Weekly Case Digests – March 16, 2020 – March 20, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Stephanie Dorris v. Unum Life Insurance Company

Case No.: 19-1701

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

Focus: Court Error – Abuse of Discretion

Courts and practitioners frequently say that § 502 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), provides for “de novo review” of certain decisions relating to welfare plan benefits. That phrase is really a misnomer. At least in this circuit, ERISA de novo review requires no review at all, but an independent decision. In such a case, the plaintiff bears the burden of proving not that the plan administrator erred, but that she is entitled to the benefits she seeks.

Stephanie Dorris did not fully recognize her burden. After her disability insurance provider, Unum Life Insurance Company of America, terminated her benefits, she fought hard to prove that Unum’s explanation for its decision was wrong. She convinced the district court that it was, so the court proceeded to decide whether Dorris was then entitled to benefits. It saw barely a thing in the administrative record going to that question, and no attempt from Dorris to supplement the record. Based on this lack of evidence, the court entered judgment in Unum’s favor. On appeal, Dorris contends that some of the evidence proved her entitlement to benefits, or alternatively, that the district court should have given her the opportunity to supplement the record after judgment. Because we see no clear error in the district court’s factual findings nor an abuse of discretion in its decision to limit itself to the record before it, we affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jeremy Lowrey, et al. v. Andrew Tilden, et al.

Case No.: 19-1365; 19-3145

Officials: WOOD, Chief Judge, in chambers.

Focus: Jurisdictional Statement

In the two cases I have consolidated only for purposes of this opinion, a magistrate judge issued the final judgment from which the appeal has been taken. Circuit Rule 28(a)(2)(v) requires an appellant in such a case to include in its jurisdictional statement not only information about the magistrate judge’s involvement, but also “the dates on which each party consented in writing to the entry of final judgment by the magistrate judge.” See also 28 U.S.C. § 636(c). The information provided in each of these appeals fell short of the requirements of Circuit Rule 28. In Lowrey v. Tilden, No. 19-1365, the appellees informed the court in their jurisdictional statement that the parties had consented to have a magistrate judge hear the case; they did so after observing that the pro se appellant’s jurisdictional statement was not complete and correct and appropriately moving on to provide their own complete jurisdictional summary. See Circuit Rule 28(b). But counsel failed to provide the dates of consent of each party to the magistrate judge’s jurisdiction. In McCray v. Wilkie, No. 19-3145, counsel not only failed to provide the dates of consent, but he also neglected to mention that the decision from which the appeal was being taken had been rendered by a magistrate judge.

The significance of the information about the magistrate judge’s involvement and the consent of all parties to that judge’s resolution of the merits cannot be overstated. See Coleman v. Labor & Indus. Rev. Comm’n of the State of Wis., 860 F.3d 461 (7th Cir. 2017) (a magistrate judge has no authority to issue a final decision that is directly appealable to the court of appeals unless all parties consent). This rule is not a secret. It is clearly spelled out in Circuit Rule 28(a)(2)(v), and this court’s Practitioner’s Handbook for Appeals (2019 ed.) is readily available on the court’s public website, as the second item under the tab “Rules and Procedures.” See http://www.ca7.uscourts.gov/rules-procedures//Handbook.pdf. The Handbook explicitly refers to the failure to provide dates of consent to proceed before a magistrate judge as one of the recurring problems that the court encounters when performing jurisdictional screening. See Handbook at 145.

In each of these cases, counsel shall have seven days in which to file an amended jurisdictional statement that complies in all respect with the rules.

So Ordered

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7^th Circuit Court of Appeals

Case Name: Steven Dotson v. United States of America

Case No.: 18-1701

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

Focus: ACCA Violation

The Presentence Investigation Report on Steven Dotson listed six prior felony convictions, three of which the Probation Office identified as qualifying him for the enhanced mandatory minimum sentence of 15 years’ imprisonment under the Armed Career Criminal Act. The PSR was silent on whether any of Dotson’s other three convictions so qualified, and nobody raised the question at sentencing. The district court agreed with the Probation Office and sentenced Dotson as a career offender to 188 months (15 years and 8 months).

