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.
September 2, 2026 A party may file with the Supreme Court a Samuel A. Christensen 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. 2025AP839 Cir. Ct. No. 2024CV479
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II
CITY OF FOND DU LAC,
PLAINTIFF-RESPONDENT,
V.
DENNIS J. MURRAY,
DEFENDANT-APPELLANT.
APPEAL from order of the circuit court for Fond du Lac County:
TRICIA L. WALKER, Judge. Affirmed in part, reversed in part and cause remanded with directions.
¶1 GUNDRUM, J.1 Dennis J. Murray appeals from an order of the circuit court affirming a judgment of the municipal court of the City of 1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
Fond du Lac (City) entered after a trial to that court. He asserts the municipal court erred in finding him guilty of violating CITY OF FOND DU LAC, WIS., ORDINANCES art. IV, § 720-14(C) (2005), which ordinance regulates “[p]rohibited vehicles and equipment,” by parking two trucks in the driveway of his residence. He maintains one of the two trucks was “servicing the premises” and the other is a “tow truck,” and therefore neither is prohibited by the ordinance. Alternatively, he contends the forfeiture imposed by the municipal court is “constitutionally excessive.” (Formatting altered.) For the following reasons, we affirm in part and reverse in part.
¶2 This matter involves review of a municipal court judgment following a trial before that court. On appeal from the municipal court pursuant to WIS. STAT. § 800.14, the circuit court upheld the municipal court’s judgment, based on the record that had been before the municipal court, that Murray violated CITY OF FOND DU LAC, WIS., ORDINANCES art. IV, § 720-14(C). Murray appeals.
¶3 On appeal, we review the municipal court’s judgment, not the order of the circuit court. Village of Williams Bay v. Metzl, 124 Wis. 2d 356, 361-62, 369 N.W.2d 186 (Ct. App. 1985). We review the judgment in accord with WIS. STAT. § 800.14. Subsection (5) of that statute provides for review of the municipal court proceedings, including review of the transcript of a trial before that court. Subsection (5)
limits the circuit court to an examination of the transcript to determine whether the evidence supports the municipal court decision. Review under subsec. (5) is analogous to appellate review of a trial to the court under [WIS. STAT. §] 805.17(2) …. As a result, findings of fact of the municipal court should not be set aside by the circuit court unless clearly erroneous and due regard should be given to the opportunity of the municipal court to judge the credibility of the witnesses.
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The court of appeals applies the same standard of review as the circuit court. We search the record for facts to support the municipal court’s findings of fact.
Metzl, 124 Wis. 2d at 361-62 (footnotes omitted; citations omitted). We review de novo the interpretation of a municipal ordinance. A&A Enters. v. City of Milwaukee, 2008 WI App 43, ¶16, 308 Wis. 2d 479, 747 N.W.2d 751. “The rules for the construction of statutes and municipal ordinances are the same.” Baldwin v. Milwaukee County, 2018 WI App 29, ¶18, 382 Wis. 2d 145, 913 N.W.2d 194 (citation omitted). “We start with the language of the applicable ordinance[, and i]f the meaning of the ordinance ... is clear, then” we “simply apply the clear meaning of the [ordinance ...] to the facts before [us].” Id. (second alteration in original; citation omitted).
¶4 The ordinance at issue prohibits the parking or storing of certain vehicles, including commercial walk-in trucks, in a residential area, in this case at Murray’s home, except that the ordinance allows for such parking and storing of a truck if it is parked or stored “for the purpose of servicing the premises” or if the truck equipped with power attachments or tools is a “tow truck.” See CITY OF FOND DU LAC, WIS., ORDINANCES art. IV, § 720-14(C). Murray does not dispute that the two vehicles he keeps in his driveway, and for which he received a citation from the City, constitute trucks that may not be lawfully parked or stored there if they do not meet at least one of these two exceptions. He contends, however, that one of the vehicles meets the exception as a tow truck and the other is parked or stored “for the purpose of servicing the premises” and meets that exception.
