Weekly Case Digests — May 21-May 25, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Brian Valenti v. Connie Lawson, et al.

Case No.: 17-3207

Officials: EASTERBROOK and ROVNER, Circuit Judges, and GILBERT, District Judge.

Focus: Voting Rights – Sex Offender

Plaintiff Brian Valenti is a convicted felon and registered sex offender. Even though his felony conviction is predicated on a sexual act with a child victim, Valenti believes that the state of Indiana is violating his right to vote by refusing to let him enter a polling site located at a school. The district court granted summary judgment in favor of the state defendants. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: HH-Indianapolis, LLC v. Consolidated City of Indianapolis

Case No.: 17-3023

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

Focus: Declaratory Judgment – Ordinance Violation – 1^st Amendment

HH-Indianapolis, LLC (“HH”), intended to open a retail establishment in Indianapolis under the name “Hustler Hollywood.” After entering into a ten-year lease at 5505 E. 82nd St. (“the Property”), HH applied for sign and building permits. Problematically, HH’s proposed store was located in a zoning district that prohibited “adult entertainment businesses,” as defined under the Indianapolis Marion County Zoning Ordinance (“the Ordinance”). Upon review, the Department of Business and Neighborhood Services (DBNS) determined that HH was an adult entertainment business, a decision which the Board of Zoning Appeals (BZA) affirmed.

HH filed this lawsuit against the Consolidated City of Indianapolis and County of Marion, Indiana, the DBNS, and the BZA (collectively, “the City”) seeking a declaratory judgment that the Ordinance violated its First and Fourteenth Amendment rights and violated state administrative law, as well as asking for an injunction against the City’s enforcement of the Ordinance against HH. HH challenged the Ordinance under the First Amendment both as applied to it, as well as facially for overbreadth and vagueness. The district court denied HH’s motion for a preliminary injunction, and HH filed this interlocutory appeal challenging that decision only with respect to its as applied First Amendment claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Chicago Board Options Exchange, Inc., et al. v. Securities and Exchange Commission, et al.

Case No.: 16-3423

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

Focus: Securities Exchange Fees – SEC – Lack of Jurisdiction

In Citadel Securities, LLC v. Chicago Board Options Exchange, Inc., we held that “the district court did not abuse its discretion in dismissing [the] case [of certain securities firms] for failure to exhaust administrative remedies.” 808 F.3d 694, 701 (7th Cir. 2015) [hereinafter Citadel I]. Following that decision, the securities firms filed a petition before the Securities and Exchange Commission (“SEC” or “Commission”) seeking damages from various securities exchanges for improper fees. The SEC dismissed that petition for lack of jurisdiction. The securities exchanges now appeal that order. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lorenzo David v. City of Chicago, et al.

Case No.: 16-1430

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

Focus: 1^st Amendment Violation

Lorenzo Davis worked for Chicago’s Independent Police Review Authority. He alleges that his supervisor fired him because he refused to change his findings in a number of investigations into police misconduct. Davis sued the City of Chicago, arguing that his firing violated his First Amendment rights. The district court dismissed Davis’s claim. We affirm because Davis’s refusal to change his reports is not protected speech.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nicholas Webb, et al. v. Financial Industry Regulatory Authority, Inc.,

Case No.: 17-2526

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

Focus: Federal Jurisdiction – Statutory Interpretation

The parties cast this case as one about arbitral immunity, which is the ground on which the district court dismissed the complaint. It turns out, however, that the case is really about federal jurisdiction. We asked the parties to submit supplemental briefs on this question, and they both contend that subject matter jurisdiction exists. Their strongest argument is grounded in the diversity statute, but the amount in controversy requirement presents an obstacle: the complaint satisfies it only if Illinois law permits the plaintiffs to recover their legal expenses from the underlying arbitration, this suit, or both. We conclude that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances are not present here. We VACATE the judgment for lack of jurisdiction and REMAND the case to the district court with instructions to remand to state court.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: LimeCoral, LTD., v. CareerBuilder, LLC,

