Fox v. Smith

• Decision Date: 06 November 1990
• Docket Number: No. 90-0912-FT,90-0912-FT
• Citation: Fox v. Smith, 464 N.W.2d 845, 159 Wis.2d 581 (Wis. App. 1990)
• Parties: Marshall FOX, Plaintiff-Appellant, v. Eugene SMITH, Miller Christian, Thomas G. Terry, County of Milwaukee, a municipal corporation and Milwaukee Transport Services, Inc., a municipal corporation, Defendants, City of Milwaukee, a municipal corporation, Defendant-Respondent. Marshall FOX, Plaintiff-Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 845

464 N.W.2d 845

159 Wis.2d 581

Marshall FOX, Plaintiff-Appellant, v. Eugene SMITH, Miller Christian, Thomas G. Terry, County of

Milwaukee, a municipal corporation and Milwaukee

Transport Services, Inc., a municipal

corporation, Defendants,

City of Milwaukee, a municipal corporation, Defendant-Respondent.

Marshall FOX, Plaintiff-Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Defendant-Respondent.

No. 90-0912-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 19, 1990.

Opinion Released Nov. 6, 1990.

Opinion Filed Nov. 6, 1990.

James W. McCann of the Law Offices of Alvin H. Eisenberg, S.C., on the briefs, Milwaukee, for plaintiff-appellant.

Grant F. Langley, City Atty., and Maurita Houren, Asst. City Atty., on the briefs, for defendant-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

Marshall Fox appeals from a judgment dismissing his complaint against the City of Milwaukee seeking damages for injuries he claims he sustained when the bus on which he was riding collided with an automobile being chased by Milwaukee police officers. The trial court held that Fox's lawsuit against the City was barred by the statute of limitations. We disagree and reverse.

I.

The collision occurred on January 14, 1986. On April 16, 1986, Fox filed a notice of injury with the City, pursuant to section 893.80(1)(a), Stats. ¹ Subsequently, on August 19, 1988, Fox presented his claim to the City, as required by section 893.80(1)(b), Stats. Section 893.80(1)(b) provides, in pertinent part, that:

no action may be brought or maintained against any ... political corporation, governmental subdivision or agency thereof ... upon a claim or cause of action unless: ... [a] claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the ... corporation, subdivision or agency and the claim is disallowed. Failure of the appropriate body to disallow within 120 days after presentation is a disallowance.

Fox filed his summons and complaint with the clerk of courts on December 16, 1988. The City, among others, was named as a defendant and was served with the summons and complaint on January 20, 1989.

The City moved to dismiss Fox's complaint against it on the ground that the action had been started too soon because as of December 16, 1988, only 119 days had passed since Fox presented his claim, and the claim had not yet been denied. The trial court agreed and, on May 10, 1989, dismissed without prejudice Fox's complaint against the City. Fox refiled his action against the City on May 25, 1989. This time, the City argued that Fox was too late because the three-year statute of limitations under section 893.54, Stats., had run. ² The trial court granted the City's motion to dismiss.

II.

This appeal turns on whether Fox's filing of the original summons and complaint on December 16, 1988, tolled the running of the statute of limitations. The answer to this question is controlled by statute, and our analysis is thus independent of the trial court's determination. See Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

Section 893.13(2), Stats., provides:

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 phrase " '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." Section 893.13(1), Stats. An action is commenced for statute-of-limitations purposes when, "as to each defendant, ... the summons naming the defendant and the complaint are filed with the court" provided service is made on that defendant "within 60 days after filing." Section 893.02, Stats.; see also Rule 801.02(1), Stats. ("A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 60 days after filing."). Since, absent service of a notice of entry of judgment, an aggrieved litigant has 90 days within which to appeal, sec. 808.04(1), Stats., the "final disposition" of the action Fox commenced on December 16, 1988, was, for purposes of section 893.13(2), not until 90 days after that action was dismissed by the trial court on May 10, 1989. Thus, if section 893.13(2) applies, the three-year statute of limitations was tolled by the initial filing on December 16, 1988, until well after May 25, 1989, when Fox refiled his lawsuit against the City. Accordingly, the refiled action would be timely. The City, however, contends that Schwetz v. Employers Insurance of Wausau, 126 Wis.2d 32, 374 N.W.2d 241 (Ct.App.1985), renders section 893.13(2) inapplicable. We do not agree.

Schwetz was an action to recover for injuries allegedly sustained when bleachers collapsed during a high school football game on September 5, 1980. Id., 126 Wis.2d at 33-34, 374 N.W.2d at 242. The Schwetzes presented "an itemized relief statement" to the clerk of the school district on July 5, 1983. Id., 126 Wis.2d at 34, 374 N.W.2d at 242. Subsequently, on September 2, 1983, "[t]hey filed the itemized statement and a summons and complaint with the trial court." Ibid. The summons and complaint, however, named only the school district's insurer; an amended complaint naming the school district was not filed until January 4, 1984, Brief for Appellant Schwetz at 11, (Nos. 84-1300, 84-2017), which was well after the statute of limitations had run on September 6, 1983 (September 5 was Labor Day).

The Schwetzes' action was dismissed because they did not wait until either the school district had rejected their claim or the expiration of the 120-day period from their presentment of the "itemized relief statement." Schwetz, 126 Wis.2d at 34-35, 374 N.W.2d at 242-243. The Schwetzes recommenced their lawsuit on April 27, 1984. Id., 126 Wis.2d at 34, 374 N.W.2d at 242. The trial court ruled that the second action was barred by the applicable three-year statute of limitations. Ibid.

We affirmed and held that filing the "itemized statement of relief" with the trial court did not toll the running of the limitations period. Schwetz, 126 Wis.2d at 35, 374 N.W.2d at 243. Although we did state that the Schwetzes' first action was not properly commenced because they "could not commence a suit unless the school district...