Brenda Jones v. Brent York

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 7, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1128 Cir. Ct. No. 2021CV52

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

BRENDA JONES,

PLAINTIFF-APPELLANT,

V.

BRENT YORK AND ADAMS COUNTY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Adams County:
TODD L. ZIEGLER, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Brenda Jones appeals an order of the Adams
County Circuit Court granting summary judgment in favor of Adams County (“the
No. 2022AP1128

County”) and Brent York (collectively, “the defendants”) based on Jones’ failure
to comply with the statutory notice requirements set forth under WIS. STAT.
§ 893.80(1d) (2021-22).1 As pertinent to this appeal, § 893.80(1d) requires that a
plaintiff such as Jones provide certain government entities and their employees
with written notice of injury prior to initiating a lawsuit against such defendants
based on that injury. Sec. 893.80(1d)(a). However, the plaintiff need not provide
written notice of injury if the defendants had “actual notice” of the plaintiff’s
claim and the plaintiff “shows to the satisfaction of the court” that defendants were
not prejudiced by the plaintiff’s failure to provide notice of injury. Id. Jones
concedes that she did not provide written notice of injury under § 893.80(1d)(a).
Nonetheless, Jones argues that summary judgment should not have been granted.
First, Jones contends that the defendants waived the requirements of
§ 893.80(1d)(a), and we reject that contention. Second, Jones argues that there are
genuine issues of material fact as to whether the defendants were prejudiced by
her failure to provide written notice of injury. We disagree and conclude that
Jones has not rebutted the prima facie case of prejudice established by evidence
submitted by the defendants by presenting evidence that raises any genuine issue
of fact as to whether the defendants were prejudiced. Therefore, we affirm.

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 Jones’ house burned in 2013. Brent York, an investigator for the
Adams County Sheriff’s Department at that time, investigated the cause of the fire.

1
The text of WIS. STAT. § 893.80(1d) is reproduced in pertinent part later in this opinion.
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2022AP1128

Based in part on York’s investigation, Jones was charged with arson in connection
with the fire. After a two-day jury trial in which both York and Jones testified,
Jones was convicted of arson in May 2016. Jones filed a postconviction motion,
and a circuit court granted a new trial based on ineffective assistance of Jones’
trial counsel. In November 2018, before the new trial began, the State dismissed
all charges against Jones.

¶4 In August 2019—over nine months after the criminal charges against
Jones were dismissed—Jones filed a lawsuit in federal court against York and the
Adams County Sheriff’s Department. In that lawsuit, Jones alleged that York
provided false testimony about his investigation and violated Jones’ rights under
Brady v. Maryland, 373 U.S. 83 (1963), by withholding or losing exculpatory
evidence. Based on these allegations, Jones asserted various federal civil rights
claims as well as state law claims for malicious prosecution, supervisor liability,
intentional and negligent misrepresentation, and intentional and negligent
infliction of emotional distress. Jones did not provide the defendants with
statutory notice of her claims or the circumstances of her claims under WIS. STAT.
§ 893.80(1d)(a) before filing the federal lawsuit.

¶5 In October 2019, while her lawsuit was pending in federal court,
Jones served the County with a letter giving notice of her claims (the “Notice
Letter”). Jones’ Notice Letter quoted her federal complaint verbatim and included
a claim for itemized damages.

¶6 In answer to Jones’ federal court complaint, the defendants asserted
a number of affirmative defenses, including that Jones’ state law claims were
barred because she failed to comply with the notice requirements of WIS. STAT.
§ 893.80(1d). The defendants filed a motion for summary judgment seeking

3
No. 2022AP1128

dismissal of Jones’ federal civil rights claims on the merits and relinquishment to
state court of the federal court’s supplemental jurisdiction over Jones’ state law
claims. In April 2021, the federal court granted the defendants’ motion for
summary judgment and dismissed Jones’ federal civil rights claims with prejudice.
The court did not consider the merits of the defendants’ argument about lack of
notice under § 893.80(1d) and, instead, relinquished to state court supplemental
jurisdiction over Jones’ state law claims and dismissed those claims without
prejudice.

¶7 In May 2021, Jones filed a complaint in the circuit court that
asserted the same facts and state law claims that she alleged in her federal lawsuit.
The defendants moved to dismiss Jones’ claims on multiple grounds, including
that she failed to provide proper notice under WIS. STAT. § 893.80(1d)(a). As
pertinent to this appeal, § 893.80(1d)(a) requires that a plaintiff provide a written
“notice of injury” to certain government entities and their employees before filing
a lawsuit against those parties. Clark v. League of Wis. Muns. Mut. Ins. Co.,
2021 WI App 21, ¶12, 397 Wis. 2d 220, 959 N.W.2d 648 (citing § 893.80(1d)(a)).
This notice can be satisfied in one of two ways: (1) by serving a “formal notice of
injury” within 120 days of the event giving rise to the claim; or (2) by proving that
the defendants had “actual notice” of the claim and that “the delay or failure to
give the requisite [formal] notice has not been prejudicial” to the defendants. Id.,
¶¶13-14 (citing § 893.80(1d)(a)). In their motion to dismiss, the defendants
argued that Jones did not satisfy these notice requirements because she failed to
provide formal notice of injury within 120 days of the events giving rise to her
claims. The defendants also argued that each was prejudiced by Jones’ failure to
provide formal notice of injury.