Case No.: 17-1733

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

Focus: Breach of Contract

Graphics-design firm LimeCoral, Ltd., sued the job website CareerBuilder, LLC, for breach of copyright and breach of an alleged oral agreement to pay LimeCoral for each annual renewal of a graphic design that LimeCoral prepared for a job posting on CareerBuilder’s website. The district court entered summary judgment in favor of CareerBuilder, finding that CareerBuilder had an irrevocable, implied license to use LimeCoral’s designs that was not conditioned upon any agreement to pay LimeCoral renewal fees. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Demarrel T. Jones, also known as Roosevelt Tucker

Case No.: 17-2818

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

Focus: 6^th Amendment Violation

Demarrel Jones was convicted of unlawfully possessing a firearm as a felon. Prior to trial, the district court granted a motion in limine to preclude cross‐ examination of Officer Anthony Milone in regard to his testimony in United States v. Brantley, 282 F. Supp. 3d 1069 (E.D. Wis. 2017), where both the magistrate and district court judge did not find his testimony accurate. Jones moved for a new trial on grounds of improper vouching during the prosecutor’s rebuttal and a violation of his Sixth Amendment right by precluding the judicial evaluation of Officer Milone’s testimony in Brantley. The district court denied the motion and he now appeals on the same grounds.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Quinn R. Heath v. Indianapolis Fire Department

Case No.: 17-2564

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

Focus: False Claims Act

In January 2015, Quinn Heath applied to become an Indianapolis firefighter. Over the next four months, he passed the Indianapolis Fire Department’s written examination, oral interview, and Certified Physical Agility Test. Quinn’s performance during the application process led to his placement on a ranked list for hiring consideration. The Department hired two academy classes in 2015 from that ranked list, but Quinn was not selected for either class.

Meanwhile, Quinn’s father—Rodney Heath—filed a qui tam suit under the False Claims Act against the Indianapolis Fire Department, alleging that the Department had made false statements of material fact to the federal government in order to receive federal grant funds. At the time, Rodney was a backup investigator in the Department’s arson unit. The same day that Quinn found out he had not been selected for the second academy class, the Department’s Deputy Chief told several Department employees they needed to be interviewed by the U.S. Department of Homeland Security in connection with Rodney’s suit.

Thereafter, Quinn joined his father’s suit, alleging that the Department retaliated against him for his father’s complaint, in violation of the False Claims Act. Quinn’s retaliation claim alleges that he was not hired as an Indianapolis firefighter because of his father’s suit. The district court granted summary judgment to the Indianapolis Fire Department on Quinn’s retaliation claim. Quinn now appeals that decision.

We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to Quinn. Austin v. Walgreen Co., 885 F.3d 1085, 1087 (7th Cir. 2018). We may affirm summary judgment on any ground supported by the record as long as the issue was adequately raised below and the nonmoving party had an opportunity to contest it. See West Side Salvage, Inc. v. RSUI Indem. Co., 878 F.3d 219, 222 (7th Cir. 2017). For the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony Mimms v. CVS Pharmacy, Inc.,

Case No.: 17-1918

Officials: KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge.

Focus: Sufficiency of Evidence – Expert Testimony

Dr. Anthony Mimms is a physician licensed by the Indiana Medical Licensing Board. He started his own pain management practice, Mimms Functional Rehabilitation, in November 2013. He previously worked at Rehabilitation Associates of Indiana. As part of his practice, he prescribes opioids and other controlled substances to many of his patients.  On several occasions, starting in 2013, CVS Pharmacy employees informed some of Mimms’s patients that they would not fill their prescriptions. Mimms sued CVS, alleging the pharmacy employees made defamatory statements when refusing to fill the prescriptions. His complaint details nine allegedly defamatory statements.

To prove his claims, Mimms needed to show that the speakers knew that their statements were false. CVS repeatedly moved for summary judgment on the basis that Mimms had no evidence that the speakers knew their statements were false. Ultimately, the district court granted summary judgment as to five of the statements and denied judgment for the remaining four statements. It concluded there was a material question of fact regarding whether the speakers of those four statements knew that their statements were false in light of evidence that CVS’s corporate office had concluded an investigation of Mimms and had not stopped stores from filling his patients’ prescriptions. In so concluding, the court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the individual speakers.

