Schaefer v. Riegelman, 00-2157.

• Decision Date: 27 February 2002
• Docket Number: No. 00-2157.,00-2157.
• Citation: 639 N.W.2d 715,250 Wis.2d 494,2002 WI 18
• Parties: Ronald A. SCHAEFER, Plaintiff-Appellant, v. Robert G. RIEGELMAN, Defendant-Respondent.
• Court: Wisconsin Supreme Court

250 Wis.2d 494

2002 WI 18

639 N.W.2d 715

Ronald A. SCHAEFER, Plaintiff-Appellant, v. Robert G. RIEGELMAN, Defendant-Respondent.

No. 00-2157.

Supreme Court of Wisconsin.

Oral argument November 5, 2001.

Decided February 27, 2002.

For the plaintiff-appellant there were briefs by Robert R. Weinstine and Winthrop & Weinstine, P.A., Minneapolis, MN, and oral argument by Thomas H. Boyd.

For the defendant-respondent there was a brief by Terry E. Johnson, David F. Andres and Peterson, Johnson & Murray, S.C., Milwaukee, and oral argument by Terry E. Johnson.

¶ 1. JON P. WILCOX, J.

In this case we review a summary judgment order of the Racine County Circuit Court, Bruce E. Schroeder, Judge. The circuit court held that because the plaintiff's summons and complaint were signed by an attorney who was not licensed to practice law in Wisconsin, they contained a fundamental defect, which deprived the circuit court of jurisdiction even though the signature was made on behalf of and at the direction of an attorney who was licensed in Wisconsin.

¶ 2. The plaintiff, Ronald Schaefer, attempted to commence a legal malpractice action against Attorney Robert Riegelman. The original summons and complaint were signed by Attorney Julie Fishel on behalf of Attorney Robert R. Weinstine with Weinstine's knowledge and authorization. Weinstine and Fishel were members of the same firm and both were licensed to practice law in Minnesota. However, only Weinstine was licensed to practice law in Wisconsin. Riegelman filed a motion for summary judgment claiming that, because of the defective summons and complaint, the action had not properly been commenced and the court lacked jurisdiction. The circuit court granted Riegelman's motion and found that the defective pleadings deprived the court of jurisdiction. Schaefer appealed and the court of appeals certified the case to this court.

¶ 3. We now affirm the judgment of the circuit court. We conclude that the pleadings were defective, the defect was fundamental rather than technical, and that the defect was not cured by any action taken by the plaintiff. Thus, the circuit court properly granted the defendant's motion for summary judgment based on a lack of jurisdiction.

I

¶ 4. The procedural facts that give rise to this case are not disputed. Schaefer attempted to initiate a legal malpractice claim against Riegelman, alleging that Riegelman had failed to properly draft certain business documents to sufficiently protect Schaefer's interests in a corporation that was being purchased by Schaefer. Schaefer was being represented in the malpractice action by the Minneapolis law firm of Winthrop & Weinstine.

¶ 5. Schaefer's summons and complaint were filed with the Racine County Circuit Court on August 17, 1999. Both documents were signed by Attorney Julie Fishel, who wrote "Robert R. Weinstine (by J.A. Fishel)" above a signature line with the typed name of Robert R. Weinstine and Weinstine's Wisconsin State Bar number below the line. Fishel signed the documents at the express request of Weinstine, who was not available to personally sign them. Both Weinstine and Fishel were employed by the Winthrop & Weinstine firm and both were licensed to practice law in Minnesota. Weinstine was also licensed to practice law in Wisconsin, but Fishel was not. After Schaefer's complaint was filed, Fishel filed a petition in the Wisconsin court to appear pro hac vice. The petition was granted and an admission order was signed by Judge Schroeder on August 31, 1999.

¶ 6. Riegelman filed an answer on September 9, 1999, in which he raised the defenses that the circuit court lacked personal and subject matter jurisdiction because the summons and complaint were defective and, therefore, the case had not been properly commenced. On September 20, 1999, Schaefer filed an amended summons and complaint. The amended summons was signed by Fishel in her capacity as an attorney admitted pro hac vice, but the amended complaint was simply a photocopy of the original complaint. Three days later, Riegelman renewed his affirmative defenses in his answer to the amended complaint.

