Weekly Case Digests — Aug. 17-20, 2015

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7^th Circuit Court of Appeals  – Civil Digests

Civil

7^th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Chapter 7 Bankruptcy – Trustee’s Fees

No. 15-1150 Mohns, Inc. v. Bruce Lanser

Trustee fee of $28,030.33 fit within the bounds of bankruptcy statute and were not excessive.

“The trustee has no automatic entitlement to a fee based on the amount of time that he spends, for his fee is to be based on the “services” he renders in the bankruptcy proceeding and a “commission” is a payment for a specific service rather than being based, as in the case of a salary, on number of hours worked. See generally Alvarado v. Corporate Cleaning Services, Inc., 782 F.3d 365 (7th Cir. 2015). Even so, the amount of time a trustee works on a case is relevant to valuing his services. The trustee has estimated without contradiction that he and his staff (which presumably he had to compensate out of his own pocket) spent at least 200 hours working on the case—a reasonable amount of time given Mohns’s litigiousness—at an average hourly expense of $140.15 ($28,030.33 ÷ 200), which is not excessive.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge.

Fair Credit Reporting Act – Standing

No. 15-1150 Erica Tierney v. Advocate Health and Hospitals

Appellants failure to prove that respondent-appellant met definition of a “consumer reporting agency” meant FCRA claims did not apply.

“Nevertheless, the plaintiffs take another shot at fitting Advocate within the definition of “consumer reporting agency.” In an effort to meet the first prong of the definition, they claim that Advocate assembles and shares its patients’ data “on a cooperative nonprofit basis,” even if not for fees. 15 U.S.C. §1681a(f) (emphasis added). Specifically, the com‐ plaint alleges that “Advocate, through Advocate Physician Partners, collects, manages, and shares a multitude of patient information … in a variety of ways.” It then lists several examples: programs to improve health care quality and efficiency; a Medicare savings program; a “shared savings con‐ tract with its biggest commercial insurance partner”; and the hiring of “outpatient care managers.” There is no allegation that these programs involve cooperative sharing of information with third parties. Judging by the allegations, these are internal Advocate programs, with the possible exception of the insurance contract. Nor is there any claim that these programs operate on a non‐profit basis. Even drawing reasonable inferences in the plaintiffs’ favor, we think these al‐ legations are too thin.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

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

Counterclaim Dismissal

No. 14-3075 Firestone Financial Corp. v. John R. Meyer

District court fails to explain why appellant’s counterclaims were insufficient to preclude summary judgment.

“In awarding summary judgment, the district court did not specifically discuss either of these defenses. Rather, at the hearing on Firestone’s motion, the court simply stated that none of the arguments “advanced by Mr. Meyer really undercut the entitlement of Firestone to summary judgment” and that the court did not “see any need … to expend time and effort for purposes of knocking out the arguments advanced by Mr. Meyer.” Likewise, the court’s subsequent judgment order simply stated that the court had “reviewed all memoranda and related documents filed by the parties and [had] orally expressed its conclusion that Meyer [had] not met his burden of proving his affirmative defenses.””

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: CUDAHY, EASTERBROOK, and ROVNER, Circuit Judges

Foreclosure Appeal

No. 13-2359 United States of America v. Dennis Williams

Foreclosure judgment is a final decision for purposes of appeal.

“Nor does federal law contain anything similar to 735 ILCS §5/151508(b)(iv), which permits a court to determine whether “justice was otherwise not done” in the auction; the foreclosure is self-­‐‑executing, without any need for confirmation by a court (though the sale is subject to the usual federal doctrines that allow relief from a judgment). Section 7403(c) also does not give the taxpayer a right of redemption. See United States v. Heasley, 283 F.2d 422 (8th Cir. 1960). We conclude, therefore, that a judgment foreclosing a federal tax lien and specifying how the proceeds are to be applied is appealable because it ends the litigation and leaves nothing but execution of the court’s decision, the standard definition of “final” under §1291. See, e.g., Gelboim v. Bank of America Corp., 135 S. Ct. 897, 902 (2015); Catlin v. United States, 324 U.S. 229, 233 (1945).”

