By: WISCONSIN LAW JOURNAL STAFF//June 16, 2017//
7th Circuit Court of Appeals
Case Name: Charles B. Douglas v. United States of America
Case No.: 17-1104
Officials: EASTERBROOK, SYKES, and HAMILTON, Circuit Judges
Focus: Sentencing – Sentence Reduction
Charles Douglas pleaded guilty to possessing a firearm, which his earlier felony convictions made it illegal for him to have. 18 U.S.C. §922(g)(1). He was sentenced to 110 months after the district judge found that at least 3 of Douglas’s 16 other felony convictions were “violent felonies” as defined by the Armed Career Criminal Act, 18 U.S.C. §924(e). After the Supreme Court held the residual clause of §924(e)(2)(B)(ii) unconstitutionally vague, Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), Douglas filed a motion under 28 U.S.C. §2255, asking the district court to reduce his sentence. But the judge concluded that Douglas is properly classified as an armed career criminal.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Daniel Montez
Case No.: 16-1188
Officials: POSNER, MANION, and HAMILTON, Circuit Judges.
Focus: Sentencing – Penalty Enhanceer
Daniel Montez appeals his conviction and sentence for possession with intent to distribute cocaine. He principally argues that the district court erred in ad‐ mitting a wiretapped conversation he had with an alleged supplier. He also asserts that the district court improperly applied the Sentencing Guidelines’ career offender enhancement. Finding his arguments unpersuasive, we affirm the judgment of the district court.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Shanin Moshiri
Case No.: 16-1126
Officials: WOOD, Chief Judge, BAUER, Circuit Judge, and SHADID, * District Judge.
Focus: Sufficiency of Evidence
On July 2, 2015, after a bench trial, Doctor Shanin Moshiri was convicted on one count of receiving illegal remuneration in exchange for referring patients to Sacred Heart Hospital in Chicago, Illinois, in violation of 42 U.S.C. § 1320a–7b(b) (Anti-Kickback Statute). On this appeal, Moshiri challenges the sufficiency of the government’s evidence and the district court’s admission of certain expert testimony. For the following reasons, we affirm the conviction.
Affirmed
7th Circuit Court of Appeals
Case Name: Nathan Ward v. United States of America
Case No.: 15-2599
Officials: BAUER, SYKES, and HAMILTON, Circuit Judges.
Focus: Ineffective Assistance of Counsel
Petitioner Nathan Ward and his codefendants were convicted on several counts arising out of a stash-house robbery sting. They challenged their convictions on direct appeal; Ward’s conviction was affirmed. Ward filed a petition under 28 U.S.C. § 2255, seeking relief on several grounds, including ineffective assistance of counsel. The district court denied the petition without holding a hearing. On appeal, Ward focuses on one issue: whether he received ineffective assistance of counsel when his trial counsel failed to raise an entrapment defense and object to the government’s motion in limine seeking to preclude that defense. We affirm.
Affirmed
7th Circuit Court of Appeals
Case Name: Design Basics, LLC, et al v. Lexington Homes, Inc., et al
Case No.: 16-3817
Officials: WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges
Focus: Copyright Infringement
This copyright suit shows the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single‐family homes. The case also shows the challenge in administering intellectual property law to discourage so‐called intellectual property “trolls” while protecting genuine creativity. Plaintiffs Design Basics, LLC; Prime Designs, Inc.; and Plan Pro, Inc. (collectively, “Design Basics”) and their affiliates claim rights to some 2700 home designs. They sued defendants Lexington Homes, Inc. and related parties (collectively, “Lexington”) for copyright infringement, contending that Lexington built homes that infringed four of Design Basics’ designs. The district court granted summary judgment to Lexington, finding no evidence that Lexington ever had access to De‐ sign Basics’ home plans. Without access, the court reasoned, there could be no copying and no copyright infringement. We affirm. We agree with the district court that Design Basics has no evidence of access. We also conclude that no reasonable jury could find that Lexington’s accused plans bear substantial similarities to any original material in Design Basics’ plans.
