2023 WI App 65

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2022AP1683

Complete Title of Case: 

††Petition for Review dismissed

CITY OF NEW LISBON,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL W. MULLER,††

 DEFENDANT-APPELLANT.

Opinion Filed: November 2, 2023

Submitted on Briefs: September 14, 2023

JUDGES: Kloppenburg, P.J., Graham, and Taylor

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

brief of Michael W. Muller, pro se. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Nicole Marklein and William A. Brookley of Cross Jenks 

Mercer & Maffei LLP, Baraboo. 
2023 WI App 65

COURT OF APPEALS

DECISION

DATED AND FILED

November 2, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2022AP1683 Cir. Ct. No. 2022CV87

STATE OF WISCONSIN IN COURT OF APPEALS

CITY OF NEW LISBON,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL W. MULLER,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Juneau County: STACY A. 

SMITH, Judge. Affirmed. 

Before Kloppenburg, P.J., Graham, and Taylor, JJ. 

¶1 KLOPPENBURG, P.J. The circuit court issued an order (the “circuit court 

order”) granting summary judgment in favor of the City of New Lisbon (the “City”), 

permitting the City to raze the building on property owned by Michael W. Muller in the 
No. 2022AP1683

2

City (the “property”), and awarding the cost of the razing to the City. See WIS. STAT.

§ 66.0413(1)(a)2. (2021-22) (defining “raze a building” as “to demolish and remove the 

building and to restore the site to a dust-free and erosion-free condition”).1 The City 

commenced this action seeking the relief granted in the circuit court order after a City 

building inspector executing a special inspection warrant found the building on the 

property to be dangerously in disrepair and unreasonable to repair, and Muller failed to 

comply with an order issued by the City (the “City order”) requiring that Muller raze the 

building on the property within thirty days of service of the City order. 

¶2 Muller, appearing pro se in this court as he did in the circuit court, appeals 

the circuit court order, arguing that: (1) he was deprived of his constitutional right to a jury 

trial; (2) the statutory requirements for a special inspection warrant were not satisfied and, 

therefore, his Fourth Amendment rights were violated when the City’s building inspector 

inspected the property without his permission; and (3) he was denied his statutory “right” 

to make repairs in order to correct any alleged violations. 

¶3 As a threshold matter, the City asserts that this court “may lack jurisdiction” 

over this appeal because the circuit court order, which provides that the City “is awarded 

the cost of the razing to be approved by the Court after completion,” is not final and does 

not state that it is final for purposes of appeal. We conclude that the circuit court order is 

a final order because it disposes of the entire matter in litigation between the parties by 

granting the City all of the relief that the City requested. Accordingly, this court has 

jurisdiction over Muller’s appeal of the circuit court order.

¶4 As to the merits of Muller’s arguments, we conclude that Muller was not 

deprived of his constitutional right to a jury trial because, pursuant to applicable state 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1683

3

statutes, he failed to present evidence showing disputed issues of material fact for a jury to 

decide. We further conclude that Muller’s Fourth Amendment rights were not violated 

because the statutory requirements for a special inspection warrant to be issued and 

executed were satisfied. We also conclude that Muller had no statutory “right” to make 

repairs to the building because it is undisputed that the cost to repair the building would 

exceed 50% of the building’s value, which, under the statutes he cites, renders the repairs 

unreasonable and authorizes an order requiring that the building be razed without providing 

the owner an opportunity to make repairs. Accordingly, we affirm the circuit court order 

granting the City’s motion for summary judgment and permitting the City to raze the 

building on the property at Muller’s expense.

BACKGROUND

¶5 The following facts are taken from the affidavits that were submitted by the 

City in support of its motion for summary judgment, and from documents attached to the 

complaint that were not disputed by Muller in his answer. As noted in greater detail below,

Muller did not present any evidence to support the arguments in his brief opposing the 

City’s motion. 

¶6 The property is located at 402 and 404 South Washington Street in the City. 

Muller, the owner of the property, lives in California and has not been to the property since 

at least the start of the COVID-19 pandemic in 2020. 

