COURT OF APPEALS DECISION DATED AND RELEASED September 30, 1996 |
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. 95-1292
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
RAYMOND S. SELJE
and HELEN B. SELJE,
Husband and Wife,
Plaintiffs-Appellants,
v.
VILLAGE OF NORTH
FREEDOM,
a Municipal
Corporation,
and JEFF
CURTIS-CROCKETT, d/b/a
VIERBICHER ASSOCIATES,
INC.,
VILLAGE OF NORTH
FREEDOM
BUILDING INSPECTOR,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Sauk County:
JAMES EVENSON, Judge. Affirmed.
Before Vergeront, J.,
and Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. Plaintiffs-appellants Raymond and Helen Selje (the
Seljes) appeal from a circuit court order granting defendants' motion to
dismiss the Seljes' motion for compensation.
The circuit court ruled that it no longer had jurisdiction, because the
Seljes' motion was too late. Rule 806.07, Stats. For the
reasons set forth below, we affirm.
BACKGROUND
The Seljes owned a
dilapidated building in North Freedom, Wisconsin. They obtained a building permit with the intention of renovating
the property into a storefront and upstairs apartment. The last extension on
the building permit expired December 8, 1992.
On November 6, 1992, Village Attorney James C. Bohl wrote to the Seljes,
advising that per a September 22, 1992 inspection, the building was unsafe and
unfit for human habitation. Bohl
advised that if the building was not brought up to code by the December 8, 1992
permit expiration date, no further building permit extensions would be
authorized, and the building would be subject to a raze order pursuant to
statute.
By Resolution No. 181,
dated January 12, 1993, the Village Board authorized the Village Building
Inspector to issue a raze order pursuant to § 66.05, Stats.[1] On January 15, 1993, the Village Building
Inspector did issue such an order informing the Seljes that if they had not
razed the building and restored the site within ninety days, the costs of
razing the building, together with attorney's fees, inspector costs, and
removal and cleanup costs would be assessed against them as a special tax.
On February 19, 1993,
the Seljes filed a petition for a restraining order. By stipulation dated March 8, 1993, all parties agreed to waive
the twenty-day hearing deadline mandated by § 66.05(3), Stats., agreeing to an April 19, 1993
hearing.
At the April 19, 1993
hearing, the Seljes appeared pro se.
There is no transcript of the hearing, but the minutes indicate that the
Seljes raised various arguments and entered various exhibits into evidence. By order dated May 4, 1993, the circuit
court denied the Seljes' petition for a restraining order on the ground that
the building was too dilapidated to warrant the high cost of improving it to
meet code requirements. The court also
found, however, that a separate garage building on the property was not
affected by the raze order. The court
concluded that the requirements of § 66.05, Stats., had been met, and that "it is appropriate to
restore the site to a dust and erosion free condition."
Of particular importance
to this appeal, the court retained jurisdiction over the matter for a period of
sixty days after the razing project was completed, for the purpose of making
any determination regarding costs to be assessed and collected as a special tax
under § 66.05, Stats.
From various record
documents, we surmise that the Seljes' building was razed in the summer of
1993.
By Resolution No. 198,
dated November 8, 1993, the Village Board assessed a special tax against the
Seljes in the amount of $13,420.30, that being the cost of razing the building,
together with inspection and attorney's fees.
By letter dated December
24, 1993, and received by the court on January 10, 1994, the Seljes objected to
the assessment. By letter dated January
10, 1994, the circuit court advised the Seljes that they could neither respond
to, nor take action upon their December 24, 1993 letter "absent a formal
motion with notice to all parties."
The Seljes did file such a motion—styled a "Motion for hearing of
just compensation"—but not until January 20, 1995, that being one year and
ten days after being advised by the court of the necessity for a formal motion.
At the March 3, 1995
motion hearing, the circuit court considered the Village's motion to dismiss
the Seljes' motion as late.
Specifically, the court held that due to the amount of time which had
passed, it had no jurisdiction to hear a late claim under Rule 806.07, Stats. The court
declined to award costs for a frivolous proceeding, but did award $150 in
motion costs.
ANALYSIS
The
Seljes appeal, claiming various substantive errors. However, we restrict consideration to their arguments relating to
the court's jurisdiction to hear their January 20, 1995 motion.[2]
The Seljes allege that
when one of them (they do not say which) went to the judge's chambers, the
judge's administrative assistant told them that "the judge considered all
cases open for two years and there would be no problem if motions were filed
within two years of the start of the Plaintiff's case."
