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COURT OF APPEALS
DECISION
DATED AND FILED
November 2, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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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 Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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Brian E. Davis,
Plaintiff-Appellant,
v.
City of Milwaukee,
Defendant-Respondent.
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APPEAL
from a judgment of the circuit court for Milwaukee County: Dennis
p. moroney, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 CURLEY, P.J. Brian E. Davis, pro se, appeals from the judgment dismissing
his action against the City of Milwaukee
(City) after he presented his case at trial.
See Wis. Stat. § 805.14(3) (2007-08). Davis
argues that the trial court should have granted summary judgment on his
constitutional unreasonable search claims because he believes that an
unpublished Court of Appeals decision establishes that City employees may not,
under any circumstances, enter his property without a warrant or
permission. He also argues that the
trial court’s rulings regarding the parties’ motions in limine prevented him from fully presenting his case at
trial. Davis further argues that the trial court
erroneously dismissed his claims after he rested his case. For the reasons explained below, we disagree
with Davis and
affirm.
I. Background.
¶2 Davis owns and rents
properties in Milwaukee,
including the property at issue, a house on North 58th Street. Davis’s
complaint, filed June 19, 2006, alleges that City inspectors entered this
property several times throughout 2005 without permission or a warrant, cited
him for various code violations, and then filed a frivolous lawsuit against him
in municipal court. According to Davis,
the inspectors’ actions violate an unpublished 2002 Court of Appeals decision
that he believes establishes that under no circumstances may any City employee
enter any of Davis’s properties without permission or a warrant, see City
of Milwaukee v. B. Davis Inv., No. 02‑1043, unpublished slip op.
(WI App Aug. 6, 2002) (B. Davis Inv.). According to Davis, these actions also violate the Fourth
Amendment and Article I, section 11 of the Wisconsin Constitution, both of
which grant him the right to be free from unreasonable searches. The City denies all of Davis’s claims.
¶3 Before discovery ended—before Davis
had answered all of the City’s discovery requests and before he had appeared
for his noticed deposition—Davis
filed a motion for summary judgment. In
that motion, he argued that B. Davis Investment, 257 Wis.
2d 939, as well as letters that he sent to the City requesting that City
employees stay off his property, created a reasonable expectation of privacy that
was violated as a matter of law. Davis did not, however,
establish whether he personally occupied the house on 58th Street when the inspectors were there,
nor did he explain exactly where on the property the inspectors were when they
allegedly violated his rights. Unable to
find a basis for Davis’s
motion and concluding that material facts still were in issue, the trial court
denied summary judgment, and the case went to trial.
¶4 At trial, Davis
called as witnesses four employees from the City’s Department of Neighborhood
Services. Of the four, two had
personally inspected the property on 58th
Street. One
of these witnesses testified that he circled around the outside of the house,
stood near the north end, and observed defective siding. The other witness testified that her general
practice when inspecting houses is to approach them from sidewalks, service
walks, driveways, or by other available means.
She does not go through locked gates or fences; she also does not cross
“no trespassing” signs. After the four
City employees testified, Davis
rested his case. He himself did not
testify. The City then moved to
dismiss. The trial court, finding that the
evidence did not prove any of Davis’s
claims, granted the motion. Davis now appeals.
II. Analysis.
A. The trial court properly
denied Davis’s
motion for summary judgment.
¶5 Davis
argues that the trial court erred in denying his motion for summary
judgment. We review de novo the grant or denial of summary judgment, employing the same
methodology as the circuit court. See Green
Spring Farms v. Kersten, 136 Wis.
2d 304, 314-16, 401 N.W.2d 816 (1987). Summary
judgment is appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Wis.
Stat. § 802.08(2). The inferences
to be drawn from the underlying facts are to be viewed in the light most
favorable to the party opposing the motion. Lambrecht v. Estate of Kaczmarczyk,
2001 WI 25, ¶23, 241 Wis.
2d 804, 623 N.W.2d 751. If there is any
reasonable doubt regarding whether there exists a genuine issue of material
fact, that doubt must be resolved in favor of the nonmoving party. Schmidt v. Northern States Power Co.,
2007 WI 136, ¶24, 305 Wis.
2d 538, 742 N.W.2d 294.
