Buchholz v. Schmidt

APPEAL from a judgment of the circuit court for Dodge County, No. 2020CV121 JOSEPH G. SCIASCIA, Judge.

Before Kloppenburg, P. J., Blanchard, and Graham, JJ.

KLOPPENBURG, P.J.

¶1 In this appeal, Steven Schmidt challenges multiple pretrial rulings by the Dodge County circuit court and the judgment entered by the court after a jury trial.^[1] All of Schmidt's challenges involve drainage issues on the rural properties that Schmidt and Buchholz own, which are located on either side of a road. Schmidt's challenges also concern two contracts between the parties, which we refer to as "the Farm Lease Agreement" and "the Drain Tile Agreement."

¶2 The parties filed claims and counterclaims sounding in nuisance, trespass, easement, and contract law, relating primarily to a drainage tile located on Schmidt's property. The drainage tile (also referred to as a "drain tile") was a subsurface 12-inch diameter concrete pipe that was buried on Schmidt's property at all times relevant to this appeal. It ran from the end of a culvert that passed underneath the road between the parties' properties, where it drained water from Buchholz's property, continued through Schmidt's property, and discharged water from both Schmidt's property and Buchholz's property into a drainage way.

¶3 Schmidt argues that the circuit court erred in issuing three orders: one denying Schmidt's motion for summary judgment on Buchholz's claims that Schmidt created a nuisance in connection with the drainage tile and granting Buchholz's motion for summary judgment on both Buchholz's breach of contract claim and Schmidt's breach of contract counterclaim; one dismissing Schmidt's

remaining counterclaims as a sanction; and one, incorporated in the judgment on the verdict, relating to the jury's finding that Buchholz holds a prescriptive easement over the drainage tile.

¶4 Regarding the summary judgment order, Schmidt argues that WIS. STAT. § 823.08 (2021-22) (the "Right to Farm Law") bars Buchholz's nuisance claims, and that the circuit court erred in deciding that the statute does not apply based on the court's determination that Schmidt's alleged nuisance-creating farmland drainage activity was not an agricultural use or practice within the meaning of the statute.^[2] Schmidt also argues that the court erred when it granted summary judgment in Buchholz's favor on Buchholz's claim that Schmidt breached the Drain Tile Agreement. Specifically, Schmidt argues that he was excused from performing under the Drain Tile Agreement because it is ambiguous and there are issues of material fact as to a predicate for his performance, namely Buchholz's compliance with the Farm Lease Agreement. Schmidt argues that the court disregarded those same issues of material fact when it granted summary judgment in Buchholz's favor dismissing Schmidt's counterclaim that Buchholz breached the Farm Lease Agreement.

¶5 We reach the same result as the circuit court on the issue of whether the Right to Farm Law bars Buchholz's nuisance claims-it does not-but for different reasons. We conclude that Schmidt's alleged nuisance-creating farmland drainage activity was an agricultural practice within the meaning of the statute. But we also conclude that Schmidt fails to argue that he presented evidence

showing that he met a separate predicate for protection from Buchholz's nuisance claims under the Right to Farm Law. Specifically, he fails to argue that he presented evidence showing that the land on which he conducted the alleged nuisance-creating farmland drainage activity-land that he now owns-was in agricultural use (farming) without substantial interruption, before Buchholz began the use of his property (farming) that Buchholz alleges was interfered with by that activity. Therefore, the court properly denied Schmidt's motion for summary judgment seeking to dismiss those claims. Separately, we conclude that Schmidt fails to support the proposition that the ambiguity he asserts in the Drain Tile Agreement excuses him from performance of the unambiguous terms of that agreement. Schmidt also fails to show that there are disputed material facts as to whether Buchholz breached the Farm Lease Agreement. Therefore, the circuit court properly granted summary judgment in Buchholz's favor on Buchholz's claim that Schmidt breached the Drain Tile Agreement and dismissed Schmidt's counterclaim that Buchholz breached the Farm Lease Agreement.

¶6 Regarding the order of dismissal as a sanction, Schmidt argues that the circuit court acted contrary to the law and the facts when it dismissed Schmidt's remaining counterclaims as a sanction for his failure to comply with an order requiring him to pay Buchholz's costs resulting from a trial continuance that Schmidt requested. We conclude that the court properly exercised its discretion when it dismissed these counterclaims as a sanction.

