Weekly Case Digests — May 31-June 3, 2016

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Hartford Casualty Insurance Co. v. Karlin, Fleisher & Falkenberg, LLC, et al

Case No.: 15-3417

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

Focus: Unpaid Wages – Insurance

Insurance company had no duty to defend respondents in breach of contract litigation.

“This case is similar. Fleisher had a contractual claim to compensation for unpaid vacation time and sick leave, and contended that the defendants had refused to honor the claim, thus breaking the contract. But the defendants were not insured against a breach of contract. Hartford therefore had no duty to defend the defendants from having to compensate Fleisher for the breach. Nor was it obligated to pay the defendants’ litigation expenses.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Hyson USA et al v. Hyson 2U et al

Case No.: 14-3261

Officials: FLAUM, RIPPLE, and SYKES, Circuit Judges

Focus: Trademark Infringement

Judge prematurely dismissed case in pleading stage of litigation on equitable doctrine

“Generally speaking, acquiescence is an equitable doctrine that permits the court to deny relief in an action for trademark infringement if the evidence shows that the owner of the mark has, through his words or conduct, conveyed his consent to the defendant’s use of the mark. See Magic Touch, 124 F.3d at 885; Piper Aircraft Corp. v. Wag-Aero, Inc., 741 F.2d 925, 932–33 (7th Cir. 1984); see also SunAmerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325, 1334 (11th Cir. 1996); see generally RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 29. The defense prevents the trademark owner from impliedly permitting another’s use of his mark and then attempting to enjoin that use after the junior user has invested substantial resources to develop the mark’s goodwill. See Magic Touch, 124 F.3d at 885. We’ve noted (as have other courts) that “acquiescence is related to the doctrine of laches, by which equity comes to the aid of an innocent user and grants him refuge from a claimant who has calmly folded his hands and remained silent while the innocent user has exploited and strengthened the mark.” Id. (internal quotation marks omitted). Indeed, our acquiescence cases import aspects of laches analysis, looking to the reliance interests of the junior user, the senior user’s delay in enforcing his rights, and the prejudice to the junior user if the senior user’s rights are enforced. See, e.g., Piper Aircraft, 741 F.3d at 932–33; Magic Touch, 124 F.3d at 885–86; Seven-Up Co. v. O-So-Grape Co., 283 F.2d 103, 106 (7th Cir. 1960) (formally decided under the doctrine of laches but also discussing acquiescence).”

Reversed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Cardell D. Brown

Case No.: 15-3496

Officials: KANNE, SYKES, and HAMILTON, Circuit Judges

Focus: Attorney Withdrawal

“Counsel also considers but rightly rejects a challenge to the reasonableness of the term of reimprisonment. As required by 18 U.S.C. § 3583(e), the court took into account the pertinent sentencing factors in § 3553(a), including the nature and circumstances of the violation (opining that failing to register as a sex offender is a “very serious crime”), Brown’s history and characteristics (noting his multiple convictions for sex offenses involving children and his frequent parole violations), and the need to encourage Brown to comply with the court’s orders. We would not find the new term of reimprisonment to be plainly unreasonable. See United States v. Jones, 774 F.3d 399, 404–05 (7th Cir. 2014); United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008).”

Motion to Withdraw Granted

Full Text

7^th Circuit Court of Appeals

Case Name: Samaron Corp v United of Omaha Life Insurance Company

Case No.: 15-3446

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

Focus: Life Insurance Policy – Beneficiary

Rightful beneficiary of life insurance policy waives right to money when given to wrong party.

“The first would be to emphasize that, although the board discussed the issue, it did not adopt a resolution. In Indiana, whose law controls this litigation, boards act by majority vote. Ind. Code §23-1-34-5(c) (vote at meeting); cf. Ind. Code §23-1-34-2 (decision without a meeting based on written consent of all directors). Apparently Troyer conducted business informally; it operated by consensus (at least until Holtz used his 61% interest to get rid of Buck). The district judge wrote that Indiana allows corporate boards to make binding decisions by consensus, without voting on resolutions. The judge did not cite anything for this proposition, and our own search did not turn anything up. But Troyer does not contest this aspect of the district court’s analysis. Pages 27–28 of Troyer’s brief mention in passing that the board did not adopt a resolution waiving the firm’s right to the money, but the brief does not contain any legal argument about the subject. Any potential challenge to this aspect of the district court’s disposition has been forfeited.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Kris Koglin

Case No.: 15-1943; 15-1946

Officials: POSNER, SYKES, and HAMILTON, Circuit Judges

Focus: Motion for Sentence Reduction

Appellant not entitled to sentence reduction despite amendment to sentencing guidelines.

“This argument misunderstands § 1B1.10(b)(1). The phrase “leave all other guideline application decisions unaffected” simply instructs the court to apply only the amendments listed in § 1B1.10(d) and avoid relitigating the factual findings made in the original sentencing decision. The policy statement does not instruct the court to ignore the effect of the amended guideline on other guideline provisions that, in combination, produced the defendant’s sentencing range. As we’ve explained before, “[t]he ‘sentencing range’ that must have been changed to permit relief under § 3582(c)(2) is not the base offense level or any other intermediate step in the guideline calculation, but the bottomline, final range that was the basis for the sentence.” United States v. Taylor, 778 F.3d 667, 672 (7th Cir. 2015). And “[r]elief is not available if a retroactive amendment ‘does not have the effect of lowering the defendant’s applicable guideline range.’” Id. (quoting U.S.S.G. § 1B1.10(a)(2)(B)).”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Randy Johnson

Case No.: 15-1366

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

Focus: Motion to Suppress

Cops commit harmless error in search of vehicle leading to arrest for possession of firearm.

