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Weekly Case Digests — Sept. 8 – Sept. 11, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 11, 2015//

Weekly Case Digests — Sept. 8 – Sept. 11, 2015

By: WISCONSIN LAW JOURNAL STAFF//September 11, 2015//

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7th CIRCUIT COURT OF APPEALS – CIVIL

Civil

7th Circuit Court of Appeals

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

Freedom of Information Act

No. 14-3733 David Rubman v. USCIS

Disclosure of a single document when numerous documents requested in relation to H1-B visa was inadequate to satisfy request.

“It’s possible that Rubman’s request was too “non-specific and unwieldy” to permit an effective search, as the district judge thought, though we note that CIS has never specifically lodged that objection, and the search was restricted to a four-year period. But if so, that’s the exact situation addressed by 6 C.F.R. § 5.3(b): If Rubman’s request did not “reasonably describe records,” CIS was required to “give [him] an opportunity to discuss [his] request” and clarify it. We have no doubt that CIS believed in good faith that it was being helpful and efficient by generating a summary data table in response to Rubman’s FOIA request. We certainly don’t want to discourage agencies from providing raw data, database query results, or newly generated charts and tables when a FOIA request asks for them, when there are no other responsive records available, or when a requester consents to one of those formats. But when Rubman asked for “all documents reflecting statistics” and then objected to CIS’s decision to respond with a newly generated summary table, the agency was required to sea”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

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

Seizure of Assets – State Sponsored Terrorism

No. 14-3344; 14-3327 Mary Wyatt v. Francis Gates

Plaintiffs awarded judgments in state-sponsored terrorism cases against foreign governments and who seek to attach property are not required to comply with notice requirements of §1608(e) before executing judgment.

“As we held in Gates, “§ 1610(c) simply does not apply to the attachment of assets to execute judgments under § 1610(g) for state-sponsored terrorism.” 755 F.3d at 575. We reached that conclusion based on the structure and language of the FSIA and its legislative history. We also found that conclusion was consistent with the legislative purpose behind the 2008 FSIA Amendments that added § 1610(g) to the statute. The purpose of those amendments was “to make it easier for terrorism victims to obtain judgments and to attach assets.” Id. at 576. “Exempting attachments under § 1610(g), that is, attachments stemming from terrorism related judgments, from § 1610(c)’s solicitous notice requirements is entirely consistent with the liberalizing purpose of the 2008 Amendments.” Id. at 576–77. The service of default judgments under § 1608(e) is one of § 1610(c)’s solicitous notice requirements, from which attachments under § 1610(g) are exempt. The Gates plaintiffs, as terrorism victims who obtained a judgment under § 1605A, could proceed to attachment and execution under § 1610(g) without complying with § 1610(c). That means they are also exempt from § 1608(e), at least as a prerequisite for 24 Nos. 14-3327 and 14-3344 attachment and execution. A failure to comply with § 1608(e) does not render invalid their attachment of assets and satisfaction of their judgment for state-sponsored terrorism.”

Affirmed

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Civil

7th Circuit Court of Appeals

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

Class Action – Class Certification – Fair Labor Standards Act

No. 14-3018 Mariseli Gomez Bell v. PNC Bank

Employees willfully denied overtime payment by PNC bank certified as a class.

“It is true that some employees have been made whole as a result of the PNC investigation. It is entirely possible, however, that these employees were still injured and could collect damages beyond their actual wages. Under both Illinois law and the Fair Labor Standards Act, a good faith violation does not absolve the employer of liability. 820 ILCS 105/12; 29 U.S.C. §§216, 260. Nor does an agreement between the employee and the employer to work for less than the required wage. 820 ILCS 105/12(a). Both Illinois law and the Fair Labor Standards Act distinguish between willful violations and violations made in good faith for purposes of determining the extent of an employer’s liability. 820 ILCS 105/12; 29 U.S.C. §§216, 260. Whether or not PNC had an unlawful policy denying required compensation is relevant to whether PNC willfully denied overtime pay to its employees, or whether such denials occurred despite a good faith attempt to comply with the statute. These questions are, in turn, relevant to the extent of damages under Illinois law and the Fair Labor Standards Act. See 820 ILCS 105/12; 29 U.S.C. §§216, 260. In short, many issues remain unanswered and the district court was correct to conclude that a class action would be an appropriate and efficient pathway to resolution.”

