E-Z Roll Off, LLC v. County of Oneida

PATIENCE DRAKE ROGGENSACK, J.

¶ 55. (dissenting). Appellate courts apply a three-part test to determine whether the notice requirement of Wis. Stat. § 893.80(1) (2009-10)1 applies to the claim under review. Oak Creek Citizen's Action Comm. v. City of Oak Creek, 2007 WI App 196, ¶ 7, 304 Wis. 2d 702, 738 N.W.2d 168. I conclude that E-Z Roll Off, LLC (E-Z) makes a restraint of trade claim under ch. 133 of the Wisconsin Statutes that meets the three-part test for an exception to the requirements of § 893.80(1): (1) ch. 133 provides a specific statutory scheme for the identification and resolution of claims; (2) compliance with § 893.80(1) would hinder the legislature's preference for prompt action on ch. 133 claims; and (3) the purposes for which § 893.80(1) was enacted would not be furthered by requiring a notice of claim to be filed for ch. 133 claims. Accordingly, I would affirm the court of appeals and I respectfully dissent from the majority opinion.

I. BACKGROUND

¶ 56. E-Z was in the solid waste hauling business.2 It provided waste containers to residential, commercial and construction customers. E-Z hauled the *750waste it collected to the Oneida County landfill, and Oneida County charged E-Z a per ton tipping fee to utilize the landfill.

¶ 57. E-Z paid a $54 per ton tipping fee for its use of the landfill, less a $10 per ton discount when E-Z brought a sufficient volume of waste to Oneida County's landfill. In February 2004, an employee of E-Z saw a receipt from the Oneida County landfill that showed Waste Management Wisconsin, Inc. (Waste Management) was being charged only $5.25 per ton as a tipping fee by Oneida County.

¶ 58. Apparently, the lower tipping fee accorded to Waste Management was part of the June 25, 2003 contract3 between Waste Management and Oneida County wherein Waste Management agreed to transport municipal solid waste for Oneida County for $24.50 per ton and Oneida County agreed to charge Waste Management only a $5.25 tipping fee rather than the usual $54 per ton rate.

¶ 59. On February 17, 2004, the Laddusires, who own E-Z, met with Bart Sexton, the Oneida County Solid Waste Director, to complain about the high tipping fee E-Z was paying and to request a reduction of its tipping fee. Sexton refused their request, and in April 2004 E-Z filed a written complaint with the Wisconsin Department of Agriculture, Trade and Consumer Protection (Consumer Protection agency). Although the Consumer Protection agency forwarded E-Z's complaint to Oneida County on May 4, 2004, the Consumer Protection agency took no further action on the complaint.

¶ 60. On September 28, 2005, E-Z filed a "Notice of Injury" with Oneida County, in which it alleged that *751the preferential tipping fee that Oneida County granted to Waste Management was a violation of Wis. Stat. § 133.03(1). It alleged that it had lost past and future earnings due to the lower prices that Waste Management was able to charge its customers because of the lower tipping fee that Waste Management was accorded by Oneida County for the tipping it did at the landfill.

¶ 61. E-Z filed this action on April 20, 2006. Oneida County moved to dismiss, alleging that E-Z failed to comply with the notice of claim requirements of Wis. Stat. § 893.80(1), and the circuit court dismissed E-Z's claim. The court of appeals reversed, concluding that ch. 133 claims were excepted from compliance with § 893.80(1). E-Z Roll Off, LLC v. Cnty. of Oneida, 2010 WI App 76, ¶ 1, 325 Wis. 2d 423, 785 N.W.2d 645.

II. DISCUSSION

A. Standard of Review

¶ 62. The circuit court dismissed E-Z's claim on summary judgment. We review summary judgment using the same methodology as did the circuit court and the court of appeals. Grygiel v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶ 12, 328 Wis. 2d 436, 787 N.W.2d 6. This summary judgment turns on statutory interpretation. Statutory interpretation presents a question of law for our independent review, in which we benefit from the discussions in previous court decisions. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis. 2d 541, 749 N.W.2d 581. As we interpret Wis. Stat. § 893.80(1), we assess its interaction with the ch. 133 claim made herein. The interaction of E-Z's ch. 133 claim with the obligations set out in § 893.80(1) presents a question of law for our independent consider*752ation. Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, ¶ 4, 265 Wis. 2d 422, 665 N.W.2d 379.

