2009 WI App 162
court of appeals of
published opinion
Case No.: |
2008AP2141 |
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Complete Title of Case: |
†Petition for Review filed. |
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Philip Sliwinski, Plaintiff-Appellant, v. City of Defendant-Respondent.† |
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Opinion Filed: |
October 6, 2009 |
Submitted on Briefs: |
April 29, 2009 |
Oral Argument: |
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JUDGES: |
Curley, P.J., Kessler and Brennan, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Jonathan Cermele and Matthew L. Granitz of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was submitted on the briefs of Grant F. Langley, city attorney, and Jan A. Smokowicz, assistant city attorney. |
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2009 WI App 162
COURT OF APPEALS DECISION DATED AND FILED October 6, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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Philip Sliwinski, Plaintiff-Appellant, v. City of Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 BRENNAN, J. This action arises out of Philip Sliwinski’s claim for back pay, benefits and penalties under Wis. Stat. ch. 109 (2007-08).[1] There are two issues in this appeal: (1) whether Sliwinski can bring a claim for his back pay and benefits under ch. 109; and (2) whether this appeal is moot.
¶2 As to the first issue, the circuit court denied Sliwinski’s
motion for summary judgment and granted the City of
¶3 As to the second issue, mootness, at oral argument before us
on June 18, 2009, the City orally moved to dismiss this appeal for
mootness based on the fact that Sliwinski had recently obtained (or was in the
process of obtaining) the remedies he sought—namely, a writ of mandamus and back
pay and
benefits—and therefore, the City argues that the appeal is now moot. Additionally, the City argues that Wis. Stat. § 783.05 and the
doctrine of claim preclusion require that this action be dismissed. Sliwinski disagrees.
¶4 We agree with Sliwinski that this appeal is not moot because: (1) Sliwinski has not received all of his back pay and benefits[2] and Wis. Stat. ch. 109 provides possible remedies in addition to them; (2) Wis. Stat. § 783.05 does not bar this claim because Sliwinski had not been paid when this claim was filed; and (3) claim preclusion does not apply because there is no identity of issues. Therefore, we reverse the orders of the circuit court and remand the case to the circuit court for further proceedings.
Background
¶5 Sliwinski has filed four circuit court actions and pursued
three appeals, all in an effort to challenge his discharge from the Milwaukee
Police Department and to obtain back pay and benefits. The facts underlying these cases began in
November 2002, when the then chief of police discharged Sliwinski, a City of
¶6 A Milwaukee County Circuit Court judge upheld the Board’s
decision on certiorari review,[3]
and Sliwinski appealed the circuit court’s decision.
In January 2006, we reversed the decision to discharge Sliwinski and remanded for a due-process-compliant hearing,
concluding that the hearing examiner had erred in excluding significant
evidence at Sliwinski’s dismissal hearing. Sliwinski
v. Board of Fire and Police Comm’rs, 2006 WI App 27, ¶1, 289
¶7 In April 2006, approximately three months after our decision
in Sliwinski
I, Sliwinski filed his second action in Milwaukee County Circuit Court,
this time for deprivation of property without due process because the Board had
not yet provided him with a new hearing or paid him. The City of
¶8 In April 2007, Sliwinski filed his third circuit court
action, a petition for a writ of mandamus.
The circuit court[4]
ultimately denied his petition, and Sliwinski appealed. In June 2008, in Sliwinski v. City of Milwaukee,
2008 WI App 119, 313 Wis. 2d 253, 757 N.W.2d 76 (Sliwinski II), we reversed
the circuit court’s decision, saying that Sliwinski had a “‘clear, specific
legal right’” to his
pay and benefits under Wis. Stat.
§ 62.50(18). Sliwinski
II, 313
¶9 On the day before filing his petition for a writ of mandamus in the circuit court, Sliwinski began the process of filing his Wis. Stat. ch. 109 wage claim, by filing a Claim and Notice of Circumstances with the City. Then in October 2007, Sliwinski filed this action for wages, benefits and penalties under ch. 109 in Milwaukee County Circuit Court. In September 2008, the circuit court[5] entered judgment, denying Sliwinski’s motion for summary judgment on his ch. 109 claims and granting the City’s motion for judgment on the pleadings. The City put Sliwinski back on the payroll in September 2008.