¶5 Following the trial, the municipal court concluded that Murray violated the ordinance. The circuit court agreed. We now do as well.
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¶6 At the trial, the “code enforcement officer” for the City testified that he has his “commercial credential” and is also “a home inspector, building inspector.” He agreed he is a code enforcer for the City, with his duties including “investigating and issuing citations for violations of the City’s building code and zoning code.” He explained that Murray lived in a house in a residential area and kept “two commercial walk-in trucks … parked in the driveway.” After receiving a complaint, the enforcement officer investigated, sent Murray a notice of the violation, and, after Murray failed to correct the violations, issued him a citation.
¶7 The code enforcer testified that the trucks were “commercial walk-in trucks,” which
can only be there for servicing the premises or … for example … if you have a moving truck there and you’re moving items in and out of your house or you hire a carpenter who’s there doing work and has a commercial walk-in truck, things of that nature. Delivery … of a new washer and dryer, things of that nature, [where the truck is there on] a temporary basis … for servicing the property.
¶8 The code enforcer further testified that after Murray received the notice of violation, he contacted the code enforcer, “[s]tat[ing] that basically his livelihood was with these … commercial walk-in trucks, that he did some sort of a service business.” Murray told the code enforcer that he uses one of the trucks “to go out and service—I’m not sure what the service was, but he gets called away.” The code enforcer testified that when he had asked Murray what he used the second truck for, “he indicated the other truck he just used for storage of parts and things that he needed for his business there at the property.” From July through September 2024, the court enforcer observed at least one of the trucks parked at the property on a dozen separate dates.
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¶9 Murray testified that his truck was “not a commercial truck,” but his “personal business use truck,” adding,
[t]his truck is my office. This is where I [go to] conduct phone calls, to get out of the rain, to read service manuals, to order parts when I need to look at a book and a parts breakdown sheet that they e-mail me. I also go in there to change clothes if I get oil dumped on me on whatever. I also go in there to put on—take my coveralls, my winter coveralls. It’s also my break room where I take my lunches. And then during inclement weather, like if there’s a rain shower or something, I can just go in there soaking wet and not destroy the inside of my car, my truck.
….
There is no commercial use of my vehicle. Whenever I drive my truck to and from my job site, I’m losing money. It cost[s] me money to leave my driveway and not get paid till I get to a job site. The only time I get paid is if I am called to go on a service call.
¶10 Murray further expressed that he believed he should be viewed like a “tow truck operator” because “that is the same job that I do,” noting that tow truck operators will get called to the side of the road to put a spare tire on a vehicle with a flat tire.
I go on service calls. I fix people’s vehicles that are broke down on the side of the road. On occasion … I go to other people’s businesses that are broke down…. I go to different locations…. So it’s not like I leave my house and go to work one place each and every day.
Murray also testified that “[t]he other vehicle, unbeknownst to [the code enforcer], is used to service my open building permits and all the other permitted activities I’m permitted to do by the City on my property.”
¶11 Re-called to the witness stand, the code enforcer further described a commercial walk-in truck generally as “a truck with a box in the back that opens up for like moving purposes where you … open and close the door.” He added
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that Murray’s trucks at the property were not tow trucks because “[a] tow truck is … a vehicle designed to pick up a vehicle and drag it, take it back for repair…. [T]hey have … mechanisms in the back that lift it and pull it up on the thing, pull it up. That’s basically what they’re designed for, to recover a vehicle and take it somewhere.”
¶12 Murray asserts on appeal that “[t]his case … turns on the construction of the exclusion of tow trucks from the ordinance.” He contends the ordinance does not apply to one of his trucks because he uses it to meet disabled vehicles on a roadway to repair such vehicles. Without citation to anything, he asserts that “[t]he ‘common, ordinary and accept[ed]’ meaning of a ‘tow truck’ is a vehicle that goes to the side of the road to help a disabled vehicle.” He further writes, “[a]s Mr. Murray testified, often a tow truck driver goes out to the side of the road and assists a stranded vehicle by conducting a minor repair such as a tire change.” He insists the City failed to prove that the trucks were commercial walk-in trucks (prohibited by the ordinance) and not tow trucks (excluded from the prohibition). Murray fails to persuade.
