Ludmyla Carlborg v. Mount View Care Center

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.
August 24, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP1898 Cir. Ct. No. 2019CV759

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

LUDMYLA CARLBORG AND KENNETH R. CARLBORG,

PLAINTIFFS-APPELLANTS,

V.

MOUNT VIEW CARE CENTER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Marathon County:
MICHAEL K. MORAN, Judge. Modified and, as modified, affirmed.

Before Stark, P.J., Hruz and Nashold, 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. Ludmyla Carlborg and her husband, Kenneth,
pro se, appeal an order that dismissed with prejudice their claims against
No. 2020AP1898

Mount View Care Center. We conclude the circuit court properly dismissed the
Carlborgs’ claims based on their undisputed failure to comply with the notice of
claim statute, WIS. STAT. § 893.80(1d) (2019-20).1 We reject the Carlborgs’
assertion that, under § 893.80(1m), they were exempt from compliance with the
requirements set forth in the notice of claim statute because their complaint sought
to recover damages for medical malpractice.

¶2 We conclude, however, that aside from the Carlborgs’ claim for
punitive damages, which was properly dismissed with prejudice, the Carlborgs’
remaining claims should have been dismissed without prejudice. We therefore
modify the order dismissing the Carlborgs’ claims to reflect that their claim for
punitive damages is dismissed with prejudice, but their remaining claims are
dismissed without prejudice. We affirm the order as modified.

BACKGROUND

¶3 The Carlborgs filed suit against Mount View on November 22, 2019.
Their complaint alleged that Kenneth was admitted to Mount View for physical
rehabilitation on October 3, 2019, following the transmetatarsal amputation of his
foot. The complaint further alleged that while residing at Mount View during
October and November of 2019, Kenneth fell on multiple occasions and sustained
serious injuries.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. We refer to WIS. STAT. § 893.80(1d) as “the notice of claim statute” throughout this
opinion. As explained below, the notice of claim statute contains two distinct requirements that a
claimant must fulfill before filing suit against a governmental defendant. See infra, ¶10. Unless
otherwise specified, when we refer to the notice of claim statute, we are referring to both of those
requirements.

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¶4 The Carlborgs’ complaint asserted a negligence claim against
Mount View on Kenneth’s behalf, alleging that: (1) Mount View owed a duty of
care to Kenneth, which required it to “provide services and activities to [him] so
that he [could] maintain his highest practical, physical, mental, and psychological
well-being”; (2) Mount View breached its duty of care by failing “to provide all of
the care necessary to keep Kenneth safe and comfortable”; (3) Kenneth suffered
injuries as a result of Mount View’s “[n]egligent violation of a required standard
of care”; and (4) Kenneth suffered economic and noneconomic damages as a result
of Mount View’s negligence. The complaint also asserted a loss of consortium
claim on Ludmyla’s behalf. In addition, the complaint alleged that the Carlborgs
were entitled to recover punitive damages.

¶5 Mount View moved to dismiss the Carlborgs’ complaint, asserting
that the Carlborgs were required, but failed, to comply with the notice of claim
statute. Specifically, Mount View asserted that the Carlborgs had not filed a
notice of injury within 120 days of the event giving rise to their claims, as required
by WIS. STAT. § 893.80(1d)(a), or a notice of claim including an itemized
statement of the relief sought, as required by § 893.80(1d)(b). Mount View also
asserted that the Carlborgs were statutorily barred from recovering punitive
damages under § 893.80(3). In response, the Carlborgs asserted that they were not
required to comply with the notice of claim statute because Mount View is a
private facility, not a governmental entity. For the same reason, the Carlborgs
contended that the punitive damages bar in § 893.80(3) was inapplicable.

¶6 The circuit court granted Mount View’s motion to dismiss during an
October 6, 2020 hearing. The court concluded—based on documents submitted
by Mount View’s attorney and the court’s personal knowledge—that Mount View
was a governmental entity, and that the Carlborgs were therefore required to

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comply with the notice of claim statute before filing suit. The court further
concluded that the Carlborgs had not complied with the notice of claim statute.
The court therefore stated that it was granting Mount View’s motion to dismiss the
Carlborgs’ claims “with prejudice.”