B. E-Z's Contention

¶ 63. E-Z contends that Oneida County violated Wis. Stat. § 133.03(1) through its contract with Waste Management. Oneida County contracted to pay Waste Management $24.50 per ton for solid waste removal, and combined that payment with a $5.25 per ton tipping fee that Oneida County charged Waste Management. This contractual tipping fee of $5.25 is a $49.75 per ton reduction in charges on the solid waste that Waste Management dumped into the Oneida County landfill, not just solid waste that is hauled for Oneida County. E-Z alleged that the contract was an unreasonable restraint of trade in that it "permits Waste Management, Wisconsin, Inc., to under bid and drive out competition in Oneida County and the areas which the Oneida County Transfer Station has traditionally served,"4 because Waste Management was charged $49.75 less per ton to dump solid waste at the Oneida County landfill than were other users of the landfill.

¶ 64. Stated otherwise, E-Z alleges that if Waste Management had been required to pay the $54 per ton tipping fee as E-Z was, Waste Management would have had to increase the prices it offered to customers for whose business E-Z was competing. It is argued that the lower tipping fee permitted Waste Management to compete unfairly with E-Z.

¶ 65. In regard to Wis. Stat. § 893.80(1), E-Z does not argue that it timely filed a notice of claim. Rather, E-Z contends that it is not required to comply with § 893.80(1) because its ch. 133 claim falls outside of the *753scope of § 893.80(l)'s command, and further, even if it were required to comply with § 893.80(1), Oneida County had actual notice of its claim. The court of appeals agreed with E-Z's first argument, concluding that ch. 133 claims are not required to comply with § 893.80(1). E-Z Roll Off, 325 Wis. 2d 423, ¶ 1. I agree with the court of appeals.

C. Statutory Concerns

1. Notice of claim

¶ 66. Wisconsin Stat. § 893.80(1) provides in relevant part:

Except as provided in subs, (lg), (lm), (1) and (8),5 no action may be brought or maintained against any... political corporation, governmental subdivision or agency thereof... for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the . . . political corporation, governmental subdivision or agency... under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if... the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant ...; and
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk . . . and the claim is disallowed.

*754¶ 67. Although we once stated that Wis. Stat. § 893.80(1) applies to all types of actions, not just to tort actions, DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994), we have modified that statement as being overly broad. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 597, 547 N.W.2d 587 (1996). In addition, numerous appellate opinions have identified various exceptions to the statutory notice of claim requirements. See id. at 596 (noting that § 893.80(5) expressly states that specific rights and remedies provided by other statutes take precedence over the provisions of § 893.80 and concluding that § 893.80(1) does not apply to claimed violations of the open records law); see also Gillen v. City of Neenah, 219 Wis. 2d 806, 822-23, 580 N.W.2d 628 (1998) (concluding that § 893.80(1) does not apply to actions under Wis. Stat. § 30.294 to enjoin violations of the public trust doctrine); Oak Creek, 304 Wis. 2d 702, ¶ 2 (concluding that § 893.80(1) does not apply to an action to compel a city to comply with the direct legislation statute); Town of Burke v. City of Madison, 225 Wis. 2d 615, 617-18, 593 N.W.2d 822 (Ct. App. 1999) (concluding that actions objecting to annexation brought under Wis. Stat. § 66.021 are not required to comply with § 893.80(1)); Gamroth v. Vill. of Jackson, 215 Wis. 2d 251, 259, 571 N.W.2d 917 (Ct. App. 1997) (concluding that special assessment appeals brought under Wis. Stat. § 66.60(12)(a) fall outside of § 893.80(l)'s requirements).

¶ 68. Based on our analysis in Auchinleck, a three-part test has evolved by which courts assess whether the claimant is required to comply with Wis. Stat. § 893.80(1) for the claim presented. Oak Creek, 304 Wis. 2d 702, ¶ 7 (citing Nesbitt Farms, 265 Wis. 2d 422, ¶ 9. This three-part test provides:

*755"(1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; (2) whether enforcement of § 893.80(1), Stats., would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and (3) whether the purposes for which § 893.80(1) was enacted would be furthered by requiring that a notice of claim be filed."

Id. (quoting Nesbitt Farms, 265 Wis. 2d 422, ¶ 9). Accordingly, I begin with Wis. Stat. § 133.03(1), the claim herein made.

