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Weekly Case Digests — Jan. 2 – Jan. 5, 2018

By: WISCONSIN LAW JOURNAL STAFF//January 5, 2018//

Weekly Case Digests — Jan. 2 – Jan. 5, 2018

By: WISCONSIN LAW JOURNAL STAFF//January 5, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Abdullah Ennin v. CNH Industrial America, LLC

Case No.: 17-2270

Officials: EASTERBROOK and MANION, Circuit Judges, and LEE, District Judge

Focus: Title VII Violation

Abdullah Ennin appeals from a judgment in favor of his employer in this discrimination case. He claims that CNH Industrial America terminated his employment because of his race and national origin, disability and decision to take leave under the Family and Medical Leave Act of 1993. He also alleges that CNH interfered with his rights under the FMLA, conspired to violate his federal rights under 42 U.S.C. §§ 1985 & 1986, and engaged in negligent supervision in violation of Indiana law.

We agree with the district court in all respects. First, we conclude that by not filing a surreply brief in the district court, Ennin waived the admissibility of certain evidence that CNH attacked as inadmissible. Ennin had introduced the evidence in an attempt to show that CNH terminated him on a later date than it claimed, that is, after it knew that Ennin had been disabled and taken FMLA leave. Without the evidence, the record is undisputed that CNH terminated Ennin’s employment before it had knowledge of the alleged disability or his FMLA leave. Second, nothing in the record supports Ennin’s argument that CNH’s stated reasons for terminating his employment were pretext for any sort of discrimination. Third, CNH did not interfere with Ennin’s right to take FMLA leave. And finally, Ennin’s federal conspiracy and state law negligent‐supervision claims necessarily fail because they are derivative of underlying violations of federally protected rights. Without any underlying violations, Ennin cannot sustain these claims. Therefore, we affirm the judgment.

Affirmed
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7th Circuit Court of Appeals

Case Name: James Freeman v. Guy Pierce

Case No.: 16-1229

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

Focus: 6th Amendment Violation – Habeas Corpus

For over forty years, the Supreme Court has recognized that the Sixth Amendment implicitly entails a right to self-representation. Faretta v. California, 422 U.S. 806, 819 (1975). When Petitioner James Freeman, charged in Illinois state court with kidnapping and murder, filed a motion to proceed pro se, the judge denied his request and found that he did not possess the necessary experience and abilities to represent himself. Freeman ultimately proceeded to trial with a lawyer and was convicted.

While acknowledging that the right to self-representation cannot be denied based on limited education and legal abilities, the Illinois Appellate Court affirmed the denial of Freeman’s right on the ground that his request was not unequivocal. The trial court’s denial of Freeman’s self-representation right, and the appellate court’s affirmance of that decision, were both contrary to, and unreasonable applications of Faretta. Freeman petitioned this Court for a writ of habeas corpus, and since he has satisfied the stringent standards for habeas relief under 28 U.S.C. § 2254(d)(1), he is entitled to the issuance of a writ.

Reversed and Remanded
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7th Circuit Court of Appeals

Case Name: Margaret Cullinan v. Nancy A. Berryhill

Case No.: 17-1287

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

Focus: Court Error – Expert Testimony

Margaret Cullinan appeals the denial of her application for Disability Insurance Benefits and Supplemental Security Income. She based her claim for benefits on several impairments, most of which arose after she suffered a stroke: anxiety, depression, peripheral blindness in one eye, diabetes, obesity, and sleep apnea. An administrative law judge determined that although Cullinan has several impairments, she is not disabled. Cullinan argues that the ALJ erroneously discredited both her testimony and the opinion of her treating psychologist. We vacate the judgment and remand for further administrative proceedings.

Vacated and Remanded
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7th Circuit Court of Appeals

Case Name: James Owens v. John Evans, et al.

Case No.: 16-1645

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

Focus: 1st Amendment Violation – Untimely Claim

James Owens, an Illinois prisoner, brought this lawsuit under 42 U.S.C. § 1983 alleging that 43 prison employees and the Illinois Department of Corrections obstructed his access to courts in violation of the First Amendment. Owens alleges that at four different correctional facilities, he had insufficient access to the law library and his excess legal storage boxes, was unable to send mail required to prosecute his cases, and was denied supplies. The district judge dismissed several claims and defendants, and later entered summary judgment for the remaining defendants. Because Owens’s strongest claim for relief was untimely and the rest were correctly dismissed or decided in the defendants’ favor, we affirm.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jackie Delmas Mason

