City of Wisconsin Dells v. Dells Fireworks, Inc., s. 94-1999

CourtCourt of Appeals of Wisconsin
Citation197 Wis.2d 1,539 N.W.2d 916
Docket Number94-3295,Nos. 94-1999,s. 94-1999
PartiesCITY OF WISCONSIN DELLS, Plaintiff-Respondent, v. DELLS FIREWORKS, INC., a Wisconsin corporation, Diane M. Cornellier, and Anthony Cornellier, Defendants-Appellants. d
Decision Date21 September 1995

For the defendants-appellants the cause was submitted on the briefs of Douglas W. Kammer of Kammer Law Office, Chartered of Portage.

For the plaintiff-respondent the cause was submitted on the brief of Harry Sauthoff, Jr. of LaRowe, Gerlach & Roy, S.C. of Madison.

Before EICH, C.J., and SUNDBY and VERGERONT, JJ.

VERGERONT, Judge.

Dells Fireworks, Inc., Anthony Cornellier and Diane M. Cornellier appeal from a summary judgment permanently enjoining them from selling or delivering fireworks except under certain conditions. They also appeal from an order finding them in contempt of that injunction. 1 The trial court concluded that Dells Fireworks, Inc. and the Cornelliers (collectively, "Dells Fireworks") had violated § 167.10(2) and (3), STATS., which regulates the sale and use of fireworks, and the City of Wisconsin Dells ordinance which mirrors the statute. Section 167.10(2) and (3) limits and defines the situations in which fireworks may be sold, used or possessed. With certain exceptions, sales are prohibited except to persons holding permits under the statute. 2

Dells Fireworks contends that: (1) the trial court erred in concluding that the devices it sold were fireworks within the meaning of § 167.10(1), STATS.; (2) because of its federal license under 18 U.S.C. § 843, 3 Dells Fireworks is incapable of violating § 167.10(2); (3) the persons to whom it sold the devices had proper permits under §§ 167.10(2)(a) and 167.10(3)(c)6; and (4) the dismissal of a related action in another branch of the trial court requires the dissolution of the injunction. We reject each of these contentions and we affirm the injunction. We also affirm the order finding Dells Fireworks in contempt and the remedies imposed.

BACKGROUND

Dells Fireworks, Inc. has its place of business in the City of Wisconsin Dells. The City of Wisconsin Dells filed a complaint against Dells Fireworks, Inc. and Diane and Anthony Cornellier (both of whom are officers, directors, shareholders and employees of the corporation) alleging that the Cornelliers sold certain specified types of fireworks to four individuals who did not have user permits issued by the city as required by § 167.10(3)(a), STATS., but instead had "alleged permits" which Dells Fireworks sold them for two dollars at the time of purchase. 4 The complaint alleges that these sales were violations of the statute and the city ordinance and that the defendants have been asked to stop making such sales but have refused and are continuing to make such sales. The complaint seeks a forfeiture for each ordinance violation and an injunction against future violations.

The alleged permits are attached to the complaint. They purport to be applications for membership in the Wisconsin Fireworks Association, which is described as a non-profit corporation whose primary purpose is to educate the public on the proper use of "Class C-D.O.T. Common fireworks." The alleged permits (herein referred to as WFA membership forms) state that as a member of WFA "you have the right to purchase, possess and use fireworks in the State of Wisconsin. You may only use them on the property and the dates shown on the Association's permit." Each of the attached WFA membership forms contains the name of one of the four purchasers named in the complaint; states that "Membership is received and permit authorized on behalf of the Wisconsin Fireworks Association"; and is signed by Dells Fireworks, Inc., as a representative of the Wisconsin Fireworks Association. The forms also state that WFA is not liable for any injury occasioned by transportation, handling, storage, sale or use of fireworks.

