|
COURT OF
APPEALS DECISION DATED AND
RELEASED December
12, 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. 96-1827
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
JANE
PECKHAM,
Plaintiff-Appellant,
v.
COURTNEY
SPITZ,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: MARK A. FRANKEL, Judge. Affirmed.
DEININGER,
J.[1] Jane
Peckham appeals from an order dismissing her small claims action against her
former parole officer, Courtney Spitz.
The trial court granted summary judgment to Spitz for Peckham's failure
to comply with § 893.82, Stats.[2] Peckham contends on appeal that because
Spitz was not acting in her capacity as a state employee when the claim arose,
§ 893.82 does not apply.
Alternatively, Peckham argues that the State denied her access to funds
she needed in order to send her notice of claim by certified mail, and thus
Spitz should be precluded from raising noncompliance with § 893.82.
We
conclude that the trial court was correct in dismissing Peckham's claim because
she did not establish compliance with § 893.82, Stats., and further because her cause of action is barred on
public policy grounds. Accordingly, we
affirm.
BACKGROUND
Peckham
filed a small claims summons and complaint alleging that Spitz "accepted
$2,000 from [Peckham] and ... failed to return the money or provide the
services as agreed upon ...."
Spitz moved for summary judgment, claiming that Peckham had failed to
comply with § 893.82(3), Stats. The motion was supported by the affidavit of
a paralegal in the Department of Justice, whose duty it is to receive and
record notices of claim under the statute, stating that no notice had been
received from Peckham on this claim.
Peckham responded with a brief and various "exhibits" which
make clear that the basis of her suit is to obtain $2,000 which she allegedly
paid to Spitz as a bribe to avoid parole revocation proceedings. Peckham claimed to have attempted to file a
notice of claim form from the Dane County jail but was taken to prison before
verifying that it was sent.
A
court commissioner granted the summary judgment motion, and Peckham sought a
trial de novo under § 799.207(3), Stats. Spitz then renewed her summary judgment
motion. Peckham countered with a brief
and numerous additional exhibits purporting to show that a proper notice
specifying the $2,000 claim against Spitz had been mailed from the Dane County
jail, and further that a prison official at Taycheedah Correctional
Institution, where Peckham was later incarcerated, had thwarted her efforts to
obtain funds for certified mailing.
Spitz filed affidavits averring that some of Peckham's documents bore
forged signatures.
The
circuit court concluded that Peckham had provided "no admissible evidence
of compliance with [§ 893.82, Stats.,]"
and granted summary judgment to Spitz dismissing the action.
ANALYSIS
We
review summary judgment de novo, applying the same standard as the trial
court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). 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. Germanotta
v. National Indem. Co., 119 Wis.2d 293, 296, 349 N.W.2d 733, 735 (Ct.
App. 1984); § 802.08(2), Stats. We view the facts in the light most
favorable to the nonmoving party. State
Bank of La Crosse v. Elsen, 128 Wis.2d 508, 512, 383 N.W.2d 916, 918
(Ct. App. 1986).
Peckham
first argues that § 893.82, Stats.,
does not apply to this action because Spitz's alleged acceptance of the bribe
was outside the scope of her state employment.
"Scope of employment," however, is not determinative of
§ 893.82's applicability. Section
893.82(3) applies to "`act[s] growing out of ... the discharge' of [the
employee's] duties," and encompasses a broader range of transactions than
does "scope of employment."[3] Ibrahim v. Samore, 118 Wis.2d
720, 729, 348 N.W.2d 554, 559 (1984).
Spitz
was employed by the State to act as Peckham's parole officer. Her official duties included periodically
meeting with Peckham and assessing the appropriate level of supervision for her
and making recommendations regarding Peckham's parole status. See Wis.
Adm. Code § DOC 328.04(4) & (2)(p).
But for this relationship growing out of Spitz's official duties,
Peckham would have had no occasion to offer $2,000 to Spitz. The alleged transaction was predicated
entirely on Spitz's employment as Peckham's parole officer. Thus we conclude that § 893.82(3), Stats., applies to this action.
The
trial court determined, and we agree, that there is no dispute that a notice of
claim based on this alleged transaction between Peckham and Spitz was not
timely served on the Attorney General.
Peckham argues, however, that the State caused her noncompliance by
thwarting her efforts to comply with § 893.82(3), Stats., and that Spitz should thus be estopped from asserting
the statute as a bar to the claim.[4]
Section
893.82(3), Stats., is
jurisdictional and strict compliance is required. See Ibrahim, 118 Wis.2d at 726, 348 N.W.2d
at 557-58. The requirements of the
statute cannot be waived and "no basis exists for the equitable doctrine
of estoppel." Oney v. Schrauth,
197 Wis.2d 891, 904, 541 N.W.2d 229, 233 (Ct. App. 1995). Thus, whatever justification Peckham may
wish to show for not complying with § 893.82 would not alter the fact of
her noncompliance, which is "fatal to [her] claim." Id.
Furthermore,
even if we were to be persuaded that there was some showing Peckham might make
in order to avoid dismissal under § 893.82, Stats., we would still affirm the dismissal of her claim
against Spitz. Peckham's cause of
action is based upon an alleged $2,000 payment made to induce Spitz not to
perform her lawful duty as a parole officer.
Contracts based on an illegal arrangement are unenforceable:
A contract is illegal where its formation or performance
is expressly forbidden by a civil or criminal statute or where a penalty is
imposed for doing the act agreed upon.
Such a contract is void and courts will leave the parties where they
find them.
Hiltpold v. T-Shirts Plus, Inc., 98 Wis.2d 711, 716-17, 298 N.W.2d 217, 220 (Ct. App. 1980). The agreement alleged by Peckham
constitutes bribery of a public employee, in violation of § 946.10, Stats.[5] It is plainly illegal and any relief for its
breach is barred.
We
conclude that Peckham's claim is "legally insufficient [because] it is
quite clear that under no circumstances can [she] recover," Green
Spring Farms, 136 Wis.2d at 317, 401 N.W.2d at 821. We therefore affirm the dismissal of her claim.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 893.82, Stats., provides in relevant part:
(3) [N]o
civil action ... may be brought against any state ... employe[e] ... for or on
account of any act growing out of or committed in the course of the discharge
of the ... employe[e]'s ... duties ... unless within 120 days of the event
causing the injury ... giving rise to the civil action ... the claimant ...
serves upon the attorney general written notice of a claim stating the time,
date, location and the circumstances of the event giving rise to the claim for
the injury ... and the names of the persons involved, including the name of the
state ... employe[e] ... involved....
....
(5) The notice
under sub. (3) shall be sworn to by the claimant and shall be served upon the
attorney general at his or her office in the capitol by certified mail.
[3] "Scope of employment" generally
applies in respondeat superior contexts such as the public employee indemnity statute.
See § 895.46(1)(a), Stats., which requires indemnity for a
public employee against whom judgment is entered for "acts committed while
carrying out duties as an ... employe[e] and the jury or the court finds that
the defendant was acting within the scope of employment."
[4] On this issue there is a factual
dispute in that Spitz filed affidavits to show that certain of Peckham's
exhibits were forged. As we discuss,
however, a determination of whether Peckham's exhibits are genuine is not
necessary to a disposition of the summary judgment motion.
[5] Section 946.10(1), Stats., provides in relevant part:
Whoever does ... the following is guilty of a Class D
felony:
(1) Whoever, ...
with intent to induce [a public] employe[e] to do or omit to do any act in
violation of the ... employe[e]'s lawful duty transfers ... to the ...
employe[e] ... any property ... which the ... employe[e] is not authorized to
receive ....