Hocking v. City of Dodgeville
| Decision Date | 04 June 2009 |
| Docket Number | No. 2008AP2812.,2008AP2812. |
| Parties | Glen D. HOCKING and Louann Hocking, Plaintiffs-Appellants, 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 Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Tyler T. Kieler of Kopp, McKichan, Geyer, Skemp & Stombaugh, LLP, Platteville.
On behalf of the defendant-respondent, the cause was submitted on the brief of Peggy E. Van Horn of Law Offices of Thomas P. Stilp, Brookfield.
Before DYKMAN, VERGERONT and LUNDSTEN, JJ.
The issue on this appeal is whether the ten-year statute of repose for actions for injury resulting from improvements to real property, WIS. STAT. § 893.89 (2007-08),1 bars this action against the City of Dodgeville. Glen and Louann Hocking claim damages to their property resulting from excessive storm water run-off, which, they allege, constitutes a nuisance and is the result of negligence by the City in the design, plotting, approval, and development of an adjacent subdivision. The Hockings contend the circuit court erred in rejecting their argument that the circumstances here fall into two categories to which the statutory bar does not apply: first, an express warranty or guarantee of the improvement, § 893.89(4)(b), and, second, negligence in the maintenance, operation, or inspection of the improvement, subsec. (4)(c).
¶ 2 We conclude the statements made to the Hockings by individual city officials do not as a matter of law constitute an express warranty or guarantee by the City. We also conclude that, assuming the City's actions with respect to the adjacent subdivision streets negligently created and maintained a nuisance, that conduct does not constitute "negligence in the maintenance, operation, or inspection of an improvement to real property" within the meaning of WIS. STAT. § 893.89(4)(c). Accordingly, we agree with the circuit court that this action against the City is barred by § 893.89.
¶ 3 The following facts are undisputed for purposes of this appeal. The Hockings purchased their home in the City of Dodgeville in 1978 when the surrounding land was undeveloped. In 1989 Wallace Rogers purchased the land surrounding the Hockings' property and hired Lawrence Schmit, a professional engineer, to plat a subdivision. The City hired Schmit to design and install the streets and sewers. The subdivision, including the streets, was ready for use in 1992, although a final coat of asphalt was laid on one of the streets in 1993.
¶ 4 As a result of the development, the Hockings' home was at the bottom of a slope on which other homes were built. That has caused storm water run-off from city property and private properties to collect on their property, both inside and outside their residence, causing damage to their home and erosion of the land. Glen had numerous conversations with city officials over the years on the water drainage problem and, based on what he was told, he believed the City was going to take care of it. However, in September 2003 a city representative informed him that the City would not be doing anything to stop the excessive water flow onto his property.
¶ 5 The Hockings filed this action in August 2006 against the City, Rogers, and Schmit. The amended complaint asserts claims of negligence and negligent and intentional creation and maintenance of a nuisance against these defendants.2 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 opposed summary judgment, contending that Glen's deposition and affidavit showed he received express guarantees from City officials and thus, pursuant to subsec. (4)(b), the statutory bar did not apply. They also contended that, pursuant to subsec. (4)(c), the statutory bar did not apply because the City was the owner and occupier of the streets in the subdivision, the streets were under its control, and the City was negligent in the maintenance of the improvement.
¶ 6 The circuit court rejected the Hockings' arguments and concluded the statutory bar did apply. With respect to WIS. STAT. § 893.89(4)(b), the court decided there was no evidence of an express warranty or guarantee approved by the City of Dodgeville Common Council. In analyzing subsec. (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.
¶ 7 Accordingly, the circuit court granted summary judgment in favor of the City, Rogers, and Schmit and dismissed the complaint as to them. The Hockings appeal only the dismissal of the City.
¶ 8 On appeal the Hockings renew their argument that the ten-year bar in WIS. STAT. § 893.89 does not apply because the facts of this case come within § 893.89(4)(b) and (c). The Hockings concede that the date of the substantial completion of the improvement was more than ten years before the filing of their complaint and, thus, the action is barred unless the bar is inapplicable under either subsec. (4)(b) or (c). We understand their position to be that, with respect to these two subsections, there are no material issues of fact and therefore they are entitled to a ruling as a matter of law that the statutory bar is not applicable.
¶ 9 We review de novo the grant of summary judgment, employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-16, 401 N.W.2d 816 (1987). A party is entitled to summary judgment when there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).
¶ 10 The resolution of this appeal requires that we construe WIS. STAT. § 893.89, and, in particular, § 893.89(4)(b) and (c). When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language 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 we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, we conclude the statutory language has a plain meaning, then we apply the statute according to that plain meaning. Id., ¶ 45.
¶ 11 As relevant to this case, WIS. STAT. § 893.89(2) provides that
no cause of action may accrue and no action may be commenced ... against any person involved in the improvement to real property after the end of the exposure period ... for any injury to property ... arising out of any deficiency or defect in the design, land surveying, planning, supervision [of construction of, or], the construction of ... the improvement to real property.3
(Footnote added.) "Exposure period" means "the 10 years immediately following the date of substantial completion of the improvement to real property." Subsection (1).
¶ 12 This statutory bar does not apply in certain situations. WIS. STAT. § 893.89(4). Of significance to this case, subsec. (4) provides that the bar does not apply to:
(b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
(c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.
¶ 13 Turning first to WIS. STAT. § 893.89(4)(b), we begin by summarizing the evidence that, according to the Hockings, constitutes an express guarantee by the City within the meaning of this provision. For purposes of this appeal, we treat the following testimony of Glen as undisputed. He talked to several members of the common council before and during the construction of the subdivision, expressing his concern that the grade was going to create a water problem, and their response was that "[i]f there was a problem, they would take care of it." After the subdivision was developed, in 1994 or 1995 and continuing until 2003, he had many discussions with all of the council members, both when they came to see his property and in informal meetings at city hall. They said not to worry because they were going to take care of the water problem on his land. In that time period he also talked to the city assessor who told him "[t]hey were working on it." These people proposed various solutions to the water drainage problem during this time period, but the solutions either were not viable or nothing was done to effectuate them. It was not until September 2003 that the Hockings were told by the city assessor that nothing could be done to fix the problem.
¶ 14 The Hockings acknowledge in their briefs that the City took no "official" action to make an express guarantee. However, they contend, WIS. STAT. § 893.89(4)(b) does not require this because it does not expressly state that municipalities making express warranties or guarantees must act officially. In the Hockings' view, this subsection is intended to provide relief from the statutory bar for plaintiffs who did not file suit sooner...
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