Weekly Case Digests – November 12 – November 16, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Francina Smith v. GC Services Limited Partnership

Case No.: 18-1361

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

Focus: FDCPA Violation – Arbitration Agreement

Synchrony Bank hired GC Services Limited Partnership to collect a debt Francina Smith purportedly owed on her Sam’s Club credit card. In response, Smith sued GC Services for alleged violation of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1601 et seq. Eight months later, GC Services notified Smith that she signed an arbitration agreement with Synchrony Bank when she obtained the credit card. GC Services demanded arbitration. Smith promptly refused. Another five months passed before GC Services filed a motion to compel arbitration. The district court denied the motion after holding that GC Services could not enforce the arbitration agreement on Synchrony Bank’s behalf and finding that GC Services waived any right to arbitration. Because of GC Services’ gratuitous delay in seeking arbitration, we affirm the district court’s decision.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Pamela Herrington, et al. v. Waterstone Mortgage Corporation

Case No.: 17-3609

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

Focus: Statutory Interpretation – Collective Arbitration

Pamela Herrington filed class and collective actions against Waterstone Mortgage Corporation, her former employer, for wage and hour violations. The district court compelled arbitration pursuant to an agreement between Herrington and Waterstone, but it struck as unlawful a waiver clause that appeared to forbid class or collective arbitration of Herrington’s claims. The arbitrator conducted a collective arbitration over Waterstone’s objection and ultimately awarded more than $10 million in damages and fees to Herrington and 174 similarly situated employees.

A recent Supreme Court decision has now put this award in doubt. In Epic Systems Corp. v. Lewis, – U.S. –, 138 S. Ct. 1612 (2018), the Court upheld the validity of waiver provisions like the one in Herrington’s agreement with Waterstone. If imposing collective arbitration on Waterstone violated that waiver, we must instruct the district court to vacate the award, which would put Herrington back at square one. But Herrington does not concede that the collective arbitration violated the waiver. In an attempt to save her award, she insists that her agreement with Waterstone affirmatively permits class or collective arbitration of her claims despite the presence of a valid waiver indicating otherwise. While this argument is weak, someone must evaluate it—and we must decide who has that job. If the availability of class or collective arbitration is a threshold question of arbitrability, the district court has to decide it. Otherwise, it falls to the arbitrator.

For reasons we explain below, we conclude that the availability of class or collective arbitration is a threshold question of arbitrability. On remand, the district court, rather than the arbitrator, must evaluate Herrington’s contract with Waterstone to determine whether it permits class or collective arbitration.

Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Tyree M. Neal, Jr.

Case No.: 17-2976

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

Focus: Plea Withdrawal

At sentencing Tyree M. Neal, Jr. asserted that he was not guilty of conspiring to distribute cocaine because the facts, as he saw them, did not demonstrate that he agreed with others to buy and sell cocaine. The district court responded by observing that Neal had already pleaded guilty and in doing so conceded that the government’s factual proffer sufficed to prove the offense of conspiracy. So the court proceeded to sentencing and imposed a term of 30 years’ imprisonment, reflecting the scale of the drug-distribution conspiracy as well as Neal’s violent conduct while resisting arrest, obstruction of justice, and extensive criminal history. On appeal Neal contends that the district court should have treated the reservations he expressed at sentencing as a motion to withdraw his plea. We affirm, as the record shows not only that Neal voluntarily pleaded guilty, but also that there was a sufficient factual basis to support the plea.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Calvin Lindsey v. Vince Macias, et al.

Case No.: 17-2963

Officials: EASTERBROOK, KANNE, and BRENNAN, Circuit Judges

Focus: Court Error – Abuse of Discretion

After the State of Illinois dismissed criminal charges against plaintiff‐appellant Calvin Lindsey for unlawful possession of a weapon, he filed this civil action asserting claims for false arrest, excessive force, false imprisonment, and malicious prosecution under 42 U.S.C. § 1983 and state law assault and battery. At trial, the jury returned a unanimous defense verdict on all counts.

