PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
May 15,
2001
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 00-2416
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
III
Lorie Novak,
Plaintiff-Appellant,
v.
Reginald Phillips and
Gunville Trucking Inc., a
Wisconsin Corporation,
Defendants-Respondents.
APPEAL from an order of the circuit court for Marinette County: TIM A. DUKET,
Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1. HOOVER, P.J. Lorie Novak appeals an order dismissing her case for
failure to properly sign and file her summons and complaint, contrary to Wis. Stat.
§§ 801.09(3) and 802.05(1)(a).1 She contends that a rubber-stamped imprint of
her counsel's handwritten signature satisfies the statute. Alternatively, she argues that even
if it does not satisfy the statute, counsel timely corrected the error. Further, if the error was
not timely corrected, she argues that it is nevertheless merely a technical error that has not
prejudiced the defendants. Finally, she contends that the trial court erred when it denied her
motion to amend her complaint.
¶2. We conclude that a stamped reproduction of a signature does not satisfy
Wis. Stat. §§ 801.09(3) or 802.05(1)(a) and that correcting the signature a year
after receiving notice is not timely under §802.05(1)(a). We further conclude that
although the error is technical, it has prejudiced the defendants. However, because the trial
court applied an improper standard in its analysis of the motion to amend the pleadings, we
remand for it to reexamine this issue.
BACKGROUND
¶3. Novak's employer hired Gunville Trucking, Inc., to teach Novak how to
drive a semi-tractor trailer. Novak brought this action claiming that Reginald Phillips, a
Gunville employee who was supposed to be training her, sexually assaulted and battered her.
She brought this action against Phillips to recover damages resulting from the sexual assault
and battery. She also sued Gunville, alleging that it negligently hired and supervised
Phillips. Novak further alleged that Phillips and Gunville had interfered with her
employment contract and breached their contractual duty to train her.
¶4. Novak's counsel filed a timely summons and complaint and served
authenticated copies upon the defendants. However, the documents bore his rubber-stamped
signature instead of a handwritten signature.
¶5. Both Phillips' and Gunville's answers included an affirmative
defense claiming that the summons was insufficient because it was not subscribed with the
handwritten signature of the plaintiff or plaintiff's counsel.
¶6. One year later, Phillips and Gunville gave Novak's counsel, Paul Poulson,
notice that they intended to file motions to strike the summons and complaint because of the
rubber-stamped signature. Poulson then submitted documents with handwritten signatures
and an affidavit stating that he and another attorney had investigated the claim prior to filing
it. His affidavit further stated that his signature was stamped on the summons and complaint
with his knowledge and permission, with the intent to constitute the certification required
under Wis. Stat. §802.05(1)(a). He testified via affidavit that he had performed all
statutory requirements that the signature was intended to represent.
¶7. Both defendants brought motions to strike based on counsel's failure to
properly subscribe the summons and complaint with his handwritten signature. The court
granted the motion. Novak's counsel orally requested permission to file an amended
complaint pursuant to Wis. Stat. § 802.09. After further briefing, the court denied the
request to amend and dismissed the case. Novak now appeals the order dismissing her claim
and denying her motion to amend the summons and complaint.
ANALYSIS
I. Statutory Framework
¶8. A civil action is commenced in accordance with Wis. Stat.
§801.02(1), which provides:
A civil action in which a personal judgment is sought is
commenced as to any defendant when a summons and a complaint naming the person as
defendant are filed with the court, provided service of an authenticated copy of the summons
and of the complaint is made upon the defendant under this chapter within 90 days after
filing.
¶9. Wisconsin Stat. § 801.09(3) requires
that "[t]he summons shall be subscribed with the handwritten signature of the plaintiff
or attorney ...." This requirement is also applicable to the complaint under Wis. Stat.
§ 802.05(1)(a), which outlines the purpose of a handwritten signature:
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.
However, failure to sign the summons or complaint is
not fatal to the action if it is "signed promptly after the omission is called to the
attention of the pleader or movant." Id. Further, if the defect does
not affect the substantial rights of a party, the court must disregard the error. Wis. Stat.
§805.18(1).
II. Whether the Rubber-Stamped Signature is a Defect
¶10. First, Novak contends that the summons and complaint have no defects.
She contends that the rubber-stamped imprint of her counsel's signature satisfies the statutory
requirements and purpose. We disagree.
