from an order of the circuit court for Trempealeau County,
Cir. Ct. No. 2014CV237 JOHN A. DAMON, Judge. Affirmed.
Stark, P. J., Hruz and Seidl, JJ.
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.
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. 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.
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. 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.
Burnside and Lincoln jointly sought review of the annexation
from the Wisconsin Department of
Administration. 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. Additionally, they asserted the ordinances
were invalid for lack of contiguousness.
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.
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. Independence opposed
Arcadia's intervention motion. The circuit court granted
Arcadia's motion to intervene, and Arcadia filed the
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.
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.
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.
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.
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).
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. 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
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.
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.
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. Contrary to Arcadia's argument, the
legislative choice to refer to an "action" reflects
these basic principles.
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
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
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 ...