Weekly Case Digests — Feb. 12 – Feb. 16, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Gerardo Correa-Diaz v. Jefferson B. Sessions III

Case No.: 16-3198

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

Focus: Immigration – Removal Order

Petitioner, a citizen of Mexico, pleaded guilty in 2005 to two counts of Attempted Sexual Misconduct with a Minor, in violation of Indiana Code § 35- 42-4-9(a) and (b), respectively. On August 17, 2016, the Department of Homeland Security issued a Final Administrative Removal Order based upon the § 35-42-4-9(a) conviction. Petitioner now seeks review. At issue is whether petitioner’s conviction amounts to “sexual abuse of a minor” and therefore constitutes an “aggravated felony” under the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1101(a)(43)(A). For the reasons that follow, we deny the petition for review.

Denied

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7^th Circuit Court of Appeals

Case Name: Ronald Goldberg, et al. v. United States of America

Case No.: 16-3032

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

Focus: Tax Refund – Lack of Jurisdiction

Plaintiffs Ronald M. Goldberg, Sherwin Geitner, and Phillip C. Leavitt failed to pay federal income taxes they owed for a business partnership for the year 1994. After a criminal investigation touched that partnership, these plaintiffs reached a civil settlement with the Internal Revenue Service in 2003 by agreeing to pay back taxes. Nearly ten years later, however, they filed this suit seeking to invalidate the settlement and to collect other damages by claiming the IRS violated the tax code in assessing their tax liability. Plaintiffs seek relief in the form of both claims for refund under 26 U.S.C. § 7422 and claims for damages under 26 U.S.C. § 7433. The district court granted the government’s motion to dismiss. The court dismissed the refund claims on the pleadings for lack of jurisdiction for failure to exhaust administrative remedies with the IRS. The court dismissed the claims for damages, also on the pleadings, because they alleged IRS errors only in assessing taxes, not in collecting them, so that the claims fall outside the scope of § 7433, which is limited to errors in collecting taxes. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Catinella v. County of Cook, Illinois, et al.

Case No.: 16-2278

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

Focus: Due Process Violation

Michael Catinella sued Cook County and its Department of Transportation for firing him under false pretenses in violation of his rights under the Due Process Clause, the Equal Protection Clause, and federal statutory provisions. The circumstances surrounding this event are filled with intrigue. The complaint describes a public-bidding process gone awry, an investigation to cover it up, coworkers who were jealous of Catinella’s promotion, a confiscated knife, false reports to police that Catinella threatened to “shoot up the workplace,” and an arrest on a charge of disorderly conduct—all leading up to the abrupt termination of his employment with the County. What the complaint does not show, however, is how this whirlwind of alleged unfairness violates any federal constitutional or statutory provision. After giving Catinella two chances to plead a plausible claim for relief, the district judge dismissed the case with prejudice.

We affirm. To survive a motion to dismiss, a complaint must include “enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Catinella certainly spins an elaborate story, but it doesn’t cohere around any plausible constitutional or statutory violation. The judge was right to dismiss the case.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Firestone Financial, LLC, v. John R. Meyer

Case No.: 17-1611; 17-1712

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

Focus: Promissory Estoppel

Firestone Financial sued John Meyer as guarantor of defaulted loans. Meyer, proceeding pro se, asserted promissory estoppel as both a defense and counterclaim. After an earlier trip to this court, see Firestone Fin. Corp. v. Meyer, 796 F.3d 822 (7th Cir. 2015), the district court entered summary judgment for Firestone. Meyer filed two notices of appeal, and we consolidated the appeals. We affirm the judgment in 17‐1611 because a reasonable jury could not conclude that Meyer has satisfied any of the three elements of promissory estoppel. We dismiss 17‐1712 as duplicative.

Dismissed as duplicative

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7^th Circuit Court of Appeals

Case Name: Heraeus Kulzer, GmbH v. Biomet, Inc., et al.

Case No.: 17-1674

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

Focus: Jurisdiction – Trade Secret Misappropriation

Plaintiff-appellant Heraeus Kulzer, GmbH (“Heraeus”) brought this action in the Northern District of Indiana under 28 U.S.C. § 1782. That statute allows a party to file a petition in a federal district court to obtain discovery for use in a foreign proceeding. Here, Heraeus sought to obtain discovery from defendants-appellees Biomet, Inc. and Biomet Orthopedics, LLC (collectively, “Biomet”) to use in its trade secret misappropriation case against Biomet in Germany. Biomet produced discovery subject to a series of stipulated protective orders that limited Heraeus’s ability to use or disseminate certain discovery materials outside of the German proceeding and this § 1782 action.

After obtaining discovery from Biomet and submitting it to the German court, the German court ruled in Heraeus’s favor and enjoined Biomet from manufacturing or distributing any products developed using the misappropriated information. In its ruling, the German court cited and quoted several documents that were produced in this § 1782 proceeding and thus subject to the stipulated protective orders. Suspicious that Biomet was continuing to sell products made with Heraeus’s trade secrets outside of Germany, Heraeus subsequently brought actions in several other European countries to enforce the German judgment. Heraeus also filed three motions to modify the district court’s protective orders in this § 1782 action. In those motions, Heraeus asked the district court to exclude the documents that the German court relied on from the scope of the protective orders and/or to impose restrictions on Biomet’s internal use of those documents. Heraeus claims that these modifications are necessary so it may submit those documents to the foreign tribunals presiding over the European enforcement proceedings and protect its trade secrets. The district court denied all three motions.

Because Heraeus failed to timely appeal the district court’s first and second orders denying the requested relief, we conclude that we lack jurisdiction to review those orders now. With respect to the district court’s third and final order, we hold that the district court did not abuse its discretion by denying Heraeus’s request to impose restrictions on Biomet’s internal use of the documents it produced.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua Van Haften

Case No.: 17-1508

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

Focus: Sentencing Modification – Enhancement

Joshua Van Haften is a Wisconsin native who was caught travelling to Turkey in an attempt to join ISIS, a designated terrorist organization. In some ways, Van Haften fits the typical profile of a terrorist: he believes that ISIS is fighting a holy war against America—a war that will culminate in the establishment of a global caliphate. But this view is just one strand in a web of bizarre, mystical beliefs Van Haften holds. He also believes, for example, that Britain’s Prince William is the Antichrist, that people can use numerology to predict the future, and that most Western political leaders are closet Satanists. And Van Haften has a personal vendetta against the United States government that has nothing to do with religion: when he was 18 years old, Van Haften was convicted of statutory rape for having sex with his 15- year-old high school classmate. Van Haften’s status as a sex offender made it difficult for him to live a normal life in America, and he greatly resents the “godless laws” that, in his view, destroyed his life.