¶11. Wisconsin Stat. §802.05(1)(a) unambiguously requires that the
attorney's signature be handwritten, certifying that the case was investigated, is well founded
in fact and law and is not being used to harass the defendants. A rubber stamp affixing a
signature is not a handwritten signature but, rather, is a reproduction of a handwritten
signature.2
¶12. Novak nevertheless cites Kocinski v. Home Ins. Co.,
147 Wis. 2d 728, 433 N.W.2d 654 (Ct. App. 1988), to argue that a rubber-stamped
signature is sufficient to "subscribe" a summons and complaint.
Kocinski held that a rubber-stamped signature satisfied Wis. Stat.
§807.05, which governs stipulations. Kocinski, however, is not
applicable to the instant case because §807.05 only requires that the paper be
"subscribed" by the attorney. On review, the supreme court
stated that "the court of appeals correctly pointed out that the requirement that a name
be 'subscribed' is to be distinguished from the requirement that there be a 'signature.'"
Kocinski v. Kocinski, 154 Wis. 2d 56, 64, 452 N.W.2d 360 (1990).
Wisconsin Stat. §§801.09(3) and 802.05(1)(a) require handwritten signatures.
Kocinski does not govern this case.
¶13. Novak next argues that a stamped signature satisfies dictionary definitions
of "subscribed."3 This
argument fails under Kocinski. Moreover, not only does Wis. Stat.
§805.02(1)(a) require that the summons and complaint to be subscribed with a
"handwritten signature," but Wis. Stat. §990.01(38), further provides:
"If the signature of any person is required by law it shall always be the handwriting of
such person or, if the person is unable to write, the person's mark or the person's name
written by some person at the person's request and in the person's presence." A
stamped signature does not satisfy the §805.02(1)(a) "handwritten
signature" requirement.
III. Was Defect Properly Corrected
¶14. Wisconsin Stat. § 802.05(1)(a) permits an attorney to correct the
signature defect "promptly after the omission is called to the attention of the pleader or
movant." In this case, the defect was not properly corrected under §802.05(1)(a)
because it was not "promptly" corrected. Phillips and Gunville notified Novak's
counsel of the deficiency in their answers to the complaint, but it was not corrected until
almost a year later. Although Novak argues that Phillips and Gunville only challenged the
signature on the summons, the summons and complaint had the same rubber-stamped
signature. We conclude that their answers notified Novak of both the summons' and
complaint's deficiency. Novak makes no argument why a one-year delay should be
considered prompt, and we conclude that it is not.4
IV. Fundamental or Technical Defect
¶15. Next, we examine if the defect is technical or fundamental.
Novak contends that it is a technical defect, while Phillips and Gunville contend that it is
fundamental. We conclude that the failure to personally sign the summons and complaint
was a technical defect.
¶16. Defects in a summons or complaint are either technical or fundamental.
"[W]here the defect is technical, the court has personal jurisdiction only if the
complainant can show the defendant was not prejudiced, and, where the defect is
fundamental, no personal jurisdiction attaches regardless of prejudice or lack thereof."
Gaddis v. La Crosse Prods., 198 Wis. 2d 396, 401-02, 542 N.W.2d 454
(1996). Novak bears the burden of showing that the defect was technical and not prejudicial
to the defendants. Id. at 402. Prejudice is only relevant if Novak has
demonstrated that the error was technical and not fundamental. Id.
¶17. Resolution of this issue requires interpretation of Wis. Stat.
§§801.09(3) and 802.05(1)(a), a question of law. See
Gaddis, 198 Wis. 2d at 401. No party has cited a case directly dealing with
whether rubber-stamped signatures on the summons and complaint are technical or
fundamental defects under §§801.09(3) and 802.05(1)(a). In Dungan v.
County of Pierce, 170 Wis. 2d 89, 95-96, 486 N.W.2d 579 (Ct. App. 1992),
we held that a procedural error involving Wis. Stat. § 801.02 was fundamental and
that errors in content or form are technical. Dungan, 170 Wis. 2d at 96.
Whether the defect is technical or fundamental is resolved by analyzing the purposes of the
statute and the type of action involved. Jadair, Inc. v. United States Fire Ins.
Co., 209 Wis. 2d 187, 208, 562 N.W.2d 401 (1997). If the purpose of the
statutory rule is fulfilled, then we consider the defect to be technical and not fundamental.
