2011 WI App 5
court of appeals of
published opinion
Case No.: |
2009AP2549 |
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Complete Title of Case: |
†Petition for Review filed |
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Robert Johnson, Plaintiff-Respondent, v. Cintas Corporation No. 2, Defendant-Appellant,† United Healthcare, Defendant. |
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Opinion Filed: |
November 17, 2010 |
Submitted on Briefs: |
May 27, 2010 |
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JUDGES: |
Brown, C.J., Neubauer, P.J., and |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was
submitted on the briefs of Terry E. Johnson and Ahndrea R. Van Den Elzen of Peterson, |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Robert I. DuMez and John V. O’Connor of O’Connor, DuMez, Alia |
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2011 WI App 5
COURT OF APPEALS DECISION DATED AND FILED November 17, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Robert Johnson, Plaintiff-Respondent, v. Cintas Corporation No. 2, Defendant-Appellant, United Healthcare, Defendant. |
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APPEAL
from a judgment of the circuit court for
Before
Brown, C.J., Neubauer, P.J., and
¶1 NEUBAUER, P.J. Cintas Corporation No. 2 (Cintas No. 2) appeals from a default judgment entered in favor of its employee, Robert Johnson. Cintas No. 2 contends the default judgment, entered immediately after the trial court permitted amendment of the pleadings to name Cintas No. 2, is void because the original summons and complaint named the wrong corporate entity—its parent, Cintas Corporation. We agree. Because personal jurisdiction is acquired by personal service of a summons naming the served party as a defendant and because the plaintiff named the wrong corporate entity, Cintas Corporation, the default judgment against Cintas No. 2 is void. Johnson did not simply mislabel the right defendant, he named the wrong corporate defendant. Neither party challenges the amendment of the pleadings. Thus, we remand to the trial court for further proceedings upon the amended pleadings.
BACKGROUND
¶2 This case stems from an automobile crash involving Johnson, an employee of Cintas No. 2. Johnson was injured when his vehicle, which was being driven by his friend, collided with another vehicle. His crash-related injuries required medical treatment and resulted in permanent disability. Johnson was required to use his personal automobile in the course of his employment, and he had automobile liability insurance through Cintas No. 2. Johnson sought treatment coverage from Cintas No. 2 through its health insurance provider, United Healthcare. After Cintas No. 2 refused to pay any benefits to Johnson, Johnson commenced suit.
¶3 On April 12, 2007, Johnson filed the original summons and
complaint in this action naming “Cintas Corporation” as the defendant. It is undisputed that the summons and
complaint, naming “Cintas Corporation” instead of “Cintas Corporation No. 2,” named
the wrong corporate entity. The record establishes
that Cintas No. 2, Johnson’s employer, is an indirect, wholly-owned subsidiary
of Cintas Corporation. Cintas No. 2 is a
foreign corporation registered with the State of
¶4 On April 19, 2007, Johnson served the registered agent for
Cintas No. 2, CT Corporation System, with the summons and the complaint naming the
wrong corporate entity, Cintas Corporation, as the defendant.[1] Neither Cintas No. 2 nor Cintas Corporation
responded to the complaint and on June 15, 2007, Johnson moved for default
judgment. A hearing was scheduled for
July 6, 2007. In response, Cintas
Corporation filed an Emergency Motion to Strike and Dismiss for Lack of
Personal Jurisdiction stating that Johnson had “incorrectly identified Cintas
Corporation as his employer.” Cintas
Corporation further stated, “After some investigation, it appears that
[Johnson’s] employer and the proper legal entity is Cintas Corporation No. 2,”
which, the motion indicated, is incorporated under the laws of
¶5 Informed of his error, Johnson wrote to the court on July 3,
2007, to advise of his intent to amend the summons “from the incorrect ‘Cintas
Corporation’ to the correct defendant ‘Cintas Corporation No. 2.’” At the default judgment hearing on July 6,
Johnson was permitted to orally amend the summons and complaint. The court then granted default judgment
against Cintas No. 2. The minutes from
the hearing indicate that the attorney for Cintas Corporation was present. The written order entered on July 16, 2007,
grants Johnson’s motion to amend the name of the defendant and also grants
default judgment against Cintas No. 2 because it had been “properly served” and
had “actual notice” of the lawsuit.
Finally, the court ordered a hearing on damages “to determine the amount
of the judgment to be entered against Cintas Corporation No. 2.”
¶6 On July 20, 2007, attorneys for Cintas No. 2 contacted the
court and filed Cintas No. 2’s answer to the original and amended complaints, a
motion to dismiss for lack of personal jurisdiction and a motion to intervene
on behalf of Cintas No. 2. The court
declined to hear Cintas No. 2’s motions on grounds that the court had already
held a hearing, had granted an amendment to the pleadings and had granted
default judgment against Cintas No. 2.
The court then advised Cintas No. 2 that it could file a Wis. Stat. § 806.07 (2007-08)[2]
motion for relief from judgment. Cintas
No. 2 did so, and following briefing by both parties, the court vacated the
default judgment.
¶7 As the parties prepared for litigation, Johnson filed a
motion for reconsideration based on information obtained during the discovery
period which included, among other things, paychecks issued to Johnson using
the name Cintas Corporation and court records indicating that Cintas No. 2 had
previously filed actions in
DISCUSSION
¶8 Standard of Review. Cintas No. 2 challenges the court’s grant of
default judgment on the grounds that the court lacked the personal jurisdiction
required to do so. Wisconsin Stat. § 806.07(1)(d) allows
relief from judgment if “[t]he judgment is void.” A judgment is void for purposes of this
provision when the court rendering it lacked subject matter or personal
jurisdiction. See Wengerd v. Rinehart, 114
¶9 A Wisconsin court obtains personal jurisdiction through
correct service of process upon a defendant.
