Weekly Case Digests – January 6, 2019 – January 10, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Fabick, Inc., v. JFTCO, Inc.,

Case No.: 19-1760; 19-1872

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

Focus: Jury Instructions

Two non-competing Midwestern companies operated by brothers used marks containing the family name, Fabick. The owner of the registered mark (or “senior user”) (Fabick, Inc., or “FI”), a small manufacturer of sealants, sued the “junior user” (JFTCO, Inc.), a larger distributor of Caterpillar equipment, for trademark infringement. In a mixed verdict, a jury found that JFTCO had violated the Lanham Act but had not committed common law infringement. FI sought an order permanently enjoining JFTCO from using the name “Fabick,” but the district court entered limited injunctive relief requiring that JFTCO issue, for five years, disclaimers clarifying that it is not associated with FI.

Both parties appealed. FI complains that the district court erred in setting remedies: it should have entered a broad permanent injunction against JFTCO, and further should have allowed FI to recover JFTCO’s profits. JFTCO, in its counter-appeal, seeks reversal of the jury’s finding that it violated the Lanham Act based on an allegedly erroneous jury instruction and the district court’s refusal to overturn the jury’s verdict as a matter of law. We now affirm on each issue.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Clarisha Benson, et al. v. Fannie May Confections Brands, Inc.,

Case No.: 19-1032

Officials: WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.

Focus: FDCA Violation

Proving that almost anything can give rise to litigation, this case concerns chocolates that Clarisha Benson and Lorenzo Smith purchased at their local Fannie May stores in Chicago. Upon opening their boxes of candy, Benson and Smith were dismayed to find that the boxes were not brimming with goodies. Far from it: the boxes appeared to be only about half full. Believing that they had been duped, they sued Fannie May on behalf of themselves and a putative class, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1– 505/12, and asserting claims for unjust enrichment and breach of implied contract. The plaintiffs contend that Fannie May’s boxes of chocolate contain needless empty space, and that this practice misleads consumers. After allowing Benson and Smith to amend their complaint, the district court granted Fannie May’s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint with prejudice. The court found that the plaintiffs had not adequately pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301–399, and that the FDCA preempted their state-law claims. We affirm the judgment, though on other grounds.

Affirmed

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7^th Circuit Court of Appeals

Case Name: CSI Wordlwide, LLC, v. Trumpf Inc.,

Case No.: 19-2189

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

Focus: Bankruptcy – Judicial Estoppel

TRUMPF Inc., the U.S. subsidiary of an international business, makes specialty tools such as precision laser cutters. Trade shows are among its selling venues, and it hired Lynch Exhibits to handle its appearance at 2017 FABTECH show in Chicago. Lynch subcontracted with CSI Worldwide to provide some of the necessary services.

CSI contends that it told TRUMPF that it was unsure of Lynch’s reliability and would do the work only if TRUMPF paid it directly or guaranteed Lynch’s payment. According to CSI, TRUMPF assented – though it did not sign any undertaking to that effect. CSI did the work and billed Lynch, which did not pay. CSI filed an involuntary bankruptcy petition against Lynch, which soon filed a voluntary bankruptcy petition. CSI claimed approximately $530,000 as a creditor. It also filed this suit against TRUMPF under the diversity jurisdiction, seeking $530,000 on theories including unjust enrichment and promissory estoppel. The district court dismissed the suit on the pleadings, ruling that, by making a claim in Lynch’s bankruptcy, CSI necessarily represented that Lynch is the sole debtor. The district court called its approach judicial estoppel.

This is not a novel problem, and the Bankruptcy Code itself provides the answer. Filing a claim in bankruptcy does not foreclose claims against non-bankrupt obligors. Even a discharge in bankruptcy does not do that. 11 U.S.C. § 524(e). Many decisions recognize that a claim in bankruptcy does not block recovery from third parties such as guarantors or jointly responsible persons. See, e.g.., In re Shondel, 950 F.2d 1301, 1306 (7^th Cir. 1991). See also Union Carbide Corp. v. Newboles, 686 F.2d 593, 595 (7^th Cir. 1982) (same outcome under §16 of the Bankruptcy Act of 1898, which preceded the Bankruptcy Code of 1978).

CSI may or may not have a good claim on the merits – and TRUMPF may or may not have a defense that it has paid what it owes. These matters must be resolved on remand.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Sauk Prairie Conservation Alliance v. United States Department of the Interior, et al.

