Zygmund Jablonski, Jr. v. City of Ashland

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP1632 Cir. Ct. No. 2017CV172

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ZYGMUND JABLONSKI, JR., A TO Z PLUMBING & HEATING, INC.
AND TRIANGLE HOLDINGS, LLC,

PLAINTIFFS-APPELLANTS,

V.

CITY OF ASHLAND,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Ashland County:
EUGENE D. HARRINGTON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1632

¶1 PER CURIAM. Zygmund Jablonski, Jr., A to Z Plumbing &
Heating, Inc., and Triangle Holdings, LLC, (collectively, “the Jablonski entities”)
appeal an order granting summary judgment to the City of Ashland on the Jablonski
entities’ equal protection claim. We conclude the circuit court properly dismissed
the equal protection claim because the Jablonski entities’ complaint failed to state a
claim upon which relief could be granted. We therefore affirm.

BACKGROUND

¶2 Jablonski is a licensed plumber and is the owner of A to Z and
Triangle. Both A to Z and Triangle perform plumbing services for their customers,
which sometimes require them to perform work within the City’s public
right-of-way (“ROW”).

¶3 Chapter 501 of the City’s ordinances (“the Ordinance”) applies to
work performed in the ROW.1 As relevant to this appeal, § 501.05(c) of the
Ordinance provides that any person “requesting permission to obstruct a
right-of-way by excavation to install, reconstruct, or remove a permanent structure
shall complete, submit and receive a Permanent Right-of-way Permit,” subject to
certain listed conditions. One of those conditions, as set forth in § 501.05(c)(6),
provides that “City inspections are required for all sanitary, storm water, or water
system improvements, removal or repairs within the Right-of-way” and that “[a]ny
new installations or repairs to any part of the City sanitary, storm water, or water
systems must be inspected before covering the work.” Section 501.10(b) of the

1
The Ordinance was amended on January 12, 2016, prior to the events giving rise to this
appeal.

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Ordinance further provides that no permit shall be issued until the applicant has filed
with the City “proof of insurance … for general liability.”

¶4 Section 501.03(e) of the Ordinance states that “[p]ermit fees shall be
quadrupled for any work done, activity performed, or placement of items in the
right-of-way without first obtaining any required permit.” Section 501.05(d)(1), in
turn, provides that “[t]he Public Works Director may suspend or revoke a permit if
the permittee or permittee’s agent, employee, or contractor is violating or has
violated any provision of the permit or of applicable law.” Finally, § 501.11(e)
states that “[f]ailure to comply with the provisions of the approval or permit or
applicable law shall give cause for the City to prohibit issuance of additional permits
to the person or contractor who so violates.”

¶5 In June 2016, A to Z excavated in the ROW at a property located on
12th Avenue East in Ashland, in an attempt to fix a backed-up sewer at a home
located on that property. A to Z did not obtain an ROW permit from the City before
beginning its work. The Jablonski entities contend that an emergency existed which
prevented A to Z from obtaining a permit before starting to work in the ROW.
However, it is undisputed that A to Z’s equipment was at the 12th Avenue property
for at least two days before A to Z started performing work there. It is also
undisputed that the problem with backed-up pipes at the 12th Avenue property had
existed for at least eleven years before June 2016.

¶6 At some point after A to Z began its work at the 12th Avenue property,
someone from A to Z flagged down the City’s utility superintendent and told him
that A to Z was performing work at the property and would obtain an ROW permit
for the work. Later that day, Dennis Clark—who was at that time the operations
manager for the City’s Public Works Department and who later became the director

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of public works—went to the 12th Avenue property and observed that A to Z had
broken a storm water pipe during the course of its work. While waiting for city
employees to arrive to repair the storm water pipe, Clark determined that the
property’s sanitary line was level, instead of sloping downward away from the
property. Jablonski’s brother, who was the A to Z foreman at the 12th Avenue
property, told Clark that A to Z would fix the sanitary pipe so that it had an
appropriate slope.

