Bostco Llc v. Milwaukee Metro. Sewerage Dist.

Decision Date24 May 2011
Docket NumberNos. 2007AP221,2007AP1440.,s. 2007AP221
Citation2011 WI App 76,334 Wis.2d 620,800 N.W.2d 518
PartiesBOSTCO LLC and Parisian, Inc., Plaintiffs–Appellants–Cross–Respondents, †v.MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, Defendant–Respondent–Cross–Appellant. ††
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Mark A. Cameli, Rebecca Frihart Kennedy, Lisa Nester Kass and Joseph W. Voiland of Reinhart Boerner Van Deuren S.C., of Milwaukee. There was oral argument by David E. Frank.On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of G. Michael Halfenger and William J. Katt of Foley & Lardner LLP, of Milwaukee; Kevin J. Lyons and Matthew R. McClean of Davis & Kuelthau, S.C., of Milwaukee; and Michael J. McCabe, Susan B. Anthony and James H. Petersen of Milwaukee Metropolitan Sewerage District, of Milwaukee. There was oral argument by G. Michael Halfenger.Amicus Curiae brief was filed by Claire Silverman and Daniel Olson of League of Wisconsin Municipalities, of Madison.Before FINE, BRENNAN and ANDERSON, JJ.

BRENNAN, J.

Bostco LLC and Parisian, Inc. (collectively “Bostco” unless otherwise noted) brought this lawsuit against the Milwaukee Metropolitan Sewerage District (“the District”) for damages sustained to the Bostco-owned Boston Store building in downtown Milwaukee. Bostco alleged that the District's negligent maintenance and operation of the Deep Tunnel—a nineteen mile, thirty-two foot diameter, sewage and stormwater tunnel, running 300 feet below downtown Milwaukee—permitted groundwater in the downtown area to excessively seep into the Deep Tunnel, dewatering the ground underneath the Boston Store. Bostco contended that, as a result of the dewatering, the water table in the area of the Boston Store dropped and the timber piles upon which the store was founded began to rot and shift due to exposure to air and soil settlement, resulting in millions of dollars in damages.

¶ 2 Bostco's amended complaint against the District alleged four claims: (1) negligence; (2) continuing nuisance; (3) inverse condemnation; and (4) excavation protection under Wis. Stat. § 101.111 (2009–10).1 The District filed a motion to dismiss the amended complaint, alleging that Bostco had failed to meet the notice-of-claim requirements set forth in Wis. Stat. § 893.80(1). The trial court denied the motion and determined that Bostco substantially complied with § 893.80(1)'s requirements. The District later filed for summary judgment, and the trial court granted the motion, in part, dismissing Bostco's claims for inverse condemnation and statutory excavation protection. Bostco's negligence and nuisance claims proceeded to a jury trial.

¶ 3 Bostco only prevailed on the negligence claim at trial. On that claim, the jury found that Bostco suffered $9 million in past and future harm, but that Bostco was thirty percent contributorily negligent. With respect to the nuisance claim, the jury concluded that although the District interfered with Bostco's use and enjoyment of its building, Bostco did not suffer “significant harm,” thereby defeating the claim.

¶ 4 Both parties filed post-verdict motions, and, after a hearing, the trial court: (1) upheld the jury's finding that Bostco was thirty percent contributorily negligent; (2) reversed the jury's finding that Bostco knew or should have known of its injury prior to June 4, 1997; (3) upheld the jury's verdict that Bostco incurred no significant harm from the District's interference with Bostco's full use and enjoyment of its property; (4) concluded that the District did not enjoy governmental immunity pursuant to Wis. Stat. § 893.80(4); and (5) applied the $50,000 municipal damage cap in § 893.80(3). The effect of the trial court's post-verdict rulings was to limit Bostco's recovery to $100,000, i.e., $50,000 for each Bostco and Parisian.

¶ 5 Following the trial court's post-verdict order applying the $50,000 cap on damages, Bostco filed a motion for injunctive relief, claiming that it was irreparably harmed by the District's negligence and that the imposition of the caps prevented it from obtaining an adequate remedy under the law. As relief, Bostco asked the trial court to order the District to line that portion of the Deep Tunnel near the Boston Store with concrete. The trial court granted Bostco's motion, ordering the District to fully line the Deep Tunnel with concrete one-half mile north and one-half mile south of the Boston Store.2

¶ 6 Bostco now appeals, arguing that the trial court erred by: (1) refusing to change the jury's finding that Bostco did not suffer “significant harm,” despite also awarding Bostco millions of dollars in past damages; (2) applying the $50,000 municipal damage cap set forth in Wis. Stat. § 893.80(3); (3) failing to change the jury's finding that Bostco was contributorily negligent; (4) dismissing Bostco's inverse condemnation claim on summary judgment; and (5) dismissing Bostco's Wis. Stat. § 101.111 claim on summary judgment.

