Weekly Case Digests – October 15 – October 19, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Soarus L.L.C., v. Bolson Materials International Corp., et al.

Case No.: 18-1144

Officials: BAUER, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Nondisclosure Agreement – Breach of Contract – Patent Application

This appeal turns on the construction under Illinois law of provisions in a nondisclosure agreement. The dispute arises out of Bolson Materials International Corporation’s inclusion in a patent application of particular information Soarus, L.L.C. believed was protected from disclosure by the parties’ agreement. The district court, exercising diversity jurisdiction, determined that the agreement’s plain language controlled and revealed no breach of contract by Bolson. We agree and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Santiago

Case No.: 16-3433

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

Focus: Motion to Suppress Evidence Denied

Anthony Santiago initially was charged with conspiracy to possess with intent to distribute 1000 grams or more of heroin and five or more kilograms of cocaine, in violation of 21 U.S.C. § 846, and with distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Superseding indictments also charged Mr. Santiago with several counts of money laundering, in violation of 18 U.S.C. § 1956.

Prior to trial, Mr. Santiago filed a motion to suppress phone recordings secured through a wiretap under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520. The court denied that motion as well as a subsequent motion to reconsider. A jury later convicted Mr. Santiago on all charges that were tried. He now appeals the district court’s ruling on the motion to suppress the Title III wiretap evidence. Specifically, he submits that the wiretap application incorrectly stated that the investigators did not know his identity and that the application failed to establish that the wiretap was necessary to obtain relevant evidence. If the district court had full and accurate information, he argues, it would not have issued the warrant. He further contends that, at the very least, he made a substantial preliminary showing that the application contained a deliberate or reckless misstatement of material fact that required a hearing under Franks v. Delaware, 438 U.S. 154, 155–56. (1978).

Mr. Santiago’s arguments are not persuasive. The warrant application’s failure to identify Mr. Santiago by his name rather than simply by his nickname did not affect the issuing court’s probable‐cause analysis. The application also established that traditional investigative techniques had been employed, but were unlikely to uncover critical evidence about the targets. Finally, Mr. Santiago did not make the necessary showing to obtain a Franks hearing. We therefore affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Minerva Dairy, Inc., et al. v. Sheila Harsdorf, et al.

Case No.: 18-1520

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

Focus: Statutory Interpretation – Wisconsin’s Butter-grading Requirement

Minerva Dairy is an Ohio‐based, family‐owned dairy company that produces, among other products, Amish‐style butters in small, slow‐churned batches using fresh milk supplied by pasture‐raised cows. Minerva challenges Wisconsin’s butter‐grading requirement as a violation of the Due Process Clause, the Equal Protection Clause, and the dormant Commerce Clause. The district court granted summary judgment to the state defendants, holding that the Wisconsin statute is rationally related to the state’s legitimate interest in consumer protection and does not discriminate against out‐of‐state businesses. We agree with the district court’s analysis and, therefore, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Andrew Shelton, et al.

Case No.: 17-3084; 17-3127; 17-3396; 17-3558

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

Focus: Sentencing Guidelines – Enhancement

Defendants Andrew Shelton, Frederick Lewis, Patrick Edwards, and Terry Walker raise several sentencing challenges. First, all defendants argue the district court improperly imposed multiple offense-level enhancements under U.S.S.G. § 2K2. in violation of double counting principles. Second, Shelton challenges the court’s application of three criminal history points for a prior burglary conviction. Third, Lewis argues the court erred by imposing a three-year term of supervised release without separately addressing the § 3553(a) factors. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jane Doe v. Vigo County, Indiana, et al.

Case No.: 17-3155

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

Focus: Vicarious Liability – Sexual Misconduct

Jane Doe seeks to hold Vigo County, Indiana, liable for the sexual misconduct of its employee, David Gray. Gray allegedly confined and sexually assaulted Doe while she volunteered at the park where he worked. The district court granted summary judgment in favor of Vigo County, finding that it was neither vicariously liable for Gray’s wrongs nor directly liable for permitting them to occur. We too conclude that the law does not permit Doe to pursue this action against the County.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Exelon Corporation v. Commissioner of Internal Revenue

Case No.: 17-2964; 17-2965

Officials: MANION AND BARRETT, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Tax Liability

