Weekly Case Digests — August 13-August 17, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Grant Birchmeier, et al. v. Caribbean Cruise Line, Inc., et al.

Case No.: 17-1626; 17-1778; 17-1953; 17-1969; 17-1984; 17-2857

Officials: EASTERBROOK and ROVNER, Circuit Judges, and GRIESBACH, District Judge

Focus: Fee Award – Claim Preclusion

During 2011 and 2012 a million people received phone calls asking them to take political surveys in exchange for a chance to go on a free cruise. Some recipients filed a class action under the Telephone Consumer Protection Act, 47 U.S.C. §227, seeking damages for these unsolicited communications. Caribbean Cruise Line, Vacation Ownership Marketing Tours, and the Berkley Group were named as defendants on the theory that, though they had not placed the calls, they had directed them and thus are vicariously liable. (The plaintiffs also sued the caller, which has not participated in these appeals.) The district court certified a class under Fed. R. Civ. P. 23(b)(3). Later it granted partial summary judgment in the plaintiffs’ favor and scheduled a trial. 179 F. Supp. 3d 817 (N.D. Ill. 2016).

Defendants take issue with the structure of the fee award. They insist that the award should give class counsel only 25% (rather than 30%) of the second tier of recovery, 20% (rather than 24%) of the third, and 15% (rather than 18%) of the remainder. To this Freedom Home Care adds that the third tier should be capped at some figure lower than $56 million. These changes to the award, they say, would align it with awards of attorneys’ fees that have been approved in other suits brought under the Act. See also In re Synthroid Marketing Litigation, 325 F.3d 974 (7th Cir. 2003).

Freedom Home Care contends that it is entitled to an incentive award and attorneys’ fees for its objection to class counsel’s fees. Last comes McCabe’s appeal. He contends that the settlement improperly releases claims outside the class period (August 2011 to August 2012) and that the notice sent to the class members was deficient. For two reasons the district court held that McCabe lacks standing to raise these objections. First, McCabe’s objections state that he is “a class member who received calls on his cell-phone number … and landline phone … outside of the class period”. The court found this statement self-contradictory; it treated McCabe’s assertion that he received calls “outside of the class period” as an assertion that he did not receive calls within the class period, and it reasoned that McCabe thus could not be in the class. Second, in 2015 McCabe won a judgment against Caribbean Cruise Line in an action he had brought in the Eastern District of New York. The court decided that any claim arising from calls McCabe received during the class period should have been brought in his separate suit, and that the doctrine of claim preclusion now bars any such claim.

We can quickly dispose of McCabe’s remaining argument: He insists that the notice sent to the class insufficiently described the process for selecting a cy-pres recipient. Not so. The notice told class members that a cy-pres recipient might be selected after the second round of payments, gave instructions for recommending recipients, and provided a website where members can learn more about the settlement. That is enough to meet the notice requirements of Fed. R. Civ. P. 23.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Keenan Davis

Case No.: 17-2814

Officials: BAUER, KANNE, and HAMILTON, Circuit Judges

Focus: Sufficiency of Evidence

Keenan Davis was charged with and convicted of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), arising from two unrelated incidents. Davis appeals three evidentiary rulings as to testimony from three witnesses, and argues that the government failed to provide sufficient evidence to prove Count Two.

The government argues three facts, taken together, provide sufficient circumstantial evidence to connect Davis to the revolver and support the jury’s conclusion: (1) the government’s establishment of Davis as the head of the household; (2) the discovery of three Crown Royal bags in the apartment, one holding the revolver and a second tied to Davis’s pants; and (3) a reasonable inference that J.R. lied in his testimony to protect his father, as well as the jail calls that allowed a jury to conclude Davis attempted to influence J.R.’s testimony. All of this taken together, the government argues, provides sufficient circumstantial evidence to conclude Davis constructively possessed the revolver. We agree.

Affirmed

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7^th Circuit Court of Appeals

Case Name: World Outreach Conference Center, et al. v. City of Chicago

Case No.: 17-2476

Officials: BAUER, BARRETT, and ST. EVE, Circuit Judges.

