Weekly Case Digests — Aug. 3-7, 2015

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7^th Circuit Court of Appeals –  CIVIL

Civil

7^th Circuit Court Appeals

Officials: WOOD, Chief Judge, and BAUER and RIPPLE, Circuit Judges

Zoning Ordinance – Constitutionality

No. 14-2473

Green Valley Investment LLC v. Winnebago County, Wisconsin

District court erred in failing to relinquish jurisdiction over state supplemental claims in case involving 2006 ordinance held to partially violate federal constitution.

“The ability of a court to do more than excise the unconstitutional portions of the ordinance does not appear to us to be settled in Wisconsin. The parties have not, for example, pointed to a Wisconsin case that explicitly establishes a rule allowing or disallowing such a maneuver. Moreover, in our view the questions of state law that remain to be decided “substantially predominate[ ] over the claim or claims over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(2). Whether the alcohol and setback parts of the County’s zoning ordinance can be severed and function on their own is squarely within the scope of state law. It is also not clear that Wisconsin would regard a use that did not conform to a law that was later found to have constitutional problems as something that can be grandfathered. The answers to these questions are not obvious. They touch on both the fundamental rules of land-use control and the way in which the state enforces the separation of powers between its legislature and judiciary. Furthermore, the resolution of these issues is hamstrung by a shallow record. The record sheds no light, for example, on the question whether there is such a thing in Winnebago County as a “B-3 Highway Business District,” despite the fact that the ordinance requires adult uses to locate within such districts. And as the parties confirmed at oral argument, neither the district court nor we have a zoning map of Winnebago County to assist us. If this part of the case is returned to the Wisconsin courts, they will be able to address it within the broader context of Wisconsin’s land-use law, and they will be able to develop an appropriate record.”

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, RIPPLE, and KANNE, Circuit Judges.

Debt Collection – FDCPA

No. 12-2834

Grant Bentrud v. Bowman ,Heintz, Boscia & Vician, P.C.

Appellant fails to raise triable issue in attempts to use FDCPA to enforce  arbitration provision of credit card agreement.

“The FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. Beler, 480 F.3d at 474. But that is what Bentrud is attempting to do here; he seeks to transform the FDCPA into an enforcement mechanism for the arbitration provision in his credit card agreement. In Beler, we rejected such a use of § 1692f. There, the appellant theorized that it was “‘unfair’ or ‘unconscionable’ for a debt collector to violate … rule[s] of positive law.” Id. at 473. Specifically, the appellant faulted a debt collector law firm (like the one here) for allegedly violating federal and state laws exempting Social Security benefits from execution or attachment. Id. at 473-74. We denied the claim, noting that both the federal and state laws implicated provided remedies for violations.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges

Prisoner Medical Treatment

No. 14-1990

Jimmy Dale Miller v. Jeanne Campanella

Summary judgment inappropriate given complexity of case.

“We recently had occasion to note that “where an inmate alleges an objectively serious medical condition, it may be better to appoint counsel—so that he or she can investigate and flesh out any claim that may exist—than to dismiss a potentially meritorious claim and leave the prisoner in harm’s way.” Perez v. Fenoglio, supra, at *11. We placed particular emphasis on the case that has progressed from the pleading stage “to discovery or trial. Taking depositions, conducting witness examinations, applying the rules of evidence, and making opening statements are beyond the ability of most pro se litigants to successfully carry out. These tasks are even more challenging in cases … where complex medical evidence (including expert testimony) is needed to assess the adequacy of the treatment received. District courts abuse their discretion where they fail to consider the complexities of advanced-stage litigation activities and whether a litigant is capable of handling them.” Id. at *12 (citations omitted).

These are points for the district court to bear in mind on remand.”

Reversed and remanded.

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, ROVNER, and WILLIAMS, Circuit Judges

ERISA – Employer Withdrawal

No. 14-1618

James Tsareff v. Manweb Services

Where district court abuses discretion in review of withdrawal liability where arbitration should control.