4
No. 2022AP1128

¶8 The circuit court treated the defendants’ motion to dismiss as a
motion for summary judgment and granted summary judgment in the defendants’
favor.2 Accordingly, the court dismissed Jones’ claims with prejudice. Jones
appeals.

¶9 Additional material facts are provided in the following discussion.

DISCUSSION

¶10 On appeal, Jones argues that her claims are not barred by the notice
requirements of WIS. STAT. § 893.80(1d) because the defendants waived their
argument regarding § 893.80(1d). Jones also argues that, even if the defendants
did not waive that argument, her claims are not barred by § 893.80(1d) because the
defendants had “actual notice” of those claims and she has established that the
defendants were not prejudiced by her failure to provide formal notice of injury
within 120 days. We begin by setting forth governing principles and our standard
of review regarding summary judgment and statutory interpretation.

2
The circuit court treated the defendants’ motion to dismiss as a motion for summary
judgment because the court requested additional discovery regarding the defendants’ WIS. STAT.
§ 893.80(1d) defense. See WIS. STAT. § 802.06(2)(b) (“If on a motion … to dismiss for failure of
the pleading to state a claim upon which relief can be granted, … matters outside of the pleadings
are presented to and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in [WIS. STAT. §] 802.08.”). The parties do not dispute
that the circuit court properly treated the defendants’ motion as a motion for summary judgment.

The circuit court also dismissed Jones’ claims for negligent and intentional
misrepresentation for failure to state a claim upon which relief may be granted. Jones does not
challenge those dismissals on appeal, and we therefore do not address those causes of action in
this opinion.

5
No. 2022AP1128

I. Governing Principles and Standard of Review Regarding Summary
Judgment and Statutory Interpretation.

¶11 We review a circuit court’s decision granting or denying summary
judgment independently, but we apply the same methodology as the circuit court.
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54.
On summary judgment, the moving party is entitled to judgment as a matter of law
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2); see Bank of N.Y. Mellon v. Klomsten, 2018 WI
App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364.

¶12 In reviewing the defendants’ motion for summary judgment, we
apply the following methodology.3 We consider the defendants’ affidavits and
other proof to determine whether those parties have made a prima facie case for
summary judgment under WIS. STAT. § 802.08(2). L.L.N. v. Clauder, 209 Wis. 2d
674, 683, 563 N.W.2d 434 (1997). When, as here, the defendants are the moving
parties, the defendants must establish a defense that defeats Jones’ causes of
action. Id. at 683 n.6. If the defendants have made a prima facie case for
summary judgment, the opposing party (here, Jones) “must show, by affidavit or
other proof, the existence of disputed material facts or undisputed material facts
from which reasonable alternative inferences may be drawn that are sufficient to
entitle the opposing party to a trial.” Id. at 683. When determining whether there

3
The initial step in summary judgment methodology is to examine the pleadings to
“determine whether a claim for relief is stated.” L.L.N. v. Clauder, 209 Wis. 2d 674, 682, 563
N.W.2d 434 (1997). For the purposes of this appeal, the parties do not dispute that this step has
been satisfied.

6
No. 2022AP1128

is a “genuine issue of material fact,” the affidavits and other proof submitted by
the parties “are viewed in a light most favorable” to the party opposing summary
judgment. Id. at 684.

¶13 This appeal also requires us to interpret WIS. STAT. § 893.80(1d).
Statutory interpretation and the application of statutes to undisputed facts are
questions of law that this court reviews de novo. Landis v. Physicians Ins. Co. of
Wis., Inc., 2001 WI 86, ¶¶12-13, 245 Wis. 2d 1, 628 N.W.2d 893. “[S]tatutory
interpretation ‘begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted). “Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” Id.

