COURT OF APPEALS DECISION DATED AND FILED June 27, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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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 an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
¶1 PER CURIAM. The circuit court granted the
summary judgment motions of the Town of
¶2 The material facts are not in dispute. The Moracks bought a farm in the Town of
¶3 In March 1999, the Moracks’ counsel told the Town Board that his clients “cannot take this anymore” and would “start a legal claim.” A month later, he wrote to the Town’s engineers that “it is time that my clients begin moving ahead in terms of making their claims and/or initiating a lawsuit.” By letter dated April 26, 1999, the Town’s counsel advised the Moracks’ counsel: “If you are of the opinion that your clients have a claim against the Town of Waukesha, then you should follow the procedures set forth in Wis. Stat. § 893.80 regarding that claim.” The Moracks did not pursue that course. Problems continued.
¶4 Six years later, in September 2005, the Moracks’ counsel wrote to Whispering Hills lot owners whose properties, according to the Moracks’ engineer, most negatively impacted the Moracks’ property. Counsel advised the lot owners that if he did not hear from each of them “within the next two weeks, formal legal proceedings will be commenced.”
¶5 In June 2009—twelve years after the Moracks purchased their property and a decade after they first threatened legal action and the Town’s counsel advised them to file a Wis. Stat. § 893.80 claim, the Moracks served the Town with a notice of claim. The Town Board denied the claim, and the Moracks filed suit in the circuit court.
¶6 Their complaint against the Town sounded in nuisance,
negligence, inverse condemnation and breach of covenant.[2] It alleged that Whispering Hills’ storm water
management system was inadequate, and that the Town had approved it and failed
to maintain, inspect and manage it despite the Moracks’ repeated and ongoing
requests. The Town pled lack of
notice. See
¶7 The Town and the engineers filed motions for summary judgment. The circuit court found that the Town’s role in the development of Whispering Hills’ storm water management system was limited to approval of the plans and design and did not have a continuing ministerial duty to operate or to maintain it, that the approval process was a discretionary act for which the Town had immunity under Wis. Stat. § 893.80(4) and that, since the Town’s engineers acted on the Town’s behalf, the immunity extended to them as well. The court dismissed all of the Moracks’ claims.
¶8 The Moracks moved for reconsideration only as to the Town. They argued that the circuit court erred in finding municipal immunity for inverse condemnation and breach of covenant because immunity covers only tort claims. The court recognized that dismissing those two causes of action based on discretionary-acts immunity was “an error of law.” Nonetheless, the court declined to reconsider its decision because it determined that the Moracks’ claims were barred by their failure to comply with Wis. Stat. § 893.80(1)(a). This appeal followed.
¶9 This court reviews summary judgment decisions de novo,
applying the same methodology and legal standard the circuit court
employs. Green Spring Farms v. Kersten,
136
¶10 The Moracks first argue that the circuit court erred in finding that the Moracks’ lawsuit was barred by Wis. Stat. § 893.80(1)(a). Under § 893.80(1)(a), no action may be brought or maintained against any governmental subdivision unless written notice of the circumstances of the claim is served on the governmental subdivision within 120 days of the happening of the event giving rise to the claim. The Moracks assert that they provided notice of claim within 120 days of a continuing nuisance event.
¶11 The continuing-violations doctrine does not apply to the notice-of-claim
statute under
¶12 The Moracks also assert that, even if they did not provide the
requisite notice, their action is not barred because the Town had actual notice
such that it was not prejudiced by the lack of formal notice. See
Wis. Stat.
§ 893.80(1)(a). We disagree.
¶13 It is the plaintiff’s burden to prove both actual notice and that
the governmental entity was not prejudiced by the failure to comply with the
formal notice requirements of Wis. Stat. § 893.80(1). E-Z Roll Off, LLC, 335
¶14 Wisconsin Stat. § 893.80(1)
is designed to ensure that the governmental entity will have enough information
about the plaintiff’s injury, either formally by a 120-day notice or by actual
notice sufficient to avoid prejudice from the lack of formal notice, so as to
be able to fully investigate “the circumstances giving rise to a claim.”
Wis. 2d 747, 693 N.W.2d 121 (citation omitted).
¶15 The circuit court concluded that the Town did not have actual notice that the Moracks would file a claim. The court was persuaded by the undisputed fact that in 1999, the Town “drew the line in the sand that said … come on, show us what you got…. [I]f you got it, then file it,” such that the failure to file at that point was akin to “negative notice, okay, we really don’t have [a case].”
¶16 Even accepting that the talk of litigation over the years was
not idle saber-rattling, it is inescapable that the Town was prejudiced by the
passage of time. “Prejudice” is the
inability to adequately defend a claim. Olson,
133
Wis. 2d at 380. One purpose of Wis. Stat. § 893.80 is to ensure
that the governmental unit has sufficient opportunity to escape prejudice by
promptly investigating claims. Olson,
133 Wis. 2d at 380. Another is to afford
the governmental body the opportunity to compromise and budget for potential settlement
or litigation. E-Z Roll Off, LLC, 335
Wis. 2d 720, ¶46.
¶17 For a whole decade after advising the Moracks to file a claim, the Town continued to work with the Moracks to improve the storm water system’s design. The Town “chang[ed] plans, [made] more changes in landscaping” and took the “substantial act” of releasing the letters of credit it held against the Whispering Hills development to ensure adequate funding for remedial measures. Had the Moracks acted more promptly, the Town may have been able to mitigate damages. Indeed, the damage to the Moracks’ own property may have been less. By the time the Moracks filed their notice of claim in 2009, the developer was dead, his company was bankrupt and some of the Town Board’s personnel had changed. The Moracks have not proved that the Town suffered “no prejudice” from the lack of timely formal notice. See id., ¶49. As we have said before, we do not enthusiastically endorse the harsh consequences produced by the requirements of Wis. Stat. § 893.80, but we are not free to ignore the plain meaning of a legislative enactment. See Elkhorn Area Sch. Dist., 110 Wis. 2d at 6-7.
By the Court.—Order 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 2009-10 version unless noted.
[2] The Moracks alleged breach of covenant because the Town is the grantee of a drainage easement from the developer of Whispering Hills. The developer retained primary responsibility to maintain, repair and reconstruct drainage structures, but granted the Town the ability and a right of access to do so. The development company eventually declared bankruptcy and the owner died in 2006.