¶7 The circuit court entered a written order granting Mount View’s
motion to dismiss on October 7, 2020, which, consistent with the court’s oral
ruling, stated that all of the Carlborgs’ claims were dismissed “with prejudice.”
On October 14, the Carlborgs moved for reconsideration, arguing for the first time
that they were exempt from compliance with the notice of claim statute under WIS.
STAT. § 893.80(1m) because their complaint sought to recover damages for
medical malpractice. Mount View filed a brief in opposition to the Carlborgs’
reconsideration motion, arguing that the Carlborgs should not be permitted to raise
a new legal argument on reconsideration. Mount View also argued that the
Carlborgs’ new argument failed on its merits because their complaint did not
assert a medical malpractice claim.

¶8 The Carlborgs filed a notice of appeal from the circuit court’s
October 7, 2020 order on November 10, 2020—before the court ruled on their
motion for reconsideration. On November 12, the court issued an “Order for
Judgment,” which stated that the court had both granted Mount View’s motion to
dismiss and denied the Carlborgs’ motion for reconsideration in its October 7
order. Based on that prior order, the court granted Mount View judgment against
the Carlborgs in the amount of $500. The Carlborgs then filed an amended notice
of appeal from the court’s November 12 order.

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DISCUSSION

¶9 This appeal requires us to apply the notice of claim statute and
various other statutory provisions to a set of undisputed facts. The application of a
statute to undisputed facts presents a question of law that we review
independently. Nichols v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991).

¶10 As relevant here, the notice of claim statute provides that, subject to
certain exceptions, “no action may be brought or maintained against any …
political corporation, governmental subdivision or agency thereof … upon a claim
or cause of action” unless two prerequisites are met. WIS. STAT. § 893.80(1d).
First, § 893.80(1d)(a) requires the claimant to serve a “written notice of the
circumstances of the claim” on the relevant governmental body “[w]ithin 120 days
after the happening of the event giving rise to the claim.” Our case law refers to
subsec. (1d)(a) as the “notice of injury” requirement. See 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. Second, § 893.80(1d)(b) requires the claimant to present “a
claim containing the address of the claimant and an itemized statement of the
relief sought” to “the appropriate clerk or person who performs the duties of a
clerk or secretary” for the governmental body, and the governmental body must
then disallow the claim. Subsection (1d)(b) is referred to as the “notice of claim”
requirement. See Yacht Club, 385 Wis. 2d 158, ¶20.

¶11 It is undisputed that the Carlborgs did not comply with either the
notice of injury requirement or the notice of claim requirement before filing the
instant lawsuit against Mount View. Furthermore, although the Carlborgs argued
in the circuit court that they were not required to comply with the notice of claim
statute because Mount View is a private facility, not a governmental entity, the

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court rejected that argument, and the Carlborgs have not renewed it on appeal.
Instead, the Carlborgs contend—as they did in their motion for reconsideration—
that they were exempt from complying with the notice of claim statute under WIS.
STAT. § 893.80(1m) because their complaint sought to recover damages for
medical malpractice.

¶12 In response, Mount View asserts that the Carlborgs forfeited their
argument regarding the medical malpractice exception in WIS. STAT. § 893.80(1m)
because they raised it for the first time in their motion for reconsideration. A
motion for reconsideration “is not a vehicle for making new arguments” after the
circuit court has decided a dispositive motion. Lynch v. Crossroads Counseling
Ctr., Inc., 2004 WI App 114, ¶23, 275 Wis. 2d 171, 684 N.W.2d 141.
Nevertheless, the forfeiture rule is a rule of judicial administration, and we have
discretion to disregard a forfeiture and address the merits of an unpreserved issue.
State v. Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d 530. Here,
we elect to address the merits of the Carlborgs’ argument regarding § 893.80(1m)
for several reasons.

