Weekly Case Digests – September 27, 2021 – October 1, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Algozine Masonry Restoration, Inc., v. Local 52 Chicago Area Joint Welfare Committee for the Pointing, Cleaning and Caulking Industry, et al.,

Case No.: 20-3384

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

Focus: Bankruptcy – Priorities

Employee benefit plans come in many shapes and sizes. Broadly speaking, some focus on retirement, and others focus on welfare benefits such as health care and disability. If the sponsoring employer falls on hard times and files for bankruptcy, section 507 of the Bankruptcy Code affords priority status up to a specified point to certain types of unsecured claims, including claims for unpaid contributions to an employee-benefit plan. 11 U.S.C. § 507(a)(5). The question before us concerns whether the priority limitation found in section 507(a)(5) applies to each fund that seeks unpaid contributions, or if the claims of all funds sponsored by the bankrupt employer must be aggregated.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Gorgi Talevski, et al., v. Health and Hospital Corporation of Marion County, et al.,

Case No.: 20-1664

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

Focus: Failure to State Claim

For Gorgi Talevski, living with dementia went from difficult to worse during his stay at Valparaiso Care and Rehabilitation, a state-run nursing facility near his family home in Indiana. Through his wife, Ivanka Talevski, he sued Valparaiso Care, the Health and Hospital Corporation of Marion County (HHC), and American Senior Communities, LLC (ASC) under 42 U.S.C. § 1983 for violations of the Federal Nursing Home Reform Act (FNHRA), see 42 U.S.C. § 1396r et seq. (We refer to the defendants collectively as Valparaiso Care unless the context requires otherwise.) The district court dismissed the action for failure to state a claim on which relief can be granted, based on its finding that FNHRA does not provide a private right of action that may be redressed under 42 U.S.C. § 1983.

This is a difficult area of law, no doubt, and we appreciate the careful attention that both this district court and several others within our circuit have given to this issue. See Terry v. Health & Hospital Corporation, 2012 U.S. Dist. LEXIS 43702 (S.D. Ind. Mar. 29, 2012); Schwerdtfeger v. Alden Long Grove Rehab. & Health Care Ctr., Inc., No. 13 C 8316, 2014 WL 1884471 (N.D. Ill. May 12, 2014); Fiers v. La Crosse County, 132 F. Supp. 3d 1111 (W.D. Wis. 2015). We conclude, however, in keeping with the views of two of our sister circuits, that the court erred. See Grammer v. John J. Kane Reg’l Centers-Glen Hazel, 570 F.3d 520 (3d Cir. 2009); Anderson v. Ghaly, 930 F.3d 1066 (9th Cir. 2019); see generally Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (“[T]he [section] 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.”). We therefore reverse and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Alan D. Halperin, et al., v. Mark R. Richards, et al.,

Case No.: 20-2793

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

Focus: ERISA – Breach of Fiduciary Duty

We consider in this case whether the Employee Retirement Income Security Act (ERISA) preempts certain state-law claims brought by bankruptcy creditors on behalf of a company against its directors and officers and others alleged to have inflated the company’s stock value to conceal the company’s decline and to benefit corporate insiders. We hold that ERISA does not preempt the plaintiffs’ claims against the company’s directors and officers.

ERISA expressly contemplates parallel corporate liability against directors and officers who serve dual roles as both corporate and ERISA fiduciaries. We also hold, however, that ERISA preempts the plaintiffs’ claims against the former ERISA trustee of the employee benefit plan and its nonfiduciary contractor. Corporation-law aiding and abetting liability against these defendants would interfere with the cornerstone of ERISA’s fiduciary duties—the exclusive benefit rule in Section 404, 29 U.S.C. § 1104(a)(1)(A).

Affirmed in part. Reversed and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Michael L. Millis v. M. Segal

Case No.: 20-1520

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

Focus: Sentencing Guidelines

In 1994, Michael Millis was found guilty of several crimes related to a pair of armed robberies in the Eastern District of Kentucky. At sentencing, Millis’s previous convictions qualified him as a career offender under the then-mandatory Sentencing Guidelines. Millis received a total sentence of 410 months’ imprisonment and since his confinement, he has sought post-conviction relief at least a dozen times.

Millis does so again here. Attempting to benefit from intervening legal changes that affect his career offender designation, Millis invokes what is often known as the “savings clause” of 28 U.S.C. § 2255(e), which would allow him to petition for a writ of habeas corpus under 28 U.S.C. § 2241. But the savings clause is a narrow exception to the general rule that a federal sentence must be collaterally attacked under 28 U.S.C. § 2255. Millis’s sentence on his guidelines counts fell within the range for a non-career offender, so the district court held that his career offender designation had not resulted in a miscarriage of justice, the third element of this court’s savings clause test. We agree and affirm the denial of his habeas petition.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Bukola Lomi Omowole v. Merrick B. Garland

Case No.: 20-2285

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

Focus: Immigration – Removal Order

Bukola Lomi Omowole seeks review of an order of the Board of Immigration Appeals sustaining the findings of two immigration judges that she is both removable from the United States for having procured an entry visa by fraud and not entitled to asylum or withholding of removal. Because the decision of the Board rests on the immigration judges’ adverse findings as to Omowole’s credibility and that of her ex-husband, and those findings are supported by substantial evidence, we deny the petition for review.

