Weekly Case Digests – September 21, 2020 – September 25, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Speech First, Inc., v. Thomas L. Killeen, et al.,

Case No.: 19-2807

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

Focus: Preliminary Injunction

Colleges and universities unquestionably benefit from the free flow of ideas, debate, and deliberation on campus. These institutions should strive to foster an environment where critical thought, and sometimes strong disagreement, can flourish. Indeed, “[f]reedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education.” Erwin Chemerinsky & Howard Gillman, Free Speech on Campus x (Yale Univ. Press 2017).

Speech First—a national advocacy organization dedicated to promoting the exercise of free speech on college campuses—alleges that three distinct policies at the University of Illinois at Urbana-Champaign (“the University”) threaten these ideals and impermissibly chill the speech of student members of its organization. It seeks a preliminary injunction to put a halt to these policies.

When a party seeks a preliminary injunction before the district court, the burden rests on that party to demonstrate that it has standing to pursue its claims. Speech First failed to meet that burden for two of the policies it challenges; namely, it failed to demonstrate that its members face a credible fear that they will face discipline on the basis of their speech as a result of those two policies. And for its challenge to the third policy, that claim is moot. The district court therefore correctly denied the motion for a preliminary injunction, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kevin Darnel Kizart

Case No.: 19-2641

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

Focus: Warrantless Search – Motion to Suppress Denied

A police officer pulled over an individual for speeding and smelled burnt marijuana coming from the car. He proceeded to search for contraband or other evidence of illegal activity. We consider whether the scope of that search included the vehicle’s trunk where the officer found illegal drugs.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Standard Security Life Insurance Company of New York, et al., v. FCE Benefit Administrators, Inc.,

Case No.: 19-2336

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

Focus: Insurance Claim – Arbitration Clause – Damages

This case had its origins in an Administrative Services Agreement that Standard Security Life Insurance Company of New York and Madison National Life Insurance Company, Inc. (collectively, the “Insurers”) entered into with FCE Benefit Administrators, Inc. (“FCE”). Under that agreement, FCE administered health insurance policies underwritten by the Insurers. After a few years, however, the Insurers became dissatisfied with FCE’s performance, and so they invoked the Agreement’s arbitration clause.

The arbitration proceeded in two phases. In Phase I, the arbitrators awarded the Insurers damages of more than five million dollars. The Insurers attempted to confirm this award in the Northern District of Illinois, but the district court concluded that this effort was premature because the case was not yet ripe for adjudication. This was so because the arbitrators had not yet resolved all matters that had been submitted to them. In Phase II, the arbitrators denied the Insurers’ remaining claim and FCE’s counterclaim. After the conclusion of Phase II, the Insurers once again sought confirmation. This time, the district court confirmed the arbitration results in their entirety, meaning both the Phase I and Phase II awards. FCE now appeals from the confirmation of the Phase I award. Finding no reason to set aside the district court’s conclusion, we affirm its judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Casimer Zablocki, et al., v. Merchants Credit Guide Co.,

Case No.: 19-2045

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

Focus: FDCPA Violation

As its name suggests, the Fair Debt Collection Practices Act (“FDCPA”) prohibits debt collection practices that are “unfair.” 15 U.S.C. § 1692f. This case tests the bounds of that term. Casimer Zablocki and Regina Johnson received medical services and did not remit their parts of the bills. The medical- service providers turned to Merchants Credit Guide for debt collection, and Merchants eventually reported the unpaid debts to a consumer reporting agency. When Merchants reported the debts, it listed separately the debt for each medical-service charge. Zablocki and Johnson sued Merchants on the theory that reporting the obligations separately, rather than aggregating them together, was an “unfair” way to collect the debts under § 1692f of the FDCPA.

The district court dismissed this theory as unsupported by the FDCPA’s prohibition of “unfair or unconscionable” means to collect a debt. 15 U.S.C. § 1692f. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Christy Lentz v. Teri Kennedy

Case No.: 18-2659

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

Focus: Habeas Relief Denied

For nearly a week Christy Lentz feigned ignorance as she pretended to help investigators locate her missing father. Officers soon discovered the father’s decaying body hidden at the office building the two shared, and all signs pointed to Lentz as the murderer. Lentz, with her young daughter in tow, voluntarily accompanied officers to the police station under the pretense of follow-up questioning for the missing persons investigation. For the first hour and a half, officers asked general questions, like when and where she last saw her father, to commit Lentz to her story. They then took a cigarette break. When the interview resumed, the tone changed. The officers read Lentz her Miranda rights and confronted her with the mounting evidence against her. Over the next four hours, Lentz slowly confessed to shooting her father.

