Weekly Case Digests – August 12, 2019 – August 16, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Alarm Detection Systems, Incorporated, et al. v. Village of Schaumburg, et al.

Case No.: 18-3316

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

Focus: Anti-trust Violation

This appeal is one of two we decide today regarding the market for commercial fire‐alarm services in Chicago’s suburbs. The current case takes us to the Village of Schaumburg.

In 2016, Schaumburg passed an ordinance that requires commercial buildings to send fire‐alarm signals directly to the local 911 dispatch center. That decision, sensible as it may seem, comes at an economic cost: as implemented, the ordinance threatens to exclude from the market all but one alarm‐ system provider. This is because the area’s dispatch center, Northwest Central Dispatch System (“NWCDS”), has an al‐ most decade‐old exclusive arrangement with Tyco Integrated Security, LLC. To send signals to NWCDS, then, local buildings must also use Tyco equipment—or at least that is what Schaumburg has told local building owners.

A few of Tyco’s competitors (the “Alarm Companies” or “Companies”) see in these facts a profit‐driven conspiracy among Schaumburg, NWCDS, and Tyco to centralize the local market for fire‐alarm services. The Alarm Companies filed this suit charging violations of constitutional, antitrust, and state tort law. The district court, however, dismissed the case, concluding that the complaint’s allegations failed to state a claim.

We agree in large part. With one exception, the claims, and the underlying conspiracy, are not pleaded with enough facts to cross the line from speculative to plausible. We therefore affirm in large part and reverse and remand in part.

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: American Homeland Title Agency, Inc., et al. v. Stephen W. Robertson

Case No.: 18-3293

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

Focus: Penalties

During a random audit, the Indiana Department of Insurance (“the Department”) discovered that American Homeland Title Agency had committed hundreds of regulatory violations. After several rounds of negotiation, American Homeland agreed to pay a fine and relinquish its licenses. But just a few months later, American Homeland sued the Department’s commissioner, Stephen Robertson, for allegedly discriminating against the company because of its out-of-state residency.

We need not reach the merits of that discrimination claim. In its agreement with the Department, American Homeland consented to the same penalties it now challenges. It hasn’t provided a valid reason to void that agreement, so judicial review is unavailable. We therefore affirm summary judgment in favor of Robertson.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Matthew Carello v. Aurora Policemen Credit Union

Case No.: 18-2887

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

Focus: ADA Violation

Matthew Carello sued the Aurora Policemen Credit Union, alleging that accessibility barriers to the Credit Union’s website violate his rights under the Americans with Disabilities Act. The district court dismissed the claim, holding that Carello lacked standing to sue. We agree.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Neringa Venckiene v. United States of America

Case No.: 18-2529

Officials: BAUER, HAMILTON, and BARRETT, Circuit Judges

Focus: Abuse of Discretion – Extradition

Lithuania seeks extradition of petitioner Neringa Venckiene from the United States to prosecute her for several alleged offenses arising from a custody battle over Venckiene’s niece. After a hearing pursuant to 18 U.S.C. § 3184, a magistrate judge certified Venckiene as extraditable and the Secretary of State granted the extradition. Venckiene moved the magistrate judge for a temporary stay of her extradition, which was granted. She then filed a petition for a writ of habeas corpus in the district court challenging both the magistrate judge’s certification order and the Secretary’s decision. She also asked the district court to stay her extradition, but the district court denied that request.

In her habeas corpus petition, Venckiene claims the magistrate judge erred in two ways: failing to apply the political offense exception in the Lithuania-United States extradition treaty to her case, and finding probable cause that she was guilty of the offenses charged. Venckiene also claims that the Secretary of State’s decision to grant the extradition violated her constitutional right to due process and failed to consider that Venckiene might be subject to what we have called “particularly atrocious procedures or punishments,” see In re Burt, 737 F.2d 1477, 1487 (7th Cir. 1984), if she is returned to Lithuania.

This appeal challenges directly only the district judge’s denial of Venckiene’s request to extend the stay of her extradition, but that challenge necessarily implicates the merits of her habeas petition. We affirm the district court’s denial of a stay. In Part I, we explain the extradition process, including the applicable treaty provisions and the limited scope of the judicial role. In Part II, we summarize what we know about events in Lithuania leading to this case. In Part III, we review the United States legal proceedings thus far. In Part IV, we analyze the legal issues presented, considering in Part IV-A Venckiene’s challenges to the magistrate judge’s order and in Part IV-B her challenges to the Secretary’s decision, and finally in Parts IV-C and IV-D other factors relevant to Venckiene’s stay request.

