Weekly Case Digests – December 23, 2019 – December 27, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Deborah Amling v. Harrow Industries LLC, et al.

Case No.: 19-1805

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

Focus: Court Error – Abuse of Discretion

Deborah Amling and her husband Robert sued Harrow Industries and other businesses in an Illinois state court for causing Robert to develop mesothelioma by exposing him to asbestos. Two years later, the Amlings sued Harrow again, this time in federal court, seeking a declaratory judgment on the meaning of an asset‐purchase agreement between Harrow and another company, Nexus, also a defendant in the Amlings’ state suit. The district judge thought the declaratory judgment action unripe and dis‐ missed it. Even if it were ripe, the judge ruled in the alternative, she would decline to exercise jurisdiction over it. The Amlings appealed. Robert died while this appeal has been pending; Deborah now prosecutes the state and the federal lawsuits in her own right and as representative of Robert’s estate.

We affirm. It is virtually certain that the Amlings’ state suit will answer the question presented by their federal suit: whether under the terms of the asset‐purchase agreement Harrow or Nexus could be liable for their injuries. That fact makes this a live controversy but simultaneously justifies the district court’s sound exercise of its discretion in deciding not to issue a declaratory judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jeremy Glispie   

Case No.: 19-1224

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

Focus: ACCA Violation

On January 23, 2018, the Government filed a single-count indictment against Jeremy Glispie for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Mr. Glispie entered a plea of guilty, but reserved the right to challenge his anticipated designation as an armed career criminal based on his prior convictions for residential burglary under Illinois law. Following our guidance, the district court concluded that residential burglary in Illinois is no broader than “generic burglary” and that it therefore qualifies as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). Consequently, it sentenced Mr. Glispie as an armed career criminal and imposed a sentence of 180 months.

Before this court, Mr. Glispie renews his objection to his designation as an armed career criminal based on his convictions for residential burglary under Illinois law. Acknowledging that our decision in Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016), is controlling, he urges us to revisit that decision. According to Mr. Glispie, Dawkins did not explore all of the relevant aspects of Illinois burglary. Had we fully considered the question, he submits, we would have reached the conclusion that residential burglary in Illinois covers a broader swath of conduct than generic burglary for purposes of the ACCA and, therefore, cannot be used as a predicate offense for purposes of the ACCA.

After considering the briefs and hearing oral argument, we conclude that Mr. Glispie has raised an important issue that has not been considered fully: whether the limited-authority doctrine applies to the Illinois residential burglary statute. As we will explain, if the limited-authority doctrine applies to residential burglary, then a conviction for Illinois residential burglary is broader than generic burglary and cannot qualify as an aggravated felony for purposes of the ACCA. If, however, the limited-authority doctrine does not apply to Illinois residential burglary, then a conviction under that statute is no broader than generic burglary and qualifies as an aggravated felony. Because the Supreme Court of Illinois has not made this determination, and because the question is likely to arise frequently and to affect the administration of justice in both the state and federal courts, we respectfully seek the assistance of the Supreme Court of Illinois by certifying this controlling question of law.

Decision

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7^th Circuit Court of Appeals

Case Name: Harold Stone, et al. v. Signode Industrial Group LLC, et al.

Case No.: 19-1601

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

Focus: Breach of Contract – Health-care Benefits

Defendant Signode Industrial Group LLC assumed an obligation to pay health-care benefits to a group of retired steelworkers and their families. Signode then exercised its right to terminate the underlying benefits agreement. When it terminated the agreement, Signode also stopped providing the promised benefits to the retired steelworkers and their families, despite contractual language providing that benefits would not be “terminated … notwithstanding the expiration” of the underlying agreement. This appeal presents a single question of contract interpretation: whether the agreement in question provided for vested benefits that would survive the agreement’s termination. We hold that the contract provided for vested lifetime benefits and affirm the district court’s permanent injunction ordering Signode to reinstate the retirees’ benefits.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States v. Adrian Grisanti

