Krueger v. Allenergy Hixton, LLC
| Decision Date | 09 August 2018 |
| Docket Number | Appeal No. 2017AP1802 |
| Citation | 2018 WI App 60,384 Wis.2d 127,918 N.W.2d 458 |
| Parties | Greg KRUEGER, Annette Krueger, Don Cramer, Mary Sue Cramer, Willard Schuld and Ginny Schuld, Plaintiffs-Appellants-Cross-Respondents, v. ALLENERGY HIXTON, LLC, Defendant-Respondent-Cross-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Timothy S. Jacobson and Thomas Lister of Fitzpatrick, Skemp & Associates, LLC, La Crosse.
On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of Catherine R. Munkittrick and Daniel P. Murray of Rodli, Beskar, Neuhaus, Murray & Pletcher, S.C., River Falls.
A nonparty brief was filed by Barry J. Blonien of Blonien Legal Counsel, Madison, for Dean Emeritus James Huffman, Save the Hills Alliance, Inc., and Friends of the Black River, Inc.
A nonparty brief was filed by Henry E. Koltz of Schmidt, Darling & Erwin, Milwaukee, for Wisconsin Trout Unlimited, Inc.
Before Lundsten, P.J., Blanchard and Fitzpatrick, JJ.
¶1 A group of Town of Hixton landowners sued AllEnergy Hixton, LLC, seeking a permanent injunction that would stop AllEnergy from constructing a frac sand mine in the town. The circuit court granted AllEnergy's motion to dismiss the landowners' complaint. The landowners appeal.
¶2 The question here is whether the landowners' complaint states a claim. Before addressing that question, we address a preliminary matter: whether, when we assess whether there are allegations sufficient to state a claim, we should consider affidavits submitted after AllEnergy moved to dismiss the complaint. We conclude that the answer is no. Turning to whether a claim is stated within the four corners of the complaint, we first consider whether an anticipated private nuisance claim, the only claim that the landowners argue they stated, is a recognized claim in Wisconsin. On that topic, we conclude that Wisconsin case law, although seldom using a label such as "anticipated private nuisance," does recognize that claim. Finally, we explain why we conclude that the complaint does not state a claim for anticipated private nuisance. Accordingly, we affirm the circuit court.1
¶3 According to the allegations in the landowners' complaint, AllEnergy planned to construct and begin operating a frac sand mine within the same year the complaint was filed, with the mine to be constructed on a site contiguous to the landowners' properties. We describe the allegations in further detail in the Discussion section below.
¶4 AllEnergy moved to dismiss. It argued that the landowners' complaint failed to state a claim upon which relief can be granted.
¶5 Before deciding the motion, the circuit court allowed the landowners and AllEnergy to submit affidavits with additional factual assertions. The court referenced the affidavits when granting AllEnergy's motion to dismiss. The court concluded that, even taking the landowners' affidavits into consideration, the landowners failed to state a claim.
¶6 As noted, we break our discussion into three parts: (1) whether we should consider affidavits submitted after AllEnergy moved to dismiss the complaint; (2) whether anticipated private nuisance is a recognized claim in Wisconsin; and (3) whether the complaint states a claim for anticipated private nuisance.2
¶7 As we have seen, after the landowners filed their complaint and after AllEnergy moved to dismiss that complaint for failure to state a claim, the circuit court allowed the parties to submit affidavits with additional factual assertions. Based on this sequence of events, both parties take the position that AllEnergy's dismissal motion should be treated as a motion for summary judgment. In particular, the landowners argue that we should consider the content of the affidavits in deciding whether the circuit court correctly dismissed the landowners' complaint. We disagree.
¶8 We readily acknowledge that, under WIS. STAT. § 802.06(2)(b),3 when "matters outside of the pleadings are presented to and not excluded by the court," a motion to dismiss for failure to state a claim "shall be treated as one for summary judgment." But "[t]he first step of [a court's] summary judgment analysis is to determine whether the complaint sets forth a claim for relief." See Hoida, Inc. v. M & I Midstate Bank , 2006 WI 69, ¶ 18, 291 Wis.2d 283, 717 N.W.2d 17 ; see also Green Spring Farms v. Kersten , 136 Wis.2d 304, 317, 401 N.W.2d 816 (1987) (). We have previously explained that the analysis we use to address a motion to dismiss for failure to state a claim and to address the first step of our summary judgment analysis is the same—both are limited to an analysis of the complaint:
It is true that, pursuant to WIS. STAT. § 802.06(2)(b), on a motion to dismiss for failure to state a claim for relief, if matters outside the pleadings are presented and are considered by the court, the court is to treat the motion as one for summary judgment.... However, as we have already stated, the first step in summary judgment methodology is to determine if the complaint states a claim for relief. Hoida , 291 Wis.2d 283, ¶ 16 . This is the same analysis as that employed on a motion to dismiss for failure to state a claim. Prah v. Maretti , 108 Wis.2d 223, 228, 321 N.W.2d 182 (1982). Whether the motion is initially one for dismissal under WIS. STAT. § 802.06(2) and is then converted to one for summary judgment under § 802.06(2)(b), or whether it is filed in the first instance as a motion for summary judgment under § 802.08, the court does not consider matters outside the pleading until it has determined that the complaint states a claim for relief.
