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Weekly Case Digests — August 27-August 31, 2018

By: WISCONSIN LAW JOURNAL STAFF//August 31, 2018//

Weekly Case Digests — August 27-August 31, 2018

By: WISCONSIN LAW JOURNAL STAFF//August 31, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Renee S. Perillo

Case No.: 17-3436

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

Focus: Plea & Sentencing – Restitution 

Defendant-appellant Renee Perillo pleaded guilty to conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c), and to commissioning a murder for hire in violation of 18 U.S.C. § 1958. Before sentencing, Perillo moved to withdraw her plea. The district court denied Perillo’s motion and sentenced her to concurrent terms of 324 months for conspiracy to kidnap and 120 months for commissioning a murder for hire. The court also ordered Perillo to pay just under $75,000 in restitution. Perillo appeals the denial of her motion to withdraw her plea and the restitution order. Perillo’s plea agreement included a valid appellate waiver that covers both of these claims, however, so we dismiss her appeal.

Dismissed

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7th Circuit Court of Appeals

Case Name: United States of America v. Brent A. Swallers

Case No.: 17-2568

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

Focus: Retaliation – Common Law Liens 

Indiana Child Protective Services removed Brent Swallers’s daughter from his custody in September 2015. Swallers responded with a deluge of filings in the United States District Court for the Southern District of Indiana. When those filings were not resolved in his favor, Swallers retaliated against the judges who ruled against him. He filed “Common Law Liens” (each to the tune of $10,000,000) with the Marion County Recorder against all of the then‐sitting district judges in the Southern District of Indiana except Judge Richard Young.

Swallers then filed a notice of his liens in an action assigned to Southern District of Indiana Judge Tanya Walton Pratt. Judge Pratt subsequently ordered the Marion County Recorder to expunge any liens that Swallers had filed against Southern District of Indiana Judges Lawrence, Barker, Magnus‐Stinson, Pratt, and Young. The order also stated that the U.S. Attorney should arrange for the service of a separate expungement order on the recorder of any other Indiana County in which Swallers had filed a similar, invalid lien.

Swallers now appeals and seeks to vacate his conviction on the ground that Judge Young should have recused himself. For the reasons that follow, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Kash Deshawn Lee

Case No.: 17-2537

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

Focus: Sentencing – Supervised Release

Kash Lee appeals the sentence he received when his supervised release was revoked. He faults the district court for not addressing what he now characterizes as his principal argument in mitigation: that a longer sentence would unjustifiably subject him to harsher treatment than similarly situated defendants. But Lee did not make this argument in the district court, so the district court had no obligation to address it. Lee also complains that the district court failed to fill out a form stating the reasons for his sentence. It is not clear that a district court has an obligation to fill out such a form when revoking supervised release. Even if it does, however, Lee suffered no prejudice from the district court’s failure to complete this administrative task.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ulises De La Cruz

Case No.: 17-2263

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

Focus: Sentencing Guidelines

From the time he was a young adolescent, defendant Ulises De La Cruz was a member of the Latin Kings gang. De La Cruz was one of many Latin Kings swept up in a federal prosecution charging the gang with operating a racketeering conspiracy in the Chicago area. He pleaded guilty to the conspiracy charge and argued at sentencing that the district judge should reduce his sentence by the amount of time he had already served in prison on charges related to conduct that was part of the ongoing racketeering conspiracy. He was partially successful. The district judge, in recognition of a prison sentence De La Cruz was still serving, imposed a 210-month sentence. That term was the bottom of the range recommended by the U.S. Sentencing Guidelines. De La Cruz appeals this sentence. He contends that the Guidelines entitle him to a greater reduction due to another prior prison sentence he served in full. His argument misreads the discretionary nature of the Guidelines relating to downward departures for discharged prison sentences. The district judge did not abuse that discretion, so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Johnathan Lacy, et al. v. Cook County, Illinois and Thomas J. Dart

Case No.: 17-2141

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

Focus: Injunctive Relief and Damage Awards

Five wheelchair-using detainees brought this lawsuit against Cook County, Illinois, and the Sheriff, alleging violations of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RHA”). Their claims are based on purportedly inaccessible ramps and bathroom facilities at six county courthouses. The district court certified a class for purposes of injunctive relief, and the named plaintiffs also sought damages individually for the same alleged violations.

The district court held an evidentiary hearing on the equitable claims first. The parties then filed cross motions for summary judgment on their individual damage claims. The court entered a permanent injunction based on its factual findings and legal conclusion that the defendants had violated the ADA. Then, relying largely on these findings, the court granted partial summary judgment to the plaintiffs on liability in their personal damage actions. The court then submitted the question of individual damage awards to a jury. Meanwhile, it granted a supplemental permanent injunction to the class.