Case No.: 18-2993; 19-1576

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

Focus: Sentencing Guidelines

Appellant Adrian Grisanti was convicted of child-pornography offenses and destruction of evidence. On appeal, he challenges the denial of his motion to suppress evidence and the length of his sentence. We affirm on both issues. We have already held that the good-faith exception applies to the same warrant at issue in this case, which authorized the use of a sophisticated technique to identify users of a child-pornography website. See United States v. Kienast, 907 F.3d 522, 529 (7th Cir. 2018). Grisanti’s reasons for reconsidering Kienast are not persuasive. Also, his sentence was not unreasonable and the district court did not make any procedural error.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Joseph P. Pamonicutt

Case No.: 2018AP459-CR

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

Focus: Ineffective Assistance of Counsel

Joseph Pamonicutt appeals a judgment, entered upon a jury’s verdict, convicting him of one count of aggravated battery and one count of burglary of a building or dwelling, both counts as a party to the crime. He also appeals an order denying him postconviction relief. Pamonicutt contends that his trial attorney provided ineffective assistance by failing to adequately “safeguard” his constitutional rights to testify in his own defense and to confront a witness against him. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: Eagle Cove Camp & Conference Center, Inc., et al. v. County of Oneida, et al. 

Case No.: 2018AP940

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

Focus: Claim Preclusion

Eagle Cove Camp & Conference Center, Inc., and Arthur, Wesley, and Randall Jaros, as trustees of various family trusts (collectively, “Eagle Cove”), appeal an order dismissing their claims asserting various violations of their rights under the Wisconsin Constitution. These violations allegedly stem from Oneida County’s and the Oneida County Board of Adjustment’s refusal years ago to rezone certain real property on Squash Lake or to grant a conditional use permit on that property so that Eagle Cove could develop a year-round Bible camp.

Eagle Cove previously litigated numerous claims relating to these denials in federal court, including a claim for a violation of Eagle Cove’s religious liberties under article I, section 18 of the Wisconsin Constitution. The federal district court, exercising both federal question and supplemental jurisdiction, dismissed all of Eagle Cove’s civil claims on their merits, including its claim under the Wisconsin Constitution. The court declined, however, to take supplemental jurisdiction of a certiorari claim Eagle Cove had advanced against the board of adjustment, preferring to have that claim adjudicated in state court given the limited scope of certiorari review.

Eagle Cove subsequently commenced the present action, seeking not only certiorari review but also advancing a variety of civil claims under the Wisconsin Constitution. The circuit court dismissed the non-certiorari claims based upon its conclusion that claim preclusion applied, insofar as Eagle Cove brought or could have brought the civil claims as part of its federal action. Eagle Cove appeals this determination and the denial of its motion for reconsideration, in which it asserted that claim preclusion should not apply because of an intervening change in the case law governing one of its federal law claims.

We conclude the circuit court properly dismissed Eagle Cove’s non-certiorari claims and denied its motion for reconsideration. The parties in the federal action were the same as in this action, the federal litigation resulted in a judgment on the merits, and the claims in the two actions all arise out of the same transaction. Accordingly, Eagle Cove was required to bring all of its claims in that action. Further proceedings in state court are limited to Eagle Cove’s certiorari claim, which the district court dismissed without prejudice.

The Town of Woodboro cross-appeals, asserting Eagle Cove’s commencement and continuation of the state court action against it was frivolous. Applying WIS. STAT. § 895.044 (2017-18), we agree that Eagle Cove’s action against the Town was frivolous. Because Eagle Cove did not withdraw or correct the frivolous filings after being served with a motion for sanctions, we conclude the circuit court was required to award the Town damages consisting of the actual costs it incurred as a result of the frivolous action. We affirm the circuit court’s decision in all other respects, but we reverse on the issue of sanctions and remand the matter to the circuit court for a determination of damages.

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WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Brian Fisher v. Brian Hayes

Case No.: 2018AP1379

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

Focus: ALJ Error – Extended Supervision

Brian Fisher appeals a circuit court decision on certiorari review, affirming a Wisconsin Department of Hearings and Appeals’ (the Department) decision affirming an administrative law judge’s (ALJ) decision revoking Fisher’s extended supervision. We affirm.

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WI Court of Appeals – District III

Case Name: Superior Water, Light and Power Company v. Certain Underwriters at Lloyds, et al.