On appeal, Lindsey seeks to vacate the judgment for two reasons. First, he contends the district court erred in refusing to modify its jury instruction on “possession” to stress that “mere proximity” to a gun is insufficient. Second, he asserts the district court abused its discretion by denying the jurors’ request for a copy of a potentially impeaching interrogatory answer.

Neither of Lindsey’s arguments warrants reversal. Our precedent rejects a requirement that a possession instruction include language expressly disclaiming the sufficiency of “mere proximity,” and Lindsey presents no persuasive reason to reconsider those holdings or reach a different result here. And the district court was well within its discretion in refusing to send into the jury room a document not admitted into evidence. Therefore, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mark Fritz v. Tony Evers

Case No.: 17-2955

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

Focus: Probable Cause – Judicial Review – Department of Public Instruction

Wisconsin requires public officials to report certain events or suspicions about teachers to the Superintendent of Public Instruction. Wis. Stat. §115.31(3)(a). When a qualifying report is made, the state lists the teacher on a public website as “under investigation”. Wis. Stat. §115.31(6)(b). Such a report was made about Mark Frid in March 2012. In August 2013 the Department of Public Instruction told Frid that the report about him was not supported by probable cause to believe that he had engaged in misconduct. His name was removed from the site. In this suit under 42 U.S.C. §1983 Frid alleges that schools would not hire him while he was under investigation. He contends that the state had to afford him a hearing before puging his name on the list of persons under investigation.

There’s a further problem. Frid contends that the Constitution requires a hearing before public notice that a charge is under investigation. Yet our legal tradition is notice first, hearing later. Thus criminal charges are filed, whether by indictment or information, before the accused has an opportunity for a hearing. People are arrested, and criminal investigations begun, before adversarial hearings. If the arrest occurs in a public place, even an ex parte warrant is unnecessary. See United States v. Watson, 423 U.S. 411 (1976). A hearing occurs promptly after an arrest only if the suspect remains in custody. See County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991). Civil proceedings also begin long before a hearing. Both civil and criminal charges are public, even though being under a cloud may make it hard for the defendant to get a new job while the proceedings are ongoing.

Probable cause is required to support custody, see Manuel v. Joliet, 137 S. Ct. 911 (2017), but not to support a public charge of crime. “[T]here is no such thing as a constitutional right not to be prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). A criminal trial may occur months if not years after charges become public, and in the interim the accused does not have a constitutional right to a hearing at which a judge will determine whether the grand jury should have issued an indictment. See Kaley v. United States, 571 U.S. 320 (2014).

Administrative investigations likewise precede hearings. The Federal Trade Commission or Securities and Exchange Commission may conduct a public investigation and defer a hearing until after it issues a charge and discovery has concluded. Judicial review is impossible until the agency makes its final decision. See FTC v. Standard Oil Co., 449 U.S. 232 (1980). Wisconsin followed the traditional approach: it conducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Neil C. Kienast, et al. 

Case No.: 17-1840;

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

Focus: Exclusionary Rule – Good Faith Exception

In 2015, federal agents infiltrated a child pornography website called Playpen and deployed a computer program to identify Playpen’s users. This operation resulted in the successful prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman Broy, whose appeals are consolidated before us. Kienast, Owens, and Broy, like many other defendants caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit of those searches—the defendants’ identities—should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that these digital searches violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies. We affirm all three judgments.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jay F. Vermillion v. Corizon Health, Inc., et al.

Case No.: 18-1517

Officials: EASTERBROOK, Circuit Judge.

Focus: Statutory Interpretation – Rule 32(f) – Form of Briefs

This case came to my attention, as motions judge, when the appellees sought permission to file a brief containing more words than the 14,000 permitted by Fed. R. App. P. 32(a)(7) and Circuit Rule 32(c). Jay Vermillion, the appellant, represented that his brief contains fewer than 14,000 words, after excluding the portions not counted by Rule 32(f). But appellees reported that their count of his brief came to 16,850 words. They sought parity and then some: 17,258 countable words for their brief.

