Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — March 28- April 1, 2016

By: WISCONSIN LAW JOURNAL STAFF//April 1, 2016//

Weekly Case Digests — March 28- April 1, 2016

By: WISCONSIN LAW JOURNAL STAFF//April 1, 2016//

Listen to this article

7th Circuit Court of Appeals -Digests

7th Circuit Court of Appeals

Case Name: USA v. John Smith

Case No.: 15-1901

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

Focus: Juror Removal – Coercive Acts by the Court

Court refusal to allow juror to remove themselves mid-deliberation was not unduly coercive.

“We agree with the government and the district court that Smith waived his challenge to the court’s response by affirmatively proposing the formulation of the response. When a defendant affirmatively approves an instruction to the jury, he waives his challenge. United States v. Kirklin, 727 F.3d 711, 716 (7th Cir. 2013); United States v. DiSantis, 565 F.3d 354, 361 (7th Cir. 2009). Smith’s unequivocal answer of “perfect”—a more affirmative answer than, say, “no objection”— constitutes a waiver. See United States v. Ajayi, 808 F.3d 1113, 1121 (7th Cir. 2015) (“Ordinarily, we treat an affirmatively stated “no objection” to a jury instruction as a waiver.”).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Bridgeview Health Care Center, LTD v. Jerry Clark

Case No.: 14-3728; 15-1793

Officials: FLAUM, MANION, and ROVNER, Circuit Judges

Focus: TCPA Violation – Extent of Liability

Class action suit brought after health care center received advertising via fax. Liability not extended to plaintiffs more than 20 miles from advertising company.

“We have previously written that, “[i]n this age of email and other Internet communication systems, faxes are used by businesses for little else besides advertising.” CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 725 (7th Cir. 2011). Fax paper and ink were once expensive, and this may be why Congress enacted the TCPA, but they are not costly today. See id. at 726. As a result, what motivates TCPA suits is not simply the fact that an unrequested ad arrived on a fax machine. Instead, there is evidence that the pervasive nature of junk-fax litigation is best explained this way: it “has blossomed into a national cash cow for plaintiff’s attorneys specializing in TCPA disputes.” Yuri R. Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of the Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. 70, 97 (2011). We doubt that Congress intended the TCPA, which it crafted as a consumer-protection law, to become the means of targeting small businesses. Yet in practice, the TCPA is nailing the little guy, while plaintiffs’ attorneys take a big cut. Plaintiffs’ counsel in this case admitted, at oral argument, that they obtained B2B’s hard drive and used information on it to find plaintiffs. They currently have about 100 TCPA suits pending. Congress likely should have targeted the marketing firms, rather than their unsuspecting clients. Nevertheless, we enforce the law as Congress enacted it. We thus review whether the class should be decertified, as Clark urges here”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Edward T. Joyce & Assoc. v. Professionals Direct Insurance Co.

Case No.: 14-3341

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

Focus: Arbitration Award

Legal fees adjusted in arbitration not covered under professional liability insurance plan.

“Professionals Direct paid for the Joyce firm’s defense in the arbitration. But when the arbitrator found for the clients and ordered the firm to reimburse some of the fees they had paid, the insurer refused the firm’s demand for indemnification. The Joyce firm initiated coverage litigation in state court, which the insurer promptly removed to federal court. Ruling on cross-motions for summary judgment, the district judge sided with the insurer, concluding that the arbitration award was a “sanction” under the insurance policy’s exclusion (o), which excludes coverage for “fines, sanctions, penalties, punitive damages or any damages resulting from the multiplication of compensatory damages.””

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: USA v. Wayne Hill

Case No.: 14-2019

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

Focus: Motion to Suppress

Cell-site analysis evidence from cellular phone properly admitted in bank robbery case.

“No federal court of appeals has yet said authoritatively that historical cell-site analysis is admissible to prove the location of a cell phone user. The Sixth Circuit gave the technique an unfavorable appraisal recently in United States v. Reynolds, 626 F. App’x 610, 616–17 (6th Cir. 2015) (nonprecedential). Because the government there used historical cellsite analysis to prove that certain people were not in a certain area at a particular time, the court did not need to rule on the technique’s reliability for proving where a person was at a given time. The court noted, however, that claims of successful use by law enforcement personnel were “precisely the sort of ‘ipse dixit of the expert’ testimony that should raise a gatekeeper’s suspicion,” were it “not subject to independent peer review,” and “fail[ed] to establish an error rate with which to assess reliability because there was no information on how many times the technique was employed unsuccessfully.” Id. at 616 (quoting Kumho Tire, 526 U.S. at 157). The Fifth Circuit, in contrast, has affirmed the admission of historical cell-site analysis under Rule 702 to prove an individual’s location. See United States v. Schaffer, 439 F. App’x 344, 347 (5th Cir. 2011) (nonprecedential). But the Sixth Circuit singled out Schaffer for criticism in Reynolds. 626 F. App’x at 616–17. And even the Fifth Circuit only remarked that “[t]estimony established that the field is neither untested nor unestablished.” 439 F. App’x at 347. This is hardly a ringing endorsement.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: USA v. Jason Guidry

