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COURT OF APPEALS DECISION DATED AND FILED February 17, 2011 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. |
2009AP2308 |
Cir. Ct. No. 2004CV408 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT IV |
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SWS, LLC,
Plaintiff-Appellant-Cross-Respondent, v. Steven F. Weynand,
Defendant-Respondent-Cross-Appellant. |
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APPEAL
and CROSS-APPEAL from a judgment and orders of the circuit court for
Before Vergeront, P.J., Sherman and Blanchard, JJ.
¶1 BLANCHARD, J. SWS, LLC appeals from a judgment, following a jury trial, granting a prescriptive easement to Steven Weynand over property owned by SWS, and from orders denying SWS’s postverdict motions. Steven cross-appeals the judgment, challenging the circuit court’s rulings (1) imposing a seasonal limitation on his use of the prescriptive easement and (2) allowing SWS the option of removing an electrical box in the proposed location of the easement, or in the alternative allowing SWS to grant Steven an easement west of the box, maintaining a minimum fourteen-foot width, but curving around the box.
¶2 We conclude that the trial court properly denied SWS’s motions for postverdict relief. We affirm the denial of: (1) the motion for judgment notwithstanding the verdict, because we conclude that the evidence presented at trial is not sufficiently clear and convincing to establish an agency relationship between Steven and his father during the relevant time period that would defeat Steven’s prescriptive easement claim; (2) the motion to change the jury’s answer on special verdict, because we conclude that there was sufficient evidence to find the prescriptive easement; and (3) the motion for a new trial based on newly discovered evidence, because we conclude that SWS was not diligent in finding the evidence.
¶3 We also affirm the trial court’s rulings challenged by Steven on cross-appeal. We affirm the trial court’s imposition of seasonal limitations on the prescriptive easement because the court reasonably concluded that winter use would unreasonably burden SWS’s property. We affirm the court’s decisions regarding the electrical box because they are supported by a reasonable factual basis under the correct legal standard.
BACKGROUND
¶4 In 1962, Arnold Weynand purchased a large piece of property near
¶5
¶6 After Arnold’s death in 1999, SWS, a development company, purchased Arnold’s property, surrounding Steven’s lots, and declared its land as a condominium.
¶7 SWS filed an action against Steven shortly after purchasing
the property to enforce the terms of a warranty deed on a parcel that is not at
issue in this appeal. Steven made
several counterclaims, including a claim that, from 1975 to 2005, his tenants
renting the westernmost of his four lots, Mr. and Mrs. Hefty, created a
prescriptive easement over a gravel road.
This road is called
¶8 At a jury trial, the jury found that Steven had established a
prescriptive easement over
¶9 SWS filed a motion seeking three alternative forms of postverdict relief: (1) judgment notwithstanding the verdict pursuant to Wis. Stat. § 805.14(5)(b) (2009-10);[1] (2) changing the jury’s answers to the special verdict pursuant to § 805.14(5)(c); or (3) a new trial in the interest of justice pursuant to Wis. Stat. § 805.15. After discovering that the Hefty lot is titled in the name of a revocable trust in which Arnold was the beneficiary and Steven was the trustee, SWS filed a motion for a new trial under § 805.15(3) based on newly discovered evidence. The court denied all of SWS’s motions.
¶10 Additional facts relevant to the issues raised on appeal are discussed as necessary below.
DISCUSSION
Appeal
of SWS
¶11 On appeal, SWS argues that the trial court improperly denied its postverdict motions. We begin by addressing SWS’s motion for judgment notwithstanding the verdict, then its motion to change the jury’s answer, and finally its motion for a new trial. The first two motions focus on theories of agency, and the third on the potential use of evidence of a revocable trust at a new trial.
A.
