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Town of Burnside v. City of Independence

Court of Appeals of Wisconsin, District III

November 29, 2016

Town of Burnside and Town of Lincoln, Plaintiffs,
City of Independence, Defendant-Respondent, Town of Arcadia, Intervenor-Appellant.

         APPEAL from an order of the circuit court for Trempealeau County, Cir. Ct. No. 2014CV237 JOHN A. DAMON, Judge. Affirmed.

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

          HRUZ, J.

         ¶1 The Town of Arcadia appeals an order dismissing its claims against the City of Independence. Independence passed three annexation ordinances; each ordinance pertained to separate land within the towns of Arcadia, Burnside and Lincoln, respectively. Burnside and Lincoln commenced this action challenging the validity of the annexation ordinances; they later stipulated to the dismissal of their claims against Independence. Arcadia then sought to take up those towns' claims, and it successfully intervened in the Lincoln/Burnside action. However, the circuit court later granted Independence's motion to dismiss Arcadia's claims, concluding they were untimely.

         ¶2 We agree with the circuit court that Arcadia's claims brought through its intervention came too late. WISCONSIN STAT. §§ 66.0217(1 l)(a) and 893.73(2)(b) establish a ninety-day limitations period for actions challenging the validity of an annexation.[1] In this case, Independence adopted the annexation ordinances on August 19, 2014, but Arcadia did not seek to intervene and bring its claims in the Burnside/Lincoln action until April 30, 2015. We are unpersuaded by Arcadia's arguments that its claims were timely filed, including its assertions regarding the relation-back doctrine, tolling, and its status as an intervenor. Accordingly, we affirm.


         ¶3 On August 19, 2014, Independence passed three annexation ordinances in response to petitions from affected persons. Each ordinance pertained to territory in a different town: Arcadia, Burnside and Lincoln. It is undisputed that the vast majority of the annexed land was previously located within Arcadia's boundaries.[2] The annexation ordinances were preceded by a Pre-Annexation Agreement executed by Independence and Superior Silica Sands, LLC. The agreement included the terms under which Superior Silica Sands would operate a sand mine upon completion of the annexation.

         ¶4 Burnside and Lincoln jointly sought review of the annexation from the Wisconsin Department of Administration.[3] The department issued a written determination that certain of the annexed territory was not contiguous. Burnside and Lincoln then filed the present action on November 17, 2014. They asserted the annexation petition relating to the territory in Lincoln was procedurally defective because it was missing a signature of a necessary person.[4] Additionally, they asserted the ordinances were invalid for lack of contiguousness.

         ¶5 Burnside and Lincoln ultimately entered into a stipulation with Independence on April 13, 2015, pursuant to WIS. STAT. § 66.0225. The stipulation included a municipal agreement wherein the parties expressly stated they wished to avoid the "expense, uncertainty and delay of litigation and to provide a mechanism for defining future boundaries between the three ... municipalities." Burnside and Lincoln agreed to dismiss their challenge to the validity of Independence's annexation ordinances, and the parties further agreed as to how future annexation would be handled for a period of twenty years. According to Independence, all that remained to effectuate the settlement was for the circuit court to sign a final order dismissing the claims.

         ¶6 On April 30, 2015, Arcadia filed a motion to intervene in the Burnside/Lincoln action pursuant to WIS. STAT. § 803.09. Arcadia noted Independence's answer had acknowledged Arcadia's interest in part of the annexed territory, and Arcadia argued it should be permitted to intervene as a right. See WIS. STAT. § 66.0233. Arcadia also filed a proposed complaint, which purported to wholly incorporate the earlier Burnside/Lincoln complaint and challenged the annexation on generally the same bases as articulated in that document.[5] Independence opposed Arcadia's intervention motion.[6] The circuit court granted Arcadia's motion to intervene, and Arcadia filed the proposed complaint.

         ¶7 Independence filed a motion to dismiss Arcadia's claims. Independence argued that pursuant to WIS. STAT. §§ 66.0217(1 l)(a) and 893.73(2), Arcadia was required, but failed, to commence an action within ninety days of the adoption of the annexation ordinances. In response, Arcadia argued its claims were timely because Burnside/Lincoln's claims were timely, emphasizing that the relevant statutes referred to the commencement of an "action, " not "claims." Arcadia asserted it had not "injected a new claim into the action, " but rather was "simply an additional party requesting the same relief originally and timely requested when this action was commenced." Alternatively, Arcadia argued that if the statutes applied to individual claims-and not to the mere commencement of "an" action-the expiration of the limitations period was tolled by Burnside/Lincoln's timely filed suit, pursuant to WIS. STAT. § 893.13.

