author: PETERSON, J.

text:
    Heyde Companies, Inc., d/b/a Greenbriar Rehabilitation, Plaintiff-Respondent, v. Dove Healthcare, LLC, d/b/a Dove Healthcare at Eau Claire, a Wisconsin Limited Liability Company, Defendant-Appellant.
    Court of Appeals

      No. 01-0863-FT.

      Submitted on briefs August 24, 2001.

      Decided October 23, 2001.

    2001 WI App 278
    (Also reported in 637 N.W.2d 437.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Carol S. Dittmar of Garvey, Anderson, Johnson, Geraci & Mirr, S.C., Eau Claire.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of John F. Maloney, Robert K. Bultman and Jennine T. Sonntag of McNally, Maloney & Peterson, S.C., Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 1-29-02.

   PETERSON, J.

¶ 1. Dove Healthcare, LLC, appeals a judgment awarding damages and costs in the amount of $64,314.43 to Heyde Companies, Inc., for breach of a no-hire contract provision. Dove is a health care provider that operates nursing homes. Heyde Companies owns Greenbriar, which furnishes physical therapists to nursing homes. Dove argues that the trial court erred by determining that the no-hire provision was enforceable. Dove contends that the no-hire provision was an unreasonable restraint of free trade because Greenbriar's employees had no knowledge of the provision and had not signed any covenants not to compete. We agree and reverse the judgment.

BACKGROUND

¶ 2. Dove and Greenbriar entered into a Therapy Services Agreement in 1997. Greenbriar had similar agreements with other nursing homes in the area. Under the agreement, Greenbriar provided Dove with physical therapists. The therapists worked in Dove's nursing home, but remained Greenbriar employees. The therapists were at-will employees.

¶ 3. The agreement contained a provision that prevented Dove from hiring any Greenbriar therapists for up to one year after the agreement expired unless Dove obtained Greenbriar's written consent. If Green-briar gave consent, Dove was required to pay Green-briar a fee of fifty percent of the therapist's annual salary. Greenbriar therapists were unaware of the provision.

¶ 4. Dove terminated the agreement with Green-briar on October 26, 1999, to be effective on December 31, 1999. Shortly after terminating the agreement, Dove hired one current and three former Greenbriar therapists. Dove did not seek Greenbriar's consent, nor did Dove pay the fifty-percent contractual fee.

¶ 5. Greenbriar filed an action against Dove alleging breach of the no-hire provision and seeking payment of the fifty-percent contractual fee for each employee. Dove moved for summary judgment arguing that the no-hire provision was unenforceable. The court denied the motion. Dove and Greenbriar then stipulated to the facts on the issue of liability and presented evidence on the issue of damages. The court found that Dove was liable to Greenbriar for $62,124.40 in damages. This appeal followed.

STANDARD OF REVIEW

¶ 6. In reviewing the trial court's findings and conclusions, we apply the following standards of review. We will not disturb the trial court's findings of fact unless they are clearly erroneous. See Wis. Stat. § 805.17(2). Conclusions of law will be reviewed independently. Tourtillott v. Ormson Corp., 190 Wis. 2d 291, 294-95, 526 N.W.2d 515 (Ct. App. 1994).

DISCUSSION

¶ 7. The issue on appeal is whether the no-hire provision is unenforceable. Dove argues that the provision was, in effect, a covenant not to compete that affected the rights of Greenbriar's therapists to seek employment. Dove contends that the no-hire provision was unenforceable without the knowledge and consent of the therapists. Because the therapists were unaware of the no-hire provision, Dove contends that the trial court erred by holding that the no-hire provision was enforceable and awarding damages in Greenbriar's favor.

¶ 8. Wisconsin law favors the mobility of workers. Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 214, 267 N.W.2d 242 (1978). As a result, employment contracts that operate to restrict trade or competition are suspect in this state, and will be liberally construed in favor of employees. Wausau Med. Ctr. v. Asplund, 182 Wis. 2d 274, 281, 514 N.W.2d 34 (Ct. App. 1994); Wis. Stat. § 103.465. Contracts that are contrary to public policy are unenforceable. NSP v. National Gas Co., 2000 WI App 30, ¶ 8, 232 Wis. 2d 541, 606 N.W.2d 613.

¶ 9. According to Dove, Wisconsin's public policy favors unrestrained competition in the employment market, and the no-hire provision in this case constitutes the most basic type of trade restraint. Dove bases its argument on Wis. Stat. §§ 103.465 and 133.03(1).

¶ 10. Wisconsin Stat. § 103.465 permits covenants in employment contracts that restrict departing employees' ability to work for competitors of their former employer within a specified territory and for a specified time period as long as such restrictions are reasonably necessary for the former employer's protection. However, covenants that impose unreasonable restraints are illegal. See Wis. Stat. § 103.465. The clear public policy manifested by § 103.465 is to protect the employee from unreasonably restrictive covenants. Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 115, 579 N.W.2d 217 (1998).

¶ 11. In addition, Wis. Stat. § 133.03(1) provides that "Every contract... in restraint of trade or commerce is illegal." See Journal Co. v. Bundy, 254 Wis. 390, 395, 37 N.W.2d 89 (1949).

¶ 12. We conclude that the no-hire provision violates public policy by restraining trade in the labor market and is thus unenforceable. Although the provision purports to restrict only the parties to the contract and is not a restrictive covenant as that term is usually used, its most severe effect is on Greenbriar therapists who are restricted by the provision.

¶. 13. The no-hire provision violates public policy by restricting Greenbriar therapists the right to freely sell their skills in the labor market. Without signing any agreement or even being given notice, a portion of the available labor market has been taken away. Not only are the therapists restricted from working for Dove, but with thirty-three other health care facilities that have contracted with Greenbriar. Thus, current and former Greenbriar therapists are restricted from being employed by these facilities, unless Greenbriar gives consent and unless the facilities are willing to pay the fee.

¶ 14. While Wisconsin courts have not addressed the validity of this type of no-hire provision, several cases from other jurisdictions have addressed similar agreements. In Communication Technical Sys. v. Dens more, 583 N.W.2d 125 (S.D. 1998), the South Dakota Supreme Court recognized the inequity involved when an at-will employer tries to enforce a no-hire agreement with another employer. The court observed that the at-will employer seeks the best of both worlds. Id. at 129. The employer wants to retain the right to hire or fire an employee for any reason, but if that employee then tries to seek alternative employment, certain employers are considered "forbidden fruit" without the employee ever agreeing to such a limitation. Id.

¶ 15. In Texas Shop Towel v. Haire, 246 S.W.2d 482, 484 (Tex. Civ. App. 1952), the court noted that an employer could not bind its employees by contract with a third party, because the employer's rights to contract cannot eliminate the employee's own rights as a free contracting person. The court stated that. "[i]t is one thing for an employee voluntarily to surrender his known rights; it is vastly different when an employee is placed under servitude by a contract to which he is not a party and about which he may know nothing." Id.

¶ 16. We agree with the reasoning in Densmore and Haire. It is one thing to uphold the restriction on an employee's freedom where it results from an agreement freely entered into by the employee. But where the restriction on an employee's freedom results from the employer's agreement with another potential employer, the employee is deprived of his or her freedom without acquiescence and with no resulting benefit.

¶ 17. Here, the no-hire provision restricts Green-briar therapists from gaining employment with Dove. The only way the therapists can gain employment at Dove is if Greenbriar consents and Dove pays Green-briar a fee.

