The Yacht Club at Sister Bay Condominium Association, Inc. v. Village of Sister Bay , 385 Wis. 2d 158 ( 2019 )

2019 WI 4SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP140
COMPLETE TITLE: The Yacht Club at Sister Bay Condominium
Association, Inc.,
Plaintiff-Appellant-Petitioner,
v.
Village of Sister Bay,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 742, 905 N.W.2d 844(2017 – unpublished)
OPINION FILED: January 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Door
JUDGE: D. T. Ehlers
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by John B. Tuffnell, and Tuffnell Law, S.C., Milwaukee.
There was an oral argument by John B. Tuffnell.
For the defendant-respondent, there was a brief filed by
Remzy D. Bitar, Luke A. Martell, and Municipal Law & Litigation
Group, S.C., Waukesha. There was an oral argument by Remzy D.
Bitar.
2019 WI 4NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP140
(L.C. No. 2016CV122)
STATE OF WISCONSIN : IN SUPREME COURT
The Yacht Club at Sister Bay Condominium
Association, Inc.,
Plaintiff-Appellant-Petitioner,
FILED
v. JAN 18, 2019
Village of Sister Bay, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part, and cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, The Yacht Club
at Sister Bay Condominium Association, seeks review of an
unpublished, per curiam decision of the court of appeals
affirming the circuit court's order that dismissed its complaint
against the Village of Sister Bay.1 The complaint alleged that
1
Yacht Club at Sister Bay Condo. Ass'n, Inc. v. Village of
Sister Bay, No. 2017AP140, unpublished slip op. (Wis. Ct. App.
Oct. 24, 2017) (per curiam) (affirming in part and reversing in
part an order of the circuit court for Door County, D.T. Ehlers,
Judge).
No. 2017AP140
some summer concerts held in a public park were a public and
private nuisance. Affirming the dismissal, the court of appeals
concluded that the Yacht Club failed to provide the Village with
a timely written notice of injury and that each concert held by
the Village does not constitute a new "event" giving rise to a
new opportunity to file a notice of injury.
¶2 Before this court, the Yacht Club asserts that the
court of appeals erred in failing to view each concert as a new
nuisance prompting a new notice of injury period. Thus, in the
Yacht Club's view, it should not be barred from bringing future
nuisance actions against the Village simply because it failed to
complain within 120 days as required by Wis. Stat.
§ 893.80(1d)(a) (2015-16)2 about a noise nuisance from the first
concert the Village held in 2014.
¶3 We conclude that each concert that is alleged to be a
nuisance constitutes a separate event for purposes of filing a
written notice of injury. However, because the Yacht Club
failed to serve its written notice of injury within 120 days
after the date of the last concert alleged to be a nuisance, its
written notice of injury was not timely filed. Accordingly, we
affirm in part and reverse in part the decision of the court of
appeals and remand to the circuit court for further proceedings.
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2017AP140
I
¶4 The facts set forth below are taken primarily from the
Yacht Club's complaint. Because we are reviewing the circuit
court's determination of a motion to dismiss for failure to
state a claim, we must assume that these facts are true.3
¶5 Some time in the summer or fall of 2013, the Village
received a donation pledge from an anonymous donor. The donor
stipulated that the donation would be used to construct a
performance pavilion in Waterfront Park, a public park in the
Village. Accepting the pledge, the Village began construction
on the pavilion.
¶6 Construction of the pavilion was completed on or about
August 1, 2014. Upon completion, the Village immediately began
to host public performances at the pavilion. Such performances
typically involved live music and often ran after official park
hours, occasionally as late as midnight.
¶7 The Yacht Club is a condominium association that
administers a condominium complex of the same name. The complex
lies within several hundred feet to the southwest of the
performance pavilion. Facing to the southwest, the performance
pavilion's stage is designed to amplify and aim sound in that
direction, straight at the Yacht Club condominiums.
¶8 According to the Yacht Club, the performances create
very loud noise aimed directly at its condominiums. It alleges
3
MBS-Certified Pub. Accountants, LLC v. Wisconsin Bell,
Inc., 2012 WI 15, ¶7, 338 Wis. 2d 647, 809 N.W.2d 857.
