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Weekly Case Digests — August 28 to September 1, 2017

By: WISCONSIN LAW JOURNAL STAFF//September 1, 2017//

Weekly Case Digests — August 28 to September 1, 2017

By: WISCONSIN LAW JOURNAL STAFF//September 1, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Christopher S. Streckenbach v. Charles VanDensen, et al.

Case No.: 16-1695

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

Focus: Violation of Due Process Clause of Fourteenth Amendment

Streckenbach contends in this suit under 42 U.S.C. §1983 that VanDensen violated the Due Process Clause of the Fourteenth Amendment by destroying his property without notice. He maintains that the policy, which Redgranite’s warden promulgated in 2013, had not been communicated to the prisoners. Streckenbach contends that he did not see it on the bulletin board (he asks the court to infer that whatever he didn’t see was not there), that the prison’s library had only an older policy, and that the officer who received his boxes failed to calculate the shipping charges and warn him that he must maintain that amount in his account. According to Streckenbach, the older policy he read in the library provided that, if the property was not picked up within 30 days, the staff would ask the inmate how he wanted to proceed. VanDensen did not do that and, Streckenbach contends, thereby violated the Constitution.

We grant that some policies lead to more errors than others. The more complex the policy, the more occasions for something to go wrong. The 2013 policy may have been in that category, for it was replaced in 2015 with a simpler rule that remains in effect. Under the 2015 policy inmates who want to get rid of property have two options: ship it at their own expense or have it destroyed. The option to leave the property for pickup has been abolished. The new policy eliminates the risk that inmates will misunderstand their options, since they must pay shipping costs when they drop off the property. It also eliminates an option that some inmates found valuable. Whether the 2015 policy is beneficial for inmates on balance is not a question we need answer. All we hold today is that VanDensen, the prison’s warden, and the deputy warden are not personally liable in damages under §1983 for the negligence of other employees, or given Daniels even for their own negligence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. James Herbert White

Case No.: 17-1517

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

Focus: Sentencing Guidelines

While on supervised release following his conviction for failing to register as a sex offender, James White pleaded guilty to new state charges of credit‐ card fraud and theft. The district court, in response, revoked White’s supervised release and ordered him reimprisoned for 20 months—less than what is recommended in the sentencing guidelines. White argues that this term of reimprisonment is plainly unreasonable because, he says, the prosecutor and probation officer made inaccurate statements during the revocation hearing. We acknowledge that the probation officer conducted himself inappropriately, but we are not persuaded that his misguided advocacy affected the out‐ come of the proceeding. White’s new prison term is reasonable, and we thus affirm the judgment.

Modified and Affirmed

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7th Circuit Court of Appeals

Case Name: Richard Watkins v. Trans Union, LLC,

Case No.: 17-1142

Officials: KANNE, SYKES, and HAMILTON, Circuit Judges

Focus: Abuse of Discretion 

Plaintiff Richard Watkins has sued Trans Union for violating the Fair Credit Reporting Act. The merits of his claims are not the subject of this appeal. The issue here is whether attorney John Cento should be disqualified from representing Watkins. That is because over ten years ago Cento earned a living defending Trans Union in hundreds of lawsuits alleging Fair Credit Reporting Act violations. Because the Southern District of Indiana makes use of Indiana’s rules governing attorney conduct, Indiana Rule of Professional Conduct 1.9 (Duties to Former Clients) governs Trans Union’s effort to have Cento disqualified.

In this interlocutory appeal under 28 U.S.C. § 1292(b), Trans Union argues that the district court applied the wrong legal standard for attorney disqualification and misapplied the standard it chose. We affirm the decision of the district court. We review for abuse of discretion the district court decision rejecting disqualification. Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993); Whiting Corp. v. White Machinery Corp., 567 F.2d 713, 715 (7th Cir. 1977) (The district court “possesses broad discretion in determining whether disqualification is required in a particular case … .”), quoting Schoetter v. Railoc of Ind., Inc., 546 F.2d 706, 710 (7th Cir. 1976). An abuse of discretion can be shown when the district court based its decision on an erroneous view of the law or a clearly erroneous evaluation of evidence. S

Affirmed

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7th Circuit Court of Appeals

