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Weekly Case Digests — Dec. 21-24, 2015

By: WISCONSIN LAW JOURNAL STAFF//December 24, 2015//

Weekly Case Digests — Dec. 21-24, 2015

By: WISCONSIN LAW JOURNAL STAFF//December 24, 2015//

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United States Supreme Court

Supreme Court of the United States

Case Name: DIRECTV, Inc. v. Imburgia

Case No: 14-462

Practice Area: Enforcement of Agreements – Preemption

California Court of Appeals Interpretation of Service Agreement between corporation and customers preempted by Federal Arbitration Act.

“The court added that it would interpret “‘ambiguous language against the interest of the party that drafted it,’” namely DIRECTV. 225 Cal. App. 4th, at 345, 170 Cal. Rptr. 3d, at 196 (quoting Mastrobuono, 514 U. S., at 62). The dissent adopts a similar argument. See post, at 7–9. But, as we have pointed out, supra, at 8, were the phrase “law of your state” ambiguous, surely some court would have construed that term to incorporate state laws invalidated by, for example, federal labor law, federal pension law, or federal civil rights law. Yet, we have found no such case. Moreover, the reach of the canon construing contract language against the drafter must have limits, no matter who the drafter was. The fact that we can find no similar case interpreting the words “law of your state” to include invalid state laws indicates, at the least, that the antidrafter canon would not lead California courts to reach a similar conclusion in similar cases that do not involve arbitration.”

Reversed and Remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

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Supreme Court of the United States

Case Name: White v. Wheeler

Case No: 14-1372

Practice Area: Death Sentence Jury Exclusion

Exclusion of juror did not violate 6th and 14th amendments.

“The Court of Appeals erred in its assessment of the trial judge’s reformulation of an important part of Juror 638’s questioning. 779 F. 3d, at 372. When excusing the juror the day after the voir dire, the trial judge said that the prosecution had asked whether the juror “couldn’t consider the entire range” of penalties. App. to Pet. for Cert. 139a. The prosecution in fact asked if the juror was “not absolutely certain whether [he] could realistically consider” the entire range of penalties. Id., at 132a. The juror’s confirmation that he was “not absolutely certain whether [he] could realistically consider” the death penalty, ibid., was a reasonable basis for the trial judge to conclude that the juror was unable to give that penalty fair consideration. The trial judge’s decision to excuse Juror 638 did not violate clearly established federal law by concluding that Juror 638 was not qualified to serve as a member of this capital jury. See Witt, supra, at 424–426. And similarly, the Kentucky Supreme Court’s ruling that there was no error is not beyond any possibility for fairminded disagreement. . . The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. And this Court does not review the other rulings of the Court of Appeals that are not addressed in this opinion”

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Per Curiam

Wisconsin Court of Appeals

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Vincent T. Grady

Case No: 2014AP1979

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

Practice Areas: Pleas & Sentencing – Sentence Modification

Vincent T. Grady, pro se, appeals trial court orders denying his motions for sentence modification and for reconsideration. We affirm.

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WI Court of Appeals – District I

Case Name: Trust of Rene von Schleinitz v. Geoffrey Maclay, Jr.

Case No: 2014AP2123

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

Practice Areas: Trusts & Estates – Real Estate

Christine Lindemann appeals a judgment of the circuit court pertaining to real estate owned by the Trust of Rene von Schleinitz. Lindemann, one of three trustees, contends that the circuit court erred when it found that a septic system servicing a home (“Hillside Cottage”) on the Trust property belonged to the homeowners—her parents—rather than to the Trust. She also contends that the circuit court erroneously denied her request for an accounting of Trust expenses and for attorney fees paid for by the Trust. Edith and Geoffrey Maclay, Lindemann’s parents, along with her brother, Geoffrey Maclay Jr. (collectively, “The Maclays”), cross-appeal. The Maclays contend that the circuit court erroneously failed to dismiss Lindemann’s action because Lindemann lacked the authority to unilaterally litigate issues pertaining to the Trust. They also argue that the circuit court erroneously found that the well and water pump supplying water to Hillside Cottage was an improvement to the Trust property, thereby belonging to the Trust and not the home. Finally, the Maclays contend that the circuit court erroneously failed to grant their request for attorney fees. We affirm in part and we reverse in part. We affirm the circuit court’s finding that the septic system servicing Hillside Cottage belonged to the home, as opposed to the Trust. We also affirm the circuit court’s denial of Lindemann’s request for an audit of the Trust, as well as her request for attorney fees. However, we conclude that the circuit court erroneously denied the Maclays’ motion to dismiss Lindemann’s action, erroneously found that the water system supplying water to Hillside Cottage belonged to the Trust, as opposed to the home, and erroneously denied the Maclays’ motion for attorney fees. Accordingly, we reverse the circuit court’s findings on these matters and remand to the circuit court for a determination of the Maclays’ attorney fees.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Thomas W. Shelley