Petition denied

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7^th Circuit Court of Appeals

Case Name: Tawanna Ware, et al., v. Best Buy Stores, L.P.,

Case No.: 20-1641

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

Focus: Magnuson-Moss Warranty Act – Written Warranty – Jurisdiction

This appeal raises a question of first impression about the definition of “written warranty” provided in the Magnuson‐Moss Warranty Act, 15 U.S.C. § 2301 et seq., a consumer protection statute. But the federal courts lack subject‐matter jurisdiction and therefore cannot resolve the issue in this case.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Dr. Robert L. Meinders, D.C., Ltd., v. United Healthcare Services, Inc., et al.,

Case No.: 20-2832

Officials: MANION, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Insurance Claim – Provider Agreement – Arbitration

In 2013, Dr. Robert L. Meinders, D.C., Ltd., received a single fax advertisement from United Healthcare Services, Inc., a company with whom Meinders had done business for around seven years. Meinders believed that, by sending the fax, United violated the Telephone Consumer Protection Act. Accordingly, Meinders sued, and after seven years of litigation, a threshold question remains: Should the litigation proceed in federal court, or should United be allowed to force Meinders to arbitrate? The answer to that question turns primarily on resolving whether United assumed the duties that a related company, American Chiropractic Network, Inc., promised to perform for Meinders in a provider agreement.

The district court held that United had assumed ACN’s obligations and as a result could enforce an arbitration clause Meinders had agreed upon with ACN. We agree with the district court, and thus affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Keenan Rollerson

Case No.: 20-2258

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

Focus: Sentencing Guidelines

A jury convicted defendant Keenan Rollerson on drug and firearm charges but acquitted him on other drug charges. He appeals only his sentence, arguing that the district court erred by increasing his Sentencing Guideline range based on drug activity for which he was either acquitted or never charged. Specifically, Rollerson claims that the prosecution did not present sufficiently reliable information that he sold heroin and fentanyl to an informant during four controlled drug buys for which he was not charged. He also asserts that those uncharged controlled buys and other drugs for which he was acquitted were not “part of the same course of conduct … scheme or plan” as his offenses of conviction. U.S.S.G. § 1B1.3(a)(2). We affirm Rollerson’s sentence because the conduct at issue was supported by sufficiently reliable information and was relevant to his convictions. To be sure, the record at sentencing on the controlled buys was sparse. But at least in the absence of contradictory evidence, a police officer’s affidavit attesting that the buys actually occurred provided the “modicum of reliability” that is needed to find by a preponderance of the evidence that Rollerson committed those additional crimes. See United States v. Helding, 948 F.3d 864, 871 (7th Cir. 2020).

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marjory Dingwall

Case No.: 20-1394

Officials: WOOD, HAMILTON, and KIRSCH, Circuit Judges.

Focus: Motion in Limine – Expert Testimony

Marjory Dingwall was charged with three counts of robbery and three counts of brandishing a firearm during a crime of violence. She admits the robberies but claims she committed them under duress, in fear of brutal violence at the hands of her abusive boyfriend, Aaron Stanley. Dingwall filed a motion in limine seeking a ruling on evidence to support her duress defense, including expert evidence on battering and its effects.

The duress defense has two elements: reasonable fear of imminent death or serious injury, and the absence of reasonable, legal alternatives to committing the crime. United States v. Sawyer, 558 F.3d 705, 711 (7th Cir. 2009). The district court denied Dingwall’s motion, finding that her evidence could not meet either requirement. Dingwall then pleaded guilty to three counts of Hobbs Act robbery and one count of brandishing a firearm during and in relation to a crime of violence, but she reserved her right to appeal the decision on the motion in limine.

We see the question differently than the district court did, but we recognize that the rare cases like this are close and difficult, often dividing appellate panels. Dingwall surely faces challenges in demonstrating both imminence and no reasonable alternatives: Stanley was not physically present for any of the robberies, Dingwall actually held a gun, and there is a dispute about whether Stanley threatened harm if she did not commit these specific offenses. Those facts present questions for a jury, however. We join the Ninth, District of Columbia, and Sixth Circuits in concluding that immediate physical presence of the threat is not always essential to a duress defense and that expert evidence of battering and its effects may be permitted to support a duress defense because it may inform the jury how an objectively reasonable person under the defendant’s circumstances might behave. See United States v. Lopez, 913 F.3d 807 (9th Cir. 2019); United States v. Nwoye (Nwoye II), 824 F.3d 1129 (D.C. Cir. 2016) (Kavanaugh, J.); Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006); contra, United States v. Dixon, 901 F.3d 1170, 1173 (10th Cir. 2018) (affirming exclusion of evidence of battered woman’s syndrome); United States v. Willis, 38 F.3d 170, 173 (5th Cir. 1994) (same). We therefore reverse the judgment of the district court and remand for further proceedings.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United Fire & Casualty Company v. Prate Roofing & Installations, LLC,

Case No.: 19-3043

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

Focus: Insurance Claim – Duty to Defend

The questions in this appeal arose from a fatal on-the-job accident on a commercial roofing project. The central question is whether a liability insurer for a roofing contractor owed a duty to defend another roofing contractor that was an “additional insured” under its policy. The policy covered the “additional insured” only for any vicarious liability it might incur as a result of actions or omissions by the named insured.

The insurer argues that because its named insured was an independent contractor, Illinois law would not—could not— impose any liability on the additional insured, so that there was no risk of covered liability and thus no duty to defend. The district court rejected this reasoning. The court explained that the duty to defend depends on the claims the plaintiff asserts, not on their prospects for success. We agree. A liability insurer’s duty to defend applies to impose a duty to defend allegations potentially within the policy’s liability coverage, regardless of predictions about prospects for success. The duty to defend applies even to hopeless suits—whether they are unfounded, false, or fraudulent. E.g., General Agents Ins. Co. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 155, 828 N.E.2d 1092, 1098 (Ill. 2005); Pekin Insurance Co. v. Centex Homes, 72 N.E.3d 831, 839 (Ill. App. 2017). By that logic, the duty to defend extends even to allegations seeking to impose liability that would require a dramatic change in the law.