¶ 18. Additionally, Greenbriar requires other area facilities like Dove to enter into the same no-hire agreement. Greenbriar therapists are restricted from gaining employment at these facilities as well. Therefore, the no-hire provision restricts the therapists from contracting for employment with a portion of the available labor market.

¶ 19. Greenbriar argues that this is simply a breach of contract case. Greenbriar contends that the no-hire provision only restricts Dove, not Greenbriar therapists. Greenbriar further contends that Wis. Stat. § 103.465 is not applicable because the statute only regulates restrictive covenants between employers and employees, not contractual agreements between two business entities.

¶ 20. While, as indicated above, the no-hire provision is not a restrictive covenant on its face, we conclude that the provision violates public policy as expressed in Wis. Stat. § 103.465. The provision purports to only restrict Dove. However, its effect limits the employment opportunities of Greenbriar therapists without their knowledge or consent. The therapists' right to freely contract is hindered when seeking employment with employers that have entered into no-hire agreements with Greenbriar.

¶ 21. Greenbriar is trying to do indirectly what it cannot do directly. It cannot enforce restrictive covenants unless its employees agree to the covenants and unless the covenants are reasonable under Wis. Stat. § 103.465. Here, Greenbriar is attempting to avoid the statute by entering into an agreement with another employer to restrict its employees. The provision is in effect a restrictive covenant.

¶ 22. Greenbriar also argues that Wis. Stat. § 133.03(1) is inapplicable to the no-hire provision because it applies only to monopolies and Greenbriar does not control the market for therapists. However, the language of the statute is broader. The statute applies to "every contract... in restraint of trade. Unreasonable restraints on trade are prohibited. Independent Milk Producers Co-op v. Stoffel, 102 Wis. 2d 1, 12, 298 N.W.2d 102 (Ct. App. 1980). The public policy behind the statute operates along with Wis. Stat. § 103.465 to prevent restrictive covenants that unreasonably restrain trade. As we have stated, the no-hire provision operates as a restrictive covenant. For reasons discussed, it unreasonably restrains the therapists' opportunities to seek employment.

¶ 23. Finally, Greenbriar argues that the cases Dove cites are distinguishable and that other jurisdictions have enforced similar no-hire provisions.

¶ 24. Greenbriar cites Webb v. West Side Dist. Hosp., 144 Cal.App.3d 946 (1983), to support its argument. In Webb, a doctor contracted with a hospital to place physicians in the hospital's emergency room. The contract contained a no-hire provision restricting the hospital from hiring any physician provided by the doctor who had actually worked at the hospital unless the hospital paid a fee to the doctor.

¶ 25. Webb upheld the no-hire provision because it only prohibited the hospital from hiring physicians who had actually worked at the hospital. See id. at 954 n.5. The provision did not go beyond what was necessary to protect the doctor's economic interest in preventing the physicians from "stealing" the hospital as a customer. Id.

¶ 26. Webb relied on Hospital Consultants v. Potyka, 531 S.W.2d 657 (Tex. App. 1975), to support its holding. Potyka reasoned that a doctor who provided emergency room physicians to a hospital had a legitimate interest in preventing the physicians from stealing the hospital as a customer. The doctor could restrict the physicians by prohibiting the hospital from hiring physicians who had actually worked at the hospital. Webb, 144 Cal.App.3d at 954 n.5.

¶ 27. However, unlike Webb, where the no-hire provision was found valid, Potyka held that the no-hire provision between the doctor and the hospital was unenforceable for two reasons. First, the court found it unacceptable that the physicians, whose employment was being restrained, were unaware of the contractual provision restricting them. Potyka, 531 S.W.2d at 664. Second, the provision was unlawfully restrictive because it prohibited the hospital from hiring all physicians hired by the doctor regardless whether the physicians had ever worked at the hospital. Id. at 665.

¶ 28. The present case is more in line with Potyka than with Webb: Here, none of the physical therapists knew their employment was restricted because of their employment at Greenbriar. Further, the no-hire provision was not limited to therapists who worked at Dove. Dove was prohibited from hiring any Greenbriar therapist even if that therapist had never worked at Dove. Thus, the provision went beyond what was reasonably necessary to protect Greenbriar's interests in violation of the public policy behind Wis. Stat. §§ 103.465 and 133.03(1).

¶ 29. We conclude that an employee's individual right and freedom to contract may not be restricted by a contract between two employers unless the employee is aware of and consents to the contract. Because the no-hire provision restricted the employment opportunities of Greenbriar employees without their knowledge or consent, we conclude that it is unenforceable.

By the Court. — Judgment reversed.

       The no-hire provision states:
      [Dove] acknowledges and agrees that it will not, directly or indirectly, solicit, engage, permit to be engaged or hire any Greenbriar therapists or therapist assistants to provide services for [Dove] independently, as an employee of [Dove] or as an employee of a services provider other than Greenbriar or otherwise during the term of this Agreement (including any renewals thereof) and for a period of one (1) year thereafter without the prior written consent of Greenbriar. If, after prior written consent by Greenbriar, any Greenbriar therapists or therapist assistants are hired or utilized by [Dove], [Dove] shall pay Greenbriar a fee of fifty percent (50%) of the subject Greenbriar employee's annual salary. Payment of said fee shall be made by [Dove] directly to Greenbriar upon employee's termination from Greenbriar.

       Additionally, Dove argues that it did not violate the no-hire provision and that the liquidated damages provision in the agreement constitutes an unenforceable penalty. Because our resolution of the enforceability of the no-hire provision is disposi-tive of the appeal, we do not address these arguments. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

       Wisconsin Stat. § 103.465 reads as follows:
      A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
      Wisconsin Stat. § 133.03(1) reads as follows:
      Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal. Every person who makes any contract or engages in any combination or conspiracy in restraint of trade or commerce may be fined not more than $100,000 if a corporation, or, if any other person, may be fined not more than $50,000 or imprisoned for not more than 7 years and 6 months or both.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Everardo A. Lopez, Defendant-Appellant.
    Court of Appeals

      No. 00-3070-CR.

      Submitted on briefs September 6, 2001.

      Decided October 24, 2001.

    2001 WI App 265
    (Also reported in 637 N.W.2d 468.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brett A. Balinsky, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, RJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Everardo A. Lopez appeals from a judgment of the circuit court convicting him of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (1999-2000). Lopez also appeals from an order denying his amended postconviction motion to withdraw his no contest plea. We hold that Lopez fulfilled his plea withdrawal requirements under State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). Therefore, the circuit court erred when it assigned to Lopez the burden of showing "by clear and convincing evidence" the grounds for withdrawal of his plea. We reverse the judgment and order of the circuit court.

¶ 2. On May 13, 1999, the State charged Lopez with first-degree sexual assault as a repeater. The repeater allegation was based on Lopez's conviction in Kenosha County Circuit Court of one count of receiving stolen property and one count of theft (No. 98-CF-181). In exchange for Lopez's plea, the State moved to dismiss the repeater allegation.

¶ 3. A plea hearing was held on September 8, 1999. The circuit court began by explaining the charge against Lopez:

First, you... had sexual contact with [the complainant.]
[Second], the sexual contact... was either for the purpose of sexual arousal or gratification. [Third, the complainant] had not attained the age of 13 years at the time of the alleged sexual contact.
Sexual contact is the intentional touching by you of an intimate bodily part of [the complainant]; in this case they're saying the buttocks or her vaginal area.
The touching can be directly or it may be through clothing. And they're saying in this case it was through her clothing with the use of your hand.

