Weekly Case Digests – May 27, 2019 – May 31, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Tom Smith, III

Case No.: 18-2905

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

Focus: Sentencing Guidelines – Enhancement

Tom Smith, III appeals the district court’s determination that he is a career offender under § 4B1.1 of the United States Sentencing Guidelines, and is eligible for the corresponding career‐offender sentencing enhancement. The district court applied the enhancement after concluding that Smith had two prior convictions that qualified as controlled substance offenses under § 4B1.2(b) of the Guidelines. Smith maintains that one of those convictions— the one under Indiana’s “Dealing in cocaine or narcotic drug” statute, Ind. Code § 35‐48‐4‐1—criminalizes more conduct than the Guidelines’ definition of a controlled substance offense. As such, Smith contends that his conviction under the overbroad statute cannot serve as a predicate controlled sub‐ stance offense for purposes of a career‐offender designation. Smith asks that we vacate his sentence for improperly including a career‐offender enhancement. We disagree with Smith’s interpretation of the statute and thus affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tai Matlin, et al. v. Spin Master Corp, et al.

Case No.: 18-2868

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

Focus: Personal Jurisdiction

Tai Matlin and James Waring appeal the district court’s dismissal of their suit against Spin Master Corporation, Spin Master Ltd., and Swimways Corporation for lack of personal jurisdiction and improper venue. Because the defendants have insufficient contacts with Illinois to establish specific personal jurisdiction, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Laurance H. Freed

Case No.: 17-2816

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

Focus: Jury Instructions

It appears that Laurance Freed did everything he could to keep his real estate business alive. Unfortunately for Freed, much of that was illegal. Freed lied to prospective lenders about the availability of collateral and to ensure those lenders remained in the dark about numerous defaults, he lied to the City of Chicago.  A person is liable for aiding and abetting a crime if he takes an affirmative act in furtherance of that offense with the intent of facilitating commission of the offense. Rosemond v. United States, 572 U.S. 65, 71 (2014) (citing Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994)). Additionally, it is axiomatic that one cannot aid and abet a crime unless a crime was actually committed. See United States v. Motley, 940 F.2d 1079 (7th Cir. 1991). Freed latches onto this requirement and asserts the district court’s aiding and abetting instruction was deficient because it did not require the jury to find a crime was actually committed. The government also proved that Freed entered into loan agreements with no intention of abiding by their terms. We affirm Freed’s convictions for bank fraud (18 U.S.C. § 1344); mail fraud (18 U.S.C. § 1341); wire fraud (18 U.S.C. § 1343); and making false statements to a financial institution (18 U.S.C. § 1014).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Rachel L. Kopp

Case No.: 18-3172

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

Focus: Sentencing Guidelines

Rachel L. Kopp has a history of substance abuse and drug‐related convictions. During the sentencing hearing for the revocation of her supervised release, the district court announced an 18‐month sentence; but then, after learning from the probation officer that 18 months might not allow sufficient time for Kopp to complete a residential drug treatment program, the court increased the sentence to 20 months. Kopp appeals, arguing the district court improperly lengthened her sentence to promote rehabilitation in violation of Tapia v. United States, 564 U.S. 319 (2011), and 18 U.S.C. § 3582(a). For the reasons below, we vacate the sentence and remand to the district court for resentencing.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Myshawn Bonds

Case No.: 18-2670

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

Focus: 6^th Amendment Violation – Confrontation Clause

A jury convicted Myshawn Bonds of bank robbery, 18 U.S.C. §2113(a), and a judge sentenced him to sixty months’ imprisonment plus three years’ supervised release. The evidence against him included the testimony of Kira Glass, a fingerprint examiner in the FBI’s Latent Print Operations Unit. Glass concluded that Bonds’s fingerprints appeared on the demand notes used in the two robberies.