Affirmed.

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Civl

7^th Circuit Court of Appeals

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Bankruptcy – Contract Interpretation

No. 14-2618 Marvin H. & Gail L. Richer v. Patrick Morehead

Notice on intention to exercise conversion option in contract held valid even when received earlier than prescribed by contract.

“A particular oddity of the Richers’ argument, though not one important to this case given that the letter announcing the exercise of the conversion option predated the option‐ conversion date by only one day, is that the property owner is better off the earlier the announcement of the investor’s intent to exercise the option. An early announcement gives the owner more time to take steps to ameliorate the effect of the exercise of the option on his business—time, for example, to obtain the money required to satisfy the option demand. And even though the owner has 180 days after the conversion to make final payment, he is likely to welcome more time—people are rarely in a hurry to pay their debts”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Retaliatory Dismissal

No. 13-2063 Lisa Barr v. Board of Trustees of Western Illinois University

Appellants dismissal with prejudice of previous claim where appellant failed to effective proper service precluded subsequent lawsuit.

“This argument is squarely foreclosed by a long line of our decisions applying preclusion doctrine to block just this kind of claim-splitting in the employment-discrimination context. See, e.g., Palka, 662 F.3d at 437–38; Czarniecki, 633 F.3d at 549– 51; Hermann, 999 F.2d at 225. The basic principle underlying these cases is that a plaintiff cannot evade preclusion by “identify[ing] a slightly different cause of action with one element different from those in the first, second, or third lawsuits between the same parties arising from the same events.” Czarniecki, 633 F.3d at 550. And the requirement to exhaust administrative remedies is no excuse for claimsplitting in this context. We’ve repeatedly explained that a plaintiff in this situation—that is, a discrimination claimant who is waiting for a right-to-sue letter on new claims that are factually linked to an earlier suit—can easily ask the district court to stay the first case until the EEOC letter arrives. See, e.g., Palka, 662 F.3d at 438; Czarniecki, 633 F.3d at 550–51.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

Officials: RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge

Reasonableness of Force – Qualified Immunity

No. 14-2808  Nancy Brown v. Wayne Blanchard

No. 14-2523 Tyler Williams v. Indiana State Police Dept.

Officer’s resorting to lethal force as initial response to suicidal victim not entitled to qualified immunity.

“It is well-established—and has been since long before the shooting at issue here—that “a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force.” Weinmann, 787 F.3d at 448; Marion, 559 F.3d at 705; Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002); Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Accordingly, we have repeatedly recognized that officers could not use significant force on nonresisting or passively resisting suspects. Abbott, 705 F.3d at 732; Estate of Starks, 5 F.3d at 233. If Nancy’s description is accurate, and we must credit her version at this stage because the district court determined that it created a genuine issue of fact, then deadly force was used here even though John was merely passively resisting their entreaties, and in the absence of any threats of violence by John toward the deputies or anyone else. See Phillips v. Community Ins. Corp., 678 F.3d 513, 525 (7th Cir. 2012) and Estate of Escobedo v. Bender, 600 F.3d 770, 780-81 (7th Cir. 2010) (discussing conduct constituting merely passive resistance). In fact, Nancy had entered the room and engaged in physical contact with John, and at no point did he threaten violence towards her nor did she express any concern with such a possibility to the deputies. Moreover, Such was able to see John through the outside window, and could observe his behavior. At that time, there was no indication that John posed a threat to others, and the extent to which he posed a threat to himself is not established by this record, given that he was observed sitting, smoking a cigarette, drinking a beer, walking and talking and not in apparent immediate danger.”

Affirmed.

