Weekly Case Digests — October 16-20, 2017

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Sherwin A. Brook v. J. Lawrence McCormley, et al.

Case No.: 16-4255

Officials: BAUER, ROVNER, and SYKES, Circuit Judges.

Focus: Breach of Fiduciary Duty

Plaintiff-appellant, Sherwin Brook (“Brook”), appeals the district court’s finding that the Northern District of Illinois lacks personal jurisdiction over the defendants-appellees, J. Lawrence McCormley and Tiffany & Bosco, P.A.(collectively, “Defendants”), for a legal malpractice, breach of contract, and breach of fiduciary duty lawsuit. For the reasons set forth below, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Theresa Riffey, et al., v. Bruce V. Rauner, et al.

Case No.: 16-3487

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

Focus: Abuse of Discretion

The appellants in this case are home health care assistants who wanted the district court to certify a class of their fellow assistants for purposes of securing a class-wide refund of the fair-share fees they paid to a union for collective bargaining representation. For a number of reasons, the district court found that the class should not be certified. It awarded injunctive relief in favor of the plaintiffs, as well as individual damages, and this appeal followed. Because we find no abuse of discretion in the court’s refusal to certify the class, we affirm

Affirmed

Full Text

7^th 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 Statute

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). Following circuit precedent, we initially held that Garcia lacked standing to challenge the regulations because of the discretionary nature of asylum. However, we now grant Garcia’s petition for rehearing to address the standing question. The government now agrees that Garcia has standing.

We agree with the parties that Garcia has standing to file this petition, and as we discuss below, anything to the contrary in this court’s precedent will be overruled. However, on the merits we conclude that 8 U.S.C. § 1231(a)(5) plainly prohibits aliens in Garcia’s position from applying for asylum. Therefore, we deny his petition for review.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Sidney Hillman Health Center of Rochester, et al. v. Abbott Laboratories, et al.

Case No.: 17-1483

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

Focus: RICO Claims

Plaintiffs contend that Payors bear the principal costs of off-label promotions, because they pay for most of the cost of the drugs, but comparing the patients’ health costs (and out- of-pocket co-pays) with the Payors’ costs may be difficult.

Second, whether or not any given off-label prescription for Depakote helped the patient (compared with another drug), some physicians were apt to write such prescriptions whether or not Abbott promoted off-label uses. We know that the number of off-label prescriptions grew once Abbott began its campaign, but off-label prescriptions did not start from zero. To calculate damages, it would be necessary to determine the volume of off-label prescriptions that would have occurred in the absence of Abbott’s unlawful activity.

We hold that improper representations made to physicians do not support a RICO claim by Payors, several levels removed in the causal sequence. Public prosecution avoids these problems, so Abbott’s criminal conviction and $1.6 billion payment were the proper remedies.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: BancorpSouth, Incorporated v. Federal Insurance Company

Case No.: 17-1425     

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges

Focus: Bad Faith Denial of Coverage

On May 18, 2010, Shane Swift filed a class action lawsuit on behalf of himself and others similarly situated against BancorpSouth, Incorporated (“Bancorp”) in the Northern District of Florida based upon its assessment and collection of excessive overdraft fees. On February 24, 2016, Bancorp and Swift entered into a settlement agreement wherein Bancorp agreed to pay $24 million to the settlement class. Bancorp had previously notified its insurer, Federal Insurance Company (“Federal”), that it sought coverage for defending the lawsuit, and eventually, to indemnify the settlement costs. Federal denied all coverage, and consequently, Bancorp filed a complaint against Federal alleging breach of contract, as well as bad faith denial of coverage. Federal filed a motion to dismiss the complaint, citing an exclusion of coverage in their policy with Bancorp for any claim “based upon, arising from, or in consequence of any fees or charges.” The district court granted Federal’s motion to dismiss, and Bancorp appealed. We affirm.

We conclude that the district court correctly dismissed Counts One and Two, Count Three alleging bad faith denial of coverage was also correctly dismissed since there were no longer underlying claims. Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So. 2d 8, 13 (Miss. 2002) (“An insured seeking to recover on a claim of bad faith must first establish the existence of coverage on the underlying claim.”).

