PUBLISHED OPINION
Case No.: 95-0144-FT
Complete
Title
of
Case:RUTH JOHNSON,
Plaintiff-Appellant,
v.
COUNTY OF CRAWFORD,
a municipal corporation,
and CONTINENTAL CASUALTY COMPANY,
a foreign corporation,
Defendants-Respondents.
Submitted
on Briefs: May 2, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 15, 1995
Opinion
Filed: June
15, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Crawford
(If
"Special" JUDGE: Michael
Kirchman
so
indicate)
JUDGES: Gartzke,
P.J., Sundby and Vergeront, JJ.
Concurred: Sundby,
J.
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of James W. McCann of Eisenberg,
Weigel, Carlson, Blau, Reitz & Clemens, S.C. of Milwaukee.
Respondents
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Robert D. Johns, Jr. of Johns
& Flaherty, S.C. of La Crosse.
COURT OF APPEALS DECISION DATED AND RELEASED June
15, 1995 |
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. 95-0144-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
RUTH
JOHNSON,
Plaintiff-Appellant,
v.
COUNTY
OF CRAWFORD,
a
municipal corporation,
and
CONTINENTAL CASUALTY COMPANY,
a
foreign corporation,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Crawford County: MICHAEL KIRCHMAN,
Judge. Reversed.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Ruth Johnson appeals from a
judgment dismissing her personal injury action against Crawford County and its
insurer, Continental Casualty Company.[1] The trial court dismissed the action on the
ground that it was not filed within three years of the accrual of the cause of
action as required by § 893.54, Stats. The trial court concluded that the filing of
a prior action that was voluntarily dismissed did not toll the statute of
limitations under § 893.13(2), Stats. We conclude that § 893.13(2) tolled the
statute of limitations upon commencement of the prior action, and therefore we
reverse.
The
relevant facts are undisputed. Johnson
filed a complaint on August 27, 1993, alleging that she was injured in a
motorcycle accident that occurred on August 28, 1990, on a Crawford County
highway. Crawford County, Manuel
Fernandez, and a number of insurance companies were named as defendants. The complaint did not allege that a notice
of injury had been served on, or that a notice of claim had been filed with,
Crawford County.[2] Johnson and Crawford County entered into a
stipulation pursuant to § 805.04(2), Stats.,[3]
to dismiss the action. The court
dismissed the action on July 18, 1994.
Johnson
filed a second complaint on July 27, 1994.
This complaint made the same allegations as did the first complaint with
respect to Johnson's injury. It also
alleged that on August 30, 1993, Johnson served a notice of injury on, and
filed a notice of claim with, the Crawford County clerk. The defendants' answer admitted this
allegation but defendants moved for summary judgment on the ground that the
second action was brought after the three-year statute of limitations had
run. Johnson argued before the trial
court, as she does on appeal, that § 893.13(2), Stats., tolled the statute of limitations with the first
action, making the second action timely.
Section
893.13, Stats., provides in
relevant part:
(1) In this section and ss. 893.14 and
893.15 "final disposition" means the end of the period in which an
appeal may be taken from a final order or judgment of the trial court, the end
of the period within which an order for rehearing can be made in the highest
appellate court to which an appeal is taken, or the final order or judgment of
the court to which remand from an appellate court is made, whichever is latest.
(2) A law
limiting the time for commencement of an action is tolled by the commencement
of the action to enforce the cause of action to which the period of limitation
applies. The law limiting the time for
commencement of the action is tolled for the period from the commencement of
the action until the final disposition of the action.
The
trial court concluded that § 893.13(2), Stats.,
did not apply when the first action was voluntarily dismissed.
The
resolution of this appeal depends upon the application of § 893.13, Stats.
The application of a statute to undisputed facts is an issue of law,
which this court decides de novo, without deference to the trial court's
determination. Tahtinen v. MSI
Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). We consider first the language of the
statute to determine whether its intent is clear on its face. Voss v. City of Middleton, 162
Wis.2d 737, 749, 470 N.W.2d 625, 629 (1991).
