Weekly Case Digests — Jan. 16-20, 2017

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Girard Jones et al v. John Baecker et al

Case No.: 2015AP325

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

Focus: Housing Discrimination

Girard and Lindsay Jones appeal a judgment dismissing their state and federal disparate treatment housing discrimination claims against John Baecker. The Joneses’ race discrimination claims rest principally on Baecker’s explicit identification of Girard as “African American,” and the Joneses’ family status discrimination claims rest principally on Baecker’s stated belief that the Joneses’ desired rental unit was too small to accommodate their sixperson family. We conclude the circuit court properly granted summary judgment to Baecker because no reasonable fact finder could conclude, on this record, that race or family status was a substantial factor motivating Baecker’s refusal to rent to the Joneses. Accordingly, we affirm the circuit court on this issue.

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WI Court of Appeals – District III

Case Name: CVS Pharmacy, Inc. v. City of Appleton

Case No.: 2015AP876

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

Focus: Property Tax Assessment

We are once again asked to review property tax assessments involving a national drugstore chain—this time CVS Pharmacy, Inc. The circuit court concluded that the City of Appleton’s assessments were not entitled to a presumption of correctness because the assessments violated the principles set forth in Walgreen Co. v. City of Madison (Walgreen/Madison), 2008 WI 80, 311 Wis. 2d 158, 752 N.W.2d 687, and CVS Pharmacy presented significant contrary evidence rebutting the City’s assessments. Applying the holding in Walgreen/Madison, we affirm the circuit court’s decision.

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WI Court of Appeals – District III

Case Name: Nationstar Mortgage, LLC v. Robert R. Stafsholt

Case No.: 2015AP1586

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

Focus: Foreclosure

Nationstar Mortgage LLC, n/k/a Bank of America, NA, appeals orders that: dismissed its foreclosure action against Robert Stafsholt and others; reinstated the underlying mortgage with a principal balance of $172,108.17; and permitted a $24,406.89 offset against that balance to account for attorney fees Stafsholt incurred in the foreclosure proceedings. Nationstar argues the circuit court erred by: (1) concluding Bank of America (BOA), one of Nationstar’s predecessors in interest, breached the implied covenant of good faith and fair dealing; (2) concluding Stafsholt prevailed on his equitable estoppel affirmative defense; (3) granting Stafsholt declaratory judgment on his breach of contract claim; (4) granting Stafsholt an offset against the mortgage’s principal balance for his attorney fees and costs; and (5) prohibiting Nationstar from collecting certain fees and interest.

In a cross-appeal, Stafsholt argues the circuit court erroneously exercised its discretion by reducing his requested attorney fees and costs to account for $40,239.92 in interest the court had already determined Nationstar could not collect from him. Stafsholt also argues the award of attorney fees and costs should be amended to account for additional fees and costs he has incurred in the circuit court and on appeal. Finally, Stafsholt argues in the alternative that, pursuant to WIS. STAT. § 802.05(3)(a)2., Nationstar should be ordered to show cause as to why Stafsholt is not entitled to recover his attorney fees and costs as a sanction for the wrongful conduct of Nationstar’s predecessors in interest.

We conclude the circuit court properly determined that BOA breached the implied covenant of good faith and fair dealing, that Stafsholt prevailed on his equitable estoppel affirmative defense, and that Stafsholt was entitled to declaratory judgment on his breach of contract claim. We also conclude the court properly determined Nationstar was prohibited from collecting certain fees that were charged to Stafsholt as a result of his default. We therefore affirm with respect to those issues. However, we conclude the court erred by awarding Stafsholt attorney fees and costs, and we reverse on that basis. For the reasons explained below, we also reverse those portions of the court’s orders regarding Nationstar’s ability to recover interest, and we remand for further proceedings on that issue

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WI Court of Appeals – District III

