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Home / Case Digests / Weekly Case Digests – June 14, 2021 – June 18, 2021

Weekly Case Digests – June 14, 2021 – June 18, 2021

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Katherine Black v. Cherie Wrigley, et al.,

Case No.: 20-2656

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

Focus: Court Error – Exclusion of Evidence

Katherine Black sued two defendants for defamation and intentional infliction of emotional distress. Ultimately, the trial did not go as Katherine had hoped, and the jury rejected her claims.  Katherine now argues that her trial was riddled with errors and asks that we overturn the jury’s verdict for several reasons. Katherine maintains that the district court erred in several ways: first, by excluding numerous pieces of evidence that should have been admitted; second, by allowing improper statements by defense counsel in closing argument; third, by declining to give a jury instruction on one of her defamation claims; and fourth, by denying Katherine’s request to give her own closing argument, or hire new counsel to do so, after her lead lawyer suffered some sort of breakdown after the close of evidence.  However, our analysis discloses no errors warranting a reversal, and therefore, Katherine’s request for a new trial is denied.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Timothy B. Fredrickson

Case No.: 20-2051

Officials: BRENNAN, SCUDDER, and KIRSCH, Circuit Judges.

Focus: 1st Amendment Violation

The First Amendment does not protect child pornography. In challenging his conviction for inducing sexually explicit videos from a minor, Timothy Fredrickson asks us to reconsider this well-established principle. He contends that because he could have lawfully watched the minor where she recorded the videos (Illinois) and where he received them (Iowa), the First Amendment shields him from prosecution under 18 U.S.C. § 2251(a). But child pornography’s exclusion from the First Amendment’s protection does not hinge on state law, so we affirm Fredrickson’s conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: Soraida Flores v. City of South Bend, et al.,

Case No.: 20-1603

Officials: RIPPLE, WOOD, and BRENNAN, Circuit Judges.

Focus: Due Process Violation

Erica Flores’s life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores’s car, and killed her. Flores’s personal representative, Soraida Flores, sued Gorny and the City under 42 U.S.C. § 1983 and associated state laws, asserting that Gorny violated Erica’s substantive-due-process rights and that the City was liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), for failing adequately to train its police officers. (We refer to Flores as the plaintiff without distinguishing between the victim and the estate representative unless the context otherwise requires.) The district court dismissed the action on the pleadings. We find, however, that Flores’s allegations plausibly state claims against both defendants, and thus that she is entitled to proceed with her case. We therefore reverse and remand.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: J.B., et al., v. Tiffany Woodard, et al.,

Case No.: 20-1212

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

Focus: 1st Amendment Violation – Standing to Sue

This case began as a divorce and child custody dispute in state court. After an allegation surfaced that Edwin Bush had choked his son, the Illinois Department of Children and Family Services launched an investigation, and Bush’s then-wife Erika successfully sought a court order suspending Bush’s parenting time. Bush then turned to federal court and filed this lawsuit under 42 U.S.C. § 1983 on behalf of himself and his children, alleging violations of their First and Fourteenth Amendment rights and claiming that DCFS employees’ conduct set off a series of events culminating in a state court order infringing on his and his kids’ right to familial association. The state defendants successfully moved to dismiss the case for lack of subject matter jurisdiction. The district court concluded that Bush and his children not only lacked standing to bring a constitutional challenge to the Illinois Marriage and Dissolution of Marriage Act, but also that the Younger abstention doctrine barred the court from ruling on the remaining constitutional claims. We agree on both fronts. Bush failed to allege facts sufficient to establish standing for his First Amendment claim. And adhering to principles of equity, comity, and federalism, we conclude that the district court was right to abstain from exercising jurisdiction over his remaining claims. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: London Triplett v. Jennifer McDermott, Warden

Case No.: 18-2507

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

Focus: Habeas Relief – Ineffective Assistance of Counsel

London Triplett seeks relief pursuant to 28 U.S.C. § 2254, for the alleged ineffectiveness of his counsel in a state criminal proceeding. Triplett contends that he would not have pleaded guilty to certain charges had he understood that other, dismissed charges could be considered by the sentencing judge when they were “read in” at sentencing. Because the decision of the Wisconsin Court of Appeals rejecting Triplett’s ineffectiveness claim rests on an adequate and independent state ground—Triplett’s failure to allege objective facts in support of his claim of prejudice from his attorney’s erroneous advice—we conclude that habeas relief is foreclosed to him. We therefore affirm the district court’s judgment, but on a different ground.

