Carl A. Ricciardi v. Town of Lake ( 2023 )

2024 WI APP 3
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2022AP1567
Complete Title of Case:
CARL A. RICCIARDI AND PHYLLIS RICCIARDI,
PLAINTIFFS-APPELLANTS,
V.
TOWN OF LAKE,
DEFENDANT-RESPONDENT,
RURAL MUTUAL INSURANCE COMPANY,
INTERVENING DEFENDANT.
Opinion Filed: December 5, 2023
Submitted on Briefs: May 16, 2023
Oral Argument:
JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Daniel Snyder, Park Falls.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Michael J. Roman of Klinner Kramer Shull LLP, Wausau.
2024 WI App 3COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP1567 Cir. Ct. No. 2019CV58
STATE OF WISCONSIN IN COURT OF APPEALS
CARL A. RICCIARDI AND PHYLLIS RICCIARDI,
PLAINTIFFS-APPELLANTS,
V.
TOWN OF LAKE,
DEFENDANT-RESPONDENT,
RURAL MUTUAL INSURANCE COMPANY,
INTERVENING DEFENDANT.
APPEAL from a judgment of the circuit court for Price County:
KEVIN G. KLEIN, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 STARK, P.J. Carl A. and Phyllis Ricciardi seek damages against the
Town of Lake, under theories of negligence, private nuisance, and inverse
No. 2022AP1567
condemnation for flooding on their property that they claim was caused by the
Town’s faulty repair or reconstruction of a road abutting their property.1 The
Ricciardis appeal from the circuit court’s order granting summary judgment to the
Town and dismissing their lawsuit with prejudice.
¶2 The circuit court concluded that the Ricciardis’ claims were barred by
WIS. STAT. § 88.87(2) (2021-22),2 which provides the exclusive remedy for claims
against municipalities resulting from flooding allegedly caused by the construction
or repair of a highway. Under § 88.87(2)(c), a property owner damaged by the
construction or maintenance of a highway or railroad grade must file a notice of
claim “with the appropriate governmental agency or railroad company” “within 3
years after the alleged damage occurred” as a prerequisite to “bring[ing] an action
in inverse condemnation under [WIS. STAT.] ch. 32 or su[ing] for such other relief,
other than damages, as may be just and equitable.”
¶3 The circuit court determined that the Ricciardis’ common law claims
for damages were preempted by the statute. It further concluded that the Ricciardis
failed to establish that the three-year notice provisions of WIS. STAT. § 88.87(2)(c)
or (2)(d) were timely satisfied. Therefore, under our supreme court’s recent
decision in Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960
N.W.2d 17, the court dismissed the Ricciardis’ statutory inverse condemnation
claim as well.
1
After the lawsuit was filed, the Town’s insurer, Rural Mutual Insurance Company,
moved to intervene, bifurcate, and stay the case so that any insurance coverage obligations to the
Town could be resolved. The circuit court granted Rural Mutual’s motion to intervene, but it held
the motions to bifurcate and stay in abeyance. Rural Mutual notified this court that its interests are
not affected by the issues raised on appeal and that it would not be filing a brief.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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¶4 We agree that the Ricciardis’ claims are barred under WIS. STAT.
§ 88.87(2). Under the statute, para. (2)(c), which must be read in conjunction with
para. (2)(d), provides the remedies for property owners for damages manifested by
flooding allegedly caused by the construction or repair of a highway. Thus, pursuant
to our holding in Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242(Ct. App. 1992), § 88.87 preempts claims for relief other than those stated in the
statute, and the circuit court properly dismissed the Ricciardis’ common law claims.
¶5 We also conclude that the Ricciardis’ inverse condemnation claim
was untimely. Under WIS. STAT. § 88.87, the damage occurs when the
governmental entity fails to construct or maintain a highway or railroad grade
pursuant to para. (2)(a), regardless of when any resultant water accumulation is
discovered. Accordingly, the three-year statutory period within which to file a
notice of claim under para. (2)(c) or within which the governmental entity must have
actual notice under para. (2)(d) had already expired when the Ricciardis purchased
the property. We affirm the decision of the circuit court.
BACKGROUND
¶6 No pertinent facts are in dispute. This lawsuit arises out of road
maintenance or resurfacing of Ash Street, a public road located in the Town of Lake,
Price County. The Ricciardis alleged that the Town “negligently, carelessly, and
with lack of due care” both “raised the height of the roadway … in excess of that
permitted by law” and “installed culverts in such a manner … that causes such
culverts to direct large quantities of water, debris, and other runoff onto [the
Ricciardis’] residential and business property.” The Ricciardis did not assert in their
complaint when the Town’s alleged negligent maintenance/installation occurred.