Case No: 2014AP2562-CR

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

Practice Areas: Pleas & Sentencing – Sentence Credit

Thomas Shelley, pro se, appeals an order denying his motion for sentence credit. Shelley argues he is entitled to 672 days of pretrial incarceration credit. We reject Shelley’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: Sears Holdings corporation v. City of Eau Claire

Case No: 2014AP2618

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

Practice Areas: Property Tax

Sears Holdings Corporation appeals a judgment upholding the City of Eau Claire’s 2011 and 2012 property tax assessments, both of which were based on valuation determinations made by the City’s assessor. Sears’ only argument on appeal is that the assessor’s analysis did not comply with the dictates of the Wisconsin Property Assessment Manual (the Manual), and therefore the circuit court erroneously accorded the assessments a presumption of correctness. We conclude the assessments sufficiently applied the principles set forth in the Manual, and we affirm.

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WI Court of Appeals – District III

Case Name: Ann Ellen Genzler v. Clifford Charles Genzler

Case No: 2014AP2905

Officials: Hruz, Seidl, and Reilly, JJ.

Practice Areas: Divorce – Property Division – Maintenance

Clifford Genzler challenges the circuit court’s division of property and maintenance determination in his divorce proceeding. We affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Stephen Toliver

Case No: 2014AP2939-CR

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

Practice Areas: Pleas & Sentencing – Plea Withdrawal

Stephen Toliver appeals the judgment of conviction, entered upon guilty pleas, of one count of felony murder and one count of firstdegree recklessly endangering safety. Toliver also appeals from the circuit court order denying his postconviction motion to withdraw his guilty pleas. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Shannon E. Parker

Case No: 2014AP2098-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Practice Areas: Motion to Suppress

A jury found Shannon E. Parker guilty of robbery with use of force, second-degree sexual assault with use of force, false imprisonment, identity theft, and battery, all as a repeater. He contends the trial court erred when it denied his motions to suppress the victim’s in- and out-of -court identifications of him and to change venue. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ronald F. Romanelli, Jr.

Case No: 2014AP874-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Practice Areas: Court Error – Harmless Error

Ronald Romanelli appeals a judgment of conviction. The issue is whether the circuit court properly denied his motion for severance of charges. We conclude that any error was harmless. We affirm.

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WI Court of Appeals – District IV

Case Name: Mary Ellen Matthews v. Donald Earl Matthews

Case No: 2014AP1166

Officials: Higginbotham, Sherman and Blanchard, JJ.

Practice Areas: Divorce – Revision of Spousal Maintenance

Donald Matthews appeals from an order of the circuit court revising and extending his obligation to pay maintenance to his former spouse, Mary Matthews. For the reasons explained below, we affirm.

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WI Court of Appeals – District IV

Case Name: Bank of America, N.A. v. Jasson K. Yahn

Case No: 2015AP936

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

Practice Areas: Foreclosure – Right to Enforce

This action arises out of a foreclosure action initiated by Bank of America against Jasson and Sarah Yahn. The circuit court granted summary judgment in favor of Bank of America. The Yahns dispute whether documents that Bank of America submitted in support of its motion for summary judgment established that it has the right to enforce the note. For the reasons discussed below, we agree with the Yahns and reverse summary judgment in favor of Bank of America.

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WI Court of Appeals – District IV

Case Name: City of Stevens Point v. Todd P. Beck

Case No: 2015AP978

Officials: SHERMAN, J.

