Weekly Case Digests – June 10, 2019 – June 14, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Christopher Jozefyk v. Nancy A. Berryhill

Case No.: 18-1898

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

Focus: ALJ Error – Disability Benefits

Christopher Jozefyk applied for Disability Insurance Benefits and Supplemental Security Income, claiming disability based on several physical and mental conditions, including degenerative changes in his cervical spine, lumbar strain, obesity, affective disorder, and anxiety disorder. An Administrative Law Judge denied benefits, and the district court concluded that substantial evidence supported the ALJ’s decision. Jozefyk raises two arguments on appeal: (1) the ALJ did not establish a valid waiver of attorney representation before allowing Jozefyk to proceed pro se at the hearing, and (2) the residual functional capacity finding did not account for Jozefyk’s moderate limitations in concentration, persistence, or pace. Because the record does not substantiate either argument, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Yelena Levitin, et al. v. Northwest Community Hospital, et al.

Case No.: 16-3774

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

Focus: Title VII Violation – Discrimination

For nearly thirteen years, Dr. Yelena Levitin performed surgeries at Northwest Community Hospital in Arlington Heights, Illinois. In January 2013 the hospital terminated her practice privileges. She brought this Title VII suit claiming that Northwest discriminated against her based on her sex, religion (Jewish), and ethnicity (Russian). The hospital responded that Levitin wasn’t its employee, precluding her Title VII claim. The district judge agreed and entered summary judgment for Northwest.

We affirm. There is no genuine dispute here. Levitin was an independent physician with practice privileges at the hospital. She was not the hospital’s employee.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Victor Martin Villa Serrano v. William P. Barr

Case No.: 18-2886

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

Focus: Immigration – Jurisdiction

In 2007, Victor Martin Villa Serrano (“Villa”) reentered the United States after having been removed in 2005. When he came to the attention of the government in 2018, a deportation officer for U.S. Immigration and Customs Enforcement (“ICE”) determined that Villa had illegally reentered the United States and was subject to reinstatement of the prior removal order. Villa raises a few legal challenges to that conclusion, primarily contending that there is no lawful prior order of removal because the original “Notice to Appear” was legally deficient and the immigration judge therefore lacked jurisdiction to enter the order of removal. Because we lack jurisdiction to review the underlying order of removal, we dismiss the petition for review.

Petition dismissed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ronnie Cornell Cosby

Case No.: 18-2053

Officials: SYKES, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Court Error – Sufficiency of Evidence

A jury found Ronnie Cosby guilty of several sex-related offenses, including transporting T.L., a minor, from Illinois to Indiana with the intent that she engage in prostitution. On appeal, Cosby seeks a new trial based on five claims of error. Specifically, he challenges the district court’s denial of his sixth motion for a continuance; denial of his motion for a judgment of acquittal on Count III; denial of his motion for a mistrial based on Agent Landau’s false testimony; failure to take appropriate precautions for a government witness’s dual-capacity testimony; and denial of his motion to suppress. As we explain below, Cosby’s claims of error fail, and we therefore affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robert Lowinger, et al. v. Douglas R. Oberhelman, et al.

Case No.: 18-1863

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

Focus: Breach of Fiduciary Duty

In the fall of 2011 Caterpillar Inc. began making serious inquiries about the possible acquisition of a Chinese mining company, ERA Mining Machinery Ltd., and its wholly‐owned subsidiary, Zhengzhou Siwei Mechanical & Electrical Equipment Manufacturing Co., Ltd. (We refer to the two companies as “Siwei” for simplicity.) Caterpillar completed that acquisition in June 2012. Only after the closing did Caterpillar gain access to Siwei’s physical inventory. What it found was unsettling. An inspection of the inventory revealed that Siwei had overstated its profits and improperly recognized revenue. As a result, Caterpillar took a $580 million goodwill impairment charge just months after the acquisition was completed. Plaintiffs Robert Lowinger and Issek Fuchs, both Caterpillar shareholders, now bring this shareholder derivative suit alleging that several former Caterpillar officers breached their fiduciary duties by failing to conduct an adequate investigation of the Siwei acquisition. (We call them the Lowinger Plaintiffs.) That failure, they contend, caused Caterpillar’s loss. The Lowinger Plaintiffs made a demand that the Caterpillar Board bring this litigation; the Board refused; and in this lawsuit, they argue that the Board’s refusal was improper.

The district court granted the Officers’ motion to dismiss the complaint for failure adequately to allege that the Board wrongfully refused to pursue the Lowinger Plaintiffs’ claim, FED. R. CIV. P. 23.1(b)(3); it then denied plaintiffs’ motion for leave to amend. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Spectrum Brands, Inc.

Case No.: 18-1785

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

Focus: Time-barred

The district court found that Spectrum Brands, Inc. (“Spectrum”) violated section 15(b) of the Consumer Product Safety Act (“CPSA” or the “Act”), 15 U.S.C. § 2064(b)(3), when its subsidiary failed to timely report to the government a potentially hazardous defect in its Black & Decker SpaceMaker coffeemaker despite years’ worth of consumer complaints about the product. Following an evidentiary hearing as to the appropriate remedy for the reporting violation, the court entered a permanent injunction which, in its final form, requires Spectrum to adhere to its newly implemented CPSA compliance practices and to retain an independent consultant to recommend additional modifications to those practices. Spectrum appeals, contending both that the government’s late-reporting claim is barred by the statute of limitations, that the district court had no authority to enter a forward-looking injunction, and that the court otherwise abused its discretion in awarding permanent injunctive relief, including the requirement that it engage the expert. Finding no merit in any of these challenges, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Antonio Lopez-Aguilar v. Marion County Sheriff’s Department

Case No.: 18-1050

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

Focus: Injunctive Relief

Antonio Lopez-Aguilar brought this action against the Marion County Sheriff’s Department (“the Sheriff’s Department”), Sheriff John R. Layton, in both his official capacity and his individual capacity, and a sergeant of the Sheriff’s Department, in his individual capacity (together, “the defendants”). His complaint set forth one claim under 42 U.S.C. § 1983. He alleged that when the defendants detained him for transfer into the custody of Immigration and Customs Enforcement (“ICE”), they violated his Fourth Amendment rights. Mr. Lopez-Aguilar also brought supplemental claims, based on Indiana law, for false arrest and false imprisonment. His complaint sought damages and a declaration that the defendants had violated his rights by detaining him. He did not seek injunctive relief.

