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Weekly Case Digests – August 26, 2019 – August 30, 2019

By: Rick Benedict//August 30, 2019//

Weekly Case Digests – August 26, 2019 – August 30, 2019

By: Rick Benedict//August 30, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: John McCottrell, et al. v. Marcus White, et al.

Case No.: 17-2295

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

Focus: 8th Amendment Violation

The plaintiffs were inmates at Stateville Correctional Center when they were struck by buckshot fired by the defendant prison guards. The plaintiffs sued under 42 U.S.C. § 1983, asserting that the guards violated their rights under the Eighth Amendment when they discharged their shotguns over a crowded prison dining hall. The guards countered that they fired the shots as a necessary warning to two other inmates who were fighting with each other and resisting the efforts of other guards who were trying to break up the conflict. The district court granted summary judgment in favor of the defendants. We vacate and remand.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Anna Chronis v. United States of America

Case No.: 17-3093

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

Focus: 8th Amendment Violation – Failure to Exhaust Administrative Remedies

Before bringing a tort claim against the United States, a plaintiff must first exhaust her administrative remedies by presenting her claim to the appropriate federal agency. This means, among other things, that the plaintiff must demand a sum certain from the agency. Anna Chronis did not make such a demand before she sued, so the district court properly dismissed her complaint.

Affirmed

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7th Circuit Court of Appeals

Case Name: Timothy J. Fast v. Cash Depot, LTD.,

Case No.: 18-3571

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

Focus: Attorney Fees

Cash Depot underpaid employees for their overtime work. Timothy Fast, a former employee, filed this action under the Fair Labor Standards Act on behalf of himself and other Cash Depot employees. In response, Cash Depot hired an accountant to investigate the matter and subsequently issued checks to all underpaid current and former employees covered by the suit. The company also issued checks to Fast for his underpaid wages, an amount for liquidated damages under the FLSA, and the amount of Fast’s disclosed attorney fees to that point in the litigation. Fast and his attorney never cashed their checks.

Cash Depot then moved to dismiss the suit as moot or, alternatively, for summary judgment. The district court denied the motion to dismiss because Fast contested whether Cash Depot correctly calculated the amount it owed him and other employees. However, the court granted partial summary judgment for Cash Depot, “to the extent that [it] correctly calculated” what it owed Fast. Eventually Fast’s attorney conceded that Cash Depot correctly paid the missing wages and urged that only a dispute over additional attorney fees remained.

After Fast’s demand for additional attorney fees went unanswered, he filed a motion for attorney fees. Cash Depot responded in kind with a motion to dismiss or, alternatively, a motion for summary judgment. The court determined that because Fast was not a prevailing party for the purposes of the FLSA, he was not entitled to attorney fees, and granted Cash Depot’s motion for summary judgment. Fast appeals, arguing that he was a prevailing party and is entitled to reasonable attorney fees. But because he never received a favorable judgment, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Douglas D. Jackson, et al. 

Case No.: 15-3693; 14-2898

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

Focus: Resentencing

In United States v. Cardena, 842 F.3d 959 (7th Cir. 2016), we held that 18 U.S.C. § 924(c)(3)(B)— which partially defines “crime of violence” for § 924—is unconstitutionally vague. On February 24, 2017, we relied on Cardena to vacate Antwon Jenkins’s conviction under § 924(c)(1)(A)(ii). United States v. Jenkins, 849 F.3d 390, 394 (7th Cir. 2017). We vacated Douglas Jackson’s conviction under the same statutory provision on August 4, 2017. United States v. Jackson, 865 F.3d 946, 954 (7th Cir. 2017). Those opinions provide a summary of the underlying conduct and procedure that brought the appeals before us.

In accordance with our February 24, 2017, opinion, we VACATE Jenkins’s conviction for using or carrying a firearm to commit a federal crime of violence and REMAND for resentencing. 849 F.3d at 395. Likewise, we VACATE Jackson’s conviction for using or carrying a firearm to commit a federal crime of violence and REMAND for resentencing. 865 F.3d at 956. And, for the reasons expressed in our August 4, 2017, opinion, we also VACATE and REMAND for resentencing without the organizer or supervisor adjustment under U.S.S.G. § 3B1.1. Id. at 954–56.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Tara L. Crump V. Andrew M. Saul

Case No.: 18-3491

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

Focus: ALJ Error – Disability Benefits

Tara Crump applied for disability benefits based on numerous mental health impairments, including bipolar disorder and polysubstance abuse disorder. An administrative law judge denied benefits, finding that Crump, despite her severe impairments, could perform work limited to simple and repetitive tasks. The district court affirmed. Because the ALJ did not adequately account for Crump’s difficulties with concentration, persistence, or pace in the workplace, we vacate the judgment and remand the case to the Social Security Administration.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: W. James Mac Naughton v. Ishaihu Harmelech, et al.