Focus: Fee Award – Attorney’s Fees

This is the third time World Outreach Conference Center’s (World Outreach) long-running dispute with the City of Chicago has appeared before us. See World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531 (7th Cir. 2009) (“World Outreach I”); World Outreach Conference Ctr. v. City of Chicago, 787 F.3d 839 (7th Cir. 2015) (“World Outreach II”). In this appeal, World Outreach contends that the district court erred by making a 70% across-the-board reduction to its award of attorney’s fees. We find no reason to disrupt the district court’s determination and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles DeHaan

Case No.: 17-2005

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

Focus: Sentencing Guidelines

Dr. Charles DeHaan appeals the sentence he received for engaging in a scheme to defraud Medicare in violation of 18 U.S.C. § 1347. In estimating the loss attributable to DeHaan’s conduct, the district court found that he was responsible for fraudulently certifying the eligibility of least 305 individuals for home health care services, resulting in wrongful billings to Medicare of nearly $2.8 million. DeHaan contends that the court’s finding that he fraudulently certified 305 individuals is tainted by a legal error as to what was required to properly certify a patient as eligible for home care. He also argues that the loss figure for these individuals was inflated, as the government did not prove that the individuals in question in fact were not eligible for the services billed. Finally, because he believes that this loss amount was erroneous, DeHaan contends that the court also erred in requiring him to pay restitution in the same amount. Finding no error in the district court’s conservative loss‐estimation methodology, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States Ex Rel. Jeffrey Berkowitz v. Automation Aids, Inc., et al.,

Case No.: 17-2562

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

Focus: Failure to State Claim – FCA Violation

Relator Jeffrey Berkowitz filed a qui tam complaint against nine separate defendants, alleging violations of the False Claims Act (FCA), 31 U.S.C. § 3730. The defendants moved to dismiss Berkowitz’ third amended complaint for failure to state a claim. The district court granted the defendants’ motions and dismissed the case. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Planned Parenthood of Indiana and Kentucky, Inc., v. Commissioner of the Indiana Department of Health, et al.

Case No.: 17-1883

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

Focus: HEA 1337 Violation

Since 1995, the State of Indiana has required that, at least eighteen hours before a woman has an abortion, she must be given information provided by the State about, among other things, the procedure, facts about the fetus and its development, and alternatives to abortion. That information is meant to advance the State’s asserted interest in promoting fetal life. In other words, the State hopes that women who read that information and consider it will opt not to have an abortion, and will, instead, choose to carry the pregnancy to term. After she has received the mandated information, a woman must wait at least eighteen hours before having an abortion, thus, the State hopes, she will use the time to reflect upon her choice and choose to continue her pregnancy. The State also requires that a woman have an ultrasound and hear the fetal heartbeat prior to an abortion although she may decline the opportunity to do one or both, as 75% of women generally do.

Prior to July 1, 2016, women could, and generally did, have the ultrasound on the same day of the procedure. This was, in large part, because almost all abortions in Indiana occur at one of four Planned Parenthood of Indiana and Kentucky (PPINK) health centers, and only those few PPINK facilities that offer abortion services (most do not) had the ultrasound equipment on site. The Indiana House Enrolled Act 1337 (HEA 1337), however, amended Indiana law and now requires women to undergo an ultrasound procedure at least eighteen hours prior to the abortion. Because of the structure and location of abortion services in Indiana and the population of women seeking abortions, this change— moving the ultrasound from the day of the abortion procedure to at least eighteen hours before—as we will explore, is significant.

PPINK filed suit against the Commissioner of the Indiana State Department of Health and the prosecutors of Marion County, Lake County, Monroe County, and Tippecanoe County (collectively, “the State”), all in their official capacities. PPINK claimed that HEA 1337 unconstitutionally burdens a woman’s right to choose to have an abortion, and it sought preliminary relief enjoining the provision during the pendency of the litigation. The district court granted the preliminary injunction. We agree with the well-reasoned conclusions of the district court opinion, from which we borrow heavily.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sarbjit Singh v. Jefferson B. Sessions III

Case No.: 17-1579; 17-2852

Officials: EASTERBROOK and SYKES, Circuit Judges, and REAGAN, District Judge.