¶7 Before September 2021, the City received complaints of rats entering and 

exiting the property, determined that the property no longer had running water, and 

observed dilapidated and hazardous conditions on the property. On September 2 and 

September 29, 2021, the City sent Muller letters by certified mail informing him of the 

alleged condition of the property and seeking permission to conduct an inspection. Muller 
No. 2022AP1683

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did not respond to the City’s letters. The City submitted to the circuit court an affidavit 

seeking a special inspection warrant, which the court issued on January 28, 2022. 

¶8 Upon executing the special inspection warrant on January 28, 2022, the 

building inspector observed and documented numerous dilapidated and hazardous 

conditions throughout and around the building on the property, found the building to be in 

disrepair, and determined that the cost of repairing the building would greatly exceed 50% 

of its value. On March 28, 2022, the City issued Muller an order to raze the building on 

the property within thirty days of service of the City order. Muller was personally served 

with the City order on April 7, 2022. Muller failed to comply with the City order, and, on 

May 19, 2022, the City filed suit alleging that Muller had maintained the property in a 

dangerous condition of disrepair in violation of City ordinances, the violations constituted 

a public nuisance, Muller had notice of and failed to abate the public nuisance, and the cost 

of repairs would be unreasonable. The City sought an order permitting the City to raze the 

building on the property. 

¶9 In August 2022, the City filed a motion for summary judgment, supported by 

affidavits, seeking an order from the circuit court permitting the City to raze the building 

on the property. At the time that the City filed the motion, the condition of the property 

had “not substantially changed” since the inspection in January 2022. Muller filed a jury 

demand and a brief opposing the City’s motion for summary judgment; as stated, Muller 

did not file any supporting affidavits or other evidentiary materials. 

¶10 The circuit court held a hearing on the City’s motion for summary judgment 

and subsequently issued an order that granted the motion for the reasons stated at the 

hearing. The circuit court order also prohibited Muller from making additional repairs on 

the property, permitted the City to raze the building on the property and to restore the real 
No. 2022AP1683

5

estate, and awarded the City the cost of the razing, as approved by the court after 

completion. 

¶11 This appeal follows.

DISCUSSION2

¶12 To provide context for the analysis that follows, we briefly summarize the 

statutory scheme regarding raze orders. The legislature has provided at least two 

complementary paths to the issuance of a raze order. As summarized above, the City 

followed the first path to issue the City order and the second path to obtain the circuit court 

order.

¶13 Under WIS. STAT. § 66.0413(1)(b)1., a municipality may order the owner of 

a building to raze the building if the building “is old, dilapidated, or out of repair and 

consequently dangerous, unsafe, unsanitary, or otherwise unfit for human habitation and 

unreasonable to repair.” A building described in § 66.0413(1)(b)1. is presumed to be 

unreasonable to repair if the municipal building inspector “determines that the cost of 

repairs ... would exceed 50 percent of the” building’s value. Sec. 66.0413(1)(c). If the 

owner fails to comply with a raze order within the time specified in the order, the 

municipality may file an action to enforce the order in circuit court. Sec. 66.0413(1)(f) and 

(g). 

 

2

 We note that the City includes in its Table of Authorities only some of the legal authority that it 

cites in its brief. Specifically, it includes only case law and not statutes. WISCONSIN STAT. RULE 

809.19(1)(a) requires that a brief include “a table of cases arranged alphabetically, statutes and other 

authorities cited with reference to the pages of the brief on which they are cited.” We remind counsel that 

this is a high-volume court. State v. Bons, 2007 WI App 124, ¶21, 301 Wis. 2d 227, 731 N.W.2d 367. 

Compliance with the Rules of Appellate Procedure is not optional and is essential to the timely performance 

of our duties. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964).
No. 2022AP1683

6

¶14 Under WIS. STAT. § 823.21, a building that is “so old, dilapidated or out of 

repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or has 

been determined to be unreasonable to repair under [WIS. STAT. §] 66.0413(1)(b)1.” is a 

public nuisance that “may be proceeded against under [WIS. STAT. ch. 823].” Under WIS.

STAT. § 823.01, a city may “maintain an action to recover damages or to abate a public 

nuisance ... and to obtain an injunction to prevent the same.” Under WIS. STAT. § 823.03-

04, the circuit court may order relief including, but not limited to, abatement and removal 

of the nuisance at the owner’s expense.3

¶15 As stated, here it is undisputed for purposes of summary judgment that 

Muller maintained the property, including the building on the property, in a dangerous 

condition of disrepair so as to constitute a public nuisance, that Muller had notice of and 

failed to abate the public nuisance, and that the cost to repair the building would be 

unreasonable. Accordingly, the circuit order issued an order permitting the City to raze the 

building on the property at Muller’s expense. 