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Delfino Rodriguez-Contreras v. Jefferson B. Sessions III

Case No.: 17-1335

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

Focus: Immigration Appeal

Rodriguez-Contreras contends that 720 ILCS 5/24–1.1(a) does not match the federal crime because the state statute bars felons from possessing pneumatic weapons as well as those that use explosives. The Board did not address this argument. Instead it stated that Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008), and Estrada-Hernandez v. Lynch, 819 F.3d 324 (7th Cir. 2016), have held that a violation of 720 ILCS 5/24–1.1(a) is an aggravated felony, so there was no work for the Board to do.

Whether it will be necessary to exercise discretion is open to question. When the removal proceeding began, the agency’s sole stated reason for deeming Rodriguez-Contreras removable was his conviction of an aggravated felony; the administrative prosecutor did not rely on any of Rodriguez Contreras’s other convictions or contend that his felon-in-possession conviction, shorn of the aggravated-felony characterization, justifies removal. The first order of business on remand therefore will be to determine whether this removal proceeding should be dismissed outright.

Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Jamie Cosenza v. Nancy Berryhill

Case No.: 17-1081

Officials: KANNE, and SYKES, Circuit Judges.

Focus: Contempt and Summary Judgment Motion Denied

On appeal Cosenza first insists that the Commissioner violated the remand order by repeating the same analytical errors that were the basis of the district court’s remand and that the Commissioner therefore should be held in contempt. But, as the court explained, the ALJ had not issued an unfavorable decision at the time Cosenza filed her contempt motion. And anyway Cosenza’s challenges to the analysis in the ALJ’s decision amounted to a request for judicial review, for which she must follow the procedures outlined in the statute and regulations and wait for a final decision from the agency. See § 405(g); 20 C.F.R. § 416.1484(a). Because the Commissioner did not violate any direct command of the remand order, the district court did not err in denying Cosenza’s contempt motion.

Cosenza next challenges the court’s decision to strike her summary-judgment motion on jurisdictional grounds. She contends that summary judgment in her favor is warranted because the ALJ on remand failed to fix the errors that the district court had identified in its remand order. But as the district court explained, a district court lacks jurisdiction under the Social Security Act to review an ALJ’s unfavorable decision until the agency’s decision is final. § 405(g). The agency’s decision is not yet final because the Appeals Council has not yet decided whether to take up review of the ALJ’s decision. See 20 C.F.R. § 416.1484(b). According to an affidavit submitted by an official in the Social Security Administration’s Office of Appellate Operations, the Appeals Council will not process Cosenza’s agency appeal until the current civil action is dismissed. Once the agency issues a final decision, Cosenza may pursue judicial review by filing a new complaint in the district court.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Bradley D. Dearborn

Case No.: 16-3346; 16-3905

Officials: RIPPLE, ROVNER, AND HAMILTON, Circuit Judges.

Focus: Sentencing Guidelines and Due Process Violation

Now, in Appeal No. 16-3346, Dearborn argues that during resentencing the court should have reconsidered its earlier denial of a motion to suppress evidence. We conclude that Dearborn waived that argument, however, so we affirm the district court’s new sentence. Appeal No. 16-3905, which Dearborn briefed pro se, concerns the denial of several motions for an immediate transfer to a federal prison from the county jail where Dearborn was housed temporarily after resentencing. Because Dearborn has since been transferred to a federal prison, we dismiss the pro se appeal as moot.

In his pro se appeal, Dearborn asserts that his continued detention at the Fulton County Jail after his federal resentencing violated his right to due process and the Interstate Agreement on Detainers, 18 U.S.C. App. 2. But Dearborn’s later transfer to the Federal Correctional Institution in Greenville, Illinois, has made that objection moot.

Affirmed in part. Dismissed in part.

