Weekly Case Digests — Jan. 4-8, 2015

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WI Court of Appeals – District I

Case Name: Petitioner v. Patrick Kocher

Case No.: 2015AP2866

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

Practice Area: Harrassment – Injunction

Patrick Kocher, pro se, appeals from an order of the circuit court that “reaffirmed” the family court commissioner’s issuance of an injunction against Kocher, directing him to refrain from harassing petitioner. We affirm.

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WI Court of Appeals – District III

Case Name: Pierce County v. James Ladner

Case No.: 2015AP119

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

Practice Area: Misrepresentation

James Ladner appeals a summary judgment dismissing his third-party claims against Paul Mosby. Ladner’s claims were based on misrepresentations Mosby allegedly made regarding a property he sold to Ladner. We conclude Ladner’s claims fail because his reliance on the alleged misrepresentations was unreasonable as a matter of law. We therefore affirm the judgment dismissing Ladner’s third-party claims.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher A. Shepler

Case No.: 2015AP326-CR; 2015AP327-CR; 2015AP328-CR

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

Practice Area: Court Error – Admission of Evidence

Christopher Shepler appeals a judgment of conviction for first-degree sexual assault, child enticement, possession of a dangerous weapon, and obstructing an officer, and an order denying his postconviction motion to withdraw his guilty pleas. Shepler argues the circuit court erroneously granted the State’s motion to admit other-acts evidence. We reject Shepler’s argument and affirm.

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WI Court of Appeals – District III

Case Name: Theresa M. Johnson v. Hello the House, LLC

Case No.: 2015AP543

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

Practice Area: Insurance – Negligence

Theresa Johnson and her husband, Steven Johnson, sued Jonathan and Kathleen Picard and their insurer, American Family Mutual Insurance Company, as a result of Theresa’s slip and fall on an icy sidewalk in front of a building owned by the Picards. The circuit court dismissed the Johnsons’ claims on summary judgment, concluding the Picards had no duty to Theresa because the ice accumulation on which she slipped was natural, as opposed to artificial. We agree with that conclusion. We also agree with the Picards that, even if the accumulation of ice was artificial, the Johnsons’ claims are barred by WIS. STAT. § 893.89, the ten-year statute of repose for claims alleging injuries resulting from improvements to real property. We therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian I. Harris

Case No.: 2014AP1767-CR

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

Practice Area: 5^th Amendment – Motion to Suppress

Brian Harris appeals from a judgment of conviction for burglary, possession of burglarious tools, criminal damage to property, and criminal trespass, all as a repeater. He contends his Fifth Amendment right against self-incrimination was violated when the circuit court denied his motion to suppress evidence and permitted the State to use at trial incriminating, un-Mirandized comments he made to law enforcement officers while in their custody. Harris made his initial comments while seated in the back of a squad car shortly after officers found him in the dark basement of a vacant townhouse, handcuffed him, and asked him preliminary questions of who he was and why he was there. Harris made another challenged remark in response to a detective inquiring at the Kenosha county jail if Harris would be willing to cooperate with the detective by providing a statement. We conclude the court properly denied Harris’s suppression motion and permitted the State to use his comments at trial because Harris’s initial comments were sufficiently attenuated from the officer’s questioning so as to purge any potential taint from the questioning, and with regard to Harris’s remark at the jail, the detective’s communication to Harris, which prompted the remark, did not constitute “interrogation,” and thus the detective did not err in failing to provide Harris the Miranda1 warnings. We affirm.