Case Name: St. Vincent Randolph Hospital, Inc., v. Thomas E. Price, Secretary of Health and Human Services

Case No.: 16-3956

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

Focus: Medicare – Hospital Construction Financing

This appeal presents the question whether Medicare will reimburse some of the cost of financing the new hospital’s construction. The Acting Principal Deputy Administrator did not make anything of the difference in the amounts loaned by St. Vincent Indianapolis and Ascension Health. His decision therefore cannot be enforced on that ground—which at all events would not justify refusing to reimburse all costs of the full loan. This problem, if it is a problem at all, would justify no more than limiting reimbursement to the financing costs needed for the new hospital’s construction. Once problems in an administrative decision have been identified, a court remands to the agency for further consideration. Negusie v. Holder, 555 U.S. 511, 523–24 (2009). The “taint” theory is legally untenable and cannot be reasserted on remand, but the agency is free to ask the Hospital for more or better documentation and to explore the significance of the difference in the principal amounts of the two loans. The judgment of the district court is vacated, and the case is remanded with instructions to remand the proceeding to the Secretary for proceedings consistent with this opinion

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Xavier Laurens, et al. v. Volvo Cars of North America, LLC, et al.

Case No.: 16-3829

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges

Focus: Standing to Sue

The idea of a theme and variations is a common one in music. It should be in law, too. Here we return to the familiar theme of a defense effort to pretermit a proposed class action by picking off the named plaintiff’s claim. Several variations on that theme have been tried and have failed. See Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (Rule 68 offers of judgment); Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017) (Rule 67 payments to court registry).

Undeterred, the defendant in the case now before us asserts that an unaccepted offer of relief before a putative plaintiff files a lawsuit deprives that plaintiff of standing. We see no reason why the timing of the offer has such a powerful effect. Black‐letter contract law states that offers do not bind recipients until they are accepted. See, e.g., ALI Restatement (Second) of Contracts § 17 (1981). Hence while the legal effect of every variation on the strategic‐mooting theme has not yet been explored, we are satisfied that an unaccepted pre-litigation offer does not deprive a plaintiff of her day in court.

Since Khadija did not accept Volvo’s offer, her injury‐in‐ fact from Volvo’s alleged misrepresentations remains unredressed. We therefore REVERSE the judgment of the district court dismissing this case for lack of standing and remand for further proceedings consistent with this opinion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Anthony D. Kolton, et al. v. Michael W. Frerichs, Treasurer of Illinois

Case No.: 16-3658

Officials: EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

Focus: Subject-matter Jurisdiction

An initial problem with the district court’s ruling is that Williamson County has nothing to do with subject-matter jurisdiction. True, this court has affirmed dismissals for want of subject-matter jurisdiction based on failure to abide by Williamson County. See Peters v. Clifton, 498 F.3d 727, 734 (7th Cir. 2007); Patel v. Chicago, 383 F.3d 569, 570, 573–75 (7th Cir. 2004); Sprint Spectrum LP v. Carmel, 361 F.3d 998, 1001, 1004– 05 (7th Cir. 2004); Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 945, 957–61 (7th Cir. 2004). These opinions do not discuss the question whether Williamson County is indeed jurisdictional. This court also (in what seems like dictum) once characterized Williamson County as about jurisdiction. See Behavioral Institute of Indiana, LLC v. Hobart Common Council, 406 F.3d 926, 930–31 (7th Cir. 2005). This may reflect a bygone practice of using the term “jurisdiction” loosely to refer to all obstacles to decision on the merits. Arnow v. NRC, 868 F.2d 223, 225 (7th Cir. 1989), overruled by Builders Bank v. FDIC, 846 F.3d 272, 274–75 (7th Cir. 2017), is one example.

The distinction between subject-matter jurisdiction and the merits matters because judges must enforce limits on jurisdiction even when litigants prefer a substantive decision. If Williamson County curtails jurisdiction, then the court must decide in every case under the Takings Clause whether the plaintiff has exhausted procedures for obtaining compensation under state law. The court would have to raise the issue on its own, combing a state’s statute books and case law for potential remedies, and decide without the litigants’ aid whether each of the potential remedies is adequate. Cf. Builders Bank, 846 F.3d at 274–75. That is a prospect to be avoided if possible. We see no reason to depart from the Supreme Court’s understanding of Williamson County as leaving open the possibility of waiver or forfeiture. See Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702, 729 (2010).