“We grant that the police did more than just stroll up: two squad cars, which bathed the parked car in bright light, im‐ plied that the occupants were not free to drive away. But as it happened the number of cars, and the use of lights, did not play a role in the causal sequence. (The cruisers’ lights may have played some role by supplementing the streetlamps, but Johnson does not contend that shining light into a car on a public street is unreasonable under the Fourth Amendment. See Dunn, 480 U.S. at 305.) No one was in the driver’s seat, so the parked car could not drive away, no matter what the occu‐ pants wanted or thought they were free to do. A lone officer who ambled up amiably and shone a flashlight through the window would have seen everything needed to set up a law‐ ful seizure of the gun. When the contested activity (here, the show of force through the use of two cars and bright lights) does not matter, it is also not a basis for suppressing evidence. When discovery would have occurred anyway, through proper means, the exclusionary rule would be overkill and must not be employed. See, e.g., Nix v. Williams, 467 U.S. 431, 444 (1984).”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Shontay Dessart

Case No.: 14-2686

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

Focus: Court Error – Sufficiency of Evidence                   

Evidence more than sufficient to warrant conviction.

“The evidence of Dessart’s intent to mislead the FDA was ample and easily sufficient to support the jury’s verdict. The government adduced substantial evidence that Dessart was fully aware of the requirements of the Act and took affirmative steps to evade compliance. As we’ve explained, the government introduced extensive evidence establishing that Dessart was operating an online “pharmacy” out of his home by manufacturing and selling various prescription drugs to weight lifters, bodybuilders, and others seeking to enhance their physical appearance or performance. The government presented evidence of the items seized in Dessart’s home—e.g., raw drug ingredients from overseas, flavorings, colorings, manufacturing equipment, packaging materials and labels, ready-to-use postal shipping packages—and also testimony from Dessart’s customers. The drugs were, in fact, human prescription drugs and were specifically marketed and intended for that use, but Dessart affixed the label “for research only,” both on his website and on the drug packaging itself. And EDS-Research.com carried a lengthy and detailed disclaimer explicitly discussing the Act and its prohibitions on introducing unapproved new drugs into interstate commerce. Among other things, the disclaimer stated that the products offered for sale were not to be used as “drugs … for humans or animals or for commercial purposes” and should not “be considered to be food, drugs, medical devices, or cosmetics”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Robert A. Tate

Case No.: 15-3227

Officials: WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.

Focus: Court Error – Career Offender

No error made as to credibility determinations, however, error in calculating guideline range for sentencing.

“Tate’s argument presents a question of law that we review de novo. United States v. Dyer, 464 F.3d 741, 743 (7th Cir. 2006), citing United States v. Hankton, 432 F.3d 779, 795 (7th Cir. 2005). Under the career offender provisions, a “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The definition includes “aiding and abetting, conspiring, and attempting to commit such offenses,” U.S.S.G. § 4B1.2 cmt. n.1, so it does not matter that Tate’s anhydrous ammonia conviction was for attempted procurement. “

Vacated and Remanded for Resentencing

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Brian Wilkozek

Case No.: 15-1537

Officials: KANNE, ROVNER, and SYKES, Circuit Judges

Focus: Restitution

Petition for coram nobis, an old writ used to collaterally attack a criminal judgment,  properly dismissed by judge.

“We begin and end our analysis with the first element. A fundamental error that invalidates a criminal proceeding is one that undermines our confidence that the defendant is actually guilty. See Morgan, 346 U.S. at 511. Only errors of this magnitude justify the cost of putting aside the interest in finality. See Keane, 852 F.2d at 206 (“At some point the judicial system must close old files and turn to the future, regretfully accepting the risk of error lest the quest for perfect justice become the enemy of adequate justice.”). An obvious example is deprivation of counsel. See Morgan, 346 U.S. at 511–12.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Tony Thomas v. Tarry Williams

Case No.: 14-2610

Officials: WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges

Focus: New Evidence – Brady Claim

Court denies appellant Brady claim due to procedural default.

“Thomas’s Brady claim is procedurally defaulted under ei‐ ther rule. The first time that Thomas labeled his claim a Brady claim in state court was in his second state post‐conviction pe‐ tition filed in November 2007. The state court denied his peti‐ tion because he did not show cause for his failure to raise the claim in his first state post‐conviction petition. See 725 ILCS 5/122‐1(f). The state procedural rule is an adequate and inde‐ pendent state ground precluding federal habeas review of the Brady claim raised in his second state petition.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Paula St. John et al v. Cach, LLC et al

Case No.: 14-2760; 14-3724; 15-1101

Officials: KANNE and MANION, Circuit Judges, and PEPPER,* District Judge.

Focus: FDCPA

It is not unlawful for a debt collector to file a collection lawsuit without the intent to prced to trial.

“In this respect, debt collectors who sue to recover a debt are no different from any other plaintiff. They too must weigh the anticipated costs of trial against the potential benefits when considering how far to advance the litigation. Yet, under the plaintiffs’ theory, a debt collector who foresees that it would not be cost-effective to proceed to trial on a particular debt (and who therefore has no intention of doing so) would be liable just for filing a complaint. The debt collector would thus effectively be barred from recourse to the courts, even when its claim is unquestionably legitimate, and even when no other recourse is left. The FDCPA does not compel this incongruous result. Section 1692e(5) does not punish debt collectors for engaging in a customary cost-benefit analysis when conducting litigation, nor does it constrain them to mechanically steer the proceedings toward trial with no regard for expense or efficiency”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Altom Transport, Inc. v. Westchester Fire Insurance Co.,

Case No.: 15-2279; 15-2363

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Cir‐ cuit Judges.

Focus: Insurance Coverage

Suit stemming from truck injury falls within exclusion of insurance policy.

“Nevertheless, the language of the policy is King, and the policy here unambiguously excludes coverage for lawsuits stemming from the insured’s contracts with third parties. Stampley’s claim against Altom, no matter what the legal the‐ ory may be, rests fundamentally on the lease agreement un‐ der which he was performing his carriage services. We can think of no reason why that lease agreement is not a “con‐ tract” as the policy uses the term, and if it is, then Westchester has no duty to defend or indemnify Altom from claims arising out of it. The policy states that “[Westchester] shall not be liable for Loss on account of any Claim … arising out of … or in any way involving the actual or alleged breach of any con‐ tract[.]” That seems to cover this case”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Alberto Martinez, et al v. City of Chicago, et al

Case No.: 15-2752; 15-3410

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

Focus: Lawyer Sanction

District court did not abuse discretion in issuing sanctions to attorney to obstructed discovery demands.

