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Weekly Case Digests – March 2, 2020 – March 6, 2020

By: Rick Benedict//March 6, 2020//

Weekly Case Digests – March 2, 2020 – March 6, 2020

By: Rick Benedict//March 6, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Sarah M. Steffek, et al. v. Client Services, Inc., et al.,

Case No.: 19-1491

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

Focus: Judgment – Liability

The Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., requires the collector of a consumer debt to send the consumer-debtor a written notice containing, among other information, “the name of the creditor to whom the debt is owed.” § 1692g(a)(2). Plaintiffs Sarah Steffek and Jill Vandenwyngaard received form notices from defendant Client Services, Inc. subject to this requirement. On each, a header stated only “RE: CHASE BANK USA, N.A.” with an account number, and the letters continued: “The above account has been placed with our organization for collections.” The letters did not say whether Chase Bank still owned the accounts in question or instead had sold the debts to another entity. Steffek and Vandenwyngaard sued Client Services for violating § 1692g(a)(2), arguing that these letters failed to identify clearly the current holder of the debt.

The district court certified a plaintiff class of Wisconsin debtors who received substantially identical notices from Client Services. The court then found that undisputed facts showed that Chase Bank was actually the current creditor and granted summary judgment to Client Services. Steffek v. Client Servs., Inc., No. 1:18-cv-00160-WCG, 2019 WL 1126079, at *5 (E.D. Wis. Mar. 12, 2019). The actual identity of the current creditor, however, does not control the result. Regardless of who then owned the debts, the question under the statute is whether the letters identified the then-current creditor clearly enough that an unsophisticated consumer could identify it without guesswork. See Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 321 (7th Cir. 2016). Undisputed facts show that the notices here failed that test. We therefore reverse and remand for entry of summary judgment in the plaintiffs’ favor as to liability.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Neal Preston v. Midland Credit Management, Inc.,

Case No.: 18-3119

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

Focus: Class Action – FDCPA Violation – Plain Language

Neal Preston brought this putative class action in which he claimed that Midland Credit Management, Inc. (“Midland”), had sent him a collection letter that violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. Specifically, he claimed that the words “TIME SENSITIVE DOCUMENT” on the envelope violated § 1692f(8)’s prohibition against “[u]sing any language or symbol,” other than the defend‐ ant’s business name or address, on the envelope of a debt collection letter. He also claimed that these words, and other language employed in the body of the letter, were false and deceptive, in violation of § 1692e(2) and (10).

On Midland’s motion, the district court dismissed the complaint. The district court noted that the plain language of § 1692f(8) prohibited any writing on the envelope, but nevertheless concluded that there was a benign‐language exception to the statutory language. Because the language “TIME SENSITIVE DOCUMENT” did not create any privacy concerns or expose Mr. Preston to embarrassment, the district court held that it fell within this exception. The district court found no merit with respect to Mr. Preston’s claims under § 1692e.

We now reverse in part and affirm in part. We conclude that the language of § 1692f(8) is clear, and its application does not lead to absurd results. To the contrary, the prohibition of any writing on an envelope containing a debt collection letter represents a rational policy choice by Congress. Consequently, we conclude that the district court erred in dismissing Mr. Preston’s claim under § 1692f(8). However, we agree with the district court that the language on the envelope and in the letter does not violate § 1692e and, therefore, affirm the dismissal of the claims brought under that section.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jose Trinidad Garcia, Jr., et al.

Case No.: 18-1890; 18-2261

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

Focus: Sentencing Guidelines – Enhancement

Police found over 80 grams of red methamphetamine in a car. The ensuing investigation— dubbed “Code Red”—lead to the indictment of 12 people for a drug-distribution conspiracy. Eleven, including Garcia, pleaded guilty. Garcia argues the judge improperly enhanced his sentence based on a prior drug conviction. We agree with Garcia. Pineda-Hernandez alone stood trial. He claims multiple errors involving an alleged language-interpretation debacle. He also argues the judge improperly augmented his sentence based on his role. We disagree with Pineda-Hernandez. Garcia’s prior conviction cannot enhance the mandatory minimum for his sentence. We VACATE Garcia’s sentence and REMAND for resentencing. Regarding Pineda-Hernandez, we AFFIRM.