II. The Defendants Did Not Waive Their WIS. STAT. § 893.80(1d) Defense.

¶14 As noted, Jones argues that the defendants waived the right to assert
a WIS. STAT. § 893.80(1d) defense. Waiver is defined as “a voluntary and
intentional relinquishment of a known right.” Batchelor v. Batchelor, 213 Wis.
2d 251, 256, 570 N.W.2d 568 (Ct. App. 1997). Although the party need not intend
to waive, the waiving party must act intentionally and with knowledge, actual or
constructive, of the material facts. Nugent v. Slaght, 2001 WI App 282, ¶¶12-13,
249 Wis. 2d 220, 638 N.W.2d 594. Waiver is ordinarily a question of fact, but
may be decided as a matter of law based on the conduct of the parties. Gonzalez
v. City of Franklin, 137 Wis. 2d 109, 129, 403 N.W.2d 747 (1987). In the present
case, there is no dispute as to the material facts regarding waiver. Therefore,
Jones has the burden of demonstrating that the defendants’ intent to waive can be

7
No. 2022AP1128

inferred as a matter of law from those undisputed facts. For the following reasons,
we conclude that the defendants did not waive their § 893.80(1d) defense.

¶15 Jones argues that the defendants waived their right to assert a
defense to Jones’ state law claims under WIS. STAT. § 893.80(1d) because the
“[d]efendants’ choice to ask the federal court to relinquish its jurisdiction over the
state law claims can only be interpreted as a clear and specific renunciation of a
known right.”4 We are not persuaded. As the defendants correctly observe,
federal courts are encouraged to relinquish supplemental jurisdiction of a party’s
state law claims if all federal claims have been dismissed. Hansen v. Board of
Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir. 2008) (“When all
federal claims have been dismissed prior to trial, the principle of comity
encourages federal courts to relinquish supplemental jurisdiction.”). This “general
rule” is “designed to minimize the occasions for federal judges to opine on matters
of state law.” Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir.
1997). When a federal court relinquishes a party’s claims, it will ordinarily
dismiss the claims without prejudice and “without an examination of the merits.”
Id. (emphasis omitted).

¶16 In the present case, the defendants’ request that the federal court
relinquish supplemental jurisdiction over Jones’ state law claims cannot be
reasonably construed as an abandonment or relinquishment of the defendants’
right to assert a WIS. STAT. § 893.80(1d) defense. Rather, the only reasonable

4
Jones concedes that the defendants’ answer to Jones’ federal court complaint raised
notice as an affirmative defense pursuant to WIS. STAT. § 893.80(1d). The parties agree that the
affirmative defense of failure to file the notice required by state law is not applicable to claims
based in federal law. See Felder v. Casey, 487 U.S. 131, 134 (1988).

8
No. 2022AP1128

conclusion that can be drawn from the defendants’ request for relinquishment of
supplemental jurisdiction of Jones’ state law claims is that the defendants intended
to preserve the ability to assert their § 893.80(1d) defense if Jones refiled her state
law claims in state court. Put differently, it is not reasonable to infer that the
defendants intended to abandon or relinquish their right to assert a § 893.80(1d)
defense simply because the defendants asked the federal court to dismiss Jones’
state law claims without addressing the merits of those claims. In addition, Jones
does not cite a single case in which a court has accepted an argument similar to
that advanced by her on this issue. Thus, the defendants’ request that the federal
court relinquish Jones’ state law claims was not a “voluntary and intentional
relinquishment” of their § 893.80(1d) defense. See Batchelor, 213 Wis. 2d at 256.

¶17 Jones compares these facts to the facts of Stanhope v. Brown
County, 90 Wis. 2d 823, 280 N.W.2d 711 (1979), and Gonzalez. In Stanhope, our
supreme court stated that Brown County waived the statutory monetary limit on
recovery against certain governmental entities because Brown County’s insurance
policy provided coverage in excess of that limit and prohibited the county from
raising governmental immunity as a defense. Stanhope, 90 Wis. 2d at 848-52. In
Gonzalez, our supreme court stated that a city did not waive the statutory limit on
recovery merely because it purchased insurance coverage in excess of that limit.
Gonzalez, 137 Wis. 2d at 132-33. Comparing the facts to Stanhope, the Gonzalez
court ruled that waiver in that context requires an “express statement which could
be construed to waive the liability limit or the statutory defense of limitation of
recovery.” Id. at 132.

¶18 Jones contends that these cases support her argument that the
defendants waived the statutory right to assert WIS. STAT. § 893.80(1d) as a
defense. According to Jones, the defendants’ actions in the present case “are far

9
No. 2022AP1128

more clear in relinquishing a known right than the actions of Brown County in
Stanhope and more clear than the ambiguous clauses in Gonzales.” This
argument fails because Stanhope and Gonzalez are factually distinct from the
present case. Jones does not explain how the waiver of a statutory limit on
recovery based on language in an insurance policy helps to determine whether the
defendants waived the right to assert a § 893.80(1d) defense by seeking
relinquishment of Jones’ state law claims in a federal lawsuit, and we discern no
such connection. Therefore, Stanhope and Gonzalez do not affect our conclusion
that the defendants properly preserved their § 893.80(1d) defense.

III. Jones’ Claims Are Barred by WIS. STAT. § 893.80(1d).

¶19 As noted, the defendants argue that Jones’ claims are barred because
she failed to comply with the notice requirements of WIS. STAT. § 893.80(1d). We
begin by describing the notice requirements set forth under that statute.

