Vladimir Kozubovsky v. Menomonie Street Dental, LLC

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.
March 26, 2024
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. 2022AP852 Cir. Ct. No. 2021SC1439

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

VLADIMIR KOZUBOVSKY,

PLAINTIFF-APPELLANT,

V.

MENOMONIE STREET DENTAL, LLC,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Eau Claire County:
SARAH M. HARLESS, Judge. Affirmed.

¶1 HRUZ, J.1 Vladimir Kozubovsky, pro se, appeals an order
dismissing his claims against Menomonie Street Dental, LLC (“MSD”).
Kozubovsky argues that the circuit court erred by concluding that his claims are

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP852

barred by the applicable statute of limitations, WIS. STAT. § 893.55(1m). We
reject Kozubovsky’s arguments and affirm.

BACKGROUND

¶2 Kozubovsky filed a small claims summons and complaint against
MSD on December 10, 2021. He alleged that he was a patient at MSD from 2014
to 2018 and during that time received “extensive dental work from Dr. Eric
Carlson.” Kozubovsky claimed that Carlson was negligent in performing specific
dental procedures on June 16, 2014, February 13, 2015, December 13, 2016, and
December 1, 2017, which involved the placement of crowns on various teeth and
the placement of a dental implant.

¶3 According to Kozubovsky’s complaint, following these procedures,
Dr. Bruce Trimble, “an experienced general dentist and dental implant specialist,”
contacted Carlson by phone on Kozubovsky’s behalf. During that conversation,
Trimble “describ[ed] all the problems with [Carlson’s] restorations and ask[ed]
[Carlson] to take responsibility for his actions and issue a refund,” but Carlson
“denied everything.”

¶4 Kozubovsky’s complaint further alleged that after Kozubovsky
“received a written statement from Dr. Jason Johnson, who is also locally known
as one of the best implant specialists,” Kozubovsky sent MSD a “detailed
email … once again asking for a refund.” In that email, which was dated
January 6, 2020, Kozubovsky asserted that he had consulted with four dentists—
including Trimble and Johnson—who “confirmed [his] concerns” and
“unanimously agreed that all the work [Kozubovsky] had done by [MSD] (the
implant and the crowns) was substandard” and needed to be “completely re-done.”
According to the complaint, Kozubovsky subsequently spoke with Carlson by

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phone in February 2020, and Carlson disagreed with the other dentists’ opinions
and defended the quality of his work.

¶5 Kozubovsky’s complaint further alleged that in January 2021—
eleven months later—Kozubovsky “obtained another evaluation from Dr. Sarah
Chambers[,] who corroborated all the issues with the crowns and dental implant.”
Kozubovsky claimed that Chambers’ opinion constituted “conclusive and
objective evidence of improper restorations by [MSD].” He therefore asserted that
for purposes of the statute of limitations, WIS. STAT. § 893.55(1m), the date of
Chambers’ evaluation should be deemed “the date [his] injuries were conclusively
confirmed.”

¶6 MSD moved to dismiss Kozubovsky’s complaint, arguing that it was
untimely under WIS. STAT. § 893.55(1m). That statute requires a negligence claim
against a health care provider to be commenced within the later of:

(a) Three years from the date of the injury, or

(b) One year from the date the injury was discovered or, in
the exercise of reasonable diligence should have been
discovered, except that an action may not be commenced
under this paragraph more than 5 years from the date of the
act or omission.

See § 893.55(1m)(a)-(b). MSD argued that Kozubovsky’s January 6, 2020 email
showed that he was “fully aware of the injuries identified in the [c]omplaint at
least as early as January 2020,” but Kozubovsky did not file his complaint until
December 10, 2021—more than one year later.

¶7 Kozubovsky opposed MSD’s motion to dismiss, asserting that the
one-year limitations period in WIS. STAT. § 893.55(1m)(b) did not begin to run
until he received Chambers’ opinion in January 2021 because that opinion

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provided “the basis for an objective belief as to [Kozubovsky’s] injuries and their
cause.” Kozubovsky claimed that before receiving Chambers’ opinion, he “did
not have a basis for an objective opinion” because “[it was] one expert opinion
against another expert opinion,” and he “wanted to find out more.” He also argued
that, “from [a] common-sense standpoint,” a person should “receive three opinions
before you make a decision, before you form [an] objective belief.”

¶8 Kozubovsky also cited WIS. STAT. § 893.55(2), which states:

If a health care provider conceals from a patient a prior act
or omission of the provider which has resulted in injury to
the patient, an action shall be commenced within one year
from the date the patient discovers the concealment or, in
the exercise of reasonable diligence, should have
discovered the concealment or within the time limitation
provided by sub. (1m), whichever is later.