The parties later proposed, and the district court subsequently entered, a Stipulated Final Judgment and Order for Permanent Injunction (“the Stipulated Judgment”), which granted declaratory and prospective injunctive relief but dismissed with prejudice Mr. Lopez-Aguilar’s damages claims. Following the entry of final judgment, but within the time for appeal, the State of Indiana (“the State” or “Indiana”) moved to intervene for the purpose of appealing the district court’s order entering the Stipulated Judgment. The district court denied Indiana’s motion to intervene. The State now appeals that denial.

Indiana has standing for the purpose of bringing this appeal. The State’s motion to intervene was timely, and it also fulfilled the necessary conditions for intervention of right. Finally, the State has demonstrated that the district court was without jurisdiction to enter prospective injunctive relief. Therefore, for the reasons set forth more fully below, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: John E. Sparre v. United States Department of Labor, Administrative Review Board, et al.

Case No.: 18-1105; 18-2348

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

Focus: ALJ Error – Equitable Tolling

John Sparre, a locomotive engineer who previously worked for Norfolk Southern Railway Company, challenges the final orders and judgments entered in his lawsuit asserting violations of the Federal Railroad Safety Act, 49 U.S.C. § 20109. This case involves two appeals: one from the entry of summary judgment by an administrative law judge (No. 18‐1105), and one from the dismissal of Sparre’s case by the Administrative Review Board (No. 18‐2348). Because Sparre failed to timely exhaust his administrative remedies before appealing to this court, we deny his petition for review of No. 18‐1105 for lack of jurisdiction. We affirm the Board’s final decision in No. 18‐2348 on the merits dismissing Sparre’s appeal.

Petition denied. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Antoine Richmond

Case No.: 18-1559

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

Focus: Plea & Sentencing – Probable Cause

Antoine Richmond entered a conditional plea of guilty to possessing a firearm as a felon. Before entering his plea, Richmond moved to suppress a handgun police seized from the threshold of his residence’s front door during an encounter on his porch. The district court denied Richmond’s motion, and he now appeals the court’s ruling. Given the totality of the circumstances, the officers’ suspicions were reasonable that Richmond was illegally carrying a gun. Because Richmond (or someone else) had ready access to the gun, officer Milone acted reasonably to extinguish a patent safety threat when he performed a brief search limited exclusively to the area where both officers saw the object, later confirmed to be a gun, was placed. 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. Sushil A. Sheth

Case No.: 17-2741

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

Focus: Asset Forfeiture – Bank Credit

Dr. Sushil Sheth amassed significant wealth as a cardiologist, but, as he later admitted in a plea agreement, he did so in a scheme to overbill government and private insurers by approximately $13 million. In his plea agreement he agreed to forfeit $13 million in assets as a condition of his plea. The United States, in turn, allowed that it would apply the proceeds of the forfeited property to any restitution judgment resulting from his conviction. Sheth now disputes that the United States gave him the appropriate credit for some of the forfeited assets. We agree with Sheth that he did not receive the proper credit for certain bank account funds, but affirm the district court’s decision as to the valuation of the real property he contests.

Affirmed in part. Reversed in part.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Maurice Collins

Case No.: 18-2149

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

Focus: Sentencing Guidelines

Maurice Collins pleaded guilty to distributing cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1). Because of a prior felony drug conviction, he faced a statutory minimum of ten years in prison, unless he qualified for the “safety valve” in 18 U.S.C. § 3553(f)(5). The district court initially denied Mr. Collins the benefit of the safety valve on a ground that we later determined to be erroneous. Consequently, we vacated his sentence and remanded for further proceedings. See United States v. Collins, 877 F.3d 362, 368–69 (7th Cir. 2017).

On remand, the district court again determined that Mr. Collins did not qualify for the safety valve. The court focused on a statement in his proffer interview about what he intended to do with the significant amount of cash found in his car at the time of his arrest. Doubting the veracity of his claims about the cash, the court concluded that Mr. Collins had not established that he had “truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). Accordingly, the court did not give him the benefit of the safety valve and resentenced him to the statutory mandatory minimum.

Mr. Collins again appeals his sentence. He contends that the district court erred in assessing the relative burdens of proof with respect to his eligibility for the safety valve. He also submits that he provided a truthful and complete disclosure to the Government before sentencing. For the reasons stated below, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Anthony Gant v. Daniel Hartman

Case No.: 18-1287

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

Focus: Jurisdiction – Qualified Immunity

Anthony Gant brought this action against three police officers and the City of Fort Wayne for injuries he sustained as he fled from an armed robbery. Gant’s operative First Amended Complaint alleges several constitutional violations and seeks damages under 42 U.S.C. § 1983. The defendants moved for summary judgment, asserting claims of qualified immunity for Officers Daniel Hartman, Bradley Griffin, and Jason Palm.

The district court granted summary judgment for all defendants except Officer Hartman, who Gant alleges violated his Fourth Amendment rights by using unconstitutional excessive force in shooting him. Officer Hartman now appeals the district court’s denial of summary judgment. Because Officer Hartman’s argument depends upon and is inseparable from the disputed facts identified by the district court, we must dismiss this appeal for lack of appellate jurisdiction.

