Weekly Case Digests – October 12, 2020 – October 16, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Smart Oil, LLC, v. DW Mazel, LLC

Case No.: 19-2542

Officials: MANION, BARRETT, and BRENNAN, Circuit Judges.

Focus: Breach of Contract – Summary Judgment

Smart Oil, LLC agreed to sell thirty parcels of land with gas stations and convenience stores to DW Mazel, LLC (“DWM”). DWM failed to close under the agreement, which by its terms granted Smart Oil the earnest money for the transaction as liquidated damages. But DWM never paid that money, and Smart Oil sued. DWM counter‐ claimed for breach of contract and fraudulent inducement.

The district court granted Smart Oil summary judgment, ruling that DWM breached the agreement by not paying the earnest money, which Smart Oil was entitled to as liquidated damages under Illinois law. The court also ruled that DWM’s counterclaims for breach of contract and fraudulent inducement failed for the same reason. DWM appeals. The district court ruled correctly in all respects, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America ex. rel. CIMZNHCA, LLC, v. UCB, Inc., et al.,

Case No.: 19-2273

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

Focus: Appellate Jurisdiction

The False Claims Act allows the United States government to dismiss a relator’s qui tam suit over the relator’s objection with notice and opportunity for a hearing. 31 U.S.C. § 3730(c)(2)(A). The Act does not indicate how, if at all, the district court is to review the government’s decision to dismiss. The D.C. Circuit has said not at all; the Ninth Circuit has said for a rational basis. Compare Swift v. United States, 318 F.3d 250 (D.C. Cir. 2003), with United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir. 1998). In this case, the district court said it agreed with the Ninth Circuit but applied something closer to administrative law’s “arbitrary and capricious” standard and denied dismissal. The government has appealed. The relator contends we should either dismiss for want of appellate jurisdiction or affirm.

We find that we have jurisdiction and reverse. First, we interpret the Act to require the government to intervene as a party before exercising its right to dismiss under § 3730(c)(2)(A). We think it best, however, to construe the government motion here as a motion to both intervene and dismiss. This solves the jurisdictional problem without needing to create a new category of collateral-order appeals. On the merits, we view the choice between the competing standards as a false one, based on a misunderstanding of the government’s rights and obligations under the False Claims Act. And by treating the government as seeking to intervene, which it should have been allowed to do, we can apply a standard for dismissal informed by Federal Rule of Civil Procedure 41.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Blair Cook

Case No.: 18-1343

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

Focus: Jury Instructions

A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(3) (proscribing possession of firearm by unlawful user of controlled substance), 924(a)(2)(specifying penalties for one who “knowingly” violates section 922(g)). Cook appealed his conviction, contending that the statute underlying his conviction is facially vague, that it improperly limits his Second Amendment right to possess a firearm, and that the district court did not properly instruct the jury as to who constitutes an unlawful user of a controlled substance. We affirmed Cook’s conviction. United States v. Cook, 914 F.3d 545 (7th Cir. 2019). The Supreme Court subsequently held in Rehaif v. United States, 139 S. Ct. 2191, 2194, 2200 (2019), that the knowledge element of section 924(a)(2) requires the government to show that the defendant knew not only that he possessed a firearm, but that he belonged to the relevant category of persons barred from possessing a firearm. Consistent with the prior case law of this court, the superseding indictment in this case did not allege, nor the jury instructions advise the jury that it must find, that Cook knew he was an unlawful user of a controlled substance. Cook’s petition for a writ of certiorari was pending at the time that Court was considering Rehaif, and Cook had suggested that if the Court in Rehaif expanded the knowledge requirement of section 924(a)(2) to include knowledge of one’s status, the Court ought to remand his case for further proceedings. Petition for Writ of Certiorari at 25–26, Cook v. United States, No. 18-9707 (U.S. June 12, 2019).  The Court subsequently granted Cook’s petition, vacated our decision sustaining his conviction, and remanded for reconsideration in light of Rehaif, as Cook had asked it to do. Cook v. United States, 140 S. Ct. 41 (Oct. 7, 2019).Upon reconsideration, we now reincorporate our previous decision, with minor modifications, rejecting Cook’s vagueness and Second Amendment challenges to section 922(g)(3) along with his objection to the jury instruction on who constitutes an unlawful user of a controlled substance. But in light of Rehaif, we conclude that Cook is entitled to a new trial.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Tim Jon Semmerling v. Cheryl T. Bormann, et al.,

Case No.: 19-3211

Officials: BRENNAN, Circuit Judge (in chambers).

