Weekly Case Digests — Feb. 15-19, 2016

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: Katiuska Bravo v. Midland Credit Management, Inc., & Midland Funding, LLC

Case No: 15-1231

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

Focus: FDCPA Violations

After settlement of debt, company sends letter requesting payment of same debt and debtor files claim for FDCPA violation. Case dismissed for failure to state a claim.

“Lastly, Bravo argued that the letters violate §1692e(5) of the FDCPA. She alleges that the letters contained threats of actions that Midland was not legally able to take. The first threat was demanding payment of debts eliminated by settlement. The second threat was the statement, “[T]his account may still be reported on your credit report as unpaid.” These arguments were not brought at the district level, and arguments not raised to the district court are waived on appeal. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012); Brown v. Auto. Components Holding, LLC, 622 F.3d 685, 691 (7th Cir. 2010); Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1238 (7th Cir. 1997).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ryan Mathison v. Scotta Moats

Case No: 14-3549

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

Focus: Bivens Suit – Deliberate Indifference – Prisoner Injury

Prisoner alleges deliberate indifference stemming from failure of prison staff to immediately attend to prisoner suffering from heart attack

“Although the prison’s treatment of Mathison’s heart at‐ tack was incompetent, the guard whom Mathison summoned to his cell when the attack began (defendant Wick‐ man) can’t be thought to have exhibited deliberate indifference to Mathison’s condition. For he immediately notified his superior, the supervisory lieutenant, as protocol required; he had no medical training that would have enabled him to do more for Mathison. Dr. Moats, though he should not have been allowed to testify as an expert witness, cannot be thought to have exhibited deliberate indifference to Mathison’s plight either. He was not made aware of Mathison’s condition until 8 a.m., and proceeded to give him emergency treatment and promptly summoned an ambulance to take him to the nearest hospital emergency room.”

Affirmed in Part

Reversed and Remanded in Part

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7^th Circuit Court of Appeals

Case Name: Robert Hoyt v. Michael Benham

Case No: 12-1581

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

Focus: Easements

Property owner with no access to his lot seeks right of access to lot from adjoining lots .

“Even if Hoyt had an easement, his use of the road would be limited to what it was when the easement was granted. An easement is granted on the basis of an understanding of what the owner of the easement will be allowed to do with it—and it hasn’t been shown that the understanding of what the owners of the western lot could do on the road in the southwestern lot included paving a road, as Hoyt wants to do. And much of the time the Strip was not a road at all, but just a strip of land on which a road might be (and eventually was) built. Now there’s a gravel road, and Hoyt wants to be able to drive an automobile over it. But there is nothing to suggest that he could have obtained an easement that would have allowed him to drive back and forth on the Strip between the West Burma Road and his lot when the Strip did not exist as a road, for he would have needed an easement that expressly allowed him to build a road on another person’s property.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Micah Stern v. Michael Meisner

Case No: 15-2558

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

Focus: Violation of due process

Prisoner convicted of sex crime against a child appeals conviction alleging the court’s interpretation of the belief and intent elements of the statue violated his due process right by depriving him of fair notice of the elements.

“Stern argues that the statutory framework requires a jury to still find an adult who believed he was communicating with an adult guilty. But, as the district court noted, this result would never happen. If the jury is convinced of the defendant’s credibility and believes the adult defendant was communicating with a consenting adult, then the jury would be precluded from finding the defendant guilty. But, such a scenario is not Stern’s. The undercover officer posed as a 14‐year‐old boy. Stern had reason to believe Peter was 14 years old based upon all of the information provided to Stern by Peter. Based on the evidence, the jury found Stern had the intent to have sexual contact with someone he objectively had reason to believe was 14 years old.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Debbie Stage v. Carolyn Colvin

Case No: 15-1837

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

Focus: Application for disability benefits

Appellant application for disability insurance benefits denied. ALJ erred by failing to consider contrary evidence and to evaluate appellant claims properly.