The evidence submitted on summary judgment, however, established that Ash
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Street was last resurfaced by the Lymantown Sanitary District in 1990. The
evidence also established that the Town last installed a culvert on Ash Street on July
13, 2011.
¶7 It is undisputed that the Ricciardis purchased their real property—on
which they reside and operate a mobile home park business—adjacent to Ash Street
on June 1, 2015. Carl averred by affidavit that he observed flooding on his property
in “the Autumn of 2015.” According to Carl,
water was pouring from a culvert under … Ash Street
adjacent to his property, pooling on the surface of his
property, and saturating the soil of the property to such an
extent that the water was emanating up from the soil,
forming ponds, and damaging and threatening buildings,
mobile homes, and other structures on the property.
He stated that the flooding had occurred in 2015, 2016, 2017, and 2018. Carl
claimed to have “personally inspected the said culvert and found that it is situated
so that its mouth, opening onto the [Ricciardis’] property, is at an elevation that
directs the water flowing through it onto” the property. He did not allege that any
recent work by the Town had caused the flooding issues with the culvert.
¶8 By the same affidavit, Carl asserted that he complained to the Town
in 2015 and repeatedly in 2016 and 2017 about the culvert. He claimed that he told
the Town that the culvert “was wrongfully placed” and demanded that the Town
relocate or reconstruct the culvert. Carl presented evidence of his appearance at
several Town board meetings where the Ash Street culvert was discussed, in
addition to other culverts where flooding was an issue. He also presented evidence
that Town officials came to his property in the summer of 2017 to discuss the
culvert. Carl stated that he hired a contractor in October 2017 to spread dirt and
gravel on his property to—unsuccessfully, as it turned out—address the flooding.
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He claimed that the Town was aware of this activity because the contractor required
a permit from the Town to travel on the roads.
¶9 There is no evidence in the record that the prior owners of the
Ricciardis’ property—between 1990 and 2015—ever expressed concerns or
complaints regarding flooding caused by the resurfacing of Ash Street in 1990 or
the installation of the culvert in 2011. The Town also alleged, by affidavit, that it
had no knowledge of any alleged problems or flooding during the 1990 to 2015 time
period.
¶10 On March 5, 2018, the Ricciardis served the Town a written notice of
circumstances under WIS. STAT. § 893.80(1d)(a), and they later served a notice of
claim on or about October 29, 2018, under § 893.80(1d)(b).3 The Town disallowed
the § 893.80 notice of claim on March 14, 2019. The Ricciardis did not, however,
provide the Town with any form of “sworn statement” under WIS. STAT.
§ 88.87(2)(c) that alleged faulty maintenance of Ash Street or that construction of
the culvert resulted in flooding.
¶11 The Ricciardis subsequently filed this lawsuit against the Town on
September 12, 2019. The complaint alleged common law damage claims for
negligence and maintenance of a private nuisance as well as an inverse
condemnation claim under WIS. STAT. ch. 32.4 The Ricciardis further asserted their
3
The notice requirements under WIS. STAT. § 893.80(1d) require both “notice of injury”
and “notice of claim” when an action is brought against certain governmental bodies. See Yacht
Club at Sister Bay Condo. Ass’n v. Village of Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922
N.W.2d 95.
4
“Inverse condemnation is a procedure by which a property owner petitions the circuit
court to institute condemnation proceedings. It ‘allows a property owner to institute condemnation
proceedings against anyone who possesses, but fails to exercise, the power of condemnation.’”
Maple Grove Country Club Inc. v. Maple Grove Ests. Sanitary Dist., 2019 WI 43, ¶13 n.9, 386
Wis. 2d 425, 926 N.W.2d 184 (citations omitted); WIS. STAT. § 32.10.
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No. 2022AP1567
compliance with the notice requirements in WIS. STAT. § 893.80(1d)(a)-(b). The
complaint did not, however, mention a claim under WIS. STAT. § 88.87, nor did it
allege that the Ricciardis complied with the notice requirements of § 88.87(2)(c) or
(2)(d). As relevant here, in its answer, the Town raised § 88.87 as an affirmative
defense, asserting both that the Ricciardis’ causes of action were barred and that
they failed to comply with the applicable notice requirements.