The sole issue in this appeal is whether the district court clearly erred in applying the enhancement. We conclude that it did not. Because Van Haften’s own statements demonstrate that he sought to join ISIS to take up arms against America and Americans, we AFFIRM the decision of the district court to apply the terrorism enhancement to his sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: A.H., et al. v. Illinois High School Association

Case No.: 17-2456

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

Focus: Rehabilitation Act and ADA Violation

A.H., a senior at Evanston Township High School, is a member of the school’s track and field team despite his physical limitations from spastic quadriplegia related to cerebral palsy. During his junior year, he requested that the Illinois High School Association (IHSA) create a separate division with different time standards for para-ambulatory runners in the Sectional and State championship track meets, as well as the annual 5K Road Race. The IHSA denied these requests, and A.H. filed this suit seeking injunctive relief under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); and, Titles II and III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132, 12182(a). The district court granted summary judgment in favor of the IHSA, finding that A.H.’s requests were not reasonable accommodations under the Rehabilitation Act and the ADA. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Beebe Roth, et al., v. Starbucks Corporation

Case No.: 16-4033

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

Focus: Negligence

While Beebe and Lucas Roh were at Starbucks on Rush Street in Chicago, Illinois with their two sons Alexander and Marcus, a wood and metal stanchion fell onto Marcus Roh’s finger. Marcus’s injured finger had to be amputated that same day. Beebe sued Starbucks Corporation in state court on behalf of Marcus, claiming its negligence caused Marcus’s injury. Invoking federal diversity jurisdiction, Starbucks removed the case to federal court, where the district court granted summary judgment in favor of Starbucks. Beebe appeals, and we affirm, concluding, as did the district court, that any duty Starbucks may have owed Marcus was abrogated by his parents’ presence with him in Starbucks at the time of the accident.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Deangelo Anderson

Case No.: 16-3112

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

Focus: Sentencing Guidelines

On September 23, 2014, a grand jury returned a five-count indictment against Deangelo Anderson, charging him in counts one and two with armed robbery of a bank and brandishing a firearm in furtherance of a crime of violence (i.e. the bank robbery), and in counts three, four and five with unlawful possession of a firearm as a felon, possession of crack cocaine with intent to distribute, and possession of a firearm in furtherance of a drug trafficking offense. He was tried before a jury on April 4 and 5, 2016, and on April 5 the jury returned a verdict acquitting him of counts one and two, and convicting him of counts three, four and five. The district court sentenced him to 96 months’ imprisonment, comprised of 36 months on counts three and four, to be served concurrently, and sixty months on count five, to be served consecutively to the sentence on counts three and four.

Anderson now appeals that conviction and sentence to this court. He argues that he is entitled to a new trial because he was denied his Sixth Amendment right to a public trial when the proceedings continued beyond the hours when the courthouse was open. In addition, he contests his sentence, asserting that the district court based his sentence on an erroneous understanding of the law.

There is some ambiguity in the sentencing hearing as to whether the district court nonetheless considered the mandatory sentence in determining its sentence despite its recognition that Roberson controlled, but we cannot be certain that the Roberson holding did not impact the sentence. We therefore order a limited remand so that the district court can determine whether it would have imposed the same sentence on Anderson, knowing that it can consider the mandatory sentence in light of Dean. We shall retain jurisdiction over this appeal pending the district court’s response to our inquiry.

Affirmed in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Rashad B. Swanigan v. City of Chicago

Case No.: 16-1568

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

Focus: Monell Suit

While on the lookout for a serial bank robber, Chicago police officers misidentified Rashad Swanigan as the perpetrator, arrested him, and detained him for approximately 51 hours without a probable-cause hearing. He was released when the state prosecutor decided not to press charges, and police later found the true culprit.

Swanigan sued the officers involved in his arrest and detention under 42 U.S.C. § 1983 alleging various constitutional violations. He later filed a related suit against the City raising Monell claims. The suits were consolidated but maintained separate case numbers and dockets, and the district judge stayed the Monell suit to allow the suit against the officers to proceed on its own. A jury found for Swanigan on a single claim—for unconstitutionally prolonging his detention—and awarded $60,000 in damages. Swanigan then moved to lift the stay on his suit against the City. The judge denied the motion and dismissed the suit entirely, ruling that Swanigan waived most of his claims and that the others were not justiciable. We vacated the dismissal order as premature and remanded with instructions to allow Swanigan to amend his complaint. Swanigan v. City of Chicago, 775 F.3d 953 (7th Cir. 2015).

With the stay lifted, Swanigan filed an amended complaint alleging constitutional injuries stemming from three police-department policies: (1) a “hold” policy by which the officers kept him in custody; (2) a policy of requiring detainees to participate in police lineups; and (3) a policy regarding the contents of the closed case file that continued to label him as the bank robber. The judge dismissed the Monell suit in its entirety.

We affirm. Swanigan cannot recover twice for the prolonged detention, and his other claims have no basis in federal law. The Constitution has nothing to say about unreliable police lineups that don’t taint a trial. Neither does the Constitution address reputational harm from false or misleading police reports. And Swanigan lacks standing to pursue injunctive or declaratory relief because the challenged policies are unlikely to harm him in the future.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Laborers’ Pension Fund, et al. v. Anka V. Miscevic

Case No.: 17-2022

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

Focus: ERISA – Pensions

In January 2014, Anka Miscevic (“Anka”) killed her husband, Zeljko Miscevic (“Zeljko”). At a state criminal proceeding, the court determined that Anka intended to kill Zeljko without legal justification. However, the court also determined that Anka was insane at the time of the killing and found her not guilty of first degree murder by rea‐ son of insanity. Following the criminal trial, the Laborers’ Pension Fund (the “Fund”) brought an interpleader action to determine the proper beneficiary of Zeljko’s pension benefits. Anka claimed she was entitled to a Surviving Spouse Pension. The Estate of M.M. (Anka and Zeljko’s child) argued that Anka was barred from recovering from the Fund by the Illinois slayer statute. After both parties filed motions seeking a judgment on the pleadings, the district court ruled in favor of the Estate of M.M. It determined that the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, did not preempt the Illinois slayer statute, and that the statute barred even those found not guilty by reason of insanity from recovering from the deceased. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Larry D. Dunn v. Menard, Inc.,

Case No.: 17-1870

Officials: FLAUM, EASTERBROOK, and BARRETT, Circuit Judges

Focus: Negligence

Plaintiff‐appellant Larry Dunn filed a negligence suit against defendant‐appellee Menard, Inc. (“Menards”) after he was injured by a falling stack of rolled insulation at a Menards store in Hodgkins, Illinois. The district court granted summary judgment to Menards, finding that it did not owe plaintiff a legal duty because: (1) the stack of insulation constituted an “open and obvious” danger; and (2) imposing such a duty would be excessively onerous under the circumstances. Plaintiff now appeals the district court’s ruling. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Alexander Milchtein, et al. v. John T. Chisholm

Case No.: 17-1420

Officials: EASTERBROOK and MANION, Circuit Judges, and JOHN Z. LEE, District Judge

Focus: Foster Care – Dismissed as Moot

Alexander and Ester Riva Milchtein have 15 children. The two eldest refused to return home in 2011 and 2012 and were placed in foster care by orders of Wisconsin’s court system. In this federal suit, the Milchteins contend that state officials violated the federal Constitution during proceedings that ended in the fostercare orders. The Milchteins contend that the state either discriminated against or failed to accommodate their views of family organization and management in the Chabad understanding of Orthodox Judaism. (Rabbi Alexander Milchtein tells us that he follows the teachings of the Lubavitcher Rebbe Menachem Mendel Schneerson.) These two children now are adults, however, and all state proceedings with respect to them are closed. For that reason the district court dismissed the Milchteins’ suit as moot. 2017 U.S. Dist. LEXIS 13160 (E.D. Wis. Jan. 31, 2017).

