

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

Focus: Statute of Limitations – Rescission

In 2007 James Fendon borrowed money from Bank of America; the loan was secured by a mortgage on his home. A borrower may rescind such a transaction for any reason within three days and for some reasons within three years. See 15 U.S.C. §1635 (part of the Truth in Lending Act); Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015). Fendon alleges that he notified the Bank on August 15, 2008; April 16, 2009; and June 17, 2010, that he was rescinding the loan, and that the Bank ignored the first two notices and rejected the third. In 2011 the Bank filed a foreclosure action in state court, and on March 23, 2016, a state court entered a final judgment confirming the foreclosure sale. That same day Fendon filed this suit under the Act seeking rescission and any other available relief. By the time Fendon began this suit it was too late to un‐ wind the transaction, because the property securing the loan had been sold. Federal district courts lack authority to revise the judgments of state courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

Instead it relies on a different affirmative defense: the statute of limitations. The Bank maintains, and the district judge held, that the suit is untimely under 15 U.S.C. §1640. See 2017 U.S. Dist. LEXIS 33236 at *11–13 (N.D. Ill. Mar. 8, 2017). Section 1640(a)(1) authorizes awards of damages for violations of the Act, including §1635. The first sentence of §1640(e) then sets a one‐year period of limitations for any claim under §1640 as a whole. The second and later sentences of §1640(e) provide some exceptions, but none of those applies.

Fendon insists that no statutory time limit applies to claims for rescission. He notes, as the Supreme Court held in Jesinoski, that §1635(f) gives a borrower three years to notify the creditor of an election to rescind when the creditor failed to provide information required by the Act. Fendon’s notices all came within three years of the date he signed the note and mortgage. Section 1635 does not specify a time limit for suit if the creditor fails to acknowledge or implement a proper rescission. This means, Fendon tells us, that there is no federal statute of limitations for claims based on §1635. Yet §1640 expressly provides otherwise for damages actions. Section 1640(a) authorizes money damages for violations of §1635, and §1640(e) sets a one‐year period of limitations for suits under §1640(a).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice Collins

Case No.: 15-1998

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

Focus: Sentencing Guidelines

Maurice Collins pled guilty to distributing cocaine and at least 28 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 120 months in prison—the statutory minimum in light of a prior felony drug conviction. See § 841(b)(1)(B). On appeal Collins challenges the district court’s decision at sentencing to add to his Sentencing Guidelines calculation two offense levels under U.S.S.G. § 3B1.1(c) for his supervisory role in the offenses. While the guidelines have been advisory since United States v. Booker, 543 U.S. 220 (2005), this guideline decision had significant consequences under the terms of a statute that is mandatory, not advisory. The supervisory role enhancement disqualified Collins from safety‐valve relief from the statutory minimum sentence. See 18 U.S.C. § 3553(f)(4). We generally review a district court’s determinations on the guidelines for aggravating and mitigating roles for clear error, e.g., United States v. Robertson, 662 F.3d 871, 876 (7th Cir. 2011); United States v. Herrera, 878 F.2d 997, 1000 (7th Cir. 1989), but if the court acted on the basis of a misunderstanding of the legal standard, we may need to remand for reconsideration under the proper legal standard. See Robertson, 662 F.3d at 876.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Michael Smith, et al. v. United States of America, et al.

Case No.: 17-1730; 17-2090

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges

Focus: Statutory Interpretation

These appeals, which we have consolidated for decision, present the question whether a conviction for residential burglary in Illinois under 720 ILCS 5/19-3 (1982) counts as “burglary” for the purpose of the Armed Career Criminal Act, 18 U.S.C. §924(e). Taylor v. United States, 495 U.S. 575 (1990), holds that a state’s label is not dispositive and that a conviction counts only if the offense meets a federal definition of “generic burglary”. We held in United States v. Haney, 840 F.3d 472 (7th Cir. 2016), that the pre-1982 version of Illinois law covering ordinary burglary did not satisfy the federal definition. Michael Smith and Michael Khoury (collectively “defendants”) ask us to hold the same about the residential-burglary statute under which they were convicted.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Hill v. United States of America