We hold that the district court improperly relied on its own findings of fact when it granted partial summary judgment to the plaintiffs on their damage claims. When equitable and legal claims are joined in a single suit, common questions of fact should be tried first to a jury absent extraordinary circumstances or an unequivocal waiver by all parties of their jury trial rights. The record before us does not reflect any such waiver by the defendants. We therefore vacate the grant of partial summary judgment and remand for a jury trial on the question of liability. As a result, we also vacate the court’s grant of permanent injunctive relief and vacate the jury’s determinations of damage awards. We leave undisturbed the district court’s decisions to certify the class and to grant supplemental injunctive relief to the class. This latter injunction is not related to the questions that should have been submitted to the jury. Accordingly, we affirm in part, vacate in part, and remand for further proceedings.

Affirmed in part. Vacated in part.

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7th Circuit Court of Appeals

Case Name: Charmaine Hamer v. Neighboord Housing Services of Chicago, et al.

Case No.: 15-3764

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

Focus: Title VII Violation – Retaliation Claim

Charmaine Hamer worked at Fannie Mae’s Mortgage Help Center from 2010 to 2012. Fannie Mae contracted with Neighborhood Housing Services of Chicago (Hamer’s employer) to run the Center but maintained the right to remove individual employees. After Hamer’s application for a promotion was denied and she was removed from the Center, she sued both Neighborhood Housing and Fannie Mae for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34. The district court granted summary judgment in the defendants’ favor, and Hamer appealed the retaliation claims.

To retaliate against a complainant, decisionmakers must be aware of the complaint. Anderson knew of Hamer’s intention to file a charge but didn’t make any employment decisions, and Hamer has not established a genuine dispute about the decisionmakers’ knowledge. Glenn, Coffey, and Green all filed affidavits asserting they were never told of Hamer’s plan to file a complaint with the EEOC, and Anderson asserts that she never told anyone about it. In response Hamer offers only speculation.

Hamer observes that the affiants say they were not “told” about her plan to file a complaint but do not discuss whether they learned of the plan in some other way, as she conjectures they might. Glenn knew that Hamer had met with Anderson; maybe she inferred, when Anderson called the next day to discuss the reasons Hamer wasn’t promoted, that the meeting concerned allegations of discrimination. Or the notes that Anderson took while meeting with Hamer may have fallen into the decisionmakers’ laps. But Hamer did not depose Glenn, Coffey, Green, or anyone else, and she has not offered any support for her speculation. Hamer has not provided even a “scintilla” of evidence, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–52 (1986), to support her conjecture that the notes may have been included in her personnel file and that the decisionmakers looked in it. Speculative assertions about decisionmakers’ knowledge are insufficient to establish a genuine dispute about a material fact. See Nagle v. Calumet Park, 554 F.3d 1106, 1121–22 (7th Cir. 2009).

Affirmed

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7th Circuit Court of Appeals

Case Name: Manjit Singh Sembhi v. Jefferson B. Sessions III

Case No.: 17-2746

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

Focus: Immigration – Removal Proceedings

When Manjit Singh Sembhi failed to appear for an October 2001 hearing in his removal proceeding, the immigration judge ordered him removed to his home country of India. More than 10 years later, Sembhi filed a motion to reopen and rescind the in absentia removal order, which the immigration judge denied. Sembhi then sought relief, unsuccessfully, from the Board of Immigration Appeals. After a total of five adverse decisions from the Board, Sembhi now faces the unenviable task of convincing us that the Board abused its discretion in denying his third motion to reconsider and fifth motion to reopen, with the latter being presumptively barred in both number and time. Finding no error in the Board’s latest decision that would warrant a remand, we deny Sembhi’s petition for review.

Denied

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7th Circuit Court of Appeals

Case Name: Mark McCleskey, et al. v. CWG Plastering, LLC,

Case No.: 17-1980

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

Focus: Collective Bargaining Agreement

Walter “Wally” Gianino owned and operated a plastering company in St. Louis, Missouri, for over thirty years. That business—Gianino Plastering—abruptly closed in 2012. Around the same time, Wally’s son, Curt Gianino, who had worked at Gianino Plastering for over a decade, founded his own company, CWG Plastering, LLC. CWG took on at least some of Gianino Plastering’s customers, hired its employees, and without missing a beat completed jobs that Gianino Plastering had begun. What might be a story of a son following in his father’s footsteps is complicated by an inconvenient fact: Curt went into business on the same day that a $196,940.73 judgment was entered against his father’s company.

That judgment arose out of Gianino Plastering’s 2009 collective bargaining agreement with the Operative Plasterers and Cement Masons International Association Local 3 (“the Union”). The agreement obligated the company to make regular contributions to the Indiana State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds (“the Funds”). Gianino Plastering soon fell short of meeting that obligation, prompting the Funds to sue in the Southern District of Indiana in 2011 to recover the delinquent payments. After a bench trial, the district court entered judgment against Gianino Plastering and in favor of the Funds. But the Funds were blocked from collecting on their judgment because Gianino Plastering filed for bankruptcy.