Focus: Immigration Removal Order

Sarbjit Singh, an Indian citizen and lawful permanent resident, faces removal from the United States for the second time. He was first removed in 2006 based on a 2004 Indiana felony conviction for corrupt business influence. IND. CODE § 35-45-6-2. Singh reentered the country in 2010 to pursue postconviction relief in Indiana. Three weeks later a state judge vacated the conviction and accepted his guilty plea to the crime of deception (a misdemeanor) in its stead. Id. § 35-43-5-3. Singh thereafter asked the Board of Immigration Appeals to reopen and reconsider the removal order. The Board granted the motion and remanded the case to an immigration judge.

A second round of removal proceedings ensued. The government initially conceded that the deception offense did not support removal and sought Singh’s removal on other grounds. It later changed course and issued a new charge alleging that Singh was removable based on the deception conviction, which it argued was “a crime involving moral turpitude … for which a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). Singh responded that the government’s initial concession was binding and, regardless, deception is not a removable offense because it is not punishable by a sentence of “one year or longer.” The immigration judge entered a new removal order, reasoning that the government’s concession was not binding because the Department of Homeland Security has express regulatory authority to lodge new or additional charges in removal proceedings “[a]t any time.” See 8 C.F.R. §§ 1003.30, 1240.10(e). And because the deception offense carries a possible sentence of “not more than one (1) year,” IND. CODE § 35-50-3-2, the judge held that it qualifies as a crime for which a sentence of “one year or longer may be imposed.” The Board affirmed the removal order.

Singh seeks review of both orders, arguing first that the Board abused its discretion in refusing to reopen his case based on the vacatur of the deception conviction. In the alternative he argues that deception does not carry a possible sentence of “one year or longer” and that the government’s concession to that effect is binding. These arguments are meritless, so we deny both petitions for review.

Denied

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7^th Circuit Court of Appeals

Case Name: Entertainment USA, Inc., v. Moorehead Communications, Inc.,

Case No.: 17-2847

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

Focus: Breach of Contract – Referral Agreement

In 2006, plaintiff Entertainment USA sold cellular telephones and service contracts in central Pennsylvania through a network of retail dealers. Defendant Moorehead Communications, an Indiana company, sought to break into that geographic market by offering dealers the chance to sell Verizon products and services. Without aid of counsel, the two companies signed a two‐page “referral agreement” connecting Moorehead with a number of Entertainment USA’s dealers. The agreement promised Entertainment USA a “referral fee” for every Verizon activation or upgrade that resulted.

Six years later, this referral agreement became the subject of litigation in the Northern District of Indiana. Entertainment USA alleged that Moorehead breached the agreement by discontinuing the referral payments. After a bench trial, the district court agreed that Moorehead had breached, but in much narrower ways than Entertainment USA had claimed. The court also found, however, that Entertainment USA had failed to prove the amount of its damages with reasonable certainty. The court therefore awarded no damages to Entertainment USA. Entertainment USA, Inc. v. Moorehead Communications, Inc., 2017 WL 3432319 (N.D. Ind. Aug. 9, 2017). We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jane Dane No. 55 v. Madison Metropolitan School District

Case No.: 17-1521

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

Focus: Title IX Violation – Actual Knowledge

The allegations in this case are troubling, to say the least. The appellant, Jane Doe, claims that she was sexually assaulted by a security guard at her middle school while she was in eighth grade. Seeking redress, she filed suit against the Madison Metropolitan School District under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). To obtain damages against the school district, Doe was required to prove, among other things, that a school official had actual knowledge of the alleged conduct. The question in this case is whether a reasonable jury could have found, based upon the summary judgment record, that the principal at Doe’s middle school had actual knowledge of the security guard’s misconduct. The district court thought not and granted summary judgment in the school district’s favor. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. John Thomas

Case No.: 17-1002

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

Focus: Sentencing Guidelines

Whitney “Strawberry” Blackwell stole cash and drugs from defendant-appellant John Thomas. His effort to punish her and recover his cash and drugs has landed him in federal prison with a life sentence. Thomas kidnapped Blackwell’s younger brother and sister in Indiana and had them taken to Michigan and Kentucky, respectively, before law enforcement tracked them down.

Thomas raises four issues on appeal: (a) that Blackwell was allowed to offer inadmissible and prejudicial testimony for the prosecution; (b) that the district court should have excluded cell-site location information about cell phones associated with Thomas; (c) that the court erred in its Sentencing Guideline calculations; and (d) that the court erred under Alleyne v. United States, 570 U.S. 99 (2013), by failing to have the jury decide that the kidnapping victims were under 18 years old, which increased the mandatory minimum sentence. Thomas did not raise any of these issues in the district court.