Affirmed

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Civil

7th Circuit Court of Appeals

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

Breach of Contract – Summary Judgment – Motion for Leave to Amend

No. 14-1437 Life Plans Incorporated v. Security Life of Denver Insurance Company

Ambiguous language of arbitrage agreement as related to termination made summary judgment inappropriate. District court abused discretion in not allowing Appellant to amend complaint.

“The agreement is ambiguous. These two provisions conflict with one another and do not refer to one another. They are fairly susceptible to both interpretations. Life Plans’ reading gives effect to the three-year term of commitment and harmonizes the “will continue indefinitely” clause in the termination provision with the commitment term. Security Life offers a more aggressive reading of the termination provision emphasizing the absence of language limiting the parties’ rights to terminate, but that reading effectively nullifies the three-year provision. Both readings are at least plausible. In light of this ambiguity, we consider extrinsic evidence that might shed light on the parties’ intent.”

“None of those exceptions that might justify denying amendment was present in this case. Life Plans’ request for amendment was timely. Life Plans sought amendment promptly after discovering a factual basis for its new claims and tried to mitigate any delay that could result from amending the complaint late in discovery. Though the district court expressed frustration because the request was made when there was only a month remaining before the deadline for completing discovery, the motion was filed promptly and would not have caused undue delay. Life Plans sought leave to amend just ten days after completing the deposition of Security Life’s CEO, whose testimony showed for the first time, according to Life Plans, that termination of the agreement was forced on Security Life by ING. Mindful of the impending discovery deadline, Life Plans told the court that it would not ask to re-depose any witnesses. And Security Life had completed only one deposition when amendment was sought, and that witness had already been asked about the amended complaint”

Reversed and Remanded

Rovner concurs and dissents

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Civil

7th Circuit Court of Appeals

Officials: CUDAHY, KANNE, and HAMILTON, Circuit Judges

Abuse of Discretion – Fraud

No. 15-1328 Neal Secrease,  Jr. v. Western & Southern Life Insurance

District court properly dismissed appellant action with prejudice for falsifying evidence.

“We find no error in the district court’s factual finding of attempted fraud. The district judge reasonably concluded that Secrease intended to mislead the court into granting his request to compel arbitration. His actual 2006 contract did not contain the arbitration clause, and Secrease admitted that the inside pages of the contract that he submitted were from a different employee’s contract. He could not substantiate his assertions that he combined the documents only accidentally, that he tried to call the court to correct his mistake, and that he had signed another contract containing an arbitration clause. The district court’s findings that Secrease had falsified evidence in bad faith and lied about it were amply supported by the evidence and certainly were not clearly erroneous.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges

Motion to Dismiss – Failure to Respond

No. 14-3668 Dr. Robert L. Meinders, D.C. v. United Healthcare, Inc.

District court dismissal of case without oral argument or hearing improper where appellant did not have “full and fair opportunity to respond”

“We are hard pressed to find the “new issue” that Meinders raised in his opposition brief on which the district court premised its “exceptional circumstances” determination. The only issues that Meinders’ opposition brief raised were that United was not a signatory to the Provider Agreement and that United’s ownership theory did not authorize it, as a nonsignatory, to enforce the agreement’s arbitration provision. At any rate, once the district court permitted United to file its reply brief, the court should have granted Meinders leave to file a sur-reply responding to United’s novel assumption theory and Van Ham’s declaration. Due process, we have cautioned, requires that a plaintiff be given an opportunity to respond to an argument or evidence raised as a basis to dismiss his or her claims. See, e.g., Smith v. Bray, 681 F.3d 888, 903 (7th Cir. 2012) (“[D]istrict courts need to ensure that they do not base their decisions on issues raised in such a manner that the losing party never had a real chance to respond.”); English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993) (“The opportunity to respond is deeply imbedded in our concept of fair play and substantial justice.”). When strict adherence to local rules, such as S.D. Ill. L.R. 7.1(c)’s proscription on sur-reply briefs, threatens to deprive a litigant of the opportunity to respond, the local rules must give way to considerations of due process and fundamental fairness. Accordingly, we hold that the district court deprived Meinders due process by entering judgment against him on law and facts to which he did not have a full and fair opportunity to respond”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

Officials:

Respondent activity of purchasing cheese from primary supplier and communication in course of legitimate business relationship not synonymous with violation of the Sherman Act.

