By: WISCONSIN LAW JOURNAL STAFF//July 24, 2015//
Civil
7th Circuit Court of Appeals
Officials: EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
Racial Discrimination – Impermissible Retaliation
No. 14-2707
Frank Burks v. Union Pacific Railroad Company
Where appellants claim fell short for failure to provide evidence that he was prevented from taking an examination necessary for promotion.
“We cannot draw the conclusion that Burks was “given the run-around,” for the following reasons. First, Burks has not provided any evidence that anyone—Storbeck or any other individual—communicated to Burks that Stearns was setting up the SCBT for him. In order for Kachnowski’s statement to carry any retaliatory force, Burks must show that it prevented him from following the proper application procedures. Burks has not provided any facts to show he was even aware of Kachnowski’s statement—let alone that he acted upon it. Second, Burks has provided no evidence that Kachnowski had any knowledge of Burks’s prior race- discrimination complaint. Without that knowledge, Kachnowski would have had no basis for retaliatory behavior. And third, in order to impute a retaliatory motive to the other two members of the communication—Storbeck and Gutmann—one would have to believe that the email communication constitutes evidence of a silent conspiracy to mislead Burks into believing that the SCBT was being set up for him.
Affirmed
Administrative Law
7th Circuit Court of Appeals
Officials: BAUER, MANION, and HAMILTON, Circuit Judges
Immigration – Removal Proceedings
No. 14-2935
Eugene O. Joseph v. Loretta E. Lynch
Where appellant petition for review of one of several removal orders is dismissed for failure to raise any legal or constitutional questions to the court.
“Until this petition for review, however, Joseph characterized the petition’s approval simply as “new evidence.” We are skeptical about the weight this approval might warrant, since it is the product of only an ex parte review of documents, in this case written affidavits from Joseph and his brother. We need not reach a conclusion about this issue, however, because Joseph never argued to the Board that approval of the Form I-360 constituted an “extraordinary circumstance.” Joseph cannot contend for the first time in this court that the Board overlooked evidence offered in support of an argument he never made. See Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014); Cruz-Moyaho v. Holder, 703 F.3d 991, 998 (7th Cir. 2012). As it pertains to our jurisdiction, Joseph cannot make a colorable claim of legal error based on his own omission. Cruz-Moyaho, 703 F.3d at 998.”
Dismissed
Civil
7th Circuit Court of Appeals
Officials: EASTERBROOK, WILLIAMS, and HAMILTON, Circuit Judges.
Breach of Contract – Employment Agreement – Restrictive Covenant
No. 14-2132 & No. 14-2243
Instant Technology LLC v. Elizabeth DeFazio
Where Defendant admits to breaching a restrictive covenant in an employment agreement but covenant is held unreasonable and unenforceable under Illinois law for failure to serve a legitimate business interest.
“Tech-staffing firms do not build relationships with clients that would justify restricting their employees from setting out on their own. In fact, the court found, clients show barely any loyalty to the firms they use; larger organizations routinely request service from five to ten firms at once, and a firm can expect compensation only a tenth of the time it recommends a candidate for a position. 40 F. Supp. 3d at 1004, 1012. Employees of tech staffing firms also aren’t exposed to important private information. Instant did keep data about qualified IT workers and maintained lists of candidates likely to hit the market soon. But (as we’ve already discussed) the court found that anybody can access most of that information with little work, and, given that most good candidates find jobs quickly, lists of active candidates have short shelf lives. Id. at 1012–13. Instant also could not rely on its interest in a “stable workforce” to justify a covenant not to recruit. Its workforce was never stable; 77% of the people who worked there two years before the trial left in the interim. Id. at 1013–14.”
Affirmed
Civil
7th Circuit Court of Appeals
Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges
Wrongful Eviction – False Arrest – Probable Cause
14-1269
Dzevad Hurem v. Nickolas Tavares
Where appellant claims for false arrest fell short for failure to provide documentation proving he was legally entitled to reside on the property and flawed attempt to connect defendant-respondent’s actions to violations of Illinois Forcible Entry and Detainer Act.
“The situation before the officers who responded on January 7 provided sufficient information for them reasonably to believe that Hurem had committed criminal trespass. They were confronted with conflicting stories—one from Hurem that he legitimately lived in the apartment and paid rent, the other from the Quadris to the contrary. Nothing prevented them from deciding to believe the Quadris. Officers may rely upon information that a reasonably credible putative witness or victim provides in deciding to make an arrest, even if the suspect says otherwise. See Williamson v. Curran, 714 F.3d 432, 441 (7th Cir. 2013) (collecting cases). Although Hurem had a piece of paper with Moshim’s phone number on it, that is the sole document he presented to show that he was legally renting the apartment. He had no lease, no mail in his name showing the address of the apartment, and no person who could confirm his account. Even had there been mail, all that would have shown would be longer-term occupancy; it would have said little about whether that occupancy was authorized. The fact that he had keys to the apartment and claimed that the furniture was his did not automatically disqualify him as an unauthorized squatter. The Quadris, on the other hand, came to the apartment with a property agent and a locksmith and presented the officers with proof that they owned the apartment. They told the officers they had not rented it to Hurem.”
