Weekly Case Digests – December 9, 2019 – December 13, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Stacey Mooney v. Illinois Education Associations

Case No.: 19-1774

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges

Focus: Damages

Stacey Mooney is a public-school teacher in Eureka (Illinois) Community School District #140. She is not a member of respondent Illinois Education Association (“IEA”), the union that serves as the exclusive representative of her employee unit in collective bargaining with the school district. From the time she started as a public employee until June 2018, the District deducted from her paycheck and sent to the union a fair-share fee that contributed to the costs incurred by the union in its labor-management activities. Both the Illinois Public Relations Act, 5 ILCS § 315/6, and existing Supreme Court precedent, Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), authorized this fee arrangement.

The characterization of Mooney’s claim presents a legal question on which our consideration is de novo. That said, we agree with the district court’s analysis, which finds ample support in the law. Indeed, many years ago we held that a claim for a refund of an agency-fee overcharge under the Abood regime was a legal rather than an equitable claim. Gilpin v. Am. Fed’n of State, Cnty., & Mun. Employees, AFL-CIO, 875 F.2d 1310, 1314 (7th Cir. 1989) (citing Dobbs, Handbook on the Law of Remedies 224 (1973) (“The damages recovery is to compensate the plaintiff, and it pays him, theoretically, for his losses. The restitution claim, on the other hand, is not aimed at compensating the plaintiff, but at forcing the defendant to disgorge benefits that it would be unjust for him to keep.”)). But see Laramie v. Cnty. of Santa Clara, 784 F. Supp. 1492, 1501–02 (N.D. Cal. 1992) (labeling a refund of nonchargeable fees under the Abood regime as restitution).

Mooney is bringing just such a claim—that is, one against the union’s treasury generally, not one against an identifiable fund or asset. She attempts to escape this conclusion with the argument that the entire treasury is an identifiable fund against which she can pursue an equitable lien, but that proves too much. Every defendant will always have a “fund” consisting of all of its assets, but that is not what the Supreme Court was talking about in Great-West Life and Montanile. It is not enough that Mooney’s fees once contributed to IEA’s overall assets. According to Montanile, she must point to an identifiable fund and show that her fees specifically are still in the union’s possession. 136 S. Ct. at 657–59. This she has not done. Her claim is against the general assets of the union, held in its treasury, and can only be characterized as legal.

In substance, then, Mooney’s claim is one for damages. For the reasons we set forth in more detail in Janus v. AFSCME, No. 19-1553, decided today, we AFFIRM the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mark Janus v. American Federation of State, County and Municipal Employees, Council 31; AFL-CIO, et al.

Case No.: 19-1553

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

Focus: Unions – Fair Share Fees

For 41 years, explicit Supreme Court precedent authorized state‐government entities and unions to enter into agreements under which the unions could receive fair‐share fees from nonmembers to cover the costs incurred when the union negotiated or acted on their behalf over terms of employment. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). To protect nonmembers’ First Amendment rights, fair-share fees could not support any of the union’s political or ideological activities. Relying on Abood, more than 20 states created statutory schemes that allowed the collection of fair‐share fees, and public‐sector employers and unions in those jurisdictions entered into collective bargaining agreements pursuant to these laws.

In 2018, the Supreme Court reversed its prior position and held that compulsory fair‐share or agency fee arrangements impermissibly infringe on employees’ First Amendment rights. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2461 (2018). The question before us now is whether Mark Janus, an employee who paid fair‐share fees under protest, is entitled to a refund of some or all of that money. We hold that he is not, and so we affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Amanda Maxwell Burger v. County of Macon, et al.

Case No.: 18-3430

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

Focus: Statutory Interpretation – Local-government Policy – Illegal Acts

Under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), local governments may be liable for violating individuals’ rights guaranteed by federal law. But local governments are responsible only for “their own illegal acts”; they are not responsible for others’ acts falling outside an official local-government policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

After Amanda Burger was fired from her job at the State’s Attorney’s Office in Macon County, Illinois, she sued the county for allegedly firing her in violation of her federal constitutional rights. The district court dismissed the case, concluding that Burger failed to state a federal claim against the county. Because the alleged illegal conduct was directed by an officer of the State of Illinois, and not Macon County, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ruben Lopez Ramos v. William P. Barr

