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Weekly Case Digests – November 18, 2019 – November 22, 2019

By: WISCONSIN LAW JOURNAL STAFF//November 22, 2019//

Weekly Case Digests – November 18, 2019 – November 22, 2019

By: WISCONSIN LAW JOURNAL STAFF//November 22, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Antoinette Wonsey v. City of Chicago, et al.

Case No.: 19-1171

Officials: BAUER, BRENNAN, and ST. EVE, Circuit Judges.

Focus: 4th Amendment Violation

Antoinette Wonsey’s Chicago home attracted two types of visitors: tourists and police. The tourists came for short-term lodging, which Wonsey sublet through Airbnb. The police first came after an Airbnb guest reported a theft at Wonsey’s home. Five days later, police showed up again to help city examiners during a building inspection. Claiming these two police encounters amounted to Fourth Amendment violations, Wonsey sued the City of Chicago and several police officers under 42 U.S.C. § 1983. The district court granted summary judgment to the defendants. On appeal, Wonsey submits a bare explanation of the police encounters, and she makes no effort to connect them with a cognizable Fourth Amendment claim. Because Wonsey fails to show any reason why the district court’s judgment should be disturbed, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Henrikas Malukas v. William P. Barr

Case No.: 19-1633

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

Focus: Immigration – Removal Order

Henrikas Malukas, a citizen of Lithuania, entered the United States in 1992 on a tourist visa and did not leave when it expired. In 1995 he was convicted of several weapons-related felonies and sentenced to 52 months in prison. While he was imprisoned, immigration officials began removal proceedings. Malukas applied for discretionary relief as the spouse of a U.S. citizen, but the immigration judge (and later the Board of Immigration Appeals) concluded that his criminal conduct outweighed whatever equities his family and financial ties to the United States supplied.

The Board’s final order was entered in July 2003, and Malukas did not seek judicial review. He did file a timely motion for reconsideration, arguing that his criminal conduct should not have been deemed such a high obstacle to relief. The Board denied that motion in September 2003, and again Malukas did not seek judicial review.

To the extent that the Board denied the motion to reconsider and reopen its decision of 2003, the petition for review is denied. To the extent that the Board declined to reopen the proceedings sua sponte, the petition for review is dismissed for want of jurisdiction.

Petition Denied

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7th Circuit Court of Appeals

Case Name: George Walker v. Wexford Health Sources, Inc., et al.

Case No.: 17-2821

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

Focus: Prisoner – 8th Amendment Violation

George Walker is an inmate at Stateville Correctional Center. He has an incurable motor neuron disease called primary lateral sclerosis (“PLS”) that causes weakness in his voluntary muscles. Walker alleges that his healthcare providers at Stateville—Wexford Health Sources and Dr. Saleh Obaisi—were deliberately indifferent to his medical needs after he underwent spinal surgery in March 2011. Specifically, Walker alleges defendants failed to: (1) ensure he received proper follow-up care after his surgery, and (2) allowed undue delays in his treatment by outside experts. Defendants’ failures, he asserts, delayed his diagnosis and caused him to suffer from the undiagnosed PLS in the interim. Defendants successfully moved for summary judgment on all of Walker’s claims. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Chicago Studio Rental, Inc., et al. v. Illinois Department of Commerce and Economic Opportunity, et al.

Case No.: 18-3134

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

Focus: Sherman Act Violation

For nearly 30 years, Chicago Studio Rental, Incorporated and Chicago Studio City Real Estate Holdings, LLC (collectively, “Chicago Studio”) operated the only film studio in Chicago, Illinois. That changed around 2010 when Chicago Film Studio Holdings, LLC and Chicago Film Studio Industrial Real Estate Holdings, LLC (collectively, “Cinespace”) opened a new studio. Within a handful of years, Cinespace rapidly expanded its studio to include 26 more stages and 24 times more floor space than Chicago Studio’s facility. Chicago Studio could not keep up, failed to attract production business, and ultimately stopped making a profit.