Affirmed

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7th Circuit Court of Appeals

Case Name: Dean Guenther v. Matthew Marske, Warden,

Case No.: 17-3409

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

Focus: ACCA-enhanced Sentence – Saving-Clause

In 2005 Dean Guenther was convicted of a federal firearms crime in Minnesota and was sentenced as an armed career criminal based in part on his prior Minnesota burglary convictions. His direct appeal failed in the Eighth Circuit, as did his petition for collateral review under 28 U.S.C. § 2255. He is currently serving his lengthy sentence in a federal prison in Wisconsin. In 2017 Guenther sought habeas relief under 28 U.S.C. § 2241 in the Western District of Wisconsin. Relying on Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v. McArthur, 850 F.3d 925 (8th Cir. 2017), he argued that his sentence is unlawful because his Minnesota burglary convictions are not “violent felonies” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district judge denied the petition.

We reverse. A § 2255 motion in the sentencing court is normally the exclusive method to collaterally attack a federal sentence, but the “saving clause” in § 2255(e) provides a limited exception. The clause permits a prisoner to seek § 2241 habeas relief in the district where he is confined if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” § 2255(e). We have construed the saving clause to preserve a path for § 2241 relief in a narrow set of circumstances—namely, when the prisoner relies on an intervening statutory decision announcing a new, retroactive rule that could not have been invoked in his first § 2255 motion and the error is serious enough to amount to a miscarriage of justice. See Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019) (synthesizing the doctrine).

In Chazen we held the government to the position it took in the district court and applied the law of this circuit. Id. at 860–63. We follow the same approach here. Under Van Cannon, Guenther’s Minnesota burglary convictions are not ACCA predicates. We remand with instructions to grant the habeas petition.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Zenon Grzegorczyk v. United States of America

Case No.: 18-3340

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

Focus: Plea Withdrawal

In the spring of 2012, Zenon Grzegorczyk hired two men to kill his ex-wife and five of her friends in exchange for $48,000. Fortunately, his plan was destined to fail—the two men he sought out for the task were undercover law enforcement officers. A grand jury returned a four-count indictment charging him with three counts of using a facility of interstate commerce with intent that murder be committed (“murder-for-hire”) in violation of 18 U.S.C. § 1958(a), and one count of possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In July 2014, pursuant to a written plea agreement with the government, Grzegorczyk pled guilty to one count of murder-for-hire and the firearm charge. The district court sentenced him to 151 months in prison for the murder-for-hire count and a consecutive 60 months for the firearm count.

Grzegorczyk now seeks relief from his § 924(c) conviction pursuant to 28 U.S.C. § 2255. But because he signed an unconditional plea agreement, the district court found his challenge waived and denied relief. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Rose Markakos v. Medicredit, Inc.,

Case No.: 20-2351

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

Focus: Standing to Sue and Failure to State Claim

In the last five months, we’ve held eight times that a breach of the Fair Debt Collection Practices Act (“FDCPA”) does not, by itself, cause an injury in fact. We now repeat that refrain once more. In 2019, Defendant Medicredit, Inc., sent Plaintiff Rose Markakos a letter seeking to collect $1,830.56 on behalf of a creditor identified as “Northwest Community 2NDS” for medical services performed in 2017. A few weeks later, Markakos’s lawyer sent Medicredit a letter disputing the debt (because the medical services were allegedly inadequate). Medicredit then sent a response to Markakos’s counsel that listed a different amount owed of only $407.00.

Markakos sued Medicredit for allegedly violating the FDCPA by sending letters to her that stated inconsistent debt amounts and that unclearly identified her creditor as “Northwest Community 2NDS”—which is not the name of any legal entity in Illinois. Medicredit moved to dismiss the complaint for lack of standing and for failure to state a claim. The district court granted the motion and dismissed the case without prejudice.