A. Notice Requirements Under WIS. STAT. § 893.80(1d).

¶20 WISCONSIN STAT. § 893.80(1d) requires that plaintiffs provide two
types of notice to certain government entities and their employees before filing
suit against those parties. Clark, 397 Wis. 2d 220, ¶11.5 The first notice

5
Specifically, WIS. STAT. § 893.80(1d) states in relevant part:

[N]o action may be brought or maintained against any …
political corporation, governmental subdivision or agency
thereof nor against any officer, official, agent or employee of the
corporation, subdivision or agency for acts done in their official
capacity or in the course of their agency or employment upon a
claim or cause of action unless:

(continued)

10
No. 2022AP1128

mentioned in the statute is often referred to as the “notice of injury.” Id., ¶12
(citing § 893.80(1d)(a)). “The primary purpose of this notice is to enable
governmental entities to promptly investigate and evaluate the underlying
circumstances that may later give rise to a claim.” Id.

¶21 The notice of injury requirement under WIS. STAT. § 893.80(1d)(a)
may be satisfied in one of two ways. First, a plaintiff may provide the defendant
with a “formal notice of injury.” Id., ¶13. To satisfy this requirement, the plaintiff
must serve on the defendant “written notice of the circumstances of the claim”
within 120 days of the event giving rise to the claim. Sec. 893.80(1d)(a). This
notice “need not apprise the defendant of the claim itself.” Clark, 397 Wis. 2d
220, ¶13. Rather, this notice “simply alerts the defendant that an incident occurred
that might thereafter ripen into a claim.” Id.

(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 and
on the officer, official, agent or employee under [WIS. STAT.
§] 801.11. Failure to give the requisite notice shall not bar action
on the claim if the … corporation, subdivision or agency had
actual notice of the claim and 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 …
corporation, subdivision or agency or to the defendant officer,
official, agent or employee; and

(b) A claim containing the address of the claimant and
an itemized statement of the relief sought is presented to the
appropriate clerk or person who performs the duties of a clerk or
secretary for the defendant … corporation, subdivision or agency
and the claim is disallowed.

Sec. 893.80(1d). Jones does not dispute that her claims against York and Adams County are
subject to the notice requirements set forth under § 893.80(1d).

11
No. 2022AP1128

¶22 The plaintiff may also satisfy the notice of injury requirement
pursuant to what case law refers to as the “savings clause” set forth in WIS. STAT.
§ 893.80(1d)(a). Id., ¶14. Under this clause, the plaintiff need not provide formal
notice of injury if two conditions are satisfied. The first condition is that the
defendant “had actual notice of the claim.” Sec. 893.80(1d)(a). “Actual notice” is
different from the written formal notice of injury requirement in that the plaintiff
must give actual notice of the plaintiff’s “claim,” not the mere “circumstances”
that may later give rise to a claim. Clark, 397 Wis. 2d 220, ¶14. Additionally,
actual notice is “not limited to a particular timeframe and may occur outside the
120 days following the injury-causing event.” Id. The second condition is that the
plaintiff “shows to the satisfaction of the court that the delay or failure to give the
requisite [formal notice of injury] has not been prejudicial [to a defendant].” Id.,
¶14. “Prejudice in this context has been defined as ‘the inability of a party to
adequately defend a claim’ because the party lacked sufficient opportunity to
conduct a prompt investigation.” Id., ¶23 (quoting Olsen v. Township of
Spooner, 133 Wis. 2d 371, 379-80, 395 N.W.2d 808 (Ct. App. 1986)). In
assessing whether the defendant was prejudiced, the key inquiry is as follows:
“What, if anything, would the defendant have done differently had the plaintiff
timely served a statutorily compliant written notice describing those
circumstances?” Id., ¶25.

¶23 In addition to the notice of injury under WIS. STAT. § 893.80(1d)(a),
the plaintiff must also provide the defendant with a “notice of claim” under
§ 893.80(1d)(b). The notice of claim requires that the plaintiff present the
defendant with a “claim containing the address of the claimant and an itemized
statement of the relief sought.” Sec. 893.80(1d)(b). This portion of the statute
“serves the primary purpose of giving the defendant ‘the opportunity to

12
No. 2022AP1128

compromise and settle a claim, thereby avoiding costly and time-consuming
litigation.’” Clark, 397 Wis. 2d 220, ¶15 (quoting Yacht Club at Sister Bay
Condo. Ass’n, Inc. v. Village of Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922
N.W.2d 95).

