Incorporation of Town of Fitchburg, Dane County, In re

• Decision Date: 08 December 1980
• Docket Number: No. 80-980,80-980
• Citation: 299 N.W.2d 199,98 Wis.2d 635
• Parties: In re the INCORPORATION OF the TOWN OF FITCHBURG, DANE COUNTY, Wisconsin, as a City: TOWN OF FITCHBURG et al., Appellants-Petitioners, v. CITY OF MADISON, Respondent.
• Court: Wisconsin Supreme Court

Page 199

299 N.W.2d 199

98 Wis.2d 635

In re the INCORPORATION OF the TOWN OF FITCHBURG, DANE COUNTY, Wisconsin, as a City TOWN OF FITCHBURG et al., Appellants-Petitioners, v. CITY OF MADISON, Respondent.

No. 80-980.

Supreme Court of Wisconsin.

Argued Sept. 30, 1980.

Decided Nov. 4, 1980.

Reconsideration Denied Dec. 8, 1980.

Brian E. Butler, Richard K. Nordeng (argued), Kristine A. Euclide, Peter T. Julka, Carolyn P. Lazar and Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief, for appellants-petitioners.

James M. Voss, Asst. City Atty. (argued), with whom on brief, was Henry A. Gempeler, City Atty., for respondent.

CALLOW, Justice.

On this review we are asked to decide whether orders denying a town's motion to dismiss for lack of personal jurisdiction and enjoining a town from incorporating as a city are appealable. We find the injunction order final and thus appealable. But because we also find that the trial court lacked personal jurisdiction over the Town, the order enjoining the incorporation referendum is void.

On March 24, 1980, a petition was filed with the clerk of the Town of Fitchburg (Town) seeking an incorporation referendum pursuant to sec. 60.81, Stats. ¹ Acting upon that petition, the Town passed a resolution on March 31, 1980, setting forth the wards and boundaries of the proposed City of Fitchburg, establishing notice procedures, and fixing the date of the referendum as June 3, 1980. Also on March 24, 1980, a second petition was filed in the Dane County Circuit Court seeking the incorporation of the Town of Fitchburg pursuant to sec. 66.014, Stats. ² Pursuant to sec. 66.014(8)(a), the circuit court established September 15, 1980, as the hearing date on the petition. On April 16, 1980, the City of Madison (City) filed a motion with the circuit court "(f)or leave to intervene as a defendant in opposition to the Petition for the Incorporation of the City of Fitchburg on file herein, under Sec. 803.09(1), Wis.Stats." That motion also sought an order "enjoining the Town of Fitchburg from holding or conducting any referendum by the electors of the Town of Fitchburg on the question of the incorporation of the Town of Fitchburg as a fourth class city, pursuant to Sec. 60.81, Wis.Stats., or any other law, until such time that this court orders an incorporation referendum under Secs. 66.014(9)(f) and 66.018, Wis.Stats." A hearing on this motion was set for May 19, 1980, before Judge Eich.

The Chapter 66 petitioners did not oppose the City's intervention but did oppose the injunction motion on the ground that the Town was not a party to the Chapter 66 proceeding, it had not been served with a summons and complaint, and therefore the court lacked personal jurisdiction over it. In support of this position, the petitioners submitted the affidavits of Douglas W. Morrissette, Town Chairman of the Town of Fitchburg, stating that he had received by mail copies of the City's motion and notice of motion addressed to him in his personal, as opposed to his official, capacity. The petitioners also submitted the affidavit of Ed Lynaugh, Town Clerk of the Town of Fitchburg, stating that he had received by mail copies of the City's motion and notice of motion addressed to him in his official capacity. The petitioners argued that service of these documents was insufficient to confer personal jurisdiction over the Town as personal jurisdiction requires service of a summons and complaint.

On May 14, 1980, the City filed a motion for an order making the Town a party to the proceeding. On May 19, 1980, the Town filed a notice of special appearance to object to the court's jurisdiction. At the May 19 hearing, Judge Eich granted the City's motion to intervene but took under advisement the other motions pending further briefing.

Notwithstanding the absence of service of a summons and complaint, in a memorandum decision dated May 20, 1980, Judge Eich granted the City's motion to make the Town a party. The basis for the decision was that the Chapter 66 proceeding was a special proceeding commenced not by summons and complaint but by petition; that the Town had received copies of the petition and the City's motion papers so it had notice of the matter; and that sec. 803.03(1) (b), Stats., in conjunction with sec. 66.014(5), empowered the court to make the Town a party. Accordingly, the court issued an order, dated May 20, 1980, "that the motion of the City of Madison for an order making the Town of Fitchburg a party to these proceedings be, and the same hereby is, granted, without any further notice to the said Town, copies of the petition and the motions filed with respect thereto by the City of Madison being attached hereto and made a part of this order." The order also established May 22, 1980, for a hearing on the City's motion for a temporary injunction.

