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Judge dismisses NOSD lawsuit against Fredonia property owner PDF Print E-mail
Written by MARK JAEGER   
Wednesday, 23 July 2014 18:32

Ruling at request of district averts trial but still means court must decide who pays legal fees

Years in the making, the Northern Ozaukee School District’s lawsuit against a neighboring property owner — and Northern Ozaukee School Board member — has been voluntarily dismissed before going to trial.

Ozaukee County Circuit Court Judge Paul Malloy has approved the dismissal motion.


Malloy must now determine how the expenses of the litigation should be paid, noting that the amount spent to recover $8,000 made him cringe.


In 2010, school district officials filed a lawsuit against Kendall and Carla Thistle, seeking to recover about $8,000 spent to drain a pond on vacant land the district owns behind the Thistle home on the west side of
Highway 57.


That pond, the district contends, was formed after the Thistles erected an earthen berm on the western edge of their property.


The Thistles say the 15-foot-high berm was erected only after getting clearance from local and state authorities, and was needed to protect their property from stormwater flowing off the Village Green subdivision.


District officials contended the resulting pond had to be drained because it posed a safety hazard for children on the nearby school grounds.


The district did not include the developer, Mastercraft Homes/Regency Hills, in the litigation.


Still, the money spent on the case is just short of staggering.


The school district, which is being represented by the Milwaukee law firm Godfrey & Kahn, has spent more than $167,000 in the matter so far, according to bills paid by the School Board.


The Thistles have spent more than $80,000 in their legal defense.


In the months leading up to the scheduled July trial date, Malloy repeatedly encouraged the parties to settle the matter out of court, even going to the point of ordering a mediation session.


During those mediation talks, the Thistles offered to reimburse the district for the cost of draining the pond, but that settlement offer fell apart when the couple refused to accept an additional punitive charge of $20,000
sought by the district.


The case was headed for trial when the school district reversed its strategy and submitted a motion for voluntary dismissal with prejudice.


Under the terms of the dismissal motion, the Thistles will not have to pay the district for draining the pond and can keep their berm in place.


“The time has come for the parties to move forward from this matter. Dismissal will also free up this court’s limited resources to focus on other matters,” states the school district’s motion filed by attorney Chris
Smessaert.


The dismissal motion with prejudice means a lawsuit cannot be refiled in the matter.


Malloy granted the motion over the objections of the Thistles’ attorney, Elizabeth Rich.


The judge now must decide how much,  if any, of the Thistles’ legal expenses should be covered by the school district. The district will have to pay its entire legal bill, since it initiated the suit and filed the motion to drop
the case.


The transcript of the hearing on the dismissal request shows Malloy’s patience with the protracted matter had worn thin.


“We’re at the point where there’s a dismissal, and its a situation where this is a nuisance claim brought by the school district,” Malloy said.


“It goes to the height of absurdity to think that I’m going to force the school district to proceed with this trial over a dismissal when there are no counterclaims.”


At the hearing, the Thistles’ attorney said the couple is still convinced they would have prevailed if the matter was presented to a jury. Still, the judge saw no need to continue the case.


“I think the reality is that I’m not going to make a public entity invest more money in a case they wish to abandon. There is no logic to that,” Malloy said.


His comments then took on an more stern tone as he questioned the cost-benefit analysis used to justify the litigation.


“I do think that, for the record, this is a case that was imprudently brought by the school district,” Malloy said.


“There is nobody in my mind who would spend the kind of money that was spent here to pursue, at maximum, $8,000.”


Malloy continued in his comments, saying, “That’s just not something that anybody would do with their own money. I think the attitude has been somewhat cavalier … it never should have gotten this far.”


Throughout the proceedings, he said his suggestions the parties to settle “was kind of shouting into the wind.”


In accepting the motion to dismiss, Malloy deferred a ruling on the payment of the Thistles’ expenses, but he gave a hint of what that final determination will be.


“I am really seriously thinking that attorneys’ fees would be appropriate. I don’t know if I’ll give the full amount,” he said.


The Thistles’ attorney was asked to submit an affidavit documenting expenses related to the lawsuit.


Even before that accounting was provided, however, Malloy said the amount spent by both sides made him “want to cringe.”


“You’re talking about real money that was spent on both sides that far exceeded anything that was at stake,” he said.


“I think the money should be going to students or teachers or whatever the situation is; but they made choices and now there are consequences.”


The case has led to strained relations between Thistle and fellow School Board members, but he said he remains adamant that fighting the district’s charge was the right thing.


“For me, this has never been about money. It is about property rights and my right to protect my home and family,” Thistle said.


“This whole process has been very disturbing. It turned some people in the community against us. It is frustrating that the case is not going to trial so we can clear our name. We have spent all of our savings and tapped
into our retirement funds, but my mother always said when you are in the right, don’t be afraid to stand up for yourself.”


 

Image information: KENDALL THISTLE STOOD on his Town of Fredonia property, the site of a disputed berm that spurred protracted litigation by the Northern Ozaukee School District.                                       Photo by Mark Jaeger

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