Dismissed

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7^th Circuit Court of Appeals

Case Name: Mark D. Jensen v. William Pollard

Case No.: 17-3639

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

Focus: Conditional Writ of Habeas Corpus

In a prior appeal, we affirmed an order granting Mark Jensen’s application for habeas relief from his conviction for the 1998 murder of his wife, Julie. Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The Wisconsin Court of Appeals had rejected Jensen’s Confrontation Clause challenge to the admission of Julie’s “voice from the grave” letter expressing her fear that her husband might kill her. The rationale for that ruling was harmless error. We agreed with the district court that the state court unreasonably applied Supreme Court precedent. Id. at 908.

After our mandate issued, the district judge issued a conditional writ requiring the State of Wisconsin to either release Jensen or “initiate proceedings to retry him” within 90 days. The State timely initiated retrial proceedings. But before the retrial, the state trial judge concluded that the out-of-court statements were not testimonial, curing the constitutional defect in Jensen’s first trial. Reasoning that a second trial was unnecessary, the trial judge reinstated Jensen’s original conviction. Jensen appealed the new judgment, but the Wisconsin Court of Appeals has not yet ruled.

In the meantime, Jensen returned to federal court and moved to enforce the conditional writ, which he argued guaranteed a retrial without the challenged statements. The district court denied the motion and we affirm. Our jurisdiction is limited to assessing the State’s compliance with the conditional writ. The State complied with the writ when it initiated proceedings for Jensen’s retrial.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Isaac Paz v. Portfolio Recovery Associates, LLC,

Case No.: 17-3259

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

Focus: Abuse of Discretion – Fee Award

Sometimes settling a case is the only course that makes sense. This case provides a good example. Isaac Paz sued Portfolio Recovery Associates, LLC for violations of the Fair Debt Collection Practices Act and Fair Credit Reporting Act, and the case dragged on for years, with the district court then entering summary judgment for PRA on the lion’s share of Paz’s claims. Paz disregarded multiple offers to settle—both at the outset of the litigation and after summary judgment—and proceeded to trial, where he won but recovered only $1,000 in damages. He then sought to recover attorneys’ fees of $187,410. The district court awarded fees of $10,875, underscoring that Paz’s rejection of meaningful settlement offers precluded a fee award in such disproportion to his trial recovery. Seeing no abuse of discretion, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Varlen Corporation v. Liberty Mutual Insurance Company

Case No.: 17-3212

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

Focus: Insurance – Expert Testimony

Varlen Corporation owned and operated two industrial sites that were found to have significant amounts of groundwater contamination related to the sites’ operations. When its insurer, Liberty Mutual Insurance Company, refused to indemnify it, Varlen sued. Varlen’s case turned on testimony from an expert witness, who was excluded by the district court because he didn’t use reliable methods. We agree with the district court’s exclusion and affirm its grant of summary judgment to Liberty Mutual.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Lisa Jacobson v. Commonwealth Mortgage Group, LLC, et al.

Case No.: 2017AP1452

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

Focus:

Lisa Jacobson appeals from an order of the circuit court that granted BMO Harris NA’s motion for summary judgment and dismissed Jacobson’s claims. Jacobson contends the circuit court improperly found facts when deciding the summary judgment motion. As relevant to this appeal, Jacobson made three specific allegations against BMO. She claimed that “[b]y accepting the divorce petition as sufficient proof of Robin’s marital status and by failing to properly verify Robin’s debt-to-income ratio,” BMO: (1) “violated [rule] that relates to practice as a mortgage banker, in violation of Wis. Stat. Sec. 224.77(1)(k)”; (2) “engaged in conduct that violates the standard of professional behavior which, through professional experience, has become established for mortgage bankers, in violation of Wis. Stat. Sec. 224.77(1)(L)”; and (3) “engaged in conduct that constitutes improper dealing, in violation of Wis. Stat. Sec. 224.77(1)(m).” We conclude that summary judgment was properly granted in BMO’s favor, so we affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lue Xiong

Case No.: 2017AP2254-CR; 2017AP2255-CR

Officials: Kloppenburg, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Lue Xiong appeals his judgments of conviction and the trial court’s denial of his postconviction motion seeking to modify his sentence. Xiong pled guilty to second-degree recklessly endangering safety with a domestic abuse assessment, and arson of a building with a domestic abuse assessment; numerous other charges were dismissed and read in for purposes of sentencing. In his postconviction motion, Xiong argued that his sentence was based on inaccurate information, and that the trial court had erroneously exercised its discretion with regard to the factors it considered in imposing the sentence. The trial court denied the motion without a hearing.

On appeal, Xiong requests that his sentence be vacated and the matter be remanded for resentencing because he was denied the effective assistance of counsel due to a lack of adequate interpreter services at the plea and sentencing hearings. He also renews his argument that the trial court erroneously exercised its discretion at sentencing regarding the factors it considered. We conclude that Xiong’s ineffective assistance of counsel claim is barred because he did not raise it in his postconviction motion. Furthermore, even if the claim was not barred, it would fail on the merits. We also conclude that the trial court did not erroneously exercise its discretion in imposing sentence. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Society Insurance, et al. v. Bessemer Plywood Company, et al.

