Leonzal v. Dairyland Ins. Co.

• Decision Date: 06 December 2022
• Docket Number: 2021AP621
• Parties: Byron K. Leonzal, Plaintiff-Respondent, v. Dairyland Insurance Company, ABC Insurance Company (Unknown Insurance Company), Wisconsin Mutual Insurance Company, DEF Insurance Company (An Unknown Insurance Company) and Albert L. Douglas, Defendants, Unitedhealthcare of Wisconsin Incorporated, Unitedhealthcare Insurance Company, Children's Community Health Plan, Incorporated and Cigna Health and Life Insurance Company, Involuntary-Plaintiffs, RBJ Restaurant Group Limited Liability Company, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Byron K. Leonzal, Plaintiff-Respondent,

Unitedhealthcare of Wisconsin Incorporated, Unitedhealthcare Insurance Company, Children's Community Health Plan, Incorporated and Cigna Health and Life Insurance Company, Involuntary-Plaintiffs,
v.
Dairyland Insurance Company, ABC Insurance Company (Unknown Insurance Company), Wisconsin Mutual Insurance Company, DEF Insurance Company (An Unknown Insurance Company) and Albert L. Douglas, Defendants,

RBJ Restaurant Group Limited Liability Company, Defendant-Appellant.

No. 2021AP621

Court of Appeals of Wisconsin, District I

December 6, 2022

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Milwaukee County: No. 2020CV2673 PEDRO COLON, Judge. Reversed and cause remanded with instructions.

Before Donald, P.J., Dugan and White, JJ.

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Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 RBJ Restaurant Group LLC (RBJ) appeals the non-final order denying a motion to dismiss for insufficient service of the summons and complaint.^[1] We conclude that the circuit court applied the improper standard of law when it found that service was made in accordance with WIS. STAT. § 801.11(5); accordingly, we reverse and remand with instructions to grant RBJ's motion to dismiss.

BACKGROUND

¶2 This appeal arises solely out of a question of law and we will not recite the facts relating to the underlying claims in the case. On April 12, 2020, Leonzal filed a summons and complaint against RBJ, a Papa Johns franchise owner. RBJ's principal place of business in the summons and complaint was an address on South 3rd Street in Milwaukee. RBJ's registered agent was listed as Rodney Robinson, located at an address on West North Avenue in Wauwatosa.

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¶3 On October 14, 2020, RBJ filed a motion to dismiss for insufficient service, pursuant to WIS. STAT. § 802.06(2)(a).^[2] The record reflected that two service attempts were made, both on April 29, 2020. In the first, the process server, Shannon Gutierrez, attempted to serve RBJ via registered agent Robinson at the North Avenue address in Wauwatosa. However, Gutierrez noted that he spoke with an employee at the North Avenue store who stated that RBJ no longer owned the business and directed him to a Papa Johns store on West Wells Street in Milwaukee. In the second attempt, Gutierrez was directed to serve RBJ via registered agent Robinson at the West Wells Street address; he attested that RBJ was served at 3:00 p.m., via personal service upon "MARVIN JOHNSON as EMPLOYEE/AUTHORIZED" of RBJ.

¶4 After additional briefing, the circuit court conducted an evidentiary hearing on March 10, 2021, at which Gutierrez, Robinson, and Johnson each testified. Gutierrez testified that he spoke with the manager on duty at the North Avenue Papa Johns store and learned that RBJ no longer owned the store, but that Robinson and RBJ instead were at the West Wells Street Papa Johns store. He understood that the person he spoke to was not an employee of RBJ. He went to the West Wells Street Papa Johns store, where he asked Johnson if Robinson was at the store and whether Robinson owned the store. Gutierrez stated that Johnson told him that Robinson owned the store, he was not available, but would be back later, and that Johnson "was authorized to accept and he was a manager."

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Gutierrez did not ask Johnson if Robinson was an officer, director or managing agent of RBJ, or if this location was Robinson's office. He testified that he was attempting to serve RBJ's registered agent when he went to both the North Avenue Papa Johns and the West Wells Street Papa Johns.

¶5 The second witness was Robinson, who testified that he was the president, CEO, and managing member of RBJ. He testified he was the only member of the LLC that lived in Wisconsin and he maintained its only office in Wisconsin at his personal residence in an apartment on South 3rd Street. Robinson stated that RBJ owned the Wells Street store, but he did not maintain an office there. He explained that Johnson was a shift manager/hourly employee at the Wells Street store, and he was not authorized to accept service of process for RBJ. Robinson testified that RBJ previously owned the North Avenue Papa Johns store and that address was provided to the Wisconsin Department of Financial Institutions (DFI) as the address of RBJ's registered agent. He acknowledged that RBJ sold the North Avenue store and did not update the address of RBJ's registered agent with DFI, which meant that at the time of the attempted service, the wrong address was listed for Robinson as the registered agent of RBJ.

¶6 The final witness was Johnson, who testified that he was an hourly shift lead/manager at the Wells Street Papa Johns store, which was owned by RBJ. He testified that Sam Rekowski was the general manager of the store and he reported to her. Johnson stated that Robinson did not have an office at the Wells Street store, had never had an office there, and had no set schedule to visit the store. He recalled Gutierrez coming by while he was doing pizza preparation in the back, he accepted a letter for Robinson from him, but he did not know the letter was a legal document. Johnson did not recall Gutierrez saying he was there to serve legal documents on Robinson or RBJ. Johnson regularly accepted

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packages and mailings for the store, but not legal documents. He did not look at the papers that Gutierrez gave him, put them on the desk in the general manager's office within the store, and did not think about them again until Robinson contacted him during this litigation.

¶7 After testimony and arguments by counsel, the circuit court made an oral ruling, concluding that service of process was accomplished because Gutierrez showed "reasonable diligence" based on the available information, as was required. The court noted he went to two locations and he asked Johnson questions about who was in charge. The court stated that Johnson's "recollections were not as clear" as Gutierrez's testimony. Then, RBJ's counsel asked the court to clarify its ruling as to the objective test for service. The court stated that Gutierrez went to the registered agent's address on DFI's website and was told the store was sold two years earlier. The court stated that "a Papa Johns restaurant was the principal office for purposes of agency on ... the day that the [DFI] documents were filed." The court continued that it was reasonable for Gutierrez to consider another Papa Johns restaurant as the "principal office" of RBJ because the DFI-listed address was a restaurant. The circuit court denied RBJ's motion to dismiss. RBJ filed a petition for leave to appeal with this court, which we granted.

DISCUSSION

¶8 RBJ appeals from the non-final order of the circuit court denying its motion to dismiss for lack of jurisdiction due to insufficient service. The circuit court ruled that it had personal jurisdiction over RBJ because the process server acted with reasonable...