Affirmed
7th Circuit Court of Appeals
Case Name: Janet Pecher, et al v. Owens-Illinois, Inc., et al
Case No.: 16-1799, 16-2376, 16-2377, 16-2378, 16-2379, 16-2380
Officials: FLAUM, MANION, and KANNE, Circuit Judges.
Focus: Worker’s Compensation Act – On The Job Injury
The six cases consolidated on appeal all involve claims related to asbestos exposure over
thirty years ago at a single Marshfield, Wisconsin plant which produced fire doors. While complex on the surface, and involving bulky appendices and appeals of separate orders, the thrust of the appeal is quite simple: the claims at issue are covered by the exclusive remedy provisions of Wisconsin’s Worker’s Compensation Act, Wis. Stat. § 102.03(2). Plaintiffs attempt to get around this bar by recharacterizing their injuries as occurring off the job. These arguments are unavailing. In addition, the claims against Owen‐Illinois claims are frivolous. As a result, we affirm the multiple rulings of the district court dismissing the claims against both defendants on appeal and denying reconsideration.
Affirmed
7th Circuit Court of Appeals
Case Name: Gregory L. Cripe, et al v. Henkel Corporation, et al
Case No.: 17-1231
Officials: FLAUM, EASTERBROOK, and KANNE, Circuit Judges.
Focus: Abuse of Discretion
While working on his employer’s roof, Gregory Cripe was exposed to fumes from PUR‐FECT LOK® 834A, a glue made by Henkel Corp. and containing methylene diphenyl diisocyanate (MDI). Gregory and his wife Tammy sued Henkel under the diversity jurisdiction, contending that exposure to MDI had caused bothneurological and psychological problems, which could have been prevented if the adhesive had better warnings. (The Cripes also sued National Starch & Chemical Co., whose liability, if any, derives from Henkel’s. We need not mention National Starch again.) Discovery lasted for more than three years, and at its end Henkel moved for summary judgment. It contended that the evidence would not permit a reasonable jury to find that MDI caused Gregory’s ailments—and if MDI did not play a role, then the adequacy of warnings accompanying the glue could not matter. The district court granted this motion, ruling that a toxic‐tort claim under Indiana law depends on ex‐ pert proof of causation, see Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 682 (Ind. App. 2000), and that the Cripes had not produced any expert evidence on that score. They identified only one expert—Patricia Robinson, a specialist in the language of warnings. But she disclaimed any opinion on causation, which is outside her fields of expertise. That left the plaintiffs with nothing, leading to judgment for Henkel. 318 F.R.D. 356 (N.D. Ind. 2017). In the district court, and again on appeal, the Cripes insist that six treating physicians are experts and that their views must be considered. True, they had not been disclosed as experts under Fed. R. Civ. P. 26(a)(2)(A). But the Cripes insisted that Henkel should have gathered from the fact that Robinson attached the physicians’ reports to her own that they would function as experts. The district court was un‐ persuaded, as are we. Litigants should not have to guess who will offer expert testimony; they need knowledge to conduct their own discovery and proffer responsive experts. That’s why failure to comply with Rule 26(a)(2)(A) leads to he exclusion of expert testimony by a witness not identified as an expert. See Fed. R. Civ. P. 37(c)(1) (exclusion unless the failure is “substantially justified or is harmless”); Novak v. Board of Trustees, 777 F.3d 966, 972 (7th Cir. 2015); Hassebrock v. Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016). Attaching the re‐ port of a fact witness, such as a treating physician, to an expert’s report does not turn the fact witness into an expert witness. And the district judge determined that plaintiffs’ omission is neither substantially justified nor harmless. That was not an abuse of discretion.