In this case, the plaintiff’s allegations in the underlying complaint were broad enough to include claims against the additional insured that potentially fall within the scope of coverage for vicarious liability. Regardless of their potential merits, they sought to hold the additional insured liable, at least in part, for the actions or omissions of the named insured. The Illinois Appellate Court found a duty to defend on nearly identical facts in Pekin Insurance Co. v. Centex Homes and Pekin Insurance Co. v. Lexington Station, LLC, 84 N.E.3d 554 (Ill. App. 2017). Both decisions are consistent with Illinois law more broadly, and we believe the Illinois Supreme Court would agree. We follow those opinions and agree with the district court’s grant of summary judgment to the additional insured finding a duty to defend it in this case.

We also find, however, that the settlement of the underlying claims against the named insured had the effect of removing any possibility that the additional insured might be held vicariously liable for actions of the named insured. As a result, the duty to defend ended when that settlement was consummated. We therefore modify the district court’s declaratory judgment to clarify that the duty to defend came to an end with that settlement, and as modified, we affirm the district court’s judgment.

Affirmed with modifications

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Angelina M. Hansen

Case No.: 2019AP1105-CR

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

Focus: Sufficiency of Evidence

Angelina Hansen appeals a judgment of conviction, following a jury verdict, for criminal contempt of court in relation to her violation of a family court order setting the conditions under which she could exercise physical placement with her children. Hansen visited her children at school during their lunch period under circumstances where she was not entitled to exercise physical placement. She contends the trial evidence was insufficient, as a matter of law, to support her contempt conviction, because the jury was repeatedly and erroneously told the order restricted her from merely “visiting” or having “visitation” with those children. Hansen argues that, as a statutory matter, “physical placement” does not encompass a parent’s mere “visit” with his or her child, even if the parent intentionally interacted with the child. For a parent to have exercised physical placement, Hansen contends, that parent must also have actually made decisions about a child’s daily care.

Consistent with Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, we conclude that the Wisconsin Statutes do not provide for a parent’s statutory “visitation” with his or her children but instead provide for physical placement with the children. Court-ordered “physical placement,” as that term is defined in WIS. STAT. § 767.001(5) (2019-20), grants a noncustodial parent, such as Hansen, the following two rights that may only be exercised in accordance with the applicable court order: (1) to be physically present with a child; and (2) to make routine daily decisions regarding the child’s care, consistent with the major decisions made by a person having legal custody of the child. As explained in more detail below, under existing law and common sense, the first of these two rights includes the concept of “visiting”—or otherwise personally interacting with—a child. And contrary to Hansen’s legal contention, we hold that a parent exercises physical placement rights if he or she is physically present with his or her children and in a position to make decisions regarding their daily care Under such circumstances, a fact finder may conclude, without needing to divine whether (or how) such care decisions actually occurred, that a parent violated a physical placement order.

Only intentional violations of such an order, however, can rise to the level of criminal contempt. See WIS. STAT. § 785.01(1). In this case, Hansen was permitted to have a single, two-to-four-hour in-person interaction with her children each week, and only when arranged in advance and supervised. No error occurred when the phrase “physical placement” was used interchangeably with “visitation,” or the like, throughout the trial because Hansen had no right to be physically present with her children at their school and in a position where she could make decisions regarding their care without supervision and approval for the visit. By coming to her children’s school without permission, sitting with her children while they ate lunch, and deceiving school staff regarding her identity, the jury could properly find that Hansen intentionally violated the family court order. Therefore, Hansen’s contempt conviction on this record is valid.

We also conclude that Hansen’s ineffective assistance of counsel claims fail. Hansen asserts that these claims require the vacation of her other two convictions and a new trial on those charges—i.e., second-degree recklessly endangering safety and obstructing an officer—both of which relate to an altercation between Hansen and a law enforcement officer in the parking lot of her children’s school. Hansen first claims that her counsel was deficient by failing to object to alleged mischaracterizations of the family court order. That claim, however, is dependent on her substantive arguments of error, which we reject on the merits. Hansen’s second ineffective assistance claim regarding counsel’s failure to play a video of her post-arrest interrogation with law enforcement fails because it overstates the applicable evidence, and because her counsel reasonably chose not to play the video at trial. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Bobbie Jo Jean Hendon v. John Harland Hendon

Case No.: 2020AP359

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

Focus: Abuse of Discretion – Child Support Modification

John Hendon appeals an order granting Bobbie Jo Hendon’s motion to modify child support. John argues the circuit court erroneously exercised its discretion by concluding there was a substantial change in circumstances justifying an increase in his monthly child support obligation. We reject John’s arguments and affirm the order.