Case No.: 2018AP224

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

Focus: Insurance Claim – Duty to Defend

Bessemer Plywood Company and Harleysville Lake States Insurance Company (collectively, “Bessemer”) appeal a grant of summary judgment in favor of Great West Casualty Company (“Great West”). Bessemer contends that the circuit court erred by determining that Great West had no duty to defend or to indemnify Bessemer against claims arising from a slip and fall accident in which Scott Friedle, an employee of Great West’s insured, Maki Trucking & Logging (“Maki”), suffered severe injuries at a Bessemer facility. We conclude that an exclusion in Great West’s policy precludes coverage of Bessemer for Friedle’s injury as a matter of law, and Great West therefore had no duty to defend or to indemnify Bessemer. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Albert D. Moustakis v. State of Wisconsin Department of Justice

Case No.: 2018AP373

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

Focus: DOJ – Mandamus Action Denied

Albert Moustakis appeals a judgment dismissing his claims seeking a common law writ of mandamus and a declaration that part of the Wisconsin public records law, WIS. STAT. § 19.356 (2017-18), is unconstitutional as applied to him. The Wisconsin Department of Justice (DOJ) planned to release the records of a closed investigation concerning Moustakis’s conduct while he was serving as an elected district attorney. Moustakis asserts that in deciding to release the records, the DOJ’s records custodian performed an arbitrary public interest balancing test. He also claims that § 19.356 denies him equal protection of the law by excluding him from the class of government workers entitled to maintain an action for prerelease judicial review of the record custodian’s decision to release records.

We conclude the circuit court properly dismissed both of Moustakis’s claims. Moustakis is not entitled to a writ of mandamus because the legal authorities he marshals in support of his claim fail to establish that he has a clear legal right to the relief he seeks or that the DOJ has a positive and plain legal duty to withhold the records. Consequently, Moustakis is not permitted to have the public interest balancing applied in the manner he desires or to reach a result in favor of nondisclosure. Moustakis is also not entitled to a judgment declaring WIS. STAT. § 19.356 unconstitutional as applied to him on equal protection grounds. The statute does not violate any fundamental right of his so as to warrant the application of strict scrutiny, and the classification scheme established by the statute easily satisfies rational basis review. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.M.

Case No.: 2019AP475-NM; 2019AP476-NM

Officials: Dugan, J.

Focus: Termination of Parental Rights

A.M. appeals from orders terminating her parental rights and from postdisposition orders denying her request to discharge appointed counsel and proceed pro se on appeal. Attorney Carl W. Chesshir filed a no-merit report concluding that further proceedings would lack arguable merit. See WIS. STAT. RULES 809.107(5m), 809.32. Upon review of the records and the nomerit report, this court concludes that A.M. could pursue an arguably meritorious challenge to the circuit court’s orders denying her request to discharge counsel and to represent herself on appeal. IT IS ORDERED that the no-merit report is rejected and these matters are converted to appeals on the merits.

WI Court of Appeals – District II

Case Name: David Zimmerman, et al. v. Village of Elkhart Lake

Case No.: 2017AP2017

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

Focus: Revocable Trust – Property Rezoning

David Zimmerman and David and Le’Ann Zimmerman Revocable Trust (collectively the Zimmermans) appeal from an order on certiorari and summary judgment. They contend that the circuit court erred in affirming a decision to deny their petition to rezone their property. They further contend that the court erred in dismissing their takings claim. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Harold Eick, et al. v. Christopher Gorecki, et al.

Case No.: 2018AP142

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

Focus: Court Error – Abuse of Discretion

Christopher and Patricia Gorecki (hereafter Gorecki) appeal from a declaratory judgment. The case arises from a dispute about piers serving adjoining lakefront properties and whether the circuit court erred in using the coterminous method to apportion the parties’ riparian boundaries for purposes of placing their piers. We conclude that the circuit court properly exercised its discretion. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. David L. Lovell

Case No.: 2017AP2422-CR

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

Focus: Motion to Suppress – Warrantless Search

David Lovell appeals a judgment of conviction on five counts of possession of child pornography following a bench trial. Lovell appeals the circuit court’s denial of his pretrial request for an order allowing the defense to do the following: forensically analyze the computer that an investigator for the State used to obtain evidence from a digital, “peer-to-peer” network used for file-sharing. The State used the evidence that the investigator obtained from the peer-to-peer network as a basis to obtain a search warrant to search Lovell’s home. In executing the search warrant, police obtained the child pornography evidence that formed the basis for the counts of conviction. We reject Lovell’s arguments that the circuit court had statutory authority to order the forensic analysis regarding the peer-to-peer network investigation that Lovell requests. As to constitutional authority, we conclude that Lovell has failed to present a non-speculative basis for relief under any constitutional theory that he identifies.

Lovell also appeals denial of his pretrial motion to suppress the evidence that police seized pursuant to the warrant-authorized search, alleging that the warrant lacked probable cause because the information in the supporting affidavit was stale. On this issue, we conclude that, given the nature of the evidence sought by the warrant, the search warrant was not issued on the basis of stale information. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Melinda Wagner, et al. v. Allstate Property and Casualty Insurance Company, et al.

Case No.: 2018AP162

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Insurance Claim – Judicial Estoppel

In this lawsuit initiated in the La Crosse County Circuit Court, Melinda Wagner claims that she was injured in an auto accident. Wagner requests monetary damages from the driver of the other vehicle, Trisha Stratman; Stratman’s insurer, Allstate Property and Casualty Insurance Company; and Wagner’s auto underinsurer, Acuity. The Insurers moved for summary judgment requesting that Wagner’s claims against them be dismissed pursuant to the doctrine of judicial estoppel. According to the Insurers, Wagner failed to disclose her claims against the Insurers in her previous bankruptcy, that failure was clearly inconsistent with Wagner’s lawsuit against the Insurers and, as a result, judicial estoppel applies. See Olson v. Darlington Mut. Ins. Co., 2006 WI App 204, ¶¶8-11, 296 Wis. 2d 716, 723 N.W.2d 713 (judicial estoppel requires that positions taken by a party in two separate cases be “clearly inconsistent”). The circuit court granted the Insurers’ motion, and Wagner appeals.