“Appellants’ core evidence, communications between employees at Schreiber and DFA, could be understood as a part of a legitimate business relationship as readily as they could be understood as a part of a conspiracy. Although the two companies were competitors, DFA was also one of Schreiber’s main suppliers, and Schreiber was one of DFA’s largest customers, giving them a number of legitimate reasons to communicate with each other. Additionally, Appellants have not pointed to a single communication that suggests a meeting of the minds to fix prices.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Prisoner’s Rights – Prenatal Care – Deliberate Indifference

No. 14-3185 Wenona White v. Timothy Bukowski

District court dismissal of appellant claim for failure to exhaust administrative remedies improper where no administrative remedies existed.

“Even if the plaintiff had been told upon her return from the hospital that she had only four days in which to file a grievance, that deadline would (as in Hurst) have been unreasonably short for a woman who had just given birth to a severely impaired child. Like the plaintiff in the King case she was effectively prevented from filing a grievance, and so there can be no argument that she failed to exhaust her administrative remedies.”

Reversed & Remanded

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Civil

7th Circuit Court of Appeals

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

Collective Bargaining Agreement – Interim Agreements

No. 14-3737; 14-3726 Michels Corporation v. Central States Southeast and Southwest Areas Pension Fund

Short term agreement between employer and union altering duty of employer to contribute to pension fund sufficient to end employer duty and allow for new arrangement.

“Elsewhere the Trust Agreement also recognizes that there might be something other than a collective bargaining agreement. Article III lists “each new or successive collective bargaining agreement, including but not limited to interim agreements and memoranda of understanding between the parties” as among the items that must be sent to the Fund. The term “interim agreement” describes the extensions (and the November 11, 2015 amendment and extension) perfectly. The conclusion that these were separate agreements thus fits with the language of the 2006 CBA and with the language of the Trust Agreement. In concluding that the November 15, 2011 agreement was insufficient to allow Michels to withdraw from the Fund, the Fund contravened the plain language of the Trust Agreement. Its decision was therefore arbitrary and capricious.”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

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

Petition for Review – Unfair Labor Practices – Union

No. 14-2991; 14-3361 AutoNation, Inc. v. NLRB

Holding of meeting where employer attempted to prevent employees from unionizing held to violate unfair labor practices act.

“The Board concluded next that Davis and Andrews made implied promises of wage increases to deter workers from supporting the Union. During the meeting, Theodorou had read aloud a question a worker had submitted previously on the topic of worker pay. The worker wanted to know if it was “possible without voting the union into the dealership that the dealers’ [sic] current pay plan can be evaluated or updated more for progressing technicians whose current pay plan has a low pay ceiling.” Andrews responded that such a thing was “absolutely possible,” then added, “it’s something we try to do every year,” and that “the first thing we need to do” is to “look at that.” Later, Davis said that “if we’re not being fair or we’re not being competitive to what you guys could get on the open marketplace on your own, I think there would be a definite willingness to consider making adjustments for those of you who are negatively impacted by that,” adding, “we want a chance to address them [your concerns] before you pay somebody else to address them.”

Decision Enforced

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Civil

7th Circuit Court of Appeals

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

ERISA – Standard of Review

No.14-1984 Mary C. Fontaine v. Metropolitan Life Insurance Company

Illinois insurance regulation prohibiting discretionary clauses not preempted by ERISA.

