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

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Danny J. Ray v. Nancy A. Berryhill

Case No.: 18-2229

Officials: WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.

Focus: ALJ Error – Disability Benefits

Danny Ray applied for Supplemental Security Income and Disability Insurance Benefits based on a host of physical disorders and mental conditions. An administrative law judge found that Ray was severely impaired by most of his physical conditions, but she denied benefits after finding that he could perform his past relevant work as a school bus monitor. Ray challenges that finding, arguing that the ALJ erroneously discredited him, failed to treat his prior job as “composite,” and improperly assessed his functional abilities compared to the job requirements for a bus monitor in the general economy. The district court affirmed the ALJ’s decision. We agree with Ray and vacate the judgment.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edward Boliaux

Case No.: 18-1322

Officials: WOOD, Chief Judge, and EASTERBROOK and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence

Between 2002 and 2008 Edward Boliaux operated EMC Automotive, a used-car dealership, in Joliet, Illinois. He borrowed money from three lenders, using inventory as security. Most loans were secured by the cars’ certificates of title, a device called floorplanning. Because there is supposed to be only one title certificate per car, the dealer cannot transfer good title to a customer without paying the lender. Although lenders may allow sales to precede payment, they demand that the money be held in trust until the loan is retired. But beginning in 2007 Boliaux persuaded state officials to issue duplicate certificates of title on the pretense that the originals had been lost. He used these to obtain multiple loans against single vehicles, exceeding the cars’ market value and leaving the lenders under secured. He also began to sell cars without using the proceeds to repay the loans. After one of the lenders detected this and impounded the collateral, Boliaux persuaded the custodian to release eight cars, which he sold for his own benefit.

Boliaux contends that the evidence was insufficient—on the wire fraud counts principally because he did not transmit anything by wire, and on the bank fraud counts principally because no one from the banks testified that the banks lost money. The district court addressed these and other contentions when denying Boliaux’s motion under Fed. R. Crim. P. 29:\.

The district judge did not abuse his discretion by permitting Brincat to testify. He did not describe any special features of AFC’s practices or any of the dealings between AFC and Boliaux. The jury surely understood Brincat to be testifying exclusively as an expert. We are surprised that the prosecutor would present Brincat as an expert, enabling the defense to paint a vital witness as biased, but puzzling decisions do not make evidence inadmissible. Boliaux presents a few additional arguments, which do not require discussion. They have been considered and are rejected.

Galvan established $1,000 as the presumptive fine for a violation of Circuit Rule 30 in a criminal case. 92 F.3d at 584– 85. See also, e.g., United States v. Evans, 270 F.3d 1076, 1085 (7th Cir. 2001). Adjusting for inflation, $1,000 in 1996 is equivalent to $1,597 today. This implies that the presumptive fine should become $1,600. Counsel has 14 days to show cause why he should not be fined $1,600, and reprimanded, for his violation of Circuit Rule 30(b) and his false statement under Circuit Rule 30(d). The judgment is affirmed, and an order to show cause will be issued.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Samuel J. Yarber

Case No.: 18-1469

Officials: MANION, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Search Warrant – Probable Cause

Police in Champaign, Illinois obtained warrants to search two apartments connected to Samuel Yarber. The searches turned up drugs and handguns and ultimately led to Yarber’s convictions for federal narcotics and firearms offenses. Along the way, Yarber challenged the warrant to search one of the apartments as unsupported by probable cause. While the warrant affidavit fell short in one respect—it did not establish that Yarber lived at the apartment and thus could not support an inference that evidence of his drug-dealing would be kept there—it nonetheless contained other facts sufficient to establish probable cause. And in any event the police relied in good faith upon the warrant. On this record, then, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Red Barn Motors, Inc. et al. v. NextGear Capital, Inc. 

