LINKEDINCOMMENTMORE

OCONTO – A lawsuit attempting to stop construction of a huge manure storage facility in the town of Little River not only failed, but was so weak the neighbors and their attorneys who filed it have been ordered to pay the owner’s legal fees.

“I think this is very egregious and does call for sanctions, not only against the plaintiffs, but against plaintiffs’ law firm,” Judge Jay N. Conley said at an Oct. 25 hearing.

Conley’s dismissal of the suit and the order for sanctions, however, won’t be final until he signs an order prepared by B&D Dairy Farm’s attorney and filed on Oct. 26. That won’t likely occur until at least Nov. 2, as there is a typically a five-day delay to give opposing counsel to file a brief.

DONATE: Help Stock the Shelves fight hunger in your community

The group of seven neighbors sought an injunction against completion of the 12.6 million-gallon capacity pit on July 27, claiming the facility would be a nuisance.

At a hearing on Aug. 20, Conley denied the neighbors’ request for a temporary injunction, saying that he could not find a nuisance “would necessarily result” from the pit.

“The plaintiffs’ case is absolute on fumes (at this point),” Conley said at the Oct. 25 hearing. “The only reason I didn’t dismiss it outright is there’s at least the naked allegation that there’s some sort of public health hazard, and no proof for that.”

A full hearing on the injunction was held Sept. 24, where one of the plaintiffs, Richard Kloes, and an expert they brought in testified.

Conley, speaking at the Oct. 25 hearing, was clearly underwhelmed by the evidence to back the claims of the neighbors.

“There not only was none, but the only expert … supported the defense version,” he said.

RELATED: Neighbors continue court fight against nearly-finished manure pit in Oconto County

RELATED: Board denies variance for manure pit in town of Little River

Conley noted that B&D Dairy’s attorney, John Scheller, warned the plaintiffs in two letters to end the case or that he and his clients would seek sanctions, costs and reasonable attorney fees. One letter was sent Sept. 7, the other on Sept. 20 after depositions were taken.

“He made it crystal clear basically — and not publicly, not in a courtroom, not for show — he said your claims are baseless,” Conley said. “Then the plaintiffs, despite those letters, proceeded to the injunction hearing, which the Sept. 20, 2018 letter of Mr. Scheller is clearly attempting to avoid and the expense and burden of going through the injunction hearing.”

Only after the Sept. 24 hearing did the plaintiffs “decide to back off,” Conley said.

The attorneys for the plaintiffs, Gerbers Law S.C. in Green Bay, filed a motion to dismiss the case on Oct. 5.

However, B&D Farms was not willing to do so without the plaintiffs agreeing to pay their legal fees and costs, leading to the Oct. 25 hearing.

“They are many points where they could have … stopped this and we think the escalation as well as the injunction hearing was something that was entirely baseless,” Scheller told Conley.

Without sanctions, the plaintiffs are only encouraged, he said.    

“If they’re going to sue us again, which they’ve indicated they might do, we want to make sure there’s a basis for it and that they know they can’t come to this court and make baseless allegations,” Scheller said.

Scott Engstrom, an attorney for the neighbors, said they acted diligently in seeking dismissal after the hearing.

“There are times these manure pits can cause problems, which is why you put this on for hearings and quickly expedite matters,” Engstrom said. “There hadn’t been extensive discovery here …  we did survive a motion to dismiss, so I don’t think that in terms of evidence were lacking at this stage, so we don’t think that sanctions are appropriate.”

Conley nonetheless granted the motion for sanctions, saying the “wise course of action” for the attorneys after Scheller’s letters would have been to confront the clients and explain the claims were baseless, particularly because it was an “anticipatory nuisance” case.

“So that’s just an incredibly high burden, and one that the plaintiffs were not equipped to meet,” Conley said. “I think plaintiffs’ law firm was in a better position to understand the baselessness of the claims and that it was going nowhere, probably even more than their clients, and that’s why sanctions are appropriate, not only for plaintiffs, but also their counsel.”

Conley said he took “no joy” including counsel in the sanctions, but moving ahead with the Sept. 24 hearing after Scheller’s letters was “egregious.”

“I don’t question Mr. Kloes’ beliefs, he doesn’t have evidence, but I don’t question his beliefs, I don’t question his opinions, I don’t question anybody (saying) I don’t want a manure pit in my neighborhood,” Conley said. “I understand that. I get that. The suit, which I think was largely based around Mr. Kloes’ opinions, not evidence, I think the suit was brought in good faith, but I don’t think it was continued in good faith.”

Under the proposed order, the neighbors and the law firm would be jointly and severally responsible for the B&D Farms’ legal fees and costs. The defense is to submit evidence of reasonable attorney fees and costs, which will be evaluated by Conley.

Engstrom and Aaron Ninneman, the attorney who represented the neighbors in the case, did not respond to an email seeking comment by the time this story was published. 

The lawsuit was filed by Richard and Dorothy Kloes, who live about a quarter-mile from the facility, along with Randal and Constance Larmay, George and Jane Wos and Kerry Larmay.

Kloes, in an affidavit filed with the suit, said the manure pit “and the necessarily resulting odor, pollution and likely decrease in property values will unduly harm and interfere with my and my wife’s enjoyment” of their property, which includes a fish farm, he said in an affidavit.

B&D Dairy, owned by Brian Lepianka and his wife, Danette Ossmann, is a large dairy operation four miles east of Pound and 14 miles north of the manure storage facility. Lepianka said he stood to lose at least $2.6 million if he couldn’t use the facility.

Lepianka, in his affidavit filed in August, said that facing declining milk prices, he decided to expand its milking herd to stabilize its revenue stream, and recently moved in 750 cows into a new $1.9 million barn.

To prepare for the herd expansion, the farm in June 2016 purchased 750 acres six miles east of Lena at 7651 Hillcrest Road, Oconto, just south of County A.

The site was previously used for an 800-head beef operation.

“We did not bring manure to this farm,” Lepianka said after the hearing. “It’s been there forever.”

The storage facility was to have gone into use in late September or early October.

LINKEDINCOMMENTMORE
Read or Share this story: https://www.greenbaypressgazette.com/story/news/local/oconto-county/2018/11/02/neighbors-attorneys-ordered-pay-legal-fees-manure-pit-owner/1856382002/