         ¶8 Following a hearing, the circuit court entered an order granting Independence's motion to dismiss. The order adopted the court's oral decision, in which the court concluded that Arcadia was required to bring its claims within the ninety-day time period prescribed by WIS. STAT. §§ 66.0217(11)(a) and 893.73(2). The court rejected Arcadia's statutory interpretation, tolling, and other arguments. Arcadia now appeals.[7]


         ¶9 This case was decided upon a motion to dismiss on statute of limitations grounds. Resolution of this appeal therefore involves the interpretation and application of WIS. STAT. §§ 66.0217(1 l)(a) and 893.73(2)(b), as well as other statutes affecting the timeliness of a party's assertion of a legal claim. These matters ordinarily present questions of law that we review de novo. See MercyCare Ins. Co. v. Wisconsin Comm'r of Ins., 2010 WI 87, ¶26, 328 Wis.2d 110, 786 N.W.2d 785. "Whether a statutory limitations period requires dismissal of an action where the underlying facts are not in dispute is also a question of law." Hamilton v. Hamilton, 2003 WI 50, ¶14, 261 Wis.2d 458, 661 N.W.2d 832. The underlying facts in this case relevant to the statutory limitations periods are not in dispute.

         ¶10 Annexations initiated by electors and property owners are governed by WIS. STAT. § 66.0217. That section contemplates that annexation may occur in a number of ways, including by unanimous approval of the affected individuals. See § 66.0217(2), (3). This "unanimous approval" method, which was used here, requires a petition signed by "all of the electors residing in the territory and the owners of all of the real property in the territory"; in addition, the annexed territory must be "contiguous" to the annexing municipality. Subsec. 66.0217(2).

         ¶11 Regardless of whether the annexation occurs by unanimous approval or another method under Wis. STAT. § 66.0217, subsection (11) states that "[a]n action on any grounds, whether procedural or jurisdictional, to contest the validity of an annexation shall be commenced within the time after adoption of the annexation ordinance provided by [WIS. STAT. §] 893.73(2)." Subsection 893.73(2)(b), in turn, states that an action contesting the validity of an annexation must be brought within ninety days after the adoption of the annexation ordinance or it is time barred. The term "adoption" refers to the legislative body's act of voting to approve the ordinance, not to the approval of the ordinance by the mayor, the publication date of the ordinance, or the ordinance's effective date. Town of Sheboygan v. City of Sheboygan, 150 Wis.2d 210, 214, 441 N.W.2d 752 (Ct. App. 1989).

         ¶12 It is undisputed that Arcadia's attempt to intervene in the Burnside/Lincoln action came after the ninety-day period established by Wis. STAT. § 893.73(2)(b) had expired.[8] Independence passed all three annexation ordinances on August 19, 2014. The ninety-day period expired on November 17, 2014, the date on which Burnside and Lincoln filed their summons and complaint. Arcadia moved to intervene in the Burnside/Lincoln action on April 30, 2015. At that point, the statute of limitations had been expired for over five months.

         ¶13 Arcadia attempts to escape the expiration of the statute of limitations in a number of ways, each of which generally relates to Arcadia's overall argument that its claims should go forward because they were substantively the same claims as those asserted by Burnside and Lincoln. First, Arcadia resurrects its statutory interpretation argument, asserting the references to an "action" in WIS. Stat. §§ 66.0217(11)(a) and 893.73(2) mean that as long as someone commences an "action" within the applicable limitations period, "additional parties may be added to the litigation through amendment or intervention" without regard to the limitations period's expiration. Second, Arcadia appears to rely on the relation-back doctrine, under which certain amended pleadings are deemed timely filed despite the ostensible running of the applicable statute of limitations. Third, Arcadia asserts the running of the ninety-day limitations period was tolled by operation of WIS. STAT. § 893.13(2), as that statute was interpreted in Aetna Casualty & Surety Co. v. Owen, 191 Wis.2d 744, 530 N.W.2d 51 (Ct. App. 1995). Fourth and finally, Arcadia asserts it is not subject to a statute of limitations defense at all because, as an intervening party, it should be treated as though it was an original party for statute of limitations purposes. We reject each of these arguments.