Focus: Court Error – Motion for Summary Affirmance

Appellee the United States asks this court to summarily affirm the district court’s dismissal of appellant Tim Jon Semmerling’s complaint because his appellate brief does not assert any error in the district court’s decision.

Semmerling worked as a contractor for the U.S. Military Commissions Defense Organization as part of the legal team for a person charged as an al-Qaeda enemy combatant. Semmerling, who is gay, disclosed his sexuality to the lead attorney of that team, and Semmerling alleges that, despite promising secrecy, that attorney disclosed his sexuality to the client and told the client that Semmerling was infatuated with the client and was pursuing that interest.

Semmerling sued the lead attorney for state-law torts of defamation, negligence, and intentional infliction of emotional distress, and he sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2674, for negligence and intentional infliction of emotional distress. Both defendants moved to dismiss the complaint for failure to state a claim, FED.R. CIV. P. 12(b)(6), and the district court granted their motions. Semmerling has appealed and by counsel submitted a seven-page brief that is light on factual details and legal analysis. The United States moves for summary affirmance. It highlights the sparseness of Semmerling’s brief and asserts that summary affirmance is appropriate here because “[s]ummary affirmance may … be in order when the arguments in the opening brief are incomprehensible or completely insubstantial.” United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) (citing Lee v. Clinton, 209 F.3d 1025, 1025–27 (7th Cir. 2000), and Williams v. Chrans, 42 F.3d 1137, 1139 (7th Cir. 1994)). The co-appellee did not join the government’s motion. She has filed a responsive brief in which she argues that Semmerling has waived any argument against the district court’s order. She also defends the order on its merits.

The motion for summary affirmance is DENIED without prejudice to renewal of the arguments in the government’s brief. Semmerling may, within seven days from this opinion, seek leave to strike his opening brief and to file a brief that complies with Rule 28. If he chooses to do so, this court will reset a briefing schedule, and the appellees may submit, along with their briefs, a request for reasonable attorney’s fees— paid by Attorney Wigell—for the work required to produce the first, unnecessary response.

Denied

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7^th Circuit Court of Appeals

Case Name: Scott Hildreth v. Kim Butler, et al.,

Case No.: 18-2660

Officials: SYKES, Chief Judge, FLAUM, EASTERBROOK, KANNE, ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Petition for Rehearing En Banc

On consideration of plaintiff-appellant’s petition for rehearing and rehearing en banc, filed on June 16, 2020, a majority of the panel voted to deny rehearing. A judge in regular active service requested a vote on the petition for rehearing en banc. A majority of judges in regular active service voted to deny the petition for rehearing en banc. Judges Rovner, Wood, Hamilton, and Scudder voted to grant the petition for rehearing en banc.

Accordingly, the petition for rehearing and rehearing en banc is DENIED.

Denied

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7^th Circuit Court of Appeals

Case Name: Clayton Lee Waagner v. United States of America

Case No.: 19-3008

Officials: SYKES, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

Focus: Sentencing Career Criminal Classification

Clayton Waagner filed a second collateral attack on his sentence under 28 U.S.C. § 2255. He now claims that his classification as an armed career criminal under the Armed Career Criminal Act (“ACCA”) is improper in light of the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015). Specifically, he challenges the classifications of his Ohio aggravated burglary convictions and Ohio attempted robbery conviction as violent felonies under the ACCA. The district court denied his motion. It concluded that, although his prior convictions for Ohio aggravated burglary no longer constitute predicate offenses for ACCA purposes under the invalidated residual clause, they still qualify as predicate offenses under the enumerated offenses clause of that statute.

We now affirm the judgment of the district court. We agree with Mr. Waagner that the advent of Johnson permits him to bring a second motion under § 2255, because prior to Johnson, any such challenge would have been futile. Nonetheless, because Ohio aggravated burglary and Ohio attempted robbery are violent felonies as that term is defined in the ACCA, the sentencing court properly adjudicated Mr. Waagner as an armed career criminal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Epic Systems Corp., v. Tata Consultancy Services Ltd., et al.

