Pool v. City of Sheboygan
Pool v. City of Sheboygan
Concurring in Part
¶ 17. (concurring in part; dissenting in part). I concur in the mandate but not in the opinion's reasoning supporting the mandate. Wisconsin Stat. § 893.80(lg) expressly states a "Notice of disallowance of the claim submitted under sub. (1) shall be served on the claimant by registered or certified mail." The City used certified mail to serve Pool. The majority opinion is correct in that the statute of limitations for Pool's claim was not triggered by the notice of disallowance and that the judgment must be reversed. However, the opinion does not fully, or correctly, address the reasons that service upon Pool failed to comply with § 893.80(lg).
¶ 18. Pool's primary appellate contentions are that: (1) the notice of disallowance was not "served on the claimant," hut rather on Pool's daughter;
¶ 20. Here, the general rule of statutory construction concerning the use of certified and registered mail in Wis. Stat. § 990.001(13) is instructive, reading in relevant part:
[W]henever the statutes authorize. .. the use of registered mail, and do not require receipt of the addressee only, certified mail may be used if a sender's receipt is obtained from the postal authorities and return receipt is requested. If a return receipt signed by an addressee only is required, registered mail must be used. (Emphasis added.)
¶ 21. Wisconsin Stat. § 893.80(lg) requires the signed receipt of the claimant
¶ 22. Certified mail requires the use of PS Form 3800, the Certified Mail Receipt (CMR), and paying a fee of $2.40.
¶ 23. The City requested that a delivery receipt be obtained at the designated address on the CMR by using PS Form 3811, Return Receipt Requested (RRR), and paying an additional fee of $1.85. A receipt for the certified mail would have sufficed had it been signed by Pool. It was not. It was signed by his daughter as his agent.
¶ 24. The City could have insured compliance with Wis. Stat. § 893.80(lg) by requesting in the RRR that the certified mail be served upon Pool only by checking item 4 (Restricted Delivery), "Yes," and paying an additional fee of $3.70. This appeal, unfortunately, is about that $3.70.
¶ 25. While I concur that the reversal of the judgment is warranted, I must also conclude that the opinion fails to fully and properly analyze the appellate issues presented. In order to avoid future problems of this nature, it is highly recommended that the government entity spend the additional $3.70 to conform to the legislative intent as expressed in Wis. Stat. §§ 893.80(lg) and 990.001(13).
Pool's daughter, Tamara Pool, did not sign the Certified Mail Receipt (PS Form 3800) and there is no place to accomplish that task on that document. Tamara signed the Domestic Return Receipt (PS Form 3811, August 2001).
Wisconsin Stat. § 893.80(lg) uses the term "claimant" while the postal documents refer to "addressee." For purposes of this appeal, the terms are interchangeable.
Information relating to current U.S. Postal Service charges can be verified by any postal clerk at any Wisconsin post office or at www.usps.com.
Pool disputes that Tamara was authorized to act as his agent. Because we have determined that service was not accomplished, the agency issue is not addressed.
Opinion of the Court
¶ 1. Wisconsin Stat. § 893.80(lg) (2003-04)
BACKGROUND
¶ 2. Richard G. Pool's residence is located on property that abuts State Highway 28/South Business Drive (Highway 28) in Sheboygan.
¶ 4. On September 8, 2004, the City sent a notice by certified mail to Pool, disallowing Pool's claim and advising him of the six-month statute of limitations for bringing a lawsuit on the claim. However, the City did not check the box on the certified mail receipt indicating "restricted delivery." On September 9, 2004, Pool's adult daughter, Tamara Pool, received the notice of disallowance and signed the certified mail receipt of service.
¶ 5. On March 22, 2005, Pool filed a petition for ascertainment of compensation against the City. The City moved to dismiss the petition because it was untimely under Wis. Stat. § 893.80(lg), which states in pertinent part, "No action on a claim under this section ... may be brought after 6 months from the date of service of the notice of disallowance." Following a hearing on June 3, the circuit court granted the City's motion to dismiss. The circuit court opined that it was "quite troubling and probably ill-advised for the City not to check the box that says restricted delivery because the statute clearly says complainant should be served" but went on to hold that Pool had "actual notice" of the notice of disallowance. The circuit court concluded that this was sufficient to satisfy the requirements of § 893.80(lg) and trigger the six-month limitation period. Pool appeals.
