Weekly Case Digests – November 1, 2021 – November 5, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Chad E. Mathis v. Metropolitan Life Insurance Company

Case No.: 20-2719

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

Focus: Negligent Procurement and Breach-of-Contract

Dr. Chad Mathis served as an orthopedic surgeon in Alabama. He had a disability-insurance policy issued by Standard Insurance. This policy provided “occupational disability coverage.” It insured his income if he became disabled and unable to work as an orthopedic surgeon. This coverage applied even if he obtained (or was able to obtain) other employment. In other words, it covered Dr. Mathis if he was unable to perform his occupation, regardless of whether he was otherwise gainfully employed.

Dr. Mathis switched insurance policies. But the new policy turned out to be different from what he wanted and expected. So he sued Lee Moore (the insurance broker) and Source Brokerage for negligent procurement. Dr. Mathis also sued MetLife (the new insurer) for breach of contract because MetLife did not pay him the entire sum he thought even the new, wrong policy required.

The district judge dismissed the negligent-procurement claim with prejudice and granted summary judgment to MetLife on most of the breach-of-contract claim. A narrow portion of the contract claim survived: the claim for the period from August 21 to September 30, 2017. Dr. Mathis and MetLife then settled this narrow portion. So the case ended below.

Dr. Mathis appeals. He argues Indiana law, not Alabama law, should govern his negligent-procurement claim. And he argues his breach-of-contract claim is not ripe. We disagree on both points and affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Odonis D. Parker

Case No.: 20-1231

Officials: SYKES, Chief Judge, and FLAUM, and ROVNER, Circuit Judges.

Focus: 6^th Amendment Violation – Confrontation Clause

Selina Schutt, her three young children, and her boyfriend, Jamayl Wash, were driving into her apartment complex in Fort Wayne, Indiana, when shots rang out. Wash’s Hyundai Sonata was hit with a barrage of bullets, including one that grazed the top of his scalp. Schutt saw her recently estranged ex-boyfriend, Odonis Parker, shooting from the side of the building. She grabbed her children, ran, and called 911 reporting that her ex-boyfriend, “Odonis Parker,” had shot up a car and was trying to shoot her friend.

The court later sentenced Parker to 114 months in prison followed by a two-year term of supervised release. Parker appealed, arguing that the district court violated his Sixth Amendment rights under the Confrontation Clause when it prohibited him from cross-examining the government witnesses about the lack of DNA evidence tying him to the firearm. The government argues that Parker failed to raise the Confrontation Clause objection at trial and thus waived it, making it subject only to plain error review. Parker asserts that although “the specific words ‘confrontation clause’ were not used in the district court,” the substance of the argument was properly raised. Parker Reply Brief at 5. We need not resolve this issue, because even if we assume that Parker properly preserved the argument, and even if we were to determine that the district court erred by disallowing the proposed cross examination, any error would have been harmless.

Parker argues that the crux of his strategy was to cast reasonable doubt that he possessed the firearm, arguing that the only eyewitness who could identify him by name was biased and her identification was not backed by forensic evidence. Pointing out the lack of forensic evidence, he argues, was essential to his case. Information about the police department’s failure to conduct DNA testing, however, would have added little, if anything to Parker’s defense. The jury already knew that the police did not find any fingerprint evidence on the weapon, magazine, or bullets and that the police did not look for hair and fiber samples. This was not a case made or broken on forensic testing. It was an eye-witness case—with circumstantial evidence as nails that sealed the coffin shut. Indeed, the government lacked forensic evidence, but the circumstantial evidence was robust—the car keys, the documents with Parker’s name, the identification of a man in a red hoodie, the red hoodie in the car, and Parker’s proximity to the scene of the crime. The additional evidence, or rather lack thereof— that the police also did not test the weapons for DNA—would have added little or nothing for the jury’s consideration. Consequently, we can conclude that any error would have been harmless.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jonathon Adeyanju v. Lance Wiersma

Case No.: 20-1876

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

Focus: Ineffective Assistance of Counsel

For his role in a gang shooting, a jury convicted Jonathon Adeyanju of attempted homicide and endangering safety by use of a firearm. His primary defense at trial was that he was not involved, as no physical evidence connected him to the crime, and he said the State’s witnesses could not be trusted. Adeyanju’s counsel contended that the shooters—whoever they were—intended to scare but not to kill their gang rivals, so they were guilty of the endangering safety charges but not attempted homicide.

