Gomez v. Labor and Industry Review Com'n

• Decision Date: 14 December 1989
• Docket Number: No. 89-0913,89-0913
• Citation: 451 N.W.2d 475,153 Wis.2d 686
• Parties: Thomas M. GOMEZ, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Aunt Nellie's Foods, and Gallagher Bassett Insurance Service, Defendants-Respondents. d
• Court: Wisconsin Court of Appeals

Page 475

451 N.W.2d 475

153 Wis.2d 686

Thomas M. GOMEZ, Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Aunt Nellie's Foods, and Gallagher Bassett Insurance Service,

Defendants-Respondents. ^d

No. 89-0913.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 13, 1989.

Opinion Released Dec. 14, 1989.

Opinion Filed Dec. 14, 1989.

William F. Hue of Krek, Harlowe & Hue, S.C., Jefferson, on the briefs, for plaintiff-appellant.

Donald J. Hanaway, Atty. Gen., and Stephen M. Sobota, Asst. Atty. Gen., on the brief, for defendants-respondents.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

EICH, Chief Judge.

Thomas Gomez appeals from an order dismissing his action to review a decision of the Labor and Industry Review Commission denying his application for workers compensation benefits. The issue is whether the trial court properly dismissed the action for Gomez's failure to serve the commission. We believe dismissal was proper and we affirm the order.

After a hearing examiner denied his application for compensation, Gomez appealed the denial to the Labor and Industry Review Commission. The commission affirmed the denial in a written order, which was accompanied by written instructions outlining the procedures to be followed to obtain judicial review of the decision. After noting that service of the summons and complaint upon the commission is necessary to commence such action, the notice continued: "Service [of the summons and complaint] must be made upon a Commissioner of the Labor and Industry Review Commission or an agent authorized by the Commission to accept service. The Commissioners and authorized agents are located only in Madison at the address listed below." (Emphasis added.) The listed address was: "LABOR AND INDUSTRY REVIEW COMMISSION, 201 East Washington Avenue, Room 469 ... Madison, WI 53708."

Gomez's attorney prepared a summons and petition for review and filed them with the Jefferson County Circuit Court. He then asked his wife, Laura Challoner, a non-lawyer, to serve the papers on the commission. She mistakenly attempted to serve copies of the papers at the local Department of Industry, Labor and Human Relations Job Service office in Watertown and was told by someone there that the papers should be served at Room 161, 201 East Washington Avenue, in Madison.

Challoner drove to the Madison address, went to Room 161--the "worker's comp" office--told the receptionist she had a petition for review and asked what she should do with it. She did not indicate that she also had a summons. The receptionist told Challoner she could leave the papers with her, which she did, and they were stamped "Received, July 8, 1988, Workers Compensation."

The office where Challoner left the papers was not the commission's; it was the office of the workers compensation division of the Department of Industry, Labor and Human Relations. Somehow, the papers eventually made their way to the commission's offices because the record includes a page from a commission logbook containing the following entry: "7/8/88 Thomas M. Gomez, Plaintiff, v. LIRC.... 1 Summons & Complaint served in person on WCD [Workers Compensation Division]. Filed. Found in App. for Hrg. File on 8/23/88."

There is nothing in the record, however, showing service of the documents on any of the members of the commission or the three agents who are authorized to accept service of process on the commission's behalf. As the appeal rights notice states, the commission's offices--including those of all persons authorized to accept service of papers--are located in Room 469, not Room 161, at the East Washington Avenue address.

The trial court granted the commission's motion to dismiss on the grounds that the summons and petition had been improperly served and, as a result, the court lacked jurisdiction to proceed in the matter. The issue is one of law which we decide de novo, owing no deference to the trial court's decision. Rineck v. Johnson, 150 Wis.2d 232, 236, 440 N.W.2d 830, 831 (Ct.App.1989).

Section 102.23(1)(a), Stats., gives an aggrieved party thirty days in which to commence an action for judicial review of a commission order by serving and filing a summons and complaint seeking review of the order "as provided in par. (b)." Section 102.23(1)(b) requires that the summons and complaint for review be served on the commission, stating that "[s]ervice upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties...." In addition, Wis.Adm.Code, sec. LIRC 3.06 provides that: "Judicial review of any commission decision shall be commenced in the manner ... specified in s. 102.23, Stats..... Service [of the summons and complaint] must be made upon a commissioner ... or agent authorized by the commission to accept service...."

