Weekly Case Digests — July 24 to July 28, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Anne E. Scheurer v. Fromm Family Foods LLC

Case No.: 16-3327

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

Focus: Motion Denied – Arbitration

Plaintiff Anne Scheurer filed this sexual harassment and retaliation suit under Title VII of the Civil Rights Act of 1964 against defendant Fromm Family Foods. During discovery, Fromm learned that Scheurer’s contract with the staffing agency that employed her and directed her to Fromm included an arbitration clause. Fromm moved to compel arbitration. The district court denied the motion. Such a denial is immediately appealable under the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(B), and Fromm has appealed. We affirm.

The question is whether employer Fromm, which did not have a written arbitration agreement with Scheurer, can enforce against her the arbitration clause in her agreement with the staffing agency. This question is governed by state law, in this case, Wisconsin law. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–31 (2009). We agree with the district court that Fromm has not shown a legal basis for compelling Scheurer to arbitrate her Title VII claim against Fromm. We first review the factual and procedural background leading to this appeal. We then examine Fromm’s only theory for compelling arbitration that it has not waived.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Barbara Streit, et al. v. Metropolitan Casualty Insurance Company

Case No.: 16-3203

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

Focus: Contractual Exclusion of Insurance Coverage

On August 5, 2014, Wesley Streit Jr. set fire to the house where he lived with his parents, Barbara and Wesley Streit. At the time of the fire, the Streits’ home was insured by Metropolitan Insurance Company. Under the Streits’ insurance policy, Wesley Jr.’s act of arson triggered a contractual exclusion of coverage. The Streits still submitted a claim, but pursuant to the policy’s language, Metropolitan refused to cover the fire damage. Barbara and Wesley Streit sued, claiming that the exclusion in the Metropolitan policy was inconsistent with the Illinois Standard Fire Policy. The district court granted partial summary judgment in favor of the Streits, ruling that the Metropolitan policy impermissibly narrowed the coverage mandated by the Illinois Standard Fire Policy. We affirm. The Illinois Standard Fire Policy sets a minimum threshold for what fire-insurance policies must cover, and Metropolitan failed to provide that coverage.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marcus B. Fifer

Case No.: 16-2812

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

Focus: Court Error – Sufficiency of Evidence and Jury Instructions

Marcus Fifer was tried and convicted on multiple counts of producing child pornography. On appeal he challenges several of the district court’s evidentiary rulings and one of its jury instructions. He also appeals the terms of his supervised release. We find no error and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kenneth Sandidge

Case No.: 16-2180

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

Focus: Vague Conditions of Supervised Release

Kenneth Sandidge pleaded guilty to possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and now challenges his sentence for a second time. When the case was last here, we rejected most of his claims of error but remanded for resentencing in light of our recent line of cases requiring a particularized explanation of conditions of supervised release. United States v. Sandidge, 784 F.3d 1055, 1067–70 (7th Cir. 2015); see United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).

On resentencing the judge imposed revised conditions of supervised release, including a condition prohibiting the “excessive use of alcohol,” defined as including “any use of alcohol that adversely affects [the] defendant’s employment, relationships, or ability to comply with the conditions of supervision.” Sandidge objected to this condition as impermissibly vague, but the judge overruled the objection. Sandidge now appeals, reiterating his vagueness challenge.

Vagueness doctrine is rooted in the constitutional guarantee of due process and requires that legal mandates be clear enough to give fair notice to those who must comply and to guard against arbitrary enforcement. The “adversely affects” language is loose and indeterminate, raising concerns about arbitrariness in enforcement. But the problem can be solved by adding a materiality requirement. We modify the condition to prohibit the use of alcohol that “materially adversely affects the defendant’s employment, relationships, or ability to comply with the conditions of supervision.” As modified, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Carroll, et al. v. Joji Takada, Chapter 7 Bankruptcy Trustee

Case No.: 14-3576

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Focus: Bankruptcy Exemption – Fully Vested Interest

In their Chapter 7 bankruptcy petition, John and Catherine Carroll claimed a $30,000 exemption for Catherine’s interest in a trust settled by her since deceased parents. The bankruptcy trustee objected, and the bankruptcy court sustained the objection and struck the exemption. The district court affirmed and so do we. Catherine’s trust interest fully vested before the Carrolls filed for bankruptcy, so the property belongs to the bankruptcy estate.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Meryl Squires-Cannon v. Dennis White, et al.