¶ 4. The court then asked Lopez whether he understood the charge of first-degree sexual assault including what the State said that he had done. Lopez did not acknowledge an understanding of the charge or its elements. Instead, he responded to the court's question by stating: "That, about those three charges, are not true." Lopez's denial prompted the court to stop the colloquy and set the case for a jury trial. Lopez's attorney told the court that he did not think Lopez understood what the court was telling him. The court adjourned the hearing and set a trial date, stating that it would also set an earlier further proceeding date that could be used as a plea hearing "if [Lopez] understands what they're saying he did."

¶ 5. On October 14, 1999, a full plea hearing was held. The court began by stating:

It's my understanding that apparently the parties had had further discussions, that the interpreter who was last with Mr. Lopez had some communication problems and he may not have understood what was being discussed concerning the charge and the rights he'd be waiving and, therefore, we have a different interpreter. (Emphasis added.)

After this, the parties indicated that Lopez was prepared to accept the plea bargain and the court began the plea colloquy:

[Court] Okay. What... is your understanding of the agreement. .. you have with the State?
[Defense Counsel] He [Lopez] is pleading to the charge of violating Section 948, first degree sexual assault. The State would be dropping the repeater allegation. Maximum penalty is up to 40 years imprisonment. And the State would not issue any other crime arising out of this incident.
[Court] Okay. [State?]
[State] [T]hat's a correct recitation of the extent of the offer.
[Court] And, Mr. Lopez, is that your understanding of the agreement with the State?
[Lopez] Yes, although the State doesn't have any more difficulties.
[Court] Okay. Mr. Lopez, in terms of the charge, they're saying you had sexual contact with a person who has not attained the age of 13 years.
[Court] [This sexual contact] happened on May 11 of this year.... And they're saying that the contact can be the intentional touching of the intimate bodily part of another, whether clothed or unclothed, and they're saying you touched her vaginal area through her clothing with your hand. Do you understand the charge of first degree sexual assault, sir?
[Lopez] Yes, but I didn't touch her. All I did was push her and that's all.
[Court] Okay.
[Lopez] What they're saying that I touched her where they're saying that I touched her that's not true.
[Court] Okay. Did you touch her at any intimate bodily part — her buttocks, her breasts, anywhere — with your hand?
[Lopez] I didn't touch her there. I touched her here.
[Court] The arms?

¶ 6. At this point, the court stopped the colloquy and stated that it would instead take up a motion by the State. Lopez's attorney interjected:

[Defense Counsel] Could I just ask [Mr. Lopez] something?
[Court] Yeah. Sure.
(Discussion off the record between [Defense Counsel] and the defendant)
[Lopez] I accept it.
[Court] Okay it's not- — -it's hard for me to do that. .. when he didn't do anything wrong.
[Defense Counsel] Okay. Your Honor—
[Court] I'd rather have the jury decide.
[Defense Counsel] [Lopez] does not have a memory of this particular occurrence....
So we've gone over this numerous times.... He doesn't remember actually touching the girl but ... that doesn't stop the fact that he did that.
[Court] But he seems to indicate to me... that he clearly remembers only touching her about the shoulders see. What I'm saying? If he said I don't remember the incident, that might be one thing, but he apparently remembers the incident but he remembers, from my vantage point, touching her only in the shoulder area, nowhere else. I mean, that's a little different.
[Defense Counsel] Okay. Could we just approach it a different way?
[Court] Sure.
[Defense Counsel to Lopez] Do you understand that's what they're saying, that you touched her — you understand that — in her intimate part. And we — you are agreeing you are to plea to that charge. Is that your understanding?
[Lopez] I'm pleading guilty but there are times when I lose my memory.
[Court] Okay.
[Court] Now, Mr. Lopez, you understand that if I accept your plea to the charge, I will find that you did the acts they say you did in the complaint. Do you understand that? Even if — even if you don't remember them occurring. Do you understand that?
[Lopez] Understood.
[Court] For the record, then, what is your plea to the charge of first degree sexual assault occurring on May 11, 1999 as charged in the Information as amended?
[Lopez] No contest.

¶ 7. The court found that Lopez's plea was intelligent and voluntary. The court convicted Lopez and sentenced him to fifteen years in prison.

¶ 8. Following his conviction and sentencing, Lopez filed a motion seeking to withdraw his no contest plea. In it, Lopez alleged that the circuit court failed to establish his understanding of the charge pursuant to Wis. Stat. § 971.08(l)(a). He argued that he did not understand that the touching must be for the sexual gratification of the defendant or the degradation or humiliation of the victim. He also argued that he did not know what it meant to be charged "as a repeater" and that therefore he did not understand the plea agreement. (The State agreed to dismiss the repeater allegation as part of the plea agreement.)

¶ 9. A postconviction motion hearing was held on October 31, 2000. Lopez first argued that he did not understand an element of the offense, specifically, that the sexual contact had to be for sexual gratification. He testified that he did not know what sexual gratification meant and that the court failed to describe this element in the plea colloquy. Second, he contended that the burden was on the State to show that he in fact understood this element. Lopez then requested permission to withdraw his plea because the State had not met its burden.

¶ 10. The court disagreed, finding that the elements were fully explained to Lopez, that he knew the elements and that he knew what he was pleading to. The court also disagreed with Lopez's characterization of the burden of proof:

The burden is on the defendant in this type of hearing to show by clear and convincing evidence that there are grounds for withdrawal of the plea, either not being knowingly or voluntarily made or failure to understand various of the rights that the person would be waiving.

Discussion

¶ 11. Lopez appeals his judgment of conviction and the denial of his motion to withdraw his plea. Lopez argues that he made a prima facie showing that the plea colloquy was inadequate and that he did not understand the element of sexual gratification. Lopez also argues that the circuit court erroneously allocated the burden of proof to him even after he made a prima facie showing that the plea colloquy was inadequate and that he did not understand the element of sexual gratification.

¶ 12. This case involves questions of law and constitutional fact. The determination of who has the ultimate burden of proof and whether that party has satisfied the requisite burden of proof are questions of law that we review independently. Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 1997). The determination of whether a plea is knowingly and intelligently entered presents a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶ 13, 232 Wis. 2d 561, 605 N.W.2d 199. Questions of constitutional fact require a two-part review. First, we look to the historical and evidentiary facts as found by the trial court and review those findings under a clearly erroneous standard. State v. Hajicek, 2001 WI 3, ¶ 15, 240 Wis. 2d 349, 620 N.W.2d 781. Second, we independently review the trial court's determination of constitutional fact. Id. When a defendant seeks to withdraw a plea after sentencing, he or she must show by clear and convincing evidence that the withdrawal of the plea is necessary to correct a manifest injustice. State v. Schill, 93 Wis. 2d 361, 383, 286 N.W.2d 836 (1980).

¶ 13. We hold that Lopez fulfilled his plea withdrawal requirements by making a prima facie showing that the plea colloquy was inadequate and by alleging that he did not understand an element of the offense. We also hold that the circuit court improperly placed the burden of proof on Lopez. Where the defendant has shown a prima facie violation of Wis. Stat. § 971.08(l)(a) or other mandatory duties and alleges that he or she in fact did not know or understand the information which should have been provided at the plea hearing, the burden will then shift to the State to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered, despite the inadequacy of the record at the time of the plea's acceptance. Bangert, 131 Wis. 2d at 274.

¶ 14. The record demonstrates that the circuit court was clearly erroneous in finding that Lopez understood what he was pleading to. At the full plea hearing on October 14, 1999, the circuit court began by acknowledging that at the September 8, 1999 plea hearing, Lopez may not have understood what was being discussed concerning the charge and the rights he would be waiving.

