Weekly Case Digests — Aug. 22–26, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Terry N. Taylor

Case No.: 16-1019

Officials: BAUER, POSNER, and SYKES, Circuit Judges

Focus: Sentencing

District judge did not adequately justify sentence imposed on appellant

“These were flimsy grounds. Most of the defendant’s criminal history prior to the shotgun incident consisted of driving offenses, and he presumably can’t drive any longer because of his vision problem. As for pestering federal judges (including the author of this opinion!) with seemingly groundless complaints about how he’s been treated by the criminal justice system, he has a constitutional right to petition the government for redress of grievances, though if he becomes an utter nuisance his petitioning activity can be reined in. He has not threatened anybody with violence or other criminal harm, and the judge offered no adequate rea‐ son for inferring a risk of recidivism from the contents of his complaints. See United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (“Due process requires that sentencing determinations be based on reliable evidence, not speculation or un‐ founded allegations.” (quoting United States v. England, 555 F.3d 616, 622 (7th Cir. 2009))).”

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of

Case No.: 15-2255

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

Focus: Sentencing Hearing

Court is uncertain as to the soundness of appellant sentencing hearing

“Nor did the court give Mobley an opportunity for allocution—something we have just said that it was required to do. See Barnes, 948 F.2d at 329. The twist here is that Mobley did not object to this misstep. Ordinarily, we would review only for plain error. United States v. Noel, 581 F.2d 490, 502–03 (7th Cir. 2009). For an error to be plain, it must be both obvious and have affected Mobley’s substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). The error here was obvious given Barnes. We need not say whether this would be enough, by itself, to require a remand. Because we are sending the case back for a full resentencing, the district court need only ensure that he has this opportunity at the proper time in the new hearing.”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles

Case No.: 15-1142

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

Focus: Right to Counsel

Appellant waived right to counsel after going through numerous attorneys

“The district court conducted a thorough formal inquiry into Thomas’s waiver of counsel in accordance with Faretta, 422 U.S. 806. In fact, over the course of Thomas’s criminal case, the district court conducted two formal Faretta hearings. At the hearings (and on many more occasions), the district court warned Thomas of the danger of refusing counsel and choosing to represent himself, and Thomas acknowledged that he understood. The district court questioned Thomas about his education, background, understanding of the law, and his understanding of the charges and possible penalties. Thomas indicated that he had attended school until eleventh grade, had watched two criminal trials, understood the charges and potential penalties, and understood the applicability of the rules of procedure and evidence. Thomas acknowledged that he was voluntarily deciding to represent himself.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Walker Whatley v. Dushan Zatecky

Case No.: 14-2534

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

Focus: Defaulted Claims

Appellant did not procedurally dfault his claim

“Moreover, Whatley also adequately conveyed to the Indiana courts his specific vagueness objection to the statute. The courts expressly understood that Whatley was challenging the vagueness of the term “regular” in the definition of “youth program center.” Although the Indiana Court of Appeals ultimately decided the case on another issue, the court characterized the children’s activities at the church as “ancillary” and “accessory” and found that the activities were too incidental to change the character of the structure from that of a church to that of a youth program center. Words such as “ancillary,” “accessory,” and “incidental” are necessarily in contrast to “regular” uses of the structure. The Indiana Supreme Court also homed in on the import of the word “regular” in addressing Whatley’s challenge to the statute on vagueness grounds. As we noted above, the court acknowledged that the word “regular” was susceptible to multiple meanings, but nevertheless concluded that the statute provided adequate notice to avoid a vagueness challenge. The state courts were fairly apprised that Whatley was bringing a constitutional vagueness challenge to the statute, that his challenge focused on the definition of “youth program center,” and that within that definition, he was asserting the vagueness of the term “regular.” The district court therefore erred when it concluded that Whatley had defaulted his federal claims.”

