Christopher Elandt v. Waupaca County

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 13, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP217 Cir. Ct. No. 2018CV18

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CHRISTOPHER ELANDT,

PLAINTIFF-APPELLANT,

V.

WAUPACA COUNTY,

DEFENDANT,

TOWN OF DUPONT,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waupaca County:
TROY NIELSEN, Judge. Affirmed.

Before Blanchard, Graham and Nashold, JJ.
No. 2019AP217

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. This case arises out of the Town of Dupont and
Waupaca County reconstructing and widening a Town road that Christopher
Elandt alleges encroaches on his property. Elandt sued the Town, claiming that
the newly widened road interferes with his property rights in a number of respects.

¶2 The Town moved to dismiss Elandt’s action on the ground that
Elandt failed to comply with the notice of claim statute, WIS. STAT. § 893.80(1d).1
The circuit court agreed with the Town and dismissed all of Elandt’s claims,
entering judgment in favor of the Town. Elandt appeals. For the reasons that
follow, we affirm.2

BACKGROUND

¶3 The following facts are not in dispute. Work on the Town road at
issue by the Town and the County began on November 28, 2016, and was
completed December 8, 2016. During construction, Elandt spoke to Town and
County employees about the project. More specifically, according to an affidavit
that Elandt filed in the circuit court, during construction Elandt voiced concerns to
Town and County employees about the project, including with respect to “where
the road was going,” but was informed by these employees that the Town road

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Although Elandt named both the Town and the County as defendants, the County did
not join the Town’s motion to dismiss, which is the subject of this appeal. Therefore, our
decision is limited to Elandt’s action against the Town. According to the Town’s brief-in-chief,
Elandt’s action against the County remains pending.

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No. 2019AP217

“was being constructed properly in accordance with state law and that they owned
the property.”

¶4 At some point between when the project was completed and May 11,
2017, Elandt reviewed the deed to his property and learned that the Town-owned
portion of the roadway is two rods wide, not four rods, as had been represented to
Elandt.3 According to Elandt’s affidavit, on May 11, 2017, Elandt met with the
Waupaca County surveyor “to discuss the actual width of the road” (and
presumably, by extension, whether it encroached on his property), but the surveyor
was “noncommittal as to how wide it was.”

¶5 Having not resolved the issue, Elandt then met with the Town
chairperson and the County highway commissioner on May 24, 2017. According
to Elandt’s affidavit, at the meeting the chairperson and commissioner “admitted
that they were in the wrong and their property was only 2 rods wide,” and it was at
that point that Elandt “finally became aware that [he] may have a claim against the
Town or the County.”

¶6 On July 7, 2017, Elandt served a “Notice of Claim and Claim for
Damages” on the Town, and on January 23, 2018, he filed a complaint in circuit
court. Elandt’s complaint raises seven claims against the Town: encroachment,
trespass, conversion, unjust enrichment, negligence, nuisance, and damage to
property. A common theme underlying each of these causes of action was the
allegation that the Town and the County were improperly taking or making use of

3
A “rod” is a “unit of land measurement equal to 16.5 feet.” Rod, BLACK’S LAW
DICTIONARY, at 1526 (10th ed. 2014).

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No. 2019AP217

Elandt’s property without his consent. We will refer to these causes of action
collectively as Elandt’s “claims.”

¶7 The Town answered and filed a motion to dismiss for failure to state
a claim upon which relief can be granted under WIS. STAT. § 802.06(2)(a)6.
Specifically, the Town asserted that Elandt failed to comply with WIS. STAT.
§ 893.80(1d)(a), which requires that a claimant provide certain governmental
entities a written notice of injury within 120 days of the event giving rise to the
claim.4 The Town also asserted that Elandt failed to comply with the notice of
claim requirements of § 893.80(1d)(b).

¶8 The circuit court granted the Town’s motion to dismiss on the
ground that Elandt failed to comply with the 120-day notice of injury requirements
of WIS. STAT. § 893.80(1d)(a). The court did not address the Town’s separate
argument regarding the notice of claim requirements under § 893.80(1d)(b). In
concluding that Elandt failed to comply with the notice of injury requirements, the
court relied on the fact that construction was completed on December 8, 2016,
which commenced the 120-day statutory window for providing notice of injury,
and that Elandt therefore would have needed to file his notice by approximately
April 8, 2017,5 to fall within the statutory window. Elandt’s notice was not served
on the Town until July 7, 2017, well outside that window.

