Weekly Case Digests — Aug. 15–19, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: American Family Mutual Insurance Company v. David Williams, et al

Case No.: 15-3400

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

Focus: Medical Expenses – Insurance Coverage – Duty to Defend

Insurer owes a duty to defend insured from injuries caused by dog.

“Even if it were not clear that Williams was not legally responsible for Emma, there would be strong reasons to reject AmFam’s owner, keeper, and bailment theories. First, AmFam’s theory would lead to absurd results: it would render an unsuspecting bystander legally responsible for the dog whose leash he holds while the dog owner ties her shoe. In fact, nearly anyone who tried to control a dog, even for moments, at the behest of the owner would be legally responsible.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Zero Zone, Inc, et al v. United States Department of Energy, et al.,

Case No.: 14-2147; 14-2159; 14-2334

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

Focus: Final Rule Challenge  

Appellant petition to challenge substance and process of final rules promulgated by department of energy is denied. DOE took adequate considerations as related to small business when implementing rule.

“In any event, if a manufacturer wanted to determine the accuracy of the calculations in the engineering spreadsheet, it could have compared the spreadsheet’s results for a given type of refrigeration product to units of the same type and size in its own product line. See App. R.6, Admin. R.98. Moreover, if a manufacturer wished to go further and test the accuracy of DOE’s overall analysis, including the results that the analysis would produce for units of varying sizes, it could have looked to the actual energy efficiency standards provided by DOE in the notice of proposed rulemaking. See 78 Fed. Reg. at 55,892. If the manufacturer’s product, when altered to con‐ form to the energy standards proposed by DOE, could not reach those standards, the manufacturer would have cause to believe that DOE’s underlying computations on the hypothetical model could not be replicated in the real world or were otherwise faulty. Petitioners were provided with a sufficient opportunity to see and comment upon technical data. There is no basis here for our disturbing the agency’s decision.”

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Marilyn Zoretic v. John Darge

Case No.: 14-2998

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

Focus: Eviction

Appellant fails to provide evidence of material factual dispute as to whether owners of her unit were extreme and outrageous in pursuing her eviction.

“It is possible the deputies at the scene on June 5 believed they were enforcing a judge’s eviction order. But they were not, and their mistake—even if reasonable—does not entitle them to quasi‐judicial immunity. Even more problematic for the defendants, their entire argument as to why the manner in which they carried out the eviction was lawful is predicated on the legality of the eviction order. With nothing more than an order that had already been executed, they had no right to enter the residence, or to search Zoretic’s belongings. And while it may have been reasonable to enter the apartment with guns drawn for safety reasons if they had been enforcing an actual order, the same is not true for entering a civilian’s home with guns pointed for no reason at all. So they failed to meet their burden of showing that, as a matter of law, it was objectively reasonable to enter Zoretic’s apartment, search it, point their guns at the Zoretics, and detain them. Perhaps a reasonable officer would not have known that the order was not enforceable, but that is not the argument the defendants made. We reverse and remand for further proceedings on the Fourth Amendment claims.”

Affirmed in part

Reversed and remanded in part

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7^th Circuit Court of Appeals

Case Name: Louquetta R. O’Connor-Spinner v. Carolyn W. Colvin

Case No.: 15-2567

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

Focus: Disability Insurance Benefits

Holding of ALJ in disability benefits hearing contradicts medical evidence provided.

“Apart from contradicting the existing evidence, Dr. Shipley’s assessment also stands in stark contrast to the conclusions of medical providers who continued to treat O’ConnorSpinner. In March 2010, a few months after Dr. Shipley offered his assessment, a nurse practitioner specializing in pain management had examined O’Connor-Spinner. The nurse practitioner had noted significant signs of depression, remarked on the limited efficacy of O’Connor-Spinner’s prescribed antidepressants, and recorded her revelation that more often than not she thinks she’d be better off dead. O’Connor-Spinner continued taking those medications, however, and later in 2010 a clinician at the community mental health center had written that she “presented as depressed and her affect was constricted,” that her cognition was impaired, and that she “struggled” with both serial sevens and fours. The clinician opined that the effectiveness of O’ConnorSpinner’s medications should be evaluated, repeated the diagnosis of “major depressive disorder, recurrent,” and assigned her a GAF score of 55. “

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Beatrice Boyer, et al v. BNSF Railway Company, et al

Case No.: 14-3131; 14-3182

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

Focus: Petition for rehearing – Sanction

Petition for rehearing granted solely to modify opinion.