2. Wisconsin Stat. § 133.03(1)

¶ 69. E-Z claims anticompetitive conduct that it alleges is regulated by ch. 133, specifically Wis. Stat. § 133.03(1). Section 133.03(1) addresses anticompetitive contracts in restraint of trade. Section 133.03(1) provides in relevant part: "Unlawful contracts; conspiracies. (1) Every contract... in restraint of trade or commerce is illegal." It is this § 133.03(1) claim that the circuit court dismissed on summary judgment because the notice of claim provisions of Wis. Stat. § 893.80(1) had not been met. Accordingly, I consider the viability of E-Z's ch. 133 claim in light of § 893.80(1) and the requisite three-part test for exceptions thereto.

a. Specific statutory scheme

¶ 70. Chapter 133 sets out a specific statutory scheme that addresses anticompetitive conduct that is quite comprehensive. First, it defines those who are covered by the prohibitions contained therein. Wis. Stat. § 133.02(3). Second, it sets out various prohibited practices: Wis. Stat. § 133.03 (unlawful contracts; conspiracies), Wis. Stat. § 133.04 (price discrimination; intent to destroy competition), Wis. Stat. § 133.05 (se*756cret rebates; unfair trade practices) and Wis. Stat. § 133.06 (interlocking directorates). Third, ch. 133 provides for discovery in regard to alleged violations. Wis. Stat. § 133.13. Fourth, remedies are established for contraventions of ch. 133: Wis. Stat. § 133.14 (illegal contracts are void); Wis. Stat. § 133.16 (injunctive relief, temporary and permanent, and attorney fees may be accorded); and Wis. Stat. § 133.18 (damages and attorney fees are available).

¶ 71. The enforcement of a claim for relief due to an alleged restraint of trade by contract has been specifically provided for by the legislature in Wis. Stat. § 133.03(1). Not only is such a claim proscribed, but the legislature has specified various types of relief that a court can award. See e.g., Wis. Stat. § 133.14 (illegal contracts are void); Wis. Stat. § 133.16 (injunctive relief, temporary and permanent, and attorney fees may be accorded); and Wis. Stat. § 133.18 (damages and attorney fees are available). Accordingly, I conclude that E-Z's § 133.03(1) claim is part of a specific statutory scheme and therefore, it satisfies the first part of the requisite test for an exception to the directives of Wis. Stat. § 893.80(1).6

*757b. Preference for prompt resolution

¶ 72. The next step is to assess whether enforcement of Wis. Stat. § 893.80(1) would contravene a legislative preference for prompt resolution of ch. 133 claims. Wisconsin Stat. § 133.18 assists me in this assessment. Section 133.18(5) requires that "[e]ach civil action under this chapter and each motion or other proceeding in such action shall be expedited in every way and shall be heard at the earliest practicable date." However, Oneida County has 120 days after the filing of a notice of claim under § 893.80(1) to respond to a contention that it has entered into an illegal contract in restraint of trade. This time lag is in conflict with "expedited" procedures that the legislature has chosen for ch. 133 claims.

¶ 73. Furthermore, Wis. Stat. § 133.16 provides for both temporary and permanent injunctive relief. It directs, "pending the filing of the answer ... [a court] may, at any time, upon proper notice, make such temporary restraining order or prohibition as is just." We have noted that a statutory scheme that provides for immediate *758injunctive relief is inconsistent with Wis. Stat. § 893.80(l)'s requirements. Gillen, 219 Wis. 2d at 822. A party bringing a claim pursuant to Wis. Stat. § 133.03(1) has a statutory right to seek temporary and permanent injunctive relief. Requiring a party to wait 120 days before being able to use the statutory remedies that the legislature set out would be contrary to the legislature's stated purpose that ch. 133 "be interpreted in a manner which gives the most liberal construction to achieve the aim of competition." Wis. Stat. § 133.01. Accordingly, I conclude that E-Z has satisfied the second part of the requisite test for an exception to the directives of § 893.80(1).

c. Purposes underlying Wis. Stat. § 893.80(1)

¶ 74. The third part of the test for assessing a claimed exception to the directives of Wis. Stat. § 893.80(1) is whether the purposes underlying § 893.80(1) would be furthered by requiring that a notice of claim be filed. The purposes underlying § 893.80(1) are to permit timely investigation of claims so that the facts are not stale and to facilitate settlement of those that are meritorious. Thorp v. Town of Lebanon, 2000 WI 60, ¶¶ 23, 28, 235 Wis. 2d 610, 612 N.W.2d 59. However, as a party to the contract that E-Z alleges is in restraint of trade, little investigation would be needed by Oneida County, and settlement appears unlikely.