3
No. 2017AP140
that the music "is loud enough to cause windows and personal
property to shake and shudder from the intensity of the volume
produced by these performances." Further, it claims that the
sound "is continuous and penetrates even closed doors and
windows." Such noise often keeps the Yacht Club's "residents
awake far past normal park operations."
¶9 Alleging that the pavilion concerts substantially
interfere with the quiet enjoyment of its residents' property,
the Yacht Club served the Village with a written notice of
injury pursuant to Wis. Stat. § 893.80(1d) on March 7, 2016.4
4
Wisconsin Stat. § 893.80(1d) provides:
(1d) Except as provided in subs. (1g), (1m), (1p) and
(8), no action may be brought or maintained against
any volunteer fire company organized under ch. 213,
political corporation, governmental subdivision or
agency thereof nor against any officer, official,
agent or employee of the corporation, subdivision or
agency for acts done in their official capacity or in
the course of their agency or employment upon a claim
or cause of action unless:
(a) Within 120 days after the happening of the
event giving rise to the claim, written notice of
the circumstances of the claim signed by the
party, agent or attorney is served on the
volunteer fire company, political corporation,
governmental subdivision or agency and on the
officer, official, agent or employee under s.
801.11. Failure to give the requisite notice
shall not bar action on the claim if the fire
company, corporation, subdivision or agency had
actual notice of the claim and the claimant shows
to the satisfaction of the court that the delay
or failure to give the requisite notice has not
been prejudicial to the defendant fire company,
corporation, subdivision or agency or to the
(continued)
4
No. 2017AP140
The notice of injury maintained that "[t]he noise pollution
generated by the users and the performers of the performance
pavilion is a private nuisance that directly interferes with the
Association's use and enjoyment of its property." It further
stated that "[t]he last use of the pavilion occurred on or about
September 1, 2015."
¶10 After the Village did not respond to its notice of
injury, the Yacht Club filed suit against the Village. It
alleged causes of action for both private and public nuisance.
The Yacht Club sought damages for loss of property value,
substantial annoyance and invasion of its property rights, as
well as injunctive relief abating future nuisance-causing
activities.
¶11 Moving to dismiss the Yacht Club's complaint for
failure to state a claim upon which relief may be granted, the
Village argued that the Yacht Club neglected to comply with the
notice of injury and notice of claim provisions of Wis. Stat.
§ 893.80(1d). First, the Village contended that the Yacht Club
failed to serve the Village with a notice of injury within 120
defendant officer, official, agent or employee;
and
(b) A claim containing the address of the
claimant and an itemized statement of the relief
sought is presented to the appropriate clerk or
person who performs the duties of a clerk or
secretary for the defendant fire company,
corporation, subdivision or agency and the claim
is disallowed.
5
No. 2017AP140
days of the happening of the event giving rise to its claim as
is required by Wis. Stat. § 893.80(1d)(a). Second, it asserted
that the Yacht Club never filed an itemized statement of relief
sought as required by Wis. Stat. § 893.80(1d)(b).
¶12 The circuit court granted the Village's motion to
dismiss. Relying on E-Z Roll Off, LLC v. County of Oneida, 2011
WI 71, 335 Wis. 2d 720, 800 N.W.2d 421, it concluded that the
notice of injury was served on the Village "almost 19 months
after the happening of the event giving rise to the
claim . . . It's not within 120 days, and it's too late under
893.80." In the circuit court's view, the pavilion:
was constructed in August of 2014, concerts began
almost immediately, and the residents of the plaintiff
condominium association immediately started noticing
problems and with noise, with windows
rattling, . . . . And to then wait 19 months after
the happening of that event even though the concerts
do continue, . . . it's violative of 893.80, namely,
to wait that long to make your claim.
¶13 Additionally, the circuit court rejected the Yacht
Club's argument that its claims could proceed even though it did
not timely file a written notice of injury because the Village
had actual notice of the claims at issue and was not prejudiced
by the delay in providing written notice.5 The circuit court
5
See Wis. Stat. § 893.80(1d)(a) ("Failure to give the
requisite notice shall not bar action on the claim if the fire
company, corporation, subdivision or agency had actual notice of
the claim and the claimant shows to the satisfaction of the
court that the delay or failure to give the requisite notice has
not been prejudicial to the defendant fire company, corporation,
subdivision or agency or to the defendant officer, official,
agent or employee . . . ").
