PUBLISHED OPINION
Case No.: 96-0186
†Petition to
review filed
Complete Title
of Case:
ROBERT J. PROBST
and ACCORD, INC.,
Plaintiffs-Appellants,†
v.
WINNEBAGO COUNTY,
WINNEBAGO COUNTY DEPARTMENT
OF COMMUNITY PROGRAMS,
THOMAS SAARI, KEITH LAUX,
JOHN PHILLIP and
PAUL STEVENSON,
Defendants-Respondents.
Submitted on Briefs: November 10, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: January 15, 1997
Opinion Filed: January
15, 1997
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: THOMAS S. WILLIAMS
so indicate)
JUDGES: Snyder, P.J., Brown and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Mark A. Kent of Law Offices of Mark A.
Kent of Wauwatosa.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of John E. Thiel of Godfrey & Kahn, S.C.
of Appleton.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
15, 1997 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0186
STATE OF WISCONSIN IN
COURT OF APPEALS
ROBERT
J. PROBST
and
ACCORD, INC.,
Plaintiffs-Appellants,
v.
WINNEBAGO
COUNTY,
WINNEBAGO
COUNTY DEPARTMENT
OF
COMMUNITY PROGRAMS,
THOMAS
SAARI, KEITH LAUX,
JOHN
PHILLIP and
PAUL
STEVENSON,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Winnebago County: THOMAS S. WILLIAMS, Judge. Affirmed.
Before
Snyder, P.J., Brown and Anderson, JJ.
SNYDER,
P.J. Robert J. Probst is the
president and a shareholder in Accord, Inc., a certified alcohol and drug
counseling facility. Accord is listed
as a Winnebago county alcohol and drug treatment provider, and as such is in a
position to be chosen as a provider for convicted drunk drivers who are ordered
to undergo alcohol assessment. On
August 1, 1994, Probst and Accord filed a summons and complaint in the circuit
court for Winnebago county. The
complaint listed the respondents (collectively, the County) and alleged, inter
alia, that “[t]he acts and conduct [of respondents] ... constitute intentional
interference with prospective contract rights, prima facie tort, negligence and
further violate Chapter 133.03 and 134.01 Wis. Stats.” Probst and Accord had previously filed an
action naming the same defendants[1]
in federal district court alleging a due process violation pursuant to 42
U.S.C. § 1983. That claim was
dismissed.
The
County sought to have the circuit court action dismissed on the grounds that
Probst had failed to comply with the requirements of § 893.80, Stats., 1993‑94, the notice of
claim statute.[2] The circuit court ruled in favor of the
County, concluding that no notice of claim had been filed pursuant to §
893.80(1) and that this failure required dismissal of the action. We agree and consequently affirm.
The
initial complaint filed against the County was filed on July 23, 1993, in
federal district court. That complaint
alleged damages attributed to due process violations under 42 U.S.C.
§ 1983. The County filed a motion
for summary judgment, which was granted by the federal court; a judgment of
dismissal was entered on June 17, 1994.
Probst
then filed a complaint in circuit court.
The factual allegations of that complaint included the contention that
the County refused to allow clients to independently choose a treatment
provider, systematically referred clients to other providers and, as a result,
Probst and Accord “have experienced substantial financial loss in lost fees
which would have resulted from providing [our] treatment services to clients
....” The complaint further alleged
that these actions were in violation of Wis.
Adm. Code § HSS 62.07[3]
and that the practices complained of were “consistent with the customary
practice of the Winnebago County Department of Community Programs and [were]
known to and ratified by Defendants ....”
The
County responded to the circuit court action with a motion to dismiss, alleging
that Probst had failed to comply with the notice of claim requirements of §
893.80, Stats. The circuit court found that § 893.80
“unambiguously prohibits commencement as well as maintenance of an action
unless ‘[a] claim containing the address of the claimant and an itemized
statement of the relief sought is presented to the appropriate clerk ... for the
... subdivision or agency and the claim is disallowed.’” After finding that there had been no notice
of claim filed, the court ordered summary judgment in favor of the County. This appeal followed.
Probst
now renews his contention that the original action filed in federal district
court satisfied the notice requirements of § 893.80, Stats., and therefore the circuit court erred in dismissing
this action. Resolution of this issue
requires an examination of the notice of claim statute and thus presents a
question of statutory interpretation. A
matter of statutory construction is a question of law which we review de
novo. See Gonzalez v.
Teskey, 160 Wis.2d 1, 7-8, 465 N.W.2d 525, 528 (Ct. App. 1990). Furthermore, the application of a statute to
undisputed facts is a question of law, also subject to de novo review. See id.
Section
893.80, Stats., provides that an
action cannot be brought or maintained against a governmental body unless two
requirements are met: service upon the
governmental unit of written notice of the circumstances of the claim, see
§ 893.80(1)(a), and submission of a subsequent claim to the appropriate clerk,
containing the claimant's address and an itemized statement of relief sought, see
§ 893.80(1)(b).[4] Upon receipt of the claim, the governmental
body has 120 days in which to accept or disallow the claim. See id.
The
supreme court noted in DNR v. City of Waukesha, 184 Wis.2d 178,
198, 515 N.W.2d 888, 895 (1994), that “[t]wo basic principles guide this
court's determination of whether a notice of claim is sufficient under sec.
893.80(1)(b), Stats.” Those principles
are: (1) that the written claim must be
definite enough to provide the municipality with the information necessary to
decide whether to settle the claim and furnish it with sufficient information
so that it can budget accordingly for either a settlement or litigation; and
(2) that notices of claim should be construed so as to preserve bona fide
claims. See id.
