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Weekly Case Digests — Nov. 14 – Nov. 18, 2016

By: WISCONSIN LAW JOURNAL STAFF//November 18, 2016//

Weekly Case Digests — Nov. 14 – Nov. 18, 2016

By: WISCONSIN LAW JOURNAL STAFF//November 18, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Leora H. Bell v. City of Country Club Hills

Case No.: 16-1245; 16-1448

Officials: BAUER, KANNE, and HAMILTON, Circuit Judges

Focus: Property Right – Ordinance

Plaintiff-appellant, Leora H. Bell, filed suit against Defendant-appellee, City of Country Club Hills, claiming a deprivation of her constitutional rights in violation of 42 U.S.C. § 1983. Bell’s claims arise from the City’s decision to repeal an ordinance that provided a twenty-five percent tax rebate to qualifying homeowners. The district court granted the City’s motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), holding that the tax rebate did not confer a vested property right upon Bell. Bell appeals, arguing that she maintains a vested property right in the rebate program, and that the City unlawfully repealed the ordinance. For the reasons stated below, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Anna F. Novak & John C. Morrison

Case No.: 15-3589; 15-3601

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

Focus: Sentencing – Constitutionality

Defendants-appellants John Morrison and Anna Novak both pled guilty to distributing a controlled substance analog and to tax fraud. The district court accepted their guilty pleas and later sentenced Morrison to forty-eight months of incarceration and Novak to ninety-six months. They now appeal, challenging the constitutionality of the Controlled Substances Analogue Act, 21 U.S.C. § 813 (the Analogue Act), the district court’s acceptance of their guilty pleas, and their sentences. We affirm.

Affirmed

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WI Court of Appeals Digest

WI Court of Appeals – District III

Case Name: Marilyn Starstead v. Steven W. Schmidt, et al

Case No. 2015AP555

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

Focus: Damages – Court Error

Steven Schmidt d/b/a Schmidt Consulting LLC, Safe Money Solutions, LLC, and Schmidt Wealth Management LLC (collectively, Schmidt) appeal a judgment entered after a court trial determined that Schmidt defrauded Marilyn Starstead (Starstead). The judgment awarded Starstead compensatory damages of $223,550.75 and punitive damages of $200,000. Schmidt contends the circuit court lacked personal jurisdiction over him, the compensatory damages were excessive, and the court erroneously exercised its discretion in awarding punitive damages. We reject Schmidt’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: BMO Harris Bank, N.A. v. European Motor Works and Gigi Chan, et al

Case No. 2015AO924

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

Focus: Court Error – Attorney Fees

This appeal concerns a claim for contribution by defendant-appellant Scott H. Smith (Smith) against defendant-respondent Gregory Kleynerman (Kleynerman) arising from debts owed by European Motor Works, LLC (EMW), a limited liability company in which Smith and Kleynerman each held a fifty percent interest. Smith appeals the trial court’s grant of summary judgment in favor of Kleynerman and the subsequent dismissal of Smith’s contribution claim. On appeal, Smith argues that the trial court erred in granting Kleynerman’s motion for summary judgment and dismissing Smith’s contribution claim because: (1) Smith paid more than his fair share of the amount paid to discharge Smith’s and Kleynerman’s joint obligation to guaranty the debt of EMW; and (2) Kleynerman should be required to contribute to the attorney’s fees Smith paid for EMW’s defense. For the reasons explained below, we affirm the trial court’s grant of summary judgment in favor of Kleynerman as to Smith’s contribution claim regarding the settlement payment, but we reverse and remand for further proceedings in regard to Smith’s contribution claim as it relates to his claim for attorney’s fees paid on behalf of EMW.

Recommended for publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Gregory Lee Farrow

Case No. 2015AP1777-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Court Error – Sentence Modification

Gregory Lee Farrow appeals from an order of the circuit court that denied his new-factor sentence modification motion. We discern no erroneous exercise of discretion by the circuit court, so we affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Victor A. Havenga

Case No. 2015AP2584-CR

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

Focus: Sufficiency of Evidence

Victor Havenga appeals a judgment convicting him of two counts of false imprisonment and one count of disorderly conduct, all as a repeat offender. He argues the State failed to present sufficient evidence to support the convictions. We affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: City of Appleton v. Jacob Anthony Vandenberg

Case No. S2015AP2649

Officials: Seidl, J.

Focus: OWI – Motion to Suppress – Reasonable Suspicion

Jacob Vandenberg appeals a judgment entered on his plea of no contest to first-offense operating a motor vehicle while intoxicated (OWI). He argues that the arresting officer did not have reasonable suspicion to conduct a traffic stop of his vehicle. Therefore, Vandenberg argues the circuit court should have granted his motion to suppress evidence obtained as a result of the traffic stop. We conclude that Vandenberg forfeited this argument, and therefore affirm

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WI Court of Appeals – District III

Case Name: Robert Cook v. Town of Spider Lake Zoning Board of Appeals, et al

Case No. 2016AP517

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

Focus: Standing

Robert Cook appeals a circuit court order affirming a decision of the Town of Spider Lake Zoning Board of Appeals (the Board). The Board concluded Cook lacked standing to challenge a decision of the Town of Spider Lake Plan and Review Commission (the Commission) approving a certified survey map. We agree that Cook lacked standing to challenge the Commission’s decision. Accordingly, we affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel. Antjuan Redmond v. Brian Foster

Case No. 2014AP2637

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

Focus: Ineffective Assistance of Counsel

Antjuan Redmond appeals from an order granting the State’s motion to dismiss his petition for a writ of habeas corpus. Redmond claims that the attorney who represented him during a proceeding to revoke his probation and extended supervision provided ineffective assistance of counsel in defending against allegations that he battered his girlfriend and her nephew. Because Redmond was found to have violated three other conditions of his probation and extended supervision, any alleged ineffectiveness of counsel did not prejudice him. Thus, we affirm the order.