In the state trial court, Lentz moved to suppress her videotaped confession but the court denied her motion. She proceeded to trial, where the confession was admitted into evidence, and a jury found her guilty of first-degree murder. The Illinois Appellate Court affirmed the conviction on direct review. Lentz then tried her hand at state postconviction proceedings but was unsuccessful.

Now on federal habeas review, Lentz claims the interrogation violated her constitutional rights in two ways: that she was “in custody” during the pre-Miranda portion of the interview, and that her confession was involuntary. Because our review is deferential and the state court’s decision with respect to both issues was not an unreasonable application of clearly established federal law, we affirm the district court’s denial of habeas relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Allen L. Surprise v. Andrew M. Saul

Case No.: 19-3233

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: ALJ Error – Expert Testimony

Allen Surprise appeals the denial of his claim for disability insurance benefits and supplemental social security income. The initial ALJ assigned to his case determined that Surprise’s residual functional capacity (“RFC”) included a limitation regarding fine manipulation, but nevertheless concluded that Surprise was not entitled to benefits. Surprise challenged this decision in the United States District Court for the Eastern District of Wisconsin, which twice remanded the matter: once because the transcript of the vocational expert’s testimony was incomplete and once in response to a stipulation from the parties. Surprise contests two aspects of the decision the second ALJ made upon remand: (1) that she failed to adequately account for a portion of the medical expert’s opinion in the hypothetical question posed to the vocational expert, and (2) that her decision violated the law of the case doctrine by failing to adopt the fine manipulation limitation the initial ALJ found in the course of his RFC assessment. Surprise, however, has not identified any obvious conflict between the hypothetical question and the Dictionary of Occupational Titles (“DOT”), nor did the district court make any factual findings that became the law of the case when it entered its remand orders. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Oneida Nation v. Village of Hobart

Case No.: 19-1981

Officials: SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.

Focus: Personal Jurisdiction – Ordinance

The Oneida Nation’s Big Apple Fest has become a test of power and jurisdiction between the Nation and the Village of Hobart, Wisconsin. The Oneida Nation in Wisconsin hosts its annual Big Apple Fest on land partially located in the Village of Hobart. In 2016 the Village demanded that the Nation obtain a permit under a Village ordinance and submit to some of the Village’s laws. The Nation sued for declaratory and injunctive relief, arguing that the Village may not subject the Nation to state and local law on its own reservation. In the meantime, the Nation held the festival without a permit, and the Village issued a citation for violating the ordinance.

To resolve this dispute, we must trace the history of the Oneida Reservation from its establishment by treaty in 1838 through a series of allotment acts passed by Congress around the turn of the twentieth century. If the Reservation remains intact, then federal law treats the land at issue as Indian country not subject to most state and local regulation. The Village argues that the Reservation was diminished piece by piece when Congress allotted the Reservation among individual tribe members and allowed the land to be sold eventually to non‐Indians. The district court agreed and granted summary judgment in favor of the Village.

We reverse. The Reservation was created by treaty, and it can be diminished or disestablished only by Congress. Congress has not done either of those things. The governing legal framework—at least when the issue was decided in the district court and when we heard oral argument—was clear. Under Solem v. Bartlett, 465 U.S. 463 (1984), we look—from most important factor to least—to statutory text, the circumstances surrounding a statute’s passage, and subsequent events for evidence of a “clear congressional purpose to diminish the reservation.” Id. at 476. After this case was argued, the Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). We read McGirt as adjusting the Solem framework to place a greater focus on statutory text, making it even more difficult to establish the requisite congressional intent to dis establish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt.

The undisputed facts show no congressional intent to diminish. First, the statutory texts provide no clear indication that Congress intended to eliminate all tribal interests in allotted Oneida land. Second, the Supreme Court has rejected— time and time again—the Village’s argument that diminishment can be the result of Congress’s general expectation in the late nineteenth and early twentieth centuries that its actions would lead eventually to the end of the reservation system. These general expectations do not show an “unequivocal[]” contemporary understanding that the statutes would diminish the Reservation and effectively abrogate the United States’ treaty with the Oneida. Solem, 465 U.S. at 471. The Village’s argument that Congress intended to diminish the Reservation by allowing land to pass out of Indian hands is antithetical to Solem and the well‐established legal framework for diminishment. Third, events following Congress’s enactment of the relevant statute (or statutes) cannot alone support a finding of diminishment in the absence of textual or contextual support. Even if they could, the evidence offered by Village is so inconclusive that it could not justify a finding that the United States unilaterally broke the 1838 Treaty.