Practice Areas: OWI – Admissibility of Evidence

Todd Beck appeals judgements of the circuit court for operating a motor vehicle while under the influence of an intoxicant (OWI), and driving a motor vehicle with a prohibited alcohol concentration (PAC). Beck contends the circuit court erred in admitting the results of his blood draw, which he argues is inadmissible because the arresting officer failed to provide him the proper notices under Wisconsin’s implied consent law. See WIS. STAT. § 343.305(4). For the reasons discussed below, I affirm.

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7th Circuit Court of Appeals

7th Circuit Court of Appeals

Case Name: Tempest Horsley v. Jessica Trame

Case No: 14-2846

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

Practice Area: 2nd Amendment – Application for Firearm – Constitutionality

Requirement that 18 – 20-year-old adults applying for FOID card have parent or guardian signature not unconstitutional.

“We conclude that Illinois has shown a sufficient means-end relationship between the challenged statute and an important government interest. Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership. The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event. If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment—the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional. See United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012) (stating that a “law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.”).”

Affirmed

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7th Circuit Court of Appeals

Case Name: Indiana Petroleum Marketers And Convenience Store Association, et al.  v. David Cook

Case No: 14-2559

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

Practice Area: Constitutionality – Alcohol Sales

State law preventing sale of cold packaged beer constitutional under rational-basis review.

“The Association’s second equal-protection argument is that package liquor stores are permitted to sell cold packaged beer but grocery and convenience stores are not. See §§ 7.1-5-10-11, 7.1-3-5-3(d). Indiana defends this distinction by noting that package liquor stores are subject to stricter regulations designed to enhance the State’s ability to limit and control the distribution of alcohol. For instance, no one under the age of 21 is permitted on the premises of a package liquor store. Compare IND. CODE § 7.1-5-7-10 with id. § 7.1- 5-7-11(a) (listing exceptions not applicable here). Sales clerks must be at least 21 years old. See id. § 7.1-5-7-12 (prohibiting the sale of alcohol by minors); see also id. § 7.1-5-7-13 (establishing a limited exception for 19- and 20-year-old servers in restaurants and hotels, provided that they have special training and are supervised by a trained employee over the age of 21). Hours and days of operation are restricted. See, e.g., id. § 7.1-5-10-1 (requiring licensed premises to close during times that alcohol sales are unlawful “to the extent that the nature of the business … permits”); id. § 7.1-3-1-14(a) (providing that alcohol sales are lawful Monday through Saturday from 7 a.m. to 3 a.m. the following day).”

Affirmed

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7th Circuit Court of Appeals

Case Name: Cincinnati Insurance Company v. Vita Food Products Inc.

Case No: 15-1405

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

Practice Area: Insurance Coverage

Existence of oral agreement to add company as additional insurance may require insurance company to provide coverage.

“Cincinnati Insurance argues that requiring the certificate before a liability-triggering event occurs is necessary to protect the insurer against fakery by the insured. After Ovando’s accident Painters would have been desperate for Vita to be acknowledged as an additional insured, as otherwise Vita, facing suit by Ovando and his wife, might try to drag Painters into the suit, accusing it of responsibility for the accident. The certificate was not issued by Painters or Vita, however, but instead, as we noted earlier, by an insurance agent on behalf of Cincinnati Insurance. The agent would not be willing to backdate a certificate of insurance at the insured’s (Painters’) request, so requiring that the certificate precede the accident would provide extra protection against fakery. Oral agreements are valid contracts, however, and the insurance policy is explicit that an oral agreement is sufficient to add an additional insured.”

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Hair Rodriguez- Molinero V. Loretta E. Lynch

Case No: 15-1860

Officials: POSNER, MANION, and SYKES, Circuit Judges

Practice Areas: Removal Proceedings

Court reviews petition for deferral of removal of Mexican national due to likelihood of torture.

