Armes v. Kenosha County
| Decision Date | 07 February 1978 |
| Docket Number | No. 75-765,75-765 |
| Citation | 81 Wis.2d 309,260 N.W.2d 515 |
| Parties | Patrick L. ARMES, Appellant, v. KENOSHA COUNTY, Respondent. |
| Court | Wisconsin Supreme Court |
Charlton, Gronowski, Welcenbach & Stanich, Milwaukee, on brief, for appellant; Joseph J. Welcenbach, Milwaukee, argued.
Joseph Salituro, Corporation Counsel, Kenosha, on brief, for respondent; Frank Volpintesta Acting Corporation Counsel for Kenosha County, Kenosha, argued.
The principal issue on appeal is whether under sec. 59.76, Stats. 1 a claimant may commence an action against the county more than six months after the actual disallowance of the claim by the county board but within six months after the adjournment of the next annual session of the county board after the claim was filed. The trial court sustained a demurrer to the complaint on the ground that the amended complaint did not state a cause of action because the action was not commenced within the statutory period. We reverse.
The pertinent facts, as revealed in the complaint, amended complaint and motion papers, are as follows:
In July, 1971 Patrick Armes was discharged from his position as a county park employee, and he was unsuccessful in his attempts to regain his employment. Pursuant to sec. 59.76, Stats., on March 24, 1973, Armes filed a notice of claim against the county for wrongful discharge. The claim was disallowed by the county board on May 15, 1973. It is undisputed that Armes never received actual notice of the denial of his claim. Notice of the county board's disallowance was, however, published in the Kenosha Labor, pursuant to sec. 59.09(2), Stats., 2 in July, 1973.
The next annual session of the county board after the claim was filed adjourned in November, 1973. 3 On March 29, 1974, within six months of the adjournment of the annual session, but more than six months after the board's actual disallowance of his claim, Armes served a complaint against the county alleging wrongful discharge from employment. The county demurred to the complaint, and the court sustained that demurrer. Armes amended the complaint, but a subsequent demurrer by the county was sustained by the trial court on the grounds that Armes' action had not been filed within six months after the date of actual disallowance, i. e. May 15, 1973.
After the trial court ordered the demurrer sustained, Armes moved the trial court to relieve him of the order pursuant to sec. 806.07(1)(h), Stats., 4 alleging (1) that although the claim was actually disallowed in May 1973, he considered disallowance to be in November, 1973, the adjournment date of the next annual session and his action was filed within six months of that date; and (2) that sec. 59.76, Stats. is unconstitutional. This motion was denied. The appeal is from both the order denying the motion to review and the order sustaining the demurrer.
The first issue raised by the county concerning the sufficiency of Armes' complaint is that the complaint failed to allege the filing of the claim and either the disallowance of the claim or the adjournment of the next annual session of the board. We agree that the claimant must plead these facts to state a cause of action.
In Maynard v. DeVries, 224 Wis. 224, 227, 228, 272 N.W. 27, 28 (1937), the claimant failed to prove compliance with the filing requirements of secs. 59.76 and 59.77, Stats. We held that "(t)he filing of a . . . claim is under the statutes of this state a condition precedent to the existence of a cause of action."
In Rabe v. Outagamie County, 72 Wis.2d 492, 241 N.W.2d 428 (1976), the county demurred to a complaint which alleged that the claimant had properly filed his claim and that more than thirty days had passed without action on the part of the county; the complaint failed to allege that the action was filed after the claim was disallowed or after the adjournment of the next annual session of the board. We sustained the demurrer noting that "(p)aragraph two of sec. 59.76, Stats., clearly states that the claimant must wait until his claim is either disallowed or until the annual meeting is adjourned without action on his claim." Rabe, supra at 500, 241 N.W.2d at 433. The Rabe case holds that the claimant must plead filing of the claim and disallowance (or adjournment date); these facts are required elements of a cause of action. 5
In the case at bar Armes' amended complaint alleged that he had filed a claim pursuant to sec. 59.76, Stats., and that he had not been served with a notice of the disallowance of his claim. We have often said that a complaint must be given a liberal construction in favor of stating a cause of action. 6 A reasonable inference from the pleadings is that the claim was disallowed by the county board. As so construed the amended complaint states a cause of action.
