890 N.W.2d 22
Wis. Ct. App.2016Background
- In Oct. 2007 four respondents allegedly entered Bradley Munger’s land at Summit Lake outlet and removed material from the creek; criminal citations followed and were later resolved with trespass/no-contest pleas.
- Munger (and the Summit Lake Association) alleged the 2007 conduct damaged Munger’s riprap/shoreline and sought remediation; the DNR later cited Munger for unpermitted riprap placed in 2009.
- Munger applied for a DNR permit in 2010 to repair alleged 2007 damage; the DNR denied the permit, finding the effects of many natural and human actions could not be separated from the 2007 event.
- Munger and the Association pursued administrative contested-case review (ALJ upheld DNR denial) and then filed suit in 2011 with four counts: (I) intentional trespass, (II) injury to real property, (III) public nuisance/inadequate enforcement, (IV) declaratory judgment re: 1989 permit.
- Circuit court dismissed Counts I, III, IV against the individual respondents (statute of limitations and failure to state a claim) and later granted summary judgment on Count II: Association lacked standing; Munger’s property-damage claim precluded by prior DNR findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which statute of limitations governs intentional trespass | § 893.52 (six-year property-damage period) or continuing-harm tolling — so claim timely | § 893.57 (limitations for intentional torts) applies; trespass is an intentional personal tort and is time-barred | § 893.57 governs intentional trespass; 2007 trespass was time-barred when suit filed in 2011 |
| Whether the 2007 trespass was a continuing injury (tolled) | Harm is continuing/public nuisance so limitations did not run | The 2007 trespass was a single, discrete intrusion; nuisance principles don’t convert it into a continuing trespass | 2007 entry was a single incident; no continuing trespass; limitations ran |
| Validity of Count III (public nuisance/enforcement) | Dismissal of DNR citations and failure to require remediation made a continuing public nuisance actionable against respondents | The allegations chiefly challenge DNR conduct and are the subject of administrative judicial-review; not a proper claim against individuals | Count III failed to state a claim against the individual respondents; issues belong in the administrative/ch.227 review context |
| Count II (injury to real property): Association standing and Munger’s claim | Association: asserts members were harmed by lake-level effects; Munger: merits of damage claim | Defendants: Association lacks standing (no alleged member injury); Munger’s property-damage claim is barred by issue preclusion from DNR findings that causation is inseparable | Association lacks standing (no pleaded member injury); Munger’s claim precluded—DNR/ALJ determined causation could not be separated, and applying issue preclusion is fair |
Key Cases Cited
- Data Key Partners v. Permira Advisers LLC, 356 Wis. 2d 665, 849 N.W.2d 693 (2014) (pleading standard; motion to dismiss review).
- Zastrow v. Journal Communications, Inc., 291 Wis. 2d 426, 718 N.W.2d 51 (2006) (breach of fiduciary duty characterized as intentional tort subject to intentional-tort limitations).
- Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 563 N.W.2d 154 (1997) (trespass vindicates the right to exclude; damage inferred; punitive/nominal damages available).
- Paige K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 594 N.W.2d 370 (1999) (issue preclusion principles).
- Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis. 2d 381, 497 N.W.2d 756 (Ct. App. 1993) (administrative adjudications given preclusive effect when certain criteria satisfied).