“Nor has Stombaugh been deprived of due process because no evidentiary hearing was held on the question of sanctions, as he also suggests in his petition. He has had a meaningful opportunity to be heard on the question of sanctions, see Tate, 551 F. App’x at 892, and he cites no factual matter material to our decision to sanction him that requires an evidentiary hearing to resolve, see Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1201 (7th Cir. 1987). There is no dispute as to what Stombaugh did; the only question is whether he should be sanctioned for it, and that question has been thoroughly litigated.”

Petition Granted

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7^th Circuit Court of Appeals

Case Name: Hays, et al v. Walgreen Co., et al.

Case No.: 15-3799

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

Focus: Attorney Fees

Class counsel failed to represent the class adequately and fairly

“A class “representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain [no benefit] … is not adequately protecting the class members’ interests.” In re Aqua Dots Products Liability Litigation, 654 F.3d 748, 752 (7th Cir. 2011). Courts also have “a continuing duty in a class action case to scrutinize the class attorney to see that he or she is adequately protecting the interests of the class, and if at any time the trial court realizes that class counsel should be disqualified, the court is required to take appropriate action.” In re Revlon, Inc. Shareholders Litigation, 990 A.2d 940, 955 (Del. Ch. 2010) (quoting 4 Newberg on Class Actions § 13:22, at 417 (2002)).”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Robert J. Miller

Case No.: 15-3584

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

Focus: Sentencing – Sentence Reduction

Judge erred in failing to consider whether defendant is likely to remain a danger to community during sentencing.

“Apart from the fact that the government does not question the certificates’ authenticity and could not have objected to their admission in the district court had they been introduced there, the failure to submit them in that court was the fault not of the defendant but of his lawyer. The lawyer knew about the certificates—he had written his client eight days after filing his motion for a further reduction in the defendant’s sentence, acknowledging receipt of his “awards and certificates.” But instead of passing this information on to the district court, or using it to counter the government’s response in opposition, the lawyer simply told the defendant that he would put digital copies of the documents “into our file for use in any hearing that may be held in reference to your contested sentence reduction.” We can’t begin to understand why, rather than sit back waiting for a hearing that never happened, the lawyer didn’t use the documents to help support his client’s motion to reduce sentence. Had the lawyer followed his client’s instructions the district judge would have seen the certificates and the defendant’s case would have been strengthened. And before deciding that reducing the defendant’s sentence would pose a danger to society, the judge could have asked the government for a statement by the prison warden concerning the defendant’s current behavior in prison, an inquiry that would probably have yielded information about the defendant’s efforts to obtain a GED.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Dirk L. Witter v. Commodity Futures Trading Commission

Case No.: 15-3535

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

Focus: Petition to Review

Commission’s conclusion that TransAct acted in accordance with federal regulations and wre not required to record conversations was supported by sound evidence.

“Witter’s legal and factual contentions are both wrong. TransAct had no duty to record the call between Witter and Skelton. Federal regulations require that, before buying or selling a commodity, a merchant such as TransAct must receive either “specific authorization” (the “precise commodity interest to be purchased or sold” and the “exact amount” of that interest) or “authorization in writing.” 17 C.F.R. § 166.2. No regulation requires the merchant to record phone calls to cancel previously authorized orders to buy or sell. Nor did TransAct’s customer agreement include any such requirement. The agreement says only that the customer gives TransAct permission to record calls, not that the company must do so. Moreover, although evidence showed that TransAct was capable of recording—and sometimes did record—multiple calls directed to a single handset, that evidence did not require a finding that Witter’s call to Skelton was recorded. The judgment officer could reasonably rely on the evidence that TransAct redirected some calls from one handset to another, non-recording line, to conclude that Witter’s was one of those calls. The judgment officer thus did not err in declining to draw an adverse inference from the missing recording.”

Petition for review denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Majdi Odeh et al

Case No.: 15-3389; 15-3392

Officials: FLAUM and MANION, Circuit Judges, and ALONSO, District Judge.*

Focus: Breach of Plea Agreement

Respondent waived right to appeal but appeal anyway.