Case No.: 16-3118

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

Focus: False Arrest and Malicious Prosecution

The plaintiff and her husband used to own and live on a 400-acre estate and horse farm in Barrington Hills, Illinois (a wealthy suburb of Chicago in Cook County, Illinois). They leased the horse farm, which they called “Horizon Farms,” to a company they owned called Royalty Farms, LLC, which managed the farm’s operations, including the care of the horses, which at one point reached 50 in number. But there was a mortgage on the couple’s property, and it was foreclosed in 2013. The Forest Preserve District of Cook County—a county commission that owns more than 69,000 forested acres in the county—bought the property at the foreclosure sale. Royalty Farms, LLC, was not a party to the foreclosure proceeding, but nevertheless the Circuit Court of Cook County issued an order (called a Dispossession Order), the validity of which has not been challenged, directing the plaintiff and her husband to vacate the property.

The plaintiff continued visiting the property daily to feed or otherwise tend to the remaining horses, although the Dispossession Order had set a deadline of November 18, 2013, for the couple to vacate the property; nine months later the plaintiff was continuing her daily visits. She entered the property once again on the morning of August 13, 2014. This time, however, she was arrested and prosecuted in state court by the Cook County sheriff for criminal trespass—but she was acquitted in a bench trial because the judge could not conclusively determine that she’d ever been told not to enter the property.

The suit accused the defendants of false arrest and malicious prosecution. The accusation had and has no merit, and the district court was therefore right to dismiss the suit. In any event the fact that the police had an alternative did not make the arrest unlawful, for they had an unquestionable right to arrest her because they had probable cause to believe her a criminal trespasser. And remember that although she was prosecuted for the criminal trespass, she was acquitted. She violated the law, but was not punished for the violation, and so has little to complain about. The judgment of the district court dismissing her suit is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Terence S. Chancellor v. Select Portfolio Servicing, et al.

Case No.: 16-2475

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

Focus: Release of Claims – Settlement Dispute

The plaintiff reached an oral agreement to settle a litigation arising out of a home mortgage loan to him, but the defendants insisted that as part of the settlement he would have to release any claims he had against another bank, and also a trust company, neither of which had been a party to the litigation. Although the district judge agreed with the defendants’ position, it hasn’t been proved that anyone had told the plaintiff during the settlement conference that by agreeing to the settlement he would also be releasing any claim he might have against the two nonparties to the litigation. Because there was no evidentiary proceeding, there was no basis for the judge’s deciding that the plaintiff had agreed to release the claims against the nonparties. The judgment must therefore be vacated and the case remanded for a factual inquiry into the parties’ disagreement.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Darrell M. Schneider v. United States of America

Case No.: 16-1089

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

Focus: Ineffective Assistance of Counsel

Darrell Schneider pleaded guilty to sexually abusing his minor daughter on the reservation of the tribe to which he belongs. See 18 U.S.C. § 2243(a)(1). The district court sentenced him below the guidelines range to 96 months’ imprisonment, and we affirmed his conviction and sentence on direct appeal. See United States v. Schneider, 600 F. App’x 457 (7th Cir. 2015). Schneider then filed this collateral challenge under 28 U.S.C. § 2255. He principally argues that his trial lawyer was ineffective for advising him that he met the statutory elements of the offense of sexual abuse of a minor and for not explaining that his prior conduct could be considered during sentencing. The court denied Schneider’s § 2255 motion. Because Schneider has not shown that his lawyer’s performance was deficient or affected his decision to plead guilty, we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Dentrell Brown v. Richard Brown

Case No.: 16-1014

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

Focus: Petition for Rehearing

On consideration of respondent‐appellee Richard Brown’s petition for rehearing and rehearing en banc, filed on March 9, 2017, a majority of judges in active service voted to deny the petition for rehearing en banc. Judges Flaum, Easterbrook, and Sykes voted to grant the petition for rehearing en banc. Judges Kanne and Hamilton voted to deny panel rehearing; Judge Sykes voted to grant panel rehearing.  Accordingly, the petition for rehearing and rehearing en banc filed by respondent-appellee Richard Brown is DENIED.