Affirmed
7th Circuit Court of Appeals
Case Name: Higher Society of Indiana v. Tippecanoe County, Indiana
Case No.: 17-1089
Officials: MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge
Focus: First Amendment violation
The Higher Society of Indiana, a non-profit advocating for the legalization of marijuana, wants to hold a rally on the steps of the Tippecanoe County Courthouse in Lafayette, Indiana. Under County policy, the group was required to get its event sponsored by the County Board of Commissioners before it could take place on the grounds. Since the Commissioners didn’t want to sponsor Higher Society’s event, the County denied the group permission. The organization successfully sought a preliminary injunction in the district court, and the County appeals. For the reasons stated below, we agree with the district court’s thorough opinion that the County’s policy likely violates the First Amendment. Therefore, we affirm the grant of the preliminary injunction.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Francisco Fuentes
Case No.: 16-3504
Officials: BAUER, POSNER, and SYKES, Circuit Judges.
Focus: Sentencing
On January 28, 2016, Francisco Fuentes was charged with one count of illegal reentry by a deported alien in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pleaded guilty on June 7, 2016, pursuant to a written plea agreement. On September 7, 2016, he was sentenced to 24 months’ imprisonment. Fuentes appeals his sentence, arguing that the district court erred in its Sentencing Guidelines calculation. We find that Fuentes waived any such argument, and therefore, we affirm the sentence.
Affirmed
7th Circuit Court of Appeals
Case Name: Cirilo G. Garcia v. Jefferson B. Sessions III
Case No.: 16-3234
Officials: MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge
Focus: Asylum
Petitioner Cirilo Garcia is a native citizen of Honduras currently subject to a reinstated order of removal. Federal regulations say that aliens in his position have no right to apply for asylum. Garcia argues that these regulations are inconsistent with the general asylum statute, 8 U.S.C. § 1158(a)(1). However, because asylum is a form of discretionary relief, he lacks standing to challenge the regulations prohibiting him from applying for it. Therefore, we dis‐ miss the petition for lack of jurisdiction.
Petition Dismissed
7th Circuit Court of Appeals
Case Name: John Lee Futrell v. United States of America
Case No.: 16-3079
Officials: POSNER, RIPPLE, and SYKES, Circuit Judges.
Focus: Federal Tort Claims Act
The plaintiff began a military career in 1983, serving variously in the Indiana National Guard, the United States Army, and finally the United States Army Reserve, from which he retired, ending his military career, in 2014, by which time he had reached the rank of Captain and served in combat in Iraq. Between July 2007 and October 2011 he had sustained several injuries and, more ominously, had been diagnosed with Type 2 (adult‐onset) diabetes. His blood‐glucose levels had risen so high as to sow doubt about his ability to continue performing his military duties. And sure enough in October he was released from active duty and placed on reserve status while a Physical Evaluation Board evaluated his fitness for continued military service. When finally retired from the army on grounds of physical disability in November 2014, Futrell became eligible to receive a monthly pension from the government. And had his medical paperwork gone through he would have received in addition incapacitation payments to cover the gap between his release from duty and his retirement. But as a result of some mix‐up he received no money from the government between December 2011 and January 2013, a deprivation that he claims without contradiction inflicted severe financial and emotional distress on him. In the following month the government did pay him a lump sum that covered the incapacitation payments that he should have received, but the government failed (he claims, again without contradiction) to compensate him for the distress he’d experienced when because of the government’s confusion or in‐ competence he had received no salary. Having thus incurred damages as a result of the government’s negligence in failing to pay him his salary for more than a year, he filed this suit against the United States under the Federal Tort Claims Act, which makes the government subject to tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. (Actually, the claim might better have been interpreted as a contract claim governed by the Tucker Act, 28 U.S.C. § 1346(a)(2), but as neither side has briefed the is‐ sue we’ll not address it.)