CVS moved for judgment as a matter of law as to the first three statements at the close of Mimms’s presentation of evidence, again arguing that knowledge held by the corporate office could not be imputed to the speakers. The district court denied the motion, and the jury found CVS liable for defamation per se on all four statements and awarded Mimms $1,025,000 in damages. CVS appeals.  CVS contends the district court should have granted judgment in its favor as to all four of the challenged statements. Alternatively, CVS argues the district court made several errors that merit a new trial. We review the district court’s denial of summary judgment and of judgment as a matter of law de novo, Winters v. Fru‐Con Inc., 498 F.3d 734, 743, 745 (7th Cir. 2007), and generally review its evidentiary and jury instruction rulings for abuse of discretion, Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 833, 835 (7th Cir. 2016). The judgment of the district court is reversed and the case is remanded in part.

Reversed and Remanded in part

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7^th Circuit Court of Appeals

Case Name: Ivy T. Tucker v. United States of America

Case No.: 16-4182

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

Focus: Ineffective Assistance of Counsel

In 2010, a jury convicted Petitioner Ivy Tucker of conspiring to distribute more than one gram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He was sentenced to 40 years’ imprisonment after the district court found that his drug distribution resulted in a death. After his conviction was affirmed on direct appeal, Tucker filed a petition pursuant to 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel. The district court denied his petition, and this appeal followed.

Regardless, the question of whether Tucker’s counsel should have known, based on existing case law, to make the argument is not dispositive in this case because he made a strategic decision not to do so. By agreeing to the stipulation, he made the reasonable calculation that his client would be better off if the jury did not hear any evidence regarding the resulting death. It would lead to an absurd result if Tucker were able to gain the benefit of taking that factual issue away from the jury, only to turn around and argue that the district court was also barred from resolving it. Because the issue was not yet settled in this Circuit, and because Tucker’s counsel made a reasonable tactical decision, we cannot say that the failure to object to the application of the enhancement constituted deficient performance. See Johnson, 624 F.3d at 792. For the foregoing reasons, the judgment of the district court is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Claudia Manley, et al. v. Bruce Law, et al.

Case No.: 16-3846

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

Focus: Due Process Violation

American politics is not for the thin‐skinned. In this case, a dispute between an elected school board member and a student outside a high school play escalated quickly. The school board launched an investigation into the board member’s alleged bullying of the student. The board member and her husband filed this lawsuit, originally to try to stop the investigation. After that did not work, the plaintiffs asserted that the school board and superintendent violated their federal constitutional rights by conducting the investigation and publicly criticizing the board member for her handling of the dispute with the student. The Due Process Clause of the Fourteenth Amendment, plaintiffs tell us, protects their emotional well‐being and entitles them to feel that the government treated them fairly. We affirm the district court’s grant of summary judgment dismissing the case.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael A. Roberts

Case No.: 2017AP1276-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Michael A. Roberts appeals from a judgment of conviction for one count of third-degree sexual assault, contrary to WIS. STAT. § 940.225(3) (2013-14). Roberts also appeals from an order denying his postconviction motion, which alleged that Roberts was entitled to a new trial because his trial counsel provided ineffective assistance concerning his cross-examination of a detective and the victim. We conclude at conference that this matter is appropriate for summary disposition. See WIS. STAT. RULE 809.21(1). We summarily affirm the judgment and the order.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Fernando Cortez Johnson

Case No.: 2017AP648-CR; 2017AP649-CR

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

Focus: Sufficiency of Evidence

Fernando Cortez Johnson appeals from the judgments of conviction for strangulation, misdemeanor battery, disorderly conduct and intimidation of a victim in furtherance of a conspiracy, following a joint jury trial of two related cases against him.  He also appeals the denial of his postconviction motions. On appeal, Johnson contends that the trial court violated his constitutional right to confrontation by admitting victim P.B.’s out-of-court statements at trial under the forfeiture by wrongdoing doctrine. He also contends there is insufficient evidence to support the conspiracy to intimidate a victim conviction. We disagree and, therefore, affirm. These background facts provide context for the issues raised on appeal. Additional relevant facts are included in our discussion.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Eric W. Poirier

Case No.: 2017AP931-CR

Officials: SEIDL, J.