His counsel was ineffective, Adeyanju submits, because he should have requested a jury instruction on a lesser-included offense to attempted homicide—first-degree recklessly endangering safety. Then, the jury could have found that he was among the shooters but did not intend to kill anyone. But the jury already had that option with the endangering safety by use of a firearm charges, which it chose not to take. Because Adeyanju fails to show that he was prejudiced by counsel’s purported error, we affirm the district court’s denial of his 28 U.S.C. § 2254 petition.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Federal Deposit Insurance Corporation v. Chicago Title Insurance Company, et al.,

Case No.: 20-1572

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

Focus:  Abuse of Discretion – Damages

This case arose from the fraudulent financing of purchases of four properties in Chicago back in 2006. The borrowers concealed their lack of equity from the lender. All defaulted, and the lending bank later went into receivership. As receiver for that bank, the FDIC brought this suit against the title insurance company that conducted the fraudulent closings and an appraisal company that aided the transactions.

The FDIC settled with the appraisal company and went to trial against the title insurance company, winning a verdict but for less than the FDIC believes was warranted. The FDIC’s appeal raises three issues. The first is whether the district court erred by denying prejudgment interest to the FDIC. That issue requires us to address a somewhat Delphic statutory provision telling courts to award “appropriate” prejudgment interest in FDIC receivership cases that blend federal and state law. See 12 U.S.C. § 1821(l). We conclude that the statute gave the district court authority to exercise its discretion and to look to state law for guidance, and we find no legal error or abuse of discretion in denying prejudgment interest. The second and third issues are narrower and more specific to this case. Our second conclusion is that, because of difficult causation issues, the district court did not abuse its discretion in refusing to amend the jury verdict to add more damages. Our third, however, is that the district court erred in giving the title company a $500,000 setoff for the appraisal company’s settlement. We affirm the judgment for the FDIC as far as it went but remand with instructions to add the setoff amount back into the judgment.

Affirmed in part. Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Audrey Wadsworth v. Kross, Liberman & Stone, Inc.,

Case No.: 19-1400

Officials: SYKES, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

Focus: FDCPA – Subject-matter Jurisdiction

This case presents a problem that has become familiar to our circuit: alleged violations of the Fair Debt Collection Practices Act that have not caused the plaintiff any concrete harm. These claims allege nothing more than “bare procedural violation[s],” which Article III precludes us from adjudicating. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). We therefore reverse and remand with instructions to dismiss for lack of subject-matter jurisdiction.

Reversed and remanded with instructions to dismiss

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7^th Circuit Court of Appeals

Case Name: Lydia E. Vega v. Chicago Park District

Case No.: 20-3492

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

Focus: Attorney Fees

Title VII of the Civil Rights Act of 1964 is one of several federal statutes that allows a prevailing party to shift its attorneys’ fees to its adversary. After years of litigation, a federal jury sided with Lydia Vega on her national origin discrimination claim against the Chicago Park District. We affirmed that result on appeal. The parties then began discussing Vega’s attorneys’ fees request. But, just as in the merits litigation, the parties could not resolve their differences.

Vega ultimately submitted two fee petitions to the district court—covering two distinct time periods—that the court granted. The district court also granted Vega’s request for a tax-component award to offset her income tax liability on the backpay award from her successful Title VII claim. The Park District now appeals, taking aim at both the reasonableness of the attorneys’ fee awards and the amount of the tax-component award. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Manuela Chavez

Case No.: 20-1465

Officials: FLAUM, SCUDDER and KIRSCH, Circuit Judges.

