Weekly Case Digests – June 21, 2021 – June 25, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Eric Hodkiewicz v. Chris Buesgen

Case No.: 20-2641

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

Focus: Ineffective Assistance of Counsel

A Wisconsin jury found that Petitioner Eric Hodkiewicz stalked, harassed, and assaulted his wife and convicted him of nine offenses. Hodkiewicz challenged his conviction and sentence in state court, arguing (among other things) that he received ineffective assistance of counsel. The Wisconsin Court of Appeals rejected his argument, and the federal district court then denied habeas relief.

We, like the district court, conclude that the Wisconsin Court of Appeals reasonably determined that Hodkiewicz cannot show prejudice arising from his counsel’s alleged errors. We therefore affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Mayfair Mall LLC, v. City of Wauwatosa

Case No.: 2019AP1232

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

Focus: Court Error – Property Assessments

Mayfair Mall, LLC, by its member General Growth Properties, Inc. (collectively “GGP”), appeals from a judgment of the trial court in which it concluded that the property assessments of Mayfair Mall (the “Mall”), as determined by the City of Wauwatosa for 2013, 2014, and 2015, were not excessive. GGP argues that the trial court did not employ the proper standards of valuation in making its determination, and seeks a reversal of the judgment and remand to the trial court for a determination based on the proper standards.

Upon review of the extensive record in this matter, we conclude that the findings of the trial court are insufficient to allow this court to determine whether the assessments were excessive because the trial court failed to provide and explain its bases for those findings. We therefore reverse and remand this matter for further fact finding that includes the relevant information and reasoning upon which the court relied in making its findings of fact and conclusions of law.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Douglas J. Richer

Case No.: 2019AP2024-CR

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

Focus: Plea Agreement

Douglas Richer appeals a judgment of conviction for possession with intent to deliver greater than fifty grams of methamphetamine as a party to a crime, with various penalty enhancers. Richer had reached a plea agreement with the State and entered a no-contest plea, which the circuit court accepted following a proper colloquy. We agree with Richer that the court placed him twice in jeopardy for the same offense, contrary to Richer’s state and federal double jeopardy rights, when it sua sponte vacated that plea based on comments Richer made during his sentencing allocution.

Richer subsequently reached a second plea agreement with the State, which resulted in the judgment of conviction from which Richer now appeals. However, Richer received a materially less favorable plea bargain in the second prosecution, particularly regarding the State’s sentencing recommendation. We reverse the judgment of conviction and the order denying Richer’s postconviction motion. We remand with directions that the circuit court reinstate Richer’s original plea and enforce the initial plea agreement pursuant to which that plea was entered. As part of those proceedings, Richer is entitled to resentencing with the benefit of the sentencing recommendation the State agreed to make under the initial plea agreement. The court may conduct such other proceedings as are necessary on remand, consistent with this opinion.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Philip W. Vaughn

Case No.: 2019AP2356-CR

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

Focus: Sufficiency of Evidence

Philip Vaughn appeals a judgment, entered upon a jury’s verdicts, convicting him of two counts of possession of child pornography. Vaughn argues the evidence at his trial was insufficient to support his convictions. We reject Vaughn’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: Milwaukee County v. T.L.T.

Case No.: 2020AP426

Officials: DUGAN, J.

Focus: Recommitment Order – Sufficiency of Evidence

T.L.T. appeals a one-year recommitment order entered on May 28, 2019, and argues that the circuit court lost its competency when the expert reports bearing on the issue of T.L.T.’s recommitment were not accessible to her counsel within the statutory timeframe. She further argues that there was insufficient evidence to support the recommitment order. This court concludes that T.L.T.’s appeal is moot. Consequently, T.L.T.’s appeal is dismissed.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Corintheus Jabar Gant

Case No.: 2020AP480-CR; 2020AP481-CR

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

Focus: Warrantless Search – Suppression of Evidence

Corintheus Jabar Gant appeals his judgments of conviction entered after he pled guilty to four counts of intimidation of a witness and one count of possession of a firearm by a felon. He also appeals the order of the trial court denying his motion for postconviction relief.