What happened during Dotson’s present appeal frames the issue now before us. Our decision in D.D.B. meant that Dotson’s 2007 Indiana attempted robbery conviction (#3) no longer qualifies as an ACCA predicate. From there, however, the government points to our decision in United States v. Perry, 862 F.3d 620 (7th Cir. 2017), where we held that Indiana burglary qualifies as a violent felony under ACCA, and urges us to rely upon—or, more accurately, to substitute—Dotson’s 1993 Indiana burglary conviction (#4) to sustain his sentence as an armed career criminal. The government’s requests and reasoning are straightforward: with the Indiana attempted robbery conviction (#3) out because of D.D.B. but the burglary conviction (#4) remaining a violent felony, Dotson still has three qualifying predicates (#1, #2, and #4) and remains an armed career criminal.

Not before now have we considered whether the government can substitute ACCA predicates after sentencing to save an enhanced sentence. We came the closest to the issue in Light v. Caraway, 761 F.3d 809 (7th Cir. 2014), and take some direction from our approach there.

We worry about the consequences of a holding that, as a practical matter, risks producing expansive litigation at sentencing over whether each and every prior felony in a defendant’s criminal history constitutes a qualifying ACCA predicate. The law in this area, at the risk of great understatement, is dizzyingly complex. The last outcome we want to risk is sentencing hearings turning into full-blown, prolonged, and extraordinarily difficult exercises over questions where the answers may never matter. Judicial resources warrant better investment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Phillip Hartsfield v. Stephanie Dorethy

Case No.: 18-1736

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

Focus: Ineffective Assistance of Counsel

Fifteen years ago, an Illinois jury convicted Phillip Hartsfield of first-degree murder and home invasion. Hartsfield unsuccessfully challenged his convictions on direct appeal and collateral attack in the Illinois courts. In 2014, Hartsfield petitioned a federal district court for a writ of habeas corpus alleging seven claims. The district court denied his petition and Hartsfield appealed. We certified one of the issues Hartsfield presented for review: whether the state court reasonably held that Hartsfield’s counsel did not usurp his personal right to testify at trial. We now affirm the judgment of the district court.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Tremayne T. Dozier

Case No.: 18-3447

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

Focus: Abuse of Discretion – Sentencing Guidelines

Tremayne Dozier was arrested in 2017 for trafficking methamphetamine in Decatur, Illinois. A federal grand jury indicted him for conspiracy and possession of methamphetamine with intent to distribute. Under the terms of the Controlled Substances Act then in effect, Dozier faced increased penalties if he had a prior conviction for a “felony drug offense.” 21 U.S.C. § 841(b)(1)(A), (b)(1)(B)(viii). A “felony drug offense” is a drug‐related offense “that is punishable by imprisonment for more than one year under any law of the United States or of a State.” Id. § 802(44). The government identified one such conviction: in 2006 Dozier was convicted in Texas of unlawful possession of cocaine, a “state jail felony” punishable by imprisonment of six months to two years.

Dozier pleaded guilty to the conspiracy count. At sentencing he objected to using the 2006 drug conviction to enhance his sentence. The Texas case had been resolved by plea bargain; in exchange for Dozier’s guilty plea, the prosecutor agreed to a nine‐month sentence based on section 12.44(a) of the Texas Penal Code, which gives the sentencing judge the discretion to punish a person convicted of a state jail felony by imposing a period of confinement permissible for a Class A misdemeanor—that is, a term not to exceed one year. See TEX. PENAL CODE ANN. §§ 12.21, 12.44(a). The Texas court accepted the plea agreement, found Dozier guilty of the state jail felony, and imposed a nine‐month sentence.

Dozier argued that the Texas conviction was not a qualifying predicate because the terms of his plea agreement exposed him to confinement of not more than one year. The district judge rejected this argument and imposed a sentence of 20 years, the mandatory minimum for an offender with a prior felony drug conviction.