Chicago Studio sought to blame others for its demise and filed this action against the Illinois Department of Commerce and Economic Opportunity, Illinois Film Office, and Betsy Steinberg—three Illinois state actors responsible for promoting the Illinois film industry. Chicago Studio alleged that Defendants unlawfully steered state incentives and business to Cinespace in violation of the Sherman Act and equal protection and due process under the Fourteenth Amendment. The district court granted Defendants’ motion to dismiss the Sherman Act and due process claims. It later granted summary judgment on the equal protection claim. Chicago Studio now appeals these decisions on the Sherman Act and equal protection claims.

We affirm. The district court properly dismissed the Sherman Act claim because Chicago Studio failed to adequately plead an antitrust injury. The complaint merely alleges injuries to Chicago Studio, not to competition. We also conclude that the district court properly granted summary judgment on the equal protection claim. Chicago Studio and Cinespace are not similarly situated, and there was a rational basis for Steinberg’s conduct. We further find that the district court did not abuse its discretion in striking Chicago Studio’s additional statement of facts for noncompliance.

Affirmed

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7th Circuit Court of Appeals

Case Name: Marvin Abernathy v. Eastern Illinois Railroad Company

Case No.: 18-2068; 18-2153

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

Focus: Judgment – Costs

Plaintiff Marvin Abernathy was injured while working for defendant Eastern Illinois Railroad Company. He sued under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., alleging that the Railroad negligently failed to provide reasonably safe working conditions by failing to provide appropriate equipment for the job he was doing when he was hurt.

A jury awarded Abernathy $525,000 in damages. The Railroad moved for judgment as a matter of law or a new trial. The district court denied both requests, and the Railroad has appealed, raising a host of issues. Abernathy has filed a cross-appeal asserting that the district court erred by not awarding him sufficient costs to cover his expert witness fees. We affirm Judge Myerscough’s decisions in all respects.

Affirmed

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7th Circuit Court of Appeals

Case Name: Priscilla Rainey v. Jayceon T. Taylor

Case No.: 16-4153; 18-2990

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

Focus: Court Error – Denial of Continuance – Damages

Rapper Jayceon Taylor, better known as “The Game,” starred in a VH1 television show called She’s Got Game, an imitation of the long-running reality dating series The Bachelor. While filming in Chicago in 2015, Taylor took contestant Priscilla Rainey on an off-camera date at a suburban sports bar. There Taylor sexually assaulted her by repeatedly lifting her skirt, grabbing her bare buttocks and vagina, and “juggling” her breasts in front of a large crowd of onlookers.

Rainey sued Taylor for sexual battery. Taylor did not take the litigation seriously. He evaded process, trolled Rainey on social media, dodged a settlement conference, and did not bother to show up at trial. His attorney asked for a continuance, but the judge denied that request, dismissing Taylor’s proffered excuse as an elaborate ruse. The judge instructed the jurors that they could infer from Taylor’s absence that his testimony would have been unfavorable to him. The jury returned a verdict for Rainey, awarding $1.13 million in compensatory damages and $6 million in punitive damages.

Taylor moved for a new trial, challenging the denial of a continuance, the missing-witness instruction, and the general weight of the evidence. Alternatively, he sought a remittitur of damages. The judge denied the motions. Taylor appeals, reprising the arguments in his post-trial motions and adding a claim of evidentiary error.

We affirm. District judges have wide discretion to manage their proceedings and resolve evidentiary issues, and the rulings here lie well within that discretion. Taylor has only himself to blame for the missing-witness instruction, which was plainly justified. The verdict is well supported by the evidence, and we see no reason to disturb the jury’s determination of damages. The compensatory award is not excessive under Illinois law, and the punitive award survives constitutional scrutiny.

Affirmed

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7th Circuit Court of Appeals

Case Name: Lisa Ulrey v. William Reichhart, et al.

