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Weekly Case Digests — April 17-21, 2017

By: WISCONSIN LAW JOURNAL STAFF//April 21, 2017//

Weekly Case Digests — April 17-21, 2017

By: WISCONSIN LAW JOURNAL STAFF//April 21, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Thom D. Howell v. Shawn Smith

Case No.: 16-1988

Officials: WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir cuit Judges.

Focus: Qualified Immunity

On May 15, 2011, Officer Shawn Smith of the Highland, Indiana Police Department received a call from his dispatcher, alerting him to a road rage incident involving the discharge of a firearm. He later came upon a car matching the description and conducted a “high‐risk traffic stop.” Officer Smith placed Mr. Howell, the occupant of the car, in handcuffs and detained him until other officers brought the alleged victim to the scene. The victim positively identified Mr. Howell and his vehicle as involved in the road rage incident. Nonetheless, the officers found no weapon and decided to release Mr. Howell. The whole episode lasted approximately thirty minutes. Mr. Howell initially brought this action in state court, alleging that the officers’ treatment had aggravated a preexisting shoulder condition, which became worse with time and required multiple surgeries. Following the transfer of the proceedings from state to federal district court, Officer Smith moved for summary judgment on the ground of qualified immunity. The district court denied the motion, and Officer Smith filed this interlocutory appeal.  We respectfully disagree with the district court’s decision to deny Officer Smith’s immunity claim. In our view, Officer Smith’s decision to place Mr. Howell, then implicated in a serious crime involving the discharge of a weapon, in handcuffs and to keep him in handcuffs until satisfied that he was not a threat did not violate the Fourth Amendment. Therefore, un‐ der the doctrine of qualified immunity, the federal count in the complaint must be dismissed. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Eric T. Alston v. City of Madison, et al

Case No.: 16-1034

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

Focus: §1983 Suit – Due Process

The Madison Police Department established a focused deterrence program to increase surveil‐ lance of repeat violent offenders in Madison. Eric Alston was one of ten repeat violent offenders originally selected for the program.   Alston brought this § 1983 suit against the City of Madison, then Chief of Police Noble Wray, Lieutenant Tom Woodmansee, and three detectives—Cory Nelson, Samantha D. Kellogg, and Paige Valenta—claiming that he was select‐ ed for the program because of his race in violation of his equal‐protection rights. Alston also argued that his inclusion in the program deprived him of liberty without due process of law: he contended that he was stigmatized as a repeat violent offender and subjected to increased surveillance, penal‐ ties, and reporting requirements, and to a biased probation‐ revocation hearing examiner.   While in the program, Alston’s probation officer Brian Reynolds issued an apprehension request when Alston allegedly failed to attend a scheduled appointment. Alston argued that he rescheduled the appointment before he missed it, so the apprehension request violated his Fourth Amendment rights.   The district court granted the defendants’ motion for summary judgment. Because Alston failed to produce evidence that would allow a reasonable trier of fact to conclude that the program had a discriminatory effect or purpose, that Alston’s legal rights were altered by being included in the program, and that the apprehension request issued without reasonable suspicion, we reject Alston’s arguments.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tina M. Ewell v. Eric Toney, et al

Case No.: 16-1009

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

Focus: Qualified Immunity

Tina Ewell was a close friend and confidante of her sister, Eve Nance. So close, in fact, that when Nance shot and killed her husband, Ewell helped Nance dispose of his body. For this, a Wisconsin court convicted Ewell of a number of felony and misdemeanor charges in October 2016. But she is not asking us to second-guess those convictions. Instead, she is complaining about an aspect of the criminal investigation—namely, her initial arrest and detention immediately after the murder. During the period between her release from that detention and her indictment in the criminal case, she filed a civil rights action complaining that the detention was not supported by probable cause but was instead for the impermissible goal of building a case against her. Resolving the case before the state criminal proceeding began, the district court dismissed her suit, and this appeal followed. Because we conclude that Ewell is not entitled to damages on most of her claims, and that the defendants are entitled to qualified immunity on the rest, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Title Industry Assurance Company, R.R.G. v. First American Title Insurance Company, et al

Case No.: 15-3310

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge.

