MICHAEL J. GABLEMAN, J.
¶ 1 This is a review of a published decision of the court of appeals reversing the circuit court order granting summary judgment in favor of Oneida County.
¶ 2 E-Z Roll Off, LLC (E-Z), which was paying a fee of $54.00 to Oneida County for each ton of municipal solid waste it delivered to the Facility, brought suit against Oneida County alleging that the agreement created an illegal restraint of trade in violation of Wis. Stat. § 133.03(1) (2005-06).
¶ 3 We hold that antitrust actions brought pursuant to Wis. Stat. § 133.18 are not exempt from the notice of claim requirements found in Wis. Stat. § 893.80(1). Additionally, we hold that E-Z did not meet the requirements of § 893.80(1)(a) when it failed to give Oneida County notice of its claim within the 120-day limitations period. Accordingly, we reverse the court of appeals and conclude that the circuit court properly granted summary judgment in favor of Oneida County.
¶ 4 E-Z was founded in 1996 by its owners Todd and Paula Laddusire. It was in the business of collecting solid waste from residential and commercial customers. From 1996 to 2003, E-Z was one of several companies that hauled solid waste to the Facility. During this time, Oneida County charged all haulers a $54.00 tipping fee for each ton of municipal solid waste that was delivered to the Facility.
¶ 5 On June 25, 2003, Oneida County executed an agreement with Waste Management. Pursuant to this agreement, Oneida County charged Waste Management a $5.25 tipping fee for each ton of municipal solid waste that it delivered to the Facility. All other haulers (including E-Z) continued to pay a $54.00 tipping fee. The agreement also required Waste Management to remove all loaded transfer trailers from the Facility and transport them to an approved landfill. Under the agreement, Oneida County paid Waste Management $24.50 for each ton of municipal solid waste that was loaded onto Waste Management trucks for transportation to such a landfill.
¶ 6 The parties dispute the point in time when E-Z learned of Oneida County's agreement with Waste Management. E-Z contends that it first learned of the agreement in February 2004 when one of its employees was present at the Facility and saw a scale ticket that showed the lower tipping fee charged to Waste Management. Oneida County claims that E-Z received notice of the agreement via a public request for proposals that was published in April 2003. In addition, Oneida County claims that Todd Laddusire attended a meeting in June 2003 in which Oneida County Solid Waste Director Bart Sexton advised interested haulers of the proposed $5.25 tipping fee as well as the other terms which were eventually incorporated into Oneida County's contract with Waste Management.
¶ 7 It is undisputed that on February 17, 2004, the Laddusires met with Sexton to present their concerns regarding Oneida County's agreement with Waste Management. The focus of the Laddusires' concern was the $5.25 tipping fee Waste Management paid to Oneida County under the
¶ 8 In April 2004, E-Z filed a written complaint with the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). The complaint alleged that the agreement between Oneida County and Waste Management constituted a monopoly, and that E-Z should be "reimbursed" for the tipping fees it had paid to Oneida County in excess of $5.25 per ton since that agreement was executed. The complaint alleged that this "reimbursement" totaled "about $98,000."
¶ 9 On May 4, 2004, the DATCP forwarded the complaint to Sexton, who responded by letter on May 20. In his response letter, Sexton disputed each of E-Z's charges and went on to state that the contract bidding process had been conducted in accordance with appropriate state statutes. Additionally, Sexton stated that E-Z, along with any other business entity, would have had the right to submit a bid during the bidding process.
¶ 10 On September 28, 2005, E-Z filed a "Notice of Injury" and "Statement of Claim" with the Oneida County Clerk of Courts. In its Notice of Injury, E-Z asserted that it was injured when Oneida County entered into a conspiracy to restrain trade in violation of Wis. Stat. § 133.03 by executing the agreement with Waste Management. In its Statement of Claim, E-Z claimed $239,814.69 for loss of past earnings and $959,285.76 for loss of future earnings.
