Weekly Case Digests — Jan. 22 – Jan. 26, 2018

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Ray Fuller v. Jefferson B. Sessions, III

Case No.: 17-3176

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

Focus: Immigration – Removal

Petitioner Ray Fuller is in the final stages of removal proceedings in which the U.S. Department of Homeland Security is seeking to have him sent back to his native Jamaica. This court has seen Fuller’s case before: in 2016, we considered Fuller’s petition for review from the decision of the Board of Immigration Appeals to deny his applications for withholding of removal under the Immigration and Nationality Act (INA) and withholding and deferral of removal under the Convention Against Torture (CAT). See Fuller v. Lynch, 833 F.3d 866 (7th Cir. 2016) (Fuller I). We concluded that we had no jurisdiction to review the Board’s characterization of Fuller’s 2004 conviction for attempted criminal sexual assault as a “particularly serious crime,” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). That label has serious consequences: it barred Fuller from withholding of removal under both the INA and CAT. Turning to Fuller’s request for deferral of removal under CAT, the Board found (as had the Immigration Judge (IJ)) that Fuller had not credibly shown that he was bisexual, nor that the Jamaican government would regard him as such. Fuller urged us to revisit the evidence and to conclude otherwise, but we found that substantial evidence supported the Board’s finding and that we had no power to conduct a de novo review of the record.

Denied in part. Granted in part

Full Text

7^th Circuit Court of Appeals

Case Name: Laborers’ Pension Fund, et al. v. W.R. Weis Company, Inc.,

Case No.: 16-2079;16-2944

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

Focus: Statuary Interpretation 

The Laborers’ Pension Fund administers the pension fund for the Laborers’ International Union of North America. W.R. Weis Company, a Chicago-area stonework firm, was required by a collective-bargaining agreement to contribute to the Fund for each hour worked by members of the Laborers’ Union. The company complied with this obligation for many years. Over time, however, the firm transitioned to using more highly skilled marble setters and finishers on its jobs, so it gradually stopped hiring members of the Laborers’ Union and ceased paying into the Fund. In 2012 the Weis Company terminated its collective bargaining agreement with the Laborers’ Union.

The Fund, a multiemployer pension plan governed by ERISA and the Multiemployer Pension Plan Amendment Act (“MPPAA”), served notice that the Weis Company owed more than $600,000 in withdrawal liability for ceasing to contribute to the Fund. The company paid the assessment but challenged it via arbitration, invoking an exemption for the building and construction industry. See 29 U.S.C. § 1383(b). The arbitrator agreed with the company, and a district judge confirmed the award but denied the Weis Company’s motion for attorney’s fees.

Both sides appealed. The Fund seeks de novo review of the arbitrator’s award, raising a legal argument about the language and purpose of the § 1383(b) exemption. The Weis Company responds that the deferential clear-error standard applies because the parties treated their dispute as entirely factual, as did the arbitrator. The Weis Company is right: the Fund waived its statutory-interpretation argument by failing to raise it in the arbitration. And because the Fund has not meaningfully challenged the arbitrator’s factual determinations, which easily survive clear-error review in any event, we affirm the judgment. Finally, we reject the cross-appeal because the judge did not abuse his discretion in denying the Weis Company’s motion for attorney’s fees.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Fredrick Michael Baer v. Ron Neal

Case No.: 15-1933

Officials: BAUER, FLAUM and WILLIAMS, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Fredrick Michael Baer murdered a young woman and her four‐year‐old daughter in their home. In connection with this crime, he was convicted in Marion Superior Court of the two murders, robbery, theft and attempted rape. He was sentenced to death. He filed a direct appeal to the Indiana Supreme Court raising several issues including prosecutorial misconduct, but his convictions and death sentence were affirmed. Baer filed state post‐conviction proceedings alleging that his trial and appellate counsel were ineffective. The court denied his petition and this denial was affirmed by the Indiana Supreme Court. Baer then filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Indiana, which was also denied. After we issued a certificate of appealability, Baer appealed the district court’s denial of his petition for a writ of habeas corpus.

Baer asserts that the Indiana Supreme Court’s ruling was unreasonable under Strickland v. Washington, 466 U.S. 668 (1984), for failing to find that Baer’s trial counsel was constitutionally ineffective for failing to (1) object to improper and confusing jury instructions given at the penalty phase of his trial, (2) object to prejudicial prosecutorial statements made throughout trial, and (3) investigate and present mitigating evidence on Baer’s behalf. While we affirm his convictions, we agree with Baer that, at the penalty phase, Baer’s counsel failed to challenge crucial misleading jury instructions and a pattern of prosecutorial misconduct, and that the state court unreasonably applied Strickland in denying Baer relief. Counsel’s deficiency resulted in a denial of due process, and we find the errors were sufficient to undermine confidence in the outcome of Baer’s penalty trial and so we find prejudice. While Baer’s offenses were despicable and his guilt is clear, he is entitled to a penalty trial untainted by constitutional error.