“MetLife’s final argument is that § 2001.3 does not prohibit all discretionary clauses but only clauses reserving discretion “to interpret the terms of the contract, or to provide standards of interpretation or review that are inconsistent with the laws of this State.” MetLife claims that clauses reserving discretion to make benefit determinations are unaffected by § 2001.3. In Firestone, the Supreme Court rejected this artificial dichotomy between “benefit determinations” and “contract interpretation,” pointing out that “the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue.” 489 U.S. at 115. MetLife does not grapple with this point, much less argue that this is an exceptional case where its benefit determination did not “turn on the interpretation of terms in the plan at issue.” Id”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Breach of Contract

No. 14-1949 Daniel Avila v. CitiMortgage, Inc.

Dismissal of appellant breach of contract claim on grounds that he was barred from pursuing legal action due to a material default improper.

“Section 22 of the mortgage agreement describes CitiMortgage’s remedies in the event of a default by the homeowner. Specifically, the lender is entitled to accelerate a loan and initiate judicial foreclosure proceedings, but only after giving the homeowner notice of the alleged default and providing 30 days to cure it. (Acceleration in turn triggers the borrower’s right to reinstate the mortgage agreement if certain conditions are met.) Avila argues that because section 22 establishes a specific process for dealing with a default, the homeowner’s first default would not make the mortgage agreement thereafter wholly unenforceable. And while CitiMortgage could have accelerated Avila’s loan in response to his default, applying the insurance proceeds to pay down his loan balance was not a remedy for missed payments. That’s a reasonable reading of the mortgage contract. Section 5 appears to envision the survival of its terms after a default. As we’ve explained, that section gives CitiMortgage the right to apply insurance proceeds toward the outstanding loan balance under certain specified conditions, including the homeowner’s abandonment of the property or foreclosure by CitiMortgage. Abandonment is a default per se under certain circumstances (under section 6 of the agreement), and foreclosure necessarily follows a default. These provisions of section 5 would be superfluous if any default immediately gave CitiMortgage the right to apply an insurance payout toward the mortgage loan. See Cent. Ill. Light Co. v. Home Ins. Co., 821 N.E.2d 206, 213 (Ill. 2004) (“[A] contract[] is to be construed as a whole, giving effect to every provision, if possible, because it must be assumed that every provision was intended to serve a purpose.”).”

Affirmed as to breach of fiduciary duty claim

Reversed and remanded as to dismissal of breach of contract claim

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Civil

7th Circuit Court of Appeals

Officials: MANION, ROVNER, and HAMILTON, Circuit Judges

Affordable Care Act

No. 14-1430; 14-1431 Diocese of Fort Wayne-South Bend, Inc. et al v. Sylvia Mathews Burwell

ACA regulation mandate related to contraceptive services did not impose substantial burden on appellant free exercise rights.

“The Catholic plaintiffs also contend that the mandate has the effect of artificially dividing the Catholic Church into a “worship” arm (the Diocese) and a “good works” arm (the remaining Catholic plaintiffs). Again, though, groups affiliated with the Diocese may opt out of providing contraceptive coverage using the accommodation and thus continue to provide health coverage under the Diocese’s health plan. Both arms of the Church are therefore extricated from the provision of objectionable contraceptive services, albeit through different means. Moreover, any division is created not by the ACA but by the Internal Revenue Code that excepts “churches, their integrated auxiliaries, and conventions or associations of churches” from certain requirements. See 26 U.S.C. § 6033(a)(3)(A)(i). It is difficult to see how laws and regulations that grant tax advantages to churches and their integrated auxiliaries somehow impose a substantial burden on affiliates.”

Reversed and Remanded

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7th CIRCUIT COURT OF APPEALS – CRIMINAL

Criminal

7th Circuit Court of Appeals

Officials: BAUER, KANNE, and WILLIAMS, Circuit Judges

Pleas & Sentencing – Sentence Calculation – Unreasonable Sentence

No. 14-3460 United States of America v. Zenon Grzegorczyk

Appellant failure to fully carry through with conspiracy or solicitation to commit murder does not alter applicability of §2X1.1(c)(1) of the US Sentencing Commission Guidelines Manual.