Case No.: 2015AP2020-CR

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

Focus: Ineffective Assistance of Counsel

Jackie Delmas Mason appeals a judgment convicting him of two counts of third-degree sexual assault and three counts of substantial battery. He also appeals orders denying postconviction relief. Mason argues: (1) the circuit court should have granted his motion to sever the charges against him; (2) he was denied the right to self-representation; (3) he received constitutionally ineffective assistance of counsel; and (4) he was denied the right to an impartial judge. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Richard Daniel Benson

Case No.: 2016AP211-CR

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

Focus: Ineffective Assistance of Counsel

Richard Benson appeals his convictions on six felony charges entered on a jury verdict, as well as a circuit court order denying his postconviction motions. Benson claims his trial counsel rendered constitutionally ineffective assistance and contends the circuit court erred when it denied his Batson challenge to the State’s peremptory strike of one juror. We reject Benson’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Stephanie M. Przytarski, et al. v. Ted B. Vallejos

Case No.: 2016AP1122

Officials: KESSLER, J.

Focus: Motion for Contempt

Gary and Sandra Kramschuster (the Kramschusters), pro se, appeal an order of the circuit court denying their motion to find Ted Vallejos in contempt. We affirm the circuit court.

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WI Court of Appeals – District III

Case Name: Curtis L. Lovelien, et al. v. Austin Mutual Insurance Company

Case No.: 2016AP1679

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

Focus: Insurance – Direct Action Violation

Curtis Lovelien and Timothy Kroening (collectively, Lovelien) appeal an order dismissing Austin Mutual Insurance Company and the other claimants from this personal injury action after Austin Mutual settled with some of the claimants and forwarded its remaining policy limits to the circuit court for allocation between Curtis Lovelien and Timothy Kroening. Lovelien argues Austin Mutual’s payment of the remaining policy limits after the partial settlement violates Wisconsin’s direct action statute, WIS. STAT. § 632.24 (2015-16), because the funds were not distributed on a pro rata basis according to the damages each claimant sustained. Austin Mutual contends this appeal is moot based upon a claimed accord and satisfaction between Austin Mutual and Lovelien.

We conclude Austin Mutual’s payment of its remaining policy limits to the circuit court does not constitute an accord and satisfaction between Austin Mutual and Lovelien and, therefore, this appeal is not moot. We also conclude the direct action statute does not require distribution of an insurer’s funds to claimants on a pro rata basis. We therefore affirm the circuit court’s order of dismissal.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Atavia Joy Price

Case No.: 2016AP1828-CR; 2016AP1829-CR

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

Focus: Abuse of Discretion – Sentence Modification

Atavia Price appeals judgments of conviction, entered upon her no contest pleas, convicting her of robbery with use of force, possession of tetrahydrocannabinol (THC), bail jumping, and theft of movable property. Price also appeals the orders denying her postconviction motions for sentence modification. Price argues the circuit court erroneously exercised its sentencing discretion by imposing an excessive sentence and relying on a “speculative and irrelevant” factor. We reject Price’s arguments and affirm the judgments and orders.
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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Darryl L. Christensen

Case No.: 2016AP2068-CR

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

Focus: Court Error – Abuse of Discretion

Darryl Christensen pled guilty to five counts of sexual assault by a correctional officer. He then sought to have postconviction counsel appointed for him at public expense. The Office of the State Public Defender (SPD) found him financially ineligible for appointed counsel. The circuit court appears to have affirmed the SPD’s determination, and it also denied Christensen’s motion to have an attorney appointed for him at county expense. We affirm the circuit court’s determination in all respects. The record does not indicate how the SPD reached its financial ineligibility conclusion, and we therefore assume the circuit court’s decision affirming that conclusion was correct. We also conclude the circuit court properly exercised its discretion in declining to invoke its inherent authority to appoint counsel for Christensen at county expense.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Graham L. Stowe

Case No.: 2016AP2367-CR

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

Focus: Sufficiency of Evidence

Graham Stowe appeals an order denying his petition for conditional release under WIS. STAT. § 971.17(4) (2015-16). Stowe contends the State failed to prove by clear and convincing evidence that, if conditionally released, he would pose a significant risk of bodily harm to himself or others or a significant risk of property damage. See § 971.17(4)(d). Stowe also argues § 971.14(4)(d) is unconstitutional both as applied to him and on its face. We reject Stowe’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hector Miguel Ortiz Martinez

Case No.: 2017AP668

Officials: BRENNAN, P.J.