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WI Court of Appeals – District II

Case Name: John Y. Westmas v. Selective Insurance company of South Carolina, et al

Case No. 2015AP1039

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

Focus: Recreational Immunity

Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. (“Creekside”) fell on her while she and her son walked along a path through the property of Conference Point Center. John Westmas, Jane’s husband, individually and as special administrator of the Estate of Jane Westmas, and Jason Westmas, John and Jane’s son, (collectively “the Westmases”) sued Creekside, and its insurer, Selective Insurance Company of South Carolina (“Selective”). Creekside moved for summary judgment on recreational immunity grounds, which motion the circuit court granted. The Westmases appeal. We reverse.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Leventi Trust, et al v. Bryan M. Waltersdorf et al

Case No. 2015AP1068

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

Focus: Easement

In 2007, Bryan and Nicole Waltersdorf purchased a home in the sightly Village of Oconomowoc Lake. Originally platted over 100 years ago, the Beachmont subdivision included multiple properties connected to each other and to the main road via an easement. The precise location of the easement, however, was not so clear. All this became plain when, in 2012, the Waltersdorfs purchased an adjacent property with the hopes of building a new home on the combined properties. One of the casualties of this plan was one leg of the then-existing oval drive, which was removed. The neighbors sued. After a seven-day trial featuring experts opining on deeds and surveys, childhood stories of what the area looked like in the 1940s, and a personal visit to the property by the judge himself, the circuit court determined that the easement was—as the Waltersdorfs hoped—located on the remaining leg of the oval drive. The neighbors appeal, raising two arguments. First, they challenge the location of the express easement, arguing it included the whole oval drive. In the alternative, they argue that the now-destroyed leg of the oval drive, in use for generations, established an easement by prescription. Resting on our deference to the circuit court’s factual findings, we affirm

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WI Court of Appeals – District II

Case Name: George H. Payne v. Sentry Insurance, et al

Case No. 2016AP236

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

Focus: Worker’s Compensation

A Department of Workforce Development (DWD) administrative law judge (ALJ) found that George Payne’s chronic back pain was a compensable occupational disease and awarded him worker’s compensation benefits. The Labor and Industry Review Commission (LIRC) reversed. Payne appeals the circuit court’s order affirming LIRC’s decision. We affirm the order.

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WI Court of Appeals – District II

Case Name: Sheboygan County v. J.L.H

Case No. 2016AP461

Officials: Hagedorn, J.

Focus: Ch. 51 Commitment

J.L.H. suffers from schizophrenia, intermittent explosive disorder, and a mental disability. He had previously been committed under WIS. STAT. ch. 51, and Sheboygan County sought an extension of that commitment. The County also sought an order for involuntary medication and treatment under WIS. STAT. § 51.61(1)(g)4. The court concluded that J.L.H. was a proper subject for treatment and ordered an extension of his commitment. The court also granted the order for involuntary medication. It reasoned that J.L.H. was not competent to refuse treatment because he was substantially incapable of applying an understanding of treatment to his mental illness. J.L.H. appeals from these orders on the grounds that the evidence was insufficient. We disagree and affirm

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WI Court of Appeals – District II

Case Name: Winnebago County v. J.M.

Case No. 2016AP619

Officials: Hagedorn, J.

Focus: Ch. 51 Commitment – Ineffective Assistance of Counsel

J.M. appeals from orders extending his WIS. STAT. ch. 51 commitment and denying postdisposition relief. J.M. argues that he was denied effective assistance of counsel because his attorney did not arrange for him to wear civilian clothes or at a minimum request a curative jury instruction. J.M. additionally contends he is entitled to a new trial in the interests of justice. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Rory A. Kuenzi

Case No. 2015AP364-CR; 2015AP1662

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Newly Discovered Evidence

Rory Kuenzi challenges the circuit court’s orders addressing his contention that he was denied counsel of his choosing and denying him a new trial based on newly discovered evidence. For the reasons below, we affirm both orders.

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WI Court of Appeals – District IV

Case Name: Jeremy Ryan, et al v. Charles Tubbs, et al

Case No. 2015AP1601

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

Focus: Qualified Immunity

The defendants in this civil rights action, who were at pertinent times employed by the State Capitol Police Department, appeal the circuit court’s denial of the defendants’ motion for summary judgment based on qualified immunity. The circuit court rejected the defendants’ qualified immunity defense, concluding that they violated the plaintiffs’ “clearly established” constitutional rights when the defendants enforced then-applicable administrative regulations requiring that anyone seeking to display a sign in the Wisconsin State Capitol must first obtain a permit. More specifically, the defendants issued citations to the sign-displaying plaintiffs who had not obtained permits and who refused to display the signs in areas of the Capitol building where the permit requirement had been temporarily suspended. We conclude that the defendants are entitled to qualified immunity because the plaintiffs have not met their burden of proving, “beyond debate,” that the defendants’ conduct violated “clearly established” rights of the plaintiffs under prior case law. Accordingly, we reverse, without needing to reach the questions of whether the then-applicable regulations were facially unconstitutional or unconstitutional as applied.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jennifer Hancock

Case No. 2015AP2406

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

Focus: Documents Under Seal

Mark Olalde and the Medill Justice Project (collectively, the appellants) appeal an order of the circuit court placing under seal certain medical records that were admitted into evidence during the trial of Jennifer Hancock, who was convicted of first-degree reckless homicide relating to the death of four-month-old L.W. For the reasons discussed below, we affirm.

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