Case No.: 16-3239

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

Focus:  Statutory Interpretation

Following his convictions for drug and firearms crimes, Michael Hill was sentenced to 276 months’ imprisonment as an armed career criminal. See 18 U.S.C. §924(e), the Armed Career Criminal Act or ACCA. He contends in this successive collateral attack (which we authorized under 28 U.S.C. §§ 2244(b), 2255(h)) that one of his earlier convictions does not qualify as a “violent felony” and that the recidivist enhancement therefore is improper. The United States could have invoked a number of procedural defenses, see Stanley v. United States, 827 F.3d 562 (7th Cir. 2016), but has not developed any of them. As the defenses are not jurisdictional we proceed to the merits. Wood v. Milyard, 566 U.S. 463 (2012); Douglas v. United States, 858 F.3d 1069 (7th Cir. 2017).

Given the statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime, we now adopt Judge Hamilton’s analysis as the law of the circuit. When a substantive offense would be a violent felony under §924(e) and similar statutes, an attempt to commit that offense also is a violent felony. Hill insists, however, that even the completed crime of murder in Illinois, under 720 ILCS 5/9-1(a)(1), is not a violent felony under the federal elements clause.

As for the felony-murder doctrine, which Hill says takes the crime of murder outside §924(e): The proper treatment of felony murder is the same as that of attempted murder. As long as the completed crime of murder has as an element the actual or attempted use of violence against the person of another, a state rule making a person accountable for the substantive crime must be treated as equivalent to the substantive crime itself. Both murder and attempted murder in Illinois are categorically violent felonies under §924(e).

Affirmed

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7^th Circuit Court of Appeals

Case Name: In Re: Jimmy John’s Overtime Litigation

Case No.: 17-1655

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

Focus: Class Action – Fair Labor Standards Violation  

Plaintiffs‐appellants brought this collective and class action lawsuit against Jimmy John’s on behalf of all assistant store managers nationwide for violations of the Fair Labor Standards Act (“FLSA”). Although the vast majority of plaintiffs work in stores owned by franchisees, they claim that Jimmy John’s is their joint employer. Two years into this litigation, plaintiffs also filed separate lawsuits against their franchisee employers in federal district courts across the country, asserting the same claims. The district court subsequently enjoined plaintiffs from pursuing their lawsuits against the franchisee employers until their claims against Jimmy John’s were resolved. We reverse.

Reversed

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7^th Circuit Court of Appeals

Case Name: ADM Alliance Nutrition, Inc., v. SGA Pharm Lab, Inc., et al.

Case No.: 16-2331; 16-2953

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

Focus: Breach of Contract

SGA Pharm Lab had supplied ADM Alliance Nutrition with a product used to make medicated animal feed. The parties ended their relationship by signing a termination agreement. After that agreement was signed, ADM came to believe that SGA had made false representations concerning the potency of the product while SGA was supplying it to ADM. ADM brought breach of contract and fraud claims against SGA and its president, and the district court concluded that ADM had released the claims. We agree. The termination agreement stated ADM released SGA and its officers from any and all claims, whether known or unknown, so by its terms the release includes claims for breach of contract and fraud. The agreement also stated that it superseded all prior understandings and that no representations were made to induce the other party to enter into the agreement other than those it contained. In this case, between sophisticated commercial parties, we conclude that judgment in favor of SGA and its president was proper.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sophie P. Toulon v. Continental Casualty Company

Case No.: 16-1510

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

Focus: Failure to State a Claim – Fraudulent Misrepresentation

Toulon now appeals from the district court’s dismissal of the Complaint. We agree with the district court that Toulon failed to state claims for fraudulent misrepresentation, because she did not identify a false statement made by Continental, or for fraudulent omission, because Continental did not owe Toulon a duty to disclose. The district court also properly dismissed Toulon’s claim for violation of the Illinois Consumer Fraud and Deceptive Practices Act (ICFA), which as an Illinois resident was the only consumer fraud statute applicable to Toulon, since she did not identify (1) a deceptive practice engaged in by Continental, (2) a material omission of Continental, or (3) an unfair practice. Finally, the district court was correct to dismiss the count alleging unjust enrichment because Toulon’s claims of fraud and statutory violation, upon which her unjust enrichment claim was based, were legally insufficient and an express contract governed the parties’ relationship.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Gregory T. Perry v. United States of America