The answer admits that "certain fireworks" were sold to the four individuals; denies that fireworks permits were sold to them; and affirmatively alleges that the four individuals are members of the WFA and that, on information and belief, members of the WFA have valid permits issued by the appropriate municipalities to discharge fireworks in eighteen locations in the state. The answer alleges, on information and belief The answer also alleges that the ordinance violations asserted in the complaint were the subject of a forfeiture action pending in another branch of Columbia County Circuit Court. That action was brought by Wisconsin Dells against Diane Cornellier. On the motion of Dells Fireworks, the trial court in this action dismissed the claim for forfeitures under the ordinance because of the other action, but refused to dismiss the claim for injunctive relief.

that the "items recited in the plaintiff's complaint do not constitute 'fireworks' as defined by [§ 167.10(1), STATS.]." 5

Wisconsin Dells moved for summary judgment and each side submitted affidavits and other documents. The trial court determined there were no issues of fact and that Wisconsin Dells was entitled to summary judgment enjoining Dells Fireworks from selling or delivering the fireworks contrary to law as a matter of law. The trial court concluded that although Dells Fireworks had a federal permit, under § 167.10(2)(a), STATS., it could not sell fireworks to the individuals named in the complaint unless they had permits issued by a municipality in which the fireworks were to be used, in conformity with § 167.10(3)(c). The trial court assumed that the WFA held a permit that was valid under the statute, but rejected Dells Fireworks' argument that therefore every WFA member held a valid permit. A written injunction was entered on May 11, 1994.

On June 7, 1994, Wisconsin Dells moved for an order finding Dells Fireworks in contempt for violating the injunction. On June 17, 1994, Dells Fireworks moved for an order setting aside the injunction and dismissing this case on the ground that on June 16, the trial court in the separate forfeiture action against Diane Cornellier had dismissed the charges. The basis for dismissal was that she was exempt from the requirements of § 167.10(2) and (3), STATS., because of a federal license. The trial court in this action denied Dells Fireworks' motion, stating that the decision in the other branch was not binding.

After an evidentiary hearing on the contempt motion, the trial court found that the defendants had violated the injunction by continuing to use WFA memberships so as to circumvent the statutory permit requirements and that this conduct was intentional and not in good faith. The trial court imposed various penalties and remedies. Details of the contempt hearing and order will be discussed later in the opinion. STANDARD OF REVIEW

We review a grant of summary judgment de novo by applying the same standards employed by the trial court. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct.App.1994). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), STATS.

The resolution of this appeal involves an interpretation of § 167.10, STATS., which is a question of law that we review de novo. See Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). The purpose of statutory construction is to give effect to the legislative intent. Zimmerman v. DHSS, 169 Wis.2d 498, 504, 485 N.W.2d 290, 292 (Ct.App.1992). When determining legislative intent, we first examine the language of the statute itself and will resort to extrinsic aids only if the language is ambiguous. Id. at 504-05, 485 N.W.2d at 292.

The trial court's decision to grant an injunction is a discretionary one and the scope of the injunction is also within the trial court's discretion. See State v. Seigel, 163 Wis.2d 871, 889-90, 472 N.W.2d 584, 591-92 (Ct.App.1991). We will sustain a discretionary determination if the trial court considered the relevant facts, applied the proper law and used a rational mental process to reach a reasonable result. Rodak v. Rodak, 150 Wis.2d 624, 631, 442 N.W.2d 489, 492 (Ct.App.1989). INTERPRETATION OF § 167.10(2) AND (3), STATS.

Definition of Fireworks

We first address Dells Fireworks' contention that the trial court should have held an evidentiary hearing to determine whether the fireworks described in the complaint--which include firecrackers, bottle rockets, Artillery Shells and Saturn Missiles--are "fireworks" as defined in § 167.10(1), STATS.

Section 167.10(1), STATS., defines fireworks as anything "manufactured, processed or packaged for exploding, emitting sparks or combustion which does not have another common use," and then lists certain exclusions from this definition. 6 The trial court decided that Dells Fireworks had conceded this in its answer because it admitted it sold "certain fireworks" to the four individuals. We agree with Dells Fireworks that because of the specific allegation in the answer--that "the items recited in the plaintiff's complaint do not constitute 'fireworks' as defined by [§ 167.10(1) ]"--the answer cannot be considered a concession on this issue. However, we do not reverse the grant of summary judgment on this ground because we conclude that Dells Fireworks has made a judicial admission on this issue.

At the evidentiary hearing on the motion for contempt, counsel for Wisconsin Dells called Anthony Cornellier as a witness. Cornellier was asked to review a document entitled "Dells Fireworks, Inc. Order Blank Class C Fireworks" 7 which lists sixty-six items. Firecrackers, bottle rockets, Saturn Missiles and Artillery Shells are all items on the order blank. He was then asked which of the items on the order blank require a permit before they can be purchased. He answered that all...

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