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Civil

7^th Circuit Court of Appeals

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

Title VII – Retaliatory Dismissal

No. 14-2621 Chontel Miller v. Polaris Laboratories LLC

Reference to appellant as the “colored girl” and manipulation of appellants work to intentionally impede on performance as against employees of other ethnic backgrounds enough to raise issue of material fact as to whether discrimination has occurred in the work place

“Miller can establish that she engaged in a protected activity by complaining to New and then Culp on September 18, 2008, after Ballard (or someone in the department) had called her “the colored girl.” She also has evidence of racially charged language from Kemp and Ballard. Her accusation prompted an investigation of the relevant parties. In the course of that inquiry, both Kemp and Ballard were inter‐ viewed. Both Miller and Young testified that Ballard’s and Kemp’s subsequent manipulation of Miller’s work occurred after the September 18 incident. Admittedly, neither Miller nor Young placed precise dates on the treatment they allege. But given the evidence of discriminatory statements by Kemp and Ballard, the timing and content of the poor treatment is sufficient to raise the inference that Ballard and Kemp were responding to Miller’s report to New and Culp. It is not beyond any dispute of material fact whether the actions of these workers kept Miller’s productivity scores artificially low. In that sense this case differs from Jajeh v. County of Cook, 678 F.3d 560 (7th Cir. 2012), in which there was far more mathematical and factual certainty about whether an employee would have received a sufficient performance score absent discriminatory meddling. Finally, it is undisputed that Miller suffered an adverse action—the loss of her job—because of her low numbers.”

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, FLAUM, and MANION, Circuit Judges

Negligence – Proximate Cause

14-3171 Robert Spierer v. Corey Rossman

Where classmates drinking with missing student immediately before her disappearance not held negligent.

“Because he was with Lauren the majority of the evening and bought drinks for her, Rossman was nearest to assuming a duty to care for her. But he also appears to have been intoxicated—so much so that it is questionable whether he could effectively take care of himself, still less another person. “Indiana courts have shown great reluctance to require an individual to take any action to control a third party when there is no special relationship between them.” Hawn, 598 N.E.2d at 633. We have found no decisions under Indiana law where persons were held liable for the actions of their social peers, absent additional factors not present here. To hold otherwise would be to extend the reach of negligence far beyond special relationships and into virtually all social relationships and situations where a risk of danger might be present.”

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Civil

7^th Circuit Court of Appeals

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

Right to Marry

No. 14-2910 Rebecca Riker v. Bruce Lemmon

Appellant petition to marry inmate improperly denied by DOC.

“Notably, the record does not reveal why prison officials would have difficulty monitoring the marriage ceremony to ensure that Ms. Riker does not violate prison regulations or relay sensitive information to Vest. See Turner, 482 U.S. at 90 (noting that “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable”). The Department offers no explanation for why it could not permit Ms. Riker’s marriage request while simultaneously maintaining a secure facility. It is implausible to suggest, without some supporting evidence, that a brief marriage ceremony cannot be accommodated without threatening institutional security and without imposing more than a de minimis impact on prison resources. Indeed, Ms. Riker submits that the ceremony would “last but a brief few Notably, the record does not reveal why prison officials would have difficulty monitoring the marriage ceremony to ensure that Ms. Riker does not violate prison regulations or relay sensitive information to Vest. See Turner, 482 U.S. at 90 (noting that “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable”). The Department offers no explanation for why it could not permit Ms. Riker’s marriage request while simultaneously maintaining a secure facility. It is implausible to suggest, without some supporting evidence, that a brief marriage ceremony cannot be accommodated without threatening institutional security and without imposing more than a de minimis impact on prison resources. Indeed, Ms. Riker submits that the ceremony would “last but a brief few minutes in a highly regulated setting.”31 The Department does not offer testimony or other evidence to refute Ms. Riker’s claim. See id. at 98 (noting that the Court was “aware of no place in the record where prison officials testified that such ready alternatives would not fully satisfy their security concerns”). Here, as in Turner, there may well be “obvious, easy alternatives to the [prohibition of Ms. Riker’s marriage ceremony] that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives.” Id.

