Weekly Case Digests – February 14, 2022 – February 18, 2022

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Bobbie Jo Scholz v. United States of America, et al.,

Case No.: 20-2163

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

Focus:  Subject-matter Jurisdiction and Claim Splitting

Plaintiff-appellant Bobbie Jo Scholz suffered from serious physical and mental ailments following her service in the military. As a result, Scholz received extensive treatment from the Department of Veterans Affairs (“VA”). After this challenging medical journey, she pointed to government negligence as the cause of the drastic decline in her mental and physical state. Seeking recourse, Scholz sued defendant-appellee United States twice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 1346(b), 2671–2680. Her first lawsuit predominately failed at the motion-for-summary-judgment stage. Her second lawsuit, now before us on appeal, sought to raise claims implicating the same, or essentially the same, facts as those claims from her first lawsuit. The district court therefore dismissed her duplicative lawsuit under the rule against claim splitting. Agreeing with the district court, we now affirm.

Affirmed
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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Lamondo D. Turrubiates

Case No.: 2020AP233

Officials: STARK, P.J.

Focus: 4^th Amendment Violation

Lamondo Turrubiates appeals from an order that: (1) compelled him to disclose his cell phone passcode to law enforcement; and (2) found him in contempt and ordered him imprisoned as a remedial sanction after he refused to comply with the order to compel. Turrubiates argues that the order to compel violated his Fourth Amendment rights because at the time he was ordered to provide his cell phone passcode, police had not yet obtained a warrant to search his phone. Turrubiates also argues that the contempt order must be reversed because the circuit court failed to follow the mandatory statutory procedures for holding him in contempt and imposing a remedial sanction.

We reject Turrubiates’ argument regarding the order to compel because the record shows that the State has now obtained a warrant to search his cell phone. As such, the factual basis for Turrubiates’ only claim that the order to compel violated his Fourth Amendment rights no longer exists. Turrubiates’ Fourth Amendment argument therefore fails, and we affirm that portion of the circuit court’s order compelling Turrubiates to provide his passcode to police. We agree with Turrubiates, however, that the court failed to follow the mandatory statutory procedures for holding him in contempt and imposing a remedial sanction. Accordingly, we reverse that portion of the court’s order that held Turrubiates in contempt and ordered him imprisoned as a remedial sanction for his failure to provide the passcode.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. David Charles Smith

Case No.: 2020AP584-CR

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

Focus: Sufficiency of Evidence

David Charles Smith appeals the judgment of conviction for multiple counts of sexual assault of two children. Smith argues that the trial court erred in its evidentiary rulings regarding allegations of one child’s prior conduct, which the court determined was inadmissible under the rape shield law. Further, Smith contends that there was insufficient evidence to prove all elements of the assault of the second child. We reject his arguments, and accordingly, affirm the judgment.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Emanual Santana

Case No.: 2020AP1214-CR

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

Focus: Ineffective Assistance of Counsel
Emanual Santana appeals from a judgment of conviction for one count of first-degree sexual assault and an order denying his postconviction motion, without a hearing. On appeal, Santana argues that his trial counsel was ineffective for failing to bring a proper motion to dismiss the criminal charges filed against him on the basis that the time period alleged in the criminal complaint was too broad and indefinite to allow Santana to prepare a defense. Santana also argues that the plain error doctrine requires that the charges against him be dismissed. For the reasons set forth below, we affirm

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antwan Devonta Green

Case No.: 2020AP1275-CR

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

Focus: Postconviction Relief – Ineffective Instance of Counsel

Antwan Devonta Green appeals a judgment of conviction entered following a jury trial for felon in possession of a firearm and carrying a concealed weapon, both as a party to a crime, and an order denying postconviction relief.  Green contends that one of the jurors who sat on the panel was subjectively biased and the trial court should have struck the juror sua sponte. Alternatively, Green argues that his trial counsel was ineffective for failing to move to strike the juror from the panel. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Darrell Anthony Killebrew

Case No.: 2020AP1312-CR

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

Focus: Court Error – Abuse of Discretion

Darrell Anthony Killebrew appeals a judgment of conviction for one count of possession of a firearm by a convicted felon, one count of disorderly conduct as an act of domestic abuse with use of a dangerous weapon, and one count of threat to a law enforcement officer, with all counts as a repeat offender. On appeal, Killebrew argues that the trial court erroneously exercised its discretion when it denied his request for a new attorney. We agree, and thus, we reverse and remand this matter in order that the trial court may hold a retrospective hearing in which it addresses the reasons for Killebrew’s request for a new attorney.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Quincy D. Moore

Case No.: 2020AP1357-CR

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

Focus: Postconviction Relief – Ineffective Assistance of Counsel

Quincy D. Moore appeals his judgment of conviction for three drug charges and two felon in possession of a firearm charges with various penalty enhancers. He also appeals the trial court’s order denying his motion for postconviction relief without a hearing. Moore argues that an allegedly biased juror served on the jury panel that convicted him and that the trial court erred when it allowed this juror to continue to serve and that his trial counsel provided ineffective assistance by not objecting to the allegedly biased juror. We disagree and, accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: Citation Partners, LLC, v. Wisconsin Department of Revenue

Case No.: 2020AP1683

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

Focus: Statutory Interpretation – Sales Tax

Citation Partners, LLC is in the business of leasing aircraft. At issue in this case is whether the total amount paid for an aircraft lease is subject to sales tax, or, if portions of a lease payment attributed to aircraft maintenance and engine maintenance are statutorily exempt from sales tax. The Tax Appeals Commission agreed with the Wisconsin Department of Revenue that sales tax applies to the total amount paid on a lease. The circuit court, however, reversed the Commission’s decision and found that portions of a lease payment for aircraft maintenance and engine maintenance are exempt from sales tax.