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WI Court of Appeals – District IV

Case Name: Amanda Alvarez v. Bobby Joe Veliz

Case No.: 2014AP2254

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

Practice Area: Divorce – Physical Placement

In this post-divorce proceeding, Bobby Veliz had primary physical placement of his minor children when he filed a motion for an order permitting him to move from Wisconsin to the State of Washington and to remove the children from Wisconsin so that they could reside with him in Washington. The children’s mother, Amanda Alvarez, opposed removal of the children from Wisconsin, and separately filed a motion for an order granting her primary physical placement of the children with her in Wisconsin. The circuit court denied Veliz’s motion to remove the children from Wisconsin, and granted Alvarez’s motion for primary physical placement. Veliz appeals both decisions. We conclude that the court correctly analyzed the issues under WIS. STAT. § 767.481(3) (2013-14), rain and, in doing so, properly exercised its discretion. The court determined that, while Veliz’s intent to move himself to Washington was not unreasonable to the extent that it would allow Veliz to pursue his best career options through service in the United States Navy, the removal of the children from Wisconsin to Washington was unreasonable and not in their best interests. Accordingly, we affirm the order of the circuit court.

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WI Court of Appeals – District II

Case Name: John Hyink v. John Wolf

Case No.: 2015AP136

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

Practice Area: Enforcement of Settlement

John Hyink and Hyink Well Drilling, Inc., (collectively, Hyink) and John Wolf and Wolf Joint Revocable Trust (Wolf) entered into a postmediation agreement to settle a business dispute. Hyink appeals the judgment and order entered on the circuit court’s ruling on the parties’ cross- motions for enforcement of settlement. We affirm to the extent that the court orally ruled that the agreement required Hyink to provide Wolf a Real Estate Security Agreement (RESA). We reverse to the extent that it ruled that the “spirit” of the settlement agreement required HWD to assume credit card debt not addressed at mediation.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Caroline D. Prieto

Case No.: 2015AP279-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Practice Area: Exclusion of Witnesses – Abuse of Discretion

In its appeal, the State acknowledges that the district attorney’s office did not have good cause for its failure to list its witnesses. The State nevertheless argues that the court erred as WIS. STAT. § 971.23(7m) does not mandate the exclusion of witnesses, and the naming of its witnesses thirteen days before trial was “within a reasonable time before trial.” Accepting without deciding that exclusion is discretionary rather than mandatory under § 971.23(7m), we conclude the circuit court did not erroneously exercise its discretion in excluding the State’s witnesses given the district attorney’s flagrant disregard of § 971.23 and the court’s orders.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Jennifer J. Lack v. The Cincinnati Insurance Company

Case No.: 2015AP461

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Practice Area: Declaratory Judgment – Insurance Coverage

Jennifer J. Laack, The Cincinnati Insurance Company, Dodge Concrete, Inc., and Michael J. Weiss (collectively, the appellants) appeal from a circuit court order granting summary and declaratory judgment in favor of Massachusetts Bay Insurance Company on the issue of insurance coverage. Because we conclude that summary and declaratory judgment were not appropriate on this record, we reverse and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: David Stock v. New York Life Insurance and Annuity Corporation

Case No.: 2015AP575

Officials: Reilly, P.J., Hagedorn and Stark, JJ.

Practice Area: Summary Judgment – Theft

David and Jennifer Stock appeal an order denying their motion for summary judgment and granting summary judgment in favor of New York Life Insurance Company (NYL) and New York Life Insurance and Annuity Corporation (NYLIAC). As the Stocks cannot prove that they own the funds at issue, they cannot prevail on the theft and conversion claims against NYL and NYLIAC. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Keith D. McEvoy

Case No.: 2015AP1262

Officials: KLOPPENBURG, P.J.

Practice Area: Revocation of License

Keith McEvoy appeals his judgment of conviction, which revoked his driver’s license for three years, for refusing to submit to a chemical test of his blood under the Wisconsin implied consent law, WIS. STAT. § 343.305(9). McEvoy argues that the State is estopped from pursuing the refusal action to revoke his license, because the State had temporarily suspended his license under WIS. STAT. § 343.305(7). For the reasons set forth below, I conclude that McEvoy’s reliance on his receipt of a notice to suspend, to mean that the State had changed its mind and was no longer pursuing a refusal action to revoke his license, was not reasonable. Accordingly, I affirm the judgment.

