Preview:

2002  WI  App  62
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                  01-0106
Complete Title of Case:
                                           KENNETH J. MURRAY,
                                           PLAINTIFF-APPELLANT,
                                           V.
CITY OF MILWAUKEE,
DEFENDANT-RESPONDENT.
Opinion Filed:                             February 28, 2002
Submitted on Briefs:     October 5, 2001
Oral Argument:
JUDGES:                                    Vergeront, P.J., Dykman and Lundsten, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                 On behalf of the plaintiff-appellant, the cause was submitted on the briefs
                                           of John F. Fuchs and Marcia A. Snow of Fuchs Snow DeStefanis, S.C.,
Milwaukee.
Respondent
ATTORNEYS:                                 On behalf of the defendant-respondent, the cause was submitted on the
                                           brief of Rudolph M. Konrad, deputy city attorney, and Grant F. Langley,
                                           city attorney, Milwaukee.




COURT OF APPEALS                                                                                                                                          2002  WI  App  62
DECISION
DATED AND FILED                                                                                                                                           NOTICE
                                                                                                                                                          This opinion is subject to further editing.   If
                                                                                                                                                          published, the official version will appear in
February 28, 2002                                                                                                                                         the bound volume of the Official Reports.
Cornelia G. Clark                                                                                                                                         A party may file with the Supreme Court a
Clerk of Court of Appeals                                                                                                                                 petition to review an adverse decision by the
                                                                                                                                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                          and RULE 809.62.
                                                                                                                                                          Cir. Ct. No.   00 CV 3082
Appeal No.                                                                             01-0106
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
KENNETH J. MURRAY,
PLAINTIFF-APPELLANT,
V.
CITY OF MILWAUKEE,
DEFENDANT-RESPONDENT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  THOMAS P. DONEGAN, Judge.   Affirmed.
Before Vergeront, P.J., Dykman and Lundsten, JJ.
¶1                                                                                     VERGERONT, P.J.    In this action, Attorney Kenneth Murray seeks
payment from the City of Milwaukee for legal services he provided to City of
Milwaukee  Police  Department                                                          (MPD)  officers  in  connection  with  citizen
complaints  filed  against  them.    The  trial  court  dismissed  Murray’s  amended
complaint, granting summary judgment in favor of the City of Milwaukee.   We




No.   01-0106
conclude the complaint does not state a claim for relief under WIS. STAT. § 895.35
(1999-2000)1  because  that  statute  does  not  provide  a  cause  of  action  for  the
payment of attorney fees.   We also conclude that Murray’s complaint does not
state a claim for relief under theories of equitable estoppel, unjust enrichment, or
quantum meruit.   We therefore affirm.
BACKGROUND
¶2                                                                                          The relevant allegations in the complaint are as follows.   Murray has
served as legal counsel for the Milwaukee Police Association for more than twenty
years,  and  in  that  capacity  he  represented  police  officers  in  numerous  legal
proceedings.    He  successfully  defended  Officers  John  Balcerzak  and  Joseph
Gabrish  when  a  citizen  complaint  was  filed  against  them  in                         1991,  and  the
conclusion of that proceeding was reinstatement of both officers.   It is the practice
and policy of the City of Milwaukee, when a citizen complaint is brought against
an MPD officer, to reimburse attorney fees and costs incurred by the officer in
connection with the defense of the complaint, and, in Murray’s experience, the
City has always paid officers’ attorney fees in these proceedings.   In representing
the two officers, Murray relied on this practice and policy.
¶3                                                                                          According to the amended complaint, in 1995 Murray filed a claim
with the City for reimbursement of attorney fees and costs incurred in representing
the  two  officers  in  the  amount  of                                                     $318,448.    At  a  meeting  of  the  City  of
Milwaukee’s Special Judiciary and Legislative Committee held approximately a
month later, the city attorney proposed paying the claim, although in a lower
amount.   There was concern among some committee members about the public’s
1  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
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No.   01-0106
perception that the officers would be “profiting,” and they wanted to determine
whether the check could be made payable to the officers’ attorney only.   Although
the  committee  tabled  the  matter  for  a  future  meeting,  Murray  relied  on  the
discussion  at  the  meeting  as  an  indication  that  he  would  eventually  receive
payment.   However, he has not been paid by the City.