Under Wisconsin law, the application of judicial estoppel also requires that any failure of Wagner to disclose her claims against the Insurers in the bankruptcy court was caused by “cold manipulation” rather than mistake. See State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996). We conclude that there are genuine issues of material fact regarding whether any failure of Wagner to disclose her claims against the Insurers in her bankruptcy was based on mistake rather than an intentional failure to disclose. Therefore, summary judgment was not appropriate. Accordingly, we reverse the order of the circuit court and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Samuel L. Jones

Case No.: 2018AP663-CR

Officials: Blanchard, Kloppenburg and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Samuel Jones was convicted of attempted first-degree intentional homicide following a jury trial. On appeal, Jones argues that he received ineffective assistance of counsel when his trial counsel failed to present cell phone records at trial that, Jones asserts, show he was in Chicago, Illinois, at the time that the crime occurred in Beloit, Wisconsin. The circuit court rejected this argument at a postconviction hearing.

We conclude that Jones’s ineffective assistance of counsel claim fails because Jones has not shown that his trial counsel was deficient by not presenting the cell phone records. We reach this conclusion because Jones has failed to present evidence showing that Jones’s trial counsel knew or should have through ordinary diligence discovered that, at the time of the crime, Jones had access to or used the cell phone that is the subject of the records. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: James & Judith Nonn Trust, et al. v. Wisconsin Department of Transportation

Case No.: 2018AP888

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

Focus: Court Error – Damages

The appellants (collectively, the Nonns) own and operate a business that was affected by a highway construction project. They seek compensation under WIS. STAT. § 32.09(6) for what they allege is a reduction in the value of their property caused by the installation of a traffic-blocking highway median that reduced access to their property from an adjacent highway. The Nonns argue that, because a single highway project included both a “partial taking” of their property for a sidewalk within the meaning of § 32.09(6) and the traffic-blocking median, the alleged reduction in value caused by the median is compensable even though the partial taking of property for the sidewalk did not cause the loss of access. This means, according to the Nonns, that the circuit court erred by granting DOT’s pretrial motion to exclude evidence of damages caused by the traffic-blocking median.

We agree with the circuit court that 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, requires that we reject the Nonns’ argument. Like the 118th Street court, we do not hold that access damages of the sort the Nonns seek are not compensable under any theory, but only that the access damages are not compensable under WIS. STAT. § 32.09(6), the authority the Nonns rely on. See 118th Street, 359 Wis. 2d 30, ¶¶33, 58. Accordingly, we affirm the circuit court.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Marlene S. Meier, et al. c. Wisconsin Lawyers Mutual Insurance Company, et al.

Case No.: 2018AP953

Officials: Sherman, Kloppenburg and Fitzpatrick, JJ.

Focus: Court Error – Indemnification

Wisconsin Lawyers Mutual Insurance Company and its insureds, attorney James Vance and law firm Vance, Wilcox & Martin, S.C. (collectively, Vance), appeal an order of the circuit court dismissing their amended third-party complaint against VH Land, LLC, Spruce Hollow Land, LLC, MREC VH Madison, LLC, Veridian Homes, LLC, and David Simon (collectively, the Buyers). Vance, who was sued by former legal clients for legal malpractice in connection with the sale of their property to the Buyers, asserted third-party claims against the Buyers for contribution and indemnification for any liability Vance may have to the clients. The circuit court concluded that Vance’s complaint fails to state claims for contribution or indemnification against the Buyers and dismissed those claims. For the reasons discussed below, we reverse.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin Ex. Rel, Richard Zecchino, et al. v. Dane County, et al.

Case No.: 2018AP1178

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

Focus: Court Error – Abuse of Discretion

Richard Zecchino and Adams Outdoor Advertising Limited Partnership Corporation (collectively, “Adams”), appeal the denial of their motion to reopen an order dismissing Adams’s complaint against Dane County and the Dane County Board of Supervisors, an order which was also affirmed on appeal in a published opinion. See State ex rel. Zecchino v. Dane Cty., 2018 WI App 19, 380 Wis. 2d 453, 909 N.W.2d 203. We affirm.

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. T.S.

Case No.: 2019AP415

Officials: BLANCHARD, J.

Focus: Termination of Parental Rights

T.S. appeals the circuit court’s order terminating his parental rights to his son, C.P., now a 3-year-old. The court determined that T.S. is unfit to parent C.P., based on C.P. being a child in continuing need of protection or services (CHIPS). See WIS. STAT. § 48.415(2). The court then determined that termination would be in C.P.’s best interest. In a challenge to the grounds determination, T.S. argues that the court violated his right to due process by relying on an incorrect element of the CHIPS ground. I reject this contention based on the County’s well-supported harmless error argument, which T.S. concedes through silence.

In a challenge to the disposition ruling, T.S. argues that, in making its best interest of the child determination, the court improperly “imported the definition of substantial parental relationship from the unfitness ground of WIS. STAT. § 48.415(6) Failure to Assume Parental Responsibility and used that definition to examine C.P.’s relationship with T.S. and his extended family members.” This argument is difficult for me to track, but in any case I reject it because it takes a statement by the court out of context and T.S. fails to show how the court’s broader analysis was improper. Accordingly, I affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kurt Allen Gray

Case No.: 2017AP406; 2018AP988

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

Focus: Due Process Violation

Kurt Gray appeals a domestic abuse injunction entered in favor of his former girlfriend, Brenda. He also appeals an order denying his WIS. STAT. § 806.07 (2017-18) motion for relief from that injunction. Gray argues: (1) he was denied due process because the petition seeking a domestic abuse injunction did not adequately notify him of the allegations against him; (2) the evidence was insufficient to support the circuit court’s findings that Gray had engaged in domestic abuse and that there was a substantial risk he would commit intentional homicide against Brenda; (3) the court was objectively biased; (4) Gray is entitled to a new trial in the interest of justice; and (5) the court should have granted Gray’s motion for relief from the domestic abuse injunction pursuant to § 806.07(1)(a), (b) or (h). We reject each of Gray’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Cynthia R. Weir, et al. v. David Hestekin, et al.