The Milchteins contend that it is not moot, because (a) the district court could have entered a declaratory judgment about the propriety of Wisconsin’s actions, and (b) they still have 12 minor children, any of whom might run away and precipitate the same sort of controversy.

Because the Milchteins’ proposed means of rescuing this case from mootness runs smack into Younger, we need not decide whether to supplement the record. Defendants oppose the Milchteins’ motion, observing that the affidavit was not before the district judge. They add that Rabbi Milchtein’s assertion that another minor child is “outside the control of my wife and me” does not say what role, if any, state agencies and courts have played in producing that status. (The affidavit says that “Child Protective Services personnel conducted an interview with myself, my wife, and some of my minor children” but does not assert that state employees have acted in any manner based on what they learned.)

For the reasons we have given, this federal case must end whether or not we grant the Milchteins’ motion. As there is no priority among reasons for not deciding the merits, see Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422 (2007); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), details about exactly what is happening with the Milchteins’ additional children do not matter to this suit—though they may matter greatly in state court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Adam Delgado v. Merit Systems Protection Board

Case No.: 16-1313

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

Focus: Whistleblower Protection Act Violation

This federal whistleblower case presents our first review of a decision of the Merit Systems Protection Board since Congress expanded judicial review beyond the Federal Circuit, at least temporarily. Petitioner Adam Delgado is a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. He alleges that his supervisors retaliated against him after he reported his suspicions that another agent had improperly shot at a fleeing suspect, provided an inaccurate report of the incident, and testified falsely about it in a federal criminal trial.

First, the Board dismissed Delgado’s appeal because he did not include a copy of his complaint to the OSC. Applicable statutes and rules do not impose that requirement, and if there were any question about what Delgado submitted to the OSC, the easiest way to answer it would be to obtain the complaint from the OSC itself.

Second, the OSC rejected Delgado’s complaint on the ground that he failed to offer sufficient evidence that he made a disclosure protected under 5 U.S.C. § 2302(b)(8). We disagree. Delgado’s disclosure of suspected wrongdoing either explicitly accused another federal employee of perjury or provided sufficient evidence to justify such a suspicion worthy of consideration by superiors. Either version would be a protected disclosure.

Third, the OSC rejected Delgado’s complaint because he did not provide definitive proof that he was a victim of retaliation. We hold that, like other statutes with exhaustion provisions, the Whistleblower Protection Act requires only that a complainant fairly present his claim with enough specificity to enable the agency to investigate. The Act itself and its implementing regulations do not require a whistleblower to prove his allegations before the OSC—otherwise, what need could there be for an investigation? The Board thus erred in finding that Delgado failed to exhaust administrative remedies with the OSC. We grant the petition for review and remand to the Board for further proceedings consistent with this opinion, without commenting on the ultimate merit of Delgado’s underlying accusations or his claim of unlawful retaliation.

Granted and Remanded

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7^th Circuit Court of Appeals

Case Name: Darrell K. Haze v. Mark Kubicek

Case No.: 17-1037

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

Focus: Unlawful-stop Claim

Darrell Haze was ticketed for disorderly conduct after he tussled with Milwaukee Police Officer Mark Kubicek outside the Bradley Center on the night of a Bucks game. He contested the ticket and won. He then sued Kubicek for damages alleging that the officer unlawfully stopped him, falsely arrested him, used excessive force, and targeted him based on his race.

Officer Kubicek moved for summary judgment on all claims, and Haze sought partial summary judgment on the false-arrest claim. A magistrate judge, presiding by consent, denied the motions based on pervasive factual disputes. After a two-day trial, a jury exonerated Kubicek on all but the unlawful-stop claim. On that claim the jury found that the stop was unlawful (because it was not supported by adequate suspicion) but was not the proximate cause of any compensable injury.

Haze filed two posttrial motions, one for judgment notwithstanding the verdict and the other for a new trial. He argued that the jury’s split verdict—finding that the stop was unlawful but the officer did not use excessive force— was fatally inconsistent. He also asked the judge for nominal damages and a declaratory judgment as remedies for the unlawful stop. The judge denied most of these requests, but she did award $1 in nominal damages for the unlawful stop.

On appeal Haze contends that he was entitled to summary judgment on his claim for false arrest. That argument is procedurally foreclosed. The false-arrest claim was tried, the jury rejected it, and neither of Haze’s posttrial motions challenged this aspect of the jury’s verdict. That blocks our review. Ortiz v. Jordan, 562 U.S. 180, 188–89 (2011). Haze also reprises his argument that the jury’s verdict was inconsistent. It was not. The lawfulness of the stop and the lawfulness of the officer’s use of force were distinct inquiries subject to different legal tests; an unlawful stop does not make an officer’s later use of force per se unreasonable. Finally, Haze argues that the judge wrongly rejected his request for a declaratory judgment. The judge reasonably declined to issue that extra remedy; the jury’s verdict is vindication enough on the unlawful-stop claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kristine Bunch v. United States of America

Case No.: 16-3775

Officials: EASTERBROOK and MANION, Circuit Judges, and JOHN Z. LEE, District Judge

Focus: Federal Tort Claims Act Violation

Kristine Bunch spent 17 years in an Indiana prison based on a state conviction for the murder of her son. Bunch’s conviction rested on testimony and evidence apparently fabricated by a federal forensic chemist, William Kinard. Kinard’s conduct came to light during postconviction proceedings in Indiana’s courts, prompting the Indiana Court of Appeals to reverse her conviction. The Indiana Supreme Court later denied transfer. With the criminal conviction wiped out, Bunch became free to seek some recompense for the wrongful conviction and years of liberty she lost. She is attempting to do so in this suit.

At the time of Bunch’s wrongful conviction, Kinard was a forensic chemist with the federal Bureau of Alcohol, Tobacco, and Firearms (ATF). Bunch therefore sued the United States as his employer, invoking the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–80. That suit was consolidated with a separate action Bunch brought against two Indiana state fire marshal investigators under 42 U.S.C. § 1983. With respect to the suit against the United States, the district court concluded that the intentional-tort exception to the general waiver of immunity found in the FTCA applied. It also ruled that the exception to that exception for torts committed by investigative or law-enforcement officers did not apply, and on that basis it granted summary judgment in the United States’s favor. With that work done, the court certified under Federal Rule of Civil Procedure 54(b) that the suit against the United States was fully resolved and that there was no just reason to delay an appeal.

It may well be, in the final analysis, that the intentional tort exception precludes suit against the United States. But the record was not developed fully enough in the district court to support such a conclusion at this stage. We do not sit as triers of fact, and so it would be improper for us to supervise the collection of further evidence. We conclude that summary judgment was premature and that further proceedings must occur in the district court before the immunity issue can finally be resolved.

