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COURT OF APPEALS DECISION DATED AND RELEASED July 31, 1996 |
NOTICE |
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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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3417
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Andrew G. Busalacchi,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL D. GUOLEE, Judge. Affirmed.
SCHUDSON, J.[1] Andrew G. Busalacchi appeals from the trial
court's grant of summary judgment to the State of Wisconsin and from the
imposition of a civil forfeiture against him for improper asbestos removal that
occurred before he became record title “owner” but after his offer to purchase
the property was accepted. Busalacchi argues
that the trial court erred in concluding that he was a “constructive
owner.” This court affirms.
The relevant facts are
undisputed. In March 1992, Busalacchi
submitted an offer to purchase on an old leather manufacturing plant in
Milwaukee. The offer was accepted by
the seller, Mitchell Bank, and the closing was scheduled for April 30,
1992. The closing, however, was
rescheduled to May 20, 1992. Between
the time the offer to purchase was accepted and the time the closing occurred,
the bank gave Busalacchi keys to the building so that he could clean out the
building and do some renovation work.
On May 19, 1992, acting
on a complaint, the Milwaukee Health Department inspected the property. Once inside, the inspector observed what she
believed to be improper asbestos handling and removal. According to the summary judgment
submissions, a worker told the inspector that he was an employee of Busalacchi
and that workers had been removing asbestos in the building for several weeks.
Following further investigation
by the DNR, the State filed an action against Busalacchi claiming that as the
“owner,” Busalacchi violated state law by having asbestos removed contrary to
applicable DNR regulations. The
complaint specifically alleged: failure to provide the DNR with
pre-removal notice; failure to wet the asbestos before removal; and failure to
properly lower asbestos to the ground during the removal process.
On cross-motions for
summary judgment, Busalacchi argued that he was not liable because he was not the
record title owner and because chapter 144, Stats.,
and Wis. Adm. Code Ch. NR 447
did not contain definitions of “owner” applicable to him at the time of the
violations.[2] The trial court, however, concluded that
Busalacchi was the constructive owner of the property. Therefore, the trial court granted summary
judgment in favor of the State.
Summary judgment shall
be granted when there is “no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” Section 802.08(2), Stats. An appellate
court independently reviews a trial court's summary judgment decision, applying
the same methodology as did the trial court.
Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277,
287, 531 N.W.2d 357, 362 (Ct. App. 1995).
That methodology has often been recited, see, e.g., Grams
v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980), and it need
not be repeated here. Additionally,
interpretation of a statute is a question of law reviewed independently without
deference to the trial court's decision.
See Door County Highway Dept. v. DILHR, 137 Wis.2d
280, 291, 404 N.W.2d 548, 553 (Ct. App. 1987).
Because no applicable
definition of ”owner” appears under the statute or administrative regulation,
the ordinary and accepted meaning of a word can be established by reference to
a recognized dictionary. Id.,
137 Wis.2d at 293-294, 404 N.W.2d at 554.
Black's Law Dictionary
1105 (6th ed. 1990) broadly defines the term “owner” as:
The
person in whom is vested the ownership, dominion, or title of property;
proprietor. He who has dominion of a
thing, real or personal, corporeal or incorporeal, which he has a right to
enjoy and do with as he pleases, even to spoil or destroy it, as far as the law
permits, unless he be prevented by some agreement or covenant which restrains
his right.
Additionally,
The American Heritage Dictionary
888 (1985) defines to “own” as “to have or possess.” While Busalacchi is correct that he did not hold record title
until the closing, this court nevertheless concludes that under these
definitions he was an “owner” at the time of the violations.
During the weeks prior
to closing, Busalacchi had access to and dominion over the property. According to the deposition of the bank
representative who handled the closing, the reason that all prorations were
postdated effective April 30, 1992, was because Busalacchi had been operating
out of the building and had taken possession of it prior to May 20, 1992, the
actual date of the closing. Additionally,
Busalacchi had hired the workers who were engaged in cleaning and renovation
inside the building prior to the closing.
Therefore, the trial court correctly concluded that Busalacchi was the
“constructive owner.”
Alternatively,
Busalacchi argues that even if he was an “owner” under the applicable law, this
court should nevertheless conclude that he is not liable “because he hired an
apparently qualified contractor to conduct the asbestos removal.” The various authorities he cites, however,
fail to support his position. The plain
language of Wis. Adm. Code §§ NR
447.07 and 447.08 clearly state that the rules apply to both facility owners
and operators.
In conclusion, summary
judgment was properly granted to the State.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.