COURT OF APPEALS

DECISION

DATED AND FILED

February 9, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2019AP1633 Cir. Ct. No. 2019CV43

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

RED ROCK GRANITE,INC.,

 PLAINTIFF-APPELLANT,

 V.

KAFKA PROPERTIES, LLC,

 DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Marathon County: 

MICHAEL K. MORAN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Red Rock Granite, Inc., (Red Rock) appeals from a 

summary judgment that dismissed its claim seeking enforcement of a restrictive 
No. 2019AP1633

2

covenant against Kafka Properties, LLC. We conclude that Red Rock’s materials 

filed in opposition to summary judgment failed, as a matter of law, to establish a 

violation of the restrictive covenant. Accordingly, we affirm.

BACKGROUND

¶2 The restrictive covenant at issue in this case was agreed upon and 

recorded by predecessors in interest to the current parties. The covenant provides,

in relevant part, that the owner of the property subject to the covenant agrees “not 

to mine, excavate, sever, sell or remove nonmetallic minerals upon, within or 

under the surface” of the property. 

¶3 In 2018, Kafka Properties, LLC, purchased a portion of the property

subject to the restrictive covenant, referred to as Lot One. A related entity, 

Kafka Granite, LLC, (Kafka) thereafter took possession of Lot One and 

constructed a mineral fabrication facility upon it. At the facility, Kafka processes

large blocks of granite, marble and quartz quarried off-site into finished products,

such as stone veneer, for use in building construction projects. Kafka stores the 

finished products on Lot One for some time before transportation to other 

locations for distribution or sale. Both finished and unfinished rocks stored 

outside on Lot One are visible from an adjacent state highway. 

¶4 Kafka does not conduct any ongoing mining or quarrying activities 

on Lot One. However, during the construction of the facility and an adjacent 

parking lot, Kafka excavated a substantial amount of dirt containing nonmetallic 

minerals from Lot One and transported the excavated dirt to a nearby property that 

it also owns. Kafka crushes and sells rock on that nearby property. 
No. 2019AP1633

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¶5 Red Rock sued Kafka alleging an ongoing violation of the restrictive 

covenant. Kafka moved for summary judgment supported by an affidavit denying 

that it was engaging in any of the activities prohibited by the restrictive covenant. 

Red Rock did not conduct any discovery, but it filed affidavits opposing the 

motion. In its affidavits, Red Rock asserted that: (1) the intent of the restrictive 

covenant was to “prohibit all commercial activity on the Restricted Property that 

would adversely impact ... [Red Rock] in any way”; (2) splitting larger rocks into 

smaller pieces by a mechanical means is an “integral part of mining and selling 

rock to the general public”; and (3) the only purpose for displaying finished and 

unfinished rock to the public along the highway is to advertise products as part of 

the sales process. 

¶6 The circuit court rejected Red Rock’s proposed construction of the 

restrictive covenant as prohibiting “all commercial activity” adversely impacting 

Red Rock in any way, characterizing it as an overly broad expansion of the 

specifically enumerated prohibited activities. The court concluded that none of the 

activities Kafka was engaged in constituted any of those enumerated activities. It 

explained: 

Mining is the process by which rock is removed from the 

earth. Selling is the transaction by which ownership of the 

rock is transferred. Finishing the rock can only happen 

after the rock has been mined, and it will generally happen 

before the rock has been sold. (In any event, the finishing 

process has no effect on ownership.) Likewise, “selling” 

cannot reasonably be viewed as including the act of storing 

or displaying rock on the property. Selling refers to the 

transfer of ownership, not the steps that might precede such 

a transfer, including advertising or display.

 ....

[T]he term “sever” must, in [the context of the list in which 

it appears] refer to severing minerals from the property.
No. 2019AP1633

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¶7 The circuit court further determined that to the extent the term 

“sever” was subject to an alternative, albeit “strained,” reading proposed by 

Red Rock that would include severing minerals from themselves, the restrictive 

covenant was ambiguous and unenforceable. The court then granted summary 

judgment in Kafka’s favor and dismissed Red Rock’s claim.

DISCUSSION

¶8 This court reviews a summary judgment decision de novo, using the 

same methodology as the circuit court. Water Well Sols. Serv. Grp. v. 

Consolidated Ins. Co., 2016 WI 54, ¶11, 369 Wis. 2d 607, 881 N.W.2d 285. We 

examine the parties’ submissions in support of and in opposition to the summary 

judgment motion to determine whether the movant has made a prima facie case for 

judgment and, if so, whether there are any material facts in dispute that would 

entitle the opposing party to a trial. Frost v. Whitbeck, 2001 WI App 289, ¶6, 249 

Wis. 2d 206, 638 N.W.2d 325; see also WIS. STAT. § 802.08(2) (2017-18).