The Funds now have sued CWG, asserting that CWG is Gianino Plastering’s successor and alter ego and thus liable for both the judgment and for other ongoing violations of the collective bargaining agreement. After discovery, the parties filed cross‐motions for summary judgment. The district court ruled that the Funds had not produced enough evidence to proceed to trial. Our de novo review of the record convinces us to the contrary: the Funds proffered considerable evidence that a trier of fact could use to support its case against CWG, and so we reverse and remand.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Mhammad Abu-Shawish v. United States of America

Case No.: 17-1283

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

Focus: Damages – Certificate of Innocence

Petitioner-appellant Mhammad Abu-Shawish was tried and convicted on a federal fraud charge, but that conviction was reversed after he served the entire prison sentence. Abu-Shawish was acquitted in a second trial. He now seeks damages under 28 U.S.C. § 1495 and § 2513 for unjust conviction and imprisonment. Abu-Shawish petitioned for a certificate of innocence—a prerequisite to a damages claim against the United States under those statutes.

In this appeal, the government is in the unusual position of defending a dismissal it never requested. Without any response from the government, the district court dismissed the petition, reasoning that Abu-Shawish failed to provide evidence of his actual innocence. United States v. Abu-Shawish, 228 F. Supp. 3d 878, 883–84 (E.D. Wis. 2017).

We vacate the dismissal and remand for further proceedings. The district court applied a standard that is too rigorous for the pleading stage of what is, in essence, a new civil case embedded within a closed criminal case. In the end, the question in this proceeding is whether Abu-Shawish can show by a preponderance of the evidence that he was in fact not guilty of a crime, not whether the trial evidence would have allowed a conviction. This is not to say that Abu-Shawish is entitled to relief, but he must be given a fair opportunity to show that he is entitled to damages under the governing statutes.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Carlos Alberto Mejia Galindo v. Jefferson B. Sessions III

Case No.: 17-1253

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

Focus: Immigration – Removal Order

Carlos Alberto Mejia Galindo, a native of Honduras and a lawful permanent resident, faces removal from the United States as a result of three Kentucky convictions for possession of drug paraphernalia. The immigration judge determined that Mejia Galindo is not removable under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a controlled-substance offense. The Board of Immigration Appeals reversed and purported to enter a removal order. Mejia Galindo petitions for review.

We lack jurisdiction to review the Board’s determination that the drug-paraphernalia convictions qualify as controlled-substance offenses. The Immigration and Nationality Act (“INA”) empowers us to review only a “final order of removal.” 8 U.S.C. § 1252. A final removal order is created in two steps. First, the immigration judge must conclude that the alien is removable. Id. § 1101(a)(47)(A). Second, the immigration judge’s removal order becomes “final” upon “a determination by the Board of Immigration Appeals affirming such order.” Id. § 1101(a)(47)(B). Here, the immigration judge never made the requisite finding of removability, so there is no final order of removal to review.

Although we lack jurisdiction to review the Board’s classification of the drug-paraphernalia offenses, our jurisdiction to consider our own jurisdiction includes the authority to vacate the Board’s decision and remand as a remedy for the legal error we have identified in our jurisdictional decision. See Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir. 2007). Because the Board lacked the authority to issue a removal order in the first instance, we vacate and remand its ultra vires order.

Vacated and Remanded

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7th Circuit Court of Appeals

Case Name: Adam J. Levitt, et al. v. Southwest Airlines Company

Case No.: 17-3541

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

Focus: Class Action – Attorney’s Fees

This is the third appeal regarding attorney fees to stem from a class action against Southwest Airlines after it stopped honoring in‐flight drink vouchers for customers who bought “Business Select” fares. We thought the case was over after the first appeal, In re Southwest Airlines Voucher Litigation (Southwest I), 799 F.3d 701 (7th Cir. 2015), because the settlement made the customers whole by giving them a replacement voucher. At least, it made whole the small group of customers who submitted claims.

After the appeal, class counsel—Siprut PC—requested additional fees. The district court awarded them. Markow, the objector, appealed but dismissed the appeal after Southwest tripled the relief to the class—by giving two additional vouchers for every one claimed—to narrow the gap between the amount of supplemental fees Siprut would receive and the value of the relief the class would actually receive. The district court approved that agreement. Objector Markow then moved for fees and an incentive award. The district court denied the motion, reasoning that requiring Siprut to pay Markow’s fees out of Siprut’s supplemental fee award “undoes the settlement.” In re Southwest Airlines Voucher Litigation (South‐ west II), 2017 WL 5295372, at *5 (N.D. Ill. Nov. 13, 2017). Markow has appealed. We reverse and remand. Unless the parties to a class action settlement agreement, including objecting parties, expressly agree otherwise, settlement agreements should not be read to bar objectors from requesting fees for their efforts in adding value to a settlement

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Robert Smith v. Rosebud Farm, Inc.