B. The Defendants Were Prejudiced by Jones’ Failure to Comply
With WIS. STAT. § 893.80(1d).

¶24 In the present case, Jones concedes that she failed to provide a
formal notice of injury within 120 days of the events giving rise to her claims
pursuant to WIS. STAT. § 893.80(1d)(a).6 Instead, Jones contends that summary
judgment should not have been granted because there are genuine issues of
material fact as to whether she satisfied the savings clause under § 893.80(1d)(a).
In response, the defendants argue that Jones did not satisfy the savings clause for
two reasons, either of which is sufficient to affirm the order of the circuit court:
(1) Jones’ actual notice was not timely because she provided that notice after she
filed her federal court lawsuit; and (2) Jones has not established a genuine issue of
material fact that her failure to provide formal notice of injury within 120 days
was not prejudicial to the defendants. For the following reasons, we conclude that
the defendants are entitled to summary judgment on the § 893.80(1d) defense

6
The defendants argue that the events giving rise to Jones’ claim concerning supervisor
liability and infliction of emotional distress occurred at various times during York’s investigation
and Jones’ trial, but no later than May 6, 2016, the date that Jones was convicted. As for Jones’
claim concerning malicious prosecution, the defendants argue that the event giving rise to this
claim occurred no later than November 12, 2018, the date when the State dismissed all charges.
For her part, Jones contends that all of her claims became “ripe” on the date when the State
dismissed its charges. In any event, Jones concedes that she did not provide formal notice of
injury within 120 days of November 12, 2018.

Separately, we note that Jones does not dispute that the prejudice analysis applies to both
the County and York.

13
No. 2022AP1128

because Jones has not satisfied her burden of raising a genuine issue of material
fact as to whether the defendants were prejudiced by her failure to provide formal
notice of injury.7

¶25 As explained above, as pertinent here the first step in the summary
judgment analysis is to consider the affidavits and other proof of the moving
parties—here, the defendants—to determine whether the defendants have made a
prima facie case for summary judgment. L.L.N., 209 Wis. 2d at 683. In the
context of the WIS. STAT. § 893.80(1d) defense, the defendants can make a prima
facie showing by setting forth admissible evidence that each was prejudiced by
Jones’ failure to give formal notice of injury—i.e., notice of the “circumstances”
of her claims—within 120 days of the injury-causing event. See id.; see
§ 893.80(1d)(a).8 In our analysis, we keep in mind that § 893.80(1d) places the
burden on Jones to establish that the defendants were able to adequately defend
Jones’ claims because the defendants had “sufficient opportunity to conduct a
prompt investigation.” See Clark, 397 Wis. 2d 220, ¶23.

¶26 The defendants rely on an affidavit of Mindy Dale, a labor and
employment attorney who served as outside counsel for the County and, from May
2020 to at least February 2022, served as Interim Corporation Counsel in Adams
County. In her affidavit, Dale avers that the County asked her in October 2018, in

7
Because we conclude that Jones has not raised a genuine issue of material fact as to
whether the defendants were prejudiced, we need not address whether Jones provided timely
“actual notice” under WIS. STAT. § 893.80(1d)(a). See E-Z Roll Off, LLC v. County of Oneida,
2011 WI 71, ¶48, 335 Wis. 2d 720, 800 N.W.2d 421 (holding that a court need not address
whether a defendant received actual notice of a plaintiff’s claim if the plaintiff fails to show that
the defendant suffered no prejudice).
8
Jones does not argue that the information the defendants rely on is inadmissible
evidence.

14
No. 2022AP1128

her capacity as outside counsel, to investigate York’s potential Brady violations in
a separate matter. During the course of that investigation, Dale learned of a
postconviction motion in Jones’ criminal case in which Jones argued, among other
things, that York’s testimony was inconsistent with another police officer’s report.
As a result, the County asked Dale to investigate Jones’ allegations regarding
York’s conduct in Jones’ criminal case. In her investigation of Jones’ allegations,
Dale learned that Jones’ criminal defense attorney failed to obtain the police
officer’s report or present that report during trial. Dale avers in her affidavit:

[T]here was no opportunity at trial to determine whether
[York’s] testimony was truly inconsistent and if so, which
version of information was correct. There was also no
opportunity at trial to determine whether [York] simply
forgot certain statements or details, and [Jones’] criminal
defense attorney never introduced the police report to try to
refresh [York’s] recollection.

Due to this lack of information, Dale avers that she decided not to investigate
Jones’ claims against York: “Because the alleged inconsistency was not the
only—or even the main—basis raised for postconviction relief, I conducted no
further investigation into [Jones’] 2016 criminal trial and saw no reason to do so at
that time.” Dale closed her investigation and issued a report in January 2019.
That was eight months before Jones gave what Jones now asserts was actual notice
to the defendants through the Notice Letter and twenty months after Jones was
found guilty by a jury.