¶ 7. On May 30, 2000, Riegelman filed a motion with the circuit court for summary judgment. Riegelman argued that the summons and complaint did not comport with Wis. Stat. §§ 801.09 and 802.05 (1999-2000)¹ because Fishel, who signed the complaint, was not licensed to practice law in Wisconsin. Riegelman also contended that Fishel could not legally sign the pleadings on behalf of Weinstine. Riegelman claimed that the defect in the pleadings was fundamental, which deprived the court of jurisdiction and required the court to grant summary judgment.

¶ 8. The circuit court agreed with Riegelman. In a hearing on the summary judgment motion, the court deemed the original summons and complaint defective because they had not been signed by an attorney who was authorized to practice law in Wisconsin. The court noted that at the time the summons and complaint were filed and served, the alleged attorney of record who was licensed in Wisconsin (Weinstine) had not officially appeared or participated in the proceedings under § 802.05(1)(a) because he had not personally signed the pleadings.

¶ 9. The circuit court also held that Fishel's pro hac vice admission did not cure the defect. The court noted that the purpose of pro hac vice sponsorship is to have a licensed attorney accountable to the court. The court found that at the time of filing, no Wisconsin attorney had appeared on the record as a sponsor and pro hac vice status was thus not available to Fishel under SCR 10.03(4). Likewise, the court stated that the amended complaint had not cured the defect because the amended complaint was not truly amended, but rather it was only a photocopy of the original complaint and thus contained the same defect as the original.

¶ 10. The court concluded that the signature on the documents did not comply with the subscription requirements of Wis. Stat. §§ 801.02(1) and 802.05(1)(a), and that the non-compliance constituted a fundamental defect in the pleadings. Because the defect was fundamental, the court held that it lacked jurisdiction and granted Riegelman's motion for summary judgment.

¶ 11. Schaefer appealed the circuit court's decision. Recognizing this issue as one of first impression in Wisconsin, the court of appeals certified the case to this court. We accepted the certification and we now affirm the judgment of the circuit court.

II

[1, 2]

¶ 12. In reviewing a grant of summary judgment, we apply the same methodology used by the circuit court. Baierl v. McTaggart, 2001 WI 107, ¶ 11, 245 Wis. 2d 632, 629 N.W.2d 277. We will hold that summary judgment is appropriate if the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

[3, 4]

¶ 13. Here, we must decide whether there was a defect in Schaefer's pleadings that would deprive the court of jurisdiction and entitle Riegelman to judgment as a matter of law. The plaintiff must secure the court's personal jurisdiction over the defendant by properly serving the summons and complaint on the defendant. Wis. Stat. § 801.04(2)(a); Lak v. Richardson-Merrill, Inc., 100 Wis. 2d 641, 649, 302 N.W.2d 483 (1981). However, if the pleadings contain a fundamental defect, the court will be deprived of jurisdiction. Am. Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992).

[5, 6]

¶ 14. To establish whether or not a pleading is fatally defective, this court uses a two-part test. First, we must ascertain whether there is, in fact, a defect in the pleading. Id. Second, we must determine if the defect is technical or fundamental in nature. Id. If the defect is technical, the court has jurisdiction only if the non-pleading party has not been prejudiced by the defect. Id. If the defect is fundamental, however, the court does not have jurisdiction over the action, regardless of whether or not prejudice exists. Id.

A

[7, 8]

¶ 15. We first address whether the pleadings in this case were, in fact, defective. Whether the subscription requirements have been properly satisfied under the Wisconsin Statutes is a question of statutory interpretation, which we review independently, without deference to the lower courts. Gaddis v. La Crosse Prods., 198 Wis. 2d 396, 401, 542 N.W.2d 454 (1996). The burden is on the party alleged to have filed the defective pleading to show that there was no defect. Id. at 402; Am. Family, 167 Wis. 2d at 533.

[9, 10]

¶ 16. When interpreting a statute, we first look to its plain language. Jadair, Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 195, 562 N.W.2d 401 (1997). If the meaning is clear from the plain language of the statute, we look no further. Id. The relevant statute here, Wis. Stat. § 802.05(1)(a), provides in part:

Every pleading, motion or other paper of a party represented by an attorney ... shall be subscribed with the handwritten signature of at least one attorney of record in the individual's name.... The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.... (emphasis added).

[11]

¶ 17. Section 802.05(1)(a) clearly lays out the basic requirements for a...