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WI Court of Appeals – District I

Case Name: Estate of Finely Olson, et al., v. Carrie Heller, et al.,

Case No.: 2020AP496

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

Focus: Insurance Claim – Coverage

The Estate of Finley Olson, by its special administrator Rachel Olson, and Rachel and William Olson individually (collectively, the Estate) appeal the circuit court order granting American Family Mutual Insurance Company (American Family) summary and declaratory judgment that its insureds, Carrie and Timothy Heller (the Hellers), did not have coverage under their insurance policy through American Family (the Policy) for the claims related to Finley Olson’s death while in the care of the Hellers. The Estate argues that the business pursuits exclusion in the Policy would not apply because the Hellers were not licensed day care providers and the insurance policy language is vague and ambiguous. Additionally, the Estate contends that because Carrie was acquitted of criminal charges for running an unlicensed day care, issue preclusion bars the relitigation of whether Carrie was operating a home day care service. Alternatively, the Estate asserts that if the Policy’s business pursuits exclusion applies, then the non-business activities exception would also apply because Carrie was feeding her own child at the time of Finley Olson’s accident. We reject all of the Estate’s arguments and accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Alejandro Juan Gutierrez

Case No.: 2020AP498-CR; 2020AP499-CR; 2020AP500-CR; 2020AP501-CR

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

Focus: Plea Colloquy

Alejandro Gutierrez appeals judgments, entered upon his no-contest pleas, convicting him of child enticement; third-degree sexual assault; strangulation and suffocation; false imprisonment; burglary of a dwelling; and two counts of felony bail jumping, with both the false imprisonment and burglary counts as party to a crime. He also appeals the order denying his motion for postconviction relief. Gutierrez argues he is entitled to plea withdrawal because a defective plea colloquy rendered his pleas unknowing, unintelligent, and involuntary. We affirm the judgments and order.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lisa Rena Lantz

Case No.: 2020AP742-CR

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

Focus: Due Process violation

Lisa Lantz appeals a judgment convicting her of one count of conspiring to deliver methamphetamine, two counts of soliciting the delivery of methamphetamine, and one count of maintaining a drug trafficking place. Lantz argues that her two convictions for soliciting the delivery of methamphetamine are multiplicitous of her conviction for conspiring to deliver methamphetamine, in violation of her due process rights. Lantz further contends she has not waived her multiplicity claim, but if she has, she argues that her trial counsel was ineffective for failing to raise a multiplicity argument. Lantz also argues the circuit court erroneously exercised its discretion by imposing an aggregate twenty-seven year sentence because the court disregarded mitigating factors and erroneously believed that Lantz could not remain drug free. Lantz requests that we reverse and remand her case to the circuit court with instructions to vacate her solicitation convictions, dismiss the solicitation charges, and resentence her on the remaining charges.

We conclude that conspiring to deliver methamphetamine and soliciting the delivery of methamphetamine are different in law and in fact. We therefore presume that the legislature authorized cumulative punishments for these offenses and determine that Lantz has not overcome her burden of rebutting this presumption. Because Lantz’s solicitation and conspiracy convictions are not multiplicitous, her counsel was not ineffective. Finally, we further conclude that the circuit court did not erroneously exercise its discretion when sentencing Lantz to a total of twenty-seven years in the Wisconsin prison system. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Rachel Slabey v. Dunn County, Wisconsin, et al.,

Case No.: 2020AP877

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

Focus: Prisoner – Deliberate Indifference

Rachel Slabey appeals a grant of summary judgment in favor of Dunn County (“the County”), Dennis Smith, Brenda LaForte, Marshall Multhauf, and Paul Gunness (collectively, the “Individual Defendants,” and together with the County, the “County Defendants”), dismissing her claims under 42 U.S.C. § 1983 (2018). Slabey was sexually assaulted by correctional officer Ryan Boigenzahn while she was incarcerated in the Dunn County Jail. The circuit court dismissed Slabey’s complaint after determining there was no evidence upon which a reasonable fact finder could rely to conclude the County Defendants were deliberately indifferent to a substantial risk that Boigenzahn would sexually assault an inmate.

Slabey challenges that determination on appeal, asserting it was sufficient that the County had notice of prior disciplinary conduct involving Boigenzahn and, therefore, the County must have known that its policies forbidding fraternization and sexual contact with inmates were insufficient to protect inmates. We disagree, as the prior conduct (for which Boigenzahn was temporarily suspended) was not of a sexual nature. We also reject Slabey’s arguments that the circuit court erred by dismissing her claims against Dunn County Sheriff Dennis Smith in his personal capacity. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: Midwest Dental Care, Mondovi, Inc., v. Dr. Kristina B. Welle

Case No.: 2020AP1064

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

Focus: Frivolous Appeal and Attorney Fees

Midwest Dental Care, Mondovi, Inc., appeals the circuit court’s denial of its summary judgment motion for dismissal of a counterclaim made against it by Dr. Kristina Welle for breach of an employment contract. Welle asserts that the appeal is frivolous and moves for an award of attorney fees. We conclude the court properly determined that there were material questions of fact in dispute on the counterclaim warranting a trial. However, we do not conclude the appeal was frivolous. Accordingly, we affirm the judgment and deny the motion for attorney fees.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ryan M. Swadner

Case No.: 2020AP1164-CR

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

Focus: Plea & Sentencing – Sentence Modification

Ryan Swadner appeals a judgment, entered upon his no-contest pleas, convicting him of three counts of homicide by operation of a vehicle with a detectable amount of a restricted controlled substance, contrary to WIS. STAT. § 940.09(1)(am) (2019-20), and one count of injury by operation of a vehicle with a detectable amount of a restricted controlled substance, contrary to WIS. STAT. § 346.63(2)(a)3. Swadner also appeals an order denying his motion for postconviction relief. He argues the circuit court erroneously exercised its sentencing discretion by viewing him as more culpable based on an incorrect conclusion that he was impaired by [tetrahydrocannabinol (“THC”)] at the time of the vehicle crash, and by discounting Swadner’s youth. Swadner argues, alternatively, that new factors justify sentence modification. We reject Swadner’s arguments and affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: Trempealeau County v. B.K.,

Case No.: 2020AP1166

Officials: SEIDL, J.