Case No.: 15-1345

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

Focus: Conditions of Supervised Release – Motion to Suppress

Ambiguous conditions of supervised release vacated.

“As a final note, we reiterate a point that we underscored during oral argument: It is important that in every sentencing, both the prosecution and defense confirm that any conditions of supervised release are unambiguous and sufficiently tailored to the defendant’s circumstances, and remind the sentencing judge to make the appropriate findings justifying their imposition.”

Vacated and Remanded for Resentencing

Affirmed Conviction & prison term

Full Text

7th Circuit Court of Appeals

Case Name: Continental Casualty Company v. Alan Symons et al

Case No.: 14-2665; 14-2671; 15-1061

Officials: ROVNER and SYKES, Circuit Judges, and ANDREA WOOD, District Judge

Focus: Liability – Breach of Sale – False Transfer – Piercing Corporate Veil

Entity and owners liable for breach of sale agreement, breach of false transfer act.

“Clearing away the factual complexity, this appeal presents three discrete questions for our review: (1) Is Symons International liable to Continental for breach of the 1998 sale agreement? (2) Are Symons International, Goran, Granite Re, Alan Symons, and the Estate of Gordon Symons liable as transferees under the Indiana Uniform False Transfer Act (“IUFTA”)? and (3) Are Alan Symons and the Estate of Gordon Symons liable under an alter-ego theory? For the most part, we answer these questions “yes” and affirm the judgment in its entirety”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Eric D. Holmes v. Ron Neal

Case No.: 14-3359; 04-3549; 06-2905

Officials: WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges

Focus: Mental Competency – Habeas Corpus

Appellant lengthy and repetitive appeal dismissed.

“Considering that he was convicted of the murders almost a quarter of a century ago and that if he fails to obtain relief in a hearing in the Indiana court system on his mental competency to be executed and having thus exhausted his state remedies files a further petition for habeas corpus in the federal district court and loses and appeals once again to us it will be the fourth time that we are called on to render a decision in this protracted litigation, we are dismayed at the prospect that looms before us of further and perhaps endless protraction of federal judicial review of Holmes’s conviction and sentence. But we are obliged by section 2254(b)(1)(A) to proceed as just indicated.”

No.14-3359 Affirmed

No. 04-3549 Affirmed

No. 06-2905 Dismissed

Full Text

7th Circuit Court of Appeals

Case Name: Patrica Jepson v. Bank of New York Mellon

Case No.: 14-2459

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

Focus: Bankruptcy – Foreclosure

Appellant appeals dismissal of adversary complaint in bankruptcy proceeding as related to respondent interest in appellant mortgage.

“In evaluating this argument, we note as an initial matter that New York state courts never have endorsed squarely the theory that a mortgagor has standing to challenge a void assignment. See id. at 88–89 (entertaining this theory but not concluding whether, under New York law, mortgagors actually have standing to challenge void assignments). In any event, New York courts consistently have held that an assignment that fails to comply with the terms of a trust agreement merely is voidable and not void. Id. at 88–90 (collecting cases); see also Erobobo, 9 N.Y.S.3d at 314. To be sure, the governing New York State statute does state that “[i]f the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by … law, is void.” N.Y. Estates, Powers and Trusts Law § 7‐2.4 (McKinney 2016) (emphasis added). As we have noted earlier, how‐ ever, in interpreting this statute, “New York courts appear to have almost uniformly concluded that a beneficiary retains the authority to ratify a trustee’s ultra vires act.” Cocroft v. HSBC Bank USA, N.A., 796 F.3d 680, 689 (7th Cir. 2015) (citing Mooney v. Madden, 597 N.Y.S.2d 775, 776 (N.Y. App. Div. 1993), and Tran, 2014 WL 1225575, at *5). If a beneficiary is able to ratify an unauthorized mortgage assignment, then the assignment is merely voidable and cannot be challenged by a mortgagor. Id.”