1

¶9 When a motion for summary judgment is made and supported with 

appropriate evidentiary materials, “an adverse party may not rest upon the mere 

allegations or denials of the pleadings.” WIS. STAT. § 802.08(3). If the adverse 

party does not respond with affidavits made upon personal knowledge, answers to 

interrogatories, and other documents or materials that would be admissible in 

evidence, summary judgment shall be entered against such party. Id. 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP1633

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¶10 Generally speaking, “[c]ourts use the rules of contract interpretation 

to ascertain the meaning of restrictive covenants.” Solowicz v. Forward Geneva 

Nat’l, 2009 WI App 9, ¶42, 316 Wis. 2d 211, 763 N.W.2d 828 (2008), aff’d, 2010 

WI 20, 323 Wis. 2d 556, 780 N.W.2d 111. When the meaning of a contract can be 

determined from its face with “reasonable certainty,” a court need not consider

evidence beyond the contract and should enforce the clear language itself. Id. 

Deed restrictions, however, are generally disfavored by Wisconsin law. Public 

policy therefore requires that the language in a restrictive covenant “be strictly 

construed to favor unencumbered and free use of property.” Forshee v. 

Neuschwander, 2018 WI 62, ¶16, 381 Wis. 2d 757, 914 N.W.2d 643 (citation 

omitted). 

¶11 Here, both parties contend that the terms of the restrictive covenant 

are clear and unambiguous, even though they each advance different 

interpretations of the covenant and its application to the facts of this case. 

Red Rock asserts that the plain purpose of the covenant was to protect it from 

commercial activity on that land that would adversely affect its economic interests. 

Red Rock then argues that Kafka violated the covenant by excavating and 

removing dirt containing nonmetallic minerals from Lot One incident to the 

construction of the fabrication facility and then selling the excavated minerals 

from another location. Red Rock further argues that Kafka continues to violate the 

covenant by displaying finished rocks outside of the facility in order to advertise 

them as part of the “selling process.”

¶12 Kafka asserts that the plain purpose of the covenant was to prohibit 

quarrying activity on Lot One. It argues that removing dirt incident to 

construction was not quarrying activity and, therefore, it did not constitute the 

excavation and removal of minerals. Kafka further contends that the covenant 
No. 2019AP1633

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does not prohibit it from selling the incidentally excavated minerals from another 

site, or from selling minerals quarried off-site on Lot One.

¶13 We conclude that the terms of the restrictive covenant are 

unambiguous, although we do not fully agree with the interpretations advanced by 

either party. In particular, Red Rock’s assertion that the covenant prohibits 

commercial activity on the land that would harm its economic interests is too 

broad because the covenant makes no mention of competition and does not define 

Red Rock’s business. Conversely, Kafka’s assertion that the covenant restricts 

only quarrying activity is too narrow, because mining and excavation may be 

broader than quarrying, and selling may occur without quarrying.

¶14 The noscitur a sociis canon of construction provides that “words 

grouped in a list should be given related meaning.” Third Nat’l Bank in 

Nashville v. Impac Ltd., Inc., 432 U.S. 312, 322 (1977). In relation to 

“nonmetallic minerals upon, within or under the surface” of Lot One, the list of 

terms “mine, excavate, sever, sell or remove” plainly refer both to physically 

separating any nonmetallic minerals originating on the property from the property 

and to selling any minerals originating on the property.

¶15 Here, the parties agree that merely removing dirt from Lot One 

incident to construction would not violate the covenant. Red Rock maintains, 

however, that selling minerals contained in the excavated dirt violated the 

covenant. The problem with Red Rock’s contention is that there is nothing in the 

summary judgment materials evidencing that Kafka actually sold any of the 

excavated minerals.

¶16 Red Rock’s affidavits averred generally that Kafka made sales from

the property to which the excavated dirt had been transferred, but they did not cite 
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a single sale that involved minerals originating on Lot One. Red Rock’s general 

assertion was insufficient to rebut Kafka’s more specific assertion that it processed 

only rocks quarried off-site in its facility on Lot One before sending them for sale

on its other property. Moreover, even if there was a basis to conclude that Kafka 

violated the restrictive covenant, Red Rock’s general assertion did not provide any 

basis for a damages award.

¶17 Red Rock now claims that it is entitled to conduct discovery in order 

to determine the amount of nonmetallic minerals contained in the excavated dirt 

sold, and its sale price. However, our review of the circuit court’s decision is 

based upon what was before the court at the time its decision was made. 

Red Rock could have asked the court for additional time to conduct discovery 

before proceeding on the summary judgment motion. See WIS. STAT. § 802.08(4). 

It did not. 

¶18 Next, Red Rock argues that selling is a process that involves more 

than the transfer of ownership—it necessarily includes offering products for sale. 

Even if there is some truth in that statement, we would distinguish between sales 

activities involving specific customers and advertising to the general public. 

There is nothing in the summary judgment materials to suggest that Kafka’s 

employees ever brought or allowed potential customers onto the property to view 

the piles of rock stored there. To the extent that the mere visibility of its products 

could be considered a form of advertising, we agree with Kafka that such 

advertising did not constitute “selling” in violation of the covenant, particularly 

given the disfavor with which restrictive covenants are viewed under Wisconsin 

law. We conclude that the circuit court properly granted summary judgment in 

Kafka’s favor.
No. 2019AP1633

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By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.