Case No.: 18-2213

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

Focus: Property Act and NEPA Violations

The National Park Service donated more than 3,000 acres in central Wisconsin to the state’s Department of Natural Resources. The goal was to turn the site of a Cold War munitions plant into a state park designed for a variety of recreational uses. That land now makes up the Sauk Prairie Recreation Area (“Sauk Prairie Park”). The Sauk Prairie Conservation Alliance (“the Alliance”), an environmentalist group, sued to halt three activities now permitted at the park: dog training for hunting, off-road motorcycle riding, and helicopter drills conducted by the Wisconsin National Guard. The defendants include the Department of the Interior, the National Park Service, and several federal officers. The State of Wisconsin intervened.

The Alliance invokes two federal statutes. The first is the Property and Administrative Services Act (“the Property Act”), which, among other things, controls the terms of deeds issued through the Federal Land to Parks Program, 40 U.S.C. § 550, the program that led to the creation of Sauk Prairie Park. The statute requires the federal government to enforce the terms of any deed it issues. And here, the relevant deeds provide that Wisconsin must use Sauk Prairie Park for its originally intended purposes. The Alliance argues that dog training and motorcycle riding are inconsistent with the park’s original purposes because neither was mentioned in Wisconsin’s initial application. So, the argument goes, the statute requires the National Park Service to enforce the deeds by taking action to end those uses. The Property Act also requires, with some important qualifications, that any land conveyed through the program must be conveyed for recreational purposes. The Alliance argues that this provision precludes military helicopter training.

The second statute at issue is the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. The Alliance claims that the federal defendants violated NEPA by failing to prepare an environmental-impact statement prior to approving these three uses. The district court entered summary judgment for the defendants on all claims, and we affirm. To start, the National Park Service’s approval of these three uses did not violate the Property Act. Dog training and off-road motorcycle riding were not explicitly mentioned in the State’s initial application, but both are recreational uses and therefore consistent with the original purposes of Sauk Prairie Park. And while military helicopter training is obviously not recreational, the National Park Service included a provision in the final deed explicitly reserving the right to continue the flights, and the Property Act authorizes reservations of this kind.

As for the NEPA claim, the Alliance failed to show that the National Park Service acted in an arbitrary and capricious manner. The agency reasonably concluded that its approval of both dog training and off-road motorcycle riding fell within a categorical exclusion to NEPA’s requirements—an exclusion for minor amendments to an existing plan. Helicopter training, on the other hand, likely doesn’t fall within that category. Still, the National Park Service was not required to prepare an environmental-impact statement for this use because the agency had no authority to discontinue the flights. Because the Park Service had no discretion, it was not required to prepare an environmental-impact statement.

Affirmed

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7^th Circuit Court of Appeals

Case Name: George Burciaga v. Alex Moglia

Case No.: 19-2246

Officials: BAUER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Bankruptcy – Exemptions

George Burciaga lost his job in May 2018 and filed for bankruptcy a week later. On the date the bankruptcy proceeding began, Burciaga’s former employer owed him approximately $24,000 for unused vacation time. Illinois, where Burciaga lives, treats vacation pay as a form of wages. 735 ILCS 5/12-801 (final paragraph, defining “wages” to include all compensation that an employer owes to an employee). Exemptions for debtors in Illinois rest on state law, for it has exercised its right under 11 U.S.C. §522(b)(2) to make local exemptions exclusive. See 735 ILCS 5/12-1201. Burciaga asked the district court to treat 85% of the vacation pay as exempt from creditors’ claims. (Illinois permits creditors to reach 15% of unpaid wages but forbids debt collection from the rest. 735 ILCS 5/12-803.) Alex Moglia, the Chapter 7 Trustee, objected to this request. Both a bankruptcy judge and a district judge sided with the Trustee. 602 B.R. 675 (N.D. Ill. 2019).

The district judge concluded that unpaid wages are not exempt in bankruptcy. That’s not because of anything in the federal statute, which points to state law as a source of exemptions. Nor is it because of anything in Illinois law, which exempts 85% of unpaid wages from all forms of collection authorized by state law. Rather, the district judge stated, it is because Illinois did not “intend” to exempt vacation pay from creditors’ claims in bankruptcy, as exemplified by the fact that the state’s statutes do not specifically mention bankruptcy law. The only intent the district judge could find was to exempt vacation pay (and other employment-related compensation) from creditors’ claims in state court, through garnishment and similar proceedings.