Affirmed in Part

Remanded in Part

Full Text

7th Circuit Court of Appeals

Case Name: Michael Hughes v. Gregg Scott, et al

Case No.: 15-3482

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

Focus: 1st Amendment – 14th Amendment

Appellant argues that facility staff violated civil rights – case improperly dismissed.

“But perhaps the most remarkable feature of this case is the defendants’ insistence in defiance of the Illinois Administrative Code that Hughes has no need to invoke grievance procedures because he can always sue, as he has done. What makes this contention remarkable is the fact that the interests of Rushville, of the Illinois Department of Human Services, and of the taxpayers of this almost bankrupt state, obviously are best served if grievances are handled at the facility level rather than by the court system, which is far more costly. Does Rushville have an unlimited budget, so that it can pay lawyers to defend against lawsuits brought only be‐ cause the institution refuses to obey the Administrative Code and respond to Hughes’ grievances, preferring instead to ridicule him and drive him to sue Rushville staff?”

Reversed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Stephen Hummel, et al v. St. Joseph County Board of Commissioners, et al.

Case No.: 14-3284

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and DARRAH, District Judge

Focus: Accessibility for Disabled Individuals –

Claim stemming from inaccessibility to courthouse by disabled individuals dismissed as moot. Courthouse has been remodeled to allow for access and plaintiff’s lack standing.

“While the law would permit such a claim, this record simply does not support standing to seek damages on this basis. The lawyer’s affidavit, aside from general statements about the inaccessibility of the parking, specifically alleged only that the parking inaccessibility had affected his representation of plaintiffs Means and Matney, who have since passed away. Plaintiffs failed to offer evidence that they themselves suffered any injury because of discrimination against their attorney. Without such evidence, plaintiffs lack standing on the basis of their association with their attorney. See Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005) (declining to “scour” the record to help a party overcome summary judgment).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Arthur Mitchell v. Donald Enloe

Case No.: 14-2946

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

Focus: Ineffective Assistance of Counsel

Appellants fails to show that trial counsel acted unreasonably.

“Mitchell also fails to show that he was prejudiced due to counsel’s failure to request a provocation instruction. See Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010) (“Prejudice means, ‘an error which so infected the entire trial that the resulting conviction violates due process.’” (citation omitted)). To convict for second degree murder under either self‐defense or provocation, the jury would have had to believe Mitchell’s version of events. But the forensic evidence contradicts Mitchell’s story. The jury took a view of the evidence that permitted conviction for first degree murder. It is un‐ likely that the jury would have disregarded that evidence and believed Mitchell’s account even if counsel had presented an alternative provocation instruction. “

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: American Commercial Lines, LLC v. The Lubrizol Corp

Case No.: 15-3242

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

Focus: Breach of Contract

Claim against remaining defendant, the respondent, in contract litigation properly dismissed. Parties should have had more concrete contractual relationship given sophistication of parties.

“A word finally about that last term, quasi‐contract. ACL treats it as if it were synonymous with contract, whereas the term “quasi‐contract” actually denotes absence of a contract, coupled with a sense that there would have been a contract had it not been for some unexpected intervening event. The classic example is the physician who chances on a person lying unconscious on the ground and treats him. Because the patient is unconscious there can be no contractual negotiation regarding the physician’s price for the treatment. Yet it is customary for physicians to be paid for the medical services they render, and so the law treats the situation as if the parties had contracted for treatment at the physician’s nor‐ mal rate. In Confold Pacific, Inc. v. Polaris Industries, Inc., 433 F.3d 952, 958 (7th Cir. 2006), we gave the example “of the physician who renders services to an unconscious person and later sends him a bill that the patient refuses to pay,” and we pointed out that requiring the patient to pay “the normal fee for such a medical service … enforces reasonable expectations.” This is called enforcing a “quasi‐contract” be‐ cause “the court is constructing a contractual relationship [ex post facto] in order to bring about the result for which the parties probably would have contracted had contracting been feasible in the circumstances, which it was not.” Id. But there was no obstacle in this case to ACL’s contracting with Lubrizol”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: USA v. Willie Gonzalez

Case No.: 15-1706

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

Focus: Sufficiency of Evidence

Evidence was sufficient for jury to find that appellant possessed drugs.