“Finally we turn to the district court’s analysis of Tiernan & Hoover’s underlying liability. The Plan argues that the question of whether or not Tiernan & Hoover withdrew under the statute was a question reserved for the arbitrator and, since Tiernan & Hoover’s withdrawal was conclusively established once it waived arbitration, the merits of this determination were removed from the district court’s purview and should not have been reviewed. We agree. The statute is clear: “any dispute over withdrawal liability shall be arbitrated.” Robbins, 846 F.2d at 1056 (quoting I.A.M. Nat’l Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 417 (D.C. Cir. 1987)). Arbitration is treated as an administrative remedy exhaustion requirement and courts interpreting § 1401(a)(1) have been consistent in their conclusion that “‘[a]rbitrate first’ is indeed a rule Congress stated unequivocally.” Robbins, 846 F.2d at 1056. The result may be harsh, but “the statute embodies a strong public policy that any dispute [over withdrawal liability] be submitted to arbitration.” Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund v. Louis Zahn Drug Co., 890 F.2d 1405, 1410 (7th Cir. 1989). In short, “[a]rbitration reigns supreme under the MPPAA,” Clinton Engines, 825 F.2d at 422, thus the district court’s substantive review of Tiernan & Hoover’s underlying withdrawal liability constitutes an error of law, and by definition, an abuse of discretion.”

Reversed and Remanded

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7^th Circuit Court of Appeals –  CRIMINAL

Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges

No.14-2650; No. 14-2652, No. 14-2653

United States of America v. Carl F. Kieffer

Where district judge improperly ordered restitution for uncharged robberies.

“District judges may order restitution only if there is a statutory basis to do so. United States v. Westerfield, 714 F.3d 480, 489 (7th Cir. 2013); United States v. Webber, 536 F.3d 584, 601 (7th Cir. 2008). Restitution as a condition of supervised release, which the district court apparently intended to order in this case, is governed by 18 U.S.C. § 3583(d), which authorizes sentencing judges to impose conditions listed as discretionary conditions of probation in 18 U.S.C. § 3563(b)(2). See United States v. Hassebrock, 663 F.3d 906, 923 (7th Cir. 2011); United States v. Batson, 608 F.3d 630, 634–35 (9th Cir. 2010). Section 3563(b)(2) authorizes restitution to the extent permitted by 18 U.S.C. § 3556, which, in turn, directs sentencing courts to follow the mandates of the statutes governing mandatory and discretionary restitution, 18 U.S.C. § § 3663, 3663A, without being confined to particular offenses, see United States v. Frith, 461 F.3d 914, 919–20 (7th Cir. 2006); Batson, 608 F.3d at 633−34. The restitution statutes authorize restitution only for victims of an offense of conviction unless the defendant consents to pay restitution to other persons as part of a plea agreement, which Mr. Kieffer did not do. See 18 U.S.C. § 3663(a)(1)(A), (a)(3); id. § 3663A(a)(3); Hughey v. United States, 495 U.S. 411, 416 (1990); Frith, 461 F.3d at 919–20; United States v. Wells, 177 F.3d 603, 608–09 (7th Cir. 1999). This limitation applies even when restitution is imposed only as a condition of supervised release. See Frith, 461 F.3d at 919–20; Batson, 608 F.3d at 636–37; United States v. Varrone, 554 F.3d 327, 333–34 (2d Cir. 2009). Mr. Kieffer did not consent as part of his plea agreement to pay restitution to other persons, and the banks from the uncharged robberies are not “tied to the specific conduct of conviction.” Frith, 461 F.3d at 921. The restitution awarded therefore is illegal. See id.; see also United States v. Menza, 137 F.3d 533, 537 (7th Cir. 1998) (explaining that restitution may be awarded “to any victim of the…offense of conviction”).”

Affirmed as to appeal judgment

Vacated as to restitution

Remanded for entry of correct judgments as related to restitution

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Criminal

7^th Circuit Court of Appeals

Officials: RIPPLE, KANNE and TINDER, Circuit Judges

Pleas & Sentencing – Revocation

No. 14-2419

United States of America v. Montrell DuPriest

Court not required to consider 18 U.S.C. §3553(a) factors in “checklist” form before resentencing defendant.

“It is well-established that a district court “need not consider the § 3553 factors in check-list form.” Jones, 774 F.3d at 404. Instead, a district court need only provide an adequate explanation for its reasons—based on the sentencing factors found in § 3553(a)—in issuing its sentence. Here, the district court did just that. It found the seriousness of the underlying offense, possession of a firearm by a felon, to be a significant factor in its sentencing decision. It is also found the inability of DuPriest to learn from his “prior encounters with the criminal justice system” and to “conform” his “conduct” to the “requirements of the law” to be equally significant. Judge Stadtmueller should know, as this was the third time that he had the opportunity to sentence DuPriest.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: EASTERBROOK, WILLIAMS, and HAMILTON, Circuit Judges

Civil Forfeiture –

No. 14-3451

United States of America v. Funds in the amount of $239,400

Where state improperly persuaded the district court to require claimants to prove their claims to disputed currency were legitimate as condition of standing.