On appeal Dozier again argues that his 2006 Texas conviction doesn’t qualify as a felony drug offense. We disagree. Dozier pleaded guilty to and was convicted of a two‐year state jail felony. It does not matter that the sentencing judge accepted the plea bargain and exercised the discretion conferred by state law to sentence Dozier as if he were a misdemeanant. Dozier was, in fact, convicted of a two‐year drug felony. We affirm the judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin LeBeau, et al.

Case No.: 18-1656; 18-3366

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

Focus: Jury Instructions and Sufficiency of Evidence

Intending to transform a failing health club into a mixed-use condominium development, Kevin LeBeau and Brian Bodie obtained a $1,925,000 loan from Amcore Bank in 2004. By the next year, unfortunately, the loan had fallen into default, and so the pair sought and obtained a forbearance agreement (later amended) from Amcore. These measures did not help either. Ultimately the two men were indicted in 2014 on multiple counts of bank fraud and making false statements to the bank in connection with the loan and forbearance agreements. The case went to trial in 2017, and the jury convicted both LeBeau and Bodie on all counts. The court sentenced each one to 36 months’ imprisonment and restitution of more than a million dollars; both have appealed.

LeBeau raises three arguments in this court: first, that the district court erred by failing to give the jury an instruction on materiality for the bank-fraud offenses; second, that the court should not have admitted evidence related to certain victims’ losses in the scheme and their status as prior victims of fraud; and finally, that he received ineffective assistance of counsel at the sentencing stage, where his lawyer failed to challenge the amount of restitution. Bodie contends that his conviction must be thrown out because the superseding indictment was time-barred. He also disputes the sufficiency of the evidence to convict him. Finding no prejudicial error in any of these respects, we affirm the district court’s final judgments.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Shauntae Robertson v. Glendal French, Lieutenant, et al.,

Case No.: 17-3579

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

Focus: Statutory Interpretation – PLRA – IFP Application

Hoping to find an effective way to curb frivolous lawsuits by prisoners, Congress enacted the Prison Litigation Reform Act (“PLRA”) in 1996. Central to the law is its requirement that a prisoner who cannot pay a federal court’s filing fee at the time he files a case must pay the fee in installments out of his future income.

The critical question under the PLRA is the prisoner-litigant’s financial position at the time he files his complaint. Robertson truthfully disclosed all funds to which he had access at the time he filed his IFP application. Moreover, taking the current record in the light most favorable to Robertson, any failure to disclose the expected $4,000 was at best inadvertent, which is not enough to make it “untrue.” Finally, with respect to funds that are deposited into the prison trust account, we are satisfied that this deposit is, in itself, adequate disclosure to the prison authorities of changes in the prisoner’s income. We thus conclude that the district court should not have dismissed Robertson’s case for an “untrue” allegation of poverty. We REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Matthew Warciak v. Subway Restaurants, Inc.,

Case No.: 19-1577

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

Focus: TCPA Claim – Jurisdiction

T-Mobile customers with qualifying plans can participate in a promotional service called “T-Mobile Tuesdays” which offers free items and discounts from various well-known stores. Messages are sent every Tuesday and customers who no longer wish to receive marketing communications may opt-out by contacting T-Mobile’s customer service. In September 2016, a T-Mobile user, Matthew Warciak, received this text message: This T-Mobile Tuesday, score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details: http://t-mo.co/2bGiBjS.

The text message came from T-Mobile and Warciak was not charged for this text. Warciak sued Subway claiming Subway engaged in a common law agency relationship with T-Mobile, and that Subway’s conduct violated the Telephone Consumer Protection Act (“TCPA”) and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”). T-Mobile is not included in the lawsuit, per the arbitration agreement in its subscriber agreement.

Subway filed a 12(b)(6) Motion to Dismiss; the district court dismissed the TCPA claim and declined to exercise jurisdiction over the state law ICFA claim. The district court found the complaint lacked sufficient facts alleging Subway’s conduct to support Warciak’s claims of actual and apparent authority, specifically, control over the timing, content, or recipients of the text message. Further, the district court found that the wireless carrier exemption applied and therefore, no underlying TCPA violation exists. Warciak appeals this dismissal and seeks an opportunity to replead and be assigned a new judge. We find that the district court properly dismissed Warciak’s claim.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ronald Crosby v. City of Chicago, et al.