It's my understanding that apparently the parties had had further discussions, that the interpreter who was last with Mr. Lopez had some communication problems and he may not have understood what was being discussed concerning the charge and the rights he'd be waiving and, therefore, we have a different interpreter. (Emphasis added.)

The circuit court then proceeded to conduct a plea colloquy, which ended with the acceptance of Lopez's plea.

¶ 15. At the plea withdrawal hearing on October 31, 2000, the circuit court admitted that during the full plea hearing on October 14, 1999, it had not explained the concepts of a sexual assault charge. The court did not find this an inadequacy because it said it had explained the elements and concepts at the attempted plea hearing on September 8, 1999, and thus relied on this exchange as evidence that the concepts were explained and understood.

¶ 16. However, at the September 8, 1999 hearing, the circuit court gave little, if any, credence to the attempted colloquy. Instead, it ended the colloquy and set a trial date. In so doing, the court told Lopez's attorney that it would also set a further proceeding date which could function as a plea hearing "if [Lopez] understands what they're saying he did, what he'd be acknowledging, etc."

¶ 17. We hold that the court's colloquy of September 8, 1999, cannot be relied upon by the court to show that it fulfilled its duty under Wis. Stat. § 971.08(l)(a). Even though the September 8, 1999 transcript shows that the circuit court mentioned the elements and some of the concepts, it does not show that the circuit court "determine[d]," as it is required to do under § 971.08(l)(a), that Lopez had an "understanding of the nature of the charge." Sec. 971.08(l)(a). In fact, after Lopez said "[t]hat, about those three charges, are not true," the circuit court seemed to determine the opposite. It stopped the colloquy and set the case for trial.

¶ 18. Moreover, at the full plea hearing on October 14,1999, the circuit court began by questioning the reliability of the September 8, 1999 hearing: "It's my understanding that apparently .. . [there were] some communication problems and [Lopez] may not have understood what was being discussed concerning the charge and the rights he'd be waiving." Nonetheless, at the withdrawal hearing, the court relied on the September 8, 1999 hearing as evidence of Lopez's understanding of the plea: "However, the Court did at the hearing on September 8, 1999 . . . discuss the concepts. . . The court cannot simultaneously acknowledge that at the September 8, 1999 hearing Lopez may have not understood the charge and the rights he would be waiving and then find that based on the September 8, 1999 hearing, he made a knowing and voluntary plea. It follows that we cannot rely on this part of the record to show that Lopez made a knowing and voluntary plea.

¶ 19. Nor can we rely upon the plea questionnaire to show that Lopez made a knowing and voluntary plea. The plea questionnaire is in Spanish and the record does not include an English translation. We cannot determine whether a defendant has made a knowing and voluntary waiver of rights from a record that does not provide an English translation of what was provided to the defendant. See State v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996). In Santiago, the issue was whether the State, in proving the sufficiency of Miranda warnings and a knowing and intelligent waiver of Miranda rights, must present evidence of the words spoken by a law enforcement officer advising a suspect of the Miranda rights in a language other than English and the translation of the words. Santiago, 206 Wis. 2d at 10. The court held that because the record did not contain an English translation of the Miranda warnings given to the defendant, the record provided an inadequate basis for any findings of the sufficiency of the Spanish-language Miranda warnings or the validity of the waiver. Santiago, 206 Wis. 2d at 12. We hold that under Santiago, the record provides an inadequate basis for any findings of sufficiency of the Spanish-language plea questionnaire or the validity of the no contest plea based on this questionnaire.

¶ 20. Given that Lopez made a prima facie showing that there was a violation of Wis. Stat. § 971.08(l)(a) by the circuit court, and given that Lopez alleged that he in fact did not know or understand the information which should have been provided at the plea hearing, the burden shifted to the State to show by clear and convincing evidence that Lopez's plea was knowingly, voluntarily, and intelligently entered. See Bangert, 131 Wis. 2d at 274. Therefore, the circuit court erred when it assigned to Lopez the burden of showing "by clear and convincing evidence" the grounds for withdrawal of his plea. We reverse the order and judgment of the circuit court.

¶ 21. Finally, we observe that in a March 12, 2001 summary reversal motion, the State argued that "[t]he trial court did not mention or consider the multi-part test for post-trial withdrawals of guilty pleas under [Bangert]." It also pointed out:

At no point during the October 31, 2000 postconviction motion hearing did the trial court consider or mention any evidence shown or adduced by the [S]tate on the issue of whether or not Lopez had entered into the plea in a knowing, intelligent and voluntary fashion, nor did the court make a ruling on whether, if the burden of proof had switched from the defendant to the [S]tate, the [S]tate had met its burden of proof.

We agree with the State that the record does not contain any affirmative evidence offered by it to show that Lopez's plea was voluntarily, knowingly, and intelligently entered.

¶ 22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea. State v. Nichelson, 220 Wis. 2d 214, 226, 582 N.W.2d 460 (Ct. App. 1998).

¶ 23. In Nichelson, as in the case before us, the defendant moved to withdraw his no contest plea following entry of the judgment of conviction on the charge of first-degree sexual assault of a child under the age of thirteen. Id. at 216. The trial court found that Nichelson made a prima facie showing that his plea was not voluntary and the burden shifted to the State. Id. at 221. The trial court stated that it "did not believe it could make an accurate determination [as to whether Nichelson's plea was voluntary] without hearing from Nichelson's trial attorneys." Id. at 226. As the hearing continued, it was decided by the trial court, and acquiesced to by the State, that Nichelson's attorneys would not testify. Id. at 228. Thereafter, the hearing on Nichelson's postconviction motions was reconvened and the trial court denied his motions. Id. On appeal, the State argued that if we concluded that it had not met its burden, the proper remedy was to remand the matter with directions to permit it to question Nichelson's attorneys. Id. The State argued that it was deprived of this evidence by the wrongful quashing of the subpoenas. Id. We disagreed and concluded that the State waived the right to claim this remedy because it acquiesced with the trial court's quashing of the subpoenas and made no efforts to introduce the testimony of Nichelson's trial attorneys. Id. at 229.

¶ 24. Nichelson is instructive even though we do not apply waiver to the case at hand. The State did not meet its burden in Nichelson, and the State has not met its burden here. At the plea withdrawal hearing, the State did not make any attempts to make a record fulfilling its burden. We do not remand for a hearing to give the State a second opportunity to make an affirmative showing that Lopez's plea was voluntarily entered because we conclude that under Nichelson, when the State has failed to meet its burden of proof in a plea withdrawal setting, it should not get a "second kick at the cat."

By the Court. — Judgment and order reversed and cause remanded with directions.

       Wisconsin Stat. § 948.02(1) provides:
      First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.
      Wisconsin Stat. § 948.01 provides the relevant definition:
      (5) "Sexual contact" means any of the following:
      (a) Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Lopez filed a motion and an amended motion. This appeal involves an issue raised in the amended motion.

       From our review of the record, it appears that Lopez had the assistance of a Spanish-English interpreter during all but one proceeding. That proceeding was a brief scheduling hearing.

       The transcript does not indicate where Lopez pointed, and we can only assume it was to the arms given the court's statement.

       Wisconsin Stat. § 971.08(1) (a) provides in relevant part that "[b]efore the court accepts a plea of guilty or no contest, it shall. .. [a]ddress the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted."