Focus: Duty to Defend

This appeal illustrates a recur‐ ring issue for liability insurers and their insureds: how to determine whether the insurer owes a duty to defend its insured when a claim is first asserted against the insured, before the insurer knows the underlying facts. The insured here was Chicago Abstract Title Agency LLC, which was in the title and escrow services business. In 2008, Chicago Abstract was sued in state court by a title insurance company and two financial firms. Chicago Abstract tendered these lawsuits to its “errors and omissions” liability insurer, plaintiff Title Industry Assurance Company, R.R.G., known in this case as TIAC. TIAC then faced a choice. It could (a) defend Chicago Abstract with‐ out reservation; or (b) defend while reserving its rights; or (c) seek a declaratory judgment concerning the scope of cover‐ age. TIAC could also (d) decline to defend, but only if the al‐ legations in the complaints against Chicago Abstract clearly fell outside the scope of the insurance policy, and then only at its peril. Under Illinois law, when a liability insurer unjustifiably refuses to defend a suit against its insured, the insurer will be estopped from later asserting policy defenses to coverage. TIAC declined to defend the suits. The suits proceeded and years passed without further communications between TIAC and its insured. In 2014, one of the state court plaintiffs, Coastal Funding, LLC, filed a fourth amended complaint against Chicago Abstract. An attorney appointed by TIAC then made a belated appearance in that case. At about the same time, TIAC filed this diversity jurisdiction action in federal court, seeking a declaration that coverage was unavailable primarily because of two exclusions in the policy. Chicago Abstract did not defend in the federal case (the company had been involuntarily dissolved in 2009), but two of the state‐ court plaintiffs—Coastal Funding and First American Title Insurance Company—appeared in this federal case as defend‐ ants. To avoid confusion, we refer to these two firms as the Claimants. TIAC and the Claimants filed cross‐motions for summary judgment. The district court granted judgment to the Claim‐ ants. We affirm. We disagree with portions of the district court opinion, particularly its ruling that TIAC was required to plead legal theories in its federal complaint. That ruling is squarely at odds with settled federal pleading practice. See Johnson v. City of Shelby, 574 U.S. —, 135 S. Ct. 346 (2014) (summarily reversing dismissal of action for failure to identify le‐ gal theory in complaint). Nevertheless, we agree that the un‐ disputed facts show that TIAC breached its duty to defend Chicago Abstract in the underlying litigation. TIAC is there‐ fore estopped from asserting at this very late stage any policy defenses to coverage that might have been available if TIAC had made a different choice when the complaints were first tendered.

Affirmed

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7th Circuit Court of Appeals

Case Name: Richard M. Smego v. Anita Payne, et al

Case No.: 13-2055

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

Focus: Reversible Error – Removal From Courtroom

Near the end of his jury trial on various § 1983 claims, Richard M. Smego was removed from the courtroom. Various law students who had been appointed to act as his counsel remained behind. The jury ultimately returned a verdict in favor of defendants, and one of the law students declined to poll the jury without consulting Smego. Smego now appeals, arguing that the district court committed reversible error in removing him from the courtroom, and that he is entitled to a new trial under our holding in Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013), because he was deprived of his right to poll the jury. For the reasons that follow, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kimberly Aker v. Americollect, Inc., et al

Case No.: 16-3663

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

Focus: FDCPA Violation

Plaintiffs received medical services but did not pay their bills. Their providers referred the debts to defendants, and dunning letters ensued. The debt collectors demanded payment not only of the principal sums but also of 5% per annum interest. Plaintiffs contend that this violates 15 U.S.C. §1692g(a)(1), part of the Fair Debt Collection Practices Act, which says that debt collectors must

specify the amount of the debt, plus other provisions of state and federal law. According to plaintiffs, Wisconsin law provides for interest (in the absence of a contractual provision) only if a debt has been reduced to judgment, and any prejudgment request for interest is forbidden.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Patrick L. Donley

Case No.: 2015AP592

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

Focus: Plea Withdrawal

Patrick Donley appeals an order denying his WIS. STAT. § 974.06 (2015-16) motion for postconviction relief. Donley argues he is entitled to withdraw his plea for three reasons: (1) ineffective assistance of both his trial counsel and postconviction counsel; (2) newly discovered evidence; and (3) in the interest of justice. We disagree and, therefore, affirm the circuit court’s order.