Case No.: 19-1528; 19-1613

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

Focus: Punitive Damages

Without permission from Epic Systems, Tata Consultancy Services (“TCS”) downloaded, from 2012 to 2014, thousands of documents containing Epic’s confidential information and trade secrets. TCS used some of this information to create a “comparative analysis”—a spreadsheet comparing TCS’s health-record software (called “Med Mantra”) to Epic’s software. TCS’s internal communications show that TCS used this spreadsheet in an attempt to enter the United States health-record-software market, steal Epic’s client, and address key gaps in TCS’s own Med Mantra software.

Epic sued TCS, alleging that TCS unlawfully accessed and used Epic’s confidential information and trade secrets. A jury ruled in Epic’s favor on all claims, including multiple Wisconsin tort claims. The jury then awarded Epic $140 million in compensatory damages, for the benefit TCS received from using the comparative-analysis spreadsheet; $100 million for the benefit TCS received from using Epic’s other confidential information; and $700 million in punitive damages for TCS’s conduct.

Ruling on TCS’s motions for judgment as a matter of law, the district court upheld the $140 million compensatory award and vacated the $100 million award. It then reduced the punitive-damages award to $280 million, reflecting Wisconsin’s statutory punitive-damages cap. Both parties appealed different aspects of the district court’s rulings.

We agree with the district court that there is sufficient evidence for the jury’s $140 million verdict based on TCS’s use of the comparative analysis, but not for the $100 million verdict for uses of “other information.” We also agree with the district court that the jury could punish TCS by imposing punitive damages. But the $280 million punitive-damages award is constitutionally excessive, so we remand to the district court with instructions to reduce the punitive-damages award.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Protect our Parks, Inc., et al., v. Chicago Park District, et al.,

Case No.: 19-2308; 19-3333

Officials: MANION, BARRETT, and BRENNAN, Circuit Judges.

Focus: Subject-matter Jurisdiction

This case is about the plaintiffs’ quest to halt construction of the Obama Presidential Center in Chicago’s Jackson Park. First developed as the site for the Chicago World’s Fair in 1893, Jackson Park has a storied place in Chicago history, and as public land, it must remain dedicated to a public purpose. The City made the judgment that hosting a center devoted to the achievements of America’s first African-American President, who has a longstanding connection to Chicago, fit that bill. Vehemently disagreeing, the plaintiffs sued the City of Chicago and the Chicago Park District to stop the project. They brought a host of federal and state claims, all asserting variants of the theory that the Obama Presidential Center does not serve the public interest but rather the private interest of its sponsor, the Barack Obama Foundation.

The district court granted summary judgment to the defendants across the board, and the plaintiffs appeal. We affirm the district court’s judgment as to the federal claims, but we hold that it should have dismissed the state claims for lack of jurisdiction. Federal courts are only permitted to adjudicate claims that have allegedly caused the plaintiff a concrete injury; a plaintiff cannot come to federal court simply to air a generalized policy grievance. The federal claims allege a concrete injury, albeit one that, as it turns out, the law does not recognize. The state claims, however, allege only policy disagreements with Chicago and the Park District, so neither we nor the district court has jurisdiction to decide them.

Affirmed and vacated in part. Cause remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Arthur Friedman

Case No.: 19-2004

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

Focus: Sentencing Guidelines – Enhancement

To keep his car dealership afloat, Arthur Friedman secured loans for fake buyers of a phony inventory of cars. The scheme resulted in a bank fraud conviction, a 108‐month prison sentence, and an order to pay roughly $5 million in restitution. We have cautioned against raising too many issues on appeal; Friedman raises nine to his conviction and his sentence. Friedman appeals a glut of pre‐trial, trial, and post‐verdict rulings. His arguments cover: (1) the alleged conflict of interest of Bilis’s counsel; (2) jury instructions; (3) the jury’s verdict on count five, the Blekhman loan charge; (4) the denial of a new trial based on the government’s “gut” references during its closing argument; (5) the denial of a new trial based on “newly discovered evidence”; (6) a sentencing enhancement for obstruction of justice; (7) a sentencing enhancement for the use of sophisticated means to conceal the fraud; (8) the district court’s calculation of loss attributable to the fraud; and (9) the district court’s restitution order. We discuss these challenges in that order. For sake of clarity as to the appropriate standard of review, the issues are organized according to whether they were raised via motion or objection. The district court ruled correctly in all respects, so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leonid Burlaka, et al., v. Contract Transport Services LLC,

