Weekly Case Digests – July 29, 2019 – August 2, 2019

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Milwaukee Center for Independence, Inc., v. Milwaukee Health Care, LLC, et al.

Case No.: 18-3205

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

Focus: Breach of Contract

Milwaukee Health Care, LLC (MHC) and Milwaukee Center for Independence, Inc. (MCFI) entered into an agreement in 2014. Per that agreement, MCFI, a non-profit organization dedicated to providing medical care for individuals with brain injuries, would operate a brain-injury center in MHC’s nursing facility. MHC would handle all billing and collections for the services MCFI provided and, through a process outlined in the agreement, remit the funds collected to MCFI (after taking a cut for itself).

But MHC failed to follow through on its obligations under the contract, redirecting MCFI’s funds to pay its employees and other creditors instead. MCFI sued MHC for breaching the contract and brought claims against MHC’s principal, William Nicholson. The district court, exercising diversity jurisdiction, entered summary judgment against MHC for breach of contract and against Nicholson for conversion and civil theft. The district court awarded MCFI over $2 million in damages, interest, and costs against MHC and Nicholson, jointly and severally. It also awarded MCFI over $200,000 in attorney’s fees and costs against Nicholson alone.

MHC and Nicholson appeal the judgments against Nicholson. Because we agree with the conclusions of the district court, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Devontay Sawyer

Case No.: 18-2923

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

Focus: Suppression of Evidence Denied

Devontay Sawyer entered a conditional guilty plea to possessing a firearm as a felon, 18 U.S.C. § 922(g), preserving for this direct appeal his challenge to the denial of his motion to suppress evidence. Sawyer contests the search of his backpack, which he left inside a home that he had entered unlawfully. The police found guns inside the backpack. The district court denied the motion to suppress, concluding that Sawyer, as a trespasser, had no legitimate expectation of privacy in the house and therefore none in the unattended backpack. We agree with the district court and affirm the judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Claudius L. Fincher

Case No.: 18-2520

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

Focus: Sixth Amendment Violation

Claudius Fincher possessed a firearm; that much is certain. The questions raised in this appeal are whether the district court clearly erred by finding Fincher’s possession of the firearm was “in connection with” his drug offense, and whether resolving that factual question at sentencing without a jury determination violated the Sixth Amendment. Due to finding Fincher possessed the gun in connection with his drug offense, the court held Fincher was ineligible for safety‐valve relief and sentenced him to the mandatory minimum sentence of five years. For the reasons stated below, we affirm the district court’s sentence.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Chicago Management Consulting Group, Inc., et al. v. Julia Hathaway

Case No.: 17-2354

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

Focus: Court Error – Bankruptcy – Sanctions

Frank Novak tragically took his own life in February 2012. He left his company, Chicago Management Consulting Group, Inc., to his close friend Debra Comess. She was not in a position to manage the struggling firm, so she initiated bankruptcy proceedings almost immediately after Novak’s death. The Chapter 7 Trustee discovered numerous transfers from Chicago Management Consulting Group’s coffers to Comess and Julia Hathaway—another Novak companion who ran a small yoga studio. Believing the transfers to be fraudulent under the Bankruptcy Code, the Trustee sought to reclaim their value for the Estate. After a bench trial, the bankruptcy judge ruled that the transfers to Comess and Hathaway were voidable on grounds of actual and constructive fraud and imposed sanctions on Hathaway for discovery lapses. The district court affirmed.

Comess settled her case; this appeal concerns the transfers to Hathaway. She launches several arguments. First, she contends that the bankruptcy judge committed clear error by ignoring one of the Trustee’s trial exhibits when evaluating the company’s financial health. Second, she challenges the bankruptcy judge’s finding that the company did not receive reasonably equivalent value in return for its transfers. Third, she argues that the company did not have “creditors” under the Illinois Uniform Fraudulent Transfer Act (“IUFTA” or “the Act”) at the time of the transfers. Finally, Hathaway vigorously disputes the sanctions ruling.