¶7 Clark returned to the 12th Avenue property the following morning and
“was surprised to see that the excavation had been completely backfilled,” even
though the City had not yet inspected A to Z’s work, which Clark contended was
required under § 501.05(c)(6) of the Ordinance. Moreover, Jablonski’s brother
informed Clark that the sanitary line had been “installed level for about 3 or 4 feet.”

¶8 On June 23, 2016, Clark sent an email to Jablonski regarding the work
A to Z had performed at the 12th Avenue property. Clark noted that A to Z had not
obtained an ROW permit for that work and asked when Jablonski would “complete
the permit and provide the associated documents.” On June 30, 2016, Clark sent
Jablonski a follow-up letter stating that: (1) A to Z had worked in the ROW without
a permit at the 12th Avenue property; (2) the circumstances in which it did so were
not an emergency; (3) although A to Z told the City it would fix the sanitary line at
the 12th Avenue property so that it had an appropriate slope, A to Z ultimately
repaired the sanitary line in such a way that it was level for approximately four feet;
(4) although A to Z viewed the level sanitary line as being acceptable, it “may not
be in compliance with DSPS [Wisconsin Department of Safety and Professional
Services] requirements”; (5) A to Z backfilled the excavation at the 12th Avenue
property before the City completed an inspection; and (6) it had been one week since

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the work was completed, and A to Z still had not filed the appropriate paperwork to
obtain an ROW permit.

¶9 Clark’s June 30 letter informed Jablonski that because the work at the
12th Avenue property did not involve an emergency, “the [ROW permit] filing fee
is quadrupled per ordinance.” Clark also asked Jablonski to “obtain approval from
the DSPS that would permit the installation of a level sanitary lateral” and to “refrain
from additional work on this site or other sites within the City ROW until this matter
is addressed.” Finally, Clark informed Jablonski that “[i]f any additional work is
required after the proper paperwork has been completed and a permit issued, a new
insurance certificate will be required since the current one on file for A to Z does
expire July 1, 2016.”

¶10 In a letter dated July 5, 2016, Jablonski responded to Clark’s June 30
letter point-by-point, disputing most of Clark’s assertions. Jablonski indicated,
however, that he would be “providing [Clark] the permit application once it is
completed and proper signatures are obtained.” Jablonski ultimately filed the permit
application, but he did not pay the quadrupled fee or obtain approval from the DSPS
for the installation of the level sanitary line. As a result, the City refused to issue a
permit for the completed job at the 12th Avenue property and informed Jablonski
that it would not issue A to Z any new permits to undertake work in the City’s ROW
until the issues regarding the 12th Avenue property were resolved.

¶11 Thereafter, A to Z continued to request ROW permits for unrelated
work, despite the fact that it had not paid the quadrupled permit fee for the work on
the 12th Avenue property or obtained approval from the DSPS for the level sanitary
line. The City denied A to Z’s permit requests and reminded Jablonski that “[n]ew
permits for A to Z Plumbing to undertake work within the City ROW will not be

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approved until open matters with the permit for [the 12th Avenue property] are
resolved.”

¶12 In April 2017, the DSPS sent Jablonski an email stating that the repair
to the sanitary line at the 12th Avenue property was a “temporary fix” that was not
“code compliant.” The DSPS stated it would permit the temporary fix “until a
permanent code compliant installation has been completed.” After receiving a copy
of the DSPS’s correspondence, Clark wrote to Jablonski on June 1, 2017, stating
that the City would accept A to Z’s “temporary fix” at the 12th Avenue property for
ninety days and listing conditions A to Z needed to fulfill before the City would
issue new ROW permits to A to Z for other jobs. A to Z did not fulfill those
conditions.

¶13 Sometime during 2017, A to Z expressed an interest in participating
in the City’s lead pipe replacement project. The City initially included A to Z on its
list of prequalified contractors for the project. However, the City later determined
that A to Z could not participate in the project because it was not eligible to receive
ROW permits and was not current on all financial obligations owed to the City.