       The court said:
      [I]t is true that [at the] full plea .hearing, I should say, which was October 14, 1999, although the Court went through the essential elements of sexual assault, the Court at that time did not repeat or explain some of the concepts of sexual arousal or gratification, etc.
      However, the Court did at the hearing on September 8, 1999, which was cut short. .. discuss the concepts that — what the sexual contact would have to be, that it was for the purpose of arousal or gratification, and through the clothed or unclothed part.
      Although the defendant did not acknowledge at that point because he pointed out that the charges were not true, the Court did explain the concepts.

       The court said:
      I'm not going to try to do this.
      I wasn't even at what he was waiving at this point. I was telling him what they said he did and he's saying he didn't do anything. That won't even get us beyond the plea form.

       Specifically, the court acknowledged that the translator present at the September 8, 1999 hearing had communication problems and that Lopez therefore may not have understood what was discussed during that hearing. Under Wis. Stat. § 971.08(l)(a), the court has the duty to determine that the defendant understands the nature of the charge; this duty certainly encompasses the duty to ensure that a foreign language defendant is assisted by a competent translator.

       A defendant's ability to understand the rights being waived may be greater when he or she is given a written form to read in an unhurried atmosphere, as opposed to reliance upon oral colloquy. State v. Moederndorfer, 141 Wis. 2d 823, 828, 416 N.W.2d 627 (Ct. App. 1987). The trial court can accurately assess a defendant's understanding of what he or she has read by making a record that the defendant had sufficient time prior to the hearing to review the form, had an opportunity to discuss the form with counsel, had read each paragraph, and had understood each one. Id. On review, we too look to forms in the record in order to assist us in assessing a defendant's understanding. See id. at 827-28.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       Waiver is not applied because, unlike in State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), here the State is consistent and maintains the same position at the trial court level as it does on appeal: that Lopez did not meet his burden of proof.


author: BROWN, J.

text:
    Roger and Donna Anhalt, Floyd W. (dec'd) and Sharon J. Bartlett, James and Lynn Batzner, Larry J. and Lori A. Bubb, Anna Castellan, Johnand Libi Churchill, Richard and Kristine Cvetan, Allan J. and Linda K. Dekker, Ralph and Jill Dekker, Kevin S. and Gail M. Dickfoss, Mary Ann Dickfoss, Edwin L. and Joyce Fritz, Donald and Gloria Gerk, Ronald and Judy Glaeser, John and Patricia Green, Kevin and Andrea Haen, Herbert and Edna Heiden, James and Cathy Kehn, Eugene and Gail Kissinger, David and Bonnie Krom, Allan and Barbara Krueger, Karen Lardinois, Richard and Shirley Ledeboer, Peter J. and Mary E. Loewen, Mary Mannchen, Thomas R. and Madelyn Y. Mlada, Joan B. Pittner, Frank and Carol Race, Karl F. Riem, Marion Russell, Leroy and Sandy Seefeldt, Jeffrey A. and Jane H. Shea, Allen and Marsha L. Sherven, John and Carol Sneen, Scott and Julie Thomas, Raymond L. Uphoff, Michael E. and Jana L. Wagner, David and Kim Warden and Thomas W. and Kathryn E. Zummallen, Plaintiffs-Appellants, v. Cities and Villages Mutual Insurance Company and City of Sheboygan, Defendants-Respondents, General Casualty Insurance Company, Sentry Insurance Company, State Farm Insurance Company, Farmers Insurance Company, Allstate Insurance Company and Kemper Insurance Company, Defendants. Sharon L. Kunstman, n/k/a Sharon L. Romenesko, Donald, Marion and Lori Ladiges, James and Kathleen Saladino, J.C. and Julie Schultz, Patricia J. Swoboda and Douglas and Patricia Wrensch, Plaintiffs-Appellants, v. Cities and Villages Mutual Insurance Company and City of Sheboygan, Defendants-Respondents, Sentry Insurance Company, Safeco Insurance Company and Sheboygan Falls Mutual Insurance Company, Defendants. Ashton E. Wick, D.D.S as trustee and income beneficiary of the Ashton E. Wick Trust and Ashton E. Wick Trust, Plaintiffs-Appellants, v. Cities and Villages Mutual Insurance Company and City of Sheboygan, Defendants-Respondents, Principal Life Insurance Company, Defendant.
    Court of Appeals

      No. 00-3551.

      Oral Argument August 14, 2001.

    Decided October 24, 2001.

      2001 WI App 271
    (Also reported in 637 N.W.2d 422.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of and oral argument by Randall L. Nash of O'Neil, Cannon & Hollman, S.C. of Milwaukee.
    On behalf of the defendants-respondents Cities and Villages Mutual Insurance Company and City of She-boygan, the cause was submitted on the brief of Joseph J. Voelkner and James O. Conway of Olsen, Kloet, Gunderson & Conway of Sheboygan. There was oral argument by James O. Conway.

    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review filed.

   BROWN, J.

¶ 1. Eighty residents of the City of Sheboygan appeal from an order granting summary judgment to the City. The residents, representing forty-six properties, brought this action against the City after sustaining substantial damage of their homes and personal property due to flooding. The residents allege that the City is responsible for the flooding based on claims of: (1) negligence, (2)-private nuisance, (3) inverse condemnation, (4) waste, and (5) deprivation of property in violation of 42 U.S.C. § 1983 (2001). We conclude that summary judgment was proper as to all theories of liability and affirm.

¶ 2. The residents live in an area of Sheboygan served by the Second Creek storm sewer system. The City engineer's office designed the sewer system that was approved and implemented by the City of She-boygan in 1944.

¶ 3. Following abnormally heavy rainstorms in 1986, the City of Sheboygan authorized a study of the Second Creek sewer system by McMahon Associates, Inc. The McMahon Associates' report evaluated the system for conveying stormwater drainage under 5-year, 10-year, and 100-year return frequency rainfall events. The rains of 1986 were 100-year and in excess of 100-year return frequency events according to the McMahon report. Yet, the 1-year original design criteria were adequate to convey the runoff from a 2-year return frequency rainfall event. The report concluded that "[t]he current system can handle an event with a 2-year return frequency and perhaps slightly more but cannot handle a 5-year return frequency event.... This also helps explain why there is a chronic flooding problem." Extensions onto the Second Creek system continued to use the 1-year recurrence event criteria that was currently in use.

¶ 4. The City authorized a second study of the Second Creek system in 1988. This study, conducted by Donahue & Associates, utilized documentation from the McMahon report and made further recommendations to the City regarding the sewer system. In particular, it recommended implementing improvements for 100-year recurrence interval flood protection for the area served by the Second Creek system.

¶ 5. After these studies were completed, the City entered into easements with several of those residents being served by the Second Creek system. These easements granted the City the right "to construct, install, maintain, and repair a storm sewer . . . including constructing, changing, repairing, controlling and removing said storm sewer." In return for the granting of the easement, "[i]t is understood . . . that the [City of She-boygan] shall be responsible for any wrongful or negligent act or omission of the [City] or its agents or employees in the course of their employment."

¶ 6. The area served by the Second Creek system continued to be subject to flooding. On August 6,1998, there was an unusual and abnormally heavy rain in the City of Sheboygan. The destruction to personal and real property is well documented in the record. In some instances, the foundations of homes collapsed inward, with basement walls giving way causing the earth to slide into the basements. In one case, the home collapsed entirely.

¶ 7. The residents commenced this litigation following the August 1998 rain event. As we noted, the claims against the City include negligence, private nuisance, inverse condemnation, waste, and violation of 42 U.S.C. § 1983. The trial court ordered summary judgment in favor of the City on the grounds that the design and approval of the sewer system is a legislative function protected by governmental immunity.

