03-0097 Mared Industries, Inc. v. Mansfield

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“The trial court accepted the process server’s testimony that he believed Levy to be an authorized agent of Mansfield. That was reasonable….

“In this case, Levy clearly represented himself to be authorized to accept service on behalf of Mansfield. It was reasonable for the process server to believe that Levy was authorized to do so. Mansfield later claimed, in two sentences of an affidavit attached to a brief filed after a default judgment had been entered against him, that Levy was not his authorized agent. Yet, no testimony or other evidence was introduced at the hearing to disprove the process server’s reasonable belief that Levy was authorized to accept service on behalf of Mansfield. If a process server cannot rely upon repeated confirmations from an individual regarding his or her authority to accept service on behalf of another individual, and a reasonable belief that that person is actually authorized to do so, the option of serving an individual’s authorized agent would be rendered impractical and almost futile. Moreover, under the circumstances, a reasonable process server would have believed Levy’s assertion. He went to the identified business address, spoke to a secretary and told her his purpose. Shortly thereafter, Levy appeared and claimed to be an agent for both parties.”

Accordingly, the trial court erred in vacating the default judgment entered against Mansfield, individually.

However, the trial court did not err in vacating its default judgment against Diamond Blade Warehouse, Inc. because that corporate entity was not properly named or served.

“In the instant case, Mared was attempting to name two parties, but failed to do so. By naming Mansfield individually and ‘d/b/a’ Diamond Blade Warehouse, Mared was really only naming Mansfield in two different ways. ‘[T]he designation, “d/b/a” means “doing business as” and is merely descriptive of the person or corporation who does business under some other name; it does not create or constitute an entity distinct from the person operating the business.’…

“We cannot conclude, as Mared would like us to, that the mistake is an insignificant technicality. The designation “d/b/a” is simply not indicative of a corporate entity; it only renames the party it immediately follows. Thus, to amend the pleadings would effectively add a defendant.”

Affirmed in part, and reversed in part.

Recommended for publication in the official reports.

Dist I, Milwaukee County, White, J., Curley, J.

Attorneys:

For Appellant: Christopher J. Conrad, Brookfield

For Respondent: Glenn L. Udell, Chicago, Ill.; Beth Ann Berger Zerman, Chicago, Ill.; Michael J. Cohen, Milwaukee; Catherine A. Grogan, Milwaukee