Weekly Case Digests – February 18, 2019 – February 22, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Keep Chicago Livable, et al. v. City of Chicago

Case No.: 17-1656; 17-2846

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

Focus: Ordinance Interpretation – Jurisdiction

An organization known as Keep Chicago Livable and six individuals challenge the constitutionality of Chicago’s Shared Housing Ordinance. The City passed the Ordinance in 2016 to regulate home-sharing activities, including services offered by companies like Airbnb. The district court denied a request for a preliminary injunction on certain claims and later dismissed without prejudice the remaining claims from an amended complaint. These two appeals then followed. We now vacate the district court’s decisions, as we cannot say with any confidence that any named plaintiff—Keep Chicago Livable or any of the six individuals—has pleaded or otherwise established sufficient injury to confer the subject matter jurisdiction necessary to proceed to the merits of any claim.

We have before us an organization and individuals with strongly-held views about the constitutionality of the City’s Ordinance, but Article III of the Constitution requires more: our authority is limited to deciding cases or controversies between adverse litigants, and without a clear indication that at least one named plaintiff has an actual or imminent injury, we have no authority to go further. So we remand to the district court to make a determination of standing and to proceed if and as appropriate from there.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Daniel Rivera, et al. Allstate Insurance Company

Case No.: 17-1310; 17-1649

Officials: KANNE and SYKES, Circuit Judges, and DARROW, District Judge.

Focus: FCRA Claim – Subject-matter Jurisdiction

In 2009 Allstate Insurance Company launched an internal investigation into suspicious trading on its equity desk. The initial inquiry unearthed email evidence suggesting that several portfolio managers might be timing trades to inflate their bonuses at the expense of their portfolios, which included two pension funds to which Allstate owed fiduciary duties. Allstate retained attorneys from Steptoe & Johnson to investigate further, and they in turn hired an economic consulting firm to calculate potential losses. Based on the email evidence, the consulting firm found reason to believe that timed trading had potentially cost the portfolios $8 million and possibly much more. Because actual losses could not be established, the consultants used an algorithm to estimate a potential adverse impact of $91 million on the pension funds. Everyone understood that this estimate was wildly unrealistic, but in an abundance of caution, Allstate poured $91 million into the pension portfolios.

When the investigation wrapped up, Steptoe lawyers delivered oral findings to Allstate. The company thereafter determined that four portfolio managers—Daniel Rivera, Stephen Kensinger, Deborah Meacock, and Rebecca Scheuneman—had violated the company’s conflict-of-interest policy by timing trades to improve their bonuses. On December 3, 2009, Allstate fired them for cause. The four former employees sued Allstate in federal court for defamation based on the 10-K and the internal memo. They also alleged that Allstate violated 15 U.S.C. § 1681a(y)(2), a provision in the Fair Credit Reporting Act (“FCRA or the Act”), by failing to give them a summary of Steptoe’s findings after they were fired. The defamation claim was the main event in the litigation; the FCRA claim received comparatively little attention. A jury returned a verdict in the plaintiffs’ favor, awarding more than $27 million in compensatory and punitive damages, and statutory damages on the FCRA claim (there are no actual damages on that claim). The district judge tacked on additional punitive damages and attorney’s fees under the FCRA.

Allstate attacks the defamation awards on multiple grounds and also argues that the FCRA awards must be vacated for lack of standing under Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016). We agree that the plaintiffs lack a concrete injury to support Article III standing on the FCRA claim. So that claim must be dismissed on jurisdictional grounds. And that ends our review. Because the FCRA claim provided the sole basis for federal jurisdiction—and thus the only basis for the district court to exercise supplemental jurisdiction over the state-law claim under 28 U.S.C. § 1367(a)—the district court was without power to adjudicate the defamation claim, and it too must be dismissed for lack of jurisdiction. The parties did not identify the § 1367(a) jurisdictional problem in their initial briefing, but that does not matter; defects in subject-matter jurisdiction must always be addressed. Accordingly, we vacate the judgment and remand with instructions to dismiss the action in its entirety for lack of subject-matter jurisdiction. See FED. R. CIV. P. 12(h)(3).