Focus: Prisoner – Income Assignment Order

Eric Poirier, pro se, appeals from an order assigning income from his prison account to pay unpaid fines, costs and surcharges assessed by the circuit court as a result of his 2003 conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) as a third offense. We reject Poirier’s arguments that the income assignment order was improper and affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darryl Allen Flynn

Case No.: 2017AP935

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

Focus: Ineffective Assistance of Counsel

Darryl Allen Flynn, pro se, appeals an order denying his motion for postconviction relief. Flynn argues that his trial lawyer ineffectively represented him by failing to object to jury instructions that: (1) did not inform the jury of the State’s burden to disprove self-defense beyond a reasonable doubt for first-degree and second-degree reckless homicide; (2) did not inform the jury that, with regard to self-defense, a belief could be reasonable, even though it is mistaken; (3) did not properly inform the jury to consider the law of self-defense of others with each offense; and (4) did not inform the jury that Flynn had a right to protect his children. Flynn further argues we should exercise our discretionary power to grant him a new trial in the interests of justice under WIS. STAT. § 752.35 (2015-16). We affirm.

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WI Court of Appeals – District I

Case Name: The Estate of Irene A. Pelt, et al. v. CRL Services, LLC, et al.

Case No.: 2017AP982

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

Focus: Court Error – Special Verdict

This appeal stems from a wrongful death action brought by the Estate of Irene Pelt (the Estate). The Estate alleged that Pelt died as a result of injuries incurred while a resident at Northfield Manor, a memory-care facility (Northfield). The issue in this appeal is whether the trial court erred in sua sponte amending the special verdict to reflect only one potential date of injury: Sunday, July 8, 2012. The Estate contends that the trial court’s amendment likely confused the jury because the Estate presented evidence of multiple alleged incidents of neglect occurring on multiple days, specifically, both Saturday, July 7, 2012, and Sunday, July 8, 2012.

The trial court specifically instructed the jury that it was only to consider whether the injury occurred on July 8th. Thus, the trial court essentially disregarded all of the evidence that Pelt could have sustained her leg fracture on July 7, 2012. During the postverdict hearing the trial court candidly admitted that it, not the jury, decided that the evidence pointing to July 7th was not “substantial[ly] credible.” Neither party asked the trial court to limit the date of consideration to July 8th. In fact, both parties presented their cases relative to events over the entire weekend and the Estate objected to limiting the date of consideration to July 8th.

We acknowledge that a trial court has wide discretion in framing a special verdict, see Runjo v. St. Paul Fire & Marine Insurance Co., 197 Wis. 2d 594, 602, 541 N.W.2d 173 (Ct. App. 1995); however, we may reverse a trial court’s decision to formulate a special verdict that “does not fairly present the material issues of fact to the jury for determination.” See Z.E. v. State, 163 Wis. 2d 270, 276, 471 N.W.2d 519 (Ct. App. 1991). The trial court’s discretion does not extend to invading the province of the jury by determining evidence credibility and resolving evidentiary conflicts meant for a jury.

Because the jury’s determination of both negligence and damages was constrained by its ability to only consider July 8th as the date of Pelt’s injury, we conclude that a new trial on the question of both liability and damages is required. For the foregoing reasons, we reverse the trial court and remand for a new trial. Order reversed and cause remanded with directions.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rickey L. Voegeli

Case No.: 2017AP1089-CR; 2017AP1090-CR; 2017AP1091-CR; 2017AP1092-CR

Officials: Kessler, Brash and Dugan, JJ.

