City of New Lisbon v. Michael W. Muller

2023 WI App 65COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2022AP1683
††Petition for Review dismissed
Complete Title of Case:
CITY OF NEW LISBON,
PLAINTIFF-RESPONDENT,
V.
MICHAEL W. MULLER,††
DEFENDANT-APPELLANT.
Opinion Filed: November 2, 2023
Submitted on Briefs: September 14, 2023
JUDGES: Kloppenburg, P.J., Graham, and Taylor
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
brief of Michael W. Muller, pro se.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Nicole Marklein and William A. Brookley of Cross Jenks
Mercer & Maffei LLP, Baraboo.
2023 WI App 65COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 2, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP1683 Cir. Ct. No. 2022CV87
STATE OF WISCONSIN IN COURT OF APPEALS
CITY OF NEW LISBON,
PLAINTIFF-RESPONDENT,
V.
MICHAEL W. MULLER,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Juneau County: STACY A.
SMITH, Judge. Affirmed.
Before Kloppenburg, P.J., Graham, and Taylor, JJ.
¶1 KLOPPENBURG, P.J. The circuit court issued an order (the “circuit court
order”) granting summary judgment in favor of the City of New Lisbon (the “City”),
permitting the City to raze the building on property owned by Michael W. Muller in the
No. 2022AP1683
City (the “property”), and awarding the cost of the razing to the City. See WIS. STAT.
§ 66.0413(1)(a)2. (2021-22) (defining “raze a building” as “to demolish and remove the
building and to restore the site to a dust-free and erosion-free condition”).1 The City
commenced this action seeking the relief granted in the circuit court order after a City
building inspector executing a special inspection warrant found the building on the
property to be dangerously in disrepair and unreasonable to repair, and Muller failed to
comply with an order issued by the City (the “City order”) requiring that Muller raze the
building on the property within thirty days of service of the City order.
¶2 Muller, appearing pro se in this court as he did in the circuit court, appeals
the circuit court order, arguing that: (1) he was deprived of his constitutional right to a jury
trial; (2) the statutory requirements for a special inspection warrant were not satisfied and,
therefore, his Fourth Amendment rights were violated when the City’s building inspector
inspected the property without his permission; and (3) he was denied his statutory “right”
to make repairs in order to correct any alleged violations.
¶3 As a threshold matter, the City asserts that this court “may lack jurisdiction”
over this appeal because the circuit court order, which provides that the City “is awarded
the cost of the razing to be approved by the Court after completion,” is not final and does
not state that it is final for purposes of appeal. We conclude that the circuit court order is
a final order because it disposes of the entire matter in litigation between the parties by
granting the City all of the relief that the City requested. Accordingly, this court has
jurisdiction over Muller’s appeal of the circuit court order.
¶4 As to the merits of Muller’s arguments, we conclude that Muller was not
deprived of his constitutional right to a jury trial because, pursuant to applicable state
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
No. 2022AP1683
statutes, he failed to present evidence showing disputed issues of material fact for a jury to
decide. We further conclude that Muller’s Fourth Amendment rights were not violated
because the statutory requirements for a special inspection warrant to be issued and
executed were satisfied. We also conclude that Muller had no statutory “right” to make
repairs to the building because it is undisputed that the cost to repair the building would
exceed 50% of the building’s value, which, under the statutes he cites, renders the repairs
unreasonable and authorizes an order requiring that the building be razed without providing
the owner an opportunity to make repairs. Accordingly, we affirm the circuit court order
granting the City’s motion for summary judgment and permitting the City to raze the
building on the property at Muller’s expense.
BACKGROUND
¶5 The following facts are taken from the affidavits that were submitted by the
City in support of its motion for summary judgment, and from documents attached to the
complaint that were not disputed by Muller in his answer. As noted in greater detail below,
Muller did not present any evidence to support the arguments in his brief opposing the
City’s motion.
¶6 The property is located at 402 and 404 South Washington Street in the City.
Muller, the owner of the property, lives in California and has not been to the property since
at least the start of the COVID-19 pandemic in 2020.