“The procedural framework for civil forfeiture actions makes it particularly important that standing serve a “truly threshold” function in these cases. See United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 79 (2d Cir. 2002) (Sotomayor, J.). To the extent there is overlap between a tort plaintiff proving causation as an element of his cause of action and proving causation as an element of his standing to pursue that cause of action in federal court, we know that the “plaintiff bears the burden of proof” as to both and must produce “the manner and degree of evidence required at the successive stages of the litigation.” Id., quoting Lujan, 504 U.S. at 561. “It must be remembered, however, that in a civil forfeiture action the government is the plaintiff, and it is the government’s right to forfeiture that is the sole cause of action adjudicated.” Id. “If the government fails to meet its burden of proof … the claimant need not produce any evidence at all.” Id. Standing must be clearly separated from the merits in civil forfeiture cases so that the government is not relieved of its burden to “prove that property is subject to forfeiture.” See $125,938.62, 537 F.3d at 1293.”

Reversed and Remanded

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Criminal

7^th Circuit Court of Appeals

Opinions: WOOD, Chief Judge, and FLAUM and MANION, Circuit Judges

Drug Detection Drugs – Probable Cause

No. 13-2995

United States of America v. Larry Bentley, Jr.

Drug detection dogs 59.5% field accuracy rate good enough to support finding of probable cause.

“Even if we were to ignore Harris and focus on Lex’s 59.5% field-accuracy rate, though, that rate is good enough to support a finding of his reliability and thus to allow his alert to constitute a significant piece of evidence supporting the ultimate conclusion of probable cause. In the past, we have concluded that a 62% success rate in the field is enough to prevail on a preponderance of evidence, and we have gone on to note that “’probable cause’ is something less than a preponderance.” United States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (citation omitted). Other circuits have accepted field detection rates less than Lex’s 59.5%. See, e.g., United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014) (57%); United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014) (43%). This should not become a race to the bottom, however. We hope and trust that the criminal justice establishment will work to improve the quality of training and the reliability of the animals they use, and we caution that a failure to do so can lead to suppression of evidence. We will look at all the circumstances in each case, as we must.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and KENNELLY, District Judge

Revocation – Notice

No. 14-2010

United Sates of America v. Robert Lee

Where list of violations on revocation petition sufficient for notice requirement.

“In any event, Lee’s situation differs from Havier’s in several respects. Lee could not have had any doubt about the conduct underlying the accusation because the revocation notice cited the specific police report at issue. That report contained allegations that he had assaulted Pulliam with a baseball bat. The notice that Havier received was nowhere near as complete. See Havier, 155 F.3d at 1092 (“[D]efendant’s conduct during his arrest by Tucson Police constituted an offense with the element of eminent [sic] life threatening danger to law enforcement personnel.”). It is true that for both Lee and Havier, “the district court judge and counsel themselves appeared to be speculating about which … violations could have or should have been alleged in the revocation petition.” Id. at 1093. But during Havier’s hearing, the range of offenses considered was far greater. They included “felon in possession of a firearm, assault on a police officer, and reckless display of a weapon. One offense proposed, failure to obey a police officer, turned out to be a traffic violation.” Id. In Lee’s case, the government and the district judge were discussing the elements of the alleged offense and what was an aggravating factor. There is a big difference between choosing among several distinct offenses and evaluating which elements are required for one offense.”

Decision

Affirmed.

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Wisconsin Court of Appeals –  CIVIL

Civil

WI Court of Appeals – District III

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

Family Law – Final Order – Guardian Ad Litem

2014AP210

Joel D. Portmann. Leslie A. Boden

Joel Portmann, pro se, appeals an order in this paternity action that decided competing motions for clarification of physical placement and sanctions for overtrial. He raises a number of arguments regarding issues that do not pertain to the order before us on appeal, and we summarily reject those arguments. We also reject his remaining assertions, which are that there was no final order in this case, and that the circuit court erroneously required him to pay three-fourths of the guardian ad litem’s (GAL) fee as a sanction for overtrial. We therefore affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge

Recreational Immunity

2014AP1131

Donna Carini v. ProHealth Care, Inc.