Case No.: 18-3693; 19-1439

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

Focus: Settlement Agreement

This case is about the scope of a release in a settlement agreement. In 2015, Ronald Crosby settled a lawsuit against Eduardo Gonzalez, a Chicago police officer who allegedly shoved Crosby out of a third-floor window before arresting him. In the settlement stipulation, Crosby released “all claims he had, has, or may have in the future … arising either directly or indirectly out of the incident” against Gonzalez, the City of Chicago, and all future, current, or former City officers. Crosby insists that this release does not bar his new suit against the City and its officers for torts they committed in the course of covering up Gonzalez’s misconduct. We disagree.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Donnell Jehan

Case No.: 19-1975

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

Focus: Sentencing Guidelines

Donnell Jehan appeals the denial of his second motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on the retroactive application of Amendment 782 to the United States Sentencing Guidelines. The district court determined that Jehan was ineligible for a reduction because the amendment did not change his guidelines range. On appeal, Jehan primarily argues that the amendment did change his guidelines range, because his binding plea agreement required the district court to find him responsible for quantities of narcotics that, under the amendment, produce a lower guidelines range. Because the district court correctly concluded that Jehan was responsible for greater quantities of narcotics, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Marina D. Kolchinsky, et al. v. Western Dairy Transport, LLC, et al.

Case No.: 19-1739

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

Focus: Independent Contractor – Negligence

After Marina Kolchinsky and her mother, Lidia Kolchinsky, were severely injured in a car collision with a tractor-trailer in Illinois, they sued the truck driver and the two companies that contracted with him. They filed in federal court based on diversity of citizenship; Illinois law controlled. The district court entered partial summary judgment in favor of Western Dairy Transport, LLC, and WD Logistics, LLC, concluding that the driver was an independent contractor so the Kolchinskys could not hold the companies responsible for the driver’s alleged negligence. Because the district court properly classified the driver as an independent contractor, we affirm the summary judgment for the companies.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ricardo Glover v. Kevin Carr, et al.

Case No.: 18-3028

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

Focus: Abuse of Discretion – Amended Complaint

Ricardo Glover, a Wisconsin inmate, sued prison medical staff and Wisconsin Department of Corrections officials for deliberate indifference and for violating his right to equal protection after they denied him medicine prescribed for post‐surgical erectile dysfunction. See 42 U.S.C. § 1983; Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976) (deliberate indifference to a prisoner’s serious medical needs constitutes unnecessary and wanton infliction of pain proscribed by Eighth Amendment). Glover alleges that treatment of his erectile dysfunction was both necessary for penile rehabilitation and time sensitive in the sense that he was at risk of suffering permanent loss of erectile function if his condition was left untreated for too long following surgery. The defendants argued at summary judgment that the Department’s then‐current medical director was wholly responsible for the challenged decision, but Glover had sued only the former director and other uninvolved parties. Glover moved to substitute the new director as a defendant, but the court (twice) denied the motion. It entered summary judgment for the defendants on Glover’s claim for damages and then deemed his claim for injunctive relief voluntarily withdrawn, in order to finalize the decision for appeal.

Glover appealed the judgment pro se. Following our review of the initial briefing, we appointed counsel to represent Glover, ordered re‐briefing, and set the case for argument. We now conclude that the district court abused its discretion by not allowing Glover to amend his complaint. We vacate the judgment and remand the case in order to allow Glover to proceed against the appropriate medical director in his individual capacity. We affirm the remainder of the judgment.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: William Russell Roberts v. Andrea A. Perone

Case No.: 2017AP2474

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

Focus: Divorce Judgment

William Roberts appeals a postdivorce order granting a motion filed by his former spouse, Andrea Perone, to lift a stay of a sanction the circuit court had previously imposed after finding Roberts in contempt for failing to comply with the terms of the parties’ divorce judgment. Roberts argues: (1) the circuit court judge was biased against him and should have recused himself; (2) the court should have ordered a competency evaluation of Roberts before permitting him to represent himself; (3) Roberts is entitled to relief under WIS. STAT. § 100.18 (2017-18) because Perone’s attorney misrepresented the terms of the parties’ marital settlement agreement; and (4) the court erred by ordering Roberts to spend sixty days in jail as a sanction for his contempt without specifying any purge conditions. We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Francis G. Graef v. Continental Indemnity Company, et al.