Case No.: 2017AP2338

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

Focus: Easement – Damages

David Hestekin, Teresa Hestekin, and Bruce Remington (collectively, “the Hestekins”) appeal a summary judgment declaring they do not have a second easement over property owned by Cynthia Weir and Kane Road Farms, LLC (collectively, “Weir”), and awarding Weir damages for lost income resulting from her inability to farm the land upon which the Hestekins trespassed. The Hestekins argue that the circuit court utilized the wrong measure of damages and improperly abridged their due process and statutory rights to discovery. For the reasons set forth below, we reject these arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: Frank Hull v. John Glewwe, et al.

Case No.: 2017AP2485

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

Focus: Insurance – Negligence Claim

Frank Hull appeals a judgment dismissing his negligence claim against John Glewwe and Glewwe’s insurer, State Farm Fire and Casualty Company. Hull and Glewwe were both injured in an accident that occurred during a roofing project at Hull’s home. In a prior lawsuit, Glewwe had pursued claims for damages arising out of the accident directly against Hull’s liability insurer, Unitrin Auto and Home Insurance Company, without Hull being made a party to that action. That case terminated in a settlement agreement under which Glewwe released his claims against Hull and Unitrin in exchange for the payment of a designated sum.

Hull subsequently filed this negligence action against Glewwe and State Farm. The case was dismissed based upon the circuit court’s conclusion that Hull was required to assert his affirmative claim for damages in the earlier lawsuit, even though he was not a party to that action. The issue presented in this appeal is whether claim preclusion and the common law compulsory counterclaim rule operate so as to bar an injured person’s negligence claim against an alleged tortfeasor, when prior litigation arising out of the same accident has been settled by that injured person’s insurer without that injured person having been a party to the prior litigation.

We conclude that, under the circumstances present in this case, Hull is not precluded from pursuing a negligence claim against Glewwe and State Farm. Because Hull was not a party to the prior action, he could only be bound to the outcome in the earlier case if he was in privity with his insurer, Unitrin. Privity, in turn, requires a sufficient alignment of interests that is lacking in this case. Specifically, although Hull’s and Unitrin’s interests aligned for purposes of defending against the claims in the prior lawsuit, their interests did not align for purposes of advancing Hull’s affirmative claim for relief. Accordingly, we reverse the grant of summary judgment and remand for further proceedings.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: Milwaukee v. D.C.B.

Case No.: 2018AP987

Officials: KESSLER, P.J.

Focus: Involuntary Commitment

D.C.B. appeals the order extending his involuntary commitment. He argues that: (1) Wisconsin’s continued commitment standard is unconstitutional; (2) the circuit court lost competency over D.C.B. and failed to make a proper finding of dangerousness; and (3) the County failed to prove that D.C.B. was dangerous. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kurt Allen Gray

Case No.: 2017AP406; 2018AP988

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

Focus: Sufficiency of Evidence

Kurt Gray appeals a domestic abuse injunction entered in favor of his former girlfriend, Brenda. He also appeals an order denying his WIS. STAT. § 806.07 (2017-18) motion for relief from that injunction. Gray argues: (1) he was denied due process because the petition seeking a domestic abuse injunction did not adequately notify him of the allegations against him; (2) the evidence was insufficient to support the circuit court’s findings that Gray had engaged in domestic abuse and that there was a substantial risk he would commit intentional homicide against Brenda; (3) the court was objectively biased; (4) Gray is entitled to a new trial in the interest of justice; and (5) the court should have granted Gray’s motion for relief from the domestic abuse injunction pursuant to § 806.07(1)(a), (b) or (h). We reject each of Gray’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Adam Lee Graun

Case No.: 2018AP1054-CR

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

Focus: Ineffective Assistance of Counsel

Adam Lee Graun appeals the judgment entered after a jury convicted him of child neglect, misdemeanor battery as an act of domestic abuse, misdemeanor bail jumping, and four counts of physical abuse of a child by recklessly causing great bodily harm. See WIS. STAT. §§ 948.21(1)(c), 940.19(1), 968.075(1)(a), 946.49(1)(a), 948.03(3)(a) (2015-16). He also appeals the order denying his motion for postconviction relief. The issue on appeal is whether the circuit court properly denied Graun’s postconviction motion alleging that he received ineffective assistance of counsel when trial counsel did not move to dismiss count six on multiplicity or duplicity grounds. Because Graun was not entitled to a Machner hearing, we affirm. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Christopher L. Gee

Case No.: 2018AP1069-CR

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

Focus: Due Process Violation

Christopher L. Gee appeals his judgment of conviction entered after a jury convicted him of two counts of first-degree sexual assault using a dangerous weapon. On appeal, Gee challenges the constitutionality of WIS. STAT. § 904.04(2)(b)2. (2017-18), which permits, in cases of first-degree sexual assault, the admission of evidence regarding other convictions on the same charge to show that the defendant “acted in conformity” with the conduct in the previous conviction. Id. Gee contends that his right to due process was violated because he chose not to testify based on the trial court’s pretrial ruling regarding the admission of his prior conviction for rape in Indiana: the trial court determined that the prior conviction could be introduced at trial pursuant to § 904.04(2)(b)2., but limited its admission to purposes of rebuttal in the event that Gee presented evidence attacking the credibility of the victims. Gee further asserts that the trial court erroneously exercised its discretion in making that ruling.

