B & G Realty v. Milwaukee Gear Co.
| Citation | 364 N.W.2d 182,122 Wis.2d 779 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. B & G REALTY, INC., a Wisconsin corporation, Plaintiff-Appellant, v. MILWAUKEE GEAR COMPANY, a Wisconsin corporation, and CITY OF GLENDALE, a Wisconsin municipal corporation, Defendants-Respondents. 84-1109. |
| Decision Date | 21 January 1985 |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order 1 of the circuit court for Milwaukee county: Ralph Adam Fine, Judge.
Before WEDEMEYER, P.J., MOSER and SULLIVAN, JJ.
B & G Realty, Inc. (B & g) appeals from a judgment dismissing its action for injunctive and declaratory relief against Milwaukee Gear Company (Milwaukee Gear) and the City of Glendale (Glendale) to prevent construction of a building on Milwaukee Gear's property in Glendale allegedly in violation of a 1952 Declaration of Restrictions on the property. B & G charges error in the trial court's dismissal of the action as moot. We agree that the action was moot and uphold the dismissal.
Milwaukee Gear, located on North Port Washington Road in Glendale, built its manufacturing plant in the 1950's under a restrictive covenant which it executed in return for Glendale's rezoning of the subject property for the desired use. The Declaration of Restrictions, executed in 1952, provided that 'no building or other structure be erected or maintained upon said premises within 175 feet from the presently established East line of the North Port Washington Road.' Glendale imposed the restriction because it did not know where the planned Interstate 43 would ultimately be placed.
In 1981 B & G purchased the property immediately to the south of Milwaukee Gear's property. B & G constructed a motel there in substantial compliance with the restriction on the Milwaukee Gear property.
In June, 1982, while the motel was still under construction, Milwaukee Gear asked Glendale to amend the Declaration of Restrictions to reduce the required setback from 175 feet to 70 feet to allow Milwaukee Gear to erect an office building in frong ot its manufacturing plant. A hearing was held on the proposed amendment. The Glendale Plan Commission agreed to the amendment, and on August 9, 1982, the Glendale Common Council approved it. Shortly thereafter, B & G filed the instant suit seeking a declaration that the restrictive covenant was in force, seeking to enjoin Glendale from issuing a building permit, and seeking to enjoin Milwaukee Gear from constructing the building. B & G did not seek a temporary injunction to restrain construction pending resolution of the lawsuit.
Milwaukee Gear applied for foundation and building permits; they were granted by the Glendale building inspector in September and October of 1982. The building was erected.
Milwaukee Gear moved to dismiss B & G's complaint on the ground that it failed to state a claim upon which relief could be granted. The motion came on for hearing in May, 1983, when the office structure was substantially completed. One of the grounds asserted by Milwaukee Gear in support of its motion was that the issue was moot as the building had been erected. The trial court denied the motion on all grounds.
In the fall of 1983, after the case had been assigned to another judge, Milwaukee Gear and Glendale moved for summary judgment. Milwaukee Gear also moved for dismissal again on the ground of mootness. The trial court dismissed B & G's request for injunction relief on the ground that it was moot. The court also granted summary judgment in favor of Milwaukee Gear and Glendale on B & G's claims for damages in lieu of injunctive relief and for denial of due process under 42 U.S.C. § 1983. This appeal followed.
With respect to the dismissal of the claim for injunctive relief, our standard of review is not the standard employed for reviewing a summary judgment but rather that for reviewing an order granting a motion to dismiss for mootness. A motion to dismiss for mootness does not involve the determination whether there are any triable issues of fact. See Wisconsin's Environmental Decade v. Public Service Commission, 79 Wis. 2d 161, 171, 255 N.W.2d 917, 923 (1977). The court need only decide whether the determination sought could have any practical effect upon an existing controversy. Id., 255 N.W.2d at 923-24.