Petitioner-Appellant Exelon Corporation (“Exelon”) appeals from a decision of the United States tax court which upheld a determination by the Commissioner of Internal Revenue that Exelon is liable for a deficiency of $431,174,592 for the 1999 tax year and $5,534,611 for the 2001 tax year. The tax court also affirmed the imposition of $87 million in accuracy-related penalties. We affirm both decisions.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jennifer Hammer v. United States Department of Health and Human Services

Case No.: 18-2523

Officials: ROVNER, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Setting Off – Liquidation

The Department of Health and Human Services owed millions of dollars to the now‐defunct Land of Lincoln Mutual Health Insurance Company. Likewise, Land of Lincoln owed millions to HHS. As part of its regulatory oversight, HHS has elected to set off its own debt payments by first paying down Land of Lincoln’s debt. The Director of the Illinois Department of Insurance, who is Land of Lincoln’s appointed liquidator, contends that this setoff violates an order issued by the Illinois court overseeing the liquidation proceedings that prevents any creditors from setting off money owed to Land of Lincoln without prior leave of the court. The Director asked the state court for a declaration that HHS violated the order, but HHS removed the motion to federal district court arguing that the federal government was not subject to the state court’s jurisdiction. The district court remanded the case back to state court relying on a narrow reading of 28 U.S.C. § 1442, as well as principles of abstention. We reverse on both grounds and remand to the district court for further proceedings consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ruby Mohsin, et al.

Case No.: 18-1275; 18-1598

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

Focus: Sentencing

Ruby Mohsin and Mohammad Khan pleaded guilty to conspiring to sell drugs misbranded as incense or potpourri. The conduct occurred over approximately eight months in 2011 from a store Mohsin owned in the Fox Valley Mall in Aurora, Illinois. At sentencing the district court found that Mohsin and Khan consciously or recklessly disregarded the risk that the mislabeled products could cause death or serious injury. This finding had the effect of significantly increasing Mohsin and Khan’s advisory ranges under the U.S. Sentencing Guidelines. The finding reflected clear error, however, as the record before the district court, while supporting a conclusion that Mohsin and Khan knew customers (and perhaps teenagers) were smoking the products to obtain marijuana‐like highs, did not support a determination that either Mohsin or Khan knew the products presented lethal risks to users.

Finally, Mohsin contends that the district court committed errors at sentencing by denying her credit for acceptance of responsibility under U.S.S.G. § 3E1.1 and otherwise inadequately considering the factors in 18 U.S.C. § 3553(a). For his part, Khan advances a similar argument regarding the district court’s consideration of the § 3553(a) factors. We need not address these contentions, as resentencing of both Mohsin and Khan is independently warranted as a result of the district court’s error applying the multi‐level enhancement under § 2B1.1(b)(15)(A). The district court will have an opportunity to take a fresh look at these other issues at resentencing.

For these reasons, we VACATE and REMAND for resentencing. The resentencing of both Mohsin and Khan shall occur on an expedited basis and without delay. Circuit Rule 36 shall apply on remand.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Judy Dilley, et al. v. Holiday Acres Properties, Inc., et al.

Case No.: 17-2485; 17-2970; 17-3289

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

Focus: Statutory Interpretation – Equine Immunity

Judy Dilley and Abigail Brown were injured while horseback riding in Wisconsin. Both women are citizens of other states, so they sued the trail and stable operators in federal court in western Wisconsin asserting claims of negligence. They lost at summary judgment and on the pleadings, respectively. Their appeals, which we have consolidated for decision, require us to interpret and apply Wisconsin’s equine immunity statute. With certain exceptions, the statute blocks recovery for injuries that result from “an inherent risk of equine activities.” WIS. STAT. § 895.481(2). The courts below held that the equine-immunity statute bars their claims.

We affirm. Dilley’s claims fall within the scope of the statutory immunity because a trail operator’s negligence is an “inherent risk of equine activities” as that phrase is defined in the statute. And no exception to immunity applies. The trail operators reasonably assessed Dilley’s ability to ride a horse and to safely manage the particular horse they assigned to her; they did not act in willful or wanton disregard of her safety; and the tack they provided was not faulty. Brown concedes that her claim falls within the scope of immunity but invokes an exception that applies if the defendant provided a horse for the plaintiff. Because Brown rode her own horse, that exception is unavailable.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John G. Barrett v. Nancy A. Berryhill

Case No.: 17-2878

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: ALJ Error – Disability

John Barrett applied for disability insurance benefits and supplemental security income based on limitations from bipolar disorder and alcohol addiction. If an administrative law judge (ALJ) had found him disabled, then Barrett would shoulder the burden of showing that his alcoholism was not material to his disability. An ALJ found that he was not disabled, however, even when considering his alcohol addiction, and denied him benefits. The district court agreed, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Company