Bonds contends that the district court’s decision to exclude evidence about Mayfield’s mistaken identification and arrest violated the Confrontation Clause of the Constitution’s Sixth Amendment. United States v. Rivas, 831 F.3d 931 (7th Cir. 2016), rejected an identical contention, holding that a district court did not violate the Constitution when excluding evidence about the Mayfield situation. Bonds asks us to distinguish Rivas on the ground that Glass works in the same FBI division that mistakenly identified Mayfield, but Bonds does not contend that Glass was involved in that error. Guilt by association would be a poor reason to deny a district judge the discretion otherwise available under Fed. R. Evid. 403.

To say that an error rate is troubling is not to suggest that ACE-V is too uncertain for use in litigation. Assessment must be comparative. What are the alternatives? Grainy pictures taken by bank surveillance cameras of robbers wearing masks, or confederates who testify for the prosecution, have problems of their own. Witnesses may lie on the stand; there is no science of credibility enabling jurors to detect who is telling the truth, and some witnesses who think that they are telling the truth nonetheless may be confused or incorrect. Eyewitness identification is notoriously subject to the vagaries of memory. A judicial system that relies heavily on fallible lay testimony cannot be improved by excluding professional analysis that may well have a lower error rate—or by diverting jurors’ attention to particular errors made by other analysts years earlier. What the judicial system can do is subject the forensic evidence to cross-examination about a method’s reliability and whether the witness took appropriate steps to reduce errors. Bonds enjoyed that opportunity.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mauricio Gonzalez Ruano v. William P. Barr

Case No.: 18-2337

Officials: HAMILTON, BARRETT, and ST. EVE, Circuit Judges.

Focus: Immigration – Asylum

In September 2016, members of a Mexican drug cartel kidnapped, tortured, and threatened to kill petitioner Mauricio Gonzalez Ruano, who was living with his family in the Mexican state of Jalisco. The cartel uses brutal violence to terrorize communities throughout Mexico and exercises influence at all levels of the Mexican government in furtherance of its criminal objectives.

Gonzalez Ruano’s persecution began after he refused to allow the local cartel leader to “possess” his wife, as the record puts the point euphemistically. As we explain below, Gonzalez Ruano and his wife tried to find a way to continue living safely in Mexico. Their attempts failed, in shockingly brutal ways. On the advice of a Mexican prosecutor, Gonzalez Ruano and his wife and two children then fled to the United States. The couple surrendered themselves at the border. Gonzalez Ruano applied for asylum, withholding of removal, and protection under the Convention Against Torture.

An immigration judge found that Gonzalez Ruano was credible and that he would likely be tortured if he returned to Mexico. The judge therefore granted relief under the Convention Against Torture. The judge denied his petition for asylum, however, on the ground that Gonzalez Ruano did not show a nexus between his persecution and membership in a “particular social group,” which is one path toward asylum in the United States. The Board of Immigration Appeals agreed with the judge. Gonzalez Ruano has petitioned this court for review. We find that the record here compels a finding that the torture and persecution Gonzalez Ruano has suffered in the past and fears in the future were and would be because of his membership in the “particular social group” of his wife’s family. Gonzalez Ruano thus demonstrated statutory eligibility for asylum in the United States. We GRANT his petition for review and REMAND the case to the Board for further proceedings consistent with this opinion.

Petition granted and cause remanded

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7^th Circuit Court of Appeals

Case Name: GEFT Outdoors, LLC. v. City of Westfield

Case No.: 18-3236

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

Focus:

GEFT Outdoors, LLC began building a digital billboard on its property in the City of Westfield, Indiana without obtaining or applying for the requisite sign permit. GEFT believed Westfield’s relevant sign standards ordinance contains unconstitutional content‐based speech restrictions and that this invalidity renders the ordinance non‐ existent. GEFT only stopped installing the billboard when a contract attorney for Westfield threatened to arrest GEFT’s representatives if the installation work continued. After this confrontation, Westfield and GEFT filed dueling injunction motions. GEFT asked for an injunction preventing Westfield from violating its due process rights; Westfield asked the district court to enjoin GEFT from installing the billboard pending the outcome of this litigation. The district court denied GEFT’s motion and granted Westfield’s motion, and GEFT filed this interlocutory appeal. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Builders NAB LLC v. Federal Deposit Insurance Corporation