¶13 A “tow truck” is a truck that “tows.” Murray diverts focus from the nature of the truck itself and instead tries to get us to focus on actions commonly performed by a tow truck operator. Plainly stated, a truck that is not equipped to tow vehicles cannot properly be considered a “tow truck.” WIS. STAT. § 340.1(67n) defines a tow truck as “a motor vehicle that is equipped with mechanical or hydraulic lifting devices or winches capable of, and used for, the recovery or transport or both of wrecked, disabled, abandoned, used or replacement vehicles.” Similarly, Webster’s Dictionary defines “tow truck” as “an automotive vehicle with hoisting apparatus and mechanical equipment for towing wrecked or disabled automobiles, freeing automobiles stalled in snow or mud, or
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making minor repairs or adjustments at the roadside.” Tow truck, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993) (emphasis added). A tow truck is not merely a vehicle that can transport a mechanic to a disabled vehicle for repairs; it is, again, a vehicle that is equipped and used for towing other vehicles. Through the testimony of the code enforcer and the photos admitted into evidence, the City proved that the two trucks on Murray’s property were commercial walk-in trucks, not tow trucks.
¶14 Murray contends that the second truck at his property is exempt as it is parked or stored at his property “for the purpose of servicing the premises.” He asserts that “the only evidence of its use was provided by Mr. Murray’s testimony where he stated that [the] vehicle was ‘used to service [his] open building permits,’” and he insists the municipal court erred in concluding the exemption only applied where a truck was at a residential premises on a “temporary basis.” He notes that “the Ordinance does not say ‘temporary’” and contends that we “cannot disregard the assertion that the vehicle was ‘servicing the premises’ simply because it was there longer than a delivery,” and he emphasizes that “[n]othing about the Ordinance’s language indicates that a vehicle servicing the premises cannot be there overnight.” In response, the City, citing servicing, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/servicing (last visited Aug. 5, 2026), points out that a common dictionary definition of “servicing” is “to perform services for: such as: to repair or provide maintenance for[: e.g.,] serviced the furnace.”
¶15 To begin, Murray is incorrect in writing that “the only evidence of [the truck’s] use was provided by Mr. Murray’s testimony where he stated that [the] vehicle was ‘used to service [his] open building permits.’” Murray’s testimony on this point—that the second truck “unbeknownst to [the code
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enforcer], is used to service my open building permits and all the other permitted activities I’m permitted to do by the City on my property”—is unclear and undetailed and does not identify if he is even referring to the July through September 2024 time period relevant to the violations. Contrasted with this is the code enforcer’s testimony that when he spoke with Murray during the relevant time period, Murray told him he “just used [the second truck] for storage of parts and things that he needed for his business there at the property.” And, the code enforcer further testified that he was not aware of any open permits for Murray’s property during the relevant time period. Thus, the trial evidence actually provided stronger indication that, during the relevant timeframe, the second truck was not being used for servicing Murray’s own property.
¶16 Crediting the code enforcer’s testimony, the municipal court determined that Murray’s trucks do not satisfy the exemption because under the exemption
trucks are only allowed on a premise for temporary servicing or delivery or moving purposes. As an example, your furnace goes out, you have a furnace repair truck there while the furnace is being fixed, a plumbing truck for a plumbing issue, a moving truck if you're moving in or out. All temporary.
¶17 The full language at issue states: “The following vehicles and equipment, as well as similar vehicles and equipment, shall not be parked or stored in any residential district or on a lot used for residential purposes, except for the purpose of servicing the premises: ….” CITY OF FOND DU LAC, WIS., ORDINANCES art. IV, § 720-14(C) (2005). While nothing in this language indicates a truck would not qualify for this exemption if it were parked at a residence overnight while doing so in the course of servicing the premises, the language clearly does not allow for a truck to be stationed at a residence as a
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permanent parking/storage spot, as the evidence showed was the situation in this case. The municipal court read the ordinance as allowing a truck to be at a residence for the limited period of time necessary to service the residence, which is different from the residence being the long-term resting place for the truck. The most reasonable reading of the ordinance language is that it allows a truck to be at a residence for the purpose of servicing the property but requires the truck to leave when such service is complete. All indications here are that Murray used his residence as a permanent resting place for his trucks, which is not permitted under the ordinance.