The Village’s alternative arguments for affirmance also fail. The Nation is not bound by a 1933 judgment in a federal case brought by some of its individual members. And the Village has not shown “exceptional circumstances” that could justify imposing its Special Events Ordinance on the Nation within the boundaries of the Reservation. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 (1987). In sum, as a matter of federal law, the entire Reservation as established by the 1838 Treaty remains Indian country. The Village lacks jurisdiction to apply its ordinance to the Nation’s on‐reservation activities. We remand with instructions to enter judgment in favor of the Nation.

Reversed and remanded with instructions

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7^th Circuit Court of Appeals

Case Name: Brenda Mitze v. Andrew M. Saul

Case No.: 19-3212

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

Focus: Social Security Benefits – HIPPA Violation

Years after Brenda Mitze unsuccessfully appealed the denial of her application for social security benefits, she moved to seal court decisions and other records, claiming that their publication violated her right to keep her medical information private. The district court denied the motion and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Estate of Joseph Biegert v. Thomas Molitor

Case No.: 19-2837

Officials: SYKES, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.

Focus: 4^th Amendment Violation – Excessive Force

Joseph Biegert’s mother called the police for help because she was concerned that her son was attempting to kill himself. Officers went to Biegert’s apartment to check on him, and when they arrived, Biegert initially cooperated. He began resisting, though, when the officers tried to pat him down. A scuffle ensued, and the officers tried to subdue Biegert with fists, Tasers, and a baton. All of these efforts to restrain Biegert failed, and Biegert armed himself with a kitchen knife. When he began to stab one of the officers, they shot him, and he died at the scene.

Biegert’s mother, on behalf of his estate, argues that the officers used excessive force both by restraining Biegert during a pat down and by shooting him. The district court disagreed, concluding that the officers reasonably restrained Biegert and that they reasonably resorted to lethal force when Biegert threatened them with a knife.

The officers did not violate the Fourth Amendment by shooting Biegert. Nor did their actions preceding the shooting render their use of force unreasonable. Because we conclude that no constitutional violation occurred, we need not determine whether the officers are entitled to qualified immunity. The district court’s decision is AFFIRMED.

Decision

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. William Francis Kuehn

Case No.: 2018AP2355-CR

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

Focus: Postconviction Motion Denied – Ineffective Assistance of Counsel

After guilty pleas, William Kuehn was convicted in the Milwaukee County Circuit Court of five counts of possession of child pornography pursuant to WIS. STAT. § 948.12(1m) (2013-14). Ten counts of possession of child pornography were dismissed by the State and read in at the time of Kuehn’s sentencing. The trial court sentenced Kuehn to five consecutive terms of imprisonment. In addition, pursuant to WIS. STAT. § 973.042(2), the trial court imposed a $500 child pornography surcharge against Kuehn for each of the images which formed the bases for the five counts of which he was convicted and for each of the images which formed the bases for the ten counts which were dismissed and read in at sentencing. The trial court also barred Kuehn, during the term of his extended supervision, from having any contact with his girlfriend.

In postconviction motions, Kuehn argued that: (1) he should be allowed to withdraw his guilty pleas because his trial counsel was constitutionally ineffective; (2) the trial court erred in imposing the child pornography surcharge for each of the ten images which formed the bases for the read-in counts; and (3) the trial court impermissibly infringed on Kuehn’s constitutional right to freedom of association by barring contact with Kuehn’s girlfriend during his term of extended supervision. The postconviction court denied each of Kuehn’s motions. Kuehn appeals and we affirm.

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WI Court of Appeals – District III

Case Name: Superior Silica Sands, LLC., et al., v. Herman Grant Company, et al., 

Case No.: 2018AP2437

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

Focus: Abuse of Discretion – Declaratory Judgment Motion

Superior Silica Sands (Superior) contracted with Market & Johnson (M&J) to construct a dry sand processing plant in Barron, Wisconsin (the Barron Plant). The parties’ contract contained a limited remedy provision, which limited the damages Superior could recover from M&J and its subcontractors. M&J, in turn, contracted with Herman Grant Company, Inc., (Herman Grant) to build a sand dryer for the Barron Plant.