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Great West Casualty Company v. Pamela K. Robbins

Case No.: 15-1181

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

Focus: Indemnification

Insurance company not required to indemnify respondents

“Robbins’s other efforts to have us apply § 194.41 are also unpersuasive. The estate directs us to Mullenberg v. Kilgust Mechanical, Inc., 612 N.W.2d 327 (Wis. 2000), for the proposition that whenever an insurance company certifies a policy “as proof of financial responsibility” in a state and the under‐ lying policy states it will conform itself with applicable motor‐ carrier financial responsibility provisions of any states where the policy has been certified, its policy must conform to the insurance laws of that state, even if the accident does not occur within that state’s boundaries. Of course, Mullenberg does not stand for this proposition. If it did, it would mean that Robbins in this case could select from the insurance laws of Iowa, Illinois, Minnesota, North Dakota, and Wisconsin, and ask a court to apply the law of the state that is most favorable, even if the accident and the parties had no connection to that particular state other than the insurance company’s certification. That would be an absurd result.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ruben A. Paz-Giron

Case No.: 16-1554

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

Focus: Sentence Enhancement

Appellant did not meet requirements for upward adjustment in sentencing guidelines

“Without the 8-level increase, the Guidelines range is 6 to 12 months rather than 24 months. See U.S.S.G. ch. 5, pt. A, and § 3E1.1. A miscalculation of the advisory range is ordinarily enough to establish prejudice for purposes of plain error review. That standard requires the defendant to show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted). Molina-Martinez held that “[w]hen a defendant is sentenced under an incorrect Guidelines range[,] … the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added). Moreover, we’ve emphasized that “[w]hen a district court incorrectly calculates the [G]uideline[s] range, we normally presume the improperly calculated [G]uideline[s] range influenced the judge’s choice of sentence, unless he says otherwise.” United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). The normal presumption applies here.”

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Amglo Kemlite Laboratories, Inc. v. National Labor Relations Board

Case No.: 15-3695; 15-1141

Officials: BAUER and WILLIAMS, Circuit Judges, and ADELMAN, District Judge

Focus: Retaliation

NLRB had reasonable basis to hold that employer improperly retaliated against employees to protesting low wages.

“Amglo does not challenge the Board’s finding that the strike was protected activity under the Act. So our review is only of the Board’s conclusion that Amglo violated the Act by transferring work from Illinois to Mexico for the unlawful purpose of retaliating against striking employees. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 14–17 (1962) (employer cannot “punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects”); St. Regis Paper Co., 247 NLRB 745, 745 (1980) (transferring work can constitute retaliation); Westpoint Transp., Inc., 222 NLRB 345, 352 (1976) (same). “We apply a deferential standard of review to the Board’s findings, looking only to see whether they are supported by substantial evidence. This means such relevant evidence that a reasonable mind might accept as adequate to support the conclusions of the Board. Our task is not to reweigh the evidence; it is only to determine whether there is evidence in the record supporting the Board’s outcome that could satisfy a reasonable fact finder.” AutoNation v. NLRB, 801 F.3d 767, 771 (7th Cir. 2015) (internal citations and quotation marks omitted). “We review the Board’s applications of the law to the facts and its interpretations of the Act deferentially as well, taking care to ensure that its legal conclusions have a reasonable basis in law.” Id. (internal quotation marks omitted)”

Petition denied

Order Enforced

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7^th Circuit Court of Appeals

Case Name: Ray Fuller v. Loretta E. Lynch

Case No.: 15-3487

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

Focus: Removal

Application for withholding of removal denied based on ALJ disbelief that appellant was bisexual.

“As we noted earlier, even though some of the IJ’s reasons for disbelieving Fuller on this central point were mistaken (and if that had been all she said, we would have granted this petition), others were sound. The IJ properly highlighted her concerns with Fuller’s inability to recall significant details of the Ocho Rios shooting, which seemed to be the most serious episode in which he claimed to have experienced harm based on his sexual orientation. See Toure v. Holder, 624 F.3d 422, 429 (7th Cir. 2010). The IJ was also concerned that Fuller had testified inconsistently when he frequently confused his sisters’ names, called his sister his mother, and misstated how many sisters he had. The judge was not required to accept Fuller’s excuse that he had made a “mistake” about such basic facts. See Zeqiri v. Mukasey, 529 F.3d 364, 371 (7th Cir. 2008). Also, like the IJ, we are disturbed by Fuller’s misrepresentation on his 2001 immigration application. See Keirkhavash v. Holder, 779 F.3d 440, 442 (7th Cir. 2015). Finally, the IJ adequately explained why she did not credit the letters Fuller submitted or his account of how he obtained them. We conclude that substantial evidence supports the IJ’s conclusion that Fuller did not credibly establish that he is bisexual. See Arrazabal v. Lynch, 822 F.3d 961, 964–65 (7th Cir. 2016). Because we cannot say that any reasonable adjudicator would be compelled to conclude to the contrary (i.e. compelled to conclude that he is indeed bisexual), the agency properly denied Fuller’s application for deferral of removal under the CAT. See Krishnapillai v. Holder, 563 F.3d 606, 621 (7th Cir. 2009).”