As discussed below, based on the plain language of the statutes and the particular facts of this case, we conclude that the total amount paid on a lease is subject to sales tax without any deductions for aircraft maintenance or engine maintenance. Sales tax cannot be avoided by dividing up a lease price into categories or affixing labels. We therefore reverse the circuit court’s orders and remand with instructions to affirm the Commission’s decision.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: Stephen Sullivan, et al., v. Lucky 239, LLC, et al.,

Case No.:  2020AP1891

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

Focus: Abuse of Discretion – Motion for Reconsideration

Roger Shaide, Roxanne Shaide, Mikel Huppert, and Kelly Huppert (collectively, “the Shaides”) appeal an order in which the circuit court granted Steven and Teresa Sullivan’s motion for reconsideration of a prior order that determined the parties’ respective rights to a disputed area of waterfront property. The Shaides argue the court erroneously exercised its discretion by reconsidering its prior determination of the location of the ordinary high-water mark (“OHWM”) in the disputed area. The Shaides also argue that the court erred by reconsidering its prior decision to determine the parties’ respective interests in the disputed area by apportionment. For the reasons explained below, we conclude the court did not erroneously exercise its discretion by granting the Sullivans’ motion for reconsideration. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.P.H-R.,

Case No.: 2021AP1628

Officials: BRASH, C.J.

Focus: Termination of Parental Rights

M.P.H.-R. appeals the order of the trial court terminating her parental rights to A.S.H. M.P.H.-R. argues that the court erred in its consideration of the evidence in relation to the requisite statutory factors for determining the best interests of A.S.H., and thus erroneously exercised its discretion in terminating M.P.H.-R.’s parental rights. Upon review, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jeffrey L. Hineman

Case No.: 2020AP226-CR

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

Focus: Due Process Violation

Jeffrey L. Hineman appeals from a judgment of conviction, following a jury trial, for first-degree sexual assault of a child under the age of thirteen and from an order denying him postconviction relief. He asserts the State violated his due process rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide him with a March 12, 2015 child protective services (CPS) report prior to his trial. Because we agree with Hineman, we reverse the circuit court’s judgment and order and remand for further proceedings consistent with this decision.

Hineman also contends the circuit court erred in not ordering, postconviction, an in-camera review of the child’s counseling and therapy records pursuant to Shiffra/Green. We agree with Hineman, but only to a limited extent.

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WI Court of Appeals – District II

Case Name: Estate of Stephen O’Bryan, et al., v. David L. O’Bryan

Case No.: 2020AP997

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

Focus: Derivative Suit – Validity of Claim

The Estate of Stephen O’Bryan, Brendan Tim O’Bryan, Joan O’Bryan Herriott, and the remaining plaintiffs appellants named in the caption above appeal from an order of the circuit court dismissing their derivative action against Lakewood Farms, Inc. (LFI) and against David L. O’Bryan, Thomas O’Bryan, and various other O’Bryan family members, all on LFI’s board of directors. After a three-day trial to the court and extensive posttrial briefing and other submissions, the court issued a written decision and order dismissing the action in its entirety. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Sean D. Day

Case No.: 2021AP1018-CR

Officials: GRAHAM, J.

Focus: Abuse of Discretion – Expunction

Sean Day appeals a judgment of conviction for fourth-degree sexual assault and a circuit court order denying his motion for postconviction relief. Specifically, Day challenges the court’s denial of his request that the record of his conviction be expunged upon successful completion of probation. I conclude that the court did not erroneously exercise its discretion, and therefore, I affirm.

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WI Court of Appeals – District IV

Case Name: Portage County v. C.K.S.,

Case No.: 2021AP1291-FT

Officials: NASHOLD, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

C.K.S. appeals from an order extending his WIS. STAT. ch. 51 commitment. C.K.S. argues that there was insufficient evidence of current dangerousness to justify recommitment. He further argues that reversal is warranted because the circuit court failed to specify the statutory basis for recommitment, as required by Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942 N.W.2d 277. I conclude that Portage County failed to establish, by clear and convincing evidence, that C.K.S. is dangerous under any statutory standard. See WIS. STAT. § 51.20(1)(a)2., (13)(e). Accordingly, I reverse on that basis, without addressing whether the circuit court complied with D.J.W. or what the proper remedy would be if the court did not do so. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court need not address all issues raised by the parties if one issue is dispositive)

Recommended for Publication

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Joseph R. Laumann

Case No.: 2021 WI 83

Focus: Attorney Disciplinary Proceedings

This court has pending before it Attorney Joseph R. Laumann’s petition for reinstatement of his license to practice law in Wisconsin. Upon consideration of the reinstatement petition; the Office of Lawyer Regulation’s (OLR) response pursuant to Supreme Court Rule (SCR) 22.30(4); the parties’ SCR 22.30(5)(a) stipulation; and the OLR’s memorandum in support of the stipulation, we conclude that Attorney Laumann’s petition for reinstatement should be granted.