We conclude that there are too many disputed issues about the scope of the duties that an ATF forensic chemist such as Kinard (let alone a gunshot-residue specialist-analyst) performs. It was therefore error for the district court to grant summary judgment in the government’s favor. We REVERSE and REMAND for further proceedings consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Ariel Investments, LLC v. Ariel Capital Advisors LLC

Case No.: 17-1516; 17-2645

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

Focus: Jurisdiction – Trademark Infringement

Ariel Investments and Ariel Capital Advisors both manage money for affluent clients. Ariel Investments has been using its name since 1983 and Ariel Capital only since 2014. After a bench trial in this suit under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), the district court found that Ariel Capital is infringing Ariel Investments’ trademarks and ordered it to stop. 238 F. Supp. 3d 1009 (N.D. Ill. 2017).

Ariel Capital does not dispute any of the district judge’s findings of fact or conclusions of law. Instead it denies the court’s power to adjudicate the controversy. Ariel Investments, based in Illinois, does business nationwide and elected to file suit at home. Ariel Capital, based in Florida, would like to have a national presence but so far does not. It does not have a client in Illinois, does not have any property or staff in Illinois, does not advertise in Illinois, and never has had an employee or agent even visit Illinois—until it had to defend this suit.

Ariel Investments tells us that a defendant should be subject to personal jurisdiction in any state at which it “aimed its actions.” That contention is incompatible with Walden; it is exactly what the court of appeals in Walden had held, and not a single Justice accepted the position. More: even by Ariel Investments’ standard, Ariel Capital would prevail. The trial showed that Ariel Capital did not “aim at” either Illinois or Ariel Investments but rather ignored both. The founder of Ariel Capital testified, without contradiction, that he named the firm to honor his daughter, Ariel Marie Bray, rather than to injure Ariel Investments. State and federal laws often require entrepreneurs to consider the effects of their choices on third parties, but when they violate such requirements by closing their eyes to the effects of their decisions, they do not “aim at” any particular person or state.

We end with a few words about Ariel Investments’ contention that Calder v. Jones, 465 U.S. 783 (1984), supports personal jurisdiction in Illinois. An actress living in California sued a reporter and editor for defamation appearing in an article written and edited in Florida and published in a weekly newspaper based in Florida. Calder held that the actress could sue in California—though not just because that’s where she suffered injury. The newspaper’s California circulation was 600,000, and the reporter gathered information by phone calls to California. The story concerned events in California. As Walden observed, because publication to third parties is an element of libel, the defendants’ tort occurred in California. 134 S. Ct. at 1124. The defendants in Calder thus had the sort of state-specific connection with California that Ariel Capital lacks with Illinois. If trademark infringement happened, that wrong occurred in Florida, or perhaps some other state where people who wanted to do business with Ariel Investments ended up dealing with Ariel Capital because of the similar names. That state cannot be Illinois, where Ariel Capital lacks clients.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Timothy H. Thorpe v. Belva J. Thorpe

Case No.: 17-1766

Officials: BAUER, FLAUM, and SYKES, Circuit Judges

Focus: Bankruptcy – Divorce Awards

Timothy and Belva Thorpe married in 1986 and bought a house together in Illinois in 1987. They lived in that home until shortly after Belva filed for divorce in October 2012. Timothy then filed for bankruptcy protection in June 2013. Finally, a month later, an Illinois divorce court awarded Belva the marital home. Belva and the trustee of Timothy’s bankruptcy estate now find themselves in a years-long dispute about whether the divorce court’s award should stand.

We affirm the district court, albeit with more meat on the bones. The plain statutory text demonstrates that the bankruptcy estate took Timothy’s half-interest in the marital home subject to Belva’s contingent interest. Nothing in the Illinois Dissolution of Marriage Act or federal law suggests a contrary holding. Accordingly, the divorce court divested the estate of all rights to the marital home when it awarded the house to Belva.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America

Case No.: 17-1145

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

Focus: Sufficiency of Evidence

In the summer of 2014, investigators in the Kane County Sheriff’s Office discovered that an IP address was using specialized peer-to-peer software to share child pornography over the internet. They gave this information to special agents in the Department of Homeland Security, who in turn identified Bruce Niggemann as the owner of the IP address. The agents obtained and executed a search warrant at Niggemann’s home in West Dundee, Illinois, seizing a laptop and a desktop computer. Both contained child pornography.

Niggemann’s main argument on appeal is a challenge to the sufficiency of the evidence. He maintains that the government did not prove beyond a reasonable doubt that he— rather than his wife—committed the crimes. He also argues that his sentence violates the Eighth Amendment.  We affirm. Abundant forensic and other evidence links Niggemann to the child pornography. The Eighth Amendment claim is squarely foreclosed by United States v. Gross, 437 F.3d 691 (7th Cir. 2006).

Affirmed

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7^th Circuit Court of Appeals

Case Name: Margery Newman v. Metropolitan Life Insurance Company

Case No.: 17-1844

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

Focus: Insurance Premiums – Contract Claim

At age 56, Margery Newman purchased a long-term care insurance plan from the Metropolitan Life Insurance Company (“MetLife”). She opted for one of MetLife’s non-standard options for paying her insurance premiums; MetLife called the method she selected “Reduced-Pay at 65.” When Newman was 67 years old, she was startled to discover that MetLife that year more than doubled her insurance premium. MetLife insists that the increase is consistent with Newman’s insurance policy, including its Reduced-Pay- at-65 feature. Newman was unpersuaded and brought this action to vindicate her position. The district court dismissed for failure to state a claim. We conclude, however, that Newman is entitled to relief on her contract claim and that dismissal of the remaining claims was premature. We therefore reverse and remand for further proceedings.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Terry Davis v. David Mason, et al.

Case No.: 16-2707

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

Focus: Prisoner – Eighth Amendment Violation

Terry Davis, an Indiana prisoner, sued two prison guards alleging that they punched him repeatedly, put him in a chokehold, and placed a plastic bag over his head—all gratuitously and thus in violation of his rights under the Eighth Amendment. A district judge entered summary judgment for the defendants, holding that Davis had not exhausted his administrative remedies as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a). We vacate and remand for further proceedings. The evidence in the summary-judgment record does not clearly show that Davis failed to exhaust available administrative remedies.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Martyn Baylay v. Etihad Airways P.J.S.C., et al.

Case No.: 16-4113;17-1958

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

Focus: Jurisdiction

In 2013, Saravdeep Mann attacked his coworker, Martyn Baylay, with a bronze hotel decoration. The two men, members of a flight crew employed by Etihad Airways, were at a Chicago hotel for the night on a layover.

Baylay sued Etihad, Mann, and the hotel’s corporate entities in federal district court. The court dismissed all of Baylay’s claims against Etihad on the basis that the claims should be heard by the Illinois Workers’ Compensation Commission instead. The court entered an order allowing an immediate appeal of that decision, which Baylay filed on December 9, 2016 (No. 16-4113). A few months later, the district court dismissed Baylay’s remaining claims. It reasoned that it had no original jurisdiction over the claims and declined to exercise its supplemental jurisdiction. Baylay filed his notice of appeal of that decision on May 5, 2017 (No. 17-1958). The appeals have been consolidated and are before us now. We affirm the dismissal of Baylay’s claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: National Foundation for Special Needs Integrity, Inc., v. Devon Reese

Case No.: 17-1817

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

Focus: Estate – Beneficiary Death

In this case, we apply Indiana law to a trust agreement to determine who receives the remainder funds upon the beneficiary’s death. Plaintiff National Foundation for Special Needs Integrity signed an agreement with Theresa Givens establishing a trust that the Foundation was to manage for her benefit while she lived. In the agreement, Givens named herself as the only contingent remainder beneficiary. Givens died just a month after funding the trust, leaving more than $234,000 in the trust.