I. Appellate Jurisdiction

¶16 After Muller filed his appellant’s brief in this appeal, the City filed a motion 

for summary disposition “due to lack of jurisdiction,” asserting that the circuit court order 

appealed by Muller is not final. This court issued an order denying the motion and directing 

the parties to address this court’s jurisdiction as the first issue in their response and reply 

briefs. In its response brief, the City asserts that this court “may not have jurisdiction” 

because the circuit court did not enter a final order or judgment disposing of the entire 

matter in litigation as to one or more of the parties. Muller did not file a reply brief or 

 

3

 The City in its complaint cited WIS. STAT. § 823.114(1) in support of its request for an order 

permitting it to raze the building on the property. We observe that that section addresses the abatement of 

a public nuisance created by a “drug or criminal gang house” as described in WIS. STAT. § 823.113 and, 

therefore, does not appear to apply here.
No. 2022AP1683

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otherwise respond to this court’s order. We decline to deem Muller to have conceded the 

issue of jurisdiction, see United Cooperative v. Frontier FS Cooperative, 2007 WI App 

197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief 

to an argument made in response brief may be taken as a concession), particularly in light 

of the ambivalent nature of the City’s assertion in its response brief that this court “may 

not have jurisdiction” over this appeal and its conclusory analysis of the issue. We now 

proceed to explain our conclusion that we have jurisdiction because the circuit court order, 

which grants the City all of the relief that it requested, is a final order.

A. Applicable Legal Principles and Standard of Review

¶17 “[T]his court lacks jurisdiction over an appeal brought from a nonfinal 

judgment or order.” Leske v. Leske, 185 Wis. 2d 628, 630, 517 N.W.2d 538 (Ct. App. 

1994); see also WIS. STAT. § 808.03(1) (“A final judgment or a final order of a circuit court 

may be appealed as a matter of right to the court of appeals ....”).4 

¶18 “A final judgment or final order is a judgment, order or disposition that 

disposes of the entire matter in litigation as to one or more of the parties, whether rendered 

in an action or special proceeding.” WIS. STAT. § 808.03(1). Our supreme court has 

explained that a final order or judgment as defined in § 808.03(1) is an order or judgment 

that “terminates the litigation on the merits and leaves nothing to be done but to enforce by 

execution what has been determined.” Shuput v. Lauer, 109 Wis. 2d 164, 169, 325 

N.W.2d 321 (1982) (quoted source omitted). The court has more recently restated the 

 

4

 As stated, under WIS. STAT. § 808.03(1), a final order or judgment may be appealed as a matter 

of right within the statutory time period specified. Shuput v. Lauer, 109 Wis. 2d 164, 169, 325 N.W.2d 

321 (1982). Nonfinal orders or judgments, also referred to as intermediate or interlocutory orders or 

judgments, “are not final judgments or orders appealable as a matter of right” under § 808.03(1). Id. 

Rather, nonfinal orders or judgments may be appealed prior to a final judgment only “upon leave granted 

by the court.” Sec. 808.03(2); Shuput, 109 Wis. 2d at 169. Muller did not petition for leave to appeal the 

circuit court order here under § 808.03(2).
No. 2022AP1683

8

requirement that a final order or judgment terminate the litigation on the merits as a 

requirement that the order or judgment “explicitly dispose of the entire matter in litigation” 

by dismissing or adjudging all “substantive issues,” meaning all legal issues, between the 

parties. Admiral Ins. Co. v. Paper Converting Mach. Co., 2012 WI 30, ¶¶27, 31, 34-36, 

339 Wis. 2d 291, 811 N.W.2d 351; see also Wambolt v. West Bend Mut. Ins. Co., 2007 

WI 35, ¶39, 299 Wis. 2d 723, 728 N.W.2d 670 (stating that, “in order to ‘dispose’ of [a] 

matter under § 808.03(1),” an order or judgment “must contain an explicit statement either 

dismissing the entire matter in litigation or adjudging the entire matter in litigation as to 

one or more parties”). 