Case Name: Tetra Tech EC, Inc., et al v. Wisconsin Department of Revenue

Case No.: 2015AP2019

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

Focus: Sales & Use Tax

In this sales and use tax case, the Tax Appeals Commission concluded: (1) Stuyvesant Dredging, Inc.’s (SDI) activity of separating dredged material from the Fox River into its constituent parts constituted “processing” of tangible personal property under WIS. STAT. § 77.52(2)(a)11. (2007-08), and thus is a service subject to Wisconsin’s retail sales and use tax; and (2) WIS. STAT. § 77.59(3) did not preclude the Department of Revenue from raising an alternative legal basis for taxation before the commission that was not first asserted in the Department’s written notices of determination to Lower Fox River Remediation, LLC (Fox River Remediation) and Tetra Tech EC, Inc. (Tetra Tech). We determine the commission’s legal conclusions are entitled to great weight deference and, under that deferential standard, we conclude they are reasonable. We also conclude the Department complied with the requirements of WIS. STAT. § 77.59(3). Therefore, we affirm the circuit court’s order affirming the commission’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Paul A. Adams

Case No.: 2015AP2163-CR

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

Focus: Sentence – OWI 7^th

Paul A. Adams pleaded no contest to seventh offense operating a motor vehicle while intoxicated (OWI) in hopes that his sentence would be ordered concurrent to the sentence he was serving upon revocation of his extended supervision from his sixth OWI conviction. When the court imposed a consecutive sentence, Adams filed a Bangert and Bentley motion to withdraw his plea. He alleged that his plea was not knowingly, voluntarily, and intelligently entered because the court did not advise him, or ascertain his understanding, of both elements of the offense and because his counsel ineffectively failed to do likewise. The court denied the motion after a hearing. We affirm the judgment of conviction and the order denying Adams’ postconviction motion.

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WI Court of Appeals – District I

Case Name: City of Milwaukee v. Sarah Marson

Case No.: 2015AP2243

Officials: Brash, J.

Focus: Tax Levy

Sarah Marson appeals an order granting the City of Milwaukee’s motion for summary judgment. Marson argues that she was denied her right to a jury trial and that the property taxes levied against her property constitute an unconstitutional tax. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Antoinette Lang et al v. Lions Club of Cudahy Wisconsin, Inc.

Case No.: 2015AP2354

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

Focus: Improper Dismissal

Antoinette and Jim Lang (the Langs) appeal from an order dismissing their negligence case. The Langs contend that the trial court erred in dismissing the complaint without making any factual findings and conclusions of law. We agree. Because the record is devoid of the findings of fact and conclusions of law required for us to review the decision, we reverse and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Keith M. Kutska

Case No.: 2016AP185

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

Focus: Ineffective Assistance of Counsel

Keith Kutska appeals an order denying his WIS. STAT. § 974.061 postconviction motion in which he alleged ineffective assistance of counsel, and newly discovered evidence, and requested a new trial in the interest of justice. The circuit court denied the motion, reasoning it was procedurally barred and also failed on the merits. Because some of Kutska’s arguments embellish on issues that were presented and rejected in his previous postconviction motion and appeal, and he has not established ineffective assistance of counsel or newly discovered evidence, we affirm the order

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WI Court of Appeals – District III

Case Name: City of Eau Claire v. David Eugene Phelps

Case No.: 2016AP248

Officials: Hruz, J.

Focus: OWI – Motion to Suppress

The City of Eau Claire appeals an order granting David Phelps’s motion to suppress evidence, resulting in the dismissal of a citation for first-offense operating a motor vehicle while intoxicated (OWI). We agree with the City that reasonable suspicion of an OWI offense justified the underlying traffic stop. Accordingly, Phelps’s constitutional rights were not violated, and we reverse the order and remand for further proceedings necessary to resolve this case.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. B.H.

Case No.: 2016AP892; 2016AP893

Officials: Brennan, P.J.

Focus: Termination of Parental Rights

B.H. appeals orders terminating her parental rights to two children, B. and J. She asks this court to vacate the orders and either dismiss the petitions or remand the matter for a new fact-finding hearing.2 She argues that inadmissible hearsay and opinion evidence was submitted at the grounds trial, and trial counsel’s failure to object to it constituted prejudicial ineffective assistance of counsel. She further argues that the evidence was insufficient to support the finding that grounds exist for termination on the two grounds asserted here: continuing need of protection or services and failure to assume parental responsibility. See WIS. STAT. §§ 48.415(2) and (6)(a).