Case No.: 19-1221

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

Focus: Due Process Violation

Plaintiff Lisa Ulrey served as the assistant principal of the Manchester Junior-Senior High School until November 4, 2014, when she resigned during a meeting with William Reichhart, the school district’s superintendent. Ulrey brings two claims in this suit under 42 U.S.C. § 1983 against Reichhart and the school board. First, she claims that Reichhart violated her rights under the First Amendment by retaliating against her for her speech about a student discipline issue. Second, she contends that the defendants violated her Fourteenth Amendment rights by coercing her to resign, depriving her of her property interest in her job without due process of law. The district court granted summary judgment to the defendants on both claims. We affirm. Undisputed facts show that Ulrey spoke about the discipline issue in her capacity as an employee, so the First Amendment did not protect her speech. Ulrey also failed to present evidence sufficient to support a finding that her resignation was involuntary.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. David Holly

Case No.: 19-1216

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

Focus: 4th Amendment Violation

Unreasonable seizures violate the Fourth Amendment while voluntary encounters with the police do not. This case implicates the dividing line. A police officer rushed to approach David Holly in Chicago’s Altgeld Gardens Housing Complex and asked if he had a gun. Holly answered yes, which resulted in his arrest and subsequent conviction for possessing a firearm as a convicted felon. Holly later moved to suppress the gun, contending that the officer’s approach and questioning constituted an impermissible seizure. The district court denied that motion after finding that Holly consented to the encounter. We agree and affirm. In the totality of circumstances, Holly’s interaction with police fell on the voluntary side of the line.

Affirmed

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7th Circuit Court of Appeals

Case Name: Gai Levy v. Marion County Sheriff, et al.

Case No.: 19-1424

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

Focus: Unlawful Detainment – Prolonged Detention by Law Enforcement

Plaintiff-appellant Gai Levy brought this lawsuit against defendants-appellees, the Marion County Sheriff and the Consolidated City of Indianapolis and Marion County (collectively, “defendants”), alleging constitutional violations under 42 U.S.C. § 1983 for unlawfully detaining him. Levy contends that on two separate occasions defendants violated orders from a trial court to release him from custody. In particular, he asserts that the policies and practices defendants used to communicate with the courts about individual defendants led to his prolonged detention. Defendants moved for summary judgment on Levy’s § 1983 claims. The district court granted their motion. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: MillerCoors LLC, v. Anheuser-Busch Companies, LLC,

Case No.: 19-2200; 19-2713;19-2782

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

Focus: Preliminary Injunction

On May 24, 2019, the district court entered an opinion that concludes with language that the judge believed would serve as a preliminary injunction. MillerCoors filed an appeal, which has been docketed as No. 19-2200. But the district court did not comply with Fed. R. Civ. P. 65(d)(1)(C), which requires every injunction to be set forth without referring to any other document. See, e.g., Chicago v. Sessions, No. 17-2991 (7th Cir. Aug. 10, 2018) (en banc), slip op. 3 (Rule 65 “requires a separate document setting forth the terms of such an injunction”); Auto Driveaway Franchise Systems, LLC v. Auto Driveaway Richmond, LLC, 928 F.3d 670, 676 (7th Cir. 2019); BankDirect Capital Finance, LLC v. Capital Premium Financing, Inc., 912 F.3d 1054, 1057 (7th Cir. 2019); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 527 (7th Cir. 1988); Chief Freight Lines Co. v. Teamsters Local No. 886, 514 F.2d 572, 578 n.6 (10th Cir. 1975).

In supplemental jurisdictional memoranda filed at our request after oral argument, both sides acknowledged that the district court failed to comply with Rule 65(d). Neither side asked us to depart from the decisions we have cited.