Case No.: 19-1728

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

Focus: Immigration – Removal Order – Due Process Violation

Ruben Lopez Ramos brings this petition to review the removal decision of the Board of Immigration Appeals (“BIA”). He claims that the statutory scheme set forth in the since‐amended 8 U.S.C. § 1401 (1968) (amended 1986) and §§ 1431–32 (1968) (amended 2000) violates the Equal Protection guarantee of the Fifth Amendment’s Due Process Clause because those provisions prevent him from deriving citizenship through his United States citizen mother. The Immigration Judge (“IJ”), noting that the immigration court lacks jurisdiction over constitutional questions, limited her analysis to the provisions of the Immigration and Nationality Act (“INA”) and denied Mr. Lopez’s motion to terminate removal proceedings. The BIA affirmed without opinion the decision of the IJ. Mr. Lopez timely seeks review of the removal decision here. Because the statutory scheme has a rational basis, there is no equal protection violation. Consequently, we deny the petition for review.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Edith McCurry v. Kenco Logistics Services, LLC, et al.

Case No.: 18-3206

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

Focus: Title VII Violation – Retaliation Claim

Edith McCurry worked at an Illinois warehouse owned by Mars, Inc., the well-known candy maker, and operated by Kenco Logistics Services, a third-party management firm. In March 2015 Kenco lost its contract with Mars and laid off its employees at the warehouse, including McCurry. More than a year later, she filed two rambling pro se complaints accusing Kenco, Mars, and several of her supervisors of discriminating against her based on her race, sex, age, and disability. She also alleged that Kenco and Mars conspired to violate her civil rights.

The district court consolidated the suits and dismissed some of the claims. The defendants then moved for summary judgment on the rest. McCurry’s response violated the local summary-judgment rule, so the judge accepted the defendants’ factual submissions as admitted and entered judgment in their favor. McCurry retained counsel and appealed.

We affirm. McCurry doesn’t challenge the judge’s decision to enforce the local summary-judgment rule. As a result, and unsurprisingly, the uncontested record contains no evidence to support a viable discrimination or conspiracy claim. Indeed, the appeal is utterly frivolous and McCurry’s monstrosity of an appellate brief is incoherent, so we also order her lawyer, Jordan T. Hoffman, to show cause why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kevin Clanton v. United States of America

Case No.: 18-3060

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

Focus: Damages – Comparative Negligence

For four years, nurse practitioner Denise Jordan treated Kevin Clanton’s severe hypertension. Jordan, an employee of the U.S. Public Health Service, failed to properly educate Clanton about his disease or to monitor its advancement. Clanton’s hypertension eventually developed into Stage V kidney disease requiring dialysis and a transplant, and he sued the United States under the Federal Tort Claims Act for Jordan’s negligent care. After a five-day bench trial, the district court found the United States liable. The court determined that Clanton had not contributed at all to his own injuries, noting that Clanton did not understand why it was so important to take his medication and to attend all appointments. The court awarded Clanton nearly $30 million in damages. The government appeals the court’s comparative-negligence determination and three aspects of the court’s rulings on damages. We agree with the government that the court erred in its analysis of comparative negligence, so we vacate the judgment and remand for the court to apply the proper legal standard. As for damages, however, we find no reversible error.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Jade V. Green v. Jack Howser, et al.

Case No.: 18-2757

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

Focus: Due Process Violation

Tolstoy said that every unhappy family is unhappy in its own way, and that observation rings true here. When Jack and Angela Howser decided that Angela’s estranged daughter, Jade Green, was failing to provide a suitable home for Jade’s daughter, E.W., they enlisted the local police, the sheriff’s office, the county prosecutor, and a private investigator to help them wrest custody of E.W. from Jade. Together, the group agreed that they would arrest Jade while Jade’s husband was out of the house so that the Howsers could take the child. So, after midnight one Sunday night, a caravan that included the sheriff, a sheriff’s deputy, the Howsers, and the Howsers’ private investigator set out for Jade’s home to arrest her for writing Angela a $200 check that had bounced. Once Jade was in handcuffs, an officer gave Jack the all-clear to come inside. The sheriff did not allow Jade to designate a custodian for E.W. or obtain her consent to giving E.W. to the Howsers. Instead, over Jade’s protests, the sheriff let Jack carry her daughter away.