Motion for Judgment
Notwithstanding the Verdict: Agency
¶12 SWS argues that the trial court erred in denying SWS’s motion for judgment notwithstanding the verdict. SWS asserts that, as a matter of law, the jury’s finding of prescriptive easement cannot stand because Steven acted as an agent of Arnold’s on the property and therefore cannot claim a prescriptive easement adversely against his principal. We affirm because the evidence presented at trial fails to establish an agency relationship between Steven and Arnold during the time period establishing the prescriptive easement.
¶13 A motion for judgment notwithstanding the verdict “does not
challenge the sufficiency of the evidence to support the verdict, but rather
whether the facts found are sufficient to permit recovery as a matter of law.” Logterman v. Dawson, 190
¶14 We review de novo the trial court’s decision on a motion for
judgment notwithstanding the verdict because it presents a question of law,
although we benefit from the trial court’s analysis. Danner v. Auto-Owners Ins., 2001 WI 90, ¶41, 245
¶15 Turning from our standard of review to the substantive law, a
party asserting the existence of an agency relationship has the burden of
proving the existence and nature of the agency.
Felland v. Sauey, 2001 WI App 257, ¶29, 248
¶16 SWS asserts that Steven’s testimony establishes that Steven was
an agent for his father during the period of alleged prescriptive use. SWS relies on the general principle that a
possessor who has entered as an agent of the property owner cannot claim
adversely against the owner during the agency relationship, and argues that therefore
Steven cannot claim adverse use against his father’s property. See
¶17 A prescriptive easement is established by adverse use of the
property that is uninterrupted for a continuous twenty years. Wis.
Stat. § 893.28(1); Mushel v. Town of
¶18 At trial, Steven testified to the following regarding his work for his father and mother’s rental business. Steven first worked for the rental business for six months during 1973. During that time, Steven learned the bookkeeping system, checked the rents, paid the property taxes, and “basically learned how they were doing their business.” In 1976, Steven came back to work for both of his parents until 1978. After his parents’ divorce, Steven worked for his father from 1978 to 1983. Steven’s job duties from 1978 to 1983 were to:
do the typing and writing and answering of the calls, negotiate the leases, collecting the rents and depositing them into my dad’s account, meeting with the assessor trying to get the assessment reduced when the assessor raised the assessment, meet with the plumber to put in the new septic tanks, meeting with Sauk County Planning and Zoning to get the permits to where we could put in the septic tanks, helping my dad file his federal and Wisconsin income tax returns, all the jobs that are involved in the rental business.
Steven testified that his father made all of the decisions regarding the property, including how much to charge for rent and the types of improvements to make on the property. After ending full-time employment with his father, Steven continued to work for his father until 1993. From 1983 to 1993, Steven testified that he worked “[v]ery sporadically, not full-time, not even part-time. [My father] wanted me to help renovate this farmhouse here, so I tried to do that.” Steven did not testify to any other details regarding his work from 1983 to 1993.
¶19 Our review of the evidence reveals that the evidence was not so clear and convincing as to have permitted impartial minds to have come to only one conclusion on this issue: that Steven was an agent for his father during the relevant period of time sufficient to defeat the prescriptive easement.
¶20 The evidence presented at trial does not clearly establish how long the alleged agency relationship lasted. Even if the work responsibilities that Steven testified to qualified him to be an agent of his father from 1978 to 1983, there is insufficient evidence to establish whether such an agency relationship terminated in 1983, establishing twenty-one years of adverse use, or whether such agency relationship continued until 1993, establishing only eleven years of adverse use and defeating the prescriptive easement. The only record fact regarding Steven’s work duties for his father from 1983 to 1993 was that he worked “[v]ery sporadically” and that he helped his father renovate a farmhouse. This does not establish as a matter of law that he was his father’s agent after 1983.