We affirm. As a preliminary matter, Hathaway failed to comply with multiple rules of appellate procedure. On the merits, our review of a bankruptcy court’s factual findings is constrained; we reverse only for clear error. Not one of Hathaway’s arguments meets this high bar. The bankruptcy judge was amply justified when he concluded that the company was insolvent, the transfers to Hathaway were gratuitous, and the company had creditors under the Act. And we see no reason to disturb the imposition of discovery sanctions.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Jiri Vyloha v. William P. Barr

Case No.: 18-2290; 18-3298

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

Focus: Abuse of Discretion – Subject-matter Jurisdiction

Jiri Vyloha, a citizen of the Czech Republic, brings two petitions for judicial review in this consolidated appeal. About ten years after an Immigration Judge (IJ) ordered Vyloha removed in absentia in 2007, Vyloha moved to rescind the order and reopen his case. See 8 U.S.C. § 1229a(b)(5)(C). An IJ denied that motion and the subsequent motion to reconsider, and we conclude that the Board of Immigration Appeals did not abuse its discretion in affirming the IJ. We thus deny Vyloha’s first petition for review.

Vyloha also seeks judicial review of the Board’s decision rejecting his subject-matter jurisdiction argument based on the Supreme Court’s June 2018 decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Because Vyloha’s argument is foreclosed by our recent decision in Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), we also deny his second petition for review.

Petition Denied

Full Text

7^th Circuit Court of Appeals

Case Name: John Doe v. Kevin K. McCaleenan

Case No.: 17-2040

Officials: John Z. Lee, Judge.

Focus: Order Correcting Opinion

On consideration of the letter of the Government requesting correction of the opinion in this appeal issued on July 3, 2019, the opinion is amended on page 3 by replacing “and up to $3,000,000 for a new commercial enterprise located in an area with an unemployment rate significantly below the national average” with “and $1,000,000 for a new commercial enterprise located in any other area.”

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Thomas M. Smith

Case No.: 18-3265

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

Focus: Sentencing – Supervised Release

Within three months of being placed on a 20‐year term of supervised release, Thomas “Lizzie” Smith violated the requirements of her supervision. The district court revoked Smith’s supervised release, and sentenced her to two years’ imprisonment without any further supervision to follow. Smith now appeals that order. For the reasons that follow, we affirm the district court’s revocation sentence

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jimmy L. Desotell

Case No.: 18-2778

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

Focus: Plea Colloquy

Jimmy Desotell had an unexpected encounter with police officers one evening in Green Bay, Wisconsin. While he was trying to borrow a car from a friend, police arrived and informed him that the vehicle was suspected of use in a retail theft. But after being told that he was not a suspect and was free to leave, Desotell stuck around. He tried to remove bags from the car as police were about to search it, arousing the officers’ suspicion. As it turned out, the bags contained a firearm and drugs. After unsuccessfully trying to suppress the evidence, he agreed to plead. Despite tensions during negotiations, Desotell eventually signed a plea deal expressly waiving his right to appeal the motion to suppress. After an extensive colloquy in the district court hammering home the waiver, Desotell now appeals the precise issue he may not appeal. We therefore dismiss it as waived.

Dismissed

Full Text

7^th Circuit Court of Appeals

Case Name: Bill Conroy v. Scott Thompson

Case No.: 17-3624

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

Focus: Equitable Tolling

Bill Conroy filed a petition for a writ of habeas corpus in 2016 to challenge an Illinois state court conviction from 2007. Although he admitted that he had not filed his petition within the one‐year limitations period, he claimed that his mental condition justified equitable tolling. The district court disagreed, concluding both that his petition was untimely and that he had not met the high bar necessary to establish equitable tolling. We agree and affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Oliver Collins v. University of Notre Dame Du Lac

Case No.: 18-2559; 18-2579

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

Focus: Breach of Contract – Damages

Plaintiff Oliver Collins was a tenured professor of electrical engineering at the University of Notre Dame. In 2010, a faculty committee found after a hearing that Dr. Collins had misused grant money by purchasing equipment other than that in his grant proposals and then using the equipment for personal purposes. The committee concluded that his actions warranted “dismissal for serious cause” under the Academic Articles incorporated in Dr. Collins’s faculty contract. At the end of the university’s internal review processes, the president of Notre Dame ultimately dismissed Dr. Collins, who later pleaded guilty to a federal felony charge arising from his conduct.