We conclude that WIS. STAT. § 904.04(2)(b)2. is constitutional, both facially and as applied to Gee. We further conclude that the trial court did not erroneously exercise its discretion in its ruling regarding the admission of Gee’s prior conviction. We therefore affirm.

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WI Court of Appeals – District I

Case Name: City of West Allis v. James M. Gregg

Case No.: 2018AP1326

Officials: BRASH, J.

Focus: OWI – Probable Cause

James M. Gregg appeals an order of the circuit court, upholding a decision by the City of West Allis Municipal Court, that Gregg had improperly refused to submit to one or more chemical tests after being arrested for operating a vehicle while under the influence of an intoxicant (OWI). Gregg argues that the arresting officer did not have probable cause to arrest him for OWI, which is also a requirement for an improper refusal finding, and thus both courts erred in making that finding. We affirm.

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WI Court of Appeals – District I

Case Name: Paul Ryan, et al. v. Todd Friday, et al.

Case No.: 2018AP1354

Officials: DUGAN, J.

Focus: Abuse of Discretion – Motion to Reopen

Todd Friday d/b/a Friday’s Contracting appeals the circuit court’s order denying his motion to reopen a default judgment entered against him in the small claims action brought against him by Paul Ryan d/b/a Paul and Christine Real Estate Services LLC. We affirm.

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WI Court of Appeals – District III

Case Name: Nash Finch Company v. Gordy’s Chippewa Foods, Inc., et al.

Case No.: 2018AP1419

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

Focus: Statutory Interpretation – Receivership Proceedings

This appeal involves receivership proceedings commenced under WIS. STAT. ch. 128 (2017-18). Michael Polsky is the court appointed receiver of Gordy’s Chippewa Foods, Inc., and twenty-four related entities (collectively, “the Gordy’s Entities”). Nash Finch Company, which instituted the receivership proceedings, had a perfected security interest in assets owned by some of the Gordy’s Entities. Huiras Construction, Inc., and Northwest Wisconsin Refrigeration Services LLC (collectively, “Huiras”) were unsecured creditors of the Gordy’s Entities. During the course of the receivership proceedings, some assets belonging to the Gordy’s Entities were sold, and the proceeds were disbursed to Nash Finch. Because the sale proceeds were insufficient to satisfy Nash Finch’s secured claim, unsecured creditors of the Gordy’s Entities—including Huiras—received nothing.

On appeal, Huiras argues the receivership proceedings were not conducted in a lawful manner because it was clear from the outset that there was no “reasonable possibility” the Gordy’s Entities’ unsecured creditors would receive a dividend from the receivership estate. In essence, Huiras argues that unless there is a reasonable possibility unsecured creditors will receive a dividend, a secured creditor may not use WIS. STAT. ch. 128 receivership proceedings to collect on its security interest. Huiras further argues that by improperly participating in the ch. 128 proceedings, Nash Finch waived its security interest, and the proceeds of the receivership estate should therefore be distributed pro rata between Nash Finch and the Gordy’s Entities’ unsecured creditors. Huiras also argues that the circuit court erred by ordering it to pay Polsky’s attorney fees and costs as a sanction under WIS. STAT. § 802.05(3).

We reject Huiras’s argument that Nash Finch’s participation in the WIS. STAT. ch. 128 receivership proceedings was improper and thus resulted in a waiver of Nash Finch’s security interest. We therefore affirm in part. However, we conclude the circuit court erred by sanctioning Huiras on the court’s own initiative without following the procedure set forth in WIS. STAT. § 802.05(3)(a)2. Moreover, the sanction the court imposed—i.e., the payment of Polsky’s attorney fees and costs—is not available when a court orders sanctions on its own initiative. See § 802.05(3)(b). We therefore reverse that portion of the court’s order requiring Huiras to pay Polsky’s attorney fees and costs as a sanction under § 802.05(3), and we remand for the court to reconsider the issue of sanctions using the proper legal standards.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Srbo M. Lazic

Case No.: 2017AP2318-CR

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

Focus: Ineffective Assistance of Counsel

Srbo M. Lazic appeals the judgment convicting him of second-degree sexual assault of a child. He contends defense counsel failed to adequately prepare him for the sex-offender presentence process, resulting in an unduly harsh sentence. Lazic also appeals the order denying his postconviction motion for sentence modification or plea withdrawal. We affirm.

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WI Court of Appeals – District II

Case Name: Victory Valley Church, Inc. v. Alfred George, et al.

Case No.: 2018AP52

Officials: HAGEDORN, J.

Focus: Eviction – Personal Liability

This appeal arises from an eviction and money judgment against Alfred George d/b/a Victory Christian Cathedral, Inc. (George) after he defaulted on his lease with Victory Valley Church, Inc. (VVC). Almost two years after that decision, George moved to correct the record so that the judgment was not entered against him personally. The circuit court denied this request and awarded additional attorney’s fees and costs to VVC. On appeal from these rulings, George continues to dispute his personal liability and objects to the additional fees and costs. The problem is that George’s effort to change the underlying judgment is too late in the game. The issue has been forfeited and his motion was correctly denied; nor do we find any error in the circuit court’s imposition of fees and costs. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher S. Stevens

Case No.: 2018AP175-CR

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

Focus: Sentencing Guidelines

Christopher S. Stevens appeals from a judgment convicting him of first-degree reckless homicide on his no contest plea and from an order denying his postconviction motion challenging his sentence. We affirm because the circuit court did not rely upon inaccurate information at sentencing, and Stevens did not show the existence of a new factor warranting sentence modification. We also conclude that Stevens did not satisfy the criteria for obtaining postconviction discovery of matters relating to his challenge to his sentence.

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WI Court of Appeals – District II

Case Name: Waukesha County v. W.E.L.

Case No.: 2018AP1486

Officials: HAGEDORN, J.