Case No.: 19-1703

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

Focus: Statutory Interpretation – Motor Carrier Act Violation

Leonid Burlaka, Timothy Keuken, Travis Frischmann, and Roger Robinson are truck drivers who brought individual, collective, and class action claims against Contract Transport Services (CTS), their former employer, for failing to provide overtime pay in violation of the Fair Labor Standards Act (FLSA), which requires overtime pay for any employee who works more than forty hours in a workweek. 29 U.S.C. § 207(a)(1). The entitlement to overtime pay, however, is not absolute: as relevant here, the statute exempts employees who are subject to the Secretary of Transportation’s jurisdiction under the Motor Carrier Act (MCA). 29 U.S.C. § 213(b)(1). This carveout is known as the “MCA exemption,” and its rationale is safety. It is dangerous for drivers to spend too many hours behind the wheel, and “a requirement of pay that is higher for overtime service than for regular service tends to … encourage employees to seek” overtime work. Levinson v. Spector Motor Serv., 330 U.S. 649, 657 (1947).

The viability of these claims therefore depends on whether the plaintiffs are subject to the jurisdiction of the Secretary of Transportation, which extends “over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both[] are transported by motor carrier … between a place in … a State and a place in another State.” 49 U.S.C. § 13501(1)(A). Importantly, drivers need not actually drive in interstate commerce to fall within the Secretary’s jurisdiction. As the Department of Transportation has explained through a notice of interpretation, the MCA exemption applies even to drivers who have not driven in interstate commerce so long as they are employed by a carrier that “has engaged in interstate commerce and that the driver could reasonably have been expected to make one of the carrier’s interstate runs.” Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902, 37,903 (July 23, 1981).

The plaintiffs make several weak attempts to undermine this conclusion. First, they argue that as spotters, they were not likely to be given over-the-road assignments. Thus, they claim, there was only a “remote” chance that they’d be sent on interstate runs. See Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 663 (7th Cir. 2011). This argument is wholly unpersuasive. As we have already explained, the plaintiffs can fall within the MCA exemption even if they were not expected to take over-the-road assignments. The question is whether the plaintiffs’ spotting duties were part of the interstate journey of the goods. If they were, the MCA exemption applies. When both over-the-road drivers and spotters take part in the interstate journey of the goods, both services affect “safety of operation of an interstate motor carrier.” Levinson, 330 U.S. at 668.

The plaintiffs also argue that any link between their spotting services and the interstate shipment is too attenuated to form a continuous interstate journey. They emphasize that the interstate shipment process entailed several steps between the initial spotting and the eventual delivery of the goods across state lines. These steps included rotation among the drivers, stops at different locations such as warehouses, and potential unloading and reloading. But the existence of intermediary steps does not sever the connection between the plaintiffs’ driving and the ultimate interstate movement of the goods. None amounted to anything other than “interruptions in the journey that … are no more than the normal stops or stages that are common in interstate sales.” Collins, 589 F.3d at 898. The plaintiffs seem to imagine that a continuous journey must resemble a relay race, in which the next driver immediately picks up exactly where the other left off. But that is neither how interstate shipments work nor what the MCA requires.

Because the evidence establishes that plaintiffs were subject to performing spotting duties that comprised one leg of a continuous interstate journey, the district court’s grant of summary judgment is AFFIRMED.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Scott Ginsberg

Case No.: 19-1305

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

Focus: Sufficiency of Evidence

A jury found Scott Ginsberg guilty of bank fraud. On appeal, he argues there was insufficient evidence that he knowingly defrauded the banks. He also argues the district court erred by allowing certain testimony by a closer. Ginsberg is the only defendant in this case. Whether or not there are other people who might have deserved blame, or other transactions that might have been illegal, they are not before us. We focus on Ginsberg.