Before the criminal charges were filed, however, Dr. Collins filed this suit against Notre Dame alleging that it breached his contract by dismissing him. In 2012, before his guilty plea, the district court granted summary judgment for Dr. Collins on liability on the theory that Notre Dame breached the contract by allowing one faculty member both to play a role in the informal mediation process and then to serve on the hearing committee. The court did not decide whether the faculty committee’s findings added up to sufficient cause to dismiss a tenured faculty member like Dr. Collins.

Following Dr. Collins’s 2013 guilty plea to a federal felony charge for theft of government grant funds in this same con‐ duct, Notre Dame re‐did Dr. Collins’s adjudication and dismissed him again so as to establish a “damage cutoff date” in light of the district court’s finding of a procedural error in the first adjudication. After the guilty plea, the court held to its earlier finding that Notre Dame had breached the contract by the procedural error. After a court trial on damages, the court awarded Dr. Collins $501,367, calculated as his lost compensation from the date of his dismissal on June 2, 2010 until the date of his felony conviction on February 28, 2013. Notre Dame has appealed, and Dr. Collins has cross‐appealed on the amount of damages and other issues. We reverse both the district court’s grant of summary judgment to Dr. Collins and the award of damages. The contract did not prohibit one faculty member from participating in informal mediation and then serving on the hearing committee. Further, the undisputed facts show “serious cause” sufficient to warrant Dr. Collins’s dismissal. Notre Dame is entitled to judgment in its favor.

Since there was no procedural breach, and since there was “serious cause” as a matter of law, Notre Dame is entitled to summary judgment. Dr. Collins is entitled to no damages. Our ruling renders moot all of the issues in Dr. Collins’s cross‐appeal. Accordingly, that appeal is dismissed. The district court’s judgment is REVERSED and the case is REMANDED with instructions to enter judgment in favor of Notre Dame.

Reversed and remanded

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Matthew D. Brown

Case No.: 2018AP37-CR

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

Focus: Plea Withdrawal

Matthew Brown appeals a judgment, entered upon his guilty pleas, convicting him of one count of possession with intent to deliver between eleven and fifty grams of heroin and one count of possession with intent to deliver more than forty grams of cocaine. He also appeals the order denying his motion for postconviction relief. Brown argues he is entitled to plea withdrawal because a defective plea colloquy rendered his plea unknowing, unintelligent, and involuntary. Brown also contends the circuit court imposed an illegal sentence. For the reasons discussed below, we affirm the judgment and order.

Full Text

WI Court of Appeals – District III

Case Name: Estate of Brent J. Roppe v. Jon L. Roppe, et al.

Case No.: 2018AP1116

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

Focus: Estate – Sufficiency of Evidence

After being diagnosed with terminal cancer, Brent Roppe executed a financial power of attorney (POA) naming his sister-in-law, Jeanette Colbert-Roppe, as his agent. In her capacity as Brent’s agent, Jeanette executed a quit claim deed transferring ownership of Brent’s home to Jon Roppe—who was Brent’s brother and Jeanette’s husband. Brent later sued Jon and Jeanette, seeking rescission of the quit claim deed and asserting a claim for theft by fraud. Brent’s estate (“the Estate”) was ultimately substituted as plaintiff, and the circuit court later granted the Estate partial summary judgment, concluding Jeanette’s execution of the quit claim deed violated both WIS. STAT. § 244.41(1)(b) (2017-18) and the terms of the POA. Following a bench trial, the court found that Jon and Jeanette had committed theft by fraud. The court rescinded the quit claim deed and awarded the Estate damages, including $25,000 for Brent’s emotional distress.

Jon and Jeanette now appeal, arguing: (1) the circuit court erred by refusing to consider evidence extrinsic to the POA when ruling on the Estate’s motion for partial summary judgment; (2) the court erred by determining no expert testimony was necessary to support the Estate’s claim for Brent’s emotional distress; and (3) the evidence was insufficient to support the court’s finding that Jon and Jeanette committed theft by fraud. We reject these arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andreal Washington

Case No.: 2018AP1254-CR

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

Focus: Double Jeopardy

Andreal Washington appeals a nonfinal order of the circuit court denying his motion to dismiss the second-degree reckless homicide charge against him on the grounds that this prosecution violates double jeopardy. Washington was previously acquitted of felony murder regarding the death of Travis Deon Williams. The State then subsequently filed the current charges against Washington for Williams’s death.