¶ 11 On April 20, 2006, E-Z filed suit against Oneida County in the Circuit Court for Oneida County, the Honorable Robert E. Kinney then presiding,
¶ 12 On September 29, 2008, Oneida County filed a motion for summary judgment, arguing that E-Z failed to comply with the notice of claim requirements found in Wis. Stat. § 893.80(1). Specifically, Oneida County argued that E-Z served
¶ 13 E-Z appealed and, in a published decision, the court of appeals reversed the judgment of the circuit court.
¶ 14 Oneida County then petitioned this court for review, which we granted.
¶ 15 This case comes before us on summary judgment. "We review the grant of a motion for summary judgment de novo, and apply the methodology specified in Wis. Stat. § 802.08. That is, we determine whether there is any genuine issue as to any material fact, and if not, which party is entitled to judgment as a matter of law." Borek Cranberry Marsh, Inc. v. Jackson Cnty., 2010 WI 95, ¶ 11, 328 Wis.2d 613, 785 N.W.2d 615.
¶ 16 This case also involves the interpretation of the notice of claim statute, found in Wis. Stat. § 893.80, and the interpretation of the antitrust damages statute, found in Wis. Stat. § 133.18. The interpretation of a statute is a question of law that we review de novo. Hocking v. City of Dodgeville, 2010 WI 59, ¶ 17, 326 Wis.2d 155, 785 N.W.2d 398.
¶ 17 Whether a governmental entity had actual notice of a plaintiff's claim presents a mixed question of fact and law. Olsen v. Twp. of Spooner, 133 Wis.2d 371, 377, 395 N.W.2d 808 (Ct.App.1986). What the governmental entity knew about the plaintiff's claim is a factual finding and may not be overturned unless clearly erroneous. Id. Whether the governmental entity's knowledge constituted actual notice under the law is a legal conclusion we review de novo. Id. The plaintiff bears the burden of proving actual notice. Weiss v.
¶ 18 Whether a governmental entity suffered prejudice is also a mixed question of fact and law. Olsen, 133 Wis.2d at 378, 395 N.W.2d 808. We uphold the circuit court's factual findings unless clearly erroneous. Id. at 378-79, 395 N.W.2d 808. How these facts fit the statutory concept of prejudice is a question of law we review de novo. Id. at 379, 395 N.W.2d 808. The plaintiff bears the burden of proving lack of prejudice. Weiss, 79 Wis.2d at 227, 255 N.W.2d 496.
¶ 19 This case requires us to examine two issues. First, we consider whether antitrust claims brought pursuant to Wis. Stat. § 133.18 are exempt from the notice of claim requirements found in Wis. Stat. § 893.80. Second, we consider whether E-Z satisfied the notice of claim requirements set forth in § 893.80(1). We discuss each issue in turn.
¶ 20 In order to commence a lawsuit against a governmental entity, a claimant must, as a precursor to actually filing suit, serve written notice of the circumstances of the claim within 120 days after the happening of the event.
¶ 21 We initially recognized in Department of Natural Resources v. City of Waukesha, 184 Wis.2d 178, 191, 515 N.W.2d 888 (1994), the plain meaning of Wis. Stat. § 893.80: "[t]he language of the statute clearly and unambiguously makes the notice of claim requirements applicable to all actions." However, we subsequently acknowledged in Auchinleck that our holding in Waukesha had been "too broad." State ex rel Auchinleck v. Town of LaGrange,
¶ 22 A number of cases following Auchinleck created additional exceptions to the notice of claim requirements. See Gillen v. City of Neenah, 219 Wis.2d 806, 822-23, 580 N.W.2d 628 (1998) (exempting actions to enjoin violations of the public trust doctrine under Wis. Stat. § 30.294); Little Sissabagama Lake Shore Owners Ass'n, Inc. v. Town of Edgewater, 208 Wis.2d 259, 265, 559 N.W.2d 914 (Ct.App.1997) (exempting actions to appeal a county board's determination regarding the requirements for tax-exempt status under Wis. Stat. § 70.11(20)(d)); Gamroth v. Vill. of Jackson, 215 Wis.2d 251, 259, 571 N.W.2d 917 (Ct.App.1997) (exempting actions to appeal special assessments under Wis. Stat. § 66.60(12)(a)).
