Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — Dec. 7-11, 2015

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

Weekly Case Digests — Dec. 7-11, 2015

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

Listen to this article

Supreme Court of the United States

Supreme Court of the United States

Case No. 13-1067

Case Name: OBB Personenverkehr AG v. Sachs

Practice Area: Personal Injury – Foreign Soverign Immunities Act

Personal injury suit stemming from injury incurred by Sachs falling on tracks barred by sovereign immunity.

“The Ninth Circuit apparently derived its one-element test from an overreading of one part of one sentence in Nelson, in which we observed that “the phrase [‘based upon’] is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.” 507 U. S., at 357. We do not see how that mention of elements—plural—could be considered an endorsement of a one-element test, nor how the particular element the Ninth Circuit singled out for each of Sachs’s claims could be construed to entitle her to relief. Be that as it may, our analysis in Nelson is flatly incompatible with a one-element approach. A one-element test necessarily requires a court to identify all the elements of each claim in a complaint before that court may reject those claims for falling outside §1605(a)(2). But we did not undertake such an exhaustive claim-by-claim, element-by-element analysis of the Nelsons’ 16 causes of action, nor did we engage in the choice-of-law analysis that would have been a necessary prelude to such an undertaking. Compare id., at 356–358, with 737 F. 3d, at 600, n. 14 (noting disagreement over whether state or federal common law principles govern suits under the Foreign Sovereign Immunities Act).”

Unanimous Decision

Full Text

 

7th Circuit Court of Appeals

7th Circuit Court of Appeals

Case No.: 15-1896,

Case Name: Paul Burritt v. Lisa Ditlefsen

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

Practice Area: Fourth Amendment – Fourteenth Amendment – False Imprisonment

Appellant fails to establish error of law or fact in alleging numerous allegations ranging from false imprisonment to malicious prosecution

“In addition, “in limited circumstances a municipality may be held liable under § 1983 for constitutional violations resulting from a failure to properly train police officers.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504, (7th Cir. 2010) (citing City of Canton v. Harris, 489 U.S. 378, 387 (1989)). Failure to train officers may support a Monell claim, but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, 489 U.S. at 388. Burritt simply concludes a failure to train on the part of the Polk County Sheriff’s Office. He fails to cite to any legal authority or present any evidence that the Polk County Sheriff’s Office failed to properly train its officers. In fact, Ditlefsen received specialized training from the Department of Justice and the FBI on investigation of crimes against children.”

Affirmed

7th Circuit Court of Appeals

Case No.: 14-1694

Case Name: Tobias Payton v. Chris Cannon

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Practice Area: First Amendment – Summary Judgment

Appellant fails to provide any evidence against respondent-defendant motion for summary judgment – case is rightfully dismissed.

“The plaintiff does argue that the prison staff should be required to read every issue of every magazine (rather than just six consecutive issues, as the staff is currently required to do) that it intercepts before deciding to add the magazine to the censored list; but that would be impractical. He also argues that the real reason for the prison’s policy is that the staff dislikes pornography. This strikes us as an implausible generalization, though doubtless some staff (and not only the women) do dislike or disapprove of pornography; in any event, he provides no evidence. He has, in short, made no case against the district judge’s grant of the defendants’ motion for summary judgment. The suit was therefore rightly dismissed.”

Affirmed

7th Circuit Court of Appeals

Case No.: 13-2982, 13-2078

Case Name: United States of America v. Dahveed Dean; United States of America v. Terrance P. Daniels

Officials: DIANE P. WOOD, Chief Judge RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge

Practice Area: Criminal – Motion for Rehearing

Petition for rehearing denied

Williiams, Posner & Rovner provide Dissent

7th Circuit Court of Appeals

Case No.: 14-2538

Case Name: United States of America v. Ignacio Torres

Officials: FLAUM, RIPPLE, and WILLIAMS, Circuit Judges.

Practice Area: Bond Revocation – Forfeiture

District Court finding that bond forfeiture appropriate for appellant when he left court mid-hearing and could not be located after.

“Gutierrez outlines a six-factor test for district courts to consider when deciding whether to set aside a bond forfeiture: “(1) the willfulness of defendant’s breach of conditions; (2) the participation of the sureties in apprehending the defendant; (3) the cost, inconvenience and prejudice suffered by the government as a result of the defendant’s breach; [] (4) any explanation of mitigating factors presented by the defendant [or surety];” (5) whether the surety is a professional bondsman or one of defendant’s friends or family members; and (6) the appropriateness of the amount of the bond. Id. at 1003–04 (internal citations omitted). The unique factors presented by this case do not easily align with the Gutierrez factors, so the district court’s failure to consider these factors is not unreasonable. The district court handled this tough case well. We sympathize with Sureties, but Torres’s continued flight weighs heavily in favor of forfeiture and a finding that the district court did not err. Like us, the district court seemed sympathetic to Sureties, having suggested that forfeiture would not have been necessary if Torres were in custody at the time the district court entered the forfeiture judgment, which was three months after Torres fled. Nonetheless, district courts should fully consider the Gutierrez factors before ordering bond forfeiture. This will ensure that district courts balance the appropriate factors in exercising its discretion and aid appellate review.”

