COURT OF APPEALS DECISION DATED AND FILED January 20, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. David Heling and the Heartland
Hills Golf Course appeal from a judgment dismissing their claim for damage to
the land owned and occupied by the golf course allegedly caused by the
installation of a storm sewer in the reconstruction of a road. The circuit court determined that under Wis. Stat. § 88.87 (2007-08),[1]
Heling’s claims against the
¶2 In 1980, before Heling’s construction of the golf course, State Highway 32 bordering the property was reconstructed and a municipal storm lateral installed. Heling alleges that “[d]ue to the improper or defective installation of the Lateral, the Property has experienced periodic flooding since 1980 and through the filing” of this action. It is Heling’s position that not until rainstorms occurring May 31, 2006, did the flooding of the property cause damage and impair the use of the golf course. He submitted a notice of claim on September 27, 2006. After the claim was denied, he commenced this action seeking compensation for a taking of his land due to the flooding and to require the Village and DOT to reroute the storm lateral and undertake certain repairs of the property.
¶3 The Village and DOT moved to dismiss the action on the ground that Heling had not given notice of his claim within three years of the first flooding experienced in the early 1980s. The parties incorporated Heling’s discovery responses which included answers to interrogatories, an affidavit from Heling’s mother, and correspondence between Heling and the Village from December 1981 to April 1982. Heling argues that because the Village and DOT referred to matters outside of the pleadings, the motions to dismiss were improperly converted to summary judgment motions without giving him notice of the conversion and a reasonable opportunity to present opposing summary judgment material. See Wis. Stat. § 802.06(3) (if on a motion to dismiss matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present pertinent material). He cites CTI of Northeast Wisconsin, LLC v. Herrell, 2003 WI App 19, ¶¶9-10, 259 Wis. 2d 756, 656 N.W.2d 794, holding that the failure of the circuit court to give parties notice that it is converting a motion to dismiss to one for summary judgment violates due process and may require reversal if the party has not been provided a reasonable opportunity to respond.
¶4 We reject Heling’s claim that the motions to dismiss were
improperly converted to summary judgment motions. The circuit court did not rely on the
additional materials submitted by the Village and the DOT but specifically
confined itself to the allegations in Heling’s petition.[2] See Wangard Partners, Inc. v. Graf,
2006 WI App 115, ¶2 n.2, 294
¶5 The motions to dismiss presented questions of law which we
decide de novo. Kohlbeck v. Reliance Constr. Co.,
Inc., 2002 WI App 142, ¶9, 256
¶6 The type of claims that may be made by property owners
against governmental entities regarding highway construction and repair and how
those claims must be brought is controlled by Wis.
Stat. § 88.87(2). See Pruim v. Town of
¶7 Heling’s petition states that he first experienced flooding
on his property in 1980. That the
flooding at that time was periodic, tolerable, or did not yet constitute a
taking is not controlling. By regulating
and strictly controlling the types of claims that may be made by property
owners against governmental entities regarding highway construction and repair,
Wis. Stat. § 88.87(2)(c)
eliminates the possibility of repetitious actions for each new occurrence of
flooding. See Pruim, 168
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] At the same time the motions to dismiss were pending, an insurer’s motion for summary judgment on coverage was also pending. Although the circuit court recognized that the insurer’s motion for summary judgment brought matters in from outside of the pleadings and that it made it “more difficult” to restrict the ruling on the motions to dismiss to the petition, its ruling on the motions to dismiss only referenced the allegations in the petition.
[3] In
1980 and until amendments enacted in 1994, the statute required notice within
ninety days after the occurrence of damage.
See
Lins
v. Blau, 220