2005AP539 Koshick v. State

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“Koshick’s breach of contract claim is plainly not an action on a debt. He is not seeking an amount due for goods or services that he has sold or delivered to the State; he is not, as was the plaintiff in Trempealeau, seeking money that the State has received that he asserts he is entitled to. The lost profits and the incurred expenses he seeks to recover are not liquidated; they cannot be readily determined from the terms of the alleged contract or from fixed data or mathematical computation….

“We recognize that the distinction between an action on debt and other types of actions for breach of contract now appear archaic and may well have no procedural or substantative significance for litigants bringing such claims against non-State entities today. Nonetheless, there has historically been a distinction….We conclude that Koshick’s breach of contract claim seeking damages for lost profits and expenses incurred is not a “claim” within the meaning of Wis. Stat. § 775.01, as construed in Chicago, Milwaukee, 53 Wis. at 512, and Trempealeau, 260 Wis. at 605, and the many cases relying on both. Accordingly, the legislature has not consented to this suit against the State. The circuit court therefore properly dismissed the complaint on the ground of sovereign immunity.”

Order affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, Sumi, J., Vergeront, J.

Attorneys:

For Appellant: Kent A. Tess-Mattner, Brookfield

For Respondent: Sandra L. Tarver, Madison