Where alleged negligence relating to an injury sustained in zoo parking lot was related to condition of a parking lot, appellant concluded to be engaged in a recreational activity.

“Our case law makes clear that the act of walking to or from an immune activity constitutes recreational activity. See Sauer v. Reliance Ins. Co., 152 Wis. 2d 234, 239-40, 448 N.W.2d 256 (Ct. App. 1989) (“‘walking down the river to go fishing’” even when injured party “was not actually fishing at the time of the accident” constituted “‘recreational activity’ within the meaning of the statute”); Linville v. City of Janesville, 184 Wis. 2d 705, 717, 516 N.W.2d 427 (1994) (person who drowned in municipal pond was engaged in a “recreational activity” while at the pond to scope out a fishing spot for the next day); see also Hupf v. City of Appleton, 165 Wis. 2d 215, 221-22, 477 N.W.2d 69 (Ct. App. 1991) (“walking to or from an immune activity does not alter the landowner’s status”). Therefore, while Carini may not have started eating or socializing when she fell, because she was walking in the picnic area on her way to partake in the festivities, she was engaged in a recreational activity. Moreover, Carini’s fear that our ruling will provide “boundless immunity” during an injured party’s traveling is unfounded considering the facts of this case. As noted, Carini fell when she was on the picnic’s premises. She was, by her own testimony, near the band, and, as shown by the exhibits cited in her brief, within the area of the parking lot designated for the picnic. In other words, she was not merely in transit; she was in the midst of the action.”

Reversed and Remanded – Recommended for Publication

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Civil

WI Court of Appeals – District I

Officials: Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge

Insurance – Conflicting Insurance Provisions

2014AP1354

Sherry L. Woosypiti v. Travelers Insurance Company

Travelers Insurance Company appeals a decision of the circuit court reconsidering a prior order and granting summary judgment dismissing Travelers’ claim against General Casualty Company of Wisconsin. We affirm.

Decision

Affirmed

Civil

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan, J., and Thomas Cane, Reserve Judge

Personal Jurisdiction – Due Process

2014AP1558

Erik Reichertz v. Mark Gullickson

Appellant Mark Gullickson appeals an order dismissing his motion to vacate the default judgment entered against him. Gullickson argues that: (1) the circuit court did not have personal jurisdiction over him; (2) his procedural due process rights were violated when the circuit court entered judgment against him; and (3) he is entitled to equitable relief. We reject all of these arguments. Therefore, we affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District II

Officials: Brown, C.J., Neubauer, P.J., and Gundrum, J.

Legal Malpractice – Expert Testimony

2014AP1679

Tami L. Kraft v. Michael W. Steinhafel

Where expert testimony not necessary to establish legal malpractice.

“Similar to our discussion above, it is within the understanding of the lay juror whether Steinhafel continued to misinform Kraft about the mandatory five-year revocation of her license, including during the time he represented her while employed by the Schroeder Group. Further, the average juror is capable of understanding whether Steinhafel’s alleged continued misinforming of Kraft about the effect of the stipulation and order after Steinhafel began his employment with the Group on October 1, 2007, caused Kraft to incur damages in continuing to operate her business office. Upon remand then, the only damage issue as to the Schroeder Group relates to business expenses incurred by Kraft after October 1, 2007, and no expert testimony is required in relation to this. “

Decision

Reversed and Remanded. Per Curiam.  – Recommended for publication

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Civil

WI Court of Appeals – District II

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

Personal Injury – Chain of Causation

14AP2552

Mark Schultz v. Germantown Mutual Insurance Company

Mark Schultz appeals from a judgment denying his motion for summary judgment and granting summary judgment to David Juedes and Juedes’s insurer, Germantown Mutual Insurance Company. Schultz alleges that an injury he suffered while helping Juedes free a lawn mower was due to Juedes’s negligence in getting it stuck. We conclude Schultz’s injury is too remote from the alleged negligence, precluding liability. We therefore affirm.

Decision

Affirmed. Per Curiam

Civil

WI Court of Appeals – District IV

Officials: Higginbotham, Sherman and Kloppenburg, JJ

Expert Testimony – Daubert Test – Golden Rule

2014AP195

Braylon Seifert v. Kay M. Balink, M.D.

Where alleged prejudicial statements made during closing arguments not held as grounds for a new trial.