¶4                                                                                        Murray’s  amended  complaint  asserted  that  WIS.  STAT.  § 895.35
authorized payment of his fees.   The complaint also asserted causes of action for
equitable estoppel, unjust enrichment, and quantum meruit.
¶5                                                                                        The City moved to dismiss the amended complaint on the grounds
that it did not state any claim for relief.   Because both parties submitted affidavits
in support of their positions, the trial court treated the motion as one for summary
judgment.2   The trial court concluded that under Bablitch & Bablitch v. Lincoln
County, 82 Wis. 2d 574, 263 N.W.2d 218 (1978), and Rychnovsky v. Village of
Fall River, 146 Wis. 2d 417, 431 N.W.2d 681 (Ct. App. 1988), Murray did not
have a cause of action under WIS. STAT. § 895.35.   The court also ruled that the
affidavits did not show an abuse of discretion by the City and, alternatively, that
the remedy against the City for abusing its discretion or acting outside of its
jurisdiction was to bring a writ of certiorari, which Murray had not done.   The
court concluded that Murray did not have a claim based on equitable estoppel,
2  WISCONSIN STAT. § 802.06(2)(b) provides:
(b) …. If on a motion asserting the defense described in par.
(a) 6. 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 s. 802.08, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a
motion by s. 802.08.
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No.   01-0106
both because equitable estoppel does not lie against a municipality for statements
made by municipal officials and because there was no showing the City had taken
any action to induce reliance by Murray.   Finally, the court concluded that Murray
did not have a claim based on unjust enrichment or quantum meruit because there
was no showing that a benefit had been conferred upon the City.
DISCUSSION
¶6                                                                                         On appeal Murray argues that the City erroneously exercised its
discretion by failing to pay his attorney fees, that the City is equitably estopped
from denying his claim for fees, and that he is entitled to payment of his fees
under the theories of unjust enrichment and quantum meruit.
¶7                                                                                         When we review a trial court’s decision on summary judgment, we
apply the same methodology as the trial court and our review is de novo.   See
Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).   A party is entitled
to summary judgment if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.   WIS. STAT. § 802.08(2).
We begin the analysis by deciding whether the complaint states a claim for relief,
because it is only if the complaint does so that we move on to examine the parties’
factual submissions.   Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401
N.W.2d 816 (1987).   In deciding whether a complaint states a claim for relief, we
take as true all facts pleaded and all reasonable inferences favoring the plaintiff that
may be derived from these facts.  Id. at 317.
¶8                                                                                         We first address Murray’s claim that the City erroneously exercised its
discretion under WIS. STAT. § 895.35 by failing to pay him for his representation of
the two officers.  Section 895.35 provides in part:
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No.   01-0106
Expenses  in  actions  against  municipal  and  other
officers.   Whenever in any city … charges of any kind are
filed or an action is brought against any officer thereof in
the officer’s official capacity … and such charges or such
action  is  discontinued  or  dismissed  or  such  matter  is
determined  favorably  to  such  officer,  or  such  officer  is
reinstated … such city … may pay all reasonable expenses
which such officer necessarily expended by reason thereof.
(Emphasis added.)   Murray concedes that because of the use of the word “may” in
§ 895.35, the City is not required to pay attorney fees.   However, he argues that
the discretion given the City is not absolute and must be exercised reasonably and
equitably.   Murray contends that the affidavits and other factual submissions he
filed in opposition to the City’s motion show that the City did not appropriately
exercise its discretion because it routinely paid the attorney fees for officers who
retained private counsel to successfully defend against charges stemming from a
citizen complaint, and because the motivation for the committee’s failure to act on
his claim for fees was  “political.”3    We conclude it is unnecessary for us to
consider the City’s reasons for failing to pay the fee claim because, regardless of
the reasons, the complaint does not state a claim for relief under § 895.35.