Superior deemed the sand dryer to be deficient in several respects, and it ultimately commenced this lawsuit against Herman Grant and its insurers. The circuit court granted Herman Grant’s motion for a declaratory judgment and entered an order stating that, by virtue of the limited remedy provision, Superior was barred from “recovering damages for lost profits, repair costs, and loss adjustment and professional fees.” Superior then voluntarily dismissed its contract and tort claims against Herman Grant.

Superior now appeals, arguing the circuit court erroneously exercised its discretion by granting Herman Grant’s declaratory judgment motion. Herman Grant disagrees, and it also argues, in the alternative, that Superior’s argument is moot because Superior voluntarily dismissed its contract and tort claims after the court granted Herman Grant’s declaratory judgment motion. We reject Herman Grant’s mootness argument. We agree with Herman Grant, however, that the court properly granted its declaratory judgment motion. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert A. Washington

Case No.: 2019AP13-CR

Officials: Sheila T. Reiff

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 3 in the above-captioned opinion which was released on June 25, 2020. 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: Petitioner v. Christopher Alan Higgins

Case No.: 2019AP147

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

Focus: Sufficiency of Evidence

Christopher Higgins appeals from a circuit court order granting a ten-year domestic abuse injunction with a firearms restriction, entered in favor of his former girlfriend. We conclude the court’s order was supported by sufficient evidence, and we affirm.

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WI Court of Appeals – District III

Case Name: Marie I. McRoberts v. Labor and Industry Review Commission, et al.,

Case No.: 2019AP481

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

Focus: LIRC Review – Worker’s Compensation

Marie McRoberts appeals from a circuit court order affirming an order of the Wisconsin Labor and Industry Review Commission (LIRC). McRoberts argues LIRC erred by finding that McRoberts was not permanently disabled as a result of an April 17, 2013 fall in her employer’s parking lot and by dismissing her worker’s compensation application. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Darrin Stingle

Case No.: 2019AP491

Officials: STARK, P.J.

Focus: Sufficiency of Evidence

Darrin Stingle appeals a judgment entered following a bench trial at which the circuit court determined that he violated WIS. STAT. § 281.36(3b)(b) by discharging fill material into a wetland without a permit. Stingle does not dispute that he placed fill in the areas in question, and he concedes he did not have a permit to do so. He argues, however, that the court erred by finding that the areas in question constituted wetlands. He therefore argues the evidence at trial was insufficient to show that he violated § 281.36(3b)(b). In the alternative, Stingle asks us to reverse and remand for a new trial because the circuit court judge was objectively biased against him.

We conclude the evidence at trial was sufficient to support the circuit court’s finding that the areas where Stingle placed fill constituted wetlands. As such, the evidence was sufficient to support the court’s determination that Stingle violated WIS. STAT. § 281.36(3b)(b). We agree with Stingle, however, that the record shows the court was objectively biased against him. We therefore reverse and remand for a new trial before a different judge. Finally, we deny Stingle’s request that we impose sanctions on the State for its failure to timely file its response brief.

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WI Court of Appeals – District III

Case Name: Uneeda Rest, LLC, v. Rick Hexum, et al.,

Case No.: 2019AP1357

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

Focus: Insurance Claim – Coverage

Jake Westerhof and Uneeda Rest, LLC, appeal a summary judgment granted in favor of Wisconsin Mutual Insurance Company. The circuit court concluded insurance policies that Wisconsin Mutual had issued to Westerhof did not provide coverage for Rick Hexum’s claims against Westerhof and Uneeda Rest. We agree that Wisconsin Mutual’s policies do not provide coverage for two of the three kinds of property damage asserted by Hexum. However, the circuit court erred by concluding, as a matter of law, that the policies do not cover Hexum’s claim for damage to his noneasement property. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Brian Anthony Taylor

Case No.: 2019AP1770-CR

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

Focus: Plea Withdrawal

Brian Anthony Taylor appeals a judgment of conviction, following a no contest plea, to one count of child enticement. On appeal, Taylor contends that the circuit court erroneously denied his presentence motion to withdraw his plea because Taylor established a fair and just reason to withdraw his plea in that the plea was rushed and entered in haste. Taylor also contends that the circuit court applied the wrong legal standard when denying his motion, that the circuit court erroneously determined that the State would be substantially prejudiced by Taylor’s plea withdrawal, and that the circuit court’s decision was not supported by the record. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.C.,

Case No.: 2020AP796

Officials: WHITE, J.