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Byron J. Holton

Case No.: 17-1406

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

Focus: Sentencing Guidelines

On appeal, Holton argues that the district judge imposed a substantively unreasonable sentence by relying on uncharged conduct (the drug-dealer robberies) as the basis for imposing an above-Guidelines sentence on the conspiracy count. He first contends that the judge wrongly supplanted the jury’s fact- finding role and improperly used a preponderance-of-the- evidence standard (instead of beyond a reasonable doubt) when determining that he robbed drug dealers. In support of this argument, he quotes Justice Scalia, who, in a dissent from a denial of certiorari, disapproved of judges finding facts at sentencing about uncharged or acquitted conduct.

According to Justice Scalia, “any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury.” Jones v. United States, 135 S. Ct. 8, 8 (2014) (Scalia, J., dissenting from the denial of certiorari). In the alternative, Holton asserts that the district judge wrongly assumed that “if Appellant was convicted on the conspiracy count, it was proven beyond a reasonable doubt that Appellant was involved with the uncharged conduct … .” The judge merely decided that the earlier robberies were relevant to sentencing Holton for the conspiracy offense and that she was satisfied from the trial evidence that the conduct had occurred.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Ali Al-Awadi

Case No.: 16-2643

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Focus: Sufficiency of Evidence

While he was the only adult in a room of napping children at the daycare where he worked, Ali Al‐Awadi pulled back the underwear of one young girl and took pictures. He claimed at trial that he did so because she injured herself on his watch while she was playing on his lap and he was checking for injury. The jury did not believe him and convicted him of making and attempting to make child pornography. He appeals his convictions. Several of his arguments concern evidence the jury heard that Al‐Awadi also digitally penetrated the young girl, an act for which he was not charged in this case.

Although he argues the jury received the wrong standard when it was instructed to deter‐ mine whether it was “more likely than not” that Al‐Awadi had molested the girl, the pattern jury instruction given to the jury accurately told the jury how to assess evidence of acts other than charged crimes. The jury was also instructed that the government had to prove the elements of the charged crimes beyond a reasonable doubt for Al‐Awadi to be found guilty. Al‐Awadi also argues that the jury heard too much evidence of the molestation. However, the evidence was permissible because he placed his intent in taking the pictures at is‐ sue, the molestation evidence was relevant to his intent, and the government’s evidence was not unduly repetitive. Finally, sufficient evidence supports the jury’s conclusion that Al‐ Awadi used the young girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct.

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio Lamar Tatum

Case No.: 2014AP1942

Officials: Brennan, Brash and Dugan, JJ

Focus: Postconviction Motion Denied

Antonio Lamar Tatum, pro se, appeals an order denying his collateral postconviction motion brought pursuant to WIS. STAT. § 974.06 (2013-14). 1 Because Tatum has not demonstrated a sufficient reason for failing to make his current claims in his previous no-merit appeal, he is barred from doing so in this appeal. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). Moreover, even if his arguments were not barred, Tatum’s claims of ineffective assistance of trial and postconviction counsel would fail on their merits. Accordingly, we affirm the order denying postconviction relief.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justin T. Winston

Case No.: 2015AP1419-CR

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

Focus: Postconviction Motions Denied and Ineffective Assistance of Counsel

Justin T. Winston appeals from a judgment of conviction for one count of first-degree intentional homicide as a party to a crime and one count of being a felon in possession of a firearm, contrary to WIS. STAT. §§ 940.01(1)(a), 939.05, and 941.29(2) (2009-10).  Winston also appeals from the denial of two postconviction motions. On appeal, Winston argues that “the trial court erred when it decided that there was no Batson violation at the jury trial and when it denied [the] postconviction motion on this issue.” See Batson v. Kentucky, 476 U.S. 79 (1986). Winston also argues that if this court concludes that he forfeited “the Batson issue because his trial counsel did not initially raise it,” then his trial counsel provided ineffective assistance for not raising the issue. We affirm the judgment and orders.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Eric G. Perkins