“Similarly, in this case, Odeh and Hussein entered into a plea agreement in which they waived their rights to appeal, except in the event that they were sentenced outside the advisory guidelines range, which they were not. While they claim the prosecution violated the plea agreement by not recommending an acceptance of responsibility reduction, or recommending that Odeh be sentenced at the low end of the advisory guidelines range, they agreed to allow the district court to resolve the question of whether a breach occurred by agreeing to the appeal waiver. However, as in Hicks and Hare, the defendants never presented that argument to the district court. And their waiver of appeal bars them from having this court consider the question on appeal. Hicks, 129 F.3d at 381; Hare, 269 F.3d at 862; see also United States v. Whitlow, 287 F.3d 638 (7th Cir. 2002) (holding that a waiver of appellate rights precluded a defendant from arguing on appeal that the prosecution violated the plea agreement, and explaining “[w]aiver of appeal means that the final decision [concerning whether there was a breach of the plea agreement] will be made by one Article III judge rather than three Article III judges …”)”

Appeal Dismissed

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7^th Circuit Court of Appeals

Case Name: Mark Rosado v. Billy Gonzalez, et al

Case No.: 15-3155

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

Focus: Probable Cause

Respondent suit against police officers were time barred.

“Rosado did not promptly file. There cannot be any dispute that Rosado knew the officers had fabricated probable cause by February 2014, when he received the dash cam video that showed his turn‐signal light blinking. At that point, he still had seven months to timely file suit. Rosado’s unexplained failure to file suit within the seven months remaining on the statute of limitations precludes the applicability of equitable tolling.3 See Cada, 920 F.2d at 453 (no equitable tolling where claimant had eight months remaining on statute of limitations).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jesus Muhammad-Ali v. Final Call, Inc.

Case No.: 15-2963

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

Focus: Copyright Infringement

District court misstated the elements of copyright infringement

“In coming to the opposite conclusion, the district court re‐ lied on the Seventh Circuit pattern instruction for “copying,” which notes that the jury “may consider evidence that Dfendant’s work was created independently of Plaintiff’s copy‐ righted work [or that Defendant had authority from Plaintiff to copy Plaintiff’s work].” The instruction is either unclear or erroneous. There are two methods of proving “copying”: (1) “that the defendant had the opportunity to copy the original (often called ‘access’)”; and (2) “that the two works are ‘substantially similar,’ thus permitting an inference that the defendant actually did copy the original.” Peters, 692 F.3d at 633. For the “opportunity” method, “independent creation is a defense to copyright infringement,” though a plaintiff must pro‐ vide “evidence of access.” Id. at 635. The pattern instruction may have been meant to rephrase this method of proof, but it falls short of doing so and invites the error we see here.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Alphonse D. Owens et al  v. LVNV Funding, LLC et al

Case No.: 15-2044; 15-2082; 15-2109

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

Focus: FDCPA Violation

District court did not err in concluding that appellants failed to state a claim for relief under FDCPA.

“We are not unsympathetic to plaintiffs’ concern that in certain cases, debtors and their representatives fail to object to claims for unenforceable debts, which then become part of the bankruptcy plan. This outcome harms not only the debtor, who is forced to pay a portion of the stale debt out of limited means, but also creditors with legally enforceable debts whose share of the pie is reduced because an additional creditor is claiming a piece. See Crawford, 758 F.3d at 1261. But the risk of this outcome in such cases is not sufficient to support a FDCPA claim in the cases currently before us, where plain‐ tiffs’ attorneys successfully objected to proofs of claim that were neither false nor misleading”

Affirmed

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7^th Circuit Court of Appeals

Case Name: William Rabinak v. United Brotherhood of Carpenters Pension Fund,

Case No.: 15-1717

Officials: WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges

Focus: Pension Benefits

Quarterly payments to appellant for Board Service were not included in the pension plans, which only covered salary.