¶7 Before September 2021, the City received complaints of rats entering and
exiting the property, determined that the property no longer had running water, and
observed dilapidated and hazardous conditions on the property. On September 2 and
September 29, 2021, the City sent Muller letters by certified mail informing him of the
alleged condition of the property and seeking permission to conduct an inspection. Muller
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No. 2022AP1683
did not respond to the City’s letters. The City submitted to the circuit court an affidavit
seeking a special inspection warrant, which the court issued on January 28, 2022.
¶8 Upon executing the special inspection warrant on January 28, 2022, the
building inspector observed and documented numerous dilapidated and hazardous
conditions throughout and around the building on the property, found the building to be in
disrepair, and determined that the cost of repairing the building would greatly exceed 50%
of its value. On March 28, 2022, the City issued Muller an order to raze the building on
the property within thirty days of service of the City order. Muller was personally served
with the City order on April 7, 2022. Muller failed to comply with the City order, and, on
May 19, 2022, the City filed suit alleging that Muller had maintained the property in a
dangerous condition of disrepair in violation of City ordinances, the violations constituted
a public nuisance, Muller had notice of and failed to abate the public nuisance, and the cost
of repairs would be unreasonable. The City sought an order permitting the City to raze the
building on the property.
¶9 In August 2022, the City filed a motion for summary judgment, supported by
affidavits, seeking an order from the circuit court permitting the City to raze the building
on the property. At the time that the City filed the motion, the condition of the property
had “not substantially changed” since the inspection in January 2022. Muller filed a jury
demand and a brief opposing the City’s motion for summary judgment; as stated, Muller
did not file any supporting affidavits or other evidentiary materials.
¶10 The circuit court held a hearing on the City’s motion for summary judgment
and subsequently issued an order that granted the motion for the reasons stated at the
hearing. The circuit court order also prohibited Muller from making additional repairs on
the property, permitted the City to raze the building on the property and to restore the real
4
No. 2022AP1683
estate, and awarded the City the cost of the razing, as approved by the court after
completion.
¶11 This appeal follows.
DISCUSSION2
¶12 To provide context for the analysis that follows, we briefly summarize the
statutory scheme regarding raze orders. The legislature has provided at least two
complementary paths to the issuance of a raze order. As summarized above, the City
followed the first path to issue the City order and the second path to obtain the circuit court
order.
¶13 Under WIS. STAT. § 66.0413(1)(b)1., a municipality may order the owner of
a building to raze the building if the building “is old, dilapidated, or out of repair and
consequently dangerous, unsafe, unsanitary, or otherwise unfit for human habitation and
unreasonable to repair.” A building described in § 66.0413(1)(b)1. is presumed to be
unreasonable to repair if the municipal building inspector “determines that the cost of
repairs … would exceed 50 percent of the” building’s value. Sec. 66.0413(1)(c). If the
owner fails to comply with a raze order within the time specified in the order, the
municipality may file an action to enforce the order in circuit court. Sec. 66.0413(1)(f) and
(g).
2
We note that the City includes in its Table of Authorities only some of the legal authority that it
cites in its brief. Specifically, it includes only case law and not statutes. WISCONSIN STAT. RULE
809.19(1)(a) requires that a brief include “a table of cases arranged alphabetically, statutes and other
authorities cited with reference to the pages of the brief on which they are cited.” We remind counsel that
this is a high-volume court. State v. Bons, 2007 WI App 124, ¶21, 301 Wis. 2d 227, 731 N.W.2d 367.
Compliance with the Rules of Appellate Procedure is not optional and is essential to the timely performance
of our duties. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964).
5
No. 2022AP1683
¶14 Under WIS. STAT. § 823.21, a building that is “so old, dilapidated or out of
repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or has
been determined to be unreasonable to repair under [WIS. STAT. §] 66.0413(1)(b)1.” is a
public nuisance that “may be proceeded against under [WIS. STAT. ch. 823].” Under WIS.