Spring Hill Development, LLC, owned a 240-apartment complex in a Chicago suburb. In 2007, the owner converted the apartments into condominiums and attempted to sell them. The record is unclear about the seller’s motives. Ginsberg’s attorney intimated at trial that the seller desperately needed to get rid of the properties, so it would do almost anything to sell them. During closing arguments, he said he “imagine[d]” the interest rates the seller faced were “getting pretty high.”

Ginsberg made arrangements with the seller. He recruited several people to buy units in bulk, telling them they would not need to put their own money down, and telling them he would pay them after the closings. The scheme was a fraud, with Ginsberg at its center. The fraudulent scheme consisted of multiple components and false statements to trick financial institutions into loaning nearly $5,000,000 for these transactions. One key was that the seller made payments through Ginsberg that the buyers should have made, which meant that the stated sales prices were shams, the loans were undercollateralized, and the “buyers” had no skin in the game. The seller paid Ginsberg about $1,200,000. Of this money, he used nearly $600,000 to make payments the buyers should have made. He also paid over $200,000 to the buyers and their relatives. And he kept nearly $400,000 for himself. Through this scheme, the seller paid for the buyers. That is not the direction money should flow in these transactions, according to the financial institutions. The loans ultimately went into default, causing the financial institutions significant losses.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: CITGO Petroleum Corporation v. Miti Connect, LLC dba Black Canyon, et al.,

Case No.: 2018AP1555

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

Focus: Personal Jurisdiction

mGage, LLC, appeals the trial court’s nonfinal order denying its motion to dismiss CITGO Petroleum Corporation’s complaint on the grounds of lack of personal jurisdiction. The sole issue on appeal is whether mGage is subject to specific personal jurisdiction in Wisconsin.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Richard A. Lauer v. Dennis Lauer, et al.,

Case No.: 2018AP1672

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

Focus: Estate – Motion for Recusal Denied

Richard Lauer, pro se, challenges those parts of an order that denied a petition to remove his brother, Dennis Lauer, as personal representative of their mother’s estate, and denied a motion for recusal of the judge. As best as we can decipher, Richard argues that: (1) the circuit court erred by denying his petition without a hearing, contrary to WIS. STAT. § 857.15 (2017-18) ; (2) the failure to “follow the mandates” of § 857.15 “resulted in a summary judgment”; and (3) denial of the petition is proof of the judge’s partiality, thus requiring recusal. We reject Richard’s arguments and affirm the order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Murry Locke

Case No.: 2018AP2446-CR

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

Focus: Sentencing Modification

Murry Locke, pro se, appeals from an order denying his motion for sentence modification based on two allegedly new factors. The first alleged new factor was that one of Locke’s read-in offenses involved the violation of a statute that was later found to be unconstitutional. Locke asserts the court improperly considered that offense at his resentencing. The second alleged new factor was Locke’s unawareness, during his resentencing, of the circumstances under which a resentencing court can lawfully impose a sentence longer than that levied at the original sentencing. Locke argues that by imposing a longer sentence upon his resentencing here, the court violated his rights to due process and to be free from double jeopardy. For the reasons stated herein, we conclude that Locke has not shown a new factor that warrants modification of his sentence. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Breion Shequille Woodson

Case No.: 2019AP89-CR

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

Focus: Ineffective Assistance of Counsel

Breion Shequille Woodson appeals the judgment of conviction entered after a jury found him guilty of possession of a firearm by a person adjudicated delinquent for an act that would be a felony if committed by an adult and possession with intent to deliver more than forty grams of cocaine, as a party to a crime, as a second and subsequent offense. Woodson also appeals the order denying his postconviction motion. He argues that trial counsel was ineffective for failing to request expert discovery and for failing to require the trial court to perform its gatekeeping function over the admission of expert testimony. In addition, Woodson argues that he is entitled to a new sentencing hearing because the trial court relied upon inaccurate information when imposing his sentence and did not sentence him in an individualized manner. We disagree and therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Paul N. Westley

Case No.: 2019AP342-CR

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

Focus: Admittance of Evidence – Expert Testimony

Paul N. Westley appeals a judgment of conviction, following a jury trial, of one count of second-degree sexual assault of a child under the age of sixteen. Westley contends that the trial court erroneously admitted improper hearsay statements and unqualified expert testimony. Because we conclude that any errors committed by the trial court were harmless, we affirm.

