PUBLISHED OPINION
Case No.: 94-3253
Complete Title
of Case:
CSO SERVICING CORPORATION,
f/k/a
IMPACT TECHNOLOGY and OAKWOOD
INVESTMENTS, INC.
Plaintiffs-Appellants,
v.
CITY OF EAU CLAIRE,
Defendant-Respondent.
Submitted on Briefs: July 10, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: July 25, 1995
Opinion Filed: July
25, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Eau Claire
(If "Special", JUDGE: Gregory A. Peterson
so indicate)
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Erwin
H. Steiner of Eau Claire.
Respondent
ATTORNEYSOn
behalf of the defendant-respondent, the cause was submitted on the brief of Frederick
W. Fischer of Eau Claire.
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COURT OF APPEALS DECISION DATED AND RELEASED JULY 25, 1995 |
NOTICE |
|
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. 94-3253
STATE
OF WISCONSIN IN COURT OF
APPEALS
CSO SERVICING
CORPORATION, f/k/a
IMPACT TECHNOLOGY and
OAKWOOD
INVESTMENTS, INC.
Plaintiffs-Appellants,
v.
CITY OF EAU CLAIRE,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Eau Claire County:
GREGORY A. PETERSON, Judge. Reversed
and cause remanded for further proceedings.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. CSO Servicing Corporation and Oakwood
Investments, Inc., appeal a summary judgment granted in favor of the City of
Eau Claire. CSO asserts that the trial
court erred in granting summary judgment, asserting that its claim based on
promissory estoppel and the alleged circumstances constituting the land contract
with the City do not fall under the rubric of the exclusive remedies pursuant
to § 66.05, Stats., the razing of
buildings statute. Because we conclude
that § 66.05(3), Stats.,
applies to remedies pertaining to raze orders only, we reverse and remand for
further proceedings on CSO's promissory estoppel action.
BACKGROUND
Oakwood Investments
owned the property in question, which included an apartment building. After Oakwood conveyed the property on a
land contract to Steven Kernan, it assigned its land contract vendor's interest
to CSO. The City subsequently expressed
an interest in purchasing the property.
Consequently, the city council adopted a resolution to buy the property
using community development block grants.
It is alleged that CSO's president and the housing division
administrator engaged in a telephone conversation in which the City wanted to
acquire the property for the purposes of constructing a parking lot at a
purchase price of $26,000. Allegedly,
the telephone conversation also included discussion of CSO clearing title
problems in order to convey clear title.
In order to
clear the property's title, CSO commenced a land contract foreclosure against
Kernan. Shortly thereafter, a
foreclosure judgment was rendered.
While the land contract foreclosure action was pending, the City issued
an order to Kernan to vacate the apartment building due to numerous health and
safety violations pursuant to § 66.05, Stats. The City issued a condemnation order, and
CSO did not challenge the razing of the building. Eventually, the building was razed.
Following the building's
demolition, the City attempted to purchase the property at a substantially
lower price because it was a vacant lot.
CSO refused and initiated this lawsuit, essentially claiming that under
the doctrine of promissory estoppel, the City was bound to its original
purchase price of $26,000.
The City moved for
summary judgment on three grounds, including:
(1) CSO was barred because it did not appeal the condemnation order; (2)
there are no facts supporting promissory estoppel; and (3) promissory estoppel
is precluded by the statute of frauds.
The trial court granted summary judgment to the City based on the first
ground. It ruled that § 66.05, Stats., governed CSO's remedies and
because CSO did not challenge the razing order under § 66.05, it was barred
from asserting any claim against the City.
The trial court did not address the City's contention that the statute
of frauds barred the action or whether the facts support an action for
promissory estoppel. CSO appeals.
DISCUSSION
When reviewing a grant
of summary judgment, we independently apply the same methodology as the trial
court. Kloes v. Eau Claire
Cavalier Baseball Ass'n, 170 Wis.2d 77, 83, 487 N.W.2d 77, 79-80 (Ct. App.
1992).
We
first examine the complaint to determine whether a claim has been stated and
then the answer to ascertain whether it presents a material issue of fact. If they do, we then examine the moving
party's affidavits to determine whether a prima facie case for summary
judgment has been made—in this case a defense which would defeat the
plaintiff's claim. If it has, we look
to the opposing party's affidavits to determine whether any material facts are
in dispute which would entitle the opposing party to a trial. If there is no genuine issue of fact, we
proceed to decide whether the moving party is entitled to judgment as a matter
of law.