¶10 While this case was on appeal, the circuit court[6] in Sliwinski II, granted Sliwinski’s petition for a writ of mandamus, following our directive and ordered the City to pay Sliwinski $372,770.25: $328,321.49 in back pay and benefits, and $44,448.76 in statutory interest. In July 2009, the City paid Sliwinski $308,025.37 for back pay and has recommended to the Milwaukee Common Council that it pay him $54,431.86 for his benefits. In its brief, the City asserted that the Common Council was expected to act on the recommendation by September 15, 2009. As we noted in footnote 2, the Common Council approved the payment on September 14, 2009.
¶11 At oral arguments on this appeal, in June 2009, the City argued that the appeal was now moot because the circuit court issued the writ and ordered payment. Sliwinski disputed the mootness argument, a new briefing schedule was set up to address it and the parties have briefed the issue. The City argues that the appeal is moot because the back wages have been paid, the benefits will be paid soon, and both Wis. Stat. § 783.05 and the doctrine of claim preclusion require that this action be dismissed. Sliwinski argues that the benefits have not been paid and that the case is not moot under any of the City’s theories. We will incorporate our decision on the City’s motion for mootness into our decision in this case.
Standard
of Review
¶12 We review orders for summary judgment independently, employing
the same methodology as the circuit court. Green
Spring Farms v. Kersten,
136
¶13 Whether Wis. Stat.
ch 109’s definition of “wages” includes the pay and benefits of Wis. Stat. § 62.50(18) is a
question of statutory construction which we review de novo. See Stuart v. Weisflog’s Showroom Gallery, Inc., 2008 WI 22, ¶11, 308
¶14 Whether the doctrine of claim preclusion
has rendered this appeal moot is a matter we review de novo. See Mrozek v. Intra Fin. Corp.,
2005 WI 73, ¶15, 281
Discussion
I. Sliwinski’s Back Pay and
Benefits are Wages, as Defined by Wis. Stat. ch.
109.
¶15 The question in this appeal is whether Sliwinski’s back pay and benefits are included in the Wis. Stat. § 109.01(3) definition of “wages.” Sliwinski filed a complaint and later a summary judgment motion, claiming he was entitled to wages under § 109.01(3) or (4) and wage deficiencies and penalties under ch. 109 due to the City’s failure to pay him since his discharge, which was later reversed by this court. The City responded by answer and motion for judgment on the pleadings, arguing that Sliwinski’s postdischarge pay was not included in the definition of “wages” in § 109.01(3) because he had not performed personal services after he was discharged by the police chief and during the time the Board’s decision was under review in the circuit and appellate courts.[7] The circuit court agreed with the City, granted the City’s motion and dismissed the complaint.
¶16 To determine the meaning of Wis.
Stat. § 109.01(3), we first look to its plain language. See Kalal, 271
remuneration payable to an employee for personal services, including salaries, commissions, holiday and vacation pay, overtime pay, severance pay or dismissal pay, supplemental unemployment benefit plan payments when required under a binding collective bargaining agreement, bonuses and any other similar advantages agreed upon between the employer and the employee or provided by the employer to the employees as an established policy.
(Emphasis added.)
¶17 A Wis. Stat. ch.
109 wage claim is meant to be a procedure for employees to get prompt payment
of monies clearly owed to them by their employers. This interpretation of the plain language of
the statute is consistent with our supreme court’s determination of the legislative
purpose behind ch. 109. In German
v. DOT, 2000 WI 62, 235
¶18
¶19 Construing Wis. Stat. § 109.01(3)
as the circuit court did would eliminate coverage of the items the statute has
listed as covered. It would eliminate
any employees’ wage claims for vacation pay, supplemental unemployment benefit
plan payments, severance pay or dismissal pay because in each case, using the
circuit court’s rationale, the employee is not performing actual work during
the time period of the claim. We are to
avoid absurd results in our construction of the meaning of statutes and
to give the statute’s words their plain meaning. Kalal, 271
¶20 The second requirement of wages under Wis. Stat. § 109.01(3) is that they must be based on personal services that the employer has agreed to pay or has a clear policy of paying for. The final clause of § 109.01(3) sets forth the second facet, defining wages as only including “payments” that are:
required under a binding collective bargaining agreement, bonuses and any other similar advantages agreed upon between the employer and the employee or provided by the employer to the employees as an established policy.