“Grzegorczyk’s argument fails for two reasons. First, it ignores the plain language of § 2X1.1(c)(1), which instructs the court not to apply § 2X1.1 when a solicitation is expressly covered by another offense Guidelines section. Second, it fails to consider the fact that § 2A1.5 already accounts for instances where the acts necessary for the completion of the crime solicited have not occurred. This is evidenced by specific cross reference instructions directing the court to apply § 2A2.1 if the offense resulted in an attempted murder or assault with intent to commit murder (which would yield a base-offense level of 38) or § 2A1.1 if the offense resulted in the death of the victim (which would yield a base-offense level of 43). U.S.S.G. § 2A1.5(c). Accordingly, Grzegorczyk’s claim as to the applicability of § 2X1.1(b)(3)(A) to his sentence fails.”

Affirmed

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Criminal

7th Circuit Court of Appeals

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges

Pleas & Sentencing – Conditions of Supervision

No. 14-1369 United States of America v. Robert D. Falor

No. 14-1603 United States of America v. Michael Richard Jines

District court failure to make finding in support of discretionary conditions imposed on appellants is not a harmless error.

“We agree that the district courts committed procedural error in imposing discretionary conditions of supervised release without considering the § 3553(a) factors and explaining why those factors supported the imposition of the conditions. This court has stressed the importance of justifying the conditions and length of supervised release at sentencing by providing anadequate statement of reasons, reasonably related to the applicable § 3553(a) factors, because this practice allows for meaningful appellate review. See Kappes, 782 F.3d at 845; Thompson, 777 F.3d at 373. Although a sentencing court need not address every factor “in checklist fashion, explicitly articulating its conclusions regarding each one,” United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008), a “rote statement” will not always suffice, United States v. Starko, 735 F.3d 989, 992 (7th Cir. 2013). When it comes to discretionary conditions of supervised release, “‘[s]pecial’ conditions often require more justification than ‘standard’ conditions—but not always—and a condition’s label in the guidelines is ultimately irrelevant.” Kappes, 782 F.3d at 846. “All discretionary conditions, whether standard, special or of the judge’s own invention, require findings.” Id. (emphasis in original). This rule is subject to a harmless error analysis on appellate review. United States v. Siegal, 753 F.3d 705, 713 (7th Cir. 2014).”

Remanded for resentencing

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Criminal

7th Circuit Court of Appeals

Officials: KANNE and SYKES, Circuit Judges, and GILBERT, District Judge

Pleas &  Sentencing – Error

No. 13-1731 United States of America v. Darryl Rollins

District court judge imposition of 4 year term of supervised release where sentencing guidelines called for 3 years called for remand.

“The judge imposed a four-year term of supervised release. The parties agree that although the judge had been alerted to the reduction in the statutory minimum term of supervised release occasioned by the Fair Sentencing Act, he was probably unaware that the range recommended by the Guidelines also had been reduced. We agree that a remand is appropriate limited only to this issue.”

Vacated and remanded

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Criminal

7th Circuit Court of Appeals

Officials: POSNER, ROVNER, and WILLIAMS, Circuit Judges

Sufficiency of Evidence – Prosecutorial Misconduct

No. 14-1701 United States of America v. Eugene Mullins

Evidence of “quid pro quo” not necessary to establish evidence of bribery. Prosecutor misstatement that was promptly objected to, and cured by presiding judge did not prejudice appellant.

“Mullins also contends that he cannot be convicted of bribery because the government produced no evidence of quid pro quo, such as the vendors receiving something in return for the bribe. But they did receive something—their contracts. In any case, evidence of quid pro quo is not necessary to establish a violation of § 666(a)(1)(B). See United States v. Boender, 649 F.3d 650, 654 (7th Cir. 2011); United States v. Gee, 432 F.3d 713, 714–15 (7th Cir. 2005). Thus, the bribery counts are intact

