Nov. 14, 2023 – A building owner who failed to challenge a city’s determination that the cost to repair the building was more than half its value had no right to repair the building, the Wisconsin Court of Appeals has held.
In City of New Lisbon v. Muller, 2022AP1683 (Nov. 2, 2023), the Court of Appeals District IV also held that an order authorizing the city to raze the building was final even though it wasn’t labeled as final.
Rats and No Running Water
Michael Muller owns a building in the City of New Lisbon (City). Muller lives in California and has not visited the property since 2020.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
At some point before September 2021, the City received multiple complaints of rats on the property.
City employees investigated. They learned that the property no longer had running water; they also observed hazardous conditions on the dilapidated property.
Unanswered Letters; Seach Warrant
The City sent Muller letters by certified mail on Sept. 2 and Sept. 29, 2021, asking his permission to inspect the property. Muller didn’t respond to the letters.
The City then submitted an affidavit to Juneau County Circuit Court, seeking a special inspection warrant. The circuit court issued the warrant on Jan. 28, 2022.
City Seeks to Raze Building
The City’s building inspector executed the warrant on Jan. 28, 2022. He determined that the building was in disrepair and concluded that the cost of repairing the building would amount to more than 50% of its value.
On March 28, 2022 the City issued Muller an order to raze the building within 30 days. The City personally served Muller with the order on April 7, 2022.
City Wins in Circuit Court
Muller didn’t comply with the order. On May 19, 2022, the City filed a lawsuit in the circuit court and sought an order that it be allowed to raze the building.
The City moved for summary judgment in August 2022. Muller opposed the motion and filed a jury demand but filed no supporting affidavits or other materials.
The circuit court issued an order that:
authorized the City to raze the building;
prohibited Muller from making repairs to the property; and
awarded the City the cost of the razing.
Muller appealed.
Circuit Court’s Order was Final
Writing for a three-judge panel, Presiding Judge JoAnne Kloppenburg began her opinion for the majority by addressing a motion for summary disposition filed by the City after Muller filed his brief with the Court of Appeals.
In filing its motion, the City argued that the Court of Appeals lacked jurisdiction because the order issued by the circuit court was not final.
The City argued that: 1) the order did not state that it was final; and 2) the order stated that additional proceedings would be required, to approve the City’s costs related to the razing.
Kloppenburg pointed out that the Wisconsin Supreme Court has held that whether a document is final under Wis. Stat. section 808.03(1) is not governed solely by the label given the document or the actions taken by the circuit court after issuing the document.
Judge Kloppenburg concluded that the court’s order was final because it disposed of the whole matter that made up the litigation between the City and Muller.
She pointed out that the order explicitly authorized the City to raze the building and restore the property at Muller’s expense, just as the City had requested.
“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,” Kloppenburg wrote.
Under supreme court caselaw, Kloppenburg reasoned, the fact the circuit court would still need to approve the City’s cost in razing the building did not make the order non-final.
No Issue for Jury
On the merits, Muller argued that the court’s order deprived him of a jury trial.
But that argument failed, Judge Kloppenburg concluded, because Muller failed to file an affidavit or other form of evidence to support his arguments and assertions of fact.
“Thus, there was no triable issue of material fact on any issue to present to a jury,” Kloppenburg.
Inspection Warrant Properly Authorized
Muller also argued that the City hadn’t met the requirements for a special inspection warrant under section 66.0119(2) and had therefore violated his right against unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution.
But Judge Kloppenburg pointed out that the City had sent Muller two letters, each by certified mail, that stated that if Muller didn’t return a form consenting to the inspection of the property, “the City of New Lisbon shall have the right to pursue actions to obtain an Inspection Warrant.”
Section 66.0119(2) provides that an inspection warrant may be granted only upon a showing “that consent to entry for inspection purposes has been refused.”
Kloppenburg reasoned that, given the common meaning of the word “consent,” Muller’s failure to reply to the two letters sent by the City constituted a refusal of consent for purposes of section 66.0119(2).
“Muller does not explain how his failure to respond to the letters supports a reasonable inference to the contrary,” Judge Kloppenburg wrote.
No Right to Make Repairs
Muller argued that the circuit court’s order denied him an opportunity to make repairs or otherwise fix any alleged violations of section 66.0413(1)(b)1.
Under that section, a building owner has the right to repair a building whose razing has been ordered if the cost of the repairs is less than half the value of the building.
But the City submitted evidence that the cost to repair the building was greater than half its value, Judge Kloppenburg noted.
“Muller did not file any affidavits contradicting the City’s determinations,” Kloppenburg wrote. “Muller had no right to make repairs under Wis. Stat. section 66.4013(1)(b)1.”
