Weekly Case Digests – January 28, 2019 – February 2, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Amy Swyear v. Fare Foods Corporation

Case No.: 18-2108

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

Focus: Wrongful Termination – Retaliation Claim – Breach of Contract

Amy Swyear filed this action against her former employer, Fare Foods Corporation, alleging sexual discrimination, sexual harassment, and retaliation in violation of Title VII, and breach of contract. After the parties each moved for summary judgment, the district court granted Fare Foods’ motion on all claims. For the reasons set forth herein, we affirm the decision of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Shannon E. McHenry v. Nancy A. Berryhill

Case No.: 18-1691

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

Focus: ALJ Error – Disability Benefits

Shannon E. McHenry, a 49-year-old former hair stylist who suffers from a host of medical problems (both physical and mental), challenged the denial of her application for Social Security disability benefits. An Administrative Law Judge (ALJ) denied her application for disability insurance benefits after finding that, although she suffers from degenerative disc disease and fibromyalgia, she lacked sufficient medical evidence that the conditions were disabling, and that she was not credible about her limitations. The district court upheld the ALJ’s decision. McHenry now appeals, contending that the ALJ erred by failing to have a medical expert review a consequential MRI report, by not accounting for McHenry’s mental or social limitations in her Residual Functional Capacity (RFC), and by discounting McHenry’s credibility. Because we agree with McHenry that the ALJ should have acquired a medical expert to review a consequential MRI report, we vacate the judgment and remand for further proceedings.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Joshua E. Shepherd v. Jeffrey E. Krueger

Case No.: 17-1362

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

Focus: Sentencing Guidelines

Petitioner-appellant Joshua E. Shepherd was pulled over by the police in Kentucky. The officers found marijuana and a gun in his car. He pleaded guilty in federal court to one count of possession of marijuana with intent to distribute, one count of being a felon in possession of a firearm, and two counts for criminal forfeiture. At sentencing, the district judge in Kentucky applied an Armed Career Criminal Act (“ACCA”) enhancement based on his prior convictions and sentenced Shepherd to the mandatory minimum fifteen years in prison. See 18 U.S.C. § 924(e). For nearly ten years, Shepherd has been challenging the enhanced sentence under ACCA. The Sixth Circuit affirmed on direct appeal, and several courts have declined to overturn his sentence in collateral attacks under 28 U.S.C. § 2255.

Shepherd seeks relief under § 2241 to take advantage of the “inadequate or ineffective” exception in § 2255(e), the scope of which is controversial both within this circuit and beyond. See Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc) (reversing denial of § 2241 petition by vote of six to five); In re Davenport, 147 F.3d 605, 608–09 (7th Cir. 1998); see also, e.g., Prost v. Anderson, 636 F.3d 578, 592–93 (10th Cir. 2011) (reviewing divided circuit opinions on scope of 2255(e)); id. at 604–06 (Seymour, J., dissenting in part); Gilbert v. United States, 640 F.3d 1293, 1312–15 (11th Cir. 2011) (en banc) (reviewing divided opinions on scope of § 2255(e)); id. at 1335–36 (Martin, J., dissenting). On the basis of Malone, we affirm the denial of Shepherd’s § 2241 petition.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Edward E. Ronkowski, Jr., et al. v. United States of America

Case No.: 18-2269

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

Focus: Easement

Edward and JoAnn Ronkowski own 120 acres of undeveloped land in Bayfield County, Wisconsin. Since the Ronkowskis acquired the property in 1972, they have accessed it via an unpaved road that crosses over neighboring land, including land owned by the United States Forest Service. The Ronkowskis brought suit against the United States under the Quiet Title Act seeking recognition of an easement to access their property by way of the unpaved road. The district court held that the Ronkowskis had not established entitlement to an easement. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Danny L. Wilber

Case No.: 2016AP260

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

Focus: Postconviction Motion Denied

Danny L. Wilber appeals an order of the circuit court denying his postconviction motion for a new trial. Wilber raises several arguments on appeal. We affirm.