The district court did not abuse its discretion in denying Venckiene’s motion to stay her extradition. The order of the district court is affirmed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Eddie R. Bradley v. Village of University Park, Illinois, et al.

Case No.: 16-3456

Officials: MANION, ROVNER and HAMILTON, Circuit Judges.

Focus: Due Process Violation

In 2015, the Village of University Park’s mayor and board fired police chief Eddie Ray Bradley without any notice of good cause or any form of hearing—i.e., the procedural protections owed to Bradley under the United States Constitution. Bradley sued the village and mayor in federal court under 42 U.S.C. § 1983 for violating his Fourteenth Amendment rights by depriving him of a property interest in his job without due process of law. He also asserted several state-law claims. The district court dismissed Bradley’s federal due process claim on the pleadings. We reverse.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Delores Henry, et al. v. Melody Hulett, et al.

Case No.: 16-4234

Officials: EASTERBROOK and MANION, Circuit Judges, and JOHN Z. LEE, District Judge.

Focus: 4^th Amendment Violation

Members of a certified class contend that during 2011 female inmates at an Illinois prison were strip-searched as part of a training exercise for cadet guards. The district court summarized the allegations this way: [Plaintiffs] were required to stand naked, nearly shoulder to shoulder with 8-10 other inmates in a room where they could be seen by others not conducting the searches, including male officers. Menstruating inmates had to remove their tampons and sanitary pads in front of others, were not given replacements, and many got blood on their bodies and clothing and blood on the floor. The naked inmates had to stand barefoot on a floor dirty with menstrual blood and raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough. 2016 U.S. Dist. LEXIS 194393 at *6 (C.D. Ill. Apr. 14, 2016).

Plaintiffs maintained that such an inspection—unnecessary for security and conducted in an offensive manner—violated their rights under both the Fourth Amendment and the Eighth Amendment, applied to the states by the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. §1983. The most one can say for plaintiffs is that judges, including those within the Seventh Circuit, have disagreed about whether the Fourth Amendment ever prevents guards from viewing naked prisoners. Johnson was decided over a dissent. A concurring opinion in King expressed doubt about the majority’s analysis, as a concurring opinion in Peckham expressed doubt about the analysis of the majority there.

It has been 35 years since the Justices last considered the extent to which convicted prisoners have rights under the Fourth Amendment while still inside prison walls. For more than 20 years it has been established in this circuit that the Fourth Amendment does not apply to visual inspections of prisoners. It is best to leave the law of the circuit alone, unless and until the Justices suggest that it needs change.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Paramount Media Group, Inc. v. Village of Bellwood, et al.

Case No.: 17-1562

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

Focus: Equal Protection Violation

In 2005 Paramount Media Group, Inc., leased a parcel of highway-adjacent property in the Village of Bellwood, Illinois, and planned to build a billboard on it. But Paramount never applied for a local permit. When the Village enacted a ban on new billboard permits in 2009, Paramount lost the opportunity to build its sign.

Paramount later sought to take advantage of an exception to the ban for village-owned property, offering to lease a different parcel of highway-adjacent property directly from the Village. But again it was foiled. The Village accepted an offer from Image Media Advertising, Inc., one of Paramount’s competitors. Its goal slipping away, Paramount sued the Village and Image Media alleging First Amendment, equal-protection, due-process, Sherman Act, and state law violations. The Village and Image Media moved for summary judgment. The district court granted the motion on the federal claims and relinquished supplemental jurisdiction over the state-law claims.

We affirm. Paramount lost its lease while the suit was pending. That mooted its claim for injunctive relief from the sign ban. The claim for damages is time-barred, except for the alleged equal-protection violation. That claim fails because Paramount was not similarly situated to Image Media. And the Village and Image Media are immune from Paramount’s antitrust claims. We need not consider whether a market-participant exception to this immunity exists because Paramount failed to support its antitrust claims.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Rita Guerrero v. BNSF Railway Company