Affirmed
Civil
7th Circuit Court of Appeals
Officials: WOOD,Chief Judge, and FLAUM and MANION, Circuit Judges.
5th Amendment Violation
14-2254
Jimmy Hinkle v. Rick White
Where the Due Process Clause of the Constitution does not protect an individual against defamation.
“Reading the facts in the light most favorable to Hinkle, the defendants defamed him—horribly so. But the Due Process Clause of the Constitution does not provide a remedy for defamation, even of the worst kind. Rather, to establish his due process claim, Hinkle needed to show a liberty interest with which the defendants interfered. While there is a liberty interest in following one’s trade or profession, the government does not deprive a plaintiff of such an interest by defamation alone. The defamation must combine with an alteration or removal of a legal status. Hinkle did not show any alteration of his legal status and thus cannot succeed on his due process claim. Accordingly, the district court properly granted the defendants summary judgment. We AFFIRM.”
Affirmed
Civil
7th Circuit Court of Appeals
Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
Foreclosure – Judicial Sale – Appellate Jurisdiction
No.13-1017
Where circuit court judgment was not appealable for lack of appellate jurisdiction due to circuit court noting that it “would need to hold a hearing to confirm the sale.”
This is one of the flood of mortgage foreclosure cases that hit the country after the 2008 economic downturn. Before we can say anything about its merits, however, we must decide whether an appealable final judgment is before us. That question turns out to be more complicated than usual, given the many steps that must take place before the foreclosure process is complete. Here, the case has reached the point where the bank seeking to fore‐ close has secured a judgment of foreclosure and an order of sale pursuant to Illinois law. The district court declared that its judgment was “final,” but at the same time, it acknowledged that the public judicial sale could take place only after certain additional steps were completed, including the expiration of the statutory reinstatement and redemption periods to which the mortgagor was entitled under Illinois law. The court also noted that it would need to hold a hearing to con‐ firm the sale (thereby allowing it to go to closing) upon a party’s motion, and at such a hearing it could decide not to confirm the sale if, among other things, “justice was … not done.””
Dismissed
Dissenting: HAMILTON, Circuit Judge,
Civil
7th Circuit Court of Appeals
Officials: WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.
Immigration – Removal Proceedings
14-13-3767
Parashu Giri v. Lorette E. Lynch
Where foreign citizen conditional permanent residency revoked for admitting necessary for removability.
“Although Parashu denied that he is removable, he admitted the key facts in the notice to appear that provided the basis for removability. Specifically, Parashu admitted that he is not a U.S. citizen, that he is a citizen of Nepal, that he obtained conditional permanent residence status in July 2001, and that his status was terminated. These admissions have the effect of withdrawing the issues from controversy. See Selimi v. I.N.S., 312 F.3d 854, 860 (7th Cir. 2002). By admitting these facts, Parashu waived any objection to the IJ’s finding of removability. Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir. 2006). Therefore, the immigration court did not err by find‐ ing that Parashu conceded removability and finding him removable.”
Petition for Review Denied
7th Circuit – CRIMINAL
Criminal
7th Circuit Court of Appeals
Officials: FLAUM, KANNE, and SYKES, Circuit Judges.
Discovery – Government Disclosure
No. 14-3602
United States of America v. Joshua R. Mackin
Where government’s failure to produce correct and complete copies of discovery constituted prejudice and grounds to vacate conviction for possession of a firearm.
“Adequate preparation of a defense includes the ability to intelligently weigh one’s plea options. The denial of that opportunity here constituted prejudice. See United States v. Muniz-Jaquez, 718 F.3d 1180 (9th Cir. 2013) (“A defendant who knows that the government has evidence that renders his planned defense useless can alter his trial strategy. Or he can seek a plea agreement instead of going to trial.”); Lee, 573 F.3d at 165 (“Lee might have chosen to enter into plea negotiations with the Government if he had accurate information about the strength of its case.”); United States v. Alvarez, 987 F.2d 77, 85 (1st Cir. 1993) (finding prejudice where defendant was “deprived of opportunity to design an intelligent … plea strategy”); United States v. Pascual, 606 F.2d 561, 565 (5th Cir. 1979) (“It would be hard to make an argument with any degree of plausibility that the use of this [evidence] without prior production did not seriously prejudice the defendants in exercising their option to plead not guilty.”); see also Lafler v. Cooper, 132 S.Ct. 1376, 1381 (2012) (stating that “criminal justice today is for the most part a system of pleas, not a system of trials”).”
Vacated and Remanded
Criminal
7th Circuit Court of Appeals
Officials: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
Indictment Dismissal – Petition for Rehearing
No. 14-1124
United States of America v. Paul Davis
If a discovery order is proper, Section 3731 of the Criminal Appeals Act (18 U.S.C. Section 3731) grants the court the power to decide whether an indictment was properly dismissed.