“Rabinak also argues that the determination was arbitrary and capricious for failure to provide specific reasons for its exclusion of the quarterly payments. A decision must give   “specific reasons” for the denial. 29 U.S.C. § 1133(1). But “that is not the same thing as the reasoning behind the reasons” or “the interpretive process that generated the reason for the de‐ nial.” Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996); see also Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 689 (7th Cir. 2004). The important point is that the reason given is a sufficient explanation to allow the recipient to “formulate his further challenge to the denial.” Id. The plan’s denial did so here, and Rabinak has formulated and made well‐developed arguments from the beginning that the Board payments should be included in “Compensation.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Thomas M. Janusz, Jr. v. City of Chicago, et al

Case No.: 15-1330

Officials: RIPPLE, KANNE, and WILLIAMS, Circuit Judges

Focus: Single Recovery Rule

Because appellant federal and state suit involved indivisible sets of injuries for which appellant has already been compensated, appellant is barred from recovering again by the single-recovery rule.

“Janusz attempts to distinguish Saichek on the ground that the plaintiff “was precluded from relitigating the amount of her damages because the judgment was final and valid, not because it was satisfied.” Not so. The Saichek Court expressly referenced satisfaction in its analysis. 787 N.E.2d at 833 (“Be‐ cause the judgment has now been satisfied, and because plaintiff is precluded from relitigating the question of her damages, she has already received all that she is entitled to receive for the injuries that gave rise to this litigation.” (emphasis add‐ ed)). Janusz also argues that Saichek is distinguishable be‐ cause it did not involve an appeal that was pending when the parties sought to vacate the judgment and dismiss the case under § 12‐183(h). Cf. Ballweg v. City of Springfield, 499 N.E.2d 1373, 1375 (Ill. 1986) (“For purposes of applying the doctrine of collateral estoppel, finality requires that the potential for appellate review must have been exhausted.”). But we see nothing in Saichek that indicates this modest factual variance is relevant. Indeed, although the parties in Key‐ stone initially pursued separate appeals, they ultimately abandoned those appeals, stipulated that the judgment had been fully satisfied, and petitioned the trial court for vacatur and dismissal”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Carmen Franklin et al v. Parking Revenue Recovery Services, Inc., et al

Case No.: 14-3774

Officials: FLAUM, RIPPLE, and SYKES, Circuit Judges

Focus: FDCPA Violation

Unpaid parking fees and nonpayment penalties are considered debts within the meaning of FDCPA, therefore the obligations that arise from a transaction is a debt and an attempt to collect it apply, obligating the Respondent to comply with FDCPA procedures.

“The judge’s analogy to theft was also inapt. The judge thought a car parker’s failure to pay resembled the condition of the thief that we described in Bass. There we noted that the FDCPA doesn’t cover a thief’s obligation to pay for the goods he steals if his obligation is created by tort law (e.g., the tort of conversion), see RESTATEMENT (SECOND) OF TORTS § 222A (Am. Law Inst. 1965), rather than by contract law, see Bass, 111 F.3d at 1326. The obligations at issue here, however, are not premised on the tort of conversion; they are premised exclusively on the contract that was formed between Franklin and Chism on one side and CPS on the other.”

Reversed

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7^th Circuit Court of Appeals

Case Name: Kenneth Morris v. Bryan Bartow

Case No.: 14-3482

Officials: FLAUM, WILLIAMS, and HAMILTON, Circuit Judges

Focus: Writ of Habeas corpus

Evidence does not support the notion the appellant guilty plea was involuntary

“Even with his new attorney, Morris never moved to set aside the guilty plea and never called it into question. Not until after the trial judge imposed a relatively severe sentence and the no‐merit appeal had concluded did Morris begin claiming that his guilty plea had been coerced. Then we also have the findings of the state courts regarding Morris’s dealings with his appellate attorney Lang. Those findings bind us as long as they are reasonable, and they are. They tell us that Morris never communicated to his appellate lawyer Lang that he thought he had been pressured unfairly into pleading guilty. In light of all these circumstances, we conclude that Morris has not shown that acceptance of his guilty plea violated his federal constitutional rights. See 28 U.S.C. § 2254(a).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: BCL Sheffield, LLC et al v. Gemini Int’l, Inc., et al

