Ricciardi v. Town of Lake

410 Wis. 2d 490

Carl A. Ricciardi and Phyllis Ricciardi, Plaintiffs-Appellants,

v.Town of Lake, Defendant-Respondent,Rural Mutual Insurance Company, Intervening Defendant.

Court of Appeals

No. 2022AP1567. Submitted on briefs May 16, 2023.—Decided December 5, 2023.

2024 WI App 3

(Also reported in 2 N.W.3d 793.)

APPEAL from a judgment of the circuit court for Price County: KEVIN G. KLEIN, Judge. Affirmed.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Daniel Snyder, Park Falls.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael J. Roman of Klinner Kramer Shull LLP, Wausau.

Before Stark, P.J., Hruz and Gill, JJ.

¶ 1. STARK, P.J. Carl A. and Phyllis Ricciardi seek damages against the Town of Lake, under theories of negligence, private nuisance, and inverse condemnation for flooding on their property that they claim was caused by the Town's faulty repair or reconstruction of a road abutting their property.¹ The Ricciardis appeal from the circuit court's order granting summary judgment to the Town and dismissing their lawsuit with prejudice.

¶ 2. The circuit court concluded that the Ricciardis' claims were barred by Wis. Stat. § 88.87(2) (2021–22),² which provides the exclusive remedy for claims against municipalities resulting from flooding allegedly caused by the construction or repair of a highway. Under § 88.87(2)(c), a property owner damaged by the construction or maintenance of a highway or railroad grade must file a notice of claim "with the appropriate governmental agency or railroad company" "within 3 years after the alleged damage occurred" as a prerequisite to "bring[ing] an action in inverse condemnation under [Wis. Stat.] ch. 32 or su[ing] for such other relief, other than damages, as may be just and equitable."

¶ 3. The circuit court determined that the Ricciardis' common law claims for damages were preempted by the statute. It further concluded that the Ricciardis failed to establish that the three-year notice provisions of Wis. Stat. § 88.87(2)(c) or (2)(d) were timely satisfied. Therefore, under our supreme court's recent decision in Southport Commons, LLC v. DOT, 2021 WI 52, 397 Wis. 2d 362, 960 N.W.2d 17, the court dismissed the Ricciardis' statutory inverse condemnation claim as well.

¶ 4. We agree that the Ricciardis' claims are barred under Wis. Stat. § 88.87(2). Under the statute, para. (2)(c), which must be read in conjunction with para. (2)(d), provides the remedies for property owners for damages manifested by flooding allegedly caused by the construction or repair of a highway. Thus, pursuant to our holding in Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992), § 88.87 preempts claims for relief other than those stated in the statute, and the circuit court properly dismissed the Ricciardis' common law claims.

¶ 5. We also conclude that the Ricciardis' inverse condemnation claim was untimely. Under Wis. Stat. § 88.87, the damage occurs when the governmental entity fails to construct or maintain a highway or railroad grade pursuant to para. (2)(a), regardless of when any resultant water accumulation is discovered. Accordingly, the three-year statutory period within which to file a notice of claim under para. (2)(c) or within which the governmental entity must have actual notice under para. (2)(d) had already expired when the Ricciardis purchased the property. We affirm the decision of the circuit court.

BACKGROUND

¶ 6. No pertinent facts are in dispute. This lawsuit arises out of road maintenance or resurfacing of Ash Street, a public road located in the Town of Lake, Price County. The Ricciardis alleged that the Town "negligently, carelessly, and with lack of due care" both "raised the height of the roadway … in excess of that permitted by law" and "installed culverts in such a manner… that causes such culverts to direct large quantities of water, debris, and other runoff onto [the Ricciardis'] residential and business property." The Ricciardis did not assert in their complaint when the Town's alleged negligent maintenance/installation occurred. The evidence submitted on summary judgment, however, established that Ash Street was last resurfaced by the Lymantown Sanitary District in 1990. The evidence also established that the Town last installed a culvert on Ash Street on July 13, 2011.

¶ 7. It is undisputed that the Ricciardis purchased their real property—on which they reside and operate a mobile home park business—adjacent to Ash Street on June 1, 2015. Carl averred by affidavit that he observed flooding on his property in "the Autumn of 2015." According to Carl,

water was pouring from a culvert under … Ash Street adjacent to his property, pooling on the surface of his property, and saturating the soil of the property to such an extent that the water was emanating up from the soil, forming ponds, and damaging and threatening buildings, mobile homes, and other structures on the property.

