COURT OF APPEALS DECISION DATED AND FILED August 10, 2010 A.
John Voelker Acting 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
and CROSS-APPEAL from a judgment of the circuit court for
Before
¶1 PER CURIAM. PJ Ventures, Inc., appeals
a summary judgment dismissing its trespass action against
Background
¶2 In a series of transactions beginning in 2003, PJ Ventures purchased land from a subsidiary of International Paper. International Paper had granted permission for the County to maintain snowmobile trails and use a logging bridge spanning a creek for that purpose. Because the bridge was in disrepair, International Paper permitted the County to construct a new bridge for snowmobilers. The bridge was constructed by the County with funding from the Department of Natural Resources. In February 2005, the new bridge was installed and the old bridge was removed. PJ Ventures sought access to the bridge, which was on International Paper’s property. The County, fearing use by larger vehicles would exceed the weight limit, barred access to the bridge and eventually put up a gate and blocked the bridge with boulders.
¶3 In September 2005, PJ Ventures purchased an easement from International Paper’s subsidiary to guarantee a pathway across International Paper’s property to parcels PJ Ventures had previously purchased. The earlier sales agreements and the deeds did not mention an easement across the creek, although informal permission to traverse the property had been given. Although the bridge is located in the pathway described in the written easement, the bridge is not explicitly mentioned.
¶4 In May 2006, the County informed PJ Ventures it was closing
the bridge permanently and planned to relocate the bridge. Shortly thereafter, International Paper sold
the land in question to CF/FIA. In
August 2006, PJ Ventures brought an action against the County seeking a
declaratory judgment that it had easement rights to the bridge. While that action was pending,
¶5 At a hearing held November 18, 2008, the court dismissed the
action against International Paper, its subsidiary and CF/FIA. The court found the bridge was a fixture on International
Paper’s property and therefore the bridge belonged to International Paper or
its successor. Written judgments
dismissing the actions against International Paper, its subsidiary and CF/FIA
were entered December 31, 2008. The County
filed a motion for reconsideration. By
stipulation and order entered March 4, 2009, the court again dismissed all
claims against CF/FIA and ordered no costs against any party based on the
stipulation. By order entered April 30,
2009, the court dismissed the action against
Discussion
¶6 The circuit court correctly concluded the trespass action
against the County is barred by Wis.
Stat. § 893.80(4). That
statute unambiguously provides “No suit may be brought against any … governmental
subdivision or any agency thereof for the intentional torts of its officers,
officials, agents or employees ....”
PJ Ventures does not challenge the County’s status as a governmental
subdivision, nor does it characterize the removal of the bridge as something
other than an intentional tort. It cites
nuisance cases for the proposition that the government can be sued for
interfering with property rights, but concedes it has not commenced a nuisance
action. In addition, the cases it cites
involve negligent creation of a nuisance, not intentional acts. See, e.g.,
¶7 After the County moved for summary judgment based on
governmental immunity and after the court dismissed the actions against International
Paper and CF/FIA, PJ Ventures requested leave to amend its complaint to make a
claim under Wis. Stat. ch. 32,
eminent domain. The circuit court denied
the motion after concluding the amended complaint would fail to state a claim
for which relief could be granted. Under
Wis. Stat. § 802.09(1), a
pleading may be amended only by leave of the court or consent of the adverse
party if more than six months has elapsed since the filing of the initial
summons and complaint. Whether to allow
amendment is discretionary and the circuit court’s ruling will be upheld unless
it failed to exercise its discretion or the facts do not support its decision
or the court applied the wrong legal standard.
Hess v. Fernandez, 2005 WI 19, ¶12, 278
¶8 Here, after the circuit court granted summary judgment to the
other defendants, and on the eve of its decision that the County was immune
from its tort claims, PJ Ventures moved the Court (informally, in its
Supplemental Brief in Opposition to Forest County’s Motion for Summary
Judgment) to amend its complaint. The
complaint had been amended once before and the request was made more than two
and one-half years after the initial complaint was filed. Absent justification, courts are reluctant to
grant leave to amend pleadings once litigation has been under way for a significant
time. See, e.g., Grothe
v. Valley Coatings, Inc., 2000 WI App 240, ¶13, 239
¶9 We dismiss
¶10 The County cannot appeal the March 4, 2009, order for two
reasons. First, it consented to the
judgment. A party waives the right to
appeal a judgment if it has consented or stipulated to entry of the judgment.
By the Court.—Judgment affirmed; cross-appeal dismissed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.