Decision

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7th Circuit Court of Appeals

Case Name: Daniel C. Portee v. United States of America

Case No.: 18-1034

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

Focus: Sentencing Guidelines – Armed Career Criminal Act Violation

Daniel Portee pleaded guilty to possession of a firearm by a convicted felon. He received a 15‐year mandatory‐minimum sentence under the Armed Career Criminal Act. In Johnson’s wake, Portee challenged his sentence. He argues he lacks enough qualifying felony convictions to trigger the ACCA. The government argues he has four ACCA‐qualifying felony convictions. Three suffice. We conclude two felony convictions proposed by the government do not satisfy the ACCA, so we reverse and remand.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles Maurice Merriett

Case No.: 2018AP684-CR

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

Focus: Suppression of Evidence – Warrantless Search

Charles Maurice Merriett appeals a judgment convicting him of two drug charges and unlawfully possessing a firearm as a convicted felon. He argues that the seized evidence should be suppressed because the police unlawfully entered his apartment building’s hallway. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Richard W. Littlejohn, Jr.,

Case No.: 2018AP1059-CR

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

Focus: Abuse of Discretion – Exclusion of Evidence – Testimony

Richard W. Littlejohn, Jr., appeals from a judgment, entered upon a jury’s verdict, convicting him on two counts of first-degree intentional homicide. Littlejohn argues that the trial court violated his right to present a defense when it excluded a witness from testifying. We conclude that the trial court did not erroneously exercise its discretion in excluding the witness’s testimony, nor did the witness’s exclusion violate Littlejohn’s rights. Therefore, we affirm the judgment.

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WI Court of Appeals – District I

Case Name: Varsity Tutors LLC, v. Labor & Industry Review Commission, et al.

Case No.: 2018AP1951

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

Focus: LIRC Review – Independent Contractor

The Wisconsin Labor and Industry Review Commission (LIRC) appeals the trial court’s order reversing LIRC’s determination that Holland Galante was an employee of Varsity Tutors LLC (Varsity), an online business that connects tutors with students. The trial court concluded that Varsity proved the minimum six out of the nine statutory conditions necessary to establish that Galante was an independent contractor—not an employee—pursuant to WIS. STAT. § 108.02(12)(bm)2.

On appeal, LIRC argues that Varsity failed to prove that Galante was an independent contractor because Varsity only proved two of the statutory conditions. Therefore, LIRC asserts we should affirm its determination that Galante is an employee of Varsity. We are not persuaded. We agree with the trial court’s conclusion that Varsity proved at least six out of the nine statutory conditions necessary to establish that Galante was an independent contractor. Therefore, we affirm the trial court’s decision.

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WI Court of Appeals – District I

Case Name: State of Wisconsin ex rel. Muhannad M. Salim v. Reed Richardson Waden

Case No.: 2018AP2433

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

Focus: Sentencing Guidelines – Positive Adjustment Time

Muhannad M. Salim appeals from the denial of a habeas corpus action. Salim argues that he should be immediately released from custody because the circuit court erred in resentencing him and that he was denied positive adjustment time (PAT) because 2011 Wisconsin Act 38 is an ex post facto law. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Allen J. Campbell

Case No.: 2018AP139-CR

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

Focus: Sentence Credit

Allen Campbell appeals from a judgment of conviction for delivery of heroin and an order denying his request for sentence credit under WIS. STAT. § 973.155(1)(a) (2017-18) for eighty days that he resided in a transitional living program (TLP). We affirm.

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WI Court of Appeals – District III

Case Name: Ronald Magnin, et al. v. Magnin Whole Corporation, et al.

Case No.: 2018AP887

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

Focus: Abuse of Discretion – Court Error

Ronald and Jayson Magnin appeal a judgment, entered following a bench trial, dismissing their claims against the Magnin Whole Corporation (the Corporation), seven of the Corporation’s individual members, and the Estate of Michael Magnin. The claims at issue arose out of the Corporation’s assertion that it had expelled Ronald from its membership. Ronald refused to acknowledge his expulsion, and he and his son, Jayson, ultimately filed a lawsuit asserting claims for quiet title to the Corporation’s real property, breach of fiduciary duty, judicial dissolution of the Corporation, and partition of the Corporation’s real property.

