Weekly Case Digests – December 24 – December 28, 2018

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: W.A. Griffin, M.D. v. TeamCare, et al.

Case No.: 18-2374

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

Focus: ERISA – Penalties

W.A. Griffin, M.D., is the assignee of her patient’s health plan, TeamCare, which the Board of Trustees of Central States, Southeast and Southwest Areas Health and Welfare Fund (collectively Central States) administers and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001–1461, governs. Dr. Griffin sued Central States for underpayment and for statutory penalties based on its failure to furnish plan documents upon request. The district court dismissed her complaint. However, because we find that Dr. Griffin adequately alleged that she is eligible for additional benefits and statutory damages, we affirm the judgment only as to Count, vacate the judgment as to Counts 1 and 3, and remand Counts 1 and 3 for further proceedings.

Affirmed in part. Vacated and Remanded in part.
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7^th Circuit Court of Appeals

Case Name: William McCann, et al. v. William E. Brady

Case No.: 18-2175

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

Focus: 1^st Amendment Violation

This case takes us deep into the internal workings of the Illinois State Senate. After Senate Minority Leader William E. Brady (a Republican) decided to oust William (“Sam”) McCann from the Illinois Senate Republican Caucus and thereby to deny certain resources to McCann, McCann and one of his constituents, Bruce Mcdaniel, sued Brady under 42 U.S.C. § 1983 for alleged deprivations of their rights under the First Amendment and the Equal Protection Clause of the federal Constitution. Brady responded with a motion to dismiss on the basis of legislative immunity. The district court agreed that this doctrine blocks all of McCann and Mcdaniels’s theories and dismissed the case. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Nicole Bogart, et al. v. Vermilion County, Illinois, et al.

Case No.: 18-1719

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

Focus: 1^st Amendment Violation

Nicole Bogart, a Democrat, worked as the Financial Resources Director of Vermilion County, Illinois, but her tenure ended when Michael Marron, a Republican, assumed control of the County Board and fired her. She responded by bringing claims under the First Amendment and Equal Protection Clause, alleging that Vermilion County and Marron violated her right of political affiliation and engaged in political retaliation. The district court dismissed the equal protection claim as duplicative of the First Amendment claim, and, after finding that the substantial fiscal and budgetary responsibilities of Bogart’s position fit within the Elrod-Branti exception to political patronage dismissals, granted summary judgment for the defendants on her First Amendment claim. We affirm.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Gwendolyn Jackson

Case No.: 17-3350

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

Focus: Sentencing Guidelines

Gwendolyn Jackson was convicted in the United States District Court for the Northern District of Illinois on charges arising out of a scheme to defraud mortgage lenders. Specifically, a jury found her guilty of two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. The district court sentenced Ms. Jackson to 112 months’ imprisonment on each of her three counts, to be served concurrently. It also imposed concurrent three‐year terms of supervised release, along with a $300 special assessment and restitution in the amount of $8,515,570.

Ms. Jackson appealed her conviction and her sentence. We affirmed the conviction but vacated the sentence. United States v. Jackson, 787 F.3d 1153, 1161 (7th Cir. 2015). With respect to sentencing, we held that the district court erroneously applied the obstruction‐of‐justice enhancement, given its finding that Ms. Jackson did not commit perjury at trial. Id. at 1160. At resentencing, the district court removed the obstruction‐of‐justice enhancement and imposed a new sentence of 100 months’ imprisonment. It did not change the remaining elements of the sentence: Ms. Jackson also received concurrent three‐year terms of supervised release, a $300 special assessment, and restitution in the amount of $8,515,570.

We review allegations of procedural error in a district court’s imposition of supervised release conditions de novo. United States v. Moore, 788 F.3d 693, 696 (7th Cir. 2015). Ms. Jackson submits, and the Government agrees, that the district court erred when it imposed a supervised release condition in the written judgment that was not orally announced at sentencing.

We have held that when “an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls.” United States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (quoting United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998)). This rule includes conditions of supervised release. See United States v. Kappes, 782 F.3d 828, 862–63 (7th Cir. 2015); United States v. Johnson, 765 F.3d 702, 711 (7th Cir. 2014). Because the notification condition here was not pronounced from the bench, it must be vacated.

Therefore, Ms. Jackson’s sentence is VACATED, and we REMAND to the district court so that it may enter a corrected judgment without the supervised release condition that Ms. Jackson notify a probation officer within seventy‐two hours of being arrested or questioned by a law enforcement officer.

Vacated and Remanded
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7^th Circuit Court of Appeals

Case Name: Robert W. Huber, Jr., v. Gloria Anderson, et al.

Case No.: 17-1302

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

Focus: Sentencing – Probation

In 1988, Robert W. Huber, Jr., pleaded guilty to making fraudulent credit card charges in the amount of $800. He spent the next 25 years either on probation or in prison for violating the terms of his probation. Yet Wisconsin had no lawful basis for extending his sentence beyond November 3, 1995. It took the state until 2014 to recognize this problem and to vacate his ongoing sentence.