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Freddie Camacho v. Nicole English, Warden

Case No.: 16-3509

Officials: BAUER, EASTERBROOK, and RIPPLE, Circuit Judges

Focus: Ineffective Remedy – Habeas Corpus Denial

Petitioner-appellant Freddie Camacho, a federal prisoner incarcerated in Oxford, Wisconsin, appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. He argues that he may pursue relief under § 2241 because 28 U.S.C. § 2255 is an inadequate or ineffective remedy.

Affirmed
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7th Circuit Court of Appeals

Case Name: Rosewood Care Center of Swansea v. Thomas E. Price, Secretary of the United States Department of Health & Human Services

Case No.: 16-3368

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

Focus: Sufficiency of Evidence

Rosewood Care Center is a skilled nursing facility participating in Medicare and Medicaid. The Centers for Medicare and Medicaid Services assessed a civil monetary penalty against Rosewood on the grounds that it had failed to protect a resident from abuse, failed to timely report or to investigate thoroughly allegations of abuse, and failed to implement its internal policies on abuse, neglect, and misappropriation of property. CMS determined that these deficiencies placed residents in “immediate jeopardy.” After a hearing before an Administrative Law Judge, both the ALJ and, later, the Department Appeals Board affirmed the $6,050 per day penalty imposed by CMS. Rosewood now seeks review of that penalty. It contends that the $6,050 per day penalty cannot be imposed because substantial evidence does not support CMS’s immediate jeopardy determination. For the reasons set forth in the following opinion, we conclude that substantial evidence supports the Agency’s findings and therefore deny the petition.

Affirmed

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7th Circuit Court of Appeals

Case Name: Davin Green v. Jonathon Newport

Case No.: 16-1536

Officials: BAUER and KANNE, Circuit Judges, and FEINERMAN, * District Judge

Focus: Court Error – Qualified Immunity

In this case, the district court concluded that Officer Newport conducted an investigatory stop based solely on a “suspicious person” report, and in doing so violated Green’s clearly established Fourth Amendment right and that Officer Newport was therefore not entitled to qualified immunity. Officer Newport argues that the district court erred by defining Green’s Fourth Amendment right without the requisite specificity.

He further argues that the case law relied upon by the district court is factually dissimilar to the facts in this case, and the court failed to demonstrate that Green’s Fourth Amendment rights were clearly established. We agree. The Fourth Amendment prohibits unreasonable searches and seizures, but police may conduct an investigatory stop of an individual when the officer has reasonable suspicion that a crime may be afoot. Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Such stops, referred to as Terry stops, need not be supported by probable cause; rather, they are permissible as long as officers have a “reasonable articulable suspicion that criminal activity is afoot.” United States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007) (citation omitted).

We reverse the district court’s denial of Officer Newport’s motion for summary judgment on qualified immunity grounds, and direct the court to grant the motion.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Chad Conrad v. Boiron, Inc., et al.

Case No.: 16-3656

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

Focus: Abuse of Discretion

Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to certify his proposed class. About a year later Boiron offered Conrad $5,025, more than he could hope to win at trial. Conrad does not want to accept the money because it will moot his claim; Boiron wants to force him to take it for the same reason.

The district court refused to certify Conrad’s proposed class and found his individual claim moot. We conclude, in keeping with our decision in Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017), that the latter decision was in error, because an unaccepted offer cannot moot a case. There are other measures available to address the problem (if it exists here) of “unreasonably and vexatiously” persisting in litigation, see, e.g., 28 U.S.C. § 1927, but the district court has yet to decide whether they should be used. We therefore remand this case to the district court for further proceedings.

The district court did not abuse its discretion in denying class certification, and it correctly rejected Conrad’s individ‐ ual claim for injunctive relief. It erred, however, insofar as it concluded that the passage of time meant that Conrad no longer had the legal right to reject Boiron’s offer of settlement. We therefore AFFIRM in part and REMAND for further proceed‐ ings consistent with this opinion. Each party will bear its own costs on appeal.