“If the Mexican government could be expected to protect the petitioner from the Zetas should he be returned to Mexico, the risk that he would be tortured or killed might be too slight to entitle him to deferral of removal. But the legal team representing our government in this case presented no evidence of this—indeed, it presented no evidence at all. And though the immigration judge remarked that the Mexican government was trying to control the drug gangs, it is success rather than effort that bears on the likelihood of the petitioner’s being killed or tortured if removed to Mexico. And finally the government made no effort to refute the expert’s testimony that the petitioner could not relocate to a safe part of Mexico—that no part is safe for him—a proposition that neither the immigration judge nor the BIA member challenged.”

Petition for review. Case Remanded to Board of Immigration Appeals

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7th Circuit Court of Appeals

Case Name: EEOC v. CVS Pharmacy, Inc.

Case No: 14-3653

Officials: FLAUM, MANION, and ROVNER, Circuit Judges

Practice Area: Violation of Title VII

EEOC improperly interprets powers un Title VII and fails to conciliate its claim before bringing suit.

“If we were to adopt the EEOC’s interpretation of Section 707(a), the EEOC would never be required to engage in conciliation before filing a suit because it could always contend that it was acting pursuant to its broader power under Section 707(a). In other words, the EEOC’s position reads the conciliation requirement out of the statute. But Congress has made it clear that it prefers for the EEOC to resolve Title VII disputes by informal methods of dispute resolution and to only resort to litigation when those methods fail. See Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (observing that conciliation is “a key component of the statutory scheme” and that “Congress chose cooperation and voluntary compliance as its preferred means” of bringing “employment discrimination to an end” (citations, internal quotation marks, and alteration omitted)); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368, 379 (1977) (observing that “the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties” and that “Congress, in enacting Title VII, chose cooperation and voluntary compliance … as the preferred means of achieving its goals” (internal citation, quotation marks, and alteration omitted)); Alexander v. Gardner‐Denver Co., 415 U.S. 36, 44 (1974) (observing that Congress created the EEOC to give parties “an opportunity to settle disputes through conference, conciliation, and persuasion” before resorting to litigation); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1042 (7th Cir. 1982) (describing conciliation as the EEOC’s “most im‐ portant function”).”

Affirmed.

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7th Circuit Court of Appeals

Case Name: Kevin McCarthy v. Patricia Fuller

Case No: 15-1839; 14-3308

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges

Practice Area: Defamation – Injunction

Judge issues injunction without sound basis.

“But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were defamatory, and the plaintiffs didn’t even ask the judge to address that absence, so he didn’t. As illustrative of the injunction’s resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech”

Affirmed in Part, Reversed and Remanded in Part

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<b>United States Supreme Court</b>
<b> </b>
<b>Supreme Court of the United States</b>
<b>Case Name: DIRECTV, Inc. v. Imburgia</b>
<b>Case No: 14-462</b>
<b>Practice Area: Enforcement of Agreements – Preemption</b>

California Court of Appeals Interpretation of Service Agreement between corporation and customers preempted by Federal Arbitration Act.

“The court added that it would interpret “‘ambiguous language against the interest of the party that drafted it,’” namely DIRECTV. 225 Cal. App. 4th, at 345, 170 Cal. Rptr. 3d, at 196 (quoting Mastrobuono, 514 U. S., at 62). The dissent adopts a similar argument. See post, at 7–9. But, as we have pointed out, supra, at 8, were the phrase “law of your state” ambiguous, surely some court would have construed that term to incorporate state laws invalidated by, for example, federal labor law, federal pension law, or federal civil rights law. Yet, we have found no such case. Moreover, the reach of the canon construing contract language against the drafter must have limits, no matter who the drafter was. The fact that we can find no similar case interpreting the words “law of your state” to include invalid state laws indicates, at the least, that the antidrafter canon would not lead California courts to reach a similar conclusion in similar cases that do not involve arbitration.”

Reversed and Remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

<a href=”http://www.supremecourt.gov/opinions/15pdf/14-462_2co3.pdf”>Full Text</a><div>

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<b>Supreme Court of the United States</b>
<b>Case Name: White v. Wheeler</b>
<b>Case No: 14-1372</b>
<b>Practice Area: Death Sentence Jury Exclusion</b>

Exclusion of juror did not violate 6<sup>th</sup> and 14<sup>th</sup> amendments.

