COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
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. 96-0959
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STEVEN
B. SKREDE, PAMELA SKREDE and
WAUSAU
UNDERWRITERS INSURANCE COMPANY,
Plaintiffs-Respondents,
v.
JOHN
B. SPEARS, COUNTY OF VERNON and
WISCONSIN
COUNTY MUTUAL INSURANCE CORPORATION,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Vernon County: MICHAEL J. ROSBOROUGH,
Judge. Reversed and cause remanded
with directions.
Before
Eich, C.J., Dykman, P.J., and Vergeront, J.
EICH,
C.J. Steven B. Skrede, a volunteer
town firefighter, was seriously injured when the fire truck in which he was
riding as a passenger collided with a squad car driven by Vernon County Deputy
Sheriff John B. Spears, while the two vehicles were responding to the same
emergency call. Skrede and his wife[1]
sued Spears, Vernon County and its insurer[2]
for his injuries.
At
the close of the Skredes' case, the County moved to dismiss for their failure
to comply with § 893.80(1), Stats.,
which conditions suits against municipalities on prior service of notice and
presentation (and denial) of a claim.[3]
(R.27:134-38). The trial court denied
the motion and the trial proceeded. The
court found the driver of the fire truck to be ninety-five percent negligent
and Spears to be five percent negligent.
Judgment was entered in favor of the Skredes in the amount of
$276,224.19 and the County appealed, renewing its argument that the Skredes
failed to satisfy the notice requirements of § 893.80(1)(a), Stats.
We agree, and we consider that to be the dispositive issue in the case.[4]
The
question is one of law, involving the application of statutory provisions to a
particular set of facts. We thus review the trial court's decision de
novo. Cary v. City of Madison,
203 Wis.2d 261, 264, 551 N.W.2d 596, 597 (Ct. App. 1996).
The
Skredes, conceding that they did not serve written notice of the circumstances
of their claim under § 893.80(1)(a), Stats.,
argue first that subsection (1)(a) has no application to their claim. They maintain that because the claim arose
out of an accident involving a municipal motor vehicle, the notice issue is
governed by § 345.05, Stats.[5]
We
conclude that the Skredes waived any argument that § 893.80(1)(a), Stats., does not apply to this
case. First, as the County points out,
the Skredes never raised this issue in the trial court. We generally do not consider arguments
raised for the first time on appeal, Evjen v. Evjen, 171 Wis.2d
677, 688, 492 N.W.2d 361, 365 (Ct. App. 1992), and the Skredes have not
persuaded us that we should depart from that rule in this case.[6]
Our
conclusion in this regard is bolstered by the fact that the Skredes, in arguing
that § 893.80(1)(a) is inapplicable, have taken a position directly
contrary to the one they advanced in the trial court. When the County raised the notice issue in its motion to dismiss
the complaint, the Skredes argued at length that the motion should be denied
because the County, as a result of its investigation of the accident, had actual
notice of the Skredes' claim and the underlying facts within the meaning of
subsection (1)(a). After noting that it
was a "close case," the trial court agreed with the Skredes and
denied the County's motion.
On
this record, we believe the Skredes are judicially estopped from now arguing
that § 893.80(1)(a), Stats.—the
statute they relied on below—is inapplicable.
Judicial estoppel is an equitable doctrine that "precludes a party
from asserting a position in a legal proceeding that is inconsistent with a
position previously asserted." Coconate
v. Schwanz, 165 Wis.2d 226, 231, 477 N.W.2d 74, 75 (Ct. App.
1991). It is based on the proposition
that "`"[i]t is contrary to fundamental principles of justice ... to permit
a party to assume a certain position in the course of litigation which may be
advantageous, and then after the court sustains the position, argue on appeal
that the action was error."'"
State v. Petty, 201 Wis.2d 337, 345-46, 548 N.W.2d 817,
820 (1996) (quoted sources omitted).[7]
Because
the facts at issue are the same here as they were in the trial court, and
because the Skredes' position on appeal is plainly inconsistent with their
earlier position—which they convinced the trial court to adopt—judicial
estoppel is appropriately applied to their argument that § 345.05, Stats., is the controlling statute.
We
thus consider the merits of the County's argument that the record is
insufficient to support a determination that it had actual notice of the circumstances
of the Skredes' claim within the meaning of § 893.80(1)(a), Stats.
As we noted above, the Skredes argued—and the trial court agreed—that
the County must be held to actual notice as the result of its investigation of
the accident.
We
disagree. We believe the issue is
controlled by Felder v. Casey, 139 Wis.2d 614, 408 N.W.2d 19
(1987), rev'd on other grounds, 487 U.S. 131 (1988), where the Wisconsin
Supreme Court held that a municipality's investigation into a charge of police
brutality did not constitute actual notice of the injured party's claim under
§ 893.80(1)(a), Stats. The plaintiff in Felder,
having failed to serve the required notice, argued that his lawsuit should
nonetheless be permitted to continue because the city had actual notice within
the meaning of subsection (1)(a) as a result of its investigation of the
incident. Id. at 628-29,
408 N.W.2d at 25-26. The court
acknowledged the thoroughness of the investigation—which included several
police reports prepared at the scene and extensive knowledge of the details of
the incident by police, city officials and members of the city council—but
rejected the argument. It noted that
"[d]ocuments which have been held to constitute adequate notice have
usually, at a minimum, recited the facts giving rise to the injury and have
indicated an intent on the plaintiffs' part to hold the city responsible for
any damages resulting from the injury."