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WI Court of Appeals – District I

Case Name: State of Wisconsinv. Frank V. Blonda

Case No.: 2015AP2431-CR

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

Focus: Ineffective Assistance of Counsel

Frank V. Blonda appeals a judgment of conviction for substantial battery with intent to do bodily harm in violation of WIS. STAT. § 940.19(2)(2015-16) and disorderly conduct in violation of WIS. STAT. § 947.01(1), with both crimes being subject to the domestic abuse enhancer of WIS. STAT. § 968.075(1)(a), and the order denying his motion for postconviction relief. Blonda sought post-conviction relief, seeking a new trial on the grounds that: (1) prior to trial the State failed to disclose exculpatory Brady evidence of statements that the victim, M.L., made—the first an oral statement to a victim advocate from the district attorney’s office victim advocate unit, and the second, her own subsequently written victim impact statement ; (2) his trial counsel was ineffective in not impeaching M.L.’s hearsay statements with the two statements referenced above and statements she made to others; and, (3) the real controversy was not tried. Alternatively, Blonda asserts that this court should remand this case for an evidentiary hearing on his postconviction motion. The trial court rejected Blonda’s arguments concluding that no prejudice was shown. Both sides concede a Brady violation and we cannot say on this record that there was no prejudice to Blonda, especially given that trial counsel did not have the victim’s written statement recanting any wrongdoing by Blonda. Accordingly, we reverse and remand for a new trial based on the State’s failure to disclose M.L.’s two recanting statements in a timely manner. This appeal followed. We disagree with the trial court’s conclusion that no prejudice was shown.

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WI Court of Appeals – District I

Case Name: American Family Mutual Insurance Company, et al v. Cintas Corporation No.2 at al

Case No.: 2015AP2457

Officials: Kessler, Dugan and Brash, JJ.

Focus: Duty to Defend – Indemnity

Cintas Corporation No. 2 (“Cintas”) and The Travelers Indemnity Company of Connecticut (“Travelers”) appeal from the trial court’s decision granting summary judgment in favor of Becker Property Services LLC (“Becker”), dismissing all of Cintas and Travelers’ claims against Becker. Becker cross-appeals the trial court’s ruling that if Ohio law applied under the contract, Becker would have a duty to defend and indemnify Cintas for the claims against it in the underlying action. The issue before this court is whether the contract between Cintas and Becker obligates Becker to defend and indemnify Cintas for Cintas’ alleged negligent acts and breach of implied warranty. Additionally, the parties dispute the enforceability, under Wisconsin law, of the contract’s choice of law provision designating Ohio law as governing the rights and obligations of the parties. We find that under Wisconsin law, Becker has a duty to defend and indemnify Cintas in the underlying action alleging negligence and breach of implied warranty. We conclude that there is no need to answer the choice of law question because we find that, even applying Wisconsin law as argued by Becker, Becker has a duty under the contract to defend and indemnify Cintas and Travelers in the underlying action

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WI Court of Appeals – District III

Case Name: Mark R. Samz et al v. Town of Argonne

Case No.: 2016AP267

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

Focus: Declaratory Judgment

Mark Samz, Robert Kevilus and Michael Kegley (collectively, “Samz”) are Town residents engaged in the commercial business of snowplowing. Samz commenced a declaratory judgment action seeking to invalidate Argonne’s resolution, as well as any future resolutions for snow removal services from private drives. Samz alleged no public interest existed for Argonne’s snow removal service from private driveways, “as there are private entities willing and able to perform these duties.” The parties filed competing motions for summary judgment. During the motion hearing, the parties agreed the facts were not in dispute and urged the circuit court to rule on the issues as a matter of law. In its decision, the court noted contracts to remove snow from private drives were specifically authorized by WIS. STAT. § 86.105 (2015-16).  The court also acknowledged that Argonne’s fee for snow removal was such that taxpayer funds were not expended. However, the court concluded Argonne did not provide a public service in removing snow from private driveways. The court stated “you are providing a public service if you can do something that otherwise is not readily available.” The court reasoned private entities were able to provide the service within the Town, and “the [T]own [therefore] isn’t authorized to do it.” The court granted summary judgment in Samz’s favor and invalidated Argonne’s resolution, as well as “any similar drafted resolution thereafter ….” Argonne now appeals.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Christopher Daniel Brown

