|
COURT OF APPEALS
DECISION
DATED AND FILED
August 24, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
|
|
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.
|
|
|
Appeal No.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
DISTRICT I
|
|
|
|
|
|
|
|
Paul A. Butler,
Plaintiff-Appellant,
v.
Ryan J. Schrieber, Angel Soto, Genesis Group, Central
Protective Services and CEC Entertainment, Inc.,
Defendants-Respondents.
|
|
|
|
|
|
|
|
|
APPEAL
from an order of the circuit court for Milwaukee County: timothy
g. dugan, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. The circuit court
dismissed a complaint brought by Paul A. Butler because it was filed after the
two-year statute of limitations of
Wis. Stat. § 893.57
(2005-06)
expired. Butler appeals, and argues that application
of the discovery rule should save his lawsuit.
We disagree and, therefore, affirm the order of dismissal.
BACKGROUND
¶2 For purposes of appellate review of the motions to dismiss,
the factual allegations of the complaint, and all reasonable inferences from
those allegations, are taken as true. See John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 320, 565 N.W.2d 94
(1997). Accordingly, we set forth the
following facts, taken from Butler’s
complaint.
¶3 On December 17, 2006, Ryan Schrieber, an employee of Central
Protective Services (CPS), a private security firm employed by a Chuck E. Cheese
restaurant, observed a car driving recklessly through the restaurant’s parking
lot. Schrieber stopped the car which was
being driven by Butler. Schrieber, who was wearing a police-style
uniform, “ordered” Butler
out of the car, by “us[ing] intimidation … [and] placing his hand on his
firearm.” Schrieber handcuffed Butler and searched
him. Schrieber “radioed something,” and
“[m]oments later,” two persons, identified in the complaint as John Doe 101 and
John Doe 102, “both wearing uniforms and handguns, came running from” the
restaurant. Butler denied driving recklessly and
“demanded to be released.”
¶4 Another CPS security officer, Angel Soto,
and the manager of the restaurant, John Doe 104, “called the police and
falsified a complaint to get the police to … arrest” Butler.
The transcript of the police dispatch, attached to Butler’s complaint, recites:
Caller and manager were having trouble with a man at
Chuck [E.] Cheese. They chased him into
the parking lot where the security guard is not [sic] holding him. The man is wearing a holster for a gun, but
they cannot find the gun, need help ASAP.
Still in parking lot.
…
The security guard did not say why they chased this man
out of Chucky [sic] Cheese into the parking lot. The man is in custody. That would make me believe that the man is
cuffed. The main concern the security
guard has is the gun. Could it be still
in Chucky [sic] Cheese, could it be laying in the parking lot, could it be in
the person[’]s car[?] If believe that
there is some concern. How would you
like to take your child to Chucky [sic] Cheese and have your child find a
loaded gun. (Some uppercasing omitted).
¶5 In the complaint, Butler
denied being “chased out” of the restaurant or having “any confrontations” with
security guards inside the restaurant.
He also denied driving recklessly in the parking lot. Butler alleged that the security guards held
him in “unlawful custody for approximately 30 minutes before the police
arrived.” Butler alleged that his car was searched
twice by the police. After nothing
incriminating was found in the first search, “Schrieber told [the officer] to
search inside the glove compartment,” and then Schrieber gave a key to the
glove compartment to the officer. The
officer found a firearm in the glove compartment.
¶6 The incident in the parking lot led to an extended
supervision revocation hearing held on February 6, 2007. The two police officers who responded to the
parking lot and Schrieber testified. At
the hearing, Schrieber testified that “he was given authority for his actions
by his employer.” A transcript of the
revocation hearing was attached to Butler’s
complaint.
¶7 Based on the above factual allegations, Butler alleged fifteen causes of action
against several defendants. Butler
alleged causes of action for false imprisonment, invasion of privacy, and the
intentional infliction of emotional distress against Schrieber. Butler
alleged causes of action for “falsifying a complaint” and the intentional
infliction of emotional distress against Soto and John Doe 104, the manager of
the Chuck E. Cheese restaurant. Butler alleged causes of
action for false imprisonment and the intentional infliction of emotional
distress against John Doe 101 and John Doe 102, the other CPS security
guards. Butler alleged “vicarious
liability” claims against a John Doe 103; CPS; the Genesis Group,
an alleged employer of the four security guards; and CEC Entertainment, Inc.,
as the “utilize[r]” of CPS and its employees.
Butler filed his complaint on January 22, 2009.
¶8 All defendants moved to dismiss Butler’s complaint, arguing that it was
barred by the two-year statute of limitations for intentional torts set forth
in Wis. Stat. § 893.57. In opposition to the motion to dismiss,
Butler argued that the discovery rule should be applied, and that under that
rule, the statute of limitations did not begin to run until February 6, 2007,
the date of his revocation hearing. The
circuit court rejected Butler’s
arguments and granted the defendants’ motion to dismiss.
DISCUSSION
¶9 We first must determine the controlling limitation period for
the conduct alleged in Butler’s
complaint. Choosing the correct statute
of limitations is a question of law. See Estate of Hegarty v. Beauchaine,
2001 WI App 300, ¶14, 249 Wis. 2d 142, 638 N.W.2d 355. Wisconsin
Stat. § 893.57 sets forth the controlling statute of limitations
for intentional torts. That statute
states: “An action to recover damages
for libel, slander, assault, battery, invasion of privacy, false imprisonment
or other intentional tort to the person shall be commenced within 2 years after
the cause of action accrues or be barred.” All of the causes of action alleged by Butler are either
expressly mentioned in § 893.57—false imprisonment and invasion of
privacy—or clearly intentional torts—intentional infliction of emotional
distress and falsifying a complaint.