6
No. 2017AP140
determined that the Yacht Club did not meet its burden to set
forth facts showing there was no prejudice to the Village.
¶14 After the Yacht Club appealed, the court of appeals
affirmed in part and reversed in part. It affirmed the circuit
court's determination that the Yacht Club's written notice of
injury was not timely filed. Yacht Club at Sister Bay Condo.
Ass'n, Inc. v. Village of Sister Bay, No. 2017AP140, unpublished
slip op., ¶¶19, 25 (Wis. Ct. App. Oct. 24, 2017) (per curiam).
The court of appeals determined first that "[t]he Association's
notice of injury was not served until March 7, 2016, and was
therefore untimely, even with respect to the September 1, 2015
concert." Id., ¶19. Further, it determined that E-Z Roll Off
"forecloses the Association's argument that each nuisance-
causing use of the pavilion constitutes a new 'event' for
purposes of Wis. Stat. § 893.80(1d)(a)." Id., ¶20.
¶15 However, the court of appeals reversed the circuit
court's conclusion regarding actual notice and prejudice,
determining that the circuit court improperly placed on the
Yacht Club the burden to produce evidence regarding lack of
prejudice at the motion to dismiss stage. Id., ¶30. Neither
party petitioned for review of the court of appeals' decision on
actual notice and prejudice. Accordingly, we do not further
7
No. 2017AP140
address the issue.6 Remaining for our consideration is the Yacht
Club's petition for review regarding the timeliness of its
notice of injury.
II
¶16 In our review, we consider whether the Yacht Club's
written notice of injury was timely filed. We begin by
examining the language of Wis. Stat. § 893.80(1d), the notice of
claim statute, applying the common law of nuisance to the
statute's plain language. Next we examine this court's decision
in E-Z Roll Off, 335 Wis. 2d 720, and the Village's assertion
that the purpose of the notice of claim statute precludes the
Yacht Club's argument here as it did the plaintiff's argument in
6
See Novell v. Migliaccio, 2008 WI 44, ¶65, 309
Wis. 2d 132, 749 N.W.2d 544 (a party that fails to file a
petition for cross-review does not preserve those issues for
supreme court review); Priesler v. General Cas. Ins. Co., 2014
WI 135, ¶59, 360 Wis. 2d 129, 857 N.W.2d 136 (explaining that
this court regularly "decline[s] to consider issues not raised
in petitions for review").
The court of appeals also addressed the Village's
alternative argument that the Yacht Club's claims were properly
dismissed because the Yacht Club failed to file an itemized
statement of the relief sought in accordance with Wis. Stat.
§ 893.80(1d)(b). See Yacht Club at Sister Bay Condo. Ass'n,
Inc., No. 2017AP140, unpublished slip op., ¶31. The court of
appeals concluded that "[t]he Village cites no authority for the
proposition that the Association was required to affirmatively
allege compliance with § 893.80(1d)(b) in its complaint. Under
these circumstances, we cannot conclude dismissal of the
Association's complaint was warranted based on the Association's
alleged failure to file an itemized statement of relief." Id.,
¶34. Neither party petitioned for review of this determination
and we do not address the issue further.
8
No. 2017AP140
E-Z Roll Off. Finally, we apply the plain language of Wis.
Stat. § 893.80(1d)(a) to the notice of injury that was served on
the Village in this action.
¶17 This review requires us to interpret the notice of
injury provision set forth in the notice of claim statute.
Statutory interpretation presents a question of law we review
independently of the determinations rendered by the circuit
court and court of appeals. Horizon Bank, Nat'l Ass'n v.
Marshalls Point Retreat LLC, 2018 WI 19, ¶28, 380 Wis. 2d 60,
908 N.W.2d 797 (citation omitted).
¶18 The application of the statute and the law of nuisance
to the facts of this case similarly presents a question of law
this court reviews independently, without deference to the
circuit court or court of appeals. MercyCare Ins. Co. v.
Wisconsin Comm'r of Ins., 2010 WI 87, ¶26, 328 Wis. 2d 110, 786
N.W.2d 785; see Milwaukee Metro. Sewerage Dist. v. City of
Milwaukee, 2005 WI 8, ¶16, 277 Wis. 2d 635, 691 N.W.2d 658.