Case No.: 19-1187

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

Focus: Negligence Claim – FELA

Behind the legal question we must resolve in this case is a sad story: as Celso Guerrero was trying to drive to his job at BNSF Railway through a snowstorm early one morning, his car skidded, it collided with a snowplow, and he was killed. His widow, Rita Guerrero, who appears on her own behalf and as administrator of her late husband’s estate, is seeking compensatory money damages from BNSF. (Our references in this opinion to Guerrero refer to Celso Guerrero, unless the context requires otherwise.) The district court concluded that Guerrero was not acting within the scope of his employment when the fatal accident occurred, and thus the Federal Employer’s Liability Act (FELA) does not apply to the case. In our view, the question of work status is a close one, but it is one that we need not resolve. No jury could find that BNSF was negligent in any action it took or failed to take with respect to Guerrero, and so on that ground we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Cranberry Growers Cooperative v. Patrick S. Layng

Case No.: 18-3289

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

Focus: Court Error – Bankruptcy Fee Schedule

Under 28 U.S.C. § 1930(a)(6), quarterly fees paid by a chapter 11 debtor to the bankruptcy Trustee are based on the debtor’s disbursements. Here, the Bankruptcy Court determined that certain payments made by the customers of Cranberry Growers Cooperative (“CranGrow”) to its lender should not be considered “disbursements” for purposes of that calculation. Patrick S. Layng, United States Trustee for the Western District of Wisconsin (“Trustee”), appeals that determination. CranGrow agrees with the Bankruptcy Court’s interpretation of disbursements, but, for the first time on appeal, maintains that the Bankruptcy Court unconstitutionally applied the recently amended fee schedule in assessing its quarterly fees.

We believe that the language of the fee statute requires that payments made by CranGrow’s customers to CranGrow’s lender be considered disbursements. We also decline CranGrow’s belated invitation to consider the constitutionality of the fee statute. We therefore reverse the Bankruptcy Court’s judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: E.A., et al. v. Mary K. Gardner

Case No.: 18-2550

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

Focus: 1^st Amendment Violation

This case began as a child custody dispute in state court. Dana Alden and his wife divorced in 2009. They shared custody of their two children. In 2012 Alden’s ex-wife complained to the court that Alden was trying to turn the children against her. The court appointed a psychologist, Mary Gardner, to evaluate the children. See 750 ILCS 5/604.10(d). Gardner concluded that Alden was using “severe alienation tactics” to drive a wedge between Alden’s children and their mother. Gardner recommended that the court limit Alden to supervised visitation and give full custody of the children to their mother. After motions and a hearing, that’s what the state court did: it terminated Alden’s custody, awarded sole custody to the mother, and ordered all of Alden’s visitation to be supervised. The Appellate Court of Illinois affirmed. In re Marriage of Alden, 2014 IL App (2d) 121046-U.

Alden presents two theories for the statute’s invalidity. First, he argues that the statute violates the First Amendment (applied to the states by the Fourteenth) by regulating speech: it takes parents’ speech into consideration when deciding on the best interests of the child. Second, he contends that the statute violates the Fourteenth Amendment’s equal protection clause because it treats parents differently based on whether they are divorced: the standard of proof for awarding or modifying divorced parents’ custody is preponderance of the evidence, 750 ILCS 5/602.7(b), 750 ILCS 5/603.10, while otherwise the standard for terminating parental rights is clear and convincing evidence, 705 ILCS 405/2-21(5)(iii). (The statutes explicitly referencing the preponderance standard were enacted in 2015, after Alden’s state court case began. State courts had interpreted the predecessor statute on modifying visitation, former 750 ILCS 5/607, as requiring a preponderance standard. See In re Marriage of Slayton, 292 Ill. App. 3d 379, 387 (1997); Griffiths v. Griffiths, 127 Ill. App. 3d 126, 129 (1984). But when custody rather than just visitation was at issue, former 750 ILCS 5/610 required clear and convincing evidence.)

On appeal Alden leads with the curious argument that Gardner can’t challenge his standing because she lacks standing. Alden relies on Diamond v. Charles, 476 U.S. 54 (1986), to argue that the real party in interest in defending the validity of a state statute is the state itself. But this doesn’t help Alden in the least. First, it’s irrelevant whether Gardner has standing. Alden’s standing is essential to the existence of a case or controversy, and a district court must inquire into every plaintiff’s standing no majer who the defendant is or what the defendant argues. Second, Alden’s argument amounts to an admission that he has sued the wrong party. That by itself is enough to sustain the district court’s dismissal.

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. Erik C. Schmidt

Case No.: 18-1259

Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges.