Because 85% of unpaid wages are exempt from creditors’ claims in Illinois, and vacation pay is a form of wages, the decision of the district court is reversed.

Reversed

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7^th Circuit Court of Appeals

Case Name: Amy Harnishfeger v. United States of America, et al.

Case No.: 18-1865

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

Focus: 1^st Amendment Violation

This appeal deals with First Amendment protection for public employees when they engage in speech that is not related ortied to their work. Plaintiff Amy Harnishfeger authored a short book, published under a pseudonym, about her time as a phone‐sex operator called Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations. A month after publishing Conversations, Harnishfeger began what was to have been a one‐year stint with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, a federal antipoverty program administered by the Corporation for National and Community Service (CNCS).

But when Harnishfeger’s National Guard supervisor discovered Conversations and identified Harnishfeger as its author, she demanded that CNCS remove Harnishfeger from her position. CNCS complied. Harnishfeger was unable to find another suitable placement for the remainder of her VISTA service, so, three months after she started, CNCS cut her from the program entirely. Harnishfeger filed this suit alleging violations of her rights under the First Amendment and the Administrative Procedure Act (APA). The district court granted the defendants’ motions for summary judgment. Harnishfeger v. United States, 2018 WL 1532691 (S.D. Ind. March 29, 2018). Harnishfeger appeals.

We reverse in part and affirm in part. Conversations with Monsters is clearly protected speech, and on this record, a jury could find that Harnishfeger’s National Guard supervisor, Lieutenant Colonel Lisa Kopczynski, infringed her free‐speech rights by removing her from her placement because of it. We find no basis, however, for holding CNCS or its employees liable, so we affirm the judgment in favor of the federal defendants

Reversed in part. Affirmed in part.

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7^th Circuit Court of Appeals

Case Name: David Mueller v. City of Joliet, et al.

Case No.: 18-3609

Officials: WOOD, Chief Judge, and BAUER and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation – Uniformed Service Members Employment and Reemployment Rights Act

Sergeant David Mueller took a leave of absence from the City of Joliet Police Department to report for active duty in the Illinois National Guard Counterdrug Task Force. When the Joliet Police Department placed him on unpaid leave, Mueller resigned from his National Guard position and sued the City of Joliet and his supervisors for employment discrimination. The issue on appeal is whether the Uniformed Service Members Employment and Reemployment Rights Act (“USERRA”), which prohibits discrimination against those in “service in a uniformed service,” protects Mueller’s National Guard duty.

Mueller sued under USERRA, claiming that the Joliet Police Department’s denial of compensation and benefits while he was on National Guard duty amounted to illegal, anti-military discrimination. The defendants moved to dismiss the complaint, arguing that his National Guard counterdrug duty was authorized under Illinois law and not covered by USERRA. The district court judge agreed and granted the defendants’ motion to dismiss. Mueller appeals and argues that “service in the uniformed services” explicitly covers full-time National Guard duty, including counterdrug activities under 32 U.S.C. §§ 112 and 502(f). We find that the plain language of USERRA covers Title 32 full-time National Guard duty and reverse the district court’s dismissal.

Reversed

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7^th Circuit Court of Appeals

Case Name: Risa Stegall v. Andrew M. Saul

Case No.: 18-2345

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

Focus: Abuse of Discretion – Sufficiency of Evidence

Risa Stegall applied and interviewed for a service representative position with the Social Security Administration (“SSA”) in 2010. Stegall claims she received an offer of employment at the end of her interview. Stegall subsequently disclosed her physical and mental disabilities, which she claims prompted the SSA to rescind the employment offer. The SSA denied offering Stegall a position, stating it never extends offers of employment during interviews. Instead, the SSA deemed Stegall not motivated for public service due to her answers in the interview. The SSA preferred two applicants over Stegall—one who had accepted another position and one with a disability who accepted the position.

Stegall filed an employment discrimination claim with the SSA, claiming discrimination based on race and her mental and physical disabilities. The SSA denied Stegall’s claim and she appealed to the Equal Employment Opportunity Commission. Stegall then filed a discrimination claim in the district court. Prior to trial, Stegall dismissed her race and mental disability discrimination claims. At trial, the jury found that Stegall had a disability, that the SSA regarded her as having a disability, and that the SSA failed to hire Stegall. However, the jury found that even without her physical disability, Stegall would not have been hired.

