Christopher Brekken v. Bruce J. Landgraf
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COURT OF APPEALS DECISION DATED AND FILED April 1, 2014 Diane M. Fremgen Clerk of Court of Appeals Appeal No. NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. Cir. Ct. No. 2012CV414 2013AP1371 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III CHRISTOPHER BREKKEN, PLAINTIFF-APPELLANT, V. BRUCE J. LANDGRAF, DEFENDANT-RESPONDENT. APPEAL from an order of the circuit court for Barron County: TIMOTHY M. DOYLE, Judge. Affirmed. Before Hoover, P.J., Mangerson and Stark, JJ. ¶1 PER CURIAM. Christopher Brekken appeals an order dismissing his tort action against Bruce Landgraf. The circuit court dismissed the suit No. 2013AP1371 because Brekken failed to comply with WIS. STAT. § 893.82,1 the state employee notice of claim statute. Asserting that Landgraf was a loaned employee of Milwaukee County, Brekken argues the circuit court should have applied WIS. STAT. § 893.80, the municipal employee notice of claim statute. We reject Brekken s arguments and affirm the order. BACKGROUND ¶2 Brekken filed the underlying action against assistant district attorney Landgraf, alleging intentional torts arising from a John Doe subpoena duces tecum. Brekken claimed that although he informed Landgraf he did not have, nor could he obtain, any records, documents, or statements that fell within the ambit of the subpoena, a bench warrant was issued at Landgraf s direction for Brekken s arrest. ¶3 Brekken alleged that Landgraf caused him to be falsely imprisoned and also used the civil and criminal processes for purposes other than which they were designed. The complaint indicated that Brekken served Landgraf with a notice of claim pursuant to WIS. STAT. § 893.80. Landgraf moved to dismiss the complaint on the ground that Brekken failed to comply with WIS. STAT. § 893.82 prior to filing suit. After a hearing, the court dismissed the action. This appeal follows. 1 All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted. 2 No. 2013AP1371 DISCUSSION ¶4 Prior to filing suit against a state employee, a claimant must serve a written notice of the claim upon the attorney general s office within 120 days of the incident from which the claim arises. See WIS. STAT. § 893.82(3). Failure to comply with the requirements of § 893.82(3) is fatal to any claim because its requirements are jurisdictional. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 116, 595 N.W.2d 392 (1999). Timely and proper compliance with § 893.82 must be alleged in the complaint, and failure to do so is grounds for dismissal. See Yotvat v. Roth, 95 Wis. 2d 357, 360, 290 N.W.2d 524 (Ct. App. 1980) (analyzing predecessor statute). ¶5 Here, proper compliance with WIS. STAT. § 893.82 was not alleged in the complaint, and Brekken concedes he did not comply with the statute. Rather, based on his assertion that Landgraf was a loaned employee, Brekken argues he properly served his notice of claim pursuant to WIS. STAT. § 893.80, the municipal employee notice of claim statute. We are not persuaded. ¶6 Brekken advances his loaned employee of Milwaukee County theory for the first time on appeal. In his reply brief, Brekken concedes he did not use the term loaned employee in the circuit court. He nevertheless contends that the substance of this theory was adequately raised below by his repeated references to Landgraf acting as a representative or agent of Milwaukee County. Despite Brekken s argument to the contrary, we conclude that his repeated references to Milwaukee County in the circuit court did not sufficiently raise the legal theory there. We generally do not consider issues raised for the first time on appeal, and we decline to do so here. See Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980). 3 No. 2013AP1371 ¶7 Ultimately, Brekken offers no response countering Landgraf s argument that assistant district attorneys are state employees, not employees on loan to the counties where they work. See Brown Cnty. Attorneys Ass n v. Brown Cnty., 169 Wis. 2d 737, 740, 487 N.W.2d 312 (1992). Arguments not refuted are deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Because district attorneys and assistant district attorneys are employed by the state, see WIS. STAT. § 230.08(2)(a) and (sg), the circuit court properly dismissed the action based on Brekken s failure to comply with WIS. STAT. § 893.82. By the Court. Order affirmed. This opinion will not be published. 809.23(1)(b)5. 4 See WIS. STAT. RULE
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