         ¶14 We begin with Arcadia's statutory interpretation argument regarding WIS. Stat. §§ 66.0217(1 l)(a) and 893.73(2). Arcadia observes these two statutes, which combine to set forth the applicable limitations period in this case, refer to "an action, " not to individual "claims." See §§ 66.0217(1 l)(a) ("An action on any grounds ...."); 893.73(2)(b) ("An action to contest the validity of an annexation ...."). According to Arcadia, because Lincoln and Burnside timely commenced this "action, " Arcadia's claims are also timely because "an" action, generally, was timely filed. We are unpersuaded by this seemingly novel argument.

         ¶15 First, Arcadia's resort to the nomenclature the legislature has used is unavailing on a basic level. It would make little sense to say a "claim" must be "commenced" by a certain time. A "claim" is simply "[a]n interest or remedy recognized at law"; it is synonymous with a "cause of action." Claim, BLACK'S LAW DICTIONARY 302 (10th ed. 2014). In the judicial context, claims are necessarily made through the vehicle of "actions, " which are "civil or criminal judicial proceeding[s]." Action, BLACK'S LAW DICTIONARY 35 (10th ed. 2014); see also S.P.A. ex rel. Ball v. Grinnell Mut. Reins. Co., 2011 WI.App. 31, ¶7, 332 Wis.2d 134, 796 N.W.2d 874 (observing that "action, " as used in the civil procedure statutes, refers to an entire proceeding, not to one or more parts within a proceeding). A party can possess a claim without it commencing an action (for example, what Arcadia seemed to be doing before allowing the ninety-day limitations period to run, and before it moved to intervene), but a party cannot properly commence an action without it asserting at least one valid claim. Put another way, because a claim provides the basis for an action, a claim necessarily exists before an action is brought, and what matters for limitations purposes is whether an action is timely commenced asserting that claim.[9] Contrary to Arcadia's argument, the legislative choice to refer to an "action" reflects these basic principles.

         ¶16 Second, as Independence notes, many (perhaps all) Wisconsin statutes of limitation use commencement of "an action" to set the time by which a claimant must act to timely preserve a claim. See, e.g., WIS. STAT. §§ 893.43 (action on contract); 893.44 (action to recover compensation); 893.51 (action for wrongful taking of personal property); 893.52 (action for damages for injury to property). Important for our purposes, and as a general matter, each party has its own claim or claims that it must assert in a timely commenced action in order to avoid the running of a statute of limitations. See Barnes v. WISCO Hotel Group, 2009 WI.App. 72, ¶¶20, 25, 318 Wis.2d 537, 767 N.W.2d 352. Arcadia acknowledges these other statutes of limitations and even that, traditionally, they apply separately to each party's claims arising out of the same set of facts, even if one party had timely commenced an action.

         ¶17 Nonetheless, Arcadia asserts that unlike most civil actions, where "multiple plaintiffs can sustain different and distinct injuries or losses from the same incident, " what sets the annexation statutes apart is that "there is only one potential form of relief-invalidation of the annexation." Even assuming Arcadia is correct with respect to its uniqueness-of-remedy argument, Arcadia does not cite any authority supporting the proposition that, from either a plain-meaning or legislative-intent standpoint, one party's "action" challenging an annexation under WIS. STAT. §§ 66.0217(1 l)(a) and 893.73(2)(b) permits another party to untimely assert its own claims challenging the annexation. Arcadia likewise provides no authority where such an approach has been undertaken with any other limitations period, including other types of cases wherein multiple parties can seek only one potential form of relief. We decline to impart such a strained meaning on our own initiative.

         ¶18 Next, Arcadia faults the circuit court for failing to address the application of the relation-back doctrine. The doctrine is found in WIS. STAT. § 802.09(3), which provides that an amendment to a pleading "relates back to the date of the filing of the original pleading" if the claim asserted in the amended pleading "arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading." Arcadia, however, disclaimed any reliance on the relation-back statute in response to Independence's motion to dismiss, correctly stating "[t]his is not a case of amendment of the pleadings." Given this position, Arcadia should not be surprised the circuit court did not address the relation-back doctrine. Moreover, the general ...

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