“The significance of the order, as far as McClellan is concerned, is not the price tag but the sharp criticisms of her in the order, and those criticisms were apt and accurate. The plaintiffs had been strung along by McClellan and others at the State’s Attorney’s Office for more than a year, having been incorrectly informed that the Office had not retained the plaintiffs’ criminal case files. McClellan had repeatedly denied that the files existed, without knowing whether they did or did not exist and without conducting a reasonable inquiry into the matter. She had even threatened the plaintiffs’ counsel that she would seek sanctions against him if he continued to request the documents in the face of her denial of their existence. She also tried to prevent him from searching for the files himself. And when the files were finally located she delayed turning them over by advancing a meritless claim of privilege. It took multiple court orders and more than a year of effort for the plaintiffs to obtain all the documents to which they were entitled. The district court did not abuse its discretion in sanctioning her.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice L. Maxwell                

Case No.: 15-2799

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

Focus: Pleas & Sentencing – Sentencing Guidelines

District court properly relied on career offender enhancement in calculating Appellant sentence.

“Further, the Advisory Committee Comments to Minnesota Statute § 609.24 clarify this issue. Regarding the phrase “[a]gainst any person,” the Comments state that “[t]he kind of case covered involving one other than the victim is one in which ‘X’ threatens to kill ‘Y’ if ‘Z’ does not hand over his wallet.” Thus, although the Minnesota statute uses the words “any person,” while § 4B1.2(a)(1) states “person of another,” both cover situations in which a robber threatens to harm a victim or a third person, not instances where the robber threatens to harm himself. Therefore, since the Minnesota statute for simple robbery is not broader than § 4B1.2(a)(1), it was appropriate for the district court to rely on the career offender enhancement in calculating Maxwell’s Sentencing Guidelines range”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Clinton W. Waters

Case No.: 15-2728

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

Focus: Career Offender Classification

Appellant fails to provide persuasive reason to overturn precedent related to use of physical force as an element of the offense.

“Importantly, no intervening Supreme Court decision justifies a different result. We have already determined that the Supreme Court’s opinion in Johnson v. United States, 559 U.S. 133 (2010), does not compel a different understanding of the Illinois domestic battery statute. See De Leon Castellanos, 652 F.3d at 766. Johnson holds that a Florida statute defining battery as “actually and intentionally” touching a person against their will does not have as an element the use of physical force because the battery could be based on “any intentional physical contact, no matter how slight.” 559 U.S. at 138 (citation and internal quotation marks omitted). In De Leon Castellanos, we distinguished the Florida statute at issue in Johnson because the force necessary to violate the Illinois statute exceeded that of the Florida standard. 652 F.3d 765–66. As explained by the Supreme Court of Illinois, the bodily harm element of the Illinois statute necessitates “some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent … .” People v. Mays, 437 N.E.2d 633, 635–36 (Ill. 1982).”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Joseph A. Phelps

Case No.: 15-2528

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

Focus: Pleas & Sentencing

Judge missteps in calculating appellant’s new sentence in lieu of Amendment 782 to Sentencing Guidelines.

“But the application notes do not explicitly address the more complicated situation presented here. Phelps was initially sentenced to a term of imprisonment—120 months—that was below the original unamended guideline range, but for reasons unrelated to substantial assistance. Only later did the court reduce the sentence based on the government’s substantial-assistance motion. Phelps argues that in this situation a sentence reduction “comparably less than the amended guideline range” requires the same sort of approach specified in application note 3: a straightforward calculation of the ratio between his current 60-month sentence and the original unamended guideline range. The government agrees

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Steven Yahnke v. Kane County, Illinois

Case No.: 15-2162

Officials: WOOD,Chief Judge, andMANION andROVNER,Circuit Judges.

Focus: Wrongful Termination

Appellant allegedly terminated for political affiliation fails to exhaust proper channels to dispute his termination, causing appellants due process violation claim to fail.

“Although there may be a factual dispute regarding why the Sheriff told the Merit Commission that Yahnke was waiving his hearing in favor of arbitration, that dispute is not material to Yahnke’s due process claim. It is the actions that Yahnke took and, more importantly, did not take, that led to his procedural bind. A process existed for Yahnke to challenge his termination: he could have had a hearing before the Merit Commission or he could have filed a grievance against his termination and proceeded to arbitration. But he waived the Merit Commission hearing when his union lawyer sent a letter to the Merit Commission, and then he failed to file a grievance that was adequate to challenge his termination. He may have thought that the October 15 grievance was adequate, but by his own concession, and by the findings of the Illinois courts, that grievance was not specifically addressed to the termination, which occurred two weeks after the Step Three Grievance was filed. Yahnke essentially argues the Sheriff’s statements that Yahnke had filed his intention to go to arbitration are conclusive on the issue. But the Sheriff’s characterization of events to the Merit Commission could neither preserve nor waive Yahnke’s arbitration rights. Only Yahnke could preserve his rights, and the Illinois courts found that he failed to do so when he neglected to file a grievance specifically challenging his termination. There is no evidence that the Sheriff prevented him from obtaining a hearing. Due process was available; Yahnke simply failed to perfect his request for arbitration. The district court therefore did not err in granting judgment to the defendants on the due process claim.”

Affirmed in part

Vacated and remanded in part

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. John Alan Lewis

Case No.: 14-3635

Officials: MANION, WILLIAMS, and HAMILTON, Circuit Judges

Focus: Pleas & Sentencing – Supervised Release 

Court committed no error requiring a remand where defense was given ample opportunity to dispute conditions of supervised release and elected not to do so.

“After providing those explanations, the court asked: “Counsel, do you have any legal objection to the sentence I have proposed or request any further elaboration of my rea‐ sons under Section 3553(a) both as to the term of imprisonment or the conditions of supervised release?” Both the prosecutor and the defense lawyer said “no.” The court then said it would order sentence imposed as stated. App. 25.”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Eric Blackmon v. Tarry Williams

Case No.: 14-3059

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

Focus: Ineffective Assistance of Counsel

Counsel for appellant was ineffective for failing to investigate alibi witnesses

“The record before us supports the conclusion that Blackmon’s trial counsel was constitutionally ineffective by failing to investigate the alibi witnesses and shows that the state court’s summary dismissal of the claim was unreasonable. But a “state court’s mistake in summarily rejecting a petition, i.e., without fully evaluating conflicting evidence on disputed factual issues, does not necessarily mean the petitioner is ultimately entitled to relief.” Mosley v. Atchison, 689 F.3d 838, 842 (7th Cir. 2012). Because of that summary dismissal, the alibi witnesses have not yet been tested in any sort of adversary proceeding, and the record contains no evidence from Blackmon’s trial counsel as to what he did or did not do. Accordingly, we vacate the denial of the habeas petition and remand to the district court to assess whether Blackmon “is actually ‘in custody in violation of the Constitution or laws or treaties of the United States.’” Id., quoting 28 U.S.C. § 2254(a).”