Reversed in part. Affirmed in part. We REVERSE the district court’s denial of Baer’s petition for a writ of habeas corpus with regard to the penalty phase of the trial. Baer’s convictions stand.

Full Text

7^th Circuit Court of Appeals

Case Name: Sharareh Shojaeddini, et al. v. Jefferson B. Sessions III

Case No.: 17-1648

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

Focus: Immigration – Fraud Waiver

Sharareh Shojaeddini and her young daughter, Maryam (“Petitioners”), were placed in removal proceedings in 2008 after the Department of Homeland Security (“DHS”) discovered that Sharareh had made material misrepresentations on her adjustment of status application, as well as her previously filed asylum application. Petitioners applied for a fraud waiver under 8 U.S.C. § 1227(a)(1)(H), which the Immigration Judge denied, finding that the fraud waiver did not apply to frauds committed at the adjustment of status.

Before the Board of Immigration Appeals (BIA) decided Petitioners’ appeal, DHS filed a motion to remand to the IJ so he could reconsider another aspect of the fraud waiver issue that he had declined to address: whether Sharareh had filed a frivolous asylum application, which would make her permanently ineligible for any immigration benefit. 8 U.S.C. § 1158(d)(6). On remand, the IJ found that Sharareh had filed a frivolous asylum application, making her permanently ineligible for the fraud waiver. Petitioners appeal, arguing that the BIA procedurally erred in granting DHS’ motion to remand. We conclude that the BIA did not err, and deny the petition for review.

Denied and Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Company

Case No.:17-1563

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

Focus: Lack of Subject-matter Jurisdiction

Labor-management relations in the railroad industry have been subject to a distinctive regulatory regime ever since the Railway Labor Act (RLA or Act) took effect in 1926. See 45 U.S.C. §§ 151–88. No one wants to see the nation’s transportation network brought to a standstill because of labor conflict. The RLA therefore is designed to substitute bargaining, mediation, and arbitration for strikes.

Embedded in the Act is a strong preference for arbitration, as opposed to judicial resolution of disputes. If a disagreement arises over the formation or amendment of a collective bargaining agreement (CBA), it is considered a “major” dispute under the Act, and it must be decided by a court. See Consolidated Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 302–03 (1989). If, on the other hand, it relates only to the interpretation or application of an existing agreement, it is labeled “minor” and must go to arbitration. Id. at 303. In the case before us, the Union Pacific Railroad (the Railroad) issued a modified disciplinary policy for its engineers without first sitting down at the bargaining table with their union, the Brotherhood of Locomotive Engineers and Trainmen (the Union). The Union argues that the Railroad could not take this step before bargaining and that its unilateral action violates the RLA. It also contends that the dispute itself is a major one not suitable for arbitration.

Observing that the playing field is tilted heavily in favor of arbitration, the district court agreed with the Railroad that the dispute is minor, and it accordingly dismissed the lawsuit in favor of arbitration. Although the Union has made a number of good points, we conclude that there is at least a nonfrivolous argument that interpretation of the agreement between the parties, not change, is at stake. We therefore affirm the district court’s decision dismissing the suit for lack of subject-matter jurisdiction.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Banco Panaamericano, Inc. v. City of Peoria, Illinois, et al.

Case No.: 17-1019

Officials: BAUER, POSNER, * and HAMILTON, Circuit Judges

Focus: Lease Agreement – Property

The central issue in this appeal is whether plaintiff Banco Panamericano has a better claim than the City of Peoria to the gas collection system and certain electrical infrastructure at the Peoria landfill. We agree with the district court that Peoria has the better claim under the terms of the lease that governed the installation and operation of the gas collection system and electrical connections.

In sum, Banco Panamericano does not have a “better claim” than Peoria to the disputed property because the bank could not have greater rights to the property than originally held by RTC. The lease between RTC and Peoria gave RTC no post‐termination property interest in the installations or structures at the Peoria landfill. The bank’s security interest could not reach the structures and installations at Peoria’s landfill, so the district court’s judgment in favor of Peoria is affirmed.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Neal R. Verfuerth v. Orion Energy Systems, Inc.