¶14 An additional dispute arose between Clark and Jablonski in
December 2017 regarding Triangle’s insurance coverage. The City’s attorney
concluded that an additional insured endorsement attached to A to Z’s insurance
policy did not provide Triangle with liability insurance coverage for damage caused
by Triangle’s acts. As a result, Clark denied certain ROW permit applications that
Triangle had filed “for not providing an insurance certificate.” Clark also advised
Jablonski that until Triangle provided a valid insurance certificate, it was not
approved to conduct work within the City’s ROW.

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¶15 The Jablonski entities filed the instant lawsuit against the City on
December 18, 2017. Count I of their complaint asserted a claim under 42 U.S.C.
§ 1983, on two grounds. First, Count I alleged that the City’s application of the
Ordinance to the Jablonski entities had “deprive[d] Mr. Jablonski of his
constitutional right to make a living in violation of the Privileges and Immunities
Clause of the Fourteenth Amendment.” Second, Count I asserted a “class of one”
equal protection claim, alleging that the Jablonski entities had been “unequally
treated and discriminated against (in relation to other contractors, businesses and
citizens) in regard to The City’s enforcement of [the Ordinance] (and other actions
against Plaintiffs that are not encompassed or authorized by [the Ordinance]) in
violation of the Equal Protection Clause of the Fourteenth Amendment.” Count II
of the Jablonski entities’ complaint asserted a claim for intentional interference with
contract.

¶16 The City ultimately moved for summary judgment on each of the
Jablonski entities’ claims. As relevant to this appeal, the City argued the Jablonski
entities’ complaint had failed to adequately plead a “class of one” equal protection
claim. The Jablonski entities filed a memorandum of law in opposition to the City’s
summary judgment motion. However, the City moved to strike a portion of that
memorandum because it exceeded the circuit court’s twenty-five-page length limit
for summary judgment briefs. In response, the Jablonski entities filed an amended
memorandum that complied with the length limitation. The City therefore agreed
to withdraw its motion to strike.

¶17 The circuit court held a hearing on the City’s summary judgment
motion on May 28, 2019. At the end of the hearing, the Jablonski entities sought
permission to supplement the summary judgment record with Clark’s deposition
testimony. The court granted that request, and on June 6, 2019, the Jablonski

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entities’ attorney sent the court a letter containing excerpts from Clark’s deposition
transcript and various other documents. The deposition excerpts and other
documents were not attached to an affidavit; they were simply enclosed with
counsel’s letter to the court.

¶18 The City objected to the Jablonski entities’ attempt to supplement the
record in this manner. However, the circuit court did not rule on the City’s objection
or otherwise address the additional documents the Jablonski entities had submitted.
Instead, the court granted the City’s summary judgment motion in an oral decision
on July 16, 2019. The court subsequently entered a written order dismissing the
Jablonski entities’ complaint in its entirety. The Jablonski entities now appeal.

DISCUSSION

¶19 On appeal, the Jablonski entities argue the circuit court erred by
granting the City summary judgment on their “class of one” equal protection claim.2
However, in so doing, the Jablonski entities have failed to comply with our Rules
of Appellate Procedure. WISCONSIN STAT. RULE 809.19(1)(d) and (e) (2017-18)3
require an appellant’s brief to include a statement of the case and an argument
section, both of which must include references to the appellate record. The
Jablonski entities’ brief contains no record citations; instead, it cites exclusively to
the Jablonski entities’ appendix. Such citations are improper, as an appendix is not

2
As noted above, the circuit court also granted the City summary judgment on the
Jablonski entities’ privileges and immunities claim and on their intentional interference with
contract claim. On appeal, the Jablonski entities concede that they “take no issue with” the court’s
dismissal of those claims. Accordingly, we do not address them further.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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the record. See United Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2,
302 Wis. 2d 245, 733 N.W.2d 322.

