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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
94-2121-FT
STATE OF WISCONSIN : IN SUPREME COURT
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James Ronald Gaddis, Plaintiff-Respondent-Petitioner, v. La Crosse Products, Inc., f/k/a La Crosse Footwear, Inc. and Transcontinental Insurance Company, Defendants-Appellants. |
FILED JAN 19, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW of a decision of the Court of
Appeals. Reversed.
ANN
WALSH BRADLEY, J. James Gaddis requests review of a decision
of the court of appeals reversing an order of the Circuit Court for
La Crosse County, Peter G. Pappas, Judge, which denied La Crosse
Products, Inc.'s motion for judgment on the pleadings. The issue presented is whether Gaddis'
failure to sign a summons that was served with a signed complaint constitutes a
fundamental defect depriving the circuit court of personal jurisdiction over
La Crosse Products. Because we
conclude that an unsigned summons served with a signed complaint constitutes
only a technical defect and that there is no prejudice in this case, we reverse
the decision of the court of appeals.
The
procedural facts giving rise to this case are undisputed. Gaddis commenced a personal injury action
pro se against La Crosse Products.
He filed a signed complaint, but attached it to an Illinois summons form
which he had altered to include the relevant Wisconsin information. Instead of personally signing the summons as
required by Wis. Stat. § 801.09(3) (1993-94),[1]
Gaddis obtained the signature of the deputy clerk of courts, which the Illinois
form required. Gaddis' typewritten name
and address also appeared on the summons.
La Crosse
Products answered and, as an affirmative defense, asserted that the summons did
not comply with the signature requirement of § 801.09(3). Gaddis subsequently signed and filed an
amended summons and complaint, but the statute of limitations had lapsed in the
meantime.[2] La Crosse Products then filed a motion
for judgment on the pleadings dismissing the original complaint on the grounds
that the summons was defective. The
trial court denied the motion, holding that Gaddis' failure to sign the summons
constituted a technical defect and therefore it was sufficient for the court to
acquire personal jurisdiction over La Crosse Products.
The
court of appeals granted La Crosse Products' leave to appeal from the
nonfinal order and reversed the trial court in a summary order. Gaddis v. La Crosse Products, Inc.,
No. 94-2121-FT, unpublished slip op. (Ct. App. Feb. 17, 1995). It concluded that the case was controlled by
McMillan-Warner Mut. Ins. Co. v. Kauffman, 159 Wis. 2d 588, 465
N.W.2d 201 (Ct. App. 1990). The court
of appeals read McMillan-Warner to require both a signed summons
and a signed complaint in order to confer jurisdiction on the court. Gaddis, slip op. at 2-3.
The
sole question presented is whether an unsigned summons served with a signed
complaint precludes a circuit court from obtaining personal jurisdiction over a
defendant. The determination of the
required contents of a summons under § 801.09(3) involves statutory
interpretation. See American
Family Mut. Ins. v. Royal Ins. Co., 167 Wis. 2d 524, 529, 481 N.W.2d 629
(1992) (determining what constitutes authentication of a summons involves
statutory interpretation). This is a
question of law that this court reviews independently of the lower courts. Id.
Section
801.09(3) sets forth the specific requirements of a summons in relevant part as
follows:
The summons
shall be subscribed with the handwritten signature of the plaintiff or attorney
with the addition of the post-office address at which papers in the action may
be served upon the plaintiff by mail . . . .
The original summons filed by Gaddis in
this case was defective because it lacked his handwritten signature. However, the fact that the summons was defective
does not end our inquiry.
This
court has recognized that the question of whether a defect is fatal to the
court's jurisdiction depends upon whether the defect is fundamental or
technical. Dungan v. County of
Pierce, 170 Wis. 2d 89, 94-95, 486 N.W.2d 77 (Ct. App. 1992), citing American
Family, 167 Wis. 2d at 532-33.
This court stated the proper test as follows:
Defects are either technical or
fundamental--where the defect is technical, the court has personal jurisdiction
only if the complainant can show the defendant was not prejudiced, and, where
the defect is fundamental, no personal jurisdiction attaches regardless of
prejudice or lack thereof.
American Family, 167 Wis. 2d
at 533. The burden is on the party
alleged to have served the defective pleading to show that the defect was
technical and did not prejudice the defendant.
Id. The existence of
prejudice is only relevant once the complainant has demonstrated that the error
was technical. Id. at
534-35.
The
issue in American Family was whether service of an unauthenticated copy
of an authenticated summons and complaint is sufficient to meet the
requirements for proper commencement of an action under Wis. Stat.
§ 801.02. Id. at 527. Section 801.02(1) states:
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.
The court concluded that the failure to
comply with the requirements of § 801.02(1) constitutes a fundamental
error. In doing so the court noted that
Wisconsin courts have consistently held that procedural errors involving §
801.02 are fundamental defects that deprive the circuit court of personal
jurisdiction.[3] American Family, 167 Wis. 2d at
530-31; Dungan, 170 Wis. 2d at 95.