Id.
¶18. Dungan observed that service of an
unauthenticated summons and complaint on a defendant before filing it with the trial court
was a fundamental error. Id. at 95. It is also fundamental error when a
plaintiff timely serves an authenticated summons and complaint on a defendant, but that
defendant is not named in the summons, or when the service is not accomplished within the
statutorily prescribed time after filing. American Family Mut. Ins. Co. v. Royal Ins.
Co., 167 Wis. 2d 524, 533-34, 481 N.W.2d 629 (1992). Wisconsin Stat.
§801.02(1) requires a plaintiff to name the defendants in both the summons and
complaint and to serve an authenticated summons and complaint on a defendant within sixty
days of filing them with the court.
¶19. Dungan and Gaddis provide
examples of technical defects. In Dungan, the plaintiff signed the
summons as a pro se party, but designated that the answer be sent to his attorney.
Id. at 94. The court concluded that this error was technical because it did
not frustrate the purpose behind the Wis. Stat. §801.02 requirements.
Id. at 98. A summons failing to direct the defendant to answer within
twenty days was also a technical default. Id. at 96. In
Gaddis, the court held that failure to sign the summons was a technical
defect where all other procedural requirements were met, including an original handwritten
signature on the complaint. Id. at 407. These failures to meet Wis. Stat.
§§801.09 and 809.095 requirements were held to be errors in content and
form.5 See
Gaddis, 198 Wis. 2d at 407.
¶20. The trial court and defendants relied on McMillan-Warner Mut. Ins.
Co. v. Kauffman, 159 Wis. 2d 588, 465 N.W.2d 201 (Ct.
App. 1990). In McMillan, the plaintiff failed to timely serve the
defendants with a signed summons and complaint. Id. at 590; see
also Gaddis, 198 Wis. 2d at 405. McMillan concluded that
the court acquired subject matter jurisdiction or competency to act when a properly
subscribed summons and complaint were filed with the court. Id. at 594.
A plaintiff's failure to serve a defendant in accordance with Wis. Stat. §801.02(1) was
fatal to the claim. Id. The court had not acquired personal jurisdiction
over the defendants before the statute of limitations expired, and the defendants were entitled
to the statutory extinction of the cause. Id.
¶21. Novak distinguishes this case from McMillan in
several ways. First, she argues that McMillan applies a former version of
Wis. Stat. §802.05(1)(a) that did not allow for a missing or inadequate signature to be
cured. Second, Novak contends that the McMillan analysis has been
replaced by Gaddis and Burnett v. Hill, 207 Wis. 2d
110, 557 N.W.2d 800 (1997). 6
¶22. Novak is correct that McMillan applied an earlier
version of Wis. Stat. §802.05(1)(a), which did not give a party an opportunity to
correct a signature defect. See 87 Wis. Act 256. Gunville acknowledges that
§802.05(1)(a) has been amended since McMillan to provide the
opportunity to correct the failure to sign. Gunville contends that the amendment does not
help Novak because she never commenced an action, so § 802.05 was not available to
her. Both defendants contend that Gaddis approved the holding in
McMillan. We disagree.
¶23. Gaddis does not cite McMillan with
approval or disapproval, but rather distinguishes it factually. Gaddis, 198
Wis. 2d at 405. Further, Gaddis does not note or discuss the significance
of the amendment to Wis. Stat. §802.05(1)(a) in light of McMillan.
We see the addition of the defect-correction language in §802.05(1)(a) as the
legislature's response to the McMillan holding that "commencement
requires a properly subscribed summons and complaint," as Novak implicitly
argues.
¶24. Here neither defendant argues that Novak's suit was not well founded,
properly investigated, or otherwise fails to meet the purposes of Wis. Stat.
§802.05(1)(a), except to note that failure to handwrite a signature independently
signifies a failure to meet these requirements. They also do not contend that the summons
failed to notify them of the action against them. The existence of §802.05(1)(a)
demonstrates that the failure to properly sign the summons and complaint is a technical
defect. If it was fundamental, a plaintiff would not have the opportunity to avail himself or
herself of this defect-correcting provision. That §802.05(1)(a) is available
also belies the defendants' and the trial court's position that under
McMillan, no action was commenced because commencement requires a
properly subscribed summons and complaint.