“Looking at the record as a whole, we are confident that the misstatement did not prejudice Mullins. First, the defense immediately objected to the prosecutor’s misstatement. Second, the judge promptly issued a curative instruction, reminding the jurors that their recollection of the evidence controlled. Third, the prosecutor later altered the statement, correctly telling the jury that Crawford had testified that it was sound practice for Cook County to pay vendors after the vendors completed work. Fourth, this misstatement came against the backdrop of the abundant evidence showing that Mullins solicited bribes for contracts and fraudulently altered vendors’ proposals and invoices through email to avoid detection. Thus, this one minor misstatement did not infect the trial with unfairness such that a new trial is necessary. See United States v. Johnson, 655 F.3d 594, 599, 602 (7th Cir. 2011) (upholding decision not to grant new trial when single misstatement, which was immediately corrected, was given by the prosecution during opening statement); United States v. McMath, 559 F.3d 657, 667–68 (7th Cir. 2009) (finding that improper remarks at trial when combined with a curative jury instruction did not affect trial fairness).”

Affirmed.

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Criminal

7th Circuit Court of Appeals

Officials: RIPPLE, WILLIAMS, and SYKES, Circuit Judges

Tax Evasion – Court Error

No. 14-1206; 13-3844 United States of America v. Sharon Anzaldi and Steven Latin

Competency evaluation not necessary for appellant with no  history of mental illness—attempts to show existence of illness were all utilized in attempt to pursue sovereign citizen legal defense. Court did no err in refusing to include willfulness jury instruction.

“Despite Anzaldi’s suggestion to the contrary, the record clearly demonstrates she understood the charges against her and assisted in her defense—the key considerations under § 4241. See Alden, 527 F.3d at 659. Each time the government requested a hearing to determine whether Anzaldi was competent, Anzaldi objected, telling the district court at one point that “there would be no reason that I would be incompetent or considered that. I’m quite capable.” Standby counsel also objected to the government’s request for a competency hearing, stating, “I would object to that at this point, too. My discussion with her yesterday was very cordial and informative.” Standby counsel also told the district court that Anzaldi understood “the peril of going ahead by herself.” In deciding not to order a competency examination, the district court was entitled to consider the statements made by both Anzaldi and standby counsel affirming Anzaldi’s ability to understand the charges against her and to assist in her defense. See United States v. Savage, 505 F.3d 754, 760 (7th Cir. 2007) (“Significant weight is given to counsel’s representations concerning his client’s competence and counsel’s failure to raise the competency issue.”); United States v. Morgano, 39 F.3d 1358, 1374–75 (7th Cir. 1994) (district court entitled to rely on statements made by pro se defendant and his standby counsel to support finding no reasonable cause existed to believe defendant was mentally incompetent).”

“In light of this discussion, we find that it was not error for the district court to refuse to include a willfulness instruction. But we also note that any instructional error here would have been harmless. The pattern instruction for a tax code violation focuses on a defendant’s lack of subjective good faith. See 7TH CIR. PATTERN FED. JURY INSTRUCTIONS, at § 6.11 (2012 ed.) (“A person does not act willfully if he believes in good faith that he is acting within the law, or that his actions comply with the law. Therefore, if the defendant actually believed that what he was doing was in accord with the [tax] laws, then he did not willfully [make a false statement on a tax return].”). But the district court’s instructions addressed this, instructing the jury that the defendants’ “good faith” would preclude a guilty verdict. There would be no meaningful difference between a willfulness instruction under the tax code and the instructions the district court gave in this case. See Catton, 89 F.3d at 392 (“What ‘willfully’ adds to ‘knowingly’ in a section 287 case is obscure. Unlike a knowingly false statement, which if immaterial might not reflect a guilty intent, the making of a knowingly false claim might seem inherently willful, inherently intended to defraud, making an instruction on willfulness otiose.”).”