It is evident from this language that the common feature of the listed entitlements to remuneration is an agreement or policy that makes it clear that the employee is entitled to them, for example: a collective bargaining agreement, an employment contract or the employer’s established policy. When the employee has performed actual work that the employer has committed to paying the employee for under a clear agreement or policy, ch. 109 is available as a mechanism for an employee to obtain payment of what is clearly due to him or her.
¶21 This interpretation of the statute is consistent with the
Wisconsin Supreme Court’s holding in German. In German, the
supreme court held that DOT officers who were required to be on call during
their lunch hours were entitled to wages for that time period.
¶22 The DOT countered that Wis.
Stat. § 103.005 (1995-96) provided the exclusive remedy for the
officers’ claims and that Wis. Stat.
ch. 109 was meant to be narrowly construed to be “simply a mechanism to compel
employers to issue paychecks promptly.” German,
235
¶23 The court rejected the DOT’s narrow construction of Wis. Stat. ch. 109. Then the court used the same method
of analysis that we do here, comparison of the claimed work to the list of
examples in Wis. Stat. § 109.01(3). See
German,
235
¶24 The holding in German, that being on call entitled the DOT officers to wages, is further evidence that Wis. Stat. § 109.01(3) does not require “actual work performed” as the circuit court held here. The fact that the DOT officers were not actually called upon to do any work during their on-call hours was not an impediment to their being paid under Wis. Stat. ch. 109. Likewise, the fact that Sliwinski was not actually called upon to work during his discharge period is not an impediment to his wages claim under ch. 109. Sliwinski, like the DOT officers, was clearly entitled to be paid for the discharge period as we held in Sliwinski II, although his entitlement was based on a statute (Wis. Stat. § 62.50(18)) and theirs was based on an administrative code provision. Accordingly, we conclude that the circuit court erred in dismissing Sliwinski’s claim under § 109.01(3).
¶25 The City relies on DILHR v. Coatings, Inc., 123
What Beaudet really seeks are liquidated damages based on Milrod’s alleged breach of the employment contract. Under the employment contract, Beaudet would be entitled to damages if it were determined that Milrod terminated his employment without cause. Thus, Beaudet seeks to adjudicate whether he was fired for cause or without cause. Beaudet may have a valid breach of contract claim, but it is not the type of claim embraced by ch. 109, Stats., and not one to be brought by DILHR.
Coatings, 123
¶26 That holding is consistent with the legislative policy behind Wis. Stat. ch. 109, as expressed in German—namely,
to assure the prompt payment of
wages—and it is consistent with our view that a ch. 109 wage claim requires no
dispute as to entitlement. See German, 235
II. This appeal is not moot.
¶27 While this Wis. Stat. ch. 109 action was on appeal, the City moved to dismiss the appeal for mootness on the grounds that Sliwinski had obtained a writ of mandamus, had received most of his pay and would shortly receive the rest. The City claims the actual and recommended payments render the appeal moot for three reasons: (1) Wis. Stat. § 783.05 precludes the ch. 109 claim because the writ of mandamus has been returned; (2) Sliwinski has been paid in part and will soon receive the balance of what he is owed; and (3) the doctrine of claim preclusion bars Sliwinski’s ch. 109 claim. Sliwinski disputes all three arguments. We agree with Sliwinski that this appeal is not moot because: (1) § 783.05 is not a bar because Sliwinski had not been paid when this action was filed; (2) Sliwinski has not received all of his back pay and benefits, and ch. 109 provides for possible additional remedies; and (3) claim preclusion does not apply because there is no identity of issues.
¶28 First, the City argues, without any case law support, that Wis. Stat. § 783.05 prohibits Sliwinski’s claim because the writ of mandamus has now been returned in the form of the back pay and benefit payments. The City interprets the statute to bar this Wis. Stat. ch. 109 claim because it characterizes Sliwinski’s claim as one “for the making of such return.” Section 783.05 states:
Recovery to bar another action. A recovery of damages by virtue of this chapter against any party who shall have made a return to a writ of mandamus shall be a bar to any other action against the same party for the making of such return.
(Emphasis added.)
¶29 We conclude that Sliwinski’s Wis. Stat. ch. 109 claim does not fall within the statutory bar because the statute bars actions made against the same party who has made a return to the writ of mandamus. In this case, Sliwinski filed his ch. 109 claim in April 2009 when no return of the writ of mandamus existed. The only return that has been made in this case is at best a partial return that did not happen until July 2009—twenty-six months after this action was filed. In addition, Sliwinski’s ch. 109 claim seeks possible remedies unrelated to the return of the writ of mandamus, such as attorney fees and a wage increase and, accordingly, cannot be viewed as being an action responsive to the return of the writ which only addressed the back pay and benefits. Accordingly, Wis. Stat. § 783.05 is not a bar to Sliwinski’s ch. 109 claim.