¶20 WISCONSIN STAT. RULE 809.19(1)(d) also provides that an appellant’s
statement of the case must include “a statement of facts relevant to the issues
presented for review.” Here, rather than setting forth the facts that are relevant to
their arguments, the Jablonski entities state that they “incorporate the detailed
accounting of facts set forth in [their] Memorandum of Law in Opposition to the
City of Ashland’s Motion for Summary Judgment, as well as [their] June [6], 2019
letter to the Circuit Court supplementing the summary judgment record, which
[they] highly encourage this Court to review.” The Jablonski entities then assert:
“After review of the memorandum of law and letter supplementing the record, this
Court should have a comprehensive understanding of the factual allegations that
assert that the City of Ashland has consistently and overtly held [the Jablonski
entities] out to a different standard than other citizens and contractors.” The
Jablonski entities’ failure to set forth the facts supporting their arguments in their
appellate brief is improper and has hindered our review of this appeal. We have no
duty to sift through the record to find facts that support a party’s argument. See
Mogged v. Mogged, 2000 WI App 39, ¶19, 233 Wis. 2d 90, 607 N.W.2d 662.

¶21 Moreover, we observe that the memorandum of law the Jablonski
entities direct us to review appears to be their original memorandum, which
exceeded the circuit court’s length limitation for summary judgment briefs and was
superseded by their amended memorandum. As such, the original memorandum is
not properly part of the summary judgment record. The Jablonski entities also direct
us to consider their June 6, 2019 letter to the circuit court, which attempted to
supplement the summary judgment record. As noted above, however, the

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documents enclosed with that letter were not attached to an affidavit and therefore
were not in proper evidentiary form.

¶22 “An appellate court is not a performing bear, required to dance to each
and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d
555, 564, 261 N.W.2d 147 (1978), superseded by statute on other grounds as
recognized in State v. Curtis, 218 Wis. 2d 550, 556, 582 N.W.2d 409 (Ct. App.
1998). The Wisconsin Court of Appeals, in particular, is a fast-paced, high-volume
court, and we “cannot serve as both advocate and judge.” State v. Pettit, 171
Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). We caution counsel for the
Jablonski entities that future violations of the Rules of Appellate Procedure may
result in sanctions, including the dismissal of an appeal or the striking of
noncompliant briefs. See WIS. STAT. RULE 809.83(2).

¶23 We now turn to the merits of the parties’ appellate arguments. We do
so despite the Jablonski entities’ rule violations because we are able to address the
arguments without the need to reference the Jablonski entities’ memorandum of law
and June 6, 2019 letter. As noted above, the Jablonski entities argue the circuit court
erred by granting the City summary judgment on their “class of one” equal
protection claim. We independently review a grant of summary judgment, using
the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264,
¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Under that methodology, our first step is to
determine whether the plaintiff’s complaint states a claim upon which relief can be
granted. Broome v. DOC, 2010 WI App 176, ¶9, 330 Wis. 2d 792, 794 N.W.2d
505. “This is the same analysis as that employed on a motion to dismiss for failure
to state a claim.” Id., ¶12. Whether a complaint states a claim upon which relief
can be granted is a question of law that we review independently. Data Key

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Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d
693.

¶24 To survive a motion to dismiss for failure to state a claim, a complaint
must contain “[a] short and plain statement of the claim, identifying the transaction
or occurrence or series of transactions or occurrences out of which the claim arises
and showing that the pleader is entitled to relief.” WIS. STAT. § 802.02(1)(a); see
also Data Key, 356 Wis. 2d 665, ¶20. Stated differently, “a complaint must plead
facts, which if true, would entitle the plaintiff to relief.” Data Key, 356 Wis. 2d
665, ¶21. When determining whether a complaint states a claim, we must accept all
well-pleaded facts in the complaint as true, but we cannot add facts to the complaint,
and we do not accept as true any legal conclusions stated therein. Id., ¶19.

¶25 “[T]he sufficiency of a complaint depends on [the] substantive law
that underlies the claim made because it is the substantive law that drives what facts
must be pled.” Id., ¶31. “If proof of the well-pleaded facts in a complaint would
satisfy each element of a cause of action, then the complaint has stated a claim upon
which relief may be granted.” Cattau v. National Ins. Servs. of Wis., Inc., 2019
WI 46, ¶6, 386 Wis. 2d 515, 926 N.W.2d 756, reconsideration denied, 2019 WI 84,
388 Wis. 2d 652, 931 N.W.2d 538.