“Additional evidence showed that, during the months before the September 2013 seizure, Gonzalez had maintained control over drugs after they were sent from California to Hernandez. Weil testified that he was required to do business with Gonzalez through Hernandez; Hernandez received drugs from Gonzalez and doled them out to Weil, who would pay Hernandez instead of Gonzalez directly. These arrangements provide strong circumstantial support that Gonzalez had at least joint possession over large quantities of drugs in Hernandez’s apartment. See United States v. Hernandez, 13 F.3d 248, 252 (7th Cir. 1994) (“The conclusion that Serrano had the power to possess the cocaine is further supported by the evidence that between the two of them, Serrano was in charge.”); United States v. McAnderson, 914 F.2d 934, 947–48 (7th Cir. 1990) (finding evidence of constructive possession of firearms when high-ranking member of gang participated in recorded conversations planning use of firearms); United States v. Espinoza, 684 F.3d 766, 777 (8th Cir. 2012) (finding sufficient evidence of constructive possession when defendant was aware of shipments to stash house, directed others’ sales from stash house, and received proceeds from those sales).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Gary W. Sgouros v. TransUnion Corporation, et al.

Case No.: 15-1371

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

Focus: Contract

No contract existed from Appellant using respondent website to obtain credit score, therefore motion for arbitration properly denied.

“Where the terms are not displayed but must be brought up by using a hyperlink, courts outside of Illinois have looked for a clear prompt directing the user to read them. Tompkins v. 23andMe, Inc., 2014 WL 2903752 (N.D. Cal. June 25, 2014) (California law); Major v. McCallister, 302 S.W.3d 227, 230 (Mo. Ct. App. 2009) (Missouri law); Feldman, 513 F. Supp. 2d at 236–37 (California law). One of Illinois’s sister courts came to the sensible conclusion that where a website specifically states that clicking means one thing, that click does not bind users to something else. See Lee v. Intelius Inc., 737 F.3d 1254 (9th Cir. 2013) (finding no contract formed pursuant to Washington law to purchase monthly “family safety report” from third party where plaintiff believed he was purchasing only a background check and report and final button read “YES And show my report”). No court has suggested that the presence of a scrollable window containing buried terms and conditions of purchase or use is, in itself, sufficient for the creation of a binding contract, and we have no reason to think that Illinois would be the first.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Tina Martin v. Sidney Reid, et al v. Unilever United States, Inc. et al

Case No.: 14-3009

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

Focus: Class Action

Court acted within proper discretion when approving settlement despite disapproval of some class members.

“It is true that nationwide settlements of claims subject to state law are not always possible. In In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002), we cautioned that “[d]ifferences across states may be costly for courts and litigants alike, but they are a fundamental part of our federal re‐ public and must not be overridden in a quest to clear the queue in court.” But this did not mean that nationwide classes are impermissible as a matter of law. In Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010), we found certification to be appropriate for just such a class. We distinguished the issue in Pella—a design defect in windows leading to wood rot—from the myriad different tire defects and recalls in Bridgestone. For what it is worth, the present case appears to resemble Pella more than Bridgestone, but there is a stronger reason for sup‐ porting the district court’s decision here: the settlement agreement contained a choice‐of‐law clause, which specified the law of Illinois. Martin seems to have overlooked this point, when she asks in her brief, “will variations in claimants’ respective state laws be considered in determining the award?” The short answer is that those variations will not make a difference, because of the choice of a single law”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Robert Ciarpaglini v. Felicia Norwood

Case No.: 14-1588

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges

Focus: Challenge to Legislation –

Court lacked evidence in the record to determine whether appellant’s claims for injunctive relief were moot.

“If the change in plaintiff’s care program was indeed part of this broad shift in policy that affected all or most Medicaid recipients in Winnebago County, rather than an individually targeted effort to neutralize his lawsuit, then his challenge to the prior‐approval requirement is probably moot. Statewide or even countywide changes in Medicaid policy are not made quickly or lightly. As a practical matter, the prospect that Illinois will implement further change relevant to this lawsuit— for example, by abandoning the managed care program entirely, or by making the prior‐approval requirement for medications applicable to it—seems unlikely. And any such change would take time, providing advance notice to Medicaid recipients like plaintiff. Under these circumstances, the theoretical possibility that the state might someday abandon its managed care program (despite legislation mandating its expansion), or might add the prior‐approval requirement to plaintiff’s managed care program, would not be enough to avoid mootness.”

