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Munger v. Seehafer

Court of Appeals of Wisconsin, District III

November 29, 2016

Bradley C. Munger and Summit Lake Association, Plaintiffs-Appellants, Estate of John M. Gleason, Sr., Plaintiff,
Richard W. Seehafer, Peter M. Vanderhei, Richard L. Hilger and Patrick M. Curran, Defendants-Respondents.

         APPEAL from judgments and an order of the circuit court for Langlade County, Cir. Ct. No. 2011CV168 FRED W. KAWALSKI and THOMAS G. GROVER, Judges. Affirmed.

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

          HRUZ, J.

         ¶1 Bradley Munger ("Munger") and the Summit Lake Association (the "Association") appeal from judgments and an order dismissing all of Munger and the Association's claims against Richard Seehafer, Peter Vanderhei, Richard Hilger, and Patrick Curran (collectively, the "Respondents").[1]On appeal, Munger and the Association assert the circuit court erroneously dismissed their intentional trespass and declaratory judgment claims, as well as a claim denominated "Public Nuisance and Inadequate Enforcement." They also assert the circuit court erroneously granted the Respondents summary judgment as to Munger and the Association's remaining claim, injury to real property.

         ¶2 We conclude the circuit court properly granted the Respondents' motion to dismiss. We hold that WIS. STAT. § 893.57, which sets forth the limitations period for intentional torts, applies to a claim alleging intentional trespass.[2] The Respondents' alleged trespass occurred in 2007; between the date of the alleged trespass and the time this action was filed, the legislature extended § 893.57's limitations period from two to three years. This action was not filed until 2011. Accordingly, we conclude the intentional trespass claim was untimely filed regardless of whether the longer limitations period applies. We also agree with the circuit court that the public nuisance/inadequate enforcement and declaratory judgment claims each fail to state a claim against the Respondents.

         ¶3 The circuit court also properly granted the Respondents' summary judgment motion. The court correctly concluded the Association lacks standing to bring a claim for injury to property, as neither the complaint nor the record plausibly suggests that the Association or its members, aside from Munger, have suffered any property damage as a result of the Respondents' conduct in 2007. As for the alleged damage to Munger's property, we conclude his claim is barred by the doctrine of issue preclusion as a result of his earlier efforts to obtain a Department of Natural Resources (DNR) permit to remediate the alleged damage. In those administrative proceedings, the DNR determined it was impossible to separate the damage allegedly caused by the Respondents from other natural and human activities that affected the relevant property. For these reasons, we affirm the circuit court in all respects.


         ¶4 Summit Lake is located in Langlade County and is a feeder lake for a five-lake chain. Munger and Gleason own property on opposite sides of Summit Lake's outlet creek. The creek flows about 300 feet from Summit Lake to the Forest Road culvert, then continues about 3, 000 feet to Greater Bass Lake and beyond. Sometime prior to September 1989, Munger placed riprap in the creek bed.[3] The DNR issued an after-the-fact permit for the riprap to Munger on September 9, 1989.

         ¶5 On October 20, 2007, DNR conservation warden Timothy Otto received a complaint of illegal dredging at the Summit Lake outlet creek. Otto was informed that Vanderhei had trespassed on Munger's property to remove material from the outlet. Otto went to Vanderhei's Greater Bass Lake residence and interviewed him. Vanderhei admitted that he, Seehafer, Hilger, and Curran had removed material, including a log and grass clippings, from the outlet creek. Vanderhei stated this material was preventing water from draining from Summit Lake. Munger alleges that, following a DNR investigation, the four Respondents were each issued five citations for various violations of WIS. STAT. ch. 30, which regulates navigable waters. According to Munger, these citations were ultimately dismissed upon the Respondents' agreement to plead guilty or no contest to criminal trespass to land, contrary to WIS. STAT. § 943.13.[4]

         ¶6 In April 2009, the DNR received a report of illegal structures placed at the Summit Lake outlet creek. A DNR investigator determined the following month that Munger had placed riprap beyond that area allowed by the 1989 permit. Munger agreed to remove the unauthorized fill, but he failed to timely do so. The gravel fill remained as of June 10, 2009, and Munger was issued two citations for obstructing navigable waters, contrary to WIS. STAT. § 30.15(1)(d).[5] Munger agreed to a finding of guilt as to one of the citations in exchange for dismissal of the other. The illegal fill was removed by late October 2009.

