COURT OF APPEALS DECISION DATED AND FILED March 23, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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Timothy J. Nelesen,
Plaintiff-Appellant, v. Mike Michlig and City of
Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
¶1 PETERSON, J.[1] Timothy Nelesen appeals a summary judgment dismissing his negligence and nuisance claims against the City of Appleton and Mike Michlig, the City’s forester (collectively, the City). Nelesen argues the circuit court erred when it concluded the City was immune from liability for his claims. We disagree and affirm.
BACKGROUND
¶2 On
¶3 Nelesen sued the City to recover his $1,000 insurance deductible, alleging the City’s care of the tree that damaged his property[2] was negligent and constituted maintenance of a nuisance. The City moved for summary judgment, arguing it was immune from Nelesen’s claims because they challenge an act that involves the City’s discretion or judgment. The circuit court agreed and granted summary judgment in favor of the City.
DISCUSSION
¶4 Whether a circuit court properly granted summary judgment is
a question of law we decide independently of the circuit court. Torgerson v. Journal/Sentinel, Inc.,
210
¶5 Our supreme court has interpreted
¶6 Nelesen argues the City had a ministerial duty to “maintain, repair, or replace the tree after receiving notice of interference with [Nelesen’s] house.”[4] We are perplexed by this argument because it is unclear what type of “maintenance” or “repair”—other than the trimming and inspecting the City did— Nelesen is advocating was necessary. Further, it is undisputed that after the City performed this maintenance, it received no further notice of problems until the storm that damaged Nelesen’s property in 2008. Accordingly, we accept the City’s invitation to construe Nelesen’s argument as suggesting the City should have removed the tree when it inspected it in 2007 instead of trimming it.[5]
¶7 In any event, the record does not bear out Nelesen’s claim
the City ever had a non-discretionary duty.
Determining whether a tree should be trimmed or removed requires an
arborist to exercise judgment. Indeed,
the Appleton Municipal Code specifies multiple goals for the City’s tree care,
including “guard[ing] against dangerous conditions” as well as “promot[ing] and
enhanc[ing] the beauty and general welfare of the City ….”
¶8 In his reply, Nelesen contends the City’s brief “myopically focus[es] on [its] alleged discretionary decision to trim [the] tree in 2007”[6] rather than addressing past incidents in which branches had fallen from the tree. While difficult to discern, this argument appears to be essentially that the tree was so unhealthy and dangerous that the City had no choice but to remove it.
¶9 The problem with this argument, though, is that Nelesen fails to present any concrete evidence contradicting the arborists’ conclusions about the tree’s health, protesting instead that their evaluation should not be believed because “the [tree’s] score was determined by the same people who allowed this tree to break in the first place.” The only evidence of the tree’s health he offers is that branches had broken off and fallen on his property in the past—prior to the trimming. While this might indicate a problem with the tree, it by no means controverts or even seriously calls into doubt the arborists’ assessment the tree was healthy enough to merit trimming instead of removal. Because Nelesen has provided no evidence the tree was so unhealthy removal was the only option, he has failed to show the City’s care of the tree was not discretionary. The circuit court therefore properly concluded the City was immune from liability for Nelesen’s claims.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The record indicates both trees near Nelesen’s property were removed after the storm. In his affidavit and briefs, however, Nelesen only refers to one tree as damaging his property. Therefore, for the remainder of the opinion, we refer to “the tree,” in the singular, as the focus of Nelesen’s claims.
[3]
[4]
Nelesen also attempts to create a disputed issue of fact where there is none
about the dates the City received and responded to his trimming request. The City’s service request form lists the
date Nelesen’s request was received as June 18, 2007 and the work completed on
June 26, 2008. The City’s
electronic records, however, list the trimming date as
[5] The City also points out that despite Nelesen’s apparent contention the tree should have been removed, Nelesen himself requested the City trim the tree.
[6] We note that this statement appears to concede the City’s care of the tree was discretionary.