Case No.: 15-3494

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

Focus: Sentencing Guidelines

Eight years into a lengthy prison term, petitioner Gregory T. Perry sought to invalidate his 2007 sentence for a drug offense as unconstitutional. Perry was sentenced as a career offender under the Sentencing Guidelines. Until 2016, the career offender guideline, U.S.S.G. § 4B1.2(a), used a definition of a “crime of violence” that included a “residual clause” that mirrored the “violent felony” definition in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B). In 2015, the Supreme Court struck down the statutory residual clause as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). That decision led Perry and others to raise similar vagueness challenges to sentences based on the residual clause in the guidelines. First, Perry argues that when he was sentenced in 2007, this circuit applied an erroneous and rigid proportionality test that discouraged district judges from sentencing outside the guidelines. He suggests that Gall abrogated our decision in United States v. Allan Johnson, 427 F.3d 423 (7th Cir. 2005). Next, Perry points to a separate line of our cases (decided after he was sentenced) that he reads as having prohibited district courts from disagreeing with the policy behind the career offender guideline. Because the guidelines were and remained advisory at the time of Perry’s sentencing, his vagueness challenge to the career offender guideline fails as applied at his sentencing.

Affirmed

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7^th Circuit Court of Appeals

Case Name: S.V. Gopalratinam, et al. v. Hewlett-Packard Company, et al.

Case No.: 17-1810

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

Focus: Motion to Exclude Expert – Daubert

Plaintiffs’ son tragically perished in a fire at plaintiffs’ home in June 2010. Believing that the fire was caused by a defective lithium ion battery cell from their son’s laptop, plaintiffs filed a products liability suit against separate manufacturers of the laptop, battery pack, and individual battery cells. Plaintiffs supported their causation theory solely through testimony from two expert witnesses, whom defendants later moved to exclude under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The district court granted defendants’ motions to exclude, and therefore entered summary judgment in their favor. Plaintiffs now appeal the district court’s ruling. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Robin Lanette North v. Spencer Todd Farris

Case No.: 2015AP1466

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

Focus: Evidentiary Hearing

This matter returns to this court for review after being remanded for an evidentiary hearing and additional fact finding. Spencer Todd Farris had appealed a circuit court order that he pay his former wife, Robin Lanette North, $24,681.03 for expenses relating to the college education of their daughter, Natalie, pursuant to a marital settlement agreement (MSA) entered into by Farris and North at the time of their divorce. In an order by this court filed June 27, 2016 (2016 Order), we found that the specific provision of the MSA relating to college expenses was ambiguous, and that the record was “insufficient to permit this court to resolve the parties’ dispute.” We therefore remanded the matter “to permit the circuit court to take testimony, receive evidence, and make findings about the parties’ intent” with regard to the obligations for college expenses incurred by Farris under the MSA. We retained jurisdiction of the appeal. On remand, the circuit court conducted an evidentiary hearing and made extensive and thorough findings of fact and conclusions of law, and calculated the amount it believes that Farris still owes North for Natalie’s college expenses. Upon review, we affirm those findings and conclusions, but adjust the calculations made by the remand court.

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WI Court of Appeals – District I

Case Name: Koss Corporation v. Park Bank, et al.

Case No.: 2016AP636

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

Focus: Issue of Material Fact

Over the course of about twelve years, Sujata Sachdeva embezzled approximately $34 million from her employer, Koss Corporation. After the embezzlement was discovered and Sachdeva was convicted of multiple criminal offenses, Koss sued Park Bank, the financial institution through which Sachdeva obtained a large portion of the embezzled funds. Koss’s complaint alleged Park Bank was liable for violating Wisconsin’s version of the Uniform Fiduciaries Act (UFA). See WIS. STAT. § 112.01 (2015- 16). Park Bank moved for summary judgment, asserting it could not be held liable under the UFA because there was no evidence it acted in bad faith with respect to Sachdeva’s transactions. The circuit court agreed and entered a judgment dismissing Koss’s claim against Park Bank.