We affirm the convictions and sentence. We first review the facts of the case and then turn to Thomas’s new arguments. To summarize our conclusions: (a) the district court did not plainly err in dealing with Blackwell’s testimony and her apparent inability to follow instructions about answering what she was asked and not raising certain subjects; (b) the court did not err by admitting the cell-site location evidence where Thomas did not move to suppress or even object to that evidence; (c) the court did not plainly err in its guideline calculation; and (d) the court made an Alleyne error regarding the ages of the kidnapping victims, but the error was harmless, calling for no remedy under the plain-error doctrine.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Meryl Squires-Cannon, et al. v. Forest Preserve District of Cook County, et al.

Case No.: 16-3131

Officials: BAUER, MANION, and HAMILTON, Circuit Judges

Focus: Foreclosure – Failure to State Claim

The Forest Preserve District of Cook County, Illinois, has been trying to acquire a 400-acre estate in Barrington after the owners defaulted on a mortgage and note held by the Forest Preserve. The Forest Preserve foreclosed and then bought the property at the foreclosure auction. The original owners have expressed their opposition by filing five lawsuits of their own, in addition to raising affirmative defenses and counterclaims in the still-pending foreclosure action. This appeal arises in the owners’ third federal lawsuit, in which they have alleged unconstitutional takings, fraud, and derivative claims for conspiracy and aiding and abetting. The district court dismissed the suit for failure to state a claim. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Camp Drug Store, Incorporated, v. Cochran Wholesale Pharmaceutical, Incorporated,

Case No.: 17-2086

Officials: RIPPLE, MANION, and SYKES, Circuit Judges

Focus: Abuse of Discretion – Attorney’s Fees

Camp Drug Store, Inc., filed this action, on its own behalf and as a representative of a proposed class, against Cochran Wholesale Pharmaceutical, Inc. (“Cochran”). Camp Drug Store alleged that Cochran had violated the Telephone Consumer Protection Act (“TCPA” or “the Act”), 47 U.S.C. § 227, by faxing unsolicited advertisements to the class members. The parties entered into early mediation and reached a settlement. The district court approved the settlement on behalf of the class, but reduced the pro‐ posed attorney fee and incentive awards.

Camp Drug Store appeals. It maintains that the settlement created a common fund against which the reasonableness of the attorney fee award should be assessed. It also notes that the proposed incentive awards were commensurate with other awards to named plaintiffs for claims under the TCPA.

We cannot accept Camp Drug Store’s characterization of the settlement as a common fund. Neither our case law, nor that of the Supreme Court, supports that characterization. Moreover, given the early stage at which this litigation was settled, the reductions in the attorney fee and incentive awards were not an abuse of discretion. We therefore affirm the district court’s judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jerard Gregory Hampton

Case No.: 2017AP300-CR

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

Focus: Plea & Sentencing – Plea Withdrawal

Jerard Hampton appeals a judgment, entered upon his no-contest pleas, convicting him of delivering one gram or less of cocaine; possession with the intent to deliver ten to fifty grams of heroin; and possession of a firearm as a felon. Hampton also appeals the order denying his postconviction motions for plea withdrawal or, alternatively, “reconsideration of the sentence.” Hampton argues that the State’s failure to disclose “exculpatory evidence” warrants plea withdrawal. Hampton also claims the circuit court erroneously exercised its discretion by imposing an “abundantly excessive” sentence. We reject Hampton’s arguments and affirm the judgment and the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. William Schmidt-Sharkey

Case No.: 2017AP1086-CR

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

Focus: Sufficiency of Evidence

William Schmidt-Sharkey appeals a judgment convicting him of possession of a firearm by a felon and possession of tetrahydrocannabinols (THC) as a second and subsequent offense. Schmidt-Sharkey argues: (1) he was denied his constitutional right to a speedy trial; (2) the evidence was insufficient to convict him of the firearm possession count; (3) holding a second trial on the firearm possession count violated his right to be free from double jeopardy; and (4) his conviction on the THC count is a “nullity” because he was not properly charged and arraigned on that count. We reject Schmidt-Sharkey’s first and second arguments on the merits, and we agree with the State that he has forfeited his third and fourth arguments. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Ida Hautop v. County of Bayfield, et al.

