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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 22, 2000
A  party  may  file  with  the  Supreme  Court  a
petition  to  review  an  adverse  decision  by  the
Cornelia G. Clark
Court of Appeals.   See WIS. STAT. § 808.10 and
Clerk, Court of Appeals
RULE 809.62.
of Wisconsin
Nos.  98-0800 & 98-2023
STATE OF WISCONSIN                                      IN COURT OF APPEALS
                                                        DISTRICT I
KEITH LOVE,
PLAINTIFF-APPELLANT,
V.
DR. JOHN EVERSMAN, DR. A. THOMAS INDRESANO,
MARY KAY SCHUKNECHT AND THE MILWAUKEE COUNTY JAIL,
DEFENDANTS-RESPONDENTS,
THE MEDICAL COLLEGE OF WISCONSIN,
DEFENDANT.
KEITH LOVE,
PLAINTIFF-RESPONDENT,
V.
DR. JOHN EVERSMAN, DR. A. THOMAS INDRESANO,
MARY KAY SCHUKNECHT AND THE MILWAUKEE COUNTY JAIL,
DEFENDANTS,




Nos. 98-0800 & 98-2023
THE MEDICAL COLLEGE OF WISCONSIN,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
CHARLES F. KAHN, JR., Judge.   Affirmed in part; reversed in part and cause
remanded with directions.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1                                                                                           PER CURIAM.      Keith Love appeals the dismissal of Mary Kay
Schuknecht,  Dr.  John  Eversman  and  Dr.  A.  Thomas  Indresano  from  his  suit
seeking compensatory and punitive damages for deterioration of his gums that he
alleges occurred when he was denied dental care while a Milwaukee County Jail
inmate.    Additionally,  the  Medical  College  of  Wisconsin  (MCW),  which had
contracted  with  Milwaukee  County to  provide  certain  dental  care  to  inmates,
appeals the denial of its summary judgment motion.1   We affirm the trial court’s
dismissal of Mary Kay Schuknecht and the doctors from the suit and we reverse
the trial court’s denial of summary judgment to the Medical College.2
I. BACKGROUND.
¶2                                                                                           Keith  Love  sued  MCW,  two  MCW  doctors,  and  Schuknecht,  a
Milwaukee County nurse, alleging that while he was an inmate at the Milwaukee
1  This court granted MCW’s petition for leave to appeal and consolidated its appeal with
Love’s appeal by order dated January 25, 1999.
2  Although Milwaukee County Jail is listed in the caption, the jail is not an entity that
can be sued in its own right.
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Nos. 98-0800 & 98-2023
County  Jail  he  was  denied  needed  dental  care,  which  resulted  in  permanent
damage to his gums.   He sued Schuknecht because she was in charge of providing
inmates at the Milwaukee County Jail with medical and dental care.   He sued Dr.
Eversman, who was a Senior Associate Dean for Clinical Affairs at MCW, and Dr.
Indresano, who was a professor and the Chair of the Department of Oral and
Maxillofacial Surgery at MCW, because they signed the contract on behalf of
MCW which required the medical college to provide dental care to Milwaukee
County Jail inmates.   He also sued MCW.
¶3                                                                                       In  his  complaint,  Love  claims  that  he  was  incarcerated  at  the
Milwaukee County Jail from March 1996 to October 1996, and during his stay in
the jail he developed “teeth problems.”   He alleges that, as a result of his “teeth
problems,” he had difficulty sleeping and eating, and he complained  “at least
twenty times” to the staff at the jail about his problems.   He asserts that the staff
refused to provide him with dental care and, instead, either ignored his complaints
about his teeth or told him that the dentists employed by the jail only “pull teeth.”
Love then wrote to Dr. Indresano and complained about the lack of dental care.
Love received a reply from Dr. Indresano, who advised him to contact the jail
personnel to set up a dental appointment.   Love maintains that he never received
the dental care he sought and, as a result, he has suffered permanent damage to his
gums.
¶4                                                                                       In  February  1998,  the  trial  court  dismissed  Schuknecht  and  the
doctors from the action.   The trial court found that Love failed to file a notice of
claim and injury as required by WIS. STAT. § 803.80(1)(a) & (b), and, as a result,
3