Stegall appeals, claiming the jury verdict went against the manifest weight of the evidence and that the court abused its discretion in allowing certain evidence to be admitted. We conclude that the district court did not commit reversible errors and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Risa Stegall v. Andrew M. Saul

Case No.: 18-2345

Officials: WILLIAM J. BAUER, Circuit Judge DANIEL A. MANION, Circuit Judge AMY J. ST. EVE, Circuit Judge.

Focus: Amended Opinion

The opinion of this court issued on December 4, 2019, is amended as follows: Page 3, “Fed. R. Evid. 59” should be “Fed. R. Civ. P. 59.”

Decision

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7^th Circuit Court of Appeals

Case Name: United States of America v. Nicholas Edwards

Case No.: 18-3282

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

Focus: Sentencing – Supervised Release

Nicholas Edwards pleaded guilty to failing to register as a sex offender, in violation of the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250—his fourth conviction for a failure to register a change of address as required by state and federal statutes. The district court ordered him to serve a prison term of 27 months and imposed three conditions that will govern his supervised release at the conclusion of that term: (1) a requirement that, as required by his probation officer, he inform employers, neighbors and family members with children, and others of his criminal record, his obligation to register as a sex offender, and the other requirements imposed by SORNA; (2) a ban on meeting, spending time with, or communicating with any minor absent the express permission of the minor’s parent or guardian and the probation officer; and (3) a bar to working in any job or participating any volunteer activity in which he would have access to minors, absent prior approval of his probation officer. Finding no flaw in any of these conditions, we affirm the judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District IV

Case Name: Ashley M. Hinrichs v. Greg Griswold

Case No.: 2019AP161

Officials: Sheila T. Reiff

Focus: Amended Opinion

PLEASE TAKE NOTICE that corrections were made to paragraphs 3, 7 and 11 in the above-captioned opinion which was released on November 7, 2019. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District III

Case Name: Estate of Kevin L. Payette, et al., v. David E. Marx, et al.

Case No.: 2018AP627

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

Focus: Estate – Insurance Claim – Liability

In this wrongful death and survival action, David Marx and his insurer, 1st Auto Casualty Insurance Company (collectively, 1st Auto), appeal a judgment awarding prejudgment interest at the rate of 12 percent per year under WIS. STAT. § 628.46 (2015-16) to the Estate of Kevin Payette and Payette’s minor children, Alexis and Natalie Payette. Section 628.46(1) requires an insurer to “promptly pay every insurance claim” within thirty days of an insurer being provided “written notice of the fact of a covered loss and of the amount of the loss” unless “the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Id.

In Kontowicz v. American Standard Insurance Co., our supreme court concluded that WIS. STAT. § 628.46 is applicable in the context of, as here, third-party liability claims. See Kontowicz v. American Standard Ins. Co., 2006 WI 48, ¶2, 290 Wis. 2d 302, 714 N.W.2d 105, clarified on denial of reconsideration, 2006 WI 90, ¶3, 293 Wis. 2d 262, 718 N.W.2d 111. However, the Kontowicz court limited its “holding to only those situations in which three conditions to trigger the interest are met.” Kontowicz, 290 Wis. 2d 302, ¶2. Namely, a third-party claimant is entitled to prejudgment interest under § 628.46 where: (1) “there can be no question of liability on the part of the insured”; (2) “the amount of the damages [is] in a sum certain amount”; and (3) “the claimant [provides] written notice of both liability and the sum certain amount owed” to the insurer. Kontowicz, 290 Wis. 2d 302, ¶2.

On appeal, 1st Auto contends the circuit court erred in concluding that the Estate satisfied any of those three conditions. In addition, 1st Auto argues the court erred by concluding that 1st Auto lacked reasonable proof that it would not be responsible for payment of the Estate’s claims.

We confine our analysis to Kontowicz’s “sum certain” condition, as we conclude it is the dispositive issue in this appeal. We determine that this condition is not satisfied where a third-party claimant relies upon an assertion of general damages to support a demand that an excess insurer pay a specific amount, and the insurer reasonably concludes it is not certain the amount demanded is the amount it may actually owe the claimant. Such was the case here, as 1st Auto reasonably concluded that it would not ultimately owe the Estate its demanded sum (1st Auto’s $1,000,000 policy limit). The reasonableness of 1st Auto’s conclusion was confirmed by—but not dependent upon—the fact that a jury ultimately determined that 1st Auto actually owed the Estate only $172,806.42. Accordingly, we reverse the judgment insofar as it awarded WIS. STAT. § 628.46 prejudgment interest on the jury’s damages award.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lacasanova S. Davis

Case No.: 2018AP1936-CR

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

Lacasanova S. Davis appeals from a judgment, entered upon a jury’s verdicts, convicting him on two counts of second-degree sexual assault. Davis contends there was insufficient evidence to support the verdicts. We disagree and affirm the judgment.