Denied

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7^th Circuit Court of Appeals

Case Name: Gotoimoana Summers v. Nancy A. Berryhill, Acting Commissioner of Social Security

Case No.: 16-3849

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

Focus:

Gotoimoana Summers appeals from the judgment of the district court affirming the Social Security Commissioner’s denial of her application for disability insurance benefits. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ming Wei Chen v. Jefferson B. Sessions, III, Attorney General of the United States

Case No.: 17-1130

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

Focus: Court Error – Deportation – Removal

Ming Wei Chen, a lawful permanent resident originally from China, was ordered removed from the United States as an alien convicted of a controlled‐sub‐ stance crime, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). The Board of Immigration Appeals decided that Chen is ineligible for cancellation of removal because of an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana, 720 ILCS § 550/5(d). This, the Board thought, qualifies as an aggravated felony; if that is correct, then Chen is indeed ineligible for the relief he seeks. 8 U.S.C. § 1229b(a). Chen seeks review of that ruling in this court. We conclude that the Board misapplied the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), when it characterized Chen’s conviction under ILCS § 550/5(d) as an aggravated felony. We therefore grant his petition for review and return the case to the agency for further action.

Remanded

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7^th Circuit Court of Appeals

Case Name: National Power Corporation v. Federal Aviation Administration

Case No.: 16-3770

Officials: MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.

Focus: Abuse of Discretion

National Power Corporation (“National Power”) seeks review of a Federal Aviation Ad‐ ministration Administrator’s (the “Administrator”) decision finding that National Power knowingly violated multiple hazardous material regulations (“HMRs”), and assessing a $66,000 civil penalty against it. Because the Administrator’s conclusions are supported by substantial evidence and his findings were not arbitrary and capricious or an abuse of discretion, we deny National Power’s petition for review.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Roberto G. Alamo v. Charlie Bliss, et al.

Case No.: 15-2849

Officials: RIPPLE, MANION, and ROVNER, Circuit Judges.

Focus: Sufficiency of Plea and Evidence

This case arises from a series of incidents that occurred while Roberto Alamo, the plaintiff, was a Chicago firefighter. The operative complaint contains claims against the City of Chicago, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and against Lieutenant Charlie Bliss, under 42 U.S.C. § 1983, for various forms of discrimination on the basis of national origin; a failure to accommodate claim against the City, under the Americans with Disabilities Act (“ADA”); and two state tort claims against the City and Captain Stefan. The City of Chicago, Lieutenant Bliss, and Captain Stefan moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, dismissing all of Mr. Alamo’s federal claims with prejudice and declining to exercise supplemental jurisdiction over his state law claims.

Mr. Alamo asks us to reverse the district court’s dismissal of his complaint. He contends that he sufficiently pleaded a hostile work environment claim, a disparate treatment claim, and a retaliation claim against the City under Title VII, and a hostile work environment claim against Lieutenant Bliss under 42 U.S.C. § 1983. We agree, and, for the reasons set forth in this opinion, we reverse the district court’s dismissal and remand this case for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Murtaza Ali

Case No.: 16-4218

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

Focus: Court Error – Sentencing Guidelines

A naturalized U.S. citizen born in Pakistan named Murtaza Ali, who is the defendant in this case, took his three small children out of the U.S. without his wife’s knowledge, intending to take them to Pakistan. His wife had been granted custody of the children by a court order; the same order prohibited Ali from taking the children out of Illinois. Intercepted en route, in Turkey, he was taken back to the U.S., where he was arrested, pleaded guilty to violating the parental-kidnapping statute, and was sentenced to 18 months in prison. His appeal challenges the judge’s basing the sentencing guidelines calculation in part on Ali’s having substantially interfered with the administration of justice, which section 2J1.2(b)(2) of the federal sentencing guidelines punishes with a 3-level increase in the applicable guidelines range. Had that increase not been imposed, the defendant’s guidelines range would have been 8 to 14 months rather than 15 to 21 months.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Melissa Vanprooyen v. Nancy A. Berryhill

Case No.: 16-3653

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

Focus: Abuse of Discretion – Disability Benefits

Vanprooyen points to the administrative law judge’s flawed credibility assessments of her and her fiancé and disregard for the opinions of her treating physicians, and notes that in finding her not credible the administrative law judge had overemphasized her daily activities—and equating daily activities with an ability to work can lead to reversal. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). Of particular significance, Vanprooyen points out that the administrative law judge misunderstood the significance of her employment before her onset date (that is, the date several months after her fall down the stairs when her disability compelled her to quit work).