Affirmed
7th Circuit Court of Appeals
Case Name: Methodist Health Services Corp. v. OSF Healthcare System
Case No.: 16-3791
Officials: POSNER, MANION, and KANNE, Circuit Judges
Focus: Antitrust
Methodist and Saint Francis are the two largest hospitals in Peoria, Illinois; Saint Francis is considerably larger and more profitable than Methodist. On February 5, 2013, Methodist filed suit against Saint Francis in the federal district court in central Illinois, charging Saint Francis with violating the Sherman Act to the detriment of Methodist, a competitor. The district judge granted summary judgment in favor of Saint Francis. Methodist had pleaded state-law claims as well, which the district judge also rejected; we have nothing to add to the judge’s discussion of those claims, beyond noting that they largely duplicated the Sherman Act claims
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Jose Chagoya-Morales
Case No.: 16-1198
Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges
Focus: Sentencing Guidelines
Jose Chagoya‐Morales was charged with illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4). He entered a conditional plea of guilty; the district court sentenced him to forty‐eight months’ imprisonment. He now contends that the district court should have conducted an evidentiary hearing before denying his motion to suppress information related to his identity and his status as an illegal resident of the United States. Mr. Chagoya‐Morales also challenges two aspects of his sentence: (1) whether the district court correctly increased his offense level by sixteen levels under the “crime of violence” enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii); and (2) whether his forty‐eight month sentence was procedurally sound and substantively reasonable. We affirm the judgment of the district court in all respects. The court correctly denied the motion to suppress; under these circumstances, the Fourth Amendment does not prohibit a police officer from requiring a person to identify him‐ self, nor does it guarantee a defendant the right to conceal who he is during a criminal prosecution. The district court also correctly applied the career offender enhancement be‐ cause Mr. Chagoya‐Morales’s prior Illinois aggravated robbery conviction is a crime of violence under U.S.S.G. § 2L1.2(b). Finally, the imposed sentence is procedurally sound and substantively reasonable. The district court correctly calculated Mr. Chagoya‐Morales’s guidelines range and appropriately justified a downward variance based on the relevant factors under 18 U.S.C. § 3553(a).
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Daniel O. Lockett
Case No.: 15-2753
Officials: WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges
Focus: Sentencing – Voluntary Plea
Appellant Daniel Lockett asks us to decide whether simultaneous possession of two illegal drugs is one crime or two for Double Jeopardy Clause purposes. Lockett was caught in simultaneous possession of cocaine and heroin. He pled guilty to two counts of possession with intent to distribute a controlled substance, and was sentenced on those counts before anyone noticed a potential double jeopardy issue. On appeal he argues that as a result, his plea was unknowing and his sentence violated the Double Jeopardy Clause. Neither point was raised in the district court. Lockett’s failure to raise the double jeopardy objection before pleading guilty waived that challenge, and we review the closely related challenge to the plea itself only for plain error. We find no plain error on that issue and thus affirm Lockett’s convictions and sentence.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Edward J. Davis
Case No.: 16-3735
Officials: BAUER and EASTERBROOK, Circuit Judges, and DEGUILIO, District Judge.
Focus: Sufficiency of Evidence
On May 25, 2016, a jury found Edward James Davis guilty of one count of knowingly transporting and causing to be transported more than 10 images of child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possession of material which contained an image of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 11, 2016, the district court sentenced Davis to 210 months’ imprisonment on each count, to be served concurrently. The court also imposed a $400,000 fine, $2,000 in restitution, a five-year term of supervised release, and a $200 special assessment. Davis brings this appeal challenging the sufficiency of the government’s evidence at trial, as well as the constitutionality and reasonableness of the $400,000 fine.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Loni M. Tepiew
Case No.: 16-2543
Officials: WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
Focus: Motion to Suppress
Loni Tepiew entered a conditional guilty plea to one count of assault resulting in serious bodily injury after she confessed to beating her toddler son in the head with her fist and shoe. On appeal, she contends that because her confession came after a warrantless entry by police into her home, it should have been suppressed. Because we find that the warrantless entry was justified by the emergency aid doctrine, an exception to the Fourth Amendment’s warrant requirement, we find that the district court properly denied her motion to suppress.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Steven Waldrip
Case No.: 16-2294
Officials: WOOD, Chief Judge, and KANNE and ROVNER, Cir‐ cuit Judges
Focus: Sentencing – 8th Amendment
A jury convicted Steven Waldrip of distributing heroin under the Controlled Substances Act, 21 U.S.C. § 841(a)(1). Because death resulted from the use of that heroin, Waldrip faced a twenty‐year mandatory‐ minimum sentence. § 841(b)(1)(C). The district court sentenced him to 280 months. On appeal, Waldrip argues that the government provided insufficient evidence to prove that the heroin was a but‐for cause of the victim’s death, that § 841(b)(1)(C) is unconstitutionally vague, and that his 280‐ month sentence violates the Eighth Amendment’s proportionality requirement. We reject those claims.