¶6 In fact, summary judgment was not appropriate because there
still was at least one issue of material fact when Davis filed his motion. Although Davis established that City inspectors did
enter onto his 58th Street
property, he had not yet established exactly where the inspectors went. The facts were still unclear as to whether
the inspectors went onto the constitutionally-protected “curtilage” of the
property, see Conrad v. State, 63 Wis. 2d
616, 633-34, 218 N.W.2d 252 (1974), or whether they observed the defects
from outside of the area where Davis had a reasonable expectation of privacy, see, e.g., State v. Bauer, 127 Wis. 2d 401, 406, 379
N.W.2d 895 (Ct. App. 1985) (no unreasonable search occurs where government
employees who enter private property restrict their movements to those areas
generally made accessible to visitors, such as driveways, walkways or similar
passageways); United States v. French, 291 F.3d 945, 953 (7th Cir. 2002). Therefore, Davis’s summary judgment motion was correctly
denied.
¶7 Contrary to what Davis argues,
our decision in B. Davis Investment, 257 Wis.
2d 939, does not expand the constitutional definition of “reasonable
expectation of privacy” such that any entry onto Davis’s property constitutes a per se Fourth Amendment violation. In fact, B. Davis Investment had nothing
to do with either the state or federal constitutions. In B. Davis Investment,
Davis’s
investment company filled out a form called “Application of Certificate for
Exterior Code Compliance.” Id., 257 Wis.
2d 939, ¶6. This was the first step in a
procedure whereby new property owners applied for mandatory inspections. Id. Davis’s
company did not, however, complete the following step, which was to fill out a
form called “Application for Inspection”—a form that expressly granted the City
permission to inspect the property. Id., ¶¶5-9. After Davis’s
company filled out the Application of Certificate for Exterior Code Compliance,
the City inspected one of the company’s properties under the mistaken belief
that the company had in fact filled out the Application for Inspection, and
found several code violations, for which the City successfully sued Davis’s company. Id. Reversing the City’s determination, this
court held that a property owner’s Application for Certificate of Exterior Code
Compliance may not substitute for an Application for Inspection. Id.,
¶¶14-16. We did not determine whether
the City’s inspections violated the constitution. See id. ¶9, n.2.
¶8 Moreover, notwithstanding the constitutional issues, B. Davis
Investment does not govern the instant case. B. Davis Investment involves: (1) a different plaintiff—Davis’s
investment company instead of Davis;
(2) a different kind of inspection; and (3) a different legal basis for
relief. Therefore, the “law of the case
doctrine,” a “‘longstanding rule that a decision on a legal issue by an
appellate court establishes the law of the case, which must be followed in all
subsequent proceedings in the trial court or on later appeal,’” see State
v. Moeck, 2005 WI 57, ¶18, 280 Wis. 2d 277, 695 N.W.2d 783 (citation
omitted), does not apply.
B. The trial court
properly exercised its discretion with regard to the parties’
motions in limine.
¶9 Davis
next argues that the trial court’s rulings on the parties’ motions in limine prevented him from presenting
his case. The decision to grant or deny
a motion in limine is committed to
the discretion of the court, and we affirm if the trial court applied the
correct law to the facts of record and reached a reasonable result. Grube v. Daun, 213 Wis. 2d 533, 541‑42, 570 N.W.2d 851
(1997). In other words, if a reasonable
basis for the circuit court’s ruling exists, we will not disturb it. Id.
¶10 Davis contends that the court’s
order prohibiting him from mentioning B. Davis Investment, 257 Wis. 2d 939, to the jury
violated Wis. Stat. § 902.01(7)
“by failing to notify the jury of that decision which became a requirement when
[the trial court] took judicial notice of it.”
As we discussed above, B. Davis Investment is irrelevant to
the instant case. See Wis. Stat. § 904.02
(“Evidence which is not relevant is not admissible.”). Moreover, contrary to what Davis argues, it
does not matter whether the trial court took judicial notice of the case at the
beginning of litigation; establishing a piece of information as fact does not
render it relevant. See Wis. Stat. § 904.01
(“‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”). Therefore, because the trial court had a
reasonable basis for excluding this evidence—in other words, because it was
irrelevant—we affirm its ruling. See Grube,
213 Wis. 2d
at 541‑42.
¶11 Davis
additionally argues that the trial court’s rulings generally violated Wis. Stat. §§ 904.01 and 904.02 “by
prohibiting him from mentioning the actual damages which were incorporated into
his Third Amended Complaint.” Presumably,
Davis refers to
the trial court’s exclusion of “evidence or argument relating to any expenses
incurred by Brian Davis in painting the subject property,” although neither his
brief nor his Third Amended Complaint expressly say so. As Davis
provides no explanation for how these damages flowed from the City’s alleged
violations of his constitutional rights, we conclude that the trial court
appropriately excluded them as irrelevant.