Case No.: 2016AP369-CR

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

Focus: Ineffective Assistance of Counsel

Christopher Daniel Brown appeals from a judgment of conviction for one count of resisting or obstructing an officer and one count of throwing or discharging bodily fluid at a public safety worker, contrary to WIS. STAT. §§ 946.41(1) and 941.375(2) (2013-14). Brown also appeals from the denial of his postconviction motion. Brown argues that his trial counsel provided ineffective assistance in two ways. He also argues that § 941.375(2) is unconstitutional as applied in this case. We conclude that the trial court did not erroneously exercise its discretion when it denied Brown’s ineffective assistance claims without a hearing, and we decline to address the merits of Brown’s constitutional challenge because it is raised for the first time on appeal. We affirm the judgment and the order.

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WI Court of Appeals – District III

Case Name: Barron County Department of Health and Human Services v. C.K. and M.B-T.

Case No.: 2016AP1378; 2016AP1379; 2016AP1380

Officials: Seidl, J.

Focus: Termination of Parental Rights

C.K. appeals termination of parental rights (TPR) orders to her children, C.R.K., E.K., and K.K.  She raises several arguments involving the grounds phase of the proceedings: (1) she was denied her right to a jury trial when the circuit court answered an element of WIS. STAT. § 48.415(2) without performing a colloquy; (2) her trial counsel was ineffective for failing to argue WIS. STAT. § 48.415(6) is unconstitutional as applied to her; and (3) the court erred in admitting certain testimony at trial. She also requests a new trial in the interests of justice. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John D. Walker

Case No.: 2016AP1434

Officials: Hruz, J.

Focus: Baiting Wild Animals

The State appeals an order dismissing a citation charging John Walker with violating state anti-baiting regulations. We affirm.

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WI Court of Appeals – District I

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

Case No.: 2016AP1827

Officials: Dugan, J.

Focus: Termination of Parental Rights – Ineffective Assistance of Counsel

D.W. appeals the trial court’s order entered April 15, 2016, terminating his parental rights to his son, A.W., and the Machner court order entered on January 6, 2017, denying his postdispositional motion that alleged that trial counsel was ineffective.

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WI Court of Appeals – District II

Case Name: Renee E. Hoefler v. Robert A. Doherty

Case No.: 2015AP2185

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

Focus: Divorce – Maintenance Modification

Renee E. Hoefler appeals pro se from a postdivorce order dismissing her motion seeking to modify maintenance and to find Robert A. Doherty in contempt. Because Renee failed to state a cognizable contempt claim or a substantial change in circumstances warranting a maintenance modification, we affirm.

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WI Court of Appeals – District IV

Case Name: Golden Sands Diary, LLC et al v. Town of Saratoga, et al

Case No.: 2015AP1258

Officials: Higginbotham, J.

Focus: Building Permit – Vested Rights

This is an appeal of the second case arising out of a dispute between the Town of Saratoga and Golden Sands Dairy, LLC. The dispute involves Golden Sands’ efforts to develop and operate what it identifies as an “integrated dairy farm” on approximately 6388 acres of land located in the Town. The primary issue in the first appeal (Golden Sands I) related to whether Golden Sands had acquired vested rights to a building permit allowing Golden Sands to construct seven farm buildings. Golden Sands Dairy, LLC v. Fuehrer, No. 2013AP1468, unpublished slip op. ¶1 (WI App July 24, 2014). We concluded in Golden Sands I that Golden Sands met all of the requisite criteria to obtain a vested right to a building permit issued for the construction of the seven farm buildings and ordered the Town to issue a building permit to Golden Sands. Id., Here, the Town appeals a later decision of the circuit court in the second case, granting summary judgment to Golden Sands. The court declared that the vested rights Golden Sands acquired to a building permit extended to Golden Sands’ right to a nonconforming use exception to new use zoning. More specifically, the court declared that Golden Sands had the right to use of approximately 6388 acres of land for agricultural purposes associated with the buildings that were the subject of its building application, even though such use conflicted with zoning enacted by the Town after Golden Sands filed its building permit application. We agree with the Town that Golden Sands has not established a vested right to the nonconforming agricultural use of 6388 acres. Accordingly, we reverse the summary judgment order entered in favor of Golden Sands and remand with directions to enter summary judgment in favor of the Town.