Standard of Review

¶ 8. The review of a grant or denial of summary-judgment is de novo, using the same methodology as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (1999-2000). We will uphold a decision granting summary judgment unless the record reveals that one or more genuine issues of material fact are in dispute or the moving party is not entitled to judgment as a matter of law. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 30, 236 Wis. 2d 435, 613 N.W.2d 142.

1. Negligence

¶ 9. The thrust of the residents' negligence claims is that the City failed to design, construct, maintain and operate a storm sewer system with sufficient capacity to drain storm water. They also assert that the City was negligent in failing to follow the recommendations of their consultants who advised implementing a system to handle a 100-year storm event. In support, the residents offer the affidavit of an engineer, William Painter, who avers that had the City adhered to the recommendations made in the Donahue report, the homeowners would- not have suffered property damage as a result of the rainfall in 1998.

¶ 10. The City responds that even if these allegations are true, the City is immune from liability because the acts of designing, planning and implementing a sewer system are legislative acts protected under the doctrine of governmental immunity. The City further argues that, contrary to the assertion of the residents, the easements do not expressly waive governmental immunity.

¶ 11. The doctrine of governmental immunity is stated in Wis. Stat. § 893.80(4):

No suit may be brought against any [governmental entity] or any agency thereof for the intentional torts of its officers, officials, agents, or employees nor may any suit be brought against such [governmental entity] ... or against its officers, officials, agents, or employees for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions.

The terms legislative, quasi-legislative, judicial and quasi-judicial are collectively referred to as discretionary acts. Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 288, 531 N.W.2d 357 (Ct. App. 1995). Thus, a governmental body is immune from suit when the act complained of is discretionary as opposed to merely ministerial. The doctrine of immunity affords no protection for ministerial acts. Id. at 288-89.

¶ 12. We are persuaded by Allstate Insurance Co. v. Metropolitan Sewerage Commission of the County of Milwaukee, 80 Wis. 2d 10, 258 N.W.2d 148 (1977), that the acts of designing, planning and implementing a sewer system are discretionary acts protected under Wis. Stat. § 893.80(4). I xi Allstate, insurance companies sued governmental entities for contribution alleging negligent placement of a manhole in the sewer system. Allstate, 80 Wis. 2d at 13. The court held that the governmental entities had discretionary immunity, stating:

We conclude that the decisions of the Metropolitan Commission in planning and designing the system in question, including the placement of the manhole, were legislative acts.... Where, when and how to build sewer systems are legislative determinations imposed upon a governmental body. It is not for the court to be judge or jury to "second guess" them in these determinations nor to find they are liable for negligence.

Id. at 15-16 (footnotes omitted). We find this language to be dispositive and conclude that the City's decision to implement and maintain a sewer system with a capacity to handle only a 1-year storm event is protected by the doctrine of immunity. Furthermore, its refusal to adopt the plans recommended by its consultants is also a legislative determination that is immune from liability.

a. Waiver

¶ 13. The residents respond that easements drafted by the City in 1988 contain language that waives any governmental immunity with respect to the City's negligent implementation and maintenance of the Second Creek sewer system. The storm sewer easements provided the City with rights of access and in addition stated: "It is understood in the granting of this easement that the [City] shall be responsible for any wrongful or negligent act or omission of the [City] or its agents or employees in the course of their employment."

¶ 14. In Grall v. Bugher, 181 Wis. 2d 163, 511 N.W.2d 336 (Ct. App. 1993), rev'd on other grounds, 193 Wis. 2d 65, 532 N.W.2d 122 (1995), we observed that waiver of governmental immunity must be clear and express. "It is well established that the sovereign's immunity from suit can be waived only by express language: 'the state's consent to suit many not be implied: it must be clear and express.'" Id. at 172 (citation omitted). While that case was decided in the context of express legislative permission to sue, we apply its reasoning here. It is clear to us that the language in the easements contains no express waiver of immunity. Read in context, the plain language simply expresses the City's willingness to be liable for negligent acts occurring during the work allowed by the easements. It waives immunity, for example, with respect to the negligent trenching and laying of pipes, but not for the overall planning and design decisions of the sewer system. Certainly, the easements do not waive the discretion of the City to adopt recommendations of hired consultants. Because the residents do not allege any negligent acts with respect to the installation of the storm sewer pipes but only with respect to the original design and refusal to follow the consultants' advice, we conclude that this decision is protected by the City's immunity and is not waived by the easements.

¶ 15. Finally, the residents assert that municipal immunity attached to the planning and design of the sewer system should not persist in view of changed conditions that demonstrate a dangerous condition exists. Here, the residents contend that the City had notice of the undersized sewer system and did not correct the problem. We should conclude, according to the residents, that the plan that was reasonable at the time of construction became unreasonable over time and lost its immunity.

¶ 16. In Allstate, we questioned, without deciding, whether a municipality has a duty to review its legislative determination after notice that a dangerous condition exists. Allstate, 80 Wis. 2d at 16 n.5. Our review of Wisconsin case law has uncovered no precedent for the position that a municipality has a positive duty to keep its sewer system current with developing needs. As we have already noted, the conception of the original plan for designing and installing the sewer system was an exercise of official judgment. Whenever, thereafter, serious flooding began to appear, governmental judgment and discretion had to be exercised with respect to whether and how to remedy the situation. The rising cost of providing a remedy compared to other exigencies facing the City are fiscal determinations for responsible city officials to make. While the decision to refuse to implement a 100-year storm event system has become increasingly untenable, it is nonetheless an exercise of legislative judgment and discretion. The remedy for the residents, therefore, lies in their power to vote rather than in the judicial system.

b. Governmental Immunity for City Engineer

¶ 17. The residents submit that under Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 292 N.W.2d 816 (1980), an exception to governmental immunity exists when the conduct involves the performance of professional skills. Scarpaci involved a medical doctor's performance of an autopsy. The court held that immunity does not extend to medical decisions of medical personnel employed by a governmental body. Id. at 686-88. No case has yet extended the exception in Scarpaci to professionals outside the medical field. See Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 97-98, 596 N.W.2d 417 (1999). We are not inclined to apply the exception to the city engineer in this case. Whether or not he is a "professional" for purposes of the exception, he had no decision-making authority for the design and installation of the Second Creek sewer system. Absent the exercise of independent professional discretion, any acts of the city engineer involved governmental discretion and are protected by immunity.

2. Prívate Nuisance

¶ 18. The residents assert that the City created and maintained a private nuisance, an action that is not protected by governmental immunity. Nuisance is a material and unreasonable impairment of the right of enjoyment or the individual's right to the reasonable use of his or her property or the impairment of its value. Costas v. City of Fond du Lac, 24 Wis. 2d 409, 414, 129 N.W.2d 217 (1964). A nuisance may exist with or without negligence. Walley v. Patake, 271 Wis. 530, 541, 74 N.W.2d 130 (1956). The residents principally rely on Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), for the proposition that the maintenance and operation of a sewer system in a manner that causes damage to homeowners is a nuisance that does not fall within the immunity provisions of Wis. Stat. § 893.80(4). At this point, it is instructive to review the prominent cases that apply the law of nuisance to hold municipalities liable for damages resulting from the operation of sewage systems.