Vanprooyen further contends that the administrative law judge improperly discounted the opinions of treating sources in rejecting the views of her personal physician, neurologist, and psychiatrist. We agree with Vanprooyen that the administrative law gave no logical reason for discounting the opinions of these doctors, such as Dr. Jones. Because of the serious deficiencies in the administrative law judge’s analysis, we reverse the decision of the district court and remand the case to the Social Security Administration for further proceedings consistent with this opinion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: James A. Lewis v. Angela McLean, et al.

Case No.: 16-1220

Officials: MANION and ROVNER, Circuit Judges, and COLEMAN,

District Judge.

Focus: Eighth Amendment Violation – Deliberate-Indifference

James Lewis, a Wisconsin prisoner, claimed in this action under 42 U.S.C. § 1983 that staff at the Wisconsin Secure Program Facility violated the Eighth Amendment by delaying medical attention for a painful back condition and then using excessive force when eventually taking him to the hospital. Lewis also claimed that two of the defendants, a nurse and a physician, committed malpractice under state law. The district court granted summary judgment for the defendants on the constitutional claims and relinquished supplemental jurisdiction over the state-law claim, and Lewis appeals. We conclude that a jury reasonably could find that two of the defendants were deliberately indifferent to Lewis’s serious medical need.

The district court’s judgment is VACATED to the extent that it grants summary judgment on the deliberate-indifference claim against Cichanowicz and McLean. On remand, the district court should consider whether to reinstate the medical- malpractice claim against McLean. The remainder of the judgment is AFFIRMED, and the case is REMANDED to the district court for further proceedings.

Affirmed in part, Vacated and Remanded in part

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Paul Burroughs

Case No.: 2015AP2521-CR

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

Focus: Unrelated Appeal – Supplemental Postconviction Relief

Paul Burroughs, pro se, appeals a judgment of conviction and an order denying his motion for postconviction relief. The issues Burroughs raises on appeal, however, generally do not relate to the circuit court’s determinations as to any matters raised in his postconviction motion. Rather, Burroughs largely seeks relief based on issues raised in a “supplemental” postconviction motion, filed after the circuit court had orally denied relief on Burroughs’ original claims but before a written order to that effect had been entered. Applying the procedural bar articulated in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), we conclude Burroughs is not entitled to relief, and we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric J. Hodkiewicz

Case No.: 2016AP359

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

Focus: Plain Error and Newly Discovered Evidence 

Eric Hodkiewicz was convicted of nine offenses, based on allegations that he harassed and physically assaulted his now-ex-wife, S.P., during the course of their acrimonious divorce and child custody dispute. On appeal, Hodkiewicz argues he is entitled to a new trial based on plain error, ineffective assistance of trial counsel, and newly discovered evidence. In the alternative, he seeks a new trial in the interest of justice. Finally, Hodkiewicz claims his convictions and consecutive sentences for both bail jumping and the underlying offense (strangulation and suffocation) violated his right to be free from double jeopardy.

We reject each of Hodkiewicz’s appellate arguments, with one exception. We agree that Hodkiewicz’s trial attorney rendered ineffective assistance by failing to object to an officer’s testimony that S.P. told him she received a particular telephone call “on her work phone.” We therefore reverse Hodkiewicz’s convictions on Counts 2 and 3 and the related portions of the order denying Hodkiewicz’s motion for postconviction relief, and we remand for further proceedings on those counts. In all other respects, we affirm Hodkiewicz’s judgment of conviction and the order denying postconviction relief.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. John W. Torgerson

Case No.: 2016AP411-CR

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

Focus: Sufficiency of Evidence  

John Torgerson appeals a judgment of conviction for multiple violations of statutes making it a crime to offer or sell unlicensed securities without an exemption and to omit to state material facts concerning the offering or sale of securities, as well as an order denying his motion for postconviction relief. He argues the evidence presented at trial was insufficient to support his convictions for these offenses, and he also challenges the circuit court’s restitution order. We affirm.