Remanded to District Court

Full Text

WI COURT OF APPEALS DIGESTS

WI Court of Appeals – District I

Case Name: Latoya Webster and Reach One Teach One Learning Center v. Department of Children and Families

Case No.: 2015AP418

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

Focus: Revocation of Child Care Authorization

Latoya Webster and Reach One Teach One Learning Center (collectively referred to as ROTO unless the context otherwise requires) appeal a circuit court order affirming the Department of Children and Families’ (DCF) decisions to refuse Wisconsin Shares payments, to revoke ROTO’s existing child care authorizations, and to require reimbursement for an overpayment of $19,339.45. For the reasons stated below, we affirm.

FULL TEXT

WI Court of Appeals – District I

Case Name: State of WI v. Onterio Martez Girley

Case No.: 2015AP801-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel – Plea Withdrawal

Onterio Martez Girley appeals from a corrected judgment of conviction for one count of conspiracy to commit armed robbery with the threat of force, contrary to WIS. STAT. §§ 939.31 and 943.32(2) (2011-12), and from an order denying his motion for postconviction relief. Girley argues that his trial counsel coerced him into pleading guilty by promising him that he would be released on bail before sentencing, that his trial counsel should have moved to withdraw Girley’s guilty plea prior to sentencing, and that the trial court should have granted Girley’s postsentencing motion to withdraw his guilty plea. We affirm.

FULL TEXT

WI Court of Appeals – District III

Case Name: Outagamie County Dept. of Health and Human Services v. Michael P.

Case No.: 2015AP845

Officials: HRUZ, J.

Focus: Termination of Parental Rights

Michael P. appeals an order terminating his parental rights to his daughter. He argues his due process right to an impartial tribunal was violated as a result of five instances in which the circuit court interjected to admonish or question Michael during Michael’s adverse examination by Outagamie County at the trial in the “grounds” phase of the termination proceedings. Michael also argues his trial counsel performed deficiently by failing to object to these interjections. We reject Michael’s argument and affirm.

FULL TEXT

WI Court of Appeals – District I

Case Name: State of WI v. James A. Webb

Case No.: 2015AP1613-CR

Officials: KESSLER, J.

Focus: Motion to Suppress

The State of Wisconsin appeals an order of the circuit court granting James A. Webb’s motion to suppress evidence. Because we conclude that the arresting officer had reasonable suspicion to stop Webb’s vehicle, we reverse and remand for proceedings consistent with this opinion.

FULL TEXT

WI Court of Appeals – District III

Case Name: North Country Properties, LLC v. Lost Acres Homeowners Association of Burnett County et al.

Case No.: 2015AP2449-FT

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

Focus: Summary Judgment

North Country Properties, LLC appeals a summary judgment dismissing its action against Lost Acres Homeowners Association of Burnett County and Mark Steege (collectively, Lost Acres). North Country argues the circuit court erred by concluding Lost Acres had authority to prohibit North Country from leasing its property for short-term rentals. We reject North Country’s arguments and affirm the judgment.

FULL TEXT

WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Steven Duewell

Case No.: 2015AP43-CR; 2015AP44-CR

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

Focus: Statutory Interpretation

John Duewell inhaled carburetor cleaner while driving; he was pulled over, arrested, charged, and ultimately pled guilty to two counts of operating a motor vehicle while intoxicated. Afterward, he moved the circuit court to vacate his convictions, arguing that the term “intoxicant” as used in WIS. STAT. § 346.63(1)(a) (2011-12) did not include the carburetor cleaner he inhaled, but only drinkable alcohol. Duewell argued, and asserts again here on appeal, that his convictions were void because the conduct he was charged with was a nonexistent crime. The circuit court denied the motion and upheld the convictions. We affirm.

FULL TEXT

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jeffrey C. Denny

Case No.: 2015AP202-CR

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

Focus: Court Error

Jeffrey C. Denny appeals from an order denying his motion pursuant to WIS. STAT. § 974.07 (2013-14)1 to test certain items at private or public expense for the presence of DNA. We hold that it was error to deny Denny’s motion. Denny showed that the items he sought to test were relevant to the investigation or prosecution that resulted in his conviction, that it is reasonably probable that he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction, and the testing he seeks was not available at the time of his conviction. While the test results may be inculpatory, inconclusive or exculpatory, for purposes of this postconviction discovery motion, the statute requires us to assume they will be exculpatory. Therefore, he is entitled to test the items he identified for the presence of DNA either at private or public expense.

