01-1404 Kohlbeck d/b/a Dunbars Bear Necessities v. Reliance Construction Co. and Department of Transportation

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“[T]he Kohlbecks were not required to specify exactly what their request for injunctive relief would entail. It is sufficient that they ‘state[d] a cause of action and … fairly inform[ed] the opposite party of what it [was] called upon to meet by alleging specific acts.’…

“Because both legal and equitable remedies are made available, but the statute indicates no ‘entitlement’ to injunctive relief, we perceive no intent to eliminate the common law preference for legal over equitable relief. We therefore agree with the circuit court that the Kohlbecks will be required to show that an injunction is necessary to prevent future harm to their property and that they have no adequate legal remedy.

“Although we agree that these are the general requirements for obtaining a permanent injunction, we disagree that the Kohlbecks’ suit must be dismissed at the pleading stage because they have failed to show an injunction is necessary to prevent future injury or that they have no adequate remedy at law. The Kohlbecks must be given an opportunity to prove that an injunction is necessary to prevent future harm; they were not required to do this in their complaint.”

Judgment reversed and cause remanded.

Recommended for publication in the official reports.

Dist IV, Dane County, O’Brien, J., Dykman, J.

Attorneys:

For Appellant: R. George Burnett, Green Bay

For Respondent: Michael J. Losse, Madison