Hocking v. City of Dodgeville
| Citation | 326 Wis.2d 155,785 N.W.2d 398,2010 WI 59,72 UCC Rep.Serv.2d 400 |
| Decision Date | 02 July 2010 |
| Docket Number | No. 2008AP2812.,2008AP2812. |
| Parties | Glen D. HOCKING and Louann Hocking, Plaintiffs-Appellants-Petitioners, v. CITY OF DODGEVILLE, Defendant-Respondent, Charles C. O'Rourke, Joan R. O'Rourke, American Family Mutual Insurance Company, Amy Crubaugh-Schrank, Shaun Sersch, Wendy Sersch and Germantown Mutual Insurance Company, Defendants. |
| Court | Wisconsin Supreme Court |
For the plaintiffs-appellants-petitioners there were briefs by Sheila Stuart Kelley, Christopher D. Stombaugh, Tyler T. Kieler, and Kopp, McKichan, Geyer, Skemp & Stombaugh, LLP, Platteville, and oral argument by Christopher D. Stombaugh.
For the defendant-respondent there was a brief by Peggy E. Van Horn and the Law Offices of Thomas P. Stilp, Brookfield, and oral argument by Peggy E. Van Horn.
This case comes before us on review of a published decision of the court of appeals 1 affirming the circuit court's order of summary judgment in favor of the City of Dodgeville in a lawsuit against it by Glen and Louann Hocking ("Hockings") for damage to their property. The Hockings claimed that the City was negligent in the design, plotting, approval, and development of a subdivision adjacent to their property and that negligence caused significant water damage to their property. The City asserted that the suit was barred under Wis. Stat. § 893.89 (2007-08),2 which imposes a ten-year statute of repose on actions for injury resulting from improvements to real property. Both the circuit court and court of appeals agreed with the City that the statute of repose applied.
¶ 2 The specific issue before us is whether either of two exceptions contained in § 893.89 apply and therefore allow the Hockings' suit to proceed. 3 First, the Hockings allege that the City expressly warranted or guaranteed the improvementto real property under § 893.89(4)(b). The Hockings also assert that the City was negligent in the maintenance, operation, or inspection of the improvement to real property under § 893.89(4)(c). If either of these two exceptions applies, the ten-year statute of repose would not bar the Hockings' suit.
¶ 3 We conclude that neither § 893.89(4)(b) nor § 893.89(4)(c) applies, and the Hockings' suit is therefore barred by the ten-year statute of repose in Wis. Stat. § 893.89. Section 893.89(4)(b) does not apply because the Hockings have not shown that the City of Dodgeville itself made any express warranty or guarantee regarding the improvements. Section 893.89(4)(c) does not apply because the City has not been negligent in maintaining, operating, or inspecting the improvements. Accordingly, we affirm the court of appeals and hold that the circuit court properly granted summary judgment for the City, thereby dismissing the Hockings' suit.
¶ 4 The following facts are undisputed for the purposes of this appeal.
¶ 5 In 1978, Glen and Louann Hocking purchased a home situated on a small parcel of land at 216 Swayne Street in Dodgeville, Wisconsin. At the time of purchase, the nearest residence to the Hocking property was a farm house 200 or 300 feet away.
¶ 6 In 1989, Wallace Rogers purchased property adjacent to the Hockings' land, which at the time was largely undeveloped and covered with trees. Rogers planned to develop the property into a subdivision with multiple lots. In order to complete this project, he hired professional engineer Lawrence E. Schmit to design the subdivision. The City of Dodgeville also contracted with Schmit to design and install streets and sewers; this involved laying out the roadways, curbs, and street gutters for the proposed development.4 Rogers named the completed development the "Lorraine Subdivision."
¶ 7 The terrain of the proposed subdivision was uneven, and Schmit had to bring in large amounts of landfill to level the land and build up the places where the homes would sit. This landscaping created a steep slope that ran downhill to the Hockings' property.
¶ 8 Prior to the development of the subdivision, Glen Hocking spoke with Corny James, a member of the City of Dodgeville Common Council. Hocking informed James that he was concerned about the steep gradation that he anticipated would result from building the subdivision. Despite the Hockings' concerns, the City approved the plans for the development on July 16, 1991. Throughout the construction of the Lorraine Subdivision, Mr. Hocking continued to informally speak with the city engineer and various common council members who assured him that if a problem arose, it would be addressed by the City.