Case No.: 18-2389; 18-2467; 18-2468; 18-2855

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

Focus: Consolidated Appeal

The complex background of these consolidated appeals burrows through over a decade of litigation. Russian Media Group sued Ishaihu Harmelech and his company (“Harmelech Defendants”) in 2006. Attorney W. James Mac Naughton actively represented the Harmelech Defendants in this case (“RMG Action”) for ten weeks ten years ago. The relationship ended in a dispute over his fees. After he withdrew, the case settled with the entry of a consent judgment against his former clients ago. The relationship ended in a dispute over his fees. After he withdrew, the case settled with the entry of a consent judgment against his former clients. Mac Naughton then pursued his former clients for money in myriad ways. One maneuver he used was acquiring rights to the judgment entered against his former clients in the RMG Action, the very matter in which he previously represented them. He then sought to collect this judgment by filing multiple other cases and by seeking to reopen the RMG Action.

In December 2014, Mac Naughton and Casco Bay (his company) sued Harmelech and his son to collect the RMG Judgment and to set aside the conveyance of property on Sunnyside Avenue (“Sunnyside Action”). In March 2015, Judge Holderman disqualified Mac Naughton from attempting to collect this judgment personally and from representing Casco Bay in its attempts to collect it. But Mac Naughton defied that order and continued his efforts. In June 2018, Judge Feinerman (to whom this case had been transferred) dismissed the claims predicated on this judgment as a sanction for Mac Naughton’s willful defiance of the Holderman Order.

In September 2016, Mac Naughton sued Alden Management and others to collect for himself money owed to his former client (“Alden Action”). Judge Blakey dismissed this case as a sanction for violating court orders. In January 2017, Mac Naughton sued his former clients to set aside a conveyance of property in Palm Harbor (“Palm Harbor Action”). Judge Durkin dismissed this case on the same grounds as Judge Feinerman dismissed the Sunnyside Action. Judge Durkin also rejected Mac Naughton’s attempt to reopen the RMG Action. In sum, the district judges in the four cases consolidated here rejected Mac Naughton’s efforts to collect the RMG Judgment entered against his former clients. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Richard Kraemer

Case No.: 18-2454

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

Focus: Sentencing Guidelines

Richard Kraemer pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). At sentencing, the district court determined that Mr. Kraemer’s prior Wisconsin convictions for first‐degree and second‐degree sexual assault of a child constituted convictions “relating to … abusive sexual conduct involving a minor” and therefore triggered a ten‐year, mandatory minimum sentence. 18 U.S.C. § 2252(b)(2). The district court then imposed a sentence of 133 months’ imprisonment, followed by eight years of supervised release.

Mr. Kraemer now challenges the district court’s determination that he was subject to the mandatory minimum. As we explain more fully in the following paragraphs, because the applicable federal enhancement statute, 18 U.S.C. § 2252(b)(2), requires only that a prior state statute of conviction “related to,” rather than be fully equivalent to, “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the district court did not err in finding Mr. Kraemer was subject to the mandatory minimum.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brian Knutson, et al. v. Village of Lakemoor

Case No.: 18-3729

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

Focus: Due Process Violation

This class action suit challenges the red light camera program of the Village of Lakemoor, Illinois. The plaintiffs received violation notices from Lakemoor that they claim are invalid because the notices lack a proper municipal code citation. They also claim Lakemoor denied them due process by limiting the defenses that can be asserted before a hearing officer to contest a violation. The district court dismissed the case for failure to state a claim. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Julian Thomas, et al.

Case No.: 18-1356; 18-1519

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

Focus: 6th Amendment Violation

A federal grand jury indicted defendants Julian Thomas and James Thompson for robbing a bank. Count One charged them with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Count Two charged them with using and carrying a firearm by brandishing it during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). A joint trial was scheduled but then delayed— first at Thomas’s request, and then again because Thompson’s counsel faced an irreconcilable conflict of interest because of a newly discovered witness for the government. Shortly before the delayed trial, however, Thompson pleaded guilty and agreed to testify for the government against Thomas. Thomas went to trial. The jury found him guilty on both counts and also returned a special verdict finding that Thomas aided Thompson’s brandishing of a firearm in the bank robbery. The district court sentenced Thomas to thirteen years in prison for the bank robbery and a consecutive seven years (the statutory minimum) for aiding and abetting Thompson’s brandishing.