Case No.: 2017AP1181

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

Focus: Foreclosure – Claim Preclusion

Ida Hautop appeals a summary judgment granted in favor of the County of Bayfield, RM Bay Logging Inc., and the Department of Natural Resources (collectively “the County”). We conclude Hautop’s suit is barred by the doctrine of claim preclusion based on a previous foreclosure judgment and the denial of a prior motion to vacate the foreclosure judgment. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bobby Smith

Case No.: 2017AP2136-CR

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

Focus: Ineffective Assistance of Counsel

Bobby Smith appeals an amended judgment convicting him of two felonies arising from a fatal traffic accident. Smith also appeals a postconviction order denying his motion for a new trial. Smith claims he was denied the effective assistance of counsel when his trial attorney failed to challenge a jury instruction the circuit court provided in response to questions from the jury. Alternatively, Smith contends that he is entitled to a new trial in the interest of justice based upon the same jury instruction. Because the given jury instruction was proper, we conclude Smith’s trial counsel did not provide ineffective assistance and the interests of justice do not require a new trial. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ronald L. Kupsky

Case No.: 2017AP2146-CR

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

Focus: Ineffective Assistance of Counsel

Ronald Kupsky appeals an amended criminal judgment convicting him of four felonies, including bail jumping, and also an order denying his postconviction motion for a new trial. Kupsky claims his trial counsel provided ineffective assistance on the bail jumping count by failing to obtain a stipulation to prevent the State from introducing evidence identifying the specific charge for which Kupsky was out on bond. We conclude trial counsel did not provide ineffective assistance because Kupsky explicitly directed counsel not to seek such a stipulation. We therefore affirm the judgment of conviction and the order denying postconviction relief.

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WI Court of Appeals – District III

Case Name: Paul Halderson, et al. v. Northern States Power Company D/B/A Xcel Energy Services, Inc.

Case No.: 2017AP2176

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

Focus: Negligence – Damages

Paul Halderson, Lyn Halderson, and Arctic View Farms, LLC, (collectively, the Haldersons) filed this lawsuit against Northern States Power Company d/b/a Xcel Energy Services, Inc., (NSP) alleging that “stray voltage” attributable to NSP caused damage to the health and productivity of the Haldersons’ dairy herd. A jury ultimately found in favor of the Haldersons on their negligence and private nuisance claims and awarded them just under $4.5 million in damages. The jury also made a finding of willful, wanton, or reckless conduct on the part of NSP, triggering the Haldersons’ entitlement to treble damages under WIS. STAT. § 196.64(1) (2015-16).

On appeal, the Haldersons argue the circuit court erred by granting NSP’s motion for a directed verdict on their treble damages claim. NSP crossappeals, arguing the Haldersons failed to prove negligence. In the alternative, NSP argues it is entitled to a new trial based on: (1) an erroneous jury instruction; and (2) the Haldersons’ attorney’s failure to reveal his past professional relationship with an uncle of one of the jurors.

We conclude the circuit court properly granted NSP a directed verdict on the Haldersons’ treble damages claim because the evidence at trial was insufficient for a reasonable jury to find, by clear and convincing evidence, that NSP’s conduct was willful, wanton, or reckless. In contrast, we reject NSP’s argument that the Haldersons failed to prove negligence. We further conclude NSP forfeited its objections to the allegedly erroneous jury instruction. Finally, we conclude NSP is not entitled to a new trial based on the Haldersons’ attorney’s conduct because the juror in question was removed from the jury panel prior to deliberations at NSP’s request, and NSP did not move for a mistrial. We therefore affirm the circuit court’s judgment in all respects.

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WI Court of Appeals – District I

Case Name: Harley-Davidson Motor Company Group, LLC, et al.  v. Labor and Industry Review Commission, et al.