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WI Court of Appeals – District I

Case Name: John Doe v. David P. Foley, et al.,

Case No.: 2019AP667

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

Focus: Insurance Claim – Coverage

John Doe appeals the order granting summary judgment to Big Brothers and Big Sisters of Metropolitan Milwaukee (BBBS) and BBBS’s insurance carrier, First Nonprofit Insurance Company (First Nonprofit). Doe initially brought an action against David P. Foley, BBBS, and fictitious insurance companies, alleging that Foley sexually assaulted Doe while Doe was a “little brother” in the BBBS program. Doe brought claims against BBBS for respondeat superior and negligent hiring, training, and supervision, and for punitive damages. First Nonprofit intervened and sought a declaration that neither the primary policy nor the umbrella policy issued to BBBS provided coverage for Foley’s alleged actions. The circuit court ultimately granted First Nonprofit’s motion. BBBS then moved for summary judgment on Doe’s claims. The circuit court granted the motion. Because we conclude that there are no issues of material fact, we affirm the circuit court.

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WI Court of Appeals – District III

Case Name: U.S. Bank National Association, et al., v. Jeffrey B. Van Goethem, et al.,

Case No.: 2019AP1375

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

Focus: Judgment Award

Jeffrey and Sherilyn Van Goethem appeal a foreclosure judgment granted on U.S. Bank National Association’s (U.S. Bank) summary judgment motion. The Van Goethems argue that, for a number of reasons, the circuit court erred by granting U.S. Bank a judgment in the amount of $289,437.75. The Van Goethems also argue the court erred by including in its judgment an order correcting a scrivener’s error in the mortgaged premises’ legal description.

We reject the Van Goethems’ arguments regarding the circuit court’s grant of the foreclosure judgment in the amount of $289,437.75, with one exception. Specifically, we agree with the Van Goethems that the court erred by including in the judgment an award of $3357.50 for a “prior servicer fee.” As to the court’s correction of the scrivener’s error in the mortgaged premises’ legal description, we conclude the court’s action was authorized by WIS. STAT. § 847.07 (2017-18). We therefore affirm the foreclosure judgment in part, reverse in part, and remand for the circuit court to enter judgment consistent with this opinion.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tyrell S. Tolbert

Case No.: 2019AP1798-CR; 2019AP1799-CR

Officials: Dugan, Donald and White, JJ.

Focus: Court Error – Consolidated Appeal and Other Acts Evidence

Tyrell S. Tolbert appeals judgments of conviction, following a jury trial, of multiple charges. On appeal, Tolbert contends that the trial court erred in: (1) joining the August 3 and August 14 incidents for trial; (2) granting the State’s motion to admit other acts evidence of Tolbert’s heroin delivery to a confidential informant; We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael E. Doege

Case No.: 2018AP1752-CR

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

Focus: Plea Withdrawal and Other Acts Evidence

Michael E. Doege appeals from a judgment of conviction entered upon his guilty plea to one count of identity theft, and from an order denying his postconviction motion for plea withdrawal. According to Doege, his plea was unknowingly, unintelligently, and involuntarily entered because at the time he pled, he incorrectly believed he would be able to appeal the circuit court’s adverse other-acts ruling. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Sherri L. Blackshear

Case No.: 2019AP757-CR

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

Focus: Pleas & Sentencing – Sentence Modification

Sherri Blackshear appeals from a judgment convicting her on her guilty plea to delivery of heroin (< 3 grams) as a second or subsequent offense and as a repeat offender resulting from a purchase involving a confidential informant (CI) working with the Kenosha Drug Operation Group. A second similar count was dismissed and read in. Postconviction, Blackshear sought to withdraw her guilty plea based on defense counsel’s alleged ineffectiveness for not advising her that she might have pursued an entrapment defense and for not more diligently seeking discoverable telephone records between her and the CI. She also moved for sentence modification for having been deemed ineligible for the Earned Release Program (ERP) and appeals from the order denying those motions. We affirm.