Petition Denied

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7^th Circuit Court of Appeals

Case Name: James E. Riano v. Robert A. Mcdonald

Case No.: 15-2043

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Focus: Right to Testify

Appellant failed to show he was harmed by not having live patient testimony

“Because the board did not rely on the subjective feelings of patients, or the subjective intentions of Riano, Riano does not state a due‐process violation by arguing that live patient testimony and cross‐examination would have been relevant to those issues. In Green v. Board of School Commissioners, 716 F.2d 1191 (7th Cir. 1983), a school bus driver was fired for making “suggestive, lewd, and/or sexual advances” to girls on his bus. His argument that he was denied due process because he could not cross‐examine the girls was rejected, in part because he admitted to the relevant conduct and disputed only the irrelevant issue of his state of mind. Id. at 1193 (“Green concedes that he often ‘clowned around’ with girls on his bus. Maybe Green’s intentions when he touched these girls were not as bad as the girls believed. That, how‐ ever, is beside the point. Green was charged with having made ‘suggestive, lewd, and/or sexual advances,’ not with attempted rape.”). In McNeill v. Butz, 480 F.2d 314 (4th Cir. 1973), a male named McNeill and a female named Canaday were both fired from the Department of Agriculture for alleged wrongdoing. They were given hearings but not al‐ lowed to cross‐examine their accusers. The court found that under the particular circumstances, cross‐examination was constitutionally required. Id. at 325. The court reversed Canaday’s termination. Id. at 326. But it affirmed McNeill’s be‐ cause, though he denied some of the allegations against him, he admitted enough of them to justify his termination. Id. “

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robert Jackson et al v. Blitt & Gaines, P.C.

Case No.: 15-1573; 15-1820

Officials: KANNE and ROVNER, Circuit Judges, and BRUCE, District Judge. *

Focus: Wage Garnishment

Wage garnishment actions are not legal actions on a debt against the consumer

“Plaintiffs argue that we should embrace the reasoning of Adkins v. Weltman, Weinberg & Reis Co., L.P.A., No. 2:11‐CV‐ 00619, 2012 WL 604249 (S.D. Ohio Feb. 24, 2012), an un‐ published district court decision from outside this circuit. There, the district court analyzed the Ohio wage‐ garnishment regime and determined that “[o]nly the judgment creditor and the judgment debtor have any beneficial interest at stake in a garnishment action” and that the employer is only a “nominal ‘defendant.’” Id. at *6. Plaintiffs claim that because Ohio and Illinois’s wage‐garnishment regimes share some similarities—both require notice to the judgment debtor and allow the judgment debtor an opportunity to respond—that we should reach the same conclusion as the Adkins court.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Steven Mandell

Case No.: 14-3747; 14-3772

Officials: POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges

Focus: Suppression of Evidence – Sufficiency of Evidence

Appellant raises immaterial arguments against instillation of hidden cameras – evidence provided is more than sufficient to support convictions.

“Moreover, even if the FBI did know that Engel was the ac‐ complice, the application also urged that the wiretap was needed to: (i) ascertain each defendant’s role in the plot, see United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995); and (ii) obtain evidence to prove each defendant guilty beyond a reasonable doubt, see United States v. Campos, 541 F.3d 735, 748 (7th Cir. 2008); Fudge, 325 F.3d at 919. The wiretap served those purposes. Mandell argues that the government did not need the video evidence because it already had recordings of Mandell’s conversations with George Michael. But remember, Mandell told the jury that he was role playing, to feed Mi‐ chael’s fantasies and continue getting paid. The recorded con‐ versations are consistent with that story. In contrast, the vid‐ eos from Club Med, in which Mandell and Engel discuss their plans in gruesome and tedious detail even though Michael is not present, are not consistent with “fantasies.””

Affirmed

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7^th Circuit Court of Appeals

Case Name: Patricia Rupcich v. United Food and Commercial Workers International Union, et al

Case No.: 14-3377

Officials: KANNE and ROVNER, Circuit Judges, and BRUCE, District Judge

Focus: Duty of Fair Representation

Union failed to apply its own arbitration standard in termination matter.