Case No.: 2018AP1782

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

Focus: Worker’s Compensation Claim

Continental Indemnity Company appeals an order denying its motion for summary judgment that sought to dismiss Francis Graef’s personal injury lawsuit. The issue before us is whether an employee who has undisputedly sustained an injury compensable under the Worker’s Compensation Act (“the Act”), WIS. STAT. ch. 102 (2017-18), may bring a tort action against a worker’s compensation insurance carrier when that action is based upon the carrier’s allegedly negligent denial of benefits due under the Act.

We conclude that the exclusive remedy provision of the Act, WIS. STAT. § 102.03(2), bars such actions. Our conclusion rests on the fact that to successfully prosecute his or her claim, a plaintiff would necessarily have to show that he or she was denied benefits to which he or she was entitled under the Act. The Act, however, already provides a remedy for the wrongful denial of benefits. Thus, the plaintiff’s right to recovery exists under the Act, and the Act’s exclusive remedy provision applies. We therefore reverse the circuit court’s decision and remand with directions to dismiss the complaint against Continental.

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WI Court of Appeals – District III

Case Name: Sharon M. Lambrecht v. Bruce Remington, et al.

Case No.: 2018AP1902

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

Focus: Court Error – Settlement Agreement

Sharon Lambrecht, pro se, appeals a judgment that dismissed her lawsuit against Bruce Remington and his daughter, Teresa Hestekin (collectively “Remington”), discharged a lis pendens recorded by Lambrecht, and awarded $10,000 in attorney fees to Remington pursuant to WIS. STAT. § 100.18 (2017-18).  Lambrecht argues the circuit court erred by: (1) refusing to enforce the parties’ settlement agreement; (2) refusing to admit the settlement agreement as evidence at trial; and (3) concluding that Lambrecht made a fraudulent representation under § 100.18. Lambrecht argues, in the alternative, that the evidence did not support awarding $10,000 in attorney fees to Remington under § 100.18. For the reasons discussed below, we reject Lambrecht’s arguments and affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Michael Barrett

Case No.: 2018AP2324-CR

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

Focus: 6^th Amendment Violation

Thomas Michael Barrett appeals a judgment of conviction, following a jury trial, of one count of possession of a firearm silencer, contrary to WIS. STAT. § 941.298(2) (2017-18). Barrett also appeals from the order denying his postconviction motion for relief. On appeal, Barrett raises the issues that he raised in his postconviction motion. He contends that: (1) WIS. STAT. § 941.298 is an unconstitutional infringement upon the right to keep and bear arms, both facially and as applied; (2) § 941.298 is void for vagueness; and (3) the government engaged in outrageous conduct by pressuring Barrett to commit a crime and by intimidating Wait.

With regard to Barrett’s first claim, we conclude that Barrett’s arguments reflect the defense of entrapment, not outrageous government conduct. As to Barrett’s second claim, Barrett contends that the State violated his Sixth Amendment right to compulsory process by intimidating one of his witnesses and preventing the witness from testifying. Barrett relies on two exhibits from the record to support his claim—a letter from his then-defense counsel to Wait, and an affidavit from Wait stating his apprehension to testify because of “threats from the government.” Neither exhibit supports Barrett’s assertion.

