Lins v. Blau
| Decision Date | 09 July 1998 |
| Docket Number | No. 97-2533,97-2533 |
| Citation | 220 Wis.2d 855,584 N.W.2d 183 |
| Parties | Kevin E. LINS, Shirley M. Lins, Eugene A. Lins, and Colleen R. Lins, Plaintiffs-Appellants, v. James BLAU, Defendant, Town of Spring Green and Sauk County, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert E. Shumaker of DeWitt Ross & Stevens, S.C. of Madison.
On behalf of the defendant-respondent, Town of Spring Green, the cause was submitted on the brief of Robert G. Wixson of Winner, Wixson & Pernitz of Madison.
On behalf of the defendant-respondent, Sauk County, the cause was submitted on the brief of Thomas J. Basting, Sr., and Margery Mebane Tibbetts of Brennan, Steil, Basting & MacDougall, S.C. of Janesville.
Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.
Kevin, Shirley, Eugene and Colleen Lins appeal from an order dismissing their property damage action against James Blau, the Town of Spring Green (Town), and Sauk County (County). The trial court determined that the Linses' claim was time barred because they failed to file a notice of claim within the ninety days required under § 88.87(2)(c), STATS. The issue in this case is whether a 1994 amendment to § 88.87(2)(c), which extended the time period for filing a notice of claim from ninety days to three years, should be applied prospectively or retroactively. We conclude that § 88.87(2)(c), as amended, is procedural in nature and, as such, should be applied retroactively. We therefore reverse and remand for further proceedings.
The critical facts surrounding this litigation are not in dispute. The Linses filed a complaint in December 1995, claiming that James Blau, the Town, and the County caused damage to their property in 1993. The damage followed a period of unusually heavy precipitation in the area. The precipitation resulted in flooding on and around the Linses' property, particularly in the nearby Prairie View subdivision.
Blau, a resident of Prairie View, allegedly began to pump water from his basement into his backyard and into a ditch along an adjacent highway. However, because the driveways in the Prairie View Subdivision were not built with culverts, the water flowed into the yard of one of Blau's neighbors. Blau then obtained a permit from the County to pump water through pipes he installed under the highway onto a portion of the Linses' property, known as the Slauson Parcel. As the flooding continued, the County closed the highway and began pumping water onto the Slauson Parcel. The Town and the County then built two dikes on the highway to prevent the water from coming back into the Prairie View Subdivision. The Linses allege that the construction of these dikes, combined with the continuous pumping by Blau and the County, resulted in excessive water build-up on certain parcels of their property, causing severe damage to their crop land.
Section 88.87, STATS., was enacted 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. See § 88.87(1). 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." See § 88.87(2)(a).
Section 88.87(2)(c), STATS., "creates a remedy for property owners who claim damages [from a violation of] this statute and establishes certain procedures to be followed in making a claim." See Van v. Town of Manitowoc Rapids, 150 Wis.2d 929, 930, 442 N.W.2d 557, 558 (Ct.App.1989). Prior to 1994, § 88.87(2)(c) 1 stated that if the town or county failed to comply with the duties set forth in paragraph 2(a), any aggrieved property owner "may, within 90 days after the alleged damage occurred, file a claim with the appropriate governmental agency...." See § 88.87(2)(c), STATS., 1991-92. The governmental agency then had ninety days after the filing of such claim "to correct the cause of the water damage, acquire rights to use the land for drainage, or deny the claim." See § 88.87(2)(c). If the governmental agency or railroad company denied the claim or failed to take any action within ninety days after the filing of the claim, the property owner could bring an action for inverse condemnation or sue for some other form of equitable relief. See id.
In 1993, the legislature amended paragraph 2(c) and added paragraph 2(d). These amendments are contained in 1993 Wis. Act 456, §§ 109 and 110 and became effective on May 13, 1994. The only significant change made to paragraph 2(c) was that the time period for an aggrieved property owner to file a claim increased from ninety days to three years. 1993 Wis. Act 456, § 109. The legislature made this change with the intent to provide the landowner with "sufficient time to discover the damage." Legislative Council Special Committee Note, 1993 Wis. Act 456 § 109.