¶27 Dale avers that the County was prejudiced by Jones’ failure to
provide the requisite formal notice of injury within 120 days. Dale’s affidavit
describes Dale’s familiarity with Adams County procedures in these
circumstances. She avers in relevant part:

3. In my capacity as outside labor and employment
counsel and Interim Corporation Counsel, I am familiar

15
No. 2022AP1128

with how Adams County handles Notices of Circumstances
and Notices of Claim served on it pursuant to WIS. STAT.
§ 893.80(1d).

….

11. When the County’s insurer receives a copy of
the statutory notice, the County’s insurer undertakes an
analysis of the alleged circumstances and claims.
Corporation Counsel’s Office gathers potentially relevant
in-house materials and information, speaks with any
potentially relevant witnesses or involved employees, and
forwards that information to the County’s insurer.

….

15. As part of the investigation into a statutory
notice, the County’s Administrative Coordinator, in
conjunction with Corporation Counsel and/or outside legal
counsel, evaluates the financial and labor cost of any
potential litigation if the claim is disallowed, including
costs and attorney’s hours and fees and how much time and
what kinds of resources may be required to defend against
litigation.

….

17. Upon completion of the investigation into the
claims asserted in the statutory notice, the Corporation
Counsel then informs the County Board Chair who places
the issue on the County Board agenda for a decision
regarding disallowance.

Dale’s affidavit then sets forth the prejudice that typically occurs based on late
notice from claimants:

19. If a claimant does not serve Adams County
with timely statutory notice (within 120 days of the
happening of the event giving rise to the claims), the
County’s investigation into the allegations is almost always
more difficult. Turnover in knowledgeable staff means that
necessary or relevant information may be compromised or
lost. Depending on when the events occurred, relevant
documents also may have been destroyed based on the
County’s records retention policy.

20. In my experience, the longer a claimant waits to
provide the County with statutory notice, the more likely it

16
No. 2022AP1128

is that witnesses forget or confuse details relevant to the
investigation.

21. In my experience, the longer the delay in
providing the County with statutory notice, the more likely
it is that County employees and third parties who were
involved in or who witnessed the event have left their
employment….

22. In my experience, the longer the delay in
providing the County with statutory notice, the more likely
it is that the County will be unable to locate former County
employees and third parties at all for purposes of
investigating and gathering potentially relevant
information.

23. In my experience, the longer the delay in
providing the County with statutory notice, the more likely
it is that incorrect rumors or gossip start being spread
amongst County employees about the event and/or claims.
In turn, this makes it harder to obtain thorough, accurate,
and unbiased information from employees during the
investigation of the allegations.

24. In my experience, the longer the delay in
providing the County with statutory notice, the more likely
it is that strategic or privileged information is shared
amongst employees discussing the allegations. In turn, this
hampers the County’s ability to perform a thorough
investigation and can weaken or eliminate defenses that
would otherwise have existed had the statutory notice been
timely served.

Dale’s affidavit further states:
18. If a claimant does not serve Adams County
with statutory notice, or if a claimant files a lawsuit before
serving Adams County with statutory notice, Adams
County is unable to evaluate the costs and potential
exposure arising from any litigation and use such
information to determine whether to settle the claim(s) pre-
suit.

Dale’s affidavit also describes the activities that could have taken place had Jones
provided timely notice:

30. Had Brenda Jones served the County with
statutory notice within 120 days of the happening of the

17
No. 2022AP1128

events giving rise to her claims of supervisor liability …
and infliction of emotional distress, the County could have
immediately reviewed the relevant testimony from her
2016 criminal trial, the documents related to or used in her
criminal trial, and the representations in question.

31. Had Brenda Jones served the County with
statutory notice within 120 days of the happening of the
events giving rise to her claims of supervisor liability …
and infliction of emotional distress, the County could have
immediately began interviewing those involved in the 2016
criminal trial, including, but not limited to, the Assistant
District Attorney who prosecuted the matter who is no
longer an Assistant District Attorney in Adams County,
Marshfield Police Officers, Brent York, and others who
were involved in the 2016 criminal trial.

32. Had Brenda Jones served the County with
statutory notice within 120 days of the happening of the
events giving rise to her claim of malicious prosecution in
2018, the County could have timely researched and
investigated the allegations so that the County Board could
have reviewed and considered how to proceed.

33. Had Brenda Jones served the County with
statutory notice within 120 days of the happening of the
events giving rise to her claims, the County Board could
have considered the Administrative Coordinator’s
evaluation of potential financial exposure. This would
have allowed the County Board to budget for litigation
and/or settlement and consider any other potential financial
consequences of the alleged claims.

¶28 In summary, the affidavit sets out both specifics regarding the
circumstances here, as well as the standard relevant procedures in Adams County
for investigation of a claim, and the typical problems in investigation of late
claims that cause prejudice to the County in defending the claim and resolving the
claim. Based on these averments in Dale’s affidavit, we conclude that the
defendants have made a prima facie case for summary judgment on the issue of
prejudice. See L.L.N., 209 Wis. 2d at 683.