Case No.: 18-2799; 18-2804

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

Focus: Mootness

After an examination in 2015, the Federal Deposit Insurance Corporation assigned Builders Bank a CAMELS rating of 4, near the bottom of the scale. The acronym, which stands for capital adequacy, asset quality, management, earnings, liquidity, and sensitivity to market risk, reflects a bank’s ability to withstand financial challenges, and a rating of 4 exposes a bank to extra oversight. Builders Bank sued, and we concluded that some components of a CAMELS rating are open to judicial review. Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017). Before the case could be resolved on remand, however, Builders Bank merged into a non-bank enterprise, Builders NAB LLC, and left the banking business. This led the district court to dismiss the suit as moot. 2018 U.S. Dist. LEXIS 53678 (N.D. Ill. Mar. 30, 2018).

This suit was litigated on remand as a financial claim under the APA. So cast, it fails. We hold Builders to its litigation strategy and do not permit it to change on appeal both its substantive theory and its asserted waiver of sovereign immunity. We modify the district court’s judgment to be one on the merits rather than a dismissal for mootness.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Surgery Center at 900 North Michigan Avenue, LLC v. American Physicians Assurance Corporation, Inc., et al. 

Case No.: 18-2622

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

Focus: Insurance Claim – Malpractice

A jury found Surgery Center at 900 North Michigan Avenue, LLC (“Surgery Center”) liable in a medical malpractice action for $5.17 million. Surgery Center’s insurance coverage under its policy with insurer American Physicians Assurance Corporation, Inc. capped out at $1 million per claim, leaving it responsible for the excess judgment. Surgery Center sued for bad faith because its insurer failed to settle the claim for the policy limit. The district court denied summary judgment to the insurer but, after six days of a jury trial, granted the insurer judgment as a matter of law. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Maria Moreno

Case No.: 17-3435

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

Focus: Sufficiency of Evidence

A jury convicted Maria Moreno of one count of conspiring with others with the intent to distribute narcotics and two counts of knowingly using a telephone in furtherance of the conspiracy. Moreno argues there was insufficient evidence to support a finding that she conspired with the Guzman Drug Trafficking Organization (the “Guzman DTO”), but rather, the evidence merely showed a buyer-seller relationship. The district court rejected Moreno’s motion for judgment of acquittal based on this argument, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Donald Lacy v. Keith Butts, Warden

Case No.: 17-3256

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

Focus: 5^th Amendment – Sex Offenders – Class Action

When the state wants to encourage suspects, defendants, or incarcerated offenders to admit guilt, it has many tools at its disposal. Before or during trial, prosecutors may hold out the prospect of a plea bargain. Judges may reward defendants with a sentence reduction for accepting responsibility. Prison rehabilitation programs may offer benefits and incentives by conditioning visitation rights, work opportunities, housing in a lower‐security unit, and other privileges on an offender’s willingness to admit responsibility for the crime of conviction. McKune v. Lile, 536 U.S. 24, 40 (2002).

But the Fifth Amendment draws one sharp line in the sand: no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. (emphasis added). This case requires us to decide whether Indiana’s Sex Offender Management and Monitoring (INSOMM) program crosses that line with its system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refuse to confess their crimes. In an action brought by a class led by Donald Lacy, an inmate subject to INSOMM, the district court ruled that Indiana’s system as currently operated impermissibly compels self‐ incrimination and must be revised. We affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Kleos Capital Partners LP v. Triworld Holding Co., LLC, et al.

Case No.: 2017AP597

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

Focus: Reformation of Mortgage

Gianni Bozzacchi appeals from an order denying his motion for relief from an April 2009 order that required him to mortgage his home. Bozzacchi argues the mortgage should have been reformed to expire after December 31, 2011. We affirm the circuit court.

