Weekly Case Digests — April 9-13, 2018

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Armada (Sinapore) PTE Limited v. Amcol International Corporation

Case No.: 17-2324            

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

Focus: Breach of Contract – RICO Claims

The plaintiff in this case is a Singaporean shipping company. It entered into shipping contracts with an Indian mining company, but the Indian company breached those contracts. Now, the plaintiff believes that American businesses engaged in racketeering activity to divest the Indian company of assets so as to thwart the plaintiff’s attempts to recover damages for the breached contracts. Seeking redress for this alleged wrong, the plaintiff brought this lawsuit, claiming violations of the Racketeering Influenced and Corrupt Organizations Act (“RICO”). While the plaintiff’s case was pending in the district court, the Supreme Court decided RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). Addressing RICO’s extraterritorial effect, the Supreme Court held that “[a] private RICO plaintiff must allege and prove a domestic injury to its business or property.” Id. at 2106. After this decision came down, the American defendants moved for judgment on the pleadings, maintaining the plaintiff had not pleaded a domestic injury. The district court agreed and entered judgment on the RICO claims against the plaintiff, who now appeals. Because we also conclude the plaintiff has not pleaded a domestic injury, we affirm.

Affirmed
Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. John E. Henricks, III

Case No.: 17-2383

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

Focus: Due Process Violation – Property Interests

John Henricks (Henricks) pleaded guilty to mail fraud and was sentenced to imprisonment and ordered to pay restitution. Henricks’s wife, Catherine, (Ms. Henricks) entered an appearance as an interested person in Henricks’s criminal case. The district court determined the parties’ interests in various property so that Henricks’s property could be directed toward restitution to his victims. Ms. Henricks appeals, arguing that the district court did not have jurisdiction to decide the parties’ property interests in Henricks’s criminal case, violated her due process rights by not allowing her an opportunity to present her case, and improperly determined the parties’ interests in particular property. In so far as the district court had jurisdiction to determine the parties’ property interests in the criminal case and did not violate Ms. Henricks’s due process rights, we affirm. However, because the district court relied upon post‐judgment conduct instead of determining the parties’ property interests as of the date of the judgment lien, we vacate the district court’s property‐interest determination and remand for further proceedings.

Vacated and Remanded
Full Text

7^th Circuit Court of Appeals

Case Name: Thorncreek Apartments III, LLC, et al. v. Tom Mick, et al.

Case No.: 15-2295; 15-2303; 16-3556; 15-2296; 15-2302; et al.

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

Focus: Court Error – Damages and Prejudgment Interest

These consolidated appeals challenge various aspects of a judgment entered on a split jury verdict in a long-running dispute between the Village of Park Forest, Illinois, and Thorncreek Apartments, a large housing complex located in the Village. Thorncreek accused village officials of engaging in a campaign of regulatory harassment based on personal animus against its owner and because many of its residents are black. Thorncreek sued the Village and ten officials for compensatory and punitive damages under several federal and state civil-rights laws.

After a 13-day trial, jurors returned a partial verdict for Thorncreek. The Village and its manager were found liable under 42 U.S.C. § 1983 for a class-of-one equal-protection violation, and the village manager and director of community development were found liable for conspiracy in violation of 42 U.S.C. § 1985(3). In all other respects, the jury sided with the defendants.

Ruling on postverdict motions, the district court tossed out the jury’s liability finding against the community development director but otherwise approved the verdict and entered judgment accordingly. The judge also granted Thorncreek’s motion for prejudgment interest and attorney’s fees, though the award of fees was approximately one-third of what was requested.

Both sides appealed, raising assorted challenges to the judge’s posttrial rulings on damages, prejudgment interest, and attorney’s fees. We find no error and affirm.

Affirmed
Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Roger Byrd v. Richard Hoeft

Case No.: 2017AP46

Officials: SEIDL, J.

Focus: Petition to Reopen

Richard Hoeft, pro se, appeals an order denying his petition to reopen a small claims default judgment entered against him and in favor of Roger Byrd. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Wisconsin Wealth Management , LLC, v. Key Property Management, LLC,

Case No.: 2017AP89

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

Focus: Court Error – Equitable Contribution

Steven Ambrosius, Daniel Pamperin, and Sarah and David Felton (collectively, “the Ambrosius Group”) made numerous payments to Johnson Bank pursuant to their respective personal guaranties on a loan Johnson Bank issued to Riverside Group Investments, LLC (“Riverside”). In this lawsuit, they sought equitable contribution from William and Dean Johnson, who also signed personal guaranties on the loan, for the Johnsons’ proportionate share of those payments. The circuit court denied the Johnsons’ motion to submit the matter to arbitration, and it granted summary judgment in favor of the Ambrosius Group and against the Johnsons.