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WI Court of Appeals – District IV

Case Name: Avonelle M. Kissack Living Trust v. American Transmission Company, LLC, et al.,

Case No.: 2019AP408

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

Focus: Summary Judgement – Evidentiary Hearing

American Transmission Company, LLC condemned land for a utility easement on real estate owned by the Avonelle M. Kissack Living Trust.  ATC and Kissack did not agree on the amount ATC is required to pay to Kissack for the diminution of the fair market value of Kissack’s real estate because of the condemnation for the easement. See WIS. STAT. § 32.09(6g) (providing that the compensation paid for the taking of the easement be “determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement”). Kissack filed this action in the Sauk County Circuit Court, and that issue was tried to a jury. See WIS. STAT. § 32.06(10) (providing that the amount of just compensation may be tried in the circuit court). The jury returned a verdict determining the diminution in the fair market value of Kissack’s real estate because of ATC’s taking of the easement.

Kissack appeals the judgment based on that verdict. Kissack contends that the circuit court erred in denying its post-verdict motion for a new trial based on purportedly erroneous evidentiary rulings by the circuit court. Separately, Kissack contends that the circuit court erred by relying on an unpublished per curiam opinion issued by this court which was cited by ATC in argument in the circuit court. We largely affirm the challenged rulings of the circuit court. However, we conclude that, as to rulings of the court limiting Kissack’s cross-examination of two witnesses, the circuit court materially erred. On that basis, we conclude that Kissack is entitled to a new trial. Accordingly, we reverse the judgment and remand this matter to the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel. Jumar K. Jones v. James Schwochert, et al.,

Case No.: 2019AP630

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

Focus: Prisoner – Restitution Order

Jumar Jones, pro se, appeals the circuit court’s order dismissing his claims against two prison officials. The claims arise from the deduction of funds from Jones’s prison account as payment on a restitution order that was later vacated. We affirm the order dismissing Jones’s claims.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin L. Douglas, et al.,

Case No.: 2019AP804-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Plea Withdrawal

Justin Douglas appeals a judgment of conviction and an order denying his motion for postconviction relief. On the day scheduled for trial, the circuit court made decisions that would have led to Douglas going to trial in jail clothing and with visible restraints. Shortly thereafter, Douglas accepted the State’s plea offer and pled no contest to one count of expelling bodily substance by a prisoner. Douglas now argues that he should be permitted to withdraw his no-contest plea on the ground that it was coerced by the circuit court’s pretrial rulings. The dispositive issue is whether Douglas has shown a legal basis for withdrawing his plea. We conclude that he has not, and we therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jordan Alexander Lickes

Case No.: 2019AP1272-CR

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

Focus: Sentencing Guidelines – Expungement

The State appeals a circuit court order expunging three of Jordan Lickes’ convictions. The State argues that, because Lickes had not “satisfied the conditions of [his] probation,” he was not entitled to expungement under WIS. STAT. § 973.015 and State v. Ozuna, 2017 WI 64, ¶¶12-13, 376 Wis. 2d 1, 898 N.W.2d 20. Lickes argues that he has satisfied his “conditions of probation” and that, once the circuit court received a certificate of discharge from the Department of Corrections (“DOC”), expungement was self-executing under State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811. We agree with the State and reverse the circuit court’s order.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Nathan L. Leopold

Case No.: 2019AP2119-CR

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

Focus: Miranda Warnings – Motion to Suppress Denied

Nathan Leopold appeals a judgment of conviction following his no contest pleas to two offenses: homicide by operation of a motor vehicle, with a detectable amount of restricted controlled substance in his blood; and operating a motor vehicle with a detectable amount of restricted controlled substance in his blood, causing injury. Leopold argues that the circuit court erred when it denied his motion to suppress two sets of oral statements that Leopold made to the same deputy sheriff after Leopold’s vehicle collided with another vehicle, resulting in the death of one person and injuries to another. Leopold claims that each of his two statements was taken in violation of his Fifth Amendment rights. The State acknowledges that Leopold’s statements were made in response to police interrogations. The State also acknowledges that, before Leopold made either set of statements, the deputy did not read to Leopold the warnings regarding constitutional rights that police are required to give before custodial interrogations under Miranda v. Arizona, 384 U.S. 436 (1966). But the parties dispute whether these were custodial interrogations. Thus, the dispositive issue is whether Leopold was in custody within the meaning of Miranda during the interrogations. After considering the totality of the circumstances under governing case law, we conclude that neither of these were custodial interrogations for Miranda purposes. Accordingly, we affirm the circuit court.

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