COURT OF APPEALS DECISION DATED AND RELEASED July 18, 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. 95-1619
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
PAUL J. MAY, LUCILLE
C. MAY,
HUBERT BYRNE,
DENNIS G. CRIST and
SHERRY L. CRIST,
JAMES J. MCDONALD and
JANET L. MCDONALD,
WALTER PAUL LEU and
SHIRLEY M. LEU,
DONALD P. WEDIG and
CYRILLA J. WEDIG,
GORDON A. SMITH and
KATHLEEN C. SMITH,
RONALD L. BADER,
ROBERT J. CRIST and
PATRICIA A. CRIST
and OTHERS SIMILARLY
SITUATED,
Plaintiffs-Appellants,
v.
PECATONICA RAIL
TRANSIT COMMISSION
TRI-COUNTY TRAILS
COMMISSION,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Iowa County:
JAMES P. FIEDLER, Judge. Modified
and, as modified, affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. The appellants, all property owners along a
recreational trail, appeal from a judgment dismissing their claims against the
Pecatonica Rail Transit Commission and the Tri-County Trails Commission. The trial court dismissed with prejudice,
because the appellants admittedly failed to comply with § 893.80, Stats.
We conclude that the trial court properly dismissed the complaint. However, the trial court erred by dismissing
with prejudice. We therefore modify the
judgment, and affirm as modified.
Claimants against
governmental units must serve the prospective defendants with a written notice
of the circumstances of the claim, § 893.80(1)(a), Stats., and an itemized statement of the relief sought. Section 893.80(1)(b). Compliance is a
condition precedent to bringing the action, although noncompliance with §
893.80(1)(a) is excused if, as the trial court found here, the governmental
units have actual notice of the circumstances and are not prejudiced by absence
of the notice. Fritsch v. St.
Croix Cent. Sch. Dist., 183 Wis.2d 336, 343, 515 N.W.2d 328, 331 (Ct.
App. 1994). However, § 893.80(1)(b) is
subject to a strict compliance standard.
Id. Both sections
apply whether the relief sought is equitable or monetary. DNR v. City of Waukesha, 184
Wis.2d 178, 191, 515 N.W.2d 888, 893 (1994).
Because strict
compliance with § 893.80(1)(b), Stats.,
is required, the trial court properly dismissed the action. However, § 893.80, Stats., is not a statute of limitations
but imposes a condition precedent to the right to commence an action. Fritsch, 183 Wis.2d at 344,
515 N.W.2d at 331. Unlike
§ 893.80(1)(a), Stats.,
§ 893.80(1)(b), Stats., does
not impose any time limit on satisfying that condition precedent by serving the
itemized statement of relief. So long
as the appellant's claims are not otherwise barred, they still have the
opportunity to serve the statement of itemized relief and to recommence the
action if the claim is subsequently disallowed.
By the Court.—Judgment
modified and, as modified, affirmed. No
costs to either party.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.