“Finally, we agree with Stage that the ALJ failed to evaluate her claims of pain properly and relied on improper grounds in making his adverse credibility determination. In addition to the problems already noted, the ALJ also erred by basing his adverse credibility determination on two grounds that we have repeatedly held improper: (1) Stage’s decision not to undergo invasive and expensive surgery, without inquiring into her reasons for doing so, and (2) her ability to care for herself and her grandchildren. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (stating that failure to recognize differences between activities in daily living and a full‐time job “is a recurrent, and deplorable, feature” of ALJs’ opinions”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (remanding where ALJ found claimant’s spinal disk disease‐related pain allegations not credible based on her ability to care for self and children); Beardsley, 758 F.3d at 838 (finding that claimant’s limited ability to care for her mother “lend[s] no support to the conclusion that she would be able to spend six hours a day, every day, on her feet working,” and rejecting adverse inference drawn from claimant’s decision not to undergo surgery, absent exploration of the reason). In doing so, the ALJ overlooked testimony that Stage performed only very limited tasks—with great difficulty—and that her teenage grandchildren and her sister helped her with most tasks of daily living, so that her ability to cope with those tasks at home offered little support for her ability to handle competitive full‐time work at a “light” level of exertion.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Armel Richardson

Case No: 15-1403

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

Focus: Length of sentence

Appellant “career offender” properly sentenced by the court

“What is true is that “a sentencing court may not consider police reports to determine whether a prior conviction meets the definition of a crime of violence or a controlled substance offense for purposes of classifying a defendant as a career offender.” United States v. Durham, 645 F.3d 883, 896 (7th Cir. 2011), summarizing Shepard v. United States, 544 U.S. 13 (2005). But that was not what the district judge did. The classification of the defendant as a career offender is not contested. The only issue is whether a sentencing judge can allow his exercise of sentencing discretion to be influenced by a summary of police reports in the presentence report prepared by the Probation Service. He can. Judges routinely rely on information found in such reports, even though much of that information is hearsay. The rules of evidence do not apply to sentencing, and so the sentencing judge is free to consider hearsay found in presentence reports provided that “it is well supported and appears reliable.” United States v. Heckel, 570 F.3d 791, 795 (7th Cir. 2009). The only hearsay in the presentence report relating to the defendant’s 2001 and 2005 offenses was the amount of drugs plus a statement that he’d been found with a digital scale containing crack cocaine residue, along with $7,515 in cash, when he was arrested in 2005—his convictions and sentences were matters of public record, and the sentences of 27 months for the 3-gram offense and 98 months for the 25-gram offense were consistent with the drug amounts; and as the defendant presented no evidence that the police reports were inaccurate in any respect relevant to this case, the judge was not required to disregard those amounts.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Daniel Spitzer

Case No: 15-1278

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

Focus: Sentencing

Sentencing court properly administered appellant sentence according to his actions fitting squarely within the guidelines

“At sentencing, Spitzer’s lawyer contested this calculation by asking that the loss be reduced to account for the fact that more than $70 million was returned to investors, some of whom were made whole, and $30 million of the $106 million was invested (at least for a time). But as $34 million represents investors’ net loss, it is hard to see how any further reduction could be taken. See United States v. Walsh, 723 F.3d 802, 807–09 (7th Cir. 2013). The loss for Guidelines purposes might have been reduced if some of the $34 million had been attributable to financial markets, rather than fraud, but Spitzer did not attempt to show how investors would have fared if the funds had been operated as he promised. Some investors got out without injury, and redemption requests were honored until near the end when the funds ran out of money, but Spitzer conceded that he owes restitution of some $34 million to 458 specific persons, which made it hard to contest the enhancement for 250 or more victims. He also conceded drawing more than $1 million for himself and claiming to be an investment adviser, and the elaborate details through which the scheme was operated attest to sophisticated means. The district judge stated that he agreed with the calculation in the PSR and sentenced Spitzer to 300 months’ imprisonment.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Travis Maxfield

Case No: 15-2339

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

Focus: Sentencing

Appellant contests sentence for convictions related to distribution of methamphetamine arguing that one of his prior offenses was non-violent in nature.

“Second, Maxfield is incorrect that the court failed to con‐ sider his argument. The district court explicitly considered his request for a downward departure but found no basis for a downward departure under the guidelines. For the first time on appeal, Maxfield points to a policy statement in § 4A1.3(b)(1), but § 4A1.3(b)(1) allows a downward depa ture if the defendant’s criminal history category is substantially overrepresented. Maxfield questions only the reasonable‐ ness of the 10 point increase in his offense level; he does not argue that his criminal history category is overrepresented. Nor could he, because, as the district court recognized, his criminal history category was VI with or without the career‐ offender status.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States v. Orlando Rosales

Case No: 15-1580

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

Focus: Sentencing

Court did not commit procedural error in sentencing, properly sentences appellant as career offender.

