Grothe v. Valley Coatings, Inc., 00-0524.

• Decision Date: 03 October 2000
• Docket Number: No. 00-0524.,00-0524.
• Citation: 239 Wis.2d 406,2000 WI App 240,620 N.W.2d 463
• Court: Wisconsin Court of Appeals
• Parties: Cindy L. GROTHE, Plaintiff-Appellant, v. VALLEY COATINGS, INC. and Continental Casualty Company, Defendants-Third-Party Plaintiffs-Respondents, v. PPG INDUSTRIES, INC., Omni Glass & Paint, Inc. and Miron Construction Co., Inc., Third-Party Defendants-Respondents.

239 Wis.2d 406

2000 WI App 240

620 N.W.2d 463

Cindy L. GROTHE, Plaintiff-Appellant, v. VALLEY COATINGS, INC. and Continental Casualty Company, Defendants-Third-Party Plaintiffs-Respondents, v. PPG INDUSTRIES, INC., Omni Glass & Paint, Inc. and Miron Construction Co., Inc., Third-Party Defendants-Respondents.

No. 00-0524.

Court of Appeals of Wisconsin.

Submitted on briefs September 11, 2000.

Decided October 3, 2000.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Max W. Saylor, Berlin.

On behalf of the defendants-third-party plaintiffs-respondents, the cause was submitted on the brief of David M. Victor of the Law Office of Mark H. Miller, Brookfield.

On behalf of the third-party defendant-respondent, PPG Industries, Inc., the cause was submitted on the brief of Peter J. Hickey of Everson, Whitney, Everson & Brehm, S.C., Green Bay.

On behalf of the third-party defendants-respondents, Omni Glass & Paint, Inc. and Miron Construction Co., Inc., the cause was submitted on the brief of Mark A. Klinner of Sandford, Zalewski & Klinner, LLP, Wausau, and Thomas R. Schrimpf of Hinshaw & Culbertson, Milwaukee.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. PETERSON, J.

Cindy Grothe appeals a judgment dismissing her negligence claim against Valley Coatings, Inc. Grothe argues that the circuit court erred by: (1) dismissing the case on summary judgment; (2) denying her motion to amend the pleadings under the relation-back doctrine pursuant to WIS. STAT. § 802.09(3);¹ and (3) erroneously exercising its discretion when it denied her motion to amend the pleadings. We disagree and affirm the judgment.

BACKGROUND

¶ 2. Grothe claims she sustained injuries on June 12, 1995, as a result of inhaling and being exposed to paint and chemicals used during construction at her place of employment. She filed a complaint against Valley Coatings, the distributor of the paint and chemicals, on January 30, 1998. Valley Coatings filed a third-party complaint against Omni Glass & Paint, Inc., and Miron Construction Co., Inc., on June 10, 1998. Omni applied the paint, and Miron was the general contractor responsible for the factory expansion project. Subsequently, Valley Coatings impleaded PPG Industries, Inc., the paint manufacturer, in an amended third-party complaint on March 29, 1999.

¶ 3. Valley Coatings moved for summary judgment based on Grothe's admission that she had no direct evidence of negligence on the part of Valley Coatings and based on her failure to name expert witnesses. Grothe then moved to withdraw her admission. The court denied Grothe's request to withdraw the admission and granted Valley Coatings' motion for summary judgment.

¶ 4. The remaining defendants moved to dismiss because Grothe had not filed any claim directly against them. In response, Grothe filed a motion to amend her pleadings to name Omni and Miron as defendants under the relation-back doctrine.² The circuit court denied her motion and ruled that the relation-back doctrine would not allow Grothe to amend her pleadings because the statute of limitations had run and notice had not been received by the additional parties within the time required. The circuit court dismissed Grothe's suit and any remaining claims. This appeal followed.

DISCUSSION

I. SUMMARY JUDGMENT

[1]

¶ 5. When we review a summary judgment we apply the same methodology as the trial court, and we consider the issues independently. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987)

. The remedy is appropriate in cases where there is no genuine dispute of material fact and only one reasonable inference from the undisputed facts, and one party is entitled to judgment as a matter of law. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

[2]

¶ 6. Grothe argues that summary judgment was inappropriate because a genuine issue of material fact exists. Additionally, Grothe contends that expert testimony was not required and that the circuit court improperly granted summary judgment because of her failure to name any experts. However, Grothe's brief does not contain any citations to the record. This is a violation of WIS. STAT. § 809.19(1)(d) and (e).³ This particular argument is heavily dependent upon facts in the record. We decline to embark on our own search of the record, unguided by references and citations to specific testimony, to look for evidence to support Grothe's argument. WISCONSIN STAT. RULE 809.19(1)(e) requires parties' briefs to contain "citations to the ... parts of the record relied on." We have held that where a party fails to comply with the rule, "this court will refuse to consider such an argument...." Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (citation omitted). "[I]t is not the duty of this court to sift and glean the record in extenso to find facts which will support an [argument]." Id. (citation omitted). We decline to address this portion of Grothe's argument and dismiss it. See WIS. STAT. RULE 809.83(2).⁴

