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  • August 30, 2023

    Default Appropriate for Failure to Reply to Complaint Seeking Certiorari

    A circuit court properly entered a default judgment against a county zoning board of appeals that failed to respond to a complaint seeking an order granting a writ of certiorari, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Gavel And A Pen, Each Lying Diagonally Across A Stack of Piles of Papers, Each Pile Neatly Bound With A Clasp

    Aug. 30, 2023 – A circuit court properly entered a default judgment against a county zoning board of appeals that failed to respond to a complaint seeking an order granting a writ of certiorari, the Wisconsin Court of Appeals has ruled.

    In Kurtzweil v. Sawyer County Zoning Board of Appeals, 2022 AP 1577 (July 25, 2023), the Court of Appeals District III held that a summons and complaint is one of three ways to seek certiorari relief under Wisconsin law.

    Resurrected Resort

    Douglas Kurtzweil owns land in Sawyer County that’s adjacent to the Old Arrow Resort. The Old Arrow Resort contains two cabins on a single lot.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Under the county’s zoning ordinance, the cabins are legal non-conforming structures because they were built before the county enacted an ordinance limiting the number of habitable structures per lot to one.

    From 1978 to 2017, the cabins were often unoccupied. Beginning in 2017, the cabins’ owner refurbished them and began operating them as short-term rentals under a new entity, Old Arrow Resort, LLC.

    In July 2021, Kurtzweil asked the county’s zoning department to determine in writing whether renting the two cabins meant the Old Arrow Resort property was being used as a “resort,” as that term is defined in the county’s zoning ordinance.

    Appeal Denied

    In September 2021, the county’s zoning administrator wrote Kurtzweil and said that the county didn’t think that renting two cabins fell within the definition of “resort.”

    Kurtzweil appealed that determination in October 2021.

    After a hearing held by the Sawyer County Zoning Board of Appeals (Board), the zoning administrator’s deputy signed a notice stating that the Board had denied Kurtzweil’s appeal.

    See You in Court

    On May 13, 2022, Kurtzweil filed a complaint in Sawyer County Circuit Court seeking, among other things, an order granting a writ of certiorari and an order reversing the board’s decision.

    On May 16, 2022, the deputy zoning administrator emailed Kurtzweil a document labeled “Decision.”

    On May 24, 2022, Kurtzweil filed an amended complaint, seeking the same relief that he sought in the original complaint. On June 1, 2022, the Board admitted service of the summons, complaint, and amended complaint.

    On July 28, 2022, Kurtzweil moved for a default judgment under Wis. Stat. section 806.02, because the Board failed to respond to his amended complaint within 45 days of admission of service.

    Default Judgment

    The Board argued that it wasn’t required to comply with section 806.02 because Kurtzweil’s action was a writ for certiorari, rather than a complaint requiring a response.

    The circuit court disagreed and granted a default judgment to Kurtzweil. The Board appealed.

    Law Allows Certiorari by Complaint

    Writing for a three-judge panel, Presiding Judge Lisa Stark began her opinion by explaining that while the law disfavors default judgments, the circuit court did not erroneously exercise its discretion in granting Kurtzweil a default judgment.

    Stark pointed out that section 801.02 plainly allows a party to seek a remedy available by certiorari by filing a summons and complaint and serving both on the defendant within 90 days of filing.

    Kurtzweil had followed that procedure, Judge Stark noted, and the Board did not argue that Kurtzweil hadn’t followed the procedure specified in section 801.02.

    Caselaw is Consistent

    Instead, the Board argued that court of appeals caselaw was inconsistent regarding the response required of a defendant in a certiorari proceeding.

    Judge Stark pointed out that the court of appeals had explicitly held in Nickel River Investments v. City of La Crosse Board of Review, 156 Wis.2d, 429, 457 N.W.2d 333 (Ct. App. 1990), that the law allows a party to commence a certiorari action by filing a summons and complaint.

    The Board argued that two court of appeals cases held that: 1) a certiorari proceeding is different in kind from a civil action filed to resolve a dispute; and 2) there is no answer or pleading that joins issue of fact or law in a certiorari proceeding.

    But Stark concluded that the Board’s argument took the holdings of those two cases out of context. Both cases, Judge Stark pointed out, involved a party who had commenced certiorari proceedings by serving a writ instead of using the civil action process under section 801.02(1).

    Supreme Court Case Distinguished

    The Board also argued that in a 1961 case, the Wisconsin Supreme Court held that a return to a writ of certiorari does not contain denials and affirmative defenses like an answer to a complaint does.

    But, Stark pointed out, when that case was decided, actions for certiorari weren’t included in the summons and complaint process established under section 801.02(1), so the case wasn’t on point.

    The Board’s final argument centered on Schwochert v. Marquette County Board of Adjustment, 132 Wis. 2d 196, 389 N.W.2d 841 (Ct. App. 1986). In that case, the court of appeals mistakenly stated that there were only two ways to commence a certiorari proceeding, neither of which included filing a summons and complaint.

    Judge Stark pointed out that the court of appeals withdrew the erroneous dictum from Schwochert four years after the opinion was handed down.

    “We therefore fail to see a good faith basis for the Board’s argument that Schwochert remains a source of confusion 33 years later,” Stark wrote.

    Consequently, Kurtzweil was entitled to reversal of the zoning board of appeals’ decision.

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