Reversed and Remanded

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Civil

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and SPRINGMANN, District Judge

Remittitur – Jury Award

 No. 14-2862 Seneca Adams v. City of Chicago

District court abuses discretion by reducing appellant jury award without option of new trial.

“One troubling feature of the court’s rationale for reducing the verdicts was its apparent reliance on its own general knowledge of the Cook County Jail. The district court seized on the fact that the Adams brothers’ lawyer in his closing argument at trial made admittedly inappropriate remarks about the Cook County Jail, calling the inmates “animals” and that he wouldn’t wish them “on anybody except the murderers, rapists, violent criminals who should be there.” That isolated statement convinced the judge that the jury award could only have been the “product of the jury’s fevered imaginings or personal vendetta.” Farfaras, 433 F.3d at 566 (quoting AIC Sec. Investigations, Ltd., 55 F.3d at 1285). But the record contained far more than counsel’s overblown argument. We note as well that the court gave the jury the usual instruction warning it that arguments of counsel are not evidence—an instruction we routinely assume the jury follows.”

Vacated and Remanded with instructions to reinstate jury verdict.

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Civil

7^th Circuit Court of Appeals

Officials: RIPPLE and ROVNER, Circuit Judges, and KENNELLY, District Judge

Constructive Discharge

13-1552; 13-1553 Margaret Wright v. Illinois Department of Children and Family Services

Appellant assignment to desk duty while engaged in fitness-for-duty examination did not meet criteria for constructive discharge.

“This case law makes clear that the district court correctly concluded that Ms. Wright had failed to demonstrate that she was constructively discharged. There is no evidence that the Department had decided to terminate Ms. Wright. It certainly had not told Ms. Wright that she would be fired, nor did her supervisors’ conduct suggest such a result was a certainty. Cf. Kodish, 604 F.3d at 502; Univ. of Chicago Hosps., 276 F.3d at 332. Given the possibility of harm to the children with whom she inevitably would come in contact had she performed her regular duties, the Department quite reasonably assigned her to desk duty until the result of her fitness-for-duty examination could be evaluated. Moreover, while on desk duty, Ms. Wright had ample time to work on her grievance and, as far as the record discloses, to assist, if she chose, other case workers.47 Once she refused to submit to the examination, the Department initiated disciplinary proceedings against her. While those proceedings were pending, Ms. Wright chose to use her vacation time and remove herself from the office. Upon her return, she elected to submit her retirement paperwork.”

Affirmed.

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7^th Circuit Court of Appeals  – Criminal Digests

Criminal

7^th Circuit Court of Appeals

Officials: BAUER and SYKES, Circuit Judges, and REAGAN, Chief District Court Judge.

Pleas & Sentencing – Plea Withdrawal

No. 14-3427 United States of America v. Adrian Collins

No error found in denying motion to withdraw plea, acceptance of responsibility adjustment withheld due to attempts to withdraw plea.

“Vazquez‐Ortero is the best factual analog to the instant case, but a long line of legal reasoning supports our result. At a plea hearing, it is the district judge who observes a defendant’s appearance, demeanor, and tone of voice. U.S. v. Walker, 447 F.3d 999, 1005 (7th Cir. 2006). Crediting the judge’s impressions over a defendant’s subsequent “bare protestations,” Chavers, 515 F.3d at 725, prevents the entry of a plea from being “some empty ceremony,” a mere “trifle[] that defendants may elect to disregard,” United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999). That is why a denial of guilt that contradicts a defendant’s testimony does not establish a fair and just reason to withdraw a plea. Chavers, 515 F.3d at 725 (citing U.S. v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005)). The district court treated Collins’ sworn, freely given statements as conclusive. Accordingly, Collins has “no chance of success on appeal.” Stewart, 198 F.3d at 987. “[T]he game is over.” Id.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: FLAUM, RIPPLE, and MANION, Circuit Judges

Writ of Habeas Corpus

No. 15-1145 Andre Jackson v. Marc Clements

Petition for writ of habeas corpus by appellant invalid when appellant is no longer a pre-trial detainee.