Case No.: 2016AP811

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

Focus: Ineffective Assistance of Counsel

Eric G. Perkins appeals an order denying his collateral postconviction motion to withdraw his guilty pleas to second-degree reckless homicide and second-degree recklessly endangering safety, both as a party to a crime and with use of a dangerous weapon. To show that Perkins had a sufficient reason for not previously raising his claim based on ineffective assistance of counsel, Perkins was required of allege facts that, if true, would show that: (1) his postconviction counsel performed deficiently; and (2) the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (a defendant is entitled to an evidentiary hearing on a postconviction claim if he “alleges sufficient material facts that, if true, would entitle the defendant to relief”). Perkins’ conclusory one sentence argument wholly fails to allege specific facts that, if true, would establish that counsel provided him with constitutionally ineffective representation. Perkins attempts to rectify his inadequate pleading by fleshing it out a bit on appeal. This he may not do. A defendant must allege facts that, if true, would entitle him to relief “within the four corners of the [postconviction motion] itself.” Allen, 274 Wis. 2d 568, ¶23. Therefore, we conclude that Perkins’ claim is barred by Escalona-Naranjo because he has not shown a sufficient reason for failing to previously raise his claim.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven J. Lelinski

Case No.: 2016AP1157

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

Focus: Postconviction Motion Denied

Steven J. Lelinski appeals from a circuit court order denying his second WIS. STAT. § 974.06 (2015-16) postconviction motion without a hearing. 1 The postconviction court concluded that Lelinski’s claim was procedurally barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Damien Markeith Divone Scott

Case No.: 2016AP1742-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Fourth Amendment – Reasonable Suspicion Requirement

Scott argues that the police did not have reasonable suspicion to stop his vehicle, violating his Fourth Amendment protections against unreasonable searches and seizures, which renders the stop illegal. As a result, Scott asserts that the evidence obtained from the subsequent search of the vehicle should have been suppressed. The trial court ruled that the circumstances of the stop qualified as a valid Terry investigative stop, as opposed to a “checkpoint” stop, which is not permitted in the absence of reasonable cause that a statutory or ordinance violation has been committed, pursuant to WIS. STAT. § 349.02(2)(a) (2015-16). The trial court therefore denied Scott’s motion to suppress.

However, on appeal the State concedes that these circumstances did not constitute a Terry stop. Nevertheless, the State argues that these circumstances were sufficient to invoke an exception to the reasonable suspicion requirement of the Fourth Amendment for special needs of law enforcement. We agree and affirm.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. C.L.K.,

Case No.: 2017AP1413; 2017AP1414

Officials: DUGAN, J.

Focus: Termination of Parental Rights

On appeal, C.L.K. contends that by granting a directed verdict for the State at the close of the State’s case during the grounds phase of the proceedings without allowing him an opportunity to present any evidence, the trial court violated his due process right to present a defense, which constituted structural error. The State concedes that the trial court followed an incorrect procedure by granting a directed verdict at the close of the State’s case. However, it contends the error is subject to harmless, not structural, error analysis and, because the evidence of abandonment was overwhelming, the error was harmless.

We agree that the trial court erred. However, we conclude that the error does not constitute a structural error. Therefore, the error should be analyzed under the harmless error analysis. Applying that analysis, we find that the error was harmless. We affirm the trial court’s orders.

Full Text

WI Court of Appeals – District III

Case Name: Secura Insurance v. Lyme St. Croix Forest Company, et al.

Case No.: 2016AP299

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

Focus: Commercial Insurance Policy

Secura appeals the circuit court’s determination regarding the applicable policy limitation in a commercial general liability (CGL) policy Secura had issued. Applying Wilson Mutual Insurance Co. v. Falk, 2014 WI 136, 360 Wis. 2d 67, 857 N.W.2d 156, the circuit court held that there was a separate “occurrence” each time the fire entered onto a new piece of real property and caused damage. Consequently, the court held that Secura’s aggregate policy limit of $2 million applied, rather than the per-occurrence limit of $500,000. We agree that the aggregate limit applies, and we therefore affirm on that issue.

Hanover Insurance Company cross-appeals the circuit court’s determination that there was no coverage under an umbrella business liability policy Secura had also issued to the logging company. We generally agree with Secura that coverage is precluded pursuant to an exclusion for property damage “arising out of” the destruction of standing timberland by fire. However, we cannot conclude the exclusion applies to all property damage, as the record shows there may have been property damage that occurred prior to the fire reaching standing timber. Accordingly, we reverse and remand for a factual determination on the issue of damages relevant to coverage under the umbrella policy.