4
The Town also raised this issue as an affirmative defense in its answer. See Maple
Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, ¶¶36, 45, 49,
386 Wis. 2d 425, 926 N.W.2d 184 (compliance with notice of claim statute need not be pled by
plaintiff; notice of claim statute does not create a jurisdictional prerequisite for filing suit but
instead creates an affirmative defense that must be raised in a defendant’s answer).
5
Although it is not material, the actual date for expiration of the 120-day time period
was April 7, 2017.

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No. 2019AP217

¶9 Although there are exceptions to the 120-day notice provision, the
circuit court concluded that Elandt did not qualify for any of them. The court
subsequently issued an order for judgment dismissing Elandt’s claims with
prejudice. Elandt appeals.

DISCUSSION

¶10 The circuit court granted the Town’s motion to dismiss for failure to
state a claim upon which relief can be granted, pursuant to WIS. STAT.
§ 802.06(2)(a)6. When reviewing a motion to dismiss, courts “are limited to the
examination of the facts as stated in the complaint.” Heinritz v. Lawrence Univ.,
194 Wis. 2d 606, 611, 535 N.W.2d 81 (Ct. App. 1995). However, when “matters
outside of the pleadings are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment,” and this court reviews it as such.
See § 802.06(2)(b); Converting/Biophile Labs., Inc. v. Ludlow Composites Corp.,
2006 WI App 187, ¶2, 296 Wis. 2d 273, 722 N.W.2d 633. In this case, the circuit
court considered matters outside the pleadings, without objection by either party
and after both sides submitted affidavits. Therefore, although the parties on appeal
present the issue as involving resolution of a motion to dismiss, we review the
court’s order as granting summary judgment in favor of the Town. See
Converting/Biophile Labs., 296 Wis. 2d 273, ¶2.

¶11 “Summary judgment is proper when the pleadings, answers,
admissions and affidavits show no genuine issues of material fact and the moving
party ... is entitled to judgment as a matter of law.” Eichenseer v. Madison-Dane
Cty. Tavern League, Inc., 2006 WI App 226, ¶5, 297 Wis. 2d 495, 725 N.W.2d
274. We review the circuit court’s grant of summary judgment de novo, reversing
if the circuit court “incorrectly decided legal issues or if material facts are in

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No. 2019AP217

dispute.” Id. Here, the material facts necessary for our analysis are not in dispute,
and the question is one of law, namely, whether WIS. STAT. § 893.80(1d)(a) barred
Elandt’s suit against the Town.

¶12 WISCONSIN STAT. § 893.80(1d) is referred to as the “notice of claim
statute” and contains two notice provisions, the “notice of injury” provision, set
forth in § 893.80(1d)(a), and the “notice of claim” provision, set forth in
§ 893.80(1d)(b). See Yacht Club at Sister Bay Condo. Ass’n v. Village of Sister
Bay, 2019 WI 4, ¶¶19-20, 385 Wis. 2d 158, 922 N.W.2d 95. A claimant bringing
a lawsuit against certain governmental entities must satisfy both notice
requirements. See E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, ¶20,
335 Wis. 2d 720, 800 N.W.2d 421. As stated, the circuit court addressed only the
notice of injury provision, which states, in pertinent part:

[N]o action may be brought or maintained against any ...
governmental subdivision or agency ... unless:

(a) Within 120 days after the happening of the
event giving rise to the claim, written notice of the
circumstances of the claim signed by the party, agent or
attorney is served on the ... governmental subdivision or
agency .... Failure to give the requisite notice shall not bar
action on the claim if the ... subdivision or agency had
actual notice of the claim and the claimant shows to the
satisfaction of the court that the delay or failure to give the
requisite notice has not been prejudicial to the defendant ....