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. J.F.K.

Case No.: 2016AP941

Officials: Stark, P.J.

Focus: Delinquency – Sufficiency of Evidence

J.F.K. appeals a dispositional order adjudicating him delinquent of sexual intercourse with a child age sixteen or older, contrary to WIS. STAT. § 948.09. He argues the State presented insufficient evidence to corroborate his confession. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Oak Park MHC, LLC v. Shawntell Vann

Case No.: 2016AP39

Officials: Blanchard, J.

Focus: Eviction – Court Error

Sheryl DePriest, pro se, appeals a judgment of eviction entered by the circuit court. DePriest argues that the circuit court erred in concluding that she did not meet the statutory requirements to be considered a tenant of a mobile home community owned and operated by Oak Park MHC, LLC, and that, on this basis, Oak Park could evict DePriest. More specifically, DePriest argues that her occupancy of, and her making rent payments for, a mobile home site owned by Oak Park, with Oak Park’s knowledge, converted her status from unauthorized occupant of the mobile home site, with no protections under the statute specifically governing mobile home communities, WIS. STAT. § 710.15, to either one of two statuses under ch. 704, the landlord-tenant chapter: a periodic tenant under WIS. STAT. § 704.01(2), or a tenant at will under § 704.01(5).2 Relying on the premise that she was a tenant and not merely an unauthorized occupant, DePriest argues that Oak Park terminated her tenancy in violation of § 710.15(5m).3 I reject DePriest’s arguments under the applicable statute, § 710.15, because she never had a written lease agreement with Oak Park for the mobile home site at issue, and affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: T.M.H. v. A.N.W.

Case No.: 2016AP1981

Officials: Blanchard, J.

Focus: Termination of Parental Rights

J.H.’s biological father filed a petition seeking to terminate the parental rights of J.H.’s biological mother, A.W., which was granted by the circuit court. A.W. appeals. I agree with A.W.’s argument, which requires some background information to understand.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brittanie Jo Palaia

Case No.: 2016AP467-CR

Officials: Stark, P.J.

Focus: Court Error – Motion to Suppress – Reasonable Suspcion

Brittanie Palaia appeals a judgment of conviction for operating a motor vehicle while intoxicated as a first offense with a passenger under the age of sixteen. She argues the circuit court erred by failing to suppress evidence gathered during a traffic stop because the officer lacked reasonable suspicion to believe Palaia was committing a traffic offense. We agree. Accordingly, we reverse the judgment and remand for the circuit court to grant Palaia’s suppression motion and for further proceedings.

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WI Court of Appeals – District III

Case Name: Carol Walker v. Sacred Heart Hospital of the Hospital Sisters of the Third Order of St. Francis

Case No.: 2015AP805

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

Focus: Court Error – Res Ipsa Loquitur – Expert Witness

Carol Walker appeals a summary judgment dismissing her personal injury claim against Sacred Heart Hospital of the Hospital Sisters of the Third Order of St. Francis (Sacred Heart). Walker contends the circuit court erred by dismissing her negligence claim due to her failure to disclose an expert liability witness to testify about the standard of care required for the security of patients in the psychiatric ward of Sacred Heart. Walker further contends that the doctrine of res ipsa loquitur applies, and for that reason, no expert testimony is required. We conclude Walker was required to have an expert witness testify concerning Sacred Heart’s standard of care and res ipsa loquitur does not apply. We therefore affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Damion L. Brown

Case No.: 2015AP2029-CR

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

Focus: Motion to Suppress – Warrantless Search

Damion L. Brown appeals from a judgment of the circuit court convicting him of one count of possession of heroin with intent to deliver. Brown argues that the circuit court erred in denying his motion to suppress the evidence seized during a warrantless search of his residence. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Demetrius Antown Brown

Case No.: 2015AP128-CR; 2015AP129-CR; 2015AP130-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Sentence Modification