Case No.: 18-1409

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

Focus: Court Error – Abuse of Discretion

This appeal presents us with only the narrow issue of whether the district court erred in rescinding class certification. The defendant-appellee, NextGear Capital, Inc., formerly known as Dealer Services Corporation, provided lines of credit for financing the operations of used car dealerships. The plaintiffs Red Barn Motors, Inc., Platinum Motors, Inc. and Mattingly Auto Sales, Inc., operated used car dealerships, and were solicited by NextGear to enter into a contract called a Demand Promissory Note and Security Agreement (the “Agreement”), whereby NextGear would issue a line of credit for them to access in purchasing used vehicles at automobile auctions. Those agreements provided the plaintiffs with a revolving line of credit, called a floorplan agreement, to purchase vehicles at the auction which they subsequently would sell at their dealerships.

We review a district court’s decision to grant or deny certification for abuse of discretion. Chicago Teachers Union, Local No. 1, 797 F.3d at 433. We have recognized, however, that such review, while deferential, “can and must also be exacting.” Id. A decision to deny or grant certification can have a considerable impact on the playing field of litigation and requires a rigorous analysis. Id.; Bell v. PNC Bank, National Association, 800 F.3d 360, 373 (7th Cir. 2015).

The decision of the district court is VACATED and the case REMANDED for further proceedings.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Kurt V. Cornielsen, et al. v. Infinium Capital Management, LLC

Case No.: 17-2583

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.

Focus: Failure to State Claim

Plaintiffs‐appellants, 39 former employees of Infinium Capital Management, LLC, voluntarily converted loans they had made to their employer under the company’s Employee Capital Pool program into equity in the company. A year later their redemption rights were suspended, and six months after that, they were told their investments were worthless. Plaintiffs filed suit against their employer, the holding company that owned their employer, and several members of the senior management, asserting claims for federal securities fraud and state law claims for breach of fiduciary duty and fraud. This appeal is from the district court’s order dismissing with prejudice their fifth amended complaint for failure to state a claim. For the reasons that follow, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Veronica Price, et al. v. City of Chicago, et al.

Case No.: 17-2196

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.

Focus: 1^st Amendment Violation

Pro-life “sidewalk counselors” sued to enjoin Chicago’s “bubble zone” ordinance, which bars them from approaching within eight feet of a person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, leafletting, handbilling, or protest. The plaintiffs contend that the floating bubble zone is a facially unconstitutional content-based restriction on the freedom of speech. The district judge dismissed the claim, relying on Hill v. Colorado, 530 U.S. 703 (2000), which upheld a nearly identical Colorado law against a similar First Amendment challenge.

Hill’s content-neutrality holding is hard to reconcile with both McCullen and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), and its narrow-tailoring holding is in tension with McCullen. Still, neither McCullen nor Reed overruled Hill, so it remains binding on us. Moreover, Chicago’s bubble-zone law is narrower than the one upheld in Hill: Colorado’s no approach zone applies within a 100-foot radius of a clinic entrance; Chicago’s applies within a 50-foot radius. Lastly, we would open a circuit split if we allowed this facial challenge to move forward. The Third Circuit, applying Hill, upheld Pittsburgh’s 8-foot bubble zone against a facial challenge without requiring an evidentiary showing from the City. See Brown v. City of Pittsburgh, 586 F.3d 263, 270–73 (3d Cir. 2009). We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Construction and General Laborers’ Union No. 330, et al. v. Town of Grand Chute

Case No.: 18-1739

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

Focus: Ordinance Interpretation – 1^st Amendment

Scabby the Rat has returned. Insofar as this case is concerned, he first made his appearance in the Town of Grand Chute, Wisconsin, in connection with a labor dispute there. When the Union could not persuade the district court to enjoin a Town ordinance forbidding Scabby’s presence, it appealed to this court. We were concerned, however, that the case might be moot, because the construction project Scabby had adorned was long since completed. Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute, Wisconsin, 834 F.3d 745 (7th Cir. 2016) (Scabby I). We therefore returned the case to the district court for further exploration of the original controversy and the significance, if any, of a replacement ordinance the Town enacted in 2015.