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WI Court of Appeals – District IV

Case Name: Aamaans Properties, Inc., et al. v. Wisconsin Department of Transportation

Case No.: 2017AP1220

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

Focus: Inverse Condemnation

Aamaans Properties, Inc. and Aamann, Inc. (Aamaans) appeal an order granting summary judgment to the Wisconsin Department of Transportation (DOT). The circuit court concluded that DOT did not take any of Aamaans’s real property and that Aamaans’s inverse condemnation claim must therefore fail. We affirm.

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WI Court of Appeals – District II

Case Name: Jacqueline E. Wise v. Labor and Industry Review Commission, et al.

Case No.: 2017AP2191

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

Focus: Employment – Worker’s Compensation

Jacqueline Wise appeals from the circuit court’s order affirming the Labor and Industry Review Commission’s decision denying her worker’s compensation claim. Because we conclude the circuit court erred in affirming the Commission’s decision, we now reverse.

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WI Court of Appeals – District I

Case Name: Team Property Management LLC v. Stephanie Houston

Case No.: 2017AP2252

Officials: KESSLER, P.J.

Focus: Damages

Team Property Management, LLC appeals an order of the circuit court granting partial damages against Stephanie Houston. TPM contends that the circuit court erred in denying its entire motion for costs and rent owed. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio Walter Roberts

Case No.: 2018AP104-CR

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

Focus: Motion to Suppress Evidence Denied

Antonio Walter Roberts appeals from a judgment, entered upon his guilty plea, convicting him on one count of possession of narcotic drugs. Roberts complains that the circuit court erroneously denied his motion to suppress the fruits of an unlawful stop. We reject Roberts’ challenge and affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justin Robert White

Case No.: 2018AP154-CR

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

Focus: Amendment Judgment and Postconviction Motion Denied

Justin Robert White appeals an amended judgment of conviction entered on February 3, 2017. He also appeals a circuit court order entered January 2, 2018, denying postconviction relief. He claims that certain language in the amended judgment of conviction must be removed because the language was derived from a statute that does not apply to him, does not reflect the sentencing court’s order, and was inserted by the clerk of circuit court acting without a judicial directive. For the reasons that follow, we are persuaded that the language must be removed. Accordingly, we reverse the amended judgment of conviction in part, reverse the postconviction order, and remand with instructions to correct the amended judgment of conviction by striking the language inserted by the clerk.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dedric Earl Hamilton, Jr.

Case No.: 2018AP200-CR

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

Focus: Ineffective Assistance of Counsel

A jury convicted Dedric Earl Hamilton, Jr., of first-degree sexual assault of a child under the age of thirteen and incest with a child. The victim was Hamilton’s eight-year-old niece, D. He appeals the judgment of conviction and an order that denied his motion for postconviction relief without a hearing. On appeal, he argues that his postconviction motion contained sufficient factual allegations to entitle him to an evidentiary hearing on his claim that trial counsel was constitutionally ineffective. He also argues that he is entitled to a new trial in the interest of justice.

In short, we conclude that Hamilton was not deprived of a fair trial because “the error complained of did not contribute to the verdict obtained.” See State v. Jenkins, 2014 WI 59, ¶37, 355 Wis. 2d 180, 848 N.W.2d 786. We also conclude that the real controversy was fully tried because the victim, the investigating officer, the sexual assault nurse, and the detective who interviewed Hamilton all testified and were subject to vigorous cross-examination. We therefore determine that there is no basis for granting a new trial in the interest of justice.

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WI Court of Appeals – District II

Case Name: Cheryl E. Atkins v. The Heavens Above, LLC

Case No.: 2018AP482

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

Focus: Failure to Serve

The Heavens Above, LLC, moved to vacate a default judgment granted to Cheryl E. Atkins on grounds that Atkins never served it with the summons and complaint. Heavens Above appeals from the order denying its motion. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eric R. Burrows

Case No.: 2018AP770-CR

Officials: REILLY, P.J.

