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Weekly Case Digests – December 2, 2019 – December 6, 2019

By: WISCONSIN LAW JOURNAL STAFF//December 6, 2019//

Weekly Case Digests – December 2, 2019 – December 6, 2019

By: WISCONSIN LAW JOURNAL STAFF//December 6, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: PMT Machinery Sales, Inc. v. Yama Seiki USA, Inc.,

Case No.: 18-3484

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

Focus: Wisconsin Fair Dealership Law Violation

A company that enters a dealership agreement with a manufacturer takes a risk. Investing in the sale of the manufacturer’s products may generate significant profits. But if a manufacturer pulls out, a dealer who has made that investment may be left high and dry. To give dealers some protection, the Wisconsin Fair Dealership Law makes it difficult for manufacturers to simply walk away. If a manufacturer terminates, substantially changes, or fails to renew a dealership agreement without good cause, the statute entitles the dealer to relief.

PMT Machinery Sales sued Yama Seiki for violating this statute. According to PMT, it had an exclusive-dealership arrangement with Yama Seiki, which the latter breached by using other companies to promote the sale of its machines. Yet PMT has failed to show that it had any dealership agreement with Yama Seiki, much less an exclusive one. To qualify as a dealership under the statute, PMT must have either possessed the right to sell or distribute Yama Seiki’s products or made more than de minimis use of Yama Seiki’s corporate symbols. But PMT never stocked any of Yama Seiki’s products, collected money for their sale, or made more than de minimis use of Yama Seiki’s logos. Because no reasonable jury could render a verdict in PMT’s favor, we affirm the district court’s grant of summary judgment in favor of Yama Seiki.

Affirmed

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7th Circuit Court of Appeals

Case Name: James A. Lewis v. Angela McLean, et al.

Case No.: 19-1562

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

Focus: Court Error – Abuse of Discretion

We previously vacated the entry of summary judgment for certain defendants in this case brought by James Lewis, a Wisconsin prisoner, for alleged violations of his Eighth Amendment rights. We review a decision to deny a Rule 59(a) motion for abuse of discretion. We concluded that a reasonable jury could find that a nurse and a correctional officer acted with deliberate indifference by delaying medical attention for Mr. Lewis’s painful back condition. Lewis v. McLean, 864 F.3d 556, 563–65 (7th Cir. 2017). We also suggested that, on remand, the district court should consider whether to reinstate Mr. Lewis’s state-law medical malpractice claim against the nurse. Id. at 566. On remand, Mr. Lewis went to trial and was represented by recruited counsel. The jury found for the defendants. Mr. Lewis immediately moved, pro se, to set aside the verdict and for a new trial. The district court, construing Mr. Lewis’s motion under Federal Rule of Civil Procedure 59(a), denied his motion. Because we conclude that there is a rational basis for the jury’s decision, and that the district court committed no error warranting further proceedings, we affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ronald Shell v. Burlington Northern Santa Fe Railway Company

Case No.: 19-1030

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

Focus: Statutory Interpretation – Americans with Disabilities Act

Burlington Northern Sante Fe Railroad Company refused to hire Ronald Shell solely because it believed his obesity presented an unacceptably high risk that he would develop certain medical conditions that would suddenly incapacitate him on the job. Shell sued BNSF under the Americans with Disabilities Act, alleging that BNSF discriminated against him based on a disability. BNSF moved for summary judgment and argued that the ADA’s definition of “disability” is not met where an employer regards an applicant as not presently having a disability but at high risk of developing one. Concluding that the ADA does reach discrimination based on a future impairment, the district court denied BNSF’s motion. We come to a contrary conclusion and reverse.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Planned Parenthood of Indiana and Kentucky, Inc., v. Kristina Box, et al.