III
A
¶19 Wisconsin Stat. § 893.80(1d), the notice of claim
statute, contains two notice provisions that serve different
purposes. Thorp v. Town of Lebanon, 2000 WI 60, ¶22, 235
Wis. 2d 610, 612 N.W.2d 59; Griffin v. Milwaukee Transport
Servs., Inc., 2001 WI App 125, ¶15, 246 Wis. 2d 433, 630
N.W.2d 536. When referring to the statute as a whole, we refer
to it as the "notice of claim statute" in accordance with past
case law. See, e.g., E-Z Roll Off, 335 Wis. 2d 720, ¶46.
9
No. 2017AP140
¶20 Subsection (1d)(a) is the "notice of injury"
provision, which allows governmental entities to investigate and
evaluate potential claims. Griffin, 246 Wis. 2d 433, ¶15.
Subsection (1d)(b) is the "notice of claim" provision, which
affords a municipality the opportunity to compromise and settle
a claim, thereby avoiding costly and time-consuming litigation.
Id.; City of Racine v. Waste Facility Siting Bd., 216
Wis. 2d 616, 622, 575 N.W.2d 712 (1998).
¶21 Our inquiry here focuses on the notice of injury
provision, sub. (1d)(a), and its requirement that "written
notice of the circumstances of the claim" be served on the
governmental subdivision "[w]ithin 120 days after the happening
of the event giving rise to the claim . . . ." Wis. Stat.
§ 893.80(1d)(a). Section 893.80(1d)(a) provides that "no action
may be brought or maintained against any . . . governmental
subdivision" unless a claimant files with the governmental
subdivision a notice of injury:
(a) Within 120 days after the happening of the event
giving rise to the claim, written notice of the
circumstances of the claim signed by the party, agent
or attorney is served on the volunteer fire company,
political corporation, governmental subdivision or
agency and on the officer, official, agent or employee
under s. 801.11. Failure to give the requisite notice
shall not bar action on the claim if the fire company,
corporation, subdivision or agency had actual notice
of the claim and the claimant shows to the
satisfaction of the court that the delay or failure to
give the requisite notice has not been prejudicial to
the defendant fire company, corporation, subdivision
10
No. 2017AP140
or agency or to the defendant officer, official, agent
or employee . . . .7
We must interpret § 893.80(1d)(a) to determine what constitutes
"the happening of the event giving rise to the claim" in this
nuisance action.
¶22 Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the
meaning of the statute is plain, we need not further the
inquiry. Id.¶23 The Yacht Club contends that each individual concert
is a separate "event" giving rise to a separate claim.
Conversely, the Village asserts in its brief that the "circuit
court and court of appeals both correctly determined that the
notice window began to run in August of 2014, when the pavilion
was completed, and the performances began, and did not reset
every time there was a performance held."
¶24 To resolve this dispute, we turn to the common law of
nuisance and its operation in this case. "It is well settled
that every continuance of a nuisance is, in law, a new
nuisance." Kull v. Sears, Roebuck & Co., 49 Wis. 2d 1, 9, 181
7
Wisconsin Stat. § 893.80(1d)(b), the notice of claim
provision, also restricts lawsuits against governmental entities
unless the potential claimant files: "[a] claim containing the
address of the claimant and an itemized statement of the relief
sought is presented to the appropriate clerk or person who
performs the duties of a clerk or secretary for the defendant
fire company, corporation, subdivision or agency and the claim
is disallowed." Wis. Stat. § 893.80(1d)(b).
11
No. 2017AP140
N.W.2d 393 (1970) (citing Ramsdale v. Foote, 55 Wis. 557, 562,
13 N.W. 557 (1882)); Brown v. Milwaukee Terminal Ry. Co., 199
Wis. 575, 590, 227 N.W. 385 (1929)). This rule has been
consistently applied throughout our jurisprudence:
There can be no doubt, under the authorities ancient
and modern, that an action lies against him who
erects, and against him who continues a nuisance
erected by another. The continuance and every use of
that which is, in its erection and use, a nuisance, is
a new nuisance, for which the party injured has a
remedy for his damages.