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WI Court of Appeals – District III

Case Name: Beth L. Baker, et al. v. Wilson Auto Collision, Inc.

Case No.: 2016AP423

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

Focus: Negligence Statutory Claim

Beth and Scott Baker appeal a summary judgment dismissing their personal injury claims against Wilson Auto Collision, Inc. (Wilson). The Bakers argue Wilson acted negligently and violated WIS. STAT. § 125.07(1)(a) (2013-14) by creating a work environment that permitted drinking by employees, including Jeffrey Steele, an underage employee who, after consuming alcohol at the shop, drove his vehicle and struck a vehicle operated by Beth Baker, causing her severe injuries. Pursuant to the holding in Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220, we conclude that public policy considerations preclude the Bakers’ commonlaw claims given the absence of any evidence Wilson actively, directly, and affirmatively provided alcohol to Steele, and that the Bakers’ statutory claim fails. We affirm.

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WI Court of Appeals – District III

Case Name: In re the estate of Elizabeth H. Lauer: Richard A. Lauer v. MaryBeth Lipp, et al.

Case No.: 2016AP465

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

Focus: Court Error – Guardianship 

Richard Lauer appeals an order appointing his brother, Dennis Lauer, personal representative of their mother Elizabeth Lauer’s estate. Richard argues: (1) the circuit court improperly took judicial notice of his mother’s guardianship proceedings; (2) the circuit court judge should have recused himself because he prejudged the matter; and (3) the court should not have rejected Richard’s request to become personal representative without first finding him unsuitable. We reject these arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Billy J. Staves

Case No.: 2016AP609-CR

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

Focus: Ineffective Assistance of Counsel

Billy Staves appeals a judgment, entered upon a jury’s verdict, convicting him of receiving between $2500 and $5000 worth of stolen property; burglary while armed with a dangerous weapon; and eight counts of theft of movable property (firearms), with all ten crimes as a repeater and all but the receiving stolen property count as party to a crime. Staves also appeals an order denying his motion for postconviction relief. Staves argues he is entitled to a new trial based on the ineffective assistance of his trial counsel. We reject Staves’s arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Alphonso Lamont Willis

Case No.: 2016AP791-CR

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

Focus: Sufficiency of Evidence

Alphonso Lamont Willis appeals the judgment convicting him of first-degree intentional homicide as party to a crime while armed with a dangerous weapon and being a felon in possession of a firearm. He also appeals the trial court’s orders denying his postconviction motions.

The issues before this court involve boot print evidence and the time of death of the victim. Willis raises four arguments in claiming that trial counsel was ineffective based on trial counsel’s failure to: (1) object during the prosecutor’s opening and closing arguments; (2) object during a detective’s trial testimony regarding Willis’s boots; (3) obtain an expert to rebut the State’s boot print evidence; and (4) introduce evidence of the victim’s time of death which, coupled with the testimony of a disinterested witness, would have challenged the State’s assertion that Willis killed the victim. Willis also contends that a new trial is required in the interest of justice for two reasons: (1) his boots were improperly admitted into evidence; and (2) the prosecutor’s opening and closing argument improperly suggested a match between the boot prints and his boots. Alternatively, Willis argues that forensic evidence from a “boot expert” that he offered with his postconviction motion is newly-discovered evidence warranting a new trial. Additionally, Willis argues that the trial court failed to adequately explain its sentence and the trial court violated his right to due process by informing the jury that he was a felon.

We affirm the trial court’s orders with respect to Willis’s arguments regarding (1) ineffective assistance of counsel in failing to object to the admission of the boot evidence and the State’s argument about them in opening and closing, (2) a new trial in the interest of justice, (3) a new trial based on newly-discovered evidence, (4) sentencing, and (5) the reference to Willis as having been convicted of a felony. However, we reverse and remand for a Machner hearing on whether trial counsel was ineffective with respect to the failure to (1) obtain a witness to rebut the State’s boot print evidence, and (2) introduce evidence regarding the time of the victim’s death. For these reasons we remand to the trial court for further proceedings consistent with this decision.