Case No.: 17-2428

Officials: WOOD, Chief Judge, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Petition for Rehearing En Banc

On consideration of defendants-appellants’ petition for rehearing and rehearing en banc, filed on September 24, 2019, a majority of judges in active service voted to deny the petition for rehearing en banc. Judges Flaum, Kanne, Barrett, Brennan, and Scudder voted to grant the petition for rehearing en banc. Judges Rovner and Hamilton voted to deny panel rehearing; Judge Kanne voted to grant panel rehearing. Accordingly, the petition for rehearing and rehearing en banc filed by defendants-appellants is DENIED.

Denied

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7th Circuit Court of Appeals

Case Name: DeWayne D. Knight v. Thomas Grossman, Jr., M.D.,

Case No.: 19-1740

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

Focus: Due Process Violation

DeWayne Knight is a prisoner who went under the knife for one surgery and Dr. Thomas Grossman, upon seeing during the operation that he made the wrong diagnosis, performed another. Knight brought suit under 42 U.S.C. § 1983, alleging that Dr. Grossman acted with deliberate indifference to his medical needs in violation of the Eighth Amendment and disregarded his right to informed consent in violation of the Fourteenth Amendment. The district court entered summary judgment in Dr. Grossman’s favor on both claims. In considering Knight’s due process claim, the district court correctly observed that we have never endorsed a right to informed consent or pronounced a standard for proving a violation of that right. We do so now by adopting the standard the Second Circuit articulated in Pabon v. Wright, 459 F.3d 241 (2006). But because Knight did not sufficiently prove the elements of either of his claims, we affirm the district court’s judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: Stanislaw Sterlinski v. Catholic Bishop of Chicago

Case No.: 18-2844

Officials: FRANK H. EASTERBROOK, Circuit Judge DIANE S. SYKES, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge.

Focus: Petition for Rehearing En Banc

The opinion of this court issued on August 8, 2019, is amended as follows: At the end of the paragraph that carries from page 4 to page 5 add, “Sterlinski has not contended that non-Catholics are ever hired as organists by the Parish, and we need not consider the potential bearing of that possibility.” Plaintiff-appellant filed a petition for rehearing and rehearing en banc on August 22, 2019. No judge in regular active service has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED.

Petition Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Micha Eatman

Case No.: 18-2525

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

Focus: Probable Cause – Suppression of Evidence

After a heated argument with his girlfriend, Micha Eatman found himself pounding on her apartment door and yelling to be let inside. Chicago police officers arrived in response to a 911 call and, within moments, they frisked Eatman, seized a loaded handgun, and placed him in handcuffs. Officers then asked Eatman to produce the gun’s registration. The officers also spoke to his girlfriend, who refused to sign a police complaint. They then took Eatman to the police station, where a background check revealed two prior felony convictions. Eatman was turned over to federal authorities and indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Eatman moved to suppress the gun, arguing that he was searched without reasonable suspicion of criminal activity and arrested without probable cause since, at the time he was handcuffed, the officers did not know that he possessed the gun unlawfully. The district court denied the motion, finding that the officers had reasonable suspicion when they found Eatman attempting to gain access to the apartment and that the officers arrested Eatman only after inquiring whether he had registration for the gun. Eatman entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress.

On appeal, Eatman concedes the police officers had reasonable suspicion to conduct a frisk but argues he was arrested without probable cause when he was handcuffed and thus his felon status should be suppressed. Because we find the use of handcuffs on Eatman to be reasonable, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Reginald Young v. United States of America

Case No.: 18-3415

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

Focus: Malpractice Claim

Illinois requires the plaintiff in a medical-malpractice suit to file an affidavit stating that “there is a reasonable and meritorious cause” for litigation. 735 ILCS 5/2-622. The plaintiff needs a physician’s report to support the affidavit’s assertions. The report must show that the physician has reviewed the plaintiff’s medical records and must justify the conclusion that “a reasonable and meritorious cause” exists. This requirement applies to malpractice litigation in federal court because §5/2-622 is a substantive condition of liability. Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014).