¶ 9 On September 12, 1992, the Lorraine subdivision was completed, and the owners of the individual lots were allowed to occupy their property. Schmit's final contact with the subdivision was on June 3, 1993, when the final coat of blacktop was laid over the asphalt on Roelli Lane, one of the subdivision's main streets.
¶ 10 The Lorraine Subdivision significantly impacted the physical condition of the Hockings' property. Before its development,the Hockings experienced no flooding problems in their yard or basement. But around 1992 or 1993, they began to notice water in their yard, and over time storm water run-off began to collect both inside and outside the Hockings' residence, causing damage to their home and erosion of their land. They had to install a sump pump in order to capture thewater, but even that only partially mitigated the problem. In 1995, the Hockings' basement completely flooded. Moreover, water damage throughout the 1990's caused mold to develop inside their home.
¶ 11 From the early-1990's until 2003, Mr. Hocking frequently spoke with elected officials and employees of the City (collectively "city officials") who continued to assure him the problem would be resolved. Several city officials, including members of the common council, even visited the Hockings' home to inspect the damage. The council members assured the Hockings that the problem would be addressed. At one point, the City considered installing a drainage system or a moat, either of which Mr. Hocking readily approved, but no action was taken to follow through on installing either. At some point in 2003 the city engineer 5 and the city assessor advised Mr. Hocking that the City could not resolve the flooding issue.
¶ 12 The Hockings brought this action against the City, Rogers, and Schmit on August 22, 2006, in the Circuit Court for Iowa County, Edward E. Leineweber, Judge. The Hockings asserted claims of negligence, and negligent and intentional creation and maintenance of a nuisance.
¶ 13 The three defendants moved for summary judgment on the ground that Wis. Stat. § 893.89 bars this action because it was filed more than ten years after the substantial completion of the subdivision. The Hockings argued that they received express guarantees from the City that it would resolve the situation, and therefore, pursuant to § 893.89(4)(b), the statutory bardid not apply. They also contended that the suit could move forward pursuant to § 893.89(4)(c) because the City owned and controlled the subdivision streets and was negligent in maintaining a nuisance.
¶ 14 The circuit court rejected the Hockings' arguments and concluded that the statutory bar did apply. With respect to Wis. Stat. § 893.89(4)(b), the court found that there was no evidence of an express warranty or guarantee approved by the City of Dodgeville Common Council; therefore, that exception did not apply. In analyzing § 893.89(4)(c), the court assumed that the City was negligent in its approval of the design and construction of the subdivision, but it rejected the Hockings' argument that the City's failure to redesign or reconstruct the improvement constituted "negligence in the maintenance ... of [the] improvement" within the meaning of that subsection. Accordingly, the circuit court granted summary judgment in favor of the City, Rogers, and Schmit, and dismissed the complaint.
¶ 15 The Hockings appealed only the dismissal of the City. In a published decision, the court of appeals affirmed. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis.2d 519, 770 N.W.2d 761. It agreed with the circuit court that the city officials' statements to the Hockings did not constitute an express warranty or guarantee by the City and therefore did not fall under the exception in § 893.89(4)(b). Id., ¶¶ 13-19. Assumingthe City's actions negligently created and maintained a nuisance, the court of appeals likewise concluded that the City's conduct did not constitute "negligence in the maintenance, operation or inspection of an improvement to real property" under § 893.89(4)(c). Id., ¶¶ 20-25.
¶ 16 The Hockings then petitioned this court for review, which we granted.
¶ 17 This case requires us to construe Wis. Stat. § 893.89. The interpretation of a statute is a question of law that we review de novo. Rechsteiner v. Hazelden, 2008 WI 97, ¶ 26, 313 Wis.2d 542, 753 N.W.2d 496.
¶ 18 When interpreting a statute, we begin with the language of the statute, because it is the language that expresses the legislature's intent. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶¶ 44-45, 271 Wis.2d 633, 681 N.W.2d 110. "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., ¶ 45. We attempt, whenever possible, to give reasonable effect to every word, avoiding both surplusage and absurd or unreasonable results. Id., ¶ 46.
¶ 19 Wisconsin Stat. § 893.89 6 constitutes a statute of repose in actions for injury resulting from improvements to real property. Like a statute of limitations,a statute of repose limits the time period in which an action may be brought, but begins to run at a different time. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 29, 245 Wis.2d 1, 628 N.W.2d 893. A statute of limitations begins to run when...
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