Case No.: 17-2626

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

Focus: Title VII Violation

Robert Smith worked behind the meat counter at Rosebud Farm, a local grocery store. After several years of ongoing sexual and racial harassment from his male coworkers and supervisor, Smith sued Rosebud. He claimed various violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Illinois Gender Violence Act. The jury returned a verdict for Smith. Rosebud appeals, maintaining that the district court erred in denying its motions for judgment as a matter of law and a new trial.

Rosebud argues that it was entitled to judgment as a matter of law on Smith’s Title VII sex discrimination claim. To win, Smith had to show more than unwanted sexual touching or taunting; he had to show that the harassment occurred because of his sex. Rosebud contends that Smith’s evidence demonstrates that the other men in the shop engaged in “sexual horseplay,” not sex discrimination. But Rosebud is wrong about that: the evidence supports the inference that Smith’s coworkers harassed him because he was male. The shop was a mixed‐sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex.

Rosebud also insists that the district court should have awarded it judgment as a matter of law on Smith’s § 1981 retaliation claim and granted a new trial because of inflammatory statements that Smith’s counsel made during his closing argument. But Rosebud did not raise either of these arguments below, so it has forfeited them. Its challenges to the judgment uniformly fail.

Affirmed

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7th Circuit Court of Appeals

Case Name: Susan R. Spicher v. Nancy A. Berryhill

Case No.: 17-3399

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

Focus: Supplemental Security Income and Disability Insurance Benefits

Susan Spicher suffers from a series of chronic health problems, including osteoarthritis, degenerative disc disease, chronic obstructive pulmonary disease, fibromyalgia, and morbid obesity. In 2010, Spicher applied for Social Security Disability Insurance Benefits and Supplemental Security Income dating back to 2003. An ALJ concluded that Spicher had not become disabled until September 20, 2012. The district court affirmed the ALJ’s decision. Because the ALJ’s conclusion was not supported by substantial evidence, we now reverse and remand.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Hurley C. Jackson

Case No.: 17-2117

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

Focus: Court Error – Abuse of Discretion

A jury found Hurley C. Jackson guilty of conspiracy to distribute over 1,000 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession with intent to distribute a substance containing heroin, in violation of 21 U.S.C. § 841(a)(1); and distribution of a substance containing heroin, also in violation of 21 U.S.C. § 841(a)(1). He claims that the district court abused its discretion when it allowed a witness to testify that Mr. Jackson had threatened to kill her. He also maintains that the prosecutor’s closing argument included improper vouching and invited the jury to consider matters other than his guilt in reaching its verdict. According to Mr. Jackson, these remarks so infected the jury’s deliberations as to require a new trial.

Mr. Jackson’s arguments are unpersuasive. The threat testimony was both relevant to, and probative of, the central issue in this case: whether Mr. Jackson conspired to distribute heroin. Additionally, even if the prosecutor’s comments were improper, the evidence against Mr. Jackson was substantial. Consequently, the prosecutor’s comments did not affect the jury’s verdict. We therefore affirm Mr. Jackson’s conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tralvis Edmond v. United States of America

Case No.: 17-2734

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

Focus: Ineffective Assistance of Counsel

A jury convicted Tralvis Edmond of possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). The Government’s case was based largely on evidence that the police had recovered while executing a search warrant at a Chicago apartment. The warrant was supported by the tip of a confidential informant who reported purchasing heroin from Mr. Edmond at the apartment.

Following his conviction, Mr. Edmond filed a motion under 28 U.S.C. § 2255, seeking collateral relief from federal custody. He claimed that he had been deprived of the effective assistance of counsel because his trial attorney had not filed a motion to exclude the evidence obtained from the search. The district court evaluated this claim under the familiar two-part analysis of Strickland v. Washington, 466 U.S. 668 (1984). The court held that Mr. Edmond’s trial attorney had performed below an objective standard of reasonableness. It then concluded that, although the search warrant was not supported by probable cause, the good-faith exception to the exclusionary rule saved the evidence from exclusion. Therefore, the court reasoned, Mr. Edmond had not shown that he was prejudiced by his attorney’s deficient performance, and his claim of ineffective assistance failed.

Mr. Edmond now challenges the district court’s application of the good-faith exception. We agree with the district court that objectively reasonable police officers could have relied in good faith on the search warrant. Because Mr. Edmond has not shown the requisite prejudice under Strickland, we affirm the denial of his § 2255 motion.