Therefore, we hold that the applicable statute of limitations was two
years.
¶10 The incident in the Chuck E. Cheese parking lot took place on
December 17, 2006, and Butler
filed his complaint on January 22, 2009, more than two years later. Unless the discovery rule applies to delay
the start of the limitations period, Butler’s
complaint must be dismissed.
¶11 Under the discovery rule, a cause of action accrues on the date
that the injury was discovered or with reasonable diligence should have been
discovered, not on the date of the act that resulted in the injury. See
Hansen
v.
A. H. Robins, Inc., 113 Wis. 2d
550, 560, 335 N.W.2d 578 (1983). The
discovery rule
tolls the statute of limitations until the plaintiff
discovers or with reasonable diligence should have discovered that he or she
has suffered actual damage due to wrongs committed by a particular, identified
person. Until that time, plaintiffs are
not capable of enforcing their claims either because they do not know they have
been wronged, or because they do not know the identity of the person who has
wronged them.
Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 315-16, 533 N.W.2d 780
(1995) (citation omitted). Therefore,
the question then becomes when Butler
“discovered or, in the exercise of reasonable diligence, should have discovered
that [he was] injured, and the cause of [his] injury.” John Doe 1 v. Archdiocese of Milwaukee,
2007 WI 95, ¶13, 303 Wis. 2d
34, 734 N.W.2d 827 (internal quotation marks and citation omitted). Although “[r]easonable diligence is
ordinarily a question of fact … when the facts and reasonable inferences that
can be drawn from them are undisputed, whether a plaintiff has exercised
reasonable diligence in discovering his or her cause of action is a question of
law.” Id. (internal quotation marks and citations
omitted).
¶12 Butler
contends that he did not know the extent or cause of his injuries, or the
identity of the tortfeasors until the February 6, 2007 revocation hearing at
which Schrieber testified. The law and
undisputed facts defeat Butler’s
contention.
¶13 The “discovery rule carries with it the requirement that the
plaintiff exercise reasonable diligence, which means such diligence as the
great majority of persons would use in the same or similar circumstances.” Spitler v. Dean, 148 Wis. 2d 630, 638,
436 N.W.2d 308 (1989). Butler “may not close [his] eyes to means of
information reasonably accessible to [him] and must in good faith apply [his]
attention to those particulars which may be inferred to be within [his]
reach.” Id.
Moreover, “the fact that a claim does not accrue until the plaintiff has
knowledge of a suable party does not necessarily mean that it does not accrue
until all suable parties are known.” Dakin
v. Marciniak, 2005 WI App 67, ¶15, 280 Wis. 2d 491, 695 N.W.2d 867. The discovery rule “is not a promise to
suspend limitations until optimal litigation conditions are established.” Id.
¶14 As a result of the incident in the parking lot, Butler was charged with
being a felon in possession of a firearm.
The textual portion of the criminal complaint stated that “Security
guard Ryan Schrieber said he observed the defendant driving very recklessly,
endangering the parking lot people and others outside that Chucky [sic] Cheese
and he saw the defendant move a dark object from waistband to glove
compartment,” and that “Schrieber stated that the holster the defendant [was]
wearing matches the gun and that the holster and gun are sold as a set.” At the defendants’ request, the circuit court
properly took judicial notice of the criminal file, circuit court case No.
2006CF6730. See Wis. Stat. § 902.01(2)(b)
(2007-08) (A court may take judicial notice of “[a] fact capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”). We do the same. See Teacher Ret. of Texas v. Badger XVI, Ltd.
P’ship, 205 Wis. 2d 532, 540 n.3,
556 N.W.2d 415 (Ct. App. 1996) (appellate court may take judicial notice of files
of the circuit court for Milwaukee
County). That file shows that the criminal complaint
was filed on December 20, 2006, and that Butler
was given a copy of the complaint at the December 21, 2006 initial
appearance. Thus, it is undisputed that Butler knew the identity
of Schrieber within days of the incident.
¶15 Moreover, Butler
obviously was present throughout the incident and, accordingly, he knew what
occurred in the parking lot of the Chuck E. Cheese restaurant. In his complaint, Butler acknowledges that John Doe 101 and
John Doe 102, the additional security guards “came running from Chuck E.
Cheese’s Restaurant.” Therefore, Butler knew, or with the
exercise of reasonable diligence should have known, that the security guards
were employed by Chuck E. Cheese. At
that point, even if Butler
did not know the name of the legal entity that operated the restaurant, a
reasonably diligent person could have filed suit against Chuck E. Cheese or ABC
Corporation, d/b/a Chuck E. Cheese, within the two-year limitation period, and
subsequently learned of the correct corporate name during discovery. As we noted in Dakin, a cause of action
accrues when the plaintiff has knowledge of a suable party even if the
plaintiff does not have actual knowledge of all suable parties. Dakin, 280 Wis. 2d at 505-06.
¶16 Lastly, Butler
relies on the fact that he was incarcerated, and he contends that he should not
be held to the same standards of diligence that might be ascribed to a
non-incarcerated person. Butler expressly relies on
Wis. Stat. § 893.16, which
operates to toll statutes of limitations under certain circumstances. Such reliance is misplaced, however, because
the portion of § 893.16(1) which made imprisonment a disability that
tolled a limitation period was repealed in 1998 as part of the Prison
Litigation Reform Act. See 1997 Wis. Act 133, § 37.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2007-08).