Weekly Case Digests — Dec. 1-5, 2014

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Wisconsin Law Journal’s Case Digests — Dec. 1-5, 2014

CIVIL CASES

Wisconsin Court of Appeals

Civil Commitment
drug dependence

Zachary W. appeals a WIS. STAT. ch. 51 involun-tary commitment order, arguing the circuit court erroneously instructed the jury to consider multiple definitions of the term “drug.” We affirm.

2014AP955 County of Shawano v. Damien T. Plaski

DISTRICT III, Marathon County, JILL N. FALSTAD, Judge; HOOVER, P.J.

Attorneys: For Appellant: Krahn, Ellen J. For Respondent: Corbett, Scott M.

Wisconsin Court of Appeals

Civil Procedure
personal jurisdiction — default judgment — excusable neglect

Maria-Lúcia Araújo Cardoso appeals from an order of the circuit court, granting the plaintiff’s motion for default judgment and ordering a judgment of foreclosure. She contends that the circuit court: (1) erroneously exercised its discretion when it denied her request for a court-appointed attorney; (2) did not have personal jurisdiction over her; and (3) failed to consider whether Cardoso’s failure to file a timely answer amounted to “excusable neglect” before entering the default judgment order. Because Cardoso’s arguments are either entirely without merit or were not raised before the circuit court, thereby depriving us of a full factual record upon which to decide them, we affirm.

2014AP000408 Manchester Village Owners Association, Inc. v. Maria Lucia A. Cardoso

DISTRICT I, Milwaukee County, MARY M. KUHNMUENCH, Judge; Curley, P.J., Fine and Brennan, JJ.

Attorneys: For Appellant: Sperling, Michael S.; Grell, Bradley E. For Respondent: Greenberg, Martin J.; Ward, Bryan

Wisconsin Court of Appeals

Civil Procedure
Service

When serving a complaint by publication and mailing, sending the pleadings to the wrong address is a fundamental defect.

“In this case the plaintiff tried to accomplish service by publication and mailing, but when it came to the mailing step, he sent the pleadings to the wrong address. The circuit court concluded that the failure to mail to the defendant’s known address was a fundamental defect in the service of process, and we agree. ‘Close enough’ is not good enough when it comes to service of process. Our legislature prescribes strict methods for the service of process before the court will have jurisdiction over the defendant. Where the plaintiff failed to duly perform those requirements, there can be no jurisdiction. Certain minor errors within the pleadings may be technical defects, but failing to complete the physical act of mailing to the defendant’s known address is not such an error. When service depends on mailing, mailing to the wrong place is a fundamental failure of the core requirements of personal jurisdiction.”

Affirmed.

Recommended for publication in the official reports.

2013AP2615 O’Donnell v. Kaye

Dist. II, Waukesha County, Davis, J., Brown, J.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Appeal — nonfinal orders

A district court’s denial of summary judgment to a church on an employment discrimination claim is not appealable.

“The district court has not ordered a religious question submitted to the jury for decision. To the contrary, the judge promised to instruct the jury not to weigh or evaluate the Church’s doctrine regarding in vitro fertilization.1 The judge would do well to be quite explicit in these instructions. The pattern jury instructions can be adapted to the particular facts of a given case, and in light of the sensitive context here, this case is an appropriate one for customized instructions.”

“We express no opinion on the merits of the district court’s summary-judgment decision. We hold only that the Diocese has not made a persuasive case for expanding the scope of the collateral-order doctrine to cover the interlocutory decision rendered here. We do not question the importance of the interests the Diocese has asserted. But those interests will not be irreparably harmed by enforcement of the final-judgment rule. See McCarthy, 714 F.3d at 975 (explaining that ‘to be appealable as a collateral order the order must (unless reversed) wreak irreparable harm on the appellant’). Because the district court’s decision is not effectively unreviewable on an appeal from a final judgment, the collateral-order doctrine does not apply. We grant Herx’s motion and DISMISS the appeal for lack of jurisdiction.”

Motion Granted.

14-3057 Herx v. Diocese of Fort Wayne-South Bend, Inc.

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Sykes, J.

U.S. Court of Appeals For the Seventh Circuit

Civil Procedure
Jurisdiction

Where it is unclear whether two corporations are managed as separate entities, the district court erred in granting summary judgment to the defendant on the ground that it was the wrong party.