“It is undisputed that Robinson filed a grievance on Rupcich’s behalf prior to her termination and that this grievance only involved one store. Under the CBA, Rupcich was entitled to a Step 1 conference. She did not receive one. In fact, Local 881’s counsel conceded during oral argument that the Union did not perform any of the three steps under its grievance policy. Local 881 argues that it did not need to do so because of Local 881 and Jewel’s “long‐standing practice of bypassing Step 1 in cases of termination.” That this practice ignored the plain language of the CBA was of no consequence, according to Local 881, as “[u]nions are ‘accorded considerable discretion in dealing with grievance matters.’” (Local 881 Br. at 13 (quoting Garcia, 58 F.3d at 1176).)”

Reversed and remanded in part

Affirmed in part

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7^th Circuit Court of Appeals

Case Name: United States of America v. Duane L. O’Malley

Case No.: 14-2711

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

Focus: New Trial

Appellant motion for new trial based on newly discovered evidence improperly denied as immaterial.

“Here the district court held that O’Malley “is seeking relief that he can only obtain through § 2255,” relying on our decisions in United States v. Evans, 224 F.3d 670 (7th Cir. 2000), Ruth v. United States, 266 F.3d 658 (7th Cir. 2001), and United States v. Rollins, 607 F.3d 500 (7th Cir. 2010), for the proposition that Rule 33 does not authorize a postjudgment motion based on newly discovered evidence except when that evidence implies the defendant’s actual innocence and came to light after trial in a manner not suggesting a constitutional violation. That reliance is mistaken. Those decisions, which analyze some of the interplay between Rule 33 and § 2255, do not purport to define the outer limits of claims that can be brought under Rule 33.”

Vacated

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7^th Circuit Court of Appeals

Case Name: United States of America v. Daniel Haslam

Case No.: 14-2641

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

Focus: Plea Withdrawal

Appellant plea agreement did not limit information the government could use in sentencing.

“We don’t need to resolve this apparent tension in our caselaw today. As we’ve noted, the government does not contest our authority to address Haslam’s claim that his plea agreement is invalid because it was not knowingly made. That question is tightly bound with the question of breach. Here, both questions turn on whether the agreement included a promise that the government would not inform the court of the Sample incident at sentencing. If there was no such promise, as the government contends, then the agreement is enforceable and it also necessarily follows that the government did not commit a breach.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Frank Caira

Case No.: 14-1003

Officials: RIPPLE, KANNE, and WILLIAMS, Circuit Judges.

Focus: Motion to Suppress

Appellant motion denied as he voluntarily shared relevant information with technology companies – therefore he did not have a reasonable expectation of privacy in the information provided.

“The critique advanced by Caira, Justice Sotomayor, and others, is not new. It was made in both Miller and Smith—in dissent. Miller, 425 U.S. at 451 (Brennan, J., dissenting); Smith, 442 U.S. at 750 (Marshall, J., dissenting). So it is true that at least one Justice believes “it may be necessary” to reconsider the third‐party doctrine. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring). But it is also true that “[t]he Supreme Court has … twice rejected [Caira’s critique]. Until the Court says other‐ wise, these holdings bind us.” Graham, 2016 U.S. App. LEXIS 9797 at*27. Because Caira voluntarily shared his I.P. addresses with Microsoft, he had no reasonable expectation of privacy in those addresses. So the DEA committed no Fourth Amend‐ ment “search” when it subpoenaed that information, and the district court was right to deny Caira’s motion to suppress.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Richard Harrington

Case No.: 15-3486

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

Focus: Sentence Reduction

Judge lacked clarity in explaining reasons for limited sentence reduction

“We don’t mean to suggest that Judge St. Eve, a very experienced, conscientious, and highly regarded judge, in fact erred in denying Harrington the full 25 percent sentence reduction that the government sought. She may or may not have. But a lack of clarity in her statement explaining that ruling leaves us unable to understand the reasoning process that led her to reject the government’s request for a 25 percent sentence reduction. Given our uncertainty we think it best to vacate the district court’s judgment and remand for reconsideration of the government’s motion”

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dominic Miller

Case No.: 15-2856

Officials: BAUER, FLAUM, and WILLIAMS, Circuit Judges

Focus: Sentencing

Sentence imposed was not unreasonable given appellants history of drug use and drug sales.