WIS. STAT. § 893.80(1d)(a). The circuit court concluded that the 120-day time
period for providing the Town this notice commenced, at the latest, on
December 8, 2016, the date construction was completed, and that Elandt’s July 7,
2017 notice was therefore untimely. On appeal, Elandt argues that three
exceptions apply to the notice of injury provision. We address each in turn.

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No. 2019AP217

I. “Actual Notice” and Lack of Prejudice

¶13 The first exception that Elandt advances is the “actual notice”
exception that is contained within the notice of injury provision. Under this
exception, a plaintiff who does not file a timely notice of injury may still proceed
with the action if both of two criteria are met: the governmental entity (1) had
actual notice of the claim and (2) was not prejudiced by the delay or failure to give
the requisite notice. See WIS. STAT. § 893.80(1d)(a); see also Bostco LLC v.
Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶88, 350 Wis. 2d 554,
835 N.W.2d 160. “[W]hen a governmental entity asserts noncompliance with the
statute as a defense to the action, the claimant ‘has the burden of proving the
giving of notice or actual notice and the nonexistence of prejudice.’” Vanstone v.
Town of Delafield, 191 Wis. 2d 586, 597, 530 N.W.2d 16 (Ct. App. 1995)
(quoting Elkhorn Area Sch. Dist. v. East Troy Cmty. Sch. Dist., 110 Wis. 2d 1, 5,
327 N.W.2d 206 (Ct. App. 1982) (emphasis omitted)); see also E-Z Roll Off,
335 Wis. 2d 720, ¶¶17-18. If a plaintiff fails to meet his or her burden under
either the actual notice or the prejudice prong, a court need not address the other.
See E-Z Roll-Off, 335 Wis. 2d 720, ¶48.

¶14 With respect to the actual notice prong, the circuit court found that
the earliest the Town could have reasonably known that any of Elandt’s claims
“may be forthcoming” was on May 24, 2017, during the meeting attended by the
Town chairperson, the County highway commissioner, and Elandt. The court
reasoned that “mere knowledge of an event or series of events is not enough to
serve as actual notice,” which we construe to mean that the Town’s knowledge of
the project and that Elandt “may” bring a claim against the Town does not
constitute actual notice under WIS. STAT. § 893.80(1d)(a). The court also noted
that May 24, 2017, fell outside the 120-day window that commenced on

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No. 2019AP217

December 8, 2016. In response, Elandt does not specifically state when he
believes the Town received actual notice of his claims. Instead, he generally
asserts that he voiced “concerns” about the project with unnamed Town and
County employees during the course of construction. Elandt further states that he
“attended hearings, was in discussion with the members of the construction crew
and [the Town], and they were well aware that there were some issues with respect
to the property even though they might not [have] known specifically what those
issues were at that time.” Elandt contends that the Town conducted surveying and
planning and reviewed records, “yet negligently missed the fact that the road was
only 2 rods wide.” Because Elandt fails to develop any argument as to when
actual notice was provided and fails to apply the legal requirements for actual
notice to his asserted facts, his arguments are rejected as inadequately developed.
See Associates Fin. Servs. Co. of Wis. v. Brown, 2002 WI App 300, ¶4 n.3,
258 Wis. 2d 915, 656 N.W.2d 56 (court may decline to consider conclusory and
undeveloped arguments that are inadequately briefed). Moreover, Elandt
misapprehends the actual notice requirement under WIS. STAT. § 893.80(1d)(a).

¶15 The plain language of this provision requires that a governmental
entity have “actual notice of the claim” against it. WIS. STAT. § 893.80(1d)(a)
(emphasis added). Consistent with this language, this court has held that “the
provision requires that the government entity not only have knowledge about
events for which it may be liable, but also the identity and type of damage alleged
to have been suffered by a potential claimant.” Markweise v. Peck Foods Corp.,
205 Wis. 2d 208, 220, 556 N.W.2d 326 (Ct. App. 1996). Notably, in a case very
similar to this one, we held that a governmental entity’s mere knowledge that a
road construction project might give rise to a claim by an adjacent landowner was
insufficient to satisfy the actual notice prong of the statute. See Olson v.

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No. 2019AP217

Township of Spooner, 133 Wis. 2d 371, 377-78, 395 N.W.2d 808 (Ct. App.
1986).