Case No.: 17-1897

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges

Focus: Collective Bargaining Agreement

Union Pacific Railroad Company hired Richard Griff in the mid-1980s. Griff was promoted from locomotive engineer to management over the next several years, only to be fired in 2013 when the railroad discovered that he had falsified safety and training documentation. Griff objected to his termination on procedural grounds, arguing that he was entitled to a hearing under a collective-bargaining agreement between Union Pacific and his union, the Brotherhood of Locomotive Engineers and Trainmen. The railroad responded that the agreement did not provide a hearing for supervisory employees like Griff.

The Brotherhood submitted Griff’s grievance to the National Railroad Adjustment Board, see 45 U.S.C. § 153 First (i), and the Board denied the claim. It explained that it had already resolved similar disputes between the parties and that nothing in the specific collective-bargaining agreement required a different outcome. Like Union Pacific, the Board concluded that Griff was not entitled to a pretermination hearing because he was a supervisory employee.

Undeterred, the Brotherhood appealed the Board’s decision to the federal district court. See id. § 153 First (q). Challenging an arbitral award of the Adjustment Board is famously difficult. The Railway Labor Act states that the findings and order of the division shall be conclusive on the parties, except … for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order.

The Brotherhood alleged several statutory and jurisdictional defects, in addition to a due-process claim under the Fifth Amendment to the U.S. Constitution. The judge denied the claims and entered summary judgment for Union Pacific. The Brotherhood now appeals, and Union Pacific has moved for sanctions under Rule 38 of the Federal Rules of Appellate Procedure. We affirm and grant the motion for sanctions. The Brotherhood’s arguments are facially untenable and fly in the face of clear precedent. The Board had authority to decide this dispute and properly did so.

Affirmed and Granted

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7^th Circuit Court of Appeals

Case Name: Steven Robert Lisse v. Wendy Alison Nora

Case No.: 18-1866; 18-1889

Officials: EASTERBROOK, Circuit Judge.

Focus: Request for Judicial Notice

Appellant has submitted a document styled “Request for Judicial Notice.” In my capacity as motions judge, I deny this and publish a brief explanation in the hope of forestalling other, similar applications, which recently have increased in frequency. Rule 201(b) of the Federal Rules of Evidence permits a court to take judicial notice of an adjudicative fact that is “not subject to reasonable dispute” because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

I said at the outset that I am denying the “Request,” and readers may wonder why I am not granting it with respect to two documents and denying it with respect to two. The reason is that the “Request” is unnecessary. The right place to propose judicial notice, once a case is in a court of appeals, is in a brief. When evidence is “not subject to reasonable dispute”, there’s no need to multiply the paperwork by filing motions or “Requests.” Just refer to the evidence in the brief and explain there why it is relevant and subject to judicial notice. If the assertion is questionable, the opposing litigant can protest. “On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.” Rule 201(e). That “timely request” and the “opportunity to be heard” both belong in the next brief. So if an appellant proposes judicial notice, the appellee’s objection can be presented in its own brief. If it is an appellee who proposes judicial notice, the appellant’s reply brief provides the opportunity to be heard in opposition. There’s no need to engage in motions practice, require the attention of additional appellate judges, and defer briefing.

The “Request” therefore is denied as unnecessary with respect to the two judicial orders and is denied as both unnecessary and not meritorious with respect to the other documents.

Denied

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7^th Circuit Court of Appeals

Case Name: International Union of Operating Engineers Local 399, et al, v Village of Lincolnshire, et al.

Case No.: 17-1300; 17-1325

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

Focus: Statutory Interpretation – Ordinance Changes 

The National Labor Relations Act and its amendments establish a national system of industrial-labor relations. The question before us in this case is whether a municipality—specifically, the Village of Lincolnshire, Illinois— can add to or change that system through a local ordinance. Lincolnshire passed an ordinance that purports to do three things: (1) forbid the inclusion of union-security or hiring-hall provisions in collective bargaining agreements, (2) forbid the mandatory use of hiring halls, and (3) forbid dues checkoff arrangements. The Village asserted that it had the right to do so under section 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b), which permits states to bar compulsory union membership as a condition of employment. Lincolnshire contends that, as a political subdivision of Illinois, it is entitled to exercise the state’s power in this respect.