Wait’s affidavit is also insufficient to support Barrett’s claim. Wait’s four paragraph affidavit does not describe any threatening State conduct, nor does it describe any personal interaction between Wait and the State. It simply states that defense counsel alerted Wait to the possibility of a criminal investigation or criminal charges. Moreover, after defense counsel sent the letter to Wait, the trial court held multiple hearings in which the subject of Wait’s potential testimony was addressed. Barrett did not raise concerns about witness intimidation at any of those hearings, nor did the State address the possibility of pressing charges against Wait. Indeed Wait appeared at two of the hearings prepared to testify. The State did not issue charges against Wait after any of those hearings, despite being aware of Barrett’s plan to call Wait as a witness. In short, Wait’s affidavit belies the record. Barrett has not met his burden of establishing outrageous government conduct

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Angel Mercado

Case No.: 2018AP2419-CR

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

Focus: Court Error – Admittance of Evidence

Angel Mercado appeals his judgment of conviction for two counts of first-degree sexual assault of a child for having sexual contact with a child under the age of thirteen, and one count of first-degree sexual assault of a child for having sexual intercourse with a child under the age of twelve. He also appeals the trial court’s denial of his postconviction motion for a new trial on the grounds that the trial court erred in admitting the videos of forensic interviews of the three children. Mercado argues that the court did not follow all of the statutory procedures for the admission of those videos, as set forth in WIS. STAT. § 908.08 (2017-18).  He further asserts that admission of the videos under alternative grounds—either pursuant to the residual hearsay exception, or, in the case of the youngest child, as a prior inconsistent statement—would have been in error as well.

The trial court rejected Mercado’s claims, stating that it “perceive[d] no error” in statutory procedure in its admission of the videos. The court also agreed with the State that in any event, all three videos were admissible under the residual hearsay exception, and that the video of the youngest child was admissible as a prior inconsistent statement.

We disagree. The record indicates that the statutory requirements for admission of all three of the videos were not fully met and further, that the requirements for admission under the residual hearsay exception or as a prior inconsistent statement likewise were not satisfied. We therefore reverse Mercado’s convictions on all three charges and remand this matter for a new trial.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Peter Demopoulos v. Ripon Truck Repair & Equipment, LLC,

Case No.: 2018AP2165

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

Focus: Breach of Contract

Peter Demopoulos appeals from an order dismissing his case against Ripon Truck Repair & Equipment LLC following a bench trial. The issue is whether Ripon Truck breached the contract Demopoulos claimed they had for melding the parts of two large trucks to make one roadworthy vehicle suitable for his farm business. We agree with the trial court that the parties did not have a contract and that Demopoulos would be unjustly enriched if the court entered judgment in his favor. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. D.I.G.,

Case No.: 2019AP855

Officials: GUNDRUM, J.

Focus: Abuse of Discretion – Sex Offender Registration

D.G. appeals from a dispositional order adjudicating him to be a delinquent child and requiring that he register as a sex offender and from the order denying his postdisposition motion to stay that portion of the dispositional order requiring him to register as a sex offender. For the following reasons, we affirm.

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WI Court of Appeals – District II

Case Name: Racine County Human Services Department v. S.J.A.

Case No.: 2019AP2160; 2019AP2161

Officials: DAVIS, J.

Focus: Termination of Parental Rights

These consolidated termination of parental rights (TPR) cases concern mother S.J.A. and her minor children, A.K. and L.K. S.J.A. appeals from the circuit court’s order on partial summary judgment declaring her an unfit parent on the ground of abandonment, pursuant to WIS. STAT. § 48.415(1)(a), and from the subsequent orders involuntarily terminating her parental rights. Because there are genuine issues of material fact as to whether S.J.A. had “good cause” under § 48.415(1)(c) for failing to visit or communicate with A.K. and L.K., we reverse and remand for a fact-finding hearing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Michael Williams

Case No.: 2018AP19-CR

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

Focus: Jury Instructions

Michael Williams appeals a judgment of conviction for first-degree reckless homicide as a party to a crime, by use of a dangerous weapon, and felon in possession of a firearm, following a jury trial. Williams contends that the circuit court erred by allowing a witness to testify that she had seen Williams “once or twice” in the past with Williams’s alleged co-actor in the homicide. Williams also contends that the prosecutor made improper remarks during closing arguments that shifted the burden of proof to Williams to prove his innocence. Finally, Williams contends that the standard jury instruction directing the jury to “search for the truth” lowered the State’s burden of proof below the reasonable doubt standard. For the reasons set forth in this opinion, we reject these contentions. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Todd Charles Gronseth

Case No.: 2018AP727-CR

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

Focus: Plea & Sentencing – Plea Withdrawal

Todd Gronseth appeals a judgment of conviction and an order denying his motion for postconviction relief. The issues relate to plea withdrawal and sentencing. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin T. Kane

Case No.: 2018AP1885-CR

Officials: FITZPATRICK, P.J.