Focus: 6^th Amendment Violation – Right to Fair Trial

Manuela Chavez and her aunt owned a clothing store on the south side of Chicago where they sold socks and t-shirts out of the front and kilogram quantities of heroin and cocaine out of the back. In 2015, one of their customers started cooperating with federal law enforcement; eventually, Chavez was indicted for conspiracy to distribute and to possess with intent to distribute heroin and distribution of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). Chavez proceeded to trial where the cooperator’s testimony and videos he had recorded in the store were key pieces of evidence in the government’s case. The jury convicted Chavez on both counts, and she was sentenced to 108 months’ imprisonment.

Chavez now appeals her conviction and her sentence. She argues that the prosecutor, during the rebuttal portion of closing argument, made a litany of improper statements vouching for the informant’s truthfulness, maligning her defense counsel, and inflaming the jury’s fears. Those comments, Chavez continues, both individually and collectively deprived her of a fair trial. She also argues that she must be resentenced because the district court relied on inaccurate information in determining her sentence.

We find no reversible error, either at her trial or during sentencing, and therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Mohammed Mahran v. Advocate Christ Medical Center, et al.,

Case No.: 19-2911

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

Focus: Title VII Violation – Religious Accommodations

Mohammed Mahran, an Egyptian Muslim, sued Advocate Christ Medical Center, his former employer, raising claims of employment discrimination under Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act (“IHRA”). Mahran, a pharmacist, alleged that Advocate failed to accommodate his need for prayer breaks; disciplined and later fired him based on his race, religion, and national origin; retaliated against him for reporting racial and religious discrimination; and subjected him to a hostile work environment based on his race, religion, and national origin. The district judge entered summary judgment for Advocate on all claims.

Mahran limits his appeal to two issues. First, he asks us to revive his religious-accommodation claim, arguing that the judge wrongly required him to show that Advocate’s failure to accommodate his prayer breaks resulted in an adverse employment action. Second, he argues that the judge failed to consider the totality of the evidence in evaluating his hostile-workplace claim.

Mahran’s first argument, which concerns the legal standard for a religious-accommodation claim, is new on appeal. Indeed, he expressly agreed below that an adverse employment action is an element of a prima facie Title VII claim for failure to accommodate an employee’s religious practice. He cannot now take the opposite position here; arguments raised for the first time on appeal are deemed waived. And while the judge should have considered all the evidence Mahran adduced in support of his hostile-workplace claim, our own review of the record convinces us that there is not enough evidence for a jury to find that Advocate subjected him to a hostile work environment. We therefore affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jesse J. Ballard

Case No.: 20-2381

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

Focus: Sentencing Guidelines

This is a successive appeal regarding sentencing. Jesse Ballard pleaded guilty to being a felon in possession of a firearm. The district judge has sentenced him three different times for this offense. Ballard now argues the third sentence is procedurally and substantively unreasonable. But we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Kirk C. Jones v. Kevin Ramos, et al.,

Case No.: 20-2017

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

Focus: Abuse of Discretion – Statute of Limitations

The district court dismissed this personal injury case without prejudice for failure to timely serve the summons and complaint on the defendants. Because the plaintiff had filed the suit only two days short of the limitations period, this ruling effectively ended the litigation. We find no abuse of discretion in the district court’s decision, and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Von Duprin LLC, v. Major Holdings, LLC, et al.,

Case No.: 20-1711; 20-1793

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

Focus: CERCLA – Liability

This is a complex environmental cleanup case out of Indianapolis, Indiana. Over several decades, owners and operators of industrial facilities disposed of chemical solvents used in manufacturing processes. The solvents have degraded over time and have seeped into the groundwater and soil in the surrounding residential area. Investigations showed that vapors emitting from the underground contamination have intruded into homes and a local park.