¶12 The Town moved for summary judgment, seeking dismissal of the
Ricciardis’ lawsuit. It argued that most of the Ricciardis’ claims were preempted
by WIS. STAT. § 88.87. As to the inverse condemnation claim, the Town alleged
that the Ricciardis failed to timely comply with the specific notice and claim
provisions in § 88.87(2)(c) and (2)(d). The Ricciardis opposed the motion, arguing
that because the Town had actual notice of their flooding claims under para. (2)(d),
para. (2)(c) was inapplicable and neither the three-year notice requirement nor the
statutory preemption of all common law claims barred their causes of action.
¶13 The circuit court issued a written decision granting the Town’s motion
for summary judgment and dismissing the case with prejudice. 5 First, the court
observed that WIS. STAT. § 88.87 “provides the exclusive remedy when a landowner
wants to sue a Town for flooding or water-soaking problems resulting from road
construction or road maintenance. Common law claims are preempted.” See
Pruim, 168 Wis. 2d at 122. In response to the Ricciardis’ argument that para. (2)(d)
is a savings clause and must be read separately from para. (2)(c), the court called
this a “tortured and incorrect reading” that would “allow a plaintiff to sue for
whatever that plaintiff wanted to pursue” and “would not leave the statute as the
5
While the Town’s motion for summary judgment was pending, our supreme court issued
its decision in Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960 N.W.2d 17.
The parties then filed supplemental briefs addressing the court’s decision in that case.
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No. 2022AP1567
exclusive remedy.” According to the court, these paragraphs “must be read together
and in sequence,” as is demonstrated by the fact that the references in para. (2)(d)
“flow[]” from para. (2)(c). Accordingly, the court concluded that even under
para. (2)(d), all claims except inverse condemnation are preempted.
¶14 Second, as to the inverse condemnation claim, the circuit court
concluded that the Ricciardis had failed to establish that notice—under either WIS.
STAT. § 88.87(2)(c) (sworn statement) or (2)(d) (actual notice)—was timely
provided to the Town in order for the claim to proceed. According to the court,
under either paragraph, the Ricciardis needed to act within three years after the
damage occurred, which would have been either in 1990 when the road was
resurfaced or in 2011 when the culvert was installed. The court relied on our
supreme court’s recent decision in Southport Commons to reach this conclusion.
Given that the Ricciardis did not own the property within three years of either of
those events, they did not and could not comply with § 88.87, and their claim for
inverse condemnation was barred. The Ricciardis appeal.
DISCUSSION
¶15 On appeal, the Ricciardis challenge the circuit court’s grant of
summary judgment to the Town based upon its interpretation of WIS. STAT. § 88.87.
The interpretation of a statute presents a question of law that we review
independently. See State v. Grandberry, 2018 WI 29, ¶11, 380 Wis. 2d 541, 910
N.W.2d 214. Our review of a circuit court’s summary judgment decision is also de
novo, and we apply the same methodology as the circuit court. Springer v. Nohl
Elec. Prods. Corp., 2018 WI 48, ¶9, 381 Wis. 2d 438, 912 N.W.2d 1. That
methodology provides that summary judgment is appropriate “if the pleadings,
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No. 2022AP1567
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2).
I. WISCONSIN STAT. § 88.87
¶16 The purpose behind WIS. STAT. § 88.87 is “to regulate the
construction and drainage of all highways in order to protect property owners from
damage to lands caused by unreasonable diversion or retention of surface waters
due to the construction of highways or railroad beds.” Southport Commons, 397
Wis. 2d 362, ¶21 (quoting Lins v. Blau, 220 Wis. 2d 855, 859, 584 N.W.2d 183(Ct. App. 1998)).
The statute imposes a duty on governmental entities to
refrain from impeding “the general flow of surface water or
stream water in any unreasonable manner so as to cause
either an unnecessary accumulation of waters flooding or
water-soaking uplands or an unreasonable accumulation and
discharge of surface waters flooding or water-soaking
lowlands.”
Lins, 220 Wis. 2d at 859 (quoting § 88.87(2)(a)).
¶17 Accordingly, WIS. STAT. § 88.87(2)(c) “creates a remedy for property
owners who claim damages from a violation of” § 88.87(2)(a) and “also establishes
certain procedures to be followed in making a claim.” Southport Commons, 397
Wis. 2d 362, ¶22. Paragraph (2)(c) provides, in pertinent part, that “any property
owner damaged by the highway [construction or maintenance] may, within 3 years
after the alleged damage occurred, file a claim with the appropriate governmental
agency or railroad company,” which “shall consist of a sworn statement of the
alleged faulty construction and a description, sufficient to determine the location of
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the lands, of the lands alleged to have been damaged by flooding or water-soaking.”