Reinstatement granted

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Walter W. Stern, III,

Case No.: 2021 WI 84

Focus: Attorney Disciplinary Proceedings

We review a report filed by Referee Jean A. DiMotto, recommending the court suspend Attorney Walter W. Stern, III’s license to practice law for a period of 45 days for three counts of professional misconduct. No appeal has been filed so we consider this matter pursuant to Supreme Court Rule (SCR) 22.17(2).

We approve and adopt the referee’s findings of fact and conclusions of law. We conclude that the seriousness of Attorney Stern’s misconduct warrants a 60-day license suspension, and we impose the full costs of this proceeding on Attorney Stern. The OLR did not seek restitution in this matter and no restitution is ordered.

Attorney’s license suspended

Concur:

Dissent:

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WI Supreme Court

Case Name: Waukesha County v. E.J.W.,

Case No.: 2021 WI 85

Focus: Involuntary Commitment

The petitioner, E.J.W., seeks review of an unpublished, authored decision of the court of appeals affirming the circuit court’s order extending his involuntary commitment. He argues that the circuit court incorrectly determined that his jury trial demand was untimely.

Pursuant to Wis. Stat. § 51.20(11)(a), “A jury trial is deemed waived unless demanded at least 48 hours in advance of the time set for final hearing.” E.J.W. did not request a jury trial before the first time set for his final hearing, but that hearing was adjourned and rescheduled. He demanded a jury trial more than 48 hours before the rescheduled date, and he argues that this request was timely under § 51.20(11)(a) so as to entitle him to a jury trial.

We conclude that E.J.W.’s jury demand was timely. Wisconsin Stat. § 51.20(11)(a) does not limit the filing of a jury demand to only the first time that a final hearing is set. Rather, we determine that when a final hearing is rescheduled, § 51.20(11)(a) allows a jury demand to be filed up until 48 hours prior to a rescheduled final hearing.

Accordingly, we reverse the decision of the court of appeals.

Reversed

Concur:

Dissent: ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined.

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WI Supreme Court

Case Name: Andrea Townsend v. ChartSwap, LLC,

Case No.: 2021 WI 86

Focus: Statutory Interpretation – Health Care Records – Fee Restrictions

We review the court of appeals’ decision reversing the circuit court’s dismissal of Andrea Townsend’s claim against ChartSwap, LLC (“ChartSwap”) for unlawfully overcharging her for copies of her medical records in contravention of the fee restrictions set out in Wis. Stat. § 146.83(3f) (2017-18). On appeal, ChartSwap urges us to reverse the court of appeals, arguing that the statutory fee restrictions do not apply to it because it is not a health care provider, which is statutorily defined, and because principles of agency law do not impose personal liability on it for the fees it charged.

We conclude that, under a plain meaning interpretation of Wis. Stat. § 146.81(1), ChartSwap is not a health care provider; and, therefore, it is not subject to the fee restrictions in Wis. Stat. § 146.83(3f)(b), which regulate health care providers. Additionally, we conclude that neither common law principles of agency nor the plain meaning of Wis. Stat. § 990.001(9) supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Accordingly, we reverse the decision of the court of appeals.

Reversed

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: State of Mississippi v. Tennessee, City of Memphis, et al.,

Case No.: No. 143

Focus: Declaratory and Injunctive Relief – Damages

The City of Memphis sits on the banks of the Mississippi River in the southwest corner of Tennessee. Arkansas marks the City’s western border, and Mississippi its southern. Hundreds of feet beneath Memphis lies one of the City’s most valuable resources: the Middle Claiborne Aquifer. Workers discovered the aquifer in 1886 while drilling a well for the Bohlen-Huse Ice Company. Ever since, water pumped from the aquifer has provided Memphis with an abundant supply of clean, affordable drinking water.

The Middle Claiborne Aquifer underlies other States too, including Mississippi. This case began in 2014 when Mississippi invoked our original jurisdiction and sought leave to file a bill of complaint against Tennessee. Mississippi alleges that Tennessee’s pumping has taken hundreds of billions of gallons of water that were once located beneath Mississippi. It seeks at least $615 million in damages, as well as declaratory and injunctive relief. We granted Mississippi leave to file its complaint and appointed a Special Master to oversee proceedings. The Special Master has now issued his report, which recommends that this Court dismiss Mississippi’s complaint with leave to amend. Both Mississippi and Tennessee have filed exceptions.

Exceptions overruled in part and sustained in part, and case dismissed. Dissenting:

Concurring:
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