“The Court of Appeals erred in its assessment of the trial judge’s reformulation of an important part of Juror 638’s questioning. 779 F. 3d, at 372. When excusing the juror the day after the voir dire, the trial judge said that the prosecution had asked whether the juror “couldn’t consider the entire range” of penalties. App. to Pet. for Cert. 139a. The prosecution in fact asked if the juror was “not absolutely certain whether [he] could realistically consider” the entire range of penalties. Id., at 132a. The juror’s confirmation that he was “not absolutely certain whether [he] could realistically consider” the death penalty, ibid., was a reasonable basis for the trial judge to conclude that the juror was unable to give that penalty fair consideration. The trial judge’s decision to excuse Juror 638 did not violate clearly established federal law by concluding that Juror 638 was not qualified to serve as a member of this capital jury. See Witt, supra, at 424–426. And similarly, the Kentucky Supreme Court’s ruling that there was no error is not beyond any possibility for fairminded disagreement. . . The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. And this Court does not review the other rulings of the Court of Appeals that are not addressed in this opinion”

<a href=”http://www.supremecourt.gov/opinions/15pdf/14-1372_1p23.pdf”>Full Text</a>

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Per Curiam
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<b>Wisconsin Court of Appeals</b>
<b> </b>
<b>WI Court of Appeals – District I</b>
<b>Case Name: State of Wisconsin v. Vincent T. Grady</b>
<b>Case No: 2014AP1979</b>
<b>Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge.</b>
<b>Practice Areas: Pleas &amp; Sentencing – Sentence Modification</b>

Vincent T. Grady, pro se, appeals trial court orders denying his motions for sentence modification and for reconsideration. We affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157478″><b>Full Text</b></a><div>

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<b>WI Court of Appeals – District I</b>
<b>Case Name: Trust of Rene von Schleinitz v. Geoffrey Maclay, Jr. </b>
<b>Case No: 2014AP2123</b>
<b>Officials: Curley, P.J., Kessler, J., and Daniel L. LaRocque, Reserve Judge</b>
<b>Practice Areas: Trusts &amp; Estates – Real Estate</b>

Christine Lindemann appeals a judgment of the circuit court pertaining to real estate owned by the Trust of Rene von Schleinitz. Lindemann, one of three trustees, contends that the circuit court erred when it found that a septic system servicing a home (“Hillside Cottage”) on the Trust property belonged to the homeowners—her parents—rather than to the Trust. She also contends that the circuit court erroneously denied her request for an accounting of Trust expenses and for attorney fees paid for by the Trust. Edith and Geoffrey Maclay, Lindemann’s parents, along with her brother, Geoffrey Maclay Jr. (collectively, “The Maclays”), cross-appeal. The Maclays contend that the circuit court erroneously failed to dismiss Lindemann’s action because Lindemann lacked the authority to unilaterally litigate issues pertaining to the Trust. They also argue that the circuit court erroneously found that the well and water pump supplying water to Hillside Cottage was an improvement to the Trust property, thereby belonging to the Trust and not the home. Finally, the Maclays contend that the circuit court erroneously failed to grant their request for attorney fees. We affirm in part and we reverse in part. We affirm the circuit court’s finding that the septic system servicing Hillside Cottage belonged to the home, as opposed to the Trust. We also affirm the circuit court’s denial of Lindemann’s request for an audit of the Trust, as well as her request for attorney fees. However, we conclude that the circuit court erroneously denied the Maclays’ motion to dismiss Lindemann’s action, erroneously found that the water system supplying water to Hillside Cottage belonged to the Trust, as opposed to the home, and erroneously denied the Maclays’ motion for attorney fees. Accordingly, we reverse the circuit court’s findings on these matters and remand to the circuit court for a determination of the Maclays’ attorney fees.