(citing Figgs v. City of Milwaukee, 121 Wis.2d 44, 357 N.W.2d 548
(1984)). In furtherance of this second
principle, only substantial, not strict, compliance with the notice statute is
required. See Figgs,
121 Wis.2d at 55, 357 N.W.2d at 554.
The
issue here presented is whether the filing of the federal district court action
complied with the mandates of § 893.80(1)(b), Stats.[5] Probst claims that he has met the notice of
claim requirements because “[t]he prior Federal District Court action satisfied
th[ose] requirements ....” He submits
that the complaint filed in federal court “contained the address of the
Claimant, an itemized statement of the relief sought, was presented to the
Clerk for Winnebago County, as well as, all other Defendants and was denied in
an answer and Motion to Dismiss filed by the Defendants, all before the
commencement of the action in Winnebago County.” He reasons that the County's motion to dismiss the federal
lawsuit operated as a disallowance of his present state law claim. We are unpersuaded by Probst's argument.
The
federal claim was a due process claim in which Probst alleged that the actions
of the County and certain County employees violated his constitutional
rights. He specifically alleged that by
“intentionally and systematically ... referring the clients to treatment
programs other than the Plaintiff[s']” and “refusing to allow clients to
independently choose [a] treatment provider,” the County violated his right to
due process. This was the only
substantive claim in the federal lawsuit.
State law claims were generically mentioned in a single sentence: “The acts and conduct hereinbefore alleged
constitute abuse of process, prima facie tort, intentional tort and negligence
under the laws of the State of Wisconsin.”
The complaint does not outline with particularity any cognizable state
law claims.
Furthermore,
the filing of the federal lawsuit did not “‘afford[] the municipality an
opportunity to compromise and settle [the] claim.’” See Figgs, 121 Wis.2d at 53, 357 N.W.2d at
553 (quoted source omitted). It gave
the County no notice which would allow it to determine the strength of Probst's
suit and thereby decide whether to settle or litigate. Additionally, there is no intrinsic reason
to assume that should the federal lawsuit fail, a state law claim would
necessarily be pursued. Even under the
substantial compliance standard, the filing of a federal lawsuit is not
adequate to meet Wisconsin's notice of claim requirements. We conclude that Probst's reliance on the
federal lawsuit as providing notice to the County of a state law claim is
unfounded.
Probst
also argues that dismissal of the action is not appropriate because “[w]hile
the statute clearly reads that the various claims must be filed and disallowed
prior to the lawsuit being commenced, common sense, judicial economy, and the
efficient administration of justice require that this action not be dismissed
so that an identical, new action be filed subsequent to the dismissal.” He then goes on to suggest that this issue
has not been addressed by any Wisconsin court and directs us to two Eleventh
Circuit cases which apply a Florida notice of claim statute. See Hattaway v. McMillian,
903 F.2d 1440 (11th Cir. 1990); Fitzgerald v. McDaniel, 833 F.2d
1516 (11th Cir. 1987).
Setting
Probst's authority aside, we conclude that this issue is controlled by Schwartz
v. City of Milwaukee, 43 Wis.2d 119, 128, 168 N.W.2d 107, 111
(1969). There the supreme court
clarified, “[I]f the claim has not been filed and rejected at the time the issue
is raised in the suit, which is commenced before the filing and rejection of
the claim, the action shall be dismissed.” (Emphasis added.) Therefore, the circuit court's dismissal was
proper.[6]
In
sum, we conclude that to allow the filing of a federal lawsuit to satisfy the
notice of claim requirements under state law ignores the essence of
§ 893.80, Stats. Probst's action failed to comply with the
very plain language of § 893.80(1)(b) in that the action was commenced
before complying with the notice of claim requirements. This failure required the circuit court to
dismiss the action and we affirm that dismissal.
By
the Court.—Order affirmed.
[2] This section was
amended by 1995-96 Wis. Act 158, §§ 17 and 18, effective April 4, 1996. The substantive changes are not pertinent to
our analysis of the issue presented and do not affect the holding of the
case: that the filing of an action in
federal court does not satisfy the notice of claim requirements under state
law. All references to § 893.80, Stats., however, incorporate the
wording of § 893.80, Stats.,
1993-94.
[4] The pertinent
language of § 893.80(1), Stats.,
1993‑94, provides:
(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 and on the officer,
official, agent or employe .... 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
(b) A claim containing the
address of the claimant and an itemized statement of the relief sought is
presented to the appropriate clerk or person who performs the duties of a clerk
... and the claim is disallowed.
[5] Because of its
conclusion that the action failed to comply with the notice of claim
requirements outlined in § 893.80(1)(b), Stats.,
the trial court concluded that it was not necessary to consider the question of
whether the action complied with § 893.80(1)(a). This subparagraph requires the giving of written notice
concerning the circumstances of the claim within 120 days after the event which
gives rise to the claim. Because this
claim alleges an ongoing pattern of discriminatory actions on the part of the
County, we concur with the trial court that an analysis of whether the County
was given written notice or had constructive notice of the instant action is
unnecessary.
[6] We also note
that the dismissal of this action for failing to comply with the notice of
claim statute will not prejudice Probst.
He can simply furnish the County with a proper notice of claim, wait the
requisite 120 days while the County decides whether to settle or disallow the
claim, and if it is disallowed proceed with an action. This will also further the objective of the
notice of claim statute that the governmental entity be given an opportunity to
investigate the claim and choose a course of action, in some cases avoiding
costly litigation. See Figgs
v. City of Milwaukee, 121 Wis.2d 44, 54, 357 N.W.2d 548, 554 (1984).