Case No.: 2017AP2284

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

Focus: Sufficiency of Evidence

Harley-Davidson Motor Company Group, LLC and Transportation Insurance Company (collectively, Harley-Davidson) appeal an order of the circuit court affirming a decision of the Labor and Industry Review Commission (LIRC) that found Robert Schulfer incurred an 84.67% hearing loss as a result of his employment at Harley-Davidson.  On appeal, this court reviews LIRC’s decision, not that of the circuit court. See City of Kenosha v. LIRC, 2011 WI App 51, ¶7, 332 Wis. 2d 448, 797 N.W.2d 885. “‘LIRC’s findings of fact are conclusive on appeal so long as they are supported by credible and substantial evidence.’” Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541 N.W.2d 241 (Ct. App. 1995) (citation omitted). When we review the sufficiency of credible evidence to support an administrative agency’s decision, we need find only that the evidence is sufficient to exclude speculation or conjecture. See L & H Wrecking Co., Inc. v. LIRC, 114 Wis. 2d 504, 508, 339 N.W.2d 344 (Ct. App. 1983). The reviewing court’s task is to search the record to locate evidence that supports LIRC’s decision, rather than weighing evidence opposed to the decision. See Vande Zande v. DILHR, 70 Wis. 2d 1086, 1097, 236 N.W.2d 255 (1975).

With these standards in mind, we conclude that LIRC’s findings are supported by substantial and credible evidence in the form of multiple medical opinions and pure tone test results. Based on both Dr. Millen’s and Dr. Ubell’s reports, LIRC determined that Schulfer was not faking his hearing loss; thus, ruling out Dr. Nordstrom’s conclusions. LIRC also found that the hearing loss was work-related, relying on Dr. Millen and Dr. Ubell’s reports, as well as finding Schulfer’s testimony before the ALJ to be credible. We affirm.

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WI Court of Appeals – District II

Case Name: Associated Bank, N.A., v. Kathryn Brogli, et al.

Case No.: 2016AP1443

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

Focus: Abuse of Discretion – Division of Property

Arline A. Brogli appeals from an order adopting a referee’s recommendation for the division of property interests, asserting various procedural problems with the court’s adoption of the referee’s amended report. Because the circuit court failed to address Arline’s objection to the referee’s amended report, and adopted it without reviewing the evidence considered by the referee, the court was unable to appropriately exercise its discretion in determining whether the referee’s challenged findings of fact were clearly erroneous as required by statute. We therefore reverse and remand.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin Ex Rel. Curt Beck v. William Lamb, et al.

Case No.: 2017AP969

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

Focus: PFC Procedure

The City of Fond du Lac and its police chief, William Lamb, appeal from a judgment directing the reinstatement of one of its police officers, Curt Beck, who the City had discharged without following the Police and Fire Commission (PFC) procedure set forth in WIS. STAT. § 62.13(5) (2015-16). The City contends Beck waived the statutory PFC procedure when he previously settled a disciplinary matter involving allegations of dishonesty by entering into a “Last Chance Agreement” (LCA), a term of which replaced the PFC procedure with an alternative one for any future allegations of job-related dishonesty. We agree, concluding that Beck intentionally, knowingly, and explicitly relinquished the PFC procedure. We therefore reverse and remand.

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WI Court of Appeals – District II

Case Name: Palisades Properties Inc, v. Town of Menasha

Case No.: 2017AP1233

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

Focus: Property Assessment

Palisades Properties, Inc. (“Palisades”) appeals from a judgment dismissing its complaints against the Town of Menasha. Palisades had challenged the Town’s assessments of unbuilt condominium parcels for the years 2013-15. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: Daniel Greene v. James Wiese, et al.

Case No.: 2017AP1381

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

Focus: Breach of Contract

James Wiese and Premier Sales & Leasing of Waukesha Inc. (“Wiese,” “Premier,” or “defendants”) appeal a judgment awarding Daniel Greene $223,474.42 upon his breach-of-contract claim and attorney’s fees under WIS. STAT. § 134.93 (2015-16). Defendants assert numerous points of error. None persuade us. We affirm.

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WI Court of Appeals – District II

Case Name: Laura Mandujano v. Jose Mendoza

Case No.: 2018AP109

Officials: REILLY, P.J.

Focus: Court Error – Abuse of Discretion

Laura Mandujano appeals pro se from an order denying her motion to reopen a default judgment dismissing her case with prejudice and awarding attorney’s fees to Jose Mendoza for her failure to appear at trial. As Mandujano failed to show good cause to reopen the default judgment, we affirm.