The Johnsons assert the circuit court erroneously denied their motion to compel arbitration based on an arbitration provision contained in Riverside’s operating agreement. We reject this argument primarily because none of the individuals comprising the Ambrosius Group was a party to Riverside’s operating agreement. Rather, the agreement bound only Riverside’s members, which were other limited liability companies that the individuals involved in this lawsuit had formed. We also conclude the arbitration provision was not triggered with respect to the equitable contribution claim at issue here, nor does that claim implicate a “Limitation on Liability” provision within the Riverside operating agreement. As a result, the Ambrosius Group’s claim in this lawsuit is not a “dispute arising with respect to” the Riverside operating agreement for purposes of the arbitration provision.

The Johnsons also assert the circuit court erroneously granted summary judgment in favor of the Ambrosius Group. We conclude the court correctly granted summary judgment because the record establishes the Ambrosius Group is entitled to equitable contribution from the Johnsons for a portion of the payments they made to Johnson Bank under their guaranties. Accordingly, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: David W. Paynter, et al. v. ProAssurance Wisconsin Insurance Company, et al.

Case No.: 2017AP739

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

Focus: Statutory Interpretation – Malpractice Actions

David and Kathryn Paynter sued Dr. James Hamp, alleging he negligently failed to diagnose David’s cancer. The circuit court granted Hamp summary judgment. It concluded Wisconsin’s borrowing statute, WIS. STAT. § 893.07 (2015-16), applied to the Paynters’ lawsuit, and their claims were therefore subject to Michigan’s statute of limitations for medical malpractice actions. Applying the Michigan statute of limitations, the court concluded the Paynters’ lawsuit was not timely filed.

The circuit court applied an incorrect legal standard in determining the Paynters’ lawsuit was subject to the borrowing statute. Nonetheless, we agree with the court’s ultimate conclusion that their lawsuit was not timely filed.  The borrowing statute applies to actions brought in Wisconsin “on a foreign cause of action.” See WIS. STAT. § 893.07(1), (2). A cause of action is foreign, for purposes of the borrowing statute, when it is premised on an injury that occurred outside of Wisconsin. See Guertin v. Harbour Assurance Co. of Bermuda, 141 Wis. 2d 622, 630, 415 N.W.2d 831 (1987). In a case—like this one—in which the plaintiff claims to have been injured in the same course of action in multiple states, we conclude the plaintiff’s location at the time of his or her first injury controls whether the plaintiff’s cause of action is “foreign.”

Here, the Paynters have alleged a negligent misdiagnosis. Our supreme court has previously held that, in such cases, an actionable injury occurs when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. Paul v. Skemp, 2001 WI 42, ¶25, 242 Wis. 2d 507, 625 N.W.2d 860. In his summary judgment submissions, Hamp made a prima facie showing that all of David’s injuries occurred in Michigan. In response, the Paynters failed to submit sufficient evidence to raise a genuine issue of material fact as to whether David was located in Wisconsin when Hamp’s allegedly negligent misdiagnosis first caused him greater harm than existed at the time of the misdiagnosis. As a result, the Paynters’ lawsuit is a foreign cause of action and is therefore subject to the borrowing statute. Under the borrowing statute, the Paynters’ lawsuit is untimely because it was not filed within the period set forth in Michigan’s statute of limitations for medical malpractice claims. We therefore affirm the circuit court’s judgment dismissing the Paynters’ claims.

Recommended for Publication

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Robert Charles Holmes

Case No.: 2017AP801-CR

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

Focus: Motion to Suppress Evidence Denied

Robert Holmes appeals a judgment convicting him of manufacturing psilocin and maintaining a drug trafficking place. Holmes argues his girlfriend’s consent to a search of their residence was not voluntary, and the circuit court therefore erred by denying his motion to suppress evidence obtained during the search. He further argues the court erred by excluding a psychologist’s testimony regarding his girlfriend’s mental state at the time she gave consent and by refusing to rely on the psychologist’s report. We reject these arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Daniel M. Wilson

Case No.: 2017AP813-CR

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

Focus: Sufficiency of Evidence

Daniel M. Wilson appeals from a judgment of conviction, entered upon a jury’s verdict, and the denial of his postconviction motion. He argues that there was insufficient evidence to support his conviction of repeated sexual assault of a child during the time period specified by the State. He also claims that his trial counsel was ineffective for (1) failing to object to the admission of medical test results of the victim, on the grounds that it was a violation of his right to confrontation; and (2) for failing to object to testimony by the State’s experts regarding the prevalence of familial relationships between sexual abuse victims and their abusers, on the grounds of unfair prejudice. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. J.C.,

Case No.: 2017AP1783

Officials: KESSLER, J.