Affirmed

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WI COURT OF APPEALS – CIVIL

Civil

WI Court of Appeals – District III

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

Adverse Possession – Permissive Use

2014AP1854 Randall A Hattamer v. Northern States Power Company

On appeal, the Hattamers appear to argue that the area of permissive use that Northern States historically granted to owners of the Hattamers’ property was, in fact, a small distance south of the location of parties’ property boundary, which the circuit court concluded had not changed since 1950. We conclude the circuit court’s finding that the parties’ property line had not changed since 1950 was not clearly erroneous. We further conclude that the circuit court, in construing various documents authorizing the Hattamers’ and their predecessors’ permissive use, did not err when it interpreted those documents—consistent with its factual finding regarding the property line—as including use of Northern States’ land up to that property line. Finally, the Hattamers have not shown the circuit court erroneously exercised its discretion when it denied their motion for reconsideration. We affirm.

Decision

Affirmed

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Civil

WI Court of Appeals – District III

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

Foreclosure – Reformation of Mortgage

2014AP2687 OneWest Bank, FSB v. Gene O. Raatz

Gene and Gloria Raatz appeal a summary judgment of foreclosure entered after the circuit court granted OneWest Bank, FSB’s action for reformation of the mortgage to make it apply to both of the lots owned by the Raatzes. Although the Raatzes raise several confusing arguments challenging the court’s decisions and the Bank offers several alternative grounds for affirming the decisions, we conclude resolution of two issues is dispositive. Because the court properly granted reformation of the mortgage and the supporting papers the Raatzes submitted opposing summary judgment failed to create an issue of material fact, we affirm the judgment.

Decision

Affirmed. Per Curiam

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Civil

WI Court of Appeals – District III

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

Failure to state a claim – Recusal Motion – Due Process

2014AP2887 Carol Ann Coltman v. Stephen A Kase

Carol Coltman, pro se, appeals an order dismissing her claims against attorney Stephen Kase; Brooks, Kase & Erikson, S.C.; Zoe Wesolowski; attorney Erik Monson; Coyne, Schultz, Becker & Bauer, S.C.; and Antoinette Christenson. Coltman argues: (1) the circuit court erred by concluding her complaint failed to state a claim on which relief could be granted; (2) dismissal of her claims violated her right to due process; and (3) the circuit court erred by denying her motion for recusal. We reject Coltman’s arguments and affirm.

Decision

Affirmed. Per Curiam

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Civil

WI Court of Appeals – District I

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

Summary Judgment – Court Error

2014AP1089 City of Milwaukee v. Perrault Jean-Paul

Perrault Jean-Paul, pro se, appeals from a trial court order that granted summary judgment to the City of Milwaukee on both its claims and Perrault’s counterclaims. Perrault claims that the circuit court erred in refusing to adjourn or stay proceedings when he so requested and that it erred in its application of the exhaustion of remedies doctrine to grant summary judgment to the City. We affirm.

Decision

Affimed. Per Curiam.

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Civil

WI Court of Appeals – District IV

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

Trust & Estates – Power of Attorney – Accounting

2014AP2878 Kristin Robbins DDS v. Thomas Foseid

This case involves unequal transfers of money by the late Mary Jane Foseid to her children, focusing on the fact that Mary Jane transferred what could be considered a double share of settlement money that Mary Jane had received to one of her children, Kathryn Walters, but transferred only a nominal share of the settlement money to another of her children, Kari Foseid, who is disabled.1 In this action, yet another of Mary Jane’s children, Kristin Robbins, filed a petition requesting the circuit court to (1) impose a constructive trust on the transferred money that Robbins claims that Walters holds for Kari’s benefit, or (2) order Robbins’ brother Thomas Foseid, as power of attorney for Kari, to demand an accounting from Walters of this money and to direct that the transferred money be placed in trust for Kari. The circuit court denied Robbins’ motion for summary judgment, granted summary judgment in favor of Thomas and Walters, and dismissed Robbins’ petition. Robbins appeals. For the following reasons, we affirm each decision.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District II