“Defendants insist that United States v. Clay, 481 F.2d 133 (7th Cir. 1973) (Stevens, J.), commits this court to a different path. Yet in Clay the court held that §3731 allows an appeal from an order dismissing an indictment without prejudice. Along the way, Clay remarked that, despite the district court’s choice of label, the order was “final” in the sense that the dispute would not recur. Defendants read that as a holding that if a dispute can recur—as this discovery dispute could recur if another grand jury returned another indictment—then an appeal is forbidden. This reads too much into Clay. Saying “if conclusive, then appealable” (as Clay did) differs from saying “only if conclusive, then appealable.” Clay did not have a non-final order and could not announce a holding about that subject—nor did it purport to do so.”
Reversed and Remanded
Criminal
7th Circuit Court of Appeals
Officials: BAUER, MANION, and HAMILTON, Circuit Judges.
Ineffective Assistance of Counsel – Right to Fair Trial
14-1164
Cory Welch V. Randall Hepp
Where overwhelming evidence against appellant, and failure to make a showing of prejudice to his case trivialized admission of statements referencing appellants other criminal charges into evidence, ultimately trumping his claim for ineffective assistance of counsel and violations of right to a fair trial.
“The record supports the state court’s application of Strickland and its conclusion that no prejudice resulted from any error. The Wisconsin appellate court considered the substantial quantity and quality of the evidence against Welch, including the victims’ testimony establishing a clear modus operandi, Welch’s flight from law enforcement, his accomplices’ testimony identifying him as a participant in multiple robberies, the DNA found on the ski masks, and the duffel bag found in “the Moneymaker,” not to mention the existence and name of “the Moneymaker” itself. We also cannot overlook the victims’ testimony as to the robbers’ heights, weights, and skin tones even if the victims could not identify faces. See, e.g., United States v. Birk, 453 F.3d 893, 899 (7th Cir. 2006) (no prejudice from counsel’s failure to object to improper character evidence when evidence against defendant was overwhelming); Cooper v. United States, 378 F.3d 638, 642 (7th Cir. 2004) (no prejudice when counsel failed to object to improper evidence where evidence of guilt was strong).”
Affirmed
Criminal
7th Circuit court of Appeals.
Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and SPRINGMANN, District Judge
Double Jeopardy – Motion to Dismiss
14-3332
United States of America v. Joseph Faulkner
Appellant double jeopardy argument fails for lack of showing that charges to which he pled and was found guilty of were identical.
“Faulkner overstates the overlap between the two cases. Counts II and III of the 2013 indictment relate to a specific incident of violent conduct that took place on January 15, 2010, but the judge made no reference to this particular episode at the sentencing hearing. Nevertheless, even if the conduct were identical, Faulkner’s claim suffers from a more fundamental problem. The Supreme Court has held that the “use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.” Witte, 515 U.S. at 399. Thus, for purposes of the Double Jeopardy Clause, any use the judge made of evidence of Faulkner’s involvement with controlled substances, gangs, and violence did not constitute “punishment” for that conduct, and thus a later conviction on the basis of that conduct does not violate the Clause”
Affirmed
Criminal
7th Circuit Court of Appeals
Officials: POSNER, KANNE, and SYKES, Circuit Judges
Sentencing Guidelines – Child Pornography
14-2557
United States of America v. Jason Nicoson
Even though appellant did not directly engage in activity explicitly encompassed in 18 U.S.C. §2251(a), his conduct was consistent with the notion that he “sought out minors to engage in sexually explicit conduct for the purpose of producing the live type of visual depiction that gratified his sexual tastes.
“An abiding puzzle is why he was content to take still images of pornographic videos displayed on his computer screen; his webcam could take videos, which could have been transmitted to his computer and thus be available to him to watch whenever he wanted. But it’s enough that there is a basis for a reasonable inference that he solicited the live performance that he photographed with his webcam. He unquestionably sought child‐pornography videos from his chat‐room cronies, and that seeking could be expected to in‐ duce one or more of the cronies to arrange for a live performance and beam it to him, in which event he would be the principal in the solicitation of the performing girl, and the crony his agent. His possession of the recording (in the form of the still photos) of a live performance was evidence that he had sought “by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” It’s true that the government’s attempt to prove, from blurs in the still photos that the webcam took and transmit‐ ted to the defendant’s computer, that the computer screen was indeed exhibiting a live feed was weak. But it is difficult to see why he would have been taking still photos of a video that he had downloaded if it was not a live feed and there‐ fore a video that he could watch on his computer at any time. And it is undeniable from transcripts of his conversations in the chat rooms that he indeed sought minors to en‐ gage in sexually explicit conduct for the purpose of producing the live type of visual depiction that gratified his sexual tastes. That made him subject to the section 2G2.1 guideline regardless of whether his webcam recorded a live performance exhibited on his computer screen.”