Both defendants have appealed, but Thompson’s attorney has filed an Anders brief explaining that he does not believe Thompson has any viable arguments on appeal. We agree and dismiss that appeal, No. 18-1519. Thomas contends on appeal that certain evidence and argument at his trial were improper, that the delay between his indictment and his trial violated the Speedy Trial Clause of the Sixth Amendment, and that the jury instructions for 18 U.S.C. § 924(c) were erroneous. Thomas failed to raise all but one of these issues in the district court. We affirm his convictions and sentence in No. 18-1356.

Affirmed

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7th Circuit Court of Appeals

Case Name: Steven D. Lisle, Jr., v. William Welborn, et al. 

Case No.: 18-1595

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

Focus: Prisoner – Due Process Violation

This appeal presents issues stemming from a prison’s discipline of a prisoner and his later suicide attempts. The story began in 2014 when correctional officers at the Menard Correctional Facility found contraband alcohol in the cell of plaintiff Steven D. Lisle, Jr. Lisle’s cellmate at first took responsibility for the contraband but later recanted outside of Lisle’s presence. He said instead that Lisle had been abusing him and had forced him to take the blame for the alcohol. In disciplinary proceedings, Lisle later asked to call a witness to testify about his cellmate’s initial admissions. His requests were ignored. Lisle, who is black, was sentenced to four months in disciplinary segregation. His cellmate, who was white, was not disciplined.

While in segregation, Lisle attempted to commit suicide three times. His third attempt was nearly successful, and he was placed on suicide watch in the prison infirmary. While there, Lisle claims, a nurse taunted him for his failed suicide attempts and encouraged him to try again. Lisle filed this suit alleging that he was punished based on his race, that he was deprived of liberty without due process of law, and that the prison staff’s conduct in the wake of his mental health crisis— including the nurse’s statements—amounted to cruel and unusual punishment.

The district court granted summary judgment on several claims but held a jury trial on Lisle’s claims for deliberate indifference to a serious medical need. During jury selection, defense lawyers used peremptory strikes to remove three of the four black potential jurors. After the jury was selected, but before it was sworn and the venire released, Lisle’s counsel objected pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), challenging the use of peremptory strikes against the black jurors. The judge denied the objection as untimely.

Lisle appeals the summary judgment decision and seeks a new trial based on his Batson claim. We agree that his Batson claim was timely, and we cannot find that the erroneous denial was harmless. We remand for an evidentiary hearing on the Batson claim and, if necessary, a new trial on all claims that were tried. We also reverse summary judgment for the nurse on the taunting claim. We affirm all other aspects of the judgment.

Reversed in part. Vacated and remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: Jeffrey D. Leiser v. Karen Kloth, et al.

Case No.: 17-3378

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

Focus: Prisoner – 8th Amendment Violation

Jeffrey Leiser was an inmate at the Wisconsin Stanley Correctional Institution where Sergeant Karen Kloth was employed. Leiser, who was later diagnosed with Post Traumatic Stress Disorder while at Stanley, alleged that beginning in 2013 he self-reported his disorder to Kloth and “informed” her not to stand directly behind him because doing so triggered his mental health symptoms. He claims Kloth did not comply with his request but instead increased the amount of time she stood behind him while patrolling common areas. Leiser filed this suit against Kloth, her supervisor, and the warden, claiming that Kloth’s behavior violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court denied the defendants’ motion for summary judgment after determining they were not entitled to qualified immunity because Leiser had a well-established right to be free from intentionally inflicted psychological harm. The defendants filed this interlocutory appeal, asking us to resolve the legal question of whether they were, in fact, entitled to qualified immunity. We reverse. Defendants are entitled to qualified immunity. At the relevant times, it did not violate clearly established constitutional law for non-medical correctional staff to refuse to provide a prisoner with what amounts to a medical accommodation that had not been ordered by medical staff and the need for which was not obvious to a layperson.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: SportFuel, Inc., v. PepsiCo, Inc., et al.