The district court did as we asked. Construction and General Laborers’ Local Union No. 330 v. Town of Grand Chute, 297 F. Supp. 3d 850 (E.D. Wis. 2018) (Scabby II). It concluded that the case was not moot, because the Union was seeking damages stemming from the 2014 events. On the merits, the court held that the Town did not discriminate against the Union in violation of the First Amendment when it banned Scabby under its 2014 Sign Ordinance, and that the 2015 Sign Ordinance also passed constitutional muster. The Union has appealed from those rulings. We conclude that the district court correctly concluded that the dispute over the 2014 Ordinance was not moot, and that the Ordinance did not discriminate on the basis of content in violation of the First Amendment. Whatever dispute may exist over the 2015 Ordinance is not ripe at this time, however, and so we dismiss that part of the case without prejudice.

Affirmed in part. Vacated and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: ARC Welding Supply Co., Inc., et al. v. American Welding & Gas, Inc.,  

Case No.: 18-1546

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

Focus: Court Error –Damage Award – Breach of Contract 

This case arises from an Asset Purchase Agreement (the “Agreement”) entered into in October 2014 between the plaintiffs, ARC Welding Supply Co. and its owner Charles McCormick (collectively “ARC”), and the defendant American Welding & Gas, Inc. (“American”). ARC was a distributor of compressed gases and welding supplies in Vincennes, Indiana, and sold substantially all of its assets to American including its stock of asset cylinders. ARC filed a complaint alleging that American breached the terms of the Agreement for the purchase of the asset cylinders, and American filed a counterclaim for breach of contract. Following a bench trial, the district court entered judgment in favor of American and awarded damages in the amount of $33,765.52 plus interest, and ARC now appeals.

ARC now appeals the court’s decision. In an appeal from a bench trial, we review the district court’s findings of fact for clear error, and its conclusions of law de novo. Rain v. Rolls Royce Corp., 626 F.3d 372, 379 (7th Cir. 2010). “Under Indiana state law, the court’s goal in interpreting a contract is to ‘give effect to the parties’ intent as reasonably manifested by the language of the agreement.’” Id., quoting Reuille v. E.E. Brandenberger Constr., Inc., 888 N.E.2d 770, 771 (Ind. 2008). Unless terms of a contract are ambiguous, the court will give the terms their ordinary and plain meaning. Id. The district court met that standard in this case, interpreting the contract consistent with the plain and ordinary meaning of the words.

ARC argues that the district court erred in determining that McCormick extended the deadline for the completion of the audit. According to ARC, the Agreement could not be extended by McCormick because it was fundamentally a contract for the sale of goods and the Uniform Commercial Code (UCC) prohibits the oral modification of such contracts, and because the parol evidence rule forbids oral modification of contracts such as the Agreement that are totally integrated and expressly prohibit oral modifications. It further argues that American breached the contract by failing to tender a verified count within the required time period.

Finally, ARC claims that the district court erred in basing its damage award on a $125 valuation for the cylinders. ARC asserts that the valuation cannot be proper because if all 6,500 asset cylinders were valued at $125, the total of $812,500 would greatly exceed the contract price for all of ARC’s fixed assets and asset cylinders of $603,905. As ARC recognizes, however, asset cylinders can vary in value from $30 to $1,200 each, and therefore the value of the asset cylinders which ARC failed to provide would depend on the cylinder type. The parties to the contract determined that the cylinders should be valued at $125, with that amount deducted from the Cylinder Deferred Payment for a shortfall or added to the Cylinder Deferred Payment if the asset cylinder number exceeded 6,500. The court did not err in using the valuation for the cylinders that the parties themselves deemed the proper number.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dimitris Terry

Case No.: 18-1305

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

Focus: Motion to Suppress – Warrantless Search

Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence? We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property.

