Lack of personal service dooms suit

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No “special circumstances” justify excusing a plaintiff suing a county from personally serving the board chairperson or county clerk.

The Wisconsin Court of Appeals held on Jan. 11 that a county’s motion to dismiss for lack of personal jurisdiction was improperly denied, because the plaintiff only mailed copies of the summons and complaint to the county’s corporation counsel. It also held that a corporation was improperly served via its attorney.

Holly Bergstrom and 17 other property owners in Polk County unsuccessfully challenged the county’s issuance of a nonmetallic mining reclamation permit to a subsidiary of Mathy Construction Company.

The owners then sought certiorari review in circuit court, naming the county and Mathy as defendants.

Rather than serve the defendants personally, however, the owners mailed copies to the Polk County corporation counsel and Mathy’s attorney.

In lieu of an answer, the County filed a motion to dismiss. Mathy filed a timely answer, asserting as a defense that the owners failed to properly serve it, and then moved for judgment on the pleadings.

The owners admitted improper service, but argued that service on the attorneys via mail established personal jurisdiction because of “special circumstances.”

The circuit court agreed, and denied the motions to dismiss. Mathy and the County appealed, and the Court of Appeals reversed in a decision by Judge Gregory A. Peterson.

‘Special circumstances’

In special circumstances, a court can excuse defective service. But the court held that no such circumstances were present in this case.

The court noted that, of the five cases discussing “special circumstances,” four arose in condemnation proceedings. The court distinguished them, because sec. 32.05(1) allows service by certified mail in such cases and does not require compliance with the personal service requirements of sec. 801.11.

The fifth case involved a petition for review under Chapter 227, which also does not require compliance with sec. 801.11.

In contrast, sec. 801.11(4)(a)1 expressly requires, in an action against a county, that either the county board chairperson or county clerk be personally served. The statute does not allow service by mail. As a result, the court held the special circumstances exception does not apply in certiorari actions initiated by filing a summons and complaint.

The court further found that special circumstances would not be present in any event, because the defendants’ attorneys did not agree to service on them, rather than their clients.

In Morris v. DOT, 2002 WI App 283, 258 Wis.2d 816, 654 N.W.2d 16, and Dairyland Fuels, Inc. v. State, 2000 WI App 129, 237 Wis.2d 467, 614 N.W.2d 829, the Court of Appeals held that special circumstances existed for that reason.

The County and Mathy, in contrast, did not do so, but instead timely objected to this method of service.

The owners argued that continued communications between the attorneys after the county reached its decision qualified as special circumstances. But the court found these informal communications were not comparable to the formal requests for service in Morris and Dairyland Fuels.

Waiver

The court next held that Mathy did not waive its right to contest personal jurisdiction.

The owners argued that, by filing an answer, Mathy participated in the proceedings and waived its personal jurisdiction objections. But the court disagreed.

The court concluded, “interpreting sec. 807.07(1) in this way would lead to an absurd result, where a defendant, by filing an answer that specifically raises

jurisdictional objections, waives its right to move to dismiss based on those

objections.”

Accordingly, the court reversed the circuit court’s orders denying the motions to dismiss.

What the Court Held

Case: Bergstrom v. Polk County, No. 2009AP2572

Issues: Do special circumstances excuse the failure to personally serve the defendants?

Does filing an answer waive objections based on improper service?

Holdings: No. The special circumstances exception to personal service does not apply to certiorari review of county decisions.

No. It would be absurd to find waiver from an answer specifically alleging improper service.

Attorneys: For Plaintiffs: Richard M. Ihrig, Minneapolis; For Defendants: Malia Theresa Malone, Balsam Lake; Allen A. Arntsen, Michael S. Heffernan, Madison.

David Ziemer can be reached at [email protected]