Grygiel v. Monches Fish & Game Club, Inc. ( 2010 )

SHIRLEY S. ABRAHAMSON, C.J.

¶ 49. {concurring in part, dissenting in part). While defendant Scheife was representing himself, the circuit court dismissed the plaintiffs' complaint against Scheife, including the trespass cause of action. The circuit court did not dismiss Scheife's counterclaim and explicitly stated that it was not resolving Scheife's counterclaim against the plaintiffs.

¶ 50. On appeal, the court of appeals affirmed the order of the circuit court. Scheife was the winner.

¶ 51. Here, the majority interprets the easement favorably to the plaintiffs and then goes further. It decides that the plaintiffs have a good cause of action and have made a complete case for trespass. Not only that, it awards nominal damages on the trespass cause of action to the plaintiffs. The trespass complaint may not be as simple as the majority makes out.

¶ 52. In addition to consent, Scheife also asserted defenses in the present case of laches, estoppel, and waiver. Scheife has asserted facts relating to these defenses.

¶ 53. Scheife asserted that during an earlier period when plaintiff Nahorn was a member of the Club, the Club leased the 40-acre Unrein parcel, and that it was then customary for members to access the Unrein parcel after using the easement to reach the Club. Scheife queries: "Since past practice had club members routinely using the easement to gain access to the Unrein forty acres, how could the defendant be held liable for something that had been done for years, with full knowledge of the plaintiffs?"

¶ 54. In common-law trespass, entry onto land becomes privileged if made with the consent of the land's possessor. Consent may be express or implied and may be manifested by action or by inaction, or proved by other existing evidence.¹ The presence of consent will negative the existence of the tort of trespass under the common-law principle that no harm is done to a willing party ("volenti non fit injuria!').² Likewise, if the possessor induces the conduct of the alleged trespasser, the trespasser may have a defense.³ Therefore, if the possessor's conduct manifests a willingness that the defendant engage in certain conduct and the defendant acts accordingly, this manifestation destroys the wrongfulness of the conduct as between the parties; the possessor has no claim for trespass.⁴

¶ 55. Scheife's assertions of his defenses were not addressed by the circuit court or court of appeals, and they are not addressed by this court. It certainly appears that there is support in the law for Scheife's asserted defenses to trespass, namely laches, estoppel, waiver, and implied consent. If Scheife can prove his defenses in the circuit court he may win on the trespass claim.

¶ 56. Additionally, the majority opinion references a "stipulation" regarding nominal damages. At ¶¶ 8, 47, the majority states that "Grygiel stipulated to limit her damages to an award of nominal damages ...." The stipulation filed by the plaintiffs states only that the plaintiffs unilaterally "stipulated" that they would withdraw their request for actual and punitive damages "in exchange for the entry of an award of nominal damages on the declaration of a trespass." See majority op., ¶ 10 n.7. Neither Scheife nor the club entered this stipulation. At the summary judgment hearing, Scheife argued that "I owe no damages" and requested that the court's ruling treat him separately from any ruling against the Club.

¶ 57. I conclude that on the basis of the record before the court, the majority cannot rely on the "stipulation" (to which the majority refers) as binding on Scheife regarding nominal damages.

¶ 58. I would remand the issues of the trespass, damages, and the counterclaim to the circuit court. This court cannot grant summary judgment because there is an unresolved dispute of material fact regarding the defenses and the counterclaim.

¶ 59. In my view, the majority's ruling raises questions of access to justice. The plaintiff sued the defendants for trespass. Scheife was brought to court against his will. Representing himself in the latter stages of this litigation, he has offered what appear to be viable defenses. The majority neither deals with those defenses in the decision rendered today nor gives Scheife the opportunity to develop them before the circuit court, which has never ruled on them. Scheife's defenses are simply ignored and disappear. Because the court now enters judgment against Scheife on trespass and does so without addressing and resolving these defenses, he not only loses but is denied the opportunity to make his case. Scheife has spent his money, time, and energy to appear in court in response to the plaintiffs' claims. Surely he is entitled to his own day in court and the opportunity for his position to be fairly heard, especially when the case is being remanded and requires disposition of his counterclaim.

¶ 60. For the reasons stated, I write separately.

1 Restatement (Second) of Torts § 167 cmt. a (1965).

2 W Page Keeton et al., Prosser and Keeton on Torts, § 18, at 112 (5th ed. 1984).

3 Restatement (Second) of Torts § 164 cmt. b (1965).

4 Keeton, supra note 2, § 17 at 113.