“What remains is Scheck Mechanical’s contention that it was entitled to summary judgment because it never employed Parker. We disagree, at least on the present summary judgment record. First, it may not matter which company employed Parker if, as Parker asserts, the line between the different Scheck companies is blurred. A defendant may be liable under Title VII if, by ignoring corporate formalities, its actions cannot be separated from an affiliate that employed the plaintiff. See Worth v. Tyer, 276 F.3d 249, 259–60 (7th Cir. 2001); Papa v. Katy Indus., Inc., 166 F.3d 937, 941 (7th Cir. 1999). Parker does not have overwhelming evidentiary sup-port for the proposition that the line between the two companies is blurred. Scheck Mechanical moved for summary judgment before he had conducted discovery. But he does have some evidence, including the representation on Scheck Industries’ own website that the various Scheck entities are all one company with one ‘corporate headquarters.’ See Contact Us, Scheck Industries, http://www.goscheck.com/”

Reversed and Remanded.

13-3693 Parker v. Scheck Mechanical Corp.

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Hamilton, J.

U.S. Court of Appeals For the Seventh Circuit

Consumer Protection
Lemon Law

A seller’s acceptance of responsibility for paying off a buyer’s lien is not sufficient to comply with the Lemon Law.

“PACCAR contends that it carried that burden by timely tendering the $114,043.61 check to JM Leasing and accepting responsibility for paying off (but not actually paying off) JM Leasing’s lien. We do not believe that the Wisconsin Supreme Court would agree. That court begins and ends its statutory analyses with the text of a statute when the plain meaning is clear. Tammi v. Porsche Cars N. Am., Inc., 768 N.W.2d 783, 791 (Wis. 2009). The plain text of the Lemon Law obligates manufacturers like PACCAR to ‘refund to the consumer and to any holder of a perfected security interest in the consumer’s motor vehicle, as their interest may appear, the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.’ Wis. Stat. § 218.0171(2)(b)2.b. (emphases added). This language requires manufacturers to actually refund the money due within 30 days, not simply to agree to do so. Moreover, it requires them to refund the money directly to the holder of the security interest rather than leaving the consumer ‘to sort it out with the lender.’ Marquez v. Mercedes-Benz USA, LLC, 751 N.W.2d 859, 862–63 (Wis. Ct. App. 2008); cf. Estate of Riley ex rel. Riley v. Ford Motor Co., 635 N.W.2d 635, 638 (Wis. Ct. App. 2001) (‘[D]elivery of a refund check to a dealership’s sales manager is not the equivalent of a timely delivery of a refund check to the consumer.’). PACCAR points to Herzberg v. Ford Motor Company, 626 N.W.2d 67, 72 (Wis. Ct. App. 2001), for the proposition that a party that ‘stands ready’ to comply with its obligations under the Lemon Law satisfies its statutory duties. In Herzberg, however, the party that ‘stood ready’ to comply with its obligations was the consumer. In light of the Wisconsin Supreme Court’s determination that the manufacturer must bear the burden of providing the refund, we cannot conclude that a manufacturer’s assurance that it will do so is sufficient to fulfill its obligation under the Lemon Law. See Church v. Chrysler Corp., 585 N.W.2d 685, 688 (Wis. Ct. App. 1998) (stating that the Lemon Law ‘clearly requires that the manufacturer issue a refund within thirty days of the consumer’s offer to transfer title’).”

Affirmed.

13-3773 James Michael Leasing Co, LLC, v. PACCAR, Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Dow, J.

U.S. Court of Appeals For the Seventh Circuit

Employment
FMLA — race discrimination

Where an employee was not meeting her employer’s reasonable expectations, summary judgment was properly granted to her employer on her FMLA, race discrimination, and retaliation claims.

“We now affirm the district court’s judgment. Ms. Taylor- Novotny cannot succeed on her ADA discrimination claim because she did not establish that she was disabled within the meaning of the ADA and because she was not meeting Health Alliance’s legitimate expectations for punctuality and accountability. Her failure to meet Health Alliance’s legitimate expectations also forecloses her race discrimination claim. She cannot succeed on her ADA failure-to-accommodate claim because she did not establish that the additional accommodation that she sought from Health Alliance was reasonable. Further, the evidence that she offers for her ADA retaliation claim is insufficient to form a convincing mosaic suggesting that Health Alliance retaliated against her because she sought accommodations for her multiple sclerosis. Finally, her FMLA interference claim must fail because Health Alliance never denied Ms. Taylor-Novotny FMLA leave.”

Affirmed.