Demetrius Antown Brown appeals judgments of conviction and postconviction orders denying him sentence modification or resentencing. He pled guilty to four crimes, and the circuit court imposed an aggregate sentence of five years of initial confinement and four years of extended supervision. On appeal, Brown mounts two related challenges to the sentencing decision: (1) the circuit court erroneously exercised its sentencing discretion by allegedly mischaracterizing the facts underlying the convictions; and (2) the circuit court’s reliance on its alleged mischaracterization of the facts violated Brown’s due process right to be sentenced on accurate information. We reject his claims and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Julian J. Cannon

Case No.: 2015AP2355-CR

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

Focus: Abuse of Discretion – Right to Counsel

Julian Cannon appeals a judgment convicting him of two counts of third-degree sexual assault as a repeater. He argues: (1) the circuit court improperly exercised its discretion when it allowed admission of other acts evidence; and (2) the circuit court denied Cannon representation by

counsel of his choice and his right of self-representation. We reject these arguments and affirm the judgment.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jamal Thams

Case No.: 2016AP192-CR

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

Focus: Sentencing – Excessive Sentence

Jamal Thames appeals from an amended judgment convicting him of false imprisonment with domestic abuse and repeater enhancers and ordering restitution and from an order denying his postconviction motion challenging his sentence and restitution order. He argues that his near-maximum sentence is unduly harsh and resulted from the trial court’s improper focus on stale and “confused” facts and that the ordered restitution is excessive, as some of it stems from a preexisting condition of the victim unrelated to the instant offense. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Quacey L. Jones

Case No.: 2015AP370-CR

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

Focus: Ineffective Assistance of Counsel

Quacey Jones appeals judgments convicting him of six counts endangering safety by reckless use of a firearm, five counts of recklessly endangering safety, and one count each of battery and obstructing an officer. He also appeals an order denying his postconviction motion in which he

alleged ineffective assistance of trial counsel. He argues: (1) his trial counsel was ineffective for failing to request severance of the battery count from the other charges and for failing to present evidence of a deal for sentencing considerations between the State and two of its witnesses; (2) the circuit court erred by excluding evidence that the battery victim sold heroin; (3) the State misled or confused the jury by presenting inconclusive DNA evidence; and (4) he is entitled to a new trial in the interest of justice. We reject these arguments and affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. David H. Kroubetz

Case No.: 2015AP449-CR

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

Focus: Video Playback in Court

David Kroubetz appeals a judgment of conviction for one count of repeated sexual assault of the same child at least three times, in violation of WIS. STAT. § 948.025(1)(d).  Kroubetz raises four arguments on appeal, all of which relate to WIS. STAT. § 908.08 and the use in this case of an audiovisual recording of the statements of the child witness/victim. We affirm.

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WI Court of Appeals – District III

Case Name: Universal Investment Corporation v. Stephens Partnership et al

Case No.: 2015AP2316

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

Focus: Summary Judgment

Stephens Partnership and Sandra Stephen Baille (collectively “Stephens”) appeal a summary judgment for money damages entered against them and in favor of Universal Investment Corporation (Universal). We conclude Universal failed to establish a prima facie case for summary judgment and, therefore, we reverse and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joshua D. Winberg

Case No.: 2016AP108-CR

Officials: Seidl, J.

Focus: Motion to Suppress – OWI

The State appeals a circuit court order granting a motion to suppress evidence obtained as the result of a traffic stop of a vehicle driven by Joshua Winberg. As a result of evidence obtained after the stop, Winberg was arrested for operating while intoxicated, second offense; operating with a prohibited alcohol concentration, second offense; possession of tetrahydrocannabinols; and possession of drug paraphernalia. In a previous appeal, we concluded the circuit court erroneously suppressed evidence when it held the initial stop of Winberg’s vehicle was made without reasonable suspicion. See State v. Winberg (Winberg I), No. 2013AP2661-CR, unpublished slip op. (WI App May 28, 2014). We remanded the matter for the circuit court to determine whether reasonable suspicion justified extending the stop once the officer made initial contact with Winberg. In this second appeal, we now conclude that it was reasonable to suspect Winberg was under the influence of an intoxicant, allowing for an extended seizure and further investigation into operating a vehicle while intoxicated. Accordingly, we again reverse the suppression order and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: Judith Marie Genz v. Thomas H. Genz