¶16 Thus, it is insufficient for purposes of actual notice that Elandt
expressed “concerns” to the Town about the construction project and that the
Town was involved in the project. Rather, the Town must have actual notice of a
claim. Elandt’s assertions regarding the Town’s knowledge, even accepted as
true, fail to establish that the Town had actual notice of any of Elandt’s claims. As
a result, the circuit court properly rejected Elandt’s actual notice argument.

II. Notice of Claim Exception under Burke

¶17 Elandt next argues that his action is exempt from the notice of claim
statute under the factors set forth in Town of Burke v. City of Madison, 225 Wis.
2d 615, 625, 593 N.W.2d 822 (Ct. App. 1999). See E-Z Roll Off, 335 Wis. 2d
720, ¶¶23-24 (discussing and adopting Burke factors). In Town of Burke, this
court announced a three-factor test for analyzing whether a particular statutory
claim is exempt from the notice of claim statute:

(1) whether there is a specific statutory scheme for which
the plaintiff seeks exemption; (2) whether enforcement of
§ 893.80(1), STATS.,6 would hinder a legislative preference
for a prompt resolution of the type of claim under
consideration; and (3) whether the purposes for which
§ 893.80(1) was enacted would be furthered by requiring
that a notice of claim be filed.

Town of Burke, 225 Wis. 2d at 625 (footnotes omitted; footnote 6 added). Elandt
did not address the first two Burke factors in the circuit court, nor does he do so

6
In 1999 when Town of Burke v. City of Madison, 225 Wis. 2d 615, 593 N.W.2d 822
(Ct. App. 1999), was issued, the notice of claim statute was found at WIS. STAT. § 893.80(1). It
was subsequently renumbered to § 893.80(1d). See 2011 Wis. Act 162, § 1g.

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No. 2019AP217

on appeal. The Town asserts that, as a result of Elandt’s failure to address the first
two factors, Elandt’s exemption argument should be rejected as inadequately
developed. We need not decide whether Elandt’s failure to address these factors is
fatal because we agree with the Town that Elandt fails to make any persuasive
argument with respect to the third Burke factor, namely, whether the purpose of
the notice of claim statute would be furthered by requiring that a notice of claim
be filed.

¶18 Case law establishes that the notice of claim statute serves two
purposes: the notice of injury provision allows governmental entities to
investigate and evaluate potential claims, while the notice of claim provision
affords governmental entities the opportunity to compromise and budget for
potential settlement litigation. Yacht Club, 385 Wis. 2d 158, ¶¶19-20; E-Z Roll
Off, 335 Wis. 2d 720, ¶34.

¶19 In the circuit court and in this court, Elandt’s only argument with
respect to whether the investigation and evaluation purposes of the notice of injury
provision would be advanced by applying it here is entirely conclusory: “The
filing [of] a claim without first fulfilling the notice requirements under § 893.80
does not prevent the Town from evaluating the claims or offering settlement.”
However, as the Town points out, if this were the rule, the notice requirements
would be meaningless because such an argument could be made in every case.
Moreover, we reject Elandt’s position regarding application of the third Burke
factor here on the ground that it is inadequately developed, including that it is
unsupported by any authority. See Associates Fin. Servs., 258 Wis. 2d 915, ¶4 n.3
(court may decline to consider conclusory and undeveloped arguments that are
inadequately briefed); Young v. Young, 124 Wis. 2d 306, 312, 369 N.W.2d 178

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No. 2019AP217

(Ct. App. 1985) (we “refuse to consider an argument without legal authority
specifically supporting the relevant propositions”).

¶20 Because Elandt fails to establish that any of the Burke factors weigh
in his favor, the circuit court properly rejected Elandt’s contention that his action
is exempt from the notice of claim statute under Burke.