Full Text

WI Court of Appeals – District II

Case Name: Local 67, AFSCME, AFL-CIO v. City of Racine

Case No.: 2016AP1584

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

Focus: Arbitration Award – Arbitrator Misconduct

Local 67, AFSCME, AFL-CIO (hereafter the Union) appeals from a circuit court order denying its motion to vacate an arbitration award. The arbitrator dismissed a Union member’s grievance after denying the Union representative’s request to adjourn the scheduled arbitration. We agree with the circuit court that the arbitrator properly exercised his discretion when he denied the adjournment request. We affirm the circuit court order denying the Union’s motion to vacate the arbitration award.

On appeal, the Union argues that the arbitrator engaged in misconduct when he declined to adjourn the hearing after the Union established sufficient cause to do so. While the Union concedes that numerous delays occurred in the arbitration arising from its previous adjournment requests, the Union places great weight on the fact the arbitrator did not cite this history of delay or offer any reason at all on October 26 when he denied DeLorme’s adjournment request.

Full Text

WI Court of Appeals – District II

Case Name: Van Horn Hyundai, Inc. v. Lake City Supply Company, LLC, et al.

Case No.: 2016AP1601

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

Focus: Sufficiency of Evidence

Van Horn Hyundai, Inc. appeals from a judgment dismissing its claims after a jury trial against automobile parts supplier Lake City Supply Company, LLC, Hans Sundgaard and Shea Ruthe (hereafter Lake City). On appeal, Van Horn argues that the circuit court should have granted its summary judgment motion that the items of value received by its parts purchasing agent constituted a prohibited commission under WIS. STAT. § 134.05(2)(b) (2013-14). Van Horn has not established on appeal that the circuit court erred when it denied summary judgment. Van Horn also argues that the circuit court improperly admitted hearsay evidence at trial which necessitates a new trial. This issue is inadequately briefed and we reject the hearsay challenges. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: City of New Richmond v. Warren Wayne Slocum

Case No.: 2016AP1887

Officials: HRUZ, J.

Focus: Sixth Amendment Violation – Jury Trial

Warren Slocum, pro se, appeals a judgment entered on a disorderly conduct citation and an order denying reconsideration. We affirm

Slocum first argues the circuit court improperly denied him a jury trial. Slocum contends he requested a jury trial in his appeal from the municipal court. He further contends that after the case was re-assigned in the circuit court, “the local judge ignored the previous judge’s approval of the case as a jury trial.”

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ricardo Rivera

Case No.: 2017AP191-CR

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

Focus: Ineffective Assistance of Counsel

Ricardo Rivera appeals a judgment of conviction and an order denying his motion for postconviction relief. Rivera argues his trial attorney was constitutionally ineffective when he failed to ensure that the circuit court read to the jury WIS JI—CRIMINAL 315 (2001), relating to a defendant’s right not to testify in a criminal proceeding. We conclude Rivera has failed to establish prejudice stemming from his attorney’s alleged deficiency. Accordingly, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sierra Ann Desing

Case No.: 2017AP490; 2017AP491

Officials: NEUBAUER, C.J.

Focus: Motion to Suppress Evidence Denied

Sierra Ann Desing appeals from an order finding her guilty of first-offense operating a motor vehicle while intoxicated and with a prohibited alcohol concentration (PAC), and she challenges the denial of her motion to suppress evidence on grounds of an unlawful entry and search of her home. Because we conclude that the entry and search were lawful under the community caretaker exception to the warrant requirement, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sarah A. Schmidt

Case No.: 2017AP724-CR

Officials: NEUBAUER, C.J.

Focus: Sufficiency of Evidence

Sarah A. Schmidt appeals from a judgment finding her guilty of operating a motor vehicle with a prohibited alcohol concentration (PAC) and she challenges the denial of her motion to suppress evidence on grounds that probable cause to arrest was lacking. Because we conclude that sufficient evidence existed to reasonably believe that she been driving while under the influence of an intoxicant, there was probable cause for her arrest. We therefore affirm.