Where the language of a statute is unambiguous, we will not look beyond
the language to determine legislative intent.
Id.
Relying
on our decision in Fox v. Smith, 159 Wis.2d 581, 464 N.W.2d 845
(Ct. App. 1990), Johnson argues that the plain language of § 893.13(1) and
(2), Stats., tolls the statute of
limitations for every action commenced, even if the first action is "defective" due to a
failure to comply with the notice of claim statute. Crawford County argues that Fox and our later
decision following Fox, Colby v. Columbia County,
192 Wis.2d 397, 531 N.W.2d 404 (Ct. App. 1995), petition for review granted,
___ Wis.2d ___, 534 N.W.2d 85 (Wis. May 10, 1995), do not apply when the first
action has been dismissed based on a stipulation. Because the first actions in both Fox and Colby
were dismissed by court order after an adjudication, we did not address the
issue raised in this appeal.
Under
the plain language of the first sentence of § 893.13(2), Stats., the statute of limitations is
tolled for every cause of action when an action is filed. The second sentence tells us how long the
tolling period lasts. It lasts from the
commencement of the action until the "final disposition." Section 893.13(1) defines "final
disposition" in three distinct ways.
The first definition--the end of the period in which an appeal may be
taken--does not require that an appeal has been taken. If an appeal has been taken, it makes no
sense to end the tolling period at the beginning of the appeal process. The second and third definitions relate to
situations in which an appeal has been taken.
The second definition applies when there is an appeal but no remand to
the trial court, and the third applies when there is a remand to the trial
court.
Since
no appeal was taken from the order dismissing the first complaint, the first
definition in § 893.13(1), Stats.,
applies. Crawford County argues that it
does not apply because no party can appeal from an order dismissing a complaint
on a stipulation. But the
phrase--"the end of the period in which an appeal may be taken from a
final order"--does not require that the plaintiff be aggrieved by the
trial court's order. It refers solely
to a time period, one easily determined by reference to § 808.04(1), Stats.
An appeal from a trial court order "must be initiated within 45
days of entry of judgment or order appealed from if written notice of the entry
of judgment or order is given ... or within 90 days of entry if notice is not
given." Section 808.04(1). We see nothing in the language of §§
893.13(1) and (2) or 808.04(1) that exempts certain causes of action because
the first action to enforce that cause of action was voluntarily
dismissed.
Crawford
County relies on an unpublished federal district court decision, Robinson
v. Willow Glen Academy, Nos. 88-C-250 and 88-C-342, slip op. (E.D. Wis.
Dec. 15, 1988), aff'd, 895 F.2d 1168 (7th Cir. 1990). In affirming the district court's conclusion
that § 893.13(2), Stats.,
did not toll the statute of limitations for a cause of action when the first
action was dismissed based on a motion for voluntary dismissal, the United
States Court of Appeals for the Seventh Circuit looked to the law governing commencement
of actions in federal court.[4] Under federal law, the Seventh Circuit
stated, when an action is voluntarily dismissed pursuant to Fed. R. Civ. P. 41(a)(2),[5]
it is treated as if it had never been filed.
The Seventh Circuit therefore concluded that the first action does not toll
the statute of limitations. The Seventh
Circuit noted that this conclusion was supported by the district court's
interpretation of § 893.13(2).
The
district court, in addition to relying on federal law, also relied on the
Judicial Council Committee's Note, 1979, § 893.13, Stats., which states:
Section 893.35 is
repealed and this section created to clarify the ending of the tolled period of
a statute of limitations in the various situations which can arise when an
appeal is taken.
Apparently the district court viewed this as evidence of
legislative intent either that an appeal had to be taken for the tolling
statute to apply or the order of dismissal in the first action had to be
appealable.
We
are not bound by a federal court's interpretation of state law. Universal Die & Stampings, Inc. v.