Affirmed

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7th Circuit Court of Appeals

Case Name: The William R. Lee Irrevocable Trust, et al. v. Lester L. Lee

Case No.: 17-1582

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

Focus: Bankruptcy – Piercing the Corporate Veil

Lester Lee merged two companies he controlled. A trust administered by his nephews, with a pre-merger minority interest in one of the companies, dissented from the merger pursuant to Indiana’s Dissenters’ Rights Statute and obtained a judgment against that company. Lester filed a personal bankruptcy petition. The Trust commenced an adversary proceeding in that bankruptcy action, seeking to pierce the corporate veil and hold Lester personally liable for the judgment against the company. The bankruptcy court granted summary judgment for the Trust and pierced the corporate veil based on Lester’s post-merger conduct stripping the company’s assets. The district court affirmed. Lester appeals to us and argues piercing was inappropriate for various reasons. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Shawn M. Wallace, et al. v. Richard R. Woodford, et al.

Case No.: 2016AP2359

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

Focus: Court Error – Exclusion of Evidence

Shawn Wallace appeals a judgment, entered upon a jury verdict, dismissing his claims against Central Mudracing Association, Inc. (“Central Mudracing”), and Chippewa Valley Antique Engine and Model Club, Inc. (“Chippewa Valley”), for injuries Wallace sustained while a spectator at a mud bog racing event in 2012. Wallace seeks a new trial for three reasons: (1) the circuit court erroneously excluded evidence of a 2005 accident at the track; (2) the court erroneously denied his motion for a mistrial based upon certain closing arguments suggesting that the 2012 accident was not foreseeable; and (3) the court erred by limiting the testimony of an accident reconstruction expert to matters involving general driving principles and driver perception and reaction times. We conclude the circuit court properly exercised its discretion in all respects and affirm.

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WI Court of Appeals – District III

Case Name: Kristin L. Heineman v. Daniel T. Heineman

Case No.: 2017AP57

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

Focus: Divorce – Child Support and Placement

Daniel Heineman appeals a divorce judgment that was based upon the parties’ stipulation to matters concerning custody, placement, and support of their three minor children. Daniel argues the circuit court erred by adopting the parties’ stipulation, by incorporating the terms of the parties’ stipulation without the court making proper findings of fact, and by failing to hold an evidentiary hearing before deciding any matters that had not been resolved by the parties’ stipulation. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ronald D. Morgan

Case No.: 2017AP211-CR

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

Focus: Ineffective Assistance of Counsel

Ronald Morgan appeals a judgment of conviction, entered upon a jury’s verdict, for multiple sex offenses against fifteen-year-old Albert, as well as an order denying him postconviction relief. Morgan seeks a new trial, asserting that his trial attorney was constitutionally ineffective by failing to object to certain testimony from the victim’s mother and by permitting the prosecution to play a videotaped statement the victim gave a few days after the incident. We conclude Morgan has failed to demonstrate a reasonable probability of a different outcome even if the challenged evidence had been excluded as inadmissible hearsay. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Tanya Lynn Schmit

Case No.: 2017AP871-CR

Officials: SEIDL, J.

Focus: OWI – Ineffective Assistance of Counsel

Following a jury trial, Tanya Schmit was convicted of operating a motor vehicle while intoxicated (OWI), as a third offense, and resisting or obstructing an officer. In this appeal, Schmit challenges only her OWI conviction. She argues that she received ineffective assistance of counsel when her trial attorney failed to investigate and call two witnesses to testify at trial who could have provided exculpatory testimony regarding whether she operated the vehicle at issue. We agree with Schmit that her attorney performed deficiently and that deficient performance prejudiced her defense. We therefore reverse Schmit’s OWI conviction and the order denying Schmit postconviction relief, and we remand the matter to the circuit court for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Raymond E. Woods

Case No.: 2017AP974

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

Focus: Ineffective Assistance of Counsel

Raymond E. Woods, pro se, appeals the circuit court’s order denying his postconviction motion brought pursuant to WIS. STAT. § 974.06 (2015-16). He also appeals the circuit court’s order denying his motion for reconsideration. Woods argues that the circuit court erred by rejecting his argument that he received ineffective assistance of appellate counsel without first holding a hearing on his claim. Woods also argues that he is entitled to a new trial in the interests of justice. We reject these arguments. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Cottonwood Financial Wisconsin, LLC, d/b/a The Cash Store v. Lynne Kobilka,

Case No.: 2017AP1146

Officials: STARK, P.J.

