Bauer v. Wis. Energy Corp.
| Citation | 2022 WI 11 |
| Decision Date | 24 February 2022 |
| Docket Number | 2019AP2090 |
| Parties | Claudia B. Bauer, individually and Claudia B. Bauer, as Trustee of the Claudia B. Bauer Revocable Trust 2010 Restatement, Plaintiffs-Appellants-Petitioners, v. Wisconsin Energy Corporation d/b/a WE Energies, Defendant-Respondent, Dean Gatziolis, individually, Susan W. Gatziolis, individually, Engerman Contracting, Inc., Dean Gatziolis, as Trustee of the Gatziolis Family Trust and Susan W. Gatziolis, as Trustee of the Gatziolis Family Trust, Defendants. |
| Court | United States State Supreme Court of Wisconsin |
Oral Argument: November 16, 2021
Source of Appeal: Court: Circuit county L.C. No. 2016CV215: Walworth Judge: Daniel Steven Johnson
REVIEW OF DECISION OF THE COURT OF APPEALS From an unpublished summary disposition issued January 20, 2021
REVIEW of a decision of the Court of Appeals. Affirmed.
For the plaintiffs-appellants-petitioners, there were briefs filed by Stephen E. Kravit, Leila N. Sahar, Gerald S. Kerska and Kravit, Hovel & Krawczyk, S.C., Milwaukee. There was an oral argument by Stephen E. Kravit.
For the defendant-respondent, there was a brief filed by Miles W Hartley and Guttormsen & Hartley, LLP, Kenosha. There was an oral argument by Miles W. Hartley.
¶1 Claudia Bauer seeks the removal of a natural-gas line first installed beneath her property over 41 years ago by a public utility with the permission of the property's then-owner, Virginia Garside. We are asked whether Garside's grant of permission ripened into a prescriptive right under Wis.Stat. § 893.28(2) (2019-20), [1] allowing the public utility to continue using the line over Bauer's protests. We conclude that it did.
¶2 Under § 893.28(2), a public utility's continuous use of another's real property for at least 10 years establishes a prescriptive right to continue that use. This represents a marked change from the common-law requirements under which a party's use of another's real property became a prescriptive right upon: (1) an adverse use; (2) which is visible, open, and notorious; (3) under an open claim of right; and (4) continuous for twenty years. The parties agree that § 893.28(2) displaced the common-law adversity requirement and reduced the vesting period from 20 to ten years. They dispute whether that statute also abrogated the "visible, open, and notorious" and "under an open claim of right" requirements.
¶3 We conclude that the public utility here met the required continuous use for ten years prior to Bauer's purchase of the property, notwithstanding periodic repairs during that period. We further conclude that § 893.28(2) necessarily abrogated the claim-of-right requirement when it removed the adversity requirement. We do not reach, however, whether that statute still requires a visible, open, and notorious use because, regardless of the answer, Garside's actual knowledge of the gas line in this case would satisfy that requirement. Accordingly, under § 893.28(2) the public utility's prescriptive right to continue using the gas line vested prior to Bauer's purchase of the property and her claims against the public utility were properly dismissed.
¶4 In July 1980, beneath a property along Geneva Lake then owned by Virginia Garside, the Wisconsin Energy Corporation (WEC) installed a single half-inch diameter, plastic natural-gas pipe line.[2] WEC installed the line with Garside's written permission "to cross [her] property ... to put a gas line into the [neighboring home]," now owned by the Gatziolis family. Of the roughly 285-foot line, 135.49 feet crosses underneath the Garside property.
¶5 WEC periodically serviced the gas line. Service records show that in 1984 WEC "relocated" the gas line "due to customer requests." "Relocation," WEC's representative averred, does not necessarily mean the line was moved but could also mean that a broken portion was replaced by splicing in a new piece of pipe. In 1988, WEC replaced 84 feet of the line by splicing new pipe of the same diameter and material into the existing line. In 1989, WEC again "relocated" the gas line "due to customer requests." Throughout each of these maintenance efforts, the line continued its existing gas service to the neighboring home.
¶6 In 1996, Claudia Bauer purchased the Garside property with no actual knowledge of the underground gas line's existence. She first learned of the line in 2014 when WEC contacted her about acquiring an easement to upgrade the gas line's diameter by a half-inch to better service the neighboring Gatziolises' planned home reconstruction. Bauer declined to grant the larger easement, which ultimately proved unnecessary after WEC determined that the existing line could adequately serve the Gatziolises' larger home.