Affirmed
Civil
Supreme Court of Wisconsin
Disciplinary Proceedings – Reinstatement
1989AP1848-D
Office of Lawyer Regulation v. Daniel W. Linehan
Where attorney’s license is reinstated with conditions due to medical incapacity even though voluntary petition for revocation made no explicit mention of medical incapacity
“We agree with the referee that, although this court’s cursory 1989 order revoking Attorney Linehan’s license to practice law by consent did not explicitly state that the revocation was due to a medical incapacity, the petition for voluntary revocation clearly identified medical incapacity as the primary driving force behind Attorney Linehan’s decision to relinquish his law license. Accordingly, we deem it appropriate to treat his petition for reinstatement of his license as having been filed under SCR 22.36. We further conclude that the referee’s findings support a determination that Attorney Linehan has met his burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence that his medical incapacity is removed and that he is fit to resume the practice of law. We agree that conditions on Attorney Linehan’s license to practice law are necessary to ensure that he continues to receive appropriate treatment. Finally, we deem it appropriate to require Attorney Linehan to pay the full costs of this proceeding, $15,714.12.”
Per Curiam.
Civil
Supreme Court of Wisconsin
Disciplinary Proceedings – Reinstatement
1997AP3862-D
1996AP3390-D
Board of Attorneys Professional Responsibility/Office of Lawyer Regulation v. Nancy A Schlieve
Petition for reinstatement denied even though attorney’s previous medical incapacity of alcoholism has been removed.
“While the referee said he was satisfied that the medical incapacity of alcoholism has been removed, the referee said that, based on her interactions with WisLAP, two positive drug screens showing codeine in her system, and her inability to complete sustained monitoring for a period of at least 12 months, there was no objective verification from WisLAP that Attorney Schlieve does not still suffer from a medical incapacity. Moreover, the referee concluded that Attorney Schlieve failed to sustain her burden to prove by clear, satisfactory, and convincing evidence that she is currently fit to resume the practice of law within the meaning of SCR 22.36(6).”
Per Curiam.
Dissenting: ABRAHAMSON, J., dissents. (Opinion Filed.)
Civil
Supreme Court of Wisconsin
Disciplinary Proceedings – License Suspension
2013AP1619-D
Office of Lawyer Regulation v. Paul A. Strouse
Where attorney with three previous public reprimands for professional misconduct receives sixty day suspension for continuing “pattern of disregard of supreme court rule requirements.”
“While the misconduct committed in this matter is not identical, we observe a continuing pattern of disregard of supreme court rule requirements. Representation anticipated to exceed $1,000 requires a written fee communication. See SCR 20:1.5. Unilateral changes to fees charged to clients certainly require more than a single line on an invoice. We note, with some concern, repeated discrepancies between disclosures on bankruptcy filings and invoices submitted to clients, a factor that adds to client confusion. As the referee observed, “by failing to accept responsibility for his actions and attempting to shift the blame to others for the poor handling of these matters, Attorney Strouse demonstrates that he lacks both remorse and insight into the impact of his repeated violations on his clients and other third parties.””
Per Curiam
BRADLEY, J. did not participate.
Civil
Supreme Court of Wisconsin
Disciplinary Proceedings – License Suspension
2014AP2578-D
Office of Lawyer Regulation v. Joseph J. Kaupie
Attorney with no prior disciplinary history fails to provide documents and communicate with client’s successive counsel and fails to respond to multiple inquiries from OLR regarding pending investigation ultimately leading to five month suspension.
“As the referee observed, abandonment of clients, especially those who are vulnerable due to incarceration and indigency, is a serious matter and Attorney Kaupie’s cooperation with the ensuing investigation was “abysmal.” The referee was mindful, however, that Attorney Kaupie had no prior disciplinary history and that Attorney Kaupie acknowledged complete culpability for his misconduct.”
Per Curiam.
Civil
Supreme Court of Wisconsin
Illegal Campaigning Activity – Statutory Interpretation – Supervisory Writ Petition
2013AP296-OA, 2014AP417-W through 2014AP421-W, 2013AP2504-W through 2013AP508-W
Three Unnamed Petitioners v. Gregory A. Peterson
Francis D. Schmitz v. Honorable Gregory A. Peterson
Investigation led by special prosecutor dismissed for lack of factual or legal support. Court defines “political purposes” as construed in Wis. Stat. §11.01(16). Reserve Judge’s accepting appointment as reserve judge, appointing a special prosecutor and convening a multi-county John Doe proceeding not held to violate plain legal duty.
“To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. All Unnamed Movants are relieved of any duty to cooperate further with the investigation.”
“Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and although the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent preconditions for a supervisory writ.10 Put another way, were we to grant the supervisory writ in this case, we would risk “transform[ing] the writ into an all-purpose alternative to the appellate review process,” which we cannot do. Id. Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.”
Supervisory Writ Denied
Circuit Court DecisionAffirmed
MICHAEL J. GABLEMAN, J.
Concurring: PROSSER, J., ROGGENSACK, C.J. (joining Sections IV and V), ZIEGLER, J. (joining Section IV) and GABLEMAN, J. (joining Section IV) concur (Opinion filed). ZIEGLER, J. concurs (Opinion filed).
Dissenting: ABRAHAMSON, J. concurs and dissents (Opinion filed). CROOKS, J. concurs and dissents (Opinion filed).