“We conclude that the circuit court did not erroneously exercise its discretion when it denied Dr. Balink’s motion for a new trial based on the “Golden Rule”-type statements at issue. First, these statements are not pure violations of the “Golden Rule” because counsel did not explicitly ask the jury to place themselves in the plaintiffs’ shoes. Second, even if we considered these statements to violate the “Golden Rule,” the court provided a curative instruction to the jury that communicated to them that they should not rely on these types of statements. Finally, these statements referred to the issue of gestational diabetes testing, which formed only a portion of the argument made to the jury on prenatal care and informed consent. Taken in light of the entire argument presented to the jury, these statements did not affirmatively prejudice Dr. Balink. In sum, we conclude that the court properly exercised its discretion in denying Dr. Balink’s “Golden Rule” objections.”

Decision

Affirmed – Recommended for Publication

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Civil

WI Court of Appeals – District IV

Officials: Lundsten, Higginbotham and Sherman, JJ.

Trusts & Estates – Testamentary Capacity

2014AP937

Berna Big Thunder-Hidnsley v. Vickie Hindsley

This is a will contest brought by the children of George W. Hindsley, Jr. George executed several testamentary documents. George’s last will was executed in 2005 and in that will he left his entire estate to his second wife, Berna Big Thunder-Hindsley.1 Following a hearing on the children’s objection to the 2005 will and on Berna’s motion for reconsideration, the circuit court invalidated the will based on two findings.2 Berna challenges those two findings. For the reasons that follow, we reverse the circuit court’s findings on testamentary capacity and the validity of George’s signature on the 2005 will. Accordingly, we reverse the circuit court’s orders and remand with directions to admit the 2005 will to probate.

Decision

Reversed and Remanded

Civil

WI Court Appeals – District IV

Officials: Higginbotham, Sherman and Kloppenburg, JJ.

Administrative Warning

2014AP1062

George X. Zaleski, M.D. v. State of Wisconsin

George Zaleski, M.D., appeals a circuit court order affirming an administrative warning issued against him by the State of Wisconsin Department of Safety and Professional Services, Medical Examining Board(“Board”). On appeal, Zaleski challenges the Board’s issuance of the administrative warning on several grounds. He argues that no complaint was issued, that no findings of fact were made, that the assumptions behind the recommendation to impose the administrative warning are not supported by the record, and that Wisconsin law regarding the respective responsibilities of an attending physician and resident was not followed. 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: SHERMAN, J.

Termination of Parental Rights

2014AP2291

Dane Co. DHS v. D.M.

D.M. appeals from an order of the circuit court terminating her parental rights to D.L. The grounds for termination at issue in this appeal are abandonment, and failure to assume parental responsibility. See WIS. STAT. §§ 48.415(1) and (6). D.M. argues that she received ineffective assistance of counsel, that the circuit court erred in directing a verdict in favor of the County on an issue, and that she is entitled to a new trial in the interest of justice. I affirm for the reasons discussed below.

Decision

Affirmed.

Civil

WI Court of Appeals – District III

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

Wisconsin Consumer Act – Contractual Dispute

2013AP2388

Riverside Finance, Inc. v. Lori Rogers

Lori and Kevin Rogers (collectively, Rogers) appeal a judgment for money and replevin entered in favor of Riverside Finance, Inc. Rogers argues the circuit court erroneously determined the Wisconsin Consumer Act (WCA) did not apply to the parties’ loans, Riverside did not opt in to the WCA, and Rogers had no contractual right to a hearing prior to repossession of personal property. Rogers additionally contends the court awarded excessive attorney’s fees to Riverside. We reject Rogers’s arguments and affirm.

Decision

Affirmed. Per Curiam

Civil

WI Court of Appeals – District III

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

Trust & Estates – Contested Estate

2014AP925

Estate of Donald E. Mousel v. Lori Pederson

The Estate of Donald Mousel, by Jeff Mousel, personal representative,1 appeals a judgment entered in Lori Pederson’s favor following a bench trial. Pederson, with whom the decedent was in a long-term, nonmarital cohabitation relationship, filed a claim against the Estate asserting entitlement to one-half of the proceeds from the sale of the couple’s residence. The circuit court determined Pederson had adequately proven entitlement to that amount based on theories of unjust enrichment and promissory estoppel. We reject the Estate’s arguments on appeal and affirm.

Decision

Affirmed. Per Curiam.