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: William Rainsberger v. Charles Benner

Case No.: 17-2521

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

Focus: Qualified Immunity

William Rainsberger was charged with murdering his elderly mother. But the detective who built the case against him, Charles Benner, may have been dis‐ honest. According to Rainsberger, Benner submitted a probable cause affidavit that was riddled with lies and undercut by the omission of exculpatory evidence. Based on that affidavit, Rainsberger was arrested, charged, and imprisoned for two months. When the prosecutor dismissed the case because of evidentiary problems, Rainsberger sued Benner under 42 U.S.C. § 1983 for violating his Fourth Amendment rights. Benner moved for summary judgment, arguing that he was entitled to qualified immunity. The district court denied his motion, and he now asks us to reverse the district court.

We decline to do so. Benner concedes for purposes of this appeal that he knowingly or recklessly made false statements in the probable cause affidavit. He emphasizes, however, that knowingly or recklessly misleading the magistrate in a probable cause affidavit—whether by omissions or outright lies— only violates the Fourth Amendment if the omissions and lies were material to probable cause. He claims that his weren’t, but we disagree. Materiality depends on whether the affidavit demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in. And when that is done here, Benner’s affidavit fails to establish probable cause to believe that Rainsberger murdered his mother. Because it is clearly established that it violates the Fourth Amendment “to use deliberately falsified allegations to demonstrate probable cause,” Franks v. Delaware, 438 U.S. 154, 168 (1978), Benner is not entitled to qualified immunity.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mark Mittelstadt v. Sonny Perdue

Case No.: 17-2447

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

Focus: APA Violation and Breach of Contract

Mark Mittelstadt owned a tract of land in Richland County, Wisconsin, that was enrolled in the Conservation Reserve Program (“CRP”), administered by the United States Department of Agriculture (“USDA”), from 1987 to 2006. Participants in the CRP agree to remove environmentally sensitive land from agricultural production in return for annual rental payments from the USDA. In 2006, the agency denied Mr. Mittelstadt’s application to reenroll his land in the CRP. After exhausting his administrative appeals, he brought this action against the Secretary of the USDA (“the Secretary”). He asserted one claim under Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., challenging the Secretary’s final decision denying reenrollment, and one common law claim for breach of contract. Mr. Mittelstadt moved for summary judgment in the district court, seeking an order directing reenrollment of his land in the CRP and awarding monetary relief for the alleged breach of contract. The district court denied his motion for summary judgment, affirmed the Secretary’s rulings, and entered judgment in favor of the Secretary on Mr. Mittelstadt’s APA and breach of contract claims. Mr. Mittelstadt now appeals the district court’s decision.

Under the regulations governing the CRP, the USDA has broad discretion to evaluate offers of enrollment in the program on a competitive basis by considering the environmental benefits of a producer’s land relative to its costs. Given the agency’s wide latitude, we conclude that the Farm Services Agency (“FSA”) did not abuse its discretion when it denied reenrollment of Mr. Mittelstadt’s land. Moreover, because he never entered a new contract with the agency, there was no breach of contract. We therefore affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: EOR Energy LLC, et al. v. Illinois Environmental Protection Agency, et al.

Case No.: 17-3107

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

Focus: IEPA Violation

In March 2007 the Illinois Environmental Protection Agency (IEPA) brought charges before the Illinois Pollution Control Board (the Board) against EOR Energy, LLC (EOR) and AET Environmental, Inc. (AET). The IEPA accused EOR and AET of violating the Illinois Environmental Protection Act, 415 ILCS 5/1–5/58, by transporting hazardous‐ waste acid into Illinois, storing that waste, and then injecting it into EOR’s industrial wells in Illinois. EOR challenged its prosecution by arguing that under the environmental law scheme put in place by Illinois, the IEPA and the Board do not have jurisdiction over EOR’s acid dumping. EOR took that argument all the way through the Illinois courts, losing at every turn. The state courts determined that under Illinois law, EOR’s jurisdictional argument is meritless. EOR also has asked this court for the opportunity to cure and refile its complaint. We deny its request. There is no way that EOR could remedy the errors outlined above. Any change in the suit that would remove these flaws would also destroy EOR’s standing and the entire point of its lawsuit. If EOR intends to ignore the state court’s rulings and inject the same kinds of hazardous waste acid into the same kinds of wells, then it will have to account for its actions before the state authorities. If, on the other hand, EOR wants to inject into its wells an entirely different acid that is not hazardous waste under Illinois law, then it will have to take its chances in a future proceeding that is not at this time ripe for any federal‐court action. We AFFIRM the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nathan Driggers

Case No.: 17-2994

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

Focus: Jury Instructions

In the wee hours of the morning on April 12, 2015, thieves stole approximately 104 Ruger firearms from a train sitting in a Chicago railyard. Later that day, according to the government, Nathan Driggers purchased 30 of those stolen guns. He wound up facing charges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and possession of a stolen firearm in violation of 18 U.S.C. § 922(j). Driggers proceeded to trial, and a jury returned a split verdict, finding him guilty of being a felon in possession of a firearm, but not guilty of possessing a stolen firearm. Driggers now appeals his conviction. He argues that the district court improperly allowed testimony about his codefendant Warren Gates and gave an erroneous jury instruction on joint possession. Finding no error in the district court’s decisions, we affirm Driggers’s conviction.