“We find that the district judge did not err in her burden‐ shifting analysis. The judge began by stating that “the probation office was correct in determining that Mr. Miller’s relevant conduct involved at least 500 grams but less than 1.5 kilograms.” She referenced the relevant time period and the three‐to‐five pound range that Wagner had noted in her inter‐ view with law enforcement. Only after that did the district judge say she was “convinced that defendant has not shown that his relevant conduct involved less than 500 grams.” In short, the judge found that (i) the government satisfied its initial burden regarding the reliability of the revised PSR’s drug‐quantity determination, and (ii) Miller did not satisfy his burden when it shifted to him. Miller argues that he did in fact satisfy his burden, but we disagree. Miller emphasizes that in his rebuttal to the initial PSR, he demonstrated that he did not purchase and sell most of the methamphetamine by himself. As noted above, however, that potential fact is irrelevant since Miller and Wagner were jointly engaged in a criminal activity.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Henry Ortiz v. Werner Enterprises, Inc.

Case No.: 15-2574

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

Focus: Illinois Human Rights Act

Court did not properly administer methodology to assess overall likelihood of discrimination

“Ortiz relies on his own testimony plus depositions and declarations from other brokers, managers, and former employees. Some Werner employees testified that they always provided notice when booking a loss in another broker’s name. Some went further and said they expected someone to ask their permission before recording an unprofitable transaction in their names. Several brokers testified that they (and other brokers) sometimes removed their names from unprofitable loads. Werner could not identify an express policy that forbids the practice. A former Werner broker with 20 years’ experience submitted a declaration that while at Werner he had sometimes asked tardy carriers to lower their rates and that such action reflected industry practice. Finally, several current and former employees recounted that Lass and Krikava had directed ethnic slurs at Ortiz.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Construction and General Laborers’ Local Union No. 330 et al v. Town of Grand Chute, Wisconsin

Case No.: 15-1932

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

Focus: Content Discrimination

Township did not allow Union proper amount of time to remove signs on public highway.

“Finally, the Union contends that the Town has allowed other speakers 30 days to remove structures that violate the ordinance, while it insisted that the Union remove the rat and cat immediately. Yet again the district judge did not decide whether this contention is true. The Union put in the record some printed notices that the Town has used, and these notices indeed say: “All cited violations shall be corrected within 30 days after written notification”. One notice has a handwritten addition changing 30 days to 48 hours, but others left the form as is. A Town employee testified that the printed notice is wrong and that there is no 30‐day grace period. It may be, as the Town contends, that allowing such a delay would undermine the ordinance unduly. Still, if the Town does allow other speakers more time than it allowed the Union, it has engaged in content discrimination. The district court needs to make findings about the Town’s actual enforcement practices—unless this controversy is moot.”

Vacated and remanded

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Wisconsin Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Estate of Stanley G. Miller v. Diane Storey

Case No.: 2014AP2420

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

Focus: Damages – Money Judgment

Diane Storey appeals a small claims money judgment entered after a jury trial and posttrial motions, in which the court awarded the Estate of Stanley G. Miller (the Estate) sums totaling $52,629.90. That amount included restitution damages, exemplary damages, double statutory costs, and actual attorney fees. Storey argues she was never given actual notice of any claim for theft under WIS. STAT. § 895.446,2 and, therefore, the circuit court should not have allowed any damages or other relief under that statute. Further, Storey contends statutory damages under § 895.446 may not be awarded where the Estate failed to plead exemplary damages. Storey also argues her handwriting expert should not have been precluded from offering part of his expert opinion. We reject these arguments.