Civil

WI Court of Appeals – District III

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

Motion for Summary Judgment

2014AP1273

New Life of Crivitz, LP v. Peshtigo River Inn at Crivitz, LLC

New Life of Crivitz, LP and New Life Senior Wellness Center, LLC (collectively “New Life”), appeal an order dismissing each of their claims against Peshtigo River Inn at Crivitz, LLC (“PRI”), H. J. Martin & Son, Inc. (“H. J. Martin”), and Edward Martin (“Edward”) (collectively “the Respondents”). The order denied New Life’s motion for summary judgment, partially granted the Respondents’ motion to dismiss, and partially granted the Respondents’ motion for summary judgment. New Life argues that the circuit court erroneously dismissed its claims against H. J. Martin and Edward, and that it is entitled to summary judgment on those claims. We reject New Life’s arguments and affirm.

Decision

Affirmed.

Civil

WI Court of Appeals – District III

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

Improper Service – Frivolous Action

2014AP1472

Voyager Village Property Owners Association, Inc. v. Brooks Dennis Letourneau

Brooks Letourneau appeals judgments that awarded Mark Crowl, David Anderson, Brian Langdon, Stephan Gnoza, and Northwoods Properties of Wisconsin, LLC (“Northwoods”) (collectively the “Northwoods Group”) monetary sanctions against Letourneau for maintaining a frivolous action. On appeal, Letourneau advances various arguments that only tangentially, if at all, consider the case in its correct procedural context. With the issues properly framed, we conclude the circuit court appropriately dismissed all of Letourneau’s claims against the Northwoods Group based on insufficient service of process and, hence, a lack of personal jurisdiction, and that the Northwoods Group did not waive that defense. We further conclude the circuit court appropriately sanctioned Letourneau for maintaining a frivolous action, as it is clear the statutes of limitations had run on all of Letourneau’s claims at the time he filed his third-party complaint, and he has not provided any discernable legal argument that the discovery rule tolled the running of the statutes on any of his claims. Accordingly, we affirm.

Decision

Affirmed. Per Curiam

Civil
WI Court of Appeals – District III

Officials:

Public Records – Standing

2014AP1853

Albert D. Moustakis v. State of Wisconsin Department of Justice

Where appellant failure to meet statutory definition of employee as defined by Wis. Stat. §19.356(9)(a) defeats appellants claim for lack of standing.

“While WIS. STAT. § 19.356(9)(a) could be better drafted, this shortcoming does not establish that Moustakis unambiguously is an “employee” under WIS. STAT. § 19.32(1bg). Moustakis attempts to insert the definition of the term “employee” into § 19.356(9)(a), which is an otherwise reasonable thing to do but for the fact that it creates a befuddling mess of that statute. Rather, we conclude the phrase “who is an officer or employee of the authority holding a local record office or state public office” was intended to be read as one restrictive clause modifying the term “record subject” in § 19.356(9)(a). Contrary to Moustakis’s argument, this interpretation of § 19.356(9)(a), which is based on a straightforward, common sense reading of that statute, is fully consistent with § 19.32(1bg) in that both statutes recognize there are individuals who are employed by an “authority” and who also hold a local or state public office. In this sense, an individual who is not an “employee” under § 19.32(1bg) may nonetheless qualify as an “officer or employee of the authority holding a local public office or state public office” under § 19.356(9)(a).”

Decision

Affirmed. Per Curiam. – Recommended for Publication

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Civil

WI Court of Appeals – District III

Officials: STARK, J.

Contempt – Failure to Pay Child Support

2014AP1947

Michelle L. Stelle v. Jason G. Foster

Jason Foster appeals orders finding him in contempt of a court order. Foster argues the order to show cause and its accompanying affidavit were vague, thus depriving him of due process. He also argues the circuit court erred in finding him in contempt because he reasonably believed he was in compliance with the circuit court’s previous order. We disagree and affirm.

Decision

Affirmed.

Civil
WI Court of Appeals – District III

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

Injunction – Harassment

2014AP2527

Jenna L. Schmitz v. Gary R. Schmitz

Gary Schmitz appeals an order enjoining him from harassing or intimidating his ex-daughter-in-law, Jenna Schmitz. Gary argues the injunction petition was vague and the evidence at trial was insufficient. He also requests a new trial in the interests of justice. We reject his arguments and affirm.

Decision

Affirmed. Per Curiam.