Case No.: 16-3502

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

Focus: Wrongful Termination – Whistleblower-protection

Neal Verfuerth is the founder and former CEO of Orion Energy Systems, a company that specializes in energy‐efficient lighting. Orion fired Verfuerth in November 2012, following several disputes between Verfuerth and Orion’s board of directors. These disputes involved a patchwork of issues, including the billing practices of outside counsel, the conduct of Orion’s board of directors, and a defamation suit filed by one of Orion’s former employees. Shortly after his departure from the company, Verfuerth brought this lawsuit. He argues that his complaints to the board about the board’s own managerial decisions amounted to “whistleblowing” and that, by firing him, Orion violated federal whistleblower‐protection laws. The district court resolved the case with a grant of summary judgment in Orion’s favor. Verfuerth appealed and now seeks to convince us that the district court was wrong.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: The Oilgear Company v. Robert A. Hitt

Case No.: 17-2534

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge

Focus: Securities – Default on Payment Obligation

As Oilgear’s CEO, Robert Hitt held restricted stock. When Hitt left his position in 2014, Oilgear exercised its option to repurchase the shares. Oilgear and Hitt agreed that he would receive $753,000: $108,000 immediately and $215,000 (plus interest) each June for the next three years. The 2015 installment was paid but the 2016 and 2017 installments were not. In this suit under the diversity jurisdiction, Oilgear sought and received a declaratory judgment that it is entitled to defer payment of the 2016 and 2017 installments.

Hitt’s theme is that payment to him is deferred only when Oilgear is in default. Once the Bank waived its remedies, Hitt insists, the bar to payment evaporated. Section 2.3 of the tripartite agreement indeed allows either the default’s cure or the Bank’s waiver of remedies to permit a resumption of payments to Hitt. But Hitt does not contend that the default has been cured, and the Bank conditioned its waiver on a power to approve additional payments to Hitt. No approval, no waiver; and no waiver (or cure), no payment.

He maintains that this understanding would make the tripartite agreement illusory. Not at all. Hitt already has received $323,000 for his stock. The other $430,000 remains due, with interest accumulating. It will be paid as soon as (a) Oilgear cures its default, (b) the Bank consents, or (c) the debt to the Bank is paid off through Oilgear’s merger or liquidation. Of course, if Oilgear does not have (and never obtains) the money to pay the Bank and Hitt too, then Hitt will lose out, but that’s what it means to hold junior debt.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Hyatt Franchising, LLC v. Shen Zhen New World I, LLC, et al.

Case No.: 17-2071

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

Focus: Arbitrator’s Award

Our first decision in this appeal affirmed a judgment enforcing an arbitrator’s award of approximately $9 million against Shen Zhen. 876 F.3d 900 (7th Cir. 2017). We concluded by observing that commercial parties that refuse to comply with an arbitrator’s decision presumptively must pay the attorneys’ fees that the prevailing party incurs in enforcement proceedings, in both the district court and the court of appeals. We thought, however, that it would be unnecessary to make an award as a sanction, because Shen Zhen had promised in the underlying contract to pay all of Hyatt’s fees. Just in case, however, we added that Hyatt may apply for a formal award.

Because Shen Zhen is unwilling to pay Hyatt’s fees as a matter of contract, we now order it to do so as a sanction for unnecessary and pointless litigation. Our initial opinion cited Continental Can Co. v. Chicago Truck Drivers Pension Fund, 921 F.2d 126, 128 (7th Cir. 1990), and 28 U.S.C. §1927. Continental Can requires the losing litigant to cover the winner’s legal expenses, and §1927 deals with the responsibility of counsel. The statute provides: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” The scorched-earth tactics being employed by Shen Zhen’s counsel fall comfortably within that description

Shen Zhen’s lawyers (Bruce M. Cohen and Jonah D. King of Cohen & Lord in Los Angeles) have until January 26 to show cause why they should not be held jointly and severally responsible for these fees under §1927. Their response thus is due the same day as Shen Zhen’s. One final observation: Our mandate has issued, so the district court is free to entertain any application that Hyatt may make seeking an injunction against Shen Zhen’s duplicative litigation. A district court is entitled to prevent a litigant from trying to circumvent its orders, and an ongoing dispute about sanctions does not detract from that authority

Sanctions for Fees

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jeffrey J. Wilson

Case No.: 17-1076

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

Focus: Sufficiency of Evidence

A grand jury indicted Jeffrey Wilson, in a twenty-one-count indictment, with the following offenses: (1) fraud in connection with the purchase or sale of securities, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5 (Count 1); (2) fraud in the offer or sale of securities, in violation of 15 U.S.C. §§ 77q(a) and 77x, and 18 U.S.C. § 2 (Count 2); (3) material false statements in required Securities and Exchange Commission (“SEC”) filings, in violation of 15 U.S.C. § 78ff and 18 U.S.C. § 2 (Counts 3–9); (4) wrongful certification of annual and quarterly reports by a corporate officer, in violation of 18 U.S.C. § 1350(c)(1) (Counts 10–14); (5) material false statements by a corporate officer to an accountant, in violation of 15 U.S.C. §§ 78m(b)(5) and 78ff, 17 C.F.R. §§ 240.13b2-2(a) and 240.13b2-2(b), and 18 U.S.C. § 2 (Counts 16–17 and 19–20); and (6) false statements to Government.

