Ziemann v. Village of North Hudson

• Decision Date: 30 June 1981
• Docket Number: No. 79-1236,79-1236
• Citation: 307 N.W.2d 236,102 Wis.2d 705
• Parties: Harold J. ZIEMANN, Ruth Y. Ziemann, James D. Groves, Maxine Groves, Gene Hustad, and Ardys J. Hustad, Plaintiffs-Appellants-Petitioners, v. VILLAGE OF NORTH HUDSON, a domestic municipal corporation, Richard J.Brynildsen, William J. Gilbert, Hugh F. Gwin, Frederick Johnson, Defendants, Boy's Camp of Hudson, Wisconsin, Inc., a domestic corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 236

307 N.W.2d 236

102 Wis.2d 705

Harold J. ZIEMANN, Ruth Y. Ziemann, James D. Groves, Maxine Groves, Gene Hustad, and Ardys J. Hustad Plaintiffs-Appellants-Petitioners, v. VILLAGE OF NORTH HUDSON, a domestic municipal corporation Richard J.Brynildsen, William J. Gilbert, Hugh F Gwin, Frederick Johnson, Defendants Boy's Camp of Hudson, Wisconsin, Inc., a domestic corporation, Defendant-Respondent.

No. 79-1236.

Supreme Court of Wisconsin.

Argued June 1, 1981.

Decided June 30, 1981.

Joel D. Porter (argued), Hudson, for plaintiffs-appellants-petitioners; John W. Fetzner and Fetzner & Porter, Hudson, on brief.

Thomas L. McCormack (argued), Baldwin, for defendant-respondent; Ardell W. Skow and Doar, Drill & Skow, S. C., Baldwin, on brief.

ABRAHAMSON, Justice.

The petitioners, Harold J. Ziemann, Ruth Y. Ziemann, James D. Groves, Maxine Groves, Gene Hustad, and Ardys J. Hustad, seek review of a decision of the court of appeals, Ziemann v. Village of North Hudson, 99 Wis.2d 37, 298 N.W.2d 233 (Ct.App.1980), which affirmed a judgment of the circuit court for St. Croix county, Marshall Norseng, Circuit Judge presiding. The circuit court judgment dismissed the petitioners' complaint against all the named defendants, including the respondent on this review, Boy's Camp of Hudson, Wisconsin, Inc., for failure to state a claim upon which relief could be granted. We conclude that the case is moot. Accordingly, we dismiss the review and, because the case became moot while the court of appeals was considering the appeal, we vacate the decision of the court of appeals.

The matter having come before us from a judgment dismissing the complaint, we begin our review by stating the facts as set forth in the complaint.

The petitioners are owners of parcels of land in Outlot 85. The defendant Boy's Camp owned land in Outlot 85 and, when dividing and selling parcels of the land, recorded an affidavit stating that it intended to convey parcels subject to the protective covenants set forth in the affidavit. The deeds conveying the parcels to the petitioners incorporated by appropriate reference the affidavit and the protective covenants contained in the affidavit. The affidavit provided, inter alia, that no lot or parcel was to be used except for residential purposes. ¹ This suit involves land which Boy's Camp owned in Outlot 85 when this action was commenced. The land was subject to the affidavit. The pertinent sections of the affidavit read as follows:

"... This affidavit is made for the purpose of setting forth certain protective covenants running with the land, which said covenants are intended to promote the sound development of the proposed residential area above described and give assurance to the owners of said lots that no other lot owner within the protected area can use property in a way that will destroy values, lower the character of the neighborhood, or create a nuisance.... 1. No lot or parcel shall be used except for residential purposes, and no buildings shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling, not to exceed two stories in height, together with a private garage for the use of the occupants of said single family dwelling, except that a guest house, not to be rented, may also be erected.... No noxious or offensive trade or activities shall be carried on upon any lot or parcel or shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.... 8. Enforcement of these covenants shall be proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages...."

The complaint denominates three claims against the several defendants in the case. The first and second claims name as defendants Boy's Camp, and Hugh Gwin and Frederick Johnson, both described as agents of Boy's Camp.

