Capitol Indem. Corp. v. Reasbeck

Decision Date27 December 1991
Docket NumberNo. 91-1259,91-1259
Citation166 Wis.2d 332,479 N.W.2d 247
CourtWisconsin Court of Appeals
PartiesCAPITOL INDEMNITY CORPORATION, Plaintiff, v. Joseph V. REASBECK III, and Carol J. Reasbeck, Defendants-Appellants, City of Superior, Wisconsin, Defendant-Respondent, Community Bank & Trust Co., a Wisconsin banking corporation, Douglas County, Wisconsin, Upper Lakes Foods, Inc., a Minnesota corporation, Internal Revenue Service, State of Wisconsin, Wisconsin Department of Revenue, Como Food Products, Inc., a Minnesota corporation, M. Van Vynckt, Inc., a Wisconsin corporation, Timothy J. Schultz, d/b/a Schultz's Bar, M & I First National Bank of Superior, a Wisconsin banking corporation, and G. Donald Gamst, d/b/a G. Donald Gamst & Associates, Defendants.

Paul M. Moldenhauer, Peterson, Cirilli, Gondik & Moldenhauer, and Ralph E. Binger, co-counsel, Superior, for defendants-appellants.

Scott W. Clark, Clark & Clark, Ashland, for defendant-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Joseph and Carol Reasbeck appeal those parts of a summary judgment holding them personally liable to the city of Superior for all future expenses to remove a nuisance and creating a constructive trust in their fire insurance proceeds. The Reasbecks do not contest the portions of the judgment declaring their property a nuisance and ordering the abatement of the nuisance by issuing a warrant to have it abated at their expense.

We conclude that the judgment for personal liability against the Reasbecks and in favor of the city was premature because the city had not incurred damages. We also conclude that the constructive trust was improper because the city failed to prove the elements necessary for imposing a constructive trust. The judgment is affirmed in part and reversed in part.

Joseph and Carol Reasbeck owned a building in the city of Superior. A fire destroyed their building, and the Reasbecks sustained a total loss. Capitol Indemnity Corporation issued the Reasbecks' fire insurance policy, containing total loss coverage of $205,000, including $10,000 for demolition and cleanup costs. Because Capitol received notices from claimed lienholders and creditors of the Reasbecks, Capitol filed an interpleader action naming the Reasbecks and their alleged creditors as defendants. Pursuant to court order, Capitol paid the insurance proceeds to the clerk of courts and was relieved of liability under its policy.

The city of Superior, a named defendant in the interpleader action, moved the trial court for summary judgment (1) declaring the remains of the building a public nuisance; (2) ordering the abatement of this nuisance by issuing a warrant to raze and remove the remains at the Reasbecks' expense; and (3) creating a constructive trust in the insurance proceeds presently held by the court in order to pay the costs of razing and removing the nuisance. The Reasbecks filed a counter motion for summary judgment dismissing the city's claims and releasing the insurance proceeds to them.

Concluding that the city could proceed under ch. 823, Stats., to hold the Reasbecks personally liable and that releasing the insurance proceeds to the Reasbecks would constitute unjust enrichment, the trial court granted the city's motion. The trial court also granted judgment to the city to recover the costs to abate the nuisance, plus 12% interest, from the Reasbecks.

PERSONAL LIABILITY

We first address the Reasbecks' argument that the trial court erred by entering summary judgment entitling the city to recover all expenses of abating the nuisance, plus 12% interest, from the Reasbecks, personally. We review a summary judgment de novo. Grosskopf Oil v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct.App.1990). This court has set forth the methodology for reviewing a summary judgment many times, and it need not be repeated here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).

The summary judgment declared the Reasbecks' building to be a public nuisance, and the Reasbecks do not contest that portion of the judgment. Under sec. 823.01, Stats., the city was authorized to bring an action to abate this public nuisance. See sec. 823.01, Stats. Upon the city's motion, the trial court entered judgment ordering the abatement of the nuisance and issued a warrant to the city building inspector to abate and remove the nuisance at the Reasbecks' expense, pursuant to sec. 823.04. The Reasbecks also do not contest this portion of the judgment. Portions of a judgment not appealed are final. See Reddington v. Beefeaters Tables, Inc., 72 Wis.2d 119, 125b, 243 N.W.2d 401, 403 (1976).

Section 823.04, Stats., states that where there is a judgment for abatement and removal of a nuisance, a warrant shall be issued requiring the proper officer "to abate and remove the nuisance at the expense of the defendant." The language "at the expense of the defendant" authorized the trial court to order the abatement of the nuisance at the Reasbecks' expense. Thus, the Reasbecks' personal liability to the city for abatement costs is authorized under sec. 823.04. However, sec. 823.04 does not authorize a judgment for damages.

Section 823.06, Stats., sets forth how the city is to collect the expenses for abatement. It provides in part:

The expense of abating such nuisance pursuant to such warrant shall be collected by the officer in the same manner as damages and costs are collected upon execution or may be collected by finding the defendant personally liable for these expenses, as provided in s. 74.53.

The city and the Reasbecks concede that the city, because it is not authorized to act under sec. 74.87, Stats., cannot collect abatement costs by finding the Reasbecks personally liable as provided in sec. 74.53, Stats. Thus, the city is required to collect such costs "in the same manner as damages and costs are collected upon execution." Section 823.06, Stats.

The manner by which damages and costs are collected upon execution requires a judgment for those damages and costs. See sec. 815.02, Stats. The trial court entered judgment in favor of the city and against the Reasbecks for the costs of abating the nuisance, plus 12% interest. However, this judgment was premature because the city had not yet incurred costs for abating the nuisance. The city must first incur the costs of abating the nuisance, and then it may seek a...

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  • Foley v. Wis. Mut. Ins. Co.
    • United States
    • Wisconsin Court of Appeals
    • March 1, 2018
    ...Mutual. Whether summary judgment should be granted is a question of law that is reviewed de novo. Capitol Indem. Corp. v. Reasbeck, 166 Wis. 2d 332, 336, 479 N.W.2d 247 (Ct. App. 1991). ¶42 Summary judgment methodology is well established in Wisconsin. See Envirologix Corp. v. City of Wauke......
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    ...621 N.W.2d 669, 676 (citing Wilharms v. Wilharms, 93 Wis. 2d 671, 678-79, 287 N.W.2d 779 (1980)); Capitol Indem. Corp. v. Reasbeck, 166 Wis. 2d 332, 339, 479 N.W.2d 247, 250 (Ct. App. 1991). The amended complaint does not allege that it was through unconscionable conduct that Barbara or her......
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    • February 22, 1994
    ...by the trial court. See Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625, 629 (1991); Capitol Indem. Corp. v. Reasbeck, 166 Wis.2d 332, 336, 479 N.W.2d 247, 249 (Ct.App.1991). The court must first examine the pleadings to determine whether the plaintiff has stated a claim for ......
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    • Wisconsin Court of Appeals
    • February 1, 1994
    ...motion for specific performance. III. STANDARD OF REVIEW We review a summary judgment de novo. Capitol Indem. Corp. v. Reasbeck, 166 Wis.2d 332, 336, 479 N.W.2d 247, 249 (Ct.App.1991). This review entails the same methodology applied by the circuit court. Voss v. City of Middleton, 162 Wis.......
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