13-3652 Taylor-Novotny v. Health Alliance Medical Plans

Appeal from the United States District Court for the Central District of Illinois, Shadid, J., Ripple, J.

U.S. Court of Appeals For the Seventh Circuit

Employment
MPPAA — withdrawal liability

Where an employer who withdrew from a multiemployer pension plan did not notify the AAA of its request for arbitration, the request is invalid.

“If Allega had sent a timely demand to the AAA, together with a check for $650, and the AAA had refused to proceed with arbitration, then we might have to decide whether an amendment of the fee schedule requires the PBGC’s approval. But that’s not what happened. And because Allega did not make a timely demand for arbitration, questions about venue and legal fees never arose. They could have been reviewed by the district court on a petition to review an arbitrator’s final decision; any dispute about the AAA’s fees could have been reviewed the same way. But Allega did not take the essential first step: a timely demand for arbitration sent to the AAA.”

Affirmed.

14-2512 Central States, Southeast & Southwest Areas Pension Fund v. Allega Concrete Corp.

Appeal from the United States District Court for the Northern District of Illinois, Tharp, J., Easterbrook, J.

U.S. Court of Appeals For the Seventh Circuit

False Claims Act
Sufficiency of the complaint

Where a relator alleged no facts from which it could be determined who defrauded the government, the relator’s qui tam action was properly dismissed.

“The complaint alleges two occasions on which the defendant pharmacy billed Medicare or Medicaid for drugs that patients never picked up. Grenadyor alleges that even after it became apparent that they would never pick up the pills, the pharmacy failed to ‘reverse[]’ the charges for the pills— that is, erase its claim for reimbursement of all or part of the charges. This adequately pleads that the pharmacy submitted claims to Medicare and Medicaid for reimbursement of drugs that customers failed to take home, but not that the pharmacy failed to reverse the charges and did so with the intention of defrauding the government. Thus, for example, the complaint alleges that ‘at the Bogacheks’ orders and direction Kharlamova [the manager of the Ukrainian Village Pharmacy] directed that the charges for the antihistamine and amoxicillin not be reversed. Accordingly, neither Kharlamova nor the pharmacy technicians working at her direction (Irina Milovanova, Oleksandra Polovinko, and Nadia Gnopko) ever reversed the charges for the antihistamine or amoxicillin, even though Patient H never received them.’ This allegation is insufficient because there is nothing to indicate when Kharlamova directed that the charges not be reversed, whether Grenadyor was present, and if not how he learned that the charges were never reversed. These are all things that Grenadyor, if he isn’t fabricating the incident, would know without having to conduct discovery. And if he can’t allege how he learned that the charges had not been reversed, what basis has he for alleging they were never reversed? ‘I know they were never reversed, but I don’t know how I know they were never reversed,’ is nonsense.”

Affirmed in part, and Reversed in part.

13-3383 U.S. ex rel. Grenadyor v. Ukrainian Village Pharmacy, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Posner, J.

Wisconsin Court of Appeals

Municipalities
Villages — incorporation

There is no language in the incorporation statutory scheme set forth in Chapter 66 that requires two towns with territory that is the subject of an incorporation petition to enter into a boundary agreement in order to meet the minimum area requirement for a village.

“The Town argues that the circuit court erroneously concluded that the four-square-mile minimum area requirement was met, as set forth in WIS. STAT. § 66.0205(5), and consequently the court erred in denying the Town’s motion to dismiss the petition. As to this issue, the Town argues that the minimum area requirement was not met here because the petition combined territory from the two towns, and the area sought to be incorporated from each town, standing alone, could not satisfy the requirement. The Town argues that the only way by which the requirement could be met is by joining territory from the two towns, by way of a boundary agreement, and here no such agreement exists. The Town, however, provides no support for its assertion that there needed to be a boundary agreement.”

“As we have indicated, it is undisputed that the entire territory sought to be incorporated consists of more than four square miles, but that the area sought to be incorporated from each town, standing alone, is less than four square miles. Thus, in order to meet the minimum area requirement here, it is necessary to count the areas sought to be incorporated from both towns together.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2012AP919 Walt v. City of Brookfield

Dist. II, Waukesha County, Hassin, J., Higginbotham, J.

Wisconsin Court of Appeals

Municipalities
transient merchant ordinances

Damien Plaski was convicted of violating a Shawano County ordinance that prohibits a transient merchant from engaging in sales in the county without first registering with the county clerk. Plaski argues the County failed to meets its burden to prove he was a transient merchant. We agree and reverse.

