Greenwald Family Ltd. P'ship v. Vill. of Mukwonago

• Docket Number: 2021AP69-FT
• Decision Date: 21 June 2023
• Citation: 2023 WI 53
• Parties: Greenwald Family Limited Partnership and Darwin Greenwald, Plaintiffs-Appellants-Petitioners, v. Village of Mukwonago, Defendant-Respondent.
• Court: Wisconsin Supreme Court

1

2023 WI 53

Greenwald Family Limited Partnership and Darwin Greenwald, Plaintiffs-Appellants-Petitioners, v. Village of Mukwonago, Defendant-Respondent.

No. 2021AP69-FT

Supreme Court of Wisconsin

June 21, 2023

SUBMITTED ON BRIEFS: ORAL ARGUMENT: FEBRUARY 20, 2023

CIRCUIT COURT: WAUKESHA COUNTY: L.C. NO. 2020CV494 LLOYD CARTER JUDGE

REVIEW OF DECISION OF THE COURT OF APPEALS (2022 - unpublished)

Attorneys:

For the plaintiffs-appellants-petitioners, there were briefs filed by Joseph R. Cincotta and the Law Offices of Joseph R Cincotta, Shorewood. There was an oral argument by Joseph R Cincotta.

For the defendant-respondent, there was a brief filed by Remzy D. Bitar, Adam J. Meyers, Gregory M. Procopio, and Municipal Law & Litigation Group, S.C., Waukesha. There was an oral argument by Remzy D. Bitar.

An amicus curiae brief was filed by Maria Davis and Claire Silverman for the League of Wisconsin Municipalities.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined.

OPINION

ANN WALSH BRADLEY, J.

¶1 The petitioners, Greenwald Family Limited Partnership and Darwin Greenwald (collectively, Greenwald), seek review of an unpublished order of the court of appeals that affirmed the circuit court's dismissal of the defendant, Village of Mukwonago, due to improper service of a notice of appeal.^[1] Greenwald contends that dismissal is not appropriate in this special assessment appeal because it satisfied the requirement of Wis.Stat. § 66.0703(12)(a)(2019-20)^[2] to "serve a written notice of appeal upon the clerk."

¶2 Specifically, Greenwald advances that Wis.Stat. § 801.14(2) controls the manner of service that we must apply here because the failure of Wis.Stat. § 66.0703(12)(a) to define "serve" renders it ambiguous. The Village argues to the contrary, contending that § 801.14(2) does not apply because the clerk is not a "party" to the proceedings. It additionally asserts that § 66.0703(12)(a) is unambiguous and requires strict compliance such that Greenwald's failure to serve the clerk mandates dismissal of the case.

¶3 We conclude that the clerk is not a party to the proceeding, and thus Wis.Stat. § 801.14(2) does not apply. Additionally, like the court of appeals, we determine that Wis.Stat. § 66.0703(12)(a) is unambiguous. The statute's plain meaning mandates service of written notice on the Village clerk, which Greenwald did not accomplish. Therefore, Greenwald's failure to comply with § 66.0703(12)(a) requires dismissal of this action.

¶4 Accordingly, we affirm the decision of the court of appeals.

I

¶5 In order to provide context for the legal questions presented, we set forth an abbreviated recitation of the underlying facts, describing the procedural steps that were taken, and those not taken.

¶6 Greenwald owns properties in the Village of Mukwonago. In 2019, the Village voted to create a special assessment district and levied special assessments against properties included within this district. At least one of Greenwald's properties was located in the special assessment district.

¶7 Greenwald challenged the special assessment. Its complaint alleged jurisdiction "pursuant to Wis. Stats. § 66.0703(12) governing the right to appeal special assessments and other applicable law."

¶8 In commencing its challenge, Greenwald filed first a summons and complaint in the circuit court. The next day, Greenwald's attorney emailed the Village attorney and the clerk of the Village. The email was addressed to the Village attorney and asked if the attorney could "accept service for the Village." The clerk was not included on any subsequent email communications.

¶9 The Village attorney responded to Greenwald's attorney, stating, "Yes we will admit service, please forward that to me at this point[.]" Greenwald's attorney sent back an email with copies of the summons and complaint, along with a template denominated "Admission of Service of Summons and Complaint." The Village attorney signed this document, which stated: "I am counsel for the Defendant Village of Mukwonago in this action and have received and admit service of an authenticated copy of the summons and complaint on behalf of the Defendant," and emailed it back to Greenwald's attorney.