Affirmed in part. Remanded in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Enkhchimeg Ulziibayar “Eni” Edwards

Case No.: 16-2253

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

Focus: Sufficiency of Evidence

Edwards has appealed her convictions, raising three is‐ sues. She argues that the witness tampering statute, § 1512(b)(3), is void for vagueness. She also argues that the evidence was insufficient to support any of the four counts of conviction. We reject both of these arguments and affirm Edwards’s false statement convictions, Counts III and IV.

To summarize, then, we AFFIRM Edwards’s convictions under Counts III and IV but VACATE Edwards’s sentence on those counts and REMAND for resentencing. We VACATE Edwards’s convictions and sentences under Counts I and II and REMAND for further proceedings consistent with this opinion.

Affirmed in part. Vacated and Remanded in part.

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7th Circuit Court of Appeals

Case Name: Joseph L. Reed v. Freedom Mortgage Corporation

Case No.: 16-3661

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

Focus: Sufficiency of Evidence

Joseph L. Reed sued his former employer, Freedom Mortgage Company, under the Illinois Human Rights Act, alleging race-based discrimination. After concluding that Reed lacked evidence of racial bias, the district court granted summary judgment in favor of Freedom Mortgage. Reed challenges the court’s decisions on evidentiary matters as well as the court’s ultimate conclusion on summary judgment. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: In Re: Subway Footlong Sandwich Marketing and Sales Practices Litigation

Case No.: 16-1652

Officials: FLAUM, ROVNER, and SYKES, Circuit Judges

Focus: Standing to Sue and Class Certification

The first issue on appeal concerns Frank’s standing. The plaintiffs and Subway insist that he lacks standing to appeal because he doesn’t have any interest in the amount of attorney’s fees awarded as part of the settlement. Because the settlement provides only injunctive relief to the class—not monetary relief—any reduction in attorney’s fees will return to Subway and not to class members like Frank. See Pearson v. NBTY, Inc., 772 F.3d 778, 786 (7th Cir. 2014) (“If the class cannot benefit from the reduction in the award of attorneys’ fees, then the objector, as a member of the class, would not have standing to object, for he would have no stake in the outcome of the dispute.”). But Frank’s appeal does not take aim at the judge’s ruling on class counsel’s motion for attorney’s fees.

He challenges the certification of the class and the approval of the settlement. True, a decision to reverse the judgment will unwind the award of attorney’s fees, and neither Frank nor any other class member will benefit from reducing the fees of class counsel to zero. But as a class member who is bound by the settlement, Frank clearly has standing to appeal. Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). He properly objected at the fairness hearing and may “appeal the approval of a settlement … that will ultimately bind [him].” Id.

Because the settlement yields fees for class counsel and “zero benefits for the class,” the class should not have been certified and the settlement should not have been approved. In re Walgreen, 832 F.3d at 724. Because these consolidated class actions “seek[] only worthless benefits for the class,” they should have been “dismissed out of hand.” Id.

Reversed and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Andrew Ramos

Case No.: 2016AP544-CR

Officials: Kessler, Brash and Dugan, JJ

Focus: Motion to Dismiss – Brady Violation

Michael Andrew Ramos appeals from a judgment of conviction for one count of delivering more than three but fewer than ten grams of heroin, as a party to a crime and as a repeater, contrary to WIS. STAT. §§ 961.41(1)(d)2., 961.48(1)(b), and 939.05 (2013-14). Ramos also appeals from an order denying his postconviction motion, which sought dismissal of his conviction based on his allegation that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing information about the resolution of a key witness’s criminal case in another county. We affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Lynn Recker v. Luanne Gilmore

Case No.: 2016AP1007

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

Focus: Estate – Property Ownership

Lynn Recker, pro se, appeals an order entered in proceedings regarding the estate of James Recker. The order concerns the ownership of a table. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin  v. Marquis Omar Gilliam

Case No.: 2016AP1101

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

Focus: Ineffective Assistance Counsel

Marquis Omar Gilliam appeals from an order of the circuit court that denied his WIS. STAT. § 974.06 (2015-16) motion for a new trial without a hearing. Gilliam claims his postconviction attorney was ineffective for failing to make a particular ineffective-assistance claim against trial counsel. We reject Gilliam’s arguments and affirm the circuit court’s order.