¶ 19. In Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668 (1901), the City installed a sewer system that emptied into a river flowing out of the City and past the plaintiffs farmhouse. As the volume of sewage increased, the stench caused great discomfort and illness. Id. at 104. Using language often quoted in more recent cases, the court reasoned that the "great weight of authority ... supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance, and that it matters not whether such nuisance results from negligence or from the plan adopted." Id. at 109.

¶ 20. More recently, in Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986), the City's sewer system collected rain water and then discharged it through ,a culvert onto Hillcrest's land. Id. at 434. Subsequent soil erosion prevented the use of the land as a golf course. We relied on Winchell to hold that Hillcrest's pleadings stated a claim in private nuisance because they alleged a unique injury depriving it of the reasonable use of its property. Hillcrest, 135 Wis. 2d at 441.

¶ 21. Menick involved facts similar to those presented here. After Menick's basement was twice flooded by the City's sewer system, she brought suit alleging private nuisance and inverse condemnation. Menick, 200 Wis. 2d at 741. We relied on Hillcrest in concluding that the City could not claim immunity against the assertion of private nuisance. Menick, 200 Wis. 2d at 745. Nevertheless, we affirmed summary judgment against her because she failed to meet the burden of proving that the flooding resulted from the negligence of the City. Id. at 748-49. In particular, she provided no expert testimony to advance her theory that the City's negligent acts caused the backup rather than unprecedented rainfall. Id. "While there is no dispute that the City's sewer system was the conduit for sewage to enter Menick's residence, that fact does not satisfy the requirement that the City's actions are the legal cause of the backup." Id. at 748.

¶ 22. In the case before us, the residents claim that they offer the evidence that was lacking in Menick. They offer affidavits to show the City was aware of chronic flooding problems, had hired consultants who recommended improvements to the . Second Creek system and then failed to implement those improvements. Notably, they offer Painter's expert opinion that the City's failure to follow recommendations made in the 1988 Donahue report caused property damage that could have been avoided.

¶ 23. For our purposes we will accept as true the proposition that the sewer system has for many years been inadequate to drain storm water and that damage to the residents' properties resulted from this inadequacy. Nevertheless, we determine based on our review of the case law that such inadequacy alone does not give rise to a cause of action in nuisance. This principle was clearly set forth in Bratonja v. City of Milwaukee, 3 Wis. 2d 120, 87 N.W.2d 775 (1958). In that case, business owners who experienced flooding after heavy rainfall alleged negligence and nuisance on the part of the City for failing to install and maintain adequate sewer facilities to carry away the water. Id. at 122. As in the case before us, in Bratonja the City had implemented improvements that apparently did not keep up with development in the area served by the sewer system. Id. at 121. The court pointed out that a municipality, in improving its streets, has the same right to obstruct or divert the existing flow of surface water that an individual has in improving his or her land. Id. at 123. It follows then, the court observed, that a "city is not obligated to build a sewer at all, or to build one large enough to carry away all the water in the street as a result of even ordinary rainfall." Id. The exception to this rule is where the City first collects surface water in the sewer, and thereafter by negligent construction or maintenance, allows it to escape onto adjacent land. Id. at 124. In other words, the City was not liable for damage resulting from surface water that had never entered the sewer.

¶ 24. We summarize the holding of Bratonja as follows: the City is under no obligation to collect the rainwater that may accumulate in the street, but if it takes possession of the water and assumes responsibility for it, the City may be liable in nuisance for subsequently discharging the water onto adjoining property. This principle endures in the case law. See Tiedeman v. Vill. of Middleton, 25 Wis. 2d 443, 452, 130 N.W.2d 783 (1964) ("[A] city may not collect water in a body and then cast it on the land in a large volume."). It also allows us to harmonize the results in Winchell and its progeny with our holding in the case before us.

¶ 25. In Winchell, the court upheld an action in nuisance where the City collected and channeled raw sewage directly into a stream that flowed past the plaintiffs farm. Winchell, 110 Wis. at 112. These facts clearly indicate Winchell was not about inadequate capacity but about collected water intentionally discharged in an unreasonable manner, thereby creating a nuisance. An injunction was upheld against the City even though the system was operating as designed and was not negligently constructed. Id. at 110. Therefore, Winchell falls within the exception explained in Bra-tonja. Similarly, Hillcrest involved the collection and discharge of water from the sewer onto the plaintiffs land. Hillcrest, 135 Wis. 2d at 434. This is another "collected water" case and falls within the exception.

¶ 26. Menick, unlike Hillcrest and Winchell, was a nuisance action grounded in negligence. Menick, 200 Wis. 2d at 747. The residents in this case also ground their claim of nuisance in negligence, asserting negligent operation and failure to maintain an adequate system. In order to prevail on this theory, they must show that the system itself failed due to negligence. The record demonstrates the opposite is true. The city engineer was on site during the unprecedented rainfall and confirmed that the sewer and the pumps were working. None of the expert testimony offered by the residents contradicts this evidence. As in Menick, we conclude that "[g]iven the undisputed facts, a jury could properly infer that the heavy rains alone resulted in an overload of the system." Id. at 749.

¶ 27. In the absence of negligence, a plaintiff could still allege nuisance by claiming an unreasonable activity that substantially interferes with the comfortable enjoyment of the life, health, or safety of the person. Wis JI — Civil 1920. To prevail in the context of this case, the residents would have to show that this is a "collected water" case: that the flood waters were diverted from the sewer system onto their private property. There is no evidence of this in the record. Instead, the affidavits show that most of the damage resulted from water collecting on the surface when it was unable to drain through the sewer system. Under these facts, a jury could not conclude that the municipality was operating the sewer system so as to create or maintain a nuisance. See Wis JI — Civil 1922.

3. Inverse Condemnation

¶ 28. The residents claim the City has taken their property without just compensation in violation of Wis. Stat. § 32.10 and related constitutional provisions. Inverse condemnation is the name commonly used to describe an action commenced by a property owner to recover for an alleged uncompensated taking by a public body. Hillcrest, 135 Wis. 2d at 435 n.1. Article I, section 13 of the Wisconsin Constitution reads, "[t]he property of no person shall be taken for public use without just compensation therefor." Furthermore, Wis. Stat. § 32.10 provides in part:

If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. . .. The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so.

¶ 29. To be a taking under Wis. Stat. § 32.10, the flooding must constitute an actual, permanent invasion of the land. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428 (1982), the United States Supreme Court observed:

[T]his Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion .... A taking has always been found only in the former situation.... [T]o be a taking, flooding must "constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property." (Citations omitted.)

¶ 30. Relying on this language in Loretto, we held in Menick, 200 Wis. 2d at 743, that where flooding subsides and waters recede, there was no permanent physical occupation of the plaintiffs land and no governmental taking. We find Menick controlling in this case. The residents counter that those plaintiffs whose homes were destroyed or who had a wall of their home collapse have suffered a taking distinguishable from the typical temporary flooding case. They assert that the permanent loss in value of real property is a taking. However, it is the character of the invasion, not the amount of damage resulting from it, that determines whether a taking has occurred. See United States v. Cress, 243 U.S. 316, 328 (1917). Mere damage is not compensable under article I, section 13 of the Wisconsin Constitution. Menick, 200 Wis. 2d at 744.