Armes did not have to allege that the action was started within six months after disallowance. That a lawsuit is brought too late is a matter of affirmative defense which can be raised by demurrer where the defect appears on the face of the complaint (sec. 263.06(7), Stats.1973), or by answer (sec. 263.11, Stats.1973). See sec. 802.02(3), Wis. Rules of Civil Procedure, effective January 1, 1976. 7
After the demurrer was sustained, Armes moved the trial court to relieve him of the order pursuant to sec. 806.07(1)(h), Stats. 8 Armes' petition, filed as part of the motion papers, clearly set forth the disallowance of the claim, the date of disallowance, and the date of adjournment of the next annual session of the board. The petition also alleged that the action was commenced within the six-month time limit, using the date of adjournment as the date of disallowance under the statute. Thus if the trial court had sustained the demurrer only on the ground that the complaint failed to allege the disallowance of the claim, the date thereof and commencement of the action within the six-month period, it should have modified its order sustaining the demurrer and should have permitted Armes to replead.
The trial court sustained the demurrer, and then refused to relieve Armes of the order, holding that Armes had failed to state a cause of action under sec. 59.76(2), Stats., because an action commenced ten months after the date of actual disallowance but within six months after the date of the adjournment of the annual session of the county board is as a matter of law outside the time period prescribed by sec. 59.76(2), Stats. We conclude that Armes' action was commenced within the statutory time limit. We have reached this conclusion after carefully considering not only the language of sec. 59.76(1) and (2) but also the statutory procedure for filing and processing claims against the county and the public policy underlying statutes of limitation.
The first step is to analyze the language of sec. 59.76 which is reprinted in note 1 supra. Sec. 59.76(1) provides that no action shall be brought on a claim 9 (1) unless the county shall consent and agree to the institution of the action or (2) unless the county board shall "have failed to act upon (the claim) within the time fixed by law." Section 59.79, Stats. requires the county board to act on the claim before the adjournment of the next annual session of the board after the claim is filed. Sec. 59.76(1) does not set forth a time limit during which the court action must be brought after the adjournment of the next annual session; read literally sec. 59.76(1) is not applicable to the case at bar because the county board did not consent to the action and because the county board did act upon the claim within the time fixed by law it disallowed it.
If the county board acts upon the claim and disallows it, sec. 59.76(2) appears to be the applicable provision. The first sentence states that no action shall be brought if the county has disallowed the claim, unless the action is brought within six months of disallowance. Thus the first sentence of sec. 59.76(2) appears to fix a time interval during which an action is to be brought: an action cannot be brought before disallowance of the claim; and an action cannot be brought more than six months after such disallowance. 10 Disallowance would, at first reading, seem to mean actual disallowance by the county board. However, the apparent meaning is altered by the second and final sentence of sec. 59.76(2) which states: "Failure to allow a claim before the adjournment of the next annual session . . . shall be deemed a disallowance." This sentence appears to be an attempt to define disallowance.
The county argues that the final sentence of sec. 59.76(2) supplies the missing date under the contingency provided in sec. 59.76(1), namely that the last date for bringing an action against the county when the county has failed to act upon the claim within the time fixed by law is within six months after adjournment of the next annual session. Thus, says the county, the phrase "failure to allow a claim before the adjournment" in this final sentence in sec. 59.76(2) means the same thing as the phrase "failed to act upon the (claim) within the time fixed by law" used in sec. 59.76(1).
Armes argues that "failure to allow a claim before the adjournment" in the final sentence in sec. 59.76(2) defines disallowance as used in sec. 59.76(2), and the phrase means not only the board's omission to take final action on the claim before adjournment but also the board's actual disallowance of the claim before adjournment. Under Armes' construction, an action to recover against the county can be brought within six months after the adjournment of the next annual session of the board after the claim is filed whether or not the county actually disallowed the claim. It is the opinion of this court that sec. 59.76(2), Stats., should be read as Armes contends.
If, as the county contends, the legislature had intended to say in sec. 59.76(2) that "failure to act...
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