Case No.: 16-1083

Officials: POSNER, MANION, and ROVNER, Circuit Judges

Focus: Bankruptcy

Bankruptcy order regarding estate entitlement to assets was valid

“The defendants base their appeal on the aforecited 28 U.S.C. § 157(c)(1), which states that “a bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected.” The defendants argue that the plaintiffs’ turnover claim is not a “core proceeding” and so only the district court may enter a final order resolving the claim. Core proceedings are proceedings under bankruptcy law; non‐core proceedings are proceedings that relate to a bankruptcy but arise under some other body of law. The turnover of the defendants’ assets to the debtor’s estate, and the liquidation of the assets for the benefit of the defendants, is a core proceeding, see 28 U.S.C. § 157(b)(2)(E), based therefore on bankruptcy law, and so the limitations on the bankruptcy court’s authority that are imposed by section 157(c)(1) are irrelevant, because those limitations are applicable only to a bankruptcy court’s administration of non‐core proceedings.

Appeal dismissed

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7^th Circuit Court of Appeals

Case Name: Steven D. Lisle, Jr. v. Guy Pierce

Case No.: 14-3047

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

Focus: Hearsay Evidence

State court admittance of hearsay evidence did not violate 6^th amendment rights of appellant

“Because the state court’s rejection of Lisle’s Confrontation Clause claim was not contrary to or an unreasonable application of Supreme Court precedent in 2007, the district court correctly denied federal habeas relief. See 28 U.S.C. § 2254(d)(1). Hearn made his statement to someone other than a law-enforcement officer, while he was still waiting for an ambulance, bleeding from five through-and-through shots, just eighteen minutes after the shootings. Under an objective circumstances inquiry, it does not matter whether Lee or Hearn thought he was going to survive. The admitted hearsay was non-testimonial and its admission did not violate the Confrontation Clause. “

Affirmed

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7^th Circuit Court of Appeals

Case Name: David Kristofek v. Village of Orland Hills

Case No.: 14-2919

Officials: POSNER, FLAUM, and WILLIAMS, Circuit Judges

Focus: Court Error – 1^st Amendment

Statements made to colleagues and FBI by appellant regarding voided citations improperly  held as unprotected by the 1^st amendment.

“We find that Kristofek’s statements to Johnston, Ricobene, and the FBI were not made pursuant to his official duties. According to Kristofek, his responsibilities as a parttime police officer involved traffic enforcement and placing calls for public service and officer back-up. The fact that Kristofek’s statements bore some relation to the subject matter of his job is not dispositive. For the speech to lack constitutional protection, it must constitute “‘government employees’ work product’ that has been ‘commissioned or created’ by the employer.” Chrzanowski v. Bianchi, 725 F.3d 734, 738 (7th Cir. 2013) (quoting Garcetti, 547 U.S. at 422). Here, Scully points to no evidence demonstrating that Kristofek was responsible for pursuing or voiding citations, or for determining when and under what circumstances arrestees could be released. Compare Renkin, 541 F.3d at 773 (concluding that university professor who complained about university’s proposed use of grant funds spoke as a public employee, since administering the grant “aided in the fulfillment of his acknowledged teaching and service responsibilities”), with Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123–24 (7th Cir. 2009) (concluding that officer’s statements concerning police chief’s proposed staffing reductions at a union meeting were made in his capacity as a union representative, not as a police officer).”

Affirmed in part

Reversed and Remanded in part

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7^th Circuit Court of Appeals

Case Name: Ashoke Deb v. Sirva, Inc., et al

Case No.: 14-2484

Officials: FLAUM, MANION, and ROVNER, Circuit Judges

Focus: Jurisdiction

District court failed to hold defendants to their burden of demonstrating that India was adequate forum for litigation.

“Ordinarily these cases speak of the ability of a court to view evidence of the party moving to dismiss (the defendant) in order to rebut the allegations of the non‐movant’s (the plaintiff’s) complaint asserting facts supporting its chosen venue. This case is unique in that, in an unusual course of events, the defendants cite to the plaintiff’s bare allegation of a joint venture in the complaint in order to support their con‐ tention that the case should be dismissed under Rule 12(b)(3). But the general premise is the same. Where one party makes a bald claim of venue and the other party contradicts it, a dis‐ trict court may look beyond the pleadings to determine whether the chosen venue is appropriate.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Maurice Evans v. Stephanie Dorethy

Case No.: 15-3531

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

Focus: 6^th Amendment Violation

Appellant states improper factual element in appeal.

