Manor Enterprises, Inc. v. Vivid, Inc.
| Decision Date | 20 May 1999 |
| Docket Number | No. 98-1709.,98-1709. |
| Citation | 596 N.W.2d 828,228 Wis.2d 382 |
| Parties | The MANOR ENTERPRISES, INC., Plaintiff-Appellant, v. VIVID, INC., Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Frank A. Gumina, Kerry E. Dwyer and MaryNell Regan of Wessels & Pautsch, P.C. of Milwaukee.
On behalf of the defendant-respondent, the cause was submitted on the brief of David C. Moore of Nowlan & Mouat of Janesville.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
The Manor Enterprises, Inc. (MEI) filed a complaint against Vivid, Inc. alleging trespass and waste as a result of Vivid's refusal to remove fifty-seven posts on MEI's property when Vivid removed the sign for which those posts were the supporting structure. MEI appeals the trial court's order granting summary judgment in Vivid's favor and dismissing the complaint. MEI contends there are disputed issues of fact on both claims, making summary judgment improper. We conclude the trial court properly dismissed the waste claim. On the trespass claim, we agree with the trial court that there are no material issues of fact. However, we conclude MEI, not Vivid, is entitled to judgment as a matter of law on the question whether Vivid is trespassing. The undisputed facts show that consent for the posts to be placed in the ground was conditioned upon their being the supporting structure for the sign, which MEI and its predecessor leased from Vivid and its predecessor. Upon Vivid's removal of the sign, it no longer had MEI's consent to leave the posts in the ground, and its refusal to remove them constituted a trespass. We therefore affirm in part, reverse in part and remand.
The complaint alleges the following. Vivid was found to be the owner of a sign on MEI's property in a prior court action. Vivid left fifty-seven sign posts protruding from the ground after it removed the sign and refused to remove the posts despite MEI's repeated requests. The posts' existence on MEI's property constitutes trespass and diminishes the property's value. Vivid's conduct constitutes waste. Vivid's actions in refusing to remove the posts are willful, wanton and in reckless disregard of MEI's property rights.
In its answer, Vivid denies those allegations, except that it admits it refused to remove the posts in spite of being requested to do so, and affirmatively alleges that the posts were placed there at the request of MEI or its predecessor and, accordingly, Vivid is a "bailor" with respect to the posts and has no duty at law or by contract with respect to the removal of such posts.
Vivid moved for summary judgment. Accompanying its motion was the affidavit of Arthur Donaldson, an authorized agent of Vivid, who averred the following. Vivid is in the business of outdoor advertising. Twenty-five to thirty years ago it purchased another company's assets, which included a sign located on the property of a restaurant called "The Manor" and a contract with the then-owner of The Manor. The sign had been erected at the request of and for the benefit of the owner of the property. The owner made rental payments to Vivid, which maintained the sign. Over the years there were various written agreements between Vivid and the owners of The Manor concerning the rental terms for the sign. MEI eventually purchased The Manor and paid rent to Vivid through January 1995, then stopped making payments and took the position that Vivid did not own the sign. Vivid brought an action for replevin and back rent against MEI. The court awarded Vivid a judgment directing the issuance of a writ of replevin for Vivid "to take possession of said sign and its supporting structures" and a money judgment of $3,661.36. Vivid collected the money judgment and, when MEI refused to pay additional rent, Vivid removed the sign, leaving the fifty-seven posts that had supported the structure. Donaldson also averred that Vivid has "never been a tenant on the property of The Manor and has never undertaken a duty by contract to remove its sign."2
In opposition to the motion, MEI submitted documents produced by Vivid. There were copies of two written agreements between the parties, one dated July 18, 1986, and one dated November 29, 1989, each renewing the "electric display rental agreement" for a three-year term at a specified monthly rental fee; and Donaldson's affidavit submitted in the replevin action explaining that he was able to locate only these two written agreements and, since the expiration of the later of the two, Vivid billed MEI on a month-to-month basis. There was also correspondence between the parties during 1990-92 concerning the amounts due Vivid, vandalism to the sign, and the dispute over ownership of the sign.
Vivid argued that it had no liability for either trespass or waste unless it had a duty to remove the signs, and it did not have such a duty. Vivid also argued that there could not be a trespass because there was a bailment. MEI responded that there was a genuine issue of material fact concerning whether there was an agreement that Vivid would remove the sign and supporting structures, relying on a letter dated December 17, 1990, from Donaldson to John Fiorello of The Manor, stating:
MEI also argued there was no bailment, and there was a material issue of fact as to whether failure to remove the posts constituted waste.
The court concluded, absent a specific agreement to remove the posts, Vivid had no duty to do so, and there was no evidence of any such agreement. Based on Vivid's concession that it had abandoned the posts, the court decided that MEI could remove and dispose of them. The court did not address Vivid's argument that there was a bailment, or MEI's claim for waste.
[1-4]
When we review a summary judgment, we apply the same methodology as the trial court, and we consider the issues de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). The remedy is appropriate in cases where there is no genuine issue of material fact and the moving party has established his or her entitlement to judgment as a matter of law. Id.; Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473, 477 (1980). The court is to draw all reasonable inferences from the evidence in favor of the non-moving party, and may not grant summary judgment if more than one reasonable inference can be drawn from the facts. Green Spring Farms, 136 Wis. 2d at 317,401 N.W.2d at 821; Grams,97 Wis. 2d at 339,294 N.W.2d at 477. Whether a particular factual inference may be drawn, whether it is reasonable and whether it is the only reasonable inference are all questions of law for this court to decide. Groom v. Professionals Insurance Co., 179 Wis. 2d 241, 249, 507 N.W.2d 121, 124 (Ct. App. 1993). If the opposing party is entitled to summary judgment, the court may award summary judgment in that party's favor even if that party has not moved for summary judgment. Section 802.08(6), STATS.
On appeal, MEI renews its argument that summary judgment is not proper on the trespass claim because there is a factual dispute concerning whether Vivid had a duty to remove the posts and because the rental agreement did not create a bailment, which Vivid asserts as a defense to this trespass claim. The parties' disagreement on these two points centers on their dispute over the interpretation and application of certain provisions of, and comments to, §§ 158 and 160 of the Restatement of Torts. See RESTATEMENT (SECOND) OF TORTS §§ 158 and 160 (1965).
Section 158 of the Restatement, "Liability for Intentional Intrusions on Land," provides:
Section 160 of the Restatement, "Failure to Remove Thing Placed on Land Pursuant to License or Other Privilege," provides:
Relying on § 158(c) of the Restatement, Vivid argues that it is liable for trespass only if it had an express contractual duty to remove the posts, and the trial court agreed. MEI contends, however, that an express contractual obligation for Vivid to remove the posts is not necessary, because a duty on Vivid's part to remove the supporting structure when it removed the sign was implied in the agreement that Vivid would erect a sign and supporting structure on MEI's property. Vivid's failure to remove the posts upon MEI's request is, MEI contends, a trespass under § 160(a) of the Restatement. Vivid responds that even if it did have an implied duty to remove the posts when it removed the sign, the exception in comment n to § 160 for bailments should be adopted and applied by this court.
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