See Wis. Stat. §§ 904.01, 904.02; see also Kruczek v. DWD, 2005
WI App 12, ¶32, 278 Wis. 2d 563, 692 N.W.2d 286.
¶12 Davis
also submits that the order prohibiting him from introducing or mentioning
attorney opinions from the Department of Natural Resources “violated Wis. Stat. § 907.02 and was an attempt
to cover up defense counsel’s claim that plaintiff lacked a privacy interest in
his own property were not warranted by existing law—including this court’s
prior opinion in [B. Davis Investment]—and were therefore a violation of Wis. Stat. § 802.05.” Davis
provides no further explanation for this contention, and does not explain the
relevance of these particular documents.
See Wis. Stat. §§ 904.01, 904.02; see also Kruczek, 278 Wis. 2d 563, ¶32. We therefore conclude that the trial court
reasonably exercised its discretion when it excluded this evidence.
C. The trial court properly dismissed Davis’s claims at trial.
¶13 As a final matter, Davis
argues that the trial court erroneously dismissed his claims after he rested
his case. A trial court may dismiss a
case after the plaintiff has rested if the evidence is insufficient to support
a verdict in the plaintiff’s favor. Wis. Stat. § 805.14(3). After considering all credible evidence and
reasonable inferences in the light most favorable to the plaintiff, the trial
court must be satisfied that there is no credible evidence to sustain a finding
in plaintiff’s favor. See Wis.
Stat. § 805.14(1); Beacon Bowl v. Wisconsin Elec. Power Co.,
176 Wis. 2d 740,
788, 501 N.W.2d 788 (1993). The trial
court may only direct a verdict when the evidence is not in dispute or when it
is so clear and convincing as to reasonably permit unbiased and impartial minds
to come to one conclusion. Millonig
v. Bakken, 112 Wis.
2d 445, 450, 334 N.W.2d 80 (1983). On
the other hand, the trial court should not direct a verdict if it is within the
jury’s province to accept either of a witness’s contradictory statements about
a material issue. See Graves v. Travelers Ins. Co., 66 Wis. 2d 124, 136-37, 224 N.W.2d 398 (1974). The trial court’s function in deciding a
motion at the close of the evidence is not to weigh the evidence. See Wisconsin Natural Gas v. Ford, Bacon, &
Davis Constr., 96 Wis. 2d 314, 338, 291 N.W.2d 825 (Ct. App.
1980). Rather, the trial court must
accept the evidence as true unless the evidence is mere conjecture. Id.
¶14 Although we apply the same standard on appeal, we must also
give substantial deference to the trial court’s better ability to assess the
evidence. See Helmbrecht v. St. Paul Ins.
Co., 122 Wis.
2d 94, 109-10, 362 N.W.2d 118 (1985).
Thus, we will not overturn a trial court’s decision to dismiss at the
end of the plaintiffs’ case “‘merely because, on a doubtful balancing of
probabilities, the mind inclines slightly against the decision.’” Olfe v. Gordon, 93 Wis. 2d 173, 186, 286 N.W.2d 573 (1980)
(citations omitted). Rather, we may set
aside a dismissal only if the record reveals that the trial court was “clearly
wrong.” Id.
¶15 In Davis’s
case, we cannot say that the trial court’s dismissal of his claims was clearly
wrong. See id. The evidence adduced at trial did not
establish that any City employee entered any property on which Davis had a reasonable
expectation of privacy. See
Bauer, 127 Wis.
2d at 406. Of the four witnesses called
to testify, only one actually testified to having setting foot on the property.
The inspector who initially inspected
the house on 58th Street
never testified that he entered the house itself or went anywhere near the
curtilage. See Conrad, 63 Wis. 2d at 634. He merely circled around the house and
observed defective siding at the north end.
No other witness specifically testified to entering the property. Presumably, the second inspector, the one who
testified to her general inspection practices, did go onto the property;
however, Davis
did not elicit facts during her testimony that would have given rise to a jury
question. Given the dearth of facts
regarding the inspections at issue in this case, we conclude that the trial
court did not err in dismissing the case after Davis had rested. See Wis. Stat. § 805.14(3); Olfe,
93 Wis. 2d
at 186. Accordingly, we affirm.
By the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.