¶13 First, although the Carlborgs did not raise their argument in response
to Mount View’s motion to dismiss, they promptly remedied that failure by filing
a motion for reconsideration, thus giving both Mount View and the circuit court
the opportunity to address the issue. See Counihan, 390 Wis. 2d 172, ¶27 (noting
that one of the purposes of the forfeiture rule is to “give[] the parties and the
circuit court notice of an issue and a fair opportunity to address the objection”).
Second, there is no indication that the Carlborgs’ failure to raise the issue earlier
was the result of sandbagging—i.e., “failing to object to an error for strategic
reasons and later claiming that the error is grounds for reversal.” Id. (citation
omitted). Third, the Carlborgs’ argument presents a question of law, which we

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can resolve without the need to find facts. See State v. Gaulke, 177 Wis. 2d 789,
794, 503 N.W.2d 330 (Ct. App. 1993). Fourth, both parties have briefed the issue
on appeal. See id. Fifth, because the circuit court dismissed the Carlborgs’ claims
early on in the litigation between the parties, our consideration of the Carlborgs’
new argument does not undermine judicial economy and efficiency. See State v.
Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) (noting that the
forfeiture rule “is based on a policy of judicial efficiency”). Sixth, the Carlborgs
are self-represented, and we “generally provide pro se litigants a degree of leeway
in complying with the rules expected of lawyers.” See Rutherford v. LIRC, 2008
WI App 66, ¶27, 309 Wis. 2d 498, 752 N.W.2d 897 (italics omitted). For all of
these reasons, we choose to address the merits of the Carlborgs’ argument that
they are exempt from compliance with the notice of claim statute because their
complaint seeks to recover damages for medical malpractice.

¶14 Turning to the merits, WIS. STAT. § 893.80(1m) expressly states that
the notice of injury and notice of claim requirements in subsec. (1d) “do not
apply” to “a claim to recover damages for medical malpractice.” We agree with
Mount View that this exception is inapplicable because the Carlborgs’ claims did
not seek to recover damages for medical malpractice.

¶15 WISCONSIN STAT. ch. 655 “constitutes the exclusive procedure and
remedy for medical malpractice in Wisconsin.” Finnegan v. Wisconsin Patients
Comp. Fund, 2003 WI 98, ¶22, 263 Wis. 2d 574, 666 N.W.2d 797. WISCONSIN
STAT. § 655.002 contains a list of individuals and entities that are—or may elect to
be—subject to the provisions of ch. 655. That list includes: (1) physicians;
(2) nurse anesthetists; (3) partnerships comprised of physicians or nurse
anesthetists; (4) corporations organized and operated for the primary purpose of
providing the medical services of physicians and nurse anesthetists;

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(5) cooperative health care associations; (6) ambulatory surgery centers;
(7) hospitals; (8) entities that are affiliated with a hospital and provide diagnosis,
treatment, or care for that hospital’s patients; (9) nursing homes, as defined in
WIS. STAT. § 50.01(3), whose operations are combined as a single entity with a
hospital; and (10) graduate medical education programs. See § 655.002(1)-(2).

¶16 There is nothing in the record on appeal—or in the allegations in the
Carlborgs’ complaint—to indicate that Mount View falls within any of the
categories of individuals or entities that are subject to WIS. STAT. ch. 655. In
response to the Carlborgs’ motion for reconsideration, Mount View submitted a
copy of a Marathon County ordinance that described Mount View as “a public,
skilled nursing home” serving individuals who are in need of: short-term
rehabilitation; post-acute care with complex physical needs; ventilator-dependent
care; long-term skilled nursing care; and specialized nursing care to address
dementia, psychiatric and neurological diseases, or behavioral needs. On appeal,
Mount View asserts—and the Carlborgs do not dispute—that although Mount
View is licensed as a nursing home under WIS. STAT. ch. 50, its operations are not
combined as a single entity with a hospital. Thus, Mount View is not subject to
ch. 655, and, as such, the Carlborgs could not assert a medical malpractice claim
against Mount View.2

2
In their reply brief, the Carlborgs quote language from Rouse v. Theda Clark Medical
Center, Inc., 2007 WI 87, 302 Wis. 2d 358, 735 N.W.2d 30, which they contend supports their
assertion that Mount View is subject to WIS. STAT. ch. 655. We are not convinced that the
language the Carlborgs cite supports their position. Moreover, the quotation that the Carlborgs
provide in their brief is not entirely accurate. Finally, and most importantly, the language the
Carlborgs quote is from a single justice’s dissenting opinion, and, accordingly, it is not
controlling. See Rouse, 302 Wis. 2d 358, ¶¶76, 82, 88 (Abrahamson, C.J., dissenting).