Affirmed

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7^th Circuit Court of Appeals

Case Name: The Church of Our Lord and Savior Jesus Christ

Case No.: 18-1432

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

Focus: RLUIPA Violation – Zoning Codes

In the City of Markham, Illinois, 16018 South Spaulding Avenue (the “Property”) is home to The Church of Our Lord and Savior Jesus Christ. We use the word “home” literally and figuratively: the church converted a single-family residence on the Property into its house of worship. The Property’s location in a residential area, and the church’s ensuing zoning battles with the city, give rise to this lawsuit.

The parties dispute what the city knew about the church’s use of the Property, and when, but such issues are largely irrelevant at this juncture. What matters (and is undisputed) is that the city sought an injunction in state court to halt the church’s operation on the Property without a conditional use permit, prompting the church to file an application for such a permit, which the city denied. All that occurred before this case began.

Denied a conditional use permit and facing a possible court order enjoining its operation, the church brought this lawsuit challenging the city’s zoning code under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”), and the Illinois Religious Freedom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The church contends the city’s zoning code treats religious uses of property on unequal terms with analogous secular uses and unreasonably limits where religious organizations may locate in the city. The church also alleges the city’s insistence on a conditional use permit has imposed a substantial burden on its religious exercise. The district court granted the city summary judgment, ruling the church’s claims were not ripe when filed and rendered moot.

We reverse. The district court focused on the church not applying for parking variances before the lawsuit. But that issue is related only tangentially to the church’s claims, which concern zoning use classifications, not parking. The ripeness of the church’s claims does not hinge on pursuit of parking variances that will not resolve them. Nor can a conditional use permit from the city moot the church’s claim that such a permit is not needed. The key question in this case is whether operating a church on the Property is a permitted or conditional use. The district court did not answer that question, but it is the necessary starting point for resolving the church’s legal claims.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Jason M. Lund v. United States of America

Case No.: 16-2381

Officials: KANNE and SYKES, Circuit Judges, and DARROW, District Judge.

Focus: Statute of Limitations

Petitioner Jason Lund appeals the denial of his motion to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. The district court concluded that Lund’s motion was untimely under each of the potential statutes of limitations and that Lund could not invoke the actual innocence exception to the statute of limitations because his claim of actual innocence was based on a case that interpreted the substantive law of his conviction: Burrage v. United States, 571 U.S. 204 (2014). Lund challenges only this conclusion, arguing that a claim of actual innocence can be based on a change in the law. To resolve this case, however, we need not rule on this issue. Even assuming actual innocence can be premised on a change in the law, Lund cannot take advantage of the exception because he rests both his actual innocence claim and his claim for relief on Burrage. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Floyd May v. Sylvia Mahone, et al.

Case No.: 15-3395

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

Focus: Jurisdiction and Statute of Limitations

In our earlier examination of this case, we questioned whether Mr. May filed a timely notice of appeal from the decision of the district court but decided that we lacked sufficient information to answer that question. See May v. Mahone, 876 F.3d 896, 898 (7th Cir. 2017). While retaining jurisdiction over the case, we therefore ordered a limited remand to the district court with instructions to determine whether Mr. May had submitted a notice of appeal on or before August 10, 2015, in compliance with Rule 4(c) of the Federal Rules of Appellate Procedure. Id. at 899.

On September 12, 2018, the district court, after affording the parties an opportunity to engage in discovery, held a hearing. The evidence consisted of the testimony of two witnesses and seven exhibits. Mr. May testified on his own behalf. The district court, upon evaluation of the evidence, held that Mr. May had not carried the burden of establishing that he mailed his notice of appeal in a timely fashion. Order, May v. Mahone, No. 11-cv-07503 (N.D. Ill. Oct. 10, 2018). Specifically, the district court determined that Mr. May’s testimony lacked credibility and that the remaining evidence established that the notice of appeal was not filed until sometime around October 15, 2015.