¶26 Here, the parties dispute whether the Jablonski entities’ complaint
states a “class of one” equal protection claim.4 “The Equal Protection Clause guards

4
As an initial matter, the Jablonski entities argue that the circuit court erroneously
dismissed Count I of their complaint in its entirety—including their equal protection claim—based
on the court’s determination that Count I failed to state a privileges and immunities claim. The
Jablonski entities are not entitled to relief on this basis. Regardless of whether the circuit court
employed the correct analysis, we independently review whether the Jablonski entities’ complaint
adequately states a “class of one” equal protection claim. See Data Key Partners v. Permira
Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693.

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against government discrimination on the basis of race and other immutable
characteristics, but it also extends to protect people from so-called ‘class-of-one’
discrimination in which a government arbitrarily and irrationally singles out one
person for poor treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016).
“A class-of-one plaintiff must plead and prove that he [or she] was ‘intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.’” D.B. v. Kopp, 725 F.3d 681, 685-86 (7th Cir.
2013) (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601 (2008)).

¶27 The Jablonski entities’ complaint does not satisfy these pleading
requirements. First, the complaint does not allege that the City treated the Jablonski
entities differently from others who were similarly situated. To be similarly situated
for purposes of a “class of one” equal protection claim, a comparator “must be
identical or directly comparable to the plaintiff in all material respects.” Reget v.
City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). The Jablonski entities’
complaint names eight individuals or entities that the City allegedly treated
differently from the Jablonski entities when applying and enforcing the Ordinance.
However, the complaint does not allege that those comparators are similarly situated
to the Jablonski entities, nor does it allege facts that would permit one to draw that
conclusion.

¶28 At most, the complaint alleges that, like the Jablonski entities, the
named comparators performed work in the City’s ROW. But that allegation, in and
of itself, is insufficient to show that the named comparators are “identical or directly
comparable to [the Jablonski entities] in all material respects.” See id. As the City
aptly explains:

[I]n a busy public works office it is certainly possible that
things can “slip through the cracks” from time-to-time and

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that a[n] ROW permit could be issued inadvertently to an
applicant before the required fee had been paid or proof of
insurance received. Obviously, that person is not directly
comparable to one who refuses to obtain a permit, refuses to
provide required insurance information to the City, refuses
to correct non-code compliant work, etc.

Without any allegations that would give rise to an inference that the named
comparators are similarly situated to the Jablonski entities, their complaint fails to
state a “class of one” equal protection claim.

¶29 The Jablonski entities’ complaint is also deficient because it fails to
allege that the City lacked a rational basis for treating the named comparators
differently. To survive a motion to dismiss for failure to state a claim, a plaintiff
asserting a “class of one” equal protection claim “must allege facts sufficient to
overcome the presumption of rationality that applies to government classifications.”
Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992). The Jablonski
entities’ complaint does not allege any facts that, if proven, would overcome the
presumption that the City had a rational basis for its allegedly different treatment of
the named comparators.

¶30 Finally, in addition to alleging that the City treated the named
comparators differently from the Jablonski entities when applying and enforcing the
Ordinance, the complaint also asserts that the City violated the Jablonski entities’
right to equal protection by taking “other actions … that are not encompassed or
authorized by [the Ordinance].” However, a municipality can be sued under
42 U.S.C. § 1983 only where “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers” or where the action in
question amounts to a governmental “custom.” Monell v. Department of Soc.
Servs., 436 U.S. 658, 690 (1978).

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¶31 The Jablonski entities’ allegation that the City violated their right to
equal protection through “other actions” is therefore insufficient, as it does not
allege that the City acted pursuant to a policy statement, ordinance, regulation,
officially adopted or promulgated decision, or governmental custom. Moreover, the
Jablonski entities do not identify any similarly situated comparators with respect to
the City’s “other actions” or allege that the City lacked a rational basis for any
disparate treatment. As such, the Jablonski entities’ allegation that the City violated
their right to equal protection through “other actions” is insufficient to state a “class
of one” equal protection claim.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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