¶9                                                                                                       In Bablitch & Bablitch, 82 Wis. 2d at 584, the court affirmed an
order dismissing the complaint of a sheriff and his lawyer seeking attorney fees.
The complaint alleged that the sheriff had presented the claim for attorney fees to
3  In particular, Murray contends that his submissions show that the committee was
concerned with how the public might perceive a decision to pay the attorney fees for the two
officers  because  the  proceedings  against  them arose  out  of  their  investigation  of  a  report
concerning a young man who shortly thereafter became one of the victims of the serial killer,
Jeffrey Dahmer.   The City contends that its submissions show that the officers did not achieve a
favorable result because they had pleaded guilty before the Milwaukee Board of Police & Fire
Commissioners to certain rule violations and had served a sixty-day suspension.  According to the
City, its submissions also show that the City had already paid $850,000 to settle cases against the
two officers and the City, and these reasons provide a rational basis for the decision not to pay the
officers’ attorney fees for Murray’s representation.   For the reasons we explain above, it is not
necessary for us to consider either party’s affidavits in order to resolve this appeal.
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No.   01-0106
the county and the county refused payment.   After addressing certain other statutes
as potential sources of  entitlement to payment of  the attorney fees, the court
considered  WIS.  STAT.  § 895.35.    The  court  concluded  that  the  county  was
“empowered under sec. 895.35, Stats., to pay [the sheriff’s] attorney’s fees and
costs if it so elects.”   Id. at 584.   However, it also concluded that the statute “gives
the county the option to refuse payment.”   Id.   Because the county exercised its
option, the sheriff had no cause of action against the county, and the demurrer was
properly sustained by the trial court.  Id.4
¶10    We applied the holding in Bablitch & Bablitch in the later case,
Rychnovsky.   There we agreed with a municipality that the trial court had erred in
ordering it to pay a police chief’s attorney fees, stating:
The trial court relied on sec. 895.35, Stats., for its award.
However, the supreme court has construed this statute to
allow a municipality or county to pay an officer’s attorney
fees if it so elects.   If the municipality refuses payment, the
officer has no cause of action against it under sec. 895.35.
Rychnovsky, 146 Wis. 2d at 424 (citations omitted).
¶11    Since neither Murray nor the officers he represented have a cause of
action against the City for attorney fees under WIS. STAT. § 895.35, it logically
follows that they do not have a cause of action under § 895.35 even if the City
unreasonably denies payment.   Therefore, even if we take the allegations in the
4  The court in Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574, 584-85, 263
N.W.2d 218 (1978), observed that it did not know what reasons prompted the county board to
decline payment of the claim, but, because the decision might have been prompted by an
erroneous conclusion that the Wisconsin Constitution prohibited payment (this was the first issue
the court addressed in the case), the court directed that the sheriff be permitted to refile his claim
so that the county board could render a decision in light of the opinion.  However, it is clear from
the decision that if the county board were to deny the claim while understanding that it had
statutory and constitutional authority to pay it, the sheriff would have no cause of action against
the county for the failure to pay after refiling.
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No.   01-0106
complaint as true—that the City had a practice and policy of reimbursing attorney
fees and costs incurred by officers in connection with a defense against citizen
complaints—neither Murray nor the officers have a viable claim for payment
under § 895.35.   Similarly, even if we were to accept as true Murray’s allegation
that the City failed to pay him because of political concerns, he is still not entitled
to relief under § 895.35.5
¶12    Murray’s characterization of the City’s failure to pay as an erroneous
exercise of discretion does not change this result.6   In support of his argument that
the City must exercise its discretion under WIS. STAT. § 895.35 reasonably and
equitably, Murray cites three cases that have no bearing on § 895.35:   Jefferson
County v. Timmel, 261 Wis. 39, 62-63, 51 N.W.2d 518 (1952); Quinn v. Town of
Dodgeville,  122 Wis.  2d  570,  577,  364 N.W.2d  149  (1985); and Schmeling v.
Phelps, 212 Wis. 2d 898, 917, 569 N.W.2d 784 (Ct. App. 1997).   These cases
concern the constitutional limitations on the exercise of the police power in the
context  of  zoning.    Murray  does  not  develop  any  argument  to  explain  the
connection  between  a  municipality’s  exercise  of  its  police  powers  and  a
municipality’s exercise of the authority given it under § 895.35, and we see none.