Recommended for Publication

FULL TEXT

WI Court of Appeals – District II

Case Name: Nancy Key v. William Ryan Homes, Inc. et al

Case No.: 2015AP490

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

Focus: Breach of Contract – Attorney Fees

This is a dispute over a real estate transaction gone bad. It all began well enough in 2005 when William Ryan Homes, Inc., agreed to purchase property from Nancy Key for later development. But as the due diligence progressed, William Ryan backed out of the deal in August 2008. In early 2014, Key brought suit seeking, among other remedies, specific performance on the agreement. The circuit court granted summary judgment to William Ryan, holding that the agreement provided Key with a limited and exclusive remedy: keeping the earnest money. Key argues that the contract gives her the right to determine whether a breach has occurred, and as a result, control over whether the limitation of remedies provision applies. Thus, she argues William Ryan did not materially breach the agreement—which would have triggered the limitation of remedies provision—and that specific performance is the proper remedy. We disagree and affirm the circuit court’s grant of summary judgment. Additionally, William Ryan requests that we order Key to pay its reasonable attorneys’ fees for this appeal. Because we conclude that William Ryan was not the “prevailing party in the lawsuit,” we decline to order fees.

FULL TEXT

WI Court of Appeals – District III

Case Name: State Farm Mutual Auto. Insurance Co. v. Comeron J. Montroy, et al.

Case No.: 2015AP928

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

Focus: Insurance Liability – Coverage

This appeal involves Illinois’ “initial permission” rule for insurance liability as it relates to an accident occurring in the State of Wisconsin.  A fourteen-year-old, without permission, took his grandfather’s vehicle and crashed it, injuring a number of teenagers who were in the vehicle. The grandfather had a liability policy issued in the State of Illinois with State Farm. State Farm moved for summary judgment arguing that the policy did not provide coverage for the accident as the grandson committed a “tortious conversion” when he took the van. The circuit court agreed and dismissed all claims against State Farm. Jenna Melstrom and Benjamin Ross (Plaintiffs) argue that material questions of fact exist as to whether a tortious conversion occurred. We affirm as the undisputed material facts show a tortious conversion.

FULL TEXT

WI Court of Appeals – District II

Case Name: Racine County Human Services Department v. L.H.

Case No.: 2015AP1872

Officials: GUNDRUM, J.

Focus: Termination of Parental Rights

L.H. appeals from the trial court’s order terminating her parental rights to C.M. and the court’s denial of her posttermination motion. She argues she is entitled to a new trial because (1) improper evidence was introduced during the fact-finding hearing that C.M. had “bonded” with his foster family, (2) the trial court erroneously instructed the jury with regard to the “five-sixths verdict” rule, and (3) she did not receive the proper number of peremptory strikes. She further argues that because her trial counsel failed to object to the above, counsel provided her ineffective representation. Lastly, she claims the trial court erred in denying her motion for a new trial. We affirm.

FULL TEXT

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jerry V. Cole

Case No.: 2014AP333-CR

Officials: Lundsten, Higginbotham and Sherman, JJ

Focus: Misjoinder of Claims – Ineffective Assistance of Counsel

Jerry V. Cole appeals a judgment of conviction entered on a jury’s verdict of one count of uttering a forgery and an associated count of felony bail jumping, and the order denying his motion for postconviction relief. The jury also acquitted Cole of a separate count of forgery and a bail jumping charge associated with that forgery count. Cole seeks a new trial on three grounds: (1) the charges were misjoined for trial and the court erroneously exercised its discretion in denying Cole’s pretrial motion to sever the charges; (2) he received the ineffective assistance of trial counsel; and (3) in the interest of justice. For the reasons explained below, we affirm the judgment of conviction.

FULL TEXT

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James G. Wiese

Case No.: 2014AP2261-CR

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

Focus: Motion to Suppress – Court Error

James Wiese appeals a judgment of conviction for manufacturing THC and felon in possession of a firearm. Wiese challenges the denial of a suppression motion, arguing that the circuit court erred by concluding Wiese did not unequivocally invoke his right to silence during police questioning such that officers had to end the interview. Assuming without deciding that Wiese invoked the right to remain silent, we conclude that Wiese validly waived that right by initiating further communication with the police. We therefore affirm the conviction.

FULL TEXT

WI Court of Appeals – District IV

Case Name: Investigation & Recovery Associates, LLC v. CUMIS Insurance Society, Inc.