Focus: Plea & Sentencing

Rickey L. Voegeli appeals from judgments of conviction, following guilty pleas, for stalking, felony bail jumping, and two misdemeanor counts of violating a restraining order. Voegeli also appeals the order denying his postconviction motion to withdraw his guilty pleas, or alternatively, for resentencing. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Emmanuel Earl Trammell

Case No.: 2017AP1206-CR

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

Focus: Jury Instructions

Emmanuel Earl Trammell appeals from a judgment, entered upon a jury’s verdict, convicting him on one count of armed robbery and one count of operating a motor vehicle without the owner’s consent. Trammell also appeals from an order that denied his postconviction motion without a hearing. Trammell contends that one of the jury instructions given reduced the State’s burden of proof, confused the jury, and misstated the law. Trammell also asserts that the “improper” instruction warrants a new trial in the interest of justice because the real controversy was not fully tried, or that the instruction was plain error warranting relief. We reject these arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. I.K.

Case No.: 2017AP1425

Officials: BRASH, J.

Focus: Ch. 51 Commitment – Failure to Meet Burden of Proof  

I.K. appeals an order for his involuntary commitment, pursuant to WIS. STAT. § 51.20(1)(a). I.K. argues that Milwaukee County failed to meet its burden of proof as required under the statute, specifically, that I.K. was dangerous due to a substantial probability of suffering physical impairment or causing injury to himself or others. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.E.

Case No.: 2017AP1773; 2017AP1774

Officials: BRENNAN, P.J.

Focus: Termination of Parental Rights

Tony appeals from orders terminating his parental rights to two of his children, Susan and Mark, and from the postdisposition court’s decision of February 9, 2018, denying his post-remand motion without an evidentiary hearing. Tony makes five arguments in support of vacating the orders: (1) the post-disposition court erred in denying his post-remand motion without an evidentiary hearing; (2) a CHIPS removal order created a “courtordered and court-supervised substantial parental relationship” that made the grounds of failure to assume parental responsibility unlawful; (3) trial defense counsel was ineffective for not objecting that WIS. STAT. § 48.415(6) is unconstitutional as applied to him here because the State’s removal of both children from his care made daily care impossible; (4) the evidence was insufficient to support the continuing CHIPS grounds in his son’s case; and, (5) he is entitled to a new trial in the interest of justice. We reject his claims and affirm for the reasons following.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marco Xavier Taylor

Case No.: 2016AP1353-CR

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

Focus: Sentence Modification

Marco Taylor appeals from judgments convicting him of obstructing/resisting an officer and being a felon in possession of a firearm. Taylor also appeals from an order denying his postconviction motion seeking sentence modification relating to the $3600 fine imposed by the circuit court. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Manuel Rolon

Case No.: 2017AP413-CR

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

Focus: Ineffective Assistance of Counsel

A jury convicted Manuel Rolon of second-degree recklessly endangering safety and substantial battery (bodily harm intended). Rolon appeals from the judgment of conviction and from a circuit court order denying his postconviction motion alleging ineffective assistance of trial counsel. The case against Rolon arose out of a violent confrontation with a church property manager. Rolon, who had been living on church property allegedly without permission, repeatedly hit the victim with a metal shovel, severely injuring him. The confrontation occurred after the victim notified Rolon that the church owner (David Davenport) had directed that the locks be changed, and Rolon should not be on the premises. The jury convicted Rolon in the attack on the victim.

Postconviction, Rolon alleged two ineffective assistance of trial counsel claims. The circuit court held an evidentiary hearing on the first claim and denied Rolon’s request for a new trial because the court determined that counsel was not ineffective when counsel withdrew a request to adjourn the trial. Without holding an evidentiary hearing, the circuit court denied the second claim that Rolon’s trial counsel was ineffective for not objecting to references to him as a “squatter” on the church property.