Kozubovsky argued that this subsection was applicable because Carlson and MSD
had “previously maintained that there were no injuries of any kind,” which
amounted to concealment of Carlson’s negligent acts or omissions. In a similar
vein, Kozubovsky asserted that because MSD “previously maintained that there
were no injuries of any kind and presently claims that all the injuries were already
discovered by January 2020, this should serve as admission of guilt by [MSD].”

¶9 The circuit court granted MSD’s motion to dismiss. The court
explained that under Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991),

all that is required is that the plaintiff knew or should have
known that the injury existed and that it may have been
caused by the defendant’s conduct, and while there must be
more than an unsubstantiated lay belief of the existence and
cause of the injury on the plaintiff’s part, there is no
requirement that he or she must have a full and specific
“magic word” medical or legal opinion before the statute
will be deemed to start running.

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My review of the facts of that case as well as the case law
that is cited … does not lead me to conclude that there’s a
requirement that there’s a certain number of doctors that
must tell you that you’ve been injured. The requirement
from the case law, as I just cited, is that the plaintiff should
have known—or should have known that the injury existed
and that it may have been caused by the defendant’s
conduct.

¶10 Applying this standard to the case at hand, the circuit court
concluded that Kozubovsky’s January 6, 2020 email showed that Kozubovsky
“met with doctors, that [he] knew he was injured, and that doctors confirmed that
the injuries had been caused by [MSD].” The court concluded that these
circumstances were “sufficient under the case law to start the statute of limitations
running.” Kozubovsky now appeals.

DISCUSSION

¶11 “A motion to dismiss tests the sufficiency of a complaint and will be
upheld only when there are no conditions under which a plaintiff may recover.”
Doe 56 v. Mayo Clinic Health Sys.—Eau Claire Clinic, Inc., 2016 WI 48, ¶14,
369 Wis. 2d 351, 880 N.W.2d 681. When reviewing a circuit court’s decision on a
motion to dismiss, “we construe the pleadings liberally and accept as true both the
facts contained in the complaint and any reasonable inferences arising from those
facts.” Id. “If a complaint is not timely filed, the claim is time-barred and
dismissal will be upheld.” Id. Determining whether a complaint was timely filed
under the applicable statute of limitations “involves the interpretation and
application of a statute to an undisputed set of facts,” which presents a question of
law that we review independently. Id.

¶12 It is undisputed that WIS. STAT. § 893.55(1m) applies to
Kozubovsky’s claims against MSD. As noted above, that statute required

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Kozubovsky to file suit within the later of: (1) three years from the date of the
injury; or (2) one year from the date the injury was discovered, or in the exercise
of reasonable diligence should have been discovered. See § 893.55(1m)(a)-(b).
Kozubovsky does not claim that he timely filed suit within three years of any of
his injuries under § 893.55(1m)(a). Accordingly, the relevant question is whether
he filed suit within one year after the injuries were discovered, or in the exercise of
reasonable diligence should have been discovered, under § 893.55(1m)(b).

¶13 Kozubovsky’s complaint alleged that after consulting with both
Trimble and Johnson, Kozubovsky sent a “detailed email” to MSD “asking for a
refund.” That email, dated January 6, 2020, asserted that four dentists, including
Trimble and Johnson, had “confirmed [Kozubovsky’s] concerns” about the quality
of MSD’s work and “unanimously agreed that all the work [Kozubovsky] had
done by [MSD] (the implant and the crowns) was substandard” and needed to be
“completely re-done.”2 We agree with MSD and the circuit court that this email
clearly shows that Kozubovsky had discovered his injuries by January 6, 2020.
Because Kozubovsky did not file suit until December 10, 2021—more than one
year after that date—his complaint was untimely under WIS. STAT.
§ 893.55(1m)(b).

2
Although the January 6, 2020 email was not attached to Kozubovsky’s complaint, his
complaint contained a summary of his “[r]emediation [a]ttempts,” which referred to the email.
MSD then attached a copy of the email to its motion to dismiss in accordance with the
incorporation-by-reference doctrine. See Soderlund v. Zibolski, 2016 WI App 6, ¶37, 366
Wis. 2d 579, 874 N.W.2d 561 (2015) (explaining that a court may consider a document attached
to a motion to dismiss without converting the motion into one for summary judgment if the
document was referenced in the plaintiff’s complaint, is central to his or her claim, and its
authenticity has not been disputed).