Sec. 88.87(2)(c). The governmental agency or railroad company is then given
ninety days to “correct the cause of the water damage, acquire rights to use the land
for drainage or overflow purposes, or deny the claim.” Id.If the agency or company denies the claim or fails to take
any action within 90 days after the filing of the claim, the
property owner may bring an action in inverse condemnation
under [WIS. STAT.] ch. 32 or sue for such other relief, other
than damages, as may be just and equitable.
Sec. 88.87(2)(c).
¶18 The legislature also created WIS. STAT. § 88.87(2)(d), which provides:
Failure to give the requisite notice by filing a claim under
par. (c) does not bar action on the claim if the city, village,
town, county, railroad company or department of
transportation had actual notice of the claim within 3 years
after the alleged damage occurred 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
city, village, town, county, railroad company or department
of transportation.
II. The Ricciardis’ Common Law Causes of Action Are Preempted by WIS. STAT.
§ 88.87.
¶19 The Ricciardis first argue that none of their claims or causes of action
are preempted or barred by WIS. STAT. § 88.87. They claim that § 88.87(2)(c) and
(2)(d) are two entirely separate provisions such that any restrictions within
para. (2)(c) do not apply to para. (2)(d). According to the Ricciardis, the language
in para. (2)(c) stating that “the property owner ‘may bring an action in inverse
condemnation … or sue for such other relief, other than damages, as may be just
and equitable’” applies only “if the governmental body denies the written notice of
claim described in the preceding sentences of that subsection or that claim is deemed
denied by its inaction.” In other words, the Ricciardis assert that “[t]he ‘other than
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damages’ language is part and parcel with … [§] 88.87(2)(c)” and does not apply
“[i]f no such claim is filed” because the governmental body had actual notice under
§ 88.87(2)(d).
¶20 The Town argues that the issue of statutory preemption under WIS.
STAT. § 88.87 was previously resolved in Pruim. There, a property owner brought
a nuisance action, claiming that a town had negligently constructed and maintained
a highway, which resulted in flooding on his property after a rainstorm. Pruim, 168
Wis. 2d at 117, 119-20. The property owner argued that § 88.87 (1991-92), “was
not meant to preempt his common law claims”; instead, he claimed that the statute
is a “mere additional remedy, statutorily provided by the legislature, to act as an
adjunct to common[-]law remedies like the nuisance action.” Pruim, 168 Wis. 2d
at 120. We disagreed, holding “that the legislature decided to regulate and control
strictly the types of claims that may be made by property owners against
governmental entities regarding highway construction and repair” and that § 88.87
(1991-92), “preempts claims for relief other than those stated in the statute.” Pruim,
168 Wis. 2d at 117, 122.
¶21 We agree with the Town that pursuant to WIS. STAT. § 88.87 and
Pruim, the only claims that are permitted under the statute—provided the property
owner complies with the notice requirements under § 88.87(2)(c)—are those for
inverse condemnation under WIS. STAT. ch. 32 and equitable claims for relief “other
than damages.” See § 88.87(2)(c); Pruim, 168 Wis. 2d at 117, 119, 122. We are
bound by our decision in Pruim. See Cook v. Cook, 208 Wis. 2d 166, 190, 560
N.W.2d 246 (1997) (“[T]he court of appeals may not overrule, modify or withdraw
language from a previously published decision of the court of appeals.”).
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¶22 We acknowledge, however, that at the time Pruim was decided, WIS.
STAT. § 88.87(2)(d) did not exist. See § 88.87 (1991-92). The legislature amended
§ 88.87 to include para. (2)(d) in 1993. See 1993 Wis. Act 456, § 110; Lins, 220
Wis. 2d at 860. Accordingly, the Ricciardis argue that Pruim is inapplicable
because the statutory preemption provision of § 88.87(2)(c) “applies, by its express
terms, ‘if’ a claim meeting the requirements of that [paragraph] is filed and denied
or deemed denied.” They assert that where there is no claim filed but the
governmental entity had actual notice of the claim pursuant to § 88.87(2)(d), there
is no preemption because para. (2)(d) “does not contain the ‘other than damages’
language that appears in” para. (2)(c). Without that language, the Ricciardis assert
that there is no limitation on the types of remedies a property owner can seek against
a governmental entity when that entity has actual knowledge of a claim.
¶23 We conclude that the Ricciardis’ reading of the statute is contrary to
the rules of statutory interpretation. As has been stated many times, “statutory
interpretation ‘begins with the language of the statute. If the meaning of the statute
is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted).
“Statutory language is given its common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are given their technical or
special definitional meaning.” Id. Importantly, “statutory language is interpreted
in the context in which it is used; not in isolation but as part of a whole; in relation
to the language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id., ¶46.
