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Weekly Case Digests — September 4 – September 7, 2018

By: WISCONSIN LAW JOURNAL STAFF//September 7, 2018//

Weekly Case Digests — September 4 – September 7, 2018

By: WISCONSIN LAW JOURNAL STAFF//September 7, 2018//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Alfredo Miranda v. County of Lake, et al.

Case No.: 17-1603

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

Focus: Administration of Estate

In the fall of 2011, Lyvita Gomes failed to show up for jury duty. This minor infraction triggered a series of events that led to her untimely death in the early days of 2012. She wound up in the county jail, where she refused to eat and drink. The medical providers who worked at the Jail did little other than monitoring as she wasted away in her cell. By the time she was sent to the hospital, it was too late to save her.

Alfredo Miranda, the administrator of Gomes’s estate, brought an action under 42 U.S.C. § 1983 and assorted state-law theories against Lake County, the Jail officials (the “County defendants”), and Correct Care Solutions (CCS, the Jail’s contract medical provider) and its employees (the “medical defendants”). The district court dismissed the County defendants at summary judgment. The medical defendants proceeded to trial, but halfway through the proceeding the court granted judgment as a matter of law under Federal Rule of Civil Procedure 50(a) for them on some claims. The Estate prevailed to a modest degree on another claim, and part of the case resulted in a mistrial. Our principal ruling in response to the Estate’s appeal is that the Rule 50(a) judgment was premature, and so further proceedings are necessary.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Pronschinske Trust v. Kaw Valley Companies, Incorporated, et al.

Case No.: 17-2889

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

Focus: Contract – Royalty Payments

In June 2012, Ivan and Beverly Pronschinske through their trust, the Pronschinske Trust Dated March 21, 1995 (hereinafter “Pronschinske”), entered into a Mining Leasing Agreement (“the lease”) with Kaw Valley Companies (“Kaw Valley”). The land owned by Pronschinske contained frac sand, useful to gas and oil fracking operations, and the lease gave Kaw Valley the right to mine the sand, stone and rock products, but also provided that it was not obligated to extract any materials or sell any product by virtue of the lease.

Pronschinske argues that the italicized language reflects a stand‐alone requirement of a minimum annual payment of $75,000 beginning with the first anniversary of the Effective Date, regardless of what actions are taking place on the property. It reads the “[n]otwithstanding anything to the contrary contained herein” language as meaning that its location in paragraph 6 is irrelevant and that it represents a minimum annual payment unconnected to Production Royalties generally. Kaw Valley, however, argues that the “notwithstanding” language references the paragraph in which it is found, and should be read as stating that notwithstanding the calculation of Production Royalties in this paragraph, a minimum payment of $75,000 is owed once the Production Royalty provision is triggered. In other words, Kaw Valley argues that it merely sets a floor for Production Royalties once owed, which applies only when product begins to be mined from the property as set forth in paragraph 6.

Moreover, that reading cannot coexist with the first sentence of paragraph 6, which states that a Production Royalty of $1.50/ton should be paid for the first 65,000 tons of sand, stone and rocks mined “in satisfaction of the offset requirements for the Initial Royalty Credit and Commencement Royalty Credit,” and thereafter a royalty of $2.50 per ton is to be paid. That paragraph therefore alters the payment of the mined products by $1 per ton for the first 65,000 tons, thus reducing the payments due to the Lessor by $65,000. That $65,000 is the amount owed to offset the $20,000 Initial Royalty Credit and the $45,000 Commencement Royalty Credit; yet if the Minimum Production Royalty applied as a minimum annual payment from year one, those credits would have already been offset in the year that they were paid – by deducting them from that Minimum Royalty Payment for the year. Paragraph 6 sets forth that payment amount without exception and without any provision for the possibility that some of the credits would have been offset already, thus making clear that until that time the credits would not have been offset by any other payments. That payment scheme is thus inconsistent with a reading of the lease that would recognize an annual minimum payment due from the start of the lease. See DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd.

Pʹship, 682 N.W.2d 839, 849 (Wis. 2004) (“[c]ontracts must be read in such a manner as to give a reasonable meaning to each provision and without rendering any portion superfluous.”) Finally, paragraph 9 of the lease provides that: “[t]he royalties payable under paragraph 6 and paragraph 7 shall be payable based on the removal from (or transportation across) the Property.” That sentence creates no exception for the Minimum Royalty Payment, and reinforces the reading of paragraph 6 as providing for a minimum payment only once product is mined from the property. Accordingly, the district court properly held that Kaw Valley did not owe any Production Royalty payments to Pronschinske, and its determination is consistent with the clear language and structure of the lease.

