Kroeger v. Mott

Decision Date14 June 2016
Docket NumberNo. 2015AP556.,2015AP556.
Citation882 N.W.2d 870 (Table),370 Wis.2d 787
PartiesJames KROEGER, Plaintiff–Appellant, v. Bob MOTT, Defendant–Respondent.
CourtWisconsin Court of Appeals

¶ 1 PER CURIAM.

James Kroeger appeals an order granting Bob Mott's motion for summary judgment in this defamation action. The parties agree the alleged defamatory statements, which were contained in an email from Mott directed to the Oneida County Planning and Development Committee, were protected by a conditional privilege, such that Mott established a prima facie case for summary judgment. However, Kroeger argues he is entitled to a trial on his defamation claim either because Mott abused the privilege as a matter of law or because there are disputed factual issues regarding such abuse. We reject Kroeger's arguments and affirm.

BACKGROUND

¶ 2 Kroeger operated an outdoor firewood sales business from his Oneida County property near Pelican Lake. He would pick up wood off-site, bring it to his property, cut, split and stack it, and then haul it away to customers. Kroeger also cut wood on his property for personal use.

¶ 3 In September 2011, the Oneida County Planning and Development Committee granted Kroeger a conditional use permit (CUP) to cut wood on certain days of the week and during certain hours. Soon after the CUP was granted, a dispute arose regarding whether the conditions attendant to the CUP, including limitations on hours and location of wood cutting, applied to all of Kroeger's wood cutting or merely his business wood cutting.

¶ 4 In November, Robert and Sue Brautigam, Kroeger's neighbors, challenged the permit, and the Oneida County Board of Adjustment held a public hearing on the matter. Karl Jennrich, the Oneida County Planning and Zoning Director, testified at the hearing that he believed the CUP applied to all woodcutting because “it would be hard to differentiate between personal wood cutting and business wood cutting.” Jennrich testified Kroeger did not object to this understanding at the time. However, there was also evidence that the Planning and Development Committee was concerned about regulating personal wood cutting. At the conclusion of the hearing, the Board of Adjustment voted to affirm the original grant of the CUP without any changes.

¶ 5 The Board of Adjustment's action did not resolve the underlying issue of whether the CUP applied to Kroeger's personal wood cutting as well as his business wood cutting. On June 18, 2012, the Brautigams and other Pelican Lake residents wrote to the Planning and Development Committee. The residents expressed their belief that the two CUP conditions regarding the permissible location and times of woodcutting were “virtually unenforceable as written.” Although the residents came away from the November hearing with the belief that the CUP conditions applied to all wood cutting, the final permit did not expressly state as such. The neighbors complained that Kroeger had been cutting wood at times and locations not allowed under the CUP,1 and requested that the Committee amend the CUP to state unequivocally that the conditions “apply to [Kroeger's] personal wood as well as his business wood, and that the area permitted does not include his private drive and garage.” Mott, who represented constituents in the area as an elected member of the Oneida County Board of Supervisors, was sent a copy of the letter.

¶ 6 After receiving the letter, Mott spoke with Sue Brautigam and relayed the Brautigams' concerns to Peter Wegner, the assistant zoning director. During Mott's conversation with Wegner, Wegner played a voicemail received from one of Kroeger's neighbors complaining that Kroeger was engaged in unauthorized wood cutting. Ultimately, a meeting of the Planning and Development Committee was scheduled for August 1, 2012, to address the Kroeger CUP.

¶ 7 Mott was unable to attend the August 1 meeting, so on July 25, 2012, he sent an email to members of the Committee, as well as Jennrich and the Brautigams. This email is the source of the allegedly defamatory statements at issue in this case. Mott wrote, in substantial part:

A conditional use permit (CUP) was issued to Mr. [Kroeger] on Pelican Lake so that he could: (a) continue his wood cutting business on Pelican Lake; [and] (b) maintain conditions that would give his neighbors mostly the peace and quiet that they want in their lakeside living.
There was no differentiation made in the CUP between private wood cutting and cutting for his business. There is the problem.
Mr. [Kroeger] has been cutting on weekends and holidays early in the day and claiming that wood is for private use. He is not following the conditions of the CUP. He is in fact violating the spirit of the CUP in that he is cutting and disturbing the neighborhood.
Some people think that it is wrong to try to enforce any rules on private wood cutting since many people cut wood. I think this case is different because everyone does not have a business with a CUP that allows wood cutting at certain times. Mr. [Kroeger] could have been a good neighbor and cut his personal wood at the times in the CUP and avoided further aggravating his neighbors. He chose to aggravate.
The further concern that I have is that something stupid (violent) will happen if there is not a resolution here. Emotions are high and I'm concerned that if there is not enforcement taken by saying that all wood cutting is managed by the CUP, individuals may act on their own.
I am asking this—if the CUP is to have the desired effect of giving Mr. [Kroeger] the right to run his business and the neighbors the right to having peace from the noise for most of the time as stated in the CUP, then the CUP should apply to all wood cutting activities at Mr. [Kroeger's property]. It has been shown that the zoning department can't enforce the CUP without this clarification.

(Formatting and punctuation altered.) Mott's email was made part of the record at the August 1 meeting. After taking public comments, the Committee voted not to amend, suspend or revoke Kroeger's CUP.

¶ 8 Kroeger filed this action against Mott on March 14, 2014, alleging that Mott's email contained libelous statements that damaged Kroeger's reputation and caused “shame, mortification and injury to his feelings.” Mott answered, acknowledging his sending of the email but denying that it contained libelous statements or damaged Kroeger. Mott also raised a number of affirmative defenses, including that his statements were opinions and were conditionally privileged as having been made in his representative capacity as a member of the Oneida County Board of Supervisors.

¶ 9 Mott filed a motion for summary judgment, which the circuit court granted. The court stated there was “a technical basis in the record” to conclude that the allegedly defamatory statements—and in particular the statement that Kroeger was “not following the conditions of the CUP”—were substantially true and therefore did not constitute actionable defamation. However, the court declined to base its ruling on that conclusion. Instead, the court held that Kroeger was a “limited purpose public figure,” requiring Kroeger to demonstrate that Mott's statements were made with either knowledge of their falsity or reckless disregard as to their truth or falsity. The court concluded, as a matter of law, that the record did not support a finding in Kroeger's favor under either standard, and it dismissed Kroeger's action.

DISCUSSION

¶ 10 We review a grant of summary judgment de novo, applying the same methodology employed by the circuit court. Burgraff v. Menard, Inc., 2016 WI 11, ¶ 20, 367 Wis.2d 50, 875 N.W.2d 596

. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).2 The first task is to determine whether the plaintiff has stated a claim for relief. Green Spring Farms v. Kersten, 136 Wis.2d 304, 317, 401 N.W.2d 816 (1987). If so, the inquiry then shifts to whether any factual issues exist. Id. at 315, 401 N.W.2d 816. If the pleadings show the existence of factual issues, we examine the moving party's affidavits and other proof to determine whether that party has made a prima facie case for summary judgment. Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980), abrogated on other grounds by

Meyers v. Bayer AG, Bayer Corp., 2007 WI 99, 303 Wis.2d 295, 735 N.W.2d 448. If a prima facie case is made, we examine the opposing party's affidavits and other proof to determine whether there are disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, that are sufficient to entitle the opposing party to a trial. Id.

¶ 11 We first consider whether Kroeger's complaint states a claim for relief. “In an action for libel the court must first determine whether the writing complained of is defamatory.” Lathan v. Journal Co., 30 Wis.2d 146, 151, 140 N.W.2d 417 (1966)

. This determination is a question of law. Id. at 153, 140 N.W.2d 417 ; see also

Laughland v. Beckett, 2015 WI App 70, ¶ 21, 365 Wis.2d 148, 870 N.W.2d 466 (determining whether a communication is capable of a defamatory meaning is a question of law for the circuit court, which the appellate court reviews de novo). Kroeger asserts Mott's email contained three actionable defamatory statements, namely, that Kroeger: (1) was “not following the conditions of the CUP”; (2) was not being a “good neighbor”; and (3) “chose to aggravate” his neighbors.

¶ 12 A communication is defamatory if it “tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating or dealing with him or her.” Vultaggio v. Yasko, 215 Wis.2d 326, 330, 572 N.W.2d 450 (1998)

; see also

Lathan, 30 Wis.2d at 152–53, 140 N.W.2d 417 (offering various similar definitions). Defamatory communications usually consist of a statement of fact; expressions of opinion are not...

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