Vermillion’s response asks me to reinstate his brief. He says that he started with a word count of 15,315, reported by the “Properties” panel in Microsoft Word, and subtracted the words in the cover, table of authorities, and other portions that do not count against the total. Finding that the count remained over 14,000, “Vermillion then discovered that Rule 32(f) does not specifically include the [brief’s] references to the Record and Appendix toward the wordcount” (Response at 6). He estimated that about 2,000 words in his brief cited the record and appendix. With these excluded, the count is well under 14,000 words. So, he insists, his brief complies with the rules and must be accepted.

Because Vermillion’s brief did not comply with the rules, my order striking it stands. He must file a new brief with fewer than 14,000 countable words. The count must start with the software’s “Word Count” panel and include footnotes. Only those items listed in Rule 32(f) may be excluded. Once Vermillion has filed a complying brief, appellees too will be subject to the 14,000 word limit. I will not allow them any more words than Vermillion receives. Circuit Rule 32(c), which affords everyone 1,000 more words than the cap in Rule 32(a)(7), reflects a view that 14,000 suffices for all but the rare cases with lengthy trials, complex administrative records, or multiple complex issues. This appeal is not in any of those categories.

Vermillion is litigating without the aid of counsel, and his response to my order shows that he tried to comply in good faith, although he misunderstood both Rule 32(f) and the right place to start in Microsoft Word. No sanction—beyond the work needed to prepare and file a compliant brief—is appropriate. The order to show cause is discharged. By separate order, the court will reset the dates for both sides’ briefs.

Order Discharged

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jose Jaime Lopez

Case No.: 17-1391

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

Focus: Sufficiency of Evidence

A jury convicted Jose Jaime Lopez of several drug-related offenses and the district court sentenced him to life in prison. In this direct appeal, Lopez challenges the denial of his motion to suppress, the sufficiency of the evidence on his conviction for attempting to possess with the intent to distribute 50 grams or more of methamphetamine, and his sentence of life in prison. We affirm both Lopez’s conviction and sentence, though we again remind district courts and the government to ensure compliance with the requirements of 21 U.S.C. § 851.

Affirmed

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7^th Circuit Court of Appeals

Case Name: William Yovanni Molina-Avila v. Jefferson B. Sessions III

Case No.: 17-1723; 18-1911

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

Focus: Immigration – Removal Proceedings

In February 2016, the Department of Homeland Security commenced removal proceedings against William Yovanni Molina-Avila. He requested deferral of removal because he feared torture by Guatemalan gangs. The immigration judge denied the request for deferral, and the Board of Immigration Appeals denied the appeal. Months later, Molina-Avila filed a motion to reopen the proceedings. The Board also denied that request. Molina-Avila has now petitioned for judicial review. Because the immigration judge’s decision was supported by substantial evidence, we deny the petition for review of the denial of Molina-Avila’s petition for deferral of removal. And because the Board committed no legal error in its analysis, we deny the petition for review of the denial of the motion to reopen.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marcel A. Walton

Case No.: 17-2984

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

Focus: Sentencing Guidelines

Marcel Walton, a “Grand Sheik” of the Moorish Science Temple of America in Chicago, stole more than $3 million from the Internal Revenue Service (“IRS”) by filing and assisting others in filing fraudulent tax returns. He pled guilty to mail fraud, see 18 U.S.C. § 1341, and was sentenced to 68 months’ imprisonment—below the advisory guidelines range. On appeal, Walton asserts that the district court violated his due‐process rights by relying on inaccurate information in determining the appropriate sentence. Because Walton does not show that any information was false, nor that the district court relied on any inaccuracies, we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Elyse E. Alix

Case No.: 2017AP1543-CR; 2017AP1544-CR; 2017AP1545-CR; 2017AP1546-CR; 2017AP1547-CR; 2017AP1548-CR

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

Focus: Postconviction Motion for Relief Denied

In these consolidated appeals, Elyse Alix appeals multiple judgments, entered upon her no-contest pleas, convicting her of multiple crimes. She also appeals orders denying her postconviction relief. For the reasons that follow, we modify the judgments and affirm them as modified. We also reverse the orders denying Alix postconviction relief and remand with directions.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kenneth P. Wagner