¶ 23 In Town of Burke, 225 Wis.2d 615, 593 N.W.2d 822, the court of appeals provided a structure for analyzing our notice of claim jurisprudence. After examining our prior notice of claim case law, the court of appeals concluded that three factors should be considered when determining whether to exempt a specific statute from the notice of claim requirements: (1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; (2) whether enforcement of the notice of claim requirements found in Wis. Stat. § 893.80 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 was enacted would be furthered by requiring that a notice of claim be filed. Id. at 625, 593 N.W.2d 822. Applying this framework, the Town of Burke court concluded that the municipal annexation procedures set forth in Wis. Stat. § 66.021 were exempt from the notice of claim requirements. Id. at 626, 593 N.W.2d 822.
¶ 24 The three factors articulated in Town of Burke have since become the accepted framework by which our appellate courts have considered exceptions to the notice of claim requirements found in Wis. Stat. § 893.80. See Ecker Bros. v. Calumet Cnty., 2009 WI App 112, ¶ 6, 321 Wis.2d 51, 772 N.W.2d 240; 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; Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, ¶ 9, 265 Wis.2d 422, 665 N.W.2d 379. We find the Town of Burke test appropriate and therefore apply it to determine whether antitrust actions brought pursuant to Wis. Stat. § 133.18 are exempt from the notice of claim requirements found in § 893.80.
¶ 25 The first factor we consider is "whether there is a specific statutory scheme for which the plaintiff seeks exemption" from the notice of claim requirements found in Wis. Stat. § 893.80. Town of Burke, 225 Wis.2d at 625, 593 N.W.2d 822. If a statute provides a specific statutory scheme that conflicts with the general intent behind the 120-day time limit provided in Wis. Stat. § 893.80, then the specific statutory scheme will take precedence. City of Racine v. Waste Facility Siting Bd., 216 Wis.2d 616, 625, 575 N.W.2d 712 (1998).
¶ 26 In the instant case, the court of appeals relied on our decision in Gillen v. City of Neenah to conclude that the statutory scheme for antitrust actions brought pursuant to Wis. Stat. § 133.18 takes precedence over the general notice of claim requirements of § 893.80(1). We disagree. In Gillen, we held that when a statute allows a claimant to seek immediate injunctive relief, that statute irreconcilably conflicts with the general notice of claim
¶ 27 As illustrated in Gillen, our appellate courts have generally concluded that a specific statutory scheme conflicts with the notice of claim requirements found in Wis. Stat. § 893.80 when the specific statute contains a more restrictive limitations period than the 120-day notice of claim requirements. See id. at 821-22, 580 N.W.2d 628 (specific statute allowed immediate injunctive relief); Auchinleck, 200 Wis.2d at 592, 547 N.W.2d 587 (specific statute allowed an action to be commenced within 20 days); Town of Burke, 225 Wis.2d at 625, 593 N.W.2d 822 (specific statute required an action to be commenced within 90 days); Little Sissabagama, 208 Wis.2d at 266, 559 N.W.2d 914 (specific statute required an action to be commenced within 90 days); Oak Creek Citizen's Action Comm., 304 Wis.2d at 709, 738 N.W.2d 168 (specific statute required clerk to take action within 15 days and common council to take action within 30 days).
¶ 28 While we find the reasoning of Gillen to be instructive, we conclude that its holding is inapplicable to the present case. In contrast to the plaintiffs in Gillen, E-Z does not seek immediate injunctive relief under § 133.16. Rather, E-Z seeks declaratory relief and damages under Wis. Stat. § 133.18.
¶ 29 We therefore hold that § 133.18 does not contain a specific statutory scheme in conflict with the notice of claim requirements found in § 893.80.