That decision was right. Markakos lacks standing to sue Medicredit under the FDCPA because she did not allege that the deficient information harmed her in any way. Instead, she admits that she properly disputed her debt and never overpaid. We thus affirm the decision of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ethel Shelton

Case No.: 19-3388

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

Focus: Abuse of Discretion – Sufficiency of Evidence 

Demoted, disparaged, and deprived of a free government car, Stafford Garbutt decided that he could no longer tolerate what he believed to be criminal conduct by his boss and co‐workers, conduct that he himself had been engaging in for more than ten years. After his anonymous letters to a local newspaper and to the United States Attorney’s office accusing his former friend and boss of official misconduct failed to garner any response, he approached the United States Attorney’s office in person with his story. That office directed him to the FBI, where he began a partnership with an agent who eventually directed him to conduct warrantless searches of his co‐workers’ offices. Garbutt’s actions ultimately ensnared not only his intended target, Calumet Township Trustee Mary Elgin, but also Elgin’s administrative assistant, Ethel Shelton, the defendant here. After Elgin took a plea deal, a jury convicted Ethel Shelton of conspiracy to commit wire fraud and conspiracy to commit honest services wire fraud related to her actions as an employee of the Calumet Township Trustee’s Office. Shelton learned mid‐trial that the FBI agent had directed Garbutt to conduct warrantless searches of her office. Although the district court tried to mitigate any damage by allowing Shelton to move post‐trial for relief, the court ultimately denied her motion. In addition to challenging the district court’s denial of her motion for a mistrial on Fourth Amendment grounds, Shelton also challenges the sufficiency of the evidence on both the conspiracy to commit honest services wire fraud count and the conspiracy to commit wire fraud count. We review the denial of the motion for a mistrial for an abuse of discretion. We reverse and remand.

Reversed and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jonathan L. Liebzeit

Case No.: 2018AP964

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

Focus: Evidentiary Hearing        

Jonathan Liebzeit appeals an order denying his WIS. STAT. § 974.06 (2019-20), motion for a new trial. Liebzeit argues that the circuit court erred by denying his motion without holding a previously scheduled evidentiary hearing or otherwise permitting Liebzeit to further amend his motion or reply to the State’s response. We reject Liebzeit’s arguments, and we affirm the order.

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WI Court of Appeals – District III

Case Name: Ocwen Loan Servicing, LLC, v. Steven J. Eckley, et al.,

Case No.: 2019AP1705

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

Focus: Prima Facie – Foreclosure Judgment

Steven and Shannon Eckley appeal a judgment of foreclosure. They argue Ocwen, the loan servicer, improperly accelerated their loan. They also argue Ocwen failed to prove a prima facie case for summary judgment establishing the entire amount of the foreclosure judgment. We reject the Eckleys’ arguments, except we agree that the judgment improperly included $19,240.72 in prior servicer fees, the basis for which is unclear. We reverse that portion of the judgment and remand for further proceedings consistent with this opinion, but we affirm the judgment in all other respects.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Celso M. Deleon-Yuja

Case No.: 2019AP2059-CR

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

Focus: 6th Amendment Violation – Confrontation Clause

Celso M. Deleon-Yuja appeals the circuit court order denying postconviction relief as well as the underlying judgment of conviction for two counts of first-degree child sexual assault—sexual contact with a child under age thirteen. Deleon-Yuja argues that his Sixth Amendment Confrontation Clause rights were violated when the circuit court did not permit him to cross-examine the victims or their parents about the U-Visa immigration program. We conclude that the circuit court did not improperly limit cross-examination such that Deleon-Yuja’s confrontation rights were violated, and thus did not erroneously deny his motion for postconviction relief. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. War Nakula-Reginald Marion

Case No.: 2019AP2206-CR; 2019AP2207-CR

Officials: BRASH, P.J.

Focus: Sentencing – Supervised Released

War Nakula-Reginald Marion, pro se, appeals an order of the circuit court denying his “Motion Requesting Time Served With Concurrent Sentence.” In that motion, Marion asserted that the Department of Corrections (DOC) improperly extended his release date after his extended supervision on an earlier felony case was revoked as a result of the charges in the cases underlying this appeal. The circuit court determined that Marion’s claims were against the DOC, and thus not properly before the court.

We agree. We further conclude that other arguments presented by Marion in his motion are procedurally barred, and even if they were not barred, they would fail on the merits. Therefore, we affirm.