Focus: 1^st Amendment Violation

Erik Schmidt and his girlfriend were camping in a national forest in Wisconsin when a United States Forest Service Officer approached their campsite. The officer discovered that Mr. Schmidt, who had three prior felony convictions, had a handgun in his tent. A grand jury indicted Mr. Schmidt for, and he pleaded guilty to, one count of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). During a presentence interview with his probation officer, Mr. Schmidt communicated to the officer his belief in white supremacy, his hatred for minority races, and his desire to return to Germany to embrace his Nazi roots. At sentencing, the district court determined that Mr. Schmidt’s white supremacist beliefs were evidence of his likelihood of future dangerousness and his lack of respect for the law. The district court sentenced Mr. Schmidt to 48 months’ imprisonment, followed by three years of supervised release. Mr. Schmidt now contends that the district court violated his First Amendment rights when it considered his white supremacist beliefs at his sentencing. Because Mr. Schmidt’s beliefs were relevant to legitimate sentencing considerations, we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lawrence L. Pickett v. Chicago Transit Authority

Case No.: 18-2785

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

Focus: 6^th Amendment Violation 

In 2015 a passenger on a bus operated by the Chicago Transit Authority screamed at and threatened Lawrence Pickett, the driver. He took six months off from work while recovering. After his physician concluded that he could return to work (though not as a driver), Pickett appeared one morning and requested a light-duty job. He was given one by the personnel on duty, but four days later he was told that the CTA was not ready to permit his return to work.

Pickett’s principal contention on appeal is that the district court should have recruited counsel to represent him. He filed one motion for counsel, to which the judge replied: “Picketts [sic] Motion for Attorney representation is denied at this time.” That was it. No explanation. Pro bono counsel representing Pickett on appeal accurately observes that we have told district judges that explanations are essential. Prui8 v. Mote, 503 F.3d 647, 660 (7th Cir. 2007) (en banc); McCaa v. Hamilton, 893 F.3d 1027, 1033 (7th Cir. 2018). How else would an unrepresented litigant know what more must be done to obtain judicial assistance? Prui8 and later cases set out considerations that bear on the proper exercise of discretion, but without an explanation how can this court determine whether the district judge has abused that discretion? A few words might have sufficed, but the judge left both Pickett and this court in the dark.

The district judge should have said one or more of these things. Denying the motion without explanation was an error, but a harmless error. See Pennewell v. Parish, 923 F.3d 486, 490–92 (7th Cir. 2019). It is enough for us to say that, even with the assistance of counsel on appeal, Pickett has not shown how a lawyer could have helped him overcome his biggest obstacle: he never took the steps that the CTA told him were essential. The CTA told Pickett to fill out a form and report to Leave Management Services for a drug test and other evaluation. He did not do so. Even after being removed from the position to which he had been assigned while a supervisor checked on his eligibility, Pickett failed to follow these instructions for more than a year.

Proof that the younger workers Pickett saw in light-duty positions had been allowed to bypass those administrative steps would support an age-discrimination claim. But Pickett has not alleged this. This means that he does not have any route to success, for he could not show that his age caused an adverse effect. The absence of counsel was harmless, and the claim on the merits was properly rejected by the district judge.

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua T. Herman

Case No.: 18-3057

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

Focus: Sentencing Guidelines

This is the second time we have been asked to review the sentence that Joshua Herman received after pleading guilty to violating 18 U.S.C. § 922(g), which prohibits felons from possessing a firearm. Herman raised two issues on his first appeal: one concerned the district court’s failure to recognize that it had the discretion to require Herman’s federal sentence to run concurrently with an unrelated state sentence that had yet to be imposed; and the other related to the proper interpretation of U.S.S.G. § 2B3.1(b)(4)(B), which dictates that a person’s offense level for robbery must be increased by two if he “physically restrained” the victim. United States v. Herman, 884 F.3d 705, 706 (7th Cir. 2018). (That guideline applied because Herman possessed the firearm in connection with a robbery. See U.S.S.G. § 2K2.1(c)(1)(A).) We found it necessary to reach only the first issue, which we resolved in Herman’s favor. We ended our opinion by noting that “on remand, the district court should consider Herman’s argument that the physical restraint enhancement does not apply to him … .” Herman, 884 F.3d at 708.

We VACATE Herman’s sentence and REMAND his case for resentencing consistent with this opinion.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Henry Posada

Case No.: 18-1586

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

Focus: Sentencing Guidelines

Henry Posada (“Posada”) was found guilty of 18 counts of health care fraud by a jury. At sentencing, the district court found a loss amount of $4,087,736, and imposed a sentence of 60 months in the custody of the Bureau of Prisons. Posada appeals his sentencing, arguing that the district court’s loss calculation is clearly erroneous. We disagree, and for the following reasons, affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Charles Donelson v. Darrise Hardy, et al.