¶19 A final order or judgment does more than merely decide the issues in a 

matter; it declares or pronounces the consequences of its decision so as to terminate, or in 

other words dispose of, the matter as to one or more parties. See Adjudge, Dictionary.com, 

https://www.dictionary.com/browse/adjudge (last visited Oct. 27, 2023) (defining 

“adjudge” as “to declare or pronounce formally”); see also Wambolt, 299 Wis. 2d 723, ¶36 

(“We have consistently articulated the test for a document’s finality in terms of ‘dispose’ 

rather than ‘decide.’”).

¶20 Additionally, for the sake of clarity, our supreme court has required that 

“final orders and final judgments state that they are final for purposes of appeal.” Admiral, 

339 Wis. 2d 291, ¶28; Wambolt, 299 Wis. 2d 723, ¶44.

¶21 However, the court has also qualified that “neither the label of a document 

nor the subsequent actions taken by the circuit court is dispositive of that document’s 

finality under [WIS. STAT. §] 808.03(1).” Wambolt, 299 Wis. 2d 723, ¶30 (addressing the 

requirement that the document contain explicit language that disposes of the entire matter 

in litigation); see also Admiral, 339 Wis. 2d 291, ¶29 (the absence of a finality statement 

is not dispositive when the order or judgment unambiguously disposes of the entire matter
No. 2022AP1683

9

in litigation between the parties). Rather, because “there may be final orders and judgments 

that arguably dispose of the entire matter in litigation as to one or more of the parties, but 

which do not contain a clear statement that they are the documents from which appeal of 

right may follow ... the appropriate course is to liberally construe documents in favor of 

timely appeals.” Wambolt, 299 Wis. 2d 723, ¶46. 

¶22 Whether the circuit court order is a final order or judgment for the purposes 

of appeal is a question of law subject to our independent review. Id., ¶14. 

B. The Circuit Court Order

¶23 The circuit court order begins by reciting the appearances at the hearing on 

the summary judgment motion and then continues as follows: 

The Court having read the briefs and submissions of the parties and 

having heard the oral arguments of the parties and having made its 

ruling on the record, which ruling is incorporated herein;

IT IS HEREBY ORDERED that: 

1. For the reasons stated on the record, the Plaintiff’s motion 

for summary judgment is GRANTED;

2. Defendant is prohibited [from] performing additional 

repairs on the Property identified in the Complaint located at 402 

and 404 South Washington Street in New Lisbon, Wisconsin

(“Property”);

3. Plaintiff is permitted to enter the real estate containing the 

Property [at] a date and time convenient for it to raze the Property 

and restore the real estate;

4. Plaintiff is awarded the cost of the razing to be approved 

by the Court after completion.

¶24 In the “ruling” referenced in the circuit court order, the court determined that 

Muller failed to dispute the facts set forth in the City’s affidavits supporting its motion 

because Muller did not submit any affidavits showing that he or anyone else worked on the 
No. 2022AP1683

10

property or that any of the conditions described in the inspection report were repaired since 

the City sent the request for consent letters. The court referenced the following undisputed 

facts based on the City’s affidavits. The City’s letters—seeking Muller’s consent to 

inspection of the property and informing him that, if consent was not granted, the City 

would obtain an inspection warrant—were sent by certified mail to Muller. The court 

issued the inspection warrant based on a City officer’s affidavit detailing the citizen 

complaints of rats on the property, the City’s records showing that the property did not 

have running water, the City’s observations of dilapidated and hazardous conditions on the 

property, and Muller’s failure to respond to the City’s efforts to contact him about the 

property. The inspection report described and attached pictures of numerous conditions 

that rendered the building on the property dangerous and uninhabitable and which required 

major repairs, the cost of which would greatly exceed 50% of the building’s value. Muller 

had almost a year to try to make repairs from when the September 2021 request for consent 

letters were sent to when the City filed its complaint attaching the inspection report in 

August 2022. The time for making any repairs had passed. After stating these undisputed 

facts, the court said that it was granting the City’s motion for summary judgment and that 

it “will enter a raze order,” Muller “cannot ... fix up the property,” and Muller “will be 

responsible for the costs.” 