III. The Discovery Rule

¶21 Elandt’s final argument is that the “discovery rule” applies to WIS.
STAT. § 893.80(1d). Under the discovery rule, a tort claim accrues “on the date
the injury is discovered or with reasonable diligence should be discovered,
whichever occurs first.” Hansen v. A.H. Robins Co., 113 Wis. 2d 550, 560,
335 N.W.2d 578 (1983). If a plaintiff fails to exercise reasonable diligence in
discovering the alleged injury, then the discovery rule does not apply. Awve v.
Physicians Ins. Co. of Wis., 181 Wis. 2d 815, 819-20, 512 N.W.2d 216 (Ct. App.
1994). When the material facts are undisputed, whether a plaintiff can satisfy the
reasonable diligence standard is a question of law that we review de novo. Doe v.
Archdiocese of Milwaukee, 2007 WI 95, ¶13, 303 Wis. 2d 34, 734 N.W.2d 827.

¶22 According to Elandt, he became aware of his claims, at the earliest,
on May 11, 2017, tolling the 120-day notice period to that date.7 We will assume
that by “claims” Elandt means “injuries,” as the term injury is used under the
discovery rule. Applying the discovery rule, if Elandt’s alleged injuries were
discovered on May 11, 2017, then his July 7, 2017 notice would fall within the

7
We observe that Elandt fails to provide a consistent position as to when he first became
aware that he might have claims against the Town. At some points he states that this occurred on
May 24, 2017, while at others he states that this occurred, at the earliest, on May 11, 2017.

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No. 2019AP217

120-day statutory window. Conversely, if the discovery rule does not apply, then
Elandt’s claims did not fall within the 120-day window because the notice of
claim statute began to run, at the latest, when construction ended on December 8,
2016. See WIS. STAT. § 893.80(1d)(a) (notice of injury must be provided within
120 days “of the event giving rise to the claim”).

¶23 The Town argues that the discovery rule does not apply to WIS.
STAT. § 893.80 because this provision was enacted in 1975, long before Wisconsin
adopted the discovery rule in 1983. However, assuming without deciding that the
discovery rule may be applied to § 893.80(1d), we conclude that the rule cannot
save Elandt’s claims because he did not exercise “reasonable diligence” in
discovering his alleged injuries. See Hansen, 113 Wis. 2d at 560.

¶24 To invoke the discovery rule, the plaintiff must have exercised
“reasonable diligence” in discovering the alleged injury. Id. at 556-60. The test
for “reasonable diligence” is an objective one that turns on “whether a reasonable
person under the same or similar circumstances as the plaintiff should have
discovered his injury and its cause.” Carlson v. Pepin Cty., 167 Wis. 2d 345, 353,
481 N.W.2d 498 (Ct. App. 1992). Particularly relevant to this case, our supreme
court has stated:

Plaintiffs have a duty to inquire into the injury that results
from tortious activity. The measure of diligence required
of a plaintiff to discover the elements of his or her cause of
action is such diligence as the great majority of persons
would use in the same or similar circumstances. Plaintiffs
may not ignore means of information reasonably available
to them, but must in good faith apply their attention to
those particulars which may be inferred to be within their
reach.

Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 340, 565 N.W.2d 94 (1997)
(citations omitted); see also Spitler v. Dean, 148 Wis. 2d 630, 638, 436 N.W.2d

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No. 2019AP217

308 (1989) (“Plaintiffs may not close their eyes to means of information
reasonably accessible to them ....”).

¶25 Under these standards, the undisputed facts show that Elandt failed
to conduct a reasonably diligent inquiry into his alleged injuries. According to his
own affidavit, Elandt was aware of the construction as it was ongoing and was
concerned that the road was encroaching on his land. Yet the only inquiries he
made prior to the completion of construction were to ask Town and County
employees about the project, whereupon, according to Elandt, he was informed
that the road “was being constructed properly in accordance with state law and
that they owned the property.” However, Elandt was not required to rely on the
representations of unnamed government employees. It is undisputed that he had
other readily available avenues of inquiry, taking any or all of the following steps:
consulting his own deed, hiring his own surveyor, or contacting the county
surveyor. But at the time of construction, Elandt did none of those things.
Instead, he waited more than five months before seeking out those sources of
information, which had been available to him since construction began.

¶26 Because the undisputed facts establish that Elandt failed to conduct a
reasonably diligent inquiry into his alleged injuries, the circuit court properly
rejected his arguments based on the discovery rule.

CONCLUSION

¶27 For the reasons stated, we affirm the circuit court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

13