“Mr. Jackson, however, was no longer a pre-trial detainee when the district court ruled on his habeas petition. Mr. Jackson represents that he was a pre-trial detainee when he filed his petition but acknowledges that he was subsequently convicted in Wisconsin of identity theft—the crime that prompted the extradition. Once Mr. Jackson was convicted, the claims concerning his pre-trial confinement became moot. See Yohey v. Collins, 985 F.2d 222, 228–29 (5th Cir. 1993) (“[C]laims for federal habeas relief for pretrial issues are mooted by Yohey’s subsequent conviction.”); Fassler v. United States, 858 F.2d 1016, 1018 (5th Cir. 1988); Thorne v. Warden, Brooklyn House of Det. for Men, 479 F.2d 297, 299 (2d Cir. 1973); Medina v. People of State of Cal., 429 F.2d 1392, 1393 (9th Cir. 1970). In order for federal courts to retain jurisdiction over a case, there must be an “actual, ongoing controvers[y],” and the absence of one renders a case moot and deprives the court of subject matter jurisdiction. Fed’n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (quoting Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990–91 (7th Cir.2000)); see also Damasco v. Clearwire Corp., 662 F.3d 891, 894 (7th Cir. 2011); Pakovich v. Verizon LTD Plan, 653 F.3d 488, 492 (7th Cir. 2011). Thus, when the district court issued its decision denying Mr. Jackson’s petition, it lacked jurisdiction to do so.”

Vacated and Remanded.

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Criminal

7^th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and ROVNER, and WILLIAMS, Circuit Judges

Revocation – Resentencing

No. 14-3265 United States of America v. Kenneth Raney

District court revocation of appellant extended supervision valid, but failure to provide explanation for selection of conditions of supervised release called results in resentencing.

“The court arguably justified its selection of the nine month term of imprisonment. See United States v. Phillips, 2015 WL 3937527, *3, — F.3d — (7th Cir. 2015) (court’s comments justifying within-guidelines sentence sufficient where court correctly calculated guidelines range and noted the relevant statutory factors supporting the sentence). And as we noted in Phillips, to the extent that Raney argues that the list of factors in section 3583(e) is exclusive, he is mistaken. — F.3d at —, 2015 WL 3937527 at *2. A district court may consider the factors listed in other subsections of section 3553(a) even though those factors are not mentioned in § 3583(e), so long as the court relies primarily on the factors listed in § 3583(e). — F.3d at —, 2015 WL 3937527 at *2. But “[w]hen a sentence consists of more than one form of punishment, such as prison, a fine, restitution, and supervised release, and one of the forms is as in this case altered by the appellate court, it cannot be assumed that the others should be unaffected.” United States v. Downs, 784 F.3d 1180, 1182 (7th Cir. 2015) (citing Kappes, 782 F.3d at 866-67; Thompson, 777 F.3d at 382). We therefore vacate the entire sentence and remand for resentencing consistent with this opinion. On remand, the court should apply our recent decisions addressing the problem of unjustified, vague or inappropriate conditions of supervised release. See United States v. Sandidge, 784 F.3d 1055, 1067-1069 (7th Cir. 2015); Kappes, 782 F.3d at 847-863; Thompson, 777 F.3d at 373-82. Many years have passed since Raney was first sentenced and the court first ordered the conditions governing his supervised release. The court and the probation office now have considerable experience understanding the challenges involved in supervising Raney. The conditions of supervised release may now be tailored to address those challenges as well as other issues the district court deems necessary after considering the factors set forth in section 3583(e).”