The factual finding of the district court establishes that Mr. May’s notice of appeal was filed outside of the time prescribed for such a filing. See id. at 897 (describing the computation that fixed the deadline at August 19, 2015). Accordingly, this court lacks jurisdiction over the appeal. See Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16–17 (2017) (statutory timelines for appeal are jurisdictional and cannot be waived, forfeited, or excused). The appeal is therefore dismissed.

Dismissed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Chad Webster, et al. v. Daniel Krizan, et al.

Case No.: 2017AP1890; 2017AP2147

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

Focus: Court Error – Sanctions

These consolidated appeals present two issues following our remand in Webster v. Krizan, No. 2016AP25, unpublished slip op. (WI App Mar. 28, 2017) (hereinafter, Krizan I). In that decision, we held that Chad and Brenda Webster’s offer to purchase certain of Daniel, Beverly, Scott and Dale Krizan’s farm property held priority over a subsequent offer to purchase the same property by Travis and Ronald Krizan. Id., ¶8. In so holding, we rejected the Intervening Krizans’ unjust enrichment argument, noting the circuit court’s order required both that the closing on the Websters’ offer “proceed with dispatch” and that $430,000 the Intervening Krizans paid in connection with their secondary offer was to be returned to them out of the net proceeds from the Webster closing. Id., ¶9.

Following our decision, the Intervening Krizans filed a motion in the circuit court seeking statutory interest on the $430,000 from the date of payment. On appeal, the Intervening Krizans argue the circuit court erred by denying that motion, essentially asserting it was unfair for the Owner Krizans to have the interest-free use of their money for several years. We conclude the circuit court properly exercised its discretion by denying the Intervening Krizans’ motion. Because the Intervening Krizans have maintained throughout this litigation that their offer should be enforced—including in their various complaints, in their appellate arguments in Krizan I, and in their post-Krizan I filings—we agree with the circuit court that their entitlement to the repayment of the $430,000 was never sufficiently certain to warrant an award of statutory interest. We therefore affirm the order declining to award statutory interest.

The circuit court also granted a motion for sanctions against the Intervening Krizans’ attorney, J. Drew Ryberg (“Ryberg”). For a variety of reasons, Ryberg contends the court erred by sanctioning him. We agree with the circuit court that Ryberg’s post-Krizan I motion seeking to bar the closing on the Websters’ offer was frivolous as it merely sought to relitigate issues already decided by this court. We affirm the order for sanctions—an award of attorney fees to the Websters for their costs incurred in defending against the motion—but we decline the Websters’ request to impose additional sanctions against Ryberg for filing a frivolous appeal.

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WI Court of Appeals – District III

Case Name: John H. Soletski, et al. Krueger International, Inc., et al.

Case No.: 2017AP2063

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

Focus: Insurance – Negligence Claim

John Soletski appeals a grant of summary judgment in favor of Krueger International, Inc., and its insurers, Federal Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA. In this appeal relating to his personal injury action, Soletski contends the circuit court erred by determining that: (1) his safe-place claim was barred by the builder’s statute of repose; (2) his common-law negligence and negligent entrustment claims were barred by the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor’s employee while that employee is performing the contracted work; and (3) Krueger’s claims for taxable costs were not forfeited despite the fact that the judgment was not perfected within thirty days of its entry.

We conclude the statutory exposure period set forth in the builder’s statute of repose had expired by the time Soletski was injured by a structural defect, and no exception to the statute of repose applies. Therefore, Soletski’s safe-place claim is barred. We also determine that Soletski’s negligence claims are barred by the independent contractor rule as set forth in Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988). Finally, we conclude that when a party timely files a proposed bill of costs within the thirty-day time limit set forth by WIS. STAT. § 806.06(4) (2015-16), that party’s right to recover costs is not forfeited simply because the circuit court does not resolve an objection to the bill of costs within thirty days. Accordingly, we affirm.

Affirmed

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WI Court of Appeals – District III

Case Name: City of Crandon v. Lynda Morris

Case No.: 2017AP2266

Officials: STARK, P.J.