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WI Court of Appeals – District I

Case Name: Richard A. Mueller, et al. v. TL90108, LLC

Case No.: 2017AP1962

Officials: Brennan, Brash and Dugan, JJ.

Focus: Declaratory Judgment – Tolling – Statute of Limitations

Plaintiffs Richard A. Mueller and Joseph L. Ford, III, appeal an order granting TL90108, LLC’s (TL) motion to dismiss their complaint, filed in 2017, seeking replevin and declaratory judgment. Plaintiffs sought to recover possession of a 1938 Talbot Lago, a vintage car worth more than seven million dollars. The car and related documents including the title had been reported stolen on March 4, 2001, when the owner discovered that they were missing from his Milwaukee garage. Milwaukee police investigated and discovered fraudulent documents that had been used to ship the car to Europe. Fifteen years later, TL applied for title to the car in Illinois after purchasing the car through international auto brokers, and the application triggered a hit in the stolen car database. Before plaintiffs filed this action, they had made an unsuccessful demand on TL for the return of the vehicle.

The trial court held that under WIS. STAT. § 893.35 (2015-16), which states that the cause of action accrues “at the time the wrongful taking or conversion occurs, or the wrongful detention begins[,]” the cause of action accrued when the car was converted by the unknown thief in 2001, and the six year time limitation began to run “at the time of the wrongful taking or conversion, which was when the car was stolen.” The trial court held that because this action was not commenced within that time limit, it is barred under § 893.35.

We hold that this cause of action accrued at the time of the wrongful detention, not wrongful taking or conversion, when TL declined to return the car when plaintiffs demanded it. Because the action was commenced within six years of the time the cause of action accrued, it is not time-barred. We therefore reverse and remand for further proceedings consistent with our decision. Because we decide this case on statutory grounds, we do not address the parties’ alternative arguments on equitable estoppel and public policy concerns.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Julian G. Thomas

Case No.: 2017AP621-CR

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Motion to Suppress Evidence Denied

The State appeals a decision of the Dane County Circuit Court granting Julian Thomas’s motion to suppress evidence collected during a search of Thomas’s living quarters by probation agents. The circuit court concluded that the search was an unconstitutional police search rather than a probation search. We disagree with the circuit court and conclude that the search of the house in which Thomas was then living was a probation search and that the search was reasonable. In addition, we conclude that Thomas has failed to support an argument that the method of entry to the residence was improper. As a result, we reverse the circuit court’s order and remand the matter for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Aman D. Singh

Case No.: 2017AP1609

Officials: SHERMAN, J.

Focus: OWI – Sentencing Guidelines

Aman Deep Singh appeals a circuit court order denying his motion to vacate a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) on the ground that the sentence imposed by the court was excessive. See WIS. STAT. § 973.13. For the reasons discussed below, I summarily reverse.

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WI Court of Appeals – District IV

Case Name: Rock County v. B.A.G.

Case No.: 2018AP782

Officials: FITZPATRICK, J.

Focus: Prisoner Involuntary Commitment

B.A.G. appeals orders of the Rock County Circuit Court entered pursuant to WIS. STAT. § 51.20(1)(a)2.e. subjecting him to involuntary commitment due to mental illness and directing involuntary administration of medication. On appeal, B.A.G. argues that: (1) the evidence does not support the circuit court’s finding that B.A.G. was dangerous under § 51.20(1)(a)2.e., known as the “fifth standard”; and (2) the circuit court findings are insufficient to support the order for involuntary administration of psychotropic medication. I conclude that the circuit court properly ordered the mental health commitment and involuntary administration of medication and, accordingly, the orders are affirmed.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Stephanie C. Stoltman

Case No.: 2018 WI 91

Focus: Attorney Disciplinary Proceedings

The Office of Lawyer Regulation (OLR) and Attorney Stephanie C. Stoltman have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Stoltman should be publicly reprimanded, as discipline reciprocal to that imposed by the Supreme Court of Arizona. After reviewing the matter, we approve the stipulation and impose the stipulated reciprocal discipline. Given the comprehensive stipulation, which avoided the need to litigate this matter and to appoint a referee, we do not impose any costs in this proceeding.

Affirmed

Concur:

Dissent:

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