Vacated and remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Eleazar Hernandez-Perdomo

Case No.: 19-1964; 19-2113

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

Focus: Immigration – Removal Order

Ismael Rangel-Rodriguez and Eleazar Hernandez-Perdomo are both Mexican citizens who have never been lawfully admitted to the United States. Several years ago, immigration authorities served both of them with Notices to Appear (“NTA”) for removal proceedings. These NTAs—like many—were defective because they did not list a date or time for an initial removal hearing. For different reasons, Rangel and Hernandez were not present at their respective removal hearings, and the immigration judges ordered them removed in absentia. United States Immigration and Customs Enforcement (“ICE”) eventually enforced these orders and removed both men to Mexico, but they each illegally returned to the United States and were indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). In light of the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), they moved to dismiss their respective indictments by collaterally attacking their underlying removal orders under 8 U.S.C. § 1326(d) based on the defective NTAs. The district courts denied their motions, and each defendant entered a conditional plea of guilty to the illegal reentry charge and reserved his right to appeal the denial of the motion to dismiss the indictment. We have consolidated the cases for decision.

We conclude that Rangel and Hernandez have failed to demonstrate that they satisfy any of the requirements set out in § 1326(d). We therefore affirm the judgments.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jorge Baez-Sanchez v. William P. Barr

Case No.: 19-1642

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

Focus: Immigration – Removal Order

Jorge Baez-Sanchez, a citizen of Mexico, is removable as a criminal alien. His conviction for aggravated battery of a police officer renders him inadmissible. 8 U.S.C. §1182(a)(2)(A)(i)(I). He applied to the Department of Homeland Security for a U visa, which would allow him to remain in the United States. The U visa is available to some admissible aliens who have been victims of crime in this country. Baez-Sanchez asked the immigration judge assigned to his case to grant him a waiver of inadmissibility, which would allow the Department of Homeland Security to rule favorably on his visa application. A statute, 8 U.S.C. §1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility. Exercising that authority, an immigration judge twice granted the request for waiver. After the initial grant, the Board of Immigration Appeals remanded with instructions to consider an additional issue. The immigration judge did so and reaffirmed her decision.

After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. See, e.g., Negusie v. Holder, 555 U.S. 511 (2009); Gonzales v. Thomas, 547 U.S. 183 (2006); INS v. Orlando Ventura, 537 U.S. 12 (2002). Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity to have its say on an issue, a say that may reflect expertise and could be entitled to judicial deference. The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. That’s not the goal of the remand rule. Baez-Sanchez has waited long enough.

We deem all of the legal questions settled. For the purpose of this proceeding, at least, the Attorney General retains his power to grant waivers of inadmissibility, and immigration judges may exercise that power on the Attorney General’s behalf. An immigration judge has ruled in favor of Baez-Sanchez. If the Department of Justice were contending that the immigration judge had abused her discretion, then we would remand to the Board to address that subject. But the Attorney General’s brief in this court does not ask for a remand on the propriety of granting a waiver to Baez-Sanchez, in particular. The brief the Department of Homeland Security submitted to the Board on remand similarly does not contend that the immigration judge erred, if immigration judges possess the waiver power. All of the issues in this proceeding therefore have been finally resolved, and there is nothing more for the Board to do.

The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security.

Vacated. Petition for review granted.

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7th Circuit Court of Appeals

Case Name: United States of America v. Albert E. Dowthard

Case No.: 18-2088

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

Focus: Plea Withdrawal – ACCA Violation

Albert Dowthard pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g). Because of his prior state convictions, he was sentenced under the Armed Career Criminal Act (ACCA) to 186 months in prison. See id. § 924(e). Although he raised no such argument in the district court, he now contends that Rehaif v. United States, 139 S. Ct. 2191 (2019), invalidates his plea because he was not informed that knowledge of his status as a previously convicted felon was an element of his § 922(g) charge. Alternatively, he disputes his classification as an Armed Career Criminal, arguing that two of the four prior offenses used to sentence him do not qualify as violent felonies.