The evidence discovered in Terry’s apartment was the fruit of an unconstitutional search, so the district court should have granted his motion to suppress it. But the district court properly denied Terry’s motion to suppress his post‐arrest statements. We therefore REVERSE in part, VACATE the conviction, and REMAND for proceedings consistent with this opinion.

Reversed in part. Vacated and Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Marshall Spiegel v. Corrine McClintic, et al.

Case No.: 18-1070

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

Focus: Frivolous Case – Intrusion on Seclusion – Baseless Constitutional Violations

Marshall Spiegel believes that Corrine McClintic (and her husband William) have been violating condominium association rules since the McClintics purchased a unit in the building where he lives. To document their perceived violations, Spiegel took to photographing and filming the McClintics. In response to his less‐than‐subtle surveillance, Corrine McClintic began filing police reports. Spiegel was not arrested. But members of the Village of Wilmette Police Department threatened him with arrest for disorderly conduct if he persists in photographing and videotaping the McClintics. Spiegel subsequently sued Corrine and the Village of Wilmette. In his second amended complaint—the dismissal of which Spiegel now appeals—he argues that Wilmette and McClintic conspired together to violate his constitutional rights. He further claims that Corrine intruded upon his seclusion, in violation of Illinois law, by photographing the interior of his condominium. Because Spiegel has not identified a constitutional violation or shown that he suffered damages from the alleged intrusion upon his seclusion, we affirm the dismissal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Raymond L. Henderson

Case No.: 17-3549

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

Focus: Collateral Order Doctrine

Raymond Henderson was arraigned on drug and firearm charges while shackled with leg irons and handcuffs connected to a waist chain. His attorney asked the district judge to have the shackles removed. The judge denied the request, deferring to the United States Marshals Service’s policy of using full restraints on prisoners at every nonjury court appearance. Henderson appealed the ruling, relying on the collateral-order doctrine to support interlocutory review. After oral argument we ordered supplemental briefing on the possibility of mandamus as an alternative means of review if Henderson’s argument about the collateral-order doctrine failed. We also gave the judge an opportunity to respond as provided in Rule 21 of the Federal Rules of Appellate Procedure, which governs mandamus procedure. She has done so. We now hold that the collateral-order doctrine does not apply and decline to reframe the appeal as a petition for a writ of mandamus. We therefore dismiss the appeal for lack of jurisdiction.

Dismissed

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7^th Circuit Court of Appeals

Case Name: United States of American v. Lawrence D. Adkinson

Case No.: 17-3381

Officials: WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit Judges.

Focus: Abuse of Discretion – Jurisdiction

Lawrence Adkinson, Jeffrey Kemp, Paul Grissom, and Justin Martin (all of whom are appellants in this consolidated appeal) were prosecuted for robbing T-Mobile and other cellphone stores. Adkinson, who is African-American, challenges two of the district court’s pretrial rulings. The first ruling denied his motion to transfer the case to a venue where he potentially would have had more African-American jurors on the venire. The second ruling denied his motion to suppress information that T-Mobile gave to law enforcement about the approximate location of his cellphone during the robberies. Because the district court did not abuse its discretion in denying Adkinson’s motion to transfer venue, nor violate his Fourth Amendment rights by admitting certain cell-site location information, we affirm the judgment against Adkinson. We address the other defendants’ appeals in a separate order.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Roman Lee Jones v. Robert E. Carter, Jr. Commissioner, Indiana Department of Correction

Case No.: 17-2836

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

Focus: Prisoner – RLUIPA Violation

While a serving of meat from a prison kitchen would not prompt most Americans to run to a federal courthouse, it raises a critical problem for Indiana inmate Roman Lee Jones. Jones adheres to a sect of Islam that requires its members to follow a diet that regularly includes halal meat. It would not cost the state of Indiana a single penny to provide Jones with the diet he has requested. The only question before us in this appeal is whether Indiana’s refusal to provide Jones with meat substantially burdens his exercise of religion under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. We hold that it does.