¶18 Finally, Murray contends that the forfeiture imposed by the municipal court is “constitutionally excessive” under both the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and article I, section 6 of the Wisconsin Constitution. (Formatting altered.) The Excessive Fines Clause provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII; see also WIS. CONST. art. I, § 6. “The Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’” Austin v. United States, 509 U.S. 602, 609-10 (1993) (citation omitted). “If the goal of a civil forfeiture action is, at least in part, punishment, the forfeiture may not be constitutionally excessive.” State v. Boyd, 2000 WI App 208, ¶7, 238 Wis. 2d 693, 618 N.W.2d 251. Whether a forfeiture violates the Excessive Fines Clause is a question we review de novo. Id.
¶19 In response, the City asserts that “[t]his case is about a zoning code violation. It is considered to be a nuisance to have commercial vehicles parked in residential neighborhoods…. Nuisance abatement is not punishment and does not trigger an ‘excessive fines’ analysis.” In support of its assertion, the City cites
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City of Milwaukee v. Arrieh, 211 Wis. 2d 764, 772-73, 565 N.W.2d 291 (Ct. App. 1997) (citation omitted), in which we concluded the Eighth Amendment’s prohibition against the imposition of excessive fines did not apply to an abatement order issued after a building used as a drug house was declared a public nuisance because nuisance abatements have “never been considered to be ‘punishment’ and ha[ve] never triggered an ‘excessive fines’ analysis.”
¶20 We initially point out that the City does not provide any support for its statement that having commercial vehicles parked in a residential neighborhood is considered a public nuisance. While that may be the case, see CITY OF FOND DU LAC, WIS., ORDINANCES ch. 476, § 476-2B. (2005) (“[A]ny violation of the Code of the City of Fond du Lac, Wisconsin, that is not corrected within a reasonable time after notice from the City to a responsible party is a public nuisance.”), the City did not advance this case against Murray as a nuisance case or seek nuisance abatement. Instead, it issued Murray a citation for violating an ordinance. Because this is not a nuisance abatement case, Arrieh does not aid the City.
¶21 Apparently putting all its eggs in the Arrieh-nuisance basket, the City failed to respond to Murray’s argument, relying on Boyd, that the forfeiture imposed by the municipal court is “constitutionally excessive” because it is “grossly disproportional to the gravity of [his] offense.” See Boyd, 238 Wis. 2d 693, ¶11 (citation omitted). Murray recognized that this court adopted the proportionality test of United States v. Bajakajian, 524 U.S. 321, 333-34 (1998), in Boyd. Murray then applied the test to the facts of this case, factor by factor. Because the City did not address Murray’s argument relying on Boyd, we deem the City to have conceded that the forfeiture in this case should be addressed based on the proportionality test adopted in Boyd. See Charolais Breeding Ranches,
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Ltd v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“Respondents on appeal cannot complain if propositions of appellants are taken as confessed which they do not undertake to refute.” (citation omitted)); State v. Delebreau, 2014 WI App 21, ¶14 n.3, 352 Wis. 2d 647, 843 N.W.2d 441.
¶22 Based on the foregoing, we affirm in part and reverse in part. We affirm that part of the circuit court’s order affirming the judgment of the municipal court finding Murray guilty of violating CITY OF FOND DU LAC, WIS., ORDINANCES art. IV, § 720-14(C) (2005). We reverse that part of the order affirming the forfeiture imposed by the municipal court. We remand the matter to the circuit court with directions to return it to the municipal court with directions to impose an appropriate forfeiture and enter an amended judgment reflecting the revised forfeiture.
By the Court.—Order affirmed in part, reversed in part and cause remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.