Weekly Case Digests — Oct. 26-Oct. 30, 2015

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7^th Circuit Court of Appeals – Civil 

Civil

7^th Circuit Court of Appeals

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

Shareholders Suit – Stock Option Plan

No. 15-1006

Jan Donnawell v. Daniel Hamburger

Shareholder failure to make demand to corporation to correct alleged violations of Delaware law fatal to action.

“For completeness we’ll comment briefly on another of the district judge’s rulings—his denial of a motion by Milton Pfeiffer to intervene as a plaintiff. Pfeiffer, like Donnawell a stockholder of DeVry Education Group though he owned only one share, worth no more than $50, had filed a stockholder derivative suit, very similar to the present one, in Illinois state court. The suit was dismissed as moot when the company corrected the errors in its administration of the 2005 plan, which was before Donnawell had amended her complaint in the present case to challenge the award of stock options to Hamburger under the 2003 plan. Although it dismissed the suit, the Illinois court awarded Pfeiffer nontrivial attorney’s fees on the ground that his suit had alerted the company to the errors in the administration of the 2005 plan, leading the company to correct them. One might therefore have thought Pfeiffer an appropriate intervenor in the present case. But the district judge denied the motion on the ground that Pfeiffer’s claim was identical to Donnawell’s and Donnawell was adequately representing his legal interest, and so allowing him to intervene would add nothing. Donnawell was dismissed from the case because of her failure to make the required demand on the board of directors, and her dismissal left no one to represent the interest of other shareholders except Pfeiffer. Yet as the district judge noted, Pfeiffer, like Donnawell, had failed to make a demand on the board—and in any event has not appealed the denial of his motion for leave to intervene”

Affirmed.

Civil

7^th Circuit Court of Appeals

Officials: BAUER, POSNER, and EASTERBROOK, Circuit Judges.

Insurance Law – Stranger Oriented Life Insurance

No. 14-3725

Ohio National Life Assurance v. Douglas W. Davis

No. 1403664

Ohio National Life Assurance v. Steven Egbert

Insurance company induced to issue fraudulent death benefits entitled to attorney’s fees and allowed to retain premiums paid by defendants in fraudulent scheme.

“It’s true that Ohio National hasn’t been forced into litigation with those other parties, and that under Illinois law “where an action based on the same wrongful act has been prosecuted by the plaintiff against the defendant to a successful issue, he can not in a subsequent action recover, as damages, his costs and expenses in the former action.” Ritter v. Ritter, supra, 46 N.E.2d at 44. But the exception carved by Ritter in the passage we quoted earlier covers this case. The defendants’ misconduct placed Ohio National in the position of potentially having to litigate with the purchasers of the insurance policies upon the death of the insureds, and the expenses it incurred in the present suit to avoid such litigation by voiding the policies were in lieu of the future litigation that it would otherwise have had to engage in at considerable expense. It paid in advance, as it were, the expenses “in litigation with third parties … necessary to … protect [its] interest,” to quote from the Ritter opinion.”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Statute of Limitations

No. 13-2833

Cindy Barrett v. Illinois Department of Corrections

“Appellant FMLA suit time barred” Barrett does not contest her ninth, tenth, eleventh, or twelfth unauthorized absences, the last of which occurred on May 14, 2010. On September 30, 2010, Barrett was suspended without pay pending termination for excessive absenteeism. She was fired on October 15, 2010. Barrett sought review before the Illinois Civil Service Commission. She did not raise an FMLA argument at the hearing. (Indeed, she never raised the FMLA with her supervisors or before the Employee Review Board either.) An administrative law judge recommended that the termination be sustained. The Commission adopted that recommendation, and Barrett did not pursue further review in Illinois state court. Instead, on January 27, 2012, she sued IDOC in federal court for violating her rights under the FMLA. At the summary-judgment stage, the district court concluded that the suit was barred by the FMLA’s two-year statute of limitations. § 2617(c)(1). Barrett had urged the court to find that the limitations period began to run when her employment was terminated on October 15, 2010. If the limitations clock started on that day, the suit was timely; she filed it 17 months later, within the two-year period. IDOC maintained, on the other hand, that the alleged FMLA violations accrued many years earlier, when Barrett was denied leave for each of the three absences she now claims were statutorily protected.”