Affirmed
7th Circuit Court of Appeals
Case Name: United States of America v. Richard J. Klemis
Case No.: 15-2057
Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges
Focus: Prosecutorial Misconduct – Sufficiency of Evidence
Richard Klemis was in the business of selling heroin in O’Fallon and Belleville, Illinois, two suburban communities in the Metro East area of greater St. Louis. His customer base included teenagers and 18- to 21-year-olds. One of his young customers overdosed on heroin in Klemis’s driveway and nearly died; timely medical intervention saved his life. Nineteen-year-old Tyler McKinney was not so lucky. A regular customer and occasional driver for Klemis, McKinney fatally overdosed on heroin supplied by Klemis. Klemis was indicted on multiple drug charges, including conspiracy to distribute heroin, distribution of heroin to persons under 21, using a minor in a drug operation, and heroin distribution resulting in serious physical injury or death. A jury convicted him on all counts, and the judge imposed a lengthy prison term. Klemis’s main claim on appeal is that the prosecutor made a number of improper and inflammatory statements during closing argument, including a vivid rhetorical flourish assigning Klemis to the innermost circle of hell depicted in Dante’s Inferno. This form of argumentation indeed crossed the line, but it was not prejudicial given the quantity and quality of the evidence against Klemis; the rest of the prosecutor’s closing argument was well within bounds. Klemis’s remaining claims include a challenge to the sufficiency of the evidence on the count relating to McKinney’s death, an argument about hearsay evidence, and a complaint about juror bias. We find no error and affirm.
Affirmed
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Julius Lee Sanders
Case No.: 2014AP2644-CR; 2014AP2645-CR; 2014AP2646-CR
Officials: Brennan, P.J., Kessler and Brash, JJ.
Focus: Sentencing – Voluntary Plea
Julius Lee Sanders appeals from his judgments of conviction on one count of strangulation, contrary to WIS. STAT. § 940.235(1) (2015-16) , one count of felony bail jumping, contrary to WIS. STAT. § 946.49(1)(b), and one count of intimidating a witness, contrary to WIS. STAT. § 940.43(7), stemming from a domestic violence incident with his girlfriend, K.H. He also appeals from the denial of his postconviction motion to withdraw his guilty plea, which was denied without an evidentiary hearing. Sanders argues that his trial counsel was ineffective for failing to investigate possible defenses related to the alleged conduct of K.H., and for failing to inform Sanders that the judge who would sentence him may be different than the judge who accepted his plea. He also argues that his plea was not knowingly and voluntarily entered, and he claims that for these reasons, he is entitled to an evidentiary hearing with regard to his request for a plea withdrawal. In the alternative, Sanders seeks resentencing on the grounds that his trial counsel had a conflict of interest at his sentencing. Sanders’ final claim on appeal is that one of the conditions of his extended supervision, that he is prohibited from having contact with the children he fathered with K.H., is overly broad and not reasonably related to his rehabilitation or the community’s interest. We affirm on all issues.
