Weekly Case Digests — Oct. 3-7, 2016

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: Jerome Cole v. Board of Trustees of Northern Illinois University, et al

Case No.: 15-2305

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Focus: Retaliatory Termination

Plaintiff Jerome Cole has worked for Northern Illinois University in the Building Services Department since 1998. He is African-American, and he alleges that beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment, including the discovery of a hangman’s noose in his newly assigned workspace. He sued the university’s board of trustees and eleven individual university employees asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2, –3, and the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants. We affirm. The hostile work environment claim presents the closest question, but Cole has not shown a basis for employer liability for the alleged harassment. Cole also has not offered evidence that would allow a reasonable trier of fact to find that he was subjected to disparate treatment based on his race. His retaliation claim fails because he has not offered evidence that he engaged in protected activity.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Florence County, et al v. Wisconsin Employment Relations Commission, et al

Case No.: 2015AP1384

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

Focus: Arbitration

Lisa Gribble appeals a circuit court judgment reversing a decision of the Wisconsin Employment Relations Commission (WERC) that Florence County violated a collective bargaining agreement when it laid off Gribble, and her labor representative breached its duty of fair representation by failing to take her grievance to arbitration. We affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. James Parrish Hill

Case No.: 2015AP1939

Officials: Kessler, Brennan and Brash, JJ.

Focus: Sentence Modification

James Parrish Hill, pro se, appeals from an order of the circuit court that denied his motion for sentence modification. The circuit court deemed the original motion procedurally barred by State v. Escalona Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Hill also appeals from an order denying his motion for reconsideration. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kimberly D. Sisson

Case No.: 2015AP2001

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

Focus: Sentence Modification

Kimberly Sisson appeals an order denying a motion for sentence modification. We affirm.

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WI Court of Appeals – District I

Case Name: Shenicqua S. Napper v. Smart Dollar Auto et al

Case No.: 2015AP2151

Officials: Brennan and Brash, JJ., and Daniel L. LaRocque, Reserve Judge.

Focus: Misrepresentation – Summary Judgment

Shenicqua S. Napper appeals from an order of the circuit court that granted summary judgment to Smart Dollar Auto, George Kussman, and Auto-Owners Insurance Company (collectively, “Smart Dollar”) and dismissed Napper’s claims. Napper asserts a factual dispute precludes summary judgment on her statutory misrepresentation claim. We disagree, so we affirm the circuit court’s order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lucas Nelson

Case No.: 2015AP1371-CR; 2015AP1372-CR

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

Focus: Motion for New Trial

In these consolidated matters, Lucas Nelson appeals from judgments of conviction entered upon a jury’s guilty verdicts and from an order denying his postconviction motion for a new trial. Nelson argues that the postconviction court improperly determined nunc pro tunc that Nelson was competent to represent himself at trial. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: Valley Pest Control, Inc. v. Todd Campbell

Case No.: 2015AP1564

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

Focus: Attorney Fees

Valley Pest Control, Inc. appeals from a circuit court order granting summary judgment to Todd Campbell d/b/a Apex Pest Control and awarding him costs and actual attorney’s fees. We affirm the grant of summary judgment. We reverse the award of costs and actual attorney’s fees and remand for proceedings to address costs and attorney’s fees using the appropriate procedure.

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WI Court of Appeals – District I

Case Name: Nashawn Harp v. Department of Health Services

Case No.: 2015AP2013

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

Focus: Sufficiency of Evidence

Nashawn Harp (Harp) appeals an order denying her challenge to a decision of a Division of Hearings and Appeals administrative law judge (ALJ) that upheld her disenrollment from a program that provides financial assistance to participants with disabilities. As sufficient evidence of fraud supports the ALJ’s decision, we affirm

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Lyle A. Lay

Case No.: 2015AP2380-CR

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

Focus: Breach of Plea Agreement

Lyle A. Lay appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the State breached his plea agreement by failing to return certain property taken from him. We disagree and affirm

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WI Court of Appeals – District II

Case Name: Barbara A. Simonson et al v. Mary M. Vaira et al

Case No.: 2016AP113

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

Focus: Trustee – Denial of Due Process

Barbara A. Simonson appeals from circuit court orders which, among other things, removed her as personal representative of the Estate of John J. Hohler (the Estate) and as trustee of the John J. and Jane Hohler Trust (the Trust). Simonson, a daughter of John and Jane Hohler (both deceased), asserts that the circuit court denied her due process and did not follow statutory procedures for removal of a personal representative or trustee. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Frederick S. Smith

Case No.: 2015AP756-CR

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Motion to Suppress – Plea Withdrawal

Fredrick Smith appeals a judgment of conviction. We conclude that the State has failed to provide a meaningful legal response to Smith’s argument that his suppression motion should have been granted. Therefore, we vacate the judgment of conviction and order the circuit court to allow Smith to withdraw his plea and to grant the suppression motion.

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WI Court of Appeals – District IV

Case Name: Rita R. Helgerson v. Wal-Mart Stores, Inc.

Case No.: 2015AP1993

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Focus: Dismissal – Personal Injury

Rita Helgerson appeals a stipulated dismissal of her personal injury action. We affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Kenneth M. Asboth, Jr.

Case No.: 2015AP2052

Officials: Lundsten, Sherman, and Blanchard, JJ

Focus: Motion to Suppress

Kenneth Asboth appeals a judgment of conviction for armed robbery, challenging the circuit court’s denial of his motion to suppress evidence. Police lawfully took Asboth into custody at a private storage unit facility, then had a car associated with Asboth towed to a police facility, where police conducted an inventory search of the car. The inventory search revealed evidence that Asboth seeks to suppress, but no aspect of the inventory search itself is at issue in this appeal. Instead, Asboth argues exclusively that police violated the Fourth Amendment in initially seizing the car. The seizure was unconstitutional, Asboth contends, for two reasons: it was not conducted pursuant to a law enforcement vehicle seizure policy with standardized, sufficiently detailed criteria, and it was not justified as an exception to the Fourth Amendment warrant requirement under the bona fide community caretaker doctrine. We disagree and accordingly affirm.