Full Text

WI Court of Appeals – District II

Case Name: Racine County Human Services Department v. C.C.,

Case No.: 2017AP750

Officials: GUNDRUM, J.

Focus: Termination of Parental Rights – Sufficiency of Evidence

C.C. appeals from an order of the circuit court, entered after a trial to the court, terminating her parental rights to her son, T.A. She asserts the evidence at the fact-finding hearing on the petition to terminate her parental rights was insufficient to establish grounds for termination under WIS. STAT. § 48.415(6). We disagree and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Dr. Stuart White, et al. v. City of Watertown

Case No.: 2016AP2259

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

Focus: Statutory Interpretation

Chapter 90 of the Wisconsin Statutes regulates partition fences on farming and grazing land as defined in the chapter. For ease of reading, we will frequently refer to farming and grazing land that is covered by Chapter 90 as “qualifying land.”

For the reasons explained below, we agree with the circuit court that Chapter 90 is ambiguous. We thus turn to the legislative history and, based on that history, agree with the circuit court and the Whites that, when qualifying land is in a city or village, that city or village must administer and enforce Chapter 90 the same as a town would if the land were in that town. Accordingly, we affirm the circuit court’s order declaring that the City must assume Chapter 90 duties with respect to the Whites’ land.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: Lisa Hoffman v. James Curran, et al.

Case No.: 2016AP2441

Officials: KLOPPENBURG, J.

Focus: Damages

Lisa Hoffman appeals pro se from a judgment awarding her landlords, James and LouAnn Curran, damages of $1,001.65 for unpaid utility charges. On appeal, Hoffman argues that the circuit court erred (1) in awarding the Currans damages for unpaid utility charges, and (2) in denying her motion to recuse the judge for bias. For the reasons set forth below, I reject Hoffman’s arguments and affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Charles A. Page

Case No.: 2017AP165-CR

Officials: SHERMAN, J

Focus:  Abuse of Discretion

Charles A. Page appeals judgments of conviction for shining of deer, contrary to WIS. STAT. § 29.314(3)(a), and resisting a conservation warden, contrary to WIS. STAT. § 29.951. Page contends that the circuit court erroneously exercised its discretion when it excluded at trial certain testimony by Page on the basis that the testimony was inadmissible other acts evidence and when the court excluded proposed testimony by a defense witness on the basis that counsel did not timely file a motion to admit that testimony. Page also contends that the judge at trial went beyond the role of a neutral magistrate when the judge directly questioned Page and thereby advocated for Page’s conviction. I affirm for the reasons discussed below.

Full Text

WI Court of Appeals – District IV

Case Name: Dodge County v. Ronald C. Seeber, et al.

Case No.: 2017AP360

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Statutory Interpretation

Dodge County brought an enforcement action alleging that Ronald Seeber violated the Dodge County Land Use Code by having a salvage yard on his property. The circuit court denied Seeber’s motion to dismiss the action and, after a trial, found him to be in violation of the Code. Seeber argues that the charged sections of the Code are unconstitutionally vague and the County’s definition of “salvage yard” is unconstitutionally overbroad. We reject both arguments and affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Mark Halbman v. Mitchell J. Barrock

Case No.: 2017 WI 91

Focus: Sufficiency of Evidence

The basic issue for this court is whether Halbman failed to present the requisite evidence to support a damage award in his favor. The court of appeals examined the record and concluded that Halbman, the plaintiff, failed to carry his burden of proving damages and that the circuit court did not err in dismissing the case at the close of Halbman’s case-in-chief.

The review should be dismissed as improvidently granted because the issues for which we took the case do not present any real or significant questions of federal or state law or lead to developing, clarifying, or harmonizing the law. Cf. Wis. Stat. § 809.62(1r) (Criteria for granting review). Further review by this court and publication of an opinion by this court would not serve any purpose.

Dismissed

Concur: ABRAHAMSON, J. concurs, joined by A.W. BRADLEY, J.

Dissent:

Full Text