Defendant in sunken barge case gets second chance to disclaim
A defendant forced to pay nearly $38,000 in fines for a sunken
barge on the Menomonee River can pursue a jury trial to argue that he
did not own the barge, the Wisconsin Supreme Court says.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
1, 2012 – A Milwaukee man will have another shot to argue that he
didn’t own the floating barge that sank in the Menomonee River in
2006 and should not be responsible for the hefty fine levied against
him, the Wisconsin Supreme Court recently determined.
v. Ryan, 2012 WI 16 (Feb. 28, 2012), the court unanimously
ruled that the doctrine of judicial estoppel does not
prevent Ryan Basil Jr. from disclaiming ownership of the 120-foot
barge, which was moored to concrete stays at Ryan’s former marina
In addition, a majority ruled that summary judgments are not permitted
in actions seeking forfeitures for violations under Wis. Stat. ch.
30, regulating navigable waterways, harbors and navigation. Thus, it
was error for the circuit court to grant summary judgment for the
In 2005, the Wisconsin Department of Transportation (WisDOT) used its eminent domain power to take
Ryan’s Menomonee Valley business property. A jury awarded Ryan $2
million in just compensation, an award the state supreme court upheld
in December 2011.
In addition, the circuit court had ordered Ryan to remove his personal
property, including the barge, from the premises and vacate the
property. Initially, Ryan didn’t remove the barge.
After it sank, the state filed a complaint arguing the sunken barge was
obstructing a navigable waterway in violation of Wis. Stat. sections 30.10(2)
The state asserted that the “undisputed facts establish that Ryan
owns the barge and has maintained an obstruction and structure in the
form of the barge on the bed of the Menomonee River without a permit.”
The circuit court granted summary judgment to the state, imposing a
$37,691 fine. An appeals court affirmed. But the Wisconsin Supreme Court
The supreme court concluded that documents relied upon by the state to
establish Ryan’s “undisputed” ownership of the barge
were not enough to allow application of the judicial estoppel doctrine and, in any event, summary
judgment is not allowed in ch. 30 cases.
The judicial estoppel doctrine prevents parties from
asserting inconsistent positions in different legal proceedings,
according to the supreme court’s decision.
The circuit court applied the judicial estoppel doctrine to
prevent Ryan from asserting that he did not own the barge and thus was
not subject to the $37,691 forfeiture imposed under ch.
In applying the doctrine, the circuit court relied on documents
submitted in the earlier eminent domain proceedings, which suggested
Ryan was the owner of the barge.
However, the supreme court explained that Ryan’s earlier
positions were not “clearly inconsistent” with his current
position of non-ownership, and did not demonstrate that Ryan
“convinced the first court” that he or his corporate
entities owned the barge.
“There is no evidence that the ownership of the barge was even at
issue during the proceedings before the circuit court,” wrote
Justice Ann Walsh Bradley.
That means Ryan is now free to assert that he did not own the barge. In
addition, the circuit court must decide the forfeiture issue without
deciding on summary judgment.
Summary judgment not applicable in ch. 30
Noting that the supreme court has never addressed the issue, the
majority (four justices) ruled that summary judgment is not available
when pursuing actions under ch. 30.
Summary judgment allows circuit courts to decide cases, as a matter of
law, where there are no genuine issues of material fact for a jury to
The supreme court explained that Wis. Stat. ch.
23 details the procedures for prosecuting ch. 30 violations,
including the option to file a complaint and summons, which then allows
a defendant to plead guilty, not guilty, or no contest by appearing
before the court.
“The phrase ‘summary judgment’ does not appear
anywhere in Chapter 23,” explained the majority, which rejected
the argument that section 23.69
permits summary judgment.
Section 23.69 states that, “Any motion which is capable of
determination without the trial of the general issue shall be made
“Although it is true that summary judgment is, by definition, a
‘motion which is capable of determination without the
trial,’ it does not follow that Wis. Stat. § 23.69
expressly permits motions for summary judgment,” Justice Bradley
The majority also rejected the state’s argument that Ryan filed a
written answer in lieu of appearance, upon agreement, and that provided
a basis for a summary judgment decision.
“Although the parties agreed to the filing of a written answer in
lieu of an appearance, such an agreement cannot provide the basis to
impose upon the statutory scheme a summary judgment procedure that does
not otherwise exist,” Justice Bradley wrote.
Ryan can now proceed to trial to dispute the claim that he owned the
barge giving rise to the forfeiture action against him. He says a third
party owned the barge, but Ryan’s marina business simply took
control and obtained lien rights for unpaid storage fees. He also argues
that WisDOT caused the barge to sink by removing certain cables that
helped keep it afloat.
According to Ryan’s attorney, Dan Biersdorf, a successful result
on the ownership issue may allow Ryan to recover the approximately
$200,000 he incurred to remove the sunken barge in December 2010.
“Essentially, we are starting at square one with these
issues,” Biersdorf said.
Justice Annette Ziegler wrote a concurring opinion, joined by Justice
Michael Gableman. Those justices agreed that Ryan was not judicially
estopped from disclaiming ownership of the barge, but disagreed that
summary judgment is never permitted in ch. 30 forfeiture actions.
“I conclude that summary judgment is permitted Chapter 30
forfeiture actions such as this one, in which the action is commenced by
a complaint and summons and the defendant appears by filing an answer to
the complaint,” Justice Ziegler wrote.
However, the concurring justices ruled that summary judgment, if
allowed, would have been improper because Ryan set forth genuine issues
of material fact regarding ownership.
Dan Biersdorf and E. Kelly Keady of Biersdorf of
Associates S.C., represented Basil Ryan Jr. Assistant Attorney
General Joanne Kloppenburg
represented the state.