Johnson v. County of Crawford

• Decision Date: 15 June 1995
• Docket Number: No. 95-0144-FT,95-0144-FT
• Citation: 536 N.W.2d 167,195 Wis.2d 374
• Parties: Ruth JOHNSON, Plaintiff-Appellant, v. COUNTY OF CRAWFORD, a municipal corporation, and Continental Casualty Company, a foreign corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 167

536 N.W.2d 167

195 Wis.2d 374

Ruth JOHNSON, Plaintiff-Appellant, v. COUNTY OF CRAWFORD, a municipal corporation, and Continental Casualty Company, a foreign corporation Defendants-Respondents.

No. 95-0144-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs May 2, 1995.

Opinion Released June 15, 1995.

Opinion Filed June 15, 1995.

For 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.

For the defendants-respondents the cause was submitted on the brief of Robert D. Johns, Jr. of Johns & Flaherty, S.C. of La Crosse.

Before GARTZKE, P.J., and SUNDBY and VERGERONT, JJ.

VERGERONT, Judge.

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 (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...