Burnett v. Hill
| Citation | 557 N.W.2d 800,207 Wis.2d 110 |
| Decision Date | 24 January 1997 |
| Docket Number | No. 94-2011,94-2011 |
| Parties | Steven BURNETT, Plaintiff-Appellant-Petitioner, v. Claude HILL, d/b/a Sportsman's Lounge, and ABC Insurance Company, a fictitious insurance company, Defendants-Respondents. |
| Court | United States State Supreme Court of Wisconsin |
For the plaintiff-appellant-petitioner there were briefs by James W. McCann and Eisenberg, Weigel, Carlson, Blau, Reitz & Clemens, S.C., Milwaukee.
For the defendants-respondents there was a brief by William W. Graper, Milwaukee.
Plaintiff Steven Burnett (Burnett), seeks review of a published decision of the court of appeals affirming an order of the circuit court for Milwaukee County, William J. Haese, Judge. The order dismissed Burnett's cause of action for lack of personal jurisdiction over the Defendant, Claude Hill, d/b/a Sportsman's Lounge, and ABC Insurance Company (hereinafter "Hill"). 1 The court of appeals held that Burnett's failure to authenticate the summons he served by publication was a fundamental error depriving the circuit court of personal jurisdiction over Hill. Although Burnett did not strictly comply with the statutory service requirements of § 801.02(3)(a)(1993-94), 2 we conclude that the defect is not fundamental and did not prejudice Hill. We therefore reverse the decision of the court of appeals, vacate the
order of dismissal and remand to the circuit court for further proceedings.
The procedural facts are not in dispute. Burnett filed an action for damages for personal injuries arising out of the alleged negligence of Hill. A summons and complaint against Hill were filed with the Milwaukee County Clerk of Courts on October 5, 1993 on behalf of Burnett. Both the summons and the complaint were authenticated with a file stamp and date-stamped. 3 Service was attempted on Hill six times, at both his last known residence and at his place of business, but to no avail. Burnett attempted to have Hill personally served on November 9, 1993, November 14, 1993, November 22, 1993, November 27, 1993, December 2, 1993, and December 4, 1993. In the course of those unsuccessful service efforts, Burnett published the summons for three successive weeks in The Daily Reporter, a public newspaper of general circulation, printed and published daily in the City of Milwaukee. The newspaper published the summons on November 30, 1993, December 7, 1993 and December 14, 1993. The summons as published included the case number assigned by the clerk of courts for Milwaukee County.
Before or concurrent with the November 30, 1993 publication of the first summons under Wis.Stat. § 801.11(1)(c), 4 Burnett mailed an unauthenticated copy of the publication summons and authenticated copies of the original summons and complaint to Hill's last known residence address and business address by certified and first class mail. 5 Hill acknowledged the receipt of those documents by signature on December 1, 1993. The typed copy of the publication summons mailed to Hill did not contain the case number assigned by the clerk of courts.
Hill's counsel filed a Notice of Retainer and Answer on December 7, 1993. In his answer, Hill asserted lack of personal jurisdiction as an affirmative defense. Consequently, on April 26, 1994, Hill filed a motion to dismiss the complaint, pursuant to Wis.Stat. § 802.06(2), for lack of personal jurisdiction. 6 At the hearing on that motion, the circuit court determined that the manner of service was defective, and thus the court had no personal jurisdiction over Hill. The circuit court dismissed the complaint, with prejudice, by order for judgment dated June 23, 1994. Burnett moved for reconsideration of The court of appeals affirmed the order of the circuit court on January 9, 1996. 199 Wis.2d 163, 544 N.W.2d 580 (Ct.App.1996). The appellate court agreed that the failure to authenticate the summons served by publication was a fundamental error that deprived the lower court of personal jurisdiction over Hill. 199 Wis.2d at 171-73, 544 N.W.2d 580. In so ruling, the court of appeals also relied on the reasoning in American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis.2d 524, 481 N.W.2d 629 (1992), that where there is a failure to comply with Wis.Stat. § 801.02(1), that failure "constitutes a fundamental error which necessarily precludes personal jurisdiction regardless of the presence or absence of prejudice." 199 Wis.2d at 168-69, 544 N.W.2d 580 (citing 167 Wis.2d at 534, 481 N.W.2d 629). The court of appeals recognized that American Family and other cases cited by the parties dealt only with personal service of a summons, but proceeded to apply the same rule to this instance of service by publication. 8 We granted Burnett's petition for review on March 12, 1996.