Case No.: 2017AP1764-CR; 2017AP1765-CR

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

Focus: Plea & Sentencing – Ineffective Assistance of Counsel

Kenneth Wagner appeals judgments, entered upon his no-contest pleas, convicting him of one count each of first-degree sexual assault of a child under the age of thirteen, child enticement, felony bail jumping, and exposing a child to harmful material. Wagner also appeals the order denying his motion for postconviction relief. Wagner argues he is entitled to resentencing because his trial counsel did not provide meaningful assistance during sentencing. We reject Wagner’s arguments and affirm the judgments and the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David A. Allen

Case No.: 2017AP2134-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Newly Discovered Evidence

David A. Allen appeals the trial court’s judgment convicting him, after a jury trial, of child abuse by recklessly causing great bodily harm, first-degree reckless homicide, and child neglect resulting in great bodily harm. See WIS. STAT. §§ 948.03(3)(a), 940.02(1), 948.21(1)(c) (2011-12). Because he was able to find multiple experts to support his defense, Allen argues he is entitled to judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial in the interest of justice. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Nicholas C. Wegner

Case No.: 2017AP2236-CR

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

Focus: Motion to Suppress – Reconsideration

Nicholas Wegner appeals a judgment of conviction for fifth-offense operating a motor vehicle with a prohibited alcohol concentration (PAC), as well as an order denying his motion seeking reconsideration of a suppression decision. Wegner drove into a roundabout directly in front of a deputy sheriff who was already driving within that roundabout, requiring the officer to brake to avoid a collision. Wegner was stopped for a failure to yield the right-of-way, whereupon the deputy collected evidence showing that Wegner had been driving with a PAC.

Wegner initially argues the circuit court was required to grant his suppression motion because, under State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), aff’d, 233 Wis. 2d 278, 607 N.W.2d 620, the arresting officer lacked probable cause to believe that a traffic violation had occurred. We reject this argument because in State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143, our supreme court clarified that “reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops.” Id., ¶30. Indeed, Wegner effectively concedes in his reply brief that Hougton sets forth the operative standard.

We conclude that the deputy’s observations here satisfied the “reasonable suspicion” standard. Wegner argues he could not be lawfully stopped because the deputy had forfeited the right-of-way by traveling at an unlawful speed through the roundabout. However, WIS. STAT. § 346.18(1) (2015-16)2—the statutory subsection to which Wegner cites in support of his argument—is inapt, and we conclude that a roundabout effectively functions as an uncontrolled “T” intersection under § 346.18(3m) for purposes of drivers yielding the right-of-way. Additionally, under § 346.18(6), Wegner was required to obey the posted yield signs at the roundabout entrance and yield to any traffic already within the roundabout. Under both statutory provisions, the deputy’s observations were sufficient to justify stopping Wegner for failing to yield the right-of-way. Consequently, we affirm the denial of Wegner’s suppression motion and the denial of his reconsideration motion.

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WI Court of Appeals – District I

Case Name: Antoinette Lang, et al. v. Lions Club of Cudahy Wisconsin, Inc., et al.

Case No.: 2017AP2510

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

Focus: Statutory Interpretation – Recreational Immunity

Antoinette Lang and Jim Lang appeal an order of the trial court that granted the defendants’ summary judgment motion dismissing the Langs’ claim against Fryed Audio, LLC (Fryed) for negligence.

Antoinette Lang was injured when she tripped over electrical cords at an outdoor festival featuring food and music. The Langs sued Fryed, the LLC that provided the sound engineering services to a band at the event, for negligently placing the cords. The Langs sued other entities as well, including the Lions Club of Cudahy Wisconsin, Inc., the organization that obtained the permit for the use of the grounds and ran the event. The trial court granted the Lions Club’s motion for summary judgment on the grounds that the recreational immunity statute, WIS. STAT. § 895.52 (2015-16), barred the Langs’ negligence claim against that defendant.  The issue before us is whether Fryed is also entitled to immunity under the recreational immunity statute either as an “agent” of the Lions Club or as an “occupier.”