Ronald and Jayson now argue the circuit court erred by determining that: (1) the Corporation lawfully expelled Ronald from its membership; and (2) Jayson voluntarily withdrew his membership from the Corporation. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. James E. Emerson

Case No.: 2018AP922

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

Focus: Ineffective Assistance of Counsel

James Emerson appeals from an order denying his postconviction motion, filed pursuant to WIS. STAT. § 974.06 (2017-18), seeking relief from a conviction for first-degree intentional homicide. Emerson claims: (1) his constitutional right to confront the witnesses against him was violated by the admission of an out-of-court statement about Emerson made by a third party that was referenced by a police detective during Emerson’s interrogation; and (2) his trial counsel provided ineffective assistance by failing to investigate or present meaningful mitigation evidence at sentencing. We conclude the circuit court properly denied Emerson’s postconviction motion without a hearing because the record conclusively demonstrates that he is not entitled to relief on either claim. Therefore we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Vance D. Reed

Case No.: 2018AP1051-CR

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

Focus: Unlawful Stop – Suppression of Evidence

Vance Reed appeals a judgment, entered upon his no-contest pleas, convicting him of two counts of first-degree intentional homicide. Reed contends the circuit court erred by denying his pretrial motion to suppress DNA evidence and statements he made to law enforcement. Specifically, Reed asserts he was unlawfully stopped and seized before consenting to provide a DNA sample, thus requiring suppression of the DNA evidence and his statements to law enforcement as fruit of the poisonous tree. We reject Reed’s arguments and affirm the judgment.

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WI Court of Appeals – District II

Case Name: Kelly A. Wink v. Craig S. Wink

Case No.: 2018AP1585

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

Focus: Divorce – Property Division

Kelly Wink appeals from a judgment of divorce from Craig Wink. On appeal, Kelly challenges the property division, a contempt finding against her for failing to meet the expenses of living in the marital home and an assessment of those expenses against her share of the property division, and the denial of her request for a contribution to her attorney’s fees. We conclude that the circuit court properly exercised its discretion in all respects. We affirm.

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WI Court of Appeals – District II

Case Name: William C. Brown, et al. v. Muskego Norway School District Group Health Plan

Case No.: 2018AP1799

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

Focus: Insurance Claim – Coverage

William C. Brown was injured in a motorcycle accident. Brown declined worker’s compensation coverage and wanted coverage provided by his own health insurance policy. The circuit court found that Brown was in the course of his employment when he was injured and further found that Brown’s health insurance policy expressly excluded coverage as benefits were available to Brown under the worker’s compensation law. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jamie Ellin Grimm

Case No.: 2019AP789-CR

Officials: NEUBAUER, C.J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Jamie Ellin Grimm appeals from a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (second offense) and challenges the circuit court’s order denying her motion to suppress the evidence. She asserts that the officer did not have reasonable suspicion to conduct a traffic stop when she flashed her high beams at the oncoming officer within 500 feet. We conclude that the officer had sufficient grounds to reasonably suspect that a traffic violation had taken place, justifying the stop. We affirm.

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WI Court of Appeals – District IV

Case Name: Danielle Ann Margaret Rowland v. Mark D. Larsen

Case No.: 2018AP1408

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

Focus: Court Error – Guardian Ad Litem Fees

Mark D. Larsen, pro se, appeals a circuit court judgment for payment of guardian ad litem (GAL) fees. Larsen contends that the court erred by refusing to address Larsen’s objection to the GAL’s proposed order for fees. For the reasons set forth below, we disagree. We affirm.