Case No.: 18-2739

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

Focus: Sanctions – Bad Faith

Charles Donelson sued a nurse and Wexford Health Sources, Inc., for allegedly providing him with constitutionally deficient medical care in prison and retaliating against him for filing other lawsuits. After the district court decided that he obstructed discovery in bad faith, it dismissed his suit as a sanction. The district court responded reasonably to Donelson’s insubordination, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: N.Y.C.C. v. William P. Barr

Case No.: 18-2618

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

Focus: Immigration – Asylum

To obtain asylum in the United States, N.Y.C.C. needed to establish that she has faced past persecution or harbors a well-founded fear of future persecution based on her membership in a particular social group. An immigration judge determined that she fell short of making this showing and denied her application. The Board of Immigration Appeals agreed. N.Y.C.C. has now sought our review, and she faces the difficult burden of showing that the record compels a different result. Seeing nothing in the record that required the immigration judge (or the Board) to conclude that N.Y.C.C. experienced past persecution or reasonably fears future persecution, we deny her petition.

Petition Denied

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7^th Circuit Court of Appeals

Case Name: Philadelphia Indemnity Insurance Company v. The Chicago Trust Company, et al.

Case No.: 18-3181; 18-3241

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

Focus: Insurance Claim – Coverage

The Baby Fold is a nonprofit corporation that provides foster-care services in Illinois. In 2010 Baby Fold placed three-year-old Kianna Rudesill in the care of Joshua and Heather Lamie. Heather killed Kianna in May 2011 and has been convicted of murder. The Chicago Trust Company, as administrator of Kianna’s estate, maintained a wrongful death action in Illinois state court against Baby Fold for its failure to supervise and protect Kianna. In February 2019 Chicago Trust and Baby Fold settled their dispute for $4 million.

The question in this case is what portion of the settlement (and any other losses related to Kianna’s death) must be paid by Baby Fold’s insurer. Philadelphia Indemnity filed this declaratory-judgment suit under the diversity jurisdiction and asked the judge to declare how much it owes under two policies covering Baby Fold at the time of Kianna’s death. We refer to the policies as the primary policy and the excess policy. The insurer asked for a declaration that its maximum indemnity is $1 million under the primary policy and $250,000 under the excess policy. Baby Fold and Chicago Trust filed counterclaims: They agree that the primary policy provides $1 million of coverage but contend that the excess policy’s limit is $5 million, not $250,000. Philadelphia moved to dismiss Chicago Trust’s counterclaim under Fed. R. Civ. P. 12(b)(6). The district judge concluded that the policies’ language favors the insurer and granted the motion to dismiss. The opinion declared that Philadelphia’s potential liability under the excess policy is $250,000. 2018 U.S. Dist. LEXIS 165071 at *25–26 (N.D. Ill. Sept. 26, 2018).

Chicago Trust and Baby Fold contend that the excess policy provides a $5 million limit, or at least that the language is ambiguous and thus must be construed in favor of more coverage under Illinois law. See, e.g., Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 (2005). But the policies’ language supports Philadelphia’s interpretation. The primary policy comprises several “coverage parts,” each of which outlines specific types of losses. One part covers losses arising out of Baby Fold’s negligent supervision of foster parents who commit physical abuse; both sides agree that this part provides $1 million of coverage. The excess policy then provides an additional layer of insurance with a general limit of $5 million.

Finally, Chicago Trust contends that the district court prematurely declared Philadelphia the prevailing party on the pleadings. We do not see any error. Both policies were attached to Philadelphia’s complaint. These provided everything the district judge needed to resolve the dispute under Fed. R. Civ. P. 12(c), despite her failure to mention that rule. See United States v. Rogers Cartage Co., 794 F.3d 854, 860–61 (7th Cir. 2015); Smith v. Check-N-Go of Illinois, Inc., 200 F.3d 511, 514 (7th Cir. 1999) (noting that a judgment on the pleadings may be affirmed even though the district judge mistakenly cites Rule 12(b)(6)). We reject Chicago Trust’s contention that additional materials require consideration.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Christopher Anstice

Case No.: 18-3171

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

Focus: Sentencing – Supervised Release

Christopher Anstice pleaded guilty to conspiring to distribute methamphetamine and was sentenced to ten years’ imprisonment and five years’ supervised release. On appeal he challenges five conditions of supervised release appearing in the written judgment of conviction that the district court did not announce orally at sentencing. Because three of these challenged conditions are mandated by federal statute and two are discretionary, we affirm in part and otherwise remand.