BRADLEY, J., did not participate.
Criminal
Supreme Court of Wisconsin
Reasonable Suspicion – Mistake of Law
2013AP1581-CR
State of Wisconsin v. Richard E. Houghton, Jr.
Where police officer’s mistake of law ultimately held as a valid basis for finding reasonable suspicion,
“Because searches and seizures can be based on mistakes of fact, see Illinois v. Rodriguez, 497 U.S. 177, 183-86 (1990); State v. Reierson, No. 2010AP596-CR, unpublished slip op., ¶1 (Wis. Ct. App. Apr. 28, 2011), we confront the question of whether the lack of a front license plate, without more, may give rise to reasonable suspicion to conduct a traffic stop. To answer this question in the affirmative, we would have to hold that it is reasonable for a police officer in Wisconsin to believe that, if a vehicle is operating on a Wisconsin road, it must have been issued two license plates. Such a belief would usually be unreasonable. Wisconsin borders four other states, and residents from those and many other states pass through Wisconsin on a regular basis. That most vehicles on Wisconsin roads might be registered in Wisconsin and most vehicles registered in Wisconsin might be issued two plates is not enough to conclude that a stop of a vehicle solely because it lacks a front license plate passes constitutional muster.”
Reversed
DAVID T. PROSSER, J
Dissenting: ABRAHAMSON, BRADLEY, J.J., dissent. (Opinion Filed.)
Criminal
Supreme Court of Wisconsin
Pleas & Sentencing – Judge Impartiality
2013AP197-CR
State of Wisconsin v. Jesse L. Herrmann
Where Judge’s reference to appellant dead sister’s car accident, although personal, were utilized to “illustrate the serious of the crime and need to deter drunk driving in our society” and did not bias the appellant.
“As the judge’s statements addressed the seriousness of the crime and the need to deter drunk driving, they were consistent with the requirements placed on judges to discuss the objectives of the sentence. This court explained in State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197, that “[c]ircuit courts are required to specify the objectives of the sentence on the record. These objectives include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others.” The court also identified several mitigating and aggravating factors for sentencing courts to consider.4 Id.”
ANN WALSH BRADLEY, J.
Concurring: PROSSER, J., ROGGENSACK, C.J., concur. (Opinion Filed.) ZIEGLER,J., ROGGENSACK, C.J., GABLEMAN, J., concur. (Opinion Filed.)
Civil
WI Court of Appeals – District I
Officials: Curley, P.J., Kessler and Brennan, JJ.
Statute of Limitations – Judicial Estoppel
2014-AP-1151
Michael L. Robinson v. Aurora St. Lukes Medical Center
Appellant Michael L. Robinson, pro se, appeals orders dismissing his medical malpractice suit. Because his suit is barred by the statute of limitations as to one respondent and by the doctrine of judicial estoppel as to the other respondents, we affirm.
Decision
Affirmed. Per Curiam
Civil
WI Court of Appeals – District III
Officials: Hoover, P.J., Stark and Hruz, JJ.
Apparent Authority – Title Service
2014-AP-1599
William C. Haselow v. Vilas Title Service, Inc.
William and Sandra Haselow appeal a summary judgment dismissing their claims against Chicago Title Insurance Company. The circuit court determined the Haselows could not prove the elements of apparent authority. We conclude the Haselows could not satisfy the second element of apparent authority, that Chicago Title had knowledge of its purported agent’s representations. Accordingly, we affirm.
Decision
Affirmed. Per Curiam
Civil
WI Court of Appeals
Officials: Hoover, P.J., Stark and Hruz, JJ.
Adverse Possession
2014-AP-1822
Mary Podgorak v. Barbara A. Engelking
Appellant Mary Podgorak appeals an order dismissing without prejudice an action for adverse possession and money damages. We conclude Podgorak failed to plead facts sufficient to show entitlement to relief and therefore affirm.
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District III
Officials: Hoover, P.J., Stark and Hruz, JJ.
Failure to State Claim
2014-AP-2239
Harry Hall v. Village of Ashwaubenon Board of Directors
Harry and Georgia Hall, pro se, appeal a judgment dismissing their complaint for failure to state a claim upon which relief can be granted. We agree with the circuit court that the Halls, who seek to recover for an allegedly excessive property tax assessment, failed to state a claim because they did not allege compliance with the statutory prerequisites necessary to bring such an action. We reject the Halls’ various arguments to the contrary, and affirm.
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District II
Officials: NEUBAUER, P.J
Involuntary Civil Commitment – Expert Report
14-AP-2845
Walworth County DH&HS v. M.M.L
M. M. L. appeals from an order for involuntary commitment and from an order for involuntary medication. M. M. L. argues that there was insufficient evidence to find her dangerous under the third standard, WIS. STAT. § 51.20(1)(a)2.c. M. M. L. argues that the circuit court erred in allowing a court-appointed examiner to testify about hearsay statements made by M. M. L.’s family members and contained in her treatment and detention records. The circuit court did not err. These statements were taken from records that were part of the basis for the court-appointed examiner’s report and opinion and of the type usually relied on by experts in his field. The examiner’s reliance on these statements was permissible under WIS. STAT. § 907.03. While M. M. L. argues that the circuit court could not find dangerousness without independent evidence of recent acts and omissions manifesting impaired judgment, we conclude that the court could rely on the expert’s conclusion regarding this ultimate issue. See WIS. STAT. § 907.04. The County presented sufficient evidence to establish dangerousness. We affirm.