¶7 Regarding the order incorporated in the judgment on the verdict, Schmidt argues that the order includes terms that exceed the scope of the jury's verdict finding that Buchholz holds a prescriptive easement over the drainage tile on Schmidt's property. We conclude that the order incorporated by the judgment on the verdict contains two terms that exceed the scope of the jury's verdict

finding that Buchholz holds a prescriptive easement, and for which Buchholz identifies no factual or legal basis.

¶8 Accordingly, we affirm in part, reverse in part, and remand to the circuit court with directions to amend the easement order to remove the two terms that exceed the scope of the jury's verdict.

BACKGROUND

¶9 The following facts are undisputed. Buchholz and Schmidt own properties in Dodge County that they and their predecessors in title have used for farming.

¶10 In May 2017, the parties entered into a contract (the "Farm Lease Agreement") under which Buchholz agreed to rent "90+/- tillable acres" of the Buchholz farm to Schmidt in exchange for three payments of $6,500 each. The Farm Lease Agreement covered the remainder of 2017 and all of 2018.

¶11 In sworn statements both parties testified that they used a subsurface drain tile buried on the Schmidt property to drain the farmland on their respective properties. Around the beginning of 2019, this drain tile on the Schmidt property was damaged. On January 25, 2019, Buchholz and Schmidt entered into a contract to replace the damaged drain tile (the "Drain Tile Agreement"), which makes references to the parties' separate obligations under the Farm Lease Agreement. The Drain Tile Agreement states the following:

I, Ben Buchholz, agree to deduct $2,000 from the 3rd payment of 2018 $6500 farm land rent to help cover [the] cost of replacing tile that was damaged on Steve Schmidt Property that drains my land. Steve Schmidt agrees to replace the tile within one year, or owes me $2,000.

Ben agrees to pay [f]or 112" Line, $2,000 is down payment.

¶12 Schmidt did not replace the damaged drain tile within one year, as promised. Both parties' farms subsequently experienced significant flooding and the deposit of debris, for which each party blamed the other. Schmidt also did not pay Buchholz the $2,000 that Schmidt withheld from the third rent payment.

¶13 Buchholz sued Schmidt in February 2020, making the following claims: (1) Schmidt breached the Drain Tile Agreement by not replacing the drain tile within one year and by retaining the $2,000 that had been deducted from the third rent payment that Schmidt owed to Buchholz; (2) Buchholz is the "rightful holder of a [prescriptive] easement to use and occupy the Drain Tile located on the Schmidt Property"; (3) Schmidt engaged in conduct relating to the damaged drain tile (Schmidt's "farmland drainage activity") that diverted water and debris onto the Buchholz property so as to negligently and intentionally create and maintain a private nuisance; and (4) Schmidt's farmland drainage activity constitutes a trespass.^[3]

¶14 Schmidt answered and alleged the following counterclaims: (1) the Drain Tile Agreement is void as a matter of public policy; (2) Buchholz breached the Farm Lease Agreement by failing to "provide" "90+/- tillable acres"; and (3) Buchholz engaged in conduct that diverted water and debris onto Schmidt's property, which constituted both a negligent and intentional private nuisance and a trespass.

¶15 After the parties submitted their pleadings, the circuit court issued the three orders pertinent to this appeal, which we summarize in chronological order.

¶16 The first is the circuit court's August 2021 order on the parties' cross-motions for partial summary judgment. The court denied Schmidt's motion seeking dismissal of Buchholz's nuisance claims as barred under the Right to Farm Law. The court ruled that the Right to Farm Law does not bar Buchholz's nuisance claims because Schmidt's farmland drainage was not an "agricultural practice" as that term is defined in WIS. STAT. § 823.08(2)(a). The court granted Buchholz's motion for summary judgment on his breach of contract claim, determining that Schmidt breached the unambiguous terms of the Drain Tile Agreement as a matter of law. The court also determined that there are no genuine disputes of material fact concerning Schmidt's defenses based on Buchholz's alleged breach of the Farm Lease Agreement. In the absence of disputes of material fact on that issue, the court also dismissed Schmidt's counterclaim alleging that Buchholz breached the Farm Lease Agreement.

¶17 The second order at issue was entered in February 2022. The circuit court granted Buchholz's motion to dismiss Schmidt's remaining counterclaims as a sanction for Schmidt's failure to comply with...