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WI Court of Appeals – District III

Case Name: Mark F. Meisner, et al., v. State Farm Mutual Automobile Insurance Company, et al.,

Case No.: 2019AP2283

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

Focus: Insurance Claim – Coverage

Trumbull Insurance Company appeals a judgment finding it liable to Mark Meisner in the amount of $250,000, which was the maximum amount of underinsured motorist (UIM) coverage available under a policy Trumbull had issued to Meisner. Trumbull asserts the circuit court erred by determining that a stipulation between Trumbull and Meisner was unambiguous and did not incorporate a reducing clause from the policy that reduced the liability limit by any amounts collected from the tortfeasor. We conclude the stipulation is ambiguous in this regard. We therefore reverse the judgment and remand for a determination of the parties’ intent, using extrinsic evidence, regarding the agreed-to payment limits under the stipulation.

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WI Court of Appeals – District III

Case Name: James Cobb, et al., v. Gary A. King

Case No.: 2020AP925

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

Focus: Summary Judgement – Easement

This appeal and cross-appeal involve a dispute between two adjoining landowners—James and Judith Cobb on one side, and Gary King on the other. The Cobbs appeal the circuit court’s grant of summary judgment to King enforcing his use of an ingress and egress easement over the Cobbs’ property. King cross-appeals the court’s denial, without an evidentiary hearing, of his motion to enforce a second mediation agreement between the parties.

We conclude the circuit court properly determined that the easement conveyed a freely transferable interest to King that ran with the land and was not personal to King’s predecessors in title. We further conclude the court correctly determined that the second mediation agreement was unenforceable because it lacked material terms and was therefore too indefinite to be enforced. Finally, we conclude the court did not err in denying King’s request to conduct an evidentiary hearing regarding the terms of the second mediation agreement because no extrinsic evidence could be used to supplement the agreement. We therefore affirm in all respects.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Christopher D. Wilson

Case No.: 2020AP1014-CR

Officials: DONALD, J.

Focus: 4th Amendment Violation – Unlawful Entry

Christopher D. Wilson appeals a judgment convicting him of operating a motor vehicle while intoxicated (OWI) as a second offense and endangering safety by use of a dangerous weapon while under the influence of an intoxicant. Wilson argues that the police unlawfully entered his backyard and seized him, and the circuit court erred in denying his motion to suppress the evidence. We conclude that Wilson’s motion to suppress was properly denied because the officers’ entry into the backyard and interaction with Wilson were covered by the “knock and talk” exception to the Fourth Amendment’s warrant requirement. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. G.R.H.,

Case No.: 2020AP1638

Officials: WHITE, J.

Focus: Abuse of Discretion – Sex Offender Registration

G.R.H. appeals the order requiring him to comply with the sex offender registration requirement for fifteen years, as well as the order adjudicating him delinquent. He argues that the circuit court failed to use a rational process to reach its conclusion with regard to the probability that G.R.H. would commit future violations, and therefore, its order on registration was an erroneous exercise of discretion. Because the record supports the circuit court’s exercise of discretion to deny a permanent stay from registration, we affirm the order requiring sex offender registration. Further, we affirm the delinquency adjudication order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Markea L. Brown

Case No.: 2019AP636-CR

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

Focus: Sentencing – Extended Supervision

Markea L. Brown appeals from a judgment of conviction and an order denying her postconviction motion. She contends that the circuit court imposed invalid conditions on her extended supervision. We agree with Brown that one of the conditions is invalid. Accordingly, we affirm in part, reverse in part, and remand with directions.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. John R. Hudson

Case No.: 2019AP1092-CR

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

Focus: Ineffective Assistance of Counsel

John Hudson appeals from a judgment convicting him of incest and first-degree sexual assault of a child and from a circuit court order denying his postconviction motion seeking a new trial due to ineffective assistance of trial counsel. We conclude that because counsel did not perform deficiently, a new trial was not warranted. We affirm.

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WI Court of Appeals – District II

Case Name: Lisa M. Zimmer, et al., v. Michael P. Zimmer

Case No.: 2020AP919

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

Focus: Child Support Modification

Child support payments in a divorce are typically ordered as monthly lump sum payments derived under a formula prescribed by state law. That formula computes payments based on the payer’s income multiplied by a percentage, which varies depending on the number of minor children. See WIS. ADMIN. CODE § DCF 150.03(1). Where multiple children are involved, as each child reaches the age of majority, the paying parent can seek modification to reduce ongoing payments to the remaining minor children, based on the reduced applicable percentage. All else being equal, the court would ordinarily order such modification upon the payer’s motion and reduce support payments accordingly.