Dowthard has the burden of showing that a misunderstanding of the elements of his offense affected his substantial rights, yet he does not even assert that he would not have pleaded guilty if he had properly understood the elements. Thus, he has failed to carry that burden. And his prior Illinois conviction for attempted aggravated domestic battery has as an element the attempted use of physical force and therefore counts as a “violent felony” under the ACCA. With that conviction and the two he does not challenge, he has the three necessary predicates for an enhanced sentenced under § 924(e). Accordingly, we affirm both his conviction and his sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Susie Bigger v. Facebook, Inc.,

Case No.: 19-1944

Officials: WOOD, Chief Judge, and KANNE and BARRETT, Circuit Judges.

Focus: FLSA Violation – Arbitration Agreements

The Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”), requires employers to pay overtime wages to certain employees, see id. §§ 207(a), 213. For enforcement, the Act allows employees to sue their employer for damages and to bring the action on behalf of themselves and other “similarly situated” employees, id. § 216(b), who may join the so-called “collective action.” The court overseeing the action has discretion to authorize the sending of notice to potential plaintiffs, informing them of the opportunity to opt in. Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170–71 (1989). But the court must respect judicial neutrality and avoid even the appearance of endorsing the action’s merits. Id. at 174.

This case presents the question whether a court may authorize notice to individuals who allegedly entered mutual arbitration agreements, waiving their right to join the action. Facebook employee Susie Bigger sued Facebook for violations of the FLSA overtime-pay requirements. She brought the action on behalf of herself and all other similarly situated employees. The district court authorized notice of the action to be sent to the entire group of employees Bigger proposed. Facebook argued this authorization was improper because many of the proposed notice recipients had entered arbitration agreements precluding them from joining the action. Facebook also argued the court’s authorization of notice was improper because Facebook is entitled to summary judgment.

We hold that when a defendant opposing the issuance of notice alleges that proposed recipients entered arbitration agreements waiving the right to participate in the action, a court may authorize notice to those individuals unless (1) no plaintiff contests the existence or validity of the alleged arbitration agreements, or (2) after the court allows discovery on the alleged agreements’ existence and validity, the defendant establishes by a preponderance of the evidence the existence of a valid arbitration agreement for each employee it seeks to exclude from receiving notice. Because the district court here did not apply this framework, we vacate the court’s order issuing notice and we remand for the court to apply the proper standard. We also affirm the court’s denial of summary judgment to Facebook.

Vacated and remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Keith A. Melvin

Case No.: 19-1409

Officials: WOOD, Chief Judge, and KANNE and BARRETT, Circuit Judges.

Focus: Court Error – Presentence Investigation Report

Keith Melvin hoped to obtain a copy of his presentence investigation report before his sentencing hearing. But the district court ordered the probation office not to give a copy to Melvin, who was instead allowed only to review the report with his attorney. At his sentencing hearing, Melvin asked for his own copy of the report, but the district court refused his request.

Melvin appeals his sentence, arguing that the district court violated 18 U.S.C. § 3552(d) and Federal Rule of Criminal Procedure 32(e)(2) by denying him a copy of his presentence investigation report. We hold that the district court did not violate § 3552(d), but did violate Rule 32(e)(2), which means what it says: defendants should be given their presentence investigation report. Melvin did not receive his report, so this was error. But because the error was harmless, we affirm his sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Ricardo H. Abellan v. Lavelo Property Management, LLC,

Case No.: 18-3695

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

Focus: Breach of Contract – Damages

A New York owner of a fast-food property in Illinois, which was rented by an Arizona tenant, sold the property to buyers in California. Just after the sale, however, the tenant declared bankruptcy and never paid a nickel in rent to its new landlord.

This lawsuit followed. A jury found the purchase agreement rescindable for mutual mistake and the sellers liable for fraud and breach of contract. The buyer, plaintiff-appellee Ricardo Abellan, as trustee of a family trust, took his remedy in damages for a judgment of more than $2 million against defendant-appellant Lavelo Property Management, LLC. “It takes a lot to set aside a jury verdict,” Valdivia v. Twp. High School Dist. 214, 942 F.3d 395, 396 (7th Cir. 2019), and this appeal by Lavelo falls well short. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Edward L. Youngman v. Peoria County, et al.,

Case No.: 18-2544

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

Focus: ADA Violation

Edward Youngman was placed on medical leave from his job with the Peoria County Juvenile Detention Center after he informed his supervisor that he could no longer work shifts in the facility’s control room. Youngman had rarely worked in the control room during his tenure with the detention center, but when changes in job rotations had resulted in his temporary assignment to the control room, he experienced headaches, nausea, and dizziness, among other symptoms. Youngman asked that he not be assigned to the control room in the future as an accommodation, but was told that was not possible; he was instructed that he could return to work if and when his condition improved. After Youngman’s leave time expired, his position was filled, and he found employment elsewhere, he filed this suit under the Americans with Disabilities Act, alleging that his employer had refused to accommodate his disability and forced him out of his position. The district court granted summary judgment to the defendants, reasoning that Youngman was responsible for the breakdown of the interactive process required by the ADA. Youngman v. Kouri, 2018 WL 3186920 (C.D. Ill. June 28, 2018). We affirm, but on a different ground.