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Christian K. Narkiewicz-Laine v. Kevin C. Doyle, et al.

Case No.: 18-2535

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

Focus: Damages

This case arose from the destruction of personal property and artwork belonging to Christian Narkiewicz‐Laine, an artist. Narkiewicz‐Laine stored his artwork and other belongings in a space in Galena, Illinois that he rented from the defendants. Years into the lease, the defendants emptied the unit, destroying the majority of Narkiewicz‐Laine’s property. He responded by suing to recover for the loss of his property. After a six‐day trial, the jury awarded him damages on multiple claims. Unsatisfied with his damages award, Narkiewicz‐Laine now appeals, challenging a number of the district court’s rulings made along the way. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Joseph Bernal v. NRA Group, LLC,

Case No.: 17-3629

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

Focus: Collection Costs

Joseph Bernal bought a monthly pass to Six Flags amusement parks. The contract said that if he fell behind on his payments, he would “be billed for any amounts that are due and owing plus any costs (including reasonable attorney’s fees) incurred by [Six Flags] in attempting to collect amounts due.” This case asks whether a debt collector’s fee counts as a collection cost under that language. We hold that it does. The contract unambiguously permits Six Flags to recover any cost it incurs in collecting past-due payments, and that includes a standard collection fee.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Maurice L. Williams

Case No.: 2017AP2223-CR

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

Focus: 6^th Amendment Violation

Maurice Williams appeals from an amended judgment convicting him, following a jury trial, of eight drug-related felonies and one misdemeanor. He also appeals from an order denying his postconviction motion for dismissal of the charges based upon an alleged speedy trial violation or, in the alternative, for a determination of his eligibility for the Substance Abuse Program (SAP). We conclude there was no violation of Williams’ constitutional right to a speedy trial and the circuit court properly determined Williams was ineligible for the SAP. Accordingly, we affirm the judgment of conviction and postconviction order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Adrian J. Jackson

Case No.: 2018AP72-CR

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

Focus: Motion to Suppress – Warrantless Search

Adrian J. Jackson appeals a judgment entered upon his guilty plea to possession of more than forty grams of cocaine with intent to deliver, as a party to a crime. He claims that the circuit court should have suppressed the evidence against him. He argues that the police unlawfully relied on a warrant for his arrest as authority to enter a third party’s home, but that the police could not lawfully enter the home without a search warrant. Because we conclude that the warrant for Jackson’s arrest permitted police to enter the third party’s home to arrest Jackson, we affirm.

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WI Court of Appeals – District III

Case Name: Kaylee Ann Francois v. David Allen Olsen

Case No.: 2018AP271

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

Focus: Abuse of Discretion

David Olsen appeals a harassment injunction order entered by default, in favor of Kaylee Francois. Olsen also appeals the order denying his motion to reopen the default judgment. Olsen argues the circuit court erroneously exercised its discretion in denying his motion to reopen and in granting the injunction in the first instance. Additionally, Olsen asserts that the statute governing harassment injunctions, WIS. STAT. § 813.125(4) (2017-18), is unconstitutional. We reject Olsen’s arguments and affirm the orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kevin B. Hutchins

Case No.: 2018AP1144-CR

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

Focus: Ineffective of Assistance of Counsel

Kevin B. Hutchins appeals a judgment of conviction, following a jury trial, of two counts of second-degree sexual assault, one count of false imprisonment, and one count of battery, all as incidents of domestic abuse. Hutchins also appeals the order denying his postconviction motion for relief. Hutchins contends that the trial court erred in admitting prejudicial other acts evidence and that defense counsel was ineffective for failing to move for a mistrial when the State referenced the other acts in its opening statement. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Denise R. Campbell

Case No.: 2018AP1190

Officials: SEIDL, J.

Focus: OWI – Reasonable Suspicion

The State appeals an order dismissing Denise Campbell’s citations for first-offense operating a motor vehicle while intoxicated (OWI) and operating a motor vehicle with a prohibited blood alcohol concentration (PAC). The State argues the court erred in concluding that the law enforcement officer who stopped Campbell’s vehicle lacked reasonable suspicion to justify an investigative stop. We agree with the State. We therefore reverse the circuit court’s dismissal of Campbell’s citations and remand the matter for further proceedings.