¶ 6. Pool contends that the six-month limitation period was never triggered because the City did not satisfy the requirements of Wis. Stat. § 893.80(lg). He presents two primary contentions to demonstrate that the City's notice of disallowance was deficient: (1) the notice of disallowance was not "served on the claimant" but rather was served on Pool's daughter and (2) the certified mail receipt was not "signed by the claimant" as required by § 893.80(lg). We need only address the first contention. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).
¶ 7. The City appears to argue that even if service was not made "on the claimant" from a technical standpoint, the facts demonstrating "actual notice" are sufficient for purposes of Wis. Stat. § 893.80(lg). Specifically, the City points to the following undisputed facts: the certified letter was properly addressed to Pool at his residence, proper postage was affixed prior to sending, Pool's adult daughter signed the receipt, and Pool's daughter checked the box marked "agent" when she accepted the letter. Most importantly, the City argues, Pool admits that he received the notice.
¶ 8. The issue is one of statutory interpretation and application; as such, it raises a question of law that we review de novo. See Cary v. City of Madison, 203 Wis. 2d 261, 264, 551 N.W.2d 596 (Ct. App. 1996). When interpreting a statute, the sole purpose is to determine legislative intent. Id. If the statute is clear on its face, our inquiry into the legislative intent ends and we simply apply the statute to the facts of the case. Id.
¶ 10. Pool argues that the City did not satisfy the requirements of Wis. Stat. § 893.80(lg) because the notice of disallowance was not served on Pool. We agree. When the legislature uses the word "shall" in a statute it is presumed to be mandatory. Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978). Furthermore, in Cary, we stated that there was nothing unclear or ambiguous about the statute's, requirement that notice of disallowance be served "on the claimant." See, Cary, 203 Wis. 2d at 264-65.
¶ 11. We disagree with the City's contention that actual notice suffices even in light of the clear and unambiguous language of the statute. Again, Cary is instructive even though that case turned aside a "substantial compliance" argument and did not have before it the "actual notice" contention that we have here. Still, Cary rejected the idea that "substantial compliance" would suffice as an alternative to serving the claimant, not only because of the clear and unambiguous language of the statute but also for public policy reasons.
¶ 12. This public policy principle is so important that we take this opportunity to expand on it. In Wisconsin, a citizen cannot just go out and commence a lawsuit against a governmental entity. The citizen has hurdles he or she must meet. A citizen must first satisfy the notice-of-injury provision in Wis. Stat. § 893.80(1)(a), and after complying with that, must satisfy the notice-of-claim provision in § 893.80(l)(b). If both of these provisions are satisfied and the government rejects the claim, the citizen must begin suit within six months from the date of service of the notice of disallowance or be prevented from achieving redress in the courts. See § 893.80(lg). Time is therefore of the essence to the citizen during that six-month period.