¶ 31. The residents contend that this case should be governed by Hillcrest, in which we found that the plaintiff stated a cause of action for inverse condemnation. In Hillcrest, the City implemented a sewer system which collected rain water that had previously evaporated or percolated harmlessly into the soil. Hillcrest, 135 Wis. 2d at 434. The collected water was then discharged through a culvert and onto Hillcrest's golf course. Id. Hillcrest alleged that the sewer system caused soil erosion rendering the land unfit for use as a golf course. Id. The residents assert that in this case, like Hillcrest, the sewer sytem led to flooding and soil erosion, which denied the owners' the beneficial use of their properties as residential homes. We determine that this case is factually more similar to Menick than Hillcrest. The key distinguishing fact in Hillcrest is that it was the City's operation of the sewer system, its act of discharging water it had collected onto Hillcrest's property, that constituted a physical occupation rising to the level of a taking. See Hillcrest, 135 Wis. 2d at 436 (noting municipality's actions denied landowner beneficial use of its land as a golf course). The residents point to no similar municipal action in this case that deprived them of the use of their homes. Because there was no actual discharge, as in Hillcrest, but overflow due to heavy rains, as in Menick, we conclude that the inverse condemnation claim must fail.

¶ 32. Finally, the residents claim that under Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983), even a temporary taking is compensable. In Zinn, a ruling from the Department of Natural Resources caused the title to a portion of the plaintiffs land to be transferred to the State. Id. at 421. Later, the DNR ruling was overturned. The court found that this legal restriction placed on the ownership of the property constituted a compensable taking. Id. at 426-27. However, in this case, the residents have made no showing that the City imposed a legally enforceable restriction that resulted in damage to their property. While the damage is substantial and undisputed, it was not occasioned by any legal restriction such as a zoning requirement or a condition attached to a pérmit. See Howell Plaza, Inc. v. State Highway Comm'n, 92 Wis. 2d 74, 88, 284 N.W.2d 887 (1979) ("A taking can occur absent physical invasion only where there is a legally imposed restriction upon the property's use.").

¶ 33. Therefore, whether the residents claim a permanent or temporary taking, they cannot prevail in the absence of any imposed legal restrictions or physical occupation by the City.

4. Waste

¶ 34. The residents claim that the City has committed waste to their property by virtue of the City's ownership and control over the sewer system.

¶ 35. Wisconsin law defines "waste" as "the unreasonable conduct by the owner of a possessory estate that results in physical damage to the real estate and substantial diminution in the value of the estates in which others have an interest." Pleasure Time, Inc. v. Kuss, 78 Wis. 2d 373, 381, 254 N.W.2d 463 (1977). Thus, a claim of waste rests on the opposing party having a possessory interest in the property. The residents contend that the City, as holder of the easements, has such a possessory interest. However, the residents cite to no case law in support of this position. Moreover, our review of legal authorities demands a contrary conclusion.

¶ 36. An easement is "[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose .... [A]n easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land." Black's Law Dictionary 527 (7th ed. 1999). Similarly, the Restatement clarifies that "[a]n easement creates a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Property: Servitudes § 1.2 (2000). Alternatively, the residents assert that whether the holder of an easement has a possessory interest is a mixed question of fact and law and therefore for a jury to decide. We conclude as a matter of law, however, that the limited right to maintain and construct a municipal sewer system is not equivalent to a possessory interest in property. Absent the possessory interest, the claim for waste fails.

5. Remedy Under 42 U.S.C. § 1983

¶ 37. Finally, the residents claim a violation of federal constitutional rights under 42 U.S.C. § 1983. A claim under this section has two components: a federal constitutional basis and an assertion of an inadequate state remedy. Menick, 200 Wis. 2d at 743. The residents' claim fails as to both components.

¶ 38. The constitutional basis for the residents' claim is a violation of their equal protection rights. They claim that using different design criteria for different areas in the City is "arbitrary and unreasonable, having no substantial relation to the public health, safety or general w'elfare." We reject this argument. The fact that the City implements different design standards in various parts of the City does not create any inference of an intent to discriminate or that it has acted irrationally. Moreover, the fact that some residents of the City experience no flooding while others experience chronic flooding does not raise an inference that the City provides unequal services to its residents.

¶ 39. In addition, the residents cannot reasonably claim a lack of state law remedies available to them. While we have determined that their state law claims lack merit, this cannot be construed as an absence of state law remedies. See id. at 743-44. Therefore, the residents' 42 U.S.C. § 1983 claim fails.

¶ 40. Based on the foregoing analysis, we affirm the order of the trial court granting summary judgment in favor of the City.

By the Court. — Order affirmed.

       The City continued to hire consultants to address the recurring flooding problems. In 1996, Rust Environment and Infrastructure examined the sewer system and concluded, "much of the city's storm sewer system is undersized." It also found that "there are numerous nuisance drainage problems through the city that need to [be] addressed over time." The report suggested requiring developers to build detention basins that "release the runoff from a 100-year storm at a 2-year runoff rate. This is an accepted practice for communities with existing flooding problems."
      In 1999, Earth Tech reviewed the Second Creek system and observed that it has a number of landlocked areas that do not have the capacity to handle large or intense rain events. Earth Tech recommended expanding the existing pond (by a factor of about six) and constructing a new storm sewer system that will collect storm water runoff from the landlocked areas. It suggested that ponds be designed to take the 100-year runoff rates and release it at a 10-year rate.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Even before enactment of Wis. Stat. § 893.80(4), case law indicates that governmental entities were immune from liability for implementing inadequate storm sewer systems. In Bratonja v. City of Milwaukee, 3 Wis. 2d 120, 87 N.W.2d 775 (1958), business owners alleged that the City was negligent for failing to install an adequate sewer "in the first place, and particularly its failure to supplement the sewer or increase its capacity after notice of its inadequacy." Id. at 122-23. Accepting such inadequacy as true, the court nonetheless affirmed dismissal of the suit, observing that "[s]uch inadequacy alone does not give rise to a cause of action in favor of persons whose property is flooded by excess water not carried away by the sewer." Id. at 123.

       Only thirty-four of the residents, representing nineteen of the properties involved in this action, were subject to the easements. The other residents claim to be third-party beneficiaries of the storm sewer easements based on the theory that they are members of the class that the parties intended to benefit. Because we conclude that the easement agreements pertain only to actual construction of the sewer and there is no evidence of negligent construction demonstrating breach of these agreements, their status as third-party beneficiaries is moot.
      In addition, the residents argue that "[n]o immunity ever existed to protect the City from liability for its breach of contract. When the claim against a city is based on contract there is no immunity." We doubt, based on our review of the record, that this issue was ever fully presented to the trial court. Nevertheless, our conclusion that there is no evidence that the agreements were breached renders this issue also moot.

       There appears to be a minority rule applied in some jurisdictions that a municipality may be liable if it fails to keep pace with increasing demands upon its sewer system. Barney's Furniture Warehouse of Newark, Inc. v. City of Newark, 303 A.2d 76, 82 (N.J. 1973). More frequently, however, it is held that a municipality will not be liable because of subsequent inadequacy occasioned by development and increased demands upon the sewer system. Id. While we express our approval of the majority view, we adhere to the principle that a municipality may be liable if the operation of the sewer system expels artificially collected sewage, whether sanitary, storm or both, into a homeowner's residence or onto his or her land. Id.; Bratonja, 3 Wis. 2d at 123-25.

       Nuisance and negligence are different kinds of torts. To constitute a nuisance, "the wrongfulness must have been in the acts themselves" whereas negligence is based on the "failure to use the requisite degree of care doing them." Bell v. Gray-Robinson Constr. Co., 265 Wis. 652, 657, 62 N.W.2d 390 (1954).

       The record indicates that the Second Creek sewer system has experienced flooding since 1963, at about which time residential expansion within the watershed exceeded the sewer system drainage area for which it was designed in 1944.