Case No.: 2016AP315

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

Focus: Marital Property Agreement – Division of Property

Thomas Genz appeals that portion of a divorce judgment awarding his former spouse, Judith Genz, the parties’ primary residence. Thomas argues a May 2008 deed unambiguously amended the parties’ marital property agreement, granting each party an undivided one-half interest in the home. We disagree and affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jimmie C. Johnson

Case No.: 2015AP1233-CR; 2015AP2260-CR

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

Focus: Probable Cause

immie C. Johnson appeals from judgments of conviction for two counts of possession with intent to deliver and bail jumping and an order denying his postconviction motion. Johnson argues that police did not have probable cause to stop his vehicle and arrest him. We conclude that based on a citizen informant’s tip and subsequent police investigation, there was probable cause to arrest Johnson for possession of heroin. We affirm

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WI Court of Appeals – District IV

Case Name: Dennis Winchell et al v. Eric Perschke et al

Case No.: 2014AP2787

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

Focus: Adverse Possession

This appeal arises out of a claim of title to a 15- by 290.4-foot area of land (“disputed area”) by adverse possession brought by Dennis and Sheryl Winchell against Caroline Perschke and her brother Eric Perschke. The disputed area is on the westernmost part of the Perschkes’ lot, and

it abuts the eastern border of the Winchells’ lot. This appeal also involves the Perschkes’ counterclaim1 seeking a declaration of interest in the disputed area in their favor, and alleging that the Winchells trespassed on the disputed area and caused damage to the Perschkes. The Winchells appeal the circuit court’s determination that they failed to show that they adversely possessed the disputed area for twenty continuous years, one of the requirements that must be met to obtain title by adverse possession under WIS. STAT. § 893.25 (2015-16).2 The Winchells also appeal the court’s award of nominal and restorative damages related to the declaration of ownership and the trespass determination We conclude, applying the presumption in favor of the Perschkes and placing the burden on the Winchells to present “clear and positive” evidence that they adversely possessed the disputed area, that the Winchells failed to show that they adversely possessed the disputed area for the requisite twenty continuous years, because the only date the Winchells use to try to define a twenty-year period of adverse possession of the disputed area fell during a period of permissive use. We also affirm the court’s damage awards. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Deutsche Bank National Trust Co., v. Diane M. Pauk

Case No.: 2015AP271

Officials: Lundsten, Sherman and Blanchard, JJ

Focus: Foreclosure

This is a mortgage foreclosure case that we have seen before. See Deutsche Bank Nat’l Trust Co. v. Pauk, No. 2010AP1583 unpublished slip op. (WI App May 31, 2012) (“Pauk I”). In the instant appeal, Diane Pauk argues that her mortgage lender’s July 2008 breach of the mortgage contract entitled her to a combination of relief that she labels “rescission.” As we shall see, however, what Pauk labels as “rescission” instead appears to be a combination of relief that is not rescission. To the extent Pauk makes a true request for rescission, she raises it too late, in her reply brief. To the extent Pauk’s request is for other relief, Pauk fails to show that the circuit court erred in denying that relief. Accordingly, we affirm

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WI Court of Appeals – District II

Case Name: Dr. Ramananda Shetty v. Dr. Ganesh Pulla

Case No.: 2015AP2203

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

Focus: Property Damage – Sufficiency of Evidence

Dr. Ganesh Pulla tore down a fence erected by his neighbor, Dr. Ramananda Shetty. Shetty sued Pulla seeking damages for destruction of the fence along with exemplary damages under WIS. STAT. § 895.446(3) (2013-14). Shetty prevailed in the trial to the circuit court on his property damage claim. The court dismissed Pulla’s counterclaim for damage to his pool drain pipe and other damages under § 895.446. We conclude that the evidence was sufficient and affirm the judgment awarding Shetty damages under § 895.446(3)

