July 11, 2023 – A property owner seeking to appeal a special assessment failed to properly serve a notice of appeal on the village because it failed to serve the village clerk, the Wisconsin Supreme Court has ruled.
In Greenwald Family Limited Partnership v. Village of Mukwonago, 2023 WI 53 (June 21, 2023), the supreme court held (4-3) that a statement from the village’s attorney that he would accept service for the village did not obviate the need for the property owner to serve the village clerk.
Justice Ann Walsh Bradley wrote the majority opinion, joined by Justice Rebecca Dallet, Justice Brian Hagedorn, and Justice Jill Karofsky. Chief Justice Annette Ziegler dissented, joined by Justice Patience Roggensack and Justice Rebecca Bradley.
Village Attorney Accepts Service
In 2019, the Village of Mukwonago (Village) created a special assessment district and levied special assessments against property inside the district’s boundaries. One of those properties was owned by Greenwald Family Limited Partnership (Greenwald).
Greenwald challenged the assessment by filing a summons and complaint in the Waukesha County Circuit Court.
Greenwald’s attorney emailed both the Village’s attorney and the Village clerk one day after filing to the summons and complaint in the circuit court.
In the email, which was addressed to the Village’s attorney, Greenwald’s attorney asked if the Village’s attorney could accept service for the Village. The Village’s attorney replied, and said that “we will admit service, please forward that to me.”
Greenwald’s attorney then emailed the summons and complaint, as well as an admission of service of summons and complaint, to the Village’s attorney.
The Village’s attorney signed the admission and emailed it back to Greenwald’s attorney.
Several weeks later, Greenwald’s attorney emailed the Village’s attorney a copy of the notice of appeal, to be provided to the Village clerk under Wis. Stat. section 66.0703(12)(a).
The Village then filed a motion to dismiss in circuit court, arguing that the court lacked subject matter jurisdiction because Greenwald had failed to serve a written notice of appeal on the Village clerk.
The circuit court granted the motion. Greenwald appealed but the Wisconsin Court of Appeals affirmed, holding that under section 66.0703(12)(a), Greenwald was required to serve the Village clerk.
Two Service Statutes
Justice A.W. Bradley began her opinion for the majority by concluding that section 66.0703(12)(a) required Greenwald to serve written notice of appeal on the Village clerk.
Greenwald argued that it properly served the Village by emailing the notice of appeal on the Village’s attorney, under section 801.14(2), which says
Under that section, if a party is represented by an attorney, service “shall be made upon the attorney unless service upon the party in person is ordered by the court.”
But Justice A.W. Bradley pointed out that nothing in section 66.0703(12)(a) pointed to section 801.14(2). She also noted that the legislature has enacted separate statutes that specify when persons must follow the procedures listed in chapter 801.
A.W. Bradley acknowledged that the legislature needn’t always point directly to chapter 801. However, she wrote, “although we do not rest our conclusion on this omission, the lack of a directive informs our discussion.”
“We are mindful of the maxim that if the legislature wanted to give such a directive, it certainly knows how to do so,” Justice A.W. Bradley wrote.
Clerk not a Party to Lawsuit
Greenwald also argued that section 801.14(2) applied because the Village’s clerk was a party to the action. In support of that proposition, Greenwald cited part of a footnote from a court of appeals case.
But that was too broad a reading of the case, A.W. Bradley concluded.
“It is readily apparent from the quotation in [the court of appeals case] that the term ‘party’ there is used in the colloquial sense, referring generally to an entity,” Justice A.W. Bradley wrote.
“Surely all municipal employees do not become parties to legal proceedings against a municipality by virtue of their employment.”
Statute Is Unambiguous
Greenwald also argued that section 66.0703(12) was ambiguous because it lacked a definition for the term “serve,” and therefore the statute should be construed liberally in its favor.
But the lack of such a definition did not render the statute ambiguous, A.W. Bradley concluded.
“The statute unambiguously requires service of a notice of appeal upon the clerk, meaning that something must be presented or delivered to the clerk,” Justice A.W. Bradley wrote.
Acceptance by Attorney Not Sufficient
A.W. Bradley concluded that acceptance by the Village’s attorney didn’t obviate the requirement that Greenwald serve the Village clerk under section 66.0703(12).
“The Village attorney accepted service of the summons and complaint on behalf of the defendant Village only,” Justice A.W. Bradley wrote. “He never told Greenwald’s attorney that he was accepting such service on behalf of the clerk as well.”
Ziegler Dissent: Service Requirements are Flexible
In her dissent, Chief Justice Ziegler argued that section 66.0703(12) wasn’t the only statutory method for serving the notice of appeal on the Village.
She pointed out that under section 801.11(4)(b), a party may serve anyone who “is apparently” able to receive process.
“It is difficult to see how [section 801.11(4)(b)] is not satisfied by service on the Village’s attorney,” Ziegler wrote.
She also pointed out that under section 801.18(5)(d), a party may serve a municipality “by some other method,” if the responding party consents.
“The majority opinion departs from the law and common sense,” Chief Justice Ziegler wrote.
She also pointed out that the response from the Village’s attorney to the initial email from Greenwald’s attorney left Greenwald’s attorney in a tough spot.
“If he instead serves the Village clerk, ignoring the Village attorney’s instruction to serve him and that he would accept service for the Village, consequences could ensue,” Ziegler wrote.
“An attorney is expected to communicate through counsel … The majority opinion creates unnecessary conflict and uncertainty for lawyers who should be able to accept service for their clients.”