Jade sued the Howsers under 42 U.S.C. § 1983 for conspiring with state officials to violate her due process right to make decisions regarding the care, custody, and control of her child. A jury returned a verdict in her favor, and the Howsers ask us to overturn it. They contend that there is insufficient evidence to support the verdict and that it is contaminated by an evidentiary error in any event. They also find fault with several aspects of the damages award. We reject all of the Howsers’ arguments.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Arthur L. Robinson

Case No.: 18-2295

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

Focus: Sentencing Guidelines

Arthur Robinson pleaded guilty to unlawfully possessing a firearm. At his sentencing hearing, the district court considered and rejected defense counsel’s argument that the Sentencing Guidelines calculation double counted Mr. Robinson’s past convictions. Mr. Robinson raised the argument again when he had the opportunity to speak. He also attempted to mitigate his conduct by explaining the circumstances surrounding his arrest. The court rejected Mr. Robinson’s arguments as frivolous and then revoked the three-point reduction for acceptance of responsibility that it had granted him earlier. Because the district court clearly erred in concluding that Mr. Robinson did not accept responsibility, we vacate the judgment and remand for resentencing.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: LHO Chicago River, LLC, v. Joseph Perillo, et al.

Case No.: 19-1848

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

Focus:  Lanham Act – Attorney Fees

Defendants appeal the denial of their request for Lanham Act attorney fees following the plaintiff’s voluntary dismissal of its trademark infringement suit. The lone question here is whether the Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014)—a patent case—should guide district courts faced with Lanham Act attorney fees applications. Most of our sister circuits have answered that question in the affirmative, but we have never addressed the issue. The opportunity now presents itself, and for all the reasons herein, we join our sister circuits in holding that Octane controls and remand for further consideration.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Villas at Winding Ridge v. State Farm Fire and Casualty Company

Case No.: 19-1731

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

Focus: Judgment – Breach of Contract

In June 2013, a storm passed over Villas at Winding Ridge (“Winding Ridge”), a condominium complex located in Indiana, causing some minor damage from hail. Winding Ridge did not discover the damage until almost a year later when a contractor inspected the property to estimate the cost of replacing its aging roofs. Remembering its one-year State Farm Fire and Casualty Company (“State Farm”) insurance policy, Winding Ridge submitted a claim to State Farm. Winding Ridge and State Farm inspected the property and exchanged estimates on the amount of the loss, but they could not reach an agreement. Winding Ridge subsequently demanded an appraisal under the insurance policy, and State Farm complied. After exchanging competing appraisals, the umpire upon whom both sides had agreed issued an award, which later became binding.

Winding Ridge filed suit against State Farm alleging breach of contract, bad faith, and promissory estoppel. The parties cross-moved for summary judgment. The district court granted in part and denied in part Winding Ridge’s cross-motion for partial summary judgment and granted State Farm’s motion for summary judgment. Winding Ridge now appeals the district court’s ruling on State Farm’s motion for summary judgment.

We affirm. We hold that the policy is unambiguous and enforceable. There is also no evidence that State Farm breached the policy or acted in bad faith when resolving the claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mabel L. Heredia v. Capital Management Services, L.P.,

Case No.: 19-1296

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

Focus: FDCPA Violation

Capital Management Services, L.P. (CMS) is a debt collector, and therefore regularly sends out dunning letters to debtors hoping to collect past-due debts. The Fair Debt Collection Practices Act (FDCPA) highly regulates the content of those letters to prevent debt collectors from using abusive practices that prey on vulnerable debtors. See 15 U.S.C. § 1692(e). Mabel L. Heredia received four collection letters from CMS—and claims that the language in this correspondence violated the FDCPA. CMS disagreed and filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), which the district court granted. Upon our de novo review (see Marquez v. Weinstein, Pinson & Riley, P.S., 836 F.3d 808, 810 (7th Cir. 2016)), we find that Heredia has plausibly alleged that the dunning letter violated the FDCPA. We therefore reverse the order dismissing the matter and remand to the district court for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Securities and Exchange Commission v. Gary S. Williky