Civil
WI Court of Appeals – District III

Officials: Stark and Hruz, JJ., and Thomas Cane, Reserve Judge

Adverse Possession

2014AP2827

Eugene H. Vander Heiden v. Verhasselt Bros., LLC

Verhasselt Bros., LLC, appeals a grant of summary judgment in favor of Eugene, Joan, David, Daniel, Duane, and Dean Vander Heiden (collectively, “the Vander Heidens”) regarding their adverse possession action. Verhasselt also appeals the circuit court’s denial of motions for reconsideration and relief from judgment. We affirm the circuit court’s judgment and orders.

Decision

Affirmed

Wisconsin Court of Appeals –  CRIMINAL

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge

Ineffective Assistance of Counsel

2013AP1649

State of Wisconsin V. Willie Adams

Appellant Adams contends that he received ineffective assistance of postconviction counsel during his direct appeal because his lawyer did not argue that his trial lawyers provided constitutionally ineffective representation to him by: (1) failing to call Barbara Benedetto as a defense witness; (2) failing to call Andre Taylor as a defense witness; (3) failing to challenge for cause or peremptorily strike two jurors; and (4) failing to impeach Hnanicek with partially inconsistent prior statements. We affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District III

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

Franks Hearing – Plea Withdrawal

2014AP1456-CR

State of Wisconsin V. Allan Dean Owens

Allan Owens, pro se, appeals orders denying his postconviction motions. Owens argues the circuit court erred by denying his request for a Franks hearing to challenge the search warrant. Owens further contends the circuit court erroneously exercised its discretion by denying his motions for plea withdrawal and reconsideration. Owens also claims for the first time on appeal that his appellate counsel abandoned him. We reject these arguments and affirm the orders.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District II

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

Insufficient Evidence

2014AP2201-CR

State of Wisconsin v. Dujuan Williams, Jr.

Dajuan Williams, Jr. appeals a judgment of conviction for five counts of second-degree recklessly endangering safety. Williams argues there was insufficient evidence to convict on each of the charges. We reject Williams’ arguments and affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan and Bradley, JJ.

Motion for Reconsideration – Machner Hearing

2014AP2395-CR

State of Wisconsin v. Duanne D. Townsend

Appellant Duanne D. Townsend appeals from a judgment of conviction entered on jury verdicts for one count of first-degree intentional homicide by use of a dangerous weapon, two counts of attempted first-degree intentional homicide by use of a dangerous weapon, and two counts of possession of a firearm by a felon, contrary to WIS. STAT. §§ 940.01(1)(a), 939.63(1)(b), 939.32, and 941.29(2) (2011-12). He also appeals from orders denying his postconviction motion and motion for reconsideration. Townsend seeks a new trial in the interest of justice on grounds that the real controversy was not fully tried. In the alternative, he argues that he is entitled to a Machner hearing on his postconviction motion. We affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District III

Officials: HRUZ, J

OWI 2^nd – Unprofessional Error

2014AP2921-CR

State of Wisconsin v. David D. Hartl, Jr.

David Hartl, pro se, appeals a judgment convicting him of operating a motor vehicle while intoxicated, as a second offense. In addition, he appeals the order denying his postconviction motion. We affirm.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District I

Officials: BRENNAN, J

Juvenile Court – Sex Offender Registration

2015AP41

State of Wisconsin v. Ali H.

Ali H. appeals from a juvenile court order adjudicating him delinquent of one count of first-degree sexual assault with use of a dangerous weapon and two counts of burglary of a building or dwelling, and from an order denying his postdisposition motion. He argues that: (1) the juvenile court erroneously exercised its discretion at disposition when it allegedly considered adult criminal objectives and factors; and (2) he is entitled to a new hearing on sex-offender registration because the court applied the wrong legal standard and because a newly-enacted Milwaukee ordinance constitutes new evidence affecting the advisability of the court’s original adjudication. For the reasons which follow, we disagree and affirm.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District I

Officials: CURLEY, P.J.