C. Analysis

¶25 By its terms, the written circuit court order explicitly disposes of the entire 

matter in litigation between the parties. The circuit court order explicitly authorizes the 

City to “enter the real estate containing the Property,” “to raze the Property,” and to “restore 

the real estate” at Muller’s expense, as the City requested in its complaint. Thus, the circuit 

court order grants the City all of the relief that it requested, and leaves only the execution 

of its order authorizing the City to raze the building on the property at Muller’s expense to 

be enforced. See Shuput, 109 Wis. 2d at 169. 
No. 2022AP1683

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¶26 Moreover, this is not a case in which a written order purports to dispose of 

the entire matter in litigation, but does not actually do so because substantive issues remain 

for the court’s determination. See Admiral, 339 Wis. 2d 291, ¶31. In the course of its oral 

ruling, the court addressed and rejected Muller’s arguments in opposition to the City’s 

request for relief, specifically, his challenge to the execution of the inspection warrant 

without his consent, and his implicit argument that he should be given the opportunity to 

repair the property. 

¶27 A closer review of the opinion in Admiral, 339 Wis. 2d 291, is instructive 

here. In that case, Admiral timely appealed the circuit court’s judgment providing that it 

was a final judgment for purposes of appeal. Id., ¶18. However, the circuit court had 

issued an earlier decision and order granting the defendant’s motion for summary judgment 

and dismissing the case, and Admiral’s appeal was not timely as to that decision and order. 

Id., ¶¶16, 20. Thus, the question before the supreme court was whether the circuit court’s 

earlier decision and order was a final order for purposes of appeal. Id., ¶22. 

¶28 The supreme court noted that the earlier decision and order stated, “The court 

hereby orders this case dismissed.” Id., ¶30. The court continued, “On its face, that 

language explicitly disposes of the entire matter in litigation between the parties.” Id. 

However, neither the summary judgment motion nor the decision and order addressed the 

defendant’s counterclaim for attorney fees. Id., ¶32. The supreme court noted that, 

generally, the pendency of a claim for attorney fees does not affect the finality of a 

judgment that disposes of the matter in litigation. Id., ¶33 & n.13, n.14. In each of the 

cases cited by the court, the claim was made under a specific fee-shifting statute. Id. 

However, in the case before it, the defendant’s claim was not based on a fee-shifting statute 

or on another clearly stated legal theory. Id., ¶35. Under the circumstances, the court could 

not rule out the possibility that the counterclaim presented a substantive legal issue that 

remained unresolved. Id. The court concluded that the pendency of that legal issue 
No. 2022AP1683

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rendered the decision and order, which “arguably disposed of the entire matter in litigation 

between the parties,” ambiguous. Id. Accordingly, the court “construe[d] it as nonfinal, 

pursuant to our policy of construing any ambiguity to preserve the right of appeal.” Id., 

¶36.

¶29 Here, as stated, the only issue pending is the calculation of the cost of razing. 

All legal issues regarding whether the City is entitled to raze the building on the property 

at Muller’s expense, as it requested, are resolved, and the parties’ rights “adjudge[d],” see

id., ¶27, in the circuit court order. By granting all of the relief that the City requested, the 

circuit order unambiguously disposes of the entire matter in litigation between the City and 

Muller and, therefore, is final under WIS. STAT. § 808.03(1). 

¶30 The City asserts, without elaboration, that the circuit court order is not final 

in two respects: it does not state that it is final for purposes of appeal; and it provides that 

there will be further proceedings pertaining to the court’s approval of the City’s razing cost 

at which time the court will enter a “final monetary judgment.” However, neither alters 

our application of WIS. STAT. § 808.03(1). 

¶31 As stated above, that the circuit court order does not state that it is final for 

purposes of appeal is not dispositive of whether it is final for those purposes. See Orlando 

Residence, Ltd. v. Nelson, 2013 WI App 81, ¶9, 348 Wis. 2d 565, 834 N.W.2d 416 (“[T]he 

absence of a statement should not create nonfinality in an otherwise appealable order.”) 

(citing Admiral Ins. Co., 339 Wis. 2d 291, ¶29). 

¶32 Similarly, that the circuit court order qualifies that the award of the cost of 

razing is to be approved after the razing is completed is not dispositive of whether it is a 

final order. As we have explained, the circuit order explicitly grants the City all of the 

relief it requested. All that remains is the execution of the circuit court order, namely the 

razing at Muller’s expense and the calculation of the cost of the razing. Under the law 
No. 2022AP1683

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cited above, that both of these acts are to take place after the circuit court order does not 

affect its finality. 