Focus: Frivolous Appeal

Lynne Kobilka appeals circuit court orders denying her motions for an injunction against Cottonwood Financial Wisconsin, LLC, d/b/a The Cash Store (“Cottonwood”), and for reconsideration. We affirm, as Kobilka’s challenges were not properly before the circuit court. Pursuant to WIS. STAT. RULE 809.25(3), we also grant Cottonwood’s motion for sanctions against Kobilka’s attorney for a frivolous appeal, and we remand for the circuit court to determine the amount of costs and reasonable attorney fees to be awarded to Cottonwood.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Shawn Christopher Adams

Case No.: 2017AP1453-CR

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

Focus: Court Error – Suppression Motion Denied

Shawn Christopher Adams appeals a judgment of conviction entered after he pled guilty to one count of possessing marijuana as a second or subsequent offense. On appeal, he contends that the circuit court erroneously denied his suppression motion. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terrell Antwain Kelly

Case No.: 2017AP1584-CR

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

Focus: Ineffective Assistance of Counsel

Terrell Antwain Kelly appeals his judgment of conviction, entered upon his guilty plea to second-degree sexual assault of a child, and an order denying his postconviction motion. Kelly asserts that both of his trial attorneys were ineffective and, as such, his conviction should be vacated. In the alternative, Kelly requests sentence modification on the grounds that his intellectual disability is a new factor warranting modification. We affirm.

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WI Court of Appeals – District III

Case Name: Shelly Ann Tauber v. Wayne Frances Tauber

Case No.: 2017AP1731

Officials: STARK, P.J.

Focus: Court Error – Abuse of Discretion

Wayne Tauber was held in contempt of court and sentenced to six months in jail, subject to several purge conditions, after the circuit court found he violated a court order governing the funeral arrangements for his and Shelly Tauber’s son. Wayne now argues that the court erroneously exercised its discretion in finding his conduct was contemptuous, that the six-month jail sentence was not a proper remedial contempt sanction, and that a purge condition preventing him from speaking negatively about Shelly was either unreasonable or infringed upon his right to free speech. We reject Wayne’s first argument and affirm in that respect. However, we conclude Wayne’s contempt was not continuing when the court imposed the remedial sanction, and, therefore, we reverse that part of the contempt order imposing and staying the jail sentence. With the jail sentence vacated, there is no sanction to purge. Accordingly, we also conclude Wayne’s challenge to the purge condition is moot, and we direct the court to vacate the jail sentence and the challenged purge condition on remand.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Donald L. Tappa

Case No.: 2017AP2031-CR

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

Focus: Ineffective Assistance of Counsel

Donald Tappa appeals amended criminal judgments convicting him of arson, burglary, three counts of theft, and four counts of criminal damage to property, each as a repeat offender. Tappa also appeals an order denying his postconviction motion for a new trial. Tappa contends that the circuit court erred in admitting other acts evidence, and that his trial counsel provided ineffective assistance by failing to introduce certain rebuttal evidence and by failing to request a limiting jury instruction. Tappa also argues we should grant him a new trial in the interest of justice. We reject Tappa’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin Devon L. Loggins

Case No.: 2017AP2045-CR

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

Focus: Jury Instructions

Devon L. Loggins appeals a judgment of conviction, entered on a jury verdict, for one count of being a felon in possession of a firearm and multiple counts of first-degree reckless homicide and first-degree reckless endangerment. The charges were in connection with an incident in which Loggins killed two men and injured others when he armed himself and repeatedly fired into a group of people who had been in a fistfight.

Loggins seeks a new trial on the grounds that the trial court erred when it denied his request for a jury instruction on self-defense. He argues that the trial court wrongly denied his request because there was “some evidence”— and that is all that is required—that the three elements for the instruction were satisfied: (1) that he believed that there was an actual or imminent unlawful interference with his person; (2) that he believed that the amount of force he used was necessary to prevent or terminate the interference; and (3) that his beliefs were reasonable. See State v. Stietz, 2017 WI 58, ¶¶11, 16, 375 Wis. 2d 572, 895 N.W.2d 796 (to be entitled to a jury instruction on the privilege, “[t]he accused need produce only ‘some evidence’ in support of the privilege of self-defense”).

At the moment when Loggins armed himself and “just started pulling the trigger”—firing fifteen times—he had been involved in a street brawl between two groups of people. The question in this case is whether it was reasonable for Loggins to believe, at the moment he started shooting, that using deadly force was “necessary to prevent imminent death or great bodily harm to himself[.]” WIS. STAT. § 939.48(1) (2015-16).  As we explain below, Loggins did not satisfy his burden to produce “some evidence” that this was a reasonable belief. The evidence was not sufficient because no reasonable fact-finder could have determined that Loggins reasonably believed that the deadly force he used was necessary. See Stietz, 375 Wis. 2d 572, ¶6. The trial court properly denied his request for the self-defense jury instruction. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terry Terrell Anderson

Case No.: 2017AP2165-CR

Officials: DUGAN, J.