The district court rejected the Estate’s arguments, finding that the trust agreement is unambiguous and that the Estate’s evidence does not warrant any equitable remedy. The court also found that the equitable defense of laches would bar the Estate’s equitable theories. We reverse. We find that the trust agreement is ambiguous on the key question. Beyond the document, the overwhelming weight of evidence shows that Givens intended that any remaining assets pass to her children as the beneficiaries of her Estate rather than to the Foundation. We therefore remand and direct entry of judgment for the Estate, without reaching the equitable theories or the laches defense. On remand the district court will need to award damages and prejudgment interest in favor of the Estate.

Remanded

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7^th Circuit Court of Appeals

Case Name: Edin Karahodzic v. JBS Carriers, Inc.

Case No.: 16-3931

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

Focus: Jury Instructions – Wrongful Death Claim

Hasib Karahodzic, a commercial truck driver for E.J.A. Trucking, Inc., was killed when his vehicle collided with a truck driven by Orentio Thompson, an employee of JBS Carriers, Inc. A jury trial on the claims brought by Hasib’s estate and by his son Edin, individually, resulted in a judgment in favor of the plaintiffs. On appeal, the defendants first assert that the court committed reversible error in refusing to give an Illinois pattern jury instruction on the duty to mitigate damages, and in giving instructions related to “careful habits” and “exigent circumstances.” The defendants also argue that the court should have apportioned the award given to Edin personally on his rescue doctrine claim by the same percentages that the jury used in setting the estate’s damages on the wrongful death claim. The defendants further maintain that the court erred when it allowed the jury to award Esma’s lost earnings as damages under the Wrongful Death Act. And finally, the defendants contend that they were denied a fair trial due to certain evidentiary rulings made by the trial court. The defendants appeal and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Joseph Wilborn v. David Ealey, et al.

Case No.: 16-2106

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

Focus: 8^th Amendment Violations – Failure to Exhaust Administrative Remedies

Under the Eighth Amendment’s protection against “cruel and unusual punishments,” convicted prisoners must receive a minimum level of care. The Eighth Amendment prohibits prison staff from subjecting inmates to excessive force without a legitimate penological purpose, from deliberately failing to prevent other staff from using unlawful force, and from acting with deliberate indifference to inmates’ serious medical needs. In this case, inmate Joseph Wilborn was injured in a fight with Menard Correctional Center officers. The fight left Wilborn with bruises, a laceration, and a dislocated shoulder. He sued the correctional officers under 42 U.S.C. § 1983, alleging that they violated his Eighth Amendment rights by using excessive force or by failing to intervene and prevent it. He also sued two prison nurses for acting with deliberate indifference toward his injuries.

The district court dismissed the claims against the nurses before trial because Wilborn failed to exhaust administrative remedies. The remaining claims were tried to the court. Wilborn tried the case on his own, without a lawyer. Partway through the trial, the district court granted judgment as a matter of law for one defendant officer. After the trial, the district court issued written findings of fact and conclusions of law. The court found that the officers were more credible than Wil- born and his witnesses and entered judgment in favor of all remaining defendants.

Wilborn appeals the court’s dismissal of his claims against the nurses for failure to exhaust administrative remedies and the findings of fact and conclusions of law after the trial. He also argues that the district court abused its discretion by failing to recruit counsel to assist him. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Andre Ray Bernard v. Jefferson B. Sessions III

Case No.: 17-2290

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

Focus: Immigration – Jurisdiction

Andre Bernard, a Jamaican citizen, petitions for review of the denial of his applications for statutory with- holding of removal and deferral of removal under Article 3 of the Convention Against Torture. The Board of Immigration Appeals upheld those decisions. First, the Board concluded, the immigration judge correctly found Bernard ineligible for withholding of removal on the ground that he had committed a “particularly serious crime,” see 8 U.S.C. § 1231(b)(3)(B)(ii); second, the Board agreed that Bernard had not shown that, if removed to Jamaica, he likely would be tortured with the acquiescence of a public official on account of his bisexuality or political opinions. We dismiss for lack of jurisdiction the portion of Bernard’s petition seeking review of the “particularly serious crime” designation, and deny the remainder of the petition, as substantial evidence supports the IJ’s reasoning as adopted and supplemented by the Board.

Dismissed in part. Denied in part.

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7^th Circuit Court of Appeals

Case Name: Norma L. Cooke v. Jackson National Life Insurance Company

Case No.: 17-2080

Officials: EASTERBROOK and BARRETT, Circuit Judges, and STADTMUELLER, District Judge.

Focus: Judgment – Attorney’s Fees

In this suit under the diversity jurisdiction, the district court entered summary judgment for Norma Cooke. The judge ordered two kinds of relief: first, that Jackson National Life Insurance Co. pay Cooke the death benefit on her husband Charles’s policy; second, that Jackson reimburse Cooke’s legal expenses. The first kind of relief rested on a conclusion that Charles died before the end of a grace period allowed for late payments of premiums. The second rested on a conclusion that Jackson should have expedited the litigation by attaching documents to its answer to the complaint and by making some arguments sooner. See 243 F. Supp. 3d 987 (N.D. Ill. 2017). The district court then entered this order, which the parties have treated as the final judgment:

Cooke wants more than an order dismissing Jackson’s appeal. She has filed a motion under Fed. R. App. P. 38 seeking attorneys’ fees that she has incurred in responding to what she now calls a frivolous appeal.

We deny this motion, because any costs that Cooke has incurred are largely self-inflicted. Cooke could have filed a motion months ago (before briefing) asking us to dismiss Jackson’s premature appeal, but she did not do so. Indeed, the jurisdictional section of Cooke’s brief on the merits does not point out that an unquantified award isn’t final. Not until this court raised the issue at oral argument did Cooke address the significance of the district judge’s failure to say how much Jackson owes. If it were permissible for a court to order both sides to pay a penalty—say, into the law clerks’ holiday-party fund—we would be inclined to do so. But there’s no such appellate power and no good reason for us to order Jackson to pay something to Cooke as a result of a problem that both sides missed.

Jackson’s appeal is dismissed for want of jurisdiction. Any successive appeal from an order quantifying the award will be heard by this panel and decided without a new oral argument. (The merits were covered during the argument already held.) Unless either side wants to contest the amount of the award, it should be possible to submit a successive appeal for decision on the existing briefs. The parties should inform us promptly after any new appeal is taken whether they want to supplement the briefs already on file.

Dismissed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Christopher E. Mikulski

Case No.: 2016AP1918

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

Focus: Sufficiency of Evidence

Christopher Mikulski appeals a judgment entered upon a jury verdict adjudging him to be a sexually violent person under WIS. STAT. ch. 980 (2015-16). On appeal, Mikulski contends the evidence introduced at trial was insufficient to support the jury’s verdict because the State’s expert opined that Mikulski was “likely,” rather than “more likely than not” to commit another sexually violent offense. We conclude there was sufficient evidence for the jury to conclude Mikulski was more likely than not to commit a sexually violent offense. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Justin L. Douglas

Case No.: 2017AP707–CR

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

Focus: Postconviction Motion Denied

Justin Douglas appeals a judgment, entered upon his no-contest pleas, convicting him of burglary of a building or dwelling and theft of movable property with special facts, both counts as party to a crime. Douglas also appeals the order denying his postconviction motion for resentencing or plea withdrawal. Douglas argues the circuit court erred by denying his postconviction motion without an evidentiary hearing. We agree. Therefore, we reverse the order and remand the matter to the circuit court with directions to hold a hearing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas C. Wilkoski

Case No.: 2017AP732

Officials: DUGAN, J.