Focus: OWI – License Revocation

Lynda Morris’s license to operate a motor vehicle was revoked due to her refusal to submit to a chemical test after her arrest for third-offense operating a motor vehicle while intoxicated (OWI). On appeal, Morris argues the circuit court erred by denying her motion to vacate the license revocation order. She claims the order is void because her procedural due process rights were violated when the revocation order was entered prior to the expiration of the statutory ten-day notice period within which she could request a hearing on the revocation. She also argues that the revocation of her operating privilege violates her Fourth Amendment rights because the charges stemming from the original arrest were ultimately dismissed following her successful suppression motion.

We agree with Morris that the circuit court erred by entering the revocation order prematurely. However, we conclude the error did not prejudice Morris so as to violate due process and render the revocation order void. Furthermore, the court properly determined that it lacked competency to dismiss or amend the revocation order because the statutory ten-day period expired without Morris requesting a hearing. For the same reason, we also conclude the court lacked competency to consider Morris’s Fourth Amendment claim. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Billings

Case No.: 2017AP2272-CR

Officials: DUGAN, J.

Focus: Court Error – Transactional Witness – Disclosure of Identity

The State appeals from the trial court’s order that required that the State disclose the identity of a confidential informant (CI) to Robert Billings and the dismissal of the case. The CI in question provided information that the State relied upon in its application for a search warrant for Billings’ residence. While executing the search warrant, the police seized cocaine and Billings was subsequently charged with the possession of the cocaine.

On appeal, the State contends that the trial court erred in ordering the disclosure of the CI’s identity. Specifically, it contends the trial court erred in finding the CI was a transactional witness because the CI was only involved in the issuance of the search warrant and was neither present, nor involved in the execution of the search warrant during which the cocaine was found. It also contends that the trial court erred in dismissing the action. We conclude that the trial court erred in ordering the disclosure of the CI’s identity. Therefore, we reverse and remand with directions to vacate the dismissal and for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: Mark A. Thompson v. Jeffrey E. Thompson

Case No.: 2018AP93

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

Focus: Court Error – Subject-matter Jurisdiction

Mark Thompson appeals an order dismissing his petition for judicial relief pursuant to WIS. STAT. § 244.16 (2015-16). Mark’s petition sought an accounting and judicial review of the conduct of his brother, Jeffrey Thompson, in Jeffrey’s capacity as power of attorney for their mother. Mark argues the circuit court erred by dismissing his petition based on a lack of subject matter jurisdiction. For the reasons discussed below, we affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brady R. Adams

Case No.: 2018AP174-CR

Officials: SEIDL, J.

Focus: OWI – Reasonable Suspicion  

Brady Adams appeals a judgment, entered upon his no contest pleas, convicting him of second-offense operating a motor vehicle while intoxicated (OWI) and possession of a firearm while intoxicated. Adams argues the circuit court erred by denying his motion to suppress evidence obtained from a traffic stop because the sheriff’s deputy lacked reasonable suspicion to stop him. We agree, reverse the judgment, and remand with directions to grant Adams’s motion to suppress.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kimberly C. Thomas

Case No.: 2018AP304-CR

Officials: HRUZ, J.

Focus: Ineffective Assistance of Counsel

Kimberly Thomas appeals a judgment of conviction for one count of misdemeanor bail jumping and an order denying her motion for postconviction relief. Thomas argues that she received ineffective assistance from her trial counsel because her attorney was a necessary witness to her bail jumping charge and therefore should have withdrawn from his representation of Thomas in this case. For that reason, she contends the circuit court erred when it denied her postconviction motion requesting a new trial. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lionel T. Ashley

Case No.: 2018AP330-CR

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

Focus: Ineffective Assistance of Counsel

Lionel T. Ashley appeals from a judgment, entered upon a jury’s verdict, convicting him of child abuse (intentionally causing bodily harm). See WIS. STAT. § 948.03(2)(b) (2015-16). Ashley also appeals from an order that denied his postconviction motion without a hearing. He alleges that his trial counsel was ineffective for not calling his victim’s mother as a witness at trial. We conclude that trial counsel was not ineffective in her representation of Ashley and that the trial court properly exercised its discretion in denying his request for a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). We therefore affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Colin Turner v. Bounce Back LLC, et al.