Nos. 98-0800 & 98-2023
the trial court did not have jurisdiction over Love’s suit against Schuknecht.3   With
regard to the doctors, the trial court granted their motion for partial summary
judgment, noting that they never treated Love and that their only involvement was
limited to being signatories on the contract for MCW.   Later, at a separate hearing,
the trial court denied MCW’s summary judgment motion, stating that “Nothing
specified that the Medical College had no duty and also no authority to review the
request made by Mr. Love.   Therefore, I cannot find that there is absolutely no
genuine issue of material fact.”   MCW’s motion asking the court to reconsider its
earlier decision was also unsuccessful.   Love appealed from the order dismissing
Schuknecht and the doctors.   MCW sought and obtained leave to appeal the denial
of its summary judgment motion.4
II. Order Dismissing Schuknecht
¶5                                                                                                      The trial court determined that Love never filed a notice of claim
with the county pursuant to WIS. STAT.  § 893.80.    On appeal, Love takes the
extraordinary position that, in fact, he did file a notice of claim.   He explains away
the lack of documentation of his claim at the hearing by stating that “The proof
was not put before the trial court because I did not have copies.”   Schuknecht has
responded that Love is guilty of misrepresentation as Love never claimed in the
trial court that he served a notice of claim in this case.   Moreover, Schuknecht
3  All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
4  After the cases were consolidated, this court discovered that no brief had been filed on
behalf of Schuknecht.   By order we informed the parties that if Love had not already served
Schuknecht’s attorney with a copy of his brief, he was to do so.   The order also stated that, in the
event Schuknecht’s attorney had not been served with a copy of the brief, her counsel was being
given the opportunity to file a brief.   As a result, Schuknecht’s attorney filed a motion seeking
summary affirmance and Love corresponded with the court including submitting a purported
“notice of claim.”
4




Nos. 98-0800 & 98-2023
argues that the notice of claim which Love recently sent to this court violates
appellate procedure and is actually a copy of a notice of claim Love filed in
another case.   After a review of the record, this court agrees with the trial court
that no notice of claim and injury was ever filed.   Further, this court reprimands
Love for his attempted deception.
¶6                                                                                     Simply  stated,  WIS.  STAT.    § 893.80  requires  a  party,  prior  to
bringing a suit, to notify the government of the claim and the injury.   The statute
provides that the “claim containing the address of the claimant and an itemized
statement of  the relief  sought” must be presented to an  “appropriate clerk or
person who performs the duties of a clerk or secretary for the defendant fire
company, corporation, subdivision or agency.”5   Section  893.80(1)(a) mandates
5
WISCONSIN STAT. § 893.80(1) reads:
Claims against governmental bodies or officers, agents or
employes; notice of injury; limitation of damages and suits.
(1) Except as provided in subs.  (1g),  (1m),  (1p) and  (8), no
action may be brought or maintained against any volunteer fire
company  organized  under  ch.                                                         213,  political  corporation,
governmental  subdivision  or  agency  thereof  nor  against  any
officer, official, agent or employe 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:
(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
volunteer fire company, political corporation, governmental
subdivision or agency and on the officer, official, agent or
employe under s. 801.11. Failure to give the requisite notice
shall  not  bar  action  on  the  claim  if  the  fire  company,
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 fire company, corporation,
subdivision or agency or to the defendant officer, official,
agent or employe….
(b) A claim containing the address of the claimant and an
itemized statement of the relief sought is presented to the
(continued)
5




Nos. 98-0800 & 98-2023
that this action must be taken within 120 days “after the happening of the event
giving rise to the claim.”   The statute also obligates the claimant to give “written
notice of the circumstances of the claim.”
¶7                                                                                         Love  sued  Schuknecht  in  her  capacity  as  the  administrator  of
medical and dental care in the Milwaukee County Jail.   He claims that she was
negligent in failing to provide him with dental care.   Thus, her alleged negligence
is  directly  related  to  her  tasks  as  an  employee  of  Milwaukee  County.
Consequently, Love was obligated to comply with the dictates of WIS. STAT.
§ 893.80 because Schuknecht was sued in her capacity as a Milwaukee County
employee.
¶8                                                                                         At a hearing, the trial court determined that no notice of claim was
filed with the county clerk as required by WIS. STAT. § 893.80.   This court must
accept a trial court’s factual findings unless they are clearly erroneous, and must
give  due  regard  to  the  trial  court’s  opportunity  to  judge  the  credibility  of
witnesses.   See WIS. STAT. § 805.17(2); State v. Yang, 201 Wis. 2d 725, 735, 549
N.W.2d 769 (Ct. App. 1996).
¶9                                                                                         The record overwhelmingly supports the trial court’s determination
that Love failed to file a notice of claim concerning his allegations of denied
dental care.   At the hearing, the trial court explained:
Mr. Love has acknowledged that there was no such claim
filed on time and really has failed to set up any legal reason
why  the  claim  must  continue  as  to  either  Milwaukee
County  or  Deputy  Schuknecht.    Now,  the  deputy  was
acting clearly in her capacity as an agent for Milwaukee
County, and was being sued by Mr. Love, and therefore,
appropriate clerk or person who performs the duties of a clerk
or  secretary  for  the  defendant  fire  company,  corporation,
subdivision or agency and the claim is disallowed.
6