Affirmed

Full Text

Civil

7^th Circuit Court of Appeals

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

Retaliatory Termination

No. 12-2217

Fozyia Huri v. Office Chief Judge Cook County

Civil

7^th Circuit Court of Appeals

Officials: BAUER, KANNE, and ROVNER, Circuit Judges

Wrongful Termination – Collective Bargaining Agreement

No. 15-1241

Joseph Healy v. Metropolitan Pier and Exposition Authority

Labor Management Relations Act preempts appellant’s tortious interference claim.

“Finally, the Supreme Court’s ruling in Granite Rockprevents Plaintiffs from pursuing any federal tort claim against MPEA. 561 U.S. at 309–14. Though the facts of Granite Rock are not precisely the same as this case, both present the same legal problem: a third-party to a labor dispute insulated from remedy by § 301 preemption. In Granite Rock, a concrete and building company employed members of the local chapter of the International Brotherhood of Teamsters (“IBT”) union. Id. at 292. The employer and the local union began negotiations about a new collective bargaining agreement. Id. When negotiations stalled, the employee-union members initiated a strike. Id. Because the current collective bargaining agreement had a “no-strike” clause, the employer sued to enjoin the strike. Id. at 294. The employer also sued the local chapter of the union under § 301 for breach of the collective bargaining agreement and sued the parent, IBT, for state law tortious interference. Id. at 294–95. The district court allowed the § 301 dispute to go to the jury, but granted IBT’s motion to dismiss the tortious interference claim as preempted by § 301. Id. at 29”

Affirmed

Full Text

Criminal

7^th Circuit Court of Appeals

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

Admission of Hearsay Evidence

No. 14-2210

United States of America v. Scott Hawkins

Criminal

7^th Circuit Court of Appeals

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

Plain Error

No. 14-2515

United States v. Frederick Addison

Overwhelming evidence overcomes argument that court made plain error in identifying appellant.

“Applying these principles, we find no plain error in Addison’s case. As an initial matter, we note that the district court properly instructed the jury regarding Addison’s presumption of innocence and the government’s burden to prove his guilt beyond a reasonable doubt. While there is a possibility that the jury considered the gun and neighborhood testimony in its decision to convict, the fact remains that the evidence against Addison was overwhelming. Agents personally witnessed him selling drugs and caught the transactions and other incriminating behavior on video. One of his own buyers (James Robinson) testified against him. A plain error “affects substantial rights” under Rule 52(b) only if it affected the outcome of the trial proceedings. See United States v. Baker, 655 F.3d 677, 681 (7th Cir. 2011). The challenged testimony here did not—Addison would have been convicted even without it. For the same reason, leaving his conviction in place will cause no miscarriage of justice. See United States v. Patterson, 241 F.3d 912, 913 (7th Cir. 2001) (“[W]hen the evidence of guilt is overwhelming a miscarriage of justice is very hard to demonstrate.”).”

Affirmed.

Full Text

WI Court of Appeals – Civil

Civil

WI Court of Appeals – District III

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

Divorce Judgment – Real Estate

2015AP230-FT

Michael Paulson v. Debra Lutze

Michael Paulson appeals that part of an order denying his request to invalidate or reform a quit claim deed and granting Debra and David Lutze quiet title to the subject real estate. Paulson argues the circuit court erred by failing to reopen Paulson’s divorce judgment to allocate the real estate as an omitted asset. Paulson also contends the deed executed in favor of the Lutzes was invalid because it lacked Paulson’s signature. Finally, Paulson asserts that the court erred by concluding his suit is barred by laches. We reject Paulson’s arguments and affirm the order.