Case No.: 19-1243

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

Focus: Abuse of Discretion – Judgment

Gary Williky appeals a judgment in favor of the Securities and Exchange Commission (“SEC”) that followed a bifurcated settlement agreement regarding Williky’s fraudulent conduct while working for the Indiana based company Imperial Petroleum, Inc. (“Imperial”). This court addressed the details of Imperial’s fraudulent scheme in United States v. Wilson, 879 F.3d 795 (7th Cir. 2018). Imperial fraudulently purchased finished biodiesel and resold it while claiming government incentives and tax-credits available to companies producing biodiesel from raw feedstock. Jeffery Wilson, Imperial’s ex-CEO, hired Williky to artificially inflate Imperial’s stock through a series of “wash and match trades” and “scalping” emails. In the 1990s, Williky similarly engaged in a pattern of “wash and match trades” for another company led by Wilson. As part of Imperial, Williky acquired millions of shares of its stock but failed to lawfully report his ownership levels when his shares surpassed five percent. At issue in this appeal is Williky’s conduct once the Imperial fraud unraveled. By July 2011, Williky knew Imperial misrepresented the source of its biodiesel to investors and, by November, knew the complete extent of Imperial’s fraud. Williky sold off the entirety of his Imperial shares by February 27, 2012, and avoided a loss of $798,217.

The SEC sued to permanently enjoin Williky from violating federal securities law, to enjoin Williky from acting as an officer or director of a public company, and to disgorge his financial gains. The SEC further sought to impose financial penalties, including a civil penalty for Williky’s insider trading. Before Williky faced his deposition, he entered into a bifurcated settlement with the SEC, conceding his involvement in the fraudulent scheme and agreeing that the district court would determine the financial remedies to be assessed. The SEC requested the statutory maximum civil penalty of $2,394,651 for insider trading, calculated as three times Williky’s avoided losses. Williky objected, arguing that the SEC’s proposed judgment ignored his cooperation with various governmental agencies investigating Imperial’s fraud. The district court denied the request for the maximum civil penalty as excessive and entered a judgment of $1,596,434, equal to two times the avoided losses. On appeal, Williky argues that the judgment still ignores his cooperation as a whistleblower and is thus an abuse of discretion. We find that the district court adequately assessed the value of Williky’s cooperation and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Brandon Shoffner

Case No.: 18-3448

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

Focus: Sentencing Guidelines – Resentencing

After Brandon Shoffner was convicted of unlawful possession of a firearm, he successfully appealed to this court his sentence of 84 months’ imprisonment, a sentence below the applicable Sentencing Guidelines range. In an unpublished order, we vacated that sentence because the district court had miscalculated the base offense level. We further noted that the district court had not specified whether its imposition of a six-level increase for punching the arresting officer, see U.S.S.G. § 3A1.2(c)(1), was based on a belief that it was required to find, as a matter of law, see United States v. Alexander, 712 F.3d 977, 978 (7th Cir. 2013), that the punch created a substantial risk of serious injury or whether the court had found, as a factual matter, that the punch created a serious risk of injury. We directed the district court to clarify whether it understood that U.S.S.G. § 3A1.2(c)(1) requires an explicit factual finding.

On remand, the district court, a different judge presiding, conducted a sentencing hearing. Even though our earlier decision had decreased his applicable advisory guidelines range, Mr. Shoffner received the same sentence. He now appeals again and submits that the district court erred procedurally by not explaining why it believed that the imposed sentence was appropriate and by failing to engage with his arguments in mitigation. After examination of the record, we conclude that these arguments have merit. The district court failed to explain adequately the reason for the sentence imposed and did not analyze as carefully as it should have the arguments submitted in mitigation. Accordingly, we vacate the judgment of the district court and remand the case for resentencing.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Planned Parenthood of Wisconsin v. Joshua L. Kaul, et al.

Case No.: 19-1835

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

Focus: Court Error – Abuse of discretion

A state can speak in litigation only through its agents and may select its agents without the interference of the federal courts. Typically, a state chooses to designate a singular attorney general to defend its interests, but nothing in the United States Constitution mandates this procedure, or even the existence of an attorney general position. The State of Wisconsin has chosen to have an attorney general as its representative, but it also has recently provided a mechanism by which its legislature (or either of its constitutive houses) can intervene to defend the State’s interest in the constitutionality of its statutes. Relying on this provision, the Wisconsin Legislature moved to intervene in this lawsuit in which the Wisconsin Attorney General was already defending state law. The district court denied the motion.