WI Court of Appeals – District III
Case Name: State of Wisconsin v. Bruce C. Brenizer
Case No.: 2015AP2181
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Sentencing
In 1993, Bruce Brenizer entered guilty pleas to five counts of first-degree intentional homicide. He was subsequently found not guilty by reason of mental disease or defect (NGI) on three of the counts. On the two counts for which Brenizer accepted criminal responsibility, the circuit court imposed consecutive sentences of life imprisonment. On the remaining counts, the court ordered Brenizer committed to the Wisconsin Department of Health and Social Services (DHS) for life. Brenizer resided at the Mendota Mental Health Institute until May 2013, at which point he was transferred to the custody of the Department of Corrections (DOC) at the Dodge Correctional Institution. In 2014, Brenizer filed a motion challenging the transfer, which the circuit court denied. Brenizer argues the circuit court erred by denying his motion because DHS lacked authority to transfer him to the custody of DOC. We agree. The commitment order unambiguously states that Brenizer is to be committed to DHS custody for life with placement in institutional care, unless his commitment is terminated under WIS. STAT. § 971.17(5) (1991-91). As the State concedes, Brenizer’s commitment has not been terminated. Accordingly, DHS lacked authority to transfer Brenizer to DOC custody. State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998), which was decided after Brenizer’s commitment order was entered, does not change this result because it cannot be retroactively applied to Brenizer’s commitment order. We therefore reverse the order denying Brenizer’s motion challenging his transfer to DOC custody. We remand for the circuit court to enter an order granting Brenizer’s motion and directing DOC to return him to the custody of DHS.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Alphonso Hubanks
Case No.: 2015AP1265
Officials: Brennan, P.J., Kessler and Dugan, JJ
Focus: Ineffective Assistance of Counsel
Alphonso Hubanks, pro se, appeals the circuit court orders denying his WIS. STAT. § 974.06 (2015-16) motion without a hearing and denying reconsideration. The postconviction court concluded that Hubanks’ claims were procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and that his allegations were conclusory. We affirm.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Rodney James Hopkins
Case No.: 2015AP2588-CR
Officials: Brennan, P.J., Kessler and Brash, JJ.
Focus: Sentence Modification
Rodney J. Hopkins, pro se, appeals from an order of the circuit court that denied his motion seeking sentence modification based on newly discovered evidence. Hopkins claims that newly discovered evidence supports his self-defense theory. We affirm the circuit court.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Jeffrey Lee Harris
Case No.: 2016AP730
Officials: Brennan, P.J., Brash and Dugan, JJ.
Focus: Motion for Reconsideration
Jeffrey Lee Harris, pro se, appeals an order denying his motion to reconsider an adverse circuit court decision. We conclude that the reconsideration motion raised the same issues as those resolved in the original decision and therefore is not separately appealable. Accordingly, we dismiss the appeal.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Lamont Elliot Moore
Case No.: 2016AP1014-CR
Officials: Brennan, P.J., Kessler and Dugan, JJ.
Focus: Sentence Modification
Lamont Elliot Moore, pro se, appeals a circuit court order denying his claim that a new factor warrants modification of his life sentence. He also appeals an order denying reconsideration. We conclude that Moore has not identified a new factor, and we affirm.
WI Court of Appeals – District I
Case Name: State of Wisconsin v. Lavelle Chambers
Case No.: 2016AP1160
Officials: Brennan, P.J., Brash and Dugan, JJ.
Focus: Sentencing
Lavelle Chambers, pro se, appeals from an order denying his motion “to void the habitual criminality portion of his sentence.” He also appeals from an order denying his motion for reconsideration. We affirm.
WI Court of Appeals – District III
Case Name: State of Wisconsin v. Jeremiah J. Goodpaster
Case No.: 2016AP1648-CR
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Sentence Modification
Jeremiah Goodpaster appeals an order denying his third motion to modify sentences imposed for domestic abuse strangulation and suffocation, domestic abuse intimidation of a victim as a repeater, and causing mental harm to a child as a repeater. He contends the circuit court improperly exercised its discretion by denying the family court authority to decide whether he should have access to his children and instead giving the victim, C.K., and the Department of Corrections sole authority to control his access to the children. Because we conclude the circuit court properly exercised its discretion, we affirm the order.
WI Court of Appeals – District III
Case Name: Taylor County Department of Health and Human Services v. S.A.L. and T.A.V.
Case No.: 2016AP2369; 2016AP2370
Officials: Stark, P.J.