Schultz
v. Industrial Coils, Inc., 125 Wis.2d 520, 521, 373
N.W.2d 74, 74-75 (Ct. App. 1985) (citations omitted; emphasis in
original). 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. See Green Spring Farms v. Kersten, 136
Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).
The issue presented
involves the construction and application of the razing and removal of
buildings statute, § 66.05, Stats.,
which is a question of law that we review without deference to the trial
court. State v. Pham, 137
Wis.2d 31, 33-34, 403 N.W.2d 35, 36 (1987).
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.
CSO contends that it
suffered damages because the City refused to honor promises upon which CSO
relied, not because the building on its property was razed pursuant to
§ 66.05, Stats. Specifically, CSO bases its claim upon the
equitable theory of promissory estoppel and the alleged circumstances
constituting the land contract with the City.
Thus, CSO contends the exclusive remedies pursuant to § 66.05 are
inapplicable. We agree.
Statutes must be
construed to promote their purpose and objective. Appleton v. Brunschweiler, 52 Wis.2d 303, 306, 190
N.W.2d 545, 547 (1971). Section 66.05, Stats., was designed to protect the
public by permitting municipalities to raze and remove buildings found to be
old, dilapidated or dangerous and considered a safety hazard. Milwaukee v. Greenberg, 163
Wis.2d 28, 42, 471 N.W.2d 33, 38 (1991); § 66.05(1)(a), Stats. Section
66.05(3), Stats., sets forth the
procedure for the owner or affected party to challenge the reasonableness of
the building inspector's razing order.
The pertinent language of § 66.05(3) states:
Anyone affected by any such order shall
within the time provided by s. 893.76 [30 days] apply to the circuit court for
an order restraining the inspector of buildings or other designated officer
from razing and removing the building or part thereof and restoring the site to
a dust‑free and erosion‑free condition or forever be barred. The hearing shall be held within 20 days and
shall be given preference. The court
shall determine whether the order of the inspector of buildings is reasonable,
and if found reasonable the court shall dissolve the restraining order, and if
found not reasonable the court shall continue the restraining order or modify
it as the circumstances require. Costs
shall be in the discretion of the court.
If the court finds that the order of the inspector of buildings is
unreasonable, the inspector of buildings or other designated officer shall
issue no other order under this section in regard to the same building or part
thereof until its condition is substantially changed. The remedies provided in this subsection are exclusive remedies
and anyone affected by such an order of the inspector shall not be entitled to
recover any damages for the razing and removal of any such building and the
restoration of the site to a dust‑free and erosion‑free condition.
(Emphasis added.)
This
remedy is deemed exclusive, allowing the owners thirty days to apply to the
circuit court for a temporary restraining order prohibiting the municipality or
building inspector from proceeding with the razing until the court has had the
opportunity to review the reasonableness of the order. Donley v. Boettcher, 79 Wis.2d 393, 405, 255 N.W.2d 574, 579
(1977); Brunschweiler, 52 Wis.2d at 306-07, 190 N.W.2d at
547. Our supreme court has repeatedly
held that a party that fails to pursue a remedy under § 66.05(3) forfeits the
right to a judicial hearing on the razing order. Gehr v. Sheboygan, 81 Wis.2d 117, 124, 260 N.W.2d
30, 34 (1977).
Examining the language
of § 66.05, Stats., we conclude
that the statute is unambiguous and tailored to the razing of property. The purpose and objective of the statute is
to protect the public from exposure to seriously deteriorated buildings. Id. To further this objective, a procedure for determining whether a
building is to be razed is set forth. See
§ 66.05(1), Stats. Additionally, § 66.05(3), Stats., gives the owner the opportunity
to contest the reasonableness of the razing order. The focus of § 66.05(3) is the circuit court's inquiry in
determining whether an inspector's razing order is reasonable. Section 66.05(3) is not so broad as to
preclude the parties from litigating an independent cause of action; therefore,
the statute does not bar remedies relating to a municipality's conduct giving
rise to other causes of action unrelated to the razing.
Here, CSO's promissory
estoppel action is based upon the City's alleged failure to keep its promise to
purchase the property for $26,000 after the land contract foreclosure. It is not seeking damages for the razing and
removal of the building, but enforcement of the promise to purchase the
property. We conclude that § 66.05, Stats., is not the exclusive remedy
under these facts. Because the trial
court relied solely on § 66.05 to dismiss CSO's promissory estoppel action, we
remand this matter for further proceedings.[1]
By the Court.—Judgment
reversed and cause remanded for further proceedings.