See Wis. Stat. 801.05.
The United States Constitution requires that a court have personal
jurisdiction over a defendant in order to render a judgment in a civil
suit. See Haselow v. Gauthier,
212
¶10 Pursuant to Wis. Stat. §
801.02(1), “[A] civil action in which a personal judgment is sought is
commenced as to any defendant when a summons and a complaint naming the person
as defendant are filed with the court.” Wisconsin Stat. § 801.09(1)
provides that the summons shall contain the names of the parties to the
action. “Proper commencement of an
action serves two purposes: it gives
notice and confers jurisdiction.” American
Family Mut. Ins. Co. v. Royal Ins. Co. of Am., 160
¶11 In requesting relief from the default judgment under Wis. Stat. § 806.07, Cintas No. 2 maintained, as it does on appeal, that “[t]he distinction between Cintas Corporation and Cintas Corporation No. 2 is not one of mere semantics.” Cintas No. 2 argued that “there are two separate corporations involved; one corporation was named in the summons and complaint and an entirely different corporation was served with the pleadings.” In support of its contention that the court lacked jurisdiction as a result of Johnson’s failure to name the correct corporate entity, Cintas No. 2 directs us to this court’s decision in Bulik and the supreme court’s decision in Hoesley v. La Crosse VFW Chapter, 46 Wis. 2d 501, 175 N.W.2d 214 (1970).
¶12 In Bulik, a personal injury case involving a shopping center slip
and fall, the plaintiff failed to name a party in the caption of the summons
and complaint. Bulik, 148
¶13 In Hoesley, the plaintiff brought a personal injury suit against a
VFW chapter; however, the complaint served on the post commander misnamed the
VFW. Hoesley, 46
¶14 While Johnson relies on Hoesley to support his contention
that the misnomer in this case did not leave doubt as to the identity of the
party to be sued, he overlooks the significant distinguishing fact: in Hoesley the plaintiff simply
mislabeled the correct defendant, i.e., the entity allegedly liable in the
action, as distinguished from selecting the wrong corporate defendant. The Hoesley court expressly recognized
that, where service is made on the party intended to be served, the mislabeling
of the right defendant may be amended on motion (thus conferring jurisdiction
over that misnamed defendant) because it does not have the effect of bringing
in an additional party.
¶15 Here, the trial court permitted Johnson to amend the pleadings
to name Cintas No. 2, and then immediately granted default judgment—without
affording Cintas No. 2 service of process.
The facts of record clearly indicate that Cintas Corporation and Cintas
Corporation No. 2 are legally independent companies. See
DOR
v. River City Refuse Removal, Inc., 2007 WI 27, ¶43, 299
¶16 Johnson points to facts justifying his confusion over the
correct corporate entity, and the trial court later, upon reconsideration,
found that Cintas No. 2 effectively operated under the name Cintas Corporation
in
CONCLUSION
¶17 Because Johnson’s summons failed to accurately name the
defendant (Cintas No. 2), the service of process failed to confer personal
jurisdiction over that defendant. As such,
the trial court did not have the requisite personal jurisdiction to enter a
default judgment against Cintas No. 2, and the judgment is void. See
Wengerd,
114
No. 2 was served or had notice is irrelevant.
Neither party challenges the amendment of the pleadings to now name
Cintas No. 2. Accordingly, we reverse
the default judgment and remand for further proceedings.
By the Court.—Judgment reversed and cause remanded.
[1] The affidavit of service states in relevant part that “on April 19, 2007 … Cintas Corporation (2) was served with the attached Summons and Complaint.”
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3]
The trial court awarded damages in the amount of $272,371.89. Cintas No. 2 additionally appeals the denial
of a jury trial on damages; however, we need not reach this issue. See Gross
v. Hoffman, 227
[4] The
parties debate the relevance of McCall v. IKON, 611 S.E.2d 315 (S.C.
Ct. App. 2005), which was cited by the trial court as providing guidance in
this case. However, as in Hoesley
v. La Crosse VFW Chapter, 46 Wis. 2d 501, 175 N.W.2d 214 (1970), McCall
involved the misnaming of the right party (because the unregistered
division that provided computer training courses, IKON Educational Services,
was a business unit of IKON Office Solutions Technology Services, LLC, which
refused service) and not the adding of a new party—an existing separate legal
entity. McCall, 611 S.E.2d at
651, 653. Moreover, we agree with Cintas
No. 2 that its application is limited given
[5]
[6] The trial court found that because Cintas No. 2 was served and Cintas Corporation was not, allowing amendment of the pleadings would not be adding a new party. This overlooks that these are separate legal entities.
[7] While
Johnson raised an “alter ego” argument in a motion for reconsideration before
the trial court, he acknowledges that the trial court did not address his
argument or grant his motion on that ground.
Further, Johnson did not pursue an alter ego theory on appeal; therefore,
any argument on that issue has been abandoned.
Reiman Assocs., Inc. v. R/A Advertising, Inc., 102
[8] Requiring strict compliance with the rules of statutory service upon amendment naming a new corporate entity is consistent with Wisconsin’s policy viewing default judgments with disfavor, and preferring, “whenever reasonably possible, to afford litigants a day in court and a trial on the issues.” Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977).