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WI Court of Appeals – District III

Case Name: Carlin Lake Association, Inc., et al. v. Carlin Club Properties, LLC

Case No.: 2017AP2439

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

Focus: Abuse of Discretion – Zoning Ordinance

Carlin Club Properties, LLC (“Carlin Club”) appeals a summary judgment granted in favor of Carlin Lake Association, Inc. (“the Association”) and seven individual owners of riparian property on Carlin Lake (“the Landowners”). The judgment granted the Landowners’ request for a judgment declaring that Carlin Club’s proposed use of its property—to pump water from a well and then transport that water off-site for bottling and commercial sale—would be in violation of Vilas County’s general and shoreland zoning ordinances. Further, the judgment permanently enjoined Carlin Club from conducting any activities related to the pumping and transporting of its well water for off-site commercial sale.

On appeal, Carlin Club argues the circuit court erred in granting the Landowners summary judgment for multiple reasons. Specifically, Carlin Club contends: (1) the Landowners lacked standing under WIS. STAT. § 59.69(11) (2017-18)2 to enforce the applicable county zoning ordinance because they did not demonstrate they suffered any special damages; (2) the Association also lacked standing under § 59.69(11) because it did not own any real property within the district affected by the ordinance;3 (3) the Landowners’ action was not ripe for adjudication because Carlin Club had not yet violated the ordinance; (4) the court erroneously exercised its discretion by determining that equitable factors did not preclude the issuance of an injunction; and (5) the county zoning ordinance at issue is invalid because it is preempted by the Department of Natural Resources’ (DNR) authority to regulate groundwater withdrawal.

We reject Carlin Club’s arguments, with one exception—we agree with Carlin Club that the Association did not have authority to maintain an action to enforce the county zoning ordinance at issue. In all, we conclude: (1) the plain language of WIS. STAT. § 59.69(11) grants the individual Landowners authority to maintain this enforcement action, as they own real property in the district affected by the ordinance; (2) conversely, the Association cannot maintain this enforcement action under § 59.69(11) because it does not own any real property in the district affected by the ordinance; (3) the Landowners’ claims were ripe for adjudication because Carlin Club’s affirmative actions demonstrated a sufficient probability that it was going to violate the ordinance; (4) although the circuit court improperly placed the burden on Carlin Club to show that equitable factors precluded the issuance of a prospective injunction, on this record the only reasonable conclusion is that the court’s decision to issue an injunction was equitable; and (5) the ordinance was not preempted because it did not conflict with the DNR’s authority to regulate groundwater withdrawal. Accordingly, we affirm in part, reverse in part, and remand with directions to dismiss the Association as a party to this action.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. William Bransford

Case No.: 2018AP266

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

Focus: Ineffective Assistance of Counsel

William Bransford, pro se, appeals from an order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion without a hearing. In his postconviction motion Bransford claimed that his trial counsel was ineffective for failing to investigate and to perform legal research to support defenses to the State’s DNA evidence. We conclude that Bransford’s claim that trial counsel was ineffective for not pursuing any alternative defense theories is, as the postconviction court stated, “wholly conclusory in nature and completely without factual support to establish a viable claim for relief.” See Burton, 349 Wis. 2d 1, ¶38 (holding that a circuit court has discretion to deny a hearing where a motion presents only conclusory allegations). Accordingly, Bransford fails to show that this claim is clearly stronger than the claim that postconviction counsel actually brought, such that postconviction counsel was ineffective. Because Bransford has not set forth a sufficient reason for failing to raise his claims earlier, we affirm.

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WI Court of Appeals – District III

Case Name: Gene Frederickson Trucking and Excavating, Inc.