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WI Court of Appeals – District III

Case Name: Michael J. Johnson, et al. v. Dale Pautsch, et al.

Case No.: 2016AP1303

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

Focus: Court Error – Motion to Dismiss Conversion

Michael Johnson and Michael & Sons Amusement, Inc. (collectively, Johnson) appeal an order granting summary judgment in favor of John Schneider. Johnson argues the circuit court erred by converting Schneider’s motion to dismiss to a motion for summary judgment. Johnson also contends the court erred by granting Schneider summary judgment on grounds that were not argued by the parties. We reject Johnson’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Christopher E. Manney v. Board of Fire and Police Commissioners for the City of Milwaukee

Case No.: 2016AP1598

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

Focus: Due Process Violation

Before the circuit court, Manney brought both a statutory appeal under WIS. STAT. § 62.50(20) (2015-2016) and a certiorari appeal. The circuit court denied his statutory appeal finding sufficient evidence to support just cause for his discharge. The circuit court also denied Manney’s certiorari review. Manney appeals the certiorari decision to this court.

On certiorari appeal to this court, Manney argues that this court should reverse the Board’s decision for four main reasons.  First, as to SOP 085.25(a), he argues that neither Wisconsin nor constitutional law requires an officer to have a reasonable basis to believe a suspect has a weapon before conducting a pat-down search, and the Board cannot ignore state law and discipline him for violating a Department rule that imposes such a requirement. Relatedly, he argues that the pat-down rule he was disciplined for violating is “unconstitutionally vague.” Second, he argues that SOP 460.05(1) is not a rule, only a suggestion for consideration, and therefore cannot be the basis for discharge. Third, he argues that his due process rights were violated by the Board basing its decision on an uncharged SOP, 001.05 Fair and Impartial Policing, which Manney was never charged with. Finally, he raises a belated challenge to the Board’s jurisdiction. For the following reasons we affirm the Board’s decision discharging Manney.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Denton Ricardo Ewers

Case No.: 2016AP1671-CR

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

Focus: Sufficiency of Evidence

Denton Ewers appeals a judgment of conviction for operating a motor vehicle while intoxicated (OWI), as a ninth offense. The issue in this case is whether a citizen informant’s repeated observations of non-driving behaviors that reasonably suggest drunkenness are sufficient to justify an investigatory traffic stop for OWI. The citizen informant, a female employee of the Family Dollar store in Durand, Wisconsin, called the police on two occasions approximately two and one-half hours apart, stating that an individual—later identified as Ewers—had entered the store, appeared “dazed and confused,” and then drove off in a vehicle. During the first call, she also reported that the individual had the “smell of intoxicants coming from his breath.” We conclude that, under these facts, the investigatory stop of the defendant’s vehicle in response to the second call was based on reasonable suspicion of OWI. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.O.,

Case No.:  2016AP2186

Officials: DUGAN, J.

Focus: Termination of Parental Rights

A.O. appeals from the circuit court’s non-final order waiving juvenile court jurisdiction to adult court. A.O. contends that the trial court failed to give sufficient and proper consideration to the statutory criteria, the suitability of A.O. receiving services in the Serious Juvenile Offender program (S.J.O.P.). This Court disagrees and affirms the trial court’s order.

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WI Court of Appeals – District I

Case Name: Midwest Development Corporation v. Milwaukee County

Case No.: 2015AP2634

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

Focus: Constructive Eviction and Breach of Contract

Midwest Development Corporation (Midwest) appeals from a judgment dismissing its complaint. Milwaukee County (the County) cross-appeals from the judgment dismissing its counterclaim. We affirm the circuit court in all respects.

Midwest argues that it was constructively evicted when the County permitted Rock to enter the property to conduct testing and analysis for development and when Rock began modifying the property and adversely affecting Midwest’s improvements. Midwest argues that it was forced to negotiate the mitigation agreement with Rock to reduce its damages.