Recommended for Publication

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157471″><b>Full Text</b></a>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: State of Wisconsin v. Thomas W. Shelley</b>
<b>Case No: 2014AP2562-CR</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Practice Areas: Pleas &amp; Sentencing – Sentence Credit</b>

Thomas Shelley, pro se, appeals an order denying his motion for sentence credit. Shelley argues he is entitled to 672 days of pretrial incarceration credit. We reject Shelley’s arguments and affirm the order.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157545″><b>Full Text</b></a>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: Sears Holdings corporation v. City of Eau Claire</b>
<b>Case No: 2014AP2618</b>
<b>Officials: Stark, P.J., Hruz and Seidl, JJ.</b>
<b>Practice Areas: Property Tax</b>

Sears Holdings Corporation appeals a judgment upholding the City of Eau Claire’s 2011 and 2012 property tax assessments, both of which were based on valuation determinations made by the City’s assessor. Sears’ only argument on appeal is that the assessor’s analysis did not comply with the dictates of the Wisconsin Property Assessment Manual (the Manual), and therefore the circuit court erroneously accorded the assessments a presumption of correctness. We conclude the assessments sufficiently applied the principles set forth in the Manual, and we affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157547″><b>Full Text</b></a><div>

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<b>WI Court of Appeals – District III</b>
<b>Case Name: Ann Ellen Genzler v. Clifford Charles Genzler</b>
<b>Case No: 2014AP2905</b>
<b>Officials: Hruz, Seidl, and Reilly, JJ.</b>
<b>Practice Areas: Divorce – Property Division – Maintenance</b>

Clifford Genzler challenges the circuit court’s division of property and maintenance determination in his divorce proceeding. We affirm

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157536″><b>Full Text</b></a>

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<b>WI Court of Appeals – District I</b>
<b>Case Name: State of Wisconsin v. Stephen Toliver</b>
<b>Case No: 2014AP2939-CR</b>
<b>Officials: Curley, P.J., Kessler and Brennan, JJ.</b>
<b>Practice Areas: Pleas &amp; Sentencing – Plea Withdrawal</b>

Stephen Toliver appeals the judgment of conviction, entered upon guilty pleas, of one count of felony murder and one count of firstdegree recklessly endangering safety. Toliver also appeals from the circuit court order denying his postconviction motion to withdraw his guilty pleas. We affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157472″><b>Full Text</b></a>

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<b>WI Court of Appeals – District II</b>
<b>Case Name: State of Wisconsin v. Shannon E. Parker</b>
<b>Case No: 2014AP2098-CR</b>
<b>Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.</b>
<b>Practice Areas: Motion to Suppress</b>

A jury found Shannon E. Parker guilty of robbery with use of force, second-degree sexual assault with use of force, false imprisonment, identity theft, and battery, all as a repeater. He contends the trial court erred when it denied his motions to suppress the victim’s in- and out-of -court identifications of him and to change venue. We disagree and affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157514″><b>Full Text</b></a>

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<b>WI Court of Appeals – District IV</b>
<b>Case Name: State of Wisconsin v. Ronald F. Romanelli, Jr.</b>
<b>Case No: 2014AP874-CR</b>
<b>Officials: Lundsten, Sherman and Blanchard, JJ.</b>
<b>Practice Areas: Court Error – Harmless Error</b>

Ronald Romanelli appeals a judgment of conviction. The issue is whether the circuit court properly denied his motion for severance of charges. We conclude that any error was harmless. We affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157840″><b>Full Text</b></a>

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<b>WI Court of Appeals – District IV</b>
<b>Case Name: Mary Ellen Matthews v. Donald Earl Matthews</b>
<b>Case No: 2014AP1166</b>
<b>Officials: Higginbotham, Sherman and Blanchard, JJ.</b>
<b>Practice Areas: Divorce – Revision of Spousal Maintenance</b>

Donald Matthews appeals from an order of the circuit court revising and extending his obligation to pay maintenance to his former spouse, Mary Matthews. For the reasons explained below, we affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157680″><b>Full Text</b></a>

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<b>WI Court of Appeals – District IV</b>
<b>Case Name: Bank of America, N.A. v. Jasson K. Yahn</b>
<b>Case No: 2015AP936</b>
<b>Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.</b>
<b>Practice Areas: Foreclosure – Right to Enforce</b>

This action arises out of a foreclosure action initiated by Bank of America against Jasson and Sarah Yahn. The circuit court granted summary judgment in favor of Bank of America. The Yahns dispute whether documents that Bank of America submitted in support of its motion for summary judgment established that it has the right to enforce the note. For the reasons discussed below, we agree with the Yahns and reverse summary judgment in favor of Bank of America.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157676″><b>Full Text</b></a>