18
No. 2022AP1128

¶29 The next step in our summary judgment analysis is to determine
whether Jones has satisfied her burden of showing, “by affidavit or other proof,
the existence of disputed material facts or undisputed material facts from which
reasonable alternative inferences may be drawn” that are sufficient to entitle her to
a trial on the issue of prejudice. Id. For the following reasons, we conclude that
Jones has not satisfied this burden.

¶30 Jones argues that the defendants were not prejudiced because the
County conducted an investigation of the events giving rise to Jones’ state law
claims when defending against her claims in federal court. We are not persuaded.
As explained above, Jones has the burden on summary judgment of showing, “by
affidavit or other proof, the existence of disputed material facts or undisputed
material facts from which reasonable alternative inferences may be drawn.” Id.
(emphasis added). However, Jones does not cite to any affidavit or other evidence
to support her assertion that the County conducted an investigation after she filed
her federal lawsuit, nor what the scope or nature of such an investigation entailed.
Instead, the only support Jones provides regarding this assertion is a portion of the
circuit court’s oral summary judgment ruling in which the court generally opined
that the defendants conducted an investigation after Jones filed her federal lawsuit.
The circuit court’s statement does not carry any evidentiary weight because we
review the record and the court’s summary judgment decision independently. See
Mrozek, 281 Wis. 2d 448, ¶14. Additionally, this statement of the circuit court
regarding the County’s purported investigation, without more, does not satisfy
Jones’ burden because Jones does not provide any affidavit or other evidence in
the record to support, or provide any substance to, the circuit court’s general
statement. For instance, Jones does not provide any evidence as to the extent of
such an investigation that the County purportedly conducted or any evidence from

19
No. 2022AP1128

that investigation to indicate that the defendants are now able to adequately defend
against her claims. Thus, the circuit court’s statement regarding the County’s
purported investigation does not satisfy Jones’ burden on summary judgment.

¶31 Jones next argues that the defendants were able to adequately defend
against Jones’ claims because Dale had the opportunity to investigate York’s
alleged misconduct in Jones’ criminal case. In support of this argument, Jones
cites only to Dale’s affidavit and a portion of a deposition in which Adams County
Sheriff Samuel Wollin testified that he believed Dale was investigating York’s
“truthfulness” in Jones’ criminal case. However, Jones does not point to any
affidavit or other evidence—or to any portion of Dale’s affidavit or Wollin’s
deposition—that creates a dispute of fact as to Dale’s description of the prejudicial
impacts of Jones’ improper notice. For instance, Jones does not point to any
evidence to indicate that the relevant documents from her criminal trial were still
available at the time of Dale’s investigation or, more importantly, that the
individuals involved in her trial were still available for Dale to interview and that
their memories of relevant events had not faded. Jones also does not articulate any
“reasonable alternative inferences” regarding Dale’s description of prejudice that
may be drawn from Dale’s affidavit or Wollin’s deposition. See id. Thus, Jones
has not satisfied her burden of demonstrating a genuine dispute of fact as to Dale’s
investigation into York’s conduct in Jones’ criminal case.

¶32 Jones also contends that the defendants were not prejudiced because
the County had an “opportunity” to investigate the circumstances giving rise to her
claims after she filed her Notice Letter. In this context, Jones’ argument misses
the mark. As explained above, Jones does not point to any affidavit or other
evidence that creates a genuine dispute of fact or supports a reasonable alternative
inference as to the prejudicial effects of late notice described in Dale’s affidavit.

20
No. 2022AP1128

Similarly, Jones does not provide any evidence or otherwise explain how the
defendants’ receipt of her Notice Letter, months after Dale closed her
investigation, somehow alleviated the prejudice described in Dale’s affidavit.
Thus, even if Jones’ Notice Letter gave the County an “opportunity” to investigate
the circumstances giving rise to her claims, Jones has not satisfied her burden of
showing that there is a genuine dispute of fact as to the prejudicial effects
described in Dale’s affidavit.

¶33 In sum, the defendants have made a prima facie case for summary
judgment on the element of prejudice, but Jones has not satisfied her burden of
raising a genuine issue of material fact that would entitle her to a trial on that
element. Therefore, we conclude that the defendants are entitled to summary
judgment on the WIS. STAT. § 893.80(1d) defense.

