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Home / Case Digests / Weekly Case Digests – November 22, 2021 – November 26, 2021

Weekly Case Digests – November 22, 2021 – November 26, 2021

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Gilberto Vizcarra-Millan, et al.,

Case No.: 19-3476; 19-3481; 19-3484; 19-3537; 20-1113; 20-1266

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

Focus: Sufficiency of Evidence

Richard Grundy III and his network of drug suppliers, couriers, distributors, and dealers trafficked hundreds of pounds of methamphetamine in Indianapolis. Grundy and over two dozen co-conspirators were indicted. Most ultimately pled guilty. After a three-week trial, Grundy and four other defendants were convicted of all the charges against them. In these consolidated appeals, the five trial defendants and one defendant who pled guilty challenge their convictions. There are no sentencing issues.

Grundy argues that the district court violated his Sixth Amendment right to counsel by improperly obstructing him from representing himself. Gilberto Vizcarra-Millan argues that the district court should have disqualified his chosen counsel due to a conflict of interest. Derek Atwater, James Beasley, and Undrae Moseby all challenge the denials of their untimely motions to suppress evidence. Atwater, Beasley, and Ezell Neville all contend that the evidence was insufficient to support some of their convictions.

We affirm the convictions of Grundy, Vizcarra-Millan, Moseby, Atwater, and Neville. We also affirm the conviction of Beasley on one count but reverse his convictions on two others. The evidence at trial necessarily left a reasonable doubt as to whether he committed those crimes. Beasley’s case is remanded to the district court for resentencing on the one remaining count.

The convictions of Richard Grundy III, Derek Atwater, Undrae Moseby, Gilberto Vizcarra-Millan, and Ezell Neville are AFFIRMED. James Beasley’s conviction on Count 16 is AFFIRMED, but his convictions for Counts 1 and 17 are REVERSED. Beasley’s case is REMANDED for resentencing on Count 16.

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7th Circuit Court of Appeals

Case Name: Lavertis Stewart v. Wexford Health Sources, Inc., et al.,

Case No.: 19-2994

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

Focus: Prisoner – Deliberate Indifference

LaVertis Stewart, an inmate at Dixon Correctional Center, sued the assistant warden, two doctors, and a medical corporation under the Eighth Amendment, claiming that they were deliberately indifferent to his serious medical needs by refusing to grant him an exemption to wearing a restrictive security device, a black box, when he left the facility for medical appointments. He alleged that the black box caused extreme pain because of his existing medical conditions. The district court granted summary judgment for the various defendants, and we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Kathleen McCaigue v. Marc A. Messinger, et al.,

Case No.: 2018AP1888

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

Focus: Equitable Estoppel – Time-barred

Kathleen McCaigue, pro se, appeals orders of the trial court dismissing her numerous claims against several defendants, as set forth in her complaint filed in March 2018, relating to a failed real estate transaction that occurred in December 2005. The trial court concluded that McCaigue’s claims were time-barred by the relevant statutes of limitations. McCaigue argues that equitable estoppel should apply in this case, and alleges that the trial court was biased against her. Upon review, we affirm.

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WI Court of Appeals – District I

Case Name: Germania Real Estate Venture II LLC, v. Stir LLC,

Case No.: 2020AP493

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

Focus: Right of Refusal – Damages

Germania Real Estate Venture II LLC (“Germania”) and Germania Historic, LLC (“Historic”) appeal an order of the circuit court granting STIR LLC (“STIR”) damages arising from the breach of a commercial lease. Germania and Historic contend that the circuit court erred in finding that STIR had an enforceable right of first refusal under the lease and in its calculation of damages. We conclude that the lease, by its plain terms, granted STIR an enforceable right of first refusal. However, we reverse and remand this case for further factual findings regarding damages.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Timothy Christopher Scott, Jr.,

Case No.: 2020AP1118-CR

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

Focus: Ineffective Assistance of Counsel

Timothy Christopher Scott, Jr. appeals from a judgment of conviction entered following a jury trial for two counts of first-degree recklessly endangering safety by use of a dangerous weapon, one count of possession of a firearm by a person adjudicated delinquent, and one count of felony bail jumping. He also appeals an order of the circuit court denying his postconviction motion for relief, without a hearing. He argues on appeal that he received ineffective assistance of counsel and that the trial court erred when it denied his motion to dismiss count three for possession of a firearm by a person adjudicated delinquent. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Kurt B. Parks

Case No.: 2020AP1530-CR

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

Focus: Ineffective Assistance of Counsel

Kurt B. Parks appeals his judgment of conviction for possession of narcotic drugs (heroin), and felony bail jumping, as well as an order of the trial court denying his postconviction motion. Parks argues that his trial counsel was ineffective in a number of ways, all of which were rejected by the trial court. Upon review, we affirm.

