Weekly Case Digests – May 13, 2019 – May 17, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Deandre Cherry

Case No.: 17-3018

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

Focus: Probable Cause

Deandre Cherry’s heroin customers had been complaining about the poor quality of his supply, so on a rainy night in May 2012, he drove into a parking lot in Markham, Illinois hoping to exchange his inventory of low‐ quality heroin for a better supply of cocaine that his supplier had just picked up at O’Hare airport. Unbeknownst to Cherry, however, his supplier had just been arrested picking up the cocaine and, since his hopes were for a better deal for himself, decided to cooperate and help the Drug Enforcement Agency (DEA) agents ensnare another dealer down the line. Instead of the exchange, Cherry was arrested mid‐deal and eventually sentenced to 240 months’ imprisonment. Cherry appeals, claiming the agents lacked probable cause to arrest him and search his vehicle. He also claims they failed to preserve exculpatory evidence. We affirm the holding of the district court in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Brock Industrial Services, LLC, v. Laborers’ International Union of North America Construction, et al.

Case No.: 17-2597; 17-2688

Officials: BAUER, SYKES, and BARRETT, Circuit Judges.

Focus: Abuse of Discretion – Jurisdiction

Brock Industrial Services, LLC, is an Illinois-based provider of industrial services, including scaffolding, painting, insulation, and shoring. In January 2016 it entered into a labor agreement with Local 100 of the Laborers’ International Union (“the Laborers Union” or “the Laborers”). The agreement requires arbitration of grievances and establishes a bipartite arbitration procedure for resolving most disputes. But work-jurisdiction disputes—disputes over whether the Laborers or another union is entitled to perform work—are instead subject to a tripartite arbitration procedure involving the company and the contending unions.

Brock filed suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, seeking to vacate the Subcommittee’s decision. The Laborers Union responded with a request to enforce the decision. After a flurry of motions on both sides, the district judge determined that the Subcommittee had authority to resolve the dispute and issued an order enforcing its decision. Brock appealed. Under the mistaken impression that the judge had denied the motion to enforce, the Laborers Union also appealed.

We reverse. At bottom, this grievance concerns which of two unions was entitled to perform the scaffolding work at the chemical plant. That’s a jurisdictional dispute, and the labor agreement calls for tripartite arbitration of jurisdictional disputes. Accordingly, the Subcommittee had no authority over the matter and its decision must be vacated.

Reversed

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7^th Circuit Court of Appeals

Case Name: Sanchelima International, Inc., et al. v. Walker Stainless Equipment Co., LLC, et al.

Case No.: 18-1823

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

Focus: Limited Remedy – Uniform Commercial Code

Decades ago, the Wisconsin Supreme Court interpreted two limited remedy provisions of the Uniform Commercial Code in Murray v. Holiday Rambler, Inc., 265 N.W.2d 513 (Wis. 1978). Wisconsin courts, and this court, have faithfully applied Murray since. But several other states have interpreted the same UCC provisions differently. On this basis alone, appellants ask us to overturn Murray, or at the least to certify the question to the Wisconsin Supreme Court. We cannot overturn established state precedent simply because it may be out of step with modern trends. A Japanese proverb may teach that “the nail that sticks out gets hammered down.” But federal courts wield no such hammer when it comes to issues of state law. Murray remains the binding interpretation under Wisconsin law until and unless the Wisconsin Supreme Court decides to overturn it.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kevin W. Culp, et al. v. Kwame Raoul, et al.

Case No.: 17-2998

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

Focus: 2^nd Amendment Violation – Privileges and Immunities Clause

Before us is a challenge to the scheme Illinois has enacted to license the concealed carry of firearms. The plaintiffs are out-of-state residents who contend that Illinois law discriminates against them in a way that forecloses their receiving a license in violation of the Second Amendment and the Privileges and Immunities Clause of the U.S. Constitution. Two years ago we considered and rejected the same challenge from the same parties in an appeal from the denial of their request for a preliminary injunction. The case returns on the same evidentiary record following entry of summary judgment for the State.

The State has sought to overcome this information deficit not by holding out-of-state residents to different standards than residents for obtaining a concealed-carry license, but by issuing licenses only to nonresidents living in states with licensing standards substantially similar to those of Illinois. In this way, Illinois’s “substantially similar” requirement functions as a regulatory proxy, as the State’s indirect means of obtaining adequate assurances that individuals licensed to carry a firearm in public remain fit and qualified to do so.