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mark. W. Nordrum

Case No.: 2015AP1997-CR

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Sentencing

A jury found Mark W. Nordrum guilty of one count of causing great bodily harm by operation of a vehicle while under the influence of an intoxicant; one count of causing bodily harm by operation of a vehicle while under the influence of an intoxicant; one count of causing great

bodily harm by the negligent operation of a vehicle; and one count of causing bodily harm by the negligent operation of a vehicle. See WIS. STAT. §§ 940.25(1)(a); 346.63(2)(a)1. and 346.65(3m); 346.62(4) and 346.65(5); and 346.62(3) and 346.65(3) (2015-16). The court imposed a sentence totaling seven years and six months of initial confinement and four years of extended supervision. The court denied Nordrum’s postconviction motion. Nordrum appeals and we affirm.

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WI Court of Appeals – District IV

Case Name: City of Watertown v. Heather A. Moore

Case No.: 2016AP290

Officials: Blanchard, J.

Focus: Ordinance Violation Costs – Compliance with Court Order

Heather Moore, representing herself, appeals circuit court orders (1) finding her in contempt for failure to comply with a court order requiring her to reimburse the City of Watertown for costs generated during litigation over an ordinance violation, and (2) imposing remedial sanctions to encourage her compliance with the court order. I affirm for the following reasons.

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WI Court of Appeals – District IV

Case Name: Sanimax USA LLC v. Village of DeForest Board of Zoning Appeals

Case No.: 2016AP535

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Zoning

This case involves a challenge to a zoning administrator’s decision denying approval of reconstruction and expansion by Sanimax USA LLC, based on the administrator’s interpretation of a local zoning ordinance. After the Village of DeForest Board of Zoning Appeals affirmed the

zoning administrator’s decision, Sanimax successfully challenged the Board’s decision in the circuit court. The Village now appeals the circuit court’s decision. We affirm the circuit court

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WI Court of Appeals – District IV

Case Name: Iowa County v. J.L.R

Case No.: 2016AP1459

Officials: Lundsten, J.L.R

Focus: CH. 51 Commitment

J.L.R. appeals the circuit court’s order for involuntary Chapter 51 commitment. J.L.R.’s sole challenge here relates to the commitment element requiring proof of dangerousness. Specifically, J.L.R. argues that the petitioner, Iowa County, failed to prove by clear and convincing evidence that J.L.R. was dangerous to herself or others within the meaning of WIS. STAT. § 51.20(1)(a)2. I disagree, and therefore affirm the commitment order.

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Antonio Robledo-Soto v. Loretta E. Lynch

Case No.: 16-2954

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

Focus: Immigration – Deportation – Removal Proceedings

Robledo‐Soto, the petitioner, a Mexican citizen facing removal (deportation) to Mexico, sought to postpone his removal proceeding so that he could expunge a drunk‐driving conviction and if he succeeded in doing that try to persuade the Department of Homeland Security to drop its efforts to seek his removal. The Department’s Immigration and Customs Enforcement division (ICE) prosecutes removal cases (technically removal casesare civil, realistically they are closer to being criminal); and if ICE decides not to prosecute, the alien goes scot‐free. Al‐ though Robledo‐Soto’s drunk‐driving conviction had not been the basis for the Department’s seeking to remove him— the basis was that he’d entered the United States without being authorized to do so, see 8 U.S.C. § 1182(a)(6)(A)(i)—it did make him a priority for removal, and he hoped that if the conviction was expunged from his record he could convince the Department to exercise its prosecutorial discretion not to seek his removal. For what is true is that in recognition of the limited resources of most government agencies, the agencies are authorized to decide “whether agency re‐ sources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s over‐ all policies, and, indeed, whether the agency has enough re‐ sources to undertake the action at all.” Heckler v. Chaney, 470 U.S. 821, 831 (1985); see also Arizona v. United States, 132 S. Ct. 2492, 2499 (2012); Shoba Sivaprasad Wadhia, “The History of Prosecutorial Discretion in Immigration Law,” 64 American University Law Review 1285, 1291–93 (2015).