B & G's other claims were disposed of by summary judgment. On review, we employ the same methodology as that used by the trial court. See Wright v. Hasley, 86 Wis. 2d 572, 577-79, 273 N.W.2d 319, 322-23 (1979). Summary judgment is appropriate where the pleadings, depositions, affidavits and other papers on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Sec. 802.08(2), Stats. A moving defendant makes a prima facie case for summary judgment by showing a defense which would defeat the plaintiff. Kraemer Bros., Inc. v. United States Fire Insurance Co., 89 Wis. 2d 555, 566, 278 N.W.2d 857, 862 (1979). To defeat such a prima facie case, the plaintiff must set forth facts showing there is a genuine issue for trial. Id. at 567, 278 N.W.2d at 862.
B & G argues the trial court erred both in reaching the issue of mootness and in dismissing the claim for in reaching the the ground of mootness. With respect to the propriety of reaching the issue, B & G contends the trial court was precluded from considering the issue by the earlier denied of Milwaukee Gear's motion to dismiss. B & G cites several nineteenth century cases in support of the proposition that a motion denied with costs and without leave to renew is res judicata and cannot be renewed. See, e.g., Day v. Mertlock, 87 Wis. 577, 582-83, 58 N.W. 1037, 1038-39 (1894). We note that Day involved a motion to set aside a judgment for alleged irregularities. Here, on the other hand, we are concerned with a pre-trial motion.
There is a dearth of modern Wisconsin case law on the subject, but common sense guides us to the conclusion that a defensive motion to dismiss the case because there is no real controversy to be tried may be reheard at any time the trial court deems reconsideration necessary. In the interest of judicial economy, a court should not continue litigation of issues which will not affect parties to an existing controversy. See State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 228, 340 N.W.2d 460, 464 (1983). To try a moot issue would be to unnecessarily expend the court's and the parties' time.
In the federal courts there is no jurisdictional inhibition to reconsideration by a second judge of the rulings of another judge of the same court from whom the case has been transferred. See 1B Moore's Federal Practice par. 0.404[4-2] (2d ed. 1984). '[A] trial judge should not court reversal because of the erroneous ruling of another judge any more than because of an erroneous ruling of his own.' Id. Prejudgment rulings of the trial court remain interlocutory and may be reconsidered at any time. Id. at n. 2.
The federal practice is sound. We conclude that the trial court was entitled to recnsider Milwaukee Gear's motion to dismiss B & G's claim for injunctive relief on the ground of mootness.
Having determined that the trial court was entitled to reconsider the mootness issue, we turn now to the substance of the issue. B & G argues that completion of the acts sought to be enjoined did not render its request for injunctive relief moot. We disagree.
Applying the black-letter definition of mootness, the instant case fits the classic mold:
'A moot case [is] one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered cannot have any practical effect upon the existing controversy.'
La Crosse Tribune, 115 Wis. 2d at 228, 340 N.W.2d at 464 (citation omitted) (emphasis added). Here, where the building permit had been issued and the building completed before the request for injunctive relief was considered, there can be no question but that the relief that was sought could not have had any practical effect upon the controversy. The building was up; the acts sought to be enjoined had already taken place. Although there are exceptions to the mootness rule, this case does not fit within any of them. This was a purely private controversy involving no question of the constitutionality of a statute; nor were the issues presented ones which frequently arise or which were capable of repetition and yet evasive of review. See id. at 229, 340 N.W.2d at 464.
B & G suggests that the request for injunctive relief was not moot because relief in the form of razing the offending structure could have been ordered. B & G cites a number of cases in support of its argument that a defendant acts 'at his own peril when he willfully acts in violation of a request for an injunction.' It is undisputed that construction of the building occurred after the commencement of this action. However, it was B & G who acted at its peril in failing to seek a temporary injunction to halt construction of the building pending the outcome of this action. Section 813.02(1), Stats., provides as follows:
When it appears from his pleading that a party is entitled to judgment and any part thereof consists in restraining some act, the commission or continuance of which during the litigation would injure him, or when during the litigation it shall appear that a party is doing or threatens or is about to do, or is procuring or suffering some act to be done in violation of the rights of another party and tending to...
To continue reading
Request your trial