Case No.: 2018AP1926

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

Focus: Insurance Claim – Coverage

This case concerns an insurance coverage dispute regarding three excess liability insurance policies issued to Superior Water, Light and Power Company (Superior Water) in 1970 by a host of insurance companies (collectively, the London Market Insurers (LMI)). In the circuit court, Superior Water sought a declaration that the policies obligated LMI to indemnify Superior Water for environmental contamination cleanup costs associated with a former manufactured gas plant site (the Site). The circuit court granted LMI’s motion to dismiss after concluding that the term “one event,” as used in the policies’ definition of a coverage-triggering occurrence, referred solely to a leak or spill of contaminants during the policy period.

On appeal, Superior Water argues the circuit court erred by adopting a narrower definition of the term “one event” than is supported by the plain meaning of that term. We agree with Superior Water insomuch as we conclude that the policies’ occurrence definition is ambiguous. Given the existing record and procedural posture of this case, we are unable to properly analyze and resolve the legal ramifications of our concluding that the subject language is ambiguous. Therefore, we remand for further proceedings consistent with this opinion.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.L.M.

Case No.: 2019AP1599; 2019AP1600; 2019AP1601

Officials: KESSLER, J.

Focus: Termination of Parental Rights

A.L.M. appeals the orders terminating his parental rights to three of his children, S.-L.E.M., S.M.M., and D.G-H. A.L.M. contends that there was insufficient evidence for the circuit court to determine that termination was in the children’s best interests and that the circuit court erroneously exercised its discretion in terminating his parental rights. We affirm.

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Z.J.

Case No.: 2019AP1623; 2019AP1624; 2019AP1625; 2019AP1626

Officials: DUGAN, J.

Focus: Termination of Parental Rights

Z.J. appeals the orders terminating her parental rights to her four biological children. The only issue on appeal is Z.J.’s argument that the trial court erroneously exercised its discretion when it entered default judgment against her during the grounds phase of the petitions to terminate her parental rights to her children.  We disagree and, therefore, affirm the trial court’s orders.

WI Court of Appeals – District II

Case Name: Anushree Mehrotra, et al. v. William M. Campbell, et al.

Case No.: 2018AP1758

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

Focus: Abuse of Discretion – Expert Witness

Anushree Mehrotra and Himanshu Sharma (collectively, the Sharmas) appeal from an order granting summary judgment to Robert Krecak. They contend that the circuit court erroneously exercised its discretion in concluding that their witness, James Jendusa, was not qualified to give an expert opinion, which was necessary to advance their claims against Krecak. We reverse and remand for further proceedings.

WI Court of Appeals – District II

Case Name: V.A. v. M.W.P.

Case No.: 2019AP1098

Officials: GUNDRUM, J.

Focus: Termination of Parental Rights

M.W.P., E.W.P.’s biological father, appeals from an order of the circuit court terminating his parental rights to E.W.P. For the following reasons, we affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jenifer A. Will

Case No.: 2016AP7100-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Suppression of Evidence – Good-faith Exception

The State appeals a circuit court order suppressing blood draw evidence. The State argues that the unconscious driver provision in the implied consent law authorized the blood draw or, alternatively, that the police relied in good faith on the provision. We reject the narrow argument that Will makes on appeal regarding the good faith exception and conclude that the evidence should not have been suppressed because the police relied on the unconscious driver provision in good faith. We reverse.

WI Court of Appeals – District IV

Case Name: McKean Real Estate, LLC, v. Nancy Marquardt

Case No.: 2018AP631

Officials: BLANCHARD, J.

Focus: Damages

Nancy Marquardt appeals the order of the circuit court in this landlord-tenant small claims dispute. McKean Real Estate, LLC, attempts in its briefing to contest part of the circuit court’s order, but has failed to file the requisite notice of appeal or cross-appeal. The court awarded monetary damages to both McKean and Marquardt, which when netted resulted in a judgment in favor of McKean. I reject Marquardt’s arguments, disregard McKean’s purported cross-appeal, and accordingly affirm.

WI Court of Appeals – District IV

Case Name: Sharon Haynes v. Labor Industry Commission, Department of Workforce Development, et al.

Case No.: 2018AP1581

Officials: Blanchard, Kloppenburg and Nashold, JJ.

