2010 WI App 92
court of appeals of
published opinion
Case No.: |
2009AP1319 |
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Complete Title of Case: |
†Petition For Review Filed |
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Isadore Turner, †Plaintiff-Appellant, v. Matthew Sanoski and Marilyn Jensen,
Defendants-Respondents. |
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Opinion Filed: |
June 22, 2010 |
Submitted on Briefs: |
April 13, 2010 |
Oral Argument: |
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JUDGES: |
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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 Peter J. Nickitas of Peter J. Nickitas Law Office, LLC, |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of James A. Wade of Johnson, Killen & Seiler, P.A., |
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2010 WI App 92
COURT OF APPEALS DECISION DATED AND FILED June 22, 2010 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 |
IN COURT OF APPEALS |
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Isadore Turner,
Plaintiff-Appellant, v. Matthew Sanoski and Marilyn Jensen,
Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PETERSON, J. Isadore Turner appeals a judgment dismissing his malicious prosecution claim against Matthew Sanoski and Marilyn Jensen. Turner argues the circuit court erred by concluding his claim was time-barred by the two-year statute of limitations set forth in Wis. Stat. § 893.57.[1] We affirm.
BACKGROUND
¶2 On
¶3 Sanoski and Jensen moved to dismiss, arguing Turner’s claim was time-barred by Wis. Stat. § 893.57. That statute prescribes a two-year limitation for “[a]n action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person ....” Sanoski and Jensen contended malicious prosecution is an intentional tort to the person and therefore subject to the two-year limitation. Turner countered that case law has held that malicious prosecution claims are subject to the six-year statute of limitations set forth in Wis. Stat. § 893.53.
¶4 The circuit court agreed with Sanoski and Jensen that
malicious prosecution claims are subject to the two-year statute. It noted the legislature added the phrase “or
other intentional tort” to Wis.
DISCUSSION
¶5 The only issue in this appeal is which statute of limitations
applies to a claim for malicious prosecution.
The determination of the proper statute of limitations presents a
question of law we review independently. State v.
¶6 Turner argues that case law has long held that the statute of
limitations for malicious prosecution is six years. He contends this rule was established in Pratt
v. Page, 18 Wis. 355 (1864), and affirmed more recently in Segall
v. Hurwitz, 114
¶7 Turner’s reliance on Segall is misplaced for two reasons. First, it ignores the legislature’s revision to Wis. Stat. § 893.57, which expanded the scope of claims subject to the two-year statute. Second, it fails to acknowledge that Segall applied the prior version of the statute.
¶8 Wisconsin Stat. § 893.57’s predecessor prescribed a two-year statute of limitations for “[a]n action to recover damages for libel, slander, assault, battery, invasion of privacy or false imprisonment.” Wis. Stat. § 893.21(2) (1977). However, in 1979, the legislature renumbered and amended the statute, adding to the list of claims, “or other intentional tort to the person.” Wis. Stat. § 893.57.
¶9 Furthermore, although we decided Segall in 1983, the case dealt with the 1977 version of the statute because the action there had accrued before the statute’s revision. Segall’s interpretation of the statute of limitations has no applicability to the 1979 revised statute we are dealing with here. [4]
¶10 Turner also relies on legislative history and other secondary
sources. Whether Wis. Stat. § 893.57 encompasses claims for malicious
prosecution is a question of statutory interpretation. When ascertaining the meaning of a statute,
“[w]e assume that the legislature’s intent is expressed in the statutory language.” State ex rel. Kalal v. Circuit Court for
Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 NW.2d 110. Therefore, we resort to extrinsic sources of
legislative intent only when the language of the statute is ambiguous.
¶11 Accordingly, our determination of whether malicious
prosecution is governed by Wis.
¶12 Turner does not dispute malicious prosecution is an intentional
tort.[5] Instead, he argues that it is not “to the
person.”[6] We reject this argument. A tort to the person—or personal tort—is “[a]
tort involving or consisting in an injury to one’s person, reputation, or
feelings, as distinguished from an injury or damage to real or personal
property.” Black’s Law
Dictionary 1527 (8th ed. 2004). Malicious prosecution concerns a person’s
“right to be free of unjustifiable litigation.”
¶13 Accordingly, because malicious prosecution is an intentional
tort to the person, the Wis.
By the Court.—Judgment affirmed.
[1] References to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] 1979 A.B. 326.
[3]
Segall
v. Hurwitz, 114
[4] Although Turner cites other cases he claims support his position, he cites no case that has applied the statute of limitations for malicious prosecution since the legislature’s revision of Wis. Stat. § 893.57.
[5]
There is no question that malicious prosecution is an intentional tort. See
Elmer
v. Chicago & N.W. Ry. Co., 257
[6]
Turner’s reply brief appears to be the first instance he argues Wis.