Von Duprin LLC, whose predecessor in interest manufactured security hardware and once owned property in the area, undertook cleanup efforts and then sought to recover some of those costs as well as future remediation costs. Von Duprin sued former and current owners and operators of adjoining properties under the Comprehensive Environmental Response, Compensation, and Liability Act—a federal environmental statute often shorthanded as CERCLA. Following a bench trial, the district court found that Von Duprin and two other former or current owners and operators in the area bore responsibility for portions of the environmental harm. The court then assigned liability among and between all three parties. Before us now are an appeal and cross-appeal from lengthy proceedings in the district court.

While we see no error in many of the district court’s rulings, we vacate the court’s threshold determination under § 107(a) of CERCLA that liability for remediating the environmental harm is divisible—capable of being apportioned on the basis of principles of causation—among and between the parties to this litigation. In the end, then, we affirm in part and vacate and remand in part for additional proceedings.

Affirmed in part. Vacated and remanded in part.

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7^th Circuit Court of Appeals

Case Name: Big Shoulders Capital LLC, v. San Luis & Rio Grande Railroad, Inc., et al.,

Case No.: 19-3234; 19-3428; 19-3516; 20-1053; 20-1503

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

Focus: Subject-matter Jurisdiction – Breach-of-contract

This labyrinth of appeals stems from a breach of contract claim brought by Big Shoulders Capital LLC against San Luis & Rio Grande Railroad Inc. (SLRG) and Mt. Hood Railroad Co., with federal jurisdiction ostensibly based on diversity of citizenship. In its complaint, Big Shoulders requested that the district court appoint a receiver to handle SLRG’s assets. That court did so, which brought the case to the attention of the several creditors who have interests in entities in the same corporate group as SLRG and Mt. Hood. One of these parties, Sandton Rail Company LLC, intervened and challenged the appointment of the receiver as well as the district court’s jurisdiction. Sandton alleged that Big Shoulders failed to join necessary parties who, if added, would destroy diversity of citizenship.

Meanwhile, other creditors—referred to here as Petitioning Creditors—filed an involuntary bankruptcy petition on behalf of SLRG in federal bankruptcy court in Colorado. The receiver objected. Because the judicially approved receivership agreement contained an anti-litigation injunction, the district court initially concluded that the bankruptcy petition was void. On reconsideration, however, the district court determined that it did not have authority to enjoin the bankruptcy. So the bankruptcy continued, and after Big Shoulders refused to continue to fund the receivership, the district court approved its termination.

Out of these circumstances come several appeals. Sandton brings the main appeal which claims the district court lacked subject matter jurisdiction over the entire contract dispute because—contrary to the original pleadings—Big Shoulders, SLRG, and Mt. Hood all have Illinois citizenship. The other appeals relate to the bankruptcy petition and the district court’s decision to first enforce the anti-litigation injunction but then to allow the bankruptcy to proceed. In another layer of complexity, each appeal also involves questions of standing or mootness.

In the end, those justiciability questions require us to dismiss all but Sandton’s appeal. As for Sandton’s argument that diversity jurisdiction is lacking, we remand to the district court for an application in the first instance of the “nerve center test” to determine if SLRG and Mt. Hood are citizens of Illinois.

Dismissed in part. Remanded in part.

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Attorney Lynne A. Layber v. Estate of Ronald Ziolkowski, et al.,

Case No.: 2019AP1397

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

Focus: Motion for Reconsideration Denied – Attorney Fees

Attorney Lynne A. Layber appeals the circuit court order denying reconsideration of its determination of reasonable attorney fees she earned representing Julie Ziolkowski and the Estate of Ronald Ziolkowski (collectively, “Ziolkowski”) in their case against WMK, LLC d/b/a Mobility Works, LLC and Navigator Insurance Company. Layber additionally appeals the monetary sanction imposed by the court for failing to attend a hearing. We affirm the circuit court.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey William Koepsel, Jr.,