STAT. § 823.01, a city may “maintain an action to recover damages or to abate a public
nuisance … and to obtain an injunction to prevent the same.” Under WIS. STAT. § 823.03-
04, the circuit court may order relief including, but not limited to, abatement and removal
of the nuisance at the owner’s expense.3
¶15 As stated, here it is undisputed for purposes of summary judgment that
Muller maintained the property, including the building on the property, in a dangerous
condition of disrepair so as to constitute a public nuisance, that Muller had notice of and
failed to abate the public nuisance, and that the cost to repair the building would be
unreasonable. Accordingly, the circuit order issued an order permitting the City to raze the
building on the property at Muller’s expense.
I. Appellate Jurisdiction
¶16 After Muller filed his appellant’s brief in this appeal, the City filed a motion
for summary disposition “due to lack of jurisdiction,” asserting that the circuit court order
appealed by Muller is not final. This court issued an order denying the motion and directing
the parties to address this court’s jurisdiction as the first issue in their response and reply
briefs. In its response brief, the City asserts that this court “may not have jurisdiction”
because the circuit court did not enter a final order or judgment disposing of the entire
matter in litigation as to one or more of the parties. Muller did not file a reply brief or
3
The City in its complaint cited WIS. STAT. § 823.114(1) in support of its request for an order
permitting it to raze the building on the property. We observe that that section addresses the abatement of
a public nuisance created by a “drug or criminal gang house” as described in WIS. STAT. § 823.113 and,
therefore, does not appear to apply here.
6
No. 2022AP1683
otherwise respond to this court’s order. We decline to deem Muller to have conceded the
issue of jurisdiction, see United Cooperative v. Frontier FS Cooperative, 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief
to an argument made in response brief may be taken as a concession), particularly in light
of the ambivalent nature of the City’s assertion in its response brief that this court “may
not have jurisdiction” over this appeal and its conclusory analysis of the issue. We now
proceed to explain our conclusion that we have jurisdiction because the circuit court order,
which grants the City all of the relief that it requested, is a final order.
A. Applicable Legal Principles and Standard of Review
¶17 “[T]his court lacks jurisdiction over an appeal brought from a nonfinal
judgment or order.” Leske v. Leske, 185 Wis. 2d 628, 630, 517 N.W.2d 538 (Ct. App.
1994); see also WIS. STAT. § 808.03(1) (“A final judgment or a final order of a circuit court
may be appealed as a matter of right to the court of appeals ….”).4
¶18 “A final judgment or final order is a judgment, order or disposition that
disposes of the entire matter in litigation as to one or more of the parties, whether rendered
in an action or special proceeding.” WIS. STAT. § 808.03(1). Our supreme court has
explained that a final order or judgment as defined in § 808.03(1) is an order or judgment
that “terminates the litigation on the merits and leaves nothing to be done but to enforce by
execution what has been determined.” Shuput v. Lauer, 109 Wis. 2d 164, 169, 325
N.W.2d 321 (1982) (quoted source omitted). The court has more recently restated the
4
As stated, under WIS. STAT. § 808.03(1), a final order or judgment may be appealed as a matter
of right within the statutory time period specified. Shuput v. Lauer, 109 Wis. 2d 164, 169, 325 N.W.2d
321 (1982). Nonfinal orders or judgments, also referred to as intermediate or interlocutory orders or
judgments, “are not final judgments or orders appealable as a matter of right” under § 808.03(1). Id.
Rather, nonfinal orders or judgments may be appealed prior to a final judgment only “upon leave granted
by the court.” Sec. 808.03(2); Shuput, 109 Wis. 2d at 169. Muller did not petition for leave to appeal the
circuit court order here under § 808.03(2).
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No. 2022AP1683
requirement that a final order or judgment terminate the litigation on the merits as a
requirement that the order or judgment “explicitly dispose of the entire matter in litigation”
by dismissing or adjudging all “substantive issues,” meaning all legal issues, between the
parties. Admiral Ins. Co. v. Paper Converting Mach. Co., 2012 WI 30, ¶¶27, 31, 34-36,
339 Wis. 2d 291, 811 N.W.2d 351; see also Wambolt v. West Bend Mut. Ins. Co., 2007
WI 35, ¶39, 299 Wis. 2d 723, 728 N.W.2d 670 (stating that, “in order to ‘dispose’ of [a]
matter under § 808.03(1),” an order or judgment “must contain an explicit statement either
dismissing the entire matter in litigation or adjudging the entire matter in litigation as to
one or more parties”).