¶21 SWS argues that, even if the agency relationship ended in 1983,
the period of the alleged prescriptive use would be shorter than the minimum required
twenty years, because adverse use ended in 2003, not 2005. SWS alleges that the adverse use ended in
2003 because that is when the approximately three-and-one-half-foot-wide electrical
box was installed in the middle of
¶22 In sum, SWS has failed to prove that an agency relationship occurred
during the time period required to establish the prescriptive easement. The evidence showed that the Heftys used the
¶23 Because there is not clear and convincing evidence to establish an agency relationship between Steven and Arnold during the time period establishing the prescriptive easement, we conclude that the trial court properly denied SWS’ motion for judgment notwithstanding the verdict.
B.
Motion to
Change Jury’s Answer: Agency
¶24 SWS challenges the sufficiency of the evidence to support the
jury’s “yes” answer to the following question on the special verdict: “Has
Steven F. Weynand established a prescriptive easement, in favor of Weynand Lot
1, over SWS L[imited] C[ommon] E[lement areas] 2, 3, and 4?” SWS argues that the undisputed evidence at
trial established that Steven was an agent of
¶25 A motion to change the jury’s answer to a special verdict
challenges the sufficiency of the evidence to support the verdict and must be
considered in context with instructions given to the jury. Kovalic v. DEC Intern., Inc., 161
¶26 The jury was instructed that Steven must prove three elements to establish a prescriptive easement: hostile use; visible, open, and notorious use; and continuous and open use for at least twenty years. The jury was also instructed that “[a] tenant’s use of claimed property in relation to his tenancy is considered use by the landlord.” The court did not give the jury an instruction on agency.[2]
¶27 After reviewing the record, we conclude that there was not “such a complete failure of proof that the verdict must be based on speculation” that the use of Old Farm Road was hostile, visible, open, and notorious, and was continuous and open for at least twenty years. Instead, there was credible evidence to support these findings.
¶28 That proof included the following. The frequency of the Heftys’ use of Old Farm Road
between 1975 and 2005 when they rented one of Steven’s lots was constant throughout
the thirty years: they used the road
nearly every weekend that they were there, usually from April to
September. Mr. Hefty did not remember a
time during the thirty years that he did not use the road. The Heftys did not ask Arnold or Steven for
permission to use the road, nor did they try to hide their use of the road. The Heftys used the road to put in and take
out boats and personal watercraft and to haul gas to the boats. The renters of Steven’s other three lots also
used
¶29 Further, as discussed above at ¶¶19-22, there is not clear and convincing evidence to establish that an agency relationship existed between Arnold and Steven during the time period necessary to create the prescriptive easement. Because the evidence did not clearly demonstrate an agency relationship, we are not persuaded by SWS’s argument that the evidence presented was insufficient to support the jury’s verdict. The jury’s verdict is supported by credible evidence in the record and not based on “speculation.” Therefore, we do not disturb the jury’s answer.
C.
Motion for a
New Trial: Revocable Trust
¶30 After trial, SWS discovered that the Hefty lot is titled in the
name of a revocable trust in which
¶31 Before granting a motion for a new trial on the ground of newly discovered evidence, the trial court must find that: (1) “the evidence has come to the moving party’s notice after trial”; (2) “the moving party’s failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it”; (3) “the evidence is material and not cumulative; and” (4) “the new evidence would probably change the result.” Wis. Stat. § 805.15(3).
¶32 Whether to grant a motion for a new trial based on newly discovered
evidence is within the trial court’s discretion. Naden v. Johnson, 61
¶33 The trial court denied SWS’s motion on two grounds: that SWS was not sufficiently diligent in discovering the evidence, and that the evidence probably would not have changed the result. Because we conclude that the court properly exercised its discretion when it denied the motion based on SWS’s lack of diligence, we do not reach the question whether introduction of the new evidence at trial would probably have changed the result.
¶34 SWS acknowledges that it did not take the basic step of conducting
a title search of the property to verify the ownership. The trial court relied upon that fact to apply
the principle set forth in Bear v. Kenosha County, 22 Wis. 2d
92, 125 N.W.2d 375 (1963), that the discovery after trial of a record is generally
not a ground for a new trial unless a diligent search in the proper office before
trial would have failed to disclose it. See Bear,
22
¶35 SWS briefly also suggests that under the same revocable trust
theory this court should grant a new trial in the interest of justice. However, for the same reasons given above we
cannot conclude that the court in failing to grant a new trial on these grounds
erroneously exercised its discretion resulting in “a probable miscarriage of
justice.” See Lambrecht v.