Id. at 630, 408 N.W.2d at 26.
We
think the same considerations apply here.
We therefore reverse the judgment and remand to the trial court with
directions to enter judgment dismissing the Skredes' complaint.
By
the Court.—Judgment reversed
and cause remanded with directions.
Not
recommended for publication in the official reports.
[1] Pamela Skrede brought a derivative claim for
loss of consortium based on her husband's injuries. Of the amount the court awarded, $25,000 represented her claim.
[2] In discussing the parties' arguments, we
refer to the appellants collectively as the "County" as their
positions are complementary.
[3] Section 893.80(1), Stats., provides, in relevant part:
[N]o action may be brought or maintained against any ...
governmental subdivision ... []or against any ... employe[e] of the ...
subdivision ... for acts done in their official capacity or in the course of
their ... employment upon a claim or a cause of action unless:
(a) Within 120 days after the happening of the
event giving rise to the claim, written notice of the circumstances of the
claim signed by the party, agent or attorney is served on the ... government
subdivision ... and on the ... employe[e] ....
Failure to give the requisite notice shall not bar action on the claim
if the ... subdivision ... had actual notice of the claim and the claimant
shows to the satisfaction of the court that the delay or failure to give the
requisite notice has not been prejudicial to the ... subdivision ... or to the
... employe[e]; and
(b) A claim containing the address of the
claimant and an itemized statement of the relief sought is presented to the
appropriate clerk ... for the defendant ... subdivision ... and the claim is
disallowed.
[4] The County also argues the Skredes failed to
"present[]" a claim to the county clerk as required by
§ 893.80(1)(b), Stats. Responding, the Skredes assert that they
complied with subsection (1)(b) and that their claim was eventually disallowed,
although the parties do not refer us to any portion of the record where such a
document or documents may be found.
Moreover, neither the County nor the Skredes ever argued subsection
(1)(b) to the trial court; their arguments were limited to the requirements of
subsection (1)(a), concerning notice of the circumstances of the claim. We thus do not consider any subsection
(1)(b) issue to be properly before us. See
Wengerd v. Rinehart, 114 Wis.2d 575, 580, 338 N.W.2d 861, 865
(Ct. App. 1983), where we recognized the "firmly established standard of
judicial review" that "an appellate court will not examine
contentions raised for the first time on appeal."
[5] Section 345.05, Stats., provides in part:
(2) A person
suffering any damage proximately resulting from the negligent operation of a
motor vehicle owned and operated by a municipality, which damage was occasioned
by the operation of the motor vehicle in the course of its business, may file a
claim for damages against the municipality concerned and the governing body
thereof may allow, compromise, settle and pay the claim.
(3) A claim under this section shall be filed in
the manner, form and place specified in s. 893.80....
[6] The Skredes' argument that any notice
requirement is governed solely by § 345.05, Stats., is based on our statement in Gonzales v. Teskey,
160 Wis.2d 1, 6, 465 N.W.2d 525, 527 (Ct. App. 1990), that "when damage
results from the negligent operation of a municipally owned or operated motor
vehicle, sec. 345.05, Stats.—not sec. 893.80, Stats.—applies. Section 345.05(2) requires a notice of claim
but unlike sec. 893.80(1)(b) does not require a notice of injury."
The statement in Gonzales was
unnecessary to our decision in that case—the only "statutory" issue
was whether failure to file a claim under § 345.05, Stats., precluded action against the
employee, as opposed to the municipality itself, Gonzales, 160
Wis.2d at 10-12, 465 N.W.2d at 529-30—and was thus dictum. See American Family Mut. Ins.
Co. v. Shannon, 120 Wis.2d 560, 565, 356 N.W.2d 175, 178 (1984). Indeed, the statement was made in the course
of a general discussion of the overall statutory scheme under which injured
persons may make claims against, and eventually sue, municipalities and/or
their employees. Gonzales,
160 Wis.2d at 6, 465 N.W.2d at 527.
And, as we went on to state in the same paragraph—and as the Skredes
concede—a claim arising under § 345.05(2) still "must be filed in
accordance with the requirements of § 893.80." Id.
Beyond
that, our statement in Gonzales was based on an older case, Rabe
v. Outgamie County, 72 Wis.2d 492, 241 N.W.2d 498 (1976), where the
supreme court noted that § 345.05, Stats.—as
it then existed—did not require notice of injury but only the filing of a
claim. Id. at 497, 241
N.W.2d at 431. At the time Rabe
was decided, however, § 345.05, Stats.,
did not expressly refer to § 893.80, Stats.—as
it does today—for the manner, form, and place for filing claims. See § 345.05, Stats. (1975-76). Nor does the current statute, in its
reference to § 893.80, distinguish between the notice requirements of
subsection (1)(a) and the claim-filing requirements of subsection (1)(b). If the legislature had intended to eliminate
the subsection (1)(a) notice requirements in cases involving municipal vehicle
accidents, it could have limited the cross-reference to § 893.80
accordingly.
[7] As Petty suggests, the rule
seems to have particular force where a party takes one position in the trial
court and another on appeal, presumably because the alleged error may not have
occurred had the party not argued for it in the trial court. See State v. Gove, 148
Wis.2d 936, 944, 437 N.W.2d 218, 221 (1989).
This is because, as indicated above, it is considered contrary to
fundamental principles of justice and orderly procedure to allow a party to
affirmatively contribute to court error, and then attempt to take advantage of
it. Id.