A jury convicted Mr. Wilson on all charges. He then filed a motion under Federal Rule of Criminal Procedure 29(c) for acquittal on all counts, contending that the Government had failed to present evidence sufficient to prove his guilt beyond a reasonable doubt. The district court denied the motion. It then sentenced Mr. Wilson to 120 months’ imprisonment for Counts 1, 3–14, 16–17, and 19–20, and to 60 months’ imprisonment for Counts 2 and 21, all to run concurrently. The court also imposed 18 months’ supervised release per count, each to be served concurrently. The court ordered Mr. Wilson to pay $16,468,769.73 in restitution and a $1,900 assessment.

Mr. Wilson now appeals and renews his challenge to the sufficiency of the evidence. He contends that the Government failed to prove beyond a reasonable doubt that he had the requisite mens rea to commit the charged offenses. After hearing oral argument and carefully examining the record, we cannot accept this argument. None of Mr. Wilson’s contentions reach the high threshold of showing that a reasonable jury could not have found him guilty. When viewed in the light most favorable to the prosecution, the evidence adequately supports the jury’s finding that Mr. Wilson acted knowingly and willfully when making false statements to investors, regulators, an outside accountant, and Government agents. It also supports the reasonable inference that Mr. Wilson was aware of and participated in a fraudulent tax scheme called “Alchemy.” Accordingly, we affirm the judgment of the district court.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Restoration Risk Retention Group, Inc. v. Laura Gutierrez, et al.

Case No.: 17-1016

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

Focus: Statutory Interpretation

Restoration Risk Retention Group, Inc. (“Restoration Risk”) brought this action seeking injunctive and declaratory relief against the Secretary of the Wisconsin Department of Safety and Professional Services (“WDSPS”), and the Trades Credentialing Unit (“TCU”) of the WDSPS. Restoration Risk claims that TCU’s new interpretation of a Wisconsin statute is incorrect or, in the alternative, that the Liability Risk Retention Act (“LRRA”), 15 U.S.C. §§ 3901–3906, preempts the statute as interpreted by TCU.

The district court denied Restoration Risk’s motions for a preliminary injunction and for partial summary judgment. It granted the defendants’ motion for partial judgment on the pleadings. In doing so, the district court agreed with TCU’s new interpretation of the Wisconsin statute, which effectively barred Restoration Risk from operating in Wisconsin. It also concluded that TCU’s interpretation was not preempted by the LRRA.

After the parties stipulated to a voluntary dismissal without prejudice of all remaining claims, the district court entered a final judgment in favor of the defendants. Restoration Risk timely filed this appeal.  For the reasons set forth in this opinion, we vacate the district court’s judgment and remand the case so that the district court can determine whether intervening amendments to the Wisconsin statute render this litigation moot.

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Pethinaidu Veluchamy, et al. v. Arun K. Veluchamy

Case No.: 15-2902; 15-2908; 15-3815; 16-3496

Officials: MANION and KANNE, Circuit Judges, and MILLER, District Judge.

Focus: Bankruptcy – Estate

This is an appeal from the district court’s decisions in bankruptcy adversary proceedings. Pethinaidu Veluchamy and Parameswari Veluchamy (collectively “senior Veluchamys”) earned great wealth in various businesses. They acquired two banks in the 1990s and merged them. When this bank suffered financial problems, the senior Veluchamys personally borrowed and guaranteed loans totaling $40 million from a predecessor of Bank of America (“BoA”). But the loans went into default in 2008, and BoA obtained a judgment against the senior Veluchamys in 2010 for over $43 million.

The senior Veluchamys filed a bankruptcy petition in 2011, so BoA filed an adversary proceeding against them and their children, Arun and Anu (collectively “junior Veluchamys”), alleging a scheme to hinder, delay, or defraud creditors by attempting to hide tens of millions of dollars from BoA and other creditors. After a bench trial in 2013, the bankruptcy court determined the evidence established all of BoA’s major allegations. The Veluchamys and BoA sought review by the district court, which agreed almost entirely with the bankruptcy court. The Veluchamys no longer contest the heart of the lower courts’ conclusions. Instead, they appeal various particular holdings.