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WI Court of Appeals – District II

Case Name: William Sesing Construction, Inc., v. American Bank

Case No.: 2018AP1126

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

Focus: Negligence Claim – Uniform Fiduciaries Act

William Sesing Construction, Inc., (Sesing) appeals from a judgment dismissing its breach of contract and negligence claims brought against American Bank after Sesing’s bookkeeper embezzled funds from Sesing’s business checking account held by American Bank. Sesing argues that the circuit court erred in granting summary judgment insofar as it applied the Uniform Fiduciaries Act (UFA), WIS. STAT. § 112.01 (2017-18), to Sesing’s negligence claim, and by concluding that even without applying the UFA’s stricter standard, Sesing failed to set forth any materially disputed fact that would entitle it to relief. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Matthew J. Steinhorst

Case No.: 2018AP1759-CR

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

Focus: Court Error – Abuse of Discretion

Matthew Steinhorst appeals a judgment of conviction for homicide by intoxicated use of a vehicle. Steinhorst and James Wedekind were both in a vehicle which left the road, rolled over, and caused Wedekind’s death. Steinhorst was charged with multiple vehicular offenses relating to the crash. Before trial, Steinhorst requested that the Sauk County Circuit Court allow him to introduce evidence of character traits and habit pursuant to WIS. STAT. §§ 904.04(1)(a) and (b) and 904.06(1) (2017-18). Steinhorst argued that such evidence would prove, circumstantially, that Wedekind, and not Steinhorst, was the driver of the vehicle at the time of the incident. The circuit court denied Steinhorst’s motion. Steinhorst contends that the circuit court erroneously exercised its discretion in denying his motion. Steinhorst asks this court to reverse those rulings of the circuit court and his judgment of conviction and remand this matter for a new trial. We conclude that the circuit court did not erroneously exercise its discretion in denying Steinhorst’s motion. Therefore, we affirm Steinhorst’s conviction.

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WI Court of Appeals – District IV

Case Name: Phillip Byrd v. Donald Strahota, et al.

Case No.: 2018AP1996

Officials: BLANCHARD, J.

Focus: Small Claims – Motion for Reconsideration Denied

Phillip Byrd, pro se, appeals an order of the circuit court dismissing his small claims action against employees of the Wisconsin Department of Corrections, and the court’s denial of his motion for reconsideration. The court dismissed Byrd’s complaint on the ground that he failed to follow the requirement in WIS. STAT. § 893.82(5) that claimants serve the attorney general with notices of claim by certified mail. Byrd makes several arguments on appeal, each of which I reject, and accordingly affirm.

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WI Court of Appeals – District I

Case Name: Western National Mutual Insurance Company, et al. v. Advanced Disposal Services Waste Midwest, LLC.

Case No.: 2018AP2213

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

Focus: Damages

American Wood Recycling, Inc. alleges in this action that Advanced Disposal Services Solid Waste Midwest, LLC, negligently overloaded one of American Wood’s semi-trailers, resulting in damage to the trailer. At trial, the jury was asked to determine, regardless of any special verdict question addressing negligence or contributory negligence, what amount of money would “fully compensate” American Wood for “the damage to the trailer,” and the jury answered $25,000. On a motion by American Wood, the circuit court changed the damages verdict to $50,289, which is the precise amount reflected on an invoice submitted by the mechanic who repaired the trailer after the loading incident. On appeal, Advanced Disposal argues in pertinent part that the court’s order changing the damages verdict must be reversed because the jury’s answer was supported by credible evidence. We agree and accordingly reverse and remand with directions to reinstate the jury’s damages answer.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John L. Lomax

Case No.: 2018AP2267-CR

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

Focus: Abuse of Discretion – Testimony

John L. Lomax appeals a judgment of conviction and sentence for 40 counts of possession of child pornography. Lomax contends that the circuit court erred by allowing the State to introduce trial testimony that officers identified a total of 315 “concerning” images on Lomax’s computer, since he was charged with possessing only 40 of those images. We need not and do not decide whether the court erroneously exercised its discretion in allowing this testimony, since we conclude that any error was harmless. We affirm.