Reginald Young, a federal prisoner, filed this suit alleging that physicians at his prison committed malpractice by not performing or authorizing surgery to correct a cataract that causes blurred vision and headaches. Two physicians recommended surgical intervention, but others disagreed; Young maintains that the two physicians’ recommendations prove that the lack of surgery is medical malpractice. But Young did not provide, with the complaint or later, an affidavit complying with §5/2-622, nor did he ask any physician to prepare the sort of report that would have accompanied such an affidavit. Instead he asserted that a recommendation for surgery is the only medical document he needs. The district judge disagreed and granted a motion by the United States to dismiss the complaint or for summary judgment. 2018 U.S. Dist. LEXIS 151134 (S.D. Ill. Sept. 5, 2018).

By requesting summary judgment as an alternative to its motion to dismiss the complaint, the United States put Young on notice of the need for an affidavit and report. In the ensuing six months he did not try to comply. Instead he argued that two physicians’ recommendations in favor of surgery sufficed. The district judge replied: No medical record Young has submitted indicates (1) that the doctors making the records had reviewed all of Young’s medical records and other relevant documents, (2) that there was “reasonable and meritorious cause” for filing a medical malpractice action, or (3) the reasons for that conclusion. It is true that the authors of [some] medical records recommended a different course of treatment than Young received, but in medicine there is often a range of reasonable treatments, and a doctor’s recommending one course does not necessarily imply that a doctor who choses [sic] another commits malpractice. This is why the certificate of merit [i.e., the documents under §5/2-622] requires not a statement that a course of treatment desired by the plaintiff is “reasonable and meritorious” but a statement that the medical malpractice cause of action is. Young has provided no such statement in this case. 2018 U.S. Dist. LEXIS 151134 at *6 (emphasis in original). We agree with this analysis, which means that the judgment must be affirmed.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Michael Anderson v. Town of Newbold

Case No.: 2018AP547

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

Focus: Court Error – Zoning Authority

Michael Anderson owns shoreland property in the Town of Newbold (the Town) that he sought to divide into two lots. The Town denied Anderson’s proposed division on the ground that the two lots would fail to comply with the Town’s applicable minimum shoreland frontage requirement. The issue before us is whether the Town may lawfully enforce its shoreland frontage requirement, which it enacted under its subdivision authority, even though an identical shoreland frontage requirement would not be enforceable had the Town enacted it under its zoning authority.

We conclude that the plain language of the applicable subdivision enabling statute gave the Town authority to enact its minimum shoreland frontage requirement. Thus, even though our state legislature has removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692 (2017-18), we affirm the circuit court’s order upholding the Town’s decision.

We recognize in reaching our decision that there is undeniable tension between the legislature’s decision to restrict towns’ shoreland zoning authority while at the same time granting towns the power to enact a shoreland frontage requirement under their subdivision authority. We conclude, however, that in the absence of clear legislative intent demonstrating that the zoning enabling statute takes priority over the subdivision enabling statute, it is not the role of this court to resolve that tension. That task lies within the purview of the legislature alone.

Recommended for Publication
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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lavell James Cammon

Case No.: 2018AP1336-CR; 2018AP1337-CR

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

Focus: Ineffective Assistance of Counsel

Lavell James Cammon appeals from the judgments of conviction, following his guilty pleas to one count of false imprisonment, as a domestic abuser, as a repeater in Milwaukee County case No. 2014CF2809;  and one count of felony intimidation of a victim, as a party to a crime, as a domestic abuser in Milwaukee County case No. 2014CF5487. He also appeals the orders denying his postconviction motions.

Cammon argues that, because he was misinformed about the maximum penalties associated with both charges to which he pled guilty, his pleas were not knowing, intelligent, and voluntary and, therefore, the postconviction court erred in denying his motion to withdraw his pleas. He also argues that trial counsel was constitutionally ineffective because (1) trial counsel failed to accurately inform him of the maximum penalties associated with each charge; and (2) prior to sentencing, trial counsel did not request additional time to confer with him to determine if he wanted to withdraw his pleas. We are not persuaded.