2014AP000976 County of Shawano v. Damien T. Plaski

DISTRICT III, Shawano County, WILLIAM F. KUSSEL, JR., Judge; STARK, J.

Attorneys: For Appellant: Connell, James B. For Respondent: White, Catharine D.; Niemi, Scott E.

CRIMINAL CASES

Wisconsin Court of Appeals

Criminal Procedure
expungement

APPEAL from an order of the circuit court for Dodge County: STEVEN G. BAUER, Judge. Affirmed.

Andrew Geurts appeals an order of the circuit court dismissing his postjudgment motion requesting that the circuit court expunge from court records all references to a case in which Geurts entered a plea of no contest to disorderly conduct, after Geurts successfully fulfilled his obligations under a deferred prosecution agreement with the State to resolve the charge. The State fulfilled its side of the bargain by dismissing the disorderly conduct charge, but court records reflecting the charge, the no contest plea, and resolution of the case remain publicly available. The circuit court did not reach the question of whether the court would exercise its discretion to expunge Geurts’s record, because the court concluded that Geurts was not eligible for expunction under the expunction statute, Wis. Stat. § 973.015, and that the court lacked inherent or equitable authority to expunge his record under the facts here. Geurts appeals. For the following reasons, I affirm.

2014AP001520-CR State v. Andrew R. Geurts

DISTRICT IV, Dodge County; STEVEN G. BAUER, Judge. Affirmed. BLANCHARD, P.J

Attorneys: For Appellant: Kennedy, Robert A., Jr. For Respondent: Weber, Gregory M.; Sempf, James T.

Wisconsin Supreme Court

Criminal Procedure
Self-incrimination

Compelling a defendant to show the jury his platinum teeth did not violate his right against self-incrimination.

“We hold that the evidence of his platinum teeth was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant’s mind. Teeth do not do so. We also hold that Gonzalez’s teeth are material to identification because they are probative of Gonzalez’s identity, which was a matter at issue. This case therefore fits squarely into the long-recognized category of cases involving the body as evidence and does not offend constitutional principles against self-incrimination.”

Affirmed.

2012AP1818-CR State v. Gonzalez

Crooks, J.

Wisconsin Court of Appeals

Criminal Procedure
discovery

APPEALS from judgments of the circuit court for Milwaukee County: ELLEN R. BROSTROM, Judge. Affirmed.

Elan Joe Johnson appeals judgments of conviction entered after a jury found him guilty of the misdemeanor offenses of battery and bail jumping and the felony offenses of substantial battery and false imprisonment. He contends that the State violated its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963) and WIS. STAT. § 971.23 (2011-12). We disagree and affirm.

2013AP001626-CR State v. Elan Joe Johnson

DISTRICT I, Milwaukee County, ELLEN R. BROSTROM, Judge; Fine, Kessler and Brennan, JJ., PER CURIAM

Attorneys: For Appellant: Betthauser, Charles David For Respondent: Loebel, Karen A.; Winter, Tiffany M.

Wisconsin Court of Appeals

Criminal Procedure
ineffective assistance

APPEAL from a judgment and an order of the circuit court for Ozaukee County: THOMAS R. WOLFGRAM and JOSEPH W. VOILAND, Judges. Affirmed.

Affirmed.

2014AP000073-CR State v. Kevin M. Bahr

DISTRICT II, Ozaukee County, THOMAS R. WOLFGRAM and JOSEPH W. VOILAND, Judges; Brown, C.J., Neubauer, P.J., and Reilly, J.

Attorneys: For Appellant: Boyle, Gerald P. For Respondent: Weinstein, Warren D.; Gerol, Adam Y.

U.S. Court of Appeals For the Seventh Circuit

Evidence
Attorney-client privilege

A lawyer’s communication of the defendant’s surrender date is not a privileged communication.

“We agree with the reasoning of our colleagues in these circuits and conclude that admitting the portion of Anderson’s letter and his testimony authenticating it did not invade the attorney-client privilege. Anderson merely forwarded from the court to his client the public information in a court order. The fact that Anderson was Bey’s lawyer did not transform the transmission of this information into confidential legal advice.”

Affirmed.

13-2810 U.S. v. Bey

Appeal from the United States District Court for the Northern District of Illinois, Coleman, J., Hamilton, J.

U.S. Court of Appeals For the Seventh Circuit

Evidence
Propensity evidence — unfair prejudice

Even if it was error to admit, in a prosecution for felon in possession of a firearm, evidence that the defendant had a firearm tattoo, the error does not require reversal.