¶19 A final order or judgment does more than merely decide the issues in a
matter; it declares or pronounces the consequences of its decision so as to terminate, or in
other words dispose of, the matter as to one or more parties. See Adjudge, Dictionary.com,
https://www.dictionary.com/browse/adjudge (last visited Oct. 27, 2023) (defining
“adjudge” as “to declare or pronounce formally”); see also Wambolt, 299 Wis. 2d 723, ¶36
(“We have consistently articulated the test for a document’s finality in terms of ‘dispose’
rather than ‘decide.’”).
¶20 Additionally, for the sake of clarity, our supreme court has required that
“final orders and final judgments state that they are final for purposes of appeal.” Admiral,
339 Wis. 2d 291, ¶28; Wambolt, 299 Wis. 2d 723, ¶44.
¶21 However, the court has also qualified that “neither the label of a document
nor the subsequent actions taken by the circuit court is dispositive of that document’s
finality under [WIS. STAT. §] 808.03(1).” Wambolt, 299 Wis. 2d 723, ¶30 (addressing the
requirement that the document contain explicit language that disposes of the entire matter
in litigation); see also Admiral, 339 Wis. 2d 291, ¶29 (the absence of a finality statement
is not dispositive when the order or judgment unambiguously disposes of the entire matter
8
No. 2022AP1683
in litigation between the parties). Rather, because “there may be final orders and judgments
that arguably dispose of the entire matter in litigation as to one or more of the parties, but
which do not contain a clear statement that they are the documents from which appeal of
right may follow … the appropriate course is to liberally construe documents in favor of
timely appeals.” Wambolt, 299 Wis. 2d 723, ¶46.
¶22 Whether the circuit court order is a final order or judgment for the purposes
of appeal is a question of law subject to our independent review. Id., ¶14.
B. The Circuit Court Order
¶23 The circuit court order begins by reciting the appearances at the hearing on
the summary judgment motion and then continues as follows:
The Court having read the briefs and submissions of the parties and
having heard the oral arguments of the parties and having made its
ruling on the record, which ruling is incorporated herein;
IT IS HEREBY ORDERED that:
1. For the reasons stated on the record, the Plaintiff’s motion
for summary judgment is GRANTED;
2. Defendant is prohibited [from] performing additional
repairs on the Property identified in the Complaint located at 402
and 404 South Washington Street in New Lisbon, Wisconsin
(“Property”);
3. Plaintiff is permitted to enter the real estate containing the
Property [at] a date and time convenient for it to raze the Property
and restore the real estate;
4. Plaintiff is awarded the cost of the razing to be approved
by the Court after completion.
¶24 In the “ruling” referenced in the circuit court order, the court determined that
Muller failed to dispute the facts set forth in the City’s affidavits supporting its motion
because Muller did not submit any affidavits showing that he or anyone else worked on the
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No. 2022AP1683
property or that any of the conditions described in the inspection report were repaired since
the City sent the request for consent letters. The court referenced the following undisputed
facts based on the City’s affidavits. The City’s letters—seeking Muller’s consent to
inspection of the property and informing him that, if consent was not granted, the City
would obtain an inspection warrant—were sent by certified mail to Muller. The court
issued the inspection warrant based on a City officer’s affidavit detailing the citizen
complaints of rats on the property, the City’s records showing that the property did not
have running water, the City’s observations of dilapidated and hazardous conditions on the
property, and Muller’s failure to respond to the City’s efforts to contact him about the
property. The inspection report described and attached pictures of numerous conditions
that rendered the building on the property dangerous and uninhabitable and which required
major repairs, the cost of which would greatly exceed 50% of the building’s value. Muller
had almost a year to try to make repairs from when the September 2021 request for consent
letters were sent to when the City filed its complaint attaching the inspection report in
August 2022. The time for making any repairs had passed. After stating these undisputed
facts, the court said that it was granting the City’s motion for summary judgment and that
it “will enter a raze order,” Muller “cannot … fix up the property,” and Muller “will be
responsible for the costs.”
