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On February 28th, 2012 the Wisconsin Supreme Court adopted our position of the property owner relative to the application of summary judgment to forfeiture procedures in State v. Ryan , 2012 WI 16 (Feb. 28, 2012).

In this case, the state alleged that our client, Basil E. Ryan, Jr. unlawfully placed and maintained a sunken barge on the bed of the Menomonee River in violation of Wis. Stat. ch. 30 (2009-2010).  The circuit court concluded that the doctrine of judicial estoppel precluded Ryan from asserting that he did not own the barge, and granted the State’s summary judgment motion  leaving only the penalty/remedy phase of this forfeiture action where the circuit court imposed a penalty of $37,691.25 under the forfeiture statute against Ryan.

Basil E. Ryan, Jr. (“Ryan”) was the previous owner and one the occupants of the property located at 260 North 12th Street, in the City of Milwaukee, Milwaukee County, Wisconsin, until the Wisconsin DOT took the property through an eminent domain proceeding for the Marquette Interchange Project.

The title to the barge in question was not under Ryan’s name, nor under any entity that he was related to.  The owner of the barge, KO OP Marine, paid Ryan’s corporation, B.E. Ryan Enterprises, Inc, a fee in exchange for storing the barge on Ryan’s property at 260 North 12th Street.  Eventually, KO OP Marine stopped paying the storage fee and Ryan’s corporation maintained possession of the barge and corresponding lien rights for the unpaid storage.  However, Ryan’s corporation never foreclosed its lien rights against the barge to gain title to it.  Ryan never personally owned or controlled the barge in any way.  Additionally, Ryan’s employees maintained the barge during the duration it was stored at their docks until the property was ultimately acquired by the Wisconsin DOT in 2005 during the eminent domain action.

Shortly thereafter, at a hearing to determine whether the DOT made available a comparable replacement property for Ryan, the court ordered that Ryan remove all if his belongings from the property, including the barge, and vacate the premises.  The issue of barge ownership was never discussed at this hearing and later, the state agreed to store the barge for the next 12 months in a verbal agreement made between the state and Ryan’s attorney at the time.

On or about July 13, 2006, after the WisDOT acquired Ryan’s property at 260 North 12th Street by eminent domain, the barge partially sank into the Menomonee River and became moored on the river bed.  After the barge sank, the state filed a complaint arguing the sunken barge was obstructing a navigable waterway and 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 concluded that the doctrine of judicial estoppel precluded Ryan from asserting that he did not own the barge, and granted the State’s summary judgment motion .  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.

None of the evidence suggesting that Ryan was not the owner of the barge was ever considered by a jury, because Ryan was denied the right to a trial when the trial granted the summary judgment motion on judicial estoppel grounds.

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.

Read our Supreme Court Brief

Read the Supreme Court Decision