Affirmed

7th Circuit Court of Appeals

Case No.: 15-1230

Case Name: Anne Hill v. Carolyn Colvin

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

Practice Area: Social Security – Disability Insurance Benefits – Credibility

Administrative law judges’ credibility analysis flawed for relying on worthless expert testimony

“The administrative law judge found that the applicant has “severe impairments” consisting of “degenerative joint disease with total replacement of the left hip and osteoarthritis of the left shoulder.” (She has many subsidiary impairments as well, mainly on her left side like the severe impairments.) It seems ridiculous to think she can stand or walk for six hours in an eight‐hour workday or “balance” (whatever that means), or do full‐time work that even “occasionally” involves stooping, kneeling, crouching, crawling, or climbing ramps (depending on the angle—try climbing a ramp that is inclined by 45 degrees). Given the impairments of her left extremities (arm and leg) it is doubtful that she can pull, push, or reach with them; at least this issue central to her application required reasoned analysis, not an unexplained conclusion (though I acknowledge the severe time pressures under which the Social Security Administration’s administrative law judges labor). Nor was there any reason for the administrative law judge to say that the applicant can’t hold down a job that involves climbing ropes, as that is beyond obvious (and what kind of jobs in today’s economy involve climbing ropes?).”

Reversed and Remanded

7th Circuit Court of Appeals

Case No.: 14-2911

Case Name: Michael Dunderdale v. United Airlines, Inc.

Officials: BAUER, RIPPLE, and ROVNER, Circuit Judges.

Practice Area: Discrimination – Americans With Disabilities Act – Failure to Accommodate

Summary judgment appropriate in favor of airline in case where appellant failed to respond to opportunities to be moved to another position

“it is undisputed that Dunderdale failed to apply for any other position with United while he was on EIS. Other than repeating his request for a no-bid position in October 2011 and April 2013, he made no effort to obtain any other reasonable accommodation, and even refused to participate in the proposed RAP sessions on August 24, 2011, and November 22, 2011. Furthermore, it was Dunderdale’s duty to search Skynet for job openings while he was receiving benefits on EIS, and his failure to do so does not establish that United failed to reasonably accommodate his disability. See Weiler v. Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996) (employer reasonably accommodated employee by granting her requested time off work, short-term disability benefits, extended leave, and allowed her to use company’s “posting” procedure to apply for available positions).”

Affirmed

Wisconsin Supreme Court

WI Supreme Court

Case Name: Francis D. Schmitz et al v. Honorable Gregory A. Peterson

Case No. 2013AP2504-W to 2013 AP 2508-W; 2014AP296-OA; 2014AP417-W to 2014AP421-W

Practice Area: John Doe Proceeding – Motion for Reconsideration

Attorney no longer possesses authority to act a special prosecutor – motion for reconsideration denied

“The fact that the court confined its legal ruling to affirming the court of appeals’ denial of the supervisory writ petition that was the subject of its review due to the applicable standard does not mean that Attorney Schmitz should be able to continue to act as the special prosecutor in all respects as if his appointment were valid. That would ignore the reality shown in Justice Prosser’s concurrence that a majority of the justices of this court conclude that his appointment was invalid. That legal conclusion of four justices set forth in Justice Prosser’s concurrence remains regardless of any subsequent actions or inactions by Attorney Schmitz or anyone else. Attorney Schmitz, however, has chosen to continue to act as the special prosecutor by filing his current motions for reconsideration and a stay in this court. Moreover, he has specifically made a continuing claim in his filings that, because of the denial of the supervisory writ filed by the Three Unnamed Petitioners, he retains complete authority to act as the special prosecutor going forward, despite the writings issued by this court on July 16, 2015. Because we are presented with his continued filings brought in his capacity as the appointed special prosecutor, we now must address the underlying legal question of Attorney Schmitz’s authority to act as the special prosecutor under the appointment orders issued by the initial John Doe II judge. If Attorney Schmitz lacks the authority to act as the special prosecutor because his appointment was invalid, then his motions could be dismissed simply on that ground without considering the arguments made in those motions. For the reasons set forth in Justice Prosser’s July 16, 2015 concurring opinion, we hold that Attorney Schmitz’s appointment as the special prosecutor in the John Doe II proceedings pending in each of the five counties was invalid. Two Unnamed Petitioners, 363 Wis. 2d 1, ¶¶203-39 (Prosser, J., concurring). With three justices having already declared agreement with Justice Prosser’s reasoning, there is no reason to repeat that reasoning here.”