Affirmed

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7th Circuit Court of Appeals

Case Name: Matthew LaBrec v. Lindsay Walker, et al.,

Case No.: 18-1682

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

Focus: Abuse of Discretion – De Novo Review

Matthew LaBrec brought an action under 42 U.S.C. § 1983 against a number of Wisconsin Department of Corrections employees, alleging that they violated his rights under the Eighth Amendment of the Constitution.  Specifically, LaBrec, who is an inmate, alleged that the defendants were aware that his cellmate posed a danger to him and that they failed to protect him from that cellmate. The district court granted summary judgment in favor of the defendants and declined to exercise supplemental jurisdiction over the state claims that LaBrec also brought. LaBrec now appeals that grant of summary judgment. He also appeals the district court’s denial of his request for appointed counsel. We review the court’s grant of summary judgment de novo. Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018). As for the denial of the request for counsel, we review the court’s decision only for abuse of discretion. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014).

Accordingly, the decision of the district court denying the request for counsel is AFFIRMED. The decision granting summary judgment is AFFIRMED as to Defendants‐Appellees Jason Chatman and Dustin Meeker and is REVERSED as to the remaining Defendants‐Appellees, Joshua Craft, Debra Wil‐ son, and Lindsay Walker, and the case is REMANDED for further proceedings.

Affirmed in part. Reversed and remanded in part.

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Menn Law Firm, LTD, v. Linda Veerkamp

Case No.: 2018AP1359

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

Focus: Attorney Fees

Linda Veerkamp, pro se, appeals a judgment requiring her to pay her former attorneys, Menn Law Firm, LTD, $44,000 in attorney fees and $5395.39 in costs. Veerkamp contends the circuit court erred by granting Menn Law Firm’s motion for a declaratory judgment regarding its entitlement to attorney fees and costs. We reject Veerkamp’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: Seth H. Kiewiz v. My Custom Shop, Inc.,

Case No.: 2018AP2008

Officials: NEUBAUER, C.J.

Focus: Breach of Implied Warranty

This dispute is about an “as is” sale of an eighteen-year-old Ford Ranger truck with 178,000 miles. Seth H. Kiewiz, the truck buyer, brought this action against My Custom Shop, Inc., (MCS), the truck seller. After a trial to the circuit court, the court determined Kiewiz had not proven any of his claims and dismissed the complaint with prejudice. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel. Eric A. Nielsen, et al. v. Walworth County Board of Adjustment

Case No.: 2019AP10

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

Focus: Abuse of Discretion – Jurisdiction

Eric A. Nielsen, Vicky A. Nielsen, Vernon R. Nelson, and Priscilla Kay Aldon Nelson (“the Homeowners”) appeal an order denying their action for certiorari relief and affirming the decision of the Walworth County Board of Adjustment. While we conclude that the Homeowners have not overcome the presumption of correctness and validity of the Board’s decision, we also conclude their appeal is not frivolous. We affirm.

On review, therefore, our function is limited to determining whether (1) the Board kept within its jurisdiction; (2) it proceeded on a correct theory of law; (3) its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) it reasonably might have made the determination in question based on the evidence. State ex rel. Ziervogel v. Washington Cty. Bd. of Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401.

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WI Court of Appeals – District III

Case Name: Jacqueline Nooyen v. Wisconsin Electric Power Company, et al.

Case No.: 2019AP289

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

Focus: Time-barred

Jacqueline Nooyen, individually and as special administrator of the Estate of Norbert Nooyen, appeals a grant of summary judgment that dismissed her claims against Wisconsin Electric Power Company, Madison Gas and Electric Company, Wisconsin Power & Light Company, and Wisconsin Public Service Corporation (collectively, “the Utilities”) for violations of the safe place statute, WIS. STAT. § 101.11 (2015-16). Jacqueline claims that her husband, Norbert, developed mesothelioma as a result of being exposed to airborne asbestos between 1970 and 1973 during the construction of two power plants that were owned by the Utilities.