5  The specific nature of the City’s political reasons for failing to pay his attorney fees are
not  alleged  in  the  amended  complaint,  but  are  more  fully  developed  in  Murray’s  factual
submissions.   However, even if the amended complaint were more specific on this point, or even
if we considered Murray’s submissions in opposition to the motion, our analysis and conclusion
would be the same.
6  The City contends that we should not address Murray’s contention that the City
erroneously exercised its discretion under WIS. STAT. § 895.35 because that was not alleged in
the complaint, and Murray did not make that argument until his brief in opposition to the City’s
motion to dismiss.   However, a complaint need not expressly identify a legal theory, but only the
facts necessary to recover under that legal theory.  See Northwestern Nat. Cas. Co. v. State Auto.
& Cas. Underwriters, 35 Wis. 2d 237, 241, 151 N.W.2d 104 (1967); WIS. STAT. § 802.02(1).
Because the City has had the opportunity, both in the trial court and in this court, to respond to
Murray’s legal theory that the City must exercise its discretion under § 895.35 in a reasonable and
equitable manner, it is proper to decide the merits of this legal theory.
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No.   01-0106
¶13    At bottom, Murray appears to be arguing that because WIS. STAT.
§ 895.35 uses the word  “may,” the City’s exercise of  its authority under this
statute is subject to judicial review based on a standard of reasonableness and
equity.    However,  nothing  in  the  statute  suggests  that  this  is  the  case.    We
conclude  that  “may”  in  the  statute  simply means  that  a  municipality has  the
authority to pay the attorney fees described in this section, if it so elects.   Bablitch
& Bablitch,  82 Wis.  2d at  584.    In considering very similar language in WIS.
STAT.  § 62.09(7)(f)  (1925)  (now WIS. STAT.  § 62.09(7)(e)),7 the supreme court
observed:
To the point that the law does not guarantee that all public
officers shall be treated alike, and that the common council
may  reimburse  some  and  withhold  such  reimbursement
from others, it is only necessary to say that the law does not
confer  a  right  to  such  reimbursement  upon  any  public
officer.   The law simply confers upon common councils the
same discretion which the legislature has always exercised.
The law confers a discretionary power upon the council and
does not grant a right to the officer.   If such a power be
misused, it calls for political and not legal remedies.
Curry v. City of Portage, 195 Wis. 35, 41, 217 N.W. 705 (1928).8
7  WISCONSIN STAT. § 62.09(7)(e) provides:
(e) Whenever a city official in that official’s official capacity
is proceeded against or obliged to proceed before any court,
board or commission, to defend or maintain his or her official
position, or because of some act arising out of the performance
of that official’s official duties, and that official has prevailed in
such  proceeding,  or  the  council  has  ordered  the  proceeding
discontinued,  the  council  may  provide  for  payment  to  such
official such sum as it sees fit, to reimburse the official for the
expenses reasonably incurred for costs and attorney fees.
8  We do not suggest that the manner in which a municipality exercises its authority under
WIS.  STAT.                                                                                           § 895.35  is  not  subject  to  the  Wisconsin  Constitution  or  the  United  States
Constitution, but Murray has not alleged any constitutional violation.   Therefore our analysis of
the City’s exercise of its authority under § 895.35 is confined solely to Murray’s claim for relief
under the statute.
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No.   01-0106
¶14    We next consider Murray’s claim that the City is equitably estopped
from denying payment.   He alleges in the amended complaint that he relied on the
City’s practice and policy of paying attorney fees in previous cases, and further
relied on the actions taken at the April  1995 Special Judiciary and Legislative
Committee meeting, and this reliance was to his detriment because he has not been
paid and has therefore suffered damage.
¶15    In his brief, Murray describes his claim of equitable estoppel as “an
equitable cause of action based upon his reliance on the City’s historic practices.”
However, equitable estoppel (estoppel in pais)9 is a bar to the assertion of what
would  otherwise  be  a  right;  it  does  not  of  itself  create  a  right.    Utschig  v.