On appeal, Gant argues that the evidence that police officers found at his residence pursuant to a search warrant should be suppressed because the officers’ initial entry prior to obtaining the warrant was not justified. Gant also seeks to withdraw his pleas to the witness intimidation counts on the ground that the trial court accepted the pleas without finding a sufficient factual basis for them. We affirm.

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WI Court of Appeals – District III

Case Name: Fire Insurance Exchange v. Frank Gibson, et al.,

Case No.: 2020AP810

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

Focus: Insurance Claim – Coverage

Frank Gibson appeals from a judgment declaring that Fire Insurance Exchange’s insurance policies did not provide coverage for Gibson’s injuries related to the use of a watercraft owned by an insured. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Delante D. Higgenbottom

Case No.: 2019AP1782; 20191783

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

Focus: Ineffective Assistance of Counsel

In these consolidated cases, Delante D. Higgenbottom appeals pro se from orders denying his postconviction motion for relief. He contends that he received ineffective assistance of counsel. He further contends that he is entitled to a new trial in the interest of justice. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel. Willie McShan v. Brian Hayes

Case No.: 2019AP1861

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

Focus: ALJ Error – Parole Revocation – Admission of Evidence

Willie McShan appeals pro se from a circuit court order affirming his parole revocation. McShan argues that the administrative law judge (ALJ) erred on both procedural and substantive grounds in allowing into evidence a videotaped interview with N.F., a fourteen-year-old girl, alleging that McShan sexually assaulted her. McShan further argues that substantial evidence did not support the ALJ’s decision. We hold that the ALJ properly admitted the videotaped statement and that the evidence supports the conclusion that McShan violated his rules of supervision. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Kevin A. McLain v. Patrick J. Keenan, et al.,

Case No.: 2019AP2337

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

Focus: Tortious Interference – Breach of Contract 

This lawsuit arises out of the sale of land by Patrick Keenan to Kevin McLain and McLain’s subsequent sale of that land to Glenn Lorenz and Carol Lorenz. McLain brought suit against Keenan for Keenan’s tortious interference with McLain’s contract to sell the land to Lorenz. Keenan asserted as an affirmative defense to McLain’s cause of action that McLain agreed prior to the purchase of the land from Keenan that McLain would grant Keenan a right of first refusal over any future sale of the land by McLain, but that Keenan was not given an opportunity to exercise his purported right of first refusal to purchase the land from McLain. Keenan also counterclaimed against McLain regarding his alleged right of first refusal.

The Vernon County Circuit Court granted partial summary judgment to McLain on Keenan’s counterclaim. The circuit court later denied Keenan’s motion to amend his pleadings to include new claims against McLain. A trial to the court was held on McLain’s tortious interference with a contract claim. The circuit court determined that Keenan tortiously interfered with McLain’s contract with Lorenz and granted a money judgment in favor of McLain.

Keenan makes four primary arguments on appeal. First, Keenan argues that the circuit court erred in granting partial summary judgment to McLain on Keenan’s counterclaim. Second, Keenan argues that the circuit court erred in denying his request to amend his pleadings. Third, Keenan argues that the circuit court erred in determining that he tortiously inferred with McLain’s contract with Lorenz. Fourth, Keenan argues that written findings of fact and conclusions of law entered by the circuit court were “untimely.” McLain cross-appeals, arguing that the circuit court erred in not awarding to him his actual attorney fees incurred in this action. We reject Keenan’s and McLain’s arguments and affirm the rulings of the circuit court.

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WI Court of Appeals – District IV

Case Name: Jace T. McDonald v. State of Wisconsin Department of Financial Institutions

Case No.: 2020AP216

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

Focus: Sufficiency of Evidence

The Department of Financial Institutions appeals a circuit court order remanding this case to the department to make additional findings of fact to support its decision in an enforcement action against Jace McDonald. We conclude that the department’s existing findings are sufficient for judicial review. We further conclude that it would be more appropriate for the circuit court to undertake judicial review than for this court to do so. We also explain why we reject the appellant department’s argument that respondent McDonald’s lack of response in his brief on appeal to any point made in the department’s opening brief is a basis to affirm the agency’s decision. Consistent with these conclusions, we reverse and remand to the circuit court with directions to proceed with the judicial review.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Spencer Parks, Jr.,

