Bergstrom v. Polk County

• Decision Date: 11 January 2011
• Docket Number: No. 2009AP2572.,2009AP2572.
• Citation: Bergstrom v. Polk County, 331 Wis.2d 678, 795 N.W.2d 482, 2011 WI App 20 (Wis. App. 2011)
• Parties: Holly BERGSTROM, Lois Cruthers, Max Cruthers, Mary Falk, Fay Gustafson, Mark Gustafson, Paul Hansen, Kristin Johnson, Mark Johnson, Nancy Jorgenson, Russell Jorgenson, Anthony Menke, Sandra Menke, Alan Pearson, Patricia Pearson, Pamela Petersen, Roger Petersen and Jean Schermer, Plaintiffs–Respondents,v.POLK COUNTY, Defendant–Appellant,Mathy Construction Company, Defendant–Co–Appellant.
• Court: Wisconsin Court of Appeals

331 Wis.2d 678

795 N.W.2d 482

2011 WI App 20

Holly BERGSTROM, Lois Cruthers, Max Cruthers, Mary Falk, Fay Gustafson, Mark Gustafson, Paul Hansen, Kristin Johnson, Mark Johnson, Nancy Jorgenson, Russell Jorgenson, Anthony Menke, Sandra Menke, Alan Pearson, Patricia Pearson, Pamela Petersen, Roger Petersen and Jean Schermer, Plaintiffs–Respondents,

v.POLK COUNTY, Defendant–Appellant,Mathy Construction Company, Defendant–Co–Appellant.

No. 2009AP2572.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 14, 2010.Opinion Filed Jan. 11, 2011.

On behalf of the defendant-appellant, the cause was submitted on the brief of Malia T. Malone, assistant corporation counsel, Balsam Lake.On behalf of the defendant-co-appellant, the cause was submitted on the briefs of Allen A. Arntsen, Michael S. Heffernan and Tony H. McGrath of Foley & Lardner LLP, Madison.On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Richard Ihrig of Lindquist & Vennum P.L.L.P., Minneapolis, Minnesota.Before HOOVER, P.J., PETERSON and BRUNNER, JJ.PETERSON, J.

Polk County appeals an order denying its motion to dismiss a certiorari action filed by Holly Bergstrom and seventeen other Polk County property owners (collectively, Bergstrom). Mathy Construction Company appeals an order denying its motion for judgment on the pleadings.¹ Both the County and Mathy argue the circuit court lacked personal jurisdiction because Bergstrom did not serve her summons and complaint in a manner authorized by Wis. Stat. § 801.11.² The circuit court determined that, despite the defective service, it could exercise personal jurisdiction over both defendants due to “special circumstances.” The court further concluded that Mathy had waived its jurisdictional objections, pursuant to Wis. Stat. § 807.07(1), by participating in the litigation before filing its motion for judgment on the pleadings.

¶ 2 We disagree. First, the special circumstances exception does not apply in the context of a certiorari action initiated by filing a summons and complaint. Thus, special circumstances cannot establish personal jurisdiction in a certiorari action when the defendant has not been served in accordance with Wis. Stat. § 801.11. Second, even if the special circumstances exception did apply, special circumstances were not present in this case. Third, Mathy did not waive its jurisdictional objections by filing an answer that specifically alleged lack of personal jurisdiction and lack of service as affirmative defenses. We therefore reverse.

BACKGROUND

¶ 3 This appeal arises out of the Polk County Land and Water Resources Department's issuance of a nonmetallic mining reclamation permit to a subsidiary of Mathy. Bergstrom unsuccessfully challenged the issuance of the permit in administrative proceedings. She then sought certiorari review in the circuit court by filing a summons and complaint that named the County and Mathy as defendants.

¶ 4 It is undisputed that Bergstrom did not personally serve the County in the manner required by Wis. Stat. § 801.11(4)(a) 1. Section 801.11(4)(a) 1 requires that a summons and complaint against a county be personally served on the county board chairperson or on the county clerk. Instead, Bergstrom mailed authenticated copies of the summons and complaint to the Polk County corporation counsel.

¶ 5 It is also undisputed that Bergstrom did not personally serve Mathy in the manner required by Wis. Stat. § 801.11(5) for service on a corporation. Instead, Bergstrom mailed authenticated copies of the summons and complaint to Mathy's attorney.

¶ 6 In lieu of an answer, the County filed a motion to dismiss Bergstrom's complaint. The County alleged Bergstrom's mailing of the summons and complaint to the county corporation counsel did not meet the Wis. Stat. § 801.11(4)(a) 1 requirement of personal service on either the county board chairperson or the county clerk.

¶ 7 Mathy filed a timely answer that requested dismissal of Bergstrom's complaint. As defenses, Mathy's answer alleged that the circuit court did not have personal jurisdiction over Mathy and that Bergstrom had failed “to serve sufficient or proper process on one or more defendants.” Mathy then filed a motion for judgment on the pleadings, alleging that the circuit court lacked personal jurisdiction because Bergstrom had not personally served Mathy in the manner required by Wis. Stat. § 801.11(5).

