Yacht Club at Sister Bay Condo. Ass'n, Inc. v. Vill. of Sister Bay

• Decision Date: 18 January 2019
• Docket Number: No. 2017AP140,2017AP140
• Citation: 2019 WI 4,385 Wis.2d 158,922 N.W.2d 95
• Parties: The YACHT CLUB AT SISTER BAY CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant-Petitioner, v. VILLAGE OF SISTER BAY, Defendant-Respondent.
• Court: Wisconsin Supreme Court

385 Wis.2d 158

922 N.W.2d 95

2019 WI 4

The YACHT CLUB AT SISTER BAY CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant-Petitioner,

v.VILLAGE OF SISTER BAY, Defendant-Respondent.

No. 2017AP140

Supreme Court of Wisconsin.

Oral Argument: November 5, 2018

Opinion Filed: January 18, 2019

For the plaintiff-appellant-petitioner, there were briefs filed by John B. Tuffnell, and Tuffnell Law, S.C., Milwaukee.There was an oral argument by John B. Tuffnell.

For the defendant-respondent, there was a brief filed by Remzy D. Bitar, Luke A. Martell, and Municipal Law & Litigation Group, S.C., Waukesha.There was an oral argument by Remzy D. Bitar.

ANN WALSH BRADLEY, J.

¶1The petitioner, The Yacht Club at Sister Bay Condominium Association, seeks review of an unpublished, per curiam decision of the court of appeals affirming the circuit court's order that dismissed its complaint against the Village of Sister Bay.¹The complaint alleged that some summer concerts held in a public park were a public and private nuisance.Affirming the dismissal, the court of appeals concluded that the Yacht Club failed to provide the Village with a timely written notice of injury and that each concert held by the Village does not constitute a new "event" giving rise to a new opportunity to file a notice of injury.

¶2 Before this court, the Yacht Club asserts that the court of appeals erred in failing to view each concert as a new nuisance prompting a new notice of injury period.Thus, in the Yacht Club's view, it should not be barred from bringing future nuisance actions against the Village simply because it failed to complain within 120 days as required by Wis. Stat. § 893.80(1d)(a)(2015-16)² about a noise nuisance from the first concert the Village held in 2014.

¶3We conclude that each concert that is alleged to be a nuisance constitutes a separate event for purposes of filing a written notice of injury.However, because the Yacht Club failed to serve its written notice of injury within 120 days after the date of the last concert alleged to be a nuisance, its written notice of injury was not timely filed.Accordingly, we affirm in part and reverse in part the decision of the court of appeals and remand to the circuit court for further proceedings.

I

¶4 The facts set forth below are taken primarily from the Yacht Club's complaint.Because we are reviewing the circuit court's determination of a motion to dismiss for failure to state a claim, we must assume that these facts are true.³

¶5Some time in the summer or fall of 2013, the Village received a donation pledge from an anonymous donor.The donor stipulated that the donation would be used to construct a performance pavilion in Waterfront Park, a public park in the Village.Accepting the pledge, the Village began construction on the pavilion.

¶6 Construction of the pavilion was completed on or about August 1, 2014.Upon completion, the Village immediately began to host public performances at the pavilion.Such performances typically involved live music and often ran after official park hours, occasionally as late as midnight.

¶7 The Yacht Club is a condominium association that administers a condominium complex of the same name.The complex lies within several hundred feet to the southwest of the performance pavilion.Facing to the southwest, the performance pavilion's stage is designed to amplify and aim sound in that direction, straight at the Yacht Club condominiums.

¶8 According to the Yacht Club, the performances create very loud noise aimed directly at its condominiums.It alleges that the music "is loud enough to cause windows and personal property to shake and shudder from the intensity of the volume produced by these performances."Further, it claims that the sound "is continuous and penetrates even closed doors and windows."Such noise often keeps the Yacht Club's "residents awake far past normal park operations."

¶9 Alleging that the pavilion concerts substantially interfere with the quiet enjoyment of its residents' property, the Yacht Club served the Village with a written notice of injury pursuant to Wis. Stat. § 893.80(1d) on March 7, 2016.⁴The notice of injury maintained that "[t]he noise pollution generated by the users and the performers of the performance pavilion is a private nuisance that directly interferes with the Association's use and enjoyment of its property."It further stated that "[t]he last use of the pavilion occurred on or about September 1, 2015."

¶10 After the Village did not respond to its notice of injury, the Yacht Club filed suit against the Village.It alleged causes of action for both private and public nuisance.The Yacht Club sought damages for loss of property value, substantial annoyance and invasion of its property rights, as well as injunctive relief abating future nuisance-causing activities.