Focus: Sentence Credit

Terry Terrell Anderson pro se appeals postconviction orders entered in this action. After entering a guilty plea in this case, Anderson was convicted of misdemeanor battery and misdemeanor disorderly conduct, both as a habitual criminality repeater. At sentencing, the trial court granted Anderson accrued sentence credit, although the trial court was aware that Anderson faced revocation proceedings in a prior action, the 4230 action. The Wisconsin Department of Corrections (DOC) subsequently informed the trial court that such credit was applied on April 4, 2017, to Anderson’s sentence in the 4230 action because his extended supervision was revoked and he was reconfined on the original sentence. As a result, the trial court entered an order amending the judgment of conviction to eliminate the sentence credit. Anderson then filed a motion for reconsideration in this action. The reconsideration court denied the motion.

On appeal, Anderson asserts that (1) he was entitled to the sentence credit, (2) he was not given dual sentence credit, (3) misapplication of the law deprived him of his sentence credit, and (4) the error was not harmless. We disagree and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: Greta Crawford v. Aurora Sinai Medical Center, et al.

Case No.: 2018AP40

Officials: KESSLER, P.J.

Focus: Court Error – Expert Testimony

Greta Crawford, pro se, appeals an order of the small claims court granting summary judgment in favor of Aurora Sinai Medical Center and Dr. Warren R. Entwistle. As best as we can tell, on appeal Crawford argues that the small claims court erroneously dismissed her complaint because her complaint was not entirely based on medical malpractice. Accordingly, she contends that expert testimony was not required to proceed with her claims. We disagree. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ronnie Famous

Case No.: 2016AP1175

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

Focus: Ineffective Assistance of Counsel

Ronnie Famous appeals pro se from an order denying his WIS. STAT. § 974.06 (2015-16) postconviction motion alleging that trial counsel was ineffective for failing to call two fact witnesses and that postconviction counsel’s ineffectiveness constituted a sufficient reason for failing to raise this claim earlier. Because Famous has not established that postconviction counsel provided ineffective assistance or that the circuit court erred in denying Famous’s motion to subpoena additional witnesses, we affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. M. J.S.

Case No.: 2017AP1843

Officials: HAGEDORN, J.

Focus: Prisoner Involuntary Commitment – Extension

Since 1996, M.J.S. has been involuntarily committed to treat his schizophrenia. In 2017, Waukesha County sought—and the circuit court granted—extension of the commitment and the medication order. M.J.S. challenges both orders on appeal. Although we affirm the order extending the underlying commitment, we reverse the medication order because the County failed to prove by clear and convincing evidence that M.J.S. either received the statutorily required explanation pursuant to WIS. STAT. § 51.61(1)(g)4. or affirmatively waived his right to be so advised.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher A. Mason

Case No.: 2017AP620-CR

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

Focus: Sufficiency of Evidence

Christopher Mason appeals a judgment convicting him of identity theft under WIS. STAT. § 943.201, as that crime is applied to the use of another’s credit or debit card without authorization. Mason argues that the trial evidence was insufficient with respect to the “representing” element of identity theft, that is, that Mason represented that he was the cardholder or that he was acting with the authorization of the cardholder.

Although Mason argues insufficiency of the trial evidence, he is not asking us to compare the evidence against elements of a crime with undisputed meaning. Rather, Mason’s insufficiency-of-the-evidence argument turns on the proper interpretation of the “representing” element of WIS. STAT. § 943.201. The resolution of this statutory interpretation issue dictates whether the evidence was sufficient to support Mason’s conviction.

More specifically, Mason argues that the “representing” element of identity theft must mean something more than the mere presentation of a document because, if it means no more than this, the “representing” element adds nothing to that crime’s use-of-the-document element and, thus, renders the “representing” element surplusage. It follows, according to Mason, that, because the trial evidence showed only that he presented a credit card and a debit card for payment, the State failed to present sufficient evidence on the “representing” element.

We conclude that State v. Stewart, 2018 WI App 41, __ Wis. 2d __, __ N.W.2d __, controls here. Although Stewart does not address the surplusage argument that Mason makes, Stewart nonetheless holds that the “representing” element in a companion identity theft statute requires nothing more than presenting a document under circumstances in which such presentation is an effective representation that the document is being used with authorization. We further explain that, even if Stewart did not control here, we would reject Mason’s surplusage argument.

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WI Court of Appeals – District I

Case Name: Theodore Lipscomb, Sr., et al. v. Christopher Abele

Case No.: 2017AP1023

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Statutory Interpretation

The Milwaukee County Board of Supervisors and the Milwaukee County Executive dispute their relative powers, as defined by closely related state statutes. Based on statutory interpretations, the circuit court granted and denied requests for declaratory relief by both sides. The Executive appeals and the Board cross appeals.

The disputes fall into two categories: (1) compensation-related issues, namely, whether the Executive or instead the Board has authority to take certain actions relating to the compensation of “unclassified” county employees; and (2) meeting-attendance issues, namely, whether the Board or Board committees may require county employees and officers, including the Executive himself or herself, to appear at Board meetings or Board committee meetings, to provide information and answer questions.