Kull; 49 Wis. 2d at 9 (citing Cobb v. Smith, 38 Wis. 21, 33
(1875)).
¶25 Applied to the facts here, this precedent establishes
that each use of the performance pavilion that constitutes a
nuisance, is a new nuisance for which an injured party has a
remedy for any damages incurred. Some concerts may be nuisances
and some may not.
¶26 A hypothetical scenario illustrates this point. If
the first concert held by the Village in the newly built
performance pavilion were an unamplified performance by a string
quartet that concluded by 8:00 p.m., it seems unlikely that such
a display would offend the Yacht Club or those similarly
situated so as to occasion the filing of a notice of injury
within 120 days of the event. However, if after the 120 day
claim period for the first concert had expired the Village then
held a heavy metal concert lasting until midnight, under the
Village's argument the Yacht Club would forever lose the ability
to sue to abate any nuisance caused by the heavy metal concert.
12
No. 2017AP140
¶27 Thus, for purposes of the notice of claim statute, we
conclude that each individual concert that is alleged to be a
nuisance constitutes a new "event" giving rise to a new 120-day
notice of injury period.
B
¶28 We examine next the Village's assertion that this
court's decision in E-Z Roll Off, 335 Wis. 2d 720, requires a
determination in its favor. The Village contends that the
purpose of the notice of claim statute precludes the Yacht
Club's argument here as it did the plaintiff's argument in E-Z
Roll Off.
¶29 In E-Z Roll Off, the plaintiff company was engaged in
the business of solid waste hauling. Id., ¶4. Oneida County
executed a contract with another waste hauling company, Waste
Management, whereby Waste Management would pay a $5.25 per ton
"tipping fee" for municipal solid waste it delivered to the
county solid waste facility. Id., ¶5. All other haulers,
including E-Z Roll Off, paid a lot more——a $54.00 per ton
tipping fee. Id. E-Z Roll Off eventually served the County
with a notice of injury and subsequently filed suit, claiming
violations of Wisconsin antitrust law. Id., ¶11.
¶30 The circuit court granted summary judgment to the
County, dismissing E-Z Roll Off's complaint for failure to
timely comply with the statutory notice of claim requirements.
Id., ¶12. On appeal, E-Z Roll Off argued that for purposes of
the notice of claim statute, there was a new injury and
13
No. 2017AP140
therefore a new claim on each occasion it paid the higher $54.00
per ton tipping fee. Id., ¶44.
¶31 This court rejected E-Z Roll Off's argument. The
reasons for its determination were twofold. First, E-Z Roll Off
"fail[ed] to cite any authority applying the continuing
violations doctrine to the notice of claim statute under
Wisconsin law." Id., ¶46.
¶32 Second, the court determined that E-Z Roll Off's
interpretation of the notice of claim statute is inconsistent
with the statute's purpose. Id. Specifically, a purpose of the
notice of claim statute "is to afford governmental entities the
opportunity to compromise and budget for potential settlement or
litigation." Id. (citing Thorp, 235 Wis. 2d 610, ¶¶23, 28).
The court concluded that accepting E-Z Roll Off's argument would
undermine this purpose. "If the continuing violations doctrine
were to apply, it would be much more difficult for governmental
entities to budget for potential litigation." E-Z Roll Off, 335
Wis. 2d 720, ¶46.
¶33 Such a result would create limitless exposure for
governmental entities. "The legislature did not intend for
governmental entities to be exposed to indefinite periods of
liability for potential violations of Wis. Stat. § 133.18. Such
a result would be unreasonable given the purposes of the notice
of claim requirements found in § 893.80." Id.
¶34 The court of appeals here determined that E-Z Roll Off
controls the outcome. In the court of appeals' view, the
concerns that drove the decision in E-Z Roll Off "are as
14
No. 2017AP140
significant in a case involving nuisance claims——where, as the
Association argues, each continued nuisance is a new nuisance——
as they are in a case involving alleged antitrust violations."
Yacht Club at Sister Bay Condo. Ass'n, Inc., No. 2017AP140,
unpublished slip op., ¶25. Specifically, the court of appeals
reasoned that the policy behind the notice of claim statute——
affording governmental entities the opportunity to compromise
and budget for potential settlement or litigation and shielding
them from "indefinite periods of liability"——are as germane and
dispositive in this case as they were in E-Z Roll Off. Id.