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Ella V. Orlando

Case No.: 15-2092

Officials: POSNER, EASTERBROOK, and KANNE, Circuit Judges

Focus: Pleas & Sentencing – Court Error

Government did not breach plea agreement warrant assignment to new judge, however court did err in interpretation of remand order, warranting vacating sentence.

“Further undermining Orlando’s position here is his own attorney’s belief that our remand order did not allow for the district court to reconsider Orlando’s prison sentence. Orlando’s attorney did not object to the district court’s position, and in fact, suggested that he believed the remand order “precluded” revisiting his client’s term of imprisonment during the resentencing. There is insufficient evidence here to find even a minor breach of the plea agreement, let alone a material one that warrants further evaluation under the plain-error standard. While we did not find breach here, we expect that the prosecutor who handles the resentencing hearing on remand will fulfill the promises made by the government in the plea agreement, including its promise to recommend 35 years’ imprisonment. See United States v. Cahill, 920 F.2d 421, 425 (7th Cir. 1990) (“[a]ny agreement made by the government must be scrupulously performed and kept.” (alteration in original and quotation marks omitted)). “

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Christina Peterson

Case No.: 14-3716

Officials: FLAUM, KANNE, and SYKES, Circuit Judges

Focus: Pleas & Sentencing

Judge correctly calculated gross receipts derived from fraud and provided no instructional error. However, appellant provided repayment to government prior to fraud being detected, warranting update of total loss calculation and resentencing.

“Under U.S.S.G. § 2B1.1(b)(1)(I), a 16-level enhancement applies to a fraud that results in total loss of more than $1 million. Application note 3(E)(i) explains that “[t]he money returned … by the defendant or other persons acting jointly with the defendant, to the victim before the offense was detected” should be subtracted from the total loss amount. See also United States v. Hausmann, 345 F.3d 952, 960 (7th Cir. 2003). The judge applied the 16-level enhancement based on a total loss amount of $1,116,169—again, the sum of the $300,000 loss from the M&I wire transfer and the $816,169 loss from the Greenwoods loan. Peterson argues that the $300,000 wire transfer should not have been included because he repaid that amount in full prior to detection of his fraud.”

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Jacob Lewis v. Epic Sytems Corporation

Case No.: 15-2997

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and BLAKEY, District Judge.*

Focus: Contractual Obligation – Arbitration

Agreement requiring certain employees to bring wage-and-hour claims against the company only through arbitration violated National Labor Relations Act and Federal Arbitration Act and is unenforceable.

“Epic pushes back with three arguments, but none changes the result. It points out the Federal Rule of Civil Procedure 23 simply creates a procedural device. We have no quarrel with that, but Epic forgets that its clause also prohibits the employees from using any collective device, whether in arbitration, outside of any tribunal, or litigation. Rule 23 is not the source of the collective right here; Section 7 of the NLRA is. Epic also notes that courts have held that other employment statutes that provide for Rule 23 class actions do not provide a substantive right to a class action. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (Age Discrimination in Employment Act (ADEA)); D.R. Horton, 737 F.3d at 357 (citing court of appeals cases for FLSA). It bears repeating: just as the NLRA is not Rule 23, it is not the ADEA or the FLSA. While the FLSA and ADEA allow class or collective actions, they do not guarantee collective process. See 29 U.S.C. §§ 216(b), 626. The NLRA does. See id. § 157. Epic’s third argument is that because Section 7 deals with how workers pursue their grievances—through concerted action—it must be procedural. But just because the Section 7 right is associational does not mean that it is not substantive. It would be odd indeed to consider associational rights, such as the one guaranteed by the First Amendment to the U.S. Constitution, nonsubstantive. Moreover, if Congress had meant for Section 7 to cover only “concerted activities” related to collective bargaining, there would have been no need for it to protect employees’ “right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 (emphasis added).”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Darnell Fonder et al v. Sheriff of Kankakee County, Illinois et al

Case No.: 15-2905

Officials: EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.

District court determination that police policy allowing individuals held in custody following a warrantless arrest to be strip searched in advance of a judicial determination of probable cause held as valid, is vacated.

“Kankakee County does not contend that it would be reasonable to inspect a subset of all newly arriving inmates. Instead it denies that any guards deviate from the written policy. But we have read the guards’ declarations, and several of them say that they are implementing their personal ideas about how much visual inspection is needed. If these statements reflect ongoing behavior, then it is hard to see how Florence can supply the support that the Sheriff’s policy needs. The record as it stands presents a disputed question of material fact that may require a trial to resolve, unless the parties can work out their differences by stipulation. The district judge implied that the class had waived or forfeited its opportunity to contest how the policy works in practice by proposing a definition that includes all newly arrested persons. Yet when this suit began, and the definition was proposed, class counsel had no reason to think that the jail’s staff was doing something other than what the written policy requires. Classes are certified early in a suit. Fed. R. Civ. P. 23(c)(1)(A). All certifications are tentative. Fed. R. Civ. P. 23(c)(1)(C). If the evidence calls into question the propriety of defining a class in a particular way, then the definition must be modified or subclasses certified. A class defined early in a suit cannot justify adjudicating hypothetical issues rather than determining the legality of what actually happens. The class definition must yield to the facts, rather than the other way ’round”

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Scott R. Schmidt v. Deborah McCulloch

Case No.: 14-3651

Officials: POSNER, WILLIAMS, and HAMILTON, Circuit Judges

Focus: Ineffective Assistance of Counsel – Due Process

Evidence and testimony sufficient to warrant commitment of Appellant.

