By: Derek Hawkins//December 6, 2016//
WI Court of Appeals – District III
Case Name: Bradley C. Munger et al v. Richard W. Seehafer
Case No.: 2014AP2594
Officials: Stark, P.J., Hruz and Seidl, JJ.
Focus: Court Error – Summary Judgment
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”). 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. 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. 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. 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.
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