PUBLISHED OPINION
Case No.: 94-2011
† Petition
for Review Filed.
Complete Title
of Case:
STEVEN BURNETT,
Plaintiff-Appellant, †
v.
CLAUDE HILL, d/b/a
SPORTSMAN'S LOUNGE
and ABC INSURANCE COMPANY,
a fictitious insurance company,
Defendants-Respondents.
Submitted on Briefs: April 4, 1995
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January 9, 1996
Opinion Filed: January 9, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: WILLIAM J. HAESE
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the plaintiff-appellant the cause was submitted on the briefs of Karl M.
Gebhard, Jr., of Eisenberg, Weigel, Carlson, Blau, Reitz & Clemens,
S.C., of Milwaukee.
Respondent
ATTORNEYSFor
the defendants-respondents the cause was submitted on the briefs of William
W. Graper of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED January 9, 1996 |
NOTICE |
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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2011
STATE
OF WISCONSIN IN COURT OF
APPEALS
STEVEN BURNETT,
Plaintiff-Appellant,
v.
CLAUDE HILL, d/b/a
SPORTSMAN'S LOUNGE
and ABC INSURANCE
COMPANY,
a fictitious insurance
company,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County: WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. Steven Burnett asks us to review whether a summons served by
publication pursuant to §§ 801.02(3), and 801.11(1) (c), Stats., must be authenticated to
acquire personal jurisdiction over a defendant. The trial court granted Claude Hill's motion to dismiss Burnett's
negligence action with prejudice because Burnett failed to authenticate the
summons he served by publication. The
trial court ruled that this failure was a fundamental error that deprived the
court of personal jurisdiction over Hill.
We agree with the trial court and affirm.
The following facts are
undisputed. In October 1993, Burnett
commenced a negligence action against Hill, the owner of a Milwaukee tavern
known as the Sportsman's Lounge. The
complaint alleged inter alia that Burnett, a patron of the tavern, was
negligently shot and injured by Hill.
Burnett filed his original summons and complaint with the clerk of
courts; both were authenticated and date-stamped.[1] After six unsuccessful attempts to obtain
personal service of an authenticated summons and authenticated complaint on
Hill at two addresses, Burnett's private process server filed affidavits
averring that he could not serve Hill at his last known address. Burnett then timely published an
unauthenticated summons three times in The Daily Reporter and mailed an
authenticated copy of the summons and complaint to Hill. It was at this point that the legal
imbroglio erupted. Hill moved the trial
court to dismiss the action, alleging that the summons Burnett served by
publication was not authenticated and that because of this failure, the trial
court lacked personal jurisdiction over Hill.
Agreeing with Hill, the trial court granted the motion to dismiss. On appeal, Burnett challenges the trial
court's determination on this issue.
Whether service of a
summons “is sufficient to obtain personal jurisdiction over a defendant
involves interpretation and application of a statute to undisputed facts and is
reviewed as a question of law.” See
Dungan v. County of Pierce, 170 Wis.2d 89, 93, 486 N.W.2d 579,
581 (Ct. App. 1992). We review issues
of law without any deference to the conclusions of the trial court. See Old Republic Sur. Co. v.
Erlien, 190 Wis.2d 400, 411, 527 N.W.2d 389, 392 (Ct. App. 1994).
The essence of the issue
raised by Burnett is whether his failure to serve an authenticated summons by
publication is a defect in the commencement of his action against Hill. “The procedural requirements of commencing
an action are specified in [§] 801.02, Stats.,” Dungan, 170 Wis.2d at 94, 486 N.W.2d at 581, the
relevant portions of which provide:
Commencement of action. (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, provided service of an authenticated copy of the summons
and of the complaint is made upon the defendant under this chapter within 60
days after filing.
...
(3) The original
summons and complaint shall be filed together.