Focus: OWI – Time Barred

Hector Miguel Ortiz Martinez appeals from an order revoking his driver’s license pursuant to WIS. STAT. § 343.305(9), for refusing to provide a requested breath sample following his arrest for operating while intoxicated. Ortiz Martinez received no hearing on the refusal because he had failed to request a hearing within the ten-day period prescribed in WIS. STAT. § 343.305(10)(a). He sought an opportunity to present evidence and argue to the court that under the circumstances, he was entitled to such a hearing despite a belatedly filed request. He asserted that a language barrier and incomplete information he had received from police meant that the written notice he received was legally insufficient to constitute “notice of intent to revoke” his operating privileges as § 343.305(10)(a) requires. Under the statute, the ten-day clock on filing a request for a hearing starts at the time such notice is served.

The circuit court held that the lack of a timely request for a hearing deprived the court of competency to hear Ortiz Martinez’s arguments. Ortiz Martinez renews his arguments on appeal. We affirm.

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WI Court of Appeals – District II

Case Name: Kenosha County Department of Human Services v.  V.J.G.

Case No.: 2017AP1150; 2017AP1151

Officials: HAGEDORN, J.

Focus: Termination of Parental Rights

V.J.G. appeals from orders terminating his parental rights based on his failure to personally appear at multiple hearings despite court orders to do so. V.J.G. raises a number of arguments. His first set of arguments is premised on, as he sees it, the circuit court’s lack of authority to order him to personally appear at hearings, especially in view of SCR 11.02. Second, he claims his due process rights were violated because he was not notified of the dispositional hearing. Finally, he raises an equal protection challenge against WIS. STAT. § 48.23(2)(b)3., which the circuit court used here to remove his attorney and find him in default. We reject these arguments and affirm the circuit court’s orders.

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WI Court of Appeals – District III

Case Name: Rande L. Purdy v. Lisa J. Purdy

Case No.: 2017AP1382-FT

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

Focus: Divorce – Spousal Maintenance Modification 

Rande Purdy appeals an order denying his postdivorce motion to terminate or reduce maintenance to his former wife, Lisa Purdy.  Rande argues the circuit court erred by finding Rande had not met his burden of establishing a substantial change in the parties’ circumstances to support modification of his maintenance obligation. We reject Rande’s argument and affirm the order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. David M. Larson

Case No.: 2017AP1610-CR

Officials: REILLY, P.J.

Focus: OWI – Restitution

David M. Larson appeals from a judgment of conviction for operating while intoxicated (OWI), fourth offense. A hit-and-run charge was dismissed and read in as part of Larson’s no contest plea to the OWI. The circuit court ordered restitution of $2773 to the victim. Larson argues that he should not have been ordered to pay restitution as the accident was not his fault. We affirm the decision of the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.K.

Case No.: 2017AP1952; 2017AP1953

Officials: BRASH, J.

Focus: Termination of Parental Rights

M.K. appeals from orders terminating her parental rights for two of her biological children, B.A. and L.K. She asserts that the trial court did not appropriately exercise its discretion in granting the termination of her parental rights because it did not sufficiently consider the statutory standard and factors relating to termination. She therefore seeks to vacate the termination of parental rights orders for the children. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Edward Cintron

Case No.: 2016AP2019-CR; 2016AP2020-CR

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

Focus: Joinder of Cases

Edward Cintron appeals one criminal judgment convicting him of attempted first-degree sexual assault of a child under twelve, and another criminal judgment convicting him of two counts of fourth-degree sexual assault and two counts of disorderly conduct. The sole issue on appeal is whether the two cases were properly joined for trial. We conclude that they were and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Fontaine L. Baker

Case No.: 2016AP2516

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Sentence Modification – Mitigating Evidence

Fontaine Baker was charged with first-degree intentional homicide while armed in the shooting death of Frankie Jenkins. At the jury trial, Baker admitted that he had shot Jenkins in the head and that he had fled the area after doing so. However, Baker testified that he shot Jenkins by accident, and fled because he “just panicked” and “didn’t know what to do.” Baker was convicted of first-degree reckless homicide. Baker appealed the judgment of conviction and an order denying post-conviction relief, and this court affirmed both. Baker subsequently appealed an order denying his motion for postconviction relief on the ground of ineffective assistance of counsel, which we also affirmed.

Baker filed a post-conviction motion that the circuit court denied without a hearing. The motion was based entirely on a post-trial diagnosis by a psychologist that Baker suffered from post-traumatic stress disorder (PTSD) at the time of the shooting. On appeal, Baker argues that the post-trial PTSD diagnosis constitutes mitigating evidence about his mental state when he fled following the shooting, and therefore a new trial is merited based on newly discovered evidence or in the interest of justice, or, in the alternative, that his sentence should be modified. We affirm for reasons explained below.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brandon L. Scherz

Case No.: 2017AP730-CR

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

Focus: Court Error – Suppression of Evidence

Brandon Scherz was charged with second-degree sexual assault, possession of marijuana, and possession of drug paraphernalia. Following an evidentiary hearing, the circuit court suppressed statements that Scherz made to police before and after his arrest. The State appeals the suppression ruling pre-trial pursuant to WIS. STAT. § 974.05(1)(d)3. We agree with the State that the circuit court erred. In particular, we reject the proposition that fact finding by the circuit court supports its suppression ruling. We also decline to affirm on the alternative ground that the circuit court could have excluded the evidence under WIS. STAT. § 904.03. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: Kewaunee County Department of Human Services v. R.I.