Decision
Affirmed
Civil
WI Court of Appeals – District II
Officials: REILLY, J
Statutory Time Limits – Request for De Novo Trial
2014-AP-2859
Timothy L. Hoeller v. Dr. Michael Kula, Psy.D.
Appellant appeals decision dismissed by a circuit court commissioner on October 13, 2014. The circuit court later held that a letter filed by Hoeller on October 24, 2014, constituted a request for a de novo trial, but was untimely under WIS. STAT. § 799.207(2). Hoeller appeals the circuit court’s determination that his request was untimely, arguing that WIS. STAT. § 799.28(2) applies to time limits in this case and allows him the right to file a request for a de novo hearing up to one year after the commissioner’s decision. We affirm the circuit court’s decision that § 799.207(2) governs time limits for small claims actions heard before circuit court commissioners and find Hoeller’s request to be untimely.
Decision
Affirmed
Civil
WI Court of Appeals – District IV
Officials: Lundsten, Higginbotham and Kloppenburg, JJ.
Subrogation – Bad Faith
2014-AP-157
Dennis D. Dufour v. Progressive Classic Ins. Co
Based on the undisputed facts presented on summary judgment, we first conclude that Dairyland has no subrogation rights under Valley Forge Ins. Co. v. Home Mut. Ins. Co., 133 Wis. 2d 364, 396 N.W.2d 348 (Ct. App. 1986), because Dufour has not been made whole considering his total loss. We further conclude that Dairyland acted in bad faith when it denied Dufour’s claim to the funds at issue. Accordingly, Dufour is entitled to summary judgment in his favor on both his claim to the subrogated property damage funds and his bad faith claim. Therefore, we affirm the circuit court’s order in part and reverse it in part, and remand for proceedings on Dufour’s damages, including punitive damages, in regard to his bad faith claim.
Decision
Affirmed in Part. Reversed in Part. Remanded. Per Curiam.
Civil
WI Court of Appeals – District IV
Officials: Blanchard, P.J., Sherman and Kloppenburg, JJ.
Family Law – Divorce – Child Placement
2014-AP-243
Julie Ann Hynek V. Christopher M. Hynek
Christopher Hynek appeals a judgment entered by the circuit court in this divorce action. He argues on appeal that the circuit court failed to maximize physical placement of the parties’ children with each party wrongfully granted grandparent visitation, exhibited bias, made various errors with respect to evidentiary issues, ruled against the best interests of the children regarding electronic communication, failed to rule upon domestic abuse issues raised, and failed to properly rule on health care issues. For the reasons set forth below, we affirm the order of the circuit court.
Decisions
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District IV
Officials: Blanchard, P.J., Higginbotham, and Sherman, JJ.
Motion to Dismiss – Breach of Warranty
2014-AP-1117
Alan Goldberg v. Michael DiMaggio
Alan Goldberg, Wendy Goldberg, and the Goldberg Family Trust (collectively, “Goldberg”) appeal a circuit court order that granted Pella Corporation’s motion to dismiss Goldberg’s breach of warranty claim against Pella at the close of the plaintiffs’ case. Goldberg contends that the court erred by dismissing Goldberg’s breach of warranty claim against Pella because: (1) Pella’s warranty established coverage for Goldberg’s claim based on condensation on Pella windows and doors in Goldberg’s home; (2) Pella’s admission that the condensation was not consistent with the proper functioning of its windows and doors established a prima facie case of breach of warranty; (3) there was no evidence to establish that an exclusion to the warranty coverage applied; and (4) dismissal was inconsistent with the court’s decision denying a motion to dismiss Goldberg’s claim against the sellers of the house for failing to disclose the condensation as a defect. We reject these contentions and affirm the circuit court’s order dismissing Goldberg’s claim against Pella.
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District IV
Officials: Lundsten, Higginbotham and Sherman, JJ.
Family Law – Divorce – Motion to Enforce
2014-AP-1356
James R. Sterr v. Kathy E. Sterr-Macke
James Sterr appeals an order of the circuit court, which granted Kathy Sterr-Macke’s motion to enforce a 1989 judgment of divorce and awarded Kathy monthly payments from James’s pension. Kathy asserts that the appeal is frivolous and has moved for costs, fees, and attorney fees pursuant to WIS. STAT. RULE 809.25(3) (2013-14). For the reasons set forth below, we affirm the order of the circuit court, but deny the motion for costs, fees, and attorney fees under RULE 809.25(3).
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District III
Officials: Higginbotham, Sherman and Kloppenburg, JJ.