The authenticated copies shall be served together except:
(a) In actions in which
a personal judgment is sought, if the summons is served by publication, only
the summons need be published, but a copy of the complaint shall be mailed with
a copy of the summons as required by s. 801.11 ....
In American Family
Mutual Insurance Co. v. Royal Insurance Company of America, 167 Wis.2d
524, 481 N.W.2d 629 (1992), the Wisconsin Supreme Court devised a bright line
rule to distinguish between errors that are fundamental—that is, those errors
that deprive the circuit court of personal jurisdiction over the defendant; and
errors that are technical—that is, those errors that are not fatal unless they
are shown to be prejudicial to the defendant.
Id. at 533, 481 N.W.2d at 632. The focus of the court's inquiry was whether the error or defect
was in the commencement of the action as prescribed by § 801.02, Stats.
See id. at 533‑34, 481 N.W.2d at 632‑33. The court held that any failure to comply
with § 801.02(1), Stats.,
“constitutes a fundamental error which necessarily precludes personal
jurisdiction regardless of the presence or absence of prejudice.” Id. at 534, 481 N.W.2d at
633. The court then concluded that a
plaintiff who personally served an unauthenticated photocopy of the
authenticated summons and complaint did not comply with the strict mandates of
§ 801.02(1), and that this failure was a fundamental error depriving the
circuit court of personal jurisdiction over the defendant. Id. at 535, 481 N.W.2d at
633. Hence, “`Wisconsin requires strict
compliance with its rules of statutory service, even though the consequences
may appear to be harsh.'” Id.
at 531, 481 N.W.2d at 631 (citation omitted).
Although American
Family and its progeny have specifically dealt only with instances in
which the summons was served by personal service,[2]
we can find no reason why the bright line rule of American Family
should not also apply to cases in which service of a summons is attempted by
publication. First, the unambiguous
language of § 801.02(3), Stats.,
calls for the service of “authenticated copies.” While the subsection also provides for an exception in cases of
service by publication, see § 801.02(3), Stats. (“The authenticated copies shall be served together
except:”), this exception only goes to the requirement that the authenticated
complaint and authenticated summons be served together, not to the requirement
that a summons and complaint be authenticated.
See § 801.02(3)(a), Stats.
(“In actions in which a personal judgment is sought, if the summons is served
by publication, only the summons need be published, but a copy of
the complaint shall be mailed with a copy of the summons as required by s.
801.11 ....” (Emphasis added.)).
Additionally, the
subsections of § 801.02, Stats.,
should be read consistently, see State v. Dawson, 195
Wis.2d 161, 168 n.2, 536 N.W.2d 119, 121 n.2 (Ct. App. 1995) (stating that
court should construe “`interrelated statutes to “produce a harmonious whole”'”
(citation omitted)), because the purpose of the summons and the need for
authentication remain the same no matter what method of service is used:
The purpose of the Summons is two-fold:
it gives notice to the defendant that an action has been commenced against such
defendant and it confers jurisdiction on the court over the person served. The purpose of authentication is to give
assurance by the clerk that copies served are true copies of filed documents
and to provide the case number for future reference.
American
Family, 167 Wis.2d at 530, 481 N.W.2d at 631 (citation
omitted).
Indeed, the Wisconsin
rule compelling “strict” and “`unbending'” “compliance with statutory service
requirements,” Dietrich v. Elliott, 190 Wis.2d 817, 827, 528
N.W.2d 17, 21 (Ct. App. 1995) (citation omitted), is just as paramount in cases
of service by publication, because “service by publication ... is the method of
notice least calculated to bring to a potential defendant's attention the
pendency of judicial proceedings.” Boddie
v. Connecticut, 401 U.S. 371, 382, 91 S. Ct. 780, 788, 28 L.Ed.2d
113, 121 (1971). As Justice Jackson
expounded from the United States Supreme Court:
Chance alone brings to the attention of
even a local resident an advertisement in small type inserted in the back pages
of a newspaper, and if he makes his home outside the area of the newspaper's
normal circulation the odds that the information will never reach him are large
indeed.
Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70
S. Ct. 652, 658, 94 L.Ed. 865, 874 (1950). Accordingly, because of the potential scatter-gun effectiveness
of service by publication, it has been the rule in Wisconsin for at least one
hundred and thirty years that in order for personal jurisdiction to attach to a
defendant, a plaintiff must strictly comply with the statutes permitting
service by publication. See Hafern
v. Davis, 10 Wis. 443, [*501], 445, [*502-03] (1860) (stating that the
trial court had no personal jurisdiction over a defendant where affidavit
serving as basis for order for publication of summons was defective). Taking the above factors in toto, we
conclude that the American Family rule applies to cases of
service by publication, as well as cases of personal service. Accordingly, we now apply the American
Family rule to the specific facts in the case at bar.
“The burden is on the
complainant, i.e., the one alleged to have served the defective
pleading, to show there was no defect, or, if there was a defect, that it was
not fundamental but technical and did not prejudice the defendant.” American Family, 167 Wis.2d at
533, 481 N.W.2d at 632. It is
undisputed that the copy of the summons that Burnett served by publication was
not authenticated. Section 801.02(3), Stats., requires that a summons served
by publication be authenticated.
Therefore, Burnett has failed to
meet his burden to show both that there was no defect and that the defect was
not fundamental.
Burnett attempts to save
his claim against Hill by arguing that Hill was not prejudiced because he
received notice of the pendency of Burnett's action against him when he
received the authenticated copy of the summons and complaint through the
mail. Burnett's argument is fatally
flawed for two reasons. First, as American
Family clearly points out, a court is not to address the question of
prejudice to the defendant if the defect or error was a fundamental error in
the commencement of the action. Id.
at 534‑35, 481 N.W.2d at 633.
Thus, because we conclude the error in this case was fundamental, it is
irrelevant whether Hill was prejudiced by the error; personal jurisdiction
never attached. Id. Second, mailing an authenticated copy of the
summons and complaint pursuant to § 801.11(1)(c), Stats.,[3]
is an additional step to a proper service of a summons by publication, not an
alternative. Cf. Sacotte
v. Ideal‑Werk Krug & Priester Machinen-Fabrik, 121 Wis.2d
401, 406‑07, 359 N.W.2d 393, 395‑96 (1984) (holding that in case of
service on corporation “legislature did not intend to include service by mail
as a method of personal service,” but service by mail is allowable if done in
conjunction with service by publication); see also American Family,
167 Wis.2d at 534, 481 N.W.2d at 633 (stating that it is irrelevant if
defendant received “actual notice” if plaintiff committed fundamental error in
commencement of action). Because
Burnett fundamentally erred in commencing his action against Hill by failing to
serve an authenticated summons by publication, it is irrelevant that Hill
received an authenticated copy of the summons and complaint through the mail.
For the foregoing
reasons, we conclude the trial court properly dismissed Burnett's action
because the court was deprived of personal jurisdiction over Hill. Accordingly, the trial court's order is
affirmed.
By
the Court.—Order affirmed.
[1] Section 801.09(4), Stats., provides that authentication is accomplished by the clerk placing a file stamp that indicates the case number on each copy of the summons and complaint.
[2] See, e.g., Dietrich v. Elliott, 190 Wis.2d 816, 528 N.W.2d 17 (Ct. App. 1995) (concluding deputy sheriff's affidavit of personal service was deficient and thereby a fundamental error that deprived circuit court of personal jurisdiction over defendant); Dungan v. County of Pierce, 170 Wis.2d 89, 486 N.W.2d 579 (Ct. App. 1992) (determining that attorney's failure to sign summons served through personal service was “technical” defect that did not deprive circuit court of personal jurisdiction over defendant).
[3] Section 801.11(1)(c),
Stats., provides:
(c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant's post‑office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post‑office address cannot be ascertained with reasonable diligence.