Case No.: 2014AP2793

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

Focus: Breach of Contract – Summary Judgment

Investigation & Recovery Associates, LLC (IRA, or the collection agency) appeals a summary judgment order that dismissed its action for breach of contract and related claims against CUMIS Insurance Society, Inc. (CUMIS, or the insurance company). The collection agency raises several issues that revolve around its interpretation of two contractual clauses. As we will explain below, we reject the collection agency’s interpretation of the contract language at issue, and therefore affirm without addressing the additional issues raised by the collection agency.

FULL TEXT

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Doug Drankiewicz et al

Case No.: 2015AP155

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Constitutionality – Sufficiency of Evidence

William Bowers, pro se, appeals the circuit court’s order that affirmed, on certiorari review, the decision of the Wisconsin Parole Commission to deny Bowers presumptive mandatory release. Bowers contends that: (1) the mandatory release statute is unconstitutional as applied to him; (2) the parole commission’s decision was unreasonable and unsupported by the evidence because the commission did not consider an independent psychiatric evaluation or other relevant information; and (3) he should have been provided counsel at the presumptive mandatory release hearing under the American with Disabilities Act (ADA). For the reasons set forth below, we reject these contentions. We affirm.

FULL TEXT

WI Court of Appeals – District IV

Case Name: Midwest Landscape Garden Mart, LLC v Melvin Metzger

Case No.: 2015AP435

Officials: Lundsten, Sherman, and Blanchard, JJ

Focus: Court Discretion – Sufficiency of Evidence – Unjust Enrichment

This case began as a dispute between Midwest Landscape Garden Mart, LLC, and Melvin Metzger, when Midwest sued Metzger for preventing Midwest from removing trees that Midwest had earlier planted on Metzger’s land. Midwest alleged that, in preventing the tree removal, Metzger breached an oral agreement that he had with Midwest, through its agents, which gave Midwest a license to remove the trees, and that Metzger was unjustly enriched by the fact that the trees remained on the land. However, Metzger died while the case was pending in circuit court, and the dispute became one between Midwest and a trust that had succeeded to the interest that Metzger and his wife had in the land. As a result of Metzger’s passing, the trust filed a pretrial, evidentiary motion seeking to bar testimony by any of Midwest’s agents regarding “any transaction or communication with” Metzger, pursuant to the “dead man’s statute.”  The court granted this evidentiary motion in favor of the trust. As a consequence of this ruling, the court dismissed Midwest’s action in its entirety on the ground that, without the benefit of testimony regarding any transaction or communication with Metzger, Midwest lacked sufficient evidence to support its claim that Metzger breached the oral agreement that he had with Midwest that allegedly allowed Midwest to remove its trees from the trust property. Midwest appeals. We conclude that the circuit court correctly applied the dead man’s statute to preclude testimony related to transactions and communications with Metzger and correctly held that the attorney for Metzger and the trust did not waive the protection of the statute. We also conclude that the court properly exercised its discretion in determining that the facts do not support application of the equitable doctrine of unjust enrichment. Accordingly, we affirm.

FULL TEXT

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael J. Jones

Case No.: 2015AP782-CR

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

Focus: Court Error – Admittance of Evidence

Michael Jones appeals a judgment of conviction for two counts each of first-degree sexual assault of a child under the age of twelve and incest with a child, and an order denying his motion for postconviction relief. Jones contends that he is entitled to a new trial because the court erred in admitting certain evidence at trial, permitting a trial witness to be present in the courtroom during the victim’s testimony, and denying his request that the jury be instructed on fourth-degree sexual assault. For the reasons discussed below, we affirm.

FULL TEXT

WI Court of Appeals – District IV

Case Name: Domitar A. W. LLC v. State of Wisconsin Department of Revenue

Case No.: 2015AP1744

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

Focus: Tax Assessment –

Domtar A.W., LLC, challenges the Department of Revenue’s 2009, 2010, and 2011 tax assessments for property that Domtar owned in those years and, up until 2008, used as an operational paper mill. We refer to this property as the “mill property.” The Tax Appeals Commission upheld the department’s assessments, and the circuit court affirmed the commission. Domtar argues that the commission erred in determining that the highest and best use of the mill property in 2009, 2010, and 2011 was as an operational pulp and paper mill. We disagree. We also reject an argument that Domtar makes relating to a hydroelectric facility on adjacent property. We affirm.

FULL TEXT

WI Court of Appeals – District IV

Case Name: Marquette County v. T.F.W.

Case No.: 2015AP2603-FT

Officials: LUNDSTEN, J.