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WI Court of Appeals – District III

Case Name: Mark Jason Anderson v. Erica Jean Lindquist

Case No.: 2020AP1816

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

Focus: Abuse of Discretion – Child Placement Order Modification

Erica Lindquist appeals an order granting Mark Anderson’s motion to modify physical placement of the parties’ minor children. Lindquist argues the circuit court erred by determining that the last order substantially affecting physical placement was the parties’ July 2017 divorce judgment, rather than a subsequent order entered in August 2018 that permitted Lindquist to move to Minnesota and exercise physical placement there. In the alternative, Lindquist argues that even if the July 2017 divorce judgment was the last order substantially affecting physical placement, Anderson failed to establish that a substantial change in circumstances had occurred since that time. Finally, Lindquist argues that the court erroneously exercised its discretion by determining that Anderson’s proposed modification of physical placement would be in the children’s best interest. We reject each of these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Dustin Cleland Larson

Case No.: 2020AP1846-CR

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

Focus: Ineffective Assistance of Counsel

Dustin Larson appeals from an incest conviction and an order denying his postconviction claim of ineffective assistance of counsel. He argues his counsel performed deficiently by failing to raise a duplicity challenge to the incest charge. We conclude that the law on this issue is not well settled. Consequently, Larson’s counsel did not perform deficiently by failing to move to discuss the incest count and we affirm.

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WI Court of Appeals – District III

Case Name: Stephan B. Nordstrom, et al., v. Steven G. Kane, et al.,

Case No.: 2020AP1942

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

Focus: Restrictive Covenants

Steven Kane, Jacqueline Kane, and Cottage Row Properties, LLC, appeal a summary judgment granted in favor of Stephan Nordstrom, Graycliffe LLC, Carl Curry, and Cynthia Curry (collectively, “the Objectors”). Cottage Row Properties—of which Steven and Jacqueline Kane are the sole members—owns a parcel of land in Door County known as Tract 54. Cottage Row Properties attempted to convert Tract 54 into a site condominium comprised of three units, each of which would contain one single-family residence. The Objectors contend—and the circuit court agreed—that the condominium conversion violated restrictive covenants applicable to Tract 54, which prohibited that property from being divided into additional tracts. We too conclude that the condominium conversion violated the restrictive covenants. We therefore affirm the court’s grant of summary judgment in favor of the Objectors.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.W.,

Case No.: 2021AP1290

Officials: WHITE, J.

Focus: Termination of Parental Rights

D.W. appeals the circuit court order terminating his parental rights to his child, K.J. D.W. argues that the circuit court erroneously exercised its discretion in granting the petition to terminate his parental rights because the circuit court failed to weigh relevant facts affecting the best interests of the child in consideration of the petition for the termination of parental rights (TPR). We disagree, and accordingly, we affirm the circuit court.

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WI Court of Appeals – District II

Case Name: Brandon Winzer v. Dr. Hartmann, et al.,

Case No.: 2019AP1540

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

Focus: Time-barred – Malpractice Claim

Brandon Winzer appeals from a circuit court order dismissing his medical malpractice claim against Dr. Hartmann and Mercy Medical Center (Mercy) as time-barred under the applicable statute of limitations, WIS. STAT. § 893.55(1m)(2019-20). Winzer argues that the court erred in concluding that his claim was filed more than three years after the injury. We agree with Winzer that the motion to dismiss was erroneously granted, as the allegations of the complaint do not establish that Winzer’s claim is time-barred as a matter of law. We reverse and remand to the circuit court for further proceedings.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: STB Investments LLC, v. Richard Wood

Case No.: 2019AP2386

Officials: STARK, P.J.