“The problem with Evans’s reasoning, however, is that he cannot establish a Sixth Amendment violation because “independent felonious intent” is not an element of Illinois felony murder. The cases on which Evans relies do not require that the prosecution supply evidence of independent felonious in‐ tent. Rather, they require an inquiry into whether two events—the predicate felony and the resulting death—are so closely connected that the prosecution must prove murder in‐ stead of felony murder. “[W]here the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder.” Morgan, 758 N.E.2d at 836–38. In Morgan, a teenager who shot his grandparents was convicted of felony murder based on the predicate crimes of aggravated battery and aggravated discharge of a firearm. Id. at 818–19, 838. The courtruled that the state should not have charged felony murder because the predicate felonies and the murders depended on the same acts. Permitting the state to prosecute felony murder in that situation would enable the state to charge all fatal shootings as felony murder, eliminating the need to prove intent to kill.”

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Frank W. Jakubiec

Case No.: 2014AP2758

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

Focus: Ineffective Assitance of Counsel

Frank Jakubiec appeals a judgment convicting him of arson with intent to defraud as a party to a crime. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel. He contends his counsel was ineffective for three reasons:

(1) counsel failed to impeach Rae Mackin’s testimony that Jakubiec admitted setting the fire by introducing evidence that Mackin wanted Jakubiec to be sent to prison to gain advantage in a juvenile court proceeding regarding their three children; (2) counsel failed to impeach Tammi McGillivray’s testimony that Jakubiec admitted starting the fire by establishing she wanted Jakubiec to go to prison to avoid his accusing her of theft; and (3) counsel failed to call Jakubiec’s brother, Louis, to testify that he replaced a metal part of the halogen lamp that started the fire with a plastic piece, which would support Jakubiec’s claim that the fire was accidentally started. We reject these arguments and affirm the judgment and order

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WI Court of Appeals – District I

Case Name: Karen Colleran et al v. Erik C. Wildes et al

Case No.: 2015AP537

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

Focus: Indemnification

M.D. Transportation, Inc. (M.D. Transportation) contracted with Soo Line Railroad (Soo Line) to provide transportation services to Soo Line employees. On January 26, 2012, Karen Colleran, a Soo Line employee, filed a lawsuit against Soo Line, M.D. Transportation, and Matthew Henshaw for injuries she allegedly sustained while a passenger in a vehicle operated by Henshaw.

We conclude that Soo Line is entitled to the $54,064.64 spent litigating M.D. Transportation’s responsibility under the indemnification clause. We remand with directions to amend the judgment to award that amount to Soo Line. In addition, because Soo Line has prevailed on appeal, we remand for the circuit court to determine Soo Line’s reasonable attorney fees and costs on appeal.

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WI Court of Appeals – District I

Case Name: Village of Bayside v. Amber E. Schoeller

Case No.: 2016AP256; 2016AP57

Officials: BRASH, J.

Focus: Reasonable Suspicion

In these consolidated appeals, Amber Schoeller appeals an order finding that she impermissibly refused to submit to an evidentiary chemical breath test. She also appeals a judgment finding her guilty of operating a motor vehicle under the influence of an intoxicant. Schoeller makes the following arguments on appeal: (1) Sergeant Francesca Ehler, the arresting officer, did not have the requisite level of suspicion to request that Schoeller perform a preliminary breath test (PBT) and, without the PBT test result, Ehler did not have probable cause to arrest Schoeller; and (2) without the refusal to submit to the chemical breath test there was insufficient evidence to support the circuit court’s finding of guilt. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Mark H. Price

Case No.: 2015AP731

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

Focus: Error – Prosecutorial Misconduct

Mark H. Price appeals pro se from a circuit court order denying his WIS. STAT. § 974.06 (2013-14) motion seeking a new trial due to prosecutorial misconduct.

Having rejected Price’s multiple claims of error, we also reject any request for discretionary reversal under WIS. STAT. § 752.35. State v. Marhal, 172 Wis. 2d 491, 507, 493 N.W.2d 758 (Ct. App. 1992) (a final catchall plea for discretionary reversal based on the cumulative effect of nonerrors cannot succeed).