         ¶7 On March 8, 2010, Munger applied for a DNR permit seeking to place fill in the Summit Lake outlet creek in an effort to "repair damages" the Respondents caused in 2007. The Association supported the application. The DNR denied the permit, explaining that "[t]he various natural and human-made changes to the outlet over the years cannot be separated from one or the other with any certainty." Munger and the Respondents were not the only parties to have altered or affected the outlet creek and surrounding areas; the DNR concluded general public use of the waterway, as well as the Town of Upham's replacement of the Forest Road culvert, had impacted the area as well. Following significant public comment, the DNR concluded the proposed project "would materially obstruct navigation, " adversely affect water quality, have an undesirable impact on wetlands and organism migration, and would create a de facto dam at the Summit Lake outlet.

         ¶8 Munger and the Association requested and were granted a contested case hearing before an administrative law judge (ALJ) from the State of Wisconsin Division of Hearings and Appeals. On April 25, 2011, the ALJ upheld the DNR's decision denying the permit, concluding that "most of the damage from the 2007 dredging and/or clearing has already naturally restored itself. A stable and re-vegetated low-flow channel has reestablished itself as a waterway connection between these lakes." The ALJ agreed with the DNR's findings that the proposed fill would obstruct navigation, impair wetland function, and "have a detrimental impact upon the fishery of both lakes." In all, the ALJ found Munger and the Association "did not come close to carrying their burden of proof on the statutory standards for issuing this permit."

         ¶9 Shortly after the ALJ's decision was issued, Munger and the Association commenced this action against the Respondents and the State of Wisconsin.[6] The complaint included four counts: (1) intentional trespass to land (Count I); (2) physical injury to real property (Count II); (3) public nuisance and inadequate enforcement of WIS. STAT. ch. 30 as a result of the dismissal of the citations against the Respondents (Count III); and (4) declaratory judgment seeking an order declaring Munger's 1989 permit valid (Count IV).

         ¶10 Each of the Respondents raised the statute of limitations as an affirmative defense to the trespass claim, with Vanderhei and Hilger specifically raising the then-two-year statute of limitations governing intentional torts, WIS. STAT. § 893.57. In response to motions to dismiss on timeliness grounds, Munger and the Association argued that the statute of limitations applicable to all their claims was the six-year statute governing injury to real property, WIS. STAT. § 893.52. Alternatively, they argued that no statute of limitations barred their claims because they sought damages for a "continuing injury to real property."

         ¶11 Meanwhile, Munger and the Association were not content with the ALJ's decision upholding the DNR's denial of their remediation permit. As a result, and prior to filing this action against the Respondents, Munger and the Association had petitioned for judicial review of the agency decision. In the present action, in addition to seeking dismissal of Count I, the Respondents also requested dismissal of Counts III and IV because the substance of those claims was identical to the issues being litigated in the judicial review action. The Respondents asserted the WIS. STAT. ch. 227 review process was the exclusive means for Munger and the Association to obtain review of the DNR decision denying Munger's permit application. The circuit court ultimately affirmed the ALJ's decision in the judicial review action, observing that "more than one human intervention" had affected water flow at the outlet creek and rejecting the notion that Munger and the Association were entitled to a permit to restore the creek to the condition in which it existed prior to the 2007 trespass.

         ¶12 In the present action, the circuit court granted the Respondents' motion to dismiss Counts I, III and IV. As to Count I, intentional trespass, the circuit court concluded the claim was barred by the statute of limitations for intentional torts contained in WIS. STAT. § 893.57, as more than three years had elapsed between the date of the alleged offense and the date Munger and the Association commenced their action. With respect to Counts III and IV, the court concluded the "primary focus of the pleadings ... [is] the conduct of the DNR[, ]" and, as such, those matters were best addressed in the WIS. STAT. ch. 227 action for judicial review.

         ¶13 Munger and the Association filed a motion for reconsideration. In relevant part, they argued the statute of limitations pertaining to their trespass claim was the six-year statute for injury to property, WIS. STAT. § 893.52, not the shorter statute of limitations for intentional torts. Alternatively, they asserted that the "continuing nature of the harm" to their property precluded any statute of limitations from applying to bar their trespass claim. The circuit court rejected these arguments and denied the motion, reasoning that the trespass claim was distinct from the Count II injury to real property claim, the latter of which had not been dismissed as to the Respondents and could still be litigated. Thereafter, the court entered an order dismissing Counts I, III and IV against the Respondents.