Focus: Unreasonable Search – OWI – Blood Test

Justin Kane appeals an order of the Iowa County Circuit Court denying his motion to suppress the results of blood alcohol testing. Kane, who was arrested for operating a motor vehicle while under the influence of an intoxicant (OWI), third offense, consented to the taking of a sample of his blood for the purpose of determining his blood alcohol concentration. Before the Wisconsin State Laboratory of Hygiene tested the sample, Kane sent a letter to the laboratory in an attempt to revoke his consent to test the sample. The first question before this court is whether the testing of Kane’s blood violated his Fourth Amendment right to be free from an unreasonable search. This is the same question recently addressed by our supreme court in State v. Randall, 2019 WI 80, 387 Wis. 2d 744, 930 N.W.2d 223. I conclude that the Randall decision controls here and requires the conclusion that the testing of Kane’s blood was not unconstitutional. The second question before this court is whether Kane’s consent to the blood draw was voluntary. I conclude that Kane’s consent was voluntary under the totality of circumstances. Accordingly, I affirm the circuit court’s order.

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WI Court of Appeals – District IV

Case Name: Kevin D. Trost, et al. v. Haack Homestead Inspections, LLC, et al.

Case No.: 2018AP2344

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

Focus: Insurance Claim – Duty to Defend

Raymond and Donna Weihofen appeal an order of the Dane County Circuit Court granting summary judgment in favor of Economy Premier Assurance Company on the issue of whether Economy had a duty to defend the Weihofens against claims brought by Kevin Trost and Jennifer Gagne. Trost and Gagne purchased a house from the Weihofens.  After purchasing the house, the Buyers discovered a bat infestation and water intrusion inside the house, and the Buyers brought suit against the Weihofens. The Weihofens’ liability insurer, Economy, intervened in the lawsuit to request a determination by the circuit court on the issue of whether Economy has a duty to defend the Weihofens against the Buyers’ claims. The circuit court concluded that Economy does not have a duty to defend and granted Economy’s motion for summary judgment.

We conclude that Economy has no duty to defend the Weihofens against the allegations in the Buyers’ complaint under the liability policy that Economy issued to the Weihofens. Accordingly, we affirm the circuit court’s order.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jared L. Spencer

Case No.: 2019AP308-CR

Officials: Kloppenburg, Graham, and Nashold, JJ.

Focus: Sentence Modification

Jared Spencer appeals a judgment of conviction and circuit court orders that denied Spencer’s motion for sentence modification or resentencing and his motion for reconsideration. Spencer contends that he is entitled to sentence modification based on a new factor: evidence that Spencer attempted to take his psychiatric medications as prescribed when he was in jail. Alternatively, he argues that he is entitled to resentencing because the court relied on inaccurate information that Spencer refused his psychiatric medications in jail. We conclude first that the court properly exercised its discretion when it denied Spencer’s motion for sentence modification. We then conclude that Spencer is not entitled to resentencing because any error by the court in relying on inaccurate information was harmless. We affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Richard A. Mueller, et al. v. TL90108, LLC,

Case No.: 2020 WI 7

Focus: Time-barred – Replevin

A late 1930s Talbot Lago is considered by some one of the most beautiful and innovative cars in the world. This collector’s gem sang such a siren song that it became the subject of an international smuggling effort at the heart of today’s case. The Talbot Lago here——a 1938 model—— mysteriously disappeared from a Milwaukee business in 2001. It reappeared in 2015 after being purchased in Europe by TL90108, LLC (TL). When TL tried to obtain title in Illinois, it triggered a hit on a stolen vehicle report.

