COURT OF APPEALS
DECISION
DATED AND FILED
November 16, 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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Randall J. Wilson,
Plaintiff-Appellant,
v.
Hunt Forest Products, Inc.,
Defendant-Respondent,
Robert E. Karlen and Susan Karlen,
Defendants.
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APPEAL
from a judgment of the circuit court for Chippewa County: FREDERICK
A. HENDERSOn, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Randall Wilson appeals from
a judgment dismissing his action for timber theft against Hunt Forest Products,
Inc. Wilson argues the circuit court erred by
denying him summary judgment. Wilson also claims
evidence at trial proved he was entitled to judgment. We affirm.
¶2 Wilson owned a farm north of
the Yellow River near Cadott. Wilson’s
neighbor, Robert Karlen, hired Hunt to harvest timber. Wilson
alleged Hunt harvested timber on his land and sued both Karlen and Hunt for
timber theft under Wis. Stat. § 26.09.
¶3 A two-day bench trial commenced in June 2007. Wilson
put in his case and the defendants put in part of their defense but did not
rest when the circuit court adjourned the trial after the first day. Hunt filed a motion for summary judgment on
the grounds that Wilson
failed to meet his burden of proof as to ownership of the disputed property. The circuit court denied the motion,
concluding a genuine issue of material fact existed as to the ownership of the
disputed area. On December 2, 2008, the
court conducted the second day of trial.
The court subsequently granted judgment for Hunt, dismissing the case on
its merits. Wilson now appeals.
¶4 Wilson
first argues the circuit court erred by failing to grant him summary judgment. The methodology for determining whether a
genuine issue of material fact exists has been stated many times and we need
not repeat it here. See Grams v. Boss, 97 Wis.
2d 332, 337-39, 294 N.W.2d 473 (1980).
We apply the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315-17, 401 N.W.2d 816 (1987).
¶5 Here, the circuit court observed that a claim for timber
theft requires proof of ownership of the land where the trespass occurred. Wilson
conceded at the summary judgment hearing that his deed was ambiguous. The deed could grant Wilson
title to the entire forty-acre tract on which the disputed acreage sat, or it
could grant him that portion of the disputed forty acres “lying north of the Yellow River.”
¶6 Wilson also conceded in his
brief in opposition to the motion for summary judgment that the evidence at
trial demonstrated “there may be 3 branches to the Yellow
River ….” In this case, the
land between the northernmost and the southernmost branches of the Yellow River comprised the disputed area. Karlen believed the main branch of the Yellow River was the northernmost branch, which would give
him title to the land Hunt logged. A prior owner of Wilson’s property stated in an affidavit that
the middle branch was the main branch. Further
complicating matters was uncertainty where the Yellow
River flowed at the time the deeds were conveyed.
¶7 In its decision on summary judgment, the circuit court emphasized
the deed’s ambiguities and concluded Wilson
had not established the absence of a genuine issue of material fact pertaining
to which branch of the river his deed referenced. The court stated:
[T]he burden of proof is on the plaintiff to prove that
at the time of the timber trespass that he owned the land, and I don’t think
that’s been done, I think it’s a dispute of material fact.
So I’m not going to grant summary judgment. As the record stands, I don’t know how you
are going to do that unless you get some surveyors. And maybe this dispute isn’t economically
feasible in light of the land swap, but that is something you are going to have
to do. So we set it for trial I guess.
¶8 Wilson
also argues conclusive ownership was established by the fact that he paid taxes
on twenty-five of the disputed forty acres.
Wilson
reasons that Karlen therefore paid taxes on fifteen acres, yet Hunt cut 22.2
acres, more than Karlen could have owned.
Wilson
provides no citation to legal authority supporting the conclusion that payment
of taxes establishes ownership or boundaries, and we will therefore not
consider the argument. See
Kruczek v. DWD, 2005 WI App 12, ¶32, 278 Wis. 2d 563, 692 N.W.2d 286.
¶9 Wilson
further argues he established ownership by adverse possession. Wilson’s
argument in this regard is underdeveloped and we will not abandon our
neutrality to develop it further. See
M.C.I.,
Inc. v. Elbin, 146 Wis. 2d
239, 244-45, 430 N.W.2d 366 (Ct. App. 1988).
Moreover, Wilson
does not refute Hunt’s arguments concerning adverse possession and we therefore
deem the issue conceded. See Charolais
Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979).
¶10 We conclude the circuit court correctly determined that a
genuine dispute of material fact existed regarding the ownership of the land
upon which the trespass allegedly occurred.
Summary judgment was therefore inappropriate.
¶11 Wilson
next insists evidence at trial proved he was entitled to judgment and the
circuit court thus erred by dismissing the case on the merits. We disagree.
The court concluded Wilson
failed to prove he owned the disputed parcel and sufficient evidence in the
record supports the court’s determination. Significantly, Wilson did not introduce evidence of a survey
during trial, despite the court’s urging.
Hunt’s forester, Kenneth McIntyre, testified Karlen gave him a
hand-drawn map and an aerial photograph of the land. McIntyre checked the plat book “which
indicated that [Karlen] did own the piece in question.” McIntyre also testified he obtained a cutting
permit from the county clerk.
¶12 Karlen testified his family moved onto their property in
1963. He stated he never saw a fence
along the disputed area of the Yellow River, the
remnants of a fence, or cattle grazing there.
Karlen also testified he never saw anyone other than himself harvest
trees from the disputed area. Karlen
testified he previously had timber logged from the disputed area pursuant to
permits in 1994 and 1995.
¶13 The court specifically found McIntryre and Karlen credible. The circuit court as fact finder is the
arbiter of credibility. Cogswell
v. Robertshaw Controls Co., 87 Wis.
2d 243, 249-50, 274 N.W.2d 647 (1979).
Ultimately, the court concluded, “The whole case here I think rests on
burden of proof of the plaintiff. The
plaintiff had to prove that it was the owner of this land, and I don’t think
the plaintiff has done that.”
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5.
(2007-08).