The circuit court granted the Utilities summary judgment, concluding Jacqueline’s claims were barred by WIS. STAT. § 893.89, the ten-year statute of repose for injuries resulting from improvements to real property (hereinafter, “the construction statute of repose”).  We agree with that conclusion. The undisputed facts establish that Norbert’s injuries were the result of a structural defect, rather than an unsafe condition associated with the structure. Accordingly, under Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, the construction statute of repose bars Jacqueline’s claims. We reject Jacqueline’s argument that applying the construction statute of repose in this case improperly bars her claims retroactively, and we also reject her assertion that applying the statute here violates her constitutional right to a remedy. We therefore affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Edward L. Body, Sr.,

Case No.: 2019AP836-CR

Officials: DAVIS, J.

Focus: Sentencing Guidelines

Edward L. Body, Sr., appeals from a judgment and order revoking his probation for the offense of disorderly conduct and sentencing him to one year in jail. He claims that the trial court relied on improper sentencing factors, specifically his gender and certain information contained in a presentence report. He further claims that the sentence was unduly harsh. We disagree, and affirm, for the reasons stated herein.

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WI Court of Appeals – District II

Case Name: Kenosha County Department of Human Services v. M.M.B.,

Case No.: 2019AP1776; 2019AP1777

Officials: REILLY, P.J.

Focus: Termination of Parental Rights

M.M.B. appeals from orders terminating his parental rights to M.L.H. and J.L.H. and from orders denying his postdisposition motion. The father pled no contest to the allegation that M.L.H. and J.L.H. were children in continuing need of protection or services (CHIPS) at the grounds phase of the termination of parental rights (TPR) proceeding, and the circuit court subsequently determined at the dispositional phase that it was in the best interests of the children that his parental rights be terminated. The father now argues that he is entitled to withdraw his no contest plea as he received ineffective assistance of counsel. We disagree and affirm the circuit court’s orders.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kaprisha E. Greer

Case No.: 2019AP806-CR

Officials: BRASH, P.J.

Focus: Jury Instructions

Kaprisha E. Greer appeals from her judgment of conviction after a jury convicted her of disorderly conduct with a domestic abuse assessment. She also appeals the order of the trial court denying her postconviction motion. Greer argues that the trial court erred in not including the “true threat” language of the jury instruction for disorderly conduct, asserting that the State had elicited evidence regarding a threat in its case-in-chief.

The trial court held that her argument had been waived because Greer never raised an objection during the trial regarding the jury instruction. Additionally, the court found that the State had not relied on a “true threat” as an alternative theory of proving the disorderly conduct charge, so the instruction was not necessary. Furthermore, even if the instruction should have been given, the court determined that any error was harmless. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael L. Winfield

Case No.: 2018AP817-CR; 2018AP818-CR

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

Focus: 8th Amendment Violation

Michael L. Winfield appeals judgments entered after he pled guilty to four felonies: second-degree recklessly endangering safety, operating a vehicle without the owner’s consent, fleeing an officer, and burglary as a party to a crime. He also appeals orders denying his motions for postconviction relief from his aggregate sentence of sixteen and one-half years of imprisonment. The circuit court concluded that Winfield did not demonstrate either the existence of a new factor or that he was sentenced on the basis of inaccurate information. The circuit court therefore denied his postconviction motions without a hearing. We agree with the circuit court, and we additionally conclude that Winfield fails to show on appeal that his aggregate sentence violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the United States Constitution. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Robert Dequan Brown

Case No.: 2018AP1292-CR

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

Focus: Ineffective Assistance of Counsel

Robert Dequan Brown entered into a plea agreement with the State and pled guilty to two drug-related felonies and two counts of being a felon in possession of a firearm. After sentencing, he filed a postconviction motion seeking to withdraw his guilty pleas on the grounds that his trial counsel provided ineffective assistance by failing to move to suppress evidence seized from Brown’s vehicle. The trial court heard oral argument on Brown’s motion and denied it without hearing any testimony after concluding that Brown lacked standing to challenge the warrantless search of his vehicle. We affirm on a different basis: the record conclusively demonstrates that the police had probable cause to search the vehicle, so a suppression motion would not have been granted. Therefore, Brown cannot demonstrate that trial counsel was ineffective for failing to file a suppression motion. Accordingly, we affirm the judgment and the order.

