COURT OF APPEALS

DECISION

DATED AND FILED

 

May 12, 2010

 

David R. Schanker

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2009AP2840-FT

Cir. Ct. No.� 2009CV2748

STATE OF WISCONSIN���

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

In the matter of the Refusal of Bryan W. Fricano:

 

Village of Butler,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Bryan W. Fricano,

 

��������� Defendant-Appellant.

 

 

 

 

 

����������� APPEAL from an order of the circuit court for Waukesha County:� RICHARD CONGDON, Judge.� Dismissed.�

�1������� SNYDER, J.[1]�� Bryan W. Fricano appeals from an order denying his motion to reopen an implied consent adjudication stemming from a September 2008 traffic stop.� Fricano contends that his attorney�s failure to timely request a refusal hearing should not have been imputed to him.� He further contends that the circuit court should have reopened the implied consent hearings based on excusable neglect under Wis. Stat. � 806.07(1)(a).� Because the circuit court did not have competency to hear the matter, we dismiss this appeal.

�2������� Fricano was stopped and cited by the Waukesha County Sheriff�s Department for operating a motor vehicle while intoxicated (OWI) on July 13, 2008.� He hired attorney Ryan Harrington to represent him in the matter. �On September 3, 2008, Fricano received a citation for OWI from the Village of Butler Police Department.� Because Fricano refused to submit to an evidentiary chemical blood test as required by Wisconsin�s implied consent law, see Wis. Stat. � 343.305(2), he was issued a notice of intent to revoke his operating privilege.� The notice informs the recipient of the right to request a hearing on the revocation within ten days. �See � 343.305(9)(a)4. �Fricano sought legal representation from Harrington again. �No request for a refusal hearing was made.

�3������� Approximately one month later, Fricano received a notice from the Wisconsin Department of Motor Vehicles informing him that his license was revoked.� Fricano sought to reopen the refusal matter in the Village of Butler municipal court.� That court denied his motion, holding that the court had no power to grant the motion.� It stated in relevant part:

In order to reopen a judgment, there must be, in fact, a judgment to reopen�. �The court�s material involvement was sending to the DMV a notification that the defendant did not request a hearing to challenge the reasonableness of the refusal.� Since the court has not entered a Judgment in this matter, there is no Judgment to reopen.

�4������� Fricano appealed from the municipal court order, seeking de novo review in the circuit court.� At the circuit court hearing, Harrington testified that Fricano had come to him for representation on two separate OWI matters. �He explained that on September 9, 2008, Fricano had come to his office with the September 3 OWI citation.� Harrington stated that Fricano did not tell him about the refusal and did not provide a copy of the notice of intent to revoke that Fricano received when he refused to submit to the blood test.� He explained that it is his normal practice to discuss the details of the arrest with a client and, although he had no specific recollection of the conversation with Fricano, he stated that �I�m sure it would have been typical practice for me to do so, certainly.�� He also stated that Fricano did not provide a copy of the informing the accused form that Fricano received during the arrest.� Harrington asserted that if he would have received a copy of the form, it would have indicated to him that there was a potential refusal issue related to Fricano�s September 2008 OWI.

�5������� Fricano also testified at the hearing.� He stated that when he sought representation on the second OWI, he brought three papers:� the OWI citation, the informing the accused form indicating Fricano had refused the blood test, and the notice of intent to revoke his operating privileges.� He confirmed that he and Harrington discussed the facts surrounding the arrest.� Fricano testified that he told Harrington he had declined to submit to the evidentiary chemical test of his blood.� On cross-examination, Fricano conceded that he did not read the notice of intent to revoke before he gave it to Harrington. �Once the time for the refusal hearing request had passed, and Fricano�s driving privileges were revoked, his July 2008 OWI matter was revised to a second offense, which is a criminal prosecution.

�6������� The circuit court found that Harrington had �dropped the ball,� but that Fricano �was not totally without blame� because he had sufficient notice that his operating privileges would be revoked after a refusal, and he received notice of the time limit for a hearing.� The court determined that the facts did not rise to the level of excusable neglect, but resolved the motion in its entirety on jurisdictional grounds. �The court cited Achtor v. Pewaukee Lake Sanitary District, 88 Wis. 2d 658, 277 N.W.2d 778 (1979),[2] for the proposition that failure to bring an action within a prescribed time period deprives the court of subject matter jurisdiction.� Because Fricano failed to meet the ten-day time limit to request a hearing, the court dismissed the motion for lack of subject matter jurisdiction.

�7������� We agree that dismissal was appropriate, but we employ a different analysis.� The question here is one of competency rather than jurisdiction.� The circuit court has jurisdiction to hear matters concerning implied consent. �See Wis. Stat. � 343.305(9)(a)4. (court hearing on the refusal revocation is available).� However, when the statutory time limit is not met, the question becomes whether the court has competency to proceed in this particular case.�

�8������� Whether a court has lost competence to proceed presents a question of law that we review de novo.� Village of Trempealeau v. Mikrut, 2004 WI 79, �7, 273 Wis. 2d 76, 681 N.W.2d 190.� Competency is not the same as subject matter jurisdiction.� Id., �9.� Wisconsin Const. article VII section 8 provides that: �[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state.� �Accordingly, in Wisconsin, �no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.� �Trempealeau, 273 Wis. 2d 76, �8.

�9������� In contrast, a court�s competence refers to the ability of a court �to adjudicate the particular case before [it].�� Id., �9.� Courts have routinely held that the failure of a party to act within a statutorily mandated time limit results in the court�s loss of competence to hear the specific case before it.� See e.g. Green County DHS v. H.N., 162 Wis. 2d 635, 656, 469 N.W.2d 845 (1991); see also Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 706, 495 N.W.2d 660 (1993).� In other words, failure to abide by statutory time limits does not deprive a court of subject matter jurisdiction, which is its ability to decide the type of controversy presented.� However, such failure prevents the court from adjudicating the specific case before it.� See Green County, 162 Wis. 2d at 656.� As our supreme court has stated, �[W]e have consistently ruled that a court�s loss of power due to the failure to act within statutory time periods cannot be stipulated to nor waived.�� Id. at 657.

�10����� Fricano does not dispute that he failed to request a hearing within the ten-day time limit set by statute.� As a result of his failure to meet the statutory deadline, the circuit court lost competency to proceed.� Accordingly, the court properly dismissed the motion to re-open the refusal revocation proceedings.� On grounds of competency rather than jurisdiction, we dismiss the appeal.

�����������

 

����������� By the Court.�Appeal dismissed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

�����������������������

 

 

 

 

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2007-08).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2]  �A court not only has the power to dismiss when it becomes aware of its lack of subject-matter jurisdiction but has the duty sua sponte to do so.�� Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis. 2d 658, 664, 277 N.W.2d 778 (1979).