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

Breach of  Duty of Loyalty

2014AP2941 Matenaer Corporation v. Thomas Peterson

Thomas Peterson, a former sales representative for Matenaer Corporation, appeals a judgment entered after a bench trial in which the circuit court awarded Matenaer approximately $71,500 in damages on Matenaer’s claims against Peterson. The circuit court concluded that Peterson breached an implied agreement with Matenaer to repay advances made to Peterson. In addition, the court concluded that Peterson breached a duty of loyalty to Matenaer, and interfered with Matenaer’s contractual relationship with a customer, by secretly working for a Matenaer competitor and diverting the customer’s business to the competitor. Peterson argues that the circuit court erred by: (1) failing to apply the “Shaler rule,” which requires that an agreement to repay advances be express; (2) finding that Peterson breached a duty of loyalty; (3) allowing Matenaer to receive lost profit damages for more than 60 days after the date Peterson claims he first notified Matenaer that he was terminating his contract; (4) calculating damages based on “theoretical” lost profits instead of “actual” lost profits; and (5) dismissing Peterson’s counterclaims. We reject these arguments and affirm.

Decision

Affirmed. Per Curiam.

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WI COURT OF APPEALS – CRIMINAL

Criminal

WI Court of Appeals – District III

Officials: STARK, J.

OWI Third – Abuse of Discretion

2015AP170-CR State of Wisconsin v. Sharod D. Weaver

Sharod Weaver appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, and an order denying his motion for postconviction relief. Weaver argues the circuit court erroneously exercised its discretion when it disregarded the OWI sentencing guidelines on the mistaken assumption that they were not based on the four primary sentencing factors. We affirm.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District I

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

Pleas & Sentencing – Child Support – Machner Hearing

2014AP2519-CR State of Wisconsin v. Bradley Wayne Phillips

Bradley Wayne Phillips appeals the judgment, following a jury trial, finding him guilty of six counts of failure to pay child support. Phillips also appeals the orders denying his motion for postconviction relief and his motion for resentencing. Phillips alleges the following errors on appeal: (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’ defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing. We reject all of Phillips’ claims of error and affirm.

Decision

Affirmed.

Full Text

Criminal

WI Court of Appeals – District I

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

Miranda Warnings – Motion to Suppress

2014AP2855-CR State of Wisconsin v. Eriberto Valdez

Eriberto Valadez appeals from a judgment entered after a jury found him guilty of possession with intent to deliver cocaine as a party to a crime, contrary to WIS. STAT. §§ 961.41(1m)(cm)2., 939.05 (2013-14).1 Valadez claims: (1) the trial court should have granted his motion to suppress statements he made before police told him his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) his constitutional rights were violated when the trial court denied his motion to disclose the identity of the State’s confidential informant; and (3) the trial court imposed a harsher sentence because he elected to have a trial. We affirm.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District I

Officials: BRENNAN, J.

Termination of Parental Rights – Neglect

2015AP711 State of Wisconsin v. M.H.

M.H. appeals from a circuit court order terminating her parental rights to S.H. She argues that the circuit court erroneously exercised its discretion when it concluded that M.H.’s failure to appear at the July 9, 2014 dispositional hearing was not excusable neglect. Because we conclude that the circuit court properly considered the relevant facts and law, and reached a conclusion that a reasonable court could reach, we affirm.

Decision

Affirmed

Full Text

Criminal

WI Court of Appeals – District IV

Officials: HIGGINBOTHAM, J.

Unreasonable Search & Seizure – Identification

2015AP162-CR State of Wisconsin v. Emiliano Calzadas

Emiliano Calzadas was charged with operating without a license.2 Calzadas moved the circuit court to suppress all evidence obtained as a consequence of a traffic stop and subsequent seizure. The court denied the motion. Calzadas plead no contest and a judgment of conviction was entered. On appeal, Calzadas argues that he was subject to an unreasonable seizure when the deputy requested and verified his identification following an otherwise lawful traffic stop. He concedes that the deputy who stopped the vehicle he was driving had reasonable suspicion for the stop based on the deputy’s knowledge that the registered owner of the automobile, a female, had a suspended driver’s license. However, Calzadas argues that reasonable suspicion evaporated after the deputy saw that the person driving the vehicle was a male, and that the deputy was therefore required under the Fourth Amendment to terminate the stop without requesting and verifying Calzadas’ identification. For the reasons that follow, we reject Calzadas’ argument and affirm the circuit court.

Decision

Affirmed

Full Text

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