On appeal, Koss argues the circuit court erred in dismissing the action on summary judgment because genuine issues of material fact exist regarding whether Park Bank acted in bad faith, as that term is used in the UFA. We disagree and conclude the undisputed material facts do not demonstrate that Park Bank acted in bad faith. We therefore affirm the judgment dismissing Koss’s claim.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Porfirio Viveros

Case No.: 2016AP1043-CR

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

Focus: Ineffective Assistance of Counsel

Porfirio Viveros appeals a judgment convicting him after a jury trial of five counts of repeated sexual assault of a child. He also appeals an order denying his motion for postconviction relief. Viveros makes three claims: (1) the circuit court should have granted his motion for postconviction discovery; (2) trial counsel was ineffective for failing to demand discovery from the State pertaining to whether any of the victims were attempting to obtain a U-Visa; and (3) he is entitled to a new trial in the interest of justice. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.N.N.

Case No.: 2016AP2102; 2016AP2103

Officials: BRASH, J.

Focus: Termination of Parental Rights

S.N.N. appeals from orders terminating her parental rights for N.L.P. and M.P.P. She contends that her plea was not knowingly, intelligently, and voluntarily made and thus she should be permitted to withdraw it. She further asserts that her trial counsel was ineffective for failing to object to testimony regarding the foster parents’ proposed intent to allow contact to continue between S.N.N. and the children after the termination of parental rights was final, and seeks to vacate the termination of parental rights orders entered in this case. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Aaron J. VanCaster

Case No.: 2016AP2298-CR

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

Focus: Ineffective Assistance of Counsel

Aaron VanCaster appeals a judgment convicting him of nine counts of possession of child pornography and an order denying his postconviction motion to withdraw his no-contest pleas. VanCaster entered the pleas after a psychologist’s report concluded there was no basis for pursuing a defense of not guilty by reason of mental disease or defect (NGI). VanCaster contends his trial attorney was ineffective for urging him to abandon the NGI defense and accept the State’s plea offer without first seeking a second opinion. We reject that argument and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jermaine Contrell Weston

Case No.: 2016AP2340-CR

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

Focus: Court Error – Hearsay Testimony

Jermaine Contrell Weston appeals from a judgment of conviction for one count of first-degree recklessly endangering safety by use of a dangerous weapon and one count of being a felon in possession of a firearm, contrary to WIS. STAT. §§ 941.30(1), 939.63(1)(b), and 941.29(2) (2013-14). Weston argues that he is entitled to a new trial because: (1) the trial court erroneously admitted hearsay testimony from an unidentified witness; (2) the admission of that hearsay testimony violated Weston’s confrontation rights; and (3) the erroneous admission of the hearsay testimony and the denial of Weston’s confrontation rights were not harmless. We affirm.

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WI Court of Appeals – District I

Case Name: City of Milwaukee Municipal Court v. Will J. Shepard

Case No.: 2017AP581

Officials: DUGAN, J

Focus: Court Error – Abuse of Discretion

Defendant Will J. Sherard appeals a circuit court order denying his motion to set aside the City of Milwaukee Municipal Court’s order for payment of the money judgments against him for building code violation fines. On appeal, Sherard contends that the Municipal Court erroneously exercised its discretion because the evidence showed that he was unable to pay the amounts as ordered and that the Municipal Court failed to consider other economic factors in Sherard’s finances.  He also asserts, in essence, that the Municipal Court erred as a matter of law because the order is based, in part, on assets that are not his; rather, they are the assets of a separate business entity, Morocco Investments, LLC.

We conclude that the Municipal Court’s denial of Sherard’s request for further extensions in the payment of the money judgments was a proper exercise of discretion. Additionally, we conclude that Sherard forfeited the other issues he raises on appeal and he has not established that the real controversy was not tried. Therefore, we affirm the circuit court’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Antonio A. Johnson

Case No.: 2016AP924-CR

Officials: GUNDRUM, J.