Focus: Involuntary Commitment and Medication

Brian appeals from an order of commitment and an order for involuntary medication and treatment, entered pursuant to WIS. STAT. § 51.20. Brian argues that his due process rights were violated because he was not given particularized notice as to which standard of dangerousness under § 51.20(1)(a)2. the County intended to pursue at his final commitment hearing. Brian also challenges the sufficiency of the evidence establishing that he was dangerous to himself or others under any of the standards set forth in § 51.20(1)(a)2. We affirm.

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WI Court of Appeals – District III

Case Name: Jerod C. Hansen, et al., v. Mark A. Klein, et al.,

Case No.: 2020AP1265

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

Focus: Summary Judgment – Issue of Material Fact

Jerod Hansen and Catherine Tabor-Hansen (collectively, “the Hansens”) appeal from the circuit court’s grant of a summary judgment in favor of Wendell, Anna and Carlton Klein (collectively, “the Kleins”), dismissing the Kleins from this suit. The Hansens argue that disputed issues of material fact remain as to whether the Kleins engaged in a civil conspiracy with their neighboring relatives, who sold real property to the Hansens, to suppress and conceal the existence of adverse conditions affecting the property during the time that the Hansens rented the property and prior to their purchase of it. We conclude the Hansens failed to provide sufficient evidence, under the applicable legal standard, to support their civil conspiracy claim, and, thus, no genuine issues of material fact preclude summary judgment on that claim. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jacky Lee

Case No.: 2020AP1633-CR

Officials: DONALD, J.

Focus: Due Process Violation – Jury Instructions

Jacky Lee appeals a judgment of conviction, following a jury trial, for a second-offense operating a motor vehicle with a prohibited alcohol concentration.

On appeal, Lee contends that his due process rights were violated when the circuit court denied his request to provide a special instruction to the jury regarding the destruction of an intoximeter breath test video. In addition, Lee argues that the circuit court erred when it failed to bar the State from introducing maintenance records for the intoximeter machine and the certification records of the officer who operated the machine. As discussed below, we reject Lee’s arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Steven A. Avery

Case No.: 2017AP2288-CR

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

Focus: Motion for Reconsideration Denied

In 2007, following a jury trial, Steven A. Avery was convicted of first-degree intentional homicide, party to the crime, and possession of a firearm by a felon. We affirmed his convictions on appeal. The issues in this new case concern collateral proceedings: whether the circuit court erred in denying Avery’s WIS. STAT. § 974.06 (2019-20) motion and two supplemental motions without a hearing, as well as his motions to vacate and for reconsideration of the first of these motions. We hold that Avery’s § 974.06 motions are insufficient on their face to entitle him to a hearing and that the circuit court did not erroneously exercise its discretion in denying the motions to vacate and for reconsideration. Accordingly, we affirm

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WI Court of Appeals – District II

Case Name: Roberts Premier Design Corp., v. Jeff Adams, et al.,

Case No.: 2019AP1706

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

Focus: Stipulated Judgment – Right to Appeal

This appeal arises out of a home construction dispute. The contractor, Roberts Premier Design Corp. (Premier Design) sued homeowners Jeff and Kelly Adams for nonpayment. The Adamses, in turn, counterclaimed against Premier Design and joined its owner, John Roberts, bringing claims for theft by contractor and/or breach of contract. Shortly before the scheduled trial, Roberts was criminally charged for the same conduct alleged in the Adamses’ civil suit. This led to a number of trial court rulings that Premier Design and Roberts (collectively, Appellants) now challenge on appeal. Before we reach those issues, however, we must address the more fundamental question of whether appeal rights are barred. That question arises because these issues come to us as an appeal from a stipulated judgment in the amount of $800,000, entered into pursuant to a settlement agreement.

The Adamses argue that, by stipulating to the judgment from which this appeal is taken, Appellants waived their right to appeal the issues they now raise. We agree. The settlement agreement purported, on its face, “to resolve the Lawsuit without the need for further litigation,” and it gave no indication that either party was reserving any right to appeal the stipulated judgment. Such an unqualified expression of intent cannot be considered anything other than a waiver of appeal rights. Accordingly, we dismiss this appeal.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: Lowe’s Home Centers, LLC, v. City of Delavan

Case No.: 2019AP1987

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

Focus: Property Tax Assessment

Lowe’s Home Centers, LLC (Lowe’s) appeals from an order of the circuit court dismissing its challenges to the City of Delavan’s (the City) 2016 and 2017 tax assessments. Lowe’s argues that the court erred in concluding that the assessments were not excessive. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Wayne D. Herbes

Case No.: 2019AP2081-CR

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

Focus: Admission of Evidence – Other-acts Evidence

Wayne Herbes appeals from a judgment of conviction for three counts of first-degree sexual assault of a child and an order denying his postconviction motion. The charges related to Herbes having sexual contact with his then-girlfriend’s granddaughter in 2011. Herbes argues the circuit court erroneously admitted at trial other acts evidence in the form of testimony from his adoptive daughter that Herbes had molested her hundreds of times between 1976 and 1981, when she was between the ages of five and ten. Herbes also argues his trial attorney was constitutionally ineffective for failing to more thoroughly mitigate the impact of the other acts evidence. We reject Herbes’ arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jacob M. Bacon