         ¶14 In May 2014, the Respondents filed a motion for summary judgment on the surviving claim for injury to real property. The motion asserted summary judgment was appropriate against Munger and the Association for different reasons as to each plaintiff. First, the Respondents asserted that because Count II alleged damage only to Munger's property, the Association lacked standing to bring the claim. Second, the Respondents asserted that Munger's claim for property damage was barred by the doctrine of issue preclusion, because the "facts that give rise to the instant case have already been thoroughly developed and litigated before the DNR, the Division of Hearings and Appeals, and in Langlade County Circuit Court." The Respondents noted the DNR had conclusively determined any damage to the creek had been restored naturally and that it was impossible to separate the damage the Respondents caused in 2007 from the various other natural and human events that had occurred in the outlet creek over the years.

         ¶15 The circuit court granted the Respondents' summary judgment motion. After reviewing the complaint, the court concluded the allegations did not allege an injury to the Association's property, nor did the complaint identify any way in which any of the Association's members had been damaged, including by diminished property values. The court therefore concluded the Association lacked standing to prosecute Count II. The court also agreed with the Respondents that Munger had actually litigated the issue of his alleged property damage to a conclusion in the DNR proceedings, with the DNR finding that it was impossible to determine what damage was attributable to the Respondents' conduct. The court applied issue preclusion to bar Munger's injury to real property claim because any finding that the Respondents caused damage to Munger's property in 2007 would be contrary to the agency's findings.


         ¶16 On appeal, the only issues Munger and the Association raise relate to the viability of their claims against the Respondents. As set forth above, the circuit court granted the Respondents' motion to dismiss as to Counts I, III and IV, and their summary judgment motion as to Count II. We address each motion separately, and in each instance conclude the claims against the Respondents were properly dismissed.

         I. Motion to Dismiss

         ¶17 "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis.2d 665, 849 N.W.2d 693 (quoting John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303 Wis.2d 34, 734 N.W.2d 827). In reviewing a motion to dismiss, we accept as true all well-pleaded facts in the complaint and any reasonable inferences therefrom. Id. We do not, however, add facts in the process of construing a complaint, and legal conclusions stated in the complaint need not be accepted as true. Id. Indeed, such legal conclusions are insufficient, standing alone, to allow a complaint to withstand a motion to dismiss. Id. "Plaintiffs must allege facts that, if true, plausibly suggest a violation of applicable law." Id., ¶21.

         A. Count I (Intentional Trespass)

         ¶18 The circuit court dismissed Munger and the Association's intentional trespass claim as untimely. Munger and the Association argue the circuit court applied the wrong statute of limitations; in their view, it should have applied WIS. STAT. § 893.52, relating to injuries to real or personal property, rather than WIS. STAT. § 893.57, relating to intentional torts. "Determining which statute of limitations applies to an action is a question of law [that] we review de novo." Estate of Hegarty ex rel. Hegarty v. Beauchaine, 2001 WI.App. 300, ¶14, 249 Wis.2d 142, 638 N.W.2d 355 (some formatting altered). Determining the meaning of a statute is a question of law, which we also review de novo. Ritt v. Dental Care Assocs., 199 Wis.2d 48, 60, 543 N.W.2d 852 (Ct. App. 1995). Similarly, when the facts are undisputed, whether the applicable statute of limitations has run on a claim is a question of law. See Laughland v. Beckett, 2015 WI.App. 70, ¶15, 365 Wis.2d 148, 870 N.W.2d 466');">870 N.W.2d 466.

         ¶19 No published Wisconsin case appears to have considered whether allegations of intentional trespass are governed by WIS. STAT. §§ 893.52 or 893.57. Typically, when two limitations periods, considered independently, could be applied to a cause of action, the more specific statute controls. See Estate of Hegarty, 249 Wis.2d 142, ¶17. Accordingly, our task is to determine whether both statutes could apply to Munger's intentional trespass claim. If they could, we must determine whether one statute is more "specific" than the other and, if so, apply that statute.