Focus: Breach of Partnership Agreement

Thomas C. Wilkoski appeals the trial court’s order awarding damages to Scott Fisher, his former partner, for breach of their partnership agreement (the “agreement”). This matter arises from Fisher’s small claim action against Wilkowski for payment of partnership expenses and for inspection work done on behalf of the partnership. On appeal, Wilkoski asserts that pursuant to the agreement, a partner may retire from the partnership by giving sixty-days written notice to the partnership of the partner’s intent to retire. He argues that, upon expiration of the sixty days, the partner is no longer a partner and, therefore, is not responsible for any expenses of the partnership.

By contrast, Fisher argues that pursuant to the agreement, Wilkoski continued to have the rights and obligations associated with his partnership interest, including the right to a share of the profits and liability for losses, until his interest in the partnership was properly transferred, because the partnership continued and was not dissolved. Fisher asserts that there was no transfer of Wilkoski’s interest until the purchase price for Wilkoski’s interest was determined and Fisher paid that amount to Wilkoski.

We hold that, under the terms of the agreement, Wilkoski was no longer a partner upon expiration of the sixty-days written notice that he intended to retire and that, as of that date, he was not responsible for the debts of the continuing partnership.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dustin R. Willette

Case No.: 2017AP888

Officials: SEIDL, J.

Focus: OWI – Probable Cause

Dustin Willette appeals an order revoking his vehicle operating privilege based on his refusal to submit to chemical testing of his blood, contrary to WIS. STAT. § 343.305(9)(a). Willette raises two issues on appeal: (1) whether the arresting officer lacked probable cause to believe Willette was operating a motor vehicle while intoxicated (OWI); and (2) whether Willette improperly refused an officer’s request for a chemical test of his blood. The circuit court answered both questions against Willette. We affirm.

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WI Court of Appeals – District II

Case Name: Matthew O’Brien v. Labor & Industry Review Commission, et al.

Case No.: 2016AP2355

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

Focus: Worker’s Compensation Claim

The Labor & Industry Review Commission (Commission), Department of Corrections (DOC) and Department of Administration appeal from the circuit court’s reversal of the Commission’s decision denying Matthew O’Brien’s worker’s compensation claim. Because we conclude the circuit court erred in reversing the Commission’s decision, we now reverse.

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WI Court of Appeals – District II

Case Name: Rhonda L. Sell, et al. Riverview Condominium Association, et al.

Case No.: 2017AP125

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

Focus: Statutory Interpretation

In this personal injury case, Rhonda L. Sell and Terry Sell appeal from a circuit court judgment dismissing on summary judgment their claims against Riverview Condominium Association, State Farm Fire and Casualty Company, Noel Follmer, Hastings Mutual Insurance Company, Lynn D. Drager d/b/a Handyman Innovated Services, and Society Insurance, a Mutual Company. For the reasons that follow, we affirm. On appeal, the Sells contend that the circuit court erred in granting summary judgment to the defendants. They maintain that the statute of repose is inapplicable to the case. They further maintain that genuine issues of material fact exist to support their claims of negligence and violation of the safe-place statute.

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WI Court of Appeals – District II

Case Name: Green Valley Investments, LLC, v. County of Winnebago

Case No.: 2017AP495

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

Focus: Ordinance Interpretation

In 2006, Green Valley Investments, LLC (Green Valley) opened Stars Cabaret (Stars), an adult cabaret offering nude entertainers, in knowing violation of the 2006 Winnebago County Town/County Zoning Ordinance (2006 ordinance) then in effect. After years of litigation in federal court, the matter comes to us on the sole question of whether the unconstitutional provisions of the 2006 ordinance are severable from the remainder of the ordinance. We conclude the unconstitutional provisions are severable, and we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Steve A. Brown

Case No.: 2017AP291-CR

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

Focus: Motion to Suppress – 6^th Amendment

Steve Brown appeals a judgment of conviction entered after a jury found him guilty of repeated acts of sexual assault of the same child. Brown’s sole claim on appeal is that the circuit court erred in denying his motion to suppress inculpatory statements made during a pre-arrest interview with law enforcement. Brown maintains that the statements were obtained in violation of his constitutional right against self-incrimination because they were made during a custodial interrogation without the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). Because we conclude that Brown was not in custody for purposes of Miranda when he made the inculpatory statements at issue, we affirm.

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WI Court of Appeals – District I

Case Name: Mario Johnson, et al. v. Zurich American Insurance Company of Illinois, et al.

Case No.: 2017AP497

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

Focus: Insurance – Statutory Interpretation

Mario Johnson appeals the circuit court’s grant of summary judgment against Johnson and in favor of Zurich American Insurance Company of Illinois. Johnson argues that the circuit court erred in granting summary judgment in favor of Zurich when the court concluded that Johnson’s injuries did not result from the “use” of an automobile within the meaning of the Zurich insurance policy. We agree with Johnson that the circuit court’s “use” decision is in error. We also reject Zurich’s argument based on a “completed operations” exclusion in the Zurich policy. Accordingly, we reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. David Christopher Lee Walton

Case No.: 2017AP526-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

David Walton appeals from a judgment of conviction for armed robbery, felony theft, and misdemeanor theft, all as party to a crime and as a repeater. Walton also appeals the circuit court’s order denying his postconviction motion for a new trial. Walton argues that he received ineffective assistance of counsel due to several claimed errors at trial. He further contends that we should grant a new trial in the interests of justice. We reject Walton’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Amanda L. Longley

Case No.: 2017AP659-CR

Officials: LUNDSTEN,P.J.

Focus: Plea Withdrawal

Amanda Longley appeals the circuit court’s judgment convicting her of one count of disorderly conduct involving domestic abuse and one count of misdemeanor battery. Longley also appeals the court’s order denying postconviction relief. Longley seeks plea withdrawal. Her request for plea withdrawal is based on the argument that case law subsequent to State v. Kosina, 226 Wis. 2d 482, 595 N.W.2d 464 (Ct. App. 1999), requires reconsideration of the Kosina holding that a firearms possession prohibition is a collateral consequence of a plea that defense counsel need not discuss with a defendant. For the reasons below, I reject this argument and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John McClaine Terrell

Case No.: 2017AP771-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

John Terrell was sentenced after pleading guilty to one count of third-degree sexual assault for sexual intercourse without consent and one count of exposing genitals. Terrell filed a postconviction motion, seeking either resentencing because at the sentencing hearing the parties and the sentencing court used his suppressed involuntary statements to police in violation of his due process rights, or a Machner hearing because Terrell’s trial counsel was ineffective for failing to object to the use of the suppressed involuntary statements at the sentencing hearing. The postconviction court denied the motion without a hearing.2 Terrell renews his postconviction arguments on appeal. We take Terrell to concede the State’s argument that Terrell forfeited his right to directly challenge the use of the suppressed involuntary statements because Terrell does not refute that argument in his reply brief, and we conclude that Terrell was not denied effective assistance of counsel because Terrell fails to show that he was prejudiced by his trial counsel’s performance. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Robert Wenger, et al. v. Gail Swaine

Case No.: 2017AP985

Officials: SHERMAN, J.

