Dungan v. County of Pierce, 92-0093-FT
| Decision Date | 30 June 1992 |
| Docket Number | No. 92-0093-FT,92-0093-FT |
| Parties | Arthur Harold DUNGAN, Plaintiff-Appellant, v. COUNTY OF PIERCE, Pierce County Sheriff's Department, James Hines, Pierce County Sheriff, and their insured, Thomas K. Dietzler, individually and in his official capacity, William Stewart, individually and in his official capacity, and Robert Rhiel, individually and in his official capacity, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Warren Lee Brandt of Brandt Law Offices of Prescott.
On behalf of the defendants-respondents, the cause was submitted on the brief of John P. Richie of Misfeldt, Stark, Richie and Wickstrom of Eau Claire.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Arthur Dungan appeals a judgment dismissing his complaint against Pierce County for lack of personal jurisdiction because of a defect contained within the summons filed and served pursuant to ch. 801, Stats. 1 Dungan argues that any defect in the form of the summons was technical in nature and did not deprive the court of personal jurisdiction over the county. Because we agree that the defect in the summons was technical and not fundamental, we reverse the order of dismissal and remand for further proceedings.
Dungan attempted to commence an action against the county by filing a summons and complaint, and serving them upon the county as provided in sec. 801.02, Stats. The summons was signed by Dungan with the words "Arthur Harold Dungan, plaintiff, pro-se" typed beneath his signature. However, the body of the summons instructed the county to serve the answer on "Warren Lee Brandt, plaintiff's attorney, whose address is 122 Orange Street, Prescott, Wisconsin 54021."
The county prepared an answer and filed it with the clerk but, because of an administrative error, failed to serve the answer either upon Brandt, as directed in the body of the summons, or upon Dungan, who signed the summons. Dungan filed motions for default judgment and to strike the answer based upon the county's failure to properly serve the answer as provided in sec. 802.06(1), Stats. The defendants first responded by mailing their answer to both Dungan and Brandt and requesting an extension of time to answer. The county subsequently brought a motion to dismiss for lack of personal jurisdiction based upon the alleged defect contained in the summons. The trial court granted the county's motion to dismiss for lack of jurisdiction, finding the summons "fatally defective."
Whether 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. Brandt v. LIRC, 160 Wis.2d 353, 361, 466 N.W.2d 673, 676 (Ct.App.1991). In addition, whether a defect is fundamental or technical is reviewed as a question of law. American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis.2d 524, 481 N.W.2d 629 (1992). We review questions of law without deference to the trial court. Id. at 529, 481 N.W.2d at 631.
The procedural requirements of commencing an action are specified in sec. 801.02, Stats. It is undisputed that these procedural requirements were followed in this case. The content requirements of a summons are specified in sec. 801.09. Subsection (3) of that section provides in 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. If the plaintiff is represented by a law firm, the summons shall contain the name and address of the firm and shall be subscribed with the handwritten signature of one attorney who is a member or associate of such firm....
The county argues that the failure to have Brandt sign the summons identifying him as the attorney representing Dungan is a defect within the meaning of the statute. We agree. The statute requires the plaintiff to sign the summons only if he is appearing pro se. Section 801.09(3), Stats. If the plaintiff is not pro se, the plaintiff's attorney must sign the summons. Id. In this case, Dungan, who signed the summons as pro se plaintiff, designated Brandt for receipt of the answer. The summons does not comply with sec. 801.09(3) if it designates a person other than the pro se plaintiff as an agent for receipt of the answer. Concluding that the summons is defective, however, does not end our inquiry.
The question whether a defect is fatal to the court's jurisdiction depends upon a determination whether the defect is fundamental or technical. American Family, 167 Wis.2d at 532, 481 N.W.2d at 632. If the defect is fundamental, the court has no jurisdiction to proceed and dismissal of the summons and complaint is required. If the defect is technical and the plaintiff can show that the defendant was not prejudiced by the defect, the error will not defeat personal jurisdiction and the court may proceed with the case. Id.