We agree with the circuit court that Rolon’s ineffective assistance claim did not warrant an evidentiary hearing. The jury heard conflicting testimony about the basis for Rolon’s presence on the property. Two witnesses testified that Rolon was a squatter. Rolon also testified in lay terms about his basis for being on the church property: he had purchased the property, and he was in an ownership dispute with Davenport, the party who directed that the locks be changed. We conclude that even if trial counsel should have objected to the squatter testimony, it is not reasonably probable that the trial outcome would have been different had counsel objected. Because the record demonstrated that Rolon was not entitled to relief on this ineffective assistance claim, the circuit court properly exercised its discretion when it denied the claim without an evidentiary hearing.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Juan M. Orta

Case No.: 2017AP426-CR

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

Focus: Warrantless Search – Third Party Consent

Juan M. Orta pled no contest to possession with intent to deliver cocaine (>5 – 15 grams) as a second or subsequent offense. He contends evidence seized from his home pursuant to a warrantless entry should have been suppressed because the teenaged daughter of Ana Trinidad, Orta’s cohabitant girlfriend, did not have actual or apparent authority to consent to enter his home and did not voluntarily consent. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Terrelle D. Oliver

Case No.: 2017AP792-CR

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

Focus: Sufficiency of Evidence

Terrelle D. Oliver appeals from a judgment convicting him of armed robbery and two counts of first-degree sexual assault by use of a dangerous weapon, contrary to WIS. STAT. §§ 943.32(2) and 940.225(1)(b) (2015-16).  Oliver contends the trial court erroneously exercised its discretion when it excluded two pieces of evidence that he claims would have undermined the victim’s credibility and bolstered his defense. We affirm.

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WI Court of Appeals – District II

Case Name: John Teske, et al. v. Wilson Mutual Insurance Company    

Case No.: 2017AP1269

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

Focus: Negligence – Claim Preclusion

On November 24, 2013, a multi-car traffic accident caused severe injuries to multiple persons when a vehicle driven by Sabrina Srock rear-ended Emily Teske’s vehicle, propelling Emily’s vehicle into a vehicle driven by Patrice Rog. Members of Emily’s family were passengers in her vehicle and suffered injuries. Medical bills for the Teske family exceeded $700,000. The Teske vehicle was insured by Wilson Mutual Insurance Company (Wilson) and had $500,000 in underinsured motorist (UIM) coverage and $500,000 in liability coverage. The parties first litigated UIM coverage issues. The Teskes then brought this negligence action against Wilson on allegations that Emily was negligent in the operation of her vehicle. Wilson objected to the negligence lawsuit on grounds of claim preclusion. The circuit court agreed with Wilson and dismissed the Teskes’ negligence action. We reverse. Given the unique facts of this case, claim preclusion does not apply as there is no identity between causes of action. The Teskes’ UIM action sought a declaration as to coverage and was a distinct and different type of action from the Teskes’ current tort action alleging causal negligence by Emily.

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WI Court of Appeals – District II

Case Name: Fond Du Lac County v. Isaac Anthony Dahlke

Case No.: 2017AP1417

Officials: HAGEDORN, J.

Focus: Unlawful-stop Claim

This case concerns whether an officer’s search of a citizen’s vehicle was supported by reasonable suspicion. Shortly after midnight on November 12, 2016, Deputy Lucas Olson stopped Isaac Dahlke in a wayside that was either next to or part of a park, depending on one’s view of the evidence. Dahlke’s vehicle was searched during the stop, leading to Dahlke’s arrest and citation for possession of marijuana. Dahlke moved to suppress the results of the search on the grounds that the initial stop itself was unlawful. The circuit court agreed and granted the motion.

On appeal, the County argues that the stop was justified based on what Olson reasonably believed to be a violation of a Fond du Lac County ordinance restricting hours of access to the County’s parks, or even without an ordinance violation, reasonable suspicion otherwise that Dahlke was involved in criminal activity. Because the County failed to prove the objective reasonableness of Olson’s belief that Dahlke’s entry into a wayside was in violation of the County ordinance, this belief did not justify the stop. Neither is the stop saved on the grounds that reasonable suspicion was present independent of the alleged ordinance violation. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: George Hays, et al. v. Mill Creek Land and Cattle Co., et al.