¶30 The City’s second mootness argument is that this appeal should be dismissed because Sliwinski has been fully paid. It is clear from the record that is not true. Even the City’s brief acknowledges that the payment made in July 2009 was for less than the amount the circuit court ordered.[8] At best, as of the date of oral argument, Sliwinski had the City’s assurances that it would recommend that the Common Council approve the additional payment to Sliwinski. And even when and if fully paid, Wis. Stat. ch. 109 provides other remedies for an employee denied prompt payment of wages, including attorney fees and wage increases that are not resolved by the City’s July 2009 payment. We do not decide Sliwinski’s entitlement to those additional remedies because they require additional factual findings from the circuit court.
¶31 As to the City’s claim preclusion argument, it fails because of
a lack of identity of parties and issues.
The supreme court, in A.B.C.G. Enterprises v.
First Bank Southeast, 184
¶32 Here, there is neither identity of parties nor of causes of
action between this Wis. Stat.
ch. 109 action and the mandamus action.
The Milwaukee Police Association and Sliwinski were both plaintiffs in
the mandamus action. The Milwaukee
Police Association is not a party to the ch. 109 action. And as we noted in Sliwinski II, a ch. 109
wage claim “would not vindicate the interests of the Police Association.” See
Sliwinski
II, 313
¶33 The mandamus cause of action is an extraordinary legal remedy
with elements of proof very different from those in a Wis. Stat. ch. 109 wage claim action. “A party seeking mandamus must also show that
the duty sought to be enforced is positive and plain; that substantial damage
will result if the duty is not performed; and that no other adequate remedy at
law exists.” Sliwinski II, 313
¶34 We note that the City does not argue issue preclusion. Nor does Sliwinski object to the writ itself or the amount of the return. The City’s argument is claim preclusion. “‘Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties [or their privies] as to all matters which were litigated or which might have been litigated in the former proceedings.’” Kowske v. Ameriquest Mortgage, 2009 WI App 45, ¶19, 317 Wis. 2d 500, 767 N.W.2d 309 (quoting Menard, Inc. v. Liteway Lighting Prods., 2005 WI 98, ¶26, 282 Wis. 2d 582, 698 N.W.2d 738) (alterations in Kowske). A final judgment in the mandamus action would not resolve the issues of attorney fees or increased wages in the Wis. Stat. ch. 109 action. And the attorney fees and increased wages penalties in ch. 109 could not have been litigated in the mandamus action. Accordingly, claim preclusion does not apply.
¶35 Based on the foregoing, we conclude that Sliwinski’s back pay and benefits, from the date of his previously reversed discharge until the City holds the due process hearing we ordered, are wages and wage deficiencies within the meaning of Wis. Stat. § 109.01(3) and (4). Accordingly, we reverse the circuit court’s grant of the City’s motion for judgment on the pleadings and denial of Sliwinski’s motion for summary judgment. We remand to the circuit court for further Wis. Stat. ch. 109 proceedings as to Sliwinski’s entitlement to attorney fees and wage increases under that chapter.
By the Court.—Judgment reversed and cause remanded; motion to dismiss denied.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] We
note that although it is not part of the record, we are aware that the
Milwaukee Journal Sentinel Online reported that the City of
detective’s settlement,
[3] The Honorable Patricia McMahon was assigned to the certiorari action.
[4] The Honorable Clare L. Fiorenza was assigned to the third circuit court action.
[5] The Honorable John Franke was assigned to the Wis. Stat. ch. 109 action.
[6] The Honorable Timothy Dugan presided over the writ of mandamus action on remand.
[7] We
note that in Sliwinski II, the City argued against the writ of
mandamus on the grounds that Sliwinski had adequate remedies at law, such as
filing a Wis. Stat. ch. 109
claim. See Sliwinski II, 2008
WI App 119, ¶6, 313
[8] The difference in amounts between the circuit court’s mandamus order ($372,770.25) and the actual payment made by the City in July 2009 ($308,025.37) and the approved payment ($54,431.86) has not been challenged by Sliwinski in this appeal nor does this record show whether he objected to the return of the writ of mandamus.