We have closely
scrutinized the record, especially the transcript of the March 3, 1995 hearing
conducted on the Seljes' motion. We
find no evidence that the Seljes ever raised this argument before the circuit
court, despite being asked repeatedly by the circuit court whether they had any
other arguments relevant to the court's jurisdiction to hear the case. Because this issue was not raised before the
trial court, we will not consider it here.
Zeller v. Northrup King Co., 125 Wis.2d 31, 35, 370 N.W.2d
809, 812 (Ct. App. 1985); Capon v. O'Day, 165 Wis. 486, 490-91,
162 N.W. 655, 657 (1917).
The Seljes also argue
that the court never informed them of a deadline for bringing a motion. We reject this argument on two grounds. First, the May 4, 1993 order clearly indicated
that the court would retain jurisdiction for sixty days for the purpose of
making any determination on costs assessed under the statute. Thus, the Seljes had clear written notice of
the time within which they had to request the court to exercise its jurisdiction
regarding costs. Even supposing that
the Seljes understood this to mean sixty days after costs were assessed by the
Village Board's November 8, 1993 resolution of special taxation, the Seljes'
motion was more than a year late.
The second reason we
reject this argument is that, although a circuit court has the duty to protect
the rights of litigants who appear in court, Village of Big Bend v.
Anderson, 103 Wis.2d 403, 407, 308 N.W.2d 887, 890 (Ct. App. 1981), a
court cannot serve as both advocate and judge.
State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642
(Ct. App. 1992). The right to
self-representation is `[not] a license not to comply with relevant rules of
procedural and substantive law.' Waushara County v. Graf, 166
Wis.2d 442, 452, 480 N.W.2d 16, 20 (1992), quoting Faretta v. California,
422 U.S. 806, 834 n.46 (1975). The
Seljes knew they were proceeding without an attorney, yet they did not inform
themselves of the relevant times for bringing a Rule 806.07, Stats.,
motion.[3]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 66.05, Stats., reads in relevant part as follows:
(1)(a) The governing body or the inspector
of buildings or other designated officer in every municipality may order the
owner of premises upon which is located any building or part thereof within
such municipality, which in its judgment is so old, dilapidated or has become
so out of repair as to be dangerous, unsafe, insanitary or otherwise unfit for
human habitation, occupancy or use, and so that it would be unreasonable to
repair the same, to raze and remove such building or part thereof and restore
the site to a dust‑free and erosion‑free condition.... The order shall specify a time in which the
owner shall comply therewith and specify repairs, if any....
(2)(a) If the owner fails or refuses to comply
within the time prescribed, the inspector of buildings or other designated
officer may cause such building or part thereof to be razed and removed and may
restore the site to a dust‑free and erosion‑free condition either
through any available public agency or by contract or arrangement with private
persons, or closed if unfit for human habitation, occupancy or use. The cost of such razing, removal and
restoration of the site to a dust‑free and erosion‑free condition
or closing may be charged in full or in part against the real estate upon which
such building is located, and if that cost is so charged it is a lien upon such
real estate and may be assessed and collected as a special tax....
(b) Any municipality, inspector of
buildings or designated officer may, in his, her or its official capacity,
commence and prosecute an action in circuit court for an order of the court
requiring the owner to comply with an order to raze or remove any building or
part thereof issued under this section if the owner fails or refuses to do so
within the time prescribed in the order, or for an order of the court requiring
any person occupying a building whose occupancy has been prohibited under this
section to vacate the premises, or any combination of the court orders. Hearing on such actions shall be given
preference. Costs shall be in the
discretion of the court.
(3) Anyone affected by any such order
shall within the time provided by s. 893.76 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.
(4) "Building" as used in this section includes any building or structure.
[2] We do not consider the Seljes' argument that they should not pay the $150 motion costs assessed against them. They have offered no argument on that subject, simply asserting that because they should win on the merits, they should not have to pay costs. The Seljes cite no cases or authority to support their argument. In light of the inadequate briefing on this issue, we decline to address it. In re Balkus, 128 Wis.2d 246, 255 n.5, 381 N.W.2d 593, 598 (Ct. App. 1985).
[3] Because we hold, as we do, that the Seljes'
motion was procedurally barred, we need not consider the merits of their
position that they are entitled to compensation. Were the issue before us, we would entertain grave doubts of
their entitlement in light of the language in § 66.05(3), Stats., stating that:
[t]he 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.