Case No.: 2017AP479

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

Focus: Negligence Claim – Time-barred

George Hays and Wendy Hays appeal a circuit court order that dismissed the Hays’ negligence action against Mill Creek Land and Cattle Co., LLC, and its insurer. The Hays argue that Mill Creek was negligent in failing to install a handrail on the stairway in the property that the Hays rented from Mill Creek. We conclude that the circuit court properly dismissed the Hays’ action because their claims are barred by a statute of repose, WIS. STAT. § 893.89 (2015-16). We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Anthony Hill

Case No.: 2017AP957-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

Anthony Hill appeals a judgment of conviction and an order denying his postconviction motion. Hill contends that his trial counsel was ineffective by: (1) failing to object to police testimony that an anonymous citizen had reported that Hill committed the robbery; and (2) failing to object to Hill’s supervising probation and parole agent’s testimony that the agent was 99.9% sure that Hill was the person whose image was captured in a still photograph taken from the surveillance videotape of the robbery. Alternatively, Hill seeks a new trial in the interest of justice. We reject Hill’s claims of ineffective assistance of counsel, and we decline to order a new trial in the interest of justice. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: David L. Studer v. Charlene K. Studer

Case No.: 2017AP1281

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

Focus: Divorce – Maintenance Award

Charlene Studer appeals from a circuit court judgment of divorce requiring her former spouse, David Studer, to pay her maintenance of $1,000 per month until she is sixty-two years old. Charlene argues that the circuit court erroneously exercised its discretion by not sufficiently articulating the basis for the amount or duration of its maintenance award. We reject Charlene’s arguments and affirm the circuit court’s judgment, though we remand so that the circuit court can fix a clerical error in the judgment regarding Charlene’s birthdate.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eric Lavon Ulmer

Case No.: 2017AP1363-CR

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

Focus: Sufficiency of Evidence

Eric Ulmer appeals a judgment of conviction for child abuse, second-degree recklessly endangering safety, being a felon in possession of a firearm, and felony intimidation, all as a repeater. Ulmer also appeals the denial of his postconviction motion. Ulmer argues that the evidence was insufficient to support his conviction for second-degree recklessly endangering safety, and also makes various arguments relating to an error in two of the verdict forms. We reject Ulmer’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Eldon Arthur Holt

Case No.: 2017AP1375-CR

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

Focus: Suppression of Evidence – Blood Test

Eldon Arthur Holt appeals a judgment of conviction for operating with a prohibited blood alcohol concentration (PAC) as a seventh, eighth, or ninth offense. Holt contends that the results of his blood test should have been suppressed because the blood draw was conducted in violation of Holt’s Fourth Amendment rights. Specifically, Holt contends that: (1) police lacked reasonable suspicion to extend the traffic stop by asking whether Holt had been drinking; and (2) police lacked probable cause to arrest Holt for PAC. We reject Holt’s Fourth Amendment arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Benjamin R. Tibbs

Case No.: 2017AP2408-CR

Officials: LUNDSTEN, P.J.

Focus: Prior Offense – Sentence Enhancement

Benjamin Tibbs appeals a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant as a second offense. Tibbs argues that the circuit court erred by counting a prior California offense for penalty enhancement purposes. I reject Tibbs’ argument and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Donald J. Thoma, et al. v. Village of Slinger

Case No.: 2018 WI 45

Focus: Sufficiency of Evidence – Property Classification

We accepted review in these cases to decide whether an injunction prohibiting agricultural use of a residentially-zoned property controls the property’s tax assessment classification. As it turns out, all parties agree that the classification of real property for tax purposes is based on the actual use of the property, and that an injunction obtained based on a restrictive covenant does not control tax assessment classification. This is in fact the law in Wisconsin. See Wis. Stat. § 70.32(2)(a) (2013-14).