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WI Court of Appeals – District III

Case Name: Linda S. Burt-Redding v. Labor and Industry Review Commission, et al.

Case No.: 2016AP916

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

Focus: Denial of Worker’s Compensation Benefits

Linda Burt-Redding appeals a circuit court order affirming a Wisconsin Labor and Industry Review Commission (LIRC) decision denying compensation for a non-traumatic mental injury. We affirm.

Burt-Redding worked as a patrol officer in the Grand Chute Police Department. On August 29, 2002, and while in the line of duty, she shot an individual who belonged to a street gang, was threatening motorists, and was wielding a knife.  Following the shooting, Burt-Redding allegedly received threats which fell into three categories: (1) threats made directly to Burt-Redding; (2) threats made directly to her son; and (3) instances where the police chief warned Burt-Redding about the shooting victim’s family threatening her life. Burt-Redding alleged the “repeated threats against her life and the unresolved reminders of those threats that continued over a period of several years” caused anxiety attacks, chronic depression, and post-traumatic stress disorder. She sought compensation for permanent total disability benefits or, in the alternative, loss of earning capacity.

An administrative law judge (ALJ) found “that the events most certainly caused applicant stress, and her medical records bear this out.” However, the ALJ determined the threats, alone or in combination, did not amount to “extraordinary stress” of greater dimension than the day-to-day emotional strain and tension experienced by a patrol officer who would be similarly situated as Burt-Redding. See Bretl v. LIRC, 204 Wis. 2d 93, 106-07, 553 N.W.2d 550 (Ct App. 1996). Burt-Redding’s application for worker’s compensation benefits was therefore dismissed with prejudice.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jimi K. Wellman

Case No.: 2016AP964-CR

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

Focus: Court Error – Motion Denied for New Counsel

PER CURIAM. Jimi K. Wellman appeals from a judgment of conviction on one count of second-degree sexual assault and one count of incest. See WIS. STAT. §§ 948.02(2), 948.06(1) (2011-12). He also appeals from an order denying his motion for postconviction relief, which followed our previous decision to remand this case for a Machner hearing. 2 See State v. Wellman, No. 2014AP1920-CR, unpublished op. and order (WI App July 7, 2015). Wellman makes two arguments on appeal: (1) his trial counsel denied him the right to testify at trial by incorrectly advising him regarding what he would be allowed to say to support a defense that he did not remember what happened the night of the assault; and (2) the trial court erred when it denied his pretrial request for a new attorney. We affirm.

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WI Court of Appeals – District III

Case Name: Riverstone Creek Condominium Owners Association, Inc. v. Georgia Hall, et al.

Case No.: 2016AP1354

Officials: Seidl, J.

Focus: Levy of Condominium Assessments

Georgia and Harry Hall, pro se, appeal summary judgments granted in favor of Riverstone Creek Condominium Owners Association, Inc., (the Association) in its actions against the Halls to collect unpaid condominium assessments. The Halls raise several challenges to the Association’s levy of the assessments against them. Primarily, they argue Lee Investments, LLC (Lee), which is the owner of three-fourths of the units in the Association, was not entitled to vote in the affairs of the Association. Additionally, they contend three of the elected condominium board members were ineligible to serve on the board. For both reasons, the Halls contend the board’s vote at a condominium meeting authorizing the assessments was invalid. We reject the Halls’ arguments and affirm the judgments in favor of the Association.

The Association cross-appeals the amount of attorney fees and costs the circuit court awarded in its favor. It contends the court erroneously exercised its discretion by awarding only $1000—which is less than its actual fees and costs—without explanation. We agree with the Association, reverse the $1000 award, and remand to the circuit court with directions to reconsider the attorney fee award, including attorney fees and costs associated with this appeal.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Irvin Perez-Basurto

Case No.: 2016AP2136-CR

Officials: Kessler, J.

Focus: Ineffective Assistance of Counsel

The State of Wisconsin appeals an order of the circuit court allowing Irvin Perez-Basurto, a Mexican foreign national, to withdraw his guilty pleas on the grounds of ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District II

Case Name: Joseph T. Sheppard v. Sarah E. Sheppard

Case No.: 2016AP530

Officials: Hagedorn, J.