¶33 Our conclusion is supported by case law ruling that the pendency of a claim 

for attorney fees under a specific legal provision does not affect the finality of a judgment 

that disposes of the matter in litigation. See Admiral, 339 Wis. 2d 291, ¶33. For example, 

in McConley v. T.C. Visions, 2016 WI App 74, ¶1, 371 Wis. 2d 658, 885 N.W.2d 816, the 

plaintiff appealed an order granting summary judgment and dismissing his complaint 

against the defendant. After entry of the dismissal order, the defendant moved for an 

assessment of attorney fees based on the contracts between the parties that allowed the 

prevailing party in any litigation relating to the contracts to recover reasonable attorney 

fees. Id. This court considered whether the appeal of the dismissal order was taken from 

a final order appealable under WIS. STAT. § 808.03(1) notwithstanding the pending claim 

for attorney fees. Id. Concluding that “the pending claim for attorney fees [did] not 

preclude the dismissal order from being a final order appealable as of right,” this court 

explained that “[i]t remains a ‘longstanding holding that the pendency of a claim for costs 

and fees does not affect the appealability of a judgment that otherwise disposes of the 

matters in litigation.’” Id., ¶¶1, 9 (quoting Admiral, 339 Wis. 2d 291 ¶33 n.14). 

¶34 Wisconsin courts have reached a similar conclusion in foreclosure 

proceedings, ruling that a foreclosure judgment is final even though a confirmation of the 

sale resulting from the judgment has yet to occur. See Anchor Sav. & Loan Ass’n v. Coyle, 

148 Wis. 2d 94, 101, 435 N.W.2d 727 (1989) (holding that a foreclosure judgment is final 

and appealable because “[t]he proceedings after the judgment of foreclosure ... ‘are 

analogous to the execution of a judgment and simply enforce the parties’ rights which have 

been adjudicated” (quoting Shuput, 109 Wis. 2d at 173)).
No. 2022AP1683

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¶35 We do not discern a meaningful distinction between the pendency of the 

calculation of the cost of razing from the pendency of the calculation of attorney fees or 

the confirmation of a foreclosure sale, in terms of the effect on the finality of the circuit 

court order. In sum, we conclude that the circuit court order here is final and, therefore, 

that we have jurisdiction over this appeal.5

II. Muller’s Arguments Against Summary Judgment

¶36 We now address Muller’s challenges to the circuit court order granting the 

City’s motion for summary judgment. To repeat, he makes three challenges, concerning 

his right to a jury trial, the special inspection warrant, and his right to make repairs.6

¶37 Summary judgment shall be granted “if the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” WIS. STAT. § 802.08(2). “When a motion for summary 

judgment is made and supported ... an adverse party may not rest upon the mere allegations 

or denials of the pleadings but the adverse party’s response, by affidavits ... must set forth 

specific facts showing that there is a genuine issue for trial.” Sec. 802.08(3). Affidavits in 

support of a motion for summary judgment “shall be made on personal knowledge and 

shall set forth such evidentiary facts as would be admissible in evidence.” Sec. 802.08(3).

 

5

 In light of our conclusion, we reiterate the directive in Wambolt v. West Bend Mutual Insurance 

Co., 2007 WI 35, ¶4, 299 Wis. 2d 723, 728 N.W.2d 670, that a raze order such as that issued here contain 

a statement on the face of the document that it is final for purposes of appeal.

6

 The City argues that Muller’s second challenge concerning the inspection warrant may be barred 

as untimely, and that Muller’s third challenge concerning his right to make repairs is barred as untimely, 

because Muller did not timely challenge the City order to raze the building on his property under WIS.