Gomez argues that his appeal rights should not be lost merely because of a "technical error" in securing service of the summons and complaint, citing Nigbor v. DILHR, 120 Wis.2d 375, 355 N.W.2d 532 (1984), Sunnyview Village v. Administration Dept., 104 Wis.2d 396, 311 N.W.2d 632 (1981), and Cruz v. ILHR Department, 81 Wis.2d 442, 260 N.W.2d 692 (1978). The cited cases do not require the result urged by Gomez.

In Cruz, all parties were properly served; the only "defect" was in the case caption on the pleadings, which named the wrong court. The supreme court, characterizing the defect as "hypertechnical ... non-prejudicial and non-jurisdictional," disregarded it and allowed the action to continue. Id., 81 Wis.2d at 449, 260 N.W.2d at 694. Sunnyview Village did not involve ch. 102, Stats., at all, but sec. 227.16, Stats. (1979-80), a service statute described by the court as "complex" and "confusing" in its designation of the appropriate agency to serve. Id., 104 Wis.2d at 400, 311 N.W.2d at 634. There is no suggestion in this case that sec. 102.23(1)(b) is at all complex or confusing; it plainly requires service on the commission. Finally, Nigbor, like Cruz, involved an omission in the caption of a pleading which the court, noting the rule that a caption "is not a part of a pleading," termed a "technical" error which did not affect the circuit court's jurisdiction. Nigbor, 120 Wis.2d at 381-82, 355 N.W.2d at 536.

Gomez's argument fails to distinguish between cases in which the only error is a technical defect in the pleadings and cases where service was not properly accomplished within the statutory time period or, as here, the proper party was not served. In the former cases, as Gomez points out, the defects occasionally have been labeled "hypertechnical" and overlooked. But the latter defects are considered irremediable and deprive the court of jurisdiction.

This distinction was made clear in Cruz where the court stated:

This court has required strict compliance with [sec. 102.23, Stats.,] and with the procedures for the review of administrative determinations....

[I]n Brachtl v. Department of Revenue [48 Wisc.2d 184, 179 N.W.2d 921] (1970) and Cudahy v. Department of Revenue, [66 Wisc.2d 253, 224 N.W.2d 570] (1974), strict compliance was insisted upon because the necessary parties were not timely served.

It appears that these cases are typical of those previously brought to this court in that they were concerned with the failure to commence any action within the thirty-day period or with the failure to serve necessary parties within the statutory period. [In this case, however,] the pleadings bore the caption of a court which, under the statutes, had no jurisdiction to proceed with the action. We cannot conclude that this is an irremediable defect. Cruz, 81 Wis.2d at 448, 260 N.W.2d at 693-94 [citations omitted].

This case involves more than a simple error in the pleadings or the case caption. It involves the failure to serve the commission within the time allotted by law, and it goes to the trial court's jurisdiction. We consider In Matter of Petition of Elec. Power Co., 110 Wis.2d 649, 329 N.W.2d 186 (1983), a condemnation case involving an attempted appeal from a determination of a county commission, to be much more on point. By statute, the appellant was required to serve a notice of appeal on the condemnor--the power company--either personally or by certified mail. The appellant mailed the notice to the attorney who had represented the power company in proceedings before the county commission. The attorney's secretary signed the standard post office certified mail receipt; she did not open the envelope before signing the receipt and nothing on the face of the envelope indicated the nature of its contents. The court dismissed the action, holding that service on the attorney did not comply with the statutory requirement that the notice of appeal be served on the condemnor. Elec. Power, 110 Wis.2d at 661, 329 N.W.2d at 191.

Here, Challoner did not serve the papers on a person authorized to accept them; indeed, she did not even serve them on an employee of the commission, but on a receptionist in the offices of a related, but very different, agency. The commission's specific written instructions setting forth how and on whom to serve the papers--including the room number where such persons could be found--were ignored, and the receptionist with...