We conclude that the circuit court properly denied Washington’s motion to dismiss. We therefore affirm.

Full Text

WI Court of Appeals – District II

Case Name: Village of Slinger v. Polk Properties, LLC, et al.

Case No.: 2017AP2244

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

Focus: Breach of Restrictive Covenant – Damages

Polk Properties, LLC and Donald J. Thoma (collectively Polk) challenge circuit court orders arising from their unlawful agricultural use of property zoned residential by the Village of Slinger at Polk’s request in 2006. Polk also recorded a restrictive covenant limiting the use of the property to residential. In December 2012, the circuit court issued an injunction prohibiting Polk from continuing agricultural activities. However, Polk’s agricultural use from 2009 to 2012 entitled it to pay lower property taxes from 2010 to 2013. Polk challenges the circuit court’s order subjecting Polk to daily forfeitures for the violation of zoning law and its related contempt order. Polk also appeals the circuit court’s determination that Polk’s breach of the restrictive covenant entitled the Village to recover as damages the difference between what Polk was taxed for agricultural use and what Polk should have been taxed at the residential rate for the years 2010 through 2013. The court rejected several additional attempts to challenge these orders and the court’s 2012 injunction. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Benjamin Jossund, et al. v. Heim Plumbing, Inc.

Case No.: 2018AP209

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

Focus: Negligence Claim

Benjamin and Kristina Jossund appeal from an order dismissing their claims against US Bank N.A., as Trustee for LSF8 Master Participation Trust (“US Bank”). We agree that the alleged facts did not plausibly support a negligence claim for relief, but disagree that dismissal was appropriate as to the remaining four claims. We affirm in part and reverse in part.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Marcus Lynn Taylor

Case No.: 2018AP899-CR

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

Focus: 6^th Amendment Violation – Other Acts Evidence

A jury found Marcus Lynn Taylor guilty of incest by a stepparent, repeated sexual assault of the same child, and exposing a child to harmful material. The jury was persuaded that Taylor sexually fondled his stepdaughter and made her perform fellatio on him and watch pornographic videos when she was between nine and eleven years old. Throughout the trial, the court denied Taylor’s several mistrial motions rooted in claims of evidentiary missteps. Postconviction, he moved for a new trial, claiming a violation of his statutory and Sixth Amendment right to present impeachment evidence, and that other-acts evidence, cumulative evidence, and certain expert testimony was improperly admitted. The court denied his motions without a hearing. This appeal followed.  We affirm the judgment of conviction and the order denying his postconviction motion seeking a new trial.

Full Text

WI Court of Appeals – District IV

Case Name: Antonio Soria v. Classic Custom Home of Waunakee, Inc.

Case No.: 2017AP1693

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

Focus: Sufficiency of Evidence

This case arises out of a dispute between Antonio Soria and Classic Custom Homes of Waunakee, Inc. (Custom Homes) about Custom Homes’ refusal to pay Soria for amounts purportedly due on three house painting contracts. Soria sued Custom Homes in the Dane County Circuit Court, and a jury found that, because of Custom Homes’ refusal to pay Soria: Custom Homes breached its contracts with Soria; Custom Homes was unjustly enriched; and Custom Homes committed theft by contractor in violation of WIS. STAT. § 779.02(5) (2017-18).