Affirmed

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7th Circuit Court of Appeals

Case Name: Andrew Schlaf, et al. v. Safeguard Property, LLC,

Case No.: 17-2811

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

Focus: FDCPA Violation

Andrew and Wendy Schlaf brought this action against Safeguard Property, LLC, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). Specifically, they claim that Safeguard is a debt collector under the statute and failed to comply with various obligations imposed on debt collectors under the statute. The parties filed cross‐motions for summary judgment. The district court ruled that Safeguard is not a “debt collector” under the FDCPA and therefore granted summary judgment to Safeguard. Because Safeguard’s actions were too attenuated from Green Tree’s own debt‐collection efforts, we hold that the district court was correct to conclude that Safeguard is not a debt collector. We therefore affirm its judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Paul A. Adamski

Case No.: 2016AP1642

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

Focus: Court Error – Evidentiary Hearing

Paul Adamski, pro se, appeals an order denying his postconviction motions seeking a new trial.  In numerous circuit court filings, Adamski essentially made four arguments in support of his requests for postconviction relief: (1) the presiding judge was biased against Adamski because the judge had a financial interest in the outcome of the case; (2) the judge had an obligation to disclose to Adamski his outside income and its sources, and he failed to do so; (3) the judge failed to recuse himself for bias during the postconviction proceedings; and (4) the court erred by denying Adamski an evidentiary hearing on his postconviction motions. We reject Adamski’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. R.D.J.

Case No.: 2017AP547

Officials: BRENNAN, J.

Focus: Ineffective Assistance of Counsel

R.D.J. appeals the order terminating his parental rights to his daughter, T.S.J., born May 22, 2010, and the order denying his postdisposition motion. He raises four arguments on appeal.

R.D.J.’s first two arguments relate to the testimony of the State’s expert, Dr. Michelle Iyamah, regarding the Parenting Capacity Assessment (PCA) report she prepared that concluded that R.D.J.’s prognosis for improving his parenting capacity was poor. He argues that counsel rendered ineffective assistance because he: (1) made no attempt to exclude the report as unscientific under Daubert or rebut it with an expert witness; and (2) because he raised no WIS. STAT. § 904.03 objection that the report’s probative value was outweighed by the risk of unfair prejudice. R.D.J.’s third argument is that terminating his parental rights based on a finding of failure to assume parental responsibility violated his substantive due process guarantees because T.S.J.’s removal from the parental home made it impossible for R.D.J. to show that he had a substantial parental relationship, which the statute defines as accepting and exercising “significant responsibility for [her] daily supervision, education, protection and care[.]” He argues that trial counsel’s failure to raise an as-applied constitutional challenge on that basis constituted ineffective assistance. R.D.J.’s fourth argument is that a CHIPS order itself “creates a substantial court-supervised parental relationship[,]” and that therefore he cannot be found to have failed to assume his parental responsibilities. Relying on two words from the failure to assume statute, he reasons that a CHIPS order “connects a parent to his or her child by court order and by court supervision,” and what it creates is “both substantial and a relationship.” Therefore, he argues that the CHIPS order in place at the time of the termination of parental rights (TPR) proceedings created a substantial relationship between him and T.S.J., and accordingly the failure to assume grounds cannot be established.

For the reasons that follow, we reject R.D.J.’s arguments and affirm the trial court orders terminating his parental rights and denying his postdisposition motion.

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WI Court of Appeals – District I

Case Name: Mary Ellen Mohn v. CBS Corporation, et al.

Case No.: 2017AP861

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

Focus: Equal Protection Violation

Mary Ellen Mohn, both individually and as the personal representative for the Estate of Thomas L. Mohn, her husband (collectively, “Mohn”), appeals an order granting summary judgment in favor of Sprinkmann Sons Corporation. The trial court granted summary judgment on the grounds that Mohn’s claims against Sprinkmann were barred pursuant to the construction statute of repose set forth at WIS. STAT. § 893.89 (2015-16).