Case No.: 2019AP2367-CR

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

Focus: Ineffective Assistance of Counsel

Jacob Bacon appeals a judgment of conviction for first-degree sexual assault of a child and an order denying his postconviction motion. He argues on appeal that he received constitutionally ineffective assistance as a result of his trial attorney’s failure to seek dismissal of the action for an alleged speedy trial violation, as well as his attorney’s failure to object at trial to the admission of a video recording of a forensic interview with the victim. We conclude Bacon’s trial attorney did not perform deficiently because no speedy trial violation occurred, and she strategically declined to object to the video recording’s admission. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Darquice J. Edwards

Case No.: 2020AP207-CR

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

Focus: Plea Withdrawal

Darquice J. Edwards appeals from a judgment of conviction and from an order of the circuit court denying his postconviction motion to withdraw his pleas. Because the circuit court properly concluded that Edwards did not satisfy the applicable standards for plea withdrawal, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jason J. Schifelbine

Case No.: 2020AP209-CR

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

Focus: Ineffective Assistance of Counsel

Jason J. Schifelbine appeals from a judgment of conviction, following a jury trial, of one count of physical abuse of a child— intentionally causing great bodily harm. Schifelbine also appeals from the order denying his postconviction motion for relief. On appeal, Schifelbine contends that trial counsel was ineffective for failing to refute the State’s assertion that “abusing shaking and/or rotational injury caused T.F. to suffer subdural bleeding and retinal hemorrhages.” Schifelbine contends that while the term “shaken baby syndrome” was never used at trial, Rabbitt’s contention that this case involved abusive head trauma effectively conveyed to the jury that T.F. was a victim of shaken baby syndrome. Schifelbine contends that counsel failed to argue the controversy surrounding this theory, failed to effectively cross-examine Rabbitt, and failed to introduce evidence that T.F. suffered from an impact injury. Upon review, we affirm.

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WI Court of Appeals – District II

Case Name: Beth Culver v. Adilakshmi Kaza, et al.,

Case No.: 2020AP309

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

Focus: Court Error – Service of Process

Dr. Adilakshmi Kaza appeals from an order denying her motion to dismiss Beth Culver’s medical malpractice complaint. Kaza argues that the circuit court erred in ruling, in part based on a process server’s affidavit of service, that Culver exercised reasonable diligence in attempting personal service on Kaza and that the substitute service of leaving the summons and complaint with the security guard at Kaza’s gated community was sufficient to confer personal jurisdiction over Kaza. We agree with the court’s conclusions and, accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin ex rel. Eagle Lake Manor Community Association, Inc., v. Racine County Board of Drainage Commissioners

Case No.: 2020AP339

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

Focus: Writ of Certiorari – Jurisdiction

Eagle Lake Manor Community Association, Inc. and the Town of Dover (collectively, “the Association”) appeal an order denying their petition for a writ of certiorari. The Association challenges the decision of the Racine County Board of Drainage Commissioners (the “Board”) to annex parcels located in the Eagle Creek watershed based upon the Board’s conclusion that those parcels receive drainage benefits but were inadvertently overlooked at the time the drainage district was organized. We conclude the Association has failed to rebut the presumption of validity afforded to the Board’s decision on certiorari review. Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Frederick Joseph Baier

Case No.: 2020AP398-CR

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

Focus: Sentencing Guidelines – Resentencing

Fredrick Joseph Baier appeals from a judgment of conviction for one count of causing a child between the ages of thirteen and eighteen to view sexual activity and one count of sexual assault of a student by a school staff member. See WIS. STAT. §§ 948.055(1), (2)(b) and 948.095(2) (2015- 16). Baier also appeals from an order denying his postconviction motion. Baier argues that he is entitled to resentencing because the circuit court’s sentencing remarks demonstrated that it was objectively biased and because the circuit court relied on inaccurate information at sentencing. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. David P. Mueller

Case No.: 2020AP509-CR

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

Focus: Sentence Modification

David P. Mueller appeals from a judgment convicting him of homicide by intoxicated use of a vehicle and an order denying his postconviction motion for resentencing or sentence modification. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Avery B. Thomas, Jr.,

Case No.: 2020AP976-CR

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

Focus: Sentence Credit

Avery B. Thomas, Jr. appeals from the denial of sentence credit for forty-eight days spent in federal custody based on a hold that was imposed due to his criminal conduct in this case. The circuit court denied the sentence credit on the ground that WIS. STAT. § 973.155(1)(b) (2019-20) only applies to state holds. We reverse, as “[t]he clear intent of [§] 973.155 is to grant credit for each day in custody regardless of the basis for the confinement as long as it is connected to the offense for which sentence is imposed.” State v. Elandis Johnson, 2009 WI 57, ¶31, 318 Wis. 2d 21, 767 N.W.2d 207 (quoting State v. Gilbert, 115 Wis. 2d 371, 380, 340 N.W.2d 511 (1983)).

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WI Court of Appeals – District II

Case Name: Waukesha County v. M.J.S.,

Case No.: 2021AP105-FT

Officials: REILLY, P.J.