Focus: Abuse of Discretion – Termination of Parental Rights

L.C. appeals the circuit court’s order terminating her parental rights to her child, M.S. Jr., on the petition of the Milwaukee County Department of Human Services. She asks this court to vacate the order and remand for a new trial. She argues that the trial court erroneously exercised its discretion when it struck her contest posture as a sanction and entered an order of default judgment on the grounds of termination of L.C.’s parental rights. We conclude that the default sanction was not an erroneous exercise of discretion because a trial court may default a party as a sanction for egregious conduct and the record supports the trial court’s findings. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Placido A. Flores, Jr.,

Case No.: 2019AP190-CR

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Postconviction Motion Denied – Ineffective Assistance of Counsel  

Placido A. Flores, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. He contends that (1) his trial counsel was ineffective, (2) the circuit court erroneously exercised its discretion in denying his motion for a mistrial, and (3) he is entitled to a new trial in the interest of justice. We reject Flores’ arguments and affirm.

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WI Court of Appeals – District II

Case Name: Robert D. Corey, Sr., et al., v. Norbert T. Roffers, et al.,

Case No.: 2019AP1239

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: Easement

Norbert T. and Carol A. Roffers (the Rofferses) appeal from an order of the circuit court granting the Coreys declaratory judgment. The Rofferses claim a forty-foot wide ingress/egress easement on land owned by the Coreys. The circuit court, pursuant to the written easement agreement documents, declared the easement to be the twelve-foot wide gravel driveway that existed at the time the Rofferses purchased their property and also declared a dispute resolution procedure for future disagreements between the parties. We affirm the court’s decision, although we modify the order governing dispute resolution.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Leonard D. Kachinsky

Case No.: 2020AP118-CR

Officials: DAVIS, J.

Focus: Abuse of Discretion – Sufficiency of Evidence

Leonard D. Kachinsky appeals from an amended judgment of conviction finding him guilty of violating a harassment injunction and from an order denying his postconviction motion. We conclude that Kachinsky’s prosecution comported with due process; that sufficient evidence supported the jury verdict; and that the trial court properly exercised its discretion to impose probation conditions that were reasonable and appropriate for Kachinsky’s rehabilitation and the protection of society (and, specifically, the petitioner). Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Michael D. Morris v. Jon E. Litscher

Case No.: 2019AP601

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Prisoner – Legal Loan Authorization

Michael Morris appeals an order that affirmed a decision by the secretary of the Department of Corrections on an inmate complaint. Morris submitted a complaint to the inmate complaint review system. It alleged that the institution’s business office denied his request for a legal loan in connection with two cases, and that the business office denied the request because it believed that the request was controlled by a department policy that caps legal loans at $50 for inmates who have not repaid prior legal loans. Morris argued that the policy is not enforceable because it should have been promulgated as an administrative rule. As relief Morris requested the additional $50 of legal loan authorization. The examiner recommended dismissal of the complaint.

The examiner found that the business office “explained the reason for denial” and the examiner recommended dismissal of Morris’s complaint because “the denial is supported by DAI policy.” Morris appealed to the corrections complaint examiner, who also recommended dismissal of the complaint. As explanation, the examiner wrote: “As noted[,] the denial is in accordance with policy.” Morris then appealed to the department secretary, who decided as follows: The attached Corrections Complaint Examiner’s recommendation to DISMISS this appeal is accepted as the decision of the Secretary. The complainant was denied a legal loan extension because he had only spent $16.37 of the $50 available to him this calendar year making his request premature. The complainant was advised to prioritize his spending to meet his litigation needs. For example, E-filing documents to the USWD court is free and a great way to save money rather than spending limited funds on postage.

Unlike the previous decision makers, the secretary did not expressly refer to the department policy that Morris argued was an unenforceable rule. Morris filed a petition for a writ of certiorari in circuit court. That court affirmed the secretary’s decision. On certiorari review, we review the decision of the agency, not the circuit court. See State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶34, 353 Wis. 2d 307, 845 N.W.2d 373. Here, the decision by the secretary relied on the idea that Morris’s request for the additional legal loan authorization was premature. The secretary may also have relied on the department policy referred to in the examiners’ earlier decisions, because the secretary stated that he was accepting the decision of the corrections complaint examiner. However, that is not entirely clear.