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WI Court of Appeals – District I

Case Name: Harrry Verkler, et al. v. Allstate Property & Casualty Insurance Company, et al.

Case No.: 2018AP1531

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

Focus: Jury Instructions

Victoria Southern and Allstate Insurance Company (collectively Allstate) appeal the judgment in this civil negligence action arising from an accident between a car driven by Southern and a double semi-trailer truck that Harry Verkler was operating. Allstate argues that the trial court erred in denying their request for a jury instruction on the emergency doctrine which prejudiced Allstate and that the trial court erred in concluding that credible evidence supports the jury’s verdict finding that Southern was negligent. We are not persuaded by Allstate’s arguments. Therefore, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. George E. Savage

Case No.: 2019AP90-CR

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

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

George E. Savage appeals the judgment of conviction, following his guilty plea to one count of violation of the sex offender registry statute. He also appeals the order denying his postconviction motion. Savage argues that the trial court erred in denying his postconviction motion to withdraw his guilty plea because Savage established that, due to the constitutionally ineffective assistance of his trial counsel, his guilty plea was not knowing, voluntary, and intelligent.

We conclude that the trial court misconstrued our supreme court’s holding in State v. Dinkins and, as a result, it failed to properly analyze Savage’s allegation that trial counsel was ineffective. See id., 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. Therefore, we reverse the trial court’s order and remand this matter with directions that the trial court make proper findings of fact and properly analyze Savage’s ineffective assistance of counsel claim in light of our discussion regarding Dinkins.

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WI Court of Appeals – District I

Case Name: James Delglyn v. Paulino Do Rego Barros, Jr., et al.

Case No.: 2019AP232

Officials: BRASH, P.J.

Focus: FCRA Violation

James Delglyn, pro se, appeals an order of the trial court granting summary judgment in favor of Paulino Do Rego Barros, Jr. and Equifax Information Systems, LLC (collectively “Equifax”). Delglyn claims that Equifax failed to comply with the Fair Credit Reporting Act (“FCRA”) in responding to Delglyn’s notices of disputed items on his credit report. The trial court found that Equifax had used “reasonable procedures” in responding to Delglyn’s notices. Furthermore, the court held that Delglyn had failed to show that the information being reported was inaccurate and, as a result, any further inquiry was unnecessary as a matter of law. Thus, the court granted Equifax’s motion for summary judgment. We affirm.

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WI Court of Appeals – District I

Case Name: Skyrise Construction Group, LLC, v. Global Water Center II, LLC,

Case No.: 2019AP425

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

Focus: Damages

Global Water Center II, LLC, engaged Catcon, Inc. to act as general contractor for a renovation project at a building owned by Global. Catcon entered into a subcontract with Skyrise Construction Group, LLC, for Skyrise to perform some services for that project. After several months of work by Skyrise, Catcon terminated its subcontract with Skyrise. Skyrise then sued Global in the Milwaukee County Circuit Court for damages allegedly related to Skyrise’s work on the renovation project. The circuit court granted Global’s motion to dismiss and entered an order dismissing Skyrise’s causes of action. Skyrise appeals, and we affirm the order of the circuit court.

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WI Court of Appeals – District I

Case Name: Brian A. Lampe, et al. v. State Farm Mutual Automobile Insurance Company, et al.

Case No.: 2019AP656

Officials: Kessler, Dugan and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

State Farm Mutual Automobile Insurance Company appeals from a judgment awarding Brian Lampe (“Lampe”) and his wife, Tracey Lampe, damages in the amount of $175,000, which included a $45,000 award for Brian Lampe’s future health care expenses. State Farm contends that the trial evidence was insufficient to support the jury’s award of future health care expenses, and that the circuit court erred by denying State Farm’s postverdict motion to change the jury’s future health care expense award to zero. We agree with State Farm. Accordingly, we reverse the circuit court’s judgment and remand the matter with directions that a judgment be entered which does not include any amount for Lampe’s future health care expenses.

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