¶ 7 The District cross-appeals, arguing that the trial court erred by: (1) failing to conclude that the District is immune from liability pursuant to Wis. Stat. § 893.80(4); (2) reversing the jury's finding that Bostco's claims were barred by the statute of limitations; (3) concluding that Bostco substantially complied with the notice and itemization of relief requirements set forth in § 893.80(1); and (4) ordering injunctive relief after trial and after the deadline for filing post-verdict motions had passed.

¶ 8 We affirm all but two of the trial court's orders, albeit some on different grounds. We overturn the trial court's order refusing to reverse the jury's nuisance finding that Bostco did not suffer significant harm and its order granting Bostco injunctive relief.

Discussion

¶ 9 We will address each of the parties' arguments in the context of Bostco's causes of action, that is, negligence, followed by nuisance, then inverse condemnation, and Wis. Stat. § 101.111. Finally, we will address the trial court's injunction order.

I. Negligence

¶ 10 We turn first to Bostco's negligence claim; the only claim on which Bostco succeeded before the trial court. The jury found that the District was “negligent in the manner in which it operated or maintained the tunnel near the Boston Store” and that the negligence was “a cause of the claimed damage to the Boston Store foundation.” Furthermore, the jury concluded that $3 million would “fairly and reasonably compensate” Bostco for past damages and $6 million would “fairly and reasonably compensate” Bostco for any future damages. However, the jury also found Bostco thirty percent contributorily negligent, and during the post-verdict hearing, the trial court applied the municipal damage cap set forth in Wis. Stat. § 893.80(3), reducing Bostco's total relief to $100,000, to wit, $50,000 for each Bostco and Parisian.

¶ 11 With respect to negligence, we turn first to the District's argument on cross-appeal that it is entitled to immunity pursuant to Wis. Stat. § 893.80(4). Second, we address the application of the municipal tort cap on damages set forth in § 893.80(3). Third, we look to the trial court's decision to change the jury's answer regarding the applicable statute of limitations. Finally, we address the District's claim that Bostco failed to properly serve the District with a notice of claim or an itemization of damages pursuant to § 893.80(1).

¶ 12 Because we conclude that the municipal tort cap on damages applies, we do not address Bostco's claim that the trial court erred in permitting the District to pursue a contributory negligence defense. See Clark v. Waupaca Cnty. Bd. of Adjustment, 186 Wis.2d 300, 304, 519 N.W.2d 782 (Ct.App.1994) (We address only dispositive issues and decide appeals on the narrowest possible ground.).

A. Immunity: The District is not entitled to immunity under Wis. Stat. § 893.80(4).

¶ 13 In its cross-appeal, the District argues that all of Bostco's claimed damages were caused by the District's initial design decision not to fully line the Deep Tunnel with concrete. The District contends that its design decisions are discretionary, and therefore, it is entitled to immunity for those decisions under Wis. Stat. § 893.80(4).3 Additionally, the District argues that there is no evidence in the record demonstrating that it violated a ministerial duty for which the District would not be immune.

¶ 14 Bostco counters that the trial court limited the evidence at trial to those acts involving the District's duty to maintain and operate the Deep Tunnel—acts which are ministerial in nature and for which the District does not enjoy immunity under Wis. Stat. § 893.80(4)—and that it was upon those acts that the jury found the District to be negligent. Additionally, Bostco argues that the District waived its immunity argument when it failed to object to the trial court's pretrial order limiting the evidence to the District's maintenance and operation of the Deep Tunnel after August 7, 1992.

¶ 15 To begin, we are unpersuaded by Bostco's waiver argument. It is true that the District did not object to the trial court's order limiting the evidence at trial to only the District's acts that occurred after it had assumed responsibility for maintenance and operation of the Deep Tunnel on August 7, 1992. However, the District's act of agreeing to the date beyond which it was responsible for maintenance and operation of the Deep Tunnel was not a tacit waiver of the defense of immunity, which it had expressly asserted in its amended answer. See State v. Ndina, 2009 WI 21, ¶ 29, 315 Wis.2d 653, 761 N.W.2d 612 ([W]aiver” is “the intentional relinquishment or abandonment of a known right.”) (citation and quotation marks omitted). The trial court noted as much in pretrial motions.

¶ 16 We agree with Bostco on the balance of...

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2 cases
  • Bostco LLC v. Milwaukee Metro. Sewerage Dist.
    • United States
    • Wisconsin Supreme Court
    • 18 July 2013
    ...Bostco proved its claim for private nuisance. Bostco LLC v. Milwaukee Metro. Sewerage Dist. (Bostco), 2011 WI App 76, ¶¶ 92–104, 334 Wis.2d 620, 800 N.W.2d 518. Additionally, although the court of appeals concluded that MMSD was not entitled to immunity under Wis. Stat. § 893.80(4), the cou......
  • KDC Foods, Inc. v. Gray, Plant, Mooty, Mooty & Bennett, P.A.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 25 October 2013
    ...affirmative defense that most of plaintiff's claims are barred by the applicable statutes of limitations. Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2011 WI App 76, ¶ 68, 334 Wis. 2d 620, 659, 800 N.W.2d 518, 538, aff'd in part, rev'd in part on other grounds, 2013 WI 78, 835 N......

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