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<b>WI Court of Appeals – District IV</b>
<b>Case Name: City of Stevens Point v. Todd P. Beck</b>
<b>Case No: 2015AP978</b>
<b>Officials: SHERMAN, J.</b>
<b>Practice Areas: OWI – Admissibility of Evidence</b>

Todd Beck appeals judgements of the circuit court for operating a motor vehicle while under the influence of an intoxicant (OWI), and driving a motor vehicle with a prohibited alcohol concentration (PAC). Beck contends the circuit court erred in admitting the results of his blood draw, which he argues is inadmissible because the arresting officer failed to provide him the proper notices under Wisconsin’s implied consent law. See WIS. STAT. § 343.305(4). For the reasons discussed below, I affirm.

<a href=”http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&amp;seqNo=157729″><b>Full Text</b></a>

<b>7th Circuit Court of Appeals</b>
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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Tempest Horsley v. Jessica Trame</b>
<b>Case No: 14-2846</b>
<b>Officials: POSNER and WILLIAMS, Circuit Judges, and WOOD, District Judge.</b>
<b>Practice Area: 2<sup>nd</sup> Amendment – Application for Firearm – Constitutionality</b>

Requirement that 18 – 20-year-old adults applying for FOID card have parent or guardian signature not unconstitutional.

“We conclude that Illinois has shown a sufficient means-end relationship between the challenged statute and an important government interest. Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership. The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event. If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment—the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional. See United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012) (stating that a “law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.”).”

Affirmed

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-14/C:14-2846:J:Williams:aut:T:fnOp:N:1671930:S:0″>Full Text</a><div>

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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Indiana Petroleum Marketers And Convenience Store Association, et al.  v. David Cook</b>
<b>Case No: 14-2559</b>
<b>Officials: RIPPLE, WILLIAMS, and SYKES, Circuit Judges.</b>
<b>Practice Area: Constitutionality – Alcohol Sales</b>

State law preventing sale of cold packaged beer constitutional under rational-basis review.

“The Association’s second equal-protection argument is that package liquor stores are permitted to sell cold packaged beer but grocery and convenience stores are not. See §§ 7.1-5-10-11, 7.1-3-5-3(d). Indiana defends this distinction by noting that package liquor stores are subject to stricter regulations designed to enhance the State’s ability to limit and control the distribution of alcohol. For instance, no one under the age of 21 is permitted on the premises of a package liquor store. Compare IND. CODE § 7.1-5-7-10 with id. § 7.1- 5-7-11(a) (listing exceptions not applicable here). Sales clerks must be at least 21 years old. See id. § 7.1-5-7-12 (prohibiting the sale of alcohol by minors); see also id. § 7.1-5-7-13 (establishing a limited exception for 19- and 20-year-old servers in restaurants and hotels, provided that they have special training and are supervised by a trained employee over the age of 21). Hours and days of operation are restricted. See, e.g., id. § 7.1-5-10-1 (requiring licensed premises to close during times that alcohol sales are unlawful “to the extent that the nature of the business … permits”); id. § 7.1-3-1-14(a) (providing that alcohol sales are lawful Monday through Saturday from 7 a.m. to 3 a.m. the following day).”

Affirmed

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-14/C:14-2559:J:Sykes:aut:T:fnOp:N:1671685:S:0″>Full Text</a><div>

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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Cincinnati Insurance Company v. Vita Food Products Inc. </b>
<b>Case No: 15-1405</b>
<b>Officials: BAUER, POSNER, and KANNE, Circuit Judges.</b>
<b>Practice Area: Insurance Coverage </b>

Existence of oral agreement to add company as additional insurance may require insurance company to provide coverage.