Mohn argues that the protections of the statute of repose do not extend to Sprinkmann. Additionally, Mohn raises constitutional challenges to the statute of repose, asserting that it violates the right to remedy clause of the Wisconsin Constitution as well as equal protection rights. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joseph L. Howard

Case No.: 2017AP988-CR

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

Focus: Sufficiency of Evidence

Joseph L. Howard appeals a judgment of conviction, following a jury trial, of one count of armed robbery, one count of first-degree reckless injury—use of a dangerous weapon, and one count of possession of a firearm by a felon. Howard argues there is insufficient evidence to sustain his convictions. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Shawn Joseph Brown-Troop

Case No.: 2017AP1254-CR

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

Focus: Ineffective Assistance of Counsel

Shawn Joseph Brown-Troop appeals from a judgment, entered upon a jury’s verdicts, convicting him on two counts of armed robbery with the threat of force as a party to a crime. Brown-Troop also appeals from an order that denied his postconviction motion without a hearing. Brown-Troop alleges multiple instances of ineffective assistance from trial counsel and he claims the trial court erred when it denied his request for a new lawyer on the first day of trial. We conclude that trial counsel was not ineffective in his representation of Brown-Troop and that the trial court properly exercised its discretion relative to his request for new counsel and an evidentiary hearing. We therefore affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shayd C. Mitchell

Case No.: 2017AP536-CR

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

Focus: Sufficiency of Evidence

Shayd Mitchell challenges the sufficiency of the evidence supporting his conviction for attempted child enticement. After engaging in sexually explicit communications with a person he believed was a minor and arranging to meet that person at a Family Video store, Mitchell was arrested approximately two blocks from the designated meeting site while walking toward that location. We reject Mitchell’s argument that the evidence was insufficient for the jury to conclude he had taken an action in furtherance of his intent to commit child enticement. We also reject Mitchell’s argument that the Family Video was not a “secluded place” within the meaning of the child enticement statute, as Mitchell’s communications demonstrated that the Family Video was not the location where the sexual contact was to occur. Rather, Mitchell had offered to take the minor to his residence after their meeting at the store. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Melvin Lidall Terry

Case No.: 2017AP1625-CR

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

Focus: Motion to Suppress Evidence Denied

Melvin Lidall Terry appeals from a judgment of conviction and an order denying his motion for a new trial. Terry was convicted of three charges—first-degree reckless homicide, first-degree recklessly endangering safety, and felon in possession of a firearm—in connection with the shooting death of Naurice Elliott.

Terry argues that the trial court erred when it denied his pretrial motion to suppress testimony from a nearby neighbor who witnessed the shooting and who had, shortly afterward, picked Terry out of a group of three people sitting on a curb and identified him as the shooter. Terry argues that the identification should have been suppressed under the standard for out-of-court showup identifications that is set forth in State v. Dubose, 2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582. He argues in the alternative that the procedure used for the out-of-court identification was impermissibly suggestive and unreliable such that it violated his right to due process. We conclude that the Dubose showup standard is inapplicable here because unlike the showup addressed in Dubose that involved a witness presented with a single suspect, the out-of-court identification made here involved a witness presented with three suspects. We further conclude that Terry has not met his burden of showing that the procedure—an officer presenting the witness with three subjects sitting on a curb without telling the witness which one was the suspect—was impermissibly suggestive. It was therefore not a violation of Terry’s right to due process.

Terry also argues that it was error for the postconviction court to deny his motion for a new trial without a hearing. He argues that he is entitled to an evidentiary hearing on his claim that trial counsel rendered constitutionally ineffective assistance by failing to present expert testimony on the reliability of eyewitness identification. We conclude that Terry has not shown that the presentation of research on eyewitness identification would have created a reasonable probability of a different result, or that the failure to present such evidence undermines confidence in the outcome. The record reflects that Elliot’s best friend Thomas had seen Terry before, had been with Elliot when he had contact with Terry during a drug deal earlier in the day, was with Elliot when both were confronted by Terry and realized Terry had a gun, and was attempting to drive away with Elliot in a car when Terry shot Elliot in the head. Thomas unequivocally identified Terry as the shooter. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Marathon County v. D.K.

Case No.: 2017AP2217

Officials: HRUZ, J.

Focus: Involuntary Commitment

D.K. (to whom we refer using the pseudonym “Donald,” see WIS. STAT. RULE 809.19(1)(g)) appeals WIS. STAT. ch. 51 orders for involuntary commitment and for involuntary medication and treatment. Donald argues the County failed to prove by clear and convincing evidence that he was dangerous as defined under WIS. STAT. § 51.20(1)(a)2.b. We affirm.

