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COURT OF APPEALS
DECISION
DATED AND RELEASED
OCTOBER 8, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 95-3266
STATE
OF WISCONSIN IN
COURT OF APPEALS
GERALD ARCHAMBAULT, ROBERT B.
WEBER AND ROBERT J. KOTERA,
Plaintiffs-Appellants,
v.
A-C PRODUCT LIABILITY TRUST, ACANDS
INC., BETHLEHEM STEEL CORP., CHAMPION
INTERNATIONAL, COLTEC INDUSTRIES, INC.,
COMBUSTION ENGINEERING, INC., CRANE
COMPANY, DURAMETALLIC, FEDERAL-MOGUL
CORP., GENERAL ELECTRIC COMPANY, GENERAL
SIGNAL CORP., GOODALL RUBBER CO., B.F.
GOODRICH, GOODYEAR TIRE & RUBBER CO.,
IMO
INDUSTRIES, INGERSOLL-RAND CORPORATION,
JOHN CRANE, INC., OWENS-CORNING FIBERGLAS
CORP., PPG INDUSTRIES, INC.,
SHERWIN-WILLIAMS
CO., USX CORPORATION, WESTINGHOUSE
ELECTRIC
CORP., ARMSTRONG WORLD INDUSTRIES,
CERTAINTEED CORP., DANA CORP., GAF
CORPORATION,
UNION CARBIDE CORPORATION, UNITED STATES
GYPSUM
COMPANY AND DRESSER INDUSTRIES, INC.,
Defendants-Respondents,
FKI INDUSTRIES, INC., FLINTKOTE CO.,
GENERAL REFRACTORIES AND THE OKONITE CO.,
Defendants.
APPEAL from an order of
the circuit court for Bayfield County:
THOMAS J. GALLAGHER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Appellants Gerald Archambault, Robert Kotera
and Robert Weber appeal a trial court order dismissing their claims for
defective service of an amended complaint upon the parties. Appellants assert that § 801.02(1), Stats., which requires service of a
summons and complaint within sixty days of filing, does not apply to service of
amended complaints. We disagree and
affirm.
This litigation began
when appellants filed an original summons and complaint and served them on thirty-four
separate defendants. The complaints
alleged that appellants contracted "asbestotic diseases of permanent
nature" while serving in the U.S. Merchant Marine and that defendants were
jointly and severally liable for their injuries. Several defendants moved for dismissal, alleging that the
complaint was defective and did not state a claim upon which relief could be
granted. The trial court ruled the
complaint inadequate under Wisconsin law but allowed appellants to file three
separate amended complaints within ninety days of the order. The trial court also noted that appellants
need not file or serve an amended summons.
Appellants do not contest these rulings. The three amended complaints were filed with the court within the
ninety-day deadline. However,
appellants then waited eighty-four days to serve the amended complaints on the
defendants. Some defendants moved for
dismissal based upon the appellants' failure to serve the amended complaints
within sixty days, citing § 801.02(1), Stats. The trial court granted the motion and
dismissed the complaints without prejudice.
Appellants claim that
the trial court erred when it dismissed the amended complaints for failure to
serve within sixty days of filing in accordance with § 801.02(1), Stats. They claim that section does not apply to
the service of amended complaints. This
presents a question of statutory interpretation that this court reviews de
novo. Town of Clearfield v.
Cushman, 150 Wis.2d 10, 19, 440 N.W.2d 777, 780 (1989).
This issue presents a
question of first impression for this court.
No other section provides the proper period in which to serve an amended
complaint. In fact, chs. 801 and 802, Stats., are completely silent as to
amended complaints. Section 802.01(1), Stats., which describes which pleadings
are allowed in civil cases, mentions complaints, but not amended complaints,
suggesting the legislature considered those terms synonymous for purposes of
service. We conclude that § 801.02(1) does apply
to the service of amended complaints.
The
primary function of service is to give notice to a party that an action has
been commenced against him or her. Schlumpf
v. Yellick, 94 Wis.2d 504, 509, 288 N.W.2d 834, 837 (1980). Notice of not only the fact of an action but
of its substance is a central concern of our judicial system. At least part of the purpose of the
sixty-day service requirement is to provide for timely notice to defendants of
the substance of the claims against them.
While our supreme court has recognized that some service errors are
merely "technical" in nature and therefore do not warrant dismissal
for failure to comply, failure to comply with the sixty-day service requirement
is not such an error. American
Family Mutual Ins. Co. v. Royal Ins. Co., 167 Wis.2d 524, 532-34, 481
N.W.2d 629, 632-33 (1992). To the
contrary, that court concluded that
a
fundamental defect or error occurs where the complainant fails, if challenged,
to meet the burden specified under sec. 801.02(1), Stats., i.e., ... where the
service of the authenticated copy of the Summons and Complaint is not made
within 60 days after filing.
Substantial compliance is not a factor.
Complainant must show compliance with the burden of sec. 801.02(1),
Stats.
Id. at
533-34, 481 N.W.2d at 632-33. The sixty-day period cannot be enlarged for
any reason. See § 801.15(2)(a), Stats.
We find it unlikely that the legislature intended to require strict
compliance with the sixty-day requirement for original complaints but chose to
set no time limit for amended complaints.
Appellants argue that
the purpose of the sixty-day limitation is to allow the circuit court to gain
personal jurisdiction over the defendants in a timely manner and that in this
case personal jurisdiction was obtained when the defendants were served with
the original summons and complaint.
Thus, they argue, compliance with the sixty-day limitation regarding the
amended complaint was not necessary. This argument assumes there is only one
purpose for the sixty-day service requirement.
As noted, we conclude that the sixty-day limitation also serves the
important purpose of providing the defendants timely notice of the substance of
the claims against them. Furthermore,
appellants' argument would allow a plaintiff whose original complaint was
dismissed to delay service of an amended complaint indefinitely, substantially
burdening both the court and the defendants.
Appellants next argue
that the dismissal should be reversed because defendants were not prejudiced by
the late service; they already knew the substance of the claims against
them. The argument must fail. Section 801.02, Stats., requires adherence to the sixty-day requirement. It makes no allowance where failure to
comply does not result in prejudice.
Further, in this case, the original complaint was dismissed for failure
to state a claim because it did not provide "proper notice to the
defendants as to the nature and bases of [appellants'] claims, the dates and
circumstances under which those claims arose, the nature and extent of
[appellants'] alleged injuries, or how each of the defendants is supposedly
connected to each [appellants'] claim."
When a complaint is dismissed under these circumstances, it cannot be
said that defendants knew the substance of the claims against them. For this reason, the federal cases cited by
appellants are not persuasive.
By the Court.—Order
affirmed.