“Second, the record otherwise makes plain to us why the district judge was not convinced the career offender guideline was out of place here. See Rita, 551 U.S. at 358-59, 127 S. Ct. at 2469 (short explanation of court’s sentencing rationale sufficient where record makes plain reason for its conclusion); Jones, 798 F.3d at 618 (“So long as the record gives us confidence that the court meaningfully considered the defendant’s mitigation arguments, ‘even if implicitly and imprecisely,’ that is enough.”) (quoting United States v. Diekemper, 604 F.3d 345, 355 (7th Cir. 2010)). Rosales had not the requisite two but rather three prior convictions for drug trafficking, and the case for those predicates being minor (or, for that matter, remote from his present conviction, as he has also argued) was never as convincing as his counsel made it out to be. One of those three convictions involved a 7.3-pound quantity of marijuana, which is by no means a small quantity, let alone a personal-use quantity, as Rosales has said was typical of his prior convictions. More to the point, Rosales’s criminal history reflects a pattern of drug sales that began with marijuana, transitioned to cocaine (a more serious narcotic), and culminated in a multiparticipant trafficking operation that dealt in what the district judge characterized as substantial quantities of the latter drug. (She found that Rosales was responsible for 2.87 kilograms of cocaine, conservatively.) Apart from the predicate convictions triggering the career offender enhancement, Rosales’s criminal history included multiple arrests and convictions for the possession of narcotics and drug paraphernalia. Furthermore, as the district judge pointed out, his history revealed no evidence of legitimate income in the years immediately preceding the instant offense. So one could reasonably infer, No. 15-1580 11 and it is obvious to us that Judge Crabb did, that and it is obvious to us that Judge Crabb did, that Rosales was engaged in drug dealing in those years and that the transactions that gave rise to this prosecution were part of a years long, continuous, and escalating pattern of drug dealing. In short, it does not appear that Rosales was unfairly ensnared by the career offender guideline.

Affirmed

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WI Court of Appeals

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Richard Carlisle Hollenbeck

Case No: 2015AP69

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

Focus: Court Error

Richard Hollenbeck, pro se, appeals an order denying his WIS. STAT. § 974.06 motion for postconviction relief. Hollenbeck challenges the effectiveness of his postconviction counsel and intimates that the circuit court erroneously exercised its discretion when it denied his motion without a hearing. We reject Hollenbeck’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: Michael A. Koch v. Health Partners

Case No: 2015AP544

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

Focus: Summary Judgment

Michael Koch appeals a summary judgment dismissing his negligence and safe place statute claims against Little Black Mutual Insurance Company and McClay Enterprises Wausau, LLC (collectively, “McClay”). Koch sued for damages arising out of injuries he sustained when he slipped and fell on accumulated snow and ice in front of McClay’s apartment building in the Village of Wittenberg. We conclude genuine issues of material fact precluded summary judgment. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey Harris

Case No: 2015AP975

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

Focus: General Appeal – Ineffective Assistance of Counsel – New Evidence

Jeffrey Harris, pro se, appeals from a trial court order denying his postconviction motion for a new trial. Harris argues that he is entitled to a new trial based on: (1) newly discovered evidence from several individuals, including recantation evidence from a key trial witness; (2) ineffective assistance of Harris’s trial and appellate counsel; and (3) in the interest of justice. We reject Harris’s arguments and affirm the order.

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WI Court of Appeals – District I

Case Name: Gary Kramschuster, et al  v. Laura R. Schwefel

Case No: 2015AP1266

Officials: KESSLER, J.

Focus: Venue – Jurisdiction

Gary and Sandra Kramschuster (the Kramschusters), pro se, appeal an order of the small claims court dismissing their action against Laura R. Schwefel. The small claims court dismissed the Kramschusters’ action on the grounds that it belonged in family court, rather than small claims court. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nikolas S. Czysz

Case No: 2014AP2706

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

Focus: Ineffective Assistance of Counsel

Nikolas S. Czysz appeals from an order denying his WIS. STAT. § 974.06 (2013-14), postconviction motion. Czysz argues that postconviction counsel was ineffective for failing to raise claims alleging the ineffective assistance of trial counsel. We conclude that trial counsel did not perform deficiently and, therefore, postconviction counsel was not ineffective. We affirm

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WI Court of Appeals – District II

Case Name: Linda Wachholz, et al. v. Otto Environment Systems of North America, Inc.,