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WI Court of Appeals – District I

Case Name: Park Meadows Homes Association, Inc. v. American Family Mutual Insurance Company

Case No.: 2018AP1484

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

Focus: Summary Judgment – Issue of Material Fact

Park Meadows Homes Association, Inc., (Park Meadows) appeals from a February 14, 2017 order that stayed its lawsuit against its insurer, American Family Mutual Insurance Company (American Family), and compelled Park Meadows to have its loss appraised pursuant to a policy provision allowing either party to “make written demand for an appraisal of the loss.” Park Meadows had sued for breach of contract and bad faith after disagreeing with American Family about the extent of property damage caused by an August 2014 hail and wind storm. Park Meadows submitted reports from two consulting firms stating—without providing an estimated cost—that as a result of the storm, total roof replacement was needed for all insured structures: twenty-nine residential buildings, one pool house, and one shed. American Family’s assessment was that the total amount of the loss was $100,628.30, which included replacing some shingles on some buildings. Following the trial court’s order and a stipulation by the parties that the appraisal panel was authorized to address the scope and cause of the damage, the panel issued a binding award to Park Meadows, determining that the loss amount for the claim was $145,725.35. American Family timely paid the balance owed.

Following the appraisal, when the litigation resumed, the trial court denied Park Meadows’ motion for reconsideration and granted American Family’s motion for summary judgment, concluding that American Family had not breached the contract and that without a breach there was no basis for a bad faith claim. Park Meadows also appeals those orders. Under the unambiguous language of the policy that binds the parties, American Family’s right to appraisal is triggered by a disagreement “on the amount of loss.” The trial court found that Park Meadows did not provide American Family an “amount of loss” at any time prior to filing suit, and that finding is not disputed on appeal. Under applicable case law from our supreme court, the only circumstance under which an insurer is precluded from invoking its appraisal right under the policy after the insured sues over its claim is when it delays invoking the right despite having “ample opportunity” to do so prior to the commencement of the suit. Because the policy gives American Family the right to appraisal only after it has received an “amount of loss” from its insured, and because Park Meadows did not provide an amount of loss prior to commencing the suit, American Family did not have the opportunity to invoke its right. Therefore, we conclude it was not barred from doing so after the commencement of the lawsuit.

We also conclude that Park Meadows has not identified any genuine issues of material fact and that summary judgment was properly granted. We affirm.

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WI Court of Appeals – District II

Case Name: Stephanie Mueller v. Susan Krohn

Case No.: 2018AP25

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

Focus: Trust & Estates – Attorney Fees

This matter arises from the administration of two trusts established by decedent Victor Mueller. Stephanie Mueller, Victor’s daughter and a beneficiary of both trusts, appeals from orders dismissing her petition for judicial intervention and awarding attorneys’ fees to both the trustee, Susan Krohn, and another beneficiary, the University of Wisconsin Foundation. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Emma K. Seymour

Case No.: 2018AP734-CR

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

Focus: Miranda Warnings – Motion to Suppress

Emma Seymour petitioned for leave to appeal a nonfinal order denying her motion for reconsideration of an order denying earlier motions to suppress her unMirandized confessional statements to police and evidence seized in a search. The circuit court concluded that Seymour was not in custody when she voluntarily gave her statements; that she lacked standing to challenge the search; and that police entered the searched apartment with consent. We affirm because, whether Seymour had standing or not, we conclude that her statement was noncustodial.

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WI Court of Appeals – District II

Case Name: Carolyn Ann Bacovsky v. Sarah J. Fetzer, et al.

Case No.: 2018AP1347

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

Focus: Breach of Contract – Misrepresentation

Carolyn Ann Bacovsky appeals from an order granting summary judgment to Sarah J. Fetzer, Lamar Paul Leitzke, Cheryl Marquardt, and Menomonee River Condominium Association, Inc. (MRCA). This case arises from the sale of a condominium unit in Menomonee Falls on November 13, 2015. Bacovsky purchased the unit from Fetzer and Leitzke, who used Marquardt as their real estate broker. Four days after closing, Bacovsky discovered ceiling leaks in the upstairs hallway of the unit. She reported the leaks to MRCA’s president, who acknowledged that the situation had been going on for “a while” and advised her to “watch and wait.” Bacovsky continued to experience leaks throughout the winter months.