Focus: Termination of Parental Rights

T.F.W. appeals an order for involuntary medication and treatment. He argues that the order must be reversed because the petitioner, Marquette County, failed to carry its burden to prove that he received the statutorily required explanation of the advantages, disadvantages, and alternatives to his medication. I reject this argument and affirm.

FULL TEXT

SUPREME COURT DIGESTS

Supreme Court of the United States

Case Name: Caetano v. Massachusetts

Case No.: 14-10078

Focus: 2nd Amendment

Court remands circuit court holding that Second Amendment does not extend to stun guns

“The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582. The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason”

Judgment Vacated

Case Remanded

Concurring: ALITO, THOMAS

Full Text

Supreme Court of the United States

Case Name: Montana v. Wyoming

Case No.: 137

Focus: Motion Grant

Motion for Partial Summary Judgment Granted.

“The Court having exercised original jurisdiction over this controversy among sovereign States; the issues having been tried before the Special Master appointed by this Court; the Court having considered the briefs on the parties’ exceptions to the Second Interim Report of the Special Master; IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS: 1. Wyoming’s Motion for Partial Summary Judgment on the notice requirement for damages is granted for the years 1982, 1985, 1992, 1994, and 1998. 2. Wyoming also is not liable to Montana for the years 1981, 1987, 1988, 1989, 2000, 2001, 2002, and 2003. 3. Wyoming is liable to Montana for reducing the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 1,300 acre-feet in 2004. 4. Wyoming is liable to Montana for reducing the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 56 acre-feet in 2006. 5. The case is remanded to the Special Master for determination of damages and other appropriate relief.”

Full Text

Supreme Court of the United States

Case Name: Sturgeon v. Frost

Case No.: 14-1209

Focus: Statutory Interpretation

9th Circuit interpretation of Section 103(c) of ANILCA is inconsistent with the text and context of the ANILCA.

“The Ninth Circuit’s interpretation of Section 103(c) violates “a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” Roberts v. Sea-Land Services, Inc., 566 U. S. ___, ___. ANILCA repeatedly recognizes that Alaska is different, and ANILCA itself accordingly carves out numerous Alaskaspecific exceptions to the Park Service’s general authority over federally managed preservation areas. Those Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not the rule. Yet the reading below would prevent the Park Service from recognizing Alaska’s unique conditions. Under that reading, the Park Service could regulate “non-public” lands in Alaska only through rules applicable outside Alaska as well. The Court concludes that, whatever the reach of the Park Service’s authority under ANILCA, Section 103(c) did not adopt such a “topsy-turvy” approach.”

Vacated and Remanded

Full Text

Supreme Court of the United States

Case Name: Tyson Foods, Inc. v. Bouaphakeo

Case No.: 14-1146

Focus: Court Error – Certification of Class

District Court did not err in certifying and maintaining the class

“Before certifying a class under Rule 23(b)(3), a district court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members.” The parties agree that the most significant question common to the class is whether donning and doffing protective gear is compensable under the FLSA. Petitioner claims, however, that individual inquiries into the time each worker spent donning and doffing predominate over this common question. Respondents argue that individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time observed in Mericle’s sample. Whether and when statistical evidence such as Mericle’s sample can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Respondents can show that Mericle’s sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, shows why Mericle’s sample was permissible in the circumstances of this case. There, where an employer violated its statutory duty to keep proper records, the Court concluded the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and . . . produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id., at 687. Here, similarly, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle’s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an individual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle’s study in a series of individual suits. This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible.”

Affirmed and Remanded

Dissenting: THOMAS, ALITO

Full Text

Supreme Court of the United States

Case Name: Nebraska v. Parker

Case No.: 14-1406

Focus: Indian Law – Reservation of Boundaries

The 1882 Act did not diminish the Omaha Indian Reservation

“Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. Solem v. Bartlett, 465 U. S. 463, 470. This Court’s framework for determining whether an Indian reservation has been diminished is well settled and starts with the statutory text. Hagen v. Utah, 510 U. S. 399, 411. Here, the 1882 Act bears none of the common textual indications that express such clear intent, e.g., “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate the Indian tribe for its opened land,” Solem, supra, at 470. The Act’s language opening the land “for settlement under such rules and regulations as [the Secretary] may prescribe,” 22 Stat. 341, falls into a category of surplus land acts that “merely opened reservation land to settlement,” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 448. A comparison of the text of the 1854 and 1865 treaties, which unequivocally terminated the Tribe’s jurisdiction over its land, with the 1882 Act confirms this conclusion.”

Affirmed

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests