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Weekly Case Digests — Dec. 5-9, 2016

By: Derek Hawkins//December 9, 2016//

Weekly Case Digests — Dec. 5-9, 2016

By: Derek Hawkins//December 9, 2016//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Maria N. Gracia v. Sigmatron International, Inc.

Case No.: 15-3311

Officials: FLAUM, ROVNER, and SYKES, Circuit Judges

Focus: Retaliatory Termination – Sexual Harassment – Damages

Maria Gracia sued her employer, SigmaTron, International, Inc., for sexual harassment and for terminating her in retaliation for reporting sexual harassment. A jury found in favor of SigmaTron on the claim of sexual harassment but returned a verdict for Gracia on the retaliation count. SigmaTron challenges both the judgment in Gracia’s favor and the amount of damages awarded by the jury. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Hannah Piotrowski, et al v. Menard, Inc.

Case No.: 15-3163

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

Focus: Negligence

Hannah Piotrowski was injured after slipping on two small rocks in the parking lot of a Menard store. She filed this suit alleging that her injuries were due to Menard’s negligence, contending that the rocks must have come from a planter that Menard maintained outside the store or from decorative rocks that the store sold in bags of at least forty pounds. We affirm the district court’s grant of summary judgment in favor of the store because Piotrowski’s belief that she fell as a result of the store’s negligence is only speculation, and speculation is not enough to survive summary judgment under Illinois law. That Piotrowski fell in the Menard’s parking lot after slipping on two rocks is not enough to support an inference that Menard’s negligence caused the fall. In addition, there is no evidence of a pattern of conduct or recurring incident, and the store’s general manager and employees regularly monitored the parking lot for unsafe conditions.

Affirmed

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7th Circuit Court of Appeals

Case Name: Seyon R. Haywood v. Jody Hathaway

Case No.: 12-1678

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

Focus: 8th Amendment Violation – 1st Amendment violation

Seyon Haywood, formerly an inmate at Illinois’s Shawnee Correctional Center, accused his auto mechanics teacher of attacking him. Guards charged him with making false statements. A disciplinary panel found him guilty and ordered him transferred to segregation for two months; the panel also revoked one month of good‐time credit. After these events he was transferred to a different prison, where he remains in custody. Haywood contends in this proceeding under 42 U.S.C. §1983 that these penalties violate his right to speech, protected by the Constitution’s First Amendment (applied to states by the Fourteenth). He also alleges that the conditions of his confinement in segregation were cruel and unusual, violating the Eighth Amendment (again applied via the Fourteenth). The district court dismissed the first claim on the pleadings and granted summary judgment to defendants on the second. The only defendant against whom Haywood still seeks damages is Jody Hathaway, Shawnee’s Warden during Haywood’s time there.

Affirmed in Part

Reversed in Part

Remanded

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7th Circuit Court of Appeals

Case Name: Dustan Dobbs v. DePuy Orthopedics, Inc., et al

Case No.: 16-2135

Officials: FLAUM and KANNE, Circuit Judges, and MAGNUSSTINSON, District Judge

Focus: Quantum Meruit – Attorney’s Fees

Dustan Dobbs hired Appellees George McLaughlin, John Gehlhausen, and Anthony Argeros as his attorneys on a contingency fee basis. Appellees filed Dobbs’s product-liability claim against DePuy Orthopedics in the DePuy ASR Hip Implant Multidistrict Litigation in the Northern District of Ohio. DePuy subsequently offered to settle all claims in that litigation. Despite advice and pressure from McLaughlin, Dobbs refused to settle and discharged Appellees. Later, Dobbs changed his mind and decided to accept the settlement offer. Because the employment contract was inoperative when Dobbs settled, Appellees sought compensation under a quantum meruit theory. The district court awarded attorneys’ fees in the full amount of the original contract. Dobbs argues that the district court abused its discretion by not analyzing the factors that Illinois courts look to when calculating reasonable attorneys’ fees under quantum meruit. We agree.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Kenneth J. Raney

Case No.: 15-3574

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

Focus: Sentencing – Conditions of Supervised Release

Kenneth Raney appeals for the second time the district court’s decision to impose an additional two‐year term of supervised release after revoking his previous release term. We vacated Raney’s initial sentence because the district court did not provide any justification for the length of the supervised release term. On remand, the court has adequately explained its decision. Raney has also waived his challenge to the supervised release condition to which he objects. Therefore, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Larry Frazier v. John E. Varga

Case No.: 15-2661

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

Focus: Sentencing

Just days after his release from prison in 1995, petitioner Larry Frazier entered the apartment of a sixty-two-year-old woman and attempted to rob her at gunpoint. For his troubles, he received a bullet wound. Frazier was convicted of home invasion and sentenced to sixty years. The sentence was increased because of the victim’s age. After failing to obtain relief from the conviction and sentence in the state courts, Frazier sought federal habeas corpus relief under 28 U.S.C. § 2254. He now appeals the district court’s denial of his petition. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Thaddeus Jones, et al v. Michelle Markiewicz-Qualkinbush

Case No.: 16-3514

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

Focus: Injunction – 1st Amendment Violation – 14th Amendment

This case, which arises out of our motions practice, is an appeal from the denial of a preliminary injunction in a dispute among the parties about the placement of certain referendum propositions on the November ballot. These propositions principally concern the local mayoral election in Calumet City and term limits on candidates for that office. Steven Grant and Calumet City Concerned Citizens (together, the “Petition Plaintiffs”) sought to place on the ballot a proposition that, if approved by the voters, would impose mayoral term limits. The County Clerk refused to place the proposition on the ballot on the ground that Calumet City’s current administration already had placed three other propositions on the ballot, and state law permitted no more than three propositions in any single election. The City’s new ballot initiatives appeared to target specifically Thaddeus Jones, an alderman who had announced he was running for mayor. Mr. Jones therefore also brought suit against the city officials. Together, the Petition Plaintiffs and Mr. Jones (together, the “plaintiffs”) sought injunctive relief in the district court, claiming that the actions of the city officials violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Constitution of Illinois. The district court denied a preliminary injunction, and the plaintiffs appealed. Because preparations for the election were underway, we granted expedited review and, after considering the submissions of the parties, affirmed summarily the order of the district court. At that time, we also indicated that we would issue an opinion in due course.

Affirmed

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7th Circuit Court of Appeals

Case Name: Robert Yates v. United States of America

Case No.: 16-3048

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

Focus: Sentencing – Career Criminal

Thirteen years ago, Robert Yates was sentenced as an armed career criminal under 18 U.S.C. §924(e). The district court concluded that he had six qualifying prior convictions; the statute provides that three or more require an enhanced sentence. After the Supreme Court held in Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), that the “residual clause” in §924(e)(2)(B)(ii) is unconstitutionally vague, and made that decision retroactive, Welch v. United States, 136 S. Ct. 1257 (2016), Yates filed this collateral attack. He contends that after Samuel Johnson only two qualifying convictions remain, so that 28 U.S.C. §2255(f)(3) restarts the time for collateral review. The prosecutor concedes that the petition is timely and that Samuel Johnson knocks out three of the six convictions but maintains that Yates’s conviction of battery by a prisoner, in violation of Wis. Stat. §940.20(1), qualifies as a violent felony under the “elements clause” of §924(e)(2)(B)(i) because it “has as an element the use, attempted use, or threatened use of physical force against the person of another”. Samuel Johnson does not affect the elements clause of §924(e). See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The district court agreed with the prosecutor and dismissed this proceeding. 2016 U.S. Dist. LEXIS 79058 (W.D. Wis. June 17, 2016).

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Juan Briseno

Case No.: 15-2347

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

Focus: Court Error – New Trial – Improver Vouching

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that during closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for government witnesses in an inappropriate fashion. But Briseno failed to object at trial to any of these statements, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the government highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit‐ ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Finally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the jurors’ common sense. In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of racketeering” but not “two or more specific acts.” We find no error in this instruction, as it mirrors our pattern jury instruction on the topic and comports with our case law. So we affirm Briseno’s conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Kristopher Warren

Case No.: 16-1492

Officials: POSNER, FLAUM, and MANION, Circuit Judges

Focus: Sentencing – Conditions of Release

Kristopher Warren pled guilty to transporting and possessing child pornography and was sentenced to five years’ imprisonment and fifteen years’ supervised release. The district court entered an order modifying Warren’s conditions of release pursuant to 18 U.S.C. § 3583(e). Warren challenged three of the conditions, and the district court dismissed his objections. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Bradley C. Munger et al v. Richard W. Seehafer

Case No.: 2014AP2594

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

Focus: Court Error – Summary Judgment

Bradley Munger (“Munger”) and the Summit Lake Association (the “Association”) appeal from judgments and an order dismissing all of Munger and the Association’s claims against Richard Seehafer, Peter Vanderhei, Richard Hilger, and Patrick Curran (collectively, the “Respondents”). On appeal, Munger and the Association assert the circuit court erroneously dismissed their intentional trespass and declaratory judgment claims, as well as a claim denominated “Public Nuisance and Inadequate Enforcement.” They also assert the circuit court erroneously granted the Respondents summary judgment as to Munger and the Association’s remaining claim, injury to real property. We conclude the circuit court properly granted the Respondents’ motion to dismiss. We hold that WIS. STAT. § 893.57, which sets forth the limitations period for intentional torts, applies to a claim alleging intentional trespass. The Respondents’ alleged trespass occurred in 2007; between the date of the alleged trespass and the time this action was filed, the legislature extended § 893.57’s limitations period from two to three years. This action was not filed until 2011. Accordingly, we conclude the intentional trespass claim was untimely filed regardless of whether the longer limitations period applies. We also agree with the circuit court that the public nuisance/inadequate enforcement and declaratory judgment claims each fail to state a claim against the Respondents. The circuit court also properly granted the Respondents’ summary judgment motion. The court correctly concluded the Association lacks standing to bring a claim for injury to property, as neither the complaint nor the record plausibly suggests that the Association or its members, aside from Munger, have suffered any property damage as a result of the Respondents’ conduct in 2007. As for the alleged damage to Munger’s property, we conclude his claim is barred by the doctrine of issue preclusion as a result of his earlier efforts to obtain a Department of Natural Resources (DNR) permit to remediate the alleged damage. In those administrative proceedings, the DNR determined it was impossible to separate the damage allegedly caused by the Respondents from other natural and human activities that affected the relevant property. For these reasons, we affirm the circuit court in all respects.

Recommended for publication

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WI Court of Appeals – District III

Case Name: Jerome Movrich et al v. David J.Lobermeier

Case No.: 2015AP583

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

Focus: Court Error – Public Trust Doctrine

David J. Lobermeier and Diane Lobermeier (collectively, the Lobermeiers) appeal from a judgment entered in favor of Jerome Movrich and Gail Movrich (collectively, the Movriches), after a court trial, regarding the Movriches’ right to install a dock and to access the Sailor Creek

Flowage from their shoreline property. The Lobermeiers argue that the trial court erred in concluding the public trust doctrine allows the Movriches to install a dock extending from their property into the Sailor Creek Flowage and resting on the waterbed, and to access the Sailor Creek Flowage directly from their property. To the contrary, the Lobermeiers argue, because they own the bed of the Sailor Creek Flowage abutting the Movriches’ waterfront property, they may prohibit the Movriches from taking such actions. The Lobermeiers also request that we withdraw the trial court’s order restraining and prohibiting them from coming upon the Movriches’ property, as well as that we reverse the trial court’s judgment that costs and fees be taxed against them and instead find that such costs and fees should be taxed against the Movriches. For the following reasons, we agree with the trial court and affirm.

Recommended for publication

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WI Court of Appeals – District III

Case Name: Margaret Bach v. St. Vincent Hospital, et al

Case No.: 2015AP1221

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

Focus: Frivolous Appeal – Sanctions

Margaret Bach, pro se, appeals orders dismissing her claims for a restraining order/injunction against St. Vincent Hospital, Life Navigators, Denice Mader, and Lynn Wagner (collectively “St. Vincent”) and requiring her to pay $245 in guardian ad litem fees. We reject Bach’s arguments and affirm. We also conclude Bach’s appeal is frivolous and sanctions are appropriate under WIS. STAT. RULE 809.25(3). 2 Accordingly, we remand to the circuit court for a determination of the costs, fees, and reasonable attorneys’ fees incurred by the respondents as a result of this appeal. Due to Bach’s continued aggressive litigation tactics, we also bar Bach from future circuit court or court of appeals filings until the costs, fees, and reasonable attorneys’ fees determined by the circuit court have been paid.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jason Rovell Dodd

Case No.: 2015AP1400-CR

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

Focus: Ineffective Assistance of Counsel – Withheld Evidence

Jason Rovell Dodd appeals from a judgment of conviction for armed robbery with threat of force as a party to a crime. See WIS. STAT. §§ 943.32(2) & 939.05 (2011-12). He also appeals from an order denying, in part, his postconviction motion. Because exculpatory evidence was not withheld from the defense and because Dodd’s trial counsel was not ineffective, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marquis J. Chapman

Case No.: 2015AP2133-CR

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

Focus: Ineffective Assistance of Counsel – Sentencing

Marquis J. Chapman appeals a judgment of conviction entered upon his guilty pleas to two counts of delivering not more than three grams of heroin and one count of possessing with intent to deliver more than fifteen grams of cocaine but less than forty grams of cocaine. He also appeals a postconviction order that denied his motion for plea withdrawal, or, alternatively, resentencing. On appeal, he contends that his trial counsel was ineffective and that the circuit court coerced his guilty pleas and erroneously exercised its sentencing discretion. We reject his many claims and affirm

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WI Court of Appeals – District III

Case Name: Town of Burnside et al v. City of Independence, et al

Case No.: 2016AP34-AC

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

Focus: Annexation Ordinance – Timely Pleadings

The Town of Arcadia appeals an order dismissing its claims against the City of Independence. Independence passed three annexation ordinances; each ordinance pertained to separate land within the towns of Arcadia, Burnside and Lincoln, respectively. Burnside and Lincoln commenced this action challenging the validity of the annexation ordinances; they later stipulated to the dismissal of their claims against Independence. Arcadia then sought to take up those towns’ claims, and it successfully intervened in the Lincoln/Burnside action. However, the circuit court later granted Independence’s motion to dismiss Arcadia’s claims, concluding they were untimely. We agree with the circuit court that Arcadia’s claims brought through its intervention came too late. WISCONSIN STAT. §§ 66.0217(11)(a) and 893.73(2)(b) establish a ninety-day limitations period for actions challenging the validity of an annexation. In this case, Independence adopted the annexation ordinances on August 19, 2014, but Arcadia did not seek to intervene and bring its claims in the Burnside/Lincoln action until April 30, 2015. We are unpersuaded by Arcadia’s arguments that its claims were timely filed, including its assertions regarding the relation-back doctrine, tolling, and its status as an intervenor. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Brian Grandberry

Case No.: 2016AP173-CR

Officials: Curley, P.J.

Focus: Sufficiency of Evidence – Vagueness of Statute

Brian Grandberry appeals his conviction for carrying a concealed weapon (CCW) contrary to WIS. STAT. § 941.23(2) and 939.51(3)(a) entered after a court trial on stipulated facts. Grandberry argues that: (1) there was insufficient evidence to convict him of CCW as he was in full compliance with the safe transport statute found in WIS. STAT. § 167.31; and (2) the CCW statute (§ 941.23) was void for vagueness as applied to a person like him, as he was in compliance with the safe transport statute. The stipulated facts are sufficient to convict Grandberry of CCW as the stipulated facts support the three elements of the CCW statute. Likewise, the CCW statute is not void for vagueness as to him because circumstantial evidence supports a conclusion that he knew he was prohibited from carrying a concealed and loaded handgun in his glove compartment, evidenced by the fact he lied to the police when he told the police that he had a CCW permit and then admitted that he took a class to get a permit but failed to actually apply for it. Thus, this court affirms the conviction.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Connie Mae Apfel

Case No.: 2016AP188-CR

Officials: Hruz, J.

Focus: Domestic Abuse Enhancer – Court Error – Prior Inconsistent Statements

Connie Apfel appeals a judgment of conviction for misdemeanor battery and disorderly conduct, both with a domestic abuse enhancer, and for possession of drug paraphernalia as party to a crime. Apfel also appeals an order denying her postconviction motion. She argues the circuit court erroneously exercised its discretion when it admitted prior inconsistent statements of a witness into evidence without a proper foundation. We disagree with Apfel and affirm.

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WI Court of Appeals – District I

Case Name: City of Milwaukee v. Cyrstal Putman

Case No.: 2016AP476

Officials: Curley, P.J.

Focus: Untimely Appeal

Crystal Putman, pro se, appeals an eviction judgment entered against her. She argues that the City of Milwaukee (City) failed to properly serve her with the Small Claims Summons and Complaint. Putman’s briefs reflect that she does not understand she can only appeal the denial of her WIS. STAT. § 806.07 motion and not the eviction itself. The time for an appeal of an eviction action as set forth in WIS. STAT. § 799.445 is fifteen days from the entry of judgment. Thus, her appeal of the eviction judgment is untimely. Putman’s appeal must fail. First, the issue she raises on appeal is not one that was presented below and this court will generally not entertain issues not raised below. Second, a review of the record reveals the trial court did not erroneously exercise its discretion when denying her motion. The trial court’s decision is affirmed.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. M.G.-H

Case No.: 2016AP596

Officials: Brennan, J.

Focus: Sufficiency of Evidence – Child Placement

M.G.-H. challenges the sufficiency of the evidence to support the trial court’s order, following a Watts review hearing, to continue his protective placement under WIS. STAT. ch. 55 (2013-14).3 M.G.-H. argues that the record does not contain evidence sufficient to support the trial court’s conclusion that M.G.-H. “has a primary need for residential care and custody” and to prove that M.G.-H. “is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others.” See WIS. STAT. §§ 55.08(1)(a) and (c). This court concludes that there is sufficient evidence in the record to support the circuit court’s order for continued protective placement, and the order is affirmed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Lee Brayson

Case No.: 2016AP896-CR

Officials: Kessler, J.

Focus: Domestic Abuse Modifiers

Michael Lee Brayson appeals a judgment of conviction, following a guilty plea, of two counts of misdemeanor battery, domestic abuse. Brayson also appeals the postconviction order denying his motion for relief. On appeal, Brayson argues that the domestic abuse modifiers should have been stricken and the surcharges vacated because the record does not establish that Brayson and the victim resided together pursuant to WIS. STAT. §§ 968.075 and 973.055. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.R.D.

Case No.: 2016AP1413

Officials: Brash, J.

Focus: Termination of Parental Rights

T.R.D. appeals an order terminating her parental rights to R.T.D.-T. T.R.D. makes the following arguments on appeal: (1) the circuit court erroneously exercised its discretion when it found T.R.D. to be an unfit parent; and (2) the circuit court erroneously exercised its discretion when it found that it was in the best interest of R.T.D.-T. that T.R.D.’s parental rights be terminated. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nelson I. Humes

Case No.: 20156AP1792-CR

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

Focus: Rape Shield Law

Nelson Humes appeals a judgment convicting him after a jury trial of three counts of second-degree sexual assault of a child under sixteen. The trial court ruled that the rape shield law, WIS. STAT. § 972.11(2) (2013-14) barred evidence of other sexual conduct of the three victims. Humes contends the ruling violated his right to confrontation and prevented him from presenting his misidentification defense. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Washington County v. Daniel Schmidt

Case No.: 2016AP908

Officials: Neubauer, C.J.