However,
the American Family court also recognized that Wisconsin courts have
allowed for nonprejudicial technical errors where the defect relates to the
content or form of the summons. American Family, 167 Wis. 2d at
530-32. For example, in Canadian
Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369, 272 N.W.2d 407 (Ct.
App. 1978), the plaintiff's summons omitted the direction that the defendant
must answer the complaint within 20 days as required by Wis. Stat.
§ 801.09(2)(a). Upon finding that
the defendant was not prejudiced by the omission, the court of appeals
concluded that the defect was not jurisdictional. Id. at 374.
Similarly,
in Dungan, the pro se plaintiff signed the summons but directed the
defendant to serve its answer on the plaintiff's attorney. This constituted a
violation of § 801.09(3), which requires an attorney's signature if the
plaintiff is represented by counsel. Dungan,
170 Wis. 2d at 94. The court held that
the defect in the summons was technical and not fundamental: "We cannot conclude that designating an
agent other than a pro se plaintiff for the receipt of service is so
fundamental a deviation from the statutory requirement that it should be
classified as a fundamental defect."[4] Id. at 97.
A
majority of the court of appeals in this case based its summary reversal of the
trial court's denial of La Crosse Product's motion for judgment on the
pleadings on McMillan-Warner. In
that case, the trial court struck the plaintiff's amended summons and complaint
because they were not properly subscribed as required by Wis. Stat.
§ 802.05.[5] Because no other summons and complaint had
been served on the defendant within 60 days, as required by § 801.02(1),
the circuit court concluded that it did not have jurisdiction over the
defendant. McMillan-Warner, 159
Wis. 2d at 590.
The
court of appeals in McMillan-Warner concluded that the failure to sign
the summons and complaint was not a "nonjurisdictional
technicality." McMillan-Warner,
159 Wis. 2d at 593. The court went on
to hold that "the circuit court acquires subject matter jurisdiction or
competency to act when a properly subscribed summons and complaint is filed
with the court." Id. at
594. A majority of the court of appeals
in the present case relied on this language to conclude that "both a
properly signed summons and a properly signed complaint are necessary to
confer jurisdiction." Gaddis,
slip op. at 3.
We
agree with the trial court and Judge Sundby, who wrote a concurrence in this
case and who also wrote McMillan-Warner, that McMillan-Warner can
be properly distinguished from the present facts. In McMillan-Warner, both the summons and complaint were
unsigned. Here, Gaddis signed the
complaint and served it with the unsigned summons.
This
factual distinction is significant when considering that the McMillan-Warner
court based its conclusion on § 802.05.
As the court of appeals properly recognized, "The purpose and
effect of [§ 802.05] is simply to place a professional obligation on the
attorney as an officer of the court to satisfy himself that there are grounds
for the action, defense or motion."
McMillan-Warner, 159 Wis. 2d at 593, citing Charles D. Clausen
& David P. Lowe, The New Wisconsin Rules of Civil Procedure: Chapters
801 to 803, 59 Marq. L. Rev. 1, 48 (1976).
This purpose is fulfilled where, as here, Gaddis signed the complaint
and served it with the summons.
The
complaint constitutes a pleading that sets forth a plaintiff's substantive
claims. In contrast to the complaint,
the summons is a form document which merely serves to give notice to the
defendant that an action has been commenced against him or her. American Family, 167 Wis. 2d at
530. Therefore, a signed complaint
served with a summons "constitutes a certificate that the attorney or
party has read the pleading . . . [and it] is well-grounded
in fact and is warranted by existing law or a good faith argument for the
extension, modification or reversal of existing
law . . . ."
Wis. Stat. § 802.05(1)(a).
La
Crosse Products argues on review that the legislative history of §§ 801.09(3)
and 802.05(1)(a) reveals an intent by the legislature to give greater weight to
the summons than mere notice when attached to a signed complaint. Further, because § 801.09(3) was changed to
expressly require the plaintiff's signature, La Crosse Products asserts
that disregarding this directive would render the statute meaningless. We disagree.
This
court is unpersuaded that the legislative history shows that the legislature
intended to give the summons greater significance when it changed §
801.09(3). No legislative history is
cited that indicates what greater significance the summons now has beyond mere
notice. If the legislature had intended
to change the long-standing notice purpose of the summons, it no doubt would
have indicated that in a more specific manner than simply requiring the summons
to be signed. We also note that courts
subsequent to the legislature's amendment of § 801.09(3) have reiterated that
the purpose of the summons is notice. See
e.g., J.M.S. v. Benson, 91 Wis. 2d 526, 531, 283 N.W.2d 465 (Ct.
App. 1979), rev'd on other grounds, 98 Wis. 2d 406, 297 N.W.2d 18
(1980); Bulik v. Arrow Realty, Inc., 148 Wis. 2d 441, 444, 434
N.W.2d 853 (Ct. App. 1988).
Further,
while it is true that the legislature intended that the summons be signed, it
does not automatically follow that the failure to do so results in the court
losing jurisdiction. Under that
rationale, all defects that fall short of the express statutory language would
be considered fundamental defects. Such
a rule ignores this court's recognition in American Family of the
distinction between a technical and a fundamental defect.