Focus: Court Error – Evidentiary Hearing

Sarah E. Sheppard appeals from an order of the circuit court affirming its decision to find her in contempt. As part of divorce proceedings between Sarah and her husband, Joseph T. Sheppard, Sarah was ordered by the circuit court to return the couple’s child to Wisconsin. She has admittedly failed to do so. On appeal, Sarah challenges the contempt order on multiple grounds. She complains that the order to return the child to Wisconsin was not clear. She also asserts the hearing itself was problematic because she did not have proper notice, the court did not allow her to appear by telephone, the court failed to conduct an evidentiary hearing, and she was entitled to appointed counsel. We find no error with the proceedings and affirm.

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WI Court of Appeals – District II

Case Name: 2016AP807; 2016AP1539

Case No.: Team Property Management, LLC v. Jonathon Diedrich, et al.

Officials: Reilly, P.J.

Focus: Reconsideration and Request for Sanctions

In these consolidated cases, Team Property Management, LLC (Team) appeals from an order granting summary judgment to Thomas Diedrich and vacating a default judgment against Jonathon Diedrich in a small claims lawsuit and an order denying Team’s motion for reconsideration and request for sanctions. Team also appeals from a monetary judgment for costs granted in favor of Thomas. As we agree with the circuit court’s conclusion that Team is not entitled to relief, we affirm.

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WI Court of Appeals – District I

Case Name: Judith M. Tutkowski, et al. v. James A. Rudesill, et al.

Case No.: 2016AP465

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

Focus: Malicious Prosecution Cause of Action

Judith M. Tutkowski commenced this action for malicious prosecution and abuse of process against James A. Rudesill, Attorney Andrew J. Niebler, and Niebler, Pyzyk, Roth & Carrig, Niebler’s law firm (collectively, the defendants). Her claims arise from a prior lawsuit wherein Rudesill sought damages from Tutkowski for intentionally interfering with his prospective inheritance from his mother, June Rudesill, and an action for a temporary restraining order (TRO) against Tutkowski to prevent her from having contact with June. The circuit court dismissed Tutkowski’s claims on summary judgment. We affirm the circuit court dismissing the malicious prosecution cause of action as Tutkowski did not show special damages, but we reverse the dismissal of Tutkowski’s abuse of process cause of action as material issues of fact remain.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marnie L. Coutino aka Marnie L. Spiezer

Case No.: 2016AP2386-CR

Officials: Gundrum, J.

Focus: Court Error – Sentencing

Marnie L. Coutino appeals from a judgment of conviction for disorderly conduct and a postconviction order denying her relief from that judgment based on her contention that the circuit court erroneously exercised its discretion in sentencing her. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Patrick H. Dalton

Case No.: 2016AP2483-CR

Officials: Neubauer, C.J.

Focus: Court Error – Sentencing and Warrantless Evidence

Patrick H. Dalton appeals from a judgment of conviction entered following his plea of no contest to operating a motor vehicle while intoxicated, as a second offense, and operating a motor vehicle with a revoked driver’s license. He further appeals from an order, following an evidentiary hearing, denying his postconviction motion to vacate his plea based on trial counsel’s alleged ineffectiveness in failing to move to suppress the warrantless draw of his blood or, in the alternative, for resentencing because the circuit court punished him for exercising his constitutional right to refuse to consent to the withdrawal of his blood. We conclude that exigent circumstances existed that justified the warrantless draw of his blood, and the circuit court did not err in considering Dalton’s refusal to the blood draw as an aggravating factor in sentencing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Andrei R. Byrd

Case No.: 2014AP2721-CR

Officials: Higginbotham, Sherman and Blanchard, JJ

Focus: Court Error – Jury Instructions and Sufficiency of Evidence

While he was attending a house party in Rockford, Illinois, Andrei Byrd engaged in conduct that led to his arrest by local police on a charge of assault under Illinois criminal law. Before the Illinois arrest, Byrd had been released from custody in Rock County, Wisconsin, pending disposition on two felonies allegedly committed in Rock County. Based on Byrd’s Illinois conduct, he was charged in this Rock County case with four counts of felony bail jumping for allegedly violating two conditions of his Rock County bonds. More specifically, for each pending Rock County felony, he was charged with one count of bail jumping for committing a new crime (through the conduct that led to his Illinois arrest) and one count of bail jumping for leaving Rock County. At trial, the jury found Byrd guilty on all four counts of felony bail jumping.