The senior Veluchamys raise three issues on appeal. First, they argue that turnover to the Estate under 11 U.S.C. § 542 was not the appropriate remedy regarding $5,500,000 they claim they transferred to a company in India, particularly when that company was not joined as a necessary party. Second, they challenge the language of the district court’s judgment requiring turnover of 24 pieces of jewelry. Third, they appeal the district court’s denial of their motion concerning the trial record.

The junior Veluchamys also raise three issues on appeal. First, they argue the district court erred in holding them jointly and severally liable. Second, they challenge the amount of the Estate’s recovery regarding VMark stock. Third, they argue the district court erred in reversing the bankruptcy court regarding Appu Hotels stock. We affirm the district court on all issues.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Lori Laatsch v. Alan Derzon, et al.

Case No.: 2016AP1328

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

Focus: Trusts & Estates – Bad Faith By Personal Representative

Lori Laatsch appeals an order surcharging her based on actions she took as personal representative of Rebecca Derzon’s estate (the Estate) and as the trustee of a related trust. The circuit court concluded Laatsch had acted in “extreme bad faith” in those roles, and it therefore ordered her to pay $1,235,954.20 in attorney fees that the Estate had incurred as a result of her conduct. Laatsch argues the circuit court mistakenly believed predecessor judges had already concluded her actions constituted bad faith, and it therefore erroneously denied her a full evidentiary hearing on that issue. Laatsch further contends the court erred by surcharging her for actions she took both before she became personal representative and trustee and after she was removed from those roles. Finally, Laatsch argues the court improperly relied on WIS. STAT. § 701.1004 (2015-16), in ordering her to pay the Estate’s attorney fees.

We reject Laatsch’s arguments. The issue before the circuit court was whether Laatsch’s actions as personal representative and trustee rose to the level of bad faith for purposes of imposing a surcharge. The court’s written decision shows that it did not mistakenly believe prior judges had already concluded Laatsch acted in bad faith. Instead, it properly relied on findings set forth in predecessor judges’ decisions, which we affirmed, as well as other evidence the Estate presented at the evidentiary hearing. Based on those findings and evidence, the court concluded Laatsch’s actions as personal representative and trustee rose to the level of “extreme bad faith.” It therefore properly exercised its equitable authority in surcharging Laatsch. Laatsch has failed to establish that the court surcharged her for actions she took outside her roles as personal representative and trustee. In addition, despite a passing reference to WIS. STAT. § 701.1004 in the court’s written decision, it is clear the court properly surcharged Laatsch based on its equitable authority to do so. We therefore affirm the order imposing the surcharge.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mario Douglas

Case No.: 2016AP1865-CR

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

Focus: Plea Withdrawal and Sentence Modification

Mario Douglas appeals a judgment of conviction, entered upon a guilty plea, of one count of second-degree sexual assault of a child under the age of sixteen. He also appeals from the order denying his postconviction motion to withdraw his guilty plea. Douglas contends that his plea was not knowing, intelligent, and voluntary because he was incorrectly advised about the potential convictions and sentences he faced. Alternatively, Douglas argues that he is entitled to sentence modification. He also contends that a no-contact order prohibiting contact with children under the age of sixteen violates his constitutional rights as a parent because it prohibits contact with his own children while he is incarcerated. We conclude that Douglas is entitled to withdraw his guilty plea because it was entered based on incorrect legal advice and thus was not knowing, intelligent, and voluntary. We therefore reverse the judgment of conviction and the postconviction order and remand this matter to the trial court to allow Douglas to withdraw his guilty plea.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cordell Leslie Adams

Case No.: 2016AP1926-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Cordell Leslie Adams appeals from his judgment of conviction, entered upon a jury’s verdict, for two counts of felon in possession of a firearm and one count of possession of a controlled substance. He further appeals from the postconviction order denying his motion for a new trial.

Adams’s arguments on appeal relate to the firearms charges. Specifically, Adams argues that the trial court improperly permitted the firearms expert to rely on the eTrace report for his testimony regarding the ownership of the gun because the eTrace report was inadmissible hearsay. He also asserts that his trial counsel was ineffective for failing to object to several alleged errors during the trial, including: (1) a police detective’s testimony regarding Adams’s failure to answer certain questions during the police interrogation, which Adams contends violated his right to remain silent; (2) additional testimony of that police detective regarding his belief of whether Adams was being completely truthful during the interrogation; and (3) the trial court’s questioning of witnesses after they were examined by counsel. Finally, Adams argues that his right to confrontation was violated when the trial court admitted testimony that one of the guns he was charged with possessing had been stolen. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: Debra Melton, et al. v. National Management LLC, et al.

Case No.: 2017AP110

Officials: KESSLER, J.