C. Analysis
¶25 By its terms, the written circuit court order explicitly disposes of the entire
matter in litigation between the parties. The circuit court order explicitly authorizes the
City to “enter the real estate containing the Property,” “to raze the Property,” and to “restore
the real estate” at Muller’s expense, as the City requested in its complaint. Thus, the circuit
court order grants the City all of the relief that it requested, and leaves only the execution
of its order authorizing the City to raze the building on the property at Muller’s expense to
be enforced. See Shuput, 109 Wis. 2d at 169.
10
No. 2022AP1683
¶26 Moreover, this is not a case in which a written order purports to dispose of
the entire matter in litigation, but does not actually do so because substantive issues remain
for the court’s determination. See Admiral, 339 Wis. 2d 291, ¶31. In the course of its oral
ruling, the court addressed and rejected Muller’s arguments in opposition to the City’s
request for relief, specifically, his challenge to the execution of the inspection warrant
without his consent, and his implicit argument that he should be given the opportunity to
repair the property.
¶27 A closer review of the opinion in Admiral, 339 Wis. 2d 291, is instructive
here. In that case, Admiral timely appealed the circuit court’s judgment providing that it
was a final judgment for purposes of appeal. Id., ¶18. However, the circuit court had
issued an earlier decision and order granting the defendant’s motion for summary judgment
and dismissing the case, and Admiral’s appeal was not timely as to that decision and order.
Id., ¶¶16, 20. Thus, the question before the supreme court was whether the circuit court’s
earlier decision and order was a final order for purposes of appeal. Id., ¶22.
¶28 The supreme court noted that the earlier decision and order stated, “The court
hereby orders this case dismissed.” Id., ¶30. The court continued, “On its face, that
language explicitly disposes of the entire matter in litigation between the parties.” Id.
However, neither the summary judgment motion nor the decision and order addressed the
defendant’s counterclaim for attorney fees. Id., ¶32. The supreme court noted that,
generally, the pendency of a claim for attorney fees does not affect the finality of a
judgment that disposes of the matter in litigation. Id., ¶33 & n.13, n.14. In each of the
cases cited by the court, the claim was made under a specific fee-shifting statute. Id.
However, in the case before it, the defendant’s claim was not based on a fee-shifting statute
or on another clearly stated legal theory. Id., ¶35. Under the circumstances, the court could
not rule out the possibility that the counterclaim presented a substantive legal issue that
remained unresolved. Id. The court concluded that the pendency of that legal issue
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No. 2022AP1683
rendered the decision and order, which “arguably disposed of the entire matter in litigation
between the parties,” ambiguous. Id. Accordingly, the court “construe[d] it as nonfinal,
pursuant to our policy of construing any ambiguity to preserve the right of appeal.” Id.,
¶36.
¶29 Here, as stated, the only issue pending is the calculation of the cost of razing.
All legal issues regarding whether the City is entitled to raze the building on the property
at Muller’s expense, as it requested, are resolved, and the parties’ rights “adjudge[d],” see
id., ¶27, in the circuit court order. By granting all of the relief that the City requested, the
circuit order unambiguously disposes of the entire matter in litigation between the City and
Muller and, therefore, is final under WIS. STAT. § 808.03(1).
¶30 The City asserts, without elaboration, that the circuit court order is not final
in two respects: it does not state that it is final for purposes of appeal; and it provides that
there will be further proceedings pertaining to the court’s approval of the City’s razing cost
at which time the court will enter a “final monetary judgment.” However, neither alters
our application of WIS. STAT. § 808.03(1).
¶31 As stated above, that the circuit court order does not state that it is final for
purposes of appeal is not dispositive of whether it is final for those purposes. See Orlando
Residence, Ltd. v. Nelson, 2013 WI App 81, ¶9, 348 Wis. 2d 565, 834 N.W.2d 416 (“[T]he
absence of a statement should not create nonfinality in an otherwise appealable order.”)
(citing Admiral Ins. Co., 339 Wis. 2d 291, ¶29).