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¶14 This analysis is consistent with Clark, which the circuit court cited
during its oral ruling. In Clark, the defendant podiatrist performed surgery on the
plaintiff’s foot in 1981. Clark, 161 Wis. 2d at 433. By 1983, the plaintiff had
formed a subjective belief that the surgery was unsuccessful. Id. at 448. The
plaintiff “obtained verification of her injury and its cause when in 1984 and 1985
she was informed to that effect” by two doctors. Id. The plaintiff alleged, “[U]ntil
I saw these doctors … and they told me all this, I knew my foot was in bad shape
and surgery … was a failure, but I didn’t realize that perhaps it was the
[podiatrist’s] fault.” Id. (first alteration in original). Under these circumstances,
our supreme court concluded that the plaintiff “had the basis for an objective
belief by 1985 as to her injury and its cause,” and, accordingly, “[t]hat is when she
discovered her injury and its cause for purposes of this case.” Id. at 448-49.

¶15 Here, Kozubovsky’s January 6, 2020 email stated that Kozubovsky
had consulted with multiple dentists, who “confirmed” his subjective concerns
regarding the quality of MSD’s work. Those doctors “unanimously agreed” that
“all the work” MSD had performed on him was “substandard” and needed to be
“completely re-done.” Thus, similar to the plaintiff in Clark, by January 6, 2020,
Kozubovsky had not only a subjective belief that he had been injured by MSD, but
“the basis for an objective belief … as to [his] injury and its cause.” See id.

¶16 Kozubovsky argues that Clark is distinguishable because this case is
“more complex” than Clark. He asserts that he “had to investigate four potential
injuries instead of just one” and that his injuries “are internal, mostly
asymptomatic, and can only be diagnosed by trained professionals using
specialized equipment.” This argument is unpersuasive. Regardless of how many
injuries Kozubovsky allegedly suffered or whether those injuries required
diagnosis by “trained professionals,” Kozubovsky acknowledged in his January 6,

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2020 email that he had consulted with four dentists who “unanimously agreed”
that MSD’s work was substandard and needed to be redone. Again, those
opinions provided the basis for an objective belief regarding Kozubovsky’s
injuries and their cause. See id.

¶17 Kozubovsky also claims that Clark is distinguishable because unlike
the plaintiff in that case, he received “conflicting opinions” as to whether he was
injured by Carlson’s work. More specifically, Kozubovsky asserts that Carlson’s
denials of any wrongdoing were in conflict with the opinions that he received from
the dentists he consulted prior to January 6, 2020. Kozubovsky therefore contends
that he did not discover his injuries until he received an additional expert opinion
from Chambers in 2021.

¶18 We reject this argument because the test for determining when a
plaintiff discovered his or her injury does not depend on the plaintiff having a
certain number of expert opinions in support of his or her claim, nor does it
depend on those opinions being uncontroverted. To the contrary, the plaintiff need
only have the basis for an objective belief regarding his or her injuries and their
cause. See id. Here, the opinions of the dentists that Kozubovsky consulted prior
to January 6, 2020, plainly provided a basis for such a belief, despite the fact that
Carlson had denied any wrongdoing.

¶19 In addition, we note that although Kozubovsky received expert
opinions prior to January 6, 2020, that created a basis for an objective belief
regarding his injuries and their cause, expert opinions are not necessarily required
to support such an objective belief. “If a plaintiff has information that would
constitute the basis for an objective belief of her injury and its cause, she has
discovered her injury and its cause. It does not matter whether her objective belief

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resulted from information ‘officially’ obtained from an expert witness.” Id. at
448. We agree with MSD that

if a party can be deemed to have discovered his or her
injuries even without being specifically advised by an
expert that he or she received negligent treatment from a
physician, a party that actually was so advised—like
Kozubovsky in this case—has discovered his or her injuries
for purposes of WIS. STAT. § 893.55(1m)(b).

¶20 Next, citing Borello v. U.S. Oil Co., 130 Wis. 2d 397, 388 N.W.2d
140 (1986), Kozubovsky argues that his January 6, 2020 email to MSD “must not
be equated to the discovery of his injuries and their cause.” (Formatting altered.)
As an initial matter, we note that Kozubovsky forfeited his argument based on
Borello by failing to raise it in the circuit court. See Tatera v. FMC Corp., 2010
WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 (“Arguments raised for the
first time on appeal are generally deemed forfeited.”). Regardless, the argument
also fails on its merits.