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WI Court of Appeals – District IV

Case Name: Kevin Fields v. Colonial Savings FA

Case No.: 2018AP2315

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

Focus: Equitable Assignment – Slander of Title

Kevin Fields, by counsel, appeals a circuit court order granting summary judgment in favor of Colonial Savings, F.A. Fields argues, among other issues, that the circuit court erred when it dismissed his slander of title claim and concluded that the outcome of the case was controlled by Federal National Mortgage Association v. Thompson, 2018 WI 57, 381 Wis. 2d 609, 912 N.W.2d 364. We reject Fields’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Wood County v. Trevor J. Krizan

Case No.: 2019AP350

Officials: KLOPPENBURG, J.

Focus: 4^th Amendment Violation – Search and Seizure

Wood County appeals the circuit court order granting Trevor Krizan’s motion to suppress evidence obtained as a result of an unlawful seizure in violation of the Fourth Amendment. The County argues that the court erred because there was no seizure implicating the protections of the Fourth Amendment. In the alternative, the County argues that, if a seizure occurred, the seizure was lawful because it was supported by reasonable suspicion or it was justified because the officer was exercising his duties as a community caretaker. I affirm for the reasons that follow.

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WI Court of Appeals – District I

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

Case No.: 2019AP1564

Officials: BRASH, P.J.

Focus: Termination of Parental Rights

M.K. appeals an order of the trial court terminating his parental rights of M.K., Jr. M.K. asserts that the court erroneously exercised its discretion in terminating his parental rights because its factual findings are not supported by the record. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Noah Andrew Christoff

Case No.: 2018AP1466-CR

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

Focus: Abuse of Discretion – Suppression of Evidence 

Noah Christoff appeals from a judgment convicting him of possession of amphetamine with intent to sell. The sole issue on appeal is whether the circuit court erroneously exercised its discretion when it refused to suppress evidence seized pursuant to a search warrant. Christoff contends the search warrant was improperly obtained by a law enforcement officer from an adjoining state in the absence of a statutory mutual aid agreement. We conclude the court properly exercised its discretion in determining that suppression was not a proper remedy for the alleged statutory violation. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Robert Wargaski v. NCI Group, Inc.,

Case No.: 2018AP2014

Officials: SEIDL, J.

Focus: Magnuson-Moss Warranty Act – Court Error – Forum Selection Clause

Robert Wargaski appeals a judgment dismissing his small claims action against NCI Group, Inc. (NCI), in which he alleged a violation of the Magnuson-Moss Warranty Act (MMWA) stemming from his purchase of metal roofing panels. Wargaski argues that the circuit court erred by enforcing a forum-selection clause in the warranty at issue. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Langlade County v. Travis Lee Lettau

Case No.: 2019AP68

Officials: SEIDL, J.

Focus: OWI – Court Error – Breath Test Results

Langlade County appeals a judgment dismissing charges against Travis Lettau of operating a motor vehicle while intoxicated (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as first offenses. The case was tried to the circuit court without a jury, and the court found Lettau not guilty of both charges. The County argues that the court erred by failing to apply the evidentiary presumptions afforded to Lettau’s breath test result set forth in WIS. STAT. § 885.235. It further asserts that had the court properly applied § 885.235, the County met its burden of proof on both citations. We affirm.

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WI Court of Appeals – District II

Case Name: Georgia A. Stein v. WG Management

Case No.: 2019AP397

Officials: NEUBAUER, C.J.

Focus: Judgment – Rental Security Deposit

Georgia A. Stein appeals from an order denying her motion for summary judgment and granting WG Management’s motion. The basic issue was what portion, if any, of Stein’s security deposit was due her after she terminated her month-to-month tenancy. Because Stein’s notice to her landlord, WG, failed to provide the sixty-day notice period required under her written lease, the circuit court properly denied her motion and partially granted WG’s. We affirm

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WI Court of Appeals – District IV

Case Name: Dorraine M. Mawhinney v. Wade A. Hallet

Case No.: 2018AP1225

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

Focus: Divorce – Property Division and Child Support

Wade Hallett, pro se, appeals a judgment of divorce that divided marital property and awarded child support. Hallett contends that the circuit court erred by setting aside the parties’ marital property agreement, in its property division determinations, and by setting child support based on Hallett’s earning capacity. Hallett also contends that his counsel was ineffective during the divorce proceedings. For the reasons set forth below, we conclude that we have no basis to disturb any of the circuit court’s decisions challenged in this appeal. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Damario J. Graham