On appeal, the DOC does not contest the sincerity of Jones’s belief or the district court’s finding that the DOC lacked a sufficient justification for its treatment of Jones. The sole issue the DOC raises is whether the district court erred in holding that Jones was substantially burdened by the vegetarian kosher diet when, as the DOC argues, he could have purchased the halal meat he needs to supplement his diet at the prison commissary. The DOC characterizes Jones’s lack of meat as the result of “his own spending choices,” not the result of any DOC action. It urges us to find that nothing less than the coercive pressure of the choice between violating his religion and facing starvation qualifies as a substantial burden under RLUIPA.

The DOC’s final pitch is that it should not have to “subsidize” or “underwrite” Jones’s religious diet. Perhaps it fears escalating costs. It did not, however, appeal the question of the state’s interest. The district court held that on this record, DOC did not demonstrate that any such risk exists, and we have no reason to take issue with its conclusion. This is not a class action, and Jones is asking only to receive the same kosher trays that DOC is already providing to other inmates. If enough other inmates come along and express the same religiously based need, then the state always has the option of adding halal or kosher meat to its new kitchens (if that appears to be the cost-effective way to handle the issue). But that is not our case, and we see no reason to opine on a hypothetical situation. That forbearance is especially appropriate given the fact that Jones’s belief that eating meat is a requirement for devout Muslims appears to be a minority view within Islam. We AFFIRM the judgment of the district court.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Desmond Dejuan Laster

Case No.: 2017AP304

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

Focus: Ineffective Assistance of Counsel

Desmond Dejuan Laster appeals the circuit court’s order denying his motion for postconviction relief brought pursuant to WIS. STAT. § 974.06 (2017-18). Laster argues: (1) he received ineffective assistance of trial counsel; (2) he received ineffective assistance of appellate counsel; (3) he is entitled to a new trial based on newly discovered evidence; and (4) the trial judge was biased. We reject these arguments. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin Ex Rel. Carlos Abadia v. Wisconsin Parole Commission, Daniel J. Gabler

Case No.: 2017AP994

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

Focus: Court Error – Jurisdiction

Carlos A. Abadia appeals the circuit court’s order affirming the Wisconsin Parole Commission’s decision. Abadia argues: (1) the Commission’s decision was arbitrary; (2) the circuit court erred because it did not retain jurisdiction when it remanded this matter to the Commission; (3) the Commission’s decision after remand was arbitrary; and (4) his risk rating was improperly increased from low to moderate based on the Commission’s decision. We affirm.

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WI Court of Appeals – District III

Case Name: Paula Langenhahn, et al. v. West Bend Mut. Ins. Co., et al.

Case No.: 2017AP2178

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

Focus:  Insurance Claim – Recreational Immunity                     

Paula Langenhahn was injured when she tripped on a barricade positioned in an unmarked crosswalk while exiting Marathon Fun Days, a four-day community event held on park grounds in the Village of Marathon City. Paula and her husband, Keith Langenhahn, appeal a summary judgment dismissing their personal injury claims against the event organizer, American Legion Post 469, and its insurer, West Bend Mutual Insurance Company. The Langenhahns argue summary judgment on recreational immunity grounds was improper because Post 469 was not a statutory “owner,” in that it did not “occupy” the crosswalk where Paula was injured. They also argue the circuit court improperly applied recreational immunity because Paula was not engaged in a recreational activity at the time of her injury.

We conclude the circuit court properly granted Post 469’s summary judgment motion. Case law establishes that the producer or organizer of a recreational event like Marathon Fun Days “occupies” the real property on which the event is held, and it is therefore considered an “owner” of the property for purposes of recreational immunity. Moreover, the undisputed evidence in this case establishes that Paula’s injury occurred on real property dedicated to a recreational use. Finally, Paula was walking to exit the Marathon Fun Days event at the time of her injury, an act that itself constitutes a recreational activity because it was “inextricably connected” to her attendance at that event. We affirm.