¶ 30 The second factor we consider is "whether enforcement of Wis. Stat. § 893.80 would hinder a legislative preference for a prompt resolution of the type of claim under consideration." Town of Burke, 225 Wis.2d at 625, 593 N.W.2d 822. We therefore examine whether the legislature has expressed a preference for prompt resolution of antitrust damages actions pursuant to Wis. Stat. § 133.18 and, if so, whether applying the 120-day notice of claim requirements would somehow hinder that preference.
¶ 31 Wisconsin Stat. § 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." This language demonstrates the legislature's preference for the prompt resolution of antitrust claims brought pursuant to Wis. Stat. § 133.18. E-Z argues that applying the notice of claim requirements found in Wis. Stat. § 893.80 to antitrust actions brought pursuant to § 133.18 hinders prompt resolution of such claims. As the circuit court correctly recognized, applying the notice of claim requirements to antitrust actions brought pursuant to § 133.18 promotes, rather than hinders, the legislature's preference for expediency in the adjudication of such claims.
¶ 32 This is so because ordinarily a plaintiff has six years to seek damages pursuant to Wis. Stat. § 133.18. See § 133.18(2). However, if a plaintiff advances a claim against a governmental entity, it is subject to the notice of claim requirements. See Wis. Stat. § 893.80. In that case, the plaintiff would be required to serve written notice of the claim upon the governmental entity within 120 days after the event giving rise to the claim. See § 893.80(1)(a). If the claim is disallowed, the plaintiff whose claim has been denied would have only six months, as
¶ 33 Accordingly, we hold that enforcing the general notice of claim requirements found in Wis. Stat. § 893.80 promotes, rather than hinders, the legislature's preference for prompt resolution of such claims.
¶ 34 The third factor we consider is "whether the purpose for which § 893.80(1) was enacted would be furthered by requiring that a notice of claim be filed." Town of Burke, 225 Wis.2d at 625, 593 N.W.2d 822. We have previously held that the notice of claim statute serves two purposes: (1) to give governmental entities the opportunity to investigate and evaluate potential claims, and (2) to afford governmental entities the opportunity to compromise and budget for potential settlement or litigation. Thorp v. Town of Lebanon, 2000 WI 60, ¶¶ 23, 28, 235 Wis.2d 610, 612 N.W.2d 59.
¶ 35 E-Z argues that the legislative purpose of Wis. Stat. § 893.80(1) was furthered when Oneida County was given the opportunity to settle and negotiate the dispute. Thus, E-Z argues, applying § 893.80(1) to bar its claim would thwart the very purpose of § 893.80(1) because E-Z would be punished for attempting to negotiate with Oneida County before resorting to the judicial system.
¶ 36 We find E-Z's argument unpersuasive. First, applying the notice of claim statute to antitrust actions brought pursuant to Wis. Stat. § 133.18 clearly allows governmental entities a greater opportunity to investigate and evaluate potential claims by requiring claimants to file their notice of claim within 120 days of the event giving rise to the claim. If the notice of claim statute were not applied to § 133.18 antitrust actions, claimants would have six years to file their complaint.
¶ 37 The additional sixty-eight months during which claimants could bring their actions would obviously hamper a governmental entity's ability to investigate and evaluate claims. See, e.g., Olsen, 133 Wis.2d at 380, 395 N.W.2d 808 (holding in a condemnation action that three years of vegetative growth made a determination of any damages difficult). It is axiomatic that a governmental entity can more effectively investigate the circumstances surrounding a claim that accrued within the 120 days preceding the receipt of notice than it can investigate a claim that accrued up to six years in the past. In a similar vein, it is more likely that with the passage of time such investigation and evaluation will become more problematic as governmental employees leave their posts, memories fade, and witnesses become unavailable.