Whether a local law, rather than a state-wide law, falls within the scope of section 14(b) is a subject that has divided other courts. The Sixth Circuit, in United Automobile, Aerospace & Agricultural Implement Workers of America Local 3047 v. Hardin County, Kentucky, 842 F.3d 407 (6th Cir. 2016), agreed with the Village that it does, but only for union-security clauses. The Sixth Circuit found hiring-hall and dues-checkoff provisions comparable to those in the Lincolnshire ordinance to be outside the scope of section 14(b) and thus preempted by the NLRA. On the other side of the fence, Kentucky’s highest court has held that section 14(b) does not permit local legislation on the topic of either union-security or mandatory use of hiring-halls or dues-checkoffs. See Kentucky State AFL-CIO v. Puckett, 391 S.W. 2d 360 (Ky. Ct. App. 1965). With all due respect to our sister circuit, on the union-security clause issue we find ourselves persuaded by the position that Kentucky took, although our reasons differ somewhat. We agree with both courts that localities may not address the subjects of hiring halls or dues checkoffs. We thus conclude that the authority conferred in section 14(b) does not extend to the political subdivisions of states and affirm the judgment of the district court holding Lincolnshire’s ordinance preempted and without force.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Emerson D. Lamb

Case No.: 2017AP1430-CR

Officials: HRUZ, J.

Focus: Sentencing

Emerson Lamb appeals a judgment of conviction based upon his no-contest plea to battery by a prisoner, as well as an order denying his postconviction motion. Lamb argues the sentencing court demonstrated objective bias by making comments prior to sentencing that indicated it was very unlikely he would receive probation. We agree with Lamb that the court’s comments— which occurred before it had heard any sentencing arguments from the parties and in a context where no presentence investigation report (PSI) was prepared— showed a serious risk that the court had prejudged Lamb’s sentence. Accordingly, we conclude that Lamb had demonstrated the judge was objectively biased, we reverse the judgment and order, and we remand for a new sentencing hearing before a different judge.

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WI Court of Appeals – District III

Case Name: Laona State Bank v. Judson R. Moeller, et al.

Case No.: 2017AP1532

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

Focus: Foreclosure – Inherent Authority to Amend

In this mortgage foreclosure action, the circuit court granted Laona State Bank (the Bank) a foreclosure judgment against Judson Moeller, Carol Moeller, and Moeller-Valley, Inc. (collectively, the Moellers). The Bank was the winning bidder at a subsequent sheriff’s sale, and the court entered an order confirming the sale on August 21, 2014.

Nearly two years later, in June 2016, the Bank wrote to the circuit court asking it to amend the order confirming sale, along with an earlier order dated December 19, 2013, to include additional findings that the Bank alleged the court had made during a December 5, 2013 hearing. After initially refusing to amend the orders, the circuit court ultimately granted the Bank’s request and entered amended orders on June 29, 2016. The court later denied the Moellers’ motion for reconsideration of its decision to amend the orders.

The Moellers now appeal, arguing, among other things, that the circuit court lacked authority to amend its prior orders to include additional findings, absent a motion for relief from those orders under WIS. STAT. § 806.07 (2015-16). In response, the Bank argues the court had inherent authority to amend its prior orders in order to make them consistent with its oral rulings from the December 5, 2013 hearing.

We reject the Bank’s argument and conclude the circuit court lacked inherent authority to amend its December 19, 2013 and August 21, 2014 orders. The Bank was required to move for relief from those orders under WIS. STAT. § 806.07 if it believed the court mistakenly failed to include relevant findings. Because the Bank failed to do so, we reverse and remand with directions that the court vacate the amended orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Keith J. Brooks

Case No.: 2017AP1723-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Keith J. Brooks appeals from the judgment of conviction, following a jury trial, for first-degree reckless homicide while using a dangerous weapon and misdemeanor battery. He also appeals the trial court’s order denying his motion for postconviction relief.

On appeal, Brooks argues that trial counsel were ineffective by “embracing the bad facts” regarding the victim’s vulnerability and his escalating abuse of her and that this likely caused the jury to find him guilty of first-degree reckless homicide. He also argues that the standard jury instruction regarding proof beyond a reasonable doubt reduced the State’s burden of proof thereby violating due process, and that this court should order a new trial in the interest of justice. We disagree and affirm.

The following background facts provide context for the issues raised on appeal. Additional relevant facts are included in our discussion.