Focus: Termination of Parental Rights

J.C. appeals the order terminating her parental rights to her child, A.S. J.C. contends that testimony taken at her fact finding hearing was insufficient to establish that the Division of Milwaukee Child Protective Services made reasonable efforts to provide J.C. with the services necessary for the return of her child. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ricardo L. Concepcion

Case No.: 2016AP1284-CR

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

Focus: Plea & Sentencing – Plea Withdrawal

Ricardo L. Concepcion pled no contest to ten counts of possession of child pornography under WIS. STAT. § 948.12(1m) (2015-16) and was sentenced to nine years’ initial confinement followed by six years’ extended supervision. Concepcion argues that he should be allowed to withdraw his no contest plea as the circuit court imposed an unduly harsh sentence, trial counsel was constitutionally ineffective at sentencing, and the court erroneously denied a pretrial suppression motion. We affirm; the search of Concepcion’s home was a private-party search rather than a government search, Concepcion’s sentence was a proper exercise of discretion, and Concepcion’s trial counsel did not perform deficiently at sentencing.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Dorian M. Torres

Case No.: 2016AP1398-CR

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

Focus: Warrantless Search – Third-party Consent

Dorian M. Torres appeals from a judgment of conviction and challenges the denial of his motion to suppress, asserting that police discovered evidence through a warrantless and unlawful search of his apartment. We conclude that police reasonably relied on third-party consent for the search, making a warrant unnecessary and the search lawful. We affirm.

Recommended for Publication

Full Text

WI Court of Appeals – District II

Case Name: Society Insurance, a Mutual Company v. Brenda DeGross, et al.

Case No.: 2017AP856

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

Focus: Insurance Claim – Coverage

Brenda Degross and James Sparish appeal from an order granting declaratory judgment in favor of Society Insurance, a Mutual Company, on the issue of insurance coverage. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: West Bend Mutual Insurance Company v. Ixthus Medial Supply, Inc., et al.

Case No.: 2017AP909

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

Focus: Insurance Claim –Exclusion

West Bend Mutual Insurance Company insured Ixthus Medical Supply, Inc. and Karl Kunstman, Ixthus’ principal (collectively, Ixthus) under a commercial general liability (CGL) policy and a commercial umbrella policy. The sole question on appeal is whether the policies’ “knowing violation” exclusion applies and relieves West Bend of its duty to defend Ixthus in connection with a trademark/trade dress infringement case Abbott Laboratories and two of its affiliates (collectively, Abbott) filed against Ixthus in federal court in New York. Concluding that the exclusion applied because the New York complaint includes allegations of willful misconduct, the circuit court granted summary judgment in favor of West Bend and declared that West Bend had no duty to defend or indemnify Ixthus. We disagree and conclude Abbott’s complaint alleges facts sufficient to trigger the duty to defend. We therefore reverse the judgment and remand for further proceedings.

Full Text

WI Court of Appeals – District II

Case Name: Acuity v. Property Image, LLC.

Case No.: 2017AP1699-FT

Officials: HAGEDORN, J.

Focus: Insurance Claim – Premiums

This is a small claims action over insurance premiums. The insurer, Acuity, initiated this lawsuit against Property Image, LLC to recover premiums owed under a worker’s compensation insurance policy and a “Bis-Pak” policy—basically, a type of general liability policy. The parties disputed whether one of Property Image’s employees was properly classified as a carpenter, which carried additional premiums. The circuit court ultimately dismissed Acuity’s lawsuit on the grounds that Acuity was required to—but did not—give notice of the classification change prior to billing Property Image for the increased amount.

On appeal, Acuity argues that the terms of its policies with Property Image did not require it to give notice that the employee was being reclassified. Because Acuity did not raise this argument in the circuit court, we decline to address it for the first time on appeal and deem it forfeited. Acuity advances a fallback position that it was entitled to at least some of the damages it requested because Property Image had paid no premiums on the employee in question. The circuit court found Acuity’s evidence on this latter point to be lacking and, for this reason, declined to order Property Image to pay additional premiums. Because the circuit court’s findings on this point were not clearly erroneous, we affirm the order of the circuit court.

Full Text

WI Court of Appeals – District IV

Case Name: 100 Harborview Partners, LLC. v. City of La Crosse

Case No.: 2016AP1580

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Court Error – Property Assessment

Property owner 100 Harborview Partners, LLC, challenges the 2012 tax assessment by the City of La Crosse of a commercial building, pursuant to WIS. STAT. § 74.37 (2009-10).  The assessment was based on the City assessor’s valuation of the building at approximately $5.5 million. A private appraiser hired by Harborview reached a value of approximately $3.4 million. Following a two-day trial, the circuit court upheld the City’s assessment, concluding that the assessor’s valuation was reasonable and supported by the evidence.