Focus: Post-Judgment Attorney’s Fees

National Management, LLC and GB II Properties, LLC, appeal an order of the small claims court awarding $9000 in attorney fees to the Law Office of Arthur Heitzer stemming from its representation of Debra Melton. Melton cross-appeals an order of the small claims court dismissing David Byczek from her landlord/tenant action against National Management. We affirm the small claims court.

Full Text

WI Court of Appeals – District III

Case Name: Raoul R. Her, et al. v. West Bend Mutual Insurance Company and Alpine Insulation

Case No.: 2017AP142

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

Focus: Worker’s Compensation  – Temporary Agency

This appeal requires us to address the following issue: can an employee of a temporary help agency who has been injured in the course of his or her employment and who has not made a worker’s compensation claim bring a tort claim against his or her temporary employer? Based on the plain language of the relevant statutes, we conclude the answer to this question is yes.

As explained below, the exclusive remedy provision of the Worker’s Compensation Act (“the Act”), WIS. STAT. § 102.03(2) (2015-16), does not bar a temporary employee from bringing tort claims against his or her temporary employer. WISCONSIN STAT. § 102.29(6)(b)1., which specifically addresses tort claims by temporary employees against their temporary employers, bars such claims only where the temporary employee “makes a claim for compensation” under the Act. It therefore follows that a temporary employee who has not made a claim for compensation under the Act is permitted to pursue a tort claim against his or her temporary employer. Moreover, even if the employee at issue in this case is construed as a loaned employee, rather than a temporary employee, we still conclude the Act does not bar his estate’s tort claims. We therefore reverse the circuit court’s decision granting summary judgment to Alpine Insulation, the temporary/borrowing employer in this case, and its insurer, West Bend Mutual Insurance Company.

Recommendation for Publication

Full Text

WI Court of Appeals – District I

Case Name: Christopher J. Saugstad v. Douglas A. Prahst

Case No.: 2017AP308

Officials: Kessler, Brash and Dugan, JJ.

Focus: Breach of Contract – Damages

Douglas A. Prahst appeals from a judgment entered in favor of Christopher J. Saugstad for damages incurred relating to repairs to the chimney and fireplace of a residential property that Saugstad purchased from Prahst. A jury found that Prahst had failed to perform the condition of the contract regarding those repairs, and awarded Saugstad damages in the amount of $8900.

On appeal, Prahst argues that the evidence does not support the amount awarded by the jury, and that the trial court erred in not limiting the amount of damages to the cost of the repairs that were listed on an initial estimate obtained from a chimney repair company. Additionally, Prahst argues for the first time on appeal that Saugstad ultimately had a gas insert installed in the fireplace, which he alleges rendered the chimney repairs unnecessary, and thus the damages should have been limited to Saugstad’s actual cost for the insert installation.

Saugstad counters that an additional amendment to the contract signed at closing, which provided for the repair of the fireplace and chimney such that they were safe for use, was the proper basis for determining damages. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. James S. Storm

Case No.: 2017AP459-CR

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

Focus: Court Error – Jury Instructions

James Storm appeals a judgment convicting him of third-degree sexual assault and an order denying his postconviction motion for a new trial. Storm argues the circuit court erred by denying his request for a lesser included offense jury instruction on fourth-degree sexual assault. He also argues the court provided an “insufficient and confusing” response to a question from the jury about whether third-degree sexual assault requires “intentional” conduct.

We conclude fourth-degree sexual assault is not a lesser included offense of third-degree sexual assault, at least as that offense was charged in this case. We further conclude the circuit court’s response to the jury’s question regarding intent does not provide a basis to grant Storm a new trial. We therefore affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Terry Sanders

Case No.: 2017AP636-CR

Officials: SEIDL, J.

Focus: OWI – Motion to Suppress Evidence Denied

Terry Sanders appeals a judgment convicting him of second-offense operating a motor vehicle while intoxicated (OWI). Sanders argues the circuit court erred in denying his motion to suppress evidence because law enforcement lacked probable cause to arrest him for OWI. We disagree and affirm the judgment.

Full Text

WI Court of Appeals – District I

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

Case No.: 2017AP1349

Officials: BRENNAN, J

Focus: Termination of Parental Rights

A.S. appeals orders terminating his parental rights to K. and denying his post-disposition motion. On appeal, he renews his argument that he is entitled to a new dispositional hearing because the trial court erred when it denied his trial counsel’s request for a continuance and proceeded to hold the dispositional hearing even though A.S. had failed to appear. A.S. argues that we review the denial de novo, that good cause existed to grant a continuance as his counsel requested, and that holding the hearing without A.S. violated his constitutional and statutory rights. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Otter Creek Farms, LLC, et al. v. Waukesha County