¶24 The Ricciardis improperly read the paragraphs of WIS. STAT. § 88.87
in isolation while ignoring the context of each provision. Paragraphs 88.87(2)(c)
and (2)(d) must be read together as two provisions describing the remedy for
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property owners who claim property damage from a violation of the statute. We
agree with the circuit court’s rationale that the “language of [para. (2)(c)] flows into
[para. (2)(d)].” Read alone, without the context of para. (2)(c), para. (2)(d) is
ambiguous. See Kalal, 271 Wis. 2d 633, ¶46. Paragraph (2)(d) refers to “the delay
or failure to give the requisite notice” and “action on the claim,” which are
meaningless phrases without the explanations contained in para. (2)(c).
¶25 Further, WIS. STAT. § 88.87(2)(d) contains no discussion of a remedy.
That is because para. (2)(d) merely confirms that the remedies listed in para. (2)(c)
are still available even if the property owner failed to strictly comply with the
requirements of para. (2)(c), provided that the governmental entity had actual notice
of the claim and the owner can prove no prejudice. Sec. 88.87(2)(c), (2)(d). Further,
as we observed in Van v. Town of Manitowoc Rapids, 150 Wis. 2d 929, 442
N.W.2d 557 (Ct. App. 1989):
[WISCONSIN STAT. § 88.87 (1987-88)] created a new right in
derogation of the common law. (At common law, a
government has no duty to property owners for water
damage occasioned by road construction or repair.) It is a
cardinal rule that where a new right has been given by statute
and a specific remedy provided by statute, the right can be
vindicated in no other way than that prescribed by statute.
Such statutes are to be construed narrowly and strictly.
Van, 150 Wis. 2d at 934 (citations omitted).
¶26 Contrary to the Ricciardis’ assertion, we are not reading words into
the statute that the legislature did not see fit to include “by grafting the ‘other than
damages’ language into [WIS. STAT.] § 88.87(2)(d).” See, e.g., Fond Du Lac
County v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App.
1989) (“One of the maxims of statutory construction is that courts should not add
words to a statute to give it a certain meaning.”). Instead, we see the Ricciardis’
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reading of the statute as a violation of this particular canon of statutory construction.
The Ricciardis are adding the availability of other remedies to para. (2)(d) that the
legislature did not include. Had the legislature intended a different result as to the
available remedies between paras. (2)(c) and (2)(d)—such that, for example, all
common law claims would be available to property owners—the legislature would
have specifically provided for that result.
¶27 Additionally, the Ricciardis’ interpretation leads to an absurd and
unreasonable result. See Kalal, 271 Wis. 2d 633, ¶46. WISCONSIN STAT. § 88.87
was designed by the legislature “to regulate the construction and drainage of all
highways in order to protect property owners from damage to lands caused by
unreasonable diversion or retention of surface waters due to the construction of
highways or railroad beds.” Lins, 220 Wis. 2d at 859. As we explained in Pruim,
“the legislature has commanded that it will ‘control and regulate’ the protection of
property owners” by describing “exactly how property owners could act to protect
themselves.” Pruim, 168 Wis. 2d at 118-19.
¶28 Thus, it is not reasonable to read the statute as the Ricciardis suggest.
Under the Ricciardis’ interpretation, if a property owner strictly complies with the
express terms of WIS. STAT. § 88.87(2)(c) and files a notice of claim, the property
owner’s recovery is limited to claims under inverse condemnation and in equity, but
if the property owner does not comply with para. (2)(c), then he or she is entitled to
bring claims for the full panoply of causes of action and damages resulting from the
government’s violation of the statute as manifested by the flooding. This reading
of the statute could incentivize property owners to avoid filing notices of claims to
comply with the statute: why would a property owner ever attempt to comply with
the requirements in para. (2)(c) if doing so would limit the remedies he or she could
pursue against the governmental entity?
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¶29 In summary, we conclude that the proper reading of WIS. STAT.
§ 88.87 is the one advanced by our holding in Pruim. Under either § 88.87(2)(c) or
(2)(d), “the statute preempts claims for relief other than those stated in the statute,”
see Pruim, 168 Wis. 2d at 117; Kohlbeck v. Reliance Constr. Co., 2002 WI App
142, ¶7, 256 Wis. 2d 235, 647 N.W.2d 277, and “the property owner may bring an
action [only] in inverse condemnation under [WIS. STAT.] ch. 32 or sue for such
other relief, other than damages, as may be just and equitable,” see § 88.87(2)(c).
The circuit court properly dismissed the Ricciardis’ common law claims on
summary judgment.