¶7 Nevertheless, Bauer sued WEC as well as the Gatziolises and their contractor.[3] Relevant to this appeal, Bauer sought a declaration that WEC lacked an easement to continue operating the gas line under her property and brought trespass and ejectment claims against WEC.[4] WEC counterclaimed for its own declaration that it had obtained a prescriptive right to continue using the gas line pursuant to Wis.Stat. § 893.28(2) . The circuit court agreed with WEC and granted it summary judgment, declaring that WEC had acquired a prescriptive easement[5] across Bauer's property under § 893.28(2) and dismissing the trespass and ejectment claims.[6]
¶8 Nearly eight months later, Bauer asked the circuit court to reconsider its summary-judgment decision. Her brief in support of reconsideration argued only that the circuit court's order failed to account for her previously unalleged constitutional rights to either just compensation for the taking of property or a court-made remedy to cure all alleged injuries or wrongs against her. Then, in her reply brief, Bauer raised for the first time an argument that summary judgment was inappropriate because, based on a "re-review" of WEC's summary-judgment submissions, there existed a genuine dispute regarding the effect of the 1984 and 1989 "relocations" and the 1988 pipe replacement on the continuousness of WEC's use of the gas line.
¶9 Ten days after filing her reply brief, on the eve of the reconsideration hearing, Bauer filed a declaration with two exhibits, both of which were photos that she maintained showed two separate gas lines at "two different," but unspecified, locations exposed when she excavated her property. She argued these images created an additional genuine dispute over the existence of two separate gas lines beneath her property. The circuit court denied Bauer's reconsideration motion, concluding that Bauer neither presented newly discovered evidence nor established any manifest error.
¶10 On appeal, the court of appeals summarily affirmed both the circuit court's grant of summary judgment in favor of WEC and its order denying Bauer's reconsideration motion. Bauer v. Wis. Energy Corp., 2019AP2090, unpublished order (Wis. Ct. App. Jan. 20, 2021). We granted Bauer's petition for review.
¶11 This case requires that we review the appropriateness of summary judgment and reconsideration, which includes interpreting Wis.Stat. § 893.28(2). Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Wis.Stat. § 802.08(2); see Stroede v. Soc'y Ins., 2021 WI 43, 59, 397 Wis.2d 17, 959 N.W.2d 305. We review a summary-judgment decision de novo, using this same methodology. See Stroede, 397 Wis.2d 17, 59. As for reconsideration, we review a circuit court's denial of reconsideration for an erroneous exercise of discretion, meaning that we affirm the circuit court's decision unless it "fails to examine the relevant facts, applies the wrong legal standard, or does not employ a demonstrated rational process to reach a reasonable conclusion." See Borreson v. Yunto, 2006 WI.App. 63, 56, 292 Wis.2d 231, 713 N.W.2d 656. Finally, statutory interpretation presents a question of law that we review de novo. See Stroede, 397 Wis.2d 17, 59.
¶12 When reviewing summary judgment, we generally first define the applicable law and then decide if a genuine dispute exists as to any fact material to the law's application. But here, Bauer asked to expand the summary-judgment record via her motion to reconsider, so we must start there to define the appropriate scope of the record on review.
¶13 In our first review of the merits of a circuit court's reconsideration decision, we agree with the approach developed by the court of appeals. As that court has explained, a circuit court possesses inherent discretion to entertain motions to reconsider "nonfinal" pre-trial rulings.[7] See, e.g., Fritsche v. Ford Motor Credit Co., 171 Wis.2d 280, 294-95, 491 N.W.2d 119 (Ct. App. 1992) . To succeed, a reconsideration movant must either present "newly discovered evidence or establish a manifest error of law or fact." Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI.App. 129, 544, 275 Wis.2d 397, 685 N.W.2d 853 (citing Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)).
¶14 Newly discovered evidence is not "new evidence that could have been introduced at the original summary judgment phase." Id., 546. Similarly, a "manifest error" must be more than disappointment or umbrage with the ruling; it requires a heightened showing of "wholesale disregard, misapplication, or failure to recognize controlling precedent." Id., 144 (quoting Oto, 224 F.3d at 606) . Simply stated, "a motion for reconsideration is not a vehicle for making new arguments or submitting new evidentiary materials [that could have been submitted earlier] after the court has decided a motion...
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