¶ 75. In addition, in this step, it is worth noting that Wis. Stat. § 133.18(4) provides, "A cause of action arising under this chapter does not accrue until the discovery, by the aggrieved person, of the facts constituting the cause of action." The circuit court concluded that the "event" that gives rise to the obligation to give notice within 120 days is the June 2003 signing of the contract between Waste Management and Oneida *759County.7 However, E-Z did not learn of the $5.25 tipping fee that Waste Management was awarded as part of that contract until February 2004. Therefore, by the time E-Z had knowledge of the facts giving rise to its ch. 133 claim, 120 days had long since passed, if the circuit court is correct about the event leading to the notice of claim requirement. Stated otherwise, Oneida County could not timely investigate a claim E-Z did not know it had. That is what is alleged to have happened here.8

¶ 76. Furthermore, if Wis. Stat. § 893.80(1) were applied to E-Z's claim, it never could have employed the statutes that the legislature enacted to promote competition and to restrict restraints of trade. A defendant could simply say that the complaining party learned of the violation too late and as a result, the defendant is not required to do anything about it. Surely, that is not what the legislature sought to achieve either under § 893.80(1) or ch. 133.

¶ 77. Therefore, I conclude that E-Z has satisfied the third part of the requisite test for an exception to the directives of Wis. Stat. § 893.80(1). Accordingly, I *760conclude that E-Z's Wis. Stat. § 133.03(1) claim is excepted from § 893.80(l)'s notice requirements.

III. CONCLUSION

¶ 78. I conclude that E-Z makes a restraint of trade claim under ch. 133 of the Wisconsin Statutes that meets the three-part test for an exception to the requirements of Wis. Stat. § 893.80(1): (1) ch. 133 provides a specific statutory scheme for the identification and resolution of claims; (2) compliance with § 893.80(1) would hinder the legislature's preference for prompt action on ch. 133 claims; and (3) the purposes for which § 893.80(1) was enacted would not be furthered by requiring a notice of claim to be filed for ch. 133 claims. Accordingly, I would affirm the court of appeals and I respectfully dissent from the majority opinion.

¶ 79. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. (The 2005-06 are applicable to the notice question presented; however, the 2009-10 statutes referenced herein are the same as the 2005-06 version of § 893.80(1) in all relevant parts.)

E-Z went out of business in May, 2008.

Compl., ¶ 3.

Compl., ¶¶ 3,4,6,7.

None of these listed exceptions apply here.

In concluding that ch. 133 contains a specific statutory scheme, the court of appeals relied on Gillen v. City of Neenah, 219 Wis. 2d 806, 580 N.W.2d 628 (1998). E-Z Roll Off, LLC v. Cnty. of Oneida, 2010 WI App 76, ¶ 18, 325 Wis. 2d 423, 785 N.W.2d 645. The majority opinion concludes that the reasoning of Gillen is "instructive," yet "inapplicable to the present case." Majority op., ¶ 28. In so concluding, the majority states that "[i]n contrast to the plaintiffs in Gillen, E-Z does not seek immediate injunctive relief under Wis. Stat. § 133.16. Rather, E-Z seeks declaratory relief and damages under Wis. Stat. § 133.18." Id. However, the distinction between the remedy sought by the plaintiffs in Gillen and the remedy E-Z sought in *757its complaint is not relevant to the determination of whether ch. 133 comprises a specific statutory scheme. Surely, a specific statutory scheme can include more than one section of a chapter. Here, the entirety of ch. 133 addresses anticompetitive conduct. The scheme is quite specific and quite comprehensive. Stated otherwise, the statutory scheme includes several statutory sections.

Furthermore, by considering only a single statutory section, specifically Wis. Stat. § 133.18, rather than the entire statutory scheme set out in ch. 133 that proscribes anticompetitive conduct, the majority's focus is too narrow. For example, a Wis. Stat. § 133.03(1) claimant could seek both damages under § 133.18 and a temporary and/or permanent injunction under Wis. Stat. § 133.16. Under the majority's reasoning, would that ch. 133 claim be an exception to the notice of claim provisions of Wis. Stat. § 893.80(1) given our decision in Gillen?

The majority concludes that it does not need to determine what "event" gave rise to the obligation to give notice, and consequently when the cause of action began to accrue. The majority so concludes because even if it accepted E-Z's argument that the cause of action did not accrue until it learned of the agreement in February, 2004, more than 120 days passed between when the cause accrued and E-Z's filing of the notice of claim in September 2005. Majority op., ¶ 43.

Although Oneida County implies that this may not be an accurate statement of fact, on a motion for summary judgment the facts are construed to favor the non-moving party. DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶ 7, 302 Wis. 2d 564, 734 N.W.2d 394.