Pleas & Sentencing – Resentencing

15AP130-CR

State of Wisconsin v. Steven Ray Gaddis

Steven Ray Gaddis appeals the judgment convicting him of one count of retail theft as a repeater, contrary to WIS. STAT. §§ 943.50(1m)(b) and 939.62(1)(a) (2013-14). He also appeals the order denying his postconviction motion. On appeal, Gaddis seeks resentencing, arguing that: the trial court failed to adequately explain its reasons for his sentence; and the trial court based his sentence on inaccurate information. This court affirms.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District III

Officials: HRUZ, J

OWI 1^st

2014AP2766

Oneida County V. Randall J. Busarow

Randall Busarow appeals a judgment finding him guilty of operating a motor vehicle while intoxicated as a first offense. Busarow argues that there was insufficient evidence to find him guilty, and that the circuit court erred when it admitted the results of his post-arrest breath test into evidence. We disagree and affirm.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District IV

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

Franks/Mann Hearing

2014AP2418-CR

State of Wisconsin v. Timothy M. Bender

Timothy Bender appeals a judgment of conviction for manufacturing THC and unlawful possession of a firearm, a decision denying his motion to suppress evidence, and an order denying his postconviction motion for reconsideration of the decision denying his suppression motion. Bender’s motion to suppress alleged Franks/Mann1 and probable cause violations in connection with a warrant issued for a search of rural farm property that included Bender’s residence. The circuit court found Franks/Mann violations in the form of three false or materially incomplete statements in the sworn complaint submitted in support of the warrant.2 The court examined the sworn complaint as if it had been revised to excise the false statements and to include material omissions. Based on its consideration of what we will refer to as the “revised allegations,” the court concluded that the revised allegations provide sufficient evidence of probable cause. Bender argues that the circuit court erred in reaching this conclusion. We agree with Bender that the revised allegations did not establish probable cause. Accordingly, we reverse

Decision

Reverse. Per Curiam

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Criminal

WI Court of Appeals – District II

Officials: Lundsten, Higginbotham and Sherman, JJ.

Statutory Interpretation – Motion to Dismiss

2014AP2270-CR

State of Wisconsin v. Albert J. Chagnon

Where holding a notebook filled with magazine and newspaper cutouts of young girls failed to meet the definition of “capturing a representation” as defined  in Wis. Stat. §942.09

“The problem with this broad interpretation is that it has no apparent limit. So far as we can tell, under the State’s reading of the “stores” language, the storage of any magazines or newspapers that happen to contain photographs of children is prohibited when the person storing those publications is a sex offender. This means that Chagnon would have violated WIS. STAT. § 948.14(2)(a) if he had done nothing more with the publications he received than stack them in his room. There is nothing in the State’s explanation of the “stores … data” language that requires proof that Chagnon actually did anything with the original images except store them in some manner.”

Decision

Reversed and Remanded – Recommended for publication

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Criminal

WI Court of Appeals – District IV

Officials: BLANCHARD, P.J.

Pleas & Sentencing – Plea Withdrawal

2015AP640-CR

State of Wisconsin v. Tammy R. Fullmer

Tammy Fullmer appeals an order of the circuit court denying her postconviction motion to withdraw pleas of no contest to operating while intoxicated-second offense and resisting or obstructing an officer. Fullmer moved for plea withdrawal on the grounds that she would have prevailed at the suppression hearing in this case had her trial counsel not been ineffective in failing to impeach officer testimony on a particular issue at that hearing, and if she had prevailed at the suppression hearing she would not have entered the pleas. In addressing the plea withdrawal motion, the circuit court agreed with Fullmer that her trial counsel had performed deficiently regarding the identified issue at the suppression hearing. However, the court also concluded that Fullmer failed to show that this deficient performance prejudiced Fullmer, based on other credible evidence presented at the suppression hearing.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District III

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

Pleas & Sentencing – Ineffective Assistance of Counsel

2014AP1833-CR

State of Wisconsin v. Michael D. Dean

Michael Dean appeals an order denying his motion to withdraw a guilty plea due to ineffective assistance of counsel. Dean argues his counsel was ineffective for failing to advise him of a potential plea of not guilty by reason of mental disease or defect (NGI), based on Dean’s purported memory loss. We reject Dean’s argument and affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District II

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

Pleas & Sentencing – Sentence Modification

2014AP2298-CR

State of Wisconsin v. Larry D. Mitchell

Larry Mitchell appeals a judgment of conviction for second-degree sexual assault of a child and an order denying his motion for sentence modification. Mitchell argues the circuit court erroneously determined he did not present a “new factor” for sentence modification purposes. Mitchell further argues his sentence was unduly harsh when compared to the sentence of another defendant who sexually assaulted the same victim. We reject Mitchell’s argument that the sentence was unduly harsh. However, we agree Mitchell presented new factors. Accordingly, we remand for the circuit court to exercise its discretion to determine whether the new factors warrant sentence modification.

Decision

Affirmed in part, reversed in part, and remanded. Per Curiam.

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