Focus: Warrantless Search

Eric R. Burrows appeals from a judgment convicting him of unlawful phone use, in violation of WIS. STAT. § 947.012(1)(b), and defamation, in violation of WIS. STAT. § 942.01(1). Burrows sent threatening and harassing letters, orchestrated inflammatory and derogatory voicemail messages, and delivered a baby python snake to E.W., the victim in this case. On appeal, Burrows challenges his arrest, the seizure of evidence following his arrest, and the legality of search warrants issued for his property. For the reasons that follow, we affirm the circuit court’s decision.

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WI Court of Appeals – District I

Case Name: Bruck Law Offices, S.C. v. KSMS Our House, LLC

Case No.: 2018AP1118

Officials: BRASH, J.

Focus: Sanctions – Bad Faith – Attorney Fees

Bruck Law Offices, S.C. appeals orders of the circuit court awarding attorney’s fees to KSMS Our House, LLC in the amount of $7420.55 as a sanction against Bruck for its conduct during a garnishment action, and denying Bruck’s motion for reconsideration regarding that sanction. The circuit court found that prior to Bruck’s filing of a motion seeking to hold KSMS liable for failing to comply with an earnings garnishment notice, Bruck had not conducted a reasonable inquiry to determine whether there was evidentiary support for that motion, and that it had acted in bad faith by “misus[ing] the court process.” The court awarded sanctions pursuant to WIS. STAT. § 802.05(2); additionally, the court held that it could award the attorney’s fees as an equitable remedy under WIS. STAT. § 812.38(1)(c), which allows the court to levy equitable remedies in garnishment actions.

Bruck argues that the circuit court erred in allowing KSMS’s motion for sanctions to go forward because the motion did not properly comply with the safe harbor provision of WIS. STAT. § 802.05(3)(a)1. Bruck further contends that the award of attorney’s fees was not warranted, and that the amount awarded was unreasonable. We affirm.

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WI Court of Appeals – District IV

Case Name: Craig Allen Fieschko v. Geraldine Veneman

Case No.: 2017AP1885

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

Focus: Child Support

Craig Fieschko appeals the circuit court’s denial of his motion to modify his child support obligations to reduce support payments for the two minor children he shares with his ex-spouse, Geraldine Veneman. Fieschko challenges the court’s determination that large increases in his income, resulting in larger support payments under the pertinent percentage guidelines, did not create a substantial change in circumstances as is required for modification under WIS. STAT. § 767.59(1f) (2015-16).

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WI Court of Appeals – District IV

Case Name: Joseph R. Gremminger v. Stacie Rios

Case No.: 2018AP1365

Officials: FITZPATRICK, J.

Focus: Court Error – Abuse of Discretion

Stacie Rios appeals an order of the Dodge County Circuit Court denying her motion requesting a finding of contempt against Joseph Gremminger. I conclude that the circuit court properly exercised its discretion in denying Ms. Rios’s motion. Accordingly, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Melvin DeWitt, et al. v. Earl G. Ferries, et al.

Case No.: 2018 WI 117

Focus: Statutory Interpretation – Parcel Transfer

The Petitioners, collectively the DeWitts, seek to transfer a one-acre parcel of property to the Town of Forest. They assert that the parcel is a cemetery where they believe their relatives are buried and that the parcel is neglected or abandoned. The circuit court agreed and issued an order transferring the one-acre parcel to the Town to manage as a town cemetery, pursuant to Wis. Stat. § 157.115(1)(c) (2015-16).

The court of appeals, however, disagreed. It determined that the DeWitts failed to prove a statutory requirement——that “there exists no association or group with authority to transfer ownership and operation of the cemetery . . . .” Finding this failure dispositive, the court of appeals reversed the circuit court’s order transferring the parcel to the Town.