Focus: Reasonable Suspicion – 4th Amendment – Refusal of Chemical Test

Daniel L. Schmidt appeals from an order revoking his driving privileges for one year. He argues that he was stopped without reasonable suspicion, arrested without probable cause, and did not improperly refuse to take a chemical test to determine the alcohol concentration in his blood. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: JPMorgan Chase Bank National Association v. Jennifer K. Miescke

Case No.: 2014AP1776

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

Focus: Foreclosure

Jennifer Miescke appeals a circuit court decision granting summary judgment of foreclosure to JPMorgan Chase Bank, N.A. (“JPMorgan Chase” or “the Bank”) on its foreclosure action against Miescke. The issues on appeal are whether JPMorgan Chase made a prima facie case for summary judgment of foreclosure and, if so, whether Miescke rebutted the prima facie case by establishing a genuine issue of material fact or showing, based on the undisputed facts, that JPMorgan Chase is not entitled to judgment as a matter of law. We affirm.

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WI Court of Appeals – District IV

Case Name: Mississippi Sports and Recreation, Inc. v. Town of Wheatland

Case No.: 2015fAP2594

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

Focus: Writ of Mandamius – Tax Assessments

Mississippi Sports and Recreation, Inc. filed a petition for a writ of mandamus to require the Town of Wheatland to “reconvene” board of review hearings from 2009 to 2013 to hear Mississippi Sports’s objections to its property tax assessments from those years. The Town filed a motion for summary judgment seeking dismissal of the mandamus action based on Mississippi Sports’s failure to comply with the statutory procedures that the Town asserted Mississippi Sports was required to follow to challenge a property tax assessment. The circuit court agreed, granted the Town’s motion for summary judgment, and dismissed the petition for mandamus. Mississippi Sports appeals. We conclude that Mississippi Sports’s petition for mandamus was properly dismissed because it is undisputed that Mississippi Sports failed to comply with statutory prerequisites to challenging the 2009-2013 property tax assessments before the board of review, and therefore, Mississippi Sports has no legal right to the relief it seeks. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Gerrod R. Bell

Case No.: 2015AP2667-CR; 2015AP668-CR

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

Focus: Ineffective Assistance of Counsel – Misstatement of Law

Gerrod Bell appeals the judgment of conviction, following a jury trial, on multiple charges of sexual assault involving two victims, then aged 17 and 14, and the order denying his motion for a new trial. Bell makes two arguments. First, Bell argues that the prosecutor misstated the law to the jury, by arguing that in order to acquit Bell jurors “must believe” that the two victims lied about the alleged sexual assaults, and that if either victim was lying there should be evidence of that victim’s motive to lie. Second, Bell makes an ineffective assistance of counsel argument involving exhibits provided to the jury during deliberations. Bell contends that trial counsel performed deficiently in failing to seek redaction of the exhibits to eliminate references to statements by the 14-year-old alleged victim that she had “never had sex” with anyone before Bell had sexual intercourse with her. Bell further contends that he was prejudiced by the jury’s access to these unredacted exhibits. We conclude that Bell is not entitled to relief on either issue, because the prosecutor did not misstate the law and because Bell fails to show prejudice from the jury’s access to the unredacted exhibits. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Oak Park Quarry, LLC v. Dane County Board of Adjustment

Case No.: 2016AP590

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

Focus: Land Use – Venue – Zoning

Oak Park Quarry, LLC, appeals a circuit court order that affirmed a decision of the Dane County Board of Adjustment regarding Oak Park’s claim that its property has a legal non-conforming use status allowing mineral extraction without a conditional use permit. Oak Park contends that: (1) he quarry on its property qualifies as a registered non-conforming use; (2) the Board’s procedural rules prevented Oak Park from fully presenting its case; (3) Oak Park’s challenge to the zoning administrator’s 1969 rejection of an application for a registered non-conforming use on the property was timely under the unique facts of this case; and (4) the Board erred by determining that it was not the proper venue to resolve disputes over Oak Park’s land use. We affirm the Board’s determination.

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