“Given the uncertainties regarding the efficacy of treatment of psychopathic sex offenders, Dr. Snyder may be right or wrong concerning the defendant’s prospects for being cured, but he was a qualified expert witness and we do not understand Schmidt to be arguing that a reasonable jury could not have believed Snyder’s testimony. The first-person statements that Schmidt challenges illustrate the psychopathic traits that Snyder described, so they were pertinent to the jury’s evaluation of whether Schmidt’s predisposition to commit sexual offenses had changed in the preceding twenty years and whether the sex-offender treatment that he had undergone was likely to have reduced his risk of re-offense. And since Schmidt did not testify, the jury wasn’t given a current view of his perspective on his behavior. And finally even studies that have found positive effects of sex-offender treatment acknowledge that a significant number of the treated offenders re-offend. See id. The uncertainty is especially great with respect to offenders who have mental disorders similar to Schmidt’s. See Dennis M. Doren and Pamela M. Yates, “Effectiveness of Sex Offender Treatment for Psychopathic Sexual Offenders,” 52 International J. Offender Therapy & Comparative Criminology 234, 243 (2008).”

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice Dimitrie Moore

Case No.: 15-1785

Officials: PONSER and WILLIAMS, Circuit Judges, and PALLMEYER, District Judge

Focus: Admission of Evidence

Court vacates order admitting probation officer records of phone calls into evidence under residual hearsay exception.

“We have warned against the liberal admission of evidence under Rule 807, see Akrabawi v. Carnes Co., 152 F.3d 688, 697 (7th Cir. 1998) (cautioning against the frequent utilization of Rule 807, lest the residual exception become “the exception that swallows the hearsay rule”), but in the circumstances of this case, the exception is particularly apt. Hayden’s statements in the Reports bear markers of reliability that are equivalent to those found in statements specifically covered by Rule 803 or Rule 804. The purpose of Rule 807 is to make sure that reliable, material hearsay evidence is admitted, regardless of whether it fits neatly into one of the exceptions enumerated in the Rules of Evidence. That purpose is served by admitting the Reports, and the district court erred in excluding them from Moore’s trial. See Dumeisi, 424 F.3d at 577 (affirming the admission of foreign intelligence documents under Rule 807 in the trial of defendant accused of acting as an agent of the Iraqi government); Huff v. White Motor Corp., 609 F.2d 286, 295 (7th Cir. 1979) (vacating district court’s order excluding testimony that recounted statements made by plaintiff’s deceased husband regarding the car accident that gave rise to the suit because the statements had circumstantial guaranties of trustworthiness equivalent to the other hearsay exceptions)”

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Norman Shaw, Jr.

Case No.: 14-2881

Officials: BAUER, FLAUM, and WILLIAMS, Circuit Judges

Focus: Pleas & Sentencing – General Appeal

Court provides adequate explanation for departure from sentencing guidelines given facts of case and appellant history.

“Here, while the district court’s sentence was a major departure from the Sentencing Guidelines range, the district court gave a sufficiently adequate explanation for the departure. The district court related the sentence to Shaw’s present offense, noting that “heroin puts so many at risk including prison staff and other inmates” and that such drugs “could result in violence.” It also detailed Shaw’s ongoing criminal history, repeated “failure to comply … with conditions of parole and supervised release,” and “non-compliance while in custody,” which included “seven violations resulting in disciplinary actions.” The district court also emphasized Shaw’s marked recidivism, saying at one point, “Incarceration hasn’t or doesn’t motivate you to refrain from criminal conduct and any motivation to change seems nonexistent.” It then sentenced Shaw in an effort to “[p]romote respect for the law[,] provide just punishment, afford adequate deterrence to criminal conduct[,] and protect the public from further crimes,” in addition to other 18 U.S.C. § 3553(a) factors. This thorough explanation justified imprisoning Shaw for 60 months and renders the above-Guidelines sentence substantively reasonable.”

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: James Swiderski v. Alexander Transport, Inc. et al

Case No.: 2014AP2061

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

Focus: Promissory Note

Marathon Implement Company, Inc. appeals a judgment on a note payable to James Swiderski. The circuit court granted partial summary judgment to James concerning the validity of the note, whether the parties intended to modify their agreement by conduct, and the applicable interest rate.1 We conclude genuine issues of material fact precluded summary judgment. Accordingly, we reverse and remand for further proceedings.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kenneth W. Funk

Case No.: 2014AP2698-CR

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

Focus: PAC 7^th

Kenneth Funk appeals a judgment convicting him of seventh-offense driving with a prohibited alcohol concentration. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel and requested a new trial in the interest of  justice. Funk contends his trial counsel was ineffective for failing to investigate Funk’s allegation that the arresting officer refused his request for an additional or alternative test pursuant to WIS. STAT. § 343.305(5) (2013-14), and for failing to file a motion to suppress the results of the blood test on that basis. The circuit court found Funk made no such request to the arresting officer. Because the circuit court’s finding is based on the credibility of witnesses and is not clearly erroneous, we affirm the judgment and order.

Full Text

WI Court of Appeals – District III

Case Name: Justin Ninedorf v. David D. Joyal

Case No.: 2014AP2762

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

Focus: Worker’s Compensation

Justin Ninedorf appeals a summary judgment dismissing his claim against Wisconsin Mutual Insurance. The circuit court determined worker’s compensation was Ninedorf’s exclusive remedy. Ninedorf argues the court erred because the automobile accident in which he was injured did not occur in the course of employment. We reject Ninedorf’s argument and affirm.

Full Text

WI Court of Appeals – District III

Case Name: James Klatt et al v. Madical Health Plans and Lumbermens Underwriting Alliance et al

Case No.: 2014AP2854

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

Focus: Duty to Defend

Penske Truck Leasing Company, LP, appeals a summary judgment holding that Great West Casualty Company had no duty to defend or indemnify Penske. Penske argues summary judgment was inappropriate because there was a disputed issue of material fact. We agree with Penske and reverse.