Case No.: 2018AP436

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

Focus: Failure to State Claim

Gene Frederickson Trucking and Excavating, Inc. (“Frederickson”) appeals a judgment dismissing, for failure to state a claim, its civil conspiracy and “prima facie tort” claims against various defendants associated with Wagner 22, LLC (“Wagner 22” and, collectively with the other defendants, the “Wagner Group”). Frederickson contends its complaint adequately stated those claims because it alleged that the Wagner Group had conspired to effectuate a bank foreclosure that eliminated Frederickson’s junior lien on the real property at issue. We conclude the circuit court properly dismissed Frederickson’s claims because Frederickson failed to allege any unlawful conduct or purpose on the Wagner Group’s part, and because Wisconsin does not recognize “prima facie tort” as a valid basis for imposing civil liability. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joel Charles Jahnke

Case No.: 2018AP1264-CR

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

Focus: Due Process Violation

Joel Jahnke appeals from an amended judgment of conviction for second-degree sexual assault of a child, exposing genitals to a child, and causing a child between the ages of thirteen and eighteen to view sexual activity. He also appeals from an order denying his postconviction motions for sentence modification and resentencing. Jahnke filed a postconviction motion seeking either sentence modification based upon a new factor or resentencing based upon a due process violation, each premised on the allegation that the circuit court had sentenced Jahnke under the mistaken belief that count 5 was a class F felony relating to a child under the age of thirteen. The State conceded the court received inaccurate information, but it argued the court did not rely on that inaccurate information at sentencing. We conclude the circuit court properly denied both motions and affirm.

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WI Court of Appeals – District I

Case Name: Steven Robert Sharpe v. City of West Allis, et al.

Case No.: 2018AP1747

Officials: DUGAN, J.

Focus: Court Error – Governmental Immunity

Steven Robert Sharpe appeals the circuit court’s order dismissing his small claims action for money damages against the City of West Allis and Shelly Kerwin, a plan reviewer for West Allis. Sharpe alleged that the damages were incurred due to allegedly unwarranted changes that West Allis and Kerwin required in plans to remodel a commercial building. Sharpe, an architect, has represented himself throughout this action and continues to represent himself on appeal.

Sharpe argues that the trial court erred in concluding that West Allis and Kerwin had governmental immunity from damages because the challenged acts were discretionary acts and because her actions were malicious, willful, and intentional. We affirm the trial court’s order.

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WI Court of Appeals – District III

Case Name: Brown County Department of Health and Human Services v. L.F.H., Sr.,

Case No.: 2019AP145

Officials: STARK, P.J.

Focus: Termination of Parental Rights

L.F.H., Sr., (L.F.H.) appeals an order terminating his parental rights to his son, Leon. The circuit court granted partial summary judgment in favor of the Brown County Department of Health and Human Services (the Department), finding that grounds existed to terminate L.F.H.’s rights under WIS. STAT. § 48.415(4) based upon a continuing denial of his periods of physical placement or visitation with Leon. L.F.H. argues the Department failed to prove a court order had been entered against him that satisfied the requirements of § 48.415(4). We agree. Therefore, we reverse the order terminating L.F.H.’s parental rights. Because the Department cannot meet its burden of proof under § 48.415(4), on remand, we direct the court to enter partial summary judgment in favor of L.F.H. and dismiss the § 48.415(4) ground for termination of L.F.H.’s parental rights.

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WI Court of Appeals – District II

Case Name: Kathryn Kershaw, et al. v. Richard L. Christl, et al.

Case No.: 2017AP938

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

Focus: Court Error – Sale of Property

We accepted the interlocutory appeal of Kathryn Kershaw and The Lord’s Highlands, Inc., to determine if the circuit court erred in ordering, after a trial to the court, that the two properties at issue in this case be sold to a third party. Specifically, Kershaw insists the court erred in not rescinding both the contract through which she previously had sold the properties to Kwico Investments, LLC, and the deeds by which she transferred ownership of the properties to Kwico. Kershaw also complains that the court subsequently ordered the properties to be sold to a third party as one, instead of ordering that the property that was vacant be subdivided and the parcels sold separately. We conclude the court handled this messy case as ably as any court could and did not err.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Carrie M. Donahue

Case No.: 2017AP2479-CR

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

Focus: Ineffective Assistance of Counsel

Carrie Donahue appeals from judgments convicting her of being party to the crime of causing mental harm to a child, false imprisonment, child abuse and child neglect. She also appeals from a circuit court order denying her motion for a new trial due to ineffective assistance of trial counsel. We agree with the circuit court that Donahue’s trial counsel represented her effectively, and the evidence was sufficient to convict her of child abuse. We affirm.