Focus: Jurisdiction

Richard Wood, pro se, appeals a judgment of eviction entered in favor of STB Investments LLC. Wood asserts that the circuit court lacked personal jurisdiction over him because he was not properly served with STB’s summons and complaint. We agree, and accordingly, we reverse the eviction judgment and remand for the circuit court to dismiss STB’s complaint without prejudice.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kelly V. Bodoh

Case No.: 2019AP2429

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

Focus: Postconviction Relief – Evidentiary Hearing

Kelly V. Bodoh appeals from an order of the circuit court denying his WIS. STAT. § 974.06 (2019-20) motion for postconviction relief. Because the record conclusively demonstrates that Bodoh was not entitled to relief, we affirm the circuit court’s order denying the motion without an evidentiary hearing.

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WI Court of Appeals – District II

Case Name: Secura Supreme Insurance Company v. The Estate of Daniel Keith Huck

Case No.: 2020AP1078-FT

Officials: Neubauer, Reilly and Grogan, JJ.

Focus: Estate – Insurance Claim – Worker’s Compensation 

Secura Supreme Insurance Company appeals from an order granting judgment to the Estate of Daniel Keith Huck (Estate). We agree with the Estate that the circuit court correctly held that Secura is only permitted to reduce its coverage limits under WIS. STAT. § 632.32(5)(i)2. (2019-20) and its underinsured motorist’s insurance policy by the total amount of worker’s compensation received by the Estate. We affirm.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Santiago B. Rios

Case No.: 2020AP2132-CR

Officials: GROGAN, J.

Focus: Abuse of Discretion – Sentence Modification

Santiago B. Rios appeals from a judgment entered on his no contest pleas to three misdemeanors: (1) criminal trespass to dwelling; (2) criminal damage to property; and (3) disorderly conduct. He also appeals from an order denying his postconviction motion seeking resentencing or sentence modification. On appeal, he raises two claims: (1) the circuit court erroneously exercised its discretion because it failed to adequately consider his drug addiction in imposing sentence; and (2) the disruption to drug treatment programming caused by the COVID-19 pandemic constitutes a new factor warranting sentence modification.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Michael T. Paczkowski

Case No.: 2021AP340-CR

Officials: GROGAN, J.

Focus: Probable Cause – Suppression of Evidence – Breath Test

The State of Wisconsin appeals from the circuit court order suppressing evidence obtained by two Walworth County Sheriff Deputies in the case against Michael T. Paczkowski, who was arrested for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration (PAC), both as second offenses, contrary to WIS. STAT. §§ 346.63(1)(a)&(b) and 346.65(2)(am)2. Because the totality of the circumstances demonstrate that the deputies had probable cause to perform a preliminary breath test (PBT), this court reverses the order granting the suppression motion.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Edward R. Gasse

Case No.: 2021AP484

Officials: GUNDRUM, P.J.

Focus: Probable Cause – Chemical Testing  

Edward R. Gasse appeals the circuit court’s order finding that he unlawfully refused chemical testing of the level of alcohol in his system when requested by the arresting officer in this case. Gasse contends the officer did not have “probable cause to believe [he] was driving or operating a motor vehicle while under the influence,” and “thus the court erred in finding Mr. Gasse refused chemical testing” under WIS. STAT. § 343.305(9). We conclude that the court correctly determined that the officer had probable cause, and we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jessica Rae Hoey

Case No.: 2020AP1159-CR

Officials: Fitzpatrick, Graham, and Nashold, JJ.

Focus: Motion to Suppress Evidence Denied

Jessica Hoey appeals a judgment of conviction. The issue in this appeal is whether the circuit court erred in denying her suppression motion. We conclude that it did not and, therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John G. Dahlk

Case No.: 2020AP1277-CR

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

Focus: Sentence Modification

John G. Dahlk appeals pro se from a postconviction court order denying his motions for sentence modification and resentencing. Dahlk raises two separate sentence modification claims, arguing that a change in parole policy, and his assistance to law enforcement, are “new factors” warranting sentence modification. See State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. We construe Dahlk to also seek resentencing based on his assertion that his original sentence was illegal.