Petition dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Melvin R. Thomas

Case No.: 15-2691

Officials: POSNER, RIPPLE, and ROVNER, Circuit Judges

Focus: Sufficiency of Evidence – Sentence Enhancement

Melvin Thomas was indicted by a grand jury on one count of conspiracy to possess, with intent to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846; and two counts of possessing, with intent to distribute, a mixture or substance containing heroin, in violation of 21 U.S.C. § 841(a)(1). He pleaded not guilty, and the case proceeded to trial. At the end of the Government’s case, Mr. Thomas moved for a judgment of acquittal. The district court denied the motion. A jury later found Mr. Thomas guilty of the charged offenses, and the court subsequently sentenced him to 216 months’ imprisonment. Mr. Thomas timely appealed. He now challenges the sufficiency of the evidence to support his conspiracy conviction. He also maintains that the district court erred in imposing a sentencing enhancement for maintaining a drug house. We conclude that there is sufficient evidence to sustain the conspiracy charge and that the evidence supports the district court’s imposition of the sentencing enhancement. Accordingly, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Scott Allin v. City of Springfield, et al.

Case No.: 16-1155

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

Focus: 4^th Amendment violation – Qualified Immunity

Plaintiff-appellee, Scott Allin, brought this action against Patricia Baskett, Sergeant Jeff Barr of the Springfield Police Department, and the City of Springfield, Illinois, raising both 42 U.S.C. § 1983 and state law claims. Allin asserts that his Fourth Amendment rights were violated when Baskett, with Barr in attendance, came to his residence to gather her property, and, after a dispute about the ownership of a motorcycle, Barr announced he would not prevent her from taking it. Barr filed a motion for summary judgment on Allin’s § 1983 claims, contending that he was entitled to qualified immunity. The district court denied his motion. We reverse and remand.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: John Baugh v. Cuprum S.A. de C.V.

Case No.: 16-1106

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

John Baugh fell off a ladder while replacing gutter screws and suffered a traumatic brain injury. He sued the ladder’s manufacturer, Cuprum, alleging that the ladder had unexpectedly collapsed and caused him to fall because it had been defectively designed. At the conclusion of trial, a jury, finding in Baugh’s favor, awarded him over $11 million in damages. Following the verdict, Cuprum filed a motion for a new trial and for judgment as a matter of law, but the district judge denied it. On appeal, Cuprum contends that this denial was improper. Cuprum maintains that it was entitled to a new trial primarily because the district judge erroneously permitted two of Baugh’s experts to testify about critical issues. But both experts’ methodologies were adequate, and Cuprum’s various complaints affected the weight of the experts’ testimony rather than its admissibility. In addition, Cuprum contends that it was entitled to judgment as a matter of law because Baugh had failed to prove that the ladder contained an unreasonably dangerous condition and that this condition was the most probable cause of the accident. When viewing the evidence in the light most favorable to Baugh, however, we conclude that a reasonable jury could have found in Baugh’s favor. Baugh supplied sufficient evidence demonstrating that a feasible alternative existed, and that the accident was more likely attributable to the ladder’s original defective design than to an improper use of the ladder. So we affirm the district court’s judgment in Baugh’s favor.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Stephen H. Perron et al v. J.P. Morgan Chase Bank, N.A.

Case No.: 15-2206

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

Focus: RESPA Compliance

Stephen Perron and Christine Jackson owned their home in Indianapolis subject to a note and mortgage serviced by J.P. Morgan Chase Bank. In 2012 the couple divorced, ending their 25-year marriage. They blame Chase for contributing to the collapse of their marriage by failing to comply with its obligations under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601–2617. RESPA requires mortgage servicers to correct account errors and disclose account information when a borrower sends a written request for information. In 2011 Perron and Jackson sent two such letters accusing Chase of erroneously paying the wrong homeowner’s insurer using $1,422 from their escrow account. The mistake was their own fault; they had switched insurers without telling Chase. When the bank learned of the change, it promptly paid the new insurer and informed the couple that their old insurer would send a refund check. The bank also told them to forward the refund check in order to replenish the depleted escrow. They didn’t. When the refund came, they pocketed the money instead. So the bank adjusted their monthly mortgage payment to make up the shortfall. When the couple refused to pay the higher amount, the mortgage went into default. Instead of curing, they sent Chase two letters requesting information under RESPA and demanding that the bank reimburse their escrow. In response Chase sent a complete account history, including a detailed escrow statement. The couple then sued Chase claiming that its response was inadequate under RESPA and caused more than $300,000 in damages—including the loss of their marriage. They tacked on a claim for breach of the implied covenant of good faith and fair dealing. The district judge entered summary judgment for Chase.