ABRAHAMSON, J., concurs and dissents. (Opinion Filed)

A.W. BRADLEY, R.G. BRADLEY, J.J., did not participate.

N. PATRICK CROOKS, Jr., passed away while these motions were pending and prior to their final resolution by the court.

Full Text

Wisconsin Court of Appeals

WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Martell Wilson

Case No.: 2014AP1462

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge

Practice Area: Ineffective Assistance of Counsel – Prosecutorial Misconduct

David Martell Wilson, pro se, appeals a trial court order denying his postconviction motion filed under WIS. STAT. § 974.06(2013-14). Wilson claims he has newly discovered evidence warranting a new trial, his postconviction counsel was ineffective, the prosecutor engaged in misconduct, the trial evidence was insufficient for conviction, and he was sentenced on the basis of inaccurate information. We reject his arguments and affirm.

Affirmed. Per Curiam

Full Text

WI Court of Appeals – District I

Case Name: 2014AP2236

Case No.: Carolyn Moya v. Healthport Technologies, LLC

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, J., Reserve Judge.

Practice Areas: Statutory Interpretation – Wis Stat. §146.81

Aurora Healthcare, Inc. and HealthPort Technologies, LLC (collectively “HealthPort” except as needed) appeal from nonfinal orders denying HealthPort’s motion for summary judgment and denying its motion for reconsideration.  This case involves the construction and interpretation of WIS. STAT. §§ 146.81-146.83 (2013-14) to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health-records-fee statute, § 146.83(3f), when an attorney orders a client’s health care records with the client’s written permission. HealthPort claims the circuit court erred when it construed § 146.83(3f)’s “person authorized by the patient” language to include a personal injury attorney whose client signed a written HIPAA authorization giving permission to get the client’s medical records. HealthPort argues that the plain language of the statute, the context of the statute, and a recent amendment to the statute support its position that “person authorized by the patient” does not include a personal injury attorney whose client has signed a written form allowing the attorney to gather the client’s medical records. Because “person authorized by the patient,” as that term is defined by § 146.81(5) and used in § 146.83 does not include Moya’s attorney, we reverse the circuit court’s orders and remand with directions to grant HealthPort’s motions and dismiss Moya’s complaint.

Reversed and Remanded

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: 2014AP2773-CR

Case No.: State of Wisconsin v. Davis Kevin Lewis

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

Practice Areas: Sufficiency of Evidence – Abuse of Discretion

Davis Kevin Lewis appeals the judgment convicting him of third-degree sexual assault, contrary to WIS. STAT. § 940.225(3) (2013-14). Lewis contends that: (1) there was insufficient evidence to convict him; (2) the trial court erroneously exercised its discretion in determining a defense witness could not testify; and (3) the trial court erroneously exercised its discretion when it permitted the jury to watch the victim’s videotaped forensic interview a second time. After reviewing the record, we are satisfied that there is sufficient evidence to convict Lewis of third-degree sexual assault, and we conclude the trial court properly exercised its discretion when it both prohibited a defense witness from testifying and when it granted the jury’s request for a second viewing of the victim’s videotaped interview. Consequently, we affirm.

Affirmed

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Evrick S. Dalton

Case No.: 2014AP2966-CR

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Practice Areas: Abuse of Discretion – Pleas & Sentencing

Evrick S. Dalton appeals a judgment convicting him of second-degree sexual assault of a child under the age of sixteen. He also appeals an order denying his postconviction motion for resentencing. He argues that the circuit court misused its sentencing discretion. We affirm.

Affirmed. Per Curiam.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Devin J. Warfield

Case No.: 2014AO2992-CR

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

Practice Areas: Ineffective Assistance of Counsel

Devin Warfield appeals a judgment convicting him of soliciting a child for prostitution, child enticement-prostitution, and prostitution as a party to a crime, all as repeaters. He also appeals an order denying his motion for postconviction relief. Warfield argues his trial counsel was ineffective for failing to object to the admission into evidence of inaccurate copies of text messages. As a result, Warfield argues he is entitled to a new trial. We conclude Warfield fails to demonstrate prejudice and affirm the judgment and order.

Affirmed. Per Curiam.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jerome Edwards

Case No.: 2015AP105

Officials: Curley, P.J., Brennan, J., and Daniel L. LaRocque, Reserve Judge.

Practice Areas: Civil Commitment – Petition for Discharge

Jerome Edwards appeals an order dismissing his petition for discharge from a WIS. STAT. ch. 980 (2013-14) commitment. He contends that the trial court erred in dismissing his petition without a trial. We affirm.