We modify the judgment in the first case, affirm both that judgment as modified and the judgment in the second case, and affirm the postconviction court’s orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mario Mose Jones, Jr.,

Case No.: 2018AP1366-CR

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Mario Jones appeals a judgment of conviction, following a jury trial, of two counts of first-degree recklessly endangering safety, and one count of being a felon in possession of a firearm. Jones also appeals the orders denying his postconviction motions. On appeal Jones argues that: (1) trial counsel was “prejudicially ineffective” for failing to call Tischer to “rebut the claims of Detective Salaam”; (2) trial counsel was “prejudicially ineffective” for failing to “interview, subpoena, and call two alibi witnesses whose testimony would have supported [Jones’s] alibi defense”; and (3) the trial court erred in denying trial counsel’s motion to exclude Slomczewski’s testimony as hearsay. (Capitalization omitted.) We address each issue in turn.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jamie Lane Stephenson

Case No.: 2018AP2104

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

Focus: Sufficiency of Evidence

Jamie Stephenson appeals an order denying his petition for discharge from his commitment as a sexually violent person under WIS. STAT. ch. 980 (2017-18). He also appeals an order denying his motion for postcommitment relief. Stephenson argues the circuit court erred by denying his discharge petition because the State was required—and failed—to present expert testimony that Stephenson was dangerous to others because his qualifying mental disorders made it more likely than not that he would commit a future act of sexual violence. In the alternative, Stephenson argues that even if such expert testimony was not required, the evidence at his discharge hearing was insufficient to satisfy the State’s burden of proof regarding his risk of reoffense.

We conclude, as a matter of first impression, that the State is not required to present expert testimony in order to meet its burden of proof on the question of future dangerousness in discharge proceedings under WIS. STAT. ch. 980. We further conclude that the evidence presented at Stephenson’s discharge hearing was sufficient to establish that Stephenson’s qualifying mental disorders made it more likely than not that he would commit a future act of sexual violence. We therefore affirm the orders denying Stephenson’s discharge petition and his motion for postcommitment relief.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kevin Pittman, Jr.,

Case No.: 2018AP2125-CR

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

Focus: Ineffective Assistance of Counsel

Kevin Pittman, Jr., appeals a judgment convicting him, following a jury trial, of felony murder as a party to a crime and possession of a firearm by a felon. See WIS. STAT. §§ 940.03, 939.05, 941.29(2)(a) (2011- 12). He also appeals the circuit court’s order denying his postconviction motion. Pittman argues that he is entitled to a new trial because trial counsel was ineffective and because he has newly discovered evidence. We reject each argument that Pittman makes on appeal and, accordingly, affirm the judgment and order.

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WI Court of Appeals – District IV

Case Name: Waupaca County Department of Health and Human Services v. J.J.

Case No.: 2019AP805

Officials: FITZPATRICK, J.

Focus: Termination of Parental Rights

J.J. appeals an order of the circuit court terminating his parental rights to his child, V.J. J.J. pleaded no contest to the allegation that he failed to assume parental responsibility for V.J. J.J. contends that he is entitled to withdraw that plea because he received ineffective assistance of counsel at the grounds phase of the termination of parental rights (TPR) proceeding and because his no contest plea was not supported by a factual basis. I reject J.J.’s arguments and affirm the circuit court’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher B. Shannon

Case No.: 2018AP2206-CR

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

Focus: Plea Withdrawal

Christopher Shannon appeals from a judgment and an order of the circuit court denying his postconviction motion for plea withdrawal or, in the alternative, resentencing. We affirm.

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WI Court of Appeals – District I

Case Name: Cindy Marie Lund v. Michael Matthew Hrdi

Case No.: 2019AP84

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

Focus: Court Error – Divorce – Asset Distribution

Michael M. Hrdi appeals from the judgment of divorce from his former wife Cindy Lund, f/k/a Cindy Hrdi, who petitioned for divorce after a fourteen-year marriage. The circuit court ordered a fifty-five/forty-five-percent distribution of the marital estate in favor of Cindy and ordered Michael to pay Cindy $37,574.35 as an equalization payment plus $88,567.50, one half of the equity of the home.