The trial court concluded that Fryed is entitled to immunity and granted summary judgment in its favor; in its oral ruling, the trial court cited to Carini v. ProHealth Care, Inc., 2015 WI App 61, 364 Wis. 2d 658, 869 N.W.2d 515, and Leu v. Price County Snowmobile Trails Ass’n, Inc., 2005 WI App 81, 280 Wis. 2d 765, 695 N.W.2d 889. In Carini, this court concluded that the immunity statute barred a similar negligence claim where the issue was a question of whether the allegedly negligent cord placement was related to the condition or maintenance of the land. In Leu, this court concluded that two nonprofit snowmobile groups were occupiers of the property such that they qualified as “owners” for purposes of WIS. STAT. § 895.52 immunity. Leu and Carini are distinguishable from the facts of this case and their holdings are not applicable. We are persuaded that the cases that govern the analysis are the Wisconsin Supreme Court’s recent interpretations of the statute in Westmas v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis. 2d 471, 907 N.W.2d 68, and Roberts v. T.H.E. Insurance Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, both decided after Carini and Leu.

Fryed argues that it is entitled to immunity as an “agent” of the Lions Club, the entity that ran the festival. Fryed also argues that it is entitled to immunity as an “occupier” of the property. Applying the tests set forth in Westmas and following our supreme court’s analysis in that case, we conclude that Fryed was not an “agent” for purposes of the recreational immunity statute because “an agent … is subject to reasonably precise control by the principal.” See id., 379 Wis. 2d 471, ¶36. This requires “reasonably precise specifications” from the principal to the “agent,” and “absent ‘reasonably precise specifications’ … there could be neither control nor the right to control the conduct that caused the injury.” See id., ¶¶34, 36 (quoting Showers Appraisals, LLC v. Musson Bros., Inc., 2013 WI 79, ¶37, 350 Wis. 2d 509, 835 N.W.2d 226). Here, as in Westmas, there is no evidence that Fryed “was following [the owner’s] specific directions” when it placed the cords in a pedestrian area—in this case, the cord placement is the “injury-causing conduct.” See id., ¶37. Because there is no evidence of the requisite “reasonably precise specifications,” the owner in this case neither “controlled [n]or had the right to control the details” of Fryed’s work, and there is no dispute that the owner left the “means and methods” for conducting the setup, “including any safety precautions,” to Fryed. See id., ¶¶37, 38, 40 (citation omitted). The analysis set forth in Westmas precludes granting immunity to Fryed as an “agent.”

We also conclude that Fryed was not an “occupier” of the property because “its presence on the property exhibited no ‘degree of permanence, as opposed to mere use.’” Id., ¶¶3, 46. In his capacity as principal of Fryed, Steven Fry was present on the property on Saturday, August 4, 2012, and Sunday, August 5, 2012, only to set up and take down sound equipment for performances. Focusing on the purpose of the statute, our supreme court has, as part of its analysis of a party’s eligibility for immunity, given consideration to whether granting immunity to a party as an “occupier” would “further the policy which underlies the statute.” Id., ¶47. In considering this, the court asks whether the “property was already open for public recreational purposes” and whether, regardless of a party’s immunity, the owner of the property is “protected and would therefore not be discouraged from opening its land to the public.” (quoting Roberts, 367 Wis. 2d 386, ¶35). Fryed had no “effect on whether [the owner’s] property would be open to the public for recreational purposes,” id., ¶48, and had no role in opening the land to the public. Other entities opened the land, and the public would have had access to the land regardless of what contractor set up the sound equipment.

We therefore reverse the trial court’s order and remand for further proceedings.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.C.G.

Case No.: 2018AP464

Officials: BRENNAN, J.

Focus: Termination of Parental Rights

T.C.G. appeals from an order terminating her parental rights to J.M.G., who was born November 23, 2013. She argues that the trial court violated WIS. STAT. § 48.23(2)(b)3. when it proceeded to the dispositional hearing the day it found her in default. For the reasons that follow, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.G.

Case No.: 2018AP835

Officials: BRENNAN, J.

Focus: Termination of Parental Rights

M.G. appeals from a trial court order terminating his parental rights to his daughter, M.W. He argues that the trial court erred in concluding that termination of his parental rights was in the best interest of his daughter because the trial court applied an incorrect legal standard when it stated during the dispositional phase that M.G. did not have a “substantial, parental relationship with [M.W.], and for that reason it would not be harmful to [M.W.] to sever that legal relationship.”

Because we conclude that the record shows that the trial court properly considered the relevant facts, applied the proper standard of law, and reached a conclusion that a reasonable court could reach, we affirm. See Bank Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74, ¶20, 326 Wis. 2d 521, 785 N.W.2d 462.

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WI Court of Appeals – District II

Case Name: Michael R. Wilhelm v. McCoy Contractors, Inc., et al.

Case No.: 2016AP1729

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

Focus: Damage Awards

This case arises from a dispute between Michael R. Wilhelm and his former employer, McCoy Contractors, Inc. (McCoy) over unpaid compensation. Wilhelm appeals from orders dismissing McCoy’s president, Daniel J. McCoy (Daniel), from the case and reducing a jury’s damages award against McCoy. McCoy, meanwhile, cross-appeals from an order awarding attorney fees to Wilhelm.

We conclude that the circuit court properly dismissed Daniel from the case and properly awarded attorney fees to Wilhelm. However, we also conclude that the court erred in reducing the jury’s damages award against McCoy, which may have affected the amount of attorney fees ordered. Therefore, we affirm in part, reverse in part, and remand with directions to reinstate the jury’s damages award and make a new determination of attorney fees.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brittney R. Dixon

Case No.: 2017AP1920-CR

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

Focus: Jury Instructions

Brittney R. Dixon appeals from a judgment convicting her on two counts of homicide by operating a vehicle while having a controlled substance in her blood and one count of bail jumping and from an order denying her postconviction motion. The primary issue is whether the circuit court erred by refusing to instruct the jury about the affirmative defense to the homicide charges under WIS. STAT. § 940.09(2)(a) (2015-16),1 which applies if it is proven the deaths would have occurred even if Dixon had exercised due care and had no controlled substances in her blood. Dixon failed to produce sufficient evidence— even assuming her account of the accident was true—showing the deaths would have occurred had she driven free of negligence and drugs, and she therefore was not entitled to the jury instruction on the affirmative defense. She also contends there was an evidentiary issue warranting reversal. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. John P. Bougneit

Case No.: 2018AP74-CR

Officials: NEUBAUER, C.J.

Focus: Ineffective Assistance of Counsel

John P. Bougneit appeals from his conviction for fourth-degree sexual assault, WIS. STAT. § 940.225(3m), and from an order denying his postconviction motion, in which he asserted his trial counsel provided ineffective assistance when he failed to rehabilitate the credibility of his wife, Melissa Bougneit, who was present at the time of the alleged assault. We conclude that Bougneit has not shown that counsel’s alleged failure was prejudicial in that, even if Melissa had been questioned in the manner he suggests, it is unlikely that the outcome would have been different. We affirm.

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WI Court of Appeals – District IV

Case Name: U.S. Bank Trust, N.A. v. Joseph M. Augelli, et al.

Case No.: 2017AP6

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Foreclosure – Court Error

Joseph M. Augelli appeals a judgment of foreclosure. Augelli argues, in part, that the circuit court erred in granting summary judgment against Augelli because he was not provided adequate notice and opportunity to respond to the movant’s motion for summary judgment. For the reasons discussed below, we agree and, therefore, reverse summary judgment and remand to the circuit court for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jacki L. Rickerman

Case No.: 2017AP1542-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

Jacki L. Rickerman appeals a judgment of conviction for first-degree reckless homicide by delivery of a controlled substance. Rickerman contends that she is entitled to a new trial because, Rickerman asserts, the circuit court erred by: (1) prohibiting Rickerman from cross-examining a State’s witness regarding use immunity granted to the witness as to his testimony; and (2) admitting other acts evidence of Rickerman’s prior possession and sale of heroin. For the reasons set forth below, we reject these contentions and affirm.

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WI Court of Appeals – District IV

Case Name: Security Health Plan of Wisconsin Inc., v. American Standard Insurance Company of Wisconsin, et al.

Case No.: 2017AP1914

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Insurance Claim – Medical Expenses

Security Health Plan of Wisconsin Inc. issues group health insurance plans, and American Family issues automobile insurance policies, in Wisconsin. Forty-two persons who were insured by both Security Health and American Family were involved in separate auto accidents and, as a result, each incurred medical expenses. Security Health paid for most of those medical expenses and sued American Family in the Portage County Circuit Court requesting the following relief: a declaratory judgment that American Family rather than Security Health is required to pay for those medical expenses; and a money judgment for the total amount allegedly owed by American Family to Security Health. American Family filed a motion for summary judgment, and Security Health filed a motion for declaratory judgment. The circuit court granted declaratory judgment in favor of Security Health and a money judgment in the principal amount of $165,799.30 against American Family. American Family appeals and argues that it owes nothing to Security Health for those medical expenses paid by Security Health. We agree with American Family, reverse the order of the circuit court, and remand the matter for judgment to be granted in favor of American Family.

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WI Court of Appeals – District IV

Case Name: Gary Stelpflug, et al. v. Rural Mutual Insurance Company

Case No.: 2018AP34

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Insurance Claim – Breach of Contract

In June 2015, a tornado damaged a barn owned by Chris and Gary Stelpflug. In March 2016, that barn caught fire. After the Stelpflugs’ insurer, Rural Mutual Insurance Company, refused to pay for claims related to the fire, the Stelpflugs sued Rural, alleging breach of contract and bad faith. The Dane County Circuit Court concluded that the breach of contract claim was barred by a twelve-month statute of limitations and, on that basis, dismissed the claim. The Stelpflugs appeal that order, and we reverse.

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WI Court of Appeals – District IV

Case Name: Douglas A. Larson, et al. v. Castle at the Bay, LLC, et al.

Case No.: 2018AP176

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

Focus: Property Dispute – Ownership – Reimbursement of Litigation Costs

This appeal involves a dispute between Douglas Larson and FLS, LLP (collectively, “Larson”), a Sunset Condominiums owner, and the Sunset Condominiums at Northern Bay Owners Association (the Owners Association). Larson seeks reimbursement from the Owners Association for the cost of litigation that Larson contends benefited all Sunset Condominiums owners. The litigation involved Larson commencing an action to establish that Sunset Condominiums owners were the owners of a sewer system that is used by Sunset Condominiums after two neighboring businesses claimed ownership. Following protracted litigation, including a prior appeal, see Larson v. Castle at the Bay, LLC, No. 2014AP895, unpublished slip op. ¶1 (WI App Dec. 11, 2014), Larson prevailed and obtained a declaration that Sunset Condominiums owners are the exclusive owners of the sewer system. Larson then moved for an order directing the Owners Association to reimburse him for litigation costs. The circuit court denied that request, and Larson appeals. We affirm the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Thomas R. Napierala

Case No.: 2018 WI 101

Focus: Attorney Disciplinary Hearing

We review the report filed by Referee Kim M. Peterson, adopting a stipulation between the Office of Lawyer Regulation (OLR) and Attorney Thomas R. Napierala. The referee agreed that Attorney Napierala committed three counts of misconduct, as alleged in the OLR’s complaint. The referee further agreed with the parties that a public reprimand is an appropriate level of discipline for Attorney Napierala’s misconduct, that Attorney Napierala should be ordered to pay restitution in the amount of $15,021.66 to a former client, T.A, and should be assessed the full costs of the proceeding, which are $1,677.53 as of August 14, 2018.

After careful review of the matter, we conclude that the referee’s findings of fact are supported by clear, satisfactory, and convincing evidence. We adopt the referee’s conclusions of law. We agree that the appropriate discipline for Attorney Napierala’s misconduct is a public reprimand, and we agree that Attorney Napierala should pay restitution to T.A., and bear the full costs of this proceeding.

Affirmed

Concur:

Dissent:
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