Justus, 174 Wis.2d 556, 567, 497 N.W.2d 797, 802 (Ct. App. 1993). While we may follow the reasoning of the
federal court decision, see LeClair v. Natural Resources Bd.,
168 Wis.2d 227, 238, 483 N.W.2d 278, 283 (Ct. App. 1992), we decline to do so
here because we conclude the Robinson court incorrectly
interpreted Wisconsin law.
Under
Wisconsin law, we may not resort to legislative history to interpret a statute
that is plain on its face or to create an ambiguity. State v. Martin, 162 Wis.2d 883, 897 n.5, 470
N.W.2d 900, 905 (1991); Voss, 162 Wis.2d at 749, 470 N.W.2d at
629. The plain language of the first
sentence of § 893.13(2), Stats.,
applies to all actions; neither that subsection nor subsec. (1) indicate that
tolling does not apply if the first action is voluntarily dismissed. Accordingly, resort to the Judicial Council
Committee's Note to § 893.13, Stats.,
to interpret the statute is not proper under Wisconsin law. For purposes of a complete discussion,
however, we point out that the Note does not indicate either that an appeal is
required or that the plaintiff must be able to appeal in order for the statute
to be applicable. The Note refers to
the second and third definitions in § 893.13(1), which define the tolling
period when "an appeal is taken."
As we stated above, the first definition applies when an appeal has not
been taken. The Note, therefore, cannot
be referring to that definition, the one at issue in this case.
Our
conclusion that § 893.13(2), Stats.,
applies when the first action has been voluntarily dismissed is supported by
our supreme court's statement in McKissick v. Schroeder, 70
Wis.2d 825, 831, 235 N.W.2d 686, 689 (1975):
"A subsequent dismissal of a complaint for certain defects or by
stipulation of the parties does not have the effect of eliminating the tolling
of the statute of limitations, which stops running when that summons and
complaint are served, even if the complaint is afterwards dismissed." We recognize that this statement is dicta
in that the prior actions in McKissick appear to have been
dismissed by a court order not based on a stipulation. However, because our supreme court
explicitly referred to dismissals by stipulation, we are reluctant to ignore
this statement unless § 893.13 compels us to.
It does not. This statement in McKissick
is consistent with the plain language of § 893.13(1) and (2).
We
conclude § 893.13(2), Stats.,
tolled the statute of limitations on Johnson's cause of action when the first
action was filed. Johnson filed the
second complaint nine days after the court's order dismissing the first action. This is within ninety days of that order,
making the second action timely.[6]
By the Court.—Judgment reversed.
No.
95-0144-FT(C)
SUNDBY,
J. (concurring). I reluctantly conclude that
§ 893.13(2), Stats., applies
only to appeals. Section 893.35, Stats., 1977, which applied only to
appeals, was repealed and recreated by Laws of 1979, ch. 323, § 28 as
§ 893.13(2). There is no
suggestion that the legislature intended to create a general tolling statute.[7] This act revised and consolidated claim
procedures. It appears that the effect
of dismissing an action upon the tolling of a statute of limitations is
governed by the common law.
The
Wisconsin cases hold that if an action is dismissed without prejudice, the
parties are placed in the same position they occupied before the litigation
commenced, especially if the action is dismissed upon stipulation of the
parties. Wakeley v. Delaplaine,
15 Wis. 614, 618 (1862). "If the
situation of the parties, or their relations to the property, had been changed
by the litigation, they were to be reinstated in the rights they occupied and
enjoyed prior to the commencement of the action." Id.
In
Bishop v. McGillis, 82 Wis. 120, 51 N.W. 1075 (1892), defendants
claimed that a judgment of dismissal, entered upon a stipulation to dismiss,
barred the action for three reasons.
