795 N.W.2d 482
Wis. Ct. App.2011Background
- Bergstrom and 17 others filed a certiorari action in circuit court challenging a mining reclamation permit issued to Mathy.
- Bergstrom did not properly serve the County or Mathy under Wis. Stat. § 801.11; service was mailed to their attorneys instead of the required officers/officer/agent.
- The circuit court ruled that “special circumstances” allowed personal jurisdiction despite defective service.
- Mathy answered and later moved for judgment on the pleadings asserting lack of personal jurisdiction and improper service.
- The circuit court found Mathy had waived jurisdictional objections under Wis. Stat. § 807.07(1) and exercised PJ over both defendants.
- On appeal, the court of appeals reversed, holding the special circumstances defense does not apply in certiorari actions initiated by summons and complaint and that Mathy did not waive objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether special circumstances can create PJ in a certiorari action. | Bergstrom: special circumstances apply. | Polk County/Mathy: no, it does not apply in this context. | No; special circumstances do not apply in certiorari actions commenced by summons and complaint. |
| If special circumstances exist, whether facts amount to special circumstances. | Bergstrom: facts show agency to accept service by counsel. | County/Mathy: no formal acknowledgment or authority shown. | Facts do not establish special circumstances. |
| Whether Mathy waived jurisdictional objections under Wis. Stat. § 807.07(1). | Bergstrom: Mathy waived by filing an answer before motion to dismiss. | Mathy: no return filed; answer before return cannot constitute waiver; § 807.07(1) requires duly made return. | Mathy did not waive; no duly made return existed at relevant time. |
Key Cases Cited
- Gangler v. Wisconsin Electric Power Co., 110 Wis. 2d 649 (1983) (two recognized special circumstances where agency to accept service is established by attorney’s uncontradicted statements)
- Fontaine v. Milwaukee Cnty. Expressway Comm’n, 143 N.W.2d 3 (1966) (agency to accept service by attorney acknowledged by client’s attorney)
- Dairyland Fuels, Inc. v. State, 237 Wis.2d 467 (2000) (special circumstances where assistant AG directed service to attorney)
- County of Milwaukee v. Labor & Industry Review Comm’n, 418 N.W.2d 35 (1987) (non-condemnation context; questioned extent of special circumstances)
- Morris v. Dep’t of Transp., 258 Wis.2d 816 (2002) (special circumstances where attorney directed not to contact client meaning serving on attorney reasonable)