IV. Dismissal With Prejudice.

¶34 Jones argues in the alternative that, if she did not establish prejudice,
the circuit court was required to dismiss her causes of action without prejudice.
We disagree. As our supreme court has recently explained, WIS. STAT.
§ 893.80(1d) is a “condition in fact requisite to liability.” Maple Grove Country
Club Inc. v. Maple Grove Ests. Sanitary Dist., 2019 WI 43, ¶35, 386 Wis. 2d 425,
926 N.W.2d 184. Stated differently, “[a] plaintiff’s failure to satisfy the condition
precedent provided by § 893.80 results in a loss of the right to proceed with the
action against the governmental entity.” Rouse v. Theda Clark Med. Ctr., Inc.,
2007 WI 87, ¶19, 302 Wis. 2d 358, 735 N.W.2d 30. If a plaintiff fails to comply
with the notice requirements of § 893.80(1d), the plaintiff’s action must be
dismissed with prejudice. Id., ¶33 (holding that the circuit court properly
dismissed the plaintiff’s action with prejudice because he failed to provide formal

21
No. 2022AP1128

notice of injury or actual notice under § 893.80(1d)(a)). In the present case, as
explained above, Jones failed to provide proper notice of injury pursuant to
§ 893.80(1d)(a) or to comply with the requirements of the savings clause.
Therefore, Jones’ lawsuit must be dismissed with prejudice.

¶35 Jones argues that she should be allowed to refile her claims because
the consequence for failing to comply with WIS. STAT. § 893.80(1d) is merely
dismissal without prejudice. In support, Jones points to two cases in which a
plaintiff’s action was dismissed without prejudice for failure to provide proper
notice to the defendant.9 As explained next, these cases do not alter our
conclusion because those cases involve a plaintiff’s failure to comply with the
“notice of claim” requirement under § 893.80(1d)(b), not the “notice of injury”
requirement under § 893.80(1d)(a).

¶36 The “notice of claim” provision under WIS. STAT. § 893.80(1d)(b)
has two elements that must be met before the plaintiff commences an action
against certain government entities: (1) the plaintiff must present defendant with a
“claim containing the address of the claimant and an itemized statement of the
relief sought”; and (2) the defendant must disallow that claim. Sec. 893.80(1d)(b).
If the defendant disallows the plaintiff’s claim, then the plaintiff must bring an
action on that claim within six months of the notice of disallowance.
Sec. 893.80(1g). In Probst v. Winnebago County, 208 Wis. 2d 280, 560 N.W.2d
291 (Ct. App. 1997)—one of the cases on which Jones relies—Probst commenced

9
Jones also cites to an unpublished, per curiam opinion from this court to support her
argument. While unpublished opinions issued after July 1, 2009, may be cited for persuasive
value, this is true only as to authored opinions, which do not include per curiam opinions. See
WIS. STAT. RULE 809.23(3). We disregard any argument relying on the unpublished per curiam
opinion and admonish counsel to avoid this practice in the future.

22
No. 2022AP1128

an action against the defendant without first providing a proper “notice of claim”
under § 893.80(1d)(b). Probst, 208 Wis. 2d at 283-84, 287-88. This court held
that Probst’s failure to comply with § 893.80(1d)(b) merely required dismissal
without prejudice. Id. at 288 n.6.10 Similarly, in Colburn v. Ozaukee County, 39
Wis. 2d 231, 159 N.W.2d 33 (1968)—the other case on which Jones relies—our
supreme court stated that Colburn’s action must be dismissed without prejudice
because he provided only a “notice of injury,” not a “claim.” Colburn, 39 Wis. 2d
at 236-37, 239.11

¶37 In the present case, if Jones had provided proper notice of injury
under WIS. STAT. § 893.80(1d)(a) but merely failed to provide proper notice of
claim under § 893.80(1d)(b), then Probst and Colburn would apply and her action
would likely be dismissed without prejudice. As this court explained in Probst, if
a plaintiff’s action is dismissed for failure to provide a proper notice of claim, the
plaintiff can “simply furnish the [defendant] with a proper notice of claim, wait the
requisite 120 days while the [defendant] decides whether to settle or disallow the
claim, and if it is disallowed proceed with an action.” Probst, 208 Wis. 2d at 288
n.6. However, as explained above, Jones failed to demonstrate that she provided
the defendants with proper notice of injury under § 893.80(1d)(a). Therefore,

10
This court declined to address whether Probst complied with the notice of injury
requirements under WIS. STAT. § 893.80(1d)(a) because his claim “alleges an ongoing pattern of
discriminatory actions on the part of the [defendant]” and because its conclusion regarding
§ 893.80(1d)(b) was dispositive. Probst v. Winnebago Cnty., 208 Wis. 2d 280, 286 n.5, 560
N.W.2d 291 (Ct. App. 1997).
11
In Colburn, our supreme court analyzed two statutes that predate WIS. STAT.
§ 893.80(1d) and required that plaintiffs commencing certain claims against a county provide the
county with a “notice of injury” and a “claim.” Colburn v. Ozaukee Cnty., 39 Wis. 2d 231, 235-
236, 159 N.W.2d 33 (1968).

23
No. 2022AP1128

Probst and Colburn do not apply, and we conclude that the circuit court properly
dismissed Jones’ action with prejudice. See Rouse, 302 Wis. 2d 358, ¶33.

CONCLUSION

¶38 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

24