Case No: 2015PA187

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

Focus: Court Error

A jury returned a verdict finding no negligence or strict liability against Otto Environmental Systems of North America, Inc. for injuries Linda Wachholz suffered while using an Otto product. Linda and her

husband, Ronald Wachholz, appeal, alleging that the court made a series of erroneous and prejudicial evidentiary rulings. We disagree and affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sean D. Whitehead

Case No: 2015AP751

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

Focus: Ineffective Assistance of Counsel

Sean Whitehead appeals, pro se, the circuit court’s order denying his postconviction motion wherein Whitehead asked the court to vacate the judgment of conviction or alternatively allow him to withdraw his guilty pleas based on lack of jurisdiction, ineffective assistance of trial and appellate counsel, and his contention that WIS. STAT. § 961.41(4) (2013-14) is unconstitutional. As set forth below, we affirm the court’s denial of Whitehead’s motion, but on different grounds.

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WI Court of Appeals – District II

Case Name: Kohler Company v. Village of Kohler

Case No: 2015AP785

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

Focus: Property Taxes

The Village of Kohler (Village) appeals from the trial court’s decision awarding Kohler Company (Kohler) a refund of $605,908.51 plus interest for overpayment of property taxes. On appeal, the Village argues that the trial court erred in excluding its expert’s amended reports and by prohibiting its expert from testifying about the impact one of the reports had on his valuation of Kohler’s property. The Village also argues that the trial court’s valuation of one of the properties at issue—Blackwolf Run—was erroneous. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: Pauline Haass Public Library Board v. Town of Lisbon

Case No: 2015AP868

Officials: NEUBAUER, C.J.

Focus: Municipal Contracts

The plaintiff Pauline Haass Public Library Board (the joint Library Board) was established by an Intermunicipal Agreement between the Town of Lisbon and the Village of Sussex to create and operate a joint library. Under the terms of the Intermunicipal Agreement, the agreement, which governs the joint Library Board, could be terminated upon “written notice to the other party not later than October 1st of any year … that the agreement is to terminate at the end of the year in which notice is given.” In June 2014, after the joint Library Board commenced this action (the action) alleging that the Town was withholding assets that rightfully belonged to the joint Library Board, the Town passed a resolution terminating the “agreement effective December 31, 2014.” On November 11, 2014, the Village passed an ordinance repealing the section of its ordinance addressing a joint library committee and replaced it with a section establishing a new library board so as to ensure continuity from the joint Library Board to the new board. The ordinance was to “take effect immediately upon passage and posting or publication as provided by law.” Based on its reading of that ordinance, the circuit court concluded that the joint Library Board immediately ceased to exist and, thus, it could no longer maintain this lawsuit. We disagree and, therefore, reverse the judgment granting the Town’s motion to dismiss

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WI Court of Appeals – District II

Case Name: Nels L. Johnson v. Geico General Insurance Company

Case No: 2015AP879

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

Focus: Insurance Coverage – Oral Agreement

Nels Johnson appeals from an order of the circuit court granting summary judgment to Geico General Insurance Company (GEICO). Johnson was involved in an automobile accident and GEICO, his insurer, denied his claim. Johnson contends that even though his insurance policy itself does not cover the accident, the policy should be reformed to provide coverage because GEICO neglected to include the agreed upon terms. At the heart of this dispute is Johnson’s statement that he only drove the car at issue—a 2005 Mercedes Benz SL55 AMG—in the summer, and a GEICO representative’s response saying, “We can take care of that.” Johnson claims that this shows an oral agreement between himself and GEICO that the policy would provide only comprehensive coverage during the winter and full coverage during the summer. The question before us is whether this statement and response raise a genuine issue of fact as to the existence of an oral agreement that GEICO would automatically fully cover Johnson’s Mercedes during the summer and automatically switch to limited coverage during the winter. We hold that the statement and response do not raise a genuine dispute of fact, and the circuit court properly granted summary judgment for GEICO.