Custom Homes appeals the circuit court’s order that vacated a previous order. The earlier order dismissed each of Soria’s causes of action that concerned one of the painting contracts. The dismissal was based on an alleged accord and satisfaction between Soria and Custom Homes. We affirm the circuit court’s order vacating the previous order because the vacated order improperly infringed on Soria’s right to a jury trial on the accord and satisfaction issue. Custom Homes also appeals an order of the circuit court that denied Custom Homes’ postverdict motion to change the jury’s answers to special verdict questions concerning one element of Soria’s theft by contractor claims. Custom Homes contends that Soria failed to present any credible evidence that its failure to pay Soria was without the consent of the owners of the land, which is an element of a theft by contractor claim. We conclude that the record contains no credible evidence to support the jury’s answers concerning the consent of the owner element. As a result, we reverse the circuit court’s order denying Custom Homes’ request to change the answers to those special verdict questions. Soria also requests an order for the payment of his attorney fees for defending against Custom Homes’ appeal because, according to Soria, Custom Homes’ entire appeal is frivolous. We deny Soria’s motion.

Soria cross-appeals orders of the circuit court denying his motions for: pre-judgment interest and double statutory costs pursuant to WIS. STAT. § 807.01(3); pre-judgment interest pursuant to WIS. STAT. § 138.04; and for the payment, pursuant to WIS. STAT. § 804.12(3), of some of Soria’s attorney fees incurred in this action. We reverse the circuit court’s decision regarding prejudgment interest requested pursuant to § 138.04, but otherwise affirm the circuit court’s decisions on the remaining issues raised in Soria’s cross-appeal. Therefore, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District IV

Case Name: Bridgett Ann Antony v. Jeremy Jason Bittner

Case No.: 2018AP950

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

Focus: Divorce – Child Support

Jeremy Bittner appeals an order denying his postjudgment motion to modify child support, and also attempts to appeal the circuit court’s oral rulings denying reconsideration and a request to correct the original judgment of divorce. We conclude that Bittner proved that a substantial change in circumstances occurred, and therefore we reverse the order and remand with directions. However, we lack jurisdiction to review the oral rulings.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John E. Paul

Case No.: 2018AP1496-CR

Officials: KLOPPENBURG, J.

Focus: Structural Error – Voir Dire – Jury Questions

A jury found John E. Paul guilty of operating a motor vehicle while intoxicated (OWI) and operating a motor vehicle with a prohibited alcohol concentration. During voir dire, the prosecutor asked a question regarding the prohibited blood alcohol concentration limit that applied to Paul’s case. Paul moved for a mistrial, which the circuit court denied. Paul now appeals that denial, arguing that the prosecutor’s question implied that Paul “was a repeat offender” with prior OWI convictions. As I explain, I reject Paul’s argument and, therefore, affirm.

Full Text

WI Supreme Court Digests

WI Supreme Court

Case Name: Wisconsin Judicial Commission v. The Honorable Leonard D. Kachinsky

Case No.: 2019 WI 82

Focus: Judicial Misconduct

We review, pursuant to Wis. Stat. § 757.91 (2017-18), a judicial conduct panel’s findings of fact, conclusions of law, and recommendation for discipline for the Honorable Leonard D. Kachinsky, a former municipal judge for the Village of Fox Crossing Municipal Court. We conclude that Judge Kachinsky’s judicial misconduct warrants a three-year suspension of eligibility for the position of reserve municipal judge, commencing July 3, 2018, with the condition that before requesting an appointment by the chief judge to serve as a reserve municipal judge, Judge Kachinsky must successfully petition this court to establish his fitness to serve in that capacity.

Judge suspended from eligibility for reserve judge status with condition

Concur:

Dissent:

Full Text

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert Zapf

Case No.: 2019 WI 83

Focus: Attorney Disciplinary Hearing

Former Kenosha County District Attorney Robert D. Zapf appeals the report of Referee Dennis J. Flynn, who concluded that Attorney Zapf had committed two counts of professional misconduct and recommended that his license to practice law in Wisconsin be suspended for one year and that his resumption of the practice of law be subject to certain conditions.

After hearing oral argument and carefully reviewing this matter, we conclude that all three counts alleged against Attorney Zapf must be dismissed. The Office of Lawyer Regulation (OLR) failed to demonstrate by clear, satisfactory, and convincing evidence, as required by Supreme Court Rule (SCR) 22.16(5), that Attorney Zapf violated the three ethical rules identified in its complaint. Because we dismiss the OLR’s complaint in its entirety, we do not require Attorney Zapf to pay the costs of this proceeding.

Dismissed

Concur:

Dissent:

Full Text