Full Text

WI Court of Appeals – District III

Case Name: Village of Somerset v. Mark J. Hoffman

Case No.: 2015AP140

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

Focus: Ordinance Violation – Court Error

Mark Hoffman appeals a judgment entered against him for loitering in the Village of Somerset in violation of SOMERSET, WIS., ORDINANCE § 11-2-6(c)(1). Hoffman argues the ordinance, as it was applied to him, is “preempted” by WIS. STAT. § 66.0409(2) and (6), and the ordinance is unconstitutional as applied to him. As a result, Hoffman contends the circuit court erred by denying his motion for summary judgment and his motion to dismiss at the close of the Village’s case. He also claims the court erred by not giving his requested jury instructions.

Full Text

WI Court of Appeals – District III

Case Name: James Swiderski v. Alexander Trasnport Inc., et al

Case No.: 2015AP378

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

Focus: Court Error – Judgment

Swiderski Equipment, Inc. (SEI) appeals a judgment awarding Alexander Transport, Inc., $774,397.38 for breaches of various oral contracts. SEI argues: (1) the court erred when it granted a directed verdict to James Swiderski, who is Alexander Transport’s president and sole shareholder, on SEI’s contention that James breached his fiduciary duty to SEI; (2) the oral contracts were not enforceable because they violated the statute of frauds; and (3) the contracts were too vague to be enforced. We reject these arguments and affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mario Martinez Redmond

Case No.: 2015AP657-CR; 2015AP658-CR

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

Focus: General Appeal

Mario Martinez Redmond appeals from a judgment of conviction, following a jury trial, of battery, disorderly conduct, and multiple counts of witness intimidation. Redmond also appeals from the order denying his postconviction motion for relief. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio Lavelle Stewart

Case No.: 2015AP1124-CR

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

Focus: Court Error

Antonio Lavelle Stewart appeals the judgment entered after a jury found him guilty of possession of tetrahydrocannabinols (“THC”) as a second/subsequent offense. See WIS. STAT. § 961.41(3g)(e) (2013- 14).  He also appeals the order denying his postconviction motion. Stewart argues: (1) the trial court erred in permitting evidence related to why officers went to the residence located at 1327 South 20th Street; (2) his trial counsel was ineffective for not objecting at trial when the State exceeded the scope of the trial court’s evidentiary ruling; and (3) he is entitled to a new trial in the interests of justice because the admission of this evidence was prejudicial. We disagree and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jerrell Lamar Taylor

Case No.: 2015AP1578-CR

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

Focus: Motion To Suppress

Jerrell Lamar Taylor appeals a judgment, entered after a jury trial, convicting him of obstructing an officer and possessing with intent to deliver more than forty grams of cocaine as a second or subsequent offense. See WIS. STAT. §§ 946.41(1), 961.41(1m)(cm)4., 961.48(1)(a) (2011- 12). He also appeals an order denying postconviction relief. Taylor raises two issues. First, he claims the circuit court wrongly denied his pretrial motion to suppress the evidence found during a vehicular search. Second, he claims the circuit court wrongly denied the motion he made for a mistrial after the jury heard evidence that he believes suggested he was on supervision at the time of his arrest. We reject both claims and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. K.M. et al

Case No.: 2015AP421

Officials: KESSLER, J.

Focus: Termination of Parental Rights

S.J. appeals an order of the circuit court terminating her parental rights to her son, S.J. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Keith A. Wiedmeyer

Case No.: 2015AP579-CR

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

Focus: OWI – Implied Consent

WISCONSIN STAT. § 343.305 (2013-14) is sometimes referred to as the “implied consent statute.” It generally provides that drivers who use Wisconsin roads consent to drug and alcohol testing, and dictates various procedures and consequences related to testing. This case is about § 343.305(6)(a), which prescribes various permitting requirements for tests to be “valid under this section.” The question before us is whether the results of chemical tests for controlled substances that did not comply with the requirements of para. (6)(a) are admissible on the charge of operating a motor vehicle while intoxicated (OWI). The defendant, Keith A. Wiedmeyer, moved to suppress his tests results on this ground. The circuit court denied Wiedmeyer’s motion, and we granted leave to file this permissive appeal. We affirm and hold that test results failing to meet the requirements of para. (6)(a) are nevertheless admissible if the State otherwise lays the proper foundation.

Recommended for Publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jeffrey B. Herman

Case No.: 2015AP596-CR

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

Focus: Pleas & Sentencing – Sentence Modification

In 1995, Jeffrey B. Herman was convicted of sex crimes in violation of WIS. STAT. §§ 948.02(1), 948.02(2), and 940.225(3m) (2013-14). Shortly after completing a ten-year sentence, his probation was revoked and he began serving a ten-year imposed-and-stayed sentence. In 2014, he sought to have that sentence modified, asserting “new factors.” He also moved to have Judge Kathryn W. Foster recuse herself from presiding over the sentence modification hearing on grounds of bias after she ordered his revocation file to be produced over his objection. We affirm the order denying his motions.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Bradley L. Kilgore

Case No.: 2015AP997-CR

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

Focus: Warrant – Motion to Suppress

Bradley L. Kilgore appeals from a judgment convicting him of second-degree sexual assault after a jury found him guilty. During the execution of a search warrant at a residence Kilgore shared with David Peters where the suspected sexual assault of K.A.B. took place, Kilgore made multiple statements. He contends that the circuit court should have suppressed these statements, which were not preceded by Miranda warnings, because he was in custody. Kilgore also contends that probable cause to obtain a buccal swab of his cheek for DNA testing was lacking. We reject both these contentions and, thus, affirm.

Recommended for publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael W. Bryzek

Case No.: 2015AP1501-CR

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

Focus: Jury Instruction – Court Error

The State appeals from a circuit court order vacating the judgment of conviction of Michael W. Bryzek and ordering a new trial. The State asserts the postconviction court erred when it granted Bryzek a new trial based on its determination that a modified jury instruction the trial court utilized invited the jury at his criminal trial to find Bryzek guilty based upon “new law.” The State contends that even though the modified instruction was based upon a statute that went into effect after Bryzek had committed key acts underlying the offense, this new statute was merely a codification of the common law. Bryzek argues the instruction failed to fully and fairly inform the jury of the law applicable to his alleged criminal acts, and thus the postconviction court did not err in granting him a new trial. We agree with Bryzek and affirm.

Recommended for publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Arturo Luiz-Lorenzo

Case No.: 2015AP1540

Officials: HAGEDORN, J.

