COURT OF APPEALS DECISION DATED AND RELEASED JULY 5, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3266
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff,
v.
RANDY GIESE, d/b/a
MIDSTATE OIL,
Defendant-Third-Party Plaintiff-
Appellant-Cross-Respondent,
v.
PETROLEUM EQUIPMENT
SERVICE,
Third-Party Defendant-Respondent
Cross-Appellant.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Oconto County: WILLIAM J. DUFFY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Randy Giese, d/b/a Midstate Oil, fined by
the State in excess of $100,000 for violations of the solid waste disposal law,
appeals a judgment dismissing his tort and contract claims against Petroleum Equipment
Service (PES), from whom Giese obtained the residual contents of petroleum
storage tanks. Giese's third-party
action alleged a private cause of action to recoup the fine and for other
damages based upon PES's alleged violations of the same statutory subchapter
(subchapter IV, ch. 144, Stats.,
entitled "Solid Waste, Hazardous Waste and Refuse") that Giese
violated, as well as claims based upon misrepresentation. Following a bench trial, the circuit court
dismissed all of Giese's claims.
We agree with PES's
contention that the statute relating to generation of hazardous waste upon
which Giese bases his claim of negligence per se, § 144.63, Stats., does not create a private cause
of action. Further, the trial court's
finding of an absence of reliance on Giese's part regarding the nature of
materials received from PES is not clearly erroneous. We therefore affirm the judgment dismissing Giese's third-party complaint.
Giese's complaint
alleged PES's liability based upon negligence per se for its violation of
§ 144.63, Stats., relating
to generation of hazardous waste, and three forms of fraudulent
misrepresentation. Although Giese also
alleged a breach of contract, he does not develop any argument concerning that
claim on appeal. We deem that issue
abandoned. See Reiman Assocs. v.
R/A Advertising, Inc., 102 Wis.2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1
(Ct. App. 1981). Giese operated a bulk
waste oil collection business and temporarily stored hundreds of thousands of
gallons in numerous bulk tanks for later resale to asphalt plants to be used as
fuel to make asphalt during the road building season. In 1991, Giese began taking drums of residual contents of
petroleum storage tanks from tank cleaning/removal contractors, including PES. Giese approached the PES representative,
Paul Berken, and arranged to pick up drums of petroleum waste for $100 per
drum. Because neither party knew that
gasoline was characterized as a hazardous waste, Giese gave Berken blank
nonhazardous waste manifest forms that he used in his other drum accounts and
showed Berken how to complete them.
Giese told Berken the contents of the drums would be blended with his
waste oil for resale. Until March 1992,
Giese knowingly picked up drums of fuel oil, diesel fuel, waste oil and
gasoline from PES. In March 1992, the
DNR inspected Giese's premises and advised Giese that he could not accept
gasoline because it was a hazardous waste.
It required Giese to develop a sampling and analysis program to ensure
compliance.
There was conflicting
evidence whether Giese then called Berken to advise that he no longer could
accept gasoline waste products. Giese
testified he made the call while Berken denied any recollection of it, stating
that had the conversation happened, "I would have remembered it. ... That
conversation never happened." PES
continued to provide Giese with drums that contained gasoline waste. PES continued to use the nonhazardous waste
manifests Giese had provided him.
About a year later, on
March 22, 1993, a DNR inspection disclosed hazardous waste (material with a
flash point of 140 degrees Fahrenheit) in two of eight bulk tanks tested and in
eight of twelve fifty-five-gallon drums tested on Giese's premises. Only one of the eight drums came from PES,
and the tanks contained random storage from various and unidentifiable Giese
accounts. The PES drum was returned and
disposed of by PES. Giese stipulated
with the DNR to a forfeiture and penalty assessments for hazardous waste
violations exceeding $100,000. He then
brought this third-party action seeking to recoup the penalties as well as the
costs of disposal of the contents of his tanks and drums. Other facts are set forth in the discussion
of the misrepresentation claims.
NEGLIGENCE PER SE: VIOLATION OF STATUTE
Giese first alleges that
PES incurs liability to him for PES' violations of the hazardous waste
statute. Whether a statute creates a
private cause of action is a matter of statutory interpretation presenting a
question of law for this court without deference to the trial court. In re Estate of Drab, 143
Wis.2d 568, 570, 422 N.W.2d 144, 145 (Ct. App. 1988). For a statute or administrative rule to form a basis for civil
liability, the legislature must express an intent that the law in question
serve as a basis for such liability. Fortier
v. Flambeau Plastics Co., 164 Wis.2d 639, 658, 476 N.W.2d 593, 600 (Ct.
