City of New Lisbon v. Muller

• Docket Number: 2022AP1683
• Decision Date: 02 November 2023
• Parties: City of New Lisbon, Plaintiff-Respondent, v. Michael W. Muller, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

1

City of New Lisbon, Plaintiff-Respondent, v. Michael W. Muller, Defendant-Appellant.

No. 2022AP1683

Court of Appeals of Wisconsin, District IV

November 2, 2023

APPEAL from an order of the circuit court for Juneau County: No 2022CV87, STACY A. SMITH, Judge.

Before Kloppenburg, P.J., Graham, and Taylor, JJ.

KLOPPENBURG, P.J.

¶1 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 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 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 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. The City personally served Muller 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 estate, and awarded the City the cost of the razing, as approved by the court after completion.

¶11 This appeal follows.

DISCUSSION^[2]

¶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).

¶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 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...