Recommended for publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mychael R. Hatcher

Case No.: 2015AP97-CR

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

Focus: Pleas & Sentencing – Court Error

Mychael Hatcher appeals a judgment convicting him of three offenses, an order denying his motion for postconviction relief, and an order denying his motion for reconsideration. Hatcher argues the trial court violated his right to a fair trial by refusing to accept his guilty pleas to two of the three charges on the morning of the first day of trial and by permitting the State to call a particular witness in rebuttal. Hatcher also argues the trial court erroneously limited his trial testimony and, by doing so, violated his constitutional right to present a defense. In addition, Hatcher contends his trial attorney was ineffective in two respects. Finally, Hatcher argues he was prejudiced by the combined effect of these errors. We reject Hatcher’s arguments and affirm

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WI Court of Appeals – District III

Case Name: Jan Kaste v. Amery Regional Medical Center, Inc. et al

Case No.: 2015AP962

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

Focus: Breach of Contract – Failure to State a Claim

Jan Kaste appeals an order dismissing her breach of contract claim against Amery Regional Medical Center, Inc. Kaste argues the circuit court erred by concluding Kaste’s complaint failed to state a claim upon which relief could be granted. Kaste also contends the circuit court erred by

converting Amery Regional’s motion to dismiss into a motion for summary judgment without giving the parties an opportunity to respond. We reject Kaste’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: City of Sturgeon Bay v.  Randall S. Vanden Elzen, et al

Case No.: 20156AP1026

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

Focus: Contract Violation

Randall Vanden Elzen, Andrew Gundrum, Sr., and Karen Gundrum (collectively “Vanden Elzen”) appeal a money judgment in favor of City of Sturgeon Bay concerning a stormwater drainage outfall project. The circuit court held the parties’ unambiguous contract contained a $150,000.00 limitation on the City’s maximum liability for the project’s cost, and Vanden Elzen was legally obligated to reimburse the City $34,551.16 for the project’s cost over $150,000.00. We affirm the judgment.

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WI Court of Appeals – District I

Case Name: County of Milwaukee v. Alpesh Shah

Case No.: 2015AP1581

Officials: BRASH, J.

Focus: Warrantless Search – Blood Draw

Alpesh Shah appeals a judgment convicting him of operating a motor vehicle with a restricted controlled substance in his blood, contrary to WIS. STAT. § 346.63(1)(am). Shah argues that because there were no exigent circumstances, the warrantless blood draw was unlawful. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ginger M. Breitzman

Case No.: 2015AP1610-CR

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

Focus: Child Neglect – General Appeal

Ginger M. Breitzman appeals from a judgment of conviction, following a jury trial, of one count of child neglect and one count of disorderly conduct. Breitzman also appeals from the order denying her postconviction motion. We affirm.

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WI Court of Appeals – District I

Case Name: Borislav Kresovic et al v. Rochelle Kresovic et al

Case No.: 2015AP2159

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

Focus: Court Error – Sheriff’s Sale

This is an appeal from an order confirming a sheriff’s sale stemming from the trial court’s order for a judicial sale of real estate after finding that it could not be equitably partitioned. On appeal, Mira Kresovic argues that the trial court erroneously exercised its discretion in ordering the sheriff’s sale rather than ordering partition of the property. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Patrick P. Haynes

Case No.: 2015AP2176-CR

Officials: HRUZ, J. 

Focus: Sentencing Guidelines – OWI

Patrick Haynes appeals a sentence imposed after the revocation of his probation related to a judgment of conviction for third-offense operating a motor vehicle while intoxicated (OWI). He argues the circuit court erroneously exercised its discretion by deviating from the sentencing guidelines and imposing the maximum sentence available under the law. We disagree and affirm the judgment.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Mack E. Scott

Case No.: 2015AP1326-CR

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

Focus: Motion to Suppress

Mack E. Scott appeals from a judgment convicting him of first-degree reckless homicide by delivery of a controlled substance, possession with intent to deliver heroin, possession with intent to deliver cocaine, and possession with intent to deliver tetrahydrocannabinols (THC). He contends that the circuit court should have granted his motion to suppress evidence because the police’s search warrant was invalid. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: The Manitowoc Company, Inc. v. John M. Lanning

Case No.: 2015AP1530

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

Focus: Statutory Interpreation

This case concerns whether a nonsolicitation of employees (NSE) provision is a restrictive covenant subject to and enforceable under WIS. STAT. § 103.465 (2013-14). The Manitowoc Company, Inc. entered into an agreement with employee John Lanning that prohibited him from directly or indirectly soliciting, inducing, or encouraging any Manitowoc employee “to terminate their employment” with Manitowoc or to “accept employment with any competitor, supplier or customer of Manitowoc.” After Lanning left Manitowoc to work for a competitor, Manitowoc alleged that he worked with his new employer to woo several of Manitowoc’s employees in violation of the NSE provision. Manitowoc filed suit, and the circuit court granted summary judgment to Manitowoc and awarded it attorneys’ fees and costs. Although Lanning takes issue with multiple aspects of the circuit court’s judgment, the only question we need address is whether WIS. STAT. § 103.465 governs the NSE provision, and if so, whether it is enforceable. We conclude that § 103.465 does govern the NSE provision and that it is not enforceable under the law. Accordingly, we reverse the judgment of the circuit court and its award of attorneys’ fees and costs.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sandra D. Noren