App. 1991). Fortier
concluded that violations of the approval process and licensing provisions of
§ 144.44, Stats., did not
provide a private cause of action. The
provision upon which Giese relies, § 144.63, Stats., relates to the generation of such solid and
hazardous waste. This section and the
statutes under discussion in Fortier are both part of the same
subchapter of ch. 144 entitled "Solid Waste, Hazardous Waste and
Refuse." The rationale applied in Fortier
to decide that the legislature did not intend to create a private cause of
action applies here as well. Any
violation of the hazardous waste statute in this case did not create a private
cause of action.
MISREPRESENTATION: STRICT, INTENTIONAL AND NEGLIGENT
The trial court decided
that Giese had failed to prove the element of reliance and dismissed his claims
of fraudulent misrepresentation relating to the waste furnished by PES. In claims for misrepresentation, the
plaintiff must show only that he believed the representation and relied upon
it; it is not necessary that the representation be of such a character as would
influence the conduct of a person of ordinary intelligence and prudence. See Wis
J I—Civil 2401-02 (citing Ohrmundt v. Spregelhoff,
175 Wis. 214, 184 N.W. 692 (1921)).
This case was tried to
the court without a jury. This court
may affirm a judgment if a review of the record demonstrates that the trial
court reached a result the evidence would sustain if there were a specific
finding. Hochgurtel v. San
Felippo, 78 Wis.2d 70, 86, 253 N.W.2d 526, 532 (1977). The weight of testimony and the credibility
of witnesses are questions for the trial court, and where more than one
reasonable inference can be drawn from the credible evidence, the reviewing
court must accept the one drawn by the trier of fact. Hanz Trucking, Inc. v. Harris Bros., 29 Wis.2d 254,
262, 138 N.W.2d 238, 242 (1965).
Evidence was presented
upon which the trial court could draw a reasonable factual inference that Giese
did not actually believe and rely upon any representations by PES that it was
shipping only nonhazardous waste.
Although PES furnished Giese written manifests describing the materials
as nonhazardous, the forms were those furnished by Giese at the outset, and PES
merely continued to complete them as Giese had originally instructed. Significantly, a DNR employee testified that
after the department's initial warning to Giese not to accept hazardous waste,
Giese admitted that "he knew he took a hot load once in a
while." Further, the DNR indicated
that Giese did not comply with its March 1992 directive to develop a sampling
and analysis program, and that he continued to operate without a storage
facility license. Giese did not test
the products from his various large waste oil accounts although Giese's own
experts acknowledged that these sources generate hazardous waste
materials. Of the eight
fifty-five-gallon drums found to contain hazardous waste, only one came from
PES. A fact finder could reasonably
conclude that Giese deliberately chose not to know the contents of the
materials that he accepted from his accounts.
Giese points to the
undisputed evidence that he returned five drums of gas waste to PES in November
1992 as evidence that PES had disregarded his verbal instructions not to submit
gasoline waste after he verbally advised PES that he could no longer accept
it. However, Berken testified that when
he called Giese on behalf of PES to learn why the five drums were returned,
Giese did not tell him that gasoline waste was no longer acceptable. Rather, Berken says Giese
told
me that he returned the drums because there was too much gas in the drums
.... ... He couldn't use that much gas
in his process. He then told me in the
future he would have to inspect the drums.
... [T]he drums that contained too much gas, he would leave on site ....
This
statement, if believed by the trier of fact, is evidence that Giese believed
PES would continue to ship some gasoline waste in violation of the law.
In conclusion, because
Giese does not have a civil cause of action based upon statute, we do not
address Giese's arguments relating to the trial court's finding that he failed
to prove a causal connection between the statutory violation and the damages
suffered. We similarly need not address
the court's failure to compare the negligence of Giese and PES, because a
comparison is relevant only if the underlying negligence claim is valid. Finally, because the court's finding that
Giese did not prove reliance upon a misrepresentation is not a clearly
erroneous finding, the judgment dismissing the third-party action is
affirmed.
By the Court.—-Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.