¶11 Moving to dismiss the Yacht Club's complaint for failure to state a claim upon which relief may be granted, the Village argued that the Yacht Club neglected to comply with the notice of injury and notice of claim provisions of Wis. Stat. § 893.80(1d).First, the Village contended that the Yacht Club failed to serve the Village with a notice of injury within 120 days of the happening of the event giving rise to its claim as is required by Wis. Stat. § 893.80(1d)(a).Second, it asserted that the Yacht Club never filed an itemized statement of relief sought as required by Wis. Stat. § 893.80(1d)(b).

¶12The circuit court granted the Village's motion to dismiss.Relying on E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, 335 Wis. 2d 720, 800 N.W.2d 421, it concluded that the notice of injury was served on the Village "almost 19 months after the happening of the event giving rise to the claim ... It's not within 120 days, and it's too late under 893.80."In the circuit court's view, the pavilion:

was constructed in August of 2014, concerts began almost immediately, and the residents of the plaintiff condominium association immediately started noticing problems and with noise, with windows rattling,....And to then wait 19 months after the happening of that event even though the concerts do continue, ... it's violative of 893.80, namely, to wait that long to make your claim.

¶13 Additionally, the circuit court rejected the Yacht Club's argument that its claims could proceed even though it did not timely file a written notice of injury because the Village had actual notice of the claims at issue and was not prejudiced by the delay in providing written notice.⁵The circuit court determined that the Yacht Club did not meet its burden to set forth facts showing there was no prejudice to the Village.

¶14 After the Yacht Club appealed, the court of appeals affirmed in part and reversed in part.It affirmed the circuit court's determination that the Yacht Club's written notice of injury was not timely filed.Yacht Club At Sister Bay Condo. Ass'n, Inc. v. Village of Sister Bay, No. 2017AP140, unpublished slip op., ¶¶ 19, 25, 378 Wis. 2d 742, 2017 WL 4804558(Wis. Ct. App.Oct. 24, 2017)(per curiam).The court of appeals determined first that "[t]he Association's notice of injury was not served until March 7, 2016, and was therefore untimely, even with respect to the September 1, 2015 concert."Id., ¶ 19.Further, it determined that E-Z Roll Off"forecloses the Association's argument that each nuisance—causing use of the pavilion constitutes a new ‘event’ for purposes of Wis. Stat. § 893.80(1d)(a)."Id., ¶ 20.

¶15 However, the court of appeals reversed the circuit court's conclusion regarding actual notice and prejudice, determining that the circuit court improperly placed on the Yacht Club the burden to produce evidence regarding lack of prejudice at the motion to dismiss stage.Id., ¶ 30.Neither party petitioned for review of the court of appeals' decision on actual notice and prejudice.Accordingly, we do not further address the issue.⁶Remaining for our consideration is the Yacht Club's petition for review regarding the timeliness of its notice of injury.

II

¶16 In our review, we consider whether the Yacht Club's written notice of injury was timely filed.We begin by examining the language of Wis. Stat. § 893.80(1d), the notice of claim statute, applying the common law of nuisance to the statute's plain language.Next we examine this court's decision in E-Z Roll Off, 335 Wis. 2d 720, 800 N.W.2d 421, and the Village's assertion that the purpose of the notice of claim statute precludes the Yacht Club's argument here as it did the plaintiff's argument in E-Z Roll Off.Finally, we apply the plain language of Wis. Stat. § 893.80(1d)(a) to the notice of injury that was served on the Village in this action.

¶17 This review requires us to interpret the notice of injury provision set forth in the notice of claim statute.Statutory interpretation presents a question of law we review independently of the determinations rendered by the circuit court and court of appeals.Horizon Bank, Nat'l Ass'n v. Marshalls Point Retreat LLC, 2018 WI 19, ¶ 28, 380 Wis. 2d 60, 908 N.W.2d 797(citation omitted).

¶18 The application of the statute and the law of nuisance to the facts of this case similarly presents a question of law this court reviews independently, without deference to the circuit court or court of appeals.MercyCare Ins. Co. v. Wisconsin Comm'r of Ins., 2010 WI 87, ¶ 26, 328 Wis. 2d 110, 786 N.W.2d 785;seeMilwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶ 16, 277 Wis. 2d 635, 691 N.W.2d 658.

III

A

¶19Wisconsin Stat. § 893.80(1d), the notice of claim statute, contains two notice provisions that serve different purposes.Thorp v. Town of Lebanon, 2000 WI 60, ¶ 22, 235 Wis. 2d 610, 612 N.W.2d 59;Griffin v. Milwaukee Transport Servs., Inc., 2001 WI App 125, ¶ 15, 246 Wis. 2d 433, 630 N.W.2d 536.When referring to the statute as a whole, we refer to it as the "notice of claim statute" in accordance with past case law.See, e.g., E-Z Roll Off, 335 Wis. 2d 720, ¶ 46, 800...