STAT. § 66.0413(1)(h). Section 66.0413(1)(h) provides that a person affected by a raze order may, within 

30 days of service of the raze order, “apply to the circuit court for an order restraining the building inspector 

... from razing the building or forever be barred.” We do not address this argument because we affirm the 

circuit court order on other grounds. 
No. 2022AP1683

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¶38 We review a grant of summary judgment independently, using the same 

methodology as the circuit court. Pertzsch v. Upper Oconomowoc Lake Ass’n, 2001 WI 

App 232, ¶7, 248 Wis. 2d 219, 635 N.W.2d 829. In determining whether there are any 

genuine issues of material fact—meaning “a reasonable jury could return a verdict for the 

nonmoving party”—“we construe all facts and reasonable inferences in the light most 

favorable to the nonmoving party.” Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 

648 (Ct. App. 1991); Thomas ex rel. Gramling v. Mallett, 2005 WI 129, ¶4, 285 Wis. 2d 

236, 701 N.W.2d 523. However, “the mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported motion for summary 

judgment; the requirement is that there be no genuine issue of material fact.” Baxter, 165 

Wis. 2d at 312 (emphasis and quoted source omitted). 

A. Right to Jury Trial

¶39 Muller argues the circuit court deprived him of his constitutional and 

statutory right to a trial by jury. He specifically asserts that he is entitled to a jury trial on 

the issue of whether he was served with the City order to raze the building on the property. 

¶40 Muller’s claim fails because he did not file any affidavits or other evidentiary 

material either to support the arguments and factual assertions he made in his circuit court 

brief and at the hearing in opposing the City’s summary judgment motion, or otherwise to 

dispute the facts presented in the City’s affidavits supporting the City’s motion and request 

for relief. Regarding his specific identification of a jury issue, whether he was served with 

the City order, the City presented sworn documents certifying that Muller was personally 

served with the City order, and Muller did not present any evidence to the contrary. Thus, 

there was no triable issue of material fact on any issue to present to a jury. See Maynard 

v. Port Publ’ns, Inc., 98 Wis. 2d 555, 562-63, 297 N.W.2d 500 (1980) (“The moving party 

must ‘establish a record sufficient to demonstrate to the satisfaction of the court that there 
No. 2022AP1683

16

is no triable issue of material fact on any issue presented.’” (quoting Heck & Paetow Claim 

Serv., Inc. v. Heck, 93 Wis. 2d 349, 356, 286 N.W.2d 831 (1980))). 

¶41 While Muller is a pro se litigant for whom “some leniency may be allowed,” 

Waushara County v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992), “neither a 

[circuit] court nor a reviewing court has a duty to walk pro se litigants through the 

procedural requirements or to point them to the proper substantive law.” Id.

¶42 The summary judgment statutes cited above explicitly allow controversies to 

be resolved without a jury trial when there are no disputed material facts, because there is 

nothing to try. See Lasky v. City of Stevens Point, 220 Wis. 2d 1, 5, 582 N.W.2d 64 (Ct. 

App. 1998); Rollins Burdick Hunter, Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d 

752 (1981) (“The purpose of the summary judgment procedure is not to try issues of fact 

but to avoid trials where there is nothing to try.”). Here, because Muller did not submit 

any affidavits placing material facts in dispute, he fails to show that he was deprived of his 

right to a jury trial.

B. Special Inspection Warrant

¶43 Muller argues that the statutory requirements for a special inspection warrant 

to be issued pursuant to WIS. STAT. § 66.0119(2) were not satisfied and, therefore, his 

rights under the Fourth Amendment of the United States Constitution were violated when 

the building inspector inspected the property without Muller’s permission. Assuming 

without deciding that the validity of the special inspection warrant is a defense to the entry 

of a circuit court order in a case like this, we explain why we reject Muller’s argument that 

the special inspection warrant here was invalid.

¶44 The Wisconsin legislature has authorized the issuance of a special inspection 

warrant for such purposes as “health” and “safety,” with the qualification that, “for 
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inspection of personal or real properties which are not public,” an inspection warrant may 

be issued “only upon showing that consent to entry for inspection purposes has been 

refused.” WIS. STAT. § 66.0119(1)(a), (2). Muller argues that he “never refused an 

inspection.” 

¶45 It is undisputed that, on September 2 and September 29, 2021, the City sent 

by certified mail letters to Muller seeking Muller’s consent to inspect the property. Each 

letter asked Muller to sign and return an attached “Letter of Consent” in the enclosed selfaddressed stamped envelope, provided the names and phone numbers of two persons 

Muller could contact with questions, and informed Muller that, “If consent is not granted, 

the City of New Lisbon shall have the right to pursue actions to obtain an Inspection 

Warrant.” The City received no response from Muller. About four months after the City 

sent Muller the second letter seeking his consent, the City sought the special inspection 

warrant on January 19, 2022, obtained the warrant on January 28, 2022, and conducted the 

inspection pursuant to the warrant that same day. 