Case No.: 2014AP2124; 2016AP1953

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

Focus: Property – Time-barred

This case involves WIS. STAT. § 88.87 (2015-16), which addresses a property owner’s right to sue a governmental entity for flooding or water damage due to allegedly faulty roadway construction or maintenance. Otter Creek Farms, LLC and its owner, Gary W. Thompson (collectively, Thompson), appeal from a 2014 order dismissing Thompson’s case against Waukesha County and from a 2016 order granting summary judgment in favor of the County.  Thompson alleged that a decades-old reconstruction of a county road (Lannon Road) without adequate ditches or culverts has resulted in significant flooding of his property. The circuit courts concluded that Thompson’s actions against the County are time-barred under § 88.87(2)(c). As § 88.87 is the exclusive procedure for pursuing such actions and Thompson’s suits did not meet the statutory requirements, we affirm the orders.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dante L. Davis

Case No.: 2016AP1721-CR        

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

Focus: Ineffective Assistance of Counsel

A jury convicted Dante Davis of two counts of strangulation and suffocation (domestic abuse), two counts of disorderly conduct (domestic abuse), felon in possession of a firearm, and possession of tetrahydrocannabinols. Davis appeals from the judgment of conviction and from the order denying his postconviction motion seeking a new trial due to the erroneous admission of other acts evidence and ineffective assistance of counsel. We agree with the circuit court that Davis’s postconviction motion did not warrant a hearing. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Talmer Bank and Trust v. Thomas S. Jacobsen, et al.

Case No.: 2017AP752-FT

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

Focus: Breach of Contract – Attorney’s Fees

The third-party litigation exception to the American Rule allows a plaintiff to recover attorney fees incurred in third-party litigation caused by a wrongful act of the defendant. The question in this case is whether a breach of contract leading to third-party litigation is a wrongful act. We hold that a breach of contract can be a wrongful act under the third-party litigation exception to the American Rule. The attorneys’ fees in this case are rightly considered part of the damages flowing from the defendants’ breach of contract, and are therefore recoverable. We reverse the circuit court’s holding to the contrary.

Recommended for Publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Clifford Young

Case No.: 2016AP1924-CR

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ

Focus: Ineffective Assistance of Counsel

Clifford Young appeals a judgment of conviction and an order denying his postconviction motion. We affirm. After a jury trial, Young was convicted of several felonies and misdemeanors in connection with an incident in which he physically attacked a woman, restrained her in a residence, and then pushed her out a window. The circuit court denied Young’s postconviction motion alleging ineffective assistance of trial counsel.

Full Text

WI Court of Appeals – District IV

Case Name: Dane County v. Brenna N. Weber

Case No.: 2017AP1024

Officials: FITZPATRICK, J

Focus: OWI – Reasonable Suspicion

Brenna Weber appeals a decision and order finding her guilty of operating a motor vehicle while intoxicated and operating a vehicle with a prohibited alcohol concentration. Weber argues that the arresting officer lacked reasonable suspicion to extend the traffic stop and conduct field sobriety tests. I reject Weber’s argument and affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Frederick S. Smith

Case No.: 2018 WI 2

Focus: Fourth Amendment Violation

We are asked to decide whether the police violated Frederick S. Smith’s Fourth Amendment rights when a police officer asked for his driver’s license during a traffic stop even though reasonable suspicion for the stop dissipated as the officer approached the car, or when the police officer opened the passenger door after being told the driver’s door and window were broken. The Fourth Amendment protects “against unreasonable searches and seizures,” and our analysis focuses on what is reasonable in light of the particular circumstances. See Terry v. Ohio, 392 U.S. 1, 21 (1968); see also Elkins v. United States, 364 U.S. 206, 222 (1960)”What the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”).

We hold that when an officer conducts a valid traffic stop, part of that stop includes checking identification, even if the reasonable suspicion that formed the basis for the stop in the first place has dissipated. See Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015) (“Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.'” (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)); State v. Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462 (“We conclude the officer had the requisite reasonable suspicion to stop Williams’s vehicle to determine if he was the suspect in a domestic abuse incident. We also conclude that, because the initial detention was lawful, the officer could properly ask Williams his name and for identification even if she had already decided he was not the suspect.”). Asking for a driver’s license does not impermissibly extend a stop because it is part of the original mission of the traffic stop. However, the “ordinary inquiries,” which are related in scope to the purpose of a traffic stop, must be executed within the time it should have reasonably taken to complete them. Rodriguez, 135 S. Ct. at 1614.

We further hold the police officer’s act of opening the passenger door in order to effectively communicate with a driver otherwise inaccessible due to the malfunctioning driver’s door and window did not constitute an unreasonable search because the officer’s actions, viewed objectively, would warrant a person of reasonable caution to believe the action taken was appropriate. See Terry, 392 U.S. at 21-22. Because Smith’s stop was reasonably executed, we hold that no Fourth Amendment violation occurred. The circuit court correctly denied Smith’s suppression motion. Accordingly, the decision of the court of appeals is reversed and Smith’s judgment of conviction stands.