¶32 Similarly, that the circuit court order qualifies that the award of the cost of
razing is to be approved after the razing is completed is not dispositive of whether it is a
final order. As we have explained, the circuit order explicitly grants the City all of the
relief it requested. All that remains is the execution of the circuit court order, namely the
razing at Muller’s expense and the calculation of the cost of the razing. Under the law
12
No. 2022AP1683
cited above, that both of these acts are to take place after the circuit court order does not
affect its finality.
¶33 Our conclusion is supported by case law ruling that the pendency of a claim
for attorney fees under a specific legal provision does not affect the finality of a judgment
that disposes of the matter in litigation. See Admiral, 339 Wis. 2d 291, ¶33. For example,
in McConley v. T.C. Visions, 2016 WI App 74, ¶1, 371 Wis. 2d 658, 885 N.W.2d 816, the
plaintiff appealed an order granting summary judgment and dismissing his complaint
against the defendant. After entry of the dismissal order, the defendant moved for an
assessment of attorney fees based on the contracts between the parties that allowed the
prevailing party in any litigation relating to the contracts to recover reasonable attorney
fees. Id. This court considered whether the appeal of the dismissal order was taken from
a final order appealable under WIS. STAT. § 808.03(1) notwithstanding the pending claim
for attorney fees. Id. Concluding that “the pending claim for attorney fees [did] not
preclude the dismissal order from being a final order appealable as of right,” this court
explained that “[i]t remains a ‘longstanding holding that the pendency of a claim for costs
and fees does not affect the appealability of a judgment that otherwise disposes of the
matters in litigation.’” Id., ¶¶1, 9 (quoting Admiral, 339 Wis. 2d 291 ¶33 n.14).
¶34 Wisconsin courts have reached a similar conclusion in foreclosure
proceedings, ruling that a foreclosure judgment is final even though a confirmation of the
sale resulting from the judgment has yet to occur. See Anchor Sav. & Loan Ass’n v. Coyle,
148 Wis. 2d 94, 101, 435 N.W.2d 727 (1989) (holding that a foreclosure judgment is final
and appealable because “[t]he proceedings after the judgment of foreclosure … ‘are
analogous to the execution of a judgment and simply enforce the parties’ rights which have
been adjudicated” (quoting Shuput, 109 Wis. 2d at 173)).
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No. 2022AP1683
¶35 We do not discern a meaningful distinction between the pendency of the
calculation of the cost of razing from the pendency of the calculation of attorney fees or
the confirmation of a foreclosure sale, in terms of the effect on the finality of the circuit
court order. In sum, we conclude that the circuit court order here is final and, therefore,
that we have jurisdiction over this appeal.5
II. Muller’s Arguments Against Summary Judgment
¶36 We now address Muller’s challenges to the circuit court order granting the
City’s motion for summary judgment. To repeat, he makes three challenges, concerning
his right to a jury trial, the special inspection warrant, and his right to make repairs.6
¶37 Summary judgment shall be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2). “When a motion for summary
judgment is made and supported … an adverse party may not rest upon the mere allegations
or denials of the pleadings but the adverse party’s response, by affidavits … must set forth
specific facts showing that there is a genuine issue for trial.” Sec. 802.08(3). Affidavits in
support of a motion for summary judgment “shall be made on personal knowledge and
shall set forth such evidentiary facts as would be admissible in evidence.” Sec. 802.08(3).
5
In light of our conclusion, we reiterate the directive in Wambolt v. West Bend Mutual Insurance
Co., 2007 WI 35, ¶4, 299 Wis. 2d 723, 728 N.W.2d 670, that a raze order such as that issued here contain
a statement on the face of the document that it is final for purposes of appeal.
6
The City argues that Muller’s second challenge concerning the inspection warrant may be barred
as untimely, and that Muller’s third challenge concerning his right to make repairs is barred as untimely,
because Muller did not timely challenge the City order to raze the building on his property under WIS.
STAT. § 66.0413(1)(h). Section 66.0413(1)(h) provides that a person affected by a raze order may, within
30 days of service of the raze order, “apply to the circuit court for an order restraining the building inspector
… from razing the building or forever be barred.” We do not address this argument because we affirm the
circuit court order on other grounds.