Cross-Appeal of Steven
¶36 On cross-appeal, Steven challenges the trial court’s decisions regarding the scope of the prescriptive easement, namely the seasonal limitations on the easement and granting SWS the option of either removing the electrical box or consenting to easement rights around the box so that the proposed easement would be redrawn to curve around the box. We address each issue in turn.
A.
Seasonal
Limitations
¶37 Steven contends that the trial court erred when it limited use of the prescriptive easement by season of the year because the court failed to make an adequate finding that winter use would be unreasonable. We therefore address whether the pattern of seasonal use of the road, from April 15 to November 15 each year, justifies the trial court’s corresponding limitation on the prescriptive easement to these dates. Because the record supports the trial court’s determination that winter use would unreasonably burden SWS’s property, we conclude that the trial court properly imposed the time-based restriction.
¶38 A trial court may impose time-based seasonal limitations on
prescriptive easements if the court finds that a variation in use would
unreasonably burden a servient estate due to use that is inconsistent with the
use that gave rise to the easement. Widell
v. Tollefson, 158
¶39 The question of whether a use unreasonably burdens the servient
estate is a mixed question of law and fact. See Figliuzzi v. Carcajou Shooting Club of Lake
Koshkonong, 184 Wis. 2d 572, 588, 516 N.W.2d 410 (1994). The trial court must make a factual
determination as to the general pattern of use that gave rise to the easement and
a legal determination of whether the variation creates an unreasonable burden
on the servient estate.
¶40 We will uphold the trial court’s factual findings underlying its
legal conclusion unless they are clearly erroneous. Id.
If there is credible evidence to support the trial court’s findings, it
is not clearly erroneous. Holt
v. Ellsworth Farmers Union Co-op., 118
¶41 We first review the court’s factual finding regarding the
general pattern of use that gave rise to the easement. The trial court found that Steven’s tenants
established a pattern of use for the
¶42 This finding is supported by credible evidence in the
record. Steven testified that his
tenants used the property during their leases, April 15 to November 15, and
they were not there in the winter. The
Heftys testified that they used the road nearly every weekend from April to
October to put boats and personal watercraft into the water and to haul gas to
the boats. The record indicates that the
renters of Steven’s other three lots also used
¶43 Steven argues that the court’s finding that there was no pattern of winter use is erroneous in light of the testimony of the Heftys that they would take their children ice skating at the property during the winter. The testimony does not indicate how often they went skating. We will not disturb the court’s finding based on this general testimony that the Heftys “used to take the kids up ice skating” during the winter because there is credible evidence to support the court’s finding. Accordingly, we affirm this aspect of the court’s judgment imposing the time limitation.
¶44 Next, we examine the court’s legal determination of whether the
variation creates an unreasonable burden on the servient estate. We sustain the trial court’s legal conclusion
that the use of
¶45 Steven does not challenge the court’s findings that winter maintenance of the easement, namely the use of plowing, sand, and salt, puts an unreasonable burden on SWS’s property. Rather, Steven argues that the trial court’s seasonal limitation is improper because the court did not find that the actual use of the easement by Steven and his tenants during the winter, such as by simply traveling over the road, would burden SWS’s property. Steven argues that in the event that there is little snow, the servient estate would not be burdened by mere use. We conclude, however, that the trial court reasonably determined that the maintenance and the use cannot be separated in this way, and that actual use during the winter would unreasonably burden SWS’s property because of the fact that any such use would necessarily be accompanied by at least intermittent plowing, salting, and sanding.