Nos. 98-0800 & 98-2023
the  notice  requirement  was  not  filed  and  therefore,  the
motion by those two parties for dismissal is granted.6
Indeed, Love argued to the trial court that he did not believe he was required to
file a notice of claim since he filed a notice for mediation.   Love’s last-minute
attempt to distort the truth by filing a bogus notice of claim will not be tolerated
and his new “notice of claim” will not be considered.   Thus, we agree with the trial
court that no notice of claim was filed and Schuknecht was properly dismissed
from the suit.
III. Summary Judgment
A. The grant of partial summary judgment dismissing Dr. Eversman
and Dr. Indresano.
¶10    Love contends that the doctors were negligent and therefore should
not have been dismissed from the lawsuit.   Love argues that the trial court erred in
dismissing both Dr. Eversman and Dr. Indresano from his suit because, he asserts,
the trial court “was under the premise that Dr. Eversman and Dr. Indresano never
entered  into  any  agreement  with  the  [sic]  Milwaukee  county.”    Again,  Love
misrepresents the underlying facts.  The trial court actually stated:
[B]ased  on  the  admission  of  Keith  Love  that  neither
Dr. John Eversman nor Dr. A. Thomas Indresano actually
treated or examined him, and, the court further finding, that
Dr. John Eversman and Dr. A. Thomas Indresano signed
the  applicable  contract  between  Milwaukee  County  and
[MCW]  as  agents  and  on  behalf  of  [MCW],  both  Dr.
Eversman and Dr. Indresano are entitled to dismissal on the
merits, with prejudice.
6  The trial court apparently mistakenly believed Schuknecht was a deputy rather than a
Milwaukee County Jail nurse.
7




Nos. 98-0800 & 98-2023
The standard of review for a motion for summary judgment is well known.   In an
appeal from the entry of summary judgment, this court reviews the record de novo,
applying the same standard and following the same methodology required of the
trial court under WIS. STAT. § 802.08.   See Brownelli v. McCaughtry, 182 Wis. 2d
367, 372, 514 N.W.2d 48 (Ct. App. 1994).   After applying the methodology, we
are satisfied that the grant of summary judgment to the doctors was proper.
¶11    As noted, the trial court was well aware of the fact that both doctors’
involvement was limited to their signing the contract on behalf of MCW that
required  MCW  to  provide  certain  dental  services  to  Milwaukee  County  Jail
inmates.   The trial court reasoned that because the doctors never provided any
medical or dental services to Love, a negligence suit could not be sustained against
them.   We agree.   Neither doctor provided any medical or dental care to Love;
therefore, they cannot be sued for medical malpractice.
¶12    Further, the doctors cannot be sued in their capacity as signatories to
the contract.   Generally, an agent who contracts on behalf of a disclosed principal
bears no personal liability for a subsequent breach.   See Benjamin Plumbing, Inc.
v. Barnes, 162 Wis. 2d 837, 848, 470 N.W.2d 888 (1991).   Here, it is undisputed
that the two doctors signed the contract as representatives of MCW.   The principal
was disclosed.   Thus, the doctors are free from personal liability.
B. Denial of Summary Judgment to MCW
¶13    The trial court denied MCW’s summary judgment motion, finding
that the contract between MCW and Milwaukee County created a duty for MCW
dentists to “be responsible for the basic general dental care of the inmates for the
Milwaukee county jail.”    Further, the trial court felt Dr. Indresano’s failure to
8