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No. 2022AP1683
¶38 We review a grant of summary judgment independently, using the same
methodology as the circuit court. Pertzsch v. Upper Oconomowoc Lake Ass’n, 2001 WI
App 232, ¶7, 248 Wis. 2d 219, 635 N.W.2d 829. In determining whether there are any
genuine issues of material fact—meaning “a reasonable jury could return a verdict for the
nonmoving party”—“we construe all facts and reasonable inferences in the light most
favorable to the nonmoving party.” Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d
648 (Ct. App. 1991); Thomas ex rel. Gramling v. Mallett, 2005 WI 129, ¶4, 285 Wis. 2d
236, 701 N.W.2d 523. However, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Baxter, 165
Wis. 2d at 312 (emphasis and quoted source omitted).
A. Right to Jury Trial
¶39 Muller argues the circuit court deprived him of his constitutional and
statutory right to a trial by jury. He specifically asserts that he is entitled to a jury trial on
the issue of whether he was served with the City order to raze the building on the property.
¶40 Muller’s claim fails because he did not file any affidavits or other evidentiary
material either to support the arguments and factual assertions he made in his circuit court
brief and at the hearing in opposing the City’s summary judgment motion, or otherwise to
dispute the facts presented in the City’s affidavits supporting the City’s motion and request
for relief. Regarding his specific identification of a jury issue, whether he was served with
the City order, the City presented sworn documents certifying that Muller was personally
served with the City order, and Muller did not present any evidence to the contrary. Thus,
there was no triable issue of material fact on any issue to present to a jury. See Maynard
v. Port Publ’ns, Inc., 98 Wis. 2d 555, 562-63, 297 N.W.2d 500 (1980) (“The moving party
must ‘establish a record sufficient to demonstrate to the satisfaction of the court that there
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No. 2022AP1683
is no triable issue of material fact on any issue presented.’” (quoting Heck & Paetow Claim
Serv., Inc. v. Heck, 93 Wis. 2d 349, 356, 286 N.W.2d 831 (1980))).
¶41 While Muller is a pro se litigant for whom “some leniency may be allowed,”
Waushara County v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992), “neither a
[circuit] court nor a reviewing court has a duty to walk pro se litigants through the
procedural requirements or to point them to the proper substantive law.” Id.¶42 The summary judgment statutes cited above explicitly allow controversies to
be resolved without a jury trial when there are no disputed material facts, because there is
nothing to try. See Lasky v. City of Stevens Point, 220 Wis. 2d 1, 5, 582 N.W.2d 64 (Ct.
App. 1998); Rollins Burdick Hunter, Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d
752 (1981) (“The purpose of the summary judgment procedure is not to try issues of fact
but to avoid trials where there is nothing to try.”). Here, because Muller did not submit
any affidavits placing material facts in dispute, he fails to show that he was deprived of his
right to a jury trial.
B. Special Inspection Warrant
¶43 Muller argues that the statutory requirements for a special inspection warrant
to be issued pursuant to WIS. STAT. § 66.0119(2) were not satisfied and, therefore, his
rights under the Fourth Amendment of the United States Constitution were violated when
the building inspector inspected the property without Muller’s permission. Assuming
without deciding that the validity of the special inspection warrant is a defense to the entry
of a circuit court order in a case like this, we explain why we reject Muller’s argument that
the special inspection warrant here was invalid.
¶44 The Wisconsin legislature has authorized the issuance of a special inspection
warrant for such purposes as “health” and “safety,” with the qualification that, “for
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inspection of personal or real properties which are not public,” an inspection warrant may
be issued “only upon showing that consent to entry for inspection purposes has been
refused.” WIS. STAT. § 66.0119(1)(a), (2). Muller argues that he “never refused an
inspection.”
¶45 It is undisputed that, on September 2 and September 29, 2021, the City sent
by certified mail letters to Muller seeking Muller’s consent to inspect the property. Each
letter asked Muller to sign and return an attached “Letter of Consent” in the enclosed self-
addressed stamped envelope, provided the names and phone numbers of two persons
Muller could contact with questions, and informed Muller that, “If consent is not granted,
the City of New Lisbon shall have the right to pursue actions to obtain an Inspection
Warrant.” The City received no response from Muller. About four months after the City
sent Muller the second letter seeking his consent, the City sought the special inspection
warrant on January 19, 2022, obtained the warrant on January 28, 2022, and conducted the
inspection pursuant to the warrant that same day.