Gaddis suggests that whereas defects arising
under § 801.02(1) are fundamental, defects arising under § 801.09 are
merely technical, citing Dungan.
Contrary to Gaddis' suggestion, the American Family court did not
articulate a bright-line rule that all defects under § 801.09 are
technical, and we expressly decline to do so here.
We
conclude that the failure to personally sign a summons, like the omission of
the 20-day answer notice in Canadian Pacific and the improper
designation of an agent for receipt of service in Dungan, constitutes a
technical defect, provided that the summons is served with a signed
complaint. Because La Crosse
Products concedes that they were not prejudiced by the defect, the summons and
complaint were sufficient for the circuit court to acquire personal
jurisdiction. See American
Family, 167 Wis. 2d at 533.
Our
conclusion that Gaddis' failure to sign the summons constituted merely a
technical defect is consistent with Wisconsin's tradition of avoiding dismissal
of an action based on technical errors and omissions, as codified in Wis. Stat.
§ 805.18(1)[6]. Canadian Pacific, 86 Wis. 2d at
372. Similarly, this court has held
that "the entire tenor of modern law is to prevent the avoidance of
adjudication on the merits by resorting to dependency on nonprejudicial and
nonjurisdictional technicalities."
Schlumpf v. Yellick, 94 Wis. 2d 504, 511, 288 N.W.2d 834 (1980),
quoting Cruz v. DILHR, 81 Wis. 2d 442, 449, 260 N.W.2d 692
(1978). We conclude that the defect
here is precisely the type of nonprejudicial technicality that should not
prevent Gaddis from having his day in court.
By
the Court.— The decision of the court of appeals is reversed.
SUPREME COURT OF WISCONSIN
Case No.: 94-2121-FT
Complete Title
of Case: James Ronald Gaddis,
Plaintiff-Respondent-Petitioner,
v.
LaCrosse
Products, Inc., f/k/a
LaCrosse
Footwear, Inc., and
Transcontinental
Insurance Company,
Defendants-Appellants.
_______________________________________
REVIEW
OF A DECISION OF THE COURT OF APPEALS
(No
Cite)
Opinion Filed: January 19,
1996
Submitted on Briefs:
Oral Argument: November 29, 1995
Source of APPEAL
COURT: Circuit
COUNTY: LaCrosse
JUDGE: PETER G. PAPPAS
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the
plaintiff-respondent-petitioner there were briefs by Terence R. Collins,
Thomas E. Knothe and Cameron, Collins & Quillin, Ltd., LaCrosse
and oral argument by Terence R. Collins.
For the defendant-appellant there was a
brief by Robert D. Johns, Jr. and Johns & Flaherty, S.C.,
LaCrosse and oral argument by Robert D. Johns, Jr.
[1] All future statutory references are to the
1993-94 volume unless otherwise indicated.
Section 801.09(3) states in relevant part:
The summons shall be subscribed with the handwritten
signature of the plaintiff or attorney with the addition of the post-office
address at which papers in the action may be served upon the plaintiff by mail
. . . .
[2] In his amended complaint, Gaddis added as a
defendant La Crosse Product's insurer, Transcontinental Insurance
Company. The circuit court later ruled
that the amended complaint was untimely as against Transcontinental and
dismissed it from the case.
[3] See Danielson v. Brody Seating Co.,
71 Wis. 2d 424, 238 N.W.2d 531 (1976) (failure to properly serve a person
authorized to accept service on behalf of a corporate defendant was a
fundamental defect); Mech v. Borowski, 116 Wis. 2d 683, 342 N.W.2d
759 (Ct. App. 1983) (service of an unauthenticated summons and complaint was a
fundamental defect); Bulik v. Arrow Realty, Inc., 148 Wis. 2d 441, 434
N.W.2d 853 (Ct. App. 1988) (failure to name a defendant in the summons was a
fundamental defect).
[4] Courts have also held that errors committed
by the clerk of courts are technical in nature. J.M.S. v. Benson, 91 Wis. 2d 526, 531, 283 N.W.2d 465 (Ct.
App. 1979) (clerk's failure to stamp the case number on copies of the amended
summons and complaint held to be minor inconsequential inaccuracy). See also Schlumpf v. Yellick,
94 Wis. 2d 504, 511, 288 N.W.2d 834 (1980) (case number typed on summons and
complaint different from stamped number held to be "hypertechnical
error").
[5] Section 802.05 states in relevant part:
Signing of pleadings, motions and other
papers; sanctions. (1) (a) Every
pleading, motion or other paper of a party represented by an attorney shall
contain the name, state bar number, if any, telephone number, and address of
the attorney and the name of the attorney's law firm, if any, and shall be
subscribed with the handwritten signature of at least one attorney of record in
the individual's name. A party who is
not represented by an attorney shall subscribe the pleading, motion or other
paper with the party's handwritten signature and state his or her address.