On May 20, 1980, the Town filed a notice of special appearance and a motion to dismiss the Town as a party to the proceeding on the grounds of lack of personal jurisdiction, insufficiency of process and insufficiency of service of process. A motion hearing was scheduled for May 28, 1980, to coincide with the hearing on the City's injunction motion. Following the hearing, by order dated May 30, 1980, Judge Eich denied the Town's motion to dismiss and granted the City's motion for an injunction, ordering "that the Town of Fitchburg, its officers and agents are enjoined from conducting any sec. 60.81, Stats., incorporation referendum on June 3, 1980, or any other incorporation referendum, other than as may be ordered by the Court at the conclusion of this proceeding pursuant to sec. 66.018, Stats." In a memorandum accompanying the May 30 order, the court addressed only the injunction question, concluding that the City had standing to challenge the sec. 60.81 incorporation proceeding; that the sec. 60.81 proceeding was not available to the Town because the City is not a city of the first class as required by sec. 60.81; and that the sec. 60.81 proceeding was no longer an independent incorporation proceeding but was assimilated into the Chapter 66 incorporation procedures. ³ On May 30, 1980, the Town and the petitioners filed a joint notice of appeal in which they appealed to the court of appeals that portion of the May 20, 1980, order which made the Town a party, and the whole of the May 30, 1980, order denying the Town's motion to dismiss and enjoining the Town from conducting the sec. 60.81 referendum. Concurrently with the joint notice of appeal, the Town and petitioners filed a motion for relief pending appeal and a petition for a writ of prohibition, both of which were directed toward relieving the Town of the effects of the orders from which it appeals.

The court of appeals, on May 30, 1980, denied the petition for a writ of prohibition. On May 31, 1980, the court of appeals dismissed the notice of appeal, holding that the orders appealed from were nonfinal and nonappealable. The motion for relief pending appeal was also dismissed.

By letter to the court of appeals dated June 2, 1980, the day before the sec. 60.81 referendum had been scheduled to take place, counsel for the Town and the petitioners sought reconsideration of the May 31, 1980, decision on the ground that it was clearly erroneous in failing to take notice of sec. 801.08, Stats., which provides that a trial court's "decision upon a question of jurisdiction shall be by order which is appealable." On June 2, 1980, the court of appeals issued an order declining to modify its May 31, 1980, order, holding that sec. 801.08 must be read in conjunction with sec. 808.03, Stats., and that an order denying a motion to dismiss on jurisdictional grounds is only appealable as a matter of discretion.

We granted review on June 2, 1980, and on July 10, 1980, granted the petitioners' motion to advance the case on our calendar.

I.

Our initial concern is whether the court of appeals erred in dismissing the appeal below. Although the issues before the court of appeals included the appealability of both the May 20 and May 30 orders of the trial court, the Town now appears to challenge the appellate court's decision only as it relates to the appealability of the May 30 orders which denied the Town's motion to dismiss and granted the City's motion to enjoin the sec. 60.81 referendum. The Town's position is that both May 30 orders are final orders appealable as of right since both meet the standards set by this court for testing whether an order is final. The City argues in response that both orders are nonfinal because neither order completely terminates the litigation with respect to any party.

(A)

The question of what constitutes a final order for purposes of an appeal of right has been before this court several times in the recent past. Aparacor v. ILHR Department, 97 Wis.2d 399, 293 N.W.2d 545 (1980); Heaton v. Independent Mortuary Corp., 97 Wis.2d 379, 294 N.W.2d 15 (1980); State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809 (1980); State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980); State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis.2d 98, 288 N.W.2d 125 (1980). These decisions reiterate the substance of sec. 808.03, Stats., recognizing that "(o)rders which '(dispose) of the entire matter in litigation' are appealable by right; all other orders are appealable only by permission." State v. Rabe, supra, 96 Wis.2d at 56, 291 N.W.2d 809.

In Heaton we specifically addressed the question of the appealability of an order denying a motion to dismiss for lack of personal jurisdiction, concluding that such an order is appealable by permission only. "The order does not dispose of the entire matter in litigation; it does not resolve the dispute; it does not preclude further hearing; it does not completely settle the rights of the parties. Indeed the effect of the order is to continue the litigation, not end it." Heaton v. Independent Mortuary Corp., supra, at 396-97, 294 N.W.2d 15. The order denying...