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WI Court of Appeals – District IV

Case Name: Monroe County Department of Human Services v. B.L.S.

Case No.: 2018AP322

Officials: SHERMAN, J.

Focus: Termination of Parental Rights

B.S. appeals orders in two cases that were tried together that involuntarily terminate his parental rights to G.S. In circuit court case number 2016TP12, the circuit court ordered that B.S.’s parental rights are terminated on the ground that G.S. is a child in continuing need of protection and services (continuing CHIPS). See WIS. STAT. § 48.415(2). In circuit court case number 2016TP12A, the circuit court ordered that B.S.’s parental rights are terminated on the ground of continuing denial of periods of physical placement or visitation. See § 48.415(4). B.S.’s appeal concerns the grounds phase of the proceedings. Specifically, B.S. challenges the circuit court’s determination that grounds exist for continuing CHIPS. B.S. argues he received ineffective assistance of counsel at the trial on that ground, and contends that the circuit court should have held an evidentiary hearing on the effectiveness of his trial counsel. B.S. also challenges the court’s determination on summary judgment that grounds exist for continuing denial of periods of physical placement or visitation, arguing that the summary judgment submissions do not establish that he received proper notice under WIS. STAT. § 48.356(2). For the reasons explained below, I affirm.

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WI Court of Appeals – District IV

Case Name: Dana Kay Sacia v. Paul William Sacia

Case No.: 2017AP789

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

Focus: Divorce – Maintenance

Paul Sacia appeals the judgment of divorce from his former wife, Dana Sacia. Paul argues that the circuit court erroneously exercised its discretion by awarding Paul insufficient maintenance at the time of the divorce. We reject this argument and affirm the judgment.

Paul also appeals a post-judgment order terminating his maintenance. He argues that the circuit court unreasonably refused to grant him a second continuance to conduct discovery on Dana’s underlying post-judgment motion. He also argues that the court erred in concluding that there was a substantial change in circumstances that justified terminating his maintenance. We reject these arguments and affirm the order.

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WI Court of Appeals – District IV

Case Name: Greg Krueger v. Allenergy Hixton, LLC,

Case No.: 2017AP1802

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

Focus: Failure to State Claim

A group of Town of Hixton landowners sued AllEnergy Hixton, LLC, seeking a permanent injunction that would stop AllEnergy from constructing a frac sand mine in the town. The circuit court granted AllEnergy’s motion to dismiss the landowners’ complaint. The landowners appeal.

The question here is whether the landowners’ complaint states a claim. Before addressing that question, we address a preliminary matter: whether, when we assess whether there are allegations sufficient to state a claim, we should consider affidavits submitted after AllEnergy moved to dismiss the complaint. We conclude that the answer is no. Turning to whether a claim is stated within the four corners of the complaint, we first consider whether an anticipated private nuisance claim, the only claim that the landowners argue they stated, is a recognized claim in Wisconsin. On that topic, we conclude that Wisconsin case law, although seldom using a label such as “anticipated private nuisance,” does recognize that claim. Finally, we explain why we conclude that the complaint does not state a claim for anticipated private nuisance. Accordingly, we affirm the circuit court.

Recommendation for Publication

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WI Court of Appeals – District IV

Case Name: Mickey D. Christian v. Mike Culligan, et al.

Case No.: 2017AP2424-FT

Officials: LUNDSTEN, P.J.

Focus: Court Error – Rescission of Purchase Contract

Mickey Christian appeals a circuit court judgment awarding him money damages of $600 in his small claims action against Midtown Motors. The dispute arises out of Christian’s purchase of a used vehicle from Midtown that, Christian claimed, had a motor problem that Midtown failed to disclose. Christian argues that the circuit court erred by not ruling on his request for rescission of the purchase contract. Apart from his rescission argument, Christian contends that the court erred by awarding him only $600 in damages. Neither of these arguments persuades me that reversal is warranted. The judgment is therefore affirmed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard Rey Myers

Case No.: 2017AP2499

Officials: LUNDSTEN, P.J.

Focus: Improper Consent – Blood Test

Richard Rey Myers appeals a circuit court order concluding that Myers improperly refused to submit to a blood test under the implied consent law. Myers argues that his refusal cannot be held improper because his refusal was based on misinformation supplied by an officer regarding Myers’ right to counsel. I reject this argument and affirm.

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