Decision

Civil

WI Court of Appeals – District II

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

Divorce – Court Error

2015AP1148-FT

Andrew Marc Lentz v. Carrie Marie Hickmann

Carrie Marie Hickmann appeals from an amended judgment of divorce effecting an unequal property division in favor of Andrew Marc Lentz and ordering an equalization payment to Carrie of $19,918. She argues that the trial court erroneously exercised its discretion by using a previously rejected formula to divide the marital estate and affording Andrew a credit for her nonmarital child’s private school tuition. Alternatively, she argues that the trial court improperly used its WIS. STAT. § 805.17(3) (2013-14)1 reconsideration authority in amending the judgment. Pursuant to a presubmission conference and this court’s order of June 30, 2015, the parties submitted memorandum briefs. See WIS. STAT. RULE 809.17(1). Upon review of those memoranda and the record, we reverse.

Decision

Civil

WI Court of Appeals – District III

Officials: SEIDL, J.

Termination of Parental Rights

2015AP1549

X.J. v. G.G

G.G. appeals an order terminating his parental rights to his son. G.G. argues he is entitled to a new trial because the circuit court erroneously declined to sequester the child’s stepfather, J.J., at trial. We reject G.G.’s argument and affirm.

Decision

Civil

WI Court of Appeals – District IV

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

Claim for Unpaid Wages

2014AP2602

Paul J. Mertz v. Wisconsin Department of Workforce Development

Paul Mertz appeals a circuit court order that affirmed a decision of the Department of Workforce Development (DWD) dismissing Mertz’s claim that he was entitled to unpaid wages for activities he performed as a correctional officer with the Department of Corrections (DOC). The circuit court determined that the DWD’s factual findings were uncontested and that those facts supported the DWD’s decision that Mertz was not entitled to the additional compensation he sought. Mertz contends that: (1) Mertz challenged the DWD’s factual findings in his circuit court briefs; (2) the DWD’s factual findings were not supported by substantial evidence; (3) Mertz was involved in “law enforcement” activities during the time for which he sought compensation; (4) the activities were compensable under the law; and (5) the DWD’s decision to deny Mertz’s claim for compensation was contrary to its own rule. We conclude, first, that the DWD’s factual findings are supported by substantial evidence in the record. We then conclude that Mertz was not engaged in compensable activity during the time for which he sought unpaid wages. We affirm.

Decision

Civil

WI Court of Appeals – District IV

Officials: SHERMAN, J.

Termination of Parental Rights

2015AP000899
Sauk Co. DHS v. A.C.

A.C. appeals from orders of the circuit court terminating her parental rights to S.W. and M.W. on the basis that they were in continuing need of protection or services. See WIS. STAT. § 48.415(2). A.C. contends that she is entitled to a new trial on the grounds phase because she received ineffective assistance of counsel and in the interest of justice. For the reasons discussed below, I affirm.

Decision

Criminal

WI Court of Appeals – District II

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

Pleas & Sentencing – Sentence Modification

2014AP1378-CR

State of Wisconsin v. Daniel J. Gandy

Daniel Gandy appeals from a judgment convicting him of second-degree sexual assault of a child under sixteen years old and from a postconviction order denying his motion (1) seeking sentence modification due to a new factor or (2) resentencing because the circuit court relied upon inaccurate information. We agree with the circuit court that Gandy neither demonstrated a new factor nor established grounds for resentencing. We affirm.

Decision

Criminal

WI Court of Appeals – District II

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

Abuse of Discretion – Amended Information

2014AP2301-CR

State of Wisconsin v. Timothy J. Johnson

Timothy Johnson appeals from judgments convicting him of felony bail jumping and misdemeanor receiving stolen property. On appeal, Johnson challenges the circuit court’s discretionary decision to permit the State to amend the information during trial from misdemeanor theft to misdemeanor receiving stolen property. We conclude that the circuit court did not misuse its discretion, and we affirm the judgments.