The pertinent allegation applicable to the first claim is that "on numerous occasions" these defendants "have attempted to transfer" that part of outlot 85 owned by Boy's Camp to "the Village of North Hudson by sale or condemnation for use as a park contrary to said recorded restrictive covenants, and have encouraged, and cooperated with, the Village of North Hudson to so acquire said property."

The pertinent allegations applicable to the second claim are that the defendants "represented" to petitioners "orally, in said recorded restrictive covenants, and otherwise, that they would promote the sound development" of outlot 85; that "they would prevent any other lot owner of said real property from using the property in a way which would destroy the values, lower the character of the neighborhood, or create a nuisance; and, that they would not transfer or attempt to transfer any portion of said real property contrary to said recorded restrictive covenants, or for any use not conforming to said covenants"; and that "said representations were otherwise untrue ... (and) were made with intent to deceive ... and to induce" petitioners to acquire their land.

The third claim names as defendant the three defendants already referred to, as well as defendant Village of North Hudson, defendant William J. Gilbert, an attorney, agent, and employee of the Village of North Hudson, and defendant Richard J. Brynildsen, a trustee of the Village of North Hudson. The pertinent allegation applicable to this third claim is that the defendants conspired to transfer that part of Outlot 85 owned by Boy's Camp to the Village of North Hudson by sale or condemnation for use as a park, contrary to the recorded restrictive covenants and the representations in order to benefit themselves and to the detriment of petitioners.

The petitioners alleged they suffered injury and sought money damages. The petitioners did not expressly seek an injunction.

The defendants brought motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Sec. 802.06(2)(c), Stats. 1979-80. The motion to dismiss for failure to state a claim tests the legal sufficiency of the claim. The facts pleaded and all reasonable inferences from the pleadings are admitted to be true, but only for purpose of testing the legal sufficiency of the claims, not for the purpose of trial. The pleadings are to be liberally construed with a view to substantial justice to the parties. The complaint is not required to state all the ultimate facts constituting each cause of action; and the complaint should be dismissed as legally insufficient only if it is clear that under no conditions can the plaintiff recover. Starobin v. Northridge Lakes Development Co., 94 Wis.2d 1, 8, 287 N.W.2d 747 (1980).

The trial court granted the motion dismissing the action against defendant Village of North Hudson, ruling that the petitioners had not followed the statutory procedure for presenting a claim against a village, and granted the motion dismissing the action against all the defendants, ruling that park use per se did not violate the protective covenant stating that no lot shall be used except for residential purposes.

On August 3, 1979, the petitioners appealed that part of the judgment rendered in favor of defendant Boy's Camp. Petitioners did not appeal from those parts of the judgment in favor of the other named defendants. After motions and correspondence, the court of appeals "clarified" the appeal by ordering that the petitioners and the Boy's Camp were the only parties to the appeal. The court of appeals concluded that the protective covenants did not prohibit use of the property as a public park and affirmed the judgment of the trial court. The petitioners filed a petition with this court to review the decision of the court of appeals. We agreed to hear the review.

Unknown to the court of appeals before it rendered its decision or to this court prior to this court's granting the petition to review, within one week after the petitioners filed their notice of appeal with the court of appeals, Boy's Camp conveyed the land which is the subject of this lawsuit by warranty deed to the Village of North Hudson pursuant to the Village's jurisdictional offer in condemnation proceedings under sec. 32.06(3), Stats. The recorded deed from Boy's Camp to the Village states that the conveyance is made "together with and subject to the Protective Covenants." ²

After this court granted petitioners' petition to review, Boy's Camp filed a motion in this court to dismiss the review on the ground that its conveyance of the land to the Village "together with and subject to the Protective Covenants" rendered the case moot. We denied the motion and heard oral argument. Upon careful consideration of the record, briefs and oral argument, we conclude that this conveyance by Boy's Camp rendered the case moot and that the case was moot when the court of appeals filed its decision. Our conclusion is based on a consideration of the pertinent facts and this court's definition of mootness.

Boy's Camp, the sole defendant involved in the appeal, has disposed of its interest in the property which is the subject of this dispute. The...