Case No.: 2019AP1533-CR

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

Focus: Motion to Suppress Denied – Out-of-Court Identification

Jeffrey William Koepsel, Jr., appeals from a judgment, entered on a jury’s verdicts, convicting him of one count of first-degree reckless injury with use of a dangerous weapon as a party to a crime, one count of substantial battery with use of a dangerous weapon as party to a crime, and one count of fourth-degree sexual assault. Koepsel contends that the trial court erred when it denied his motions to suppress a custodial statement to police and an out-of-court identification of him. We conclude that the trial court properly denied the suppression motions, so we affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Martel L. Coffee

Case No.: 2019AP1821-CR

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

Focus: Postconviction Relief – Jury Instructions

Marte L. Coffee appeals from a judgment, entered on a jury’s verdict, convicting him of one count of armed carjacking. Coffee also appeals from an order denying his postconviction motion. Coffee contends that the trial court erred when it refused to give a lesser-included jury instruction and that the postconviction court erred when it declined to grant relief from the trial court’s error.  Upon review, we affirm the judgment and the order.

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WI Court of Appeals – District III

Case Name: City of Wausau v. Danielle Rae Fischer

Case No.: 2020AP60

Officials: STARK, P.J.

Focus: Abuse of Discretion – Postconviction Relief

Danielle Fischer appeals an order denying her WIS. STAT. § 806.07 motion for relief from a prior circuit court order. We conclude the circuit court did not erroneously exercise its discretion by denying Fischer’s § 806.07 motion. We also reject Fischer’s argument that she was improperly forced to pay for an unnecessary hearing transcript, as she has not shown that she properly preserved that issue for appeal. We therefore affirm.

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WI Court of Appeals – District I

Case Name: Acuity v. Estate of Michael Shimeta, et al.,

Case No.: 2020AP189

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

Focus: Insurance Claim – Coverage

The Estate of Michael Shimeta and Terry Scherr appeal an order denying their motion for judgment on the pleadings and granting Acuity, a Mutual Insurance Co.’s motion for declaratory judgment. The Estate and Scherr argue that they are each entitled to an additional $250,000 payment pursuant to the Underinsured Motorists Coverage (UIM Coverage) in the policy that Shimeta had with Acuity. We agree and, thus, we reverse the order of the circuit court and remand for further proceedings consistent with this court’s decision.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Nugene A. Jackson

Case No.: 2020AP241-CR

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

Focus: Sentence Modification

Nugene A. Jackson, pro se, appeals from an order of the circuit court that denied his motion for sentence modification. Jackson contends that his mental health diagnoses of schizophrenia and bipolar disorder constitute a new factor. The circuit court concluded Jackson failed to demonstrate a new factor. We agree with the circuit court and affirm the order.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Patrick D. Fowler

Case No.: 2020AP247-CR

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

Focus:  Postconviction Relief – Juror Challenges

Patrick D. Fowler appeals from a judgment, entered on a jury’s verdicts, convicting him of two counts of first-degree intentional homicide. He also appeals from an order denying his motion for postconviction relief. On appeal, Fowler raises several issues. We reject his arguments and affirm the judgment and order.

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WI Court of Appeals – District I

Case Name: Erik A. Andrade v. City of Milwaukee Board of Fire and Police Commissioners

Case No.: 2020AP333

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

Focus: Due Process Violation

Erik A. Andrade appeals the circuit court order upholding the decision of the City of Milwaukee Board of Fire and Police Commissioners (the Board) to discharge him from service as an officer with the Milwaukee Police Department. Because Andrade fails to show that the Board acted outside of its jurisdiction or did not proceed on the correct theory of law, his claim fails, and accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jesus M. Medina Fernandez

Case No.: 2020AP351-CR; 2020AP352-CR; 2020AP353-CR

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

Focus: Sufficiency of Evidence

Jesus M. Medina Fernandez appeals judgments of conviction entered after a jury found him guilty of three counts of first-degree sexual assault by use of a dangerous weapon and two counts of second-degree sexual assault. Medina claims that the counts were wrongly joined for trial and that the evidence as to one of the counts was insufficient because the State failed to corroborate his confession. We reject his claims and affirm.