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WI Court of Appeals – District IV

Case Name: Jessica Pierce, et al v. Mid-Century Insurance Company, et al

Case No.: 2015AP2408

Officials: Lundsten, Sherman and Blanchard, JJ

Focus: Insurance Policy – Coverage – Underinsured Motorist Coverage

This appeal relates to the enforceability of an automobile insurance policy provision that is part of the policy’s definition of an underinsured motor vehicle. As pertinent here, this provision has the effect of excluding passengers of an insured’s vehicle from the policy’s underinsured motorist (UIM) coverage when the insured driver was at fault and was operating a vehicle insured by the policy’s liability coverage. The main purpose of this exclusion, as explained below, is to prevent a policy’s UIM coverage from acting as supplementary liability coverage under the same policy. The appellants here were injured while passengers in a vehicle insured by a policy containing this exclusion. The insurer, Mid-Century Insurance Company, denied UIM coverage based on the exclusion. The issue here is whether provisions in Wisconsin’s omnibus automobile insurance statute, WIS. STAT. § 632.32(5)(e) and (6)(b)2.a., prohibit or allow the exclusion.  Like the circuit court, we resolve this issue against the appellant passengers. Accordingly, we affirm the court’s order dismissing the passengers’ claims for UIM coverage.

Recommended for publication

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WI Court of Appeals – District IV

Case Name: Travis R. Mueller v. Mark P. Palan

Case No.: 2015AP2455

Officials: Kloppenburg, P.J., Lundsten and Sherman, JJ.

Focus: Negligence – Immunity

Travis Mueller was injured while operating an allterrain vehicle (ATV). Mueller was helping to assemble fish cribs on the frozen surface of Blackhawk Lake as part of a volunteer project organized by Wisconsin Department of Natural Resources Fisheries Biologist Eugene Van Dyck and Palan’s Outpost Sporting Goods and its owners Mark Palan and Barbara Palan. Mueller filed a complaint alleging that his injuries resulted from the negligence of Van Dyck and the Palan defendants. The circuit court dismissed Mueller’s complaint against Van Dyck and the Palans on the ground that Van Dyck and the Palans are immune from liability under Wisconsin’s recreational immunity statute, WIS. STAT. § 895.52 (2013-14).  Mueller appeals, arguing that the recreational immunity statute does not apply because the allegations of the complaint make it clear that he was not engaged in a recreational activity when he was injured, and the Palans were not “owners” of the lake as that term is used in the recreational immunity statute. We reject Mueller’s arguments and affirm

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WI Court of Appeals – District IV

Case Name: Dane County Department of Human Services v. C.N.

Case No.: 2016AP1472; 2016AP1473

Officials: Blanchard, J .

Focus: Termination of Parental Rights

C.N. appeals circuit court orders terminating her parental rights to J.N. and J.G. Regarding the grounds phase, C.N. does not dispute the ground of continuing children in need of protection or services (CHIPS) as to each child, but argues that the circuit court erred in issuing orders terminating C.N.’s rights to both children on the ground of failure to assume parental responsibility. Regarding the dispositional phase, C.N. argues that the court erroneously exercised its discretion in concluding that the termination of C.N.’s parental rights was in the children’s best interests.

The parties agree that an apparent clerical error resulted in the orders erroneously reflecting that C.N.’s rights were terminated on the ground of failure to assume parental responsibility.2 This leaves the challenge to the dispositional result. On this issue, I agree with the County and the guardian ad litem that the circuit court reasonably exercised its discretion in terminating C.N.’s parental rights in the children’s best interests.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dominique Lashawn-Grafton

Case No.: 2015AP218

Officials: Brennan, Brash, JJ., and Daniel L. LaRocque, Reserve Judge

Focus: Resentencing – New Evidence

Dominique Lashawn Grafton appeals an order denying his postconviction motion seeking resentencing based on newly discovered evidence. We conclude that the postconviction court properly denied Grafton’s motion for two reasons: (1) there is not a reasonable probability that a

jury, looking at both the accusation and the recantation, would have a reasonable doubt as to Grafton’s guilt; and (2) the recantation lacks corroboration. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Rico R. Hill

Case No.: 2015AP1215-CR

Officials: Brennan and Brash, JJ., and Daniel L. LaRocque, Reserve Judge

Focus: Ineffective Assistance of Counsel

Rico R. Hill appeals a judgment convicting him of one count of battery and one count of strangulation and suffocation. He also appeals an order denying his motion for postconviction relief. Hill argues that he received constitutionally ineffective assistance from his counsel because his lawyer did not call an alibi witness to testify on his behalf at trial. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Justin D. Wakefield

Case No.: 2015AP1685-CR; 2015AP1686-CR

Officials: Kessler and Brash, JJ., and Daniel L. LaRocque, Reserve Judge.

Focus: Sufficiency of Evidence

Justin D. Wakefield appeals judgments convicting him of substantial battery, battery to a domestic abuse injunction petitioner, intimidation of a victim, violation of a domestic abuse injunction, and misdemeanor bail jumping, all as acts of domestic abuse and all as a repeater. He also appeals the circuit court’s order denying his postconviction motion. He argues: (1) there was insufficient evidence to support the jury’s verdict on the battery charges; (2) the circuit court erred in refusing to play a jail recording of a phone call he made to I.J., the victim, in its entirety; and (3) he is entitled to a new trial in the interest of justice. We affirm

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