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WI Court of Appeals – District I

Case Name: John R. Brodersen v. Katherine L. Hobbins

Case No.: 2017AP1929 

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

Focus: Motion for Child Support Denied

Katherine L. Hobbins appeals from an order of the circuit court denying her motion for child support. We affirm.

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WI Court of Appeals – District I

Case Name: RJR ML LLC v. Keyhan Sheikholeslami, et al.

Case No.: 2017AP2238

Officials: BRENNAN, J.

Focus: Breach of Contract – Commercial Lease

This appeal concerns the eviction of Keyhan Sheikholeslami, d/b/a Ogden Cleaners (Tenant) from a commercial property owned by RJR ML LLC (Landlord). The complaint alleged that the Tenant breached a commercial lease “by causing or permitting the release or spill of hazardous substances … and by failing to timely remediate such releases.” The hazardous substance at issue is perchloroethylene (PERC or PCE), a solvent commonly used in dry cleaning.

At trial, the Landlord’s expert testified about a report he had prepared about the property. In June and July 2017, while the Tenant occupied the property, he had conducted inspections, taken samples, and photographed sludge material that, when tested, showed the presence of PERC. The trial court found that the PERC-contaminated sludge that the inspection revealed was “[e]ither new spills that were not cleaned up” or “some combination … [o]f existing problems [from prior tenant] that weren’t remedied as they should have been … and current spills that were not immediately cleaned” as the lease required (emphasis added). Based on that finding, the trial court concluded that there was “a basis for the breach of the lease and for the eviction.”

The Tenant does not argue that the trial court’s findings of fact are clearly erroneous but argues that no breach occurred. First, he argues that under the lease, merely “detectable” levels found in sludge do not constitute a “spill or release” of a “hazardous substance” and that to constitute a breach of the lease, a spill or release “must have a component of damage, potential injury or liability.” He argues that the trial court’s determination that he breached the lease was based on its incorrect interpretation of the lease as meaning “that the Tenant breaches the lease by not removing residue even if the Tenant did not cause the purported spill or release[.]”

We conclude that the lease’s plain, unambiguous language: (1) defines “hazardous substance” in a way that includes PERC; (2) prohibits the Tenant from “caus[ing] or permit[ting] any Hazardous Substance to be spilled or released,” and the prohibition applies to any spill, not just high-volume spills; and (3) requires the Tenant to “promptly … take all investigatory and/or remedial action reasonably recommended … for the cleanup of any contamination … that was caused or materially contributed to by” the Tenant. The lease permits the Tenant to use hazardous substances for dry cleaning, but the lease does not permit the Tenant to spill or release them. Applying this interpretation to the trial court’s findings of fact—that the contaminated sludge observed by the inspection was the result of “new spills” by the Tenant or, in the alternative, the result of spills by both the Tenant and the prior tenant—we conclude that the Tenant breached the lease. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Brinkley L. Bridges

Case No.: 2017AP2311-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Brinkley L. Bridges appeals a judgment of conviction, entered on his guilty plea, for three felony drug counts and two felony gun counts. He moved unsuccessfully for plea withdrawal on the grounds of ineffective assistance of counsel, and he appeals the order denying his postconviction motion without a hearing.  Bridges argues that his attorney rendered constitutionally ineffective assistance by: (1) failing to argue that the warrant for the tracking of his cell phone was based on an affidavit that did not establish probable cause—specifically that it contained no “statement showing personal knowledge that Bridges used this phone to conduct illegal drug transactions”; and (2) failing to argue that all the evidence obtained as a result of the warrant was tainted and should be suppressed. Bridges seeks an evidentiary hearing on his claim.

We conclude that Bridges has failed to meet his burden of establishing that the facts in the affidavit were clearly insufficient to support probable cause. See WIS. STAT. § 968.373(3)(e) (2015-16). 2 See State v. Multaler, 2002 WI 35, ¶8, 252 Wis. 2d 54, 643 N.W.2d 437. We also conclude that the warrant-issuing magistrate “had a substantial basis to conclude that the probable cause existed.” See State v. Ward, 2000 WI 3, ¶21, 231 Wis. 2d 723, 604 N.W.2d 517. Consequently, there is no basis to suppress the evidence discovered as a result of the search. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kenneth Alexander Burks

Case No.: 2018AP208-CR

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

Focus: Postconviction Motion for Relief Denied

Kenneth Alexander Burks appeals the judgment of conviction, following a jury trial, of one count of first-degree reckless homicide and one count of possession with intent to deliver a controlled substance (three grams or less of heroin). He also appeals the order denying his postconviction motion for relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sandra D. Solomon

Case No.: 2018AP298-CR

Officials: KESSLER, P.J.