“We afford the district court great deference when it comes to the admissibility of evidence for good reason. Unlike the district court, we are not in a position to observe the trial proceedings first-hand and gauge the impact of the evidence in the context of the proceedings as a whole. United States v. Boone, 628 F.3d 927, 932 (7th Cir. 2010). Instead, we must rely on the record on appeal. Neither of the parties’ briefs nor the record indicate where on Boswell’s neck the tattoo was located, how big it was, how identifiable it was, where the jury sits in the particular Indiana district court relative to the witness stand or the defense table, etc. At oral argument, the government did indicate that Boswell was wearing an open-collar shirt at trial, but counsel could not say with any certainty whether some or all of the jurors could identify the firearm tattoo from the jury box. At any rate, the admissibility of the fact that the tattoo existed under the circumstances of this case was not error, clear or otherwise.”

Affirmed.

13-3641 U.S. v. Boswell

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Bauer, J.

Wisconsin Court of Appeals

Juveniles
TPR — sufficiency of the evidence

Faizel K. appeals the orders terminating his parental rights to his sons Mohammed K. and Robeul K. He argues that there was insufficient evidence at trial to support the trial court’s determination that he was unfit. This court disagrees and affirms.

Affirmed.

2014AP2035 & 2014AP2036 State v. Faizel K.

DISTRICT I, Milwaukee County, JOHN J. DIMOTTO, Judge.; CURLEY, P.J.

Attorneys: For Appellant: Bates, Gregory For Respondent: Puthukulam, Matt

Wisconsin Court of Appeals

Sentencing
inaccurate information

APPEAL from a judgment and an order of the circuit court for Brown County: TAMMY JO HOCK, Judge. Reversed and cause remanded for further proceedings.

Austin Singer appeals a judgment of conviction for delivery of heroin and an order denying his motion for postconviction relief. Singer argues the circuit court erroneously exercised its sentencing discretion and relied on inaccurate information at sentencing because an aggravating factor was not supported by the evidence. We agree the court erroneously exercised its sentencing discretion. We therefore reverse the judgment and order and remand for resentencing.

2014AP000281-CR State v. Austin J. Singer

DISTRICT III, Brown County, TAMMY JO HOCK, Judge; Hoover, P.J., Stark and Hruz, JJ.

Attorneys: For Appellant: Thomas, Chad R. For Respondent: Lasee, David L.; Remington, Christine A.

Wisconsin Court of Appeals

Sexually Violent Persons
Discharge

The clear and convincing evidence standard satisfies due process at a Chapter 980 discharge trial.

“Talley’s argument to the contrary seems to be that the Wisconsin legislature upped the due process ante for discharge decisions by imposing a higher burden than what Addington requires for initial commitments. This argument has it backwards. If anything, the case law supports the opposite conclusion, namely, that the higher standard at initial commitments decreases the need for more stringent procedural protections in subsequent proceedings. See Post, 197 Wis. 2d at 326 (‘The increased likelihood of accurate initial 980 commitment decisions [given all of the procedural protections] reduces the need for some of the recommitment procedures that act as a safety net in chapter 51.’); see also West, 336 Wis. 2d 578, ¶¶83, 85-86, 89 (suggesting that due process allows placing the burden of proof on the committed individual who is petitioning for supervised release under WIS. STAT. ch. 980, in part because of the heightened procedural protections the individual receives at the initial commitment stage).”

Affirmed.

Recommended for publication in the official reports.

2013AP492 State v. Talley

Dist. IV, Dane County, O’Brien, Foust, JJ., Lundsten, J.

Wisconsin Court of Appeals

Sexually Violent Persons
ineffective assistance

John Bradley appeals a judgment committing him as a sexually violent person and an order denying his postdisposition motion, in which he alleged ineffective assistance of trial counsel. Bradley contends his counsel was ineffective for failing to object to hearsay consisting of quotes attributed to two confidential informants whose accusations led to a Department of Corrections (DOC) conduct report against him. Because we conclude that Bradley established neither deficient performance nor prejudice from his counsel’s failure to object, we affirm the judgment and order.

2014AP000264 State v. John G. Bradley

DISTRICT III, Brown County, DONALD R. ZUIDMULDER, Judge; Hoover, P.J., Stark and Hruz, JJ.

Attorneys: For Appellant: FitzGerald, Patricia A. For Respondent: Lasee, David L.; Johnson-Karp, Gabe