What remains to be determined in this consolidated appeal is: (1) whether Donald J. Thoma and Polk Properties LLC (Thoma) presented sufficient evidence to the Village of Slinger Board of Review to overturn the 2014 tax assessment, and (2) whether the circuit court erroneously exercised its discretion when it denied Thoma’s Wis. Stat. § 806.07(1)(h) motion asking the circuit court to vacate its original order affirming the Board’s decision and remand to the Board for a new hearing. Because the record before the Board contains no evidence that Thoma used the property agriculturally within the meaning of Wisconsin tax law, we hold the Board’s decision upholding the tax assessment was lawful, supported by a reasonable view of the evidence, and therefore cannot be disturbed. We further hold that the circuit court did not erroneously exercise its discretion when it denied Thoma’s request to vacate the original order. Accordingly, we affirm the decision of the court of appeals in 2015AP1970, and we affirm the order of the circuit court in 2016AP2528.

Affirmed

Concur:

Dissent: ROGGENSACK, C.J., dissents, joined by ZIEGLER, J. (opinion filed).
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WI Supreme Court

Case Name: Mark McNally v. Capital Cartage, Inc.  

Case No.: 2018 WI 46

Focus: Statutory Interpretation – Real Estate Broker Commission

The petitioner, Capital Cartage, Inc. (Capital Cartage), seeks review of an unpublished decision of the court of appeals affirming the circuit court’s determination that real estate broker Mark McNally (McNally) is entitled to a commission pursuant to the listing contract between the parties. Contrary to the court of appeals’ determination, Capital Cartage asserts that McNally is not entitled to a commission because the offer to purchase McNally procured contains substantial variances from the seller’s terms as set forth in the listing contract.

Specifically, Capital Cartage argues that three terms in the offer to purchase constitute substantial variances from the listing contract. Among these is a dispositive condition that Mary Hermanson, one of Capital Cartage’s owners, continue to work for the business without pay for an undetermined period of time following the sale.

Capital Cartage further asserts that the court of appeals erroneously interpreted Libowitz v. Lake Nursing Home, Inc., 35 Wis. 2d 74, 150 N.W.2d 439 (1967). It alleges that Libowitz did not, as the court of appeals concluded, alter the standard for determining whether a substantial variance exists as set forth by Kleven v. Cities Serv. Oil Co., 22 Wis. 2d 437, 126 N.W.2d 64 (1964). Therefore, it contends that McNally is not entitled to a commission because he did not procure an offer to purchase “at the price and on substantially the terms set forth” in the listing contract.

We conclude first that Kleven remains the law of this state with regard to determining whether a substantial variance exists between a listing contract and an offer to purchase. Although a term of the offer to purchase that is directly in conflict with the listing contract is a substantial variance, it is not the sole manner in which substantial variance may be shown. Kleven offered direct contradiction as an example, not as a limitation.

Applying this standard, we conclude that in the context of the sale of a business with real estate where the sale did not go through, the condition in the offer to purchase that Mary Hermanson continue to work for Capital Cartage without pay constitutes a substantial variance from the listing contract as a matter of law. Consequently, we determine that McNally did not procure an offer to purchase “at the price and on substantially the terms set forth” in the listing contract and therefore is not entitled to a commission. Accordingly, we reverse the court of appeals.

Reversed

Concur:

Dissent: ZIEGLER, J., dissents (opinion filed).
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WI Supreme Court

Case Name: Archie A. Talley v. Mustafa Mustafa, d/b/a Burleigh Liquor

Case No.: 2018 WI 47

Focus: Insurance Claim – Coverage

In this insurance coverage dispute, we consider whether a business-owners liability policy covers a negligent supervision claim arising out of an alleged employee’s intentional act of physically punching a customer in the face. We hold that this insurance policy does not provide coverage under these circumstances. When the negligent supervision claim pled rests solely on an employee’s intentional and unlawful act without any separate basis for a negligence claim against the employer, no coverage exists. Accordingly, we reverse the decision of the court of appeals, which reversed the circuit court’s grant of summary judgment in favor of Auto-Owners Insurance Company (Auto-Owners) on the coverage issue. The circuit court correctly concluded that there is no coverage under this business liability insurance policy for either the employee’s intentional act or the negligent supervision claim against the employer arising solely out of the employee’s intentional act. By the Court.—the decision of the court of appeals is reversed.

Concur:

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