We reject Dahlk’s arguments. Dahlk has not demonstrated that a change in parole policy is a new factor. Moreover, even assuming Dahlk’s assistance to law enforcement is a new factor, the postconviction court did not erroneously exercise its discretion in not modifying Dahlk’s sentence on that basis. Finally, Dahlk has not demonstrated that his sentence was illegal. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: Beatriz Banuelos v. University of Wisconsin Hospitals and Clinics Authority

Case No.: 2020AP1582

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

Focus: Statutory Interpretation – Patient Health Care Records Access

Beatriz Banuelos appeals the circuit court’s dismissal of her complaint alleging that the University of Wisconsin Hospitals and Clinics Authority (UW Health) unlawfully charged her fees for providing, at her request, electronic copies of her patient health care records. The parties agree that whether the court properly dismissed the complaint depends solely on the interpretation of WIS. STAT. § 146.83(3f) (2019-20), which governs the fees that health care providers are allowed to charge for fulfilling requests to provide copies of patient health care records. We conclude that the pertinent statutory language permits a health care provider to charge for providing requested copies of patient health care records only those fees enumerated in § 146.83(3f) that apply to the request. We conclude that the fees that UW Health charged Banuelos are unlawful under § 146.83(3f) because she requested and received copies in an electronic format and there are no statutorily enumerated fees for electronic copies. Accordingly, we reverse the court’s order dismissing Banuelos’s complaint and remand for further proceedings.

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WI Court of Appeals – District IV

Case Name: Adam Kodra, et al., v. Harold Fredd, et al.,

Case No.: 2020AP1989

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Insurance Claim – Coverage – Jurisdiction

Adam Kodra sued Harold Fredd, Fredd’s business, Northern Precision Rifles, and Fredd’s purported homeowner’s insurer, USAA Casualty Insurance Company, alleging that Fredd’s negligence in customizing Kodra’s rifle caused the injuries that Kodra suffered when he subsequently fired the rifle and it exploded. In this appeal, Kodra challenges two decisions by the circuit court. In the first decision, the court denied Kodra’s motion for default judgment against USAA Casualty, the insurance company initially sued and served by Kodra. In the second decision, after United Services Automobile Association was substituted as the correct defendant insurance company, the court granted United Services Automobile Association’s motion for summary judgment based on the court’s conclusion that two exclusions in Fredd’s United Services Automobile Association insurance policy apply to bar coverage for Kodra’s injuries.

We conclude that we lack jurisdiction over Kodra’s appeal of the first circuit court decision because Kodra failed either to timely seek leave to appeal the non-final order denying his motion for default judgment against USAA Casualty or to timely appeal the subsequent final order substituting United Services Automobile Association as the defendant insurer and thereby dismissing USAA Casualty as a party. As to the second circuit court decision, we conclude that the undisputed facts establish that United Services Automobile Association is entitled to summary judgment because, given that Fredd was required to and did have a federal license to perform the work of customizing Kodra’s rifle, the “professional services” exclusion in Fredd’s United Services Automobile Association insurance policy applies to bar coverage for Kodra’s injuries allegedly resulting from that work. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: La Crosse County Department of Human Services v. B.B., et al.,

Case No.: 2020AP2030; 2020AP2031

Officials: GRAHAM, J.

Focus: Termination of Parental Rights

B.B. and E.B. appeal orders entered by the circuit court terminating their parental rights after a jury found that their children were in continuing need of protection or services. B.B. and E.B. argue that, throughout the grounds phase of the proceeding, the guardian ad litem improperly invoked the children’s best interests in her arguments to the jury and in the testimony she elicited from witnesses. Separately, B.B. argues that the circuit court violated her due process rights by holding the dispositional hearing via videoconferencing technology. I reject these arguments and affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Sandra J. Zenor

Case No.: 2021 WI 77

Focus: Attorney Disciplinary Proceedings

We review a report filed by Referee Robert E. Kinney, accepting a stipulation executed by Attorney Sandra J. Zenor and the Office of Lawyer Regulation (OLR), in which Attorney Zenor pled no contest to four counts of professional misconduct and agreed that the allegations of the OLR’s complaint were established by clear, satisfactory, and convincing evidence. Consistent with the terms of the stipulation, the referee recommends that we suspend Attorney Zenor’s law license for 60 days. The referee also recommends we order Attorney Zenor to pay the full costs of this proceeding, which total $1,733.49 as of July 6, 2021. The OLR did not request restitution, having advised this court that Attorney Zenor made full restitution in this disciplinary matter.

We adopt the referee’s findings of fact and conclusions of law as derived from the parties’ stipulation, which permits the referee to rely on the factual allegations in the OLR’s complaint. We agree that a 60-day suspension is appropriate, and we impose the full costs of this proceeding on Attorney Zenor. The OLR indicates that restitution has been made so we do not impose a restitution order.

Attorney’s license suspended

Concur:

Dissent:
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