Though we acknowledge that federal law does not mandate that a state speak in a single voice, we conclude that Federal Rule of Civil Procedure 24 expresses a preference for it. The Legislature’s motion to intervene as of right was appropriately denied because the Legislature did not demonstrate that the Attorney General is an inadequate representative of the State’s interest absent a showing he is acting in bad faith or with gross negligence. The district court has discretion still to permit the Legislature to intervene as a second voice for the State, or even perhaps on its own behalf, but nothing in the record demonstrates an abuse of that discretion. We therefore affirm the district court’s decision in all respects.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey D. Lee

Case No.: 2018AP1507-CR

Officials: Kessler, Kloppenburg and Dugan, JJ.

Focus: Jury Instructions – Other-acts Evidence

Jeffrey D. Lee appeals a judgment of conviction, following a jury trial, for first-degree sexual assault of a child under the age of twelve. On appeal, Lee argues that: (1) the other-acts evidence was irrelevant and improperly admitted; (2) the trial court’s jury instructions regarding the use of other-acts evidence were confusing to the jury and prejudicial; and (3) his sentence was unduly harsh and excessive. We affirm.

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WI Court of Appeals – District III

Case Name: Faith A. Lowell v. Patricia Hammarback

Case No.: 2018AP1703

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

Focus: Estate – Attorney Fees

Faith Ann Lowell, pro se, appeals the judgment closing the probate estate of her mother, Faith Miriam Lowell. Faith Ann argues the circuit court erred by: (1) awarding $8500 in attorney’s fees to counsel for the estate; (2) concluding that the personal representative of the estate, Patricia Hammarback (Faith Ann’s sister), and counsel for the estate did not engage in various forms of misconduct; (3) allowing an online auction for the sale of artwork belonging to the estate and allowing Patricia to personally bid on that artwork; and (4) delaying in making various determinations related to certain real property located in Minnesota that was improperly included in the initial estate inventory. We reject Faith Ann’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Jay Link, et al. v. John Link, et al.

Case No.: 2018AP1715

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

Focus: Claim Preclusion – Fair Value and Corporate Misappropriation Claim

This appeal is the latest installment in a longstanding intrafamilial dispute between Jay Link; Jay’s brother, Troy Link; and their father, John (Jack) Link. The three Links owned various companies that produced and distributed meat products. In a prior lawsuit (hereinafter, the 2005 litigation), a jury found that Jack had breached his fiduciary duties to Jay, and Jay had breached his fiduciary duties to Link Snacks, Inc. (Link Snacks). The circuit court subsequently granted Link Snacks’ claim for specific performance of a Buy-Sell Agreement, which permitted Link Snacks to redeem Jay’s shares of the corporation at their fair market value. After the court entered judgment in the 2005 litigation, the parties stipulated to the dissolution of certain other jointly owned companies, including Link Snacks Global, Inc. (Link Global), in which Jay and Troy each held a 50% ownership interest.

Jay subsequently filed the instant lawsuit, asserting that Jack, Troy, and John Hermeier had each breached their fiduciary duties to him in various ways. As damages, Jay sought the difference between the fair value and the fair market value of his Link Snacks shares (hereinafter, the fair value claim). Jay later amended his complaint to assert additional claims against Jack, Troy, and Hermeier—both on his own behalf and on behalf of Link Global—alleging that they had acted to devalue Link Global’s most profitable subsidiary, Jack Link’s Canada Company (Link Canada), in order to decrease the value of Jay’s 50% share of Link Global (hereinafter, the corporate misappropriation claims).

Applying the doctrine of claim preclusion, the circuit court concluded Jay’s fair value claim was barred by the final judgment in the 2005 litigation. The court further concluded that Jay lacked standing to bring the corporate misappropriation claims on his own behalf, and that any derivative claim should have been brought on behalf of Link Canada, rather than Link Global. Jay now appeals, arguing the court erred by dismissing his fair value and corporate misappropriation claims. We agree with Jay that the court erred by dismissing his fair value claim because the exception to claim preclusion found in § 26(1)(c) of the Restatement (Second) of Judgments is applicable here, and Jay’s fair value claim is not barred by the applicable statute of limitations as argued by Jack, Troy, and Hermeier. We conclude, however, that the court properly dismissed Jay’s corporate misappropriation claims. We therefore affirm in part, reverse in part, and remand for further proceedings on Jay’s fair value claim.

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WI Court of Appeals – District III

Case Name: Shawano County v. Teresa K. Anderson, et al.

Case No.: 2018AP1894

Officials: HRUZ, J.