¶ 8 In responses to both motions, Bergstrom admitted she had not properly served either the County or Mathy. However, she argued that service by mail on the defendants' respective attorneys was sufficient to establish personal jurisdiction because “special circumstances” excused the defective service. Bergstrom alleged, “ ‘Special circumstances' giving courts personal jurisdiction in an appeal exist, even where technical compliance with service requirements is lacking, where counsel upon whom service is effected has taken actions showing authority to act as agent for the party to be served.” Bergstrom argued both the County's and Mathy's attorneys had indicated they were authorized to act on their clients' behalf. She also contended Mathy waived its jurisdictional objections, pursuant to Wis. Stat. § 807.07(1), by filing an answer before moving for judgment on the pleadings.

¶ 9 The circuit court agreed with Bergstrom and denied both defendants' motions. The court held that, because “special circumstances” existed, mailing the summons and complaint to the county corporation counsel established personal jurisdiction over the County. The court noted that the assistant corporation counsel had participated in the administrative hearing from which the certiorari review was taken and had communicated with Bergstrom's counsel about the appellate record before filing the County's motion to dismiss. As a result, the court determined dismissal of Bergstrom's complaint as to the County would be “unduly harsh.”

¶ 10 The court similarly held it could exercise personal jurisdiction over Mathy due to “special circumstances,” stating:

Mathy's counsel never contended that they did not have authority to accept service on behalf of Mathy. Mathy's counsel continued to communicate with [Bergstrom's] counsel regarding the appellate record and the supplementation of that record. There is no showing that Mathy would be prejudiced by this court exercising personal jurisdiction over Mathy in this case. Conversely, there is significant evidence to indicate that [Bergstrom] would be severely prejudiced if this court grants Mathy's Motion for Judgment on the Pleadings. Under the circumstances, dismissal of [Bergstrom's] action as to Mathy is unduly harsh.

The court also concluded that, by filing an answer, Mathy had participated in the case and thereby waived its jurisdictional objections.

¶ 11 Both the County and Mathy now appeal.

DISCUSSION

¶ 12 The personal service requirements of Wis. Stat. § 801.11 apply to a certiorari action commenced by the filing of a summons and complaint. See Wis. Stat. §§ 801.02(1) and (5), 801.11.³ It is undisputed that Bergstrom did not personally serve either the County or Mathy in the manner prescribed by Wis. Stat. § 801.11. Generally, failure to properly serve a defendant is a fundamental defect fatal to the action, regardless of prejudice, Hagen v. City of Milwaukee Employes' Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶ 13, 262 Wis.2d 113, 663 N.W.2d 268, and warrants dismissal of the plaintiff's complaint, Bartels v. Rural Mut. Ins. Co., 2004 WI App 166, ¶ 16, 275 Wis.2d 730, 687 N.W.2d 84. “Wisconsin requires strict compliance with its rules of statutory service, even though the consequences may appear to be harsh.” Dietrich v. Elliott, 190 Wis.2d 816, 528 N.W.2d 17 (Ct.App.1995). We have previously stated that, if the service statutes “are to be meaningful, they must be unbending.” Mech v. Borowski, 116 Wis.2d 683, 686, 342 N.W.2d 759 (Ct.App.1983).

¶ 13 Bergstrom argues the general rule requiring strict compliance with the rules of statutory service should not apply in this case, because “special circumstances” establish personal jurisdiction over the County and Mathy and excuse the defective service of the summons and complaint. Bergstrom also contends Mathy waived its jurisdictional objections, pursuant to Wis. Stat. § 807.07(1).

¶ 14 We will not set aside the circuit court's findings of fact unless clearly erroneous. Wis. Stat. § 805.17(2). However, whether the special circumstances exception applies, and whether the facts establish the existence of special circumstances, are questions of law that we review independently. See City of La Crosse v. Shiftar Bros., 162 Wis.2d 556, 561–62, 469 N.W.2d 915 (Ct.App.1991). Determining whether Mathy waived its jurisdictional objections requires us to interpret Wis. Stat. § 807.07(1), which also presents a question of law that we review independently. See Goudy v. Yamaha Motor Corp., 2010 WI App 55, ¶ 10, 324 Wis.2d 441, 782 N.W.2d 114.

I. The “special circumstances” exception

¶ 15 Bergstrom argues that, in certain cases, special circumstances excuse defective service and establish personal jurisdiction over a defendant who has not been properly served. Our supreme court summarized this “special circumstances” exception in Gangler v. Wisconsin Electric Power Co., 110 Wis.2d 649, 658, 329 N.W.2d 186 (1983), a case involving condemnation proceedings under Wis. Stat. ch. 32:

[T]his court has held that when notice of appeal is given to the attorney who represented a party in the condemnation proceedings and when “special circumstances” are present, the circuit court has jurisdiction to proceed. One such special circumstance is “when an attorney at law formally acknowledges the receipt of a document as an attorney on behalf of a client.” Fontaine v. Milwaukee County Expressway Comm., 31 Wis.2d 275, 278–80, 143 N.W.2d 3 (1966). Another special circumstance is when an attorney formally admits “due and...