Case No.: 2018AP2321-CR

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Ineffective Assistance of Counsel

Damario Graham appeals a judgment of conviction for armed robbery as a party to the crime. He argues that his trial counsel provided ineffective assistance in two respects: (1) mishandling pretrial litigation regarding one witness’s out-of-court identifications of photographic images linking Graham to the armed robbery; (2) failing to object to trial testimony by a police officer that, in his experience, some surveillance video images fail to show tattoos that are actually on the hands and forearms of the persons depicted in the surveillance videos. Regarding the identification issue, we assume deficient performance by trial counsel and conclude that Graham fails to show prejudice resulting from the assumed deficient performance. Regarding the clarity of video images issue, we conclude that Graham fails to show deficient performance.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. James M. Schoenecker

Case No.: 2019 WI 105

Focus: Attorney Disciplinary Hearing

We review the report and recommendation of Referee James J. Winiarski recommending that James M. Schoenecker’s license to practice law in Wisconsin be reinstated. After careful review of the matter, we agree that Attorney Schoenecker’s license should be reinstated with certain conditions recommended by the referee. We further agree with the referee that, consistent with our general practice, Attorney Schoenecker should be required to pay the full costs of this reinstatement proceeding, which are $14,754.78 as of October 7, 2019.

Reinstatement granted

Concur:

Dissent:

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WI Supreme Court

Case Name: State of Wisconsin v. Stephan I. Roberson

Case No.: 2019 WI 102

Focus: Due Process Violation

We review an unpublished decision of the court of appeals reversing the circuit court’s suppression of the victim’s identification of Stephan I. Roberson because the identification began with law enforcement showing a single Facebook photo to the victim.

Roberson argues that the circuit court correctly granted his motion to suppress the identification evidence on the ground that the police utilized an unnecessarily suggestive procedure, which violated his due process rights under Article I, Section 8 of the Wisconsin Constitution as explained in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.

The State urges us to overturn Dubose, and return to our past practice of following decisions of the United States Supreme Court in regard to criteria that are necessary to accord due process in eyewitness identifications. We agree with the State. Dubose was unsound in principle. Therefore, we overturn Dubose and return to “reliability [a]s the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Neil v. Biggers, 409 U.S. 188, 199 (1972). Due process does not require the suppression of evidence with sufficient “indicia of reliability.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012).

Accordingly, “a criminal defendant bears the initial burden of demonstrating that a show up was impermissibly suggestive.” State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995) (citing State v. Mosley, 102 Wis. 2d 636, 652 307 N.W.2d 200 (1981) and Powell v. State, 86 Wis. 2d 51, 65, 271 N.W.2d 610 (1978)). If a defendant meets this burden, the State must prove that “under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at 106 and citing Biggers, 409 U.S. at 199). We conclude that the State has satisfied its burden here.

Therefore, we affirm the court of appeals and remand to the circuit court for proceedings consistent with this opinion.

Affirmed

Concur: R.G. BRADLEY, J. concurs (except for ¶¶41-42), joined by KELLY, J. (opinion filed) HAGEDORN, J. concurs. (opinion filed)

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Kevin C. Rotkiske v. Paul Klemm, et al.

Case No.: 18-328

Focus: FDCPA Violation – Statute of Limitations

The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U. S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.

Affirmed

Dissenting: GINSBURG, J., filed an opinion dissenting in part and dissenting from the judgment.

Concurring: THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a concurring opinion.

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United States Supreme Court

Case Name: Laura Peter, et al. v. Nantkwest, Inc.

Case No.: 18-801

Focus: Statutory Interpretation – Patent Act – Expenses

Section 145 of the Patent Act affords applicants “dissatisfied with the decision of the Patent Trial and Appeal Board” an opportunity to file a civil action in the United States District Court for the Eastern District of Virginia. 35 U. S. C. §145. The statute specifies that “[a]ll the expenses of the proceedings shall be paid by the applicant.” Ibid. The question presented in this case is whether such “expenses” include the salaries of attorney and paralegal employees of the United States Patent and Trademark Office (PTO). We hold that they do not.

Affirmed

Dissenting:

Concurring:

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