After his release, Huber filed this action. He sued several state officials for his prolonged sentence                                    and related wrongs. The district court granted the defendants’ motion for summary judgment, ruling that Huber had failed to bring most claims within six years of their accrual, as was then required under Wisconsin’s statute of limitations. The court ruled that some of Huber’s claims were timely, but it granted the defendants summary judgment on the merits of those claims. We conclude that Huber’s claims were timely and that summary judgment was premature on those that the district court reached. We therefore reverse in part, vacate in part, and remand for further proceedings.

Reversed in part. Vacated and remanded in part.
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7^th Circuit Court of Appeals

Case Name: Lebamoff Enterprises, Inc., et al v. Bruce V. Rauner, et al.

Case No.: 17-2495

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

Focus: 21^st Amendment Violation

The Twenty-first Amendment to the U.S. Constitution brought Prohibition to an end with a compromise: section 1 repeals the Eighteenth Amendment, but section 2 hands some power back to the states insofar as it forbids the “transportation or importation” of liquor into a state in violation of that state’s law. This post-Prohibition compromise gives the states greater leeway to regulate alcoholic beverages than they enjoy with respect to any other product. But the Supreme Court has decided that this leeway is not boundless. Drawing lines that are sometimes difficult to follow, it has decreed that states may not infringe upon other provisions of the Constitution under the guise of exercising their Twenty-first Amendment powers.

It is quite possible that the Court’s disposition of Tennessee Wine will affect the issue now before us. But the question in that case differs from the one now before us, and these differences often matter to the analysis. Our case involves the ability of companies to ship alcoholic beverages to consumers in Illinois; it does not directly address licensure for retail or wholesale establishments. Illinois allows retailers with an instate physical presence to ship alcoholic beverages to consumers anywhere within Illinois. The state refuses, however, to give out-of-state businesses the opportunity even to apply for a similar shipping license. The plaintiffs argue that this difference in treatment violates the Commerce Clause and Privileges and Immunities Clause of the Constitution. Illinois responds that these restrictions fall within its reserved powers under the Twenty-first Amendment and in any event are necessary to protect its legitimate interests in the health and wellbeing of Illinois residents. The district court accepted Illinois’s reasoning and dismissed the case with prejudice. We conclude that it was too quick to do so in the face of material contested issues about the necessity for and justifications behind the Illinois statute. We therefore reverse, but with the caveat that there are other aspects of the Illinois law—not before us at present—that will be difficult for plaintiffs to surmount if Tennessee Wine does not come out in their favor.

Reversed and Remanded
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7^th Circuit Court of Appeals

Case Name: Jerry L. Lewis v. Robert Wilkie

Case No.: 18-1702

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

Focus: EEOC Claim – Retaliation

Jerry Lewis is an employee of the United States Department of Veterans Affairs (the “Agency”). Lewis worked as a cook in the Nutrition and Food Service Department from December 2008 until September 2009 and then again from December 2013 until April 2015. The four‐year gap in employment from 2009 to 2013 occurred because Lewis was terminated and then, after a successful Equal Employment Opportunity (EEO) complaint, was reinstated to his former position.

Lewis alleges that upon reinstatement he faced retaliation from the Agency and two supervisors for his EEO activity. The district court granted summary judgment to the Agency, holding in part that none of the alleged retaliatory actions constituted a materially adverse action. We agree with the district court’s thorough analysis and conclusion and affirm the judgment.

Affirmed
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7^th Circuit Court of Appeals

Case Name: United States of America v. Ricky Hatch

Case No.: 18-1282

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

Focus: Sentencing Guidelines

Ricky Hatch pleaded guilty to trafficking firearms from Indiana into Chicago. See 18 U.S.C. §§ 922(a)(3), 924(a)(1)(D). The district judge sentenced him above the Sentencing Guidelines’ recommended range. The judge reasoned that the rise of gun violence in Chicago meant that the Sentencing Guidelines did not adequately reflect the seriousness cause the judge may depart from the Guidelines based on locality-specific factors, we affirm the judgment.

Affirmed
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7^th Circuit Court of Appeals

Case Name: W.A. Griffin, M.D. v. TeamCare, et al.

Case No.: 18-2374

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

Focus: ERISA – Damages

W.A. Griffin, M.D., is the assignee of her patient’s health plan, TeamCare, which the Board of Trustees of Central States, Southeast and Southwest Areas Health and Welfare Fund (collectively Central States) administers and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001–1461, governs. Dr. Griffin sued Central States for underpayment and for statutory penalties based on its failure to furnish plan documents upon request. The district court dismissed her complaint. However, because we find that Dr. Griffin adequately alleged that she is eligible for additional benefits and statutory damages, we affirm the judgment only as to Count 2, vacate the judgment as to Counts 1 and 3, and remand Counts 1 and 3 for further proceedings.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Seventh Avenue, Inc. v. Shaf International, Inc.