The DeWitts now seek review of the unpublished per curiam decision of the court of appeals. They contend that the court of appeals erred because the evidence they presented supports the circuit court’s conclusion that the parcel meets the statutory requirements for the transfer of a cemetery to the Town. The DeWitts further advance that even if the requirements of chapter 157 are not met, the one-acre parcel is nevertheless a cemetery. They point to various late-nineteenth-century conveyances referring to a “cemetery” on the parcel in support of their arguments.

We conclude that the DeWitts failed to prove that this parcel is a cemetery. Therefore, the parcel is not subject to the transfer mechanism set forth in Wis. Stat. § 157.115(1)(c), which applies only to cemeteries. Because we determine that this parcel is not a cemetery, we need not address whether the other requirements set forth in the cemetery transfer statute are satisfied here. Accordingly, we affirm the court of appeals.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Sonja Davig Huesmann

Case No.: 2018 WI 114

Focus: Attorney Disciplinary Hearing

The Office of Lawyer Regulation (OLR) has appealed a report filed by Referee Allan E. Beatty, accepting a stipulation filed by the OLR and Attorney Sonja C. Davig Huesmann in which Attorney Davig Huesmann admitted the eight counts of professional misconduct alleged in the OLR’s complaint. Referee Beatty recommended that Attorney Davig Huesmann be publicly reprimanded for her misconduct. The OLR argues that a public reprimand would unduly depreciate the seriousness of Attorney Davig Huesmann’s misconduct and that a suspension of her license to practice law in Wisconsin is appropriate.

Upon careful review of this matter, we uphold the referee’s findings of fact and conclusions of law, which were based on the parties’ stipulation. We agree with the OLR that a public reprimand is not a sufficient sanction for the misconduct at issue. Rather, we conclude that a 60-day suspension of Attorney Davig Huesmann’s license to practice law in Wisconsin is appropriate. In addition, we follow our usual custom of imposing the full costs of this proceeding, which are $10,360.04 as of May 21, 2018, on Attorney Davig Huesmann. The OLR does not seek restitution, and we do not impose a restitution order.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. David W. Schiltz

Case No.: 2018 WI 116

Focus: Attorney Disciplinary Hearing

We review Referee Dennis J. Flynn’s recommendation that the court declare Attorney David W. Schiltz in default and suspend his Wisconsin law license for a period of 18 months for professional misconduct in connection with: (1) his work on certain client matters; (2) his practice of law while his law license was suspended for noncompliance with mandatory continuing legal education (CLE) reporting requirements; and (3) his failure to disclose his unauthorized practice of law in his reinstatement petition to the Board of Bar Examiners (BBE). The referee also recommended that this court order Attorney Schiltz to successfully complete 25 hours of continuing legal education (CLE) courses as deemed appropriate by the Office of Lawyer Regulation (OLR). Finally, the referee recommended that the court order Attorney Schiltz to make restitution to a former client and to pay the full costs of this proceeding.

Because no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2).1 After conducting our independent review of the matter, we agree with the referee that, based on Attorney Schiltz’s failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. However, we disagree with the referee that Attorney Schiltz’s professional misconduct warrants an 18-month suspension of his Wisconsin law license. We conclude, instead, that a nine-month suspension is warranted. We order Attorney Schiltz to make restitution and to successfully complete 25 hours of CLE courses as deemed appropriate by the OLR. We also find it appropriate to impose the full costs of this proceeding on Attorney Schiltz, which are $4,705.70 as of August 27, 2018.

License Suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Daniel R. Hausserman v. Board of Bar Examiners

Case No.: 2018 WI 115

Focus: Bar Admission – Character & Fitness

This is a review, pursuant to Supreme Court Rule (SCR) 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Daniel R. Hausserman, satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board’s decision was based primarily on Mr. Hausserman’s conduct in 2015, and his failure to disclose certain matters on his bar application.

After careful review, we agree that the record before us is insufficient to persuade us that Mr. Hausserman should be admitted to the practice of law at this time. Accordingly, we affirm.

Affirmed

Concur:

Dissent:

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