Case No.: 2020AP441-CR

Officials: Blanchard, Kloppenburg, and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Spencer Parks appeals a judgment of conviction and an order denying his postconviction motion. The issues are whether his trial counsel was ineffective by failing to investigate and call a potential witness, and whether the real controversy was fully tried. We conclude that counsel was not ineffective and that the issues were fully tried. Therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: Wisconsin Fuel, LLC, v. Wisconsin Department of Transportation

Case No.: 2019AP2055

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Summary Judgment

Wisconsin Fuel, LLC, appeals an order granting summary judgment to the Wisconsin Department of Transportation (DOT) and dismissing Wisconsin Fuel’s claim pursuant to WIS. STAT. § 32.195(6) (2019-20). Applying controlling precedent, we affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: David Stroede v. Society Insurance and Railroad Station, LLC,

Case No.: 2021 WI 43

Focus: Statutory Interpretation – Trespasser Immunity

The focus of this case is Wis. Stat. § 895.529 (2017-18), which immunizes and protects a “possessor of real property” from claims of trespassers for certain conduct. Under § 895.529(1)(a), a “[p]ossessor of real property” is defined as an “owner, lessee, tenant, or other lawful occupant of real property.” We must determine whether Jacob Tetting’s presence in a bar meets that definition.

The circuit court denied summary judgment to Tetting and to his insurer, West Bend Mutual, concluding that Tetting did not fit within the definition of a “[p]ossessor of real property” in Wis. Stat. § 895.529(1)(a). Specifically, the circuit court concluded that Tetting was not an “other lawful occupant of real property.” The court of appeals reversed the circuit court’s decision, relying on dictionary definitions of “occupant” to determine that Tetting was an “other lawful occupant” and consequently entitled to immunity.

We reverse the decision of the court of appeals because Tetting was not an “other lawful occupant of real property” under Wis. Stat. § 895.529. Accordingly, we uphold the circuit court’s denial of both Tetting and West Bend Mutual’s motions for summary judgment and remand the case for further proceedings.

Reversed and remanded

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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WI Supreme Court

Case Name: United America, LLC, v. Wisconsin Department of Transportation

Case No.: 2021 WI 44

Focus: Eminent Domain – Diminution in Property Value

The Department of Transportation (DOT) changed the grade of a highway that abuts United America, LLC’s property. As a result, access to United America’s property became less convenient and that property’s value decreased. The question here is whether such a diminution in property value qualifies as “damages to the lands” under Wis. Stat. § 32.18 (2017-18). The court of appeals held that it does not. We agree and therefore affirm the court of appeals’ decision.

Affirmed

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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WI Supreme Court

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

Case No.: 2021 WI 45

Focus: Statutory Interpretation – Wisconsin’s Worker’s Compensation Act – Exclusive-remedy

In this case, we must determine whether the exclusive-remedy provision of the Wisconsin Worker’s Compensation Act (the “Act”), Wis. Stat. § 102.03(2) (2017-18), bars the tort action filed by the petitioner, Francis Graef.

In 2017, Graef filed a tort action in circuit court against Continental Indemnity Company (“Continental”), his employer’s worker’s compensation insurance carrier, alleging that his self-inflicted gunshot wound was the result of Continental’s negligence. More specifically, Graef alleged that Continental was negligent in failing to approve payment for a refill of his antidepressant medication——prescribed after a workplace injury——and as result of that negligence, Graef attempted suicide. Continental moved for summary judgment, arguing that Wis. Stat. § 102.03(2) barred Graef’s tort action because the Act provides the exclusive remedy for his injuries. The circuit court concluded that the exclusive-remedy provision of the Act did not bar Graef’s action. The court of appeals reversed, concluding that the Act provides Graef’s exclusive remedy and that to recover for his injuries, Graef must file a worker’s compensation claim with the Department of Workforce Development (DWD).

We affirm the decision of the court of appeals, conclude that the Act provides Graef’s exclusive remedy for the injuries alleged in his complaint, and remand the cause to the circuit court with directions to grant summary judgment to Continental on Graef’s negligence claim.

Affirmed

Concur:

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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