Focus: Sentencing Guidelines

Antonio Johnson challenges his judgment of conviction and the circuit court’s order denying his motion for postconviction relief. He contends the court erred in rejecting his request for an additional three days of sentence credit. In light of Wisconsin Supreme Court precedent, we must agree. We modify the judgment and the judgment, as modified, is affirmed. We reverse the order of the circuit court and remand this matter to the court. On remand, an amended judgment of conviction shall be entered granting Johnson a total of thirty-three days of sentence credit.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Demetrius L. Cooper

Case No.: 2016AP1099-CR

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

Focus: Motion to Suppress Evidence Denied

Demetrius L. Cooper appeals a judgment entered after a jury found him guilty of attempted first-degree intentional homicide, intimidation of a witness, and first-degree recklessly endangering safety, and an order denying his motion for postconviction relief. Before trial, Cooper unsuccessfully moved to suppress evidence seized pursuant to a search warrant, arguing that the supporting affidavit contained a materially false statement in violation of Franks v. Delaware, 438 U.S. 154 (1978). After conviction, Cooper moved for a new trial on the ground that trial counsel provided ineffective assistance at the suppression hearing. The postconviction court denied Cooper’s motion without an evidentiary hearing. Cooper challenges the circuit court’s denial of his original suppression motion and further contends that the court erred in denying his postconviction motion without an evidentiary hearing. We reject Cooper’s claims and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tousani C. Tatum, Sr.,

Case No.: 2016AP1437-CR

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

Focus: Ineffective Assistance of Counsel

Tousani Tatum, Sr. appeals from a judgment convicting him of manufacturing/delivering cocaine and from an order denying without a hearing his claim that his trial counsel was ineffective at sentencing. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Travis J. Rose

Case No.: 2016AP2257-CR

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

Focus: Motion to Suppress Evidence Denied

Travis Rose appeals from his judgment of conviction entered upon his guilty plea after the circuit court denied his motion to suppress evidence of illegal drugs found in his vehicle. He claims the evidence should have been suppressed because he was “unconstitutionally seiz[ed]” at the time the officer asked him for, and he granted, consent to search his vehicle, which search led to the discovery of the drugs. We disagree and affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Steven J. Lelinski v. Albert O. Duran, et al.

Case No.: 2016AP2459

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

Focus: Statutory Interpretation

Inmate Steven J. Lelinski, pro se, appeals an order dismissing his claims against the Department of Corrections (DOC), former DOC secretary Edward F. Wall, Oshkosh Correctional Institution (OSCI) warden Judy P. Smith, and various OSCI officials (collectively, the State defendants). One claim alleging that fellow inmate Albert O. Duran harassed, intimidated, threatened, and assaulted and battered him was allowed to proceed. We affirm.

On appeal, Lelinski seeks reversal of the order of dismissal. He first argues that the court erred when it applied qualified immunity and dismissed his state-law claims on the basis that no statutory method prescribes how to investigate an inmate complaint. The particular method may be undefined, he contends, but the State defendants’ statutory duty to protect him is clear.  He also asserts that the retaliatory actions taken against him for complaining violated his right to “freely speak, write and publish his sentiments on all subjects,” guaranteed him by article I, section 3 of the Wisconsin Constitution. We disagree.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Bobby Lopez

Case No.: 2017AP923-CR

Officials: HAGEDORN, J.

Focus: OWI – 2^nd Offense

This case concerns whether operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC) charges based on an offense occurring on July 9, 2016, can be charged as second offenses based on an earlier July 9, 2006 offense. In short, did the 2006 OWI and the 2016 alleged OWI/PAC occur “within a 10-year period” or not? See WIS. STAT. § 346.65(2)(am). We conclude they did not. Therefore, the present OWI/PAC may not be charged as a second offense.

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WI Court of Appeals – District IV

Case Name: The Segregated Account of Ambac Assurance Corporation, et al. v. Countrywide Home Loans, Inc.,

Case No.: 2015AP1493

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

Focus: Jurisdiction – Long-arm Statute

The Segregated Account of Ambac Assurance Corporation and Ambac Assurance Corporation appeal an order dismissing Ambac’s action alleging fraudulent inducement against Countrywide Home Loans, Inc. because Ambac failed to show that the circuit court has personal jurisdiction over Countrywide in this action.