¶46 In conclusion, we affirm the seasonal limitation on the prescriptive easement because the trial court’s finding that the general pattern of use that created the easement was seasonal is not clearly erroneous and the court reasonably concluded that winter use would unreasonably burden the servient estate.
B.
Electrical
Box
¶47 Finally, Steven argues that the trial court erred in providing SWS the option of either moving the electrical box or consenting to easement rights around the box so that the proposed location of the easement would be redrawn to curve around the box. We conclude that the court properly exercised its discretion because it applied the correct law and the record shows that there is a reasonable factual basis for its decision. Accordingly, we affirm.
¶48 Steven first argues that the trial court’s decision to allow SWS to redraw the proposed location of the easement is prohibited under AKG Real Estate, LLC v. Kosterman, 2006 WI 106, 296 Wis. 2d 1, 717 N.W.2d 835. We disagree because that case involved an express private easement, not as here a prescriptive easement defined by the court based on relevant testimony.
¶49 In AKG Real Estate, a developer purchased real estate subject to
an express private easement in the deed.
¶50 In contrast, in this case the trial court did not terminate or modify an existing express easement recorded in a deed. Instead, the trial court defined the specific scope of a prescriptive easement within the bounds of the testimony. A prescriptive easement, unlike the express easement in AKG Real Estate, is not defined by a deed.
¶51 When the specific location of an easement is not defined, “the
court has the inherent power to affirmatively and specifically determine its
location, after considering the rights and interests of both parties.” Spencer v. Kosir, 2007 WI App 135, ¶13,
301
¶52 The scope of a prescriptive easement is determined by the scope
of the use giving rise to the easement. Red
Star Yeast & Prod. Co. v. Merchandising Corp., 4
¶53 The trial court properly considered the record facts regarding a pattern of use giving rise to the easement and the present condition of the property when determining the scope of the prescriptive easement. The court considered the past pattern of use, which the jury determined was generally along Old Farm Road. The court also considered the present condition of the property. This included the approximately three-and-one-half-foot-wide electrical box installed in 2003 that obstructs the use of the prescriptive easement in the proposed location.
¶54 Based on these record facts, the court reasonably determined that the scope of the prescriptive easement could be defined as either the proposed location of the easement (requiring SWS to move the box) or an easement that curved around the box (requiring SWS to grant an easement west of the box). In support of the finding for the scope that included the later option, the court determined that redrawing the proposed easement would “accomplish what the Court has already ordered, that is, a fourteen foot wide easement” and the redrawing “does not exceed the bounds of the testimony concerning this prescriptive easement, or if it does it is nominal.”
¶55 Steven argues that the court’s decision to give SWS the option of redrawing the proposed easement around the box is unreasonable because it is not consistent with the testimony. Steven asserts the trial testimony clearly established the location of the easement as running exactly where the box stands, and therefore SWS must relocate it to a place that does not interfere with the use of Steven’s easement.
¶56 However, Steven does not point to testimony that defines the easement through past use so narrowly. Moreover, even if Steven were able to identify from the testimony such a precise past pattern of use, the court may consider the present condition of the property when defining the scope of the easement and the court properly did so here.
¶57 In sum, we conclude that the court properly exercised its discretion and correctly applied the law to the facts in fashioning a resolution consisting of two reasonable options.
CONCLUSION
¶58 We conclude that the trial court properly denied SWS’s motions for postverdict relief and properly defined the scope of the prescriptive easement. Accordingly, we affirm the circuit court’s denial of SWS’s motions for judgment notwithstanding the verdict, to change the jury’s answer, and for a new trial challenged on appeal. We also affirm the seasonal limitation on Steven’s prescriptive easement and the court’s decisions regarding the electrical box challenged on cross-appeal.
By the Court.—Judgment and orders affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] In
its brief in chief, SWS suggests that the trial court erroneously denied its
request for a jury instruction on agency.
However, SWS fails to develop an argument citing a standard of review
and applying it to the facts of this case.
We therefore decline to address this issue.