Reversed

Concur:

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

WI Supreme Court

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

Case No.: 2018 WI 3

Focus: Court Error – Statutory Rights Waived

The petitioner, Michael L. Washington (“Washington”), seeks review of a published court of appeals decision affirming his judgment of conviction and the circuit court’s order denying his postconviction motion. He asserts that the court of appeals erred in determining that, by his conduct, he waived his statutory right to be present at trial.

Washington specifically contends that his right to be present at trial pursuant to Wis. Stat. § 971.04(1)(b) (2013-14) was violated. He argues that the court erred in determining that his conduct waived his statutory right to be present given that § 971.04(3) permits waiver only after the trial has begun. We conclude that Wis. Stat. § 971.04(3) does not apply here. It does not place any limitation on a defendant’s ability to waive the right to be present at any portion of trial. We further determine that Washington, by his conduct, waived his Wis. Stat. § 971.04(1) right to be present at trial. Although we reach this determination under the facts presented, we emphasize that the best practice is an on-the-record waiver colloquy. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur: GABLEMAN, J. concurs, joined by R.G. BRADLEY, J. and KELLY, J. (opinion filed).

Dissent:
Full Text

WI Supreme Court

Case Name: Metropolitan Associates v. City of Milwaukee

Case No.: 2018 WI 4

Focus: Property Tax Assessment

The petitioner, Metropolitan Associates (Metropolitan), seeks review of an unpublished court of appeals decision affirming the circuit court’s determination, which in turn affirmed the City of Milwaukee’s (the City) tax assessment of property owned by Metropolitan. Metropolitan contends that the court of appeals erred in concluding that the City complied with Wis. Stat. § 70.32(1) (2013-14) in its assessment of Metropolitan’s property.

Specifically, Metropolitan argues that the City contravened Wis. Stat. § 70.32(1) because it failed to utilize the “best information” available when it relied on mass appraisal, and not single-property appraisal, in determining the value of Metropolitan’s property. Metropolitan additionally asks this court to reject the findings of the circuit court regarding the reliability of the competing assessment evidence and the weight and credibility the circuit court attributed to that evidence. Ultimately, it argues that the application of the presumption of correctness to the City’s assessment based on a mass appraisal constitutes an error of law.

We conclude that the City’s assessment of Metropolitan’s property complied with Wis. Stat. § 70.32(1). The City permissibly utilized mass appraisal for its initial assessment and appropriately defended its initial assessment with single property appraisals demonstrating that the assessment was not excessive.

Next, we decline Metropolitan’s request to upset the circuit court’s findings of fact. As the court of appeals aptly stated, “[i]n asking us to reject the court’s judgment as to the weight and credibility of the competing assessment evidence, Metropolitan effectively asks us to substitute our judgment for the circuit court’s regarding the credibility of witnesses and the relative weights to assign to various pieces of the evidence at trial, neither of which we can do.”

We conclude that the circuit court’s findings of fact regarding the reliability of the respective appraisals are not clearly erroneous. Because the circuit court’s findings are sufficient to support its determination regardless of whether the presumption of correctness was employed, we need not address whether the presumption of correctness attached to the assessment based on the initial mass appraisal. Accordingly, we affirm the decision of the court of appeals.

Concur:

Dissent: R.G. BRADLEY, J. and KELLY, J. (coauthor) dissent (opinion filed).
Full Text

United States Supreme Court

Case Name: Keith Tharpe v. Eric Sellers, Warden

Case No.: 17-6075

Focus: Court Error – Habeas Corpus Relief

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him. See Tharpe v. Warden, No. 5:10–cv–433 (MD Ga., Sept. 5, 2017), App. B to Pet. for Cert. 19.

The question of prejudice—the ground on which the Eleventh Circuit chose to dispose of Tharpe’s application— is not the only question relevant to the broader inquiry whether Tharpe should receive a COA. The District Court denied Tharpe’s Rule 60(b) motion on several grounds not addressed by the Eleventh Circuit. We express no view of those issues here. In light of the standard for relief from judgment under Rule 60(b)(6), which is available only in “ ‘extraordinary circumstances,’ ” Gonzalez v. Crosby, 545 U. S. 524, 536 (2005), Tharpe faces a high bar in showing.

We therefore grant Tharpe’s motion to proceed in forma pauperis, grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further consideration of the question whether Tharpe is entitled to a COA.

Vacated in part. Remanded in part.

Dissenting: THOMAS, J.

Concurring:
Full Text