Michael contends the court included assets and debt in the marital estate that should not have been divided. We agree to the extent the court included the value of the death benefit of one of his life insurance policies. As we will explain, the court also may have erred in including Cindy’s student loan debt. We disagree with Michael that the court erred in holding him in contempt and ordering him to pay Cindy’s associated attorney fees. We thus affirm in part, reverse in part, and remand with directions

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tunis Jay LaFever

Case No.: 2019AP702-CR

Officials: REILLY, P.J.

Focus: Unlawful-stop Claim

Tunis Jay LaFever appeals from a judgment of conviction for operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, third offense, contrary to WIS. STAT. § 346.63(1)(am). LaFever challenges the circuit court’s denial of his motion to suppress evidence, arguing that the officer unlawfully extended the traffic stop without reasonable suspicion. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Wisconsin Department of Revenue v. Microsoft Corporation

Case No.: 2018AP2024

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

Focus: Court Error – Statutory Interpretation – Franchise Taxation

The Wisconsin Department of Revenue (DOR) appeals a Dane County Circuit Court order that affirmed a decision of the Tax Appeals Commission. The Commission determined that royalties Microsoft Corporation received from licensing its software to original equipment manufacturers (OEMs) that are not located in Wisconsin, but whose products are used in Wisconsin, should not be considered in calculating Microsoft’s franchise tax liability to the State of Wisconsin for the tax years 2006 to 2009 under WIS. STAT. § 71.25(9)(d) (2005-06). That statutory subpart concerns the franchise taxation of sales of intangibles if the income-producing activity occurs in Wisconsin. See § 71.25(9)(d). The DOR argues that the Commission erred in failing to apply a statutory exception to § 71.25(9)(d), under which franchise taxation of computer software occurs if a “licensee” uses the software in Wisconsin. See § 71.25(9)(df). According to the DOR, the § 71.25(9)(df) exception requires that the royalties Microsoft received from OEMs not located in Wisconsin must be considered in calculating Microsoft’s franchise tax liability because the persons who use those OEMs’ products in Wisconsin were, in effect, Microsoft’s licensees. We reject the DOR’s arguments and, therefore, affirm the circuit court’s order that affirmed the Commission’s decision.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Sauk County v. R.A.S.

Case No.: 2018AP2253

Officials: KLOPPENBURG, J.

Focus: Due Process Violation

R.A.S. appeals an order involuntarily committing him under WIS. STAT. ch. 51 after a jury trial, arguing that the special verdict question pertaining to dangerousness violated his right to due process because the question did not require five-sixths of the jurors to agree that he was dangerous under WIS. STAT. § 51.20(1)(a)2.c. or that he was dangerous under § 51.20(1)(a)2.d. I affirm.

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WI Court of Appeals – District IV

Case Name: Joseph Ebert, et al. v. Innswood Whitetails, LLC, et al.

Case No.: 2018AP2459

Officials: Blanchard, Kloppenburg and Graham, JJ.

Focus: Easement

This is an appeal of a final judgment resolving property disputes between the owners of two adjacent parcels of land in Monroe County. The parties dispute the location of a portion of an easement, as well as the width of the entire easement. They also dispute the boundary line between their parcels.

Joseph, Dale, Arlis, and Ronald Ebert (the “Eberts”) contend that the circuit court erred by “relocating” the southern terminus of the eastern fork of the easement (which we refer to as the “disputed portion”), and by “limiting” the entire easement’s width. We conclude that the court did not erroneously exercise its discretion when it established the location of the disputed portion of the easement and the entire easement’s width.

The Eberts also contend that the circuit court erred by relieving Innswood Whitetails, LLC and Frank Rasch (collectively, “Rasch”) of their unambiguous stipulation that the “historic fence line” would be the property boundary. We agree that the court erred by diverging from the unambiguous stipulation between the parties when it set the boundary line between the parcels. Accordingly, we affirm in part, reverse in part, and remand to the circuit court for proceedings consistent with this opinion.

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