After hearing that the prized vehicle had turned up, Plaintiffs Richard Mueller and Joseph Ford III demanded its return from TL, claiming to be the rightful owners. When TL did not oblige, Mueller and Ford brought an action for replevin seeking possession of the vehicle and damages. The circuit court, however, granted TL’s motion to dismiss the complaint on the grounds that the claim was barred by the applicable six-year statutes of repose. Wis. Stat. §§ 893.35, 893.51(1) (2017-18).2 The court of appeals reversed, holding that when Mueller and Ford demanded TL return the vehicle, this triggered a wrongful detention claim and restarted the six-year repose clock.

The core issue we address today is whether the six-year statutes of repose bar Mueller and Ford’s action for replevin. More specifically, we address whether a wrongful detention claim may exist for previously converted property, and if so, when a replevin cause of action based on a subsequent wrongful detention accrues. We conclude that under the plain language of the statutes of repose and our cases, the true owner can maintain a replevin action for wrongful detention against a subsequent purchaser of converted property. We hold that under Wis. Stat. §§ 893.35 and 893.51(1), a cause of action for replevin based on wrongful detention under facts like those alleged here accrues when the subsequent purchaser obtains the property; no demand is necessary.

Thus, for purposes of the motion to dismiss, the replevin action based on TL’s alleged wrongful detention of the vehicle accrued when TL obtained (and thereby wrongfully detained) the vehicle. TL purchased the prized vehicle sometime in 2015. Hence, Mueller and Ford’s cause of action for replevin is not barred by the relevant statutes of repose.

Affirmed in part. Reversed in part.

Concur:

Dissent:

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WI Supreme Court

Case Name: Marathon County v. D.K.

Case No.: 2020 WI 8

Focus: Prisoner – Involuntary Commitment and Medication

This is a review of an unpublished decision of the court of appeals, Marathon County v. D.K., No. 2017AP2217, unpublished slip op. (Wis. Ct. App. Aug. 7, 2018), affirming the Winnebago County circuit court’s Wis. Stat. ch. 51 orders for involuntary commitment and involuntary medication and treatment. D.K. argues that he should not have been committed because the County failed to prove by clear and convincing evidence that he was dangerous as defined under Wis. Stat. § 51.20(1)(a)2.b. (2015-16). The County disagrees, and also argues that D.K.’s commitment is a moot issue.

At the final hearing, the County had to prove by clear and convincing evidence that D.K. was mentally ill, a proper subject for commitment, and dangerous. Wis. Stat. § 51.20(1)(a). The circuit court concluded that Winnebago County met its burden of proof, ordered D.K.’s involuntary commitment for six months, and ordered involuntary medication and treatment. The court of appeals affirmed. It concluded that D.K.’s threats and plans to strangle police officers and kill other people established a “‘reasonable fear . . . of serious physical harm’ under § 51.20(1)(a)2.b,” and, therefore, “the circuit court’s dangerousness determination . . . was supported by the evidence.” D.K., No. 2017AP2217, unpublished slip op., ¶11. On review, we are asked to decide two issues: (1) whether D.K.’s challenge to his commitment order is moot; and (2) whether there was clear and convincing evidence that D.K. was dangerous under § 51.20(1)(a)2.b.

We conclude that D.K.’s commitment is not a moot issue because it still subjects him to a firearms ban. We also conclude that there was clear and convincing evidence at the final hearing that D.K. was dangerous as defined under Wis. Stat. 51.20(1)(a)2.b. Thus, we affirm the court of appeals.

Affirmed

Concur: REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined.

Dissent: DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert W. Horsch

Case No.: 2020 WI 10

Focus: Attorney Disciplinary Hearing

We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney Robert W. Horsch. In the stipulation, Attorney Horsch admits that he violated SCR 20:8.4(b) and agrees that a three-year suspension of his law license is appropriate. After careful review of the matter, we accept the stipulation. Because Attorney Horsch entered into a comprehensive stipulation prior to the appointment of a referee, we do not require him to pay the costs of this proceeding.

License suspended

Concur:

Dissent:

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