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WI Court of Appeals – District II

Case Name: Estate of Dorothy Metteson v. Mark Nelson

Case No.: 2015AP1669

Officials: NEUBAUER, C.J.

Practice Area: Small Claims – Petition to Reopen

In this small claims action, a judgment was entered again Mark Nelson upon his default in failing to answer the complaint or appear. Nelson petitioned to reopen the judgment on the ground that he did not receive notice of the summons and complaint. The circuit court denied Nelson’s motion, and we affirm.

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: John Tate v. SCR Medical Transportation Inc.

Case No.: 15-1447

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

Practice Area: Title VII – Retaliatory Termination

Judge fails to inform pro se plaintiff about what was missing from complaint, case remanded.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his com‐ plaint in an amended complaint, we might have been spared this appeal, and the district judge a remand. See Hughes v. Farris, No. 15‐1801, 2015 WL 8025491, at *1–2 (7th Cir. Dec. 7, 2015); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Grayson v. Mayview State Hospital, 293 F.3d 103, 108–09 (3d Cir. 2002).”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Joshua Howard v. William Pollard

Case No.: 15-8025

Officials: WOOD, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

Practice Area: 8^th Amendment

23(f) petition denied – fails to raise novel issues of law.

“The petitioners suggest that they would have been adequate class representatives if the district court had simply granted their motion for appointment of counsel under Rule 23(g). But the purpose of Rule 23(g) is not to enable pro se plaintiffs to obtain recruited counsel in conjunction with class certification; the purpose of the rule is to ensure that the proposed class counsel is adequate. See FED. R. CIV. P. 23 advisory committee’s note to the 2003 amendments (explaining that before addition of subsection(g), courts “scrutinized proposed class counsel as well as the class representative under Rule 23(a)(4)”; that “[t]his experience has recognized the importance of judicial evaluation of the pro- posed lawyer for the class”; and that “Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while [subdivision (g)] will guide the court in assessing pro- posed class counsel as part of the certification decision” (em- phases added)); see also Sheinberg v. Sorensen, 606 F.3d 130, 132 (3d Cir. 2010) (“[U]nder the plain language of [Rule 23(g)], a district court’s decision to certify a class must precede the appointment of class counsel.”). And even if the district court had ignored the petitioners’ reference to Rule 23(g) and considered their motion for appointment of counsel before (and independently from) considering their motion for class certification, the request for counsel would have been properly denied because the petitioners gave no indication that they had made any effort to retain counsel themselves. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc).”

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Antonio West

Case No.: 14-2514

Officials: POSNER and SYKES, Circuit Judges, and SIMON, Chief District Judge.*

Practice Area: Exclusion of Evidence – Expert Testimony

Court exclusion of expert testimony relevant to mental state of appellant is reversible error

“West also challenges the exclusion of the nonexpert evidence of his mental-health condition, but we think that’s a closer call. This evidence includes his cousin’s testimony that he lived in a nursing home and that West’s state identification card listed him as disabled. Without the expert’s testimony explaining West’s low IQ and mental illness, this evidence may well have confused the jury. But with the expert testimony—and perhaps also a limiting instruction explain- ing the proper uses of this evidence—the confusion evaporates. In the end, the judge excluded this evidence for the same reason that he excluded the expert’s testimony: he thought that all evidence of West’s mental disability was irrelevant. We’ve explained why that conclusion was mistaken. The admissibility of the nonexpert evidence of West’s mental disability should be reconsidered on remand.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Rufino A. Estrada-Martinez v. Loretta E. Lynch