¶35 We disagree with the court of appeals that this
purpose mandates the same conclusion in this case as in E-Z Roll
Off. First, the court in E-Z Roll Off explicitly limited its
holding to the anti-trust context when it wrote, "[t]he
legislature did not intend for governmental entities to be
exposed to indefinite periods of liability for potential
violations of § 133.18." E-Z Roll Off, 335 Wis. 2d 270, ¶46
(emphasis added).
¶36 Second, acceptance of the Yacht Club's argument here
does not create the same limitless liability that E-Z Roll Off's
argument would have in the context of that case. In E-Z Roll
Off, the plaintiff's assertion was that each and every payment
of the tipping fee constituted a new "event" triggering a new
notice of claim period. Here, in contrast, there is no
assertion that each and every concert is a nuisance. The Yacht
Club seeks redress only for those concerts that it alleges to be
nuisances. Each concert is a unique event that is different
15
No. 2017AP140
from previous concerts with respect to noise levels and length
of time. Some concerts may be nuisances and some may not.
¶37 The notice of claim statute seeks to provide
governmental entities with sufficient information to allow them
to budget accordingly for either a settlement or litigation.
State Dep't of Nat. Res. v. City of Waukesha, 184 Wis. 2d 178,
198, 515 N.W.2d 888 (1994) abrogated on other grounds by State
ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 597,
547 N.W.2d 587 (1996); Van v. Town of Manitowoc Rapids, 150
Wis. 2d 929, 933, 442 N.W.2d 557 (Ct. App. 1989)). This purpose
is not compromised by our determination here. A governmental
entity is given enough information to budget for settlement or
litigation resulting from any concert that is alleged to be a
nuisance.
¶38 Allowing the Yacht Club to serve a written notice of
injury and bring suit for a future concert that is alleged to be
a noise nuisance therefore does not contravene the purpose of
the notice of claim statute. A municipality is not subject to
"limitless" liability. It faces potential liability for each
discrete concert for a discrete 120 day period. We thus
conclude that E-Z Roll Off does not apply to this nuisance
action.
C
¶39 Finally, we apply the plain language of Wis. Stat.
§ 893.80(1d)(a) to the written notice of injury filed in this
action. The written notice of injury the Yacht Club served on
the Village states: "[t]he last use of the pavilion occurred on
16
No. 2017AP140
or about September 1, 2015." Wisconsin Stat. § 893.80(1d)(a)
requires that written notice of injury be served on the
municipality "[w]ithin 120 days after the happening of the event
giving rise to the claim . . . ." In this case, that means that
the Yacht Club needed to serve the Village with its written
notice of injury by December 30, 2015.
¶40 The Yacht Club did not serve its written notice of
injury until March 7, 2016, well after the 120 day deadline.
Therefore, the written notice of injury was untimely with
respect to the September 1, 2015 concert. Accordingly, we
affirm the court of appeals' determination that the written
notice of injury was not timely filed on this basis. See Yacht
Club at Sister Bay Condo. Ass'n, Inc., No. 2017AP140,
unpublished slip op., ¶19.
¶41 Finally, as stated above, we do not opine on the court
of appeals' determination that the circuit court erred by
requiring the Yacht Club to present evidence regarding lack of
prejudice at the motion to dismiss stage. See supra, ¶15. We
therefore do not upset the court of appeals' direction to remand
the cause to the circuit court for consideration of whether the
Village had actual notice of the Yacht Club's claim and was not
prejudiced by the late filing of the notice of injury.
¶42 In sum, we conclude that each concert that is alleged
to be a nuisance constitutes a separate event for purposes of
filing a written notice of injury. However, because the Yacht
Club failed to serve its notice of injury within 120 days after
17
No. 2017AP140
the date of the last concert alleged to be a nuisance, its
written notice of injury was not timely filed.
¶43 Accordingly, we affirm in part and reverse in part the
decision of the court of appeals and remand the cause to the
circuit court to consider whether the Village had actual notice
of the Yacht Club's claim and was not prejudiced by the late
filing of the notice of injury.
By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part, and the cause remanded to
the circuit court.
18
No. 2017AP140
1