“Cincinnati Insurance argues that requiring the certificate before a liability-triggering event occurs is necessary to protect the insurer against fakery by the insured. After Ovando’s accident Painters would have been desperate for Vita to be acknowledged as an additional insured, as otherwise Vita, facing suit by Ovando and his wife, might try to drag Painters into the suit, accusing it of responsibility for the accident. The certificate was not issued by Painters or Vita, however, but instead, as we noted earlier, by an insurance agent on behalf of Cincinnati Insurance. The agent would not be willing to backdate a certificate of insurance at the insured’s (Painters’) request, so requiring that the certificate precede the accident would provide extra protection against fakery. Oral agreements are valid contracts, however, and the insurance policy is explicit that an oral agreement is sufficient to add an additional insured.”

Reversed and Remanded

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-16/C:15-1405:J:Posner:aut:T:fnOp:N:1673433:S:0″>Full Text</a><div>

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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Hair Rodriguez- Molinero V. Loretta E. Lynch</b>
<b>Case No: 15-1860</b>
<b>Officials: POSNER, MANION, and SYKES, Circuit Judges</b>
<b>Practice Areas: Removal Proceedings</b>

Court reviews petition for deferral of removal of Mexican national due to likelihood of torture.

“If the Mexican government could be expected to protect the petitioner from the Zetas should he be returned to Mexico, the risk that he would be tortured or killed might be too slight to entitle him to deferral of removal. But the legal team representing our government in this case presented no evidence of this—indeed, it presented no evidence at all. And though the immigration judge remarked that the Mexican government was trying to control the drug gangs, it is success rather than effort that bears on the likelihood of the petitioner’s being killed or tortured if removed to Mexico. And finally the government made no effort to refute the expert’s testimony that the petitioner could not relocate to a safe part of Mexico—that no part is safe for him—a proposition that neither the immigration judge nor the BIA member challenged.”

Petition for review. Case Remanded to Board of Immigration Appeals

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-17/C:15-1860:J:Posner:aut:T:fnOp:N:1673810:S:0″>Full Text</a><div>

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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: EEOC v. CVS Pharmacy, Inc. </b>
<b>Case No: 14-3653</b>
<b>Officials: FLAUM, MANION, and ROVNER, Circuit Judges</b>
<b>Practice Area: Violation of Title VII</b>

EEOC improperly interprets powers un Title VII and fails to conciliate its claim before bringing suit.

“If we were to adopt the EEOC’s interpretation of Section 707(a), the EEOC would never be required to engage in conciliation before filing a suit because it could always contend that it was acting pursuant to its broader power under Section 707(a). In other words, the EEOC’s position reads the conciliation requirement out of the statute. But Congress has made it clear that it prefers for the EEOC to resolve Title VII disputes by informal methods of dispute resolution and to only resort to litigation when those methods fail. See Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (observing that conciliation is “a key component of the statutory scheme” and that “Congress chose cooperation and voluntary compliance as its preferred means” of bringing “employment discrimination to an end” (citations, internal quotation marks, and alteration omitted)); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368, 379 (1977) (observing that “the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties” and that “Congress, in enacting Title VII, chose cooperation and voluntary compliance … as the preferred means of achieving its goals” (internal citation, quotation marks, and alteration omitted)); Alexander v. Gardner‐Denver Co., 415 U.S. 36, 44 (1974) (observing that Congress created the EEOC to give parties “an opportunity to settle disputes through conference, conciliation, and persuasion” before resorting to litigation); EEOC v. Liberty Trucking Co., 695 F.2d 1038, 1042 (7th Cir. 1982) (describing conciliation as the EEOC’s “most im‐ portant function”).”

Affirmed.

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-17/C:14-3653:J:Flaum:aut:T:fnOp:N:1673808:S:0″>Full Text</a><div>

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<b>7<sup>th</sup> Circuit Court of Appeals</b>
<b>Case Name: Kevin McCarthy v. Patricia Fuller</b>
<b>Case No: 15-1839; 14-3308</b>
<b>Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges</b>
<b>Practice Area: Defamation – Injunction</b>

Judge issues injunction without sound basis.

“But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were defamatory, and the plaintiffs didn’t even ask the judge to address that absence, so he didn’t. As illustrative of the injunction’s resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech”

Affirmed in Part, Reversed and Remanded in Part

<a href=”http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2015/D12-18/C:15-1839:J:Posner:aut:T:fnOp:N:1674578:S:0″>Full Text</a>

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