Focus: Court Error – Ordinance Compliance

Teresa Anderson, pro se, appeals an order compelling her compliance with Shawano County’s Health, Junk and Environmental Hazard Ordinance No. 7-09. The order permits Shawano County to enter onto Anderson’s property and, if necessary, remove items at Anderson’s expense so as to bring the property into compliance with the ordinance. Anderson argues the circuit court erred by entering the order. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Alan Lee Moore

Case No.: 2018AP2403-CR

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Abuse of Discretion – Other-acts Evidence

Alan Lee Moore appeals a judgment of conviction, following a jury trial, of trafficking a child as a party to a crime. Moore argues that the trial court erroneously exercised its discretion when it admitted other acts evidence of a previous conviction. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. C.M.

Case No.: 2019AP1483

Officials: BRASH, P.J.

Focus: Termination of Parental Rights

C.M. appeals an order of the trial court terminating her parental rights of M.K., Jr. C.M. asserts that the court erroneously exercised its discretion in entering a default judgment against her and then denying C.M.’s motion to vacate that default judgment without granting an evidentiary hearing. We affirm.

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WI Court of Appeals – District II

Case Name: Village of Mishicot v. Jodi A. Arseneau

Case No.: 2019AP541

Officials: NEUBAUER, C.J.

Focus: Equal Protection Violation

Village of Mishicot appeals from an order dismissing a citation for an ordinance violation against Jodi A. Arseneau. The circuit court’s dismissal was based on its conclusion that the Village violated Arseneau’s Fourteenth Amendment rights of equal protection by selectively prosecuting her. The Village argued that Arseneau failed to show a prima facie case of selective prosecution. We agree and therefore reverse and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael A. Nieman

Case No.: 2017AP1906-CR

Officials: KLOPPENBURG, J.

Focus: Abuse of Discretion – Restitution

Nieman, acting pro se, appeals a judgment of conviction and an order denying his postconviction motion. In his postconviction motion, Nieman raised only one issue, whether the circuit court erroneously exercised its discretion in ordering restitution. Nieman renews his argument on that issue on appeal. As I explain, Nieman’s argument fails because the record shows that the court properly exercised its discretion in ordering restitution. Nieman also raises several issues on appeal that he did not raise in the circuit court. Those issues include that the plea agreement did not include restitution, and that his trial and postconviction counsel were ineffective for failing to raise certain issues either at sentencing or as new factors in the postconviction motion. I do not address those issues because they are raised for the first time on appeal. Finally, Nieman argues that his probation was improperly revoked in a prior case, so that the probation ordered in this case should be the only sentence he is serving. That argument fails because it concerns a case different from this one. Accordingly, I affirm.

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WI Court of Appeals – District IV

Case Name: Tatiana S. Laiter v. Michael Lyubchenko

Case No.: 2018AP624

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

Focus: Divorce – Property Division

Michael Lyubchenko appeals the property division portion of a judgment dissolving his marriage to Tatiana Laiter. Lyubchenko argues that the circuit court erred by: (1) double counting Laiter’s interest in a business she owned and operated with a third party; (2) misapplying the marital waste doctrine; (3) erroneously determining the value of Laiter’s business; and (4) failing to rule on how the parties would split visitation-related travel expenses for their minor child. For the reasons discussed below, we affirm the judgment of the circuit court, and remand the matter to the circuit court for an exercise of its discretion on the issue of who will pay for visitation-related travel expenses.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Harland C.H. Swenson, Jr.,

Case No.: 2018AP980-CR

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

Focus: Ineffective Assistance of Counsel

Harland Swenson appeals a judgment of conviction and an order denying his motion for postconviction relief. The issue on appeal is whether his trial counsel was ineffective by not objecting to jury instructions that Swenson asserts failed to protect his right to a unanimous jury. We conclude that the law was not settled on this point, and therefore counsel’s performance was not deficient. We affirm.

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WI Court of Appeals – District IV

Case Name: Angelika A. Heintz v. Bruce Heintz

Case No.: 2018AP1372

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

Focus: Divorce – Maintenance Modification

In this divorce case, Angelika Heintz appeals postjudgment orders of the circuit court that reduced the amount of the monthly maintenance paid to her by her husband, Bruce Heintz, and required Angelika to refund to Bruce maintenance overpayment.  Angelika challenges the court’s decision that an increase in Angelika’s income was a substantial change in circumstances warranting the modification of maintenance, as well as other determinations made by the court in ordering the modified maintenance payments. Because the court failed to explain, and we cannot discern, a factually supported basis for the court’s decision as to a substantial change in circumstances, we reverse and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Alfonso C. Loayza

Case No.: 2018AP2066-CR

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

Focus: OWI – Sentencing Guidelines

Alfonso Loayza appeals a judgment of conviction for operating while intoxicated and an order denying his postconviction motion. We conclude that the State did not prove one of Loayza’s prior convictions, and therefore we reverse and remand for sentencing as a seventh offense.