Focus: ALJ Error – Discrimination Claim

Sharon Haynes appeals pro se from a circuit court order that upheld the Labor and Industry Review Commission’s decision rejecting Haynes’s discrimination claim against Blain’s Farm & Fleet. Haynes argues (1) that the Commission made an erroneous finding of fact, (2) that the Commission and administrative law judge (ALJ) unfairly declined to consider new evidence, and (3) that the commissioners should have recused themselves. We reject these arguments and affirm

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Danielle Rose Melby

Case No.: 2018AP1930-CR

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

Focus: Sentence Modification

Danielle Melby appeals a judgment of conviction for homicide by intoxicated use of a vehicle. She also appeals the circuit court’s order denying her motion for postconviction relief.

The homicide charge against Melby arose out of an auto accident in which her boyfriend was killed as a result of Melby’s intoxicated driving. Melby pled no contest to the charge. The circuit court sentenced Melby to a seven-year prison term consisting of three years of initial confinement and four years of extended supervision. In her postconviction motion, Melby argued that her sentence was based on inaccurate information and that there was a new factor justifying sentence modification. The circuit court denied the motion. Melby renews these same arguments on appeal. We affirm

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jae M. Robinson

Case No.: 2018AP2055-CR

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

Focus: Court Error – Other Acts Evidence

Jae Robinson appeals a judgment of conviction for first-degree intentional homicide and for substantial battery as party to a crime. He also appeals the circuit court’s order denying his motion for post-conviction relief. Robinson argues that (1) the circuit court erred by admitting other-acts evidence, (2) his trial counsel was ineffective, and (3) he should receive a new trial in the interest of justice. We affirm.

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael S. Greenwald

Case No.: 2018AP2426-CR

Officials: Blanchard, Kloppenburg and Graham, JJ.

Focus: Sufficiency of Evidence

Michael Greenwald appeals a judgment of conviction for felony bail jumping, forgery, uttering a forgery, identity theft, and other crimes. Greenwald argues that the evidence was insufficient to convict him of the felony bail jumping charge. He also argues that the circuit court erred in admitting other acts evidence. We reject these arguments and affirm.

WI Court of Appeals – District IV

Case Name: William Louis Hughes v. Allstate Indemnity Company

Case No.: 2019AP1234

Officials: FITZPATRICK, P.J.

Focus: Insurance Claim – Coverage

William Hughes appeals an order of the circuit court dismissing Hughes’ small claims action against Hughes’ insurer, Allstate Indemnity Company. Hughes sued Allstate, alleging that losses Hughes sustained when water from an outside spigot seeped into his basement are covered under a homeowners insurance policy issued to Hughes by Allstate. The circuit court concluded that provisions in the policy precluded coverage for Hughes’ loss. I affirm.

WI Court of Appeals – District IV

Case Name: LaCrosse County v. J.M.A.

Case No.: 2019AP1258-FT

Officials: NASHOLD, J.

Focus: Prisoner – Involuntary Commitment

J.M.A. appeals an order extending his involuntary commitment. He argues that La Crosse County failed to adduce clear and convincing evidence that he was dangerous, as required by WIS. STAT. § 51.20. The circuit court’s order is affirmed.

WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Ricardo Perez

Case No.: 2019 WI 99

Focus: Attorney Disciplinary Hearing

We review Referee Kim M. Peterson’s report and recommendation that the court declare Attorney Ricardo Perez in default and suspend his license to practice law in Wisconsin for a period of nine months for professional misconduct in connection with his representation of four clients. The referee also recommended that Attorney Perez pay the full costs of this proceeding, which are $1,957.12 as of August 21, 2019.

Since no appeal has been filed, we review the referee’s report pursuant to Supreme Court Rule (SCR) 22.17(2). After reviewing the matter, we agree with the referee that, based on Attorney Perez’s failure to answer the Office of Lawyer Regulation’s (OLR) complaint, the OLR is entitled to a default judgment. We also agree with the referee that a nine-month suspension of Attorney Perez’s law license is an appropriate sanction for his professional misconduct. Finally, we agree that Attorney Perez should be required to pay the full costs of this proceeding.

Affirmed

Concur:

Dissent:

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