We conclude that Ambac fails to carry its burden of showing that Countrywide consented to personal jurisdiction in this action by appearing in the rehabilitation proceeding. We also conclude that Ambac’s implicit concession that no injury to Ambac occurred in Wisconsin for purposes of its fraudulent inducement claim compels the conclusion that Countrywide is not subject to personal jurisdiction under Wisconsin’s long-arm statute. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Sean Dilweg, et al. v. Carlisle/Picatinny Family Housing L.P.,

Case No.: 2016AP2169

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

Focus: Court Error – Factual Findings

Carlisle/Picatinny Family Housing L.P., Fort Bliss/White Sands Missile Range Housing L.P., Fort Detrick/Walter Reed Army Medical Center Housing LLC, Stewart Hunter Housing LLC, Monterey Bay Military Housing LLC, Monterey Bay Land LLC, Meade Communities LLC, Bragg Communities LLC, Polk Communities LLC, Rucker Communities LLC, Riley Communities LLC, Fort Lee Communities LLC and Fort Leavenworth Frontier Heritage Communities, II, LLC (collectively the military housing developers or the MHPI Projects) appeal an order entered by the circuit court in the ongoing rehabilitation proceeding for the Segregated Account of Ambac Assurance Corporation. The circuit court issued the order at the request Wisconsin Insurance Commissioner (the rehabilitator), to clarify or declare the meaning of certain provisions contained in prior orders of the court. For the reasons discussed below, we affirm the circuit court’s order (the clarification order).

The MHPI projects challenge the circuit court order on three grounds: (1) that it constitutes an improper advisory opinion; (2) that it includes factual findings that were unsupported by the record and made without holding an evidentiary hearing; and (3) that its findings with regard to collateral damage are inconsistent with the facts that exist today. We address each argument in turn.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John K. Perkins

Case No.: 2016AP2179-CR

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

Focus: Sufficiency of Evidence

John Perkins appeals a criminal judgment convicting him of five counts of possession of child pornography. The issue on appeal is whether the police could properly rely upon certain evidence seized during a warrantless search of Perkins’s house to support the application for a subsequent warrant that was used to further search Perkins’s house. We conclude that the original evidence was legally obtained by consent and did not taint the warrant. Accordingly, we affirm the judgment of conviction.

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WI Court of Appeals – District IV

Case Name: JBCB, LLC, v. McKenna Berry Company, LLC,

Case No.: 2016AP2208

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

Focus: Breach of Contract – Issue of Material Fact

In 2008, JBCB, LLC purchased real estate from McKenna Berry Company, LLC. Seven years later, JBCB sued McKenna alleging that: (1) McKenna breached an agreement by failing to transfer to JBCB rights in a flowage easement at the time of the real estate purchase; (2) under theories of unjust enrichment or implied contract, McKenna owes JBCB monetary compensation for sand JBCB owned which was removed and used by McKenna; and (3) a Warranty Deed conveyed by McKenna was defective because the person who signed the Warranty Deed from McKenna to JBCB signed in his personal capacity only and not on behalf of McKenna.

The circuit court granted summary judgment to McKenna on the first and second claims, the flowage easement and sand disputes, and dismissed those claims. The circuit court did not resolve the third claim, JBCB’s claim of a defective deed. Nonetheless, the circuit court’s order also dismissed that claim. JBCB appeals and asserts there are genuine issues of material fact which preclude summary judgment on the flowage easement and sand claims. We disagree and affirm the decision of the circuit court on those claims. As to the validity of the Warranty Deed, McKenna joins JBCB in asking that we decide the issue, even though the circuit court did not. We decline to do so, reverse the circuit court’s dismissal of that claim, and remand to the circuit court for further proceedings

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Lee Chang

Case No.: 2016AP2451-CR

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel – Exculpatory Evidence Withheld

On appeal, Chang argues that: (1) trial counsel was ineffective in failing to attempt to elicit trial testimony regarding pretrial statements of Z.Y. consistent with her exculpatory trial testimony (beyond the evidence of this type that counsel did elicit, as referenced above), failing to adequately investigate evidence and witnesses who could testify to prior consistent statements, and failing to object to testimony about Z.Y.’s stay at the domestic violence shelter; 1 (2) the State withheld exculpatory evidence or failed to timely disclose exculpatory evidence; and (3) Chang is entitled to a new trial under the doctrine of plain error based on improper closing remarks by the prosecutor. For the foregoing reasons, we affirm the judgment of conviction and the circuit court’s order denying Chang’s motion for post-conviction relief.