Focus: Involuntary Commitment

M.J.S. appeals from an order of the circuit court extending his involuntary commitment and from an order denying his post-disposition motion. M.J.S. sought a jury trial on the extension of his commitment, but the circuit court found that M.J.S.’s jury demand was untimely pursuant to WIS. STAT. § 51.20(11)(a). M.J.S. argues that as his final hearing was adjourned by the court, his jury demand was not untimely, and, further, our supreme court’s COVID-19 pandemic orders altered the deadlines in his case. We agree with the circuit court’s conclusion that M.J.S.’s jury demand was untimely and that the supreme court orders are inapplicable. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Kimesha Williams v. District Council of Madison Inc.,

Case No.: 2020AP1329

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Summary Judgment – Contract – Landlord-tenant

The District Council of Madison, Inc., Society of St. Vincent de Paul (“the Society”) and Kimesha Williams entered into a contract. Under the contract, the Society permitted Williams to occupy a unit in a residential facility owned and managed by the Society. The parties also agreed that Williams would participate in a program that the Society ran, which was aimed at helping women without ready access to stable housing find better housing situations in the future. The program called for Society staff to educate, counsel, and otherwise assist Williams within the facility’s controlled environment. Five months after Williams moved into the unit, the Society terminated her from the program and required her to vacate the unit she occupied.

In this action, Williams claims that, under Wisconsin landlord-tenant laws, the Society and Williams had a landlord-tenant relationship. According to Williams, when the Society removed her from the unit it violated laws regarding the eviction procedures that apply to landlords. The Society moved for summary judgment and Williams moved for partial summary judgment. The Society did not contest that it did not follow the judicial eviction procedures in the landlord-tenant laws. But it argued that it did not have to follow the procedures, because the legal relationship here was that of a program manager and a program participant, not of a landlord and a tenant. The circuit court agreed with the Society, and as a result granted summary judgment in its favor, denied Williams’s partial motion for summary judgment, and dismissed the complaint. Williams appeals.

We affirm summary judgment for the Society and denial of partial summary for Williams based on the analytical approach used in M & I First National Bank v. Episcopal Homes Management, Inc., 195 Wis. 2d 485, 536 N.W.2d 175 (Ct. App. 1995), which interprets WIS. ADMIN. CODE ch. ATCP 134 (through June 2021). Under this approach, we consider the terms of the contract along with other relevant evidence to determine whether the primary and dominant purpose of the legal relationship between the Society and Williams was to provide Williams with temporary housing (in which case the parties entered into a rental agreement) or was instead to make available to Williams educational, counseling, and similar services (in which case they did not enter into a rental agreement). We conclude that the primary and dominant purpose was to make available to Williams educational, counseling, and similar services that would help her obtain more stable housing in the future and that Williams’s temporary occupation of the unit was only incidental to that purpose. Accordingly, we affirm summary judgment.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Michael J. Foster

Case No.: 2020AP2149-CR

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

Focus: Ineffective Assistance of Counsel

Michael Foster appeals a judgment of conviction and an order of the Jefferson County Circuit Court denying his request for postconviction relief. Foster was convicted of resisting an officer causing substantial bodily harm contrary to WIS. STAT. § 946.41(2r) (2019-20).  Foster filed a postconviction motion for a new trial, alleging that his trial counsel provided constitutionally ineffective assistance by failing to request a jury instruction regarding the defense raised at trial that the officer used excessive force during the officer’s interaction with Foster. The circuit court denied Foster’s motion. We affirm the ruling of the circuit court. Foster’s assertion that his trial counsel was ineffective fails because he has not provided to this court: (1) material instructional language that trial counsel purportedly should have requested; and (2) a developed argument articulating a basis, through reliance on applicable authorities, for such an instruction.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Isaac D. Taylor

Case No.: 2019AP797-CR

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

Focus: Unlawful-stop Claim – Reasonable Suspicion – Suppression of Evidence

Isaac Taylor appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), fifth offense, contending the circuit court erred in denying his motion to suppress the evidence flowing from the traffic stop performed on him. Taylor asserts that the Waukesha police officer who performed the stop lacked reasonable suspicion. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: 5 Walworth, LLC, v. Engerman Contracting, Inc., et al.,

Case No.: 2019AP1085; 2019AP1086

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

Focus: Insurance Claim – Coverage

These consolidated appeals require us to address two common, and somewhat related, perceptions concerning standard commercial general liability (CGL) insurance policies. The first is that such policies never cover an insured who is sued for the cost of replacing or repairing defective workmanship; the second is that such polices only cover liability for so-called “third-party” property damage. Neither perception is entirely accurate. Insurance policies “cover” what they say they cover. By their terms, standard CGL policies—like those in this case—cover liability for damages the insured is legally required to pay because of property damage caused by an “occurrence,” defined in pertinent part as simply an “accident.” A series of “business risk” exclusions preclude coverage for property damage that is to the insured’s own work or product, thereby limiting coverage to “third-party” property damage—but these exclusions have important exceptions. Likewise, court decisions construing the term “accident” have ruled that defective workmanship is not itself a covered accident—but have also found that defective workmanship might cause a covered accident.

Here, we explore the contours of these principles in the context of a residential construction project: a pool complex consisting of two pools, a patio, and surrounding retaining walls. The swimming pool bowl portion of the complex is alleged to have been negligently installed by a subcontractor of the insured, which led to cracking and water leaks, and, ultimately, required the demolition and reconstruction of the entire complex. Alternatively, it is alleged that the problems with the pool were caused by defective shotcrete material; the supplier of that material, and its insurer, have been joined as defendants as well. Although the facts remain murky and to a large extent undeveloped, there is enough in this record for us to conclude that the circuit court erred in finding that there could be no coverage as a matter of law as to either of the insureds present on appeal. We therefore reverse and remand for further proceedings so that the coverage issues may be addressed under the standards set forth in this opinion.