Harborview argues that the circuit court erred by: (1) applying a presumption of correctness to the City assessor’s valuation of the building, pursuant to WIS. STAT. § 70.49; (2) concluding that Harborview failed to overcome the statutory presumption by presenting “significant contrary evidence;” and (3) concluding that Harborview failed to meet its burden of establishing that the assessment was excessive. For reasons set forth below, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Henry D. Weston

Case No.: 2016AP2347-CR

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

Focus: Motion for New Trial – Newly Discovered Evidence

Henry Weston appeals a judgment of conviction following a jury trial convicting him of first-degree intentional homicide, attempted first-degree intentional homicide, and aggravated battery, and orders denying Weston’s postconviction motions. Weston contends that he is entitled to a new trial based on: (1) newly discovered evidence in the form of victim A.G.’s recantation of his trial testimony; (2) violation of Weston’s right to confrontation when the circuit court denied Weston’s request to impeach A.G. with specific prior acts of dishonest conduct; (3) ineffective assistance of counsel by failing to investigate and present additional evidence to impeach A.G. at trial; and (4) the circuit court allowing the State to introduce Weston’s statements to police, which Weston claims were involuntary. For the reasons set forth below, we reject these contentions. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Peters Heavy Construction, Inc. v. X-Pert One Trucking Corporation, et al.

Case No.: 2017AP1758

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

Focus: Insurance Claim – Duty to Defend

X-Pert One Trucking Corporation and its owner, Joseph Adolphson, appeal the circuit court’s order granting summary judgment in favor of X-Pert One’s insurer, Northfield Insurance Company. The circuit court concluded that Northfield had no duty to defend and no duty to indemnify X-Pert One for claims brought against it. We reverse. On the duty to defend issue, we apply the four-corners rule and conclude that Northfield had a duty to defend X-Pert One. On the duty to indemnify issue, we conclude that Northfield has not demonstrated that it is entitled to summary judgment. We remand for further proceedings consistent with this opinion.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Patrick M. Cooper

Case No.: 2018 WI 22

Focus: Attorney Disciplinary Proceedings

We review, pursuant to Supreme Court Rule (SCR) 22.33(3), a report filed by Referee Jonathan V. Goodman, recommending the court reinstate the license of Patrick M. Cooper to practice law in Wisconsin, with conditions. The Office of Lawyer Regulation (OLR) did not appeal the referee’s recommendation. After careful review of the matter, we agree that Attorney Cooper’s license should be reinstated, with conditions. We also agree with the referee that Attorney Cooper should be required to pay the full costs of this reinstatement proceeding, which are $3,828.81 as of December 20, 2017.

Affirmed

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Wendy Allison Nora

Case No.: 2018 WI 23

Focus: Attorney Disciplinary Proceedings

Attorney Wendy Alison Nora appeals from the report of the referee, Attorney Lisa C. Goldman, who found that Attorney Nora had committed four violations of the Rules of Professional Conduct for Attorneys and recommended that Attorney Nora’s license to practice law in Wisconsin be suspended for one year.

Having heard oral argument and having fully reviewed this matter, we conclude that the referee’s factual findings are not clearly erroneous and that those findings support the legal conclusion that Attorney Nora committed the four counts of professional misconduct alleged in the Office of Lawyer Regulation’s (OLR) amended complaint. We further determine that the serious nature of Attorney Nora’s misconduct and her continued refusal to acknowledge her improper use of the judicial system requires a one-year suspension of her license to practice law in this state.

Affirmed

Concur:

Dissent:

Full Text

Supreme Court Digests

United States Supreme Court

Case Name: Louise Hall Family Trust v. Hall, et al.

Case No.: 16-1150

Focus: Consolidation – Rule 42(A)

Three Terms ago, we held that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of whether any of the others remain pending. Gelboim v. Bank of America Corp., 574 U. S. ___ (2015). We left open, however, the question whether the same is true with respect to cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure. Id., at ___, n. 4 (slip op., at 7, n. 4). This case presents that question.

The normal rule is that a “final decision” confers upon the losing party the immediate right to appeal. That rule provides clear guidance to litigants. Creating exceptions to such a critical step in litigation should not be undertaken lightly. Congress has granted us the authority to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under” §1291, 28 U. S. C. §2072(c), and we have explained that changes with respect to the meaning of final decision “are to come from rule-making, . . . not judicial decisions in particular controversies,” Microsoft Corp. v. Baker, 582 U. S. ___, ___ (2017) (slip op., at 15). If, as Samuel fears, our holding in this case were to give rise to practical problems for district courts and litigants, the appropriate Federal Rules Advisory Committees would certainly remain free to take the matter up and recommend revisions accordingly.

Rule 42(a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals. We reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

Reversed and Remanded

Dissenting:

Concurring:

Full Text