Decision

Criminal

WI Court of Appeals – District II

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

Pleas & Sentencing – Sentence Modification

2014AP2392-CR

State of Wisconsin v. Courtney E. Sobonya

Courtney Sobonya requested expungement of her criminal record at her sentencing for possession of heroin. The trial court denied her request on the ground that granting expungement would undermine the deterrent effect of the court’s sentence. Sobonya thereafter retained an expert who opined that granting expungement would not undermine the deterrent effect of the court’s sentence and offered his report as a “new factor” relevant to the court’s decision on expungement. The trial court accepted the expert’s postsentencing report as a “new factor” but nonetheless denied sentence modification. We agree with the court’s ultimate decision. We write to clarify that a contrary opinion, particularly one that centers on a matter relating to the objectives of sentencing (protection, punishment, rehabilitation, and deterrence), 1 is not a “new factor” for purposes of sentence modification.

Decision

Criminal

WI Court of Appeals – District II

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

DNA Surcharge

2014AP2981-CR

State of Wisconsin v. Tabitha A. Scruggs

Tabitha A. Scruggs appeals from a judgment of conviction for burglary as a party to a crime, which imposed a $250 DNA surcharge pursuant to WIS. STAT. § 973.046(1r)(a) (2013-14), and an order denying her motion for postconviction relief vacating the $250 DNA surcharge. At the time Scruggs committed the crime, the imposition of a $250 DNA surcharge for that offense was subject to the court’s discretion; however, by the time she was convicted and sentenced, the legislature had made the $250 DNA surcharge mandatory for all felony convictions. Scruggs contends that, as applied to her, the mandatory imposition of the $250 DNA surcharge violates the ex post facto clauses of the United States and Wisconsin Constitutions. We disagree and, thus, affirm the judgment and order of the circuit court.

Decision

Criminal

WI Court of Appeals – District IV

Officials: Higginbotham, Sherman and Blanchard, JJ.

Ineffective Assistance of Counsel – Court Error

2014AP2224-CR

State of Wisconsin v. Eric G. Koula

Eric Koula appeals a judgment of conviction for two counts of first-degree intentional homicide and one count of forgery, and an order denying his motion for postconviction relief. Koula contends that: (1) the circuit court erred in admitting out-of-court statements of one of the victims; (2) he received ineffective assistance of counsel at trial; (3) the circuit court erred in excluding evidence at trial; and (4) he should be granted a new trial in the interest of justice because the real controversy was not fully tried. For the reasons discussed below, we affirm.

Decision

Criminal

WI Court of Appeals – District I

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

Pleas & Sentencing – Resentencing

2014AP2917-CR

State of Wisconsin v. Robert Dale Ramczyk

Robert Dale Ramczyk appeals a judgment of conviction and an order denying postconviction relief. Ramczyk contends that he is entitled to resentencing as to restitution and eligibility for the Challenge Incarceration Program (CIP). We reject those arguments for the reasons set forth below. We affirm.

Decision

Criminal

WI Court of Appeals – District IV

Officials: LUNDSTEN, J.

Juvenile Delinquency

2015AP1256-FT

State of Wisconsin v. B.A.H

B.A.H. appeals the circuit court’s order that imposed restitution on B.A.H. after the court found him not competent to proceed on juvenile delinquency allegations. Because of B.A.H.’s incompetency, the court never made a finding as to delinquency and instead found that B.A.H. was a juvenile in need of protection or services. B.A.H. argues that, under these circumstances, the circuit court lacked statutory authority to impose restitution. I agree because, as B.A.H. points out, the applicable restitution provision requires a finding that the juvenile “committed a delinquent act” resulting in damage or physical injury. See WIS. STAT. § 938.34(5). I reverse and remand for the circuit court to vacate the restitution order

Decision