Case No.: 2018AP352

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

Focus: Abuse of Discretion – Jury Instructions

Colin Turner was injured while jumping onto an inflatable airbag during Country Fest, a music festival organized by Chippewa Valley Music Festival (“Chippewa Valley”). Turner sued Chippewa Valley, along with Bounce Back LLC, d/b/a US Airbag, LLC, (“US Airbag”)—the entity that designed, owned, and operated the airbag—and Great Air, Inc., d/b/a N-Flatables, Inc., (“N-Flatables”)—the entity that sewed the airbag. Following a two-week trial, a jury found that US Airbag was negligent, but its negligence was not causal; that N-Flatables was not a manufacturer of the airbag; that Chippewa Valley was not negligent; and that Turner was 100% causally negligent. The jury declined to award Turner any damages.

Turner and Freedom Life Insurance Company of America (“Freedom”)—a subrogated insurer—now appeal, arguing: (1) the jury’s verdict was perverse; (2) the circuit court erroneously exercised its discretion in instructing the jury; (3) the court erroneously exercised its discretion by denying Turner and Freedom’s motion for default judgment or a mistrial as a sanction for a discovery violation by US Airbag and N-Flatables; (4) the court erred in its responses to other improper conduct by US Airbag’s counsel; and (5) Turner and Freedom are entitled to a new trial in the interest of justice. We reject each of these arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Colin J. Habram

Case No.: 2017AP2399-CR; 2017AP2400-CR

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

Focus: Postconviction Motion Denied

Colin Habram appeals judgments convicting him of maintaining a drug-trafficking place, arson, and intentional mistreatment of animals and an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District IV

Case Name: Mark J. Kuckuk v. Catherine E. Kuckuk

Case No.: 2017AP1149

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Divorce – Abuse of Discretion – Maintenance

Mark Kuckuk and Catherine Kuckuk were divorced in 2011, and the Green County Circuit Court entered post-divorce orders on March 14, 2017, and May 9, 2017, that are the subjects of this appeal. The March 14, 2017 order refers to three separate subjects. We conclude that Mark has failed to develop arguments regarding two of those subjects, and this court lacks jurisdiction over the third subject of that order. For those reasons, we affirm the circuit court’s order entered on March 14, 2017. The May 9, 2017 order increased Mark’s maintenance obligation, and Mark appeals only that portion of the order. We conclude that the circuit court erroneously exercised its discretion in increasing Mark’s maintenance obligation and reverse the circuit court’s May 9, 2017 order.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Feliciano T. Douglas

Case No.: 2017AP1913

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

Focus: Ineffective Assistance of Counsel

Feliciano Douglas appeals the circuit court’s order denying his WIS. STAT. § 974.06 (2015-16) motion to vacate his 2001 conviction and grant a new trial. Douglas argues that the circuit court erred in denying the motion. We conclude that the court properly denied the motion because Douglas has not shown that Douglas’s postconviction counsel in his direct appeal was ineffective by failing to raise claims that are clearly stronger than the claim that postconviction counsel did raise. We affirm.

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WI Court of Appeals – District II

Case Name: West Bend Mutual Insurance Co., et al. v. Calumet Equity Mutual Insurance Co.

Case No.: 2018AP435

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Insurance – Liability

Calumet Equity Mutual Insurance Company appeals orders of the Washington County Circuit Court granting summary judgment, awarding attorney fees to West Bend Mutual Insurance Company, and awarding attorney fees to David Schaefer. West Bend and David Schaefer contend that David is afforded coverage for claims against David in a previous lawsuit pursuant to a liability insurance policy issued by Calumet to Raymond Schaefer, David’s father. Calumet contends that the circuit court erred in concluding that David is an insured under Raymond’s Calumet policy because David’s pertinent conduct was that of a “person[] in the course of performing domestic duties that relate to the ‘insured premises.’” Applying controlling case law, we agree with Calumet and reverse with directions to the circuit court to enter summary judgment in favor of Calumet.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Francis E. Rychtik, Sr.

Case No.: 2018AP492-CR

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

Focus: Court Error – Restitution

Francis Rychtik, Sr., appeals a circuit court order of restitution arising out of his conviction for one count of homicide by intoxicated use of a vehicle and one count of injury by intoxicated use of a vehicle. Rychtik argues that the circuit court erred in determining that both the wife and mother of his victim were eligible for restitution. Rychtik also challenges the amount of restitution awarded. We conclude that the circuit court properly determined that the women were eligible for restitution. However, we also agree with the State’s concession that the circuit court erred by including in its calculation of the amount of restitution the bereavement leave of the victim’s wife. We therefore affirm in part, reverse in part, and remand with directions.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Terrie Myers, et al. v. Wisconsin Department of Natural Resources

Case No.: 2019 WI 5

Focus: Implicit Findings – Statutory Excemptions

Philip and Terrie Myers seek review of an unpublished per curiam decision of the court of appeals affirming in part and reversing in part the circuit court. The Myers seek review of the Wisconsin Department of Natural Resources’ (DNR) unilateral amendment to their pier permit.