¶21 In Borello, U.S. Oil installed a furnace in the plaintiff’s home in
December 1977, and within a few weeks, the plaintiff “complained of a bad odor
from the furnace.” Borello, 130 Wis. 2d at 400. On December 29, 1977, she
wrote to U.S. Oil asserting “that her previous furnace problems were aggravated,
not alleviated,” and complaining of dizziness, headaches, chest pain, and burning
in her nose. Id. The letter also stated that the plaintiff “had the same fumes and
odor after the installation of the … furnace that she had before” and that she “had
masonry experts check her chimney to see if the problem lay there, but no
masonry defects were found.” Id. Our supreme court concluded that this letter
did not show that the plaintiff “knew the cause of her injuries” in December 1977
because “the most that can be gleaned from the … letter is that she was not able to

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attribute her symptoms to the old furnace, the new one, or to any furnace but
perhaps instead to some other cause.” Id. at 400-01.

¶22 Kozubovsky argues that like the plaintiff’s letter in Borello, his
January 6, 2020 email to MSD shows only a “subjective” belief regarding the
nature and cause of his injuries. Borello is materially distinguishable, however,
because the plaintiff in that case had no objective evidence suggesting that her
symptoms were attributable to U.S. Oil’s installation of her furnace. Here, in
contrast, Kozubovsky expressly asserted in his January 6, 2020 email that four
dentists had “confirmed” his subjective belief that MSD’s work was substandard
and needed to be redone. We also reject Kozubovsky’s assertion that his email
was merely an “emotional response to MSD’s unethical behavior” and that we
should therefore disregard the statements contained in the email. Regardless of
Kozubovsky’s emotional state, the email shows that he had a basis for an objective
belief regarding his injuries and their cause as of January 6, 2020.

¶23 Kozubovsky also cites Paul v. Skemp, 2001 WI 42, 242 Wis. 2d
507, 625 N.W.2d 860, which addressed the issue of when a medical malpractice
claim accrues in a case involving an alleged misdiagnosis. Paul held that in such
a case, “what trigger[s] the statute of limitations [is] not the alleged misdiagnosis,
but the injury that resulted from that misdiagnosis.” Id., ¶2. Stated differently, no
injury occurs until there is an “injurious change” caused by the misdiagnosis. Id.,
¶41. Our supreme court has since reiterated that “the determination of a ‘physical
injurious change’ is the appropriate benchmark for establishing the date of ‘injury’
under WIS. STAT. § 893.55(1m)(a).” Estate of Genrich v. OHIC Ins. Co., 2009
WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481.

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¶24 Again, we note that Kozubovsky forfeited any argument based on
Paul by failing to raise such an argument in the circuit court. See Tatera, 328
Wis. 2d 320, ¶19 n.16. Furthermore, on appeal, Kozubovsky does not argue that
his complaint was timely filed under WIS. STAT. § 893.55(1m)(a), nor does he
meaningfully develop an argument that he did not experience a physical injurious
change at the time of MSD’s allegedly substandard work. In addition,
Kozubovsky does not develop an argument that he was unaware of a physical
injurious change at the time that he sent his email to MSD in January 2020, and
his complaint did not allege such unawareness. We need not address undeveloped
arguments, and we decline to do so here. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals need not address
undeveloped arguments or arguments unsupported by references to legal
authority).

¶25 Kozubovsky also asserts that the circuit court “erroneously
dismissed the impact of the medical opinions that [MSD] provided to” him—
namely, Carlson’s denials of wrongdoing and defense of his own work. In support
of this argument, Kozubovsky relies on Ritt v. Dental Care Associates, S.C., 199
Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995). There, Ritt asserted a malpractice
claim against his dentist, Dr. Skelding, in April 1992 based on Skelding’s alleged
negligence in fitting Ritt’s dentures. Id. at 58-59. Skelding claimed that Ritt’s
lawsuit was not timely filed, arguing that “Ritt discovered his injury in early 1987
because he knew his dentures bothered him one week after he received the
dentures.” Id. at 69.

¶26 On appeal, we concluded that there were “factual disputes regarding
whether Ritt exercised reasonable diligence in discovering his injury.” Id. at 57.
We cited Ritt’s affidavit, in which he averred that: (1) after he received his

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dentures, he called Skelding on several occasions during 1987 with complaints
that the dentures were very loose; (2) Skelding advised Ritt “that he had to allow
for shrinkage in his mouth and it would take time before the dentures fit
appropriately”; (3) because of Skelding’s advice, Ritt “believed he needed to be
patient and, at some point in the future, the shrinkage in his mouth would occur
and his dentures would fit securely”; (4) the fit of the dentures did not improve,
and Ritt therefore consulted with a different dentist on July 30, 1991; and
(5) during that appointment, the second dentist informed Ritt that Skelding had
failed “to professionally provide dental services” to Ritt and had been negligent in
his care and treatment of Ritt. Id. at 65-66.