         ¶20 Both WIS. STAT. §§ 893.52 and 893.57 are found in the subchapter relating to limitations periods for tort actions. Section 893.52 is entitled, "Action for damages for injury to property."[7] It provides that "an action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred.[8] Subsec. 893.52(1). Section 893.52 encompasses "negligence and nuisance claims." Allen v. Wisconsin Pub. Serv. Corp., 2005 WI.App. 40, ¶8, 279 Wis.2d 488, 694 N.W.2d 420; see also Gumz v. Northern States Power Co., 2007 WI 135, ¶25, 305 Wis.2d 263, 742 N.W.2d 271. Section 893.57 is the statute of limitations governing intentional torts. It provides: "An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 3 years after the cause of action accrues or be barred." Id. Under both §§ 893.52 and 893.57, a cause of action accrues when the plaintiff discovers, or with reasonable diligence should have discovered, the injury and that the defendant's conduct probably caused that injury. See Schmidt v. Northern States Power Co., 2007 WI 136, ¶27, 305 Wis.2d 538, 742 N.W.2d 294 (applying the discovery rule to actions governed by § 893.52); Spitler v. Dean, 148 Wis.2d 630, 636, 436 N.W.2d 308 (1989) (applying discovery rule to intentional tort cases).

         ¶21 Our supreme court has previously addressed the choice between these two statutes of limitation as they pertain to a claim for a breach of fiduciary duty. In Zastrow v. Journal Communications, Inc., 2006 WI 72, 291 Wis.2d 426, 718 N.W.2d 51, certain employees filed suit against a stock trust's trustees. Id., ¶¶2-3, 6. The trustees asserted WIS. STAT. § 893.57 barred the employees' action, but the circuit court concluded the employees' claim sounded in negligence and applied WIS. STAT. 8 893.52's six-year limitations period. Zastrow, 291 Wis.2d 426, ¶8. Upon "examining the nature of a fiduciary duty, " the supreme court agreed with the trustees that the breach of a fiduciary duty of loyalty is necessarily an intentional tort to which § 893.57's limitations period applies. Zastrow, 291 Wis.2d 426, ¶¶24-40. Consistent with the analysis in Zastrow, we examine the nature of a trespass to determine which statute of limitations should apply.

         ¶22 "[A] private landowner's right to exclude others from his or her land is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 617, 563 N.W.2d 154 (1997) (quoting Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)). Notably, "[o]ne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally ... enters land in the possession of the other, or causes a thing or a third person to do so ...." Grygiel v. Moriches Fish & Game Club, Inc., 2010 WI 93, ¶40, 328 Wis.2d 436, 787 N.W.2d 6 (quoting Prahl v. Brosamle, 98 Wis.2d 130, 146, 295 N.W.2d 768 (Ct. App. 1980), abrogated on other grounds by Wilson v. Layne, 526 U.S. 603, 616 (1999)) (alteration in Grygiel).

         ¶23 Prahl's statement regarding a potential absence of harm caused by trespass is slightly imprecise, in that the law presumes a trespass always harms the possessor's legally protected interest. Jacque was quite clear on this point:

Because a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The law infers some damage from every direct entry upon the land of another. Id. The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Id. Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred.

Jacque, 209 Wis.2d at 619. Compensatory damages are not an essential element of the tort of trespass. 4 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW § 38:7, at 38-21 (2d ed. 2006).

         ¶24 Thus, in an instance of trespass, the intrusion itself forms the basis for an award of damages, even absent any other injury. "A trespasser who has not damaged the property or its possessor is nevertheless liable to the possessor for nominal damages." Prahl, 98 Wis.2d at 152 (citing Hajec v. Novitzke, 46 Wis.2d 402, 417-18, 175 N.W.2d 193 (1970), and Diana Shooting Club v. Kohl, 156 Wis. 257, 145 N.W. 815 (1914)). In addition, "even where actual harm is slight, " an award of punitive damages may be appropriate. Jacque, 209 Wis.2d at 616-17. The justification for this rule is, again, the nature of the harm a trespass necessarily produces:

[I]n certain situations of trespass, the actual harm is not in the damage done to the land, which may be minimal, but in the loss of the individual's right to exclude others from his or her property and ... this right may be punished by ...

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