Case No.: 2017AP1697

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

Focus: Termination of Parental Rights – Issues of Material Fact

R.I. appeals an order terminating his parental rights to M.J., his biological daughter who is an Indian child. R.I. is not of Native American heritage. During the grounds phase of this termination of parental rights (TPR) action, the parties stipulated R.I. had abandoned M.J. However, R.I. argued that prior to determining if grounds existed to terminate his parental rights, the circuit court was required to hold an evidentiary hearing. R.I. asserted the hearing was necessary to determine the likelihood of serious emotional or physical damage from his continued custody of M.J. and if any active efforts were made to prevent breakup of an Indian family, pursuant to 25 U.S.C. § 1912(f) and (d) of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (ICWA), and WIS. STAT. § 48.028(4)(e)1. and 2. of the Wisconsin Indian Child Welfare Act, WIS. STAT. § 48.028 (WICWA). The circuit court granted partial summary judgment in favor of the Kewaunee County Department of Human Services (the County) after the court concluded the respective provisions of ICWA and WICWA did not apply to R.I.

On appeal, R.I. contends the circuit court’s grant of partial summary judgment was improper because genuine issues of material fact existed regarding damage to M.J. from R.I.’s continued custody and whether active efforts were made to prevent breakup of the Indian family as required by ICWA and WICWA. We conclude 25 U.S.C. § 1912(f) and (d) are inapplicable because R.I. never had custody of M.J. See Adoptive Couple v. Baby Girl, 570 U.S. ___, 133 S. Ct. 2552, 2560-63 (2013). We also reject R.I.’s argument that WIS. STAT. § 48.028(4)(e)1. and 2. apply to him regardless of his lack of custody and conclude WICWA does not establish a higher level of protection for R.I.’s parental rights than ICWA. Accordingly, we affirm the TPR order.

Recommended for Publication

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WI Supreme Court Digests

WI Supreme Court

Case Name: Debra K. Sands v. John R. Menard, Jr.,

Case No.: 2012AP2377; 2015AP870

Focus: Sufficiency of Evidence

We review a decision of the court of appeals, affirming the circuit court’s grant of summary judgment dismissing Debra Sands’ claims and Menard, Inc.’s counterclaim. Debra Sands and John Menard, Jr., were involved in a romantic relationship from late 1997 to April 2006. Sands alleges that from 1998 until 2006 she cohabitated with Menard and they engaged in a “joint enterprise” to work together and grow Menard’s businesses for their mutual benefit. Menard and his affiliated entities argue that by failing to comply with Supreme Court Rule 20:1.8(a), which regulates business transactions between lawyers and their clients, Sands is precluded from seeking an ownership interest in any of Menard’s various business ventures.

We review four issues. First, we consider whether Sands has pleaded facts sufficient to establish what she styled as an unjust enrichment claim under Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 305 (1987), thereby necessitating a remand to the circuit court for a full hearing on the merits. Second, we consider whether the court of appeals properly concluded that SCR 20:1.8(a) may be raised as a defense to an unjust enrichment claim. Third, we consider whether the court of appeals properly granted summary judgment to Sands on Menard, Inc.’s counterclaim for breach of fiduciary duty. And fourth, we consider whether the court of appeals properly granted summary judgment to the Menard Trustees.

As to the claim she has characterized as a Watts unjust enrichment claim, we conclude that Sands has failed to allege facts which, if true, would support her legal conclusion that she and Menard had a joint enterprise that included accumulation of assets in which both she and Menard expected to share equally. On the second issue, for the reasons explained below, we conclude that SCR 20:1.8(a) may guide courts in determining required standards of care generally; however, it may not be used as an absolute defense to a civil claim involving an attorney. And finally, we also conclude that the court of appeals properly granted summary judgment to Sands on Menard, Inc.’s counterclaim for breach of fiduciary duty, and to the Trustees on their motion for summary judgment dismissing Sands’ claim. Accordingly, we affirm the court of appeals.

Affirmed

Concur: ABRAHAMSON, J. concurs and dissents, joined by A.W. BRADLEY, J. (opinion filed).

Dissent: ABRAHAMSON, J. concurs and dissents, joined by A.W. BRADLEY, J. (opinion filed).
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