McClone,  16 Wis.  2d  506,  509,  114 N.W.2d  854  (1962).   Thus, Murray must
establish his right to recover attorney fees from the City on some basis other than
equitable estoppel; equitable estoppel does not establish that right.  Id.10
¶16    Turning  to  the  theory  of  unjust  enrichment,  we  conclude  the
amended  complaint  does  not  state  a  claim  for  relief  under  this  theory.    The
9  The requirements of equitable estoppel or estoppel in pais are:                                      (1) action or inaction,
(2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance
thereon by the other, either in action or non-action, and (4) which is to his or her detriment.
Milas v. Labor Ass’n of Wis., Inc., 214 Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997).
10  Promissory estoppel, in contrast to equitable estoppel or estoppel in pais, does provide
an affirmative basis for recovery.   See Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 696,
133 N.W.2d 267 (1965).   The elements of this cause of action are:                                      “[a] promise which the
promisor should reasonably expect to induce action or forbearance of a definite and substantial
character                                                                                               …  and  which  does  induce  such  action  …  if  injustice  can  be  avoided  only  by
enforcement of the promise.”  Id. at 694.  Murray has not argued that he is entitled to relief on the
basis of promissory estoppel, and such an argument would not be successful.   The amended
complaint does not allege that the City promised to pay him, thereby inducing him to represent
the officers.   Even if we were to construe the amended complaint as alleging some implicit
promise by the committee members at the April 1995 meeting to pay him the reduced amount,
there is no allegation that the implicit promise induced action or inaction by Murray:   he had
already expended the time representing the officers.
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No.   01-0106
elements of an unjust enrichment claim are:                                               (1) a benefit conferred upon the
defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of
the benefit; and (3) acceptance or retention by the defendant of the benefit under
circumstances making it inequitable for the defendant to retain the benefit without
payment of its value.   Puttkammer v. Minth, 83 Wis. 2d 686, 688-89, 266 N.W.2d
361 (1978).   Murray alleges in his complaint that by successfully defending the
two officers, he conferred a specific benefit upon the City, the City had knowledge
and appreciation of the fact of Murray conferring this benefit upon it, and the
City’s acceptance and retention of that benefit occurred under circumstances that
would make it inequitable for the City to retain the benefit.   Murray asserts that the
City  had  an  obligation  to  defend  the  officers  against  discharge  proceedings
stemming from a citizen complaint.   However, he has cited no authority for that
proposition.   In response, the City asserts that it had no obligation to provide legal
counsel to the officers, and Murray does not dispute that contention in his reply
brief.   We therefore take this as a concession.   See Schlieper v. DNR, 188 Wis. 2d
318, 322, 525 N.W.2d 99 (Ct. App. 1994).   In the absence of an obligation by the
City to provide counsel to the officers, Murray’s legal representation of them did
not confer a benefit on the City.
¶17    Finally, the  amended complaint does not state a claim for relief
under the theory of quantum meruit.   Recovery in quantum meruit is allowed for
services performed for another on the basis of a contract implied by law to pay the
performer the reasonable value of the services.   Ramsey v. Ellis, 168 Wis. 2d 779,
784, 484 N.W.2d 331 (1992).   To establish an implied contract, the plaintiff must
show that the defendant requested the services and that the plaintiff expected
reasonable compensation.   Id.
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No.   01-0106
¶18    The amended complaint alleges that Murray rendered legal services
to the officers “[p]ursuant to the specific request of the two MPD officers … and
based upon the City’s habit, practice, and policy of reimbursing MPD officers’
legal fees and costs in connection with the defense of a citizen complaint brought
against them in  the  course  of  their  official duties to the  City.”    There  is no
allegation that the City requested the services; certainly the City’s past practice of
reimbursement  is  not  the  equivalent  of  a  request  by  the  City  for  Murray  to
represent the officers.
¶19    Because the amended complaint does not state a claim for relief
under  any  of  the  legal  theories  Murray advances,  we  affirm  the  trial  court’s
judgment dismissing the amended complaint.
By the Court.—Judgment affirmed.
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