Broome v. DOC , 2010 WI App 176, ¶ 12, 330 Wis.2d 792, 794 N.W.2d 505.
¶9 Accordingly, although we treat AllEnergy's motion as one for summary judgment, we must reject the landowners' request that we consider their post-complaint submissions when determining, in the first step of summary judgment analysis, whether the complaint states a claim.
¶10 Before moving on, we observe that the landowners do not assert that the circuit court effectively allowed them to amend their complaint to add allegations based on their affidavits. Regardless, we would reject such an assertion. The landowners did not file an amended complaint or seek leave to amend their complaint, see WIS. STAT. § 802.09, nor do the pertinent transcripts or the court's written decision indicate that the court was thinking in terms of an amendment. Further, even if the circuit court had stated that it was allowing an "amendment" to the complaint by allowing the landowners to incorporate affidavit material into their complaint, we question whether we could consider that material in the first step of our summary judgment analysis. The landowners point to no authority indicating that this would be a permissible amendment procedure.
¶11 The landowners do assert in passing that, because AllEnergy did not object to the affidavits, AllEnergy forfeited any argument opposing reference to the affidavits for purposes of addressing whether the landowners stated a claim. We reject this forfeiture argument. Although AllEnergy acquiesced in the filing of affidavits, the landowners point to nothing indicating that AllEnergy took the position that the affidavits could or should be considered for purposes of deciding whether the landowners stated a claim. There may be additional reasons to reject the landowners' forfeiture argument, but what we have already said is sufficient.
¶12 Accordingly, we turn our attention to the first step of summary judgment analysis, that is, whether the landowners' complaint states a claim. As noted, the landowners argue that the complaint states a claim for anticipated private nuisance. Before examining the allegations in the complaint, we address AllEnergy's argument that Wisconsin does not recognize this type of claim.
¶13 AllEnergy argues that Wisconsin does not recognize the claim of anticipated nuisance. More specifically, AllEnergy admits there is some Wisconsin case law recognizing a cause of action for anticipated nuisance, but AllEnergy contends that "Wisconsin case law [overall] is unclear and in conflict regarding whether Wisconsin recognizes a cause of action for anticipatory nuisance" and that "more recent case law does not recognize a cause of action for anticipatory nuisance." We are not persuaded. As explained below, we discern no conflict and conclude that one recognized variation on a private nuisance claim is aptly referred to as an anticipated private nuisance claim.
¶14 AllEnergy acknowledges that Rogers v. John Week Lumber Co. , 117 Wis. 5, 93 N.W. 821 (1903), and Wergin v. Voss , 179 Wis. 603, 192 N.W. 51 (1923), both recognize that courts have equitable authority to enjoin an anticipated private nuisance. In Rogers , the court allowed a complaint to go forward where a landowner alleged that the planned construction of a lumber mill 90 feet from his residence would create a nuisance by emitting steam, dust, dirt, and smoke that would penetrate his home and render it unfit as a place to live. Rogers , 117 Wis. at 6-10, 93 N.W. 821. In Wergin , the court explained that a court may act to stop an anticipated private nuisance when the nuisance does not yet exist but "will necessarily result" from the conduct sought to be enjoined:
The instant case presents an application to a court of equity to restrain a threatened or prospective nuisance. While a court of equity may enjoin a threatened or anticipated nuisance , public or private, it should do so only where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which...
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Walleser v. Walleser
...to identify the injury the plaintiff contends he or she has [suffered], is currently [suffering], or will suffer." Krueger v. AllEnergy Hixton, LLC, 2018 WI.App. 60, ¶37 n.10, 384 Wis.2d 127, 918 N.W.2d 458. surrounding statutes quoted above, Wis.Stat. §§ 844.01, .15, and .17, clarify that ......