Nursing Care Negligence – Immunity
2014-AP-1498
Judy Moretto v. Free Bird, LLC
Judy Moretto, as special administrator of the estate of Theresa Moretto, and Theresa’s heirs (collectively, the Morettos), appeal a judgment of the circuit court in favor of Northern Bridges. The Morettos brought suit against Northern Bridges asserting various claims of negligence against Northern Bridges related to Northern Bridges’ role as Theresa’s care management organization. The circuit court dismissed the Morettos’ claims and entered judgment in favor of Northern Bridges on the basis that Northern Bridges is immune from liability under WIS. STAT. § 893.80(4) (2013-14). For the reasons discussed below, we affirm.
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District IV
Officials: Blanchard, P.J., Lundsten and Higginbotham, JJ.
Landlord Tenant – Housing Codes
2015-AP-127
David E. Olson v. City of La Crosse
Where Wis. Stat. §66.0104(2)(d)1.a. preempts requirement of landlords to notify tenants of City inspections under the City’s inspection and registration program.
“At the same time, our interpretation has minimal impact, if any, on the requirement in WIS. STAT. § 704.07(2)(a)5. that landlords comply with local housing codes. As far as we can tell, nothing in our interpretation stops local governments from implementing rental housing inspection and registration programs as part of a housing code, let alone precludes other substantive housing code regulations. We simply conclude that the responsibility for communicating to tenants about housing code programs like the City’s program must, under WIS. STAT. § 66.0104(2)(d)1.a., fall on the government instead of on landlords.”
Decision
Remanded. Recommended for Publishing
Criminal
WI Court of Appeals – District I
Officials: Curley, P.J., Kessler and Brennan, JJ.
Ineffective Assistance of Counsel
2013AP1309
State of Wisconsin v. Lavell Deangelo Love
Lavell Deangelo Love appeals an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2013-14). He asserts that, in his trial for first-degree intentional homicide, his trial counsel was ineffective for requesting a jury instruction on a lesser-included offense that the jury ultimately agreed he committed. He asserts that his postconviction counsel was ineffective in turn for failing to challenge his trial counsel’s ineffectiveness. He seeks a new trial. The circuit court denied the requested relief after conducting an evidentiary hearing. We affirm.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District III
Officials: Hoover, P.J., Stark and Hruz, JJ.
Sentence Modification
2014AP849-CR
State of Wisconsin v. David J. Townsend
David Townsend appeals a judgment convicting him of two counts of possessing child pornography and an order denying his postconviction motion to modify his sentences. He contends that his sentence was based on inaccurate information regarding the type of treatment his therapist offers, and that the court erroneously exercised its discretion in refusing to impose sentences less than the presumptive statutory minimum. For these reasons, Townsend contends he is entitled to a sentence modification. We reject Townsend’s arguments and affirm the judgment and order
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District III
Officials: Hoover, P.J., Hruz and Sherman, JJ.
Plea Withdrawal – Ineffective Assistance of Counsel
2014-AP-1570
State of Wisconsin v.
Appellant fails to identify any meritorious claims on appeal or any evidence of deficient performance on behalf of appellant trial counsel.
Decision
Affirmed. Per Curiam.
Criminal
WI Court of Appeals – District I
Officials: Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge.
Motion for Resentencing – Ineffective Assistance of Counsel
2014AP1760-CR
State of Wisconsin v. Turnell Q. Lewkowski
Appellant Turnell Q. Lewkowski appeals a judgment convicting him of one count of armed robbery with threat of force. He also appeals the circuit court’s order denying his postconviction motion without a hearing. Lewkowski argues that: (1) the circuit court should have held an evidentiary hearing on his motion for resentencing; and (2) he received ineffective assistance from his trial lawyer during the sentencing hearing. We affirm.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District
Officials: Curley, P.J., Kessler and Brennan, JJ.
Pleas & Sentencing – Sentence Modification
2014AP2316-CR
State of Wisconsin v. Jamie F. DeJesus
Jamie F. DeJesus appeals from a circuit court order denying his motion for sentence modification. DeJesus claimed that a new factor warranted modification. The circuit court held the motion was procedurally barred and, in any event, there was insufficient evidence of a new factor. We affirm.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District III
Officials: Stark and Hruz, JJ., and Thomas Cane, Reserve Judge.
NGI Plea – Jury Instructions
2014AP2370-CR
State of Wisconsin v. Aaron Schaffhausen
Appellant Aaron Schaffhausen appeals denial of NGI defense arguing the circuit court erred by: (1) erroneously telling jurors they would decide whether a defense psychiatrist and psychologist were qualified as expert witnesses and promising to give the jury an instruction on expert qualifications, but failing to do so; and (2) denying the jury’s request during deliberations to provide it with three expert witness reports. Schaffhausen also seeks a new trial in the interest of justice. We reject these arguments and affirm.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District I
Officials: Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge.
Ineffective Assistance of Counsel
2014AP2545-CR
State of Wisconsin v. Yia X. Lee
Appellan Yia X. Lee appeals a judgment convicting him of two counts of manufacturing or delivering cocaine, as a second or subsequent offense. He also appeals the circuit court’s order denying his postconviction motion. Lee argues that he received ineffective assistance of counsel from Attorney Robert D’Arruda. We reject this argument. Therefore, we affirm the judgment of conviction and order denying postconviction relief.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District I
Officials: Kessler, Brennan and Bradley, JJ.