¶ 38 Second, applying the notice of claim statute to antitrust actions brought pursuant to Wis. Stat. § 133.18 allows governmental entities a greater opportunity to compromise and budget for potential settlement or litigation. If the notice of claim statute were not applied to antitrust actions brought pursuant to § 133.18, governmental entities would no longer be provided with a 120-day period in which to review the claim before the claimant could file suit. We are compelled by the nature of E-Z's argument to note the obvious: it is easier for a governmental entity to compromise with a claimant when the governmental entity has the 120-day period required by the notice of claim statute in which it may review the claim and negotiate with the claimant prior to the commencement of litigation. Further, this period
¶ 39 Applying the three-factor Town of Burke test, we conclude that Wis. Stat. § 133.18 antitrust actions are not exempt from the notice of claim requirements set forth in Wis. Stat. § 893.80. We therefore next discuss whether E-Z satisfied the notice of claim requirements.
¶ 40 Under Wis. Stat. § 893.80(1), no action may be brought against a governmental subdivision unless paragraphs (a) and (b) are satisfied:
¶ 41 First, we consider whether the notice of claim was filed within 120 days of the "happening of the event." Wis. Stat. § 893.80(1)(a). This requires us to consider whether the continuing violation doctrine applies in Wisconsin.
¶ 42 Wisconsin Stat. § 893.80(1) requires that E-Z serve its notice of claim on Oneida County "[w]ithin 120 days after the happening of the event giving rise to the claim. . . ." Oneida County argues that the "event" giving rise to E-Z's claim was the signing of the agreement with Waste Management on June 25, 2003. E-Z contends that its cause of action did not accrue until discovery of the agreement and that such discovery did not occur until February 2004. See Wis. Stat. § 133.18(4).
¶ 43 We need not decide when E-Z's cause of action began to accrue because, in either case, E-Z's notice of claim was untimely. E-Z filed its notice of claim with the Oneida County Clerk of Court on September 28, 2005, well over 120 days after both the date on which the agreement was executed (June 25, 2003), as well as the date E-Z contended it learned of the agreement (February 2004).
¶ 44 E-Z also argues that each time it paid a higher tipping fee than Waste Management, a new cause of action accrued to E-Z. Consistent with this assertion, E-Z argues that the notice of claim that it filed on September 28, 2005, was timely because the notice was filed within 120 days of E-Z
¶ 45 In support of this assertion, E-Z cites Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). In that case, the United States Supreme Court concluded that in the context of a continuing conspiracy to violate the federal antitrust laws, "each time a plaintiff is injured by an act of the defendant a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act." Id. at 338, 91 S.Ct. 795.
¶ 46 E-Z, however, fails to cite any authority applying the continuing violations doctrine to the notice of claim statute under Wisconsin law. More importantly, E-Z also ignores a purpose of the notice of claim statute, which is to afford governmental entities the opportunity to compromise and budget for potential settlement or litigation. See Thorp, 235 Wis.2d 610, ¶¶ 23, 28, 612 N.W.2d 59. If the continuing violations doctrine were to apply, it would be much more difficult for governmental entities to budget for potential litigation. For example, under E-Z's theory, a cause of action would accrue to E-Z each time it paid a higher tipping fee during the 10-year length of Oneida County's agreement with Waste Management. The legislature did not intend for governmental entities to be exposed to indefinite periods of liability for potential violations of Wis. Stat. § 133.18.
¶ 47 E-Z filed its notice of claim with the Oneida County Clerk of Court on September 28, 2005, well over 120 days after both the date on which the agreement was executed (June 25, 2003), as well as the date E-Z contended it learned of the agreement (February 2004). Having concluded that E-Z did not satisfy the first sentence of Wis. Stat. § 893.80(1)(a), we must next consider whether the actual notice and prejudice exception contained in Wis. Stat. § 893.80(1)(a) applies.
¶ 48 An exception to the general 120-day rule exists when a claimant demonstrates that two conditions are met: (1) the governmental entity "had actual notice of the claim," and (2) the governmental entity has not been prejudiced by the delay or failure to give notice. Wis. Stat. § 893.80(1)(a). Because we determine that E-Z failed to show that Oneida County suffered no prejudice, we need not address whether Oneida County received actual notice of E-Z's claim. We therefore address only whether E-Z met its burden to produce evidence that Oneida County suffered no prejudice because of the delayed notice.