¶25. As indicated, Wis. Stat. §801.02 sets forth what is necessary to
commence an action. A defect in commencing is addressed by a Wis. Stat. §802.06
motion. The court could not consider such a motion if the defendants are correct that a
defective signature means that no action was ever commenced. This position would
renderWis. Stat. §802.05(1)(a) superfluous as to the summons and complaint because a
party could never use it to correct the deficiency. We reject this position. See State ex
rel. Reimann v. Circuit Court, 214 Wis. 2d 605, 619, 571 N.W.2d 385 (1997)
(construction of a statute that renders part of it meaningless must be avoided since courts are
obligated to avoid construction that renders portion of statute superfluous).
V. Prejudice
¶26. Because we conclude that the defect is technical, we must consider
whether it prejudiced the defendants. As stated above, neither defendant argues that the
complaint was not well founded or properly investigated or that the summons failed to notify
them of the action. In fact, because both defendants argued that the defect was fundamental,
neither discussed prejudice.
¶27. Although we consider this a technical defect because it is one that may be
corrected, indeed, without leave of the court if done within six months, Wis. Stat. §
802.09(1), we nevertheless conclude that it was prejudicial. The statutes require a
handwritten signature as a certification under Wis. Stat. §802.05(1)(a). If it is not
initially done properly, the defect must be corrected, or else the certification statute and the
protection it was intended to afford is rendered meaningless. In order to successfully correct
the defect it must done "promptly." When it is not corrected under the statutory
mandate, there is no certification and thus the prejudice.
¶28. Although Novak cites Gaddis to support her contention
that the defect in this case is nonprejudicial error, the defendants in that case conceded that
they were not prejudiced, so the court did not reach the issue. See id. at
407. In Gaddis, the court stated that "where the defect is technical,
the court has personal jurisdiction only if the complainant can show the defendant was not
prejudiced ...." Id. at 401-02. Therefore, where a technical defect
has prejudiced the defendants, the court does not have personal jurisdiction over the
defendants and has discretion to dismiss the complaint. See id.;
Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369,
372, 272 N.W.2d 407 (Ct. App. 1978). However, Novak moved to amend the complaint.
We address that issue next.
VI. Amending the Complaint
¶29. Novak challenges the trial court's decision to deny her request for leave
to amend the summons and complaint. The trial court decided it could not consider Novak's
motion to amend the complaint because the summons and complaint were fundamentally
defective and the court therefore lacked competence to act. We reject this conclusion.
¶30. The defendants cite McMillan and
Jadair to support the proposition that amendment is improper in this case
because the court lacks subject matter jurisdiction. While McMillan
concluded that when the statute of limitation was at issue, Wis. Stat. §
801.02 defects denied the court subject matter jurisdiction, see id. at
593-94, cases occurring later applied a different analysis. See Gaddis,
198 Wis. 2d at 401-02. Additionally, while Jadair concluded that it
lacked jurisdiction and that amendment was improper, it can be distinguished on several
grounds.
¶31. Beginning with American Family, the summons and
complaint defect analysis focuses on whether the court has personal jurisdiction over the
defendant or defendants, and not whether the court has subject matter jurisdiction to make
rulings on the issue. Id. at 527. The defendant in Honeycrest
Farms v. Brave Harvestore Systems, 200 Wis. 2d 256, 261, 546 N.W.2d 192
(Ct. App. 1996), argued, like the defendants in this action, that failure to serve a statutorily
proper summons and complaint deprives the court of subject matter jurisdiction, citing
Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984).
Honeycrest rejected that contention, noting that both state and federal
courts have construed these defects to deny the court personal jurisdiction over the
defendants, but not to divest the court of subject matter jurisdiction. Id.
at 262-63 (citing American Family, 167 Wis. 2d at 533-34; Pusey v.
Dallas Corp., 938 F.2d 498, 501 (4th Cir. 1991);
Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317
(11th Cir. 1990)).
¶32. If the court was without jurisdiction to hear motions for dismissal or
amendment, the statutes providing for these procedures would be meaningless. See
Wis. Stat. §802.06(2)(b) (motions challenging the complaint on any grounds
listed in § 802.06(2)(a) including personal jurisdiction, subject matter jurisdiction, and
insufficiency of summons or process) and §802.09 (amendment);
Reimann, 214 Wis. 2d at 619. Jadair echoed
this sentiment, noting that failure to comply with rules other than the timely filing of a notice
of appeal, did not affect the court's jurisdiction over the appeal and would permit the court to
rule on motions for dismissal, summary reversal, striking of a paper, or the imposition of
penalties or costs. Id. at 212 (citing Wis. Stat. Rule
809.83(2)).7 Because
of the summons' and complaint's prejudicial technical defect in this case, the court failed to
acquire personal jurisdiction over the defendants. See Gaddis, 198 Wis.