¶ 13. Because legitimate claims can be thrown aside without redress when a claimant fails to follow the statutory requirements, strict compliance is required in how the government provides the notice of disallowance. Cf. Driver v. Housing Auth. of Racine County, 2006 WI App 42, ¶ 23, 289 Wis.2d 727, 713 N.W.2d 670 (Nos. 2005AP410 and 2005AP411) (strict compliance necessary because "actual notice" often difficult to determine in an individual case). Uniformity in the method of service for disallowing a claim is a burden a governmental entity can easily bear in order to make certain that the citizen's interest in timing is protected. Allowing "actual notice" or "substantial compliance" rationales to relax the requirement of the statute would essentially shift the burden to the citizen to prove that the notice given was insufficient for one reason or
¶ 14. Our understanding of the law in this regard is further bolstered by Humphrey v. Elk Creek Lake Protection & Rehabilitation District, 172 Wis. 2d 397, 403, 493 N.W.2d 241 (Ct. App. 1992). In Humphrey, five couples alleged that the Elk Creek Lake Protection and Rehabilitation District's negligence caused flood damage to their properties. Id. at 398-99. Each couple filed separately against the District, which denied all of the claims at a meeting on January 9,1991. Id. at 399. Five notices of disallowances were served, one on each couple, but the language in each stated that the District had voted to disallow the claim made by Richard and Theresa Stone, only one of the couples. Id. at 399-400. Nonetheless, the notices listed all five couples as claimants and included a "cc" line copying each couple on the notice of disallowance. Id. at 399. The District claimed that the claimants other than the Stones were sufficiently on notice of their disallowed claims. Id. at 402. We disagreed, holding that the existence of a plaintiffs knowledge of disallowance does not relieve a municipal
¶ 15. Of particular relevance to our public policy discussion, the Humphrey court recognized that the notice of disallowance triggers the six-month statute of limitations for the claimant to sue the government in court and, if that time period passed, the property owners would be left without the right to have the claim heard by a competent tribunal. See id. at 401-03. Because the fate of a person's property right depended so much on when the clock started ticking, the court felt constrained to interpret the statutes "to preserve a bona fide claim so that it may be passed upon by a competent tribunal rather than cut off without trial." Id. at 403. In our view, the Humphrey court believed it to be essential that the government do it one way, the way the statute requires, so as to relieve all doubt on the part of both the government and the claimants.
CONCLUSION
¶ 16. We conclude that the City's notice of disallowance did not comply with the requirements of Wis. Stat. § 893.80(lg) and consequently, the six-month limitation period for Pool's claim against the City did not begin to run on September 9, 2004. The plain and unambiguous language of § 893.80(lg) required that the notice of disallowance be served on Pool. Accordingly, we reverse.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
The record includes documents that refer to South Business Drive as State Highway 28, Highway 141, and Business Highway 42. Because Pool refers to Highway 28 in his appellate brief, and the City makes no objection, we accept that the roadway in question is Highway 28/South Business Drive in the City of Sheboygan.
At the time we decided Cary v. City of Madison, 203 Wis. 2d 261, 551 N.W.2d 596 (Ct. App. 1996), the relevant statutory language was located in Wis. Stat. § 893.80(1)(b).
The City claims that Cary is not authority for our holding because, there, the City of Madison sent its notice of disclaimer to the claimant's attorney at an address different from the claimant's address. Here, the City sent the notice to the correct address, the address of the claimant. The City argues that this makes all the difference. A close reading of Cary establishes, however, that it makes no difference.
The Cary court was not the least bit interested in where the notice was sent. True, it did discuss the fact that notice was sent to the attorney's address rather than the claimant's. See Cary, 203 Wis. 2d at 265-66. But this discussion was only in response to the City of Madison's argument that the law considers the attorney's address to be the equivalent of the claimant's address for purposes of the notice-of-claim statute, and therefore, service on the attorney must be considered the same as service on the claimant. See id. at 263, 265-66. The Cary court rejected that argument and held that the law relied upon by the City of Madison did not apply to Wis. Stat. § 893.80 disallowance-of-claim notices. See Cary, 203 Wis. 2d at 265-66. Rather, the Cary court considered the only real question to be whether it was the claimant who had received the notice. See id. at 266. The Cary court wrote that the "statutes are very different, and we do not consider service on an attorney to be the equivalent of the plainly worded requirement that the disallowance notice be served on the claimant." Id.
The concurrence argues that we should have addressed Pool's second argument, that a condition precedent to proper service of a notice of disallowance is a receipt signed by the claimant. We have concluded that it is unnecessary for us to reach this issue. Moreover, we have our doubts about the rationale of the concurrence. We note that the statute explains
Reference
- Full Case Name
- Richard G. Pool, Plaintiff-Appellant, v. City of Sheboygan, Defendant-Respondent
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- 5 cases
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- Published