Nos. 98-0800 & 98-2023
personally investigate Love’s circumstances following receipt of Love’s letter may
have violated a duty of care.
¶14    MCW  argues  that  the  trial  court  erred  because  there  were  no
disputed issues of fact and MCW had no duty, either under the contract with
Milwaukee County or any other duty, to evaluate the inmates and determine who
should and should not receive medical and dental care.   MCW notes that under the
administrative  code,  the  duty  to  provide  necessary  medical  treatment  and
emergency dental care is clearly the responsibility of the sheriff.   Indeed, MCW
points to the affidavit of Schuknecht, who confirmed that jail personnel in the
Milwaukee County Jail determined whether an inmate needed emergency dental
care.   Further, MCW submits that since no one at MCW treated Love, he has no
claim in tort.   We agree with both contentions.
¶15    On review of a denial of summary judgment, we, like the trial court,
initially examine the pleadings to determine whether the complaint states a claim.
See Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980).   Even if the
pleadings state a claim, summary judgment must be granted if the evidentiary
material demonstrates “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.
RULE 802.08(2).
¶16    The  submissions  presented  both  at  the  time  of  the  summary
judgment motion, and those submitted in support of the motion asking the trial
court to reconsider its summary judgment ruling, clearly demonstrate that MCW
had no duty to evaluate inmates to determine who would receive dental care.
WISCONSIN STAT. § 302.38 places the duty to provide for prisoners’ medical needs
with the “sheriff, superintendent or other keeper of the jail or house of correction.”
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Nos. 98-0800 & 98-2023
WISCONSIN ADMIN. CODE § DOC 350.09(1) obligates the sheriff to also provide
emergency dental care.   The section states:                                                         “[t]he sheriff shall provide or secure
necessary medical treatment and emergency dental care for inmates in custody.”7
Thus, it was the sheriff who was responsible for securing the services of a dentist
to provide the emergency care.
¶17    Documents filed with the trial court reflect that Milwaukee County
met the sheriff’s statutory and administrative duties by entering into a contract
with MCW for dental services.   After reviewing the contract, we observe that the
sheriff did not contract away his responsibility to decide which inmates needed
emergency dental care.   Thus, the obligation to determine who needed emergency
dental care remained with the sheriff.   Consequently, we conclude that the doctors
employed  by  MCW  provided  emergency  dental  care  once  jail  personnel
determined  it  was  needed.     Support  for  this  conclusion  is  also  found  in
Schuknecht’s affidavit submitted by MCW.   In it, she stated that it was the jail
nurses who “performed triage on inmates to determine their medical and dental
needs.”8
¶18    MCW established that it was Schuknecht and other nurses at the jail
who were the gatekeepers for medical and dental care at the jail.   MCW had no
duty to screen inmates to determine who was in need of emergency dental care
7  In fact, Milwaukee County went beyond their duty and contracted with MCW to
provide limited routine dental care for prisoners, even though no law requires the sheriff to make
routine dental care available to inmates.
8  Schuknecht’s affidavit also indicated that the jail nurse who examined Love’s teeth
determined that he did not require emergency care and that he was placed on the waiting list for
routine dental care.  However, he was transferred before he was eligible.
10




Nos. 98-0800 & 98-2023
and, thus, Love’s suit alleging MCW failed to provide dental care cannot be
maintained.
¶19    Nor did the fact that Dr. Indresano sent a reply to Love’s letter
complaining about the jail’s failure to provide dental care create a duty of care for
MCW.   The trial court indicated that it felt that language in the contract may have
required Dr. Indresano to undertake an investigation after Love wrote complaining
of his lack of treatment.   We disagree.   It appears from reading the contract that
the trial court confused the duties of the dentist in rendering professional services
with the duty of the sheriff to determine who is entitled to that care.   Nothing in
the contract states MCW selects the inmates entitled to emergency care.   Indeed,
Dr. Indresano’s reply to Love telling him to contact the jail authorities to obtain
dental care reinforces the fact that the duty to evaluate inmates remained the
sheriff’s.   Love has not provided, nor can we find, any case law that requires a
dentist or his or her employer, who is under contract to provide  professional
services to jail inmates, to independently investigate an inmate’s complaint of a
lack of dental care.   Consequently, we conclude neither Dr. Indresano nor MCW
had any independent duty to investigate Love’s complaint about his failure to
obtain dental care.
¶20    In  sum,  MCW  has  established  that  it  was  the  sheriff’s  duty  to
provide emergency dental care to inmates.   Further, at the Milwaukee County Jail,
the nurses decided who was in need of the care.   The contract with MCW did not
relieve the sheriff of his responsibilities to provide emergency dental care, or
require MCW to evaluate inmates to determine who should receive dental care.
MCW’s  only involvement was  in  providing care  once  the  sheriff’s personnel
decided who needed it.   Further, the fact that Dr. Indresano replied to Love’s letter
complaining about the jail did not create a duty of care for MCW.   Accordingly,
11




Nos. 98-0800 & 98-2023
we  reverse  the  trial court’s decision and remand with directions  that MCW's
summary judgment motion be granted.
By the Court.—Orders affirmed in part; reversed in part and cause
remanded with directions.
                                                                                  This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                         (b)5.
12

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