¶46 We understand Muller to be arguing that his failure to respond to the letters
does not establish his refusal to consent. To address Muller’s argument, we must discern
the meaning of the word “refused” as used in WIS. STAT. § 66.0119(2). “‘The
interpretation and application of statutes present questions of law that we review
independently.’” Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶9, 400 Wis. 2d
417, 970 N.W.2d 1 (quoted source omitted). Statutory interpretation “‘begins with the
language of the statute.’ If the meaning of the language is plain, our inquiry ordinarily
ends.” Id., ¶11 (quoted source omitted). We give statutory language its common, ordinary
and accepted meaning. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110.
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¶47 Here, the legislature does not define the word “refuse” in the statute. See
WIS. STAT. § 66.0119. However, the word is generic and capable of a common
understanding. See Kalal, 271 Wis. 2d 633, ¶45. As guidance, we consult case law that
“may illumine how we have previously interpreted or applied the statutory language” at
issue. Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373.
Analyzing a separate statute, our supreme court defined the word “refuse” as an
“unwillingness to do, accept, give, or allow.” Kalal, 271 Wis. 2d 633, ¶54 (citing The
American Heritage Dictionary of the English Language 1519 (3d ed.1992)). The court
further explained that a refusal “may be proven directly or circumstantially by inferences
reasonably drawn from words and conduct” and “can be open and explicit, as in a statement
to that effect, or it can be indirect and inferred, as in a long silence or period of inaction.”
Id., ¶55.
¶48 Applying this common definition to the undisputed facts here, we conclude
that, although Muller did not expressly refuse entry for inspection, his four-month-long
silence and period of inaction gave rise to the only reasonable inference that Muller refused
to consent to entry for inspection. Muller does not explain how his failure to respond to
the letters supports a reasonable inference to the contrary. Accordingly, he fails to show
that the statutory requirements under WIS. STAT. § 66.0119(2) for the City to obtain and
execute a special inspection warrant were not satisfied, such that the City conducted the
inspection in violation of his constitutional rights.
C. Right to Make Repairs
¶49 Muller argues that he was denied his right to make repairs and otherwise
correct any alleged violations pursuant to WIS. STAT. § 66.0413(1)(b)1.
¶50 Pursuant to WIS. STAT. § 66.0413(1)(b)1., “if a building is old, dilapidated,
or out of repair and consequently dangerous, unsafe, unsanitary, or otherwise unfit for
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human habitation and unreasonable to repair,” the municipality may “order the owner of
the building to raze the building or, if the building can be made safe by reasonable repairs,
order the owner to either make the building safe and sanitary or to raze the building, at the
owner’s option.” Under § 66.0413(1)(c), “if a [municipality] determines that the cost of
repairs of a building … would exceed 50 percent of the [building’s value], the repairs are
presumed unreasonable….” In other words, “[t]here is a general presumption that repairs
are unreasonable when the municipality or its designee determines that the cost to repair a
building would exceed fifty percent of the [building]’s value.” Auto-Owners Ins. Co. v.
City of Appleton, 2017 WI App 62, ¶12, 378 Wis. 2d 155, 902 N.W.2d 532. Thus, an
owner has a statutory right to elect to repair a building rather than raze it only if the cost of
the repairs is less than 50% of the building’s value.
¶51 In this case, the City’s determinations that the building on the property was
“out of repair” and that repairs could not be reasonably made are undisputed. The City
filed affidavits establishing that the building was in a dangerous state of disrepair and that
the cost of repair exceeded 50% of its value. Muller did not file any affidavits contradicting
the City’s determinations. Accordingly, Muller had no right to make repairs under WIS.
STAT. § 66.0413(1)(b)1.
CONCLUSION
¶52 For the reasons stated above, we conclude that the circuit court order granting
the City’s motion for summary judgment and permitting the City to raze the building on
Muller’s property at Muller’s expense is a final order, and we affirm the order.
By the Court.—Order affirmed.
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