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WI Court of Appeals – District IV

Case Name: Petitioner v. Anthony Rineer

Case No.: 2018AP2043

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

Focus: Abuse of Discretion – Domestic Abuse Injunction

Anthony Rineer appeals a domestic abuse injunction entered against him by the circuit court (the Hon. Jill J. Karofsky) on September 5, 2018. We do not identify the petitioner by name in light of the nature of the allegations, but refer to her as “the petitioner.” We identify below each argument that Rineer makes and explain why we reject each of his arguments.

The record in this case reflects events from 2017 that occurred in a prior set of circuit court proceedings involving the same parties. As pertinent to issues raised in this appeal, on November 29, 2017, the circuit court (the Hon. William E. Hanrahan) dismissed two petitions for domestic abuse injunctions— one filed by Rineer against the petitioner and the other filed by the petitioner against Rineer—based on a stipulation of the parties. The stipulation included an agreement that the parties would have no contact with each other going forward.

Rineer’s argument on appeal on this topic is unclear, but we reject it on the ground that the circuit court’s response to the particular objection raised was well within its discretionary authority. See Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698 (evidentiary decisions are reviewed under the erroneous exercise of discretion standard, which allows circuit courts “broad discretion”).

Rineer acknowledges that “one instance of domestic abuse is enough for a circuit court to issue an injunction” under WIS. STAT. § 813.12(1)(am), (4). However, he argues that reversal is required because additional findings that the circuit court made in support of its ruling “are not cognizable as domestic abuse per WIS. STAT. § 813.12(1)(am)1.-6.” We reject this argument because Rineer fails to explain why, even if he were correct on these points (topics on which we take no positions), the injunction was not proper based on the court’s finding that there were reasonable grounds to believe that Rineer intentionally inflicted physical pain or physical injury on the petitioner. We have rejected his arguments on that issue, and Rineer does not provide a good reason to address his arguments about the additional bases for an injunction articulated by the circuit court.

We deny the petitioner’s motion for attorneys’ fees pursuant to WIS. STAT. § 809.25(3). Rineer makes some frivolous arguments, but we are not persuaded that all arguments Rineer makes on appeal are wholly frivolous. See Baumeister v. Automated Products, Inc., 2004 WI 148, ¶26, 277 Wis. 2d 21, 690 N.W.2d 1.

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WI Court of Appeals – District IV

Case Name: Petitioner v. Sammy Baxter

Case No.: 2018AP2044

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

Focus: Domestic Abuse Injunction – Burden of Proof

A petitioner requesting a domestic abuse injunction appeals the circuit court’s denial of the petition based on the petitioner’s failure to meet his burden of proof. We do not identify the petitioner by name in light of the nature of the allegations, but refer to him as “the petitioner.” We reject the single argument made by the petitioner on appeal.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ricky J. O’Driscoll

Case No.: 2018AP2075-CR

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

Focus: OWI – Countable Prior Conviction

Ricky O’Driscoll appeals the circuit court judgment convicting him of a fifth offense operating while intoxicated (OWI). O’Driscoll also appeals the court’s order denying his motion for postconviction relief. O’Driscoll argues that one of the prior OWI offenses identified by the State to support charging him with a fifth offense was not a countable prior conviction. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John W. Lane

Case No.: 2019AP153-CR

Officials: FITZPATRICK, J.

Focus: Warrantless Search – OWI – Blood Test

The State appeals an order of the Portage County Circuit Court suppressing the results of blood alcohol testing of John Lane’s blood. Lane, who was arrested for operating a motor vehicle while under the influence of an intoxicant (OWI), consented to the taking of a sample of his blood for the purpose of determining his blood alcohol concentration. Before the Wisconsin State Laboratory of Hygiene tested the sample, Lane sent a letter to the laboratory revoking his consent to test the sample. The question before this court is whether the testing of Lane’s blood following his revocation of consent violated Lane’s Fourth Amendment right to be free from an unreasonable search. This is the same question recently addressed by our supreme court in State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223. I conclude that the Randall decision controls here and requires that this court reverse the circuit court’s order of suppression.

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