Focus: Judgment – Damages and Attorney’s Fees

In this eviction action, Gail Swaine appeals from the judgment of the circuit court. The circuit court awarded Swaine return of her security deposit and denied her claims for constructive eviction or rent abatement.

The court did not award double damages or attorney’s fees. Swain argues on appeal that she was entitled to double damages and attorney’s fees for violation of WIS. ADMIN. CODE § ATCP 134.06 (through Feb 2018), as well as damages being illegally locked out. For the reasons discussed below, I affirm.

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WI Court of Appeals – District III

Case Name: Runamuk Rides, LLC, v. Terry Neville, et al.

Case No.: 2016AP1591

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

Focus: Court Error – Property Damage – Damages

Runamuk Rides, LLC, asserts that Terry Neville, Tamara Pfaffle, Morganne Pfaffle, Brookanne Pfaffle, and Kaitlyn Pfaffle (collectively, the Neville Party) damaged a snowmobile they had rented from Runamuk. The circuit court rejected Runamuk’s claim for damages, following a bench trial, concluding Runamuk had failed to prove that the Neville Party caused any damage to the snowmobile. On appeal, Runamuk has not demonstrated that any of the circuit court’s factual findings were clearly erroneous. We therefore affirm the judgment dismissing Runamuk’s claim.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terrance A. Lewis

Case No.: 2016AP1620-CR

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

Focus: Abuse of Discretion – Sentencing Guidelines

Terrance A. Lewis appeals a judgment convicting him of armed robbery, as a party to a crime, and taking and driving a vehicle without the owner’s consent. He also appeals the circuit court’s order denying his motion for postconviction relief. Lewis argues that the circuit court misused its discretion because it used an incorrect legal standard when it imposed his sentence. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anton Depaul Williams

Case No.: 2016AP1905

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

Focus: Plea Withdrawal

Anton Depaul Williams appeals the order denying his postconviction motion seeking plea withdrawal. He contends that the postconviction court erred in denying his motion, which was based on the ineffective assistance of counsel. We affirm.

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WI Court of Appeals – District I

Case Name: Wells Fargo Bank, N.A. v. Lisa Lynn Jacobson, et al.

Case No.: 2016AP2292

Officials: Kessler, Brash and Dugan, J.J.

Focus: Abuse of Discretion – Foreclosure

Lisa Jacobson (Lisa) appeals a judgment of foreclosure in favor of Wells Fargo Bank, N.A., involving property located at 1917 South 71st Street, West Allis, Wisconsin. (the “subject property”). On appeal, Lisa argues that material issues of fact exist surrounding the validity of the note in question and, therefore, the trial court erred when it granted summary judgment in favor of Wells Fargo. She also argues that the trial court erroneously exercised its discretion in granting the equitable remedy of foreclosure to Wells Fargo.

We agree with the trial court and hold that there are no material issues of fact regarding the note’s validity. We further conclude that the trial court properly exercised its discretion in granting the judgment of foreclosure to Wells Fargo. Therefore, we affirm the trial court’s decision.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. August D. Genz

Case No.: 2016AP2475-CR

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

Focus: Sufficiency of Evidence

August Genz was convicted of possession with intent to deliver amphetamine and conspiracy to deliver tetrahydrocannabinols (THC). Genz appeals only his conviction for conspiracy to deliver THC, arguing there was insufficient evidence to convict him of that count. The State contends this appeal is moot because Genz has served his sentence. According to the State, vacating the conviction will have no effect and, furthermore, the exceptions to the rule of mootness do not apply. Alternatively, the State argues the evidence was sufficient to support Genz’s conviction on the conspiracy count.

We conclude this appeal is not mooted by the fact that Genz already served his sentence, because the possibility of vacating a felony conviction is not an abstract question but rather a question that implicates Genz’s rights going forward. We further conclude that, pursuant to our supreme court’s decision in State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995), there was insufficient evidence for the jury to convict Genz of conspiracy to deliver THC. We therefore reverse the judgment as to Genz’s conviction for conspiracy to deliver THC and remand with directions to issue an amended judgment of conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Morris Rash

Case No.: 2016AP2494-CR

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

Focus: Postconviction Motion Denied

Morris Rash appeals from a judgment of conviction, entered on a jury’s verdict, and an order denying his postconviction motion for a new trial. Rash was convicted of substantial battery and of being a felon in possession of a firearm. In this appeal, Rash asserts that he is unable to make a meaningful appeal based on an adequate record due to missing trial exhibits. The file has been reconstructed, and the trial court ruled that the reconstruction was sufficient for Rash to proceed with his appeal. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kyle D. Johnson

Case No.: 2017AP356-CR

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

Focus: Sentencing Guidelines

Kyle Johnson appeals a judgment convicting him of sixteen counts of possession of child pornography and an order denying his postconviction motion to modify the sentences. He contends sentences imposed on five other defendants by the same judge for the same crime constitute a new factor justifying a reduced sentence. We reject that argument and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marcos Rosas Villegas

Case No.: 2015AP2162-CR

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

Focus: Ineffective Assistance of Counsel

Marcos Rosas Villegas (Villegas) is an illegal immigrant who was brought to the United States from Mexico as a young child. When he was sixteen, he and two others broke into a home brandishing weapons, tied up the occupants, and robbed them. The State filed a delinquency petition charging him with armed robbery party to a crime (PTAC) and three other related offenses. The State also filed, and the court granted, a petition to waive Villegas into adult court. Villegas subsequently pled guilty to armed robbery PTAC.

Villegas sought postconviction relief and was denied. On appeal, he challenges both the juvenile and adult court proceedings. He challenges the juvenile waiver proceedings as both an erroneous exercise of discretion generally, and on the grounds that his counsel provided ineffective assistance. He further maintains that he should be able to withdraw his guilty plea in adult court because the plea colloquy was defective and on the basis that he received ineffective assistance of counsel there as well. His plea withdrawal argument is premised largely on the rationale that his attorney failed to inform him that his plea would render him inadmissible to the United States and ineligible for Deferred Action for Childhood Arrivals (DACA).