III. Any Notice the Ricciardis Provided to the Town Was Untimely Under WIS. STAT.
§ 88.87(2), and thus the Inverse Condemnation Claim Is Barred.
¶30 As noted, the circuit court, relying on our supreme court’s decision in
Southport Commons, concluded that the Ricciardis’ inverse condemnation claim
was barred by their failure to show that they provided timely notice to the Town
under WIS. STAT. § 88.87(2). The Ricciardis argue that the circuit court erred
because § 88.87(2)(c) provides that the clock begins running “after the alleged
damage occurred,” not when the defective construction by the Town occurred.
According to the Ricciardis, “[t]he record here demonstrates that the damage
occurred sometime after the Ricciardis’ May of 2015 purchase of the property.”
(Formatting altered.) Regardless, the Ricciardis also assert that the time limits of
para. (2)(c) are “inapplicable because it is supplanted, in this case, by the ‘actual
notice’ subsection, § 88.87(2)(d).” We disagree with the Ricciardis’
characterization of when the damage occurred under the statute. We also determine
that § 88.87(2)(d) does not apply under the facts of this case. We therefore conclude
that pursuant to Southport Commons, the Ricciardis’ inverse condemnation claim
is time barred.
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¶31 As to the first issue, when the damage occurred under the statute, we
note that in Southport Commons, a property owner—Southport Commons LLC—
alleged that property it owned in Kenosha County was damaged by the Wisconsin
Department of Transportation (DOT) relocating a frontage road, resulting in a
bisection of the property. Southport Commons, 397 Wis. 2d 362, ¶¶8-9. Southport
filed a notice of claim under WIS. STAT. § 88.87(2)(c) against the DOT, and it later
sued the DOT for inverse condemnation, alleging that the DOT’s faulty construction
and maintenance of the frontage road impeded the flow of water, thereby creating
new wetlands or increased wetlands on its property. Southport Commons, 397
Wis. 2d 362, ¶¶13-14. The DOT moved for judgment on the pleadings, arguing that
Southport failed to timely file its notice of claim; Southport responded that notice
need only be filed within three years of discovery of the damage to be timely. Id.,
¶15. The circuit court granted the DOT’s motion and dismissed the lawsuit,
agreeing that the notice of claim was not timely filed. Id., ¶16. We affirmed, and
our supreme court later affirmed our decision. Id., ¶¶6, 17.
¶32 The relevant question before our supreme court was at what time the
notice of claim period in WIS. STAT. § 88.87(2)(c) begins to run. According to the
court, “‘occurred’ in the context of [§] 88.87(2)(c) does not mean ‘discovered.’ The
notice of claim period in § 88.87(2)(c) begins to run when the damage happens or
takes place.” Southport Commons, 397 Wis. 2d 362, ¶¶4, 40. In reaching that
conclusion, the court noted the distinction between WIS. STAT. § 893.55(1m)—
which references when “the injury was discovered”—and § 88.87(2)(c)—which
does not contain any reference to “discovery”—concluding that “the legislature
chose not to include a discovery provision in § 88.87(2)(c), and it would be error to
read one in.” Southport Commons, 397 Wis. 2d 362, ¶32.
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¶33 The supreme court further referenced legislative history related to the
amendment to WIS. STAT. § 88.87(2)(c)—changing the former ninety-day time limit
to the current three-year period for filing—stating that “[t]he legislature made this
change with the intent to provide the landowner with ‘sufficient time to discover the
damage.’” Southport Commons, 397 Wis. 2d 362, ¶34 (alteration in original)
(quoting Lins, 220 Wis. 2d at 861; Legislative Council Special Committee Note,
1993 Wis. Act 456, § 109). The court agreed with the DOT that “‘[t]his change
would have been unnecessary if the notification period does not begin until the
damage is discovered.’ The legislature thus did not intend an open-ended claim
period such as that for which Southport advocates.” Id.
¶34 Given our supreme court’s conclusion, it seems reasonable that
Southport Commons would control the issue in this case concerning whether the
Ricciardis timely filed their lawsuit. The Ricciardis argue, however, that Southport
Commons does not address, or even mention, WIS. STAT. § 88.87(2)(d). Further,
they claim that rather than being a dispute over the difference between “occurred”
and “discovered,” “[t]he real heart of this appeal is the proper interpretation of the
word ‘damage’ in § 88.87 …, requiring that notice be given to the Town ‘within 3
years after the alleged damage occurred.’” The Ricciardis’ position is that the
damage occurred whenever the flooding occurred. We conclude that the Ricciardis’
interpretation is a strained attempt to argue around the holding in Southport
Commons.