Affirmed in part. Vacated and Remanded in Part

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Criminal

7^th Circuit Court of Appeals

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

Writ of Habeas Corpus – Ineffective Assistance of Counsel

14-1898 Wayne Kubsch v. Ron Neal, Superintended, Indiana State Prison

Trial counsel for appellant failure to get ex part witness interview statement admitted did not rise to the level of ineffective assistance of counsel. Appellants numerous claims rejected.

“We reject all three claims. Kubsch argues for a constitutional right to defend himself with otherwise inadmissible hearsay, at least if the hearsay seems sufficiently reliable and is sufficiently important to his defense. See Chambers v. Mississippi, 410 U.S. 284, 300–02 (1973). Kubsch’s evidence is not sufficiently reliable to fit that narrow constitutional exception and to have required Indiana courts to disregard long established rules against using ex parte witness interviews as substantive evidence at trial. His able trial counsel tried hard to have the statement admitted; they were not successful but also were not constitutionally ineffective.”

Affirmed.

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Criminal

7^th Circuit Court of Appeals

Officials: RIPPLE, MANION, and WILLIAMS, Circuit Judges

Writ of Habeas Corpus – Double Jeopardy

No. 14-2876 Humberto Sanchez-Rengifo v. J.R. Caraway

Failure to obtain certificate of appealability from district court rendered appellants appeal of habeas corpus denial a petition for a certificate of appealability. Appellant fails to show substantial denial of a constitutional right.

“When law enforcement have not arranged for the suggestive circumstances resulting in the identification, due process usually is satisfied by the “safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.” Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012). There is no evidence in the record that these safeguards were not adequate here; indeed, the transcript pages suggest that the victim was cross-examined regarding her identification at multiple points during the trial. See id. (identifying the “right to confront the eyewitness” as one of the safeguards of the adversary system)”

“Because the legislature defined the unit of punishment as each act of child sexual abuse, Mr. Sanchez-Rengifo did not suffer multiple punishments for the same crime, and, consequently, his sentences did not run afoul of the Double Jeopardy Clause. Put simply, he raises no substantial constitutional question that can serve as a predicate for a certificate of appealability, and we can take no further action in this matter.”

Appeal Dismissed

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER and KANNE, Circuit Judges, and DARRAH, District Judge

Writ of Habeas Corpus – Double Jeopardy

No. 14-2809 Demetrius M. Boyd v. Gary A. Boughton

Petition for writ of habeas corpus denied, appellant double jeopardy argument falls short.

“In a footnote in his reply brief, Boyd himself concedes that Dixon does not create any clearly established federal law on this issue.6 He argues instead that the law he relies upon is established not by Dixon but by other Supreme Court jurisprudence. His formulation of the clearly established federal law is “that it violates double jeopardy to punish an individual twice for the same offense without the legislature’s express approval.” Boyd may be correct in his general statement of the law. But that statement alone does not answer the critical question—what constitutes the same offense for the purposes of the Double Jeopardy Clause? The lesser-included-offense issue was the critical question in Boyd’s case—it was outcome determinative, and it is the very issue he appeals here. Dixon provides the Supreme Court’s last word on it, so Boyd cannot avoid it. In fact, while attempting to distance himself from Dixon, Boyd simultaneously asks us to adopt the “incorporation” approach laid out in Justice Scalia’s Dixon concurrence. Boyd’s own request demonstrates that his path to proving a double-jeopardy violation must pass through Dixon”

Affirmed

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WI Court of Appeals  – Civil Digests

Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Discretionary Review

2014AP2590 Peter Bormuth v. Wisconsin Department of Natural Resources

Peter Bormuth, pro se, appeals an order dismissing his petition for judicial review. Bormuth had requested a contested case hearing concerning an air pollution control permit granted to Enbridge Energy, Limited Partnership. Bormuth argues equitable estoppel precludes dismissal of his petition, and the interests of justice require this court to exercise its discretionary authority to reverse under WIS. STAT. § 752.35.1 We affirm.

Decision

Affirmed

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Civil

WI Court of Appeals – District II

Officials: NEUBAUER, C.J.