2d at 401-02. However, the court has not lost subject matter jurisdiction over the
case.
¶33. We conclude that the trial court has subject matter jurisdiction to
determine whether justice required the court to allow Novak to file an amended summons and
complaint. Wisconsin Stat. § 802.09(1) provides that a court shall freely grant a
request to amend the pleadings "at any stage in the action when justice so
requires." A motion to permit an amendment is left to the court's discretion.
Grothe v. Valley Coatings, 2001 WI App 240, ¶12, 239 Wis.2d 406, 620 N.W.2d 463. Although
Jadair supports denying a motion to amend a notice of appeal when the
defect is fundamental, such as the unauthorized practice of law, id. at
211-12, we have concluded that the defect in this case is technical. If, as it did here, the
trial court applies an erroneous view of the law, it improperly exercises discretion. See
Grothe, 2001 WI App at ¶12.
The case is therefore remanded for the court to determine whether in the proper
exercise of discretion Novak's alternative form of relief should be granted.
By the Court.-Order affirmed in part; reversed in part and cause
remanded with directions. No costs on appeal.
Recommended for publication in the official reports.
1 All references to the Wisconsin Statutes are to the 1999-2000 version.
2 No one argues that Wis. Stat. § 802.05(1)(c) applies to this case. This
subparagraph allows a duplicate signature to satisfy the signature requirement "if a
handwritten signature appears on the original document and the signing party or his or her
attorney retains the original document." Wis. Stat. § 802.05(1)(c).
3 Novak contends that we should interpret "subscribed" to mean "to give
consent to (something written); to bind oneself to by writing one's name beneath; as, parties
subscribe a covenant or contract; a man subscribes a bond or articles
of agreement [or] to support; to consent to; to favor; to sanction," quoting Webster's
New 20th Century Dictionary (2d ed.)
4 Novak also argues that Phillips has waived his right to challenge the summons and
complaint because he failed to raise the defense in his initial motion to strike. However, his
motion was brought under Wis. Stat. § 802.06(6), while the subsequent motion to
dismiss was brought under Wis. Stat. §§ 801.02(1) and 802.05(1)(a). He
contends that §802.06(7), which requires a party to consolidate defenses pled under
§ 802.06, does not bar a motion under §§ 801.02(1) and 802.05(1)(a).
Novak does not reply to this argument. We therefore deem it conceded. See Charolais
Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d
493 (Ct. App. 1979).
5 We recognize that Gaddis v. La Crosse Prods., 198 Wis. 2d 396, 407,
542 N.W.2d 454 (1996), declined to make a bright-line rule that all defects under Wis. Stat.
§801.09 are technical.
6 Burnett v. Hill, 207 Wis. 2d 110, 557 N.W.2d 800 (1997), analyzed whether
a defect in service by publication deprived the court of personal jurisdiction. It did not
interpret Wis. Stat. §802.05(1)(a) and does not assist our interpretation of that section
as amended. Novak also argues that that the plaintiff in McMillan-Warner Mut.
Ins. Co. v. Kauffman, 159 Wis. 2d 588, 465 N.W.2d 201 (Ct. App. 1990), did
not sign the summons and complaint at all, nor did it have leave to file a second amended
complaint. By contrast, here the defendants contest Novak's original summons and
complaint and Novak's counsel stamped his signature and provided an affidavit that the
purposes of §802.05(1)(a) were intended to be satisfied by the stamped signature.
Because we resolve the issue on other grounds, we need not address these arguments.
See State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App.
1989).
7 Jadair, Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208, 562
N.W.2d 401 (1997), can further be distinguished because it analyzed Wis. Stat. Rules
809.10(1)(b) and 809.83 to interpret its jurisdiction. These rules apply specifically to appeals
and are not at issue in this case.
Return to wisbar.org
Wisconsin Court of Appeals
![[WP]](/art/caselaw/wp.gif){kind=small}