Focus: Involuntary Commitment and Medication

Pursuant to WIS. STAT. ch. 51, W.E.L. was committed to the care and custody of Waukesha County and subject to the involuntary administration of medication during commitment. He now appeals from the original commitment and medication orders, as well as an order denying him postdisposition relief. However, W.E.L. later stipulated to an extension of the commitment and medication orders. Because W.E.L. is no longer subject to the original orders and does not challenge the extension orders he stipulated to, we conclude that W.E.L.’s challenges to the original commitment and medication orders are moot. Thus, we dismiss the appeal.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brett C. Basler

Case No.: 2018AP2299-CR

Officials: REILLY, P.J.

Focus: OWI – Warrantless Search

Brett C. Basler appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense, pursuant to WIS. STAT. § 346.63(1)(a). Basler argues that the circuit court erred in denying his motion to suppress evidence derived from the unlawful entry of his home. Based on the particular facts of this case, as the police intrusion into Basler’s home occurred without a warrant and without exigent circumstances, we conclude that the circuit court erred in denying Basler’s motion to suppress. We reverse.

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WI Court of Appeals – District IV

Case Name: Payday Loan Resolution, LLC, et al. v. Wisconsin Department of Financial Institutions

Case No.: 2018AP821

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

Focus: Abuse of Discretion – Due Process Violation

Payday Loan Resolution, LLC, William Karger, and Lauren Petruzzelli (collectively, Payday) appeal a circuit court order that affirmed an Order of the Administrator of the Wisconsin Department of Financial Institutions, Division of Banking (the Division). The Order requires that Payday, a non-Wisconsin business, cease certain business activities in Wisconsin, pay a forfeiture, and issue refunds for all fees paid by Wisconsin clients to Payday, because Payday “was conducting unlicensed adjustment service company business” in violation of Wisconsin statutes and had not complied with an earlier order issued by the Division.

The parties do not dispute that the Division was exercising Wisconsin’s “police power” in issuing the Order against Payday, and Payday does not dispute that it “was conducting unlicensed adjustment service company business” as stated in the Order. However, Payday argues that the Division’s exercise of Wisconsin’s police power over Payday violates due process. Payday asserts that this is so because due process limitations on Wisconsin’s exercise of its police power require greater contacts between Payday and Wisconsin than are necessary to establish “personal jurisdiction for judicial process,” and because the requirements for “personal jurisdiction” are not present, it necessarily follows that due process bars the exercise of Wisconsin’s police power against Payday. We reject Payday’s argument as contrary to the test set forth by our supreme court for the proper exercise of Wisconsin’s police power over out-of-state entities. Applying that test here, we conclude that the Division’s issuance of the Order falls well within due process limits. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: David Christian Ellestad v. Jennifer Susan Ellestad

Case No.: 2018AP1298

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

Focus: Divorce – Property Division and Maintenance

David Christian Ellestad appeals a judgment of divorce awarding an unequal division of property to, and indefinite maintenance in favor of, Christian’s former spouse, Jennifer Ellestad. Christian contends that part of the circuit court’s reasoning underlying the court’s determination as to the division of property was erroneous, and that an award of indefinite maintenance is not justified. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Denice Morgan v. Circuit Court for Dane County, et al.

Case No.: 2018AP2313

Officials: KLOPPENBURG, J.

Focus: Court Error – Eviction

This appeal raises the question of whether the circuit court properly denied Denice Morgan’s motion to redact her name from the record of this eviction action on the Wisconsin Circuit Court Access website after the eviction action was dismissed. The circuit court concluded that “no law or legal precedent” gave it the authority to make such a redaction. Morgan argues that because the court found that failing to redact her name from the court access website threatened Morgan’s ability to obtain safe and secure housing in the future, the court had inherent authority to redact her name. Applying the test set out in controlling case law, I agree. Accordingly, I reverse and remand.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Town of Rib Mountain v. Marathon County

Case No.: 2019 WI 50

Focus: Statutory Authority – Naming & Numbering System

In 1957, the Wisconsin legislature conferred authority on counties to “establish a rural naming or numbering system in towns for the purpose of aiding in fire protection, emergency services, and civil defense.” Wis. Stat. § 59.54(4) (2017-18). Marathon County decided to establish such a system in 2016 but the Town of Rib Mountain challenged its authority to do so, contending the statute confines counties to implementing naming and numbering systems only within “rural” areas of towns. Marathon County maintains that the only territorial restriction on its authority to establish a “rural naming or numbering system” is “in towns.” The circuit court denied the Town declaratory relief, the Town appealed its decision, and the court of appeals reversed. We agree with Marathon County and hold, consistent with the text of the statute, that Marathon County may establish a rural naming or numbering system in towns, and the statute does not restrict this exercise of authority to only rural areas within them. “Rural” merely describes the naming or numbering system and the roads to which the system applies; it has no independent operative effect. We reverse the decision of the court of appeals.

Reversed

Concur:

Dissent:
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Supreme Court Digests

United States Supreme Court

Case Name: Franchise Tax Board of California v. Gilbert P. Hyatt

Case No.: 17-1299

Focus: 11^th Amendment Violation

This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U. S. 410 (1979).

Reversed and remanded

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

Concurring:

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United States Supreme Court

Case Name: Cochise Consultancy, Inc., et al. v. United States, Ex. Rel. Billy Joe Hunt

Case No.: 18-315

Focus: Qui Tam Limitation

The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U. S. C. §3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period.

This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in §3731(b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit cannot be deemed the official of the United States. We agree, and therefore affirm.

Affirmed

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Apple Inc. v. Pepper, et al.

Case No.: 17-204

Focus: Illinois Brick Direct-Purchaser Rule

In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those “apps” enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. “There’s an app for that” has become part of the 21st-century American lexicon.