Failure to State Claim

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WI Court of Appeals – District IV

Case Name: Greg Krueger v. Allenergy Hixton, LLC,

Case No.: 2017AP1802

Officials: Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

Focus: Failure to State Claim

A group of Town of Hixton landowners sued AllEnergy Hixton, LLC, seeking a permanent injunction that would stop AllEnergy from constructing a frac sand mine in the town. The circuit court granted AllEnergy’s motion to dismiss the landowners’ complaint. The landowners appeal.

The question here is whether the landowners’ complaint states a claim. Before addressing that question, we address a preliminary matter: whether, when we assess whether there are allegations sufficient to state a claim, we should consider affidavits submitted after AllEnergy moved to dismiss the complaint. We conclude that the answer is no. Turning to whether a claim is stated within the four corners of the complaint, we first consider whether an anticipated private nuisance claim, the only claim that the landowners argue they stated, is a recognized claim in Wisconsin. On that topic, we conclude that Wisconsin case law, although seldom using a label such as “anticipated private nuisance,” does recognize that claim. Finally, we explain why we conclude that the complaint does not state a claim for anticipated private nuisance. Accordingly, we affirm the circuit court.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.