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¶17 In addition, Mount View correctly notes that because it is a
long-term care provider, lawsuits against it are subject to the limitations set forth
in WIS. STAT. § 893.555. See § 893.555(1)(a)5. (defining the term “long-term care
provider” to include nursing homes). Specifically, § 893.555(2) contains a statute
of limitations for actions to recover damages for injuries arising from any
treatment or operation performed by a long-term care provider, and § 893.555(4)
limits the noneconomic damages that a plaintiff may recover from a long-term
care provider in such an action. As Mount View correctly observes, WIS. STAT.
§ 893.55 sets forth a separate statute of limitations for medical malpractice claims,
as well as a separate limitation on the recovery of noneconomic damages in
medical malpractice cases. See § 893.55(1m), (4). We agree with Mount View
that if a claim against a long-term care provider for negligence in its care of a
resident constituted a medical malpractice claim, the limitations in § 893.555
would be superfluous, as such claims would already be subject to the limitations in
§ 893.55.

¶18 For these reasons, we conclude the Carlborgs’ complaint did not
assert a medical malpractice claim against Mount View. Accordingly, the
exception to the notice of claim statute in WIS. STAT. § 893.80(1m) for medical
malpractice claims does not apply, and the circuit court properly dismissed the
Carlborgs’ claims for failure to comply with the notice of claim statute.3

3
We acknowledge that the captions on the circuit court pleadings in this case contain the
case code for “other” medical malpractice actions. We also acknowledge that the record contains
various hearing notices that include the notation “Re[:] Other—Medical Malpractice.” We do
not, however, view these facts as dispositive of whether the Carlborgs’ complaint actually
asserted a medical malpractice claim. The Carlborgs do not cite any legal authority in support of
the proposition that either the case code or the notations on the hearing notices are controlling.

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¶19 Moreover, we also agree with Mount View that even if the
Carlborgs’ complaint had asserted a medical malpractice claim, that claim would
have been properly dismissed as a matter of law for two reasons. First,
Mount View is statutorily exempt from medical malpractice claims under WIS.
STAT. § 655.003(2), which states that WIS. STAT. ch. 655 does not apply to a
facility that is “operated by any governmental agency.” In its ruling on
Mount View’s motion to dismiss, the circuit court concluded that Mount View is a
governmental entity, and the Carlborgs do not challenge that conclusion on appeal.
As such, even if the Carlborgs had asserted a medical malpractice claim against
Mount View, that claim would have been properly dismissed as a matter of law.

¶20 Second, WIS. STAT. § 655.445(1) requires a plaintiff in a medical
malpractice action to file a request for mediation of his or her claim within fifteen
days of filing suit. Mount View asserts—and the Carlborgs do not dispute—that
the Carlborgs did not comply with that requirement. Their failure to do so would
have provided an alternative basis to dismiss their complaint, if the complaint had
asserted a medical malpractice claim.

¶21 We therefore conclude that the circuit court properly granted Mount
View’s motion to dismiss the Carlborgs’ claims. The Carlborgs assert that the
dismissal of their claims “undermined the fairness and integrity of the judicial
system.” However, their cursory argument in that regard is undeveloped and
unsupported by references to legal authority, and we therefore decline to address
it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶22 The Carlborgs also note that the circuit court’s November 12, 2020
“Order for Judgment” incorrectly stated that the court’s prior order dated
October 7, 2020, had denied the Carlborgs’ reconsideration motion. They assert

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that the inclusion of that “[f]alse information” in the court’s final order warrants
reversal. Again, however, the Carlborgs’ argument on this point is undeveloped
and unsupported by references to legal authority. Moreover, the court’s apparent
misstatement about its prior denial of the Carlborgs’ reconsideration motion has
no effect on our analysis of the dispositive issue in this appeal—i.e., whether the
court properly granted Mount View’s motion to dismiss on the grounds that the
Carlborgs were required, but failed, to comply with the notice of claim statute.
We will not reverse a circuit court’s order based on an error that did not affect a
party’s substantial rights. See WIS. STAT. § 805.18.