Morris argues on appeal that the $50 cap does not apply to him because: it is an unpromulgated rule; he does not have unpaid balances; he meets exceptions to the policy; and he is being treated differently under the policy than another inmate was. We resolve this appeal based on the prematurity issue, which is dispositive.

It appears that Morris may have chosen to send the court the account information for that date because that weekly statement included the date on which the secretary received Morris’s appeal, May 2, 2018. However, the date of the secretary’s review is not significant. The secretary was reviewing an inmate complaint filed to address a specific action by the business office. That action occurred in late March 2018, and the secretary determined that, as of that date, Morris’s loan request was premature. Whether it would have been premature at some later date was not an issue before the secretary, and is not before us now in this judicial review. Morris does not make any other argument to dispute the secretary’s decision that Morris’s loan request was premature. Therefore, because we conclude that Morris’s one argument against that basis for the decision is not well founded, we affirm.

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WI Court of Appeals – District IV

Case Name: Danelle Duncan v. Asset Recovery Specialists, Inc., et al.,

Case No.: 2019AP1365

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Statutory Interpretation – Repossession

Greg Strandlie, Asset Recovery Specialists, Inc., and Wells Fargo Bank, N.A. (collectively, the defendants) repossessed Danelle Duncan’s vehicle while it was parked in the shared garage on the ground floor of her multi-unit apartment complex. It is undisputed that the defendants had a legal right to repossess the vehicle, but Duncan argues that the way they repossessed it violated WIS. STAT. § 425.206(2)(b) (2017-18).  She also contends that the defendants violated WIS. STAT. § 425.107(1), which prohibits unconscionable conduct directed against a customer. The circuit court determined that the defendants did not violate § 425.206(2)(b), and on that basis, it granted summary judgment on all claims in the defendants’ favor.

The central issue in this appeal is the proper interpretation of WIS. STAT. § 425.206(2), which prohibits a merchant from “enter[ing] a dwelling used by the customer as a residence” to repossess collateral. We conclude that the garage in Duncan’s apartment building was part of a dwelling she used as a residence. Therefore, the defendants violated § 425.206(2)(b) when they entered the garage, the circuit court erred by granting summary judgment in the defendants’ favor, and Duncan is entitled to summary judgment on that claim instead. We also reverse the court’s grant of summary judgment on the WIS. STAT. § 425.107(1) claim because the court’s stated reasons no longer apply, and the parties’ remaining arguments about unconscionable conduct are undeveloped. Accordingly, we reverse the order granting summary judgment to the defendants and remand for further proceedings consistent with this opinion.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Frank T. Whitehead v. Indianhead Food Distribution, et al.,

Case No.: 2019AP1368

Officials: KLOPPENBURG, J.

Focus: Abuse of Discretion – Default Judgment

Frank T. Whitehead moved the circuit court for default judgment against Indianhead Food Distribution and Corbet Petersen. Whitehead argued that he was entitled to default judgment in his favor because Indianhead and Petersen failed to file their answer to his small claims summons and complaint by the time of the original return date, and the court commissioner erroneously adjourned the return date to two weeks later. The circuit court denied Whitehead’s motions and subsequently dismissed the case after a trial to the court. On appeal, Whitehead challenges the court commissioner’s adjournment of the return date and the circuit court’s denial of his motions for default judgment. As I explain, I conclude that Whitehead fails to meet his burden to show that the circuit court erroneously exercised its discretion and, therefore, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Tory J. Agnew

Case No.: 2019AP1785-CR

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

Focus: Sentencing Guidelines – Extended Supervision

Tory J. Agnew pleaded no contest in the Dodge County Circuit Court to one count of operating a vehicle while intoxicated, causing injury, with a minor in the vehicle. See WIS. STAT. §§ 346.63(2)(a)1. and 346.65(3m) (2017-18). Agnew’s no contest plea included his admission that, because of a prior felony conviction, Agnew was a “repeater.” Agnew’s status as a repeater increased the amount of imprisonment that may be imposed by the circuit court for that offense. See WIS. STAT. § 939.62(1)(b); see also WIS. STAT. § 973.01(2)(c). The circuit court imposed a sentence of four years of imprisonment, consisting of three years of initial confinement and one year of extended supervision.

This appeal concerns how the circuit court may apply the repeater penalty enhancer as part of Agnew’s sentence. Agnew argues that his sentence was not lawful because the sentence exceeded the maximum lawful terms of initial confinement and extended supervision. We disagree and affirm the circuit court.

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