On appeal, Byrd challenges the two bail jumping convictions based on the allegation that Byrd committed a new crime. Specifically, Byrd contends that the circuit court erred in instructing the jury using Wisconsin’s definitions of disorderly conduct and attempted battery to define the new crime. Separately, Byrd contends that there was insufficient evidence that he committed new crimes. In addition, Byrd argues that he received the ineffective assistance of trial counsel, in three respects, which we summarize below. For the following reasons, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clarence Benjamin Taylor

Case No.: 2016AP240

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

Focus: Court Error – Ineffective Assistance of Counsel

Clarence Taylor appeals a judgment of conviction for armed robbery as party to a crime and an order denying postconviction relief. Taylor contends that: (1) the circuit court erred by allowing testimony by an officer not listed on the State’s amended witness list; (2) Taylor’s trial counsel was ineffective by failing to object to part of the victim’s testimony and part of the State’s closing argument; and (3) the State made an improper closing argument that amounted to plain error. For the reasons set forth below, we reject these contentions. We affirm.

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WI Court of Appeals – District IV

Case Name: Adams Outdoor Advertising Limited Partnership v. City of Madison

Case No.: 2016AP537

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

Focus:  Violation of Equal Protection and Due Process Clauses

Adams Outdoor Advertising Limited Partnership (“Adams”) appeals a summary judgment in favor of the City of Madison (“the City”). Adams brought an inverse condemnation action against the City after the City constructed a bridge that obstructs the view of the west-facing side of a billboard owned by Adams.  Adams also argues that the City violated the Equal Protection and Due Process clauses, and that the bridge is a private nuisance. For the reasons discussed below, we affirm the judgment on all claims.

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WI Court of Appeals – District IV

Case Name: Donald Bukstein, M.D. v. Dean Health Systems, Inc.  

Case No.: 2016AP920

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Denial of Post-verdict Motions

Dean Health Systems, Inc., terminated the employment of physician-employee Donald Bukstein “without cause,” pursuant to an “at-will” provision in a written employment agreement between Dean and Bukstein. Bukstein sued Dean for breach of contract and breach of the duty of good faith and fair dealing in connection with the termination. The circuit court denied Dean’s motion for summary judgment. At a jury trial, Bukstein prevailed on both claims. Dean appeals the judgment entered in favor of Bukstein, as well as the order of the circuit court denying Dean’s motion for summary judgment and the court’s denial of Dean’s post-verdict motions.

Dean argues that Bukstein’s termination was consistent with the atwill provision in the employment agreement, which allows either party to terminate the employment relationship, at any time and “without cause.” Dean also argues that it was under no duty to terminate Bukstein only in good faith, because Bukstein was an at-will employee under the employment agreement. Therefore, Dean argues, the circuit court should have granted Dean’s motion for summary judgment on both of Bukstein’s claims.

We agree with Dean that the case should have been dismissed on summary judgment, because the at-will provision authorized Dean to terminate Bukstein without cause. Accordingly we reverse and remand to the circuit court to enter an order granting Dean’s motion for summary judgment and dismissing Bukstein’s complaint in its entirety.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Milton Eugene Warren

Case No.: 2016AP936

Officials: Lundsten, Sherman, and Blanchard, JJ.

Focus: Court Error – Sufficiency of Evidence

Milton Warren appeals two related judgments convicting him of being party to the crime of possession with intent to deliver more than 50 grams of heroin, a second or subsequent offense of possession of THC, and contributing to the delinquency of a minor. Warren challenges the sufficiency of the evidence to support his convictions on two of the charges and an evidentiary ruling excluding prior bad act evidence that Warren had sought to introduce to impeach one of the State’s primary witnesses. For the reasons discussed below, we affirm the judgments of conviction.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jimmane Thomas Pittman

Case No.: 2016AP1689-CR

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

Focus: Court Error – Suppression Motion Denied

Jimmane Pittman appeals a criminal judgment that convicted him of one felony and two misdemeanor charges. The sole issue on appeal is whether the circuit court properly denied Pittman’s suppression motion. We affirm.

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