Focus: Termination of Parental Rights
S.A.L. appeals orders terminating her parental rights to her children B.L.V. and A.A.V. She argues she received ineffective assistance during the fact-finding hearing when her trial counsel failed to object during the testimony of two social workers and during the closing argument of the guardian ad litem (GAL). She also argues the circuit court failed to properly exercise its discretion in considering the necessary statutory factors before it entered the orders terminating her parental rights at the dispositional hearing. We reject her arguments and affirm the orders.
WI Court of Appeals – District II
Case Name: Bayland Buildings, Inc. v. Spirit Master Funding VIII, LLC
Case No.: 2016AP1807
Officials: Reilly, P.J., Gundrum and Hagedorn, JJ
Focus: Constructive Notice
This appeal addresses “constructive notice” under Wisconsin’s construction lien law. Bayland Buildings, Inc. (Bayland) appeals the circuit court’s conclusion that Bayland had constructive notice that Siren Saukville, LLC (Siren) sold its entire interest in the property to Spirit Master Funding VIII, LLC (Spirit Master) after construction began. Given the remedial nature of Wisconsin’s construction lien law, we conclude as a matter of law that Siren’s notice to Bayland that it was bringing in an “investor” did not constitute constructive notice that Siren no longer had any ownership interest in the property. We reverse the circuit court’s grant of summary judgment and remand for further proceedings consistent with this decision
Recommended for publication
WI Court of Appeals – District IV
Case Name: Ocwen Loan Servicing, LLC v. Frederick G. Weber, et al
Case No.: 2015AP2276
Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.
Focus: Court Error – Admission of Hearsay Evidence
Frederick Weber appeals a judgment of foreclosure entered by the circuit court in favor of Ocwen Loan Servicing, LLC. On appeal, Weber contends that the circuit court erred by: (1) admitting certain business records into evidence at trial under WIS. STAT. § 908.03(6) (2015-16), the exception to the hearsay rule for records of regularly conducted activity; and (2) determining that the balance due on Weber’s note was $142,812.43. For the reasons discussed below, we affirm.
WI Court of Appeals – District IV
Case Name: State of Wisconsin v. James M. Pope
Case No.: 2016AP1190-CR; 2016AP1191-CR
Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.
Focus: Court Error – Denial of Request for Counsel
James M. Pope appeals judgments of conviction entered upon his guilty pleas to one count of burglary, two counts of battery to law enforcement officers, and one misdemeanor count of intimidating a victim. Pope argues that the circuit court erroneously exercised its discretion in denying his request for new counsel made during his sentencing hearing. We reject Pope’s claim and affirm.
WI Court of Appeals – District IV
Case Name: Lake Arrowhead Association, Inc., v. Thomas A. Wilkes, et al
Case No.: 2016AP2112
Officials: Blanchard, J.
Focus: Small Claims
This is the latest in a series of appeals involving the Lake Arrowhead Association, Inc., a homeowners’ association. In this case, the Association filed small claims suits against four owners of residential lots in Lake Arrowhead—Thomas Wilkes, Richard Wilkes, Gilbert Ewer, and Linda Ewer (“the Association members”)—for the collection of membership assessments for various years. After the suits were consolidated in the circuit court, the court held a one-day court trial and issued a written decision in favor of the Association. The Association members appeal. The Association cross appeals. I affirm the judgments against each of the Association members, based on the appeal, because the Association members have failed to order at least one potentially significant trial transcript and fail to explain why the absence of this transcript could not matter under the proper standard of review. I do not reach the cross appeal, which appears to urge affirmance of the judgment on an alternative ground
WI Court of Appeals – District IV
Case Name: Marquette County v. T.F.W.
Case No.: 2017AP5
Officials: Kloppenburg, P.J.
Focus: CH. 51 Commitment
T.F.W. appeals the circuit court’s orders extending his commitment and involuntary medication entered after a jury found T.F.W. to be mentally ill, a proper subject for treatment, and dangerous to himself or others. T.F.W. argues that: (1) the jury did not have sufficient evidence to find that T.F.W. was dangerous; and (2) the circuit court erred in allowing telephonic testimony without good cause being shown and in violation of T.F.W.’s right to due process. I reject T.F.W.’s arguments and affirm.