Focus: Terry Stop – Reasonable Suspicion

Arturo Luiz-Lorenzo appeals from a judgment convicting him of two misdemeanors—one for possession of cocaine and one for bail jumping. He contends that the circuit court erred in denying his motion to suppress evidence police obtained during a Terry stop because the officer lacked reasonable suspicion. We disagree and affirm.

Full Text

WI Court of Appeals – District II

Case Name: County of Walworth v. James E. Robinson Jr.

Case No.: 2015AP2504

Officials: GUNGDRUM, J.

Focus: OWI First – Sufficiency of Evidence

James E. Robinson, Jr. appeals from a circuit court judgment convicting him of operating a motor vehicle while intoxicated, first offense. He argues the evidence presented at his court trial was insufficient to support a finding of guilt. We disagree and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: PNC Bank, N.A. v. Sheila M. Spencer, N.A.

Case No.: 2014AP2353

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

Focus: Foreclosure

Sheila Spencer appeals the circuit court’s grant of summary judgment to PNC Bank, NA, on PNC’s foreclosure action against Spencer. We address the only argument that we discern Spencer making on appeal that is even somewhat developed, and reject as wholly undeveloped the rest of the arguments that Spencer purports to advance on appeal, including her argument challenging an order of the circuit court striking her answer and counterclaims both as untimely and on the ground that the counterclaims failed to state a claim upon which relief may be granted. As to the somewhat developed argument, we conclude that it fails under controlling Wisconsin law, and further observe that a decision of the United States Court of Appeals for the Seventh Circuit rejecting the argument that she now makes stands as law of the case on this issue. Accordingly, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Jacqueline Love-Mueller v. Labor and Industry Review Commission, et al.

Case No.: 2014AP2788

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

Focus: Permanent Disability

Jacqueline Love-Mueller appeals a circuit court order confirming a LIRC decision finding that she failed to make a prima facie showing of total permanent disability under the “odd-lot” doctrine. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Diane L. Benjamin v. Dale S. Benjamin

Case No.: 2015AP817; 2015AP818

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Amended Pleadings – Transfer of Marital Property

Diane Benjamin appeals an order of the circuit court denying her motion to amend a pleading to assert claims related to the alleged improper transfer of marital property by her husband, Ralph Benjamin, during their marriage. For the reasons discussed below, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Chad T. Kippley

Case No.: 2015AP1671-CR

Officials: KLOPPENBURG, P.J.

Focus: OWI – Reasonable Suspicion

Department of Natural Resources Warden Kyle Dilley observed a small vessel, operated by Chad Kippley, approach the dock at Lottes Park in the City of Monona traveling in a bow-up position with a large outboard motor attached to the back. The warden conducted an investigative stop to determine whether the motor attached to the vessel exceeded the maximum horsepower rating for the vessel, in violation of WIS. STAT. § 30.62(2m).2 Kippley was ultimately convicted of operating a boat while intoxicated as a second offense, based on evidence obtained as a result of the stop initiated by the warden. Kippley appeals the judgment of conviction, arguing that the circuit court erred in denying his motion to suppress evidence obtained as a result of the investigative stop because, according to Kippley, the warden lacked reasonable suspicion for the stop. For the reasons set forth below, I conclude that the stop was supported by reasonable suspicion of an overpowering motor violation, and I affirm the judgment of conviction.

Full Text

WI Court of Appeals – District IV

Case Name: PNC Bank, N.A. v. Sheila M. Spencer, et al

Case No.: 2015AP1826

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

Focus: Foreclosure

Sheila Spencer appeals a circuit court order confirming a sheriff’s sale following a judgment of foreclosure. Spencer argues that she was not properly served with notice of the confirmation of sale and that the circuit court improperly granted a writ of assistance to the successful bidder in the order confirming the sale. For the reasons set forth below, we reject these contentions. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Rock County v. S.J.M

Case No.: 2016AP255-FT

Officials: SHERMAN, J.

Focus: Termination of Parental Rights

S.J.M. appeals an order involuntarily committing him to the custody of Rock County for the purposes of mental health treatment. S.J.M. contends that Rock County failed to prove by clear and convincing evidence that S.J.M. is dangerous under WIS. STAT. § 51.20(1)(a)2.b. Because the evidence presented at S.J.M.’s commitment hearing supports the circuit court’s determination that S.J.M. is dangerous, this court affirms.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mark Antoine Seals

Case No.: 2015AP964-CR

Officials: Kessler, Brennan and Brash, JJ

Focus: Court Error

Mark Antoine Seals appeals a judgment of conviction entered after a jury found him guilty of one count of possessing a firearm as a felon. He also appeals an order denying postconviction relief. He contends the circuit court erred when it: (1) denied him a new trial without granting a hearing on his claim that trial counsel was ineffective; and (2) denied his request for postconviction DNA testing. He further contends he is entitled to discretionary reversal of his conviction in the interest of justice. We reject his contentions and affirm.

Full Text

WI Court of Appeals – District II

Case Name: GE Properties, LLC et al v. Michelle Draggoo

Case No.: 2015AP1110

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

Focus: Sufficiency of Evidence

GE Properties, LLC, National Avenue 15710, LLC, and Eliesha R. Evans, D.C., S.C. (collectively “GE Properties” unless context requires otherwise) appeal from the judgment on the verdict and orders denying GE Properties’ postverdict and attorney’s fees motions. On appeal, GE Properties argues that: (1) the evidence is insufficient to establish that the parties agreed to modify the lease termination date; (2) the evidence is insufficient to establish that Dr. Michelle Draggoo did not take property that she was not entitled to take when she vacated the premises; (3) GE Properties is entitled to judgment notwithstanding the verdict; and (4) GE Properties is entitled to actual or reasonable attorney’s fees as provided in the lease. For the reasons set forth below, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: ST. Croix Trading Company et al v. Regent Insurance Company

Case No.: 2015AP1622

Officials: Kessler, Brennan and Brash, JJ.

Focus: Appraisal Award – Insurance

Regent Insurance Company (Regent) appeals an order of the circuit court vacating an appraisal award granted to its insured, St. Croix Trading Company/Direct Logistics, LLC (St. Croix). The circuit court vacated the award on the grounds that the appraisal panel failed to understand its contractually assigned task. Specifically, the circuit court found that the panel exceeded its authority by considering whether the Regent policy provided coverage for certain damaged items. We affirm.