Less clear is what happens when the payer fails to promptly file such a motion and, instead, continues to pay or incur the original ongoing support amount for some time after one of the children ages out. The issue in such a case is whether an order on a belated modification motion can be given retroactive effect, so as to reduce or allow for a credit against arrears, or even a refund. Those are the facts here. Lisa Zimmer (Lisa) and the State appeal from a circuit court order reducing Michael Zimmer’s (Michael) child support arrears, entered as part of an action to modify child support. It is undisputed that Michael did not move to modify the support order concerning his three minor children until two years after the eldest, Heidi had reached the age of majority under WIS. STAT. § 767.511(4). Michael argued below that his support obligation should have “reduced automatically” when Heidi aged out and that the “overages” he paid should be credited towards arrears. The circuit court agreed and modified arrears accordingly.

We conclude that our legislature has already decided whether a child support order can be applied retroactively, and has answered this question in the negative. Under WIS. STAT. § 767.59(1m), a payment modification order is prospective only. This means that a court cannot, on the basis of one child’s having reached the age of majority, refund or credit child support payments made prior to notice being given in an action to modify an ongoing support obligation. Consequently, we reverse.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Sheboygan County v. M.W.,

Case No.: 2021AP6

Officials: GUNDRUM, J.

Focus: Involuntary Commitment and Medication

M.W. appeals from an order of the circuit court extending her involuntary mental health commitment and also challenges an order for involuntary medication and treatment. She argues that the circuit court failed to specifically identify the WIS. STAT. § 51.20(1)(a)2. subdivision paragraph or paragraphs on which it based its recommitment and medication orders, the County failed to present sufficient evidence that M.W. was “dangerous” pursuant to WIS. STAT. ch. 51, and the County failed to provide M.W. with sufficient notice of the standard of dangerousness under which it was pursuing her recommitment. We reverse on the first ground, but only after addressing the “notice” issue.

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WI Court of Appeals – District II

Case Name: Sheboygan County Department of Health & Human Services v. S.K.,

Case No.: 2021AP158

Officials: REILLY, P.J.

Focus: Termination of Parental Rights

S.K. appeals from the circuit court’s order involuntarily terminating his parental rights (TPR) to K.S-S. The circuit court granted partial summary judgment at the grounds phase based on abandonment, pursuant to WIS. STAT. § 48.415(1)(a)2. S.K. argues that the circuit court failed to explicitly state that it was finding him unfit, and, therefore, the court failed to comply with the statutory scheme and the order terminating his parental rights should be vacated. He also argues that the court failed to consider the court report at the dispositional phase and that the Sheboygan County Department of Health & Human Services (the Department) failed to comply with WIS. STAT. § 48.834, as it failed to contact any relatives of S.K. regarding placement and adoption of K.S-S. We reject S.K.’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Tatiana S. Laiter v. Michael Lyubchenko

Case No.: 2019AP1793

Officials: NASHOLD, J.

Focus: Court Error – Contempt Order – Taxes

Michael Lyubchenko appeals a June 2019 order finding him in contempt for failure to follow a February 2018 order that required him to amend his 2015 income tax filings and file a joint 2015 tax return with his former spouse, Tatiana Laiter, and share equally with Laiter any refund, liability, and costs to prepare the taxes. Lyubchenko argues that the circuit court erred by: (1) ordering him to pay Laiter half of her 2015 individual tax liability; (2) “using wrong numbers in calculating Laiter’s 2015 tax payments”; (3) “ordering Lyubchenko to pay one half of Laiter’s self-employment taxes and failing to take into account [the] parties’ [full] joint liability in 2015”; (4) not equally dividing a 2015 Wisconsin tax refund; (5) ordering Lyubchenko to pay Laiter’s accountant tax preparation fees; (6) “imposing remedial sanctions on Lyubchenko when he was not in continuing contempt on an already moot issue”; and (7) determining the amount of Laiter’s attorney and accountant fees. I reject Lyubchenko’s arguments and affirm the circuit court’s contempt order.