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WI Court of Appeals – District II

Case Name: The Atrium of Racine, Inc., et al., v. Michael S. Polsky, Esq., receiver, et al.,

Case No.: 2019AP1728; 2019AP2063

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

Focus: Receivership – Priority of Assets

This consolidated appeal pits one group of creditors against another group of creditors. When the Atrium, a seventy-six-unit senior housing facility, went into receivership in May 2017, it owed its residents $7,487,000 for “[r]esident entrance fees, deposit fees and trust funds” that the residents had paid at the inception of their residency at the Atrium (the Residents). It also owed $6,097,000 to some 800 individual bondholders who had invested in the Atrium by purchasing bonds (the Bondholders). The circuit court concluded that the Bondholders have priority over the rights of the Residents to the remaining assets of the Atrium. We reverse and remand as pursuant to M&I First National Bank v. Episcopal Homes Management, Inc., 195 Wis. 2d 485, 536 N.W.2d 175 (Ct. App. 1995), the Residents’ entrance fees and security deposits have priority over the interests of the Bondholders.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anthony Francen Harris

Case No.: 2019AP1908-CR

Officials: SEIDL, J.

Focus: OWI – Reasonable Suspicion – Suppression of Evidence

Anthony Harris appeals a judgment of conviction for possession of tetrahydrocannabinol (THC) as a repeater and for third-offense operating a motor vehicle while intoxicated (OWI). Harris challenges the denial of his motion to suppress evidence obtained by law enforcement after it stopped his vehicle, arguing that the arresting officer did not have reasonable suspicion to initiate the stop. We disagree and affirm the judgment.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jonathan M. Kwiatkowski

Case No.: 2019AP1938-CR; 2019AP1939-CR

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

Focus: Abuse of Discretion – Sentence Modification

In these consolidated matters, Jonathan M. Kwiatkowski appeals from judgments convicting him of third-degree sexual assault and misconduct in public office, and an order denying his postconviction motion for resentencing or sentence modification. Specifically, Kwiatkowski argues that he is entitled to resentencing because the circuit court relied on inaccurate information and otherwise erroneously exercised its discretion in imposing sentence. In the alternative, he asserts that the existence of new factors warrants modification of his sentence. We reject his arguments and affirm.

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WI Court of Appeals – District II

Case Name: Derrick J. Hammetter, et al., v. Verisma Systems, Inc.,

Case No.: 2019AP2423

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

Focus: Abuse of Discretion – Class Certification

Verisma Systems, Inc., and Froedtert Memorial Lutheran Hospital, Inc., appeal from an order of the circuit court certifying a class. The primary issue before us is whether the court erroneously exercised its discretion in certifying the class as it did. We consider and reject all of Verisma’s and Froedtert’s challenges to the certification, including those related to the findings necessary for certification, notice to potential class members, certification of common law claims, the statutory limitations period, and the voluntary payment doctrine. We conclude the court did not err.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Oscar C. Thomas

Case No.: 2020AP32-CR

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

Focus: 6^th Amendment Violation – Confrontation Clause

In 2007, Oscar C. Thomas was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment in the death of his wife, Joyce. The autopsy revealed that Joyce died from “[s]trangulation due to physical assault.” Thomas was convicted of all three charges by a jury. He appealed, we affirmed, and our supreme court denied review. State v. Thomas, No. 2010AP1606-CR, unpublished slip op. ¶1 (WI App Nov. 9, 2011), review denied, 2012 WI 45, 340 Wis. 2d 542, 811 N.W.2d 818. Thomas pursued federal habeas corpus relief, Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015),2 and was granted a new trial.

Thomas was retried in 2018, again convicted of all charges, and sentenced to life imprisonment. Thomas’s postconviction motion was denied by the circuit court, and he appeals from his judgment of conviction and from the order denying his postconviction motion. Thomas makes three main arguments: (1) the “corroboration rule” was violated, as the evidence for first-degree sexual assault consisted entirely of his uncorroborated statement; (2) his Confrontation Clause rights were violated when the court allowed the State to present inadmissible hearsay (testimonial DNA test results) to the jury via its cross-examination of his defense expert; and (3) his right to a fair and impartial jury was violated when the circuit court refused to strike a juror that was objectively biased. We address each of Thomas’s arguments below along with the facts relevant to that issue. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher W. LeBlanc

Case No.: 2020AP62-CR

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

Focus: Abuse of Discretion – Resentencing

A sentence under truth-in-sentencing (TIS) is a single sentence made up of two components: initial confinement (IC) and extended supervision (ES). State v. Volk, 2002 WI App 274, ¶28, 258 Wis. 2d 584, 654 N.W.2d 24. We conclude that if a sentencing court imposes an excessive term of IC or ES, a defendant is entitled to a new sentencing hearing as a matter of law unless the nonexcessive term of IC or ES is at the maximum, in which case the court has the discretion to commute the excessive component to the maximum term pursuant to WIS. STAT. § 973.13 (2019-20) without holding a new sentencing hearing.

Christopher W. LeBlanc appeals from a judgment convicting him of using a computer to facilitate a child sex crime, pursuant to WIS. STAT. § 948.075(1r), and from an order denying his postconviction motion for resentencing. LeBlanc raises two issues on appeal: (1) is a defendant entitled to resentencing when an excessive sentence has been imposed and (2) does a court erroneously exercise its sentencing discretion if it relies upon a defendant’s belief that consensual extramarital sex is not sinful as a punitive sentencing factor? LeBlanc is entitled to a new sentencing hearing, as his ES term was excessive but his IC term was less than the maximum allowed by law. As we are reversing on LeBlanc’s first issue and remanding for resentencing, we need not decide if the court actually relied on an improper factor.

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