In December 1995, the Linses filed a complaint alleging, among other claims, that the Town and the County violated § 88.87, STATS., when it impeded the general flow of water so as to cause an unnecessary accumulation and discharge of waters, which flooded the Linses' property. Pursuant to § 88.87, the Linses sought injunctive relief against the Town and the County. The Town and the County filed a motion for summary judgment on various grounds. The trial court granted their motion and dismissed all of the Linses' claims because they failed to comply with the pre-amendment requirement that they file a claim within ninety days after the alleged damage occurred. The Linses appeal.
Summary judgment is appropriate if it is established that there is "no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See § 802.08(2), STATS. We apply the same methodology as the trial court and consider the issues de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Whether a statute should be applied prospectively or retroactively presents a question of statutory construction that we also decide de novo. Salzman v. DNR, 168 Wis.2d 523, 528, 484 N.W.2d 337, 339 (Ct.App.1992).
The issue is whether § 88.87(2)(c), STATS., as amended, should be applied prospectively or retroactively. The general rule of statutory construction is that statutes are construed prospectively and not retroactively. City of Madison v. Town of Madison, 127 Wis.2d 96, 101-102, 377 N.W.2d 221, 224 (Ct.App.1985). However, if the statute at issue is remedial or procedural, it will be applied retroactively unless there is a clearly The Linses contend that § 88.87(2)(c), STATS., is a notice of claim requirement. A notice of claim requirement is a procedural statute because it sets out conditions precedent to the right to bring a suit. Ocampo v. Racine, 28 Wis.2d 506, 510 137 N.W.2d 477, 478 (1965). "Whenever a statute provides that no suit shall be brought unless notice of the injury is given to the person responsible for it, the giving of such notice is a condition precedent to the plaintiff's right to recover." Id. (quoting 1 AM.JUR.2D, Actions, § 81). The Town and County, on the other hand, argue that § 88.87(2)(c) is a statute of limitations. Statutes of limitation are substantive statutes because they "create and destroy" rights by limiting the time in which an action must be commenced. See Betthauser v. Medical Protective Co., 172 Wis.2d 141, 149, 493 N.W.2d 40, 43 (1992).
expressed legislative intent to the contrary or unless retroactive application will interfere with contracts or vested rights. Id. at 102, 377 N.W.2d at 224. The distinction between substantive and procedural laws is relatively clear. Id. If the statute merely prescribes a method for enforcing a right or remedy, it is deemed to be procedural; if it creates, defines, or regulates rights or obligations, it is deemed to be substantive. Id. Therefore, the issue of whether § 88.87(2)(c), STATS., is to be applied retroactively depends on whether it is procedural or substantive
In Snopek v. Lakeland Medical Center, 215 Wis.2d 537, 573 N.W.2d 213 (1997), we addressed the difference between a notice of claim requirement and a statute of limitations when deciding whether an amendment to § 893.80(1m), STATS., 2 should be applied retroactively or prospectively. Relying on Ocampo, we stated that, "as a general rule, a requirement to give notice is regarded as a condition precedent to bringing suit and not a statute of limitations whenever the statute merely provides that no suit be brought unless a notice of injury is first given to the person responsible." Snopek, 215 Wis.2d at 545, 573 N.W.2d at 217. Furthermore, we noted that:
[P]rocedural conditions to give notice precedent to bringing suit are distinguishable from a substantive statute of limitations when "[t]he [notice requirement] does not assume to limit the time in which the action is to be commenced," but instead limits the time "within which a certain prescribed act, necessary to the enforcement of [a] cause of action, shall be done."
Id. (quoting Ocampo, 28 Wis.2d at 509, 137 N.W.2d at 479). We concluded in Snopek that § 893.80(1m), STATS., was a procedural condition precedent to the maintenance of a suit, and not a limitation on the time in which the action had to be commenced; therefore, the amendment lengthening the period of time to file a claim under § 893.80(1m) would be applied retroactively. Id.
Determining whether § 88.87(2)(c), STATS., is a substantive statute of...
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