¶23 Finally, the Carlborgs contend that the circuit court erred by
dismissing their claims with prejudice. Specifically, they assert that the
“permanent[]” dismissal of their claims violated their constitutional rights to have
their case heard and to a trial by jury. The Carlborgs’ cursory constitutional
arguments are inadequately developed and lack legal support. Nonetheless, we
conclude for other reasons that—with the exception of the Carlborgs’ claim for
punitive damages—the court should have dismissed the Carlborgs’ claims without
prejudice.

¶24 Our review of a circuit court’s decision to dismiss a case with
prejudice is limited to whether the court erroneously exercised its discretion.
Haselow v. Gauthier, 212 Wis. 2d 580, 590-91, 569 N.W.2d 97 (Ct. App. 1997).
We will uphold a discretionary decision if the court examined the relevant facts,
applied a proper standard of law, and used a demonstrated rational process to
reach a reasonable conclusion. Id. at 591.

¶25 Our supreme court’s decision in Pattermann v. City of Whitewater,
32 Wis. 2d 350, 145 N.W.2d 705 (1966), is instructive. There, the plaintiff’s

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lawsuit against the City of Whitewater was dismissed for failure to comply with
the notice of claim statute. Id. at 353-54. On appeal, our supreme court
concluded the dismissal “should have been without prejudice in order to afford
[the] plaintiff the opportunity to comply with [the statute] and[,] in the event the
city denies his claim, to commence a subsequent action against the city.” Id. at
360. The supreme court therefore modified the judgment to state that the
plaintiff’s complaint was dismissed “without prejudice.” Id. at 360-61.

¶26 In this case, it is undisputed that the Carlborgs did not comply with
the notice of claim statute before filing suit against Mount View. However, like
the plaintiff in Pattermann, the Carlborgs may be able to demonstrate compliance
with that statute in the future. Although the Carlborgs did not timely serve a
written notice of injury on Mount View before filing suit, and although the
120-day time limit for doing so has now elapsed, the failure to timely serve a
notice of injury “shall not bar action on the claim” if the governmental defendant
“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.” See WIS. STAT. § 893.80(1d)(a). Accordingly, even though the
Carlborgs did not timely provide Mount View with the notice of injury required by
§ 893.80(1d)(a), they may be able to show that they nevertheless complied with
that statute because Mount View had actual notice of their claims and their failure
to provide a notice of injury did not prejudice Mount View.

¶27 In addition, while the Carlborgs did not provide Mount View with
the notice of claim required by WIS. STAT. § 893.80(1d)(b) or wait until
Mount View disallowed their claim before filing suit, the statute does not contain
any time limit for filing a notice of claim. Consequently, the Carlborgs may still

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file a notice of claim against Mount View regarding the injuries that they allege
Kenneth sustained as a result of Mount View’s negligence.

¶28 Thus, in the future, the Carlborgs may be able to demonstrate
compliance with both components of the notice of claim statute. We also observe
that the circuit court did not make any findings or provide any explanation in
support of its decision to dismiss the Carlborgs’ claims with prejudice. Under
these circumstances, we conclude the court erroneously exercised its discretion by
dismissing the Carlborgs’ claims with prejudice, with the exception of the
Carlborgs’ claim for punitive damages.4 We therefore modify the court’s order to
reflect that the Carlborgs’ punitive damages claim is dismissed with prejudice, and
that their remaining claims are dismissed without prejudice. We affirm the order
as modified.

By the Court.—Order modified and, as modified, affirmed.

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

4
WISCONSIN STAT. § 893.80(3) unambiguously bars the Carlborgs from recovering
punitive damages against Mount View because it is a governmental entity. Accordingly, the
Carlborgs’ claim for punitive damages failed as a matter of law and was properly dismissed with
prejudice.

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