Our supreme court noted in American Family that two lines of analysis have been applied in determining whether defects in a summons and complaint defeat personal jurisdiction; one requiring strict statutory compliance and the other allowing nonprejudicial technical errors. Id. at 532-33, 481 N.W.2d at 632. Examination of the cases discussed in American Family reveals what we perceive to be a pattern. Those cases requiring strict statutory compliance involved application of the procedural requirements of sec. 801.02, Stats.; procedural errors are consistently held to be fundamental defects depriving the court of jurisdiction. See American Family, 167 Wis.2d at 530-31, 481 N.W.2d at 631-32. In Danielson v. Brody Seating Co., 71 Wis.2d 424, 238 N.W.2d 531 (1976), our supreme court held that the failure to properly serve a person authorized to accept service on behalf of a corporate defendant was a fundamental defect. Service of an unauthenticated summons and complaint on a defendant prior to filing with the trial court was also held to be a fundamental defect. Mech v. Borowski, 116 Wis.2d 683, 342 N.W.2d 759 (Ct.App.1983). Also, a fundamental defect resulted when a defendant was timely served with an authenticated summons and complaint but was not named as a defendant in the summons. Bulik v. Arrow Realty, Inc., 148 Wis.2d 441, 444, 434 N.W.2d 853, 854 (Ct.App.1988).
On the other hand, those cases allowing for nonprejudicial technical defects involved errors in content and form governed by sec. 801.09 and 801.095, Stats., and errors committed by someone other than the plaintiff. Errors in content and form of the summons and complaint are consistently held to be technical defects that do not automatically deprive the court of jurisdiction. See American Family, 167 Wis.2d at 530-32, 481 N.W.2d at 631-32. In Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis.2d 369, 272 N.W.2d 407 (Ct.App.1978), the court determined a summons failing to direct the defendant to answer within twenty days was a technical defect that did not prejudice the defendant. Errors committed by the clerk are also viewed as technical. See State v. Hooper, 122 Wis.2d 748, 751-52, 364 N.W.2d 175, 177 (Ct.App.1985); Schlumpf v. Yellick, 94 Wis.2d 504, 511, 288 N.W.2d 834, 838 (1980); J.M.S. v. Benson, 91 Wis.2d 526, 531, 283 N.W.2d 465, 467 (Ct.App.1979).
We conclude that this case falls within the latter category of cases involving defects in form and not defects in procedure. The summons and complaint were properly filed, authenticated and served upon the county. Dungan has demonstrated compliance with sec. 801.02(1) Stats., as required by American Family. Id., 167 Wis.2d at 533-34, 481 N.W.2d at 632-33. Therefore, the defect is technical and not...
To continue reading
Request your trial
-
Novak v. Phillips
...the summons and complaint are technical or fundamental defects under §§ 801.09(3) and 802.05(1)(a). In Dungan v. County of Pierce, 170 Wis. 2d 89, 95-96, 486 N.W.2d 579 (Ct. App. 1992), we held that a procedural error involving WIS. STAT. § 801.02 was fundamental and that errors in content ......
-
Gaddis v. La Crosse Products, Inc., No. 94-2121-FT (Wis. 1/19/1996)
...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 Defects are either t......
-
Burnett v. Hill
...is fundamental or technical is a question of law that we review without deference to the lower courts. Dungan v. County of Pierce, 170 Wis.2d 89, 93, 486 N.W.2d 579 (Ct.App.1992) (citing American Family, 167 Wis.2d at 529, 481 N.W.2d 629). If the error is merely technical, we look to see wh......
-
Gaddis v. LaCrosse Products, Inc.
...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 579 (Ct.App.1992), citing American Family, 167 Wis.2d at 532-33, 481 N.W.2d 629. This court stated the proper test as Defects......