To resolve the compensation-related issues, we primarily interpret two statutes. This involves harmonizing the two statutes. One statute empowers the Board, by giving it authority to “[p]rovide, fix, or change the salary or compensation” of unclassified county employees. WIS. STAT. § 59.22(2)(c)1.a. (2015-16).  The other statute empowers the Executive, by giving him or her exclusive authority to “exercise day-to-day control” of county departments and their subunits. WIS. STAT. § 59.794(3)(a).

On the compensation-related issues, we reach conclusions that include the following. In favor of the Board, we conclude that the Executive’s “day-to-day control” power does not eliminate the Board’s compensation-fixing power, and that the Board’s compensation-fixing power applies to the salary or compensation of all unclassified county employees and officers. In favor of the Executive, we conclude that the Executive’s “day-to-day control” power prevents the Board from taking actions that effectively direct what duties may or must be accomplished by employees or officers or how they may or must perform those duties, even when a Board action may result in a compensation change.

On the meeting-attendance issues, we primarily interpret WIS. STAT. § 59.794(3)(b), which permits “[a] board” to “require, as necessary, the attendance of any county employee or officer at a board meeting to provide information and answer questions.” We reach conclusions that include the following. In favor of the Board, we conclude that the Executive is included in the definition of “any … officer” whose appearance the Board may require. In favor of the Executive, we conclude that the “board” that may require an appearance means the Board as a whole, not any committee or other subset of Board supervisors.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Brian D. Frazier

Case No.: 2017AP1249-CR

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

Focus: Ineffective Assistance of Counsel

Brian Frazier appeals the judgment of conviction for one count of physical abuse of a child and one count of first-degree sexual assault of a child under thirteen by sexual contact, and the circuit court’s order denying his postconviction motion requesting a Machner hearing. Frazier argues that his trial counsel provided ineffective assistance by failing to move to suppress the confession that he contends police obtained from him during an interrogation in violation of his Miranda rights under the Fifth Amendment, and that postconviction counsel was ineffective for failing to raise ineffective assistance of trial counsel on that ground. The underlying issue on appeal is whether Frazier was in custody at the time of his confession, which created a basis for seeking suppression of his confession. We conclude that Frazier was in custody at the time of the confession and, because police had not read him the Miranda warnings, a motion to suppress his confession should have been successful. It follows that Frazier is entitled to a Machner hearing, at which Frazier will have an opportunity to attempt to prove the prejudice prong of ineffective assistance of counsel relative to his entry of a plea.

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WI Court of Appeals – District IV

Case Name: The Bank of New York Mellon v. Gloria J. Bronson, et al.

Case No.: 2017AP2301

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Foreclosure

This is a foreclosure action initiated by Bank of New York Mellon against Gloria Bronson and Scott Bronson. The circuit court granted the Bank’s motion for summary judgment of foreclosure on a note and mortgage executed by the Bronsons in 2007, and the Bank’s motion to dismiss the Bronsons’ counterclaims relating to two loan modification denials in 2009 and 2010. The Bronsons appeal, challenging the entry of summary judgment of foreclosure and the dismissal of two of their counterclaims.

As to the summary judgment of foreclosure, we conclude that: (1) the Bank’s complaint states a claim upon which relief may be granted in terms of the Bank’s standing to enforce the note; but (2) the Bank’s submissions do not establish a prima facie case for foreclosure because (a) the Bank’s submissions do not establish that the Bank possesses the original note, and (b) the Bank’s submissions fail to establish the total amount owed on the loan.

As to the dismissal of the Bronsons’ two counterclaims, we assume, without deciding, that the counterclaims were properly before the circuit court and conclude that: (1) the summary judgment record establishes no factual basis for the counterclaims that the Bank violated WIS. STAT. § 224.77 (2015-16) or breached its contract with the Bronsons when the then servicer, Bank of America, N.A., denied them a permanent loan modification in 2009; (2) the summary judgment record establishes a genuine dispute of material fact as to whether the Bank, through its servicer Bank of America, denied the Bronsons a permanent loan modification in 2010 in violation of WIS. STAT. § 224.77 because the stated reason for that denial was allegedly false.

Accordingly, we conclude that the Bank’s failure to establish as undisputed both its possession of the original note and the total amount due on the loan preclude granting summary judgment of foreclosure to the Bank; that the circuit court properly dismissed the Bronsons’ counterclaims relating to the 2009 loan modification denial; and that a genuine dispute of material fact precludes dismissal on summary judgment of the Bronsons’ WIS. STAT. § 224.77 counterclaim relating to the 2010 loan modification denial. Thus, we affirm in part, reverse in part and remand the case for further proceedings consistent with this opinion.

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