II. RELATION-BACK DOCTRINE

[3]

¶ 7. Grothe claims the court erred by denying her motion to amend her pleadings under the relation-back doctrine to include Omni and Miron as named defendants. See WIS. STAT. § 802.09(3).⁵ Because this is a legal question not as heavily dependent on facts in the record, we will address the argument. The circuit court ruled that Omni and Miron did not receive the required notice within the period of the statute of limitations. We are not bound by the circuit court's conclusions of law and decide the matter independently. See Green Scapular Crusade, Inc. v. Town of Palmyra, 118 Wis. 2d 135, 138, 345 N.W.2d 523 (Ct. App. 1984)

.

¶ 8. Valley Coatings impleaded Omni and Miron on June 10, 1998, two days before the statute of limitations expired. However, Omni and Miron did not receive notice of the institution of the action until June 22, 1998, when they were served with the third-party summons and complaint.

¶ 9. WISCONSIN STAT. § 802.09(3) spells out four conditions which must be met for an amended pleading to relate back and ameliorate the effect of the statute of limitations: (1) the basic claim must have arisen out of conduct set forth in the original pleadings; (2) the party to be brought in must have received notice so that it will not be prejudiced in maintaining its defense; (3) the party knew or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) most significantly, the second and third requirements must have been fulfilled within the prescribed limitations period.

¶ 10. Although Wisconsin courts have not addressed this precise issue, the United States Supreme Court has construed the statute's nearly identical federal counterpart, FED. R. CIV. P. 15(c) (amended 1991).⁶ Because this precise issue has not been addressed in Wisconsin, we look to federal cases for guidance in interpreting similar statutes. See State v. Gundenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225 (1995)

. In Schiavone v. Fortune, 477 U.S. 21 (1986), a complaint was filed before the applicable statute of limitations expired. The plaintiffs mistakenly labeled Fortune as the defendant and mailed the complaint to Fortune's offices at the Time Life Building in New York City. Fortune, however, was the name of an internal division of Time, Incorporated. Time refused service because it was not named as defendant. The plaintiffs then amended their complaint to name Time as a defendant, but the amendment occurred after the statute of limitations had run. The plaintiffs argued that the amended complaint related back since the original complaint was filed before the statute of limitations had expired and was mailed within the time allowed for service of process. The Supreme Court disagreed and held that in order for an amended complaint to relate back, the party to be added must receive notice within the applicable statute of limitations period. See id. at 29.

[4]

¶ 11. We agree with the Supreme Court's interpretation of wording similar to WIS. STAT. § 802.09(3) and choose to apply it. We hold that the statute requires receipt of notice of the institution of the action within the statute of limitation period. Because Omni and Miron did not receive notice of the lawsuit until after the statute of limitations had expired, the plain notice requirements of the statute have not been met. Therefore, Grothe's proposed amended complaint does not relate back. As a result, the circuit court properly denied Grothe's motion.

III. EXERCISE OF DISCRETION

[5]

¶ 12. Last, Grothe argues that the circuit court erroneously exercised its discretion when it denied her motion to amend the pleadings pursuant to WIS. STAT. § 802.09(1).⁷ "A trial court's decision to grant leave to amend a complaint is discretionary." Finley v. Culligan, 201 Wis. 2d 611, 626, 548 N.W.2d 854 (Ct. App. 1996). We will not reverse a court's discretionary decision unless the record discloses that the court failed to exercise its discretion, that the facts do not support the trial court's decision, or that the court applied the wrong legal standard. See id. at 626-27. The circuit court "in exercising its discretion must balance the interests of the party benefiting by the amendment and those of the party objecting to the amendment." State v. Peterson, 104 Wis. 2d 616, 634, 312 N.W.2d 784 (1981).

[6]

¶ 13. A review of the record reveals that Grothe did not take any steps to amend the pleadings until after Valley Coatings' summary judgment motion was granted and Miron and Omni moved to dismiss. On appeal, her only argument is that Omni and Miron have not claimed they would be prejudiced if the motion were granted. Grothe has failed to explain why an amendment was justified so late in the proceedings and why she did not seek leave to amend her pleadings before October 28, 1999, nearly two years after filing her original...