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WI Court of Appeals – District II

Case Name: Kilbourn Woods Homeowners Association Inc. v. Valaria Brooks

Case No.: 2018AP315

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

Focus: Judgement Award

Valaria Brooks appeals pro se from an order for a foreclosure judgment and a money judgment in favor of Kilbourn Woods Homeowners Association, Inc. (“the Association”). The $21,219.57 total judgment comprises a money judgment of $250.90 and $20,000 for reasonable attorneys’ fees, plus statutory costs. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eric D. Conner

Case No.: 2018AP423-CR

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

Focus: Ineffective Assistance of Counsel

Eric D. Conner, pro se, appeals a judgment convicting him after a jury trial of one count of second-degree sexual assault of one child and three counts of third-degree sexual assault of another child. He also appeals the order denying his motion for postconviction relief.  He argued that Defense counsel, Attorney Jeffrey Brandt, ineffectively failed to introduce evidence of SPM’s mental health and of SMM’s breast-fondling claim, and to move to strike a biased juror. The court ultimately denied the motion, concluding that trial counsel’s chosen defense strategies were reasonable and that the juror-bias claim failed because that person did not end up serving on the jury. We affirm both.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Mose B. Coffee

Case No.: 2018AP1209-CR

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

Focus: OWI – 2^nd Offense

Mose Coffee appeals from judgments of conviction for operating a motor vehicle while intoxicated (OWI), second offense, and possession of THC with intent to deliver. He asserts the circuit court erred in denying his motion to suppress drug evidence found pursuant to a search of his vehicle following his arrest for OWI. Specifically, he argues the evidence should be suppressed “because there was no reason to believe that evidence of the OWI arrest would be found in the area of the vehicle searched by the officers.” We conclude the court did not err, and affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Deutsche Bank National Trust Company v. Michael A. Hecker, et al.

Case No.: 2018AP1237-FT

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

Focus: Court Error – Foreclosure

Michael A. and Kathryn L. Hecker appeal from a judgment of foreclosure entered in favor of Deutsche Bank Trust Company (the Bank). The Heckers argue that the circuit court erred in dismissing their affirmative defenses and granting summary judgment to the Bank. Pursuant to a presubmission conference and this court’s order of July 24, 2018, the parties submitted memorandum briefs. See WIS. STAT. RULE 809.17(1) (2017-18). The Heckers contend that the Syvertson affidavit fails to allege “sufficient personal knowledge of the Hecker loan” to qualify as a business records exception to the hearsay rule under WIS. STAT. § 908.03(6), and that, therefore, the Bank did not establish its right of enforcement or the amount due and owing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin Ex Rel. Derrick Brown v. Cindy O’Donnell, et al.

Case No.: 2018AP897

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

Focus: Sufficiency of Evidence

Derrick Brown, pro se, appeals a circuit court order that affirmed a prison disciplinary decision. Brown contends that: (1) the evidence was insufficient to support the finding that Brown used an intoxicant; (2) the disciplinary proceedings violated Brown’s due process rights to present evidence and to an impartial hearing officer; and (3) restitution was ordered in violation of Brown’s rights to notice and to an opportunity to be heard. We conclude that the evidence was sufficient to support the finding of guilt and that Brown was afforded his rights to present evidence and to an impartial hearing officer. However, we also conclude that Brown’s rights to notice and to an opportunity to be heard on restitution were violated. Accordingly, we affirm in part and reverse in part.

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WI Court of Appeals – District IV

Case Name: Julie Chuilli v. Ray A. Peterson

Case No.: 2018AP1297

Officials: BLANCHARD, J.

Focus: Judgment Award

In this small claims action, landlord Ray Peterson appeals the circuit court’s award of a money judgment to tenant Julie Chuilli. I affirm

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WI Court of Appeals – District IV

Case Name: Butler Plaza, LLC, v. David Curtis, et al.