¶46 We understand Muller to be arguing that his failure to respond to the letters 

does not establish his refusal to consent. To address Muller’s argument, we must discern 

the meaning of the word “refused” as used in WIS. STAT. § 66.0119(2). “‘The 

interpretation and application of statutes present questions of law that we review 

independently.’” Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶9, 400 Wis. 2d 

417, 970 N.W.2d 1 (quoted source omitted). Statutory interpretation “‘begins with the 

language of the statute.’ If the meaning of the language is plain, our inquiry ordinarily 

ends.” Id., ¶11 (quoted source omitted). We give statutory language its common, ordinary 

and accepted meaning. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 

271 Wis. 2d 633, 681 N.W.2d 110. 
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¶47 Here, the legislature does not define the word “refuse” in the statute. See 

WIS. STAT. § 66.0119. However, the word is generic and capable of a common 

understanding. See Kalal, 271 Wis. 2d 633, ¶45. As guidance, we consult case law that 

“may illumine how we have previously interpreted or applied the statutory language” at 

issue. Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373. 

Analyzing a separate statute, our supreme court defined the word “refuse” as an 

“unwillingness to do, accept, give, or allow.” Kalal, 271 Wis. 2d 633, ¶54 (citing The 

American Heritage Dictionary of the English Language 1519 (3d ed.1992)). The court 

further explained that a refusal “may be proven directly or circumstantially by inferences 

reasonably drawn from words and conduct” and “can be open and explicit, as in a statement 

to that effect, or it can be indirect and inferred, as in a long silence or period of inaction.” 

Id., ¶55.

¶48 Applying this common definition to the undisputed facts here, we conclude 

that, although Muller did not expressly refuse entry for inspection, his four-month-long 

silence and period of inaction gave rise to the only reasonable inference that Muller refused 

to consent to entry for inspection. Muller does not explain how his failure to respond to 

the letters supports a reasonable inference to the contrary. Accordingly, he fails to show 

that the statutory requirements under WIS. STAT. § 66.0119(2) for the City to obtain and 

execute a special inspection warrant were not satisfied, such that the City conducted the 

inspection in violation of his constitutional rights.

C. Right to Make Repairs

¶49 Muller argues that he was denied his right to make repairs and otherwise 

correct any alleged violations pursuant to WIS. STAT. § 66.0413(1)(b)1. 

¶50 Pursuant to WIS. STAT. § 66.0413(1)(b)1., “if a building is old, dilapidated, 

or out of repair and consequently dangerous, unsafe, unsanitary, or otherwise unfit for 
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human habitation and unreasonable to repair,” the municipality may “order the owner of 

the building to raze the building or, if the building can be made safe by reasonable repairs, 

order the owner to either make the building safe and sanitary or to raze the building, at the 

owner’s option.” Under § 66.0413(1)(c), “if a [municipality] determines that the cost of 

repairs of a building ... would exceed 50 percent of the [building’s value], the repairs are 

presumed unreasonable....” In other words, “[t]here is a general presumption that repairs 

are unreasonable when the municipality or its designee determines that the cost to repair a 

building would exceed fifty percent of the [building]’s value.” Auto-Owners Ins. Co. v. 

City of Appleton, 2017 WI App 62, ¶12, 378 Wis. 2d 155, 902 N.W.2d 532. Thus, an 

owner has a statutory right to elect to repair a building rather than raze it only if the cost of 

the repairs is less than 50% of the building’s value.

¶51 In this case, the City’s determinations that the building on the property was 

“out of repair” and that repairs could not be reasonably made are undisputed. The City 

filed affidavits establishing that the building was in a dangerous state of disrepair and that 

the cost of repair exceeded 50% of its value. Muller did not file any affidavits contradicting 

the City’s determinations. Accordingly, Muller had no right to make repairs under WIS.

STAT. § 66.0413(1)(b)1.

CONCLUSION

¶52 For the reasons stated above, we conclude that the circuit court order granting 

the City’s motion for summary judgment and permitting the City to raze the building on 

Muller’s property at Muller’s expense is a final order, and we affirm the order.

By the Court.—Order affirmed.