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WI Court of Appeals – District IV

Case Name: Dennis A. Tegue v. Linda Colvin, et al

Case No: 2014AP2360

Officials: Sherman, Higginbotham, and Blanchard, JJ

Focus: DOJ Negligence

Dennis Teague appeals a judgment of the circuit court dismissing his claims alleging statutory and constitutional violations by four Wisconsin officials (“the state officials”). The essence of Teague’s claims is that the Wisconsin Department of Justice (DOJ) knowingly propagates inaccurate information about Teague each time it compiles and releases a report in response to a request from a member of the public for Wisconsin criminal history information that refers to Teague. Without declaratory, injunctive relief preventing that practice, Teague contends, DOJ will compile and release what amount to false positive criminal history reports on him.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Wisconsin Department of Revenue v. Orbitz, LLC

Case No: 2015AP200

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

Focus: Tax Assessments

The Wisconsin Department of Revenue (DOR) appeals an order of the circuit court affirming a decision by the Tax Appeals Commission (Commission) that reversed tax assessments imposed by DOR against Orbitz, L.L.C. DOR contends that the Commission wrongly concluded that Orbitz’s reservation facilitation services are not among the taxable services enumerated in WIS. STAT. § 77.52(1)(a)1. (2005-06). For the reasons discussed below, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Demario Derrick Foster

Case No: 2015AP1069-CR

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

Focus: Motion to Suppress – Lack of Probable Cause

Demario Foster appeals a judgment of conviction for delivery of a controlled substance following a guilty plea. Foster contends that the circuit court erred by denying his motion to suppress evidence obtained in a search incident to arrest. He argues that the police lacked probable cause for the arrest. For the reasons set forth below, we agree. We reverse

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert A. Schoengarth

Case No: 2015AP1834-CR

Officials: BLANCHARD, J.

Focus: OWI – Motion in Limine

The State of Wisconsin has charged Robert Schoengarth with operating while intoxicated—second offense, and operating with a prohibited alcohol concentration—second offense. The State appeals a circuit court order granting Schoengarth’s motion in limine to prevent the State from introducing evidence at trial about two aspects of field sobriety tests that police had Schoengarth perform while on the side of a state highway. The court failed to provide clear reasoning to support its evidentiary decision. For reasons that I now explain, on my independent review of the record, I conclude that the court did not properly exercise its discretion, and accordingly reverse and remand for further proceedings

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WI Court of Appeals – District IV

Case Name: Rock County Human Services Department v. D.B.

Case No: 2015AP2420

Officials: SHERMAN, J.

Focus: Termination of Parental Rights

D.B. appeals from an order of the circuit court terminating her parental rights to T.J. D.B. contends that the circuit court erroneously exercised its discretion in determining that termination of her parental rights was in the best interest of T.J. because the court failed to give proper consideration to three of the statutory factors the court is required to consider when determining whether termination of parental rights is in the child’s best interest. For the reasons discussed below, I conclude that the circuit court properly exercised its discretion and, therefore, affirm.

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WI Supreme Court

WI Supreme Court

Case Name: State of Wisconsin v. Charles V. Matalonis

Case No: 2014AP108-CR

Focus: Motion to Suppress

Warrantless search of appellant’s home by police was reasonably exercised

“Taken together, our balancing test shows: (1) a significant public interest and an exigent situation; (2) a significant intrusion on Matalonis’s constitutional rights, but one tailored to the needs of the situation; and (3) few or no available, feasible, and effective alternatives. We conclude that, on balance, the officers’ exercise of the community caretaker function was reasonable “because the public interest in the search outweighed [Matalonis’s] privacy interests.” Gracia, 345 Wis. 2d 488, ¶30.”

ABRAHAMSON, J., dissents. (Opinion Filed)

PROSSER, ABRAHAMSON, A.W. BRADLEY, J.J.J., dissent. (Opinion Filed)

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Patrick A. Callahan

Case No: 2015AP1984-D

Focus: Disciplinary Proceedings

Attorney has license suspended for 60 days following five counts of misconduct with one client.

“In July 2012, on the same day that Attorney Callahan filed the untimely discrimination complaint against C.R.’s former employer with the DWD-ERD, Attorney Callahan also filed a civil suit against C.R.’s former employer. In February 2013, about six weeks before the discovery cutoff date set by the circuit court, Attorney Callahan sent a letter to the circuit court in which he admitted that he had: (1) failed to perform necessary discovery activities to prepare the case adequately; (2) failed to communicate with C.R. about the status of her claim; (3) failed to inform C.R. of the scheduling of her deposition; (4) advised opposing counsel that C.R. would accept $10,000 to settle the case even though he did not have C.R.’s authority to do so; and (5) failed to timely file C.R.’s discrimination complaint with the DWD-ERD and to report this fact to C.R. Attorney Callahan also mailed a copy of this letter to the OLR.”

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