One of the reasons was that the action was barred by the statute of
limitations. The court rejected this
defense. The court discussed the effect
of the stipulated judgment of discontinuance or dismissal. Id. at 127, 51 N.W. at
1076. The court said:
We think the profession would be surprised to learn that
a judgment of dismissal, entered upon a mere stipulation to dismiss, is even prima
facie a bar to all future actions for the same cause. Certainly, if such be the law, it ought to
be speedily announced.
Id.
Relying
on Wakeley and Haldeman v. United States, 91 U.S.
584 (1876), the court held that the effect of a judgment of dismissal was
simply to place the parties in the same position they occupied before the
litigation commenced. Bishop,
82 Wis. at 127-28, 51 N.W. at 1076.
In
Haldeman, the Court said that, "the general entry of the
dismissal of a suit by agreement is no evidence of an intention to abandon the
claim on which it is founded, but rather of a purpose to preserve the right to
institute a new suit if it becomes necessary." 91 U.S. at 586. This
makes eminent good sense.
In
our case, the statute of limitations had not run on Johnson's claim. She commenced an action which preserved her
claim against the running of the statute of limitations. After dismissal without prejudice, Johnson
could, and did, begin a new action to preserve her claim against the running of
the statute of limitations.
In
McKissick v. Schroeder, 70 Wis.2d 825, 235 N.W.2d 686 (1975), the
court rejected defendant's argument that an order which dismissed all prior
complaints and provided for service of the fifth complaint effectively
nullified all prior complaints, and could not be said to have tolled the
statute of limitations. The court said:
A subsequent dismissal of a complaint for certain
defects or by stipulation of the parties does not have the effect of
eliminating the tolling of the statute of limitations, which stops running when
that summons and complaint are served, even if the complaint is afterwards
dismissed.
Id. at 831, 235 N.W.2d at 689 (emphasis added).
Of
course, the plaintiff may not commence a new cause of action which is barred by
the statute of limitations. The new
complaint must merely re-state in a different form the cause of action stated
in the original complaint. Fredrickson
v. Kabat, 264 Wis. 545, 547, 59 N.W.2d 484, 485 (1953) (quoting 34 Am. Jur. Limitation of Actions
§ 260).
Another
way of looking at this is to conclude that Crawford County is as much bound by
the stipulation as is Johnson.
Therefore, Crawford County waived its right to insist upon the statute
of limitations. I do not believe
Crawford County considered that when it induced Johnson to dismiss her claim
"without prejudice," Johnson should suffer the ultimate
prejudice--the destruction of her claim.
An
alternative approach is suggested in Colin v. Department of
Transportation, 423 So.2d 1020 (Fla. Dist. Ct. App. 1982), which
treated a new action brought after an action was dismissed without prejudice as
an amended complaint which related back.
The New Mexico Supreme Court approved this approach in Bracken v.
Yates Petroleum Corp., 760 P.2d 155, 158 (N.M. 1988).
In
some jurisdictions a statute specifically tolls the statute of limitation when
an action is dismissed without prejudice.[8] I do not believe that § 893.13(2), Stats., is such a statute. This omission should be corrected by the
legislature.
[2] Section 893.80(1), Stats., provides that, with certain exceptions, no action may
be brought or maintained against any political corporation or governmental
subdivision unless a notice of injury is served and notice of claim is filed
beforehand.
[3] Section 805.04(2), Stats., provides:
Except as provided
in sub. (1), an action shall not be dismissed at the plaintiff's instance save
upon order of court and upon such terms and conditions as the court deems
proper. Unless otherwise specified in
the order, a dismissal under this subsection is not on the merits.
[4] Section 893.15(2), Stats., provides that, for purposes of tolling a statute of
limitations on the basis of an action brought in a non-Wisconsin forum, which
is defined to include federal courts, the law of the forum determines the time
of commencement or final disposition of the action. The United States Court of Appeals for the Seventh Circuit relied
on this provision in applying federal law.
[6] Presumably a written notice of entry of
judgment was not filed but the nine days would be within the shorter
forty-five-day period as well.