Case No.: 2018AP1612

Officials: FITZPATRICK, J.

Focus: Judgment Award

David Curtis and Maurice Goodwin (whom I will sometimes refer to collectively as “the tenants”) appeal a money judgment entered by the Dane County Circuit Court in favor of their former landlord, Butler Plaza, LLC. Butler Plaza initiated this action to recover unpaid rent after the tenants vacated the premises. Curtis and Goodwin contend that Butler Plaza accepted their surrender of the premises, thereby releasing them from further liability for rent. The tenants further assert that the circuit court’s finding that Butler Plaza made efforts to mitigate damages was clearly erroneous. Because I conclude that Butler Plaza did not accept the tenants’ surrender of the premises, and the circuit court’s finding that Butler Plaza made efforts to mitigate damages was not clearly erroneous, the judgment of the circuit court is affirmed.

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WI Court of Appeals – District IV

Case Name: Ashley A. Thompson v. Beau James Ellenbecker

Case No.: 2018AP2050

Officials: BLANCHARD, J.

Focus: Replevin

Beau Ellenbecker appeals a circuit court order filed on August 16, 2018 (“the August 16 order”), denying his motion to reopen this small claims action or to reconsider the court’s grant of a June 19, 2018 writ of replevin and default judgment in favor of Ashley Thompson (“the June 19 judgment”). The June 19 judgment was entered based on Ellenbecker’s failure to appear at a hearing. The court entered the August 16 order after Ellenbecker again failed to appear, this time at the motion hearing on August 7 to address Ellenbecker’s motion to reopen or to reconsider the June 19 judgment. I now provide background and then explain why I affirm the August 16 order appealed by Ellenbecker.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Maple Grove Country Club, Inc., et al. v. Maple Grove Estates Sanitary District

Case No.: 2019 WI 43

Focus: Notice of Claim Violation

The petitioner, Maple Grove Country Club, Inc., seeks review of an unpublished, per curiam decision of the court of appeals affirming the circuit court’s order that dismissed the Country Club’s inverse condemnation claim against Maple Grove Estates Sanitary District. The Country Club asserts that the court of appeals erred in upholding the dismissal based on its noncompliance with Wis. Stat. § 893.80(1d) (2013-14), the notice of claim statute, despite the fact that the Sanitary District did not raise noncompliance with the statute in a responsive pleading.

Specifically, the Country Club contends that noncompliance with the notice of claim statute is an affirmative defense that must be set forth in a responsive pleading lest it be waived and that it cannot instead be initially raised by motion. Conversely, the Sanitary District argues that noncompliance with the notice of claim statute is a jurisdictional prerequisite to filing suit and is not waived by the failure to plead it as an affirmative defense in a responsive pleading.

We conclude that noncompliance with the notice of claim statute is an affirmative defense that must be set forth in a responsive pleading. Because the Sanitary District failed to set forth the defense in its answer and it has not amended its answer to include it, such a defense is deemed waived.  Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings.

Reversed and remanded

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Emulex Corporation, et al. v. Gary Varjabedian, et al.

Case No.: 18-459

Focus: Writ of Certiorari

The writ of certiorari is dismissed as improvidently granted.

Granted

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Lamps Plus, Inc., et al. v. Varela

Case No.: 17-988

Focus: Arbitration Order – Ambiguity

The Federal Arbitration Act requires courts to enforce covered arbitration agreements according to their terms. See 9 U. S. C. §2. In Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010), we held that a court may not compel arbitration on a classwide basis when an agreement is “silent” on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the “traditional individualized arbitration” envisioned by the FAA, Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 8), “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” Stolt-Nielsen, 559 U. S., at 684 (emphasis in original). We now consider whether the FAA similarly bars an order requiring class arbitration when an agreement is not silent, but rather “ambiguous” about the availability of such arbitration.

Reversed and remanded

Dissenting: GINSBURG, J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined. BREYER, J., and SOTOMAYOR, J., filed dissenting opinions. KAGAN, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, and in which SOTOMAYOR, J., joined as to Part II.

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

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