We affirm. Chase’s response almost perfectly complied with its RESPA duties. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim. Nor did Chase breach the duty of good faith and fair dealing, assuming that Indiana would recognize the implied covenant in this context.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jose Alberto Rivera v. Loretta E. Lynch

Case No.: 16-3225

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

Focus: Immigration – Removal Proceedings

Jose Alberto Rivera, a 58‐year‐old citizen of El Salvador who has resided unlawfully in the United States for the last 35 years because he immigrated illegally and has never adjusted his status to that of a citizen or lawful permanent resident, petitions us for review of an order of the Board of Immigration Appeals upholding an immigration judge’s denial to Rivera of asylum, withholding of removal, or relief under the Convention Against Torture, and affirming the immigration judge’s issuance of an order removing (deporting) Rivera from the United States to El Salvador.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Raymond E. King v. Steven M. Newbold, et al

Case No.: 15-1302

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

Focus: Defect in Jurisdiction

A defect in appellate jurisdiction prevents us from reaching the merits of this appeal. The threshold jurisdictional question is simple: Did the district court abuse its discretion in granting an untimely motion for a Rule 54(b) judgment? Our precedent is clear: An untimely Rule 54(b) motion may be granted only if there is a showing of extreme hardship. Because there was no showing of hardship—let alone extreme hardship—we dismiss the appeal for lack of appellate jurisdiction.

Appeal Dismissed

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7^th Circuit Court of Appeals

Case Name: Jennifer Dzik v. Bayer Corporation, et al

Case No.: 16-1333

Officials: BAUER, FLAUM, and KANNE, Circuit Judges

Focus: Case Dismissal

Jennifer Dzik challenges the dismissal of her personal‐injury suit after the law firm she retained (which continues to represent her in this appeal) ignored a legitimate discovery request for more than a year, flouted the requirements of a case‐management order, and failed to respond to a motion to dismiss. Given these lapses, we conclude that the district court acted well within its discretion in dismissing the action.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robert H. Tilden v. Commissioner of Internal Revenue

Case No.: 15-3838

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

Focus: Court Error – Tax Assessment

Taxpayers living in the United States have 90 days to file a petition asking the Tax Court to review a notice of deficiency sent by the Commissioner of Internal Revenue. 26 U.S.C. §6213(a). Robert Tilden got such a notice covering his tax years 2005, 2010, 2011, and 2012. The last day to seek review was April 21, 2015. The Tax Court received Tilden’s petition on April 29, 2015, and dismissed it as untimely. The Commissioner has confessed error—properly so, we conclude.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Celeste David v. Board of Trustees of Community College District No. 508

Case No.: 15-2132

Officials: FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.

Focus: Title VII

Celeste David, an African-American woman over the age of forty, was an employee of the City Colleges of Chicago (“CCC”) from 1980 until 2012. She announced in August 2011 that she planned to retire in June of the following year. After her announcement, she requested a change in title and an increase in salary because she was performing additional responsibilities related to the implementation of a software system; she was not awarded either. Following her retirement, her job duties were performed by Christopher Reyes, an Asian man under the age of forty, who was paid substantially more than Ms. David. Ms. David subsequently brought this action alleging that she was denied a pay increase on the basis of her race, sex, and age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Equal Pay Act, 29 U.S.C. § 206(d). The district court granted summary judgment to CCC. Because we believe that the record, assessed in its entirety, does not contain sufficient evidence to permit a verdict for Ms. David on any of the counts, we now affirm the judgment of the district court.

Affirmed

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