Statutory Interpretation – Notice Requirement
2014AP2707-CR
State of Wisconsin v. Dijon L. Carter
Dijon L. Carter appeals from a judgment of conviction entered after he pled guilty to possession of a firearm by a felon as set forth in WIS. STAT. § 941.29(2)(b) (2013-14).1 He argues that the complaint against him should have been dismissed because when he was adjudicated delinquent for the predicate offense, the juvenile court failed to inform him of the lifetime firearm prohibition as it was required to do pursuant to WIS. STAT. § 938.341. Carter essentially argues that § 938.341 adds an additional element to § 941.29(2)(b). However, reading an additional element into § 941.29(2)(b) is contrary to both the plain language of the statute and our holding in State v. Phillips, 172 Wis. 2d 391, 493 N.W.2d 238 (Ct. App. 1992). As such, we affirm.
Decision
Affirmed
Criminal
WI Court of Appeals – District II
Officials: Neubauer, P.J., Reilly and Gundrum, JJ.
Pleas & Sentencing – Plea Withdrawal
2014AP1975-CR
State of Wisconsin v. Jeffrey S. Marisch
Appellant Jeffrey S. Marisch appeals from a judgment convicting him upon his no-contest pleas to two counts of felony attempted intimidation of a victim and from an order denying his motion for postconviction relief. The issue is whether he should be allowed to withdraw his pleas to correct a manifest injustice. We reject his contentions that the pleas are without an adequate factual basis and that his counsel’s inaccurate advice caused him to misunderstand the charges’ intent element. We affirm the judgment and order.
Decision
Affirmed. Per Curiam.
Civil
WI Court of Appeals – District IV
Officials: Sherman, Kloppenburg and Neubauer, JJ.
Jury Instructions – Prejudicial Error
2011AP1147
State of Wisconsin v. Mark J. Mey
Appellant Mark J. Mey appeals circuit court decision arguing that the circuit court committed plain error when reading the jury instruction for the second and third counts, which were two of the attempted homicide counts. Each time, the court stated: “To this charge, each of the defendants before you has entered a plea of guilty, which means the State must prove every element of the offense charged beyond a reasonable doubt.” (Emphasis added.) Mey argues that this caused him prejudice by leading the jury to believe that he had already pled guilty, and that it need not deliberate and reach a decision of its own. We agree with the State that Mey was not prejudiced by this error. We believe that most jurors would understand this was an error by the court. The remainder of the instructions made it clear that it was the jury’s task to determine the defendants’ guilt on all counts that were the subject of the trial.
Decision
Affirmed. Per Curiam
Criminal
WI Court of Appeals – District IV
Officials: Sherman, Kloppenburg and Neubauer, JJ.
Jury Instructions – Prejudicial Error
2011AP1496
State v. Johnathon T. Adeyanju
Appellant Johnathon T. Adeyanju appeals decision denying petition for postconviction relief arguing that the circuit court erred when reading the jury instruction for the second and third counts, which were two of the attempted homicide counts. Each time, the court stated: “To this charge, each of the defendants before you has entered a plea of guilty, which means the State must prove every element of the offense charged beyond a reasonable doubt.” (Emphasis added.) Adeyanju argues that this caused him prejudice by leading the jury to believe that he had already pled guilty. We conclude that Adeyanju was not prejudiced by this error. We believe that most jurors would understand this was an error by the court. The remainder of the instructions made it clear that it was the jury’s task to determine the defendants’ guilt on all counts that were the subject of the trial.
Decision
Affirmed. Per Curiam.
Criminal
WI Court of Appeals – District IV
Officials: Lundsten, Higginbotham and Kloppenburg, JJ.
5th Amendment Violation
2014AP790-CR
State of Wisconsin V. Walter W. Wessel
Walter Wessel appeals a judgment of conviction and an order denying postconviction relief. Wessel contends that the State violated his constitutional due process rights when the State failed to provide Wessel with impeachment evidence in the form of audio recordings of police interviews of the State’s witnesses. We conclude that Wessel was not denied due process. We affirm.
Decision
Affirmed. Per Curiam.
Criminal
WI Court of Appeals – District I
Officials: Blanchard, P.J., Higginbotham and Kloppenburg, JJ
Insufficiency of Evidence
2014AP1759-CR
State of Wisconsin v. Damon James Edward Howard
Appellant appeals decision of the circuit court arguing that the evidence was insufficient on the “utter disregard for human life” element. On that element, the jury was instructed to decide whether the defendant’s conduct showed utter disregard for human life, after considering factors such as what the defendant was doing, and why; how dangerous the conduct was; and whether the conduct showed any regard for life. We affirm the verdict unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that no reasonable trier of fact could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). Credibility of witnesses is for the trier of fact. Id. at 504.
Decision
Affirmed. Per Curiam.