Case No.: 18-3010

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

Focus: Trademark Infringement

SportFuel appeals the district court’s grant of summary judgment for Gatorade and its parent company, PepsiCo. SportFuel brought this suit against Gatorade alleging violations of its trademark after Gatorade rebranded itself with the slogan, “Gatorade The Sports Fuel Company.” The district court deemed Gatorade’s slogan a fair use protected by the Lanham Act. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Mark Richardson v. Chicago Transit Authority

Case No.: 17-3508; 18-2199

Officials: John Robert Blakey, Judge.

Focus: Order Correcting Opinion

The opinion issued in the above-entitled case on June 12, 2019, is hereby amended as follows: On Page 7, line 23, the last sentence of the paragraph, which states, EEOC regulations interpreting the ADA are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., unless they are “arbitrary, capricious, or manifestly contrary to the statute.” 467 U.S. 837, 844 (1984); see Sutton v. United Air Lines, Inc., 130 F.3d 893, 899 n.3 (10th Cir. 1997) is amended to read, We view EEOC regulations interpreting the ADA’s definitions as “instructive guidance.” Steffen v. Donahoe, 680 F.3d 738, 743 n.3 (7th Cir. 2012); see also Waldrip v. Gen. Elec. Co., 325 F.3d 652, 655 n.1 (5th Cir. 2003) (EEOC regulations interpreting 42 U.S.C. § 12102 are “persuasive authority”).

Additionally, on Page 12, line 20, the last sentence of the paragraph, which states, While EEOC interpretive guidance is “not entitled to full Chevron deference,” it does “reflect a body of experience and informed judgment to which courts and litigants may properly resort for guidance” and is therefore “entitled to a measure of respect under the less deferential Skidmore [v. Swift & Co., 323 U.S. 134 (1944)] standard.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (citations and internal quotation marks omitted); see Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996). shall be removed.

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7th Circuit Court of Appeals

Case Name: Marcus D. Torry, et al. v. City of Chicago, et al.

Case No.: 18-1935

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

Focus: Qualified Immunity

One afternoon in 2014, three Chicago police officers stopped three black men in a grey sedan to investigate a nearby shooting that had happened a few hours earlier. When the passengers sued the officers a year later, none of the officers remembered the Terry stop. Lacking recall, they relied on other evidence to show that reasonable suspicion had existed for it. Cell phone footage taken by one of the plaintiffs during the encounter depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs’ suspicious behavior in the area of the shooting as the reason that he had pulled them over. And a police report showed that dispatches to officers investigating the shooting, including King, identified the suspects as three black men in a grey car. The descriptions of the car’s model varied, and none was an exact match for the car that the plaintiffs were driving. But reasonable suspicion can exist without an exact match, and the district court held that these descriptions were close enough to justify the Terry stop. In any event, the court said, the officers were entitled to qualified immunity because the stop did not violate clearly established law.

Before us, the plaintiffs have repeatedly suggested that the defendants’ failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn’t remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Corey Benson

Case No.: 2016AP1621-CR; 2016AP1622-CR

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

Focus: Ineffective Assistance of Counsel

Corey Benson, pro se, appeals from judgments, entered upon a jury’s verdicts, convicting him on one count of child abuse, one count of child neglect, one count of first-degree intentional homicide, and two counts of felony bail jumping. Benson also appeals from an order denying his postconviction motion without a hearing. Benson complains that the two underlying circuit court cases were improperly joined and that he received ineffective assistance from trial counsel. We reject Benson’s challenges and affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: Terry A. Lange v. Paul M. Nigl

Case No.: 2017AP1492

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

Focus: Prisoner – Child Support Arrears

Paul Nigl, pro se, appeals an order denying a motion, based upon his ongoing incarceration, to reduce the balance of his child support arrears, eliminate the accrued interest on those arrears, and modify his $5 weekly arrearage payment. We reject Nigl’s various arguments and affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. John Flasko Phillips

Case No.: 2018AP537-CR

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

Focus: Ineffective Assistance of Counsel

John Flasko Phillips appeals a judgment convicting him of second-degree reckless homicide, as a party to a crime. Phillips also appeals an order denying his postconviction motion seeking plea withdrawal on the ground that he received ineffective assistance of trial counsel. Phillips argues that Thomas Harris, his trial lawyer, materially misrepresented the strength of the State’s case causing him to enter a guilty plea. We affirm.

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WI Court of Appeals – District III

Case Name: Vilas County v. Timothy Bowler, et al.