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WI Supreme Court Digests

WI Supreme Court

Case Name: McKee Family I, LLC et al v. City of Fitchburg

Case No.: 2017 WI 34

Focus: Vested Rights – Land Development

Planned development district zoning classification does not create a contractual expectation upon which a developer may rely

“We conclude that McKee did not have a vested right in developing the property under the planned development district zoning classification because it did not apply for a building permit. Wisconsin follows the bright-line building permit rule that a property owner’s rights do not vest until the developer has submitted an application for a building permit that conforms to the zoning or building code requirements in effect at the time of application. Lake Bluff Hous. Partners v. City of S. Milwaukee, 197 Wis. 2d 157, 172, 540 N.W.2d 189 (1995). Additionally, we determine that a planned development district zoning classification does not create contractual expectations upon which developers may rely. There is a very strong presumption that legislative enactments do not create contractual or vested rights. Dunn v. Milwaukee Cty., 2005 WI App 27, ¶8, 279 Wis. 2d 370, 693 N.W.2d 82 (citation omitted). Further, there must be a clear indication that a legislative body intends to bind itself contractually in order to overcome the presumption. Nat’l R.R. Passenger Corp. v. Atchinson, Topeka and Santa Fe Ry. Co., 470 U.S. 451, 465-66 (1985). McKee failed to overcome the presumption that Fitchburg did not intend to enter into a binding contract when it enacted an ordinance approving the zoning classification. Finally, we do not need to reach McKee’s constitutional takings claim because McKee conditioned its takings claim on its claim for vested rights. Because McKee has no vested right in a planned development district zoning classification, it cannot succeed on its asserted contingent takings claim.”

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Garza and Julie L. Garza et al v. American Transmission Company, LLC, et al

Case No.: 2017 WI 35

Focus: Easement

Under deed of easement, respondent has right to enter appellant property to trim and remove trees.

“ATC, on the other hand, argues that to interpret the language “comprising wood pole structures” so as to proscribe other materials from being used in the structure is to read that phrase out of context and preclude evaluation of the 1969 easement as a whole. ATC further argues that replacing the wood poles with steel poles is permitted under the implied term contained in every easement that the dominant estate holder may do what is reasonably necessary to continue enjoying the right to use granted under a deed of easement. Thus, ATC argues the change from wood poles to steel poles did not invalidate the 1969 easement and, with the 1969 easement still in place, ATC has the right to enter the Garzas’ property to trim and remove the trees threatening or endangering the operation of the transmission line.”

Reversed

Concur:

Dissent:

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WI Supreme Court

Case Name: Taft Parsons, Jr. et al v. Associated Banc-Corp, et al

Case No.: 2017 WI 37

Focus: Jury Demand

“There are two basic issues on this appeal. First, we must examine whether the pre-litigation jury waiver provision in the contract between the Parsons and Associated is enforceable, either with or without proof extrinsic to the terms of the contract that the Parsons knowingly and voluntarily agreed to this waiver. Second, if we conclude that the provision is enforceable, we must examine whether Associated’s motion to strike the Parsons’ jury demand was untimely. We conclude that the pre-litigation jury waiver provision in the contract between the Parsons and Associated is enforceable and that Associated does not need to offer additional proof that the Parsons knowingly and voluntarily agreed to this waiver. We further conclude that Associated’s motion to strike the Parsons’ jury demand was not untimely. Consequently, we reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings consistent with this opinion.”

Reversed and remanded

Concur:

Dissent: Bradley, Abrahamson

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