After ice cleared off of the roof, MRCA repaired it, and the ceiling leaks stopped. However, Bacovsky believed that there was mold in the unit and took steps to remediate it, hiring a company to remove drywall and other materials. Unsatisfied with the results, and believing that the mold was adversely affecting her health, Bacovsky deemed the unit uninhabitable, moved out, and stopped paying the mortgage. Eventually, the bank foreclosed on the unit. Bacovsky subsequently filed suit against Fetzer, Leitzke, Marquardt, and MRCA, generally alleging claims of breach of contract, negligence, and misrepresentation. She sought to recover her down payment on the unit, the money she spent trying to fix it, and the expenses she incurred after she deemed it uninhabitable and moved out.

After conducting discovery, Fetzer, Leitzke, Marquardt, and MRCA moved for summary judgment. Essentially, they argued that there was insufficient evidence to go forward, as Bacovsky could not prove her case without expert testimony, which she did not have. Following a hearing on the matter, the circuit court agreed and granted summary judgment. Bacovsky now appeals. We review de novo the grant or denial of summary judgment, employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2017-18). In deciding if genuine issues of material fact exist, we draw all reasonable inferences in favor of the nonmoving party. Metropolitan Ventures, LLC v. GEA Assocs., 2006 WI 71, ¶20, 291 Wis. 2d 393, 717 N.W.2d 58.

However, we disagree with the circuit court’s decision to dismiss the entire case. As noted, Bacovsky raised claims of misrepresentation, which related to the roof. Fetzer and Leitzke did not disclose a defect in the roof in the real estate condition report that they prepared with Marquardt in 2015. However, they disclosed a defect in the roof in the report that they prepared with Marquardt the year before. According to Bacovsky, she relied upon the 2015 report and would not have purchased the unit had she been aware of the roof’s problems, which revealed themselves four days after closing.

On this record, drawing all reasonable inferences in favor of Bacovsky, we conclude that her misrepresentation claims can go forward against Fetzer, Leitzke, and Marquardt. Bacovsky’s failure to provide expert testimony is not fatal to these claims. That is because “[l]ay opinion evidence is generally permitted when such opinion is based on matters about which the witness is actually competent to testify, such as … the witness[’s] opinion as to value of property the witness owns.” Poston v. Burns, 2010 WI App 73, ¶22, 325 Wis. 2d 404, 784 N.W.2d 717 (citation omitted). In this case, Bacovsky can offer testimony about the value of her property as it was impacted by the alleged misrepresentations about the roof.

For these reasons, we affirm in part, reverse in part, and remand for further proceedings. No costs to the parties other than MRCA.

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WI Court of Appeals – District II

Case Name: Walworth County Department of Health & Human Services v. S.S.K.

Case No.: 2019AP782

Officials: REILLY, P.J.

Focus: Termination of Parental Rights

S.S.K. appeals from an order terminating her parental rights to A.L.S., arguing that the circuit court erred by relying solely on her admission to the allegations against her in the termination of parental rights (TPR) petition at the grounds phase. S.S.K. argues that in addition to her admission, the court needed to take testimony pursuant to WIS. STAT. § 48.422(3) and (7). We disagree and affirm the order terminating S.S.K’s parental rights.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Leonel Ortiz

Case No.: 2018AP88-CR

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

Focus: Sufficiency of Evidence

Following a jury trial, Leonel Ortiz was convicted of child abuse involving his then seven-year-old child. On appeal, Ortiz makes several arguments relating to a circuit court ruling prohibiting Ortiz from using, in his defense in this criminal case, juvenile court records pertaining to his child. We conclude that all of Ortiz’s arguments are forfeited, and we affirm the circuit court on that basis. We also choose to address the merits of Ortiz’s arguments and find the arguments lacking.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Craig L. Miller

Case No.: 2018AP2161-CR

Officials: FITZPATRICK, J.

Focus: Plea Withdrawal

Craig Miller appeals a judgment of conviction and an order denying postconviction relief entered by the Dane County Circuit Court. Miller was convicted of one count of disorderly conduct as a domestic abuse incident, and as a repeater, pursuant to his guilty plea to that charge. Miller filed a postconviction motion to withdraw his plea alleging that the plea was not entered knowingly, intelligently, and voluntarily. Following an evidentiary hearing, the circuit court denied Miller’s postconviction motion. The circuit court’s order is affirmed based on my conclusion that Miller has failed to show that his plea was unknowing, unintelligent, and involuntary.

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