Case No.: 2018AP837

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

Focus: Ordinance Interpretation

Timothy Bowler, Kim Bowler and Alpine Resort of Presque Isle, Inc. (collectively, the Bowlers) appeal a summary judgment granted in favor of Vilas County to enforce an ordinance establishing a uniform addressing system within the County. The structures on the Bowlers’ property consist of a residence from which the Bowlers operate their resort business and several cabins the Bowlers rent out on a short-term, seasonal basis.

The Bowlers assert the County lacked authority under the relevant ordinance to name the road serving their residence and rental structures. Their argument in this respect is twofold. First, they contend the road does not satisfy the ordinance’s definition of a “private road.” Second, they argue the road does not satisfy the ordinance’s requirement that the road serve three or more “residences or lots.” We conclude the road is a “private road” within the ordinance definition because it is a road located on private property that leads to the ten structures on the Bowlers’ property, each of which is a “primary” or “principal” structure under the ordinance because it is used for human habitation. We also conclude the buildings satisfy the ordinance’s requirement that the road serve three or more “residences,” which include all of the Bowlers’ cabins.

The Bowlers also challenge the County’s authority under the ordinance to assign addresses to their rental cabins. They argue these buildings are not “principal” or “primary” structures and, therefore, are not subject to the County’s addressing requirement. Consistent with our conclusion regarding the County’s authority to name the Bowlers’ private road, we reject this argument and hold that each of the ten structures at issue (the Bowlers’ residence and their nine rental cabins) is a “primary” or “principal” structure to which the County may assign an address.

Finally, the Bowlers argue the ordinance is invalid because the County is applying it beyond the scope of the Wisconsin statute authorizing the County to adopt a rural naming or numbering system. We disagree and conclude the ordinance may be properly applied to each home or business structure on the Bowlers’ property. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Oconto County v. Robert E. Hammersley

Case No.: 2018AP1022

Officials: HRUZ, J.

Focus: Court Error – Abuse of Discretion

Robert Hammersley, pro se, appeals an order denying him relief from a 1995 default order revoking his driver’s license for violating Wisconsin’s implied consent law. This is Hammersley’s second attempt to seek a judicial determination that his 1995 default revocation order was void. On this occasion, Hammersley contends, among other things, that the circuit court erred when it determined he was not entitled to relief under WIS. STAT. § 806.07 based upon the United States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). We affirm.

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WI Court of Appeals – District III

Case Name: Ted Ritter, et al. v. Tony Farrow, et al.

Case No.: 2018AP1518

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

Focus: Condominium Conversion – Transfer/Assignment of Trademark Rights

This case is before us a second time. In 1986, Ted and Carolyn Ritter d/b/a Bibs Resort, Inc. (the Ritters) purchased a lakefront resort property and named it “Bibs Resort.” Twelve years later, they converted their resort to a condominium, using the name Bibs Resort Condominium (the Condominium). The legal name of the statutorily required association of condominium owners was Bibs Resort Condominium Inc. (the Association). In 2006, the Ritters sold to Tony and Arlyce Farrow, d/b/a Farrow Enterprises (the Farrows), the Ritters’ property management business, called Bibs Resort, along with two of the thirteen units that comprised the Condominium (the 2006 transaction). A dispute ensued over the Ritters’ continuing use of the name “Bibs Resort” after the transfer, and in 2012 a jury found the Ritters liable for infringing on the Farrows’ trademark rights to that name.

On appeal, the Ritters argued that the circuit court erred by denying their motion to require joinder of the Association. We agreed, concluding the Association had a valid interest in claiming it had acquired independent rights to the name “Bibs Resort” prior to 2006 and that, consequently, the rights to the name could not have been transferred to the Farrows because the Association was not a party to the 2006 transaction. See Ritter v. Farrow, Nos. 2012AP781 and 2013AP927, unpublished slip op. ¶37 (WI App June 24, 2014) (Ritter I). We therefore remanded the matter for further proceedings on the Farrows’ trade name claim. Id., ¶55.

On remand, the circuit court granted summary judgment in favor of the Association and the Ritters. The court concluded, in relevant part, that: (1) the name “Bibs Resort” “became a part” of the Association at the time of the condominium conversion; and (2) the Association’s interest in the name “Bibs Resort” prevented the Farrows from acquiring exclusive ownership of the rights to the use of the name as part of the 2006 transaction. The Farrows now appeal, arguing the circuit court erred by concluding that the Association acquired any rights to the name “Bibs Resort” as part of the condominium conversion. In support, they argue that Wisconsin’s Condominium Ownership Act affects only real property. See WIS. STAT. ch. 703 (2017-18). Thus, the Farrows contend the condominium conversion could not have had any effect on the Ritters’ intangible personal property—i.e., their trademark rights.