We affirm. Villegas has failed to show that the plea colloquy was defective. Villegas’ attorney also did not perform deficiently when he failed to counsel Villegas about DACA and correctly warned Villegas that inadmissibility was a likely result of the plea. Because his guilty plea was valid, Villegas’ challenges to the juvenile waiver proceedings—neither of which are offered as separate grounds for plea withdrawal—are forfeited under the guilty plea waiver rule.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael D. Miller

Case No.: 2016AP1593-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

Michael Miller was convicted in the Columbia County Circuit Court of one count of delivering marijuana. On appeal, Miller seeks reversal of the judgment of conviction arguing that the circuit court erred by admitting other acts evidence, and that the post-conviction court erred by denying Miller’s motion for a new trial based on newly discovered evidence. We reject Miller’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dillon M. Heiller

Case No.: 2016AP1878-CR

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

Focus: Jury Instructions

Dillon Heiller appeals a judgment of conviction for strangulation and suffocation, battery, and misdemeanor bail jumping, all as a repeater, and an order of the circuit court denying his motion for postconviction relief. Heiller contends that he is entitled to a new trial because the circuit court failed to instruct the jury on self-defense, his right to a speedy trial under WIS. STAT. § 971.10(2)(a) (2013-14) was violated, he was denied his right to counsel, and he was not afforded sufficient notice of the State’s motion to deny him of his right to confrontation. For the reasons discussed below, we conclude that the jury should have been instructed on self-defense and, therefore, reverse.

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WI Court of Appeals – District IV

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

Case No.: 2016AP2487

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

Focus: Due Process Violation

The City of Fitchburg denied Adams Outdoor Advertising Limited Partnership’s application for a permit to “convert” the eastfacing panel of an existing 300-square-foot paper billboard to a “digital sign” by installing a digital sign face on that panel. Adams filed this certiorari action challenging the City’s determination that the City’s Sign Ordinance prohibited the digital sign and asserting that the City deprived Adams of due process during the administrative proceedings. Adams also moved the circuit court to supplement the certiorari record with discovery related to Adams’ due process claims. The circuit court denied Adams’ motion to supplement the record and affirmed the City’s decision to deny Adams’ digital sign permit application.

On appeal, Adams argues that: (1) the City improperly interpreted and applied its Sign Ordinance to deny Adams’ application for a permit to install a digital sign on its billboard; (2) the circuit court erred in denying Adams’ motion to supplement the certiorari record; and (3) the City deprived Adams of due process during the administrative proceeding. As we explain: (1) Adams fails to convince us that the City’s interpretation of its own ordinance was unreasonable; and (2) we take as admitted by Adams the City’s arguments that the court properly exercised its discretion in denying Adams’ motion to supplement the record and that Adams’ due process claim fails because Adams fails to address those arguments in its reply brief. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Floyd L. Marlow

Case No.: 2017AP35-CR

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

Focus: Sentence Modification

Floyd L. Marlow, pro se, appeals a circuit court order that denied Marlow’s motions for a new trial or sentence modification following his conviction and sentence for first-degree reckless homicide as party to a crime. Marlow contends that he is entitled to a new trial or sentence modification based on newly discovered evidence in the form of an admission by Marlow’s co-defendant, Dwight Campbell, taking full responsibility for the shooting and disavowing any involvement by Marlow. Alternatively, Marlow seeks a new trial in the interest of justice. For the reasons set forth below, we reject Marlow’s arguments. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael T. Willan

Case No.: 2017AP473

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Domestic Abuse – Injunction

Michael Willan, pro se, appeals a domestic abuse injunction entered in favor of petitioner Mary. Willan argues that the circuit court made procedural and factual errors when it granted the injunction. We reject Willan’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Marisa B. McFarlane

Case No.: 2017AP506-CR

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

Focus: Restitution Order Conversion

Marisa McFarlane entered pleas of no contest to charges of intentional failure to pay child support. Consistent with the plea agreement, the sentencing court issued a restitution order obligating McFarlane to pay all arrearages—child support that she had been previously ordered to pay that she had not paid—plus interest that had accrued on the arrearages and fees. McFarlane filed a post-conviction motion challenging the restitution order. She did not challenge the arrearages, interest, and fees owed, but asked the court to “convert” the restitution order into an order for payment of unpaid child support, which would allow her to avoid paying the automatic 10% surcharge that is added to all restitution orders. The circuit court denied the motion and McFarlane appeals. We affirm for the reasons provided below.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin A. Braunschweig

Case No.: 2017AP1261-CR

Officials: KLOPPENBURG, J.

Focus: OWI – Sentencing Guidelines

The circuit court convicted Justin Braunschweig of operating a motor vehicle while intoxicated (OWI) and with prohibited alcohol concentration (PAC), each as a second offense, and imposed sentence on the second offense OWI count. Braunschweig appeals, arguing that the circuit court erred in sentencing him for second offense OWI because his previous conviction for OWI while causing injury as a first offense was expunged and, therefore, is a “nullity” that cannot be counted as a prior conviction when determining the penalty for OWI-related offenses. Braunschweig also argues that a certified DOT record reflecting that expunged conviction may not be introduced to prove the existence of a prior OWI-related conviction. For the reasons below, I reject Braunschweig’s arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Madison Teachers, Inc., v. James R. Scott     

Case No.: 2018 WI 11

Focus: Election – Voter Intimidation and Coercion

This case comes before us on a bypass petition filed by the records custodian and chairman of the Wisconsin Employment Relations Commission (“WERC”), James R. Scott. Scott appeals a decision of the circuit court that granted summary judgment to Madison Teachers, Inc. (“MTI”) on its claim that the public records law was violated. The circuit court also awarded MTI statutory damages, attorneys fees and costs.

MTI had made repeated requests, at various times during the 2015 certification elections, for names of Madison Metropolitan School District (the “School District”) employees who had voted as of those dates. WERC denied MTI’s requests based on Scott’s determination that while this election was ongoing, the public interest that elections remain free from voter intimidation and coercion outweighed the public interest in favor of openness of public records.

One issue is presented in this appeal: whether the public interest that elections remain free from voter intimidation and coercion in this certification election is sufficient to outweigh the public interest in favor of openness of public records. Because we conclude that Scott lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighs the public interest in favor of openness of public records, we reverse the circuit court. Accordingly, no attorneys fees are due MTI under the provisions of Wis. Stat. § 19.37(2).

Reversed

Concur:

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

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WI Supreme Court

Case Name: John Y. Westmas v. Creekside Tree Serivce, Inc.,

Case No.: 2018 WI 12

Focus: Recreational Immunity – Agent Liability

Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. (“Creekside”) fell on her while she and her adult son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees from its property. Jane’s husband, John Westmas, and her son, Jason Westmas, sued Creekside and its insurer, Selective Insurance Company of South Carolina.  Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis. Stat. § 895.52 (2013-14), barred claims against it. The circuit court granted Creekside summary judgment, and the court of appeals reversed. Westmas v. Selective Ins. Co. of S.C., 2016 WI App 92, 372 Wis. 2d 683, 889 N.W.2d 178.

We review two issues. First, we consider whether Creekside, as the entity hired by Conference Point to complete a tree-trimming project, is protected from liability as an “agent” of Conference Point under Wis. Stat. § 895.52(2)(b). Section 895.52(2)(b) provides that “no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.” The second issue is whether Creekside is entitled to recreational immunity as an occupier of the Conference Point property, such that it was a statutory “owner” of the property at the time of the accident. “Owner” is defined to include “[a] person . . . that owns, leases or occupies property.” § 895.52(1)(d)1.

As to the first issue, we conclude that Creekside was not an agent of Conference Point because Conference Point had neither control of, nor the right to control, the details of Creekside’s work, including the acts that caused injury to Jane Westmas. We further conclude that Creekside was not an occupier of Conference Point’s property because its presence on the property exhibited no “degree of permanence, as opposed to mere use.”  Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

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

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