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WI Court of Appeals – District IV

Case Name: Green Tree Servicing, LLC P/K/A Countrywide Home Loans Servicing, LP, v. Marcia M. Lorang, et al.

Case No.: 2017AP127

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Foreclosure

Marcia and James Lorang appeal an order confirming the sale of their home pursuant to a judgment of foreclosure. The Lorangs argue that the circuit court erred in not staying the sale and in confirming the sale over their objections. We reject the Lorangs’ arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Teresa James

Case No.: 2017AP226

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

Focus: Claim Preclusion

Teresa James appeals a circuit court order that dismissed her mandamus action against James Small on the ground of claim preclusion. The dispute on appeal concerns whether the prior stipulated dismissal of a case “with prejudice” qualifies as a final judgment “on the merits” such that James’ current lawsuit is barred by the doctrine of claim preclusion. We conclude that it does and affirm.

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WI Court of Appeals – District IV

Case Name: Angela L. Campbell v. Village of DeForest

Case No.: 2017AP601

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

Focus: Inverse Condemnation Claim

Angela Campbell’s property is burdened by an easement granted to the Village of DeForest for the purpose of constructing a public pedestrian and bicycle path.  When the Village constructed an elevated boardwalk to make use of the easement, Campbell brought this action claiming that she was entitled to just compensation because the Village had taken her property for public use. Campbell appeals an order of the circuit court dismissing her inverse condemnation claim against the Village. Campbell argues that the circuit court erred because the Village has taken her property without just compensation by effectively excluding her from her property without the legal right to do so. We reject Campbell’s argument and affirm.

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WI Court of Appeals – District IV

Case Name: C&B Investments v. James Murphy, et al.

Case No.: 2017AP723

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

Focus: Restrictive Covenant Enforcement

C & B Investments appeals an order that dismissed its lawsuit seeking to enforce a restrictive covenant applicable to all lots within a subdivision it had developed. The issues presented on appeal are whether a treehouse that respondents James Murphy and Rebecca Richards-Bria built on their lot qualified as a “structure” within the meaning of the covenant so as to require preapproval, or otherwise violated local ordinances that may have been incorporated into the covenant. We conclude that the treehouse constituted a structure within the meaning of the covenant, and accordingly reverse the circuit court’s order.

C & B Investments also seeks compensation for costs, expenses, and legal fees of enforcement. It is premature to decide that claim, however, because the circuit court has not yet ruled on a number of defenses and a counterclaim that were raised before it. Rather, we will remand this matter to the circuit court for further proceedings.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Michael D. Petersen

Case No.: 2017 WI 102

Focus: Disciplinary Proceedings

We review a report and recommendation of Referee William Eich approving a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Michael D. Petersen. In the stipulation, Attorney Petersen stipulated to the facts underlying the nine counts of misconduct alleged in the OLR’s complaint and joined the OLR in jointly recommending a one-year suspension of Attorney Petersen’s license to practice law in Wisconsin. The referee agreed that a one-year suspension was an appropriate sanction for Attorney Petersen’s misconduct.

Upon careful review of the matter, we uphold the referee’s findings of fact and conclusions of law and agree that a one-year suspension is an appropriate sanction. As is our normal practice, we also find it appropriate to impose the full costs of this disciplinary proceeding, which are $2,110.29 as of May 24, 2017, on Attorney Petersen. Since Attorney Petersen has already made restitution to his client, the OLR does not seek a restitution order.

Affirmed

Concur:

Dissent: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Ronald L. Brandt

Case No.: 2017AP539-D

Focus: Disciplinary Proceedings

In this disciplinary proceeding, we are asked to determine whether Attorney Ronald L. Brandt’s license to practice law in Wisconsin should be revoked, as discipline reciprocal to that imposed by the Supreme Judicial Court of Massachusetts.

After considering this matter and in view of Attorney Brandt’s failure to respond to our order to show cause, we conclude that Attorney Brandt’s license to practice law in Wisconsin should be revoked. Given that this matter has been resolved without a contest or the appointment of a referee, we do not impose any costs on Attorney Brandt.

Affirmed

Concur: ABRAHAMSON, J. concurs

Dissent:

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