Affirmed
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WI Court of Appeals – District I

Case Name: State of Wisconsin Ex Rel. Keith Myers v. Brian Hayes, Administrator, Division of Hearing and Appeals

Case No.: 2017AP2269

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

Focus: Due Process Violation

Keith Myers, pro se, appeals a circuit court order affirming the decision of the Administrator of the Department of Administration, Division of Hearings and Appeals (the Division). Myers sought certiorari review of the Division’s revocation of his extended supervision. The circuit court denied relief. On appeal to this court, Myers argues: (1) the evidence does not support the revocation decision; (2) the Division’s decision to revoke his supervision was arbitrary, oppressive, and unreasonable; and (3) the administrative procedure violated his right to due process. We reject his contentions and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Darwin R. Davis

Case No.: 2018AP4-CR

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

Focus: Ineffective Assistance of Counsel

Darwin Davis appeals from a judgment convicting him of four counts of second-degree sexual assault of a child and from an order denying his motion for postconviction relief. Davis raises multiple claims of ineffective assistance of counsel and due process violations. We conclude that Davis has failed to demonstrate prejudice on any of the ineffective assistance of counsel claims, and that each of the due process claims was either forfeited or lacks merit. Accordingly, we affirm the judgment and the order of the circuit court.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. James R. Mueller

Case No.: 2018AP44-CR

Officials: HRUZ, J.

Focus: Sufficiency of Evidence

James Mueller appeals a judgment, entered following a jury trial, convicting him of fourth-offense operating a motor vehicle while under the influence of intoxicants or drugs. Mueller argues the circuit court erred by denying his motion to suppress evidence obtained after a traffic stop, contending the police officer lacked reasonable suspicion to extend the traffic stop and lacked probable cause to arrest Mueller. Mueller also challenges the sufficiency of the evidence upon which the jury found him guilty. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marco A. Lopez, Sr.,

Case No.: 2018AP159-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Abuse of Discretion – Other Acts Evidence

Marco A. Lopez, Sr. appeals a judgment of conviction, entered on a jury verdict, for four counts of first-degree sexual assault of a child. The charges related to two relatives of Lopez who had been children at the time of the assaults. Lopez argues that he is entitled to a new trial because the trial court erroneously exercised its discretion when it permitted the State to present other acts evidence from two witnesses, also relatives of Lopez, who testified that they had been molested by Lopez when they were under the age of thirteen. We conclude that the trial court properly exercised its discretion in permitting the other acts evidence because the evidence satisfied the Sullivan test and its probative value was not outweighed by the danger of unfair prejudice. We therefore affirm.

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WI Court of Appeals – District I

Case Name: Deutsche Bank National Trust Company v. Brittany A. Buboltz, et al.

Case No.: 2018AP263

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

Focus: Foreclosure – Good Faith

Deutsche Bank National Trust Company appeals from the judgment in favor of Brittany Buboltz and Alec Dishaw (collectively Purchasers), dismissing Deutsche Bank’s foreclosure action against the Purchasers with prejudice. The trial court found that Deutsche Bank was barred from pursuing the foreclosure action pursuant to WIS. STAT. § 806.07(2) as a matter of law. It also found that equitably, Deutsche Bank should not be able to sit on its hands beyond the one year period in § 806.07(2). The trial court then granted summary judgment in favor of the Purchasers and dismissed Deutsche Bank’s claim, with prejudice and on the merits. This appeal followed.