the dismissal order on July 6, 1994. The court denied that motion. Burnett then appealed from both the judgment of June 23, 1994 and the order of July 11, 1994 denying his motion for reconsideration. 7
The question before us is whether the typed publication summons must be authenticated before it is mailed along with authenticated copies of the original summons and complaint, in order to confer personal jurisdiction on the circuit court. Determining what constitutes service by publication under Wis.Stat. § 801.11 involves statutory interpretation. See Gaddis v. LaCrosse Products, Inc., 198 Wis.2d 396, 401, 542 N.W.2d 454 (1996) (). Determining what constitutes "authentication" under Wis.Stat. § 801.02 also involves statutory interpretation. American Family, 167 Wis.2d at 529, 481 N.W.2d 629. These are questions of law that we review independently of the lower courts. Gaddis, 198 Wis.2d at 401, 542 N.W.2d 454. When we interpret a statute, we first look to the language of the statute itself. Kellner v. Christian, 197 Wis.2d 183, 190, 539 N.W.2d 685 (1995). If the meaning of a statute is clear, we will not look outside the statute to ascertain its meaning. Id. Instead, we will simply apply the plain meaning of the statute to the facts before us. Id. The complainant has the burden to prove that there was no defect in the summons, or if there was a defect, that it was technical and not fundamental, and did not prejudice the defendant. American Family, 167 Wis.2d at 533, 481 N.W.2d 629.
Burnett argues that the court of appeals' decision should be reversed for two reasons. First, he contends that Wis.Stat. §§ 801.02(3)(a) and 801.11(1)(c) do not require that the publication summons be mailed. Rather, Burnett reads the statutes to require only that the original authenticated summons and complaint be mailed.
Secondly, Burnett argues that if the legislature had required that an authenticated copy of the publication summons be mailed to respondent in addition to mailing authenticated copies of the summons and complaint, the statute would clearly state as much. Burnett asserts that Wis.Stat. § 801.09(4) does not require authentication by the clerk of court when a complainant prepares to undertake service by publication. 10
Hill responds to Burnett's argument by relying on American Family. Hill asserts that a failure to authenticate the publication summons is a fundamental defect which deprives the circuit court of personal jurisdiction. First, Hill contends that it follows from Wis.Stat. § 801.02(3)(a) and Wis.Stat. § 801.09 that the publication summons must be authenticated. Hill reasons that because Wis.Stat. § 801.09 makes no distinction between the manner of service and the need for authentication, the requirement for authentication of the summons applies to whichever manner of service is ultimately used. Hill also relies on a court of appeals decision, Studelska v. Avercamp, which ruled that if a person is served with an unauthenticated copy of the summons, that service was improper. 178 Wis.2d 457, 464-465, 504 N.W.2d 125 (Ct.App.1993).
We agree with Hill that the plain language of Wis.Stat. § 801.02(3)(a) requires that a publication summons be authenticated before publication and mailing. In addition, Wis.Stat. § 801.11(1)(c) requires that As with Wis.Stat. § 801.02(3)(a), we interpret the plain meaning of that provision to require that the publication summons published and mailed to the defendant be authenticated.
We further agree with Hill, and Burnett virtually concedes, that Burnett did not comply with the authentication requirement. His failure to authenticate the publication summons constituted a defect in service. Our task then becomes one of determining whether the defect is a "fundamental error" that...
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