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WI Court of Appeals – District IV

Case Name: Gerald R. Wollin, et al., v. Stephen J. Doljanin

Case No.: 2019AP2427

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

Focus: Prescriptive Easement

Gerald Wollin and other plaintiffs appeal an order dismissing their claim for a prescriptive easement based on adverse use of a road on land owned by respondent Stephen Doljanin. The issue is whether the circuit court applied the correct law in concluding that Doljanin rebutted the presumption that Wollin’s use of the road was adverse. We conclude that the court used the correct law and, therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: U.S. Bank National Association v. Patricia Ann Murphy, et al.,

Case No.: 2020AP537

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

Focus: Foreclosure – Unclean Hands

Patricia Ann Murphy and Patricia Gaffney, by counsel, appeal a judgment of foreclosure. Murphy and Gaffney argue that the circuit court erred when, following an evidentiary hearing, the court found that they had failed to establish the causation element to satisfy the doctrine of unclean hands, which they asserted as an affirmative defense to foreclosure. We affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ricardo E. Marinez

Case No.: 2020AP694-CR

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

Focus: Postconviction Motion Denied

In 2007, Ricardo Marinez was convicted, following a jury trial, of three counts of repeated first-degree sexual assault of a child. Marinez pursued a direct postconviction motion and appeal, and we affirmed Marinez’s conviction. In 2019, Marinez filed a pro se postconviction motion under WIS. STAT. § 974.06 (2019-20). In this appeal, Marinez argues that the circuit court erred by denying his § 974.06 motion without a hearing. In sum, Marinez has failed to show that the arguments he asserts now are clearly stronger than the arguments his counsel pursued in postconviction proceedings. For these reasons we conclude that he has not overcome the procedural bar to successive postconviction motions. Accordingly, we affirm the circuit court order denying the motion without a hearing.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John R. Anker

Case No.: 2020AP1218-CR

Officials: KLOPPENBURG, J.

Focus: Suppression of Evidence – Unreasonable Search – Blood Test

John Anker appeals his conviction of operating a motor vehicle while intoxicated (OWI) as a third offense. Anker argues that the circuit court erroneously denied his pretrial motion to suppress field sobriety testing and blood analysis evidence obtained after the investigating officer extended Anker’s routine traffic stop to administer the field sobriety tests, asserting that the extension of the stop was not supported by reasonable suspicion as required by the Fourth Amendment. Anker also argues that the circuit court erroneously denied his motion to preclude reference at trial to his refusal to submit to a warrantless blood draw, in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. In the alternative, Anker argues that the circuit court erroneously denied his motion to exclude evidence at trial of his refusal without having first conducted a refusal hearing.

I conclude that the officer’s extension of the traffic stop to administer field sobriety tests was supported by reasonable suspicion and that the circuit court properly denied Anker’s motion to suppress the field sobriety testing and blood analysis evidence obtained after the extension. I also conclude that Anker’s constitutional challenge to the denial of his motion to preclude reference at trial to Anker’s refusal is itself precluded by this court’s decision in State v. Levanduski, 2020 WI App 53, 393 Wis. 2d 674, 948 N.W.2d 411. Finally, because the State explains that it is clear beyond a reasonable doubt that a rational jury would have found Anker guilty absent any error in admitting evidence at trial of Anker’s refusal without having first conducted a refusal hearing based on the “comprehensive evidence” of Anker’s guilt and Anker fails to contest the issue on reply, I deem Anker to have conceded that any such error by the circuit court was harmless. Accordingly, I affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Tavodess Matthews

Case No.: 2021 WI 42

Focus: Judicial Substitution

This case is about whether Tavodess Matthews timely requested a judicial substitution under Wis. Stat. § 801.58(1) (2019-20). Section 801.58(1) entitles a party in a civil case to substitute the assigned circuit court judge if, among other things, that party files a written substitution request before “the hearing of any preliminary contested matters.” Matthews filed his substitution request after the circuit court granted his motion to adjourn a scheduled probable cause hearing under Wis. Stat. ch. 980. We hold that Matthews’ substitution request was timely because his motion to adjourn is not a “preliminary contested matter” per that phrase’s accepted legal meaning and the circuit court heard no other such matter before Matthews filed his request. Accordingly, we reverse the court of appeals.

Reversed and remanded

Concur:

Dissent:

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