¶35 We begin with the dictionary definition of “damage.” See Kalal, 271
Wis. 2d 633, ¶45; State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998)
(“For purposes of statutory interpretation or construction, the common and approved
usage of words may be established by consulting dictionary definitions.”).
“Damage,” as a noun, is defined as “[l]oss or injury to person or property.” Damage,
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No. 2022AP1567
BLACK’S LAW DICTIONARY (11th ed. 2019). Then, under WIS. STAT. § 88.87(2)(c)
and (2)(d), the time limitation is calculated based on when “damage occurred.” Our
supreme court stated that “something ‘occurs’ when it happens or takes place.”
Southport Commons, 397 Wis. 2d 362, ¶29. Taken alone, those definitions could
support the Ricciardis’ reading of the statute; however, we must consider the phrase
“damage occurred” in the context in which it is used. See Kalal, 271 Wis. 2d 633,
¶46.
¶36 That context can be found in WIS. STAT. § 88.87(2)(a). Under
§ 88.87(2)(c), the governmental entity must “construct[] and maintain[] a highway
or railroad grade” in accordance with the statutory provisions under para. (2)(a).
Section 88.87(2)(a) provides that whenever a governmental entity
has heretofore constructed and now maintains or hereafter
constructs and maintains any highway or railroad grade in or
across any marsh, lowland, natural depression, natural
watercourse, natural or man-made channel or drainage
course, it shall not impede the general flow of surface water
or stream water in any unreasonable manner so as to cause
either an unnecessary accumulation of waters flooding or
water-soaking uplands or an unreasonable accumulation and
discharge of surface waters flooding or water-soaking
lowlands.
When a governmental entity “impede[s] the general flow of surface water or stream
water in any unreasonable manner” causing water to accumulate on a property, the
property owner is “damaged by the highway or railroad grade” and must bring a
claim under § 88.87. Sec. 88.87(2)(a), (c).
¶37 Therefore, the loss or injury to property happens or takes place—in
other words, the damage occurs—when the governmental entity fails to construct or
maintain a highway or railroad grade pursuant to WIS. STAT. § 88.87(2)(a). When
surface water accumulates or flooding occurs, an affected property owner may make
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a claim against the governmental entity pursuant to § 88.87(2)(c) or (d), provided
the claim is made “within 3 years after the alleged damage occurred.”
Sec. 88.87(2)(c), (d). Regardless of when the water accumulation is discovered, the
damage occurred when the governmental entity failed to act properly pursuant to
§ 88.87(2)(a). As the circuit court reasoned, “in the context of § 88.87, … the word
‘damage’ is not talking about actual damage to someone’s property, it is talking
about alleged faulty construction for which the remedies are narrow and specified
and DO NOT include fixing any actual damage to property or paying money
damages.”
¶38 In other words, the damage that has occurred due to the governmental
entity’s failure to construct or maintain a highway or railroad grade pursuant to WIS.
STAT. § 88.87(2)(a) manifests itself when there is surface water accumulation, and
any claim by an affected property owner must be brought under § 88.87. If flooding
does not occur or does not occur within three years of the governmental entity’s
faulty maintenance or construction—i.e., when the damage occurred—the claim is
barred.
¶39 The Ricciardis argue that, under this reading, “every owner of
property abutting a road would be required to file a claim immediately after the
work was concluded, and even if the property had not been damaged, on the chance
that damage might later ‘happen’ or ‘take place.’” However, our supreme court
addressed this concern in Southport Commons when it observed that the legislature
amended the statute. Southport Commons, 397 Wis. 2d 362, ¶34. The possibility
of later discovery of the damage—as occurred in this case—was acknowledged by
the legislature when it amended the statute to change the former ninety-day time
limit to three years to provide “sufficient time to discover the damage.” See Lins,
220 Wis. 2d at 861; Legislative Council Special Committee Note, 1993 Wis. Act
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456, § 109. Under the Ricciardis’ reading of the statute, a property owner would be
able to extend a claim under WIS. STAT. § 88.87 indefinitely. Absent the three-year
time limit, there would potentially be no limit to the governmental entity’s liability
for the failure to properly construct or maintain the roadway. The legislature
deemed three years to be sufficient. Any other conclusion would render the notice
of claims period entirely open-ended.
¶40 We view the Ricciardis’ argument that the “damage occurred”
whenever the “flooding occurred” as simply a rephrasing of Southport’s argument
before our supreme court, and it is not supported by Southport Commons’ holding
that occurred does not mean discovered. See Southport Commons, 397 Wis. 2d
362, ¶¶4, 40. The Ricciardis merely discovered the damage when their property
flooded, but that is not when the damage occurred under WIS. STAT. § 88.87(2). The
flooding was the result: the manifestation of the damage caused by the Town’s
failure to property construct the roadway years earlier.