¶27 Given Ritt’s averment that Skelding “advised him on several
occasions during 1987 that it would take time before the dentures fit properly,” we
stated we could not conclude “as a matter of law that Ritt discovered or, with
reasonable diligence, should have discovered his injury in early 1987.” Id. at 69.
Conversely, however, we also stated that we could not conclude as a matter of law
that “Ritt did not discover his injury until July 30, 1991, when he saw” the second
dentist. Id. We explained:

Ritt did not necessarily discover his injury when the
dentures first bothered him, given Dr. Skelding’s later
statements that it would take time for his mouth to shrink
and the dentures to fit. But there remains the question of
whether Ritt exercised reasonable diligence in not
consulting another dentist until July 1991 …. We conclude
that Ritt’s affidavit gives rise to competing reasonable
inferences as to whether Ritt did exercise reasonable
diligence in not consulting another dentist until July 1991.

Id. at 70.

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¶28 Ritt is materially distinguishable from this case. Ritt did not receive
an expert’s opinion regarding the nature and cause of his injuries until four years
after Skelding had advised him that he needed to be patient and that the problems
with his dentures would improve over time. Here, in contrast, Kozubovsky
consulted with Trimble before Carlson denied any wrongdoing. Furthermore,
despite Carlson’s denials of wrongdoing, by January 6, 2020, four dentists had
“confirmed” Kozubovsky’s subjective concerns about Carlson’s work, informing
him, at that time, that the work was substandard and needed to be redone. Thus,
unlike the situation in Ritt where the facts gave rise to competing reasonable
inferences about when the plaintiff could have with reasonable diligence
discovered his injuries, the undisputed facts of this case establish as a matter of
law that Kozubovsky actually did discover his injuries by January 6, 2020.

¶29 Relatedly, Kozubovsky asserts that his claims should be allowed to
proceed under WIS. STAT. § 893.55(2) because MSD “made continuous attempts
to mislead [him] and conceal [its] negligent acts and omissions.” As MSD notes,
however, Kozubovsky does not cite any case “holding that a party acts
inappropriately by denying any wrongdoing.” Furthermore, even if Carlson’s
denials of wrongdoing could be characterized as “concealment” for purposes of
§ 893.55(2), that subsection provides that an action “shall be commenced within
one year from the date the patient discovers the concealment or, in the exercise of
reasonable diligence, should have discovered the concealment.” See § 893.55(2).
By January 6, 2020, four dentists had told Kozubovsky that Carlson’s work was
substandard and needed to be redone. At that point, even if Carlson’s prior denials
constituted concealment of his negligent acts or omissions, it is clear that
Kozubovsky had discovered the concealment. Again, Kozubovsky did not file his
complaint within one year of January 6, 2020.

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¶30 Finally, Kozubovsky also contends that because Carlson denied any
wrongdoing and defended the quality of his work, MSD should be equitably
estopped from asserting that Kozubovsky’s claims are untimely under WIS. STAT.
§ 893.55(1m)(b). Once again, we observe that Kozubovsky forfeited this
argument by failing to raise it in the circuit court. See Tatera, 328 Wis. 2d 320,
¶19 n.16. In any event, “the test of whether a party should be estopped from
asserting the statute of limitations” is whether the party’s “conduct and
representations” “were so unfair and misleading as to outbalance the public’s
interest in setting a limitation on bringing actions.” Hester v. Williams, 117
Wis. 2d 634, 645, 345 N.W.2d 426 (1984) (citation omitted). Based upon the facts
alleged in the complaint, we conclude, as a matter of law, that Carlson’s denials of
wrongdoing and defense of his own work do not rise to that level.3

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

3
To the extent Kozubovsky argues that MSD has adopted inconsistent positions by
initially denying any wrongdoing but subsequently arguing that Kozubovsky’s claims are time
barred because Kozubovsky discovered his alleged injuries by January 6, 2020, we reject that
assertion. As MSD correctly notes, “[t]here is no tension in MSD’s position because a defendant
has every right to argue that a claim has not been timely filed and also that, even if the claim were
timely, it would fail on the merits.” See, e.g., Paul v. Skemp, 2001 WI 42, ¶9, 242 Wis. 2d 507,
625 N.W.2d 860 (explaining that “[n]otwithstanding a dispute on the merits, a defendant may be
entitled to summary judgment by establishing that the action was not filed within the limitations
period set forth in the statute of limitations” (emphasis added)).

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