OWI-PAC – Motion to Supress

2015AP298 Village of Fredonia v. Bruce A. Gossett

Bruce Gossett appeals from an order finding him guilty of operating a motor vehicle while intoxicated and operating a commercial motor vehicle with a prohibited blood alcohol concentration, contrary to WIS. STAT. § 346.63(1)(a) and (b). Gossett’s sole argument on appeal is that the trial court erred in denying his motion to suppress evidence because the arresting officer lacked a reason to believe that Gossett was operating his commercial vehicle while having an alcohol concentration above zero before requesting a preliminary breath test (PBT). We reject Gossett’s argument and affirm the trial court’s order and the subsequent conviction.

Decision

Affirmed

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Civil

WI Court of Appeals – District IV

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

Declaratory Judgment

2014AP2009 Sheboygan Falls Insurance Company v. Daniel F. Zinders

Sheboygan Falls Insurance Company appeals a judgment and challenges the circuit court order denying its motion for declaratory and summary judgment. For the reasons set forth below, we affirm the judgment of the circuit court.

Decision

Affirmed

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WI Circuit Court of Appeals  – Criminal Digests

­­Criminal

WI Court of Appeals – District I

Officials: Kessler, Brennan and Bradley, JJ.

Ineffective Assistance of Counsel

2014AP2176-CR State of Wisconsin v. Roy L. Mckee, Jr.

Royce L. Mckee, Jr., appeals from an amended judgment, entered upon a jury’s verdict, convicting him of strangulation and suffocation, substantial battery, and disorderly conduct, all as acts of domestic No. 2014AP2176-CR 2 abuse and as a repeater. See WIS. STAT. §§ 940.235(1), 940.19(2), 947.01(1), 968.075(1)(a), 939.62(1)(a)-(b) (2011-12). He also appeals the order denying, in part, his postconviction motion. Mckee argues that his trial counsel gave him ineffective assistance by conceding during his closing argument that a critical portion of the victim’s testimony was true. We reject Mckee’s claim and affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District I

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

Pleas & Sentencing – Sentence Modification

2014AP2227 State of Wisconsin v. Steven J. Keizer

Steven J. Keizer, pro se, appeals an order denying his motion for resentencing or sentence modification. He also appeals the order denying reconsideration. Because we conclude that Keizer fails to demonstrate the existence of a new factor warranting relief from his sentence, we affirm

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District 1

Officials: BRADLEY, J.

Prejudicial Error

2014AP451-CR; 2014AP452-CR State of Wisconsin v. Randall Ray Madison

Randall Ray Madison appeals from a judgment entered after a jury found him guilty of violating a domestic abuse injunction, obstructing or resisting an officer, and bail jumping, contrary to WIS. STAT. §§ 813.12(4), 968.075(1)(a), 946.41(1) and 946.49(1)(a) (2011-12). He also appeals the order denying his postconviction motion seeking dismissal or a new trial. Madison claims: (1) he was prejudiced when the State mentioned an incorrect date during its rebuttal closing; and (2) the trial court erroneously exercised its discretion when it refused to allow Madison to testify that the victim was “stalking him.” Because Madison was not prejudiced by the State’s reference to an incorrect date in its closing, and because the trial court properly excluded Madison’s unsupported accusations against the victim, this court affirms.

Decision

Affirmed.

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Criminal

WI Court of Appeals – District I

Officials: BRADLEY, J.

Termination of Parental Rights

2015AP986; 2015AP987; 2015AP988 State of Wisconsin v. K.K.

K.K. appeals the orders terminating her parental rights to her three children. She claims the trial court erroneously exercised its discretion when it terminated her parental rights without properly evaluating the harm that would result from severing the legal relationship with K.K. Because the trial court properly considered all of the relevant statutory factors before reaching the reasonable conclusion that termination was in the best interests of K.K.’s children, this court affirms.

Decision

Affirmed.

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