We conclude the Ritters’ conduct in establishing the Association and converting Bib’s Resort to a condominium—taken together with both the Ritters’ and the Association’s subsequent actions which support Carolyn Ritter’s averment that the Association owned the name “Bibs Resort”—manifested an implied agreement to transfer the name “Bibs Resort” to the Association. Because the Ritters did not own the name “Bibs Resort” in 2006, they could not have sold the name to the Farrows as part of the 2006 transaction. Accordingly, we affirm the circuit court’s grant of summary judgment.

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WI Court of Appeals – District II

Case Name: Kathleen Papa, et al. v. Wisconsin Department of Health Services

Case No.: 2016AP2082; 2017AP634

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

Focus: Unlawful Medicaid Recoupment Policy

This action is an attempt by medical providers to curb what is alleged to be an unlawful Medicaid recoupment policy by the Wisconsin Department of Health Services (DHS). Ordinarily, these challenges would come through administrative proceedings arising from fact-specific recoupment efforts. But here, Kathleen Papa and Professional Homecare Providers, Inc. (PHP) sought declaratory and injunctive relief against DHS recoupment practices more generally by challenging Topic #66—a provision in the DHS-published Medicaid Provider Handbook. PHP asserts that Topic #66 is an unpromulgated administrative rule, and an unlawful one at that. More specifically, PHP argues that Topic #66 imposes documentation requirements on Medicaid providers that go beyond those authorized and allowed by law. PHP points to 2011 Wisconsin Act 21, which only allows administrative agencies to implement or enforce requirements when a statute or administrative rule explicitly requires or permits that requirement. The circuit court agreed and issued a broad injunction against enforcement of Topic #66; it also set new parameters to govern all DHS recoupment efforts.

The parties agree (as do we) that DHS may only recoup payments when it has explicit authority to do so, either through statute or administrative rule. But PHP’s broader attack on DHS recoupment policies fails because this case is premised on the claim that Topic #66 is an administrative rule; we conclude it is not. And since PHP has not challenged an administrative rule, judgment must be entered in favor of DHS.

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WI Court of Appeals – District II

Case Name: Gail Moreschi v. Village of Williams Bay, et al.

Case No.: 2018AP283

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

Focus: Setback Variance

William and Suzanne Edwards wanted to rebuild their home, but their plans required a setback variance. They sought and received the variance from the Village of Williams Bay and Town of Linn Extraterritorial Zoning Board of Appeals (the Board). One of their neighbors, Gail Moreschi, was not pleased and filed a certiorari complaint challenging the Board’s decision. The circuit court denied the challenge, as do we.

Moreschi objects to the decision on both procedural and substantive grounds. Procedurally, she challenges the content of the record before us, asserting that the Board improperly filed new minutes and issued a new decision after she brought suit, along with various swings-and-misses by the Board in complying with certain deadlines. We find none of these challenges availing. Moreschi filed suit before the Board had formalized its decision following the public hearing. Moreschi cites no authority for the proposition that the Board cannot complete its work under these circumstances. Substantively, Moreschi maintains that the Board’s decision was unreasonable and unsupported. This challenge too falls flat. We affirm.

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WI Court of Appeals – District II

Case Name: Christine Tarrant v. Wisconsin Department of Health Services

Case No.: 2018AP1299

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

Focus: Medicaid Eligibility

The Wisconsin Department of Health Services (Department) appeals from the circuit court’s order concluding that the monthly payments Christine Tarrant received from a testamentary trust account did not constitute countable unearned income when determining her eligibility for medical assistance. Because we conclude the circuit court erred, we reverse.

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WI Court of Appeals – District II

Case Name: Secura Insurance, et al. v. Super Products LLC, et al.

Case No.: 2018AP1600

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

Focus: Negligence Claim

This case involves the application of the economic loss doctrine to a negligence claim brought against Super Products LLC. Secura Insurance, a Mutual Company, seeks recovery for damages arising from an allegedly defective product sold by Super Products to Secura’s insured pursuant to a contract. Because the circuit court erred in determining that the economic loss doctrine did not bar the negligence claim, we reverse and remand for further proceedings.

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