Case No.: 2015AP1969-CR

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

Focus: Emergency Exception – 4^th Amendment

This appeal addresses the emergency exception to the Fourth Amendment prohibition against warrantless searches. Sandra D. Noren appeals from a judgment of conviction for possession of narcotic drugs under WIS. STAT. § 961.41(3g)(am) (2013-14). 2 Police responded to a 911 call of an overdose at Noren’s residence. When police arrived they found Noren unconscious on her kitchen floor. In an effort to assist in her emergency care, one of the officers searched Noren’s bedroom for the cause of her overdose, where he found heroin, pills, and drug paraphernalia. The officer promptly provided the information to emergency personnel who were treating Noren. Noren moved to suppress the evidence of the search, arguing that the officer’s search of the wardrobe in her bedroom exceeded the scope of what was permitted under the emergency exception. The circuit court denied the motion, finding that the officer’s search was limited in scope and it was reasonable for the officer to search for evidence of the cause of Noren’s overdose to assist medical personnel. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Matthew W. Armstrong

Case No.: 2016AP97-CR

Officials: NEUBAUER, C.J.

Focus: Expungement

Matthew W. Armstrong appeals from orders denying his motions to expunge his criminal convictions. He argues that the circuit court erroneously exercised its discretion in denying his motions. We disagree and affirm

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Timothy Joe Hoff

Case No.: 2015AP2036-CR

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

Focus: Sufficiency of Evidence – Ineffective Assistance of Counsel

Timothy Hoff appeals a judgment convicting him, after a jury trial, of four felonies and two misdemeanors, as well as an order denying his postconviction motion. On appeal, Hoff argues that his trial counsel rendered ineffective assistance of counsel. He also challenges the sufficiency of the evidence to support his conviction for one count of exposing a child to harmful material, contrary to WIS. STAT. § 948.11(2)(a) (2011-12). For the reasons set forth below, we affirm the judgment and order of the circuit court.

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WI Court of Appeals – District IV

Case Name: Warren Slocum v. Wisconsin Department of Revenue

Case No.: 2015AP2473

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

Focus: Tax Assessment

Warren Slocum, pro se, appeals an order of the circuit court affirming, on certiorari review, a Wisconsin Department of Revenue decision denying a petition that he advanced under WIS. STAT. § 70.75(1)(a)1. (2013-14), requesting that the Department require the Town of Star Prairie to reassess properties for the year 2012. Slocum challenges the Department’s conclusion that the town’s 2012 property tax assessment is “in substantial compliance with the law,” which resulted in the Department’s decision to deny the petition for reassessment. The circuit court upheld the Department. We affirm the Department’s decision for the following reasons.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Micha S. Pruitt

Case No.: 2016AP251-CR

Officials: KLOPPENBURG, P.J.

Focus: Witness Testimony by Telephone

The State of Wisconsin appeals a non-final order of the circuit court allowing a witness called by the defense to testify by telephone at the criminal jury trial. This court granted the State’s petition for leave to appeal the court’s non-final order. See WIS. STAT. RULE 809.50(3). On appeal, the State argues that the court’s order should be reversed because the presentation of testimony by telephone during a criminal jury trial is not permitted under WIS. STAT. § 967.08. I agree, and therefore reverse.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.L.

Case No.: 2016AP735; 2016AP736

Officials: CURLEY, P.J.

Focus: Termination of Parental

D.L. appeals from orders terminating her parental rights to her son, J.S., and her daughter, J.L.2 She raises two issues on appeal: (1) whether the trial court erred in allowing the State to present multiple hearsay statements to establish that D.L. had engaged in a pattern of abuse of J.S. and J.L.; and (2) whether the trial court erroneously exercised its discretion in admitting certain expert testimony under WIS. STAT. § 907.02. She further argues that neither of these alleged errors was harmless. For the reasons that follow, we affirm.

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