¶41 Finally, the Ricciardis assert that Pruim “stands on the Ricciardis’
side on the issue of the triggering event for the statutory 3-year period.” According
to the Ricciardis, this court “concluded that such a claim ‘must be made within
ninety days after the damage occurred and is discovered.’” See Pruim, 168 Wis. 2d
at 119 (emphasis added). In reaching that conclusion, the court cited language from
the Legislative Council Committee’s comment on the statute that the landowner is
required to commence an action under the statute for equitable relief or inverse
condemnation “for the taking of the land by flooding or water-soaking.” Id. at 121
(formatting altered). The Ricciardis assert that “[t]here could be no such claim for
‘flooding or water-soaking’ until the ‘flooding or water-soaking’ happened.”
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No. 2022AP1567
¶42 We disagree with the Ricciardis’ assertion that Pruim resolves the
issue of the triggering event in their favor. As the Southport Commons court
observed, “the Pruim court seemingly used the words ‘occurred’ and ‘discovered’
interchangeably.” Southport Commons, 397 Wis. 2d 362, ¶36. The court
explained, however, that “the landowner in Pruim discovered the damage in the
immediate aftermath of its occurrence”; therefore, “the court’s use of the phrase
‘occurred and is discovered,’ along with its use of the two terms interchangeably,
makes sense.” Southport Commons, 397 Wis. 2d 362, ¶39. Further, and as relevant
to this appeal as well, our supreme court noted that “the Pruim court did not address
the question raised in the instant case, i.e., when the notice of claim period begins
when discovery happens long after the damage occurs. Pruim is distinguishable on
its facts, and thus it does not control the outcome here.” See Southport Commons,
397 Wis. 2d 362, ¶39.
¶43 In this case, the Ricciardis allege in their complaint that the Town
conducted faulty maintenance of Ash Street and faulty installation of the culvert,
which occurred in 1990 and in 2011, respectively. The circuit court found that
“nothing material is alleged to have happened, at the hands of anyone, between [the]
culvert installation in 2011 and the [Ricciardis’] subsequent purchase.” As the
Town asserts, and the Ricciardis do not dispute, there is no evidence demonstrating
that there was any difference in the property before and after the culvert was
installed or that anything of substance regarding the culvert happened in the four
years after its installation. Further, evidence in the record states that the prior
owners of the Ricciardis’ property did not raise concerns or complaints regarding
flooding and that the Town did not have any knowledge of any alleged problem or
flooding during that period.
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No. 2022AP1567
¶44 These facts are fatal to the Ricciardis’ case. Absent any evidence that
some other action by the Town violated the provisions of WIS. STAT. § 88.87(2)(a),
we must conclude that installing the culvert is the event that activated the protections
of the statute. Without that conclusion, there is no causation linking the Town to
the flooding and providing the Ricciardis a remedy under the statute. Therefore, the
damage in this case that impacted the function of the culvert/road for removing or
directing water occurred, at the latest, when the culvert was installed. Accordingly,
this was the event that triggered the three-year statutory notice deadline for the
Ricciardis to bring their claim.
¶45 The Ricciardis, therefore, failed to comply with the requirements of
WIS. STAT. § 88.87(2) because the three-year statutory period had already run by
the time they purchased the property.6 The circuit court properly granted summary
judgment to the Town and dismissed the Ricciardis’ inverse condemnation cause of
action as untimely.
By the Court.—Judgment affirmed.
6
As we determined above, WIS. STAT. § 88.87(2)(c) and (2)(d) are to be read together;
thus, the provisions addressing whether the Ricciardis’ lawsuit was timely apply equally under both
paragraphs. While the Ricciardis argue that they “were diligent in notifying the Town and asserting
their claims for relief,” based on our statutory analysis above, they failed to do so within the
three-year time limit. Even if we assume, without deciding, that the Town had actual notice of the
claim under § 88.87(2)(d), the earliest the Town had actual notice would have been 2015, given
that there was no evidence that the prior owners complained of flooding. That notice came too late.
Because the Town did not have actual notice within three years after the alleged damage occurred,
we need not reach the issue of whether the Ricciardis have shown that “the delay or failure to give
the requisite notice has not been prejudicial to the [Town].” See § 88.87(2)(d); see also Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (observing that an appellate court
need not address every issue raised by the parties when one issue is dispositive).
21