On appeal, Deutsche Bank argues that the trial court erred in granting summary judgment in favor of the Purchasers because: (1) its mortgage was a prior, superior interest of record; (2) the stipulation did not discharge the mortgage; (3) WIS. STAT. § 806.07(2) does not apply where the prior foreclosure action was dismissed without prejudice; (4) the Purchasers were not good faith purchasers; and (5) the trial court erred because the Purchasers did not prove estoppel and/or laches. The Purchasers argue that the mortgage was extinguished by the stipulation and order, and that the mortgage is unenforceable as a matter of equity. We reverse the trial court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Pierre DeShawn Johnson

Case No.: 2018AP595-CR

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

Focus: Sentence Modification

Pierre Deshawn Johnson appeals the judgment of conviction, entered upon guilty pleas, of one count of knowingly operating a motor vehicle with a suspended license, causing great bodily harm, and one count of injury by operation of a motor vehicle while under the influence of a controlled substance. Johnson also appeals the order denying his postconviction motion for sentence modification. We affirm.

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WI Court of Appeals – District II

Case Name: Jennifer Dawn Johnson v. Sean Michael Faris

Case No.: 2017AP1590

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

Focus: Divorce – Maintenance and Child Support

Sean Michael Faris appeals pro se from an order dismissing his motion to review family support, terminate maintenance, and set child support. For the reasons discussed below, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Gary W. Bahr

Case No.: 2017AP1806-CR

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

Focus: OWI – Competency

Gary W. Bahr appeals from a judgment convicting him of operating a vehicle with a prohibited alcohol concentration (7th, 8th, or 9th offense). He contends that the circuit court erred in finding him competent to stand trial. We disagree and affirm.

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WI Court of Appeals – District II

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

Case No.: 2017AP2420-CR

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

Focus: Sufficiency of Evidence

David A. Pierce appeals from a judgment entered on jury verdicts convicting him of five counts of theft by fraud and one count of theft by contractor. We reject his contentions that the evidence was not sufficient to convict him, that his trial counsel was ineffective, and that he merits a new trial in the interest of justice. We affirm the judgment of conviction and the order denying his motion for postconviction relief.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Tommie E. Evans

Case No.: 2018AP240-CR

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

Focus: Evidentiary Hearing

Tommie Evans appeals a judgment of conviction and an order denying his postconviction motion. The issue is whether he should have received an evidentiary hearing on his postconviction motion. We affirm.

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WI Court of Appeals – District IV

Case Name: The Estate of Nancy A. Glumske v. Sean Yetman, M.D., et al.

Case No.: 2018AP715

Officials: Kloppenburg, Sherman and Fitzpatrick, JJ.

Focus: Malpractice – Statute of Limitations

Gerald Glumske appeals a summary judgment dismissing his negligence suit against Dr. Sean Yetman and related health providers and insurers. Gerald alleged that Yetman negligently performed heart surgery on his wife, Nancy Glumske, which resulted in her death. Yetman moved for summary judgment on the ground that Gerald’s action is time-barred by the three-year statute of limitations for medical malpractice actions contained in WIS. STAT. § 893.55(1m)(a) (2017-18). In response, Gerald contended that his action fell within the “discovery rule” contained in § 893.55(1m)(b), which allows a complaint to be brought within one year from the date a plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the injury complained of. The circuit court determined that Gerald did not exercise reasonable diligence in discovering the alleged negligence and declined to apply the discovery rule. The court then granted summary judgment to Yetman, dismissing the complaint.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Melodie Cheree Taylor

Case No.: 2018AP1953-CR

Officials: BLANCHARD, J.

Focus: Statutory Interpretation

Melodie Taylor appeals a judgment of conviction, following a jury trial, for misdemeanor bail jumping, contrary to WIS. STAT. § 946.49(1)(a). Taylor effectively makes a single, narrow argument. She contends that, for the State to prevail on the misdemeanor bail jumping charge against her, it had to show that she had been charged with the underlying misdemeanor offense in a criminal complaint, and that the State failed to make that showing. I conclude, based on case law, that on this narrow issue it was sufficient for the State to allege and prove a release from custody under Chapter 969 following an arrest. Accordingly, I affirm.

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