We conclude that Illinois’s substantial-similarity requirement—the centerpiece of its approach to nonresident concealed-carry licensing—respects the Second Amendment without offending the anti-discrimination principle at the heart of Article IV’s Privileges and Immunities Clause.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Pierce County Department of Human Services v. J.S.N.

Case No.: 2017AP1550

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

Focus: Guardianship and Protective Placement

J.S.N. appeals orders that protectively placed his father, J.J.N.; appointed guardians of J.J.N.’s person and estate; and revoked J.J.N.’s power of attorney documents. Having identified J.S.N.’s arguments as best we are able, we reject those arguments and affirm the orders for the reasons explained below.

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WI Court of Appeals – District III

Case Name: Nevin L. Smith, et al. v. Dale Goshaw, et al.

Case No.: 2017AP2008

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

Focus: Jury Instructions

Dale Goshaw and Auto-Owners Insurance Company appeal a money judgment entered in favor of Nevin Smith in this negligence action. Smith, a tenant at an apartment building owned by Goshaw, sustained injuries when the fire escape he was standing on outside the building collapsed. At trial, Smith requested a modification to the standard jury instruction regarding a landlord’s duty of ordinary care to a tenant, WIS JI—CIVIL 8020 (2013). The modification added: “Every building and all parts thereof shall be kept in good repair.” After being given this modified instruction over Goshaw’s objection, the jury found Goshaw negligent with respect to the inspection, maintenance and repair of the premises, and it awarded Smith damages.

We conclude the modification to the 8020 instruction was erroneous and had the likely effect of misleading the jury regarding the correct legal standard for negligence. We also conclude Goshaw was prejudiced by the erroneous instruction because the instruction invited the jury to apply an incorrect legal standard and because it was highlighted by Smith’s counsel during his closing argument. Accordingly, we reverse the judgment and remand for a new trial.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jack McKenzie Wingo, III,

Case No.: 2018AP111-CR

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

Focus: Sufficiency of Evidence

Jack McKenzie Wingo, III, appeals a judgment of conviction entered after a jury found him guilty of four felonies. The only issue on appeal is whether the evidence was sufficient to sustain the convictions. We affirm.

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WI Court of Appeals – District III

Case Name: Marathon County v. M.C., et al.

Case No.: 2018AP546

Officials: STARK, P.J.

Focus: CHIPS – Failure to Appoint Guardian Ad Litem

M.C. appeals a case closure order entered in a CHIPS proceeding regarding his son, Alex. In that order, the Marathon County Circuit Court granted primary physical placement of Alex to his mother, A.B., during the school year and granted M.C. and A.B. joint legal custody. On appeal, M.C. argues the circuit court erred by: (1) failing to appoint a guardian ad litem (GAL) for Alex to provide an opinion regarding Alex’s best interests related to the allocation of legal custody and physical placement between his parents; (2) using a contract analysis to determine legal custody and physical placement, rather than considering Alex’s best interests; and (3) limiting the evidence it considered to the time period between September 28, 2017, and December 29, 2017. M.C. argues these errors render the case closure order void, and an Outagamie County order dated December 21, 2017, is therefore the operative order concerning Alex’s legal custody and physical placement.

We agree with M.C. that the circuit court erred by failing to appoint a GAL for Alex to provide an opinion regarding his best interests related to the allocation of legal custody and physical placement between his parents. We further agree that the court’s failure to appoint a GAL renders the case closure order void. Because the dispositional order in the CHIPS proceedings has expired, the court is no longer competent to enter orders regarding Alex’s legal custody and physical placement. The Outagamie County order dated December 21, 2017, is therefore the operative order concerning those issues.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Calvin Lee Brown

Case No.: 2018AP766-CR

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

Focus: Probable Cause

Calvin Lee Brown appeals a judgment of conviction, entered upon guilty pleas, to one count of possession of heroin with intent to deliver and one count of human trafficking. Brown also appeals the order denying his postconviction motion for relief.  On appeal, Brown reiterates the argument made in his postconviction motion, namely, that he was entitled to a Franks/Mann hearing because Stachula’s affidavit deliberately excluded information pertaining to J.R.R.’s credibility as an informant.

