State v. Harris, 98-2350
| Decision Date | 29 June 1999 |
| Docket Number | 98-2350 |
| Court | Wisconsin Court of Appeals |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. State of Wisconsin, Plaintiff-Respondent, v. Robert Harris, Defendant-Appellant |
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III
APPEAL from a judgment of the circuit court for Buffalo County: DANE F. MOREY, Judge. Affirmed.
Before Cane, C.J., Myse, P.J., and Hoover, J.
Robert Harris appeals a judgment holding him liable for civil forfeitures and contempt of court under § 30.126(2) and (3), Stats. Without obtaining a DNR permit under that statute, Harris replaced his old roof on his commercial Mississippi River fishing raft with a new roof deck. Both sanctions pertain to Harris' inclusion of a railing and stairway on the roof deck. Sections 30.126(2) and (3) bar capital improvements without a permit. On January 22, 1998, in a nonfinal order, the trial court held the new roof deck to be a capital improvement and ordered the railing's and stairway's immediate removal, intending to disable the deck aspect of the roof. Harris did not remove them. On August 14, 1998, the trial court issued its final judgment, levying a daily $10 forfeiture for each day Harris had left the railing and stairway in place, with limited exceptions. The trial court made the contempt finding for the same conduct and conducted all aspects of the proceedings by summary judgment.
On appeal, Harris attacks the trial court's ruling that the new roof deck, including the railing and stairway, were capital improvements. He also attacks the manner in which the trial court levied sanctions. Harris makes five basic arguments: (1) the railing and stairway were permissible maintenance, part of the essential repairs to an aging roof, and thereby needed no DNR permit under the statute; (2) the trial court should have stayed its nonfinal removal order until the final judgment to permit Harris to appeal without incurring daily forfeitures and contempt sanctions; (3) he had a right to appeal the nonfinal removal order as part of a subsequent final judgment and therefore was not in contempt or subject to forfeitures before the trial court issued that final appealable judgment; (4) because the DNR never told Harris to specifically remove the railing and stairway, he has no liability for the time frame before January 22, 1998; and (5)federal OSHA rules permitted the railing and stairway, and thereby the deck. We reject these arguments and affirm the summary judgment.
Summary judgment is proper if there is no genuine issue of material fact and the State is entitled to judgment as matter of law. See Powalka v. State Life Mut. Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Here, the trial court correctly granted summary judgment and properly ordered the railing's and stairway's removal. Harris failed to supply evidence showing that the roof work was ordinary maintenance, undertaken solely to sustain the structure's existing capability. Rather, the facts showed that the roof work constituted capital improvements, something that expanded the existing capability of the structure by converting a roof into a roof deck. The roof work included reinforcement of lateral and vertical weight-bearing elements, and this allowed patrons to stand on the new roof and use it for new purposes. The old roof would not permit patrons to stand on it. New uses are a characteristic of capital improvements. In short, the roof work did more than maintain the existing structure; it gave the structure new uses. Such capital improvements needed a prior DNR permit.
We also reject Harris' remaining arguments. First, the trial court had no duty to stay its nonfinal removal order pending entry of a final judgment. The...
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