Munger v. Seehafer

• Citation: 372 Wis.2d 749,890 N.W.2d 22
• Decision Date: 29 November 2016
• Docket Number: No. 2014AP2594.,2014AP2594.
• Parties: Bradley C. MUNGER and Summit Lake Association, Plaintiffs–Appellants, Estate of John M. Gleason, Sr., Plaintiff, v. Richard W. SEEHAFER, Peter M. Vanderhei, Richard L. Hilger and Patrick M. Curran, Defendants–Respondents.
• Court: Court of Appeals of Wisconsin

372 Wis.2d 749

890 N.W.2d 22

Bradley C. MUNGER and Summit Lake Association, Plaintiffs–Appellants,Estate of John M. Gleason, Sr., Plaintiff,

v.Richard W. SEEHAFER, Peter M. Vanderhei, Richard L. Hilger and Patrick M. Curran, Defendants–Respondents.

No. 2014AP2594.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 21, 2016

Filed Nov. 29, 2016.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Stephen D. Willett of Stephen D. Willett & Associates, S.C., Phillips.

On behalf of the defendants-respondents, the cause was submitted on the brief of Sara C. Mills of Crivello Carlson, S.C., Milwaukee and Richard M. Olk and Jay Kronenwetter of Sommer, Olk & Payant, S.C., Antigo.

Before STARK, P.J., HRUZ and SEIDL, JJ.

HRUZ, J.

¶ 1 Bradley Munger ("Munger") and the Summit Lake Association (the "Association") appeal from judgments and an order dismissing all of Munger and the Association's claims against Richard Seehafer, Peter Vanderhei, Richard Hilger, and Patrick Curran (collectively, the "Respondents").¹ On appeal, Munger and the Association assert the circuit court erroneously dismissed their intentional trespass and declaratory judgment claims, as well as a claim denominated "Public Nuisance and Inadequate Enforcement." They also assert the circuit court erroneously granted the Respondents summary judgment as to Munger and the Association's remaining claim, injury to real property.

¶ 2 We conclude the circuit court properly granted the Respondents' motion to dismiss. We hold that WIS. STAT. § 893.57, which sets forth the limitations period for intentional torts, applies to a claim alleging intentional trespass.² The Respondents' alleged trespass occurred in 2007; between the date of the alleged trespass and the time this action was filed, the legislature extended § 893.57's limitations period from two to three years. This action was not filed until 2011. Accordingly, we conclude the intentional trespass claim was untimely filed regardless of whether the longer limitations period applies. We also agree with the circuit court that the public nuisance/inadequate enforcement and declaratory judgment claims each fail to state a claim against the Respondents.

¶ 3

The circuit court also properly granted the Respondents' summary judgment motion. The court correctly concluded the Association lacks standing to bring a claim for injury to property, as neither the complaint nor the record plausibly suggests that the Association or its members, aside from Munger, have suffered any property damage as a result of the Respondents' conduct in 2007. As for the alleged damage to Munger's property, we conclude his claim is barred by the doctrine of issue preclusion as a result of his earlier efforts to obtain a Department of Natural Resources (DNR) permit to remediate the alleged damage. In those administrative proceedings, the DNR determined it was impossible to separate the damage allegedly caused by the Respondents from other natural and human activities that affected the relevant property. For these reasons, we affirm the circuit court in all respects.

BACKGROUND

¶ 4 Summit Lake is located in Langlade County and is a feeder lake for a five-lake chain. Munger and Gleason own property on opposite sides of Summit Lake's outlet creek. The creek flows about 300 feet from Summit Lake to the Forest Road culvert, then continues about 3,000 feet to Greater Bass Lake and beyond. Sometime prior to September 1989, Munger placed riprap in the creek bed.³ The DNR issued an after-the-fact permit for the riprap to Munger on September 9, 1989.

¶ 5

On October 20, 2007, DNR conservation warden Timothy Otto received a complaint of illegal dredging at the Summit Lake outlet creek. Otto was informed that Vanderhei had trespassed on Munger's property to remove material from the outlet. Otto went to Vanderhei's Greater Bass Lake residence and interviewed him. Vanderhei admitted that he, Seehafer, Hilger, and Curran had removed material, including a log and grass clippings, from the outlet creek. Vanderhei stated this material was preventing water from draining from Summit Lake. Munger alleges that, following a DNR investigation, the four Respondents were each issued five citations for various violations of WIS. STAT. ch. 30, which regulates navigable waters. According to Munger, these citations were ultimately dismissed upon the Respondents' agreement to plead guilty or no contest to criminal trespass to land, contrary to WIS. STAT. § 943.13.⁴

¶ 6 In April 2009, the DNR received a report of illegal structures placed at the Summit Lake outlet creek. A DNR investigator determined the following month that Munger had placed riprap beyond that area allowed by the 1989 permit. Munger agreed to remove the unauthorized fill, but he failed to timely do so. The gravel fill remained as of June 10, 2009, and Munger was issued two citations for obstructing navigable waters, contrary to WIS. STAT. § 30.15(1)(d).⁵

Munger agreed to a finding of guilt as to one of the citations in exchange for dismissal of the other. The illegal fill was removed by late October 2009.