Recommended for publication

WI Court of Appeals – District I

Case Name: Milwaukee County v. C.L.-K.

Case No.: 2015AP2031

Officials: BRENNAN, J.

Focus: Ineffective Assistance of Counsel

C. L.-K. appeals the trial court’s order extending her protective placement under Chapter 55,2, 3 claiming that her trial counsel was ineffective in his representation of her at the annual judicial review of the protective placement. She contends counsel was deficient because he failed to object to the review on the grounds that C. L.-K.’s constitutional rights to equal protection were violated when her annual Watts4 review was not completed within one year.

Full Text

WI Court of Appeals – District II

Case Name: Stacey Rhyner v. Marvin E. Rydberg

Case No.: 2015AP2010

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

Focus: Declaratory Judgment- Duty to Defend

Marvin E. Rydberg appeals from an order granting declaratory and summary judgment to General Casualty Company of Wisconsin, finding it has no duty to defend Rydberg in this action. We affirm. Stacey Rhyner sued Rydberg for sexually groping her while both were at work at Veterinary Medical Services Corporation (VMS). Stated simply, Rhyner alleges an intentional tort committed upon her by Rydberg. Rydberg argues that General Casualty, as VMS’s worker’s compensation and employer’s liability carrier, must defend him throughout this litigation. We disagree as Rydberg is not an insured under either General Casualty policy

Full Text

WI Court of Appeals – District II

Case Name: State of Wiscosnin v. L.C.

Case No.: 2016AP81

Officials: REILLY, P.J.

Focus: Juvenile Delinquency – Court Error

L.C. appeals from a dispositional order adjudicating her delinquent for receiving stolen property in violation of WIS. STAT. § 943.34(1)(a). L.C. argues that the circuit court erred in not dismissing her delinquency petition as a sanction for the State’s discovery violations. As all of the witnesses called by the State at trial as well as the substance of their testimony was identified in the delinquency petition, we conclude that the State’s failure to provide a formal witness list was not prejudicial and we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Shane A. Clark

Case No.: 2015AP141-CR; 2014AP142-CR

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

Focus: Pleas & Sentencing – Sentence Credit

In these consolidated appeals, Shane A. Clark challenges judgments of conviction based on negotiated pleas and orders denying his motion for postconviction relief. Clark contends that he is entitled to 320 days of sentence credit because defense counsel was ineffective for failing to take the appropriate steps to secure Clark’s right to this amount of sentence credit. Clark also contends that no factual basis exists to support two of his convictions and therefore they must be vacated. The circuit court denied Clark’s motions after a hearing. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jason S. Witte

Case No.: 2015AP795

Officials: HIGGINBOTHAM, J.

Focus: OWI – Motion To Exclude

Jason Witte appeals a circuit court order denying his motion to exclude a prior conviction for operating under the influence (OWI), which was used for sentencing enhancement purposes in this OWI case. Witte argues that the circuit court erred in finding that Witte failed to present sufficient evidence to make a prima facie showing that he was denied his right to counsel during the prior OWI case. We conclude that the court properly denied Witte’s motion because he failed to make the requisite prima facie showing. Accordingly, we affirm the circuit court.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Daniel D. Utecht

Case No.: 2015AP886; 2014AP887

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

Focus: Ineffective Assistance of Counsel

Daniel Utecht appeals two judgments of conviction for child sexual assault, following a jury trial in these consolidated cases: one count of repeated first degree sexual assault of L.J.H., and one count of repeated first degree sexual assault of T.C.H. Utecht also appeals the order denying his WIS. STAT. § 974.06 (2013-14) postconviction motion for relief. Utecht argues that his trial attorneys were ineffective by: (1) failing to object to or limit the admission of evidence of a previous “domestic incident” involving Utecht; (2) failing to cross examine L.J.H. about whether she had lied to police about that “domestic incident;” (3) failing to elicit evidence that Utecht had offered to take a polygraph test; and (4) telling Utecht that they would not ask him any questions if he testified. We conclude that Utecht’s trial attorneys were not ineffective, and, therefore, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: David L. Rainiero v. Wendy J. Johanson

Case No.:2015AP1620

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

Focus: Divorce – Custody – Maintenance

Wendy Johanson appeals a judgment of divorce, challenging the circuit court’s order concerning the physical placement of the minor children and her maintenance award. Wendy argues that the circuit court’s order allowing her reasonable visitation on reasonable notice pending her relocation to South Carolina is improper, and that the circuit court erroneously exercised its discretion in setting maintenance. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dominic D. Cizauskas

Case No.: 2015AP1785-CR

Officials: Lundsten, Higginbotham and Sherman, JJ

Focus: Court Error – Rape Shield Statute

A jury found Dominic Cizauskas guilty of third degree sexual assault for having sexual intercourse with H. without her consent. During the trial, Cizauskas defended himself by introducing evidence that H. was motivated to falsely accuse him of sexually assaulting her because she was in a romantic relationship with another man named King. The defense theory was that H. feared that King would learn that H. had consensual sex with Cizauskas and, therefore, H. told King that Cizauskas forced himself on her. Cizauskas argues that the circuit court, relying on the rape shield statute, erred by excluding uncontested evidence that H. and King had sexual intercourse a couple of days before Cizauskas and H. had intercourse. Cizauskas argues that this ruling deprived him of multiple constitutional rights, including the right to present a defense. We reject this argument and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William J. Furlong

Case No.: 2015AP445-FT

Officials: BLANCHARD, J.

Focus: Court Error – Chemical Test

William Furlong appeals an order of the circuit court concluding that Furlong unlawfully refused to voluntarily submit to a chemical test, resulting in revocation of Furlong’s driving privileges. Furlong argues that the court improperly construed Furlong’s pre-test requests to confer with an attorney as a constructive refusal, which was error because there is no evidence that police informed Furlong during the pre-test discussion that Furlong did not have a right to counsel in connection with the request. I conclude that the only argument Furlong makes on appeal was rejected in State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), which expanded on State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980), and accordingly I affirm.

Full Text