¶10 Weeks later, Greenwald's attorney again emailed the Village attorney. This email message stated, "Attached is a copy of a notice relative to the Special Assessment matter. This is also being mailed to your office by regular mail." Greenwald's attorney additionally attached a cover letter to this email that stated:

Regarding this matter, I have enclosed a Notice of Appeal to be provided to the Clerk of the Village in accordance with Wis. Stats. 66.0703(12). Also a check in the amount of $150.00 to serve as a bond for costs. You have already admitted service of the actual court filing and so I gather that the Clerk has actual notice of [Greenwald]'s appeal of the special assessment. Please let me know if the Village has any objection to this filing. Or requires further action by Plaintiff to be in compliance with the bond requirement.

¶11 In response, the Village filed a motion to dismiss.^[3]It argued that because Greenwald did not serve a written notice of appeal on the Village clerk, the circuit court lacked subject matter jurisdiction or competency to proceed. The motion also alleged that Greenwald failed to comply with the specific bond requirements.^[4] Ultimately, the circuit court granted the motion and dismissed the action.

¶12 Greenwald appealed and the court of appeals summarily affirmed the circuit court's order. Greenwald Fam. Ltd. P'ship v. Village of Mukwonago, No. 2021AP69-FT, unpublished order (Wis. Ct. App. Feb. 16, 2022). The court of appeals unanimously concluded that Wis.Stat. § 66.0703(12)(a) unambiguously requires service of a written notice of appeal upon the clerk and that Greenwald's failure to comply with this statute requires dismissal of the complaint. It further disposed of Greenwald's reliance on Wis.Stat. § 801.14(2) as misplaced because "the Village clerk is not and never was a party" to this case. Id. at 3. Greenwald petitioned for this court's review.

II

¶13 We are called upon to review the court of appeals' decision summarily affirming the circuit court's order granting the Village's motion to dismiss. Whether a motion to dismiss was properly granted is a question of law that this court reviews independently of the determinations rendered by the circuit court and court of appeals. Town of Lincoln v. City of Whitehall, 2019 WI 37, ¶21, 386 Wis.2d 354, 925 N.W.2d 520.

¶14 This review requires us to interpret several Wisconsin statutes. The interpretation of a statute presents a question of law that we review independently of the determinations of the circuit court and court of appeals. Sw. Airlines Co. v. DOR, 2021 WI 54, ¶16, 397 Wis.2d 431, 960 N.W.2d 384.

¶15 In our examination we employ tools of statutory interpretation that provide guiding principles for our inquiry. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. "We assume that the legislature's intent is expressed in the statutory language." Id.

¶16 "In construing or interpreting a statute the court is not at liberty to disregard the plain, clear words of the statute." Id., ¶46. If the text of the statute is plain and unambiguous, our inquiry may stop there. Id., ¶45.

III

¶17 It is clear from the plain language of Wis.Stat. § 66.0703(12)(a) that in order to file an appeal from a special assessment, the clerk must be served.^[5] That much is not in dispute. Rather, what is in dispute is the manner in which such service may be achieved.

¶18 The Village argues service upon the clerk was not accomplished here because nothing was ever actually served on the clerk. Greenwald, on the other hand, contends that service was accomplished in a manner consistent with Wis.Stat. § 801.14(2) when it emailed the notice of appeal to the Village attorney.

¶19 In resolving this case, we look first to the texts of the relevant statutes and then address each of Greenwald's arguments in turn. Ultimately, we determine, for the reasons set forth below, that Wis.Stat. § 66.0703(12)(a) controls and that Greenwald's failure to comply with its unambiguous mandate requires dismissal of this action.

A

¶20 We begin our inquiry by examining the text of the relevant statutes. The linchpin of Greenwald's argument is that Wis.Stat. § 801.14(2) applies, providing the manner of service that we must employ here. It reaches this assertion in part by arguing that Wis.Stat. § 66.0703(12)(a) is ambiguous because "serve" is not defined.

¶21 Accordingly, we set forth first the text of Wis.Stat. § 801.14(2). It provides in relevant part:

Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court.

§ 801.14(2) (emphasis added).

¶22 Next, we look to Wis.Stat. § 66.0703(12)(a), which establishes the right of a person with an interest in land affected by the determination of a governing body to appeal the determination to the circuit court:

A person having an interest in a parcel of land affected by a determination of the governing body, under sub. (8)(c), (10) or (11), may, within 90 days after the date of the notice or of the

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