Case No.: 18-1829

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

Focus: Court Error – Abuse of Discretion

We review a district court’s decision to hold a corporation in contempt of a consent judgment when its outside counsel failed to respond to a motion alleging a violation of the judgment and to appear at a hearing on the motion. All of this was unfortunate and avoidable—the product of a communication breakdown between the company’s local counsel and national counsel and a lack of attention to email notifications from the district court of the contempt motion, briefing schedule, and hearing date. We cannot say the district court abused its discretion in entering the contempt order and requiring the company to pay its adversary’s fees and costs.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Valerie McCann, et al. Ogle County, Illinois, et al.

Case No.: 17-3139

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

Focus: Estate – Sufficiency of Evidence

Patrick McCann died from a doctor’s over-prescription of methadone while detained and awaiting trial at the Ogle County Correctional Center. His estate brought suit under 42 U.S.C. § 1983 against Ogle County and a host of county officials and other individuals, including the doctor and nurse who cared for McCann while he was incarcerated, alleging deliberate indifference to McCann’s severe burn wounds and related medical needs. After the treating physician and his private employer settled the claims against them, the district court entered summary judgment for the remaining defendants, concluding that the evidence did not show that any individual defendant acted with deliberate indifference in treating McCann.

Since the district court’s decision, this court decided Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018), replacing deliberate indifference with a standard requiring a showing of objective reasonableness for a claim challenging the medical care provided to a pretrial detainee like McCann. Measuring the record evidence under this new standard, we affirm the district court’s award of summary judgment to the individual defendants. So, too, do we affirm the district court’s determination that the record evidence did not support a claim for municipal liability against Ogle County under Monell v. Dep’t of Social Services of New York, 436 U.S. 658 (1978).

Affirmed
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7^th Circuit Court of Appeals

Case Name: Akeem Daniels, et al.  v. Fanduel, Inc., et al.

Case No.: 17-3051

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

Focus: Statutory Interpretation

Three former college football players contend that online fantasy-sports games violate their statutory right of publicity under Indiana law. The proprietors of these games reply that two exceptions, Ind. Code §32-36-1-1(c)(1)(B), (c)(3), permit them to use players’ names, likenesses, and statistics without compensation. The district court, agreeing with that argument, dismissed the suit on the pleadings. 2017 2017 U.S. Dist. LEXIS 162563 at *6-25 (S.D. Ind. Sept. 29, 2017). We certified this question to the Indiana Supreme Court:

Whether online fantasy-sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both. The state court’s answer to the certified question did not say, or imply, that there is an extra-textual exception for gambling. Nor did the Indiana Supreme Court suggest that the defendants’ activities violate the state’s anti-gambling laws.

What the state court did hold is that the use of the plaintiffs’ names, pictures, and statistics comes within the statutory exception for material of “newsworthy value”. It suggested one possible exclusion from this exception: using the plaintiffs’ names (etc.) in a way that implied their endorsement of the defendants’ games. Plaintiffs do not ask us to remand so that the district court can explore that subject. Instead they want a remand so that they can argue that the defendants’ entire business model is criminal and that the state judiciary would not apply the statutory “newsworthy value” exception to criminal activities. That is not a question for the district court, however; it was a question for the Indiana Supreme Court, which could have articulated such an exception but did not.

We have nothing to say on the question whether the business of FanDuel or DraftKings violates Indiana’s criminal laws. If a state prosecutor brings such charges, the answer will be for the state judiciary. Because plaintiffs have not tried to take advantage of the opening the state judiciary left them under the right-of-publicity statute, this civil suit is over.

Affirmed
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7^th Circuit Court of Appeals

Case Name: Frances L. Rogers v. Commissioner of Internal Revenue

Case No.: 17-3358

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

Focus: Tax Deficiency – Innocent Spouse Relief

A married couple’s choice to file a joint federal income tax return results in both individuals assuming full liability for any owed tax. Frances Rogers and her husband John did so for 2004. When the Internal Revenue Service subsequently found the return deficient, the Rogers’ pushed back, ultimately took the IRS to trial, and lost. Frances Rogers, a former teacher with an MBA, doctorate, and law degree, attended the trial. Three years later, and facing a substantial tax deficiency and related penalties, Mrs. Rogers sought so-called innocent spouse relief under the Internal Revenue Code. The Tax Court rejected the claim, finding that Mrs. Rogers’s meaningful participation in the trial precluded her from after-the-fact seeking to avoid responsibility for those liabilities.

On appeal Mrs. Rogers contends that a disclosure violation by the IRS should have precluded the Tax Court from considering the Commissioner’s argument that she was barred from seeking innocent spouse relief. As Mrs. Rogers would have it, the IRS was bound under provisions in its Internal Revenue Manual to notify her before the 2012 trial of her right to request innocent spouse relief. That it failed to do so, she contends, means that the Tax Court should not have permitted the Service to invoke the meaningful participation bar in § 6015(g)(2).

We cannot agree. Even assuming that Mrs. Rogers could establish that she did not receive a particular disclosure, she has identified no authority that a disclosure shortcoming precluded the Service from taking the position that she was not entitled to innocent spouse relief. See Matter of Carlson, 126 F.3d 915, 922 (7th Cir. 1997) (explaining that the “procedures in the Internal Revenue Manual are intended to aid in the internal administration of the IRS; they do not confer rights on taxpayers”). This argument need not detain us further.

The Tax Court stood on solid ground when rejecting Mrs. Rogers’s position. See Frierdich v. Comm’r, 925 F.2d 180, 185 (7th Cir. 1991) (explaining that the Tax Court is not required to accept a taxpayer’s testimony as absolute fact). Credibility matters. This principle applies with particular force where, as here, the taxpayer’s testimony is self-serving and at odds with her education and experience.

The Tax Court also found that Mrs. Rogers’s participation through her counsel, an experienced tax attorney, in the prior Tax Court proceedings indicated she participated meaningfully. Based on our review of the record, we cannot say any of these findings reflect clear error.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Juan Zamudio

Case No.: 18-1529

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

Focus: Court Error – Motion to Suppress Evidence Granted

A grand jury returned a third superseding indictment charging defendant Juan Zamudio with participating in a drug‐trafficking conspiracy after law enforcement executed a search warrant at his home seizing approximately 11 kilograms of methamphetamine, a loaded gun, and a cell phone used to make intercepted calls, among other items. Prior to trial, the district court granted Zamudio’s motion to suppress the seized items. The government brings this interlocutory appeal arguing that the district court erred in granting Zamudio’s motion to suppress the evidence seized at Zamudio’s home pursuant to a search warrant. We agree and reverse.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Doug Taylor v. City of Lawrenceburg, et al.

Case No.: 17-2803

Officials: SYKES and HAMILTON, Circuit Judges, and LEE, District Judge.

Focus: Wrongful Termination – Whistleblower-protection

The appellant, Doug Taylor, claims that the Board of Public Works and Safety of the City of Lawrenceburg (“the Board”) terminated his employment with the City because of his disagreements with the Mayor and exposure of purported wrongdoing by City officials. Seeking redress, Taylor filed suit against the City, members of the Board, and several City officials, bringing a claim of First Amendment retaliation pursuant to 42 U.S.C. § 1983. Taylor also asserted state law claims of defamation, violation of free-speech rights under the Indiana constitution, and violation of Indiana’s whistleblower statute. The district court entered summary judgment in the City’s favor as to Taylor’s claims. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Angela Riley v. City of Kokomo, et al.

Case No.: 17-1701

Officials: SYKES and HAMILTON, Circuit Judges, and LEE, District Judge.

Focus: FMLA Violation – Retaliation Claim 

Angela Riley worked for the Kokomo Housing Authority for eight years before she was terminated in May 2014. During her employment, Riley suffered from seizures, anxiety disorder, post-traumatic stress disorder, bipolar disorder, and depression, which required her to take various leaves of absence. She now claims that the housing authority improperly denied her requests for medical leave and retaliated against her for these requests by disciplining and terminating her, all in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. She also asserts that the housing authority failed to make reasonable accommodations and discriminated and retaliated against her in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Finally, Riley claims that she was subjected to retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Fair Housing Act, 42 U.S.C. § 3617.

The district court entered summary judgment in favor of the housing authority on all claims. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael A. Cefalu

Case No.: 2017AP1193-CR

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

Focus: Sufficiency of Evidence

Following a bench trial, Michael Cefalu was convicted of attempted theft by fraud, as a party to the crime, of property worth over $5000 but not more than $10,000. Cefalu now appeals his judgment of conviction, along with an order denying his motion for reconsideration of the guilty verdict. He argues the evidence at trial was insufficient to support his conviction, and he also contends the circuit court improperly determined that the value of the property in question exceeded $5000. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Laona State Bank v. Blake Bocek, et al.

Case No.: 2017AP1659

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

Focus: Foreclosure

Laona State Bank (the Bank) appeals a judgment dismissing its foreclosure claim against Blake and Holly Bocek. While Blake was a minor, Holly was appointed as his special guardian. The letters of special guardianship granted Holly a single power: to obtain a mortgage loan on real estate that had been transferred to Blake for the purpose of improving the property. We agree with the circuit court that the Bank has failed to demonstrate compliance with the provisions of WIS. STAT. ch. 786 (2015-16), relating to the disposition of a ward’s real property. Accordingly, the court properly concluded the mortgage was invalid and dismissed the foreclosure action. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. M.L. Powell

Case No.: 2017AP1676-CR

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

Focus: Postconviction Motion Denied

Powell appeals a judgment of conviction and an order denying postconviction relief. Powell claims he was denied his right to self-representation at trial. We conclude that Powell’s request to represent himself was not clear and unequivocal, and, in any event, it was untimely. We therefore affirm.

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WI Court of Appeals – District III

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

Case No.: 2017AP1870-CR

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

Focus: Abuse of Discretion – Other Acts Evidence – Prior Consistent Statements

Brian Degorski appeals a judgment, entered upon a jury’s verdict, convicting him of repeated sexual assault of a child. Degorski argues the circuit court erroneously exercised its discretion by admitting other acts evidence and testimony concerning prior consistent statements the victim made to a sheriff’s deputy. We reject Degorski’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: Tankstar USA, Inc., et al. v. Navistar, Inc., et al.

Case No.: 2017AP1907

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

Focus: Breach of Contract – Fraudulent Inducement Claims

Tankstar USA, Inc. (“Tankstar USA”), Bulk Logistics, Inc. (“Bulk”), Schwerman Trucking Company (“Schwerman”), North American Bulk Transport, Inc. (“North American”), and Rogers Cartage Company (“Rogers”) (collectively, “Tankstar”) appeal a summary judgment granted in favor of Navistar, Inc. (“Navistar”) and Lakeside International Trucks, Inc. (“Lakeside”). The judgment was granted on Tankstar’s breach of contract and fraudulent inducement claims relating to its purchase of seventy-nine ProStar semi-trailer trucks manufactured by Navistar and purchased from Lakeside.

Tankstar argues the circuit court erred in granting summary judgment on its fraudulent inducement claim against Lakeside on the basis that Tankstar lacks an available remedy for any alleged fraud. We agree with the circuit court that Tankstar’s subsequent conduct in selling the trucks and instituting the present action for contract-based damages had the effect of affirming the contract, thereby precluding Tankstar from seeking restitutionary damages associated with a rescission of its contracts with Lakeside. Because Tankstar has no breach of contract claim against Lakeside, the circuit court properly dismissed Tankstar’s fraudulent inducement claim.

Tankstar also argues the contractual “repair and replace” remedy Navistar offered in its various warranties failed of its essential purpose because several trucks required repeated engine repairs. As a result, Tankstar asserts it is entitled to the full panoply of remedies available under the Uniform Commercial Code (“U.C.C.”), including consequential damages. We agree with the circuit court that Tankstar has failed to present evidence that would permit a reasonable factfinder to conclude that, as to the entire batch of trucks, the “repair and replace” remedy has categorically failed due to the alleged design defects. We also observe that aside from its categorical claim, Tankstar makes no effort to argue or demonstrate that any individual truck or trucks suffered from such frequent and repeated repairs that Tankstar was deprived of an effective contract remedy. We therefore conclude that Tankstar was limited to its contractual remedies against Navistar. We affirm the circuit court in all respects.

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WI Court of Appeals – District III

Case Name: Joshua W. Balde v. Olivia L. Haas

Case No.: 2017AP2173

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

Focus: Insurance Claim – Coverage

Wisconsin Mutual Insurance Company (Wisconsin Mutual) appeals a summary judgment dismissing Mt. Morris Mutual Insurance Company (Mt. Morris) from a lawsuit involving a utility task vehicle (UTV) accident that allegedly caused injuries to a passenger, Joshua Balde. The issue on appeal involves the definition of an “insured” under Mt. Morris’ policy of insurance. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Frederick Eugene Walker

Case No.: 2018AP186-CR

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

Focus: Postconviction Motion Denied

Frederick Eugene Walker appeals from a judgment of conviction, entered on a jury verdict, of repeated sexual assault of T.C.B. between November 2011 and September 2012, when she was under sixteen years old. He also appeals the order denying his postconviction motion.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. David M. Minnick

Case No.: 2017AP1308

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

Focus: Ineffective Assistance of Counsel

David Minnick appeals from a circuit court order denying his WIS. STAT. § 974.06 (2015-16) motion alleging ineffective assistance of postconviction counsel. We affirm the circuit court.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samson J. Gomoll

Case No.: 2017AP2242-CR

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

Focus: Ineffective Assistance of Counsel

Samson J. Gomoll appeals from a judgment of conviction entered after a jury found him guilty of first-degree intentional homicide for the shooting death of his girlfriend, S.S., and from an order denying his motion for postconviction relief. The issue at trial was whether Gomoll was acting in self-defense. Gomoll argues that he was denied effective assistance of counsel, that the circuit court erroneously denied relevant witness testimony, and that the court’s denial of his motion for resentencing was an erroneous exercise of discretion. We reject Gomoll’s claims and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Noah Yang

Case No.: 2018AP1461-CR

Officials: GUNDRUM, J.

Focus: Postconviction Motion Denied

Noah Yang appeals from a judgment of conviction and the denial of his motion for postconviction relief. He asserts that there was not a sufficient factual basis for his plea to the charge of intimidation of a witness. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeLorean Latrell Bryson

Case No.: 2016AP2318-CR

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

Focus: Court Error – Jury Instructions

Delorean Latrell Bryson appeals a judgment of conviction for first-degree reckless homicide with a dangerous weapon and a circuit court order denying his postconviction motion for a new trial. Bryson argues that the court erred in declining to instruct the jury on the privilege of defense of others. We reject Bryson’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Damian Berg v. Bradley Maxfield, M.D.

Case No.: 2017AP1448

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

Focus: Medical Negligence Claim

Damian Berg appeals an order of the circuit court dismissing on summary judgment his medical negligence claim against Dr. Bradley Maxfield. Berg contends that the circuit court should have given him additional time to investigate Dr. Maxfield’s liability and permission to name an additional expert before ruling on Dr. Maxfield’s summary judgment motion. For the reasons explained below, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Allen Schnepf

Case No.: 2017AP1776

Officials: HRUZ, J.

Focus: Summary Judgment – Issue of Material Fact

Allen Schnepf appeals a judgment imposing civil forfeitures and injunctive relief after he was found liable for discharging fill material into a wetland without a certification of compliance with state water standards. On appeal, Schnepf argues summary judgment was improper for several reasons. Generally, he contends the State failed to establish a prima facie case for summary judgment; alternatively, he argues that his own submissions established a genuine dispute of material fact. We affirm.

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WI Court of Appeals – District IV

Case Name: Lamar Central Outdoor, LLC, et al. State of Wisconsin Division of Hearing & Appeals

Case No.: 2017AP1823

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

Focus: Statutory Interpretation

In 1999, Lamar Central Outdoor, LLC acquired an outdoor advertising sign that is located adjacent to an interstate highway. At that time, the sign was legal but nonconforming under Wisconsin law. Several years after acquiring the sign, Lamar put extension panels on the sign which added to the previous area of signage. In 2012, the Wisconsin Department of Transportation determined that the entire sign must be removed because Lamar’s enlargement of the sign caused it to lose its nonconforming status and become an illegal sign subject to removal. After a contested case hearing, the Division of Hearings and Appeals (DHA) affirmed the Department’s order to remove the sign. The Portage County Circuit Court affirmed the DHA decision, and Lamar appeals. We agree with the Department that the sign is illegal under Wisconsin law and affirm the order to remove the sign.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Dustin Charles Yenter

Case No.: 2017AP2253

Officials: LUNDSTEN, P.J.

Focus: OWI – Defense of Coercion

Dustin Yenter appeals a judgment of conviction for operating while under the influence of an intoxicant and operating with a prohibited alcohol concentration, both as a first offense. Yenter contends that he was entitled to raise the defense of coercion pursuant to State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982), and that he alleged sufficient facts to present the defense to a jury. I will assume, for purposes of this opinion, that the defense of coercion may be raised as a defense to the citations in this case. However, I agree with the circuit court that, at the time the court ruled on this topic, the facts presented to the court did not support a reasonable finding that a person in Yenter’s position would have reasonably believed that violating the law was the only means of preventing bodily harm to himself or to those people with him. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Mickey Owen, et al. v. Michael Kozlowski, et al.

Case No.: 2018AP290

Officials: Blanchard, Sherman, and Kloppenburg, JJ.

Focus: Estate – Trust Beneficiary

Mickey Owen appeals the circuit court’s judgment determining that Mickey is not a beneficiary of the Patsy L. Kozlowski Survivor’s Trust. He argues that, read in light of the surrounding circumstances, a Will executed by Patsy Kozlowski amended the Trust to include Mickey as a beneficiary. In the alternative, he argues that extrinsic evidence shows that Patsy intended to include Mickey as a beneficiary of the Trust.

We conclude that the Will, read in light of the surrounding circumstances, is ambiguous because it is unclear as to what benefits Patsy intended Mickey to receive under the Will. We also conclude that the circuit court’s determination that Patsy did not intend to use the Will to include Mickey as a beneficiary of the Trust is not against the great weight and clear preponderance of the extrinsic evidence presented at trial. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Pao Chang

Case No.: 2017AP1922-CR

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

Focus: Ineffective Assistance of Counsel

Pao Chang appeals a judgment, entered upon his no-contest pleas, convicting him of trafficking of a child and human trafficking, both as repeaters. He also appeals an order denying him postconviction relief. Chang contends that he is entitled to plea withdrawal based on the ineffective assistance of two of his trial attorneys. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Sacred Heart Hospital of the Hospital Sisters of the Third Order of St. Francis v. Marshfield Clinic Health System, Inc. et al.

Case No.: 2017AP1998

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

Focus: Motion for Temporary Injunction Denied

Sacred Heart Hospital of the Hospital Sisters of the Third Order of St. Francis (“Sacred Heart”) appeals an order denying its motion for a temporary injunction and a grant of summary judgment in favor of Marshfield Clinic Health System, Inc. (“MCHS”); Marshfield Clinic, Inc. (“Marshfield Clinic”); and MCHS Hospitals, Inc. (“MCHS Hospitals”) (collectively, the “Marshfield Entities”). Sacred Heart argues the circuit court erred by dismissing its claims for breach of a right of first refusal and of a land use restriction associated with lands Sacred Heart sold to Marshfield Clinic at various times. Sacred Heart also challenges the dismissal of its claim for breach of the implied duty of good faith and fair dealing and the denial of its motion for a temporary injunction. We reject each of its arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brian M. Smits

Case No.: 2017AP2141-CR

Officials: STARK, P.J.

Focus: Due Process Violation

Brian Smits appeals a judgment convicting him of two counts of obstructing an officer and an order denying his motion for postconviction relief. Smits argues the circuit court erred by permitting the State to amend the complaint after the close of evidence to add a second obstructing charge. We conclude the court properly exercised its discretion by permitting the amendment, and the amendment did not violate Smits’ right to due process. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Mary Zehowski v. Timothy C. Peterson, Sr.

Case No.: 2017AP2314

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

Focus: Divorce – Property Division

Mary Zehowski appeals a divorce judgment that terminated her marriage to Timothy Peterson. She contends, for various reasons, that the circuit court erroneously exercised its discretion when dividing the parties’ property. We reject Zehowski’s arguments, with two exceptions. Specifically, we agree with Zehowski that the circuit court erred by including her premarital Target 401(k) in the property division, and by failing to include the value of Peterson’s wedding ring. We therefore affirm the divorce judgment in part, reverse in part, and remand for the circuit court to re-equalize the property division after excluding Zehowski’s Target 401(k) and including the value of Peterson’s wedding ring.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lorenzo D. Kyles

Case No.: 2018AP296-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Lorenzo D. Kyles appeals his judgment of conviction, entered upon his guilty plea for first-degree reckless homicide, and an order denying his motion for postconviction relief. Kyles claims that he received ineffective assistance from his trial counsel when counsel failed to convey an earlier—and allegedly more favorable—plea offer to resolve his case.

The postconviction court found that the “theoretical possibility” that the earlier plea offer could have resulted in a reduced sentence for Kyles was insufficient to demonstrate that Kyles had been prejudiced by the error, as required under an ineffective assistance of counsel analysis. We agree and affirm.

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WI Court of Appeals – District IV

Case Name: Veritas Steel, LLC v. Lunda Construction Company, et al.

Case No.: 2017AP822

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Successor Liability and Fraudulent Transfer Claims

Lunda Construction Company appeals the circuit court’s dismissal, on summary judgment, of two sets of claims made by Lunda: a successor liability claim against Veritas Steel, LLC, and fraudulent transfer claims against Veritas, Atlas Holdings, LLC, Bridge Resources, LLC, Alan Sobel, and Matthew Cahill. Both sets of claims are based on Lunda’s allegation that Veritas and related entities structured a purchase of all of the assets of PDM Bridge, LLC, in exchange for inadequate consideration, and that this prevented Lunda from satisfying a judgment that Lunda had secured against PDM.

Applying controlling precedent of our supreme court, we affirm the court’s summary judgment dismissing the successor liability claim. See Fish v. Amsted Indus. Inc., 126 Wis. 2d 293, 376 N.W.2d 820 (1985). Under this precedent, both the “de facto merger” and “mere continuation” exceptions to the general rule against successor liability require concrete evidence showing an “identity of ownership” common to seller and buyer, and there is no such evidence here. Lunda asks us to broaden these exceptions, effectively creating a new exception to the rule against successor liability. This would be a new direction for our supreme court alone to chart.

We also affirm the court’s summary judgment dismissing the fraudulent transfer claims against the Veritas entities on the ground that Lunda implicitly concedes that the asset transfer that it challenges cannot be “voidable” under pertinent statutes because the transfer resulted from the enforcement of security interests. We affirm dismissal of the claims against Sobel and Cahill because Lunda provides no evidence creating a genuine issue of material fact that PDM failed to receive value for the bonuses they received.

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WI Court of Appeals – District IV

Case Name: James C. Bourne, et al. v. Melli Law, S.C., et al.

Case No.: 2017AP1166

Officials: Sherman, Blanchard, and Kloppenburg, JJ.

Focus: Malpractice – Negligence – Statute of Limitations

This appeal follows a jury trial involving two, related legal malpractice actions. In one action, James Bourne and Madison Homes, Inc. (Bourne) sued Philip Bradbury and Melli Law, S.C. (Bradbury), alleging that Bradbury negligently represented Bourne in connection with Bourne’s taking a buy-out of his membership in a company. In the other action, Bourne sued the law firm Hinshaw & Culbertson, alleging that Hinshaw missed the statute of limitations deadline in commencing Bourne’s malpractice action against Bradbury. The circuit court consolidated the two malpractice actions for purposes of a jury trial to resolve one issue common to both: whether Hinshaw failed to serve Bradbury with the summons and complaint in Bourne’s action against Bradbury before the statute of limitations barred the action. The jury found that Hinshaw met the statute of limitations deadline. As a result of this verdict, the court entered a non-final order stating that Bradbury could not use the statute of limitations as a defense in subsequent litigation between Bourne and Bradbury. We granted leave to appeal and Bradbury appeals.

Bradbury argues that the circuit court erred by deciding to consolidate the two malpractice actions for purposes of the statute of limitations trial and in using certain language for the special verdict form, which was based on a pattern instruction. Bradbury also argues that the court erroneously exercised its discretion in: denying his motions for mistrial and to withdraw from a stipulation to hold the statute of limitations trial, based on Bradbury’s position that Bourne and Hinshaw both pursued an improper “trial strategy”; denying Bradbury’s motions for mistrial or continuance, based on use of exhibits not identified as exhibits before trial; setting the order of proof at trial; and admitting statements that Bradbury contends are hearsay. Bradbury requests that we reverse and remand “for further proceedings regarding all issues,” including a retrial on the statute of limitations issue.

We conclude that the circuit court properly consolidated the two actions, consistent with WIS. STAT. § 805.05 (2015-16), for the limited purpose of resolving the statute of limitations issue, and that the pattern special verdict form that the court gave accurately conveyed the pertinent law to the jury.  We further conclude that the court did not erroneously exercise its discretion in denying Bradbury’s motion relating to “trial strategy” pursued by Bourne and Hinshaw, allowing into evidence exhibits not specifically identified before trial, setting the order of proof, and admitting the alleged hearsay statements. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: Robert D. Stewart v. Estate of Robert T. Stewart, et al.

Case No.: 2017AP1564

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

Focus: Estate – Gravel Pit Rent

Robert D. Stewart (hereafter Bobby) appeals from a circuit court order setting his obligation for accrued rent on a gravel pit he leased from the decedent, his father Robert T. Stewart. The circuit court also determined that Bobby’s brother, Ronald Stewart, did not owe rent for the time Ronald lived in a residence owned by the decedent. We affirm the circuit court’s determination that Bobby owed gravel pit rent to the estate as calculated by the circuit court. However, we reverse that portion of the circuit court’s order relieving Ronald of residential rent because Ronald has not contested arguments made in this court by Bobby and the estate that the court erroneously absolved him of rent. We remand to the circuit court for further proceedings relating to Ronald’s rent obligation.
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WI Court of Appeals – District II

Case Name:  State of Wisconsin v. D.L.L.

Case No.: 2018AP1064-FT

Officials: GUNDRUM, J.

Focus: Motion for Reconsideration Denied

D.L.L. appeals from the juvenile court’s order denying his motion for reconsideration. For the following reasons, we reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kathryn M. Cooper

Case No.: 2018AP1154-CR

Officials: FITZPATRICK, J.

Focus: OWI – 3^rd Offense

Kathryn Cooper appeals from a judgment of conviction entered in the Portage County Circuit Court for operating a motor vehicle while intoxicated, as a third offense, in violation of WIS. STAT. § 346.63(1)(a). Cooper argues that evidence gathered during police officers’ warrantless search, and the test result from a blood draw, should have been suppressed because Cooper did not consent to either the search or the blood draw. I disagree and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v Gerald P. Boyle

Case No.: 2018 WI 108

Focus: Attorney Disciplinary Hearing

We review Referee Jonathan V. Goodman’s report recommending that we indefinitely suspend the Wisconsin law license of Gerald P. Boyle due to his medical incapacity, and hold the pending disciplinary proceeding against him in abeyance for as long as his license remains suspended.

This matter began with a March 2017 disciplinary complaint filed by the Office of Lawyer Regulation (OLR) against Attorney Boyle. The OLR alleged that Attorney Boyle committed four counts of professional misconduct involving two client matters, and two additional counts of misconduct related to his failure to cooperate with the OLR’s investigation into those matters.

We adopt the referee’s finding that Attorney Boyle has a medical incapacity that makes the defense of this disciplinary proceeding impossible. We agree with the referee’s recommendation that Attorney Boyle’s license to practice law in Wisconsin should be suspended indefinitely pursuant to SCR 22.16(4)(d). We also agree with the referee’s recommendation that the proceedings in this matter should be abated pursuant to SCR 22.16(4)(d).

We depart from the referee’s recommendation that, in this decision, we should absolve Attorney Boyle of the costs of this proceeding. Because we are staying a determination on the merits of this disciplinary proceeding due to Attorney Boyle’s medical incapacity, it would be premature to rule now on the OLR’s request for costs, one way or the other. Therefore, we hold the OLR’s request for costs in abeyance until such time, if any, as this disciplinary proceeding is resumed pursuant to SCR 22.16(4)(d).

IT IS ORDERED that the license of Gerald P. Boyle to practice law in Wisconsin is suspended for an indefinite period, commencing the date of this order and until further order of the court. See SCR 22.16(4)(d). IT IS FURTHER ORDERED that the Office of Lawyer Regulation’s request for costs is held in abeyance until such time, if any, as this disciplinary proceeding is resumed pursuant to SCR 22.16(4)(d).

IT IS FURTHER ORDERED that Gerald P. Boyle shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

So Ordered

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Weyerhaeuser Co. v. United States Fish and Wildlife Service, et al.

Case No.: 17-71

Focus: Statutory Interpretation – Endangered Species Act

The Endangered Species Act directs the Secretary of the Interior, upon listing a species as endangered, to also designate the “critical habitat” of the species. A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat, which they contend refers only to areas where the frog could currently survive. The court below ruled that the Act imposed no such limitation on the scope of critical habitat.

The Act also authorizes the Secretary to exclude an area that would otherwise be included as critical habitat, if the benefits of exclusion outweigh the benefits of designation. The landowners challenged the decision of the Secretary not to exclude their property, but the court below held that the Secretary’s action was not subject to judicial review. We granted certiorari to review both rulings.

Granted

Dissenting:

Concurring: ROBERTS, C. J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.
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