On petition to this court, the Myers seek review of three issues: (1) whether the DNR had the authority to amend their permit; (2) whether two exemptions in Wis. Stat. § 30.12(1k) barred the DNR’s actions; and (3) whether the court of appeals could rely on “implicit findings” made by the DNR at a public informational hearing to conclude that the statutory exemptions in § 30.12(1k) did not apply to the Myers’ pier.

We conclude that the DNR did not have the authority to unilaterally amend the Myers’ permit. We therefore reverse the decision of the court of appeals. Because the DNR did not have the authority to amend the Myers’ permit, we need not reach the issues related to the application of the statutory exemptions set forth in Wis. Stat. § 30.12(1k).

Reversed

Concur:

Dissent: A. W. Bradley, J. dissents (opinion filed).

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WI Supreme Court

Case Name: The Yacht Club at Sister Bay Condominium Association, Inc.

Case No.: 2019 WI 4

Focus: Court Error – Public Nuisance – Notice of Injury

The petitioner, The Yacht Club at Sister Bay Condominium Association, seeks review of an unpublished, per curiam decision of the court of appeals affirming the circuit court’s order that dismissed its complaint against the Village of Sister Bay. The complaint alleged that some summer concerts held in a public park were a public and private nuisance. Affirming the dismissal, the court of appeals concluded that the Yacht Club failed to provide the Village with a timely written notice of injury and that each concert held by the Village does not constitute a new “event” giving rise to a new opportunity to file a notice of injury.

Before this court, the Yacht Club asserts that the court of appeals erred in failing to view each concert as a new nuisance prompting a new notice of injury period. Thus, in the Yacht Club’s view, it should not be barred from bringing future nuisance actions against the Village simply because it failed to complain within 120 days as required by Wis. Stat. § 893.80(1d)(a) (2015-16) about a noise nuisance from the first concert the Village held in 2014.

We conclude that each concert that is alleged to be a nuisance constitutes a separate event for purposes of filing a written notice of injury. However, because the Yacht Club failed to serve its written notice of injury within 120 days after the date of the last concert alleged to be a nuisance, its written notice of injury was not timely filed. Accordingly, we affirm in part and reverse in part the decision of the court of appeals and remand to the circuit court for further proceedings.

Affirmed in part, reversed in part, and cause remanded.

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Joseph R. Laumann

Case No.: 2019 WI 3

Focus: Attorney Disciplinary Hearing

The Office of Lawyer Regulation (OLR) and Attorney Joseph R. Laumann have filed a stipulation pursuant to Supreme Court Rule (SCR) 22.12 that Attorney Laumann’s license to practice law in this state should be suspended for six months, as discipline reciprocal to that imposed by the Court of Appeals of Maryland. After careful review of the matter, we approve the stipulation and impose the stipulated reciprocal discipline. The OLR does not seek the imposition of costs, and we impose none.

Affirmed

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Stokeling v. United States

Case No.: 17-5554

Focus: ACCA Violation

This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i). We conclude that it does.

Affirmed

Dissenting: SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and KAGAN, JJ., joined.

Concurring: THOMAS, J., delivered the opinion of the Court, in which BREYER, ALITO, GORSUCH, and KAVANAUGH, JJ., joined.

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United States Supreme Court

Case Name: New Prime Inc. v. Oliveira

Case No.: 17-340

Focus: Statutory Interpretation – Federal Arbitration Act

The Federal Arbitration Act requires courts to enforce private arbitration agreements. But like most laws, this one bears its qualifications. Among other things, §1 says that “nothing herein” may be used to compel arbitration in disputes involving the “contracts of employment” of certain transportation workers. 9 U. S. C. §1. And that qualification has sparked these questions: When a contract delegates questions of arbitrability to an arbitrator, must a court leave disputes over the application of §1’s exception for the arbitrator to resolve? And does the term “contracts of employment” refer only to contracts between employers and employees, or does it also reach contracts with independent contractors? Because courts across the country have disagreed on the answers to these questions, we took this case to resolve them.

Affirmed

Dissenting:

Concurring: GINSBURG, J., filed a concurring opinion.

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