Focus: Plea Withdrawal

Sandra Solomon appeals a judgment of conviction, entered upon a guilty plea, of one count of misdemeanor criminal damage to property with a domestic abuse assessment. Solomon appeals the postconviction order denying her motion to withdraw her guilty plea. We affirm.

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WI Court of Appeals – District II

Case Name: Green Bay Sportservice, Inc., v. State of Wisconsin Department of Workforce Development

Case No.: 2017AP608

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

Focus: Statutory Interpretation

Green Bay Sportservice, Inc. (GBS) seeks a statutory exemption from paying its hourly employees overtime on the ground that it qualifies as a recreational or amusement establishment. As GBS failed to prove that it satisfies the definition of a “recreational or amusement establishment” under WIS. ADMIN. CODE § DWD 274.04(8) (Apr. 2018), we affirm the denial of the exemption.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Darrin L. Malone

Case No.:  2017AP680-CR

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

Focus: Sufficiency of Evidence

At approximately 10:40 p.m. on January 13, 2015, two men wearing green masks and blue latex gloves robbed a Citgo convenience store, with the first, shorter, robber shooting and killing the clerk. It is undisputed this first robber was Kenneth Thomas. Both robbers left the scene in a getaway car undisputedly driven by Jerica Cotton.

Based upon evidence it had gathered indicating Darrin Malone was the second robber, the State charged him with felony murder, as a party to the crime, and following a four-day trial, a jury convicted him of that offense. Malone moved for postconviction relief, which motion the trial court denied. He now appeals his judgment of conviction and the denial of his postconviction motion. He claims he is entitled to a new trial for various reasons related to the trial court’s admission of “other acts” evidence of a separate robbery. For the following reasons, we conclude the trial court did not err in denying Malone’s motion for postconviction relief and he is not otherwise entitled to a new trial.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Matthew Feliciano

Case No.: 2017AP1121-CR

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

Focus: Newly Discovered Evidence

Matthew Feliciano appeals from a judgment convicting him of first-degree reckless injury by use of a dangerous weapon and attempted first-degree intentional homicide. Feliciano also appeals from a circuit court order denying his postconviction motion. Feliciano seeks a new trial in the interest of justice and due to newly discovered evidence. He also claims that the circuit court erroneously denied his mistrial motion. We affirm the circuit court in all respects.

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WI Court of Appeals – District II

Case Name: Fontana Builders, Inc., et al. v. Assurance Company of America

Case No.: 2017AP1604

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

Focus: Breach of Contract – Bad-faith Damages

In this decade-old case, Assurance Company of America appeals from a judgment reinstating April 2010 jury verdicts in favor of Fontana Builders, Inc., for breach-of-contract and bad-faith damages. Assurance denied a claim made under a builder’s risk insurance policy it issued to Fontana. Fontana cross-appeals from the judgment only with respect to the amount of interest the circuit court allowed under WIS. STAT. § 807.01 (2015-16) for the bad-faith damages. We affirm the judgment as to the appeal but, given the unique facts at play, reverse as to the cross-appeal, as we agree that interest on the bad-faith claim should have been awarded under § 807.01 (2009-10), the version of the statute in effect when the initial judgment on the verdicts was entered.

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WI Court of Appeals – District IV

Case Name: Sheri L. White v. Allan Case White

Case No.: 2018AP221

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

Focus: Divorce – Property Division

Allan White appeals a judgment of divorce, challenging the property division. Allan argues that the circuit court erred in multiple respects with regard to the valuation and division of property that Allan inherited. We reject Allan’s arguments, and affirm the judgment.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. David J. Jackson, et al.

Case No.: 2018AP471

Officials: BLANCHARD, J.

Focus: Moot Appeal

In this family court matter involving David Jackson and Diana Stascak, I dismiss on mootness grounds two issues that Jackson, pro se, purports to raise on appeal. Both of these moot issues directly challenge the circuit court’s finding that Jackson was in contempt. I conclude that both issues are moot and that there is insufficient reason to address the moot arguments. Separately, I affirm the circuit court on a third issue, which involves Jackson’s argument that the circuit court “lost its competency to render” an order because “mandatory statutory time requirements were not met.”

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