Case No.: 15-1139

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

Practice Area: Immigration – Removal

Deferral of removal petition granted

“The Board’s treatment of these factual matters shows that the Board, rather than reviewing the judge’s findings of fact for clear error as required by regulation, instead reweighed the evidence to come to a conclusion different from the judge’s. The Board did not conclude that the judge’s finding regarding Estrada’s likelihood of torture was “illogical or implausible” or lacked “support in inferences that can be drawn from facts in the record.” See Anderson, 540 U.S. at 577; see also Zumel, 803 F.3d at 476 (concluding that the Board exceeded its proper clear error scope of review of an immigration judge’s finding because the Board did not ex- plain “why the [judge’s] determination … was ‘illogical or implausible, or without support in inferences that may be drawn from the facts in the record’”). The Board also did not find that Estrada’s testimony, which the judge credited and upon which she in part based her finding, was incoherent, facially implausible, internally inconsistent, or contradicted by extrinsic evidence. See Anderson, 470 U.S. at 575. Thus, the Board made a legal error by failing to apply the required clear-error standard. See Rosiles-Camarena, 735 F.3d at 539.”

Petition Granted and Remanded to Board of Immigration Appeals

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7^th Circuit Court of Appeals

Case Name: Gregory Jean-Paul v. Timothy Douma

Case No.: 14-3088

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

Practice Area: Waiver of Right to Counsel

Evidence supports court’s conclusion that appellant waived right to counsel and did so knowingly and intelligently.

“Here, in contrast, not only did Jean-Paul sign the waiver form, the record supports a finding that he understood that the state appellate court would evaluate any no-merit report. In the signed waiver form, Jean-Paul states that he had “discussed with my attorney my right to a no-merit report.” And in his correspondence with Donnelly, Jean-Paul asked for all court papers so he could “fully and thoroughly respond to the No Merit report.” This evidence shows that Jean-Paul understood that the appellate court would decide whether to accept Donnelly’s no-merit report. This case is thus distinguishable from Betts.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: CFE Group, LLC v. FirstMerit Bank, N.A.

Case No.: 14-2554

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

Voluntary dismissal at federal level did not preclude subsequent state action

“CFE responds with two arguments, but neither has any merit. CFE first argues that the dismissal of FirstMerit’s complaint should be treated as preclusive because the company filed its notice of voluntary dismissal only after the district court’s “adverse” ruling dismissing the complaint with‐ out prejudice. For support, CFE quotes Muhammad v. Oliver, 547 F.3d 874, 876 (7th Cir. 2008): “when a suit is abandoned after an adverse ruling against the plaintiff, the judgment ending the suit, whether or not it is with prejudice, will generally bar bringing a new suit that arises from the same facts as the old one.” But Muhammad does not apply here because FirstMerit received no “adverse” ruling. In Muhammad, a state court dismissed on the merits a contract claim against one defendant. After the dismissal the plaintiff voluntarily dismissed claims against another defendant without prejudice. Id. at 876. When the plaintiff later refiled against both defendants, we held that the new suit was barred by claim preclusion: “‘[A] plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.’” Id. at 876–77, quoting Hudson v. City of Chicago, 889 N.E.2d 210, 217 (Ill. 2008). In this case, however, there was no final judgment on any claim by FirstMerit. The only ruling that preceded its voluntary dismissal was expressly “without prejudice” to its ability to file an amended complaint curing the problems the court had perceived.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jeffrey Brown v. UAL Corporation

Case No.: 13-2800

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

Practice Area: Bankruptcy

Motion to reopen CH. 11 Bankruptcy properly denied after years of inaction.

“Some four years later, after the bankruptcy closed in 2009, Brown hired a new lawyer. That attorney, says Brown, contacted United’s lawyers and was told—incorrectly—that Brown’s claim in the bankruptcy court had already been paid. Brown again let the matter drop. Not until another two and a half years had passed, in January 2013, did he take further action. Only then, through yet another attorney, did he move to reopen United’s bankruptcy so that his claims in the March 2004 California state-court complaint could be litigated. The bankruptcy court in Northern Illinois denied that motion, reasoning that Brown had failed to prosecute his claims by ignoring them for years. The district court affirmed that decision.”

Affirmed

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