¶ 7 On March 8, 2010, Munger applied for a DNR permit seeking to place fill in the Summit Lake outlet creek in an effort to "repair damages" the Respondents caused in 2007. The Association supported the application. The DNR denied the permit, explaining that "[t]he various natural and human-made changes to the outlet over the years cannot be separated from one or the other with any certainty." Munger and the Respondents were not the only parties to have altered or affected the outlet creek and surrounding areas; the DNR concluded general public use of the waterway, as well as the Town of Upham's replacement of the Forest Road culvert, had impacted the area as well. Following significant public comment, the DNR concluded the proposed project "would materially obstruct navigation," adversely affect water quality, have an undesirable impact on wetlands and organism migration, and would create a de facto dam at the Summit Lake outlet.

¶ 8 Munger and the Association requested and were granted a contested case hearing before an administrative law judge (ALJ) from the State of Wisconsin Division of Hearings and Appeals. On April 25, 2011, the ALJ upheld the DNR's decision denying the permit, concluding that "most of the damage from the 2007 dredging and/or clearing has already naturally restored itself. A stable and re-vegetated low-flow channel has reestablished itself as a waterway connection between these lakes." The ALJ agreed with the DNR's findings that the proposed fill would obstruct navigation, impair wetland function, and "have a detrimental impact upon the fishery of both lakes." In all, the ALJ found Munger and the Association "did not come close to carrying their burden of proof on the statutory standards for issuing this permit."

¶ 9 Shortly after the ALJ's decision was issued, Munger and the Association commenced this action against the Respondents and the State of Wisconsin.⁶ The complaint included four counts: (1) intentional trespass to land (Count I); (2) physical injury to real property (Count II); (3) public nuisance and inadequate enforcement of WIS. STAT. ch. 30 as a result of the dismissal of the citations against the Respondents (Count III); and (4) declaratory judgment seeking an order declaring Munger's 1989 permit valid (Count IV).

¶ 10 Each of the Respondents raised the statute of limitations as an affirmative defense to the trespass claim, with Vanderhei and Hilger specifically raising the then-two-year statute of limitations governing intentional torts, WIS. STAT. § 893.57. In response to motions to dismiss on timeliness grounds, Munger and the Association argued that the statute of limitations applicable to all their claims was the six-year statute governing injury to real property, WIS. STAT. § 893.52. Alternatively, they argued that no statute of limitations barred their claims because they sought damages for a "continuing injury to real property."

¶ 11 Meanwhile, Munger and the Association were not content with the ALJ's decision upholding the DNR's denial of their remediation permit. As a result, and prior to filing this action against the Respondents, Munger and the Association had petitioned for judicial review of the agency decision. In the present action, in addition to seeking dismissal of Count I, the Respondents also requested dismissal of Counts III and IV because the substance of those claims was identical to the issues being litigated in the judicial review action. The Respondents asserted the WIS. STAT. ch. 227 review process was the exclusive means for Munger and the Association to obtain review of the DNR decision denying Munger's permit application. The circuit court ultimately affirmed the ALJ's decision in the judicial review action, observing that "more than one human intervention" had affected water flow at the outlet creek and rejecting the notion that Munger and the Association were entitled to a permit to restore the creek to the condition in which it existed prior to the 2007 trespass.

¶ 12 In the present action, the circuit court granted the Respondents' motion to dismiss Counts I, III and IV. As to Count I, intentional trespass, the circuit court concluded the claim was barred by the statute of limitations for intentional torts contained in WIS. STAT. § 893.57, as more than three years had elapsed between the date of the alleged offense and the date Munger and the Association commenced their action. With respect to Counts III and IV, the court concluded the "primary focus of the pleadings ... [is] the conduct of the DNR[,]" and, as such, those matters were best addressed in the WIS. STAT. ch. 227 action for judicial review.

¶ 13 Munger and the Association filed a motion for reconsideration. In relevant part, they argued the statute of limitations pertaining to their trespass claim was the six-year statute for injury to property, WIS....