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Oswaldo Estrada

Case No.: 2015AP1779-CR

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

Focus: Ineffective Assistance of Counsel

Oswaldo Estrada appeals from a judgment of conviction and an order denying his postconviction motion. Estrada argues that his trial counsel was ineffective during voir dire for failing to move to strike six prospective jurors for cause. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: JFM1, LLC et al v. City of Sheboygan

Case No.: 2015AP1905

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

Focus: Tax Levies

The City of Sheboygan (City) appeals from a judgment awarding a tax refund to JFM1, LLC, and NRCF Memorial Holdings, LLC, (collectively JFM) for excess taxes levied on the Memorial Mall (Mall) in the four years spanning 2010 through 2013. The City argues that the circuit court

was required to consider a 2015 posttrial transaction which included the sale of the Mall together with an adjacent Sears store and land parcel in determining the Mall’s 2010-2013 value, either because it constituted a recent arm’s-length sale of the Mall or because it reflected on the Mall’s highest and best use for purposes of a comparable sales analysis. We reject the City’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brandon J. Lisner

Case No.: 2015AP929-CR

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

Focus: Motion to Vacate – Sentencing

Brandon Lisner appeals an order denying a motion to vacate his sentence and an order denying his motion for reconsideration. Lisner contends that the repeater portion of his sentence should be vacated because the State did not prove the prior conviction forming the basis of his repeater status, and he did not admit to the prior conviction. For the reasons discussed below, we conclude that Lisner admitted to the prior conviction and, therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Cortez D. Britton

Case No.: 2015AP1156-CR

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

Focus: Dismissal of Complaint – Authority

The State of Wisconsin appeals from an order dismissing the State’s criminal complaint against Cortez Britton with prejudice. Because we conclude that the circuit court lacked the authority to dismiss with prejudice, we reverse and remand to the circuit court for further proceedings.

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WI Court of Appeals – District IV

Case Name: Andrew Engen et al v. Wood county, et al

Case No.: 2015AP1209

Officials: Lundsten, Higginbotham and Sherman, JJ.

Focus: Damages

Wood County appeals an order of the circuit court denying its motion for summary judgment. Andre Engen and Tori Seubert (collectively, the Plaintiffs) brought suit against Wood County, seeking to recover for damages they allegedly sustained when they drove over a portion of County Highway C in Wood County that was undergoing a culvert repair at the time. Wood County moved for summary judgment, asserting that the Plaintiffs’ claims against it should be dismissed because Wood County has immunity under WIS. STAT. § 893.80(4) (2013-14). We granted Wood County’s petition for leave to appeal the court’s non-final order. See WIS. STAT. RULE 809.50(3). For the reasons explained below, we conclude that Wood County is not entitled to summary judgment and, therefore, affirm the circuit court’s order denying Wood County’s motion for summary judgment.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Terry C. Craig, Jr.

Case No.: 2016AP1777-CR

Officials: BLANCHARD, J.

Focus: Restitution

Terry C. Craig Jr. appeals a judgment entered by the circuit court following his convictions for criminal damage to property, disorderly conduct, and obstructing a police officer. Specifically, Craig challenges the amount of restitution ordered by the court, arguing that there was preexisting damage to the vehicle that Craig later damaged and that the court should order Craig to pay restitution only for the particular damage that he “directly” caused. I conclude that the circuit court did not erroneously exercise its discretion in ordering restitution equal to the value of the damaged vehicle under the facts here. The court reasonably interpreted the pertinent facts and applied one approach to restitution contemplated in WIS. STAT. § 973.20(2). Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Larry R. Murphy v. Brian Pierce, et al

Case No.: 2016AP522

Officials: BLANCHARD, J.

Focus: Real Estate Contract

Larry Murphy, pro se, appeals an order of the circuit court dismissing his small claims action against Brian Pierce and WP Delton Development, LLC. Murphy contends that he is entitled to $10,000 pursuant to a real estate contract that he entered into to sell property to WP Delton. The contract required WP Delton to place $10,000 in escrow. If Murphy vacated the subject property on or before a date and time set by the contract, Murphy was entitled to the $10,000. If Murphy did not timely vacate, WP Delton was entitled to retain the $10,000. The circuit court conducted a trial and concluded that Murphy did not timely vacate the premises and was therefore not entitled to the $10,000. Murphy appeals, and I affirm the court’s decision for the following reasons.

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