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WI Court of Appeals – District IV

Case Name: Sabina Leigh Burton v. The Board of Regents of the University of Wisconsin System

Case No.: 2019AP2276

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

Focus:  Wrongful Termination of Employment – Sufficiency of Evidence

Dr. Sabina Leigh Burton appeals a circuit court order affirming, on judicial review under WIS. STAT. ch. 227, the decision of the Board of Regents of the University of Wisconsin System (the Board) terminating her employment as a tenured professor at the University of Wisconsin-Platteville (UWPL). See WIS. STAT. ch. 227 (2019-20). Burton argues that: (1) the Board’s findings underlying its determination of just cause for termination are not supported by substantial evidence; (2) the Board applied the wrong burden of proof; (3) the Board misconstrued the legal standard for dismissal; (4) the Board denied Burton her right to confront and cross-examine witnesses; and (5) the Board infringed on her academic freedom. We reject her arguments and therefore affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Samuel S. Mattoli

Case No.: 2020AP1209-CR

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Plea & Sentencing – Ineffective Assistance of Counsel

Samuel Mattioli appeals a judgment of conviction and an order denying his postconviction motion. Mattioli contends that the prosecutor breached the plea agreement that called for a joint sentencing recommendation, and that his counsel was ineffective by failing to object to the breach. He argues that he is entitled to resentencing on that basis. We conclude that the prosecutor did not breach the plea agreement. We affirm.

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WI Court of Appeals – District IV

Case Name: Adam N. Ramos, et al., v. Trail Ridge Enterprises, Inc., et al.,

Case No.: 2020AP1521

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Insurance Claim – Duty to Defend – Indemnification

Plaintiff Adam Ramos was injured while delivering products to Trail Ridge Enterprises, Inc., d/b/a Timber Creek Pizza which at the time occupied a building leased from Ronald Luepke. Prior to Ramos’ injury, Timber Creek and Luepke entered into a written lease (which we refer to as the “lease”) but allowed that lease to expire. Timber Creek continued to rent the premises from Luepke until after the date of Ramos’ injury.

Ramos brought an action against Timber Creek and its insurer, Society Insurance, and Luepke and his insurer, Acuity Insurance, in the Jefferson County Circuit Court alleging that improper maintenance of the rented property caused his injuries. Pursuant to what we refer to as the “indemnification provision” in the lease, Luepke and Acuity tendered the defense and indemnification of Ramos’ claims to Timber Creek and Society. Timber Creek and Society failed to accept the tender, and Luepke and Acuity requested a declaratory judgment requiring Timber Creek and Society to defend and indemnify Luepke and Acuity against Ramos’ claims. Timber Creek and Society responded to the motion arguing that the terms of the lease—including the indemnification provision—no longer applied at the time of Ramos’ accident and that, even if the terms continued to apply, Luepke cannot be indemnified for his own alleged acts of negligence. The circuit court granted Luepke’s motion, ordering in relevant part that: the indemnification provision applies in these circumstances; Timber Creek breached its duty to accept the tender of defense and indemnification from Luepke; and Luepke is entitled to reimbursement from Timber Creek for reasonable attorney fees he has incurred in this action. The circuit court further ordered that Acuity is dismissed from this action with prejudice. Timber Creek and Society appeal.  We affirm the circuit court’s order.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert B. Moodie

Case No.: 2021 WI 75

Focus: Attorney Disciplinary Proceedings

We review the report and recommendation of Referee Jean A. DiMotto that Attorney Robert B. Moodie’s petition for reinstatement of his license to practice law in Wisconsin be granted. Upon careful of review of the matter, we agree that Attorney Moodie’s license should be reinstated. We also agree with the referee that Attorney Moodie should be required to pay the full costs of this reinstatement proceeding, which are $3,594.27 as of June 2, 2021.

Reinstatement granted

Concur: ZIEGLER, C.J., filed a concurring opinion.

Dissent:

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