He stated that the flooding had occurred in 2015, 2016, 2017, and 2018. Carl claimed to have "personally inspected the said culvert and found that it is situated so that its mouth, opening onto the [Ricciardis'] property, is at an elevation that directs the water flowing through it onto" the property. He did not allege that any recent work by the Town had caused the flooding issues with the culvert.

¶ 8. By the same affidavit, Carl asserted that he complained to the Town in 2015 and repeatedly in 2016 and 2017 about the culvert. He claimed that he told the Town that the culvert "was wrongfully placed" and demanded that the Town relocate or reconstruct the culvert. Carl presented evidence of his appearance at several Town board meetings where the Ash Street culvert was discussed, in addition to other culverts where flooding was an issue. He also presented evidence that Town officials came to his property in the summer of 2017 to discuss the culvert. Carl stated that he hired a contractor in October 2017 to spread dirt and gravel on his property to—unsuccessfully, as it turned out—address the flooding. He claimed that the Town was aware of this activity because the contractor required a permit from the Town to travel on the roads.

¶ 9. There is no evidence in the record that the prior owners of the Ricciardis' property—between 1990 and 2015—ever expressed concerns or complaints regarding flooding caused by the resurfacing of Ash Street in 1990 or the installation of the culvert in 2011. The Town also alleged, by affidavit, that it had no knowledge of any alleged problems or flooding during the 1990 to 2015 time period.

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¶ 10. On March 5, 2018, the Ricciardis served the Town a written notice of circumstances under Wis. Stat. § 893.80(1d)(a), and they later served a notice of claim on or about October 29, 2018, under § 893.80(1d)(b).³ The Town disallowed the § 893.80 notice of claim on March 14, 2019. The Ricciardis did not, however, provide the Town with any form of "sworn statement" under Wis. Stat. § 88.87(2)(c) that alleged faulty maintenance of Ash Street or that construction of the culvert resulted in flooding.

[2]

¶ 11. The Ricciardis subsequently filed this lawsuit against the Town on September 12, 2019. The complaint alleged common law damage claims for negligence and maintenance of a private nuisance as well as an inverse condemnation claim under Wis. Stat. ch. 32.⁴ The Ricciardis further asserted their compliance with the notice requirements in Wis. Stat. § 893.80(1d)(a)-(b). The complaint did not, however, mention a claim under Wis. Stat. § 88.87, nor did it allege that the Ricciardis complied with the notice requirements of § 88.87(2)(c) or (2)(d). As relevant here, in its answer, the Town raised § 88.87 as an affirmative defense, asserting both that the Ricciardis' causes of action were barred and that they failed to comply with the applicable notice requirements.

¶ 12. The Town moved for summary judgment, seeking dismissal of the Ricciardis' lawsuit. It argued that most of the Ricciardis' claims were preempted by Wis. Stat. § 88.87. As to the inverse condemnation claim, the Town alleged that the Ricciardis failed to timely comply with the specific notice and claim provisions in § 88.87(2)(c) and (2)(d). The Ricciardis opposed the motion, arguing that because the Town had actual notice of their flooding claims under para. (2)(d), para. (2)(c) was inapplicable and neither the three- year notice requirement nor the statutory preemption of all common law claims barred their causes of action.

¶ 13. The circuit court issued a written decision granting the Town's motion for summary judgment and dismissing the case with prejudice.⁵ First, the court observed that Wis. Stat. § 88.87 "provides the exclusive remedy when a landowner wants to sue a Town for flooding or water-soaking problems resulting from road construction or road maintenance. Common law claims are preempted." See Pruim, 168 Wis. 2d at 122. In response to the Ricciardis' argument that para. (2)(d) is a savings clause and must be read separately from para. (2)(c), the court called this a "tortured and incorrect reading" that would "allow a plaintiff to sue for whatever that plaintiff wanted to pursue" and "would not leave the statute as the exclusive remedy." According to the court, these paragraphs "must be read together and in sequence," as is demonstrated by the fact that the references in para. (2)(d) "flow[]" from para. (2)(c). Accordingly, the court concluded that even under para. (2)(d), all claims except inverse condemnation are preempted.

¶ 14. Second, as to the inverse condemnation claim, the circuit court concluded that the Ricciardis had failed to establish that notice—under either Wis. Stat. § 88.87(2)(c) (sworn statement) or (2)(d) (actual notice)—was timely provided to the Town in order for the claim to proceed. According to the court, under either paragraph, the Ricciardis needed to act within three years after the damage occurred,...