In a counterclaim, the County alleged that Midwest breached the lease’s maintenance and repair clause (paragraph twelve) because Midwest did not remedy damage to the site resulting from slope failure and erosion.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marlon Young

Case No.: 2016AP856-CR

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

Focus: Court Error – Plea Withdrawal

Marlon Young appeals from a judgment of conviction entered upon his no-contest plea to repeated sexual acts of the same child. Young contends that the circuit court erroneously denied (1) his request to represent himself at trial and (2) his presentence motion for plea withdrawal. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael L. Wortman

Case No.: 2016AP1144-CR

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

Focus: Motion to Suppress Evidence 

Michel L. Wortman appeals from a judgment of conviction for ninth offense operating while intoxicated (OWI). Wortman was stopped by police after he walked away from the scene of an accident. Wortman argues that all evidence obtained from him should have been suppressed and that the court erred in the imposition of his fine. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Vincent E. Boyd

Case No.: 2016AP1173

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

Focus: Plea and Sentencing – Plea Withdrawal  

Vincent E. Boyd appeals pro se from an order denying his postconviction motion to withdraw his no contest pleas. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Donald L. White

Case No.: 2017AP188-CR

Officials: NEUBAUER, C.J.

Focus: Evidentiary Hearing

Donald L. White appeals from a judgment of conviction and an order denying his postconviction motion for an evidentiary hearing on his request to withdraw his no contest plea. White asserts that his plea was not knowingly, intelligently, and voluntarily entered because the circuit court’s plea colloquy was defective. We hold that White was not entitled to an evidentiary hearing and therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael A. Johnson

Case No.: 2017AP331-CR

Officials: HAGEDORN, J.

Focus: Motion to Suppress Evidence

Michael Johnson appeals from a judgment convicting him of possessing tetrahydrocannabinol (THC). He specifically takes issue with the circuit court’s denial of his motion to suppress evidence acquired after he consented to a search of the motor vehicle he was driving. He claims his consent was obtained during an illegal seizure of his person and was therefore invalid. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin Ex Rel. Olton Dumas v. Denise Symdon, et al.

Case No.: 2016AP1477

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

Focus: Probation Hearing

Olton Dumas, pro se, appeals a circuit court order denying his petition for certiorari review of a probation revocation. The circuit court upheld a decision of the Division of Hearings and Appeals (the division) that sustained the decision of an Administrative Law Judge (ALJ) revoking Dumas’s probation. We reject his arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Kenneth S. Wade v. Alexa A. Pfister aka Alexa Bevers

Case No.: 2016AP1693

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

Focus: Prescriptive Easement Claim

Kenneth Wade owns property abutting Alexa Pfister’s property. In March 2015, Wade filed a complaint seeking a declaration, pursuant to WIS. STAT. § 893.28 (2015-16), that he had established prescriptive easements over five paths on Pfister’s property, which he used since March 1991, “for a period greater than 20 years,” to “mov[e] equipment necessary to the management of his land.” The circuit court granted Pfister’s motion for summary judgment and dismissed Wade’s complaint. Wade appeals. We conclude that Pfister is entitled to summary judgment because the undisputed facts establish that Wade failed to prove at least one of the elements of a prescriptive easement claim, as applied to the undisputed facts here: that since 2001 Wade’s use of Pfister’s “unenclosed land” was hostile or adverse to Pfister, contrary to the presumption under WIS. STAT. § 893.28(3) that Wade’s use was permissive. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: TCAT Corporation v. Labor and Industry Review Commission, et al.

Case No.: 2016AP1779

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

Focus: Sufficiency of Evidence

Employer TCAT Corporation, which owns a gas station, appeals a circuit court order affirming a decision of the Labor and Industry Review Commission in favor of Esther Peterson, a former clerk at the gas station, regarding her retaliatory discharge complaint. The employer challenges the Commission’s conclusion that the employer discriminated against Peterson, in violation of the Wisconsin Fair Employment Act, WISCONSIN STAT. §§ 111.31- .395 (2015-16),  by terminating her employment because Peterson informed the employer that she planned to complain to a district attorney about the employer reducing Peterson’s paycheck to cover losses from gas drive-offs.

On appeal, the employer makes three arguments: (1) the Commission improperly considered a portion of Peterson’s administrative hearing testimony, which the Commission should have ignored because Peterson violated a discovery rule; (2) the Commission misinterpreted the fair employment act in concluding that it applies to the facts here; and (3) even if the Commission correctly interpreted the act, the Commission’s decision is not supported by substantial evidence. We reject the employer’s arguments and affirm.

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