Affirmed.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Treadway

Case No.: 2015AP591

Officials: Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge.

Practice Areas: Civil Commitment – Involuntary Medication

Thomas Treadway appeals from the circuit court order finding him not competent to refuse medication and granting the State the authority to involuntarily medicate him. Treadway asserts that the State failed to establish that he was incompetent because it did not show that “the advantages and disadvantages of and alternatives to” medication were explained to him or that he was “substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his mental illness … to make an informed choice,” as required by WIS. STAT. § 51.61(1)(g)4. (2013-14). Because the record belies Treadway’s assertions, we affirm

Affirm

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Glenn T. Zamzow

Case No.: 2014AP2603-CR

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

Practice Areas: OWI 3rd – Admission of Evidence

Glenn Zamzow appeals his convictions for operating a motor vehicle while intoxicated and with a prohibited alcohol concentration (OWI/PAC), third offense. Zamzow asserts that in denying his motion to suppress evidence, the circuit court improperly relied upon a recorded statement of the arresting officer. Zamzow challenges on hearsay, Confrontation Clause, and due process grounds the circuit court’s admission of and reliance upon the recorded statement. We conclude the circuit court did not err and affirm.

Affirmed.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: Chastity Young v. Landstar Investments LLC

Case No.: 2014AP2507

Officials: KLOPPENBURG, J.

Practice Areas: Landlord Tenant – Damages

In this landlord-tenant dispute, tenant Chastity Young brought a small claims action against landlord Landstar Investments, LLC and property manager Duane Branek for failing to return Young’s security deposit and to provide a written accounting of the amount withheld, in violation of WIS. ADMIN. CODE § ATCP 134.06(2) and (4), after Young vacated an apartment owned by Landstar prior to the end of the lease term. After a bench trial, the court held in favor of Young on the security deposit claim and awarded Young double her security deposit plus reasonable attorney fees.  The circuit court found Branek, as Landstar’s agent, jointly and severally liable for the security deposit regulation violation. Branek appeals, arguing that he had no “power to comply or violate the ATCP code” and, therefore, should not be held jointly and severally liable for the violation. Landstar counterclaimed for three months back rent damages accrued after Young vacated the apartment (April 30, 2013) until the end of her lease term (July 31, 2013). The circuit court held in favor of Landstar on its counterclaim and awarded Landstar back rent damages owed by Young after she vacated the apartment. Young cross-appeals, arguing that the lease is void, and therefore, she had a periodic tenancy which terminated after she gave thirty days’ notice and vacated the apartment. For the reasons set forth below, I conclude that Branek is not jointly and severally liable for Landstar’s violation of the security deposit regulations. I further conclude that the lease is not void and, therefore, the circuit court did not err in awarding Landstar back rent damages. Accordingly, I reverse the judgment against Branek and affirm the judgment granting back rent damages to Landstar.

Reversed in Part and Affirmed in Part

Full Text

WI Court of Appeals – District I

Case Name: NDC, LLC v. Wisconsin Department of Transportation

Case No.: 2015AP377

Officials: Lundsten, Higginbotham and Blanchard, JJ.

Practice Areas: Property – Real Estate Contracts

NDC appeals the circuit court’s order denying NDC’s claim alleging that there was a binding real estate purchase contract between NDC and the Wisconsin Department of Transportation and seeking specific performance on that contract. As we understand the situation, NDC seeks to hold DOT to what all now agree was DOT’s unreasonably low initial $90,500 offering price, so that NDC is in a better position to challenge that amount and receive a higher amount for the property and attorney’s fees relating to that effort. After holding a bench trial, the circuit court rejected NDC’s request for specific performance on several alternative grounds. We focus on two. First, the court made a factual finding that NDC rejected DOT’s $90,500 offer to contract. Second, the court concluded that, even assuming NDC accepted DOT’s $90,500 offer, that acceptance was conditioned on a further acceptance by DOT, which did not happen. NDC fails to persuade us that the circuit court erred in either respect. Accordingly, we affirm based on each of these alternative grounds.

Affirmed

Full Text

WI Court of Appeals – District I

Case Name: State v. L.C.

Case No.: 2015AP1460

Officials: BRENNAN, J.

Practice Areas: Termination of Parental Rights

L.C. appeals from an order of the circuit court terminating her parental rights to her son T.C. L.C. claims that the circuit court failed to consider all the factors set forth in WIS. STAT. § 48.426(3) when it concluded that it was in T.C.’s best interests to terminate L.C.’s parental rights. She claims that the circuit court did not give proper weight to the bond that exists between T.C., L.C., and most of T.C.’s siblings and the resulting “emotional and psychological damage” she believes T.C. will undergo if her parental rights are terminated. Because the circuit court properly exercised its discretion, we affirm.

Affirmed

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests