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Weekly Case Digests – January 21, 2019 – January 25, 2019

By: WISCONSIN LAW JOURNAL STAFF//January 25, 2019//

Weekly Case Digests – January 21, 2019 – January 25, 2019

By: WISCONSIN LAW JOURNAL STAFF//January 25, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Vertulie Lapre v. City of Chicago

Case No.: 17-3024

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

Focus: Sufficiency of Evidence

Okoi Ofem committed suicide in a jail cell at a City of Chicago lockup. His mother, Vertulie Lapre, sued the City under 42 U.S.C. § 1983, for failing to prevent her son’s death. Because Lapre lacks evidence that the City was deliberately indifferent to the risk of suicide for detainees held in City lockups and also cannot show that the City’s policies and practices were the cause of Ofem’s death, we affirm the district court’s grant of summary judgment in favor of the City.

Affirmed

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7th Circuit Court of Appeals

Case Name: The Medical Protective Company of Fort Wayne, Indiana v. American International Specialty Lines Insurance Company

Case No.: 18-1737

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: Insurance Claim – Malpractice

In 2002, thirty-six-year-old Vicki Bramlett died from complications following routine surgery. Mrs. Bramlett’s family sued Dr. Benny Phillips, her treating physician. Dr. Phillips’s malpractice insurer, the Medical Protective Company of Fort Wayne, Indiana (“MedPro”), twice refused to settle the case for $200,000, Dr. Phillips’s insurance policy limit. At trial, a jury awarded a $14 million verdict against Dr. Phillips and other defendants. The Supreme Court of Texas later capped Dr. Phillips’s liability, and Mrs. Bramlett’s family sued MedPro for the excess verdict. MedPro eventually settled with the family.

MedPro was insured by American International Specialty Lines Insurance Company, now known as AIG Specialty Insurance Company (“AISLIC”), for claims made against it. AISLIC declined to cover MedPro’s settlement with Mrs. Bramlett’s family. When MedPro sued, the parties ultimately cross-moved for summary judgment. The district court granted summary judgment for AISLIC, concluding that coverage was excluded under the AISLIC policy because MedPro should have foreseen the Bramlett family’s claim before contracting with AISLIC. Because there is a genuine issue of material fact regarding whether MedPro should have settled with the Bramletts for $200,000, we affirm in part and reverse in part.

Affirmed

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7th Circuit Court of Appeals

Case Name: Gary Wrolstad v. CUNA Mutual Insurance Society

Case No.: 17-1920

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge.*

Focus: Employment Discrimination – Retaliation Claim

For 25 years Gary Wrolstad worked at CUNA Mutual Life Insurance Society in Madison, Wisconsin, eventually becoming a financial reporting manager. In 2009 his position was eliminated in a corporate restructuring. He was then 52 years old. At his supervisor’s suggestion, Wrolstad applied for several vacant positions at the company, including a job as a pension participant support specialist. CUNA Mutual ultimately hired a 23-year-old for that position. Wrolstad was at the end of the road with CUNA Mutual, so he signed a severance agreement waiving all claims against the company in exchange for 50 weeks of severance pay. He left CUNA Mutual on December 30, 2009.

Months later Wrolstad filed a complaint with the Madison Equal Opportunities Commission accusing his former employer of age discrimination. CUNA Mutual denied the charge and argued that the waiver in the severance agreement barred the claim. A Commission investigator dismissed the complaint and Wrolstad appealed. On December 22, 2010, CUNA Mutual sent Wrolstad a letter explaining in no uncertain terms that it would sue to enforce the waiver if he did not drop his appeal by January 10. Wrolstad refused, and on January 28, 2011, CUNA Mutual filed a breach-of-contract suit in Wisconsin state court.

We affirm. Wrolstad’s effort to revive his age discrimination claim rests primarily on new arguments and evidence that he did not bring to the district judge’s attention. That’s a forfeiture, but the arguments also fail on the merits. And the judge correctly held that the retaliation claim is barred because Wrolstad’s retaliation charge was untimely. The retaliation claim accrued when CUNA Mutual sent the letter to Wrolstad announcing its unequivocal decision to sue to enforce the waiver in his severance agreement. Wrolstad waited more than 300 days to file his retaliation charge with the Commission.

Affirmed

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7th Circuit Court of Appeals

Case Name: Patrick Ryan Dockery v. Sherrie Blackburn, et al.

Case No.: 17-1881

Officials: EASTERBROOK and SYKES, Circuit Judges, and REAGAN, District Judge.

Focus: Qualified Immunity

Patrick Dockery was arrested after a domestic dispute at his girlfriend’s apartment in Joliet, Illinois. Sergeant Sherrie Blackburn and Officer Terry Higgins took him to the police station for booking on charges of trespass and criminal damage to property. He grew confrontational while being fingerprinted, and the officers told him that he’d have to be handcuffed to a bench for the rest of the booking process. Things escalated quickly. Dockery angrily pulled away, fell over, and kicked wildly at the officers. By the time the officers managed to handcuff him, Sergeant Blackburn had used her Taser four times. A security camera recorded the entire incident.

Our jurisdiction to review an order denying qualified immunity is limited to questions of law; we may not review a determination that the evidence is sufficient to proceed to trial. See Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Stinson v. Gauger, 868 F.3d 516, 524 (7th Cir. 2017) (en banc). An excessive-force claim requires an assessment of whether the officer’s use of force was objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 395 (1989). Under this standard and based on the irrefutable facts preserved on the video, the officers are entitled to qualified immunity. The video shows that Sergeant Blackburn first deployed the Taser when Dockery was flailing and kicking and actively resisting being handcuffed. Blackburn then used the Taser three more times to subdue and gain control over a still-struggling Dockery as he kicked, attempted to stand up, and otherwise resisted commands to submit to their authority. No case clearly establishes that an officer may not use a Taser under these circumstances. Accordingly, we reverse and remand with instructions to enter judgment for Sergeant Blackburn and Officer Higgins.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Scott E. Schmidt v. Brian Foster, Warden

Case No.: 17-1727

Officials: WOOD, Chief Judge, and FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Habeas Corpus

Scott Schmidt shot and killed his estranged wife. He confessed at the scene, but come trial he sought to mitigate his crime with the second‐degree defense of adequate provocation. The Wisconsin trial court, in deciding whether the defense should go to the jury, asked for an offer of proof and an evidentiary hearing. Schmidt complied with the first request but balked at the second, not wanting to show any more of his defense hand. That concern was well taken, and the trial court ordered an ex parte, in camera examination of Schmidt instead. The trial court added, however, that Schmidt’s lawyer could “not say[ ] anything” and would “just be present” for the examination.

The trial court questioned Schmidt in chambers. Schmidt’s lawyer observed silently. Schmidt rambled, interrupted only by a few open‐ended questions from the trial court and a brief break during which he reviewed his offer of proof with his lawyer. After the examination, the trial court ruled that Schmidt did not act with adequate provocation. He therefore could not raise the defense at trial. A jury later convicted Schmidt of first‐degree homicide, and he was sentenced to life in prison.

Schmidt petitioned for a writ of habeas corpus, arguing that the trial court’s in camera examination deprived him of counsel and due process. The district court denied Schmidt’s petition, and a divided panel of our court reversed and remanded with instructions to grant it. We vacated that decision, reheard the case en banc, and now affirm the district court’s judgment. The state trial court’s unusual examination of Schmidt was constitutionally dubious, and we discourage the measure. But our habeas review is limited. We ask whether the state court of appeals unreasonably applied clearly established Supreme Court precedent in rejecting Schmidt’s constitutional claims. We answer that it did not.

Affirmed

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7th Circuit Court of Appeals

Case Name: Consolidation Coal Company v. Director, Office of Workers Compensation Programs, et al.

Case No.: 18-2097

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

Focus: ALJ Error – Disability Benefits

Ralph Ross worked as a coal miner for approximately thirty years. He smoked cigarettes for almost as long but was able to quit after his first heart attack. Ross continued to work as a coal miner even though he suffered another heart attack and had difficulty breathing at work. Approximately six years after Ross stopped working in the coal mines, his breathing problems became severe.

On January 19, 2012, Ross filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. At first, the administrative law judge (“ALJ”) denied Ross’s claim. Ross petitioned the United States Department of Labor’s Benefits Review Board (the “Board”) for review, and the Board vacated and remanded the ALJ’s decision for further consideration. On remand, the ALJ granted Ross’s claim. Ross’s former employer, petitioner Consolidation Coal Company (the “Employer”), petitioned the Board for review, and the Board affirmed the ALJ’s subsequent decision. Then the Employer filed this appeal. We enforce the decision of the Board.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Matthew Higgins-Vogt

Case No.: 18-1528

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

Focus: Motion to Suppress Statements Denied

Concerned that the getaway driver to his armed robbery would provide information to the police, Matthew Higgins-Vogt shot the driver multiple times in a wooded area near the Sangamon River in Decatur, Illinois. He later confessed to the murder while detained in the Macon County jail awaiting trial on the robbery charge. Higgins-Vogt appeals the district court’s denial of his motion to suppress his statements, challenging their voluntariness. We agree with the district court that Higgins Vogt’s statements to law enforcement were entirely voluntary and therefore affirm.

In doing so we sound our strong disapproval of the role a particular individual, who portrayed herself as a mental health counselor, was permitted to play within the Macon County jail. The individual was not a licensed mental health professional, met multiple times with Higgins-Vogt, and pledged him her confidentiality, only then to urge him to talk to the police after hearing his confession to the murder. What occurred has all the earmarks of a bait and switch of extraordinary gravity and potential consequence for Higgins-Vogt. We affirm because it is clear that Higgins Vogt, separate and apart from his statements to and interactions with the purported counselor, affirmatively and voluntarily chose to confess to the murder.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Evelyn Johnson

Case No.: 18-1313

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

Focus: Sentencing Guidelines and Restitution

After pleading guilty to preparing false tax returns for her clients, 26 U.S.C. §7206(2), Evelyn Johnson was sentenced to 18 months in prison, to be followed by one year’s supervised release. The judgment includes $79,325 in restitution—the amount that Johnson’s clients unlawfully avoided paying (with respect to the counts of conviction) that had not been collected from the taxpayers before sentencing. Johnson does not contest her convictions or the length of her sentences. But she says that the prosecution should have told the judge how much more it might collect from her clients, which could affect how much she owes in restitution.

Johnson contends that the amount received from the taxpayers is exculpatory material that should have been revealed under Brady v. Maryland, 373 U.S. 83 (1963). Yet the collections were not concealed. The presentence report showed the court and Johnson that the United States already had collected substantial sums (the original loss figure exceeded $150,000) and was trying to obtain from taxpayers the rest of what they should have paid in the first place. Johnson was free to ask how much more had been collected by the date of sentencing but did not do so. Brady does not apply when information is available for the asking. See, e.g., United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996); United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990).

The restitution statute, not the Constitution, determines the prosecution’s duty—and the duty is one of credit against the judgment, not of disclosure during the sentencing hearing. The $79,325 figure reflects taxes still outstanding because of Johnson’s fraud. But the parties disagree about whether tax collections are credited against that award.

Johnson likely wants an elaborate definition, rather than deletion of this protection, but the history of tort law shows that any effort to define “reasonable” is a fool’s errand. In United States v. Kappes, 782 F.3d 828, 860–62 (7th Cir. 2015), we recommended that district judges add the word “reasonable” to another condition (the one requiring defendants to submit to searches), so that probation officers could not intrude without justification into personal lives. Having deemed the word “reasonable” the solution to a problem in Kappes, we are hardly going to declare now that the word must be removed from all conditions of supervised release. Johnson’s remaining objections do not require separate discussion.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sugarloaf Fund, LLC, v. Commissioner of Internal Revenue

Case No.: 18-1046

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

Focus: Tax Shelter

Before us in this appeal is a tax shelter almost identical to the one we agreed reflected an abusive sham in Superior Trading, LLC v. Commissioner, 728 F.3d 676 (7th Cir. 2013). We reach the same conclusion here and affirm the Tax Court’s judgment and imposition of penalties.

Affirmed

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7th Circuit Court of Appeals

Case Name: Anthony D. Lee, Sr. v. Kevin Kink, Warden, Lawrence Correctional Center

Case No.: 18-1005

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

Focus: Ineffective Assistance of Counsel

After a bench trial, Anthony Lee was convicted of kidnapping and rape. He is serving sentences that add to 100 years’ imprisonment. The state-court judge found that Lee and his friend Burlmon Manley forcibly abducted L.M. about 1 A.M. one day, dragging her into their blue Cadillac while she kicked and screamed. Both Manley and Lee struck and raped L.M. When L.M. resisted, Lee retrieved a pistol from the car’s trunk to make her more cooperative. About 3 A.M. L.M. escaped and ran naked to a nearby house. Police took pictures of L.M.’s bloody face. Lee, the only defense witness, said that L.M. entered the car voluntarily and that he did not touch her sexually—though before trial Lee said that he and L.M. had consensual oral sex. The state judge found that L.M.’s testimony about her ordeal was “very credible” and stated that the pictures showing her injuries, and the testimony of the person who opened the door to L.M., negated the defense of consent. Lee’s convictions were affirmed on direct and collateral review. See People v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).

Lee’s federal petition under 28 U.S.C. §2254 contends that he did not receive effective assistance of counsel. He asserts that before trial his lawyer received five affidavits that corroborated Lee’s story or provided exculpatory details, but that counsel did not interview the affiants. In Lee’s postconviction proceedings the state judiciary did not hold an evidentiary hearing. The appellate decision concluded that none of the five affidavits is necessarily inconsistent with Lee’s guilt, while the evidence against him is strong, so the absence of these witnesses at trial was not prejudicial. The federal district judge held that the state court’s decision was not unreasonable, and he denied Lee’s petition. Lee v. Lamb, 2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).

Vacated and Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Zachary Seth Williams

Case No.: 2017AP2203-CR

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

Focus: Plea Withdrawal

Zachary Williams appeals from a judgment convicting him of armed robbery as party to a crime and from an order denying his motion for postconviction relief. Williams contends he should be allowed to withdraw his no-contest plea because the circuit court failed to advise him: (1) he would be required to pay a DNA surcharge; (2) he had a right to a unanimous jury verdict; and (3) about the effect of read-in charges. Williams also challenges the procedure used to enter a restitution award against him.

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WI Court of Appeals – District III

Case Name: Jason M. Baars v. James R. Weber

Case No.: 2018AP430

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

Focus: Breach of Contract

Jason Baars appeals a summary judgment granted in favor of James Weber. The circuit court concluded Weber was entitled to summary judgment because the undisputed facts established that Baars breached the parties’ contract and, under the circumstances, the contract was void. We agree with the circuit court that the undisputed facts establish that Baars breached the contract. We reject Baars’ contention that the court erred in determining time was of the essence with respect to the performance of his contractual obligations. We also agree with the circuit court’s determination that, in light of Baars’ breach, the parties’ contract is void. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sadiq Imani

Case No.: 2018AP596-CR

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

Focus: Ineffective Assistance of Counsel

Sadiq Imani appeals from a judgment of conviction, entered on a jury verdict, for armed robbery by use of force and false imprisonment, both as party to a crime. The convictions related to Imani’s robbery of the North 76th Street TCF Bank in Milwaukee on August 2, 2013. Imani also appeals the denial of his motion for postconviction relief.  He seeks a Machner hearing on his claim of ineffective assistance of counsel. He argues that trial counsel was constitutionally ineffective for two reasons: (1) he did not object to the use of a 1999 felony conviction to impeach Imani when he testified, and (2) he advised Imani to testify and did not tell him that prior to trial the State had provided counsel interview notes from a witness who would directly contradict Imani’s alibi.

Imani’s Strickland claim fails on the prejudice prong: regardless of whether the alleged errors constituted deficient performance, there is not a reasonable probability that but for the alleged errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the totality of the record shows that Imani is not entitled to relief, the postconviction court correctly denied his postconviction motion without a hearing. See State v. Balliette, 2011 WI 79, ¶¶50, 56-59, 336 Wis. 2d 358, 805 N.W.2d 334.

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WI Court of Appeals – District IV

Case Name: The Lamar Company, LLC v. State of Wisconsin Department of Transportation

Case No.: 2017AP1001

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

Focus: Court Error – Litigation Expenses

The Lamar Company appeals a judgment awarding it compensation for property taken by the Wisconsin Department of Transportation through condemnation but denying it litigation expenses. In its brief on appeal, Lamar raises five issues relating to errors allegedly committed by the court at trial, and it also argues that the court erred in denying its request for litigation expenses. However, Lamar does not contend that the result of the trial would have been different but for the court’s alleged errors, and the only specific relief requested by Lamar is that this court “determine that, under the facts and circumstances of this case, Lamar is entitled to an award of litigation expenses under WIS. STAT. § 32.28 [2015-16].” Accordingly, we limit our review to the question of whether the court erred in denying Lamar litigation expenses. For the reasons explained below, we affirm.

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WI Court of Appeals – District IV

Case Name: Nationstar Mortgage, LLC, v. Patricia Ann Murphy

Case No.: 2017AP2091

Officials: Blanchard, Kloppenburg, and Fitzpatrick, JJ.

Focus: Foreclosure – Unclean Hands

Patricia Ann Murphy and Patricia Gaffney appeal a judgment of foreclosure. The issues are whether the circuit court properly dismissed their counterclaims and whether the court properly granted summary judgment rejecting their affirmative defense of unclean hands. We conclude that the counterclaims were properly dismissed, but there is a dispute of material fact that precludes summary judgment on the affirmative defense. Therefore, we reverse and remand.

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WI Court of Appeals – District IV

Case Name: DSG Evergreen Family Limited Partnership v. Town of Perry

Case No.: 2017AP2352

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Claim of Preclusion

DSG Evergreen Family Limited Partnership appeals from an order of the Dane County Circuit Court dismissing DSG’s claims against the Town of Perry. This case arises out of a partial taking of, and monetary compensation for, DSG’s real estate by the Town, which was affirmed by this court. DSG Evergreen Family Ltd. Partnership v. Town of Perry, No. 2011AP492, unpublished slip op. (WI App Dec. 6, 2012) [hereinafter DSG I].

In this lawsuit, DSG makes two claims against the Town. First, DSG seeks a declaratory judgment that the Town was required to build the new field road so that it met statutory standards set forth in WIS. STAT. § 82.50 (2015- 16) or, alternatively, to the standards in a Town ordinance. Second, DSG claims that the Town violated its obligation to construct the new field road for DSG set forth in the condemnation petition because the new field road did not meet the construction standards of DSG’s previous field road.

The circuit court granted summary judgment in favor of the Town and dismissed DSG’s claims. The court concluded that neither WIS. STAT. § 82.50 nor the Town’s ordinances create a private right of action. The circuit court also determined that DSG’s claim that the Town failed to meet its obligation under the condemnation petition was barred pursuant to the doctrine of claim preclusion. We conclude that neither § 82.50 nor the Town’s ordinances provide a private right of action in favor of DSG in these circumstances, and the doctrine of claim preclusion bars DSG’s second cause of action. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Antorn Lamont Roby, Sr.,

Case No.: 2017AP2502

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Due Process Violation

Antorn Lamont Roby, Sr., appeals an order denying postconviction relief. Roby contends that his constitutional due process right to present a defense was violated when police destroyed field notes taken by separate investigating officers after a single report was created by the lead officer to avoid any inconsistencies between the separate reports. Roby contends that the notes of the investigating officers were potentially useful as impeachment evidence. Roby contends that the State’s depriving Roby of the notes was a structural error requiring automatic reversal. Alternatively, he contends that, if the error was not structural, it was not harmless. Finally, Roby seeks a new trial in the interest of justice on the ground that the real controversy was not fully tried. For the reasons set forth below, we reject Roby’s contentions and decline to order a new trial in the interest of justice. We affirm.

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WI Court of Appeals – District IV

Case Name: County of Lafayette v. Ian D. Humphrey

Case No.: 2018AP481

Officials: SHERMAN, J.

Focus: Court Error – Suspension of Operating Privilege

Ian Humphrey, pro se, appeals an order of the circuit court suspending his motor vehicle operating privilege for one year. For the reasons discussed below, I reverse and remand with directions.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Midwest Neurosciences Associates, LLC, et al. v. Great Lakes Neurosurgical Associates, LLC, et al.

Case No.: 2018 WI 112

Focus: Operating Agreement – Arbitration Clause

This is a review of an unpublished decision of the court of appeals, Midwest Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs., LLC, No. 2016AP601, unpublished slip op. (Wis. Ct. App. Dec. 20, 2017), reversing the Ozaukee County circuit court’s non-final order. The non-final order denied Midwest Neurosciences Associates, LLC (“Midwest”) and Neurosurgery and Endovascular Associates S.C.’s (“NEA”) motion to stay this action and compel arbitration pursuant to the Amended and Restated Operating Agreement (“Operating Agreement”), as well as the circuit court’s granting of Yashdip Pannu, M.D. (“Dr. Pannu”) and Great Lakes Neurosurgical Associates, LLC’s (“Great Lakes”) motion for declaratory judgment seeking a declaration that the Membership Interest Redemption Agreement (“Redemption Agreement”) was a valid contract. The court of appeals remanded to the circuit court with instructions to grant Midwest’s motion to compel arbitration pursuant to the Operating Agreement. We reverse the court of appeals and remand to the circuit court to determine whether the Redemption Agreement is enforceable.

Reversed and Remanded

Concur: ABRAHAMSON, J. concurs.

Dissent: R.G. BRADLEY, J. dissents.

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WI Supreme Court

Case Name: State of Wisconsin v. Justin A. Braunschweig

Case No.: 2018 WI 113

Focus: OWI – Sentencing Guidelines

This is a review of an unpublished decision of the court of appeals, State v. Justin A. Braunschweig, No. 2017AP1261-CR, unpublished slip op. (Wis. Ct. App. Feb. 1, 2018), affirming the Jefferson County circuit court’s  judgment of conviction of defendant Justin A. Braunschweig (“Braunschweig”) for Operating While Intoxicated (“OWI”) as a second offense.

The court is now presented with two overriding issues. First, we consider whether a prior expunged OWI conviction constitutes a prior conviction under Wis. Stat. § 343.307(1), when determining the penalty for OWI-related offenses.  We conclude that a prior expunged OWI conviction must be counted under § 343.307(1).

Second, we consider the State’s burden of proving the prior OWI conviction in second offense OWI-related offenses. We conclude that the State must prove this prior OWI conviction, which is not here an element of the offense charged, by a preponderance of the evidence. Thus, we affirm the court of appeals.

Affirmed

Concur:

Dissent:

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