As relevant to this appeal, Loayza pled guilty to operating while intoxicated (OWI). The circuit court determined that this was his eighth offense, and imposed a sentence of five years of initial confinement and five years of extended supervision. Loayza filed a postconviction motion arguing that the State failed to prove the existence of a prior OWI offense in California in 1990. The circuit court denied the motion, and Loayza appeals

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WI Court of Appeals – District IV

Case Name: Rachael Warrington, et al. v. City of Prairie Du Chien, et al.

Case No.: 2019AP95

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

Focus: Court Error – Recreational Immunity

Rachel and Kurt Warrington, individually and as the personal representatives of their son K.W.’s estate, appeal the circuit court order that dismissed their negligence claims against the City of Prairie du Chien and the Prairie du Chien Area School District. The Warringtons contend that the circuit court erred by applying the recreational immunity statute to conclude that the Warringtons failed to state a claim upon which relief may be granted. We agree with the circuit court that the statute applies and, therefore, we affirm the circuit court’s dismissal order.

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WI Court of Appeals – District IV

Case Name: Ashley M. Hinrichs v. Greg Griswold

Case No.: 2019AP161

Officials: GRAHAM, J.

Focus: Due Process Violation

Greg Griswold appeals pro se from a judgment of eviction that was entered by the circuit court after a jury trial. In this appeal, Griswold argues that the circuit court erred by refusing to convert the eviction action from a small claims matter to a matter tried under Wisconsin’s rules of civil procedure, thereby violating his due process rights. He also argues that the circuit court erroneously denied his motion for a new trial. I reject both arguments. Affirmed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Amanuel A. Ayele

Case No.: 2019AP432-CR

Officials: FITZPATRICK, P.J.

Focus: Waiver of Surcharge – Domestic Abuse Assessment

Amanuel Ayele appeals a judgment of conviction for battery, contrary to WIS. STAT. § 940.19(1), and orders of the circuit court denying his motions for postconviction relief and reconsideration. The judgment of conviction describes count 1 as “[WIS. STAT. §] 973.055(1) Domestic Abuse Assessments]” and as “Battery.” Postconviction, Ayele requested that the circuit court enter an amended judgment of conviction that omits the Domestic Abuse Assessment descriptor because the circuit court agreed at the plea and sentencing hearing to waive the surcharge that is mandatorily imposed under § 973.055(1). The circuit court denied Ayele’s motion, and also denied Ayele’s subsequent motion for reconsideration. I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scott A. Walker

Case No.: 2019AP1138-CR

Officials: BLANCHARD, J.

Focus: Ineffective Assistance of Counsel

Scott Walker, a resident of the Town of Fennimore in Grant County, was found guilty at a jury trial of “intentionally pointing a firearm at or toward” another person, contrary to WIS. STAT. § 941.20(1)(c), a misdemeanor. Walker appeals an order of the circuit court denying his motion for a new trial. The court rejected Walker’s argument that he was denied effective assistance of counsel at trial. Walker argued that his counsel was ineffective in failing to pursue a theory that Walker’s actions were justified under the privilege of defense of property under WIS. STAT. §§ 939.49(1), § 939.45(2).  I affirm because Walker fails to show prejudice.

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WI Court of Appeals – District IV

Case Name: G.K. v. S.C.

Case No.: 2019AP1645; 20191646; 20191647

Officials: GRAHAM, J.

Focus: Termination of Parental Rights

This is an appeal of a decision terminating S.C.’s parental rights to three children, E.S.K., M.A.K., and M.J.C. S.C. argues that the circuit court erred when it determined that there were grounds to terminate her parental rights under WIS. STAT. § 48.415(4). Specifically, she argues that an earlier order in a family court proceeding was defective and therefore cannot be the basis for terminating her parental rights. I affirm the judgment of the circuit court because S.C.’s argument is based on an incorrect interpretation of § 48.415(4).

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