We agree with the State that “[t]he officers’ corroboration of [J.R.R.]’s statements through surveillance, a traffic stop, record checks, and an examination of the [website] advertisements significantly enhanced the observational reliability of [J.R.R.’s] detailed allegations.” The information in the affidavit was accurate, corroborated, and sufficient for a magistrate to determine probable cause. Based on the totality of these circumstances, the omitted information was not critical to a probable cause determination. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Karl J. Landt

Case No.: 2017AP2151-CR; 2017AP2152-CR; 2017AP2153-CR

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

Focus: Plea & Sentencing

Karl J. Landt appeals from a judgment convicting him as a party to the crime of forty-seven counts of capturing a nude image, charged across three cases, and from an order denying his postconviction motion for plea withdrawal and sentence modification. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Thomas J. Blake

Case No.: 2018AP592

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

Focus: Newly Discovered Evidence

Thomas J. Blake appeals, pro se, from an order of the circuit court denying his WIS. STAT. § 974.06 (2017-18) postconviction motion. As we reject all of Blake’s arguments on the basis of State v. Romero Georgana, 2014 WI 83, 360 Wis. 2d 522, 849 N.W.2d 668, we affirm.

In Blake’s current appeal, he argues that the circuit court erred in denying his WIS. STAT. § 974.06 motion. He renews some of the arguments he made in his § 974.06 motion to the circuit court, others he fails to renew on appeal, and some he brings for the first time. He asks that this court “suppress and dismiss any and all evidence pertaining to Blake’s investigation and conviction,” reverse his no contest plea, and set a trial date. We reject Blake’s arguments for the following reasons. Based on our review, it appears that Blake’s arguments can be narrowed into three general claims: (1) ineffective assistance of counsel, (2) newly discovered evidence, and (3) the circuit court’s error in denying his WIS. STAT. § 974.06 motion.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kurt F. Froebel

Case No.: 2018AP1083

Officials: NEUBAUER, C.J.

Focus: Sufficiency of Evidence

Kurt F. Froebel appeals from a judgment convicting him of interfering with lawful hunting, contrary to WIS. STAT. § 29.083(2)(a). Froebel argues his conviction should be overturned for three reasons: the evidence does not show that he impeded or obstructed the hunters, the hunters were not engaged in “lawful” hunting, and the evidence does not show that Froebel’s intent was to prevent the taking of a wild animal. Because the evidence sufficiently shows Froebel impeded or obstructed the hunters whose hunting was not shown to be unlawful and whose plain intent was to prevent the taking of a wild animal, we affirm.

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WI Court of Appeals – District IV

Case Name: Dale Sanders, et al. v. Eleanor P. Hertel

Case No.: 2018AP265

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Breach of Contract – Misrepresentation

Wendy Sanders and Dale Sanders purchased a home from Eleanor Hertel and then sued Hertel for breach of contract and misrepresentation, claiming that Hertel was aware of, but failed to properly disclose, certain defects of the home in the seller’s Real Estate Condition Report. In order to prevail on each of these claims, the Sanderses must prove that they reasonably relied on Hertel’s representations in the Report. The circuit court dismissed the Sanderses’ claims on summary judgment. The Sanderses, pro se, appeal. We affirm.

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WI Court of Appeals – District II

Case Name: Mary Jane Pence, et al. v. Joan R. Slate, et al.

Case No.: 2018AP652

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

Focus: Malpractice – Auric Exception

Wisconsin has a long-standing rule that an attorney is not liable to a non-client for “acts committed in the exercise of his [or her] duties as an attorney.” See Auric v. Continental Cas. Co., 111 Wis. 2d 507, 512, 331 N.W.2d 325 (1983). There are exceptions to this rule and one of those exceptions, established in Auric, applies in the estate-planning context.

In this case, beneficiaries of a trust seek to hold an attorney liable for his alleged negligence related to the trust, despite the fact that the beneficiaries were never clients of the attorney. They rely on the Auric exception. The attorney, William Slate, moved for summary judgment dismissing the malpractice claim, arguing that the Auric exception does not apply. The circuit court agreed, and dismissed the suit with respect to Attorney Slate. We agree with the circuit court that Attorney Slate was entitled to summary judgment. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert W. Marsh

Case No.: 2018AP664-CR

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

Focus: OWI – Probable Cause

Robert Marsh appeals related judgments convicting him of a fourth offense of operating a motor vehicle under the influence of an intoxicant (OWI) and fleeing or eluding a police officer. Marsh challenges information contained in the affidavit used to obtain a search warrant authorizing the taking of a sample of his blood and contends the circuit court erred in denying his suppression motion without a hearing. We conclude that Marsh was not entitled to a hearing because the affidavit provided probable cause for the warrant when the challenged information is ignored. We therefore affirm.

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