¶ 49 In Olsen v. Spooner Township we held that prejudice "refers to a
¶ 50 The circuit court found that E-Z set forth no facts showing that Oneida County suffered no prejudice. The circuit court went so far as to state that E-Z "provides no evidentiary citation" for its entire prejudice argument. We agree.
¶ 51 E-Z bore the burden to produce evidence that the delayed notice of claim did not harm Oneida County's ability to adequately defend its case. E-Z introduced no such evidence. The depositions of Todd Laddusire and Bart Sexton—the only significant evidentiary materials introduced at the summary judgment proceeding—did not touch on the issue of prejudice.
¶ 52 The circuit court cautioned the parties early in the litigation that the issue of prejudice would require substantial discovery. When the circuit court denied Oneida County's motion for judgment on the pleadings, it cautioned both parties that:
Despite having received such guidance from the circuit court, E-Z inexplicably failed to conduct any discovery on the issue of prejudice.
¶ 53 E-Z could have asked Sexton a number of questions to determine whether Oneida County did or did not suffer prejudice because of the delayed notice. For example, E-Z never questioned Sexton to determine whether Oneida County suffered from an inability to investigate the claim because of the delayed notice. In addition, E-Z never asked whether either Sexton or Oneida County had difficulty finding documents or other witnesses relevant to the proceedings. E-Z simply failed to introduce evidence on the issue of prejudice. Because of this, the circuit court properly granted summary judgment in favor of Oneida County.
¶ 54 We hold that antitrust actions brought pursuant to Wis. Stat. § 133.18 are not exempt from the notice of claim requirements found in Wis. Stat. § 893.80(1). Additionally, we hold that E-Z did not meet the requirements of § 893.80(1)(a) when it failed to give Oneida County notice of its claim within the 120-day limitations period. Accordingly, we reverse the court of appeals and conclude that the circuit court properly granted summary judgment in favor of Oneida County.
The decision of the court of appeals is reversed.
PATIENCE DRAKE ROGGENSACK, J. dissents (Opinion filed).
SHIRLEY S. ABRAHAMSON, Chief Justice joins dissent.
PATIENCE DRAKE ROGGENSACK, J. (dissenting).
¶ 55 Appellate courts apply a three-part test to determine whether the notice requirement of Wis. Stat. § 893.80(1) (2009-10)
¶ 56 E-Z was in the solid waste hauling business.
¶ 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 contract
¶ 59 On February 17, 2004, the Laddusires, who own E-Z, met with Bart Sexton,
¶ 60 On September 28, 2005, E-Z filed a "Notice of Injury" with Oneida County, in which it alleged that the 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.
¶ 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 consideration. Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, ¶ 4, 265 Wis.2d 422, 665 N.W.2d 379.
¶ 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,"
¶ 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 scope of § 893.80(1)'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, 785 N.W.2d 645. I agree with the court of appeals.
¶ 66 Wisconsin Stat. § 893.80(1) provides in relevant part:
¶ 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, 547 N.W.2d 587 (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, 738 N.W.2d 168 (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
¶ 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, 738 N.W.2d 168 (citing Nesbitt Farms, 265 Wis.2d 422, ¶ 9, 665 N.W.2d 379). This three-part test provides:
Id. (quoting Nesbitt Farms, 265 Wis.2d 422, ¶ 9, 665 N.W.2d 379). Accordingly, I begin with Wis. Stat. § 133.03(1), the claim herein made.
¶ 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.
¶ 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 (secret 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).
¶ 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 injunctive relief is inconsistent with Wis. Stat. § 893.80(1)'s requirements. Gillen, 219 Wis.2d at 822, 580 N.W.2d 628. 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).
¶ 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.
¶ 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 conclude that E-Z's Wis. Stat. § 133.03(1) claim is excepted from § 893.80(1)'s notice requirements.
¶ 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.
We discuss exceptions to this general rule in Part III.B.2.
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?
