Service of unsigned but authenticated summons and complaint not a fundamental defect

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 25, 2011 – A summons and complaint served on a defendant without a signature was a technical defect that did not deprive the circuit court of personal jurisdiction to hear the case, the District II Wisconsin Court of Appeals recently concluded.

Blaise and Karen Mahoney served Menard, Inc. with an unsigned (but authenticated by the court clerk) summons and complaint, but the one filed with the court was signed. Menard filed a motion to dismiss, arguing that failing to sign the served copy was a fundamental defect.

In Mahoney v. Menard, Inc., 2010AP1637 (Aug. 17, 2011), the appeals court disagreed, concluding that “the filing of a signed summons and complaint with the court properly commenced this lawsuit, and the authenticated copy served on Menards gave it sufficient notice to that effect.”

Wis. Stat. section 801.02(1) requires that a summons and complaint served on defendant to be authenticated. The clerk of court authenticated the unsigned copies served on Menard, which argued that authentication requires a signature to ensure the served copies are identical to the ones filed.

The appeals court noted that section 801.02 “says nothing about whether a signature is a condition of proper authentication.” It then reviewed case law to conclude that a signature was not required.

Although authentication gives a defendant assurance that copies served are true copies of filed documents, the appeals court explained, “Menards has not alleged that its copy differed in any substantive way from the original.”

The appeals court referred to Gaddis v. LaCrosse Prod., Inc., 198 Wis. 2d 396, 542 N.W.2d 454 (1996), where the plaintiff served defendant with a signed complaint but unsigned summons. The Wisconsin Supreme Court ruled the defect was technical, not fundamental.

“The [Gaddis] case is significant because it shows the court’s willingness to apply the technical defect analysis to some cases where the letter of § 801.02 may have been violated, but its purpose is fulfilled,” wrote Chief Judge Brown.

The appeals court also distinguished the case from others “where there is a fundamental defect based on the complainant serving a copy of the complaint that is not authenticated.”

“The purpose of the signature requirement was fulfilled in the signed complaint on file with the court,” Chief Judge Brown explained. “We cannot see how the purpose of the authentication requirement in Wis. Stat. § 801.02 was unfulfilled based on this missing signature alone.”