Chapter 801

801.07(4) (4) When the action is to declare property within this state a public nuisance.

801.07(5) (5) When the action is an action affecting the family under s. 767.001 (1) (a) to (d) and when the residence requirements of s. 767.301 have been met, a court having subject matter jurisdiction may exercise jurisdiction quasi in rem to determine questions of status if the respondent has been served under s. 801.11 (1). Notwithstanding s. 801.11 (intro.), the court need not have grounds for personal jurisdiction under s. 801.05 in order to make a determination of the status of a marriage under this subsection.

801.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 597 (1975), 758; 1977 c. 418; 1979 c. 32 s. 92 (4); 1979 c. 352 s. 39; 1993 a. 213; 2001 a. 42; 2005 a. 443, s. 265.

801.07 Annotation This section requires that in rem actions under s. 161.555 [now s. 961.555] must be commenced against a person having an interest in property seized under s. 161.55 [now s. 961.55]. State v. One 1973 Cadillac, 95 Wis. 2d 641, 291 N.W.2d 626 (Ct. App. 1980).

801.07 Annotation For quasi in rem jurisdiction under sub. (5), minimum contacts between the defendant and the state are necessary. Mendez v. Hernandez-Mendez, 213 Wis. 2d 217, 570 N.W.2d 563 (Ct. App. 1997), 96-1731.

801.07 Annotation Sub. (3) applies when a settlement offer is made at least 20 days before trial. When a dispute is resolved by arbitration, there is no trial and sub. (3) does not apply. Lane v. Williams, 2000 WI App 263, 240 Wis. 2d 255, 621 N.W.2d 922, 00-0852.

801.07 Annotation It is apparent that the legislature intended to empower the courts with the authority to determine the status of a marriage even if personal jurisdiction over one of the parties is lacking. In adding the final sentence of sub. (5), the legislature chose not to remove the requirement of personal jurisdiction for determinations involving other property or status subject to jurisdiction under this section. Had the legislature intended to remove the requirement of personal jurisdiction for divorce decisions involving property, it could have written the amendment more expansively. Montalvo v. U.S. Title & Closing Services, LLC, 2013 WI App 8, 345 Wis. 2d 653, 827 N.W.2d 635, 12-0102.

801.07 Annotation Discussing the minimum contacts standard for quasi in rem jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).

801.07 Annotation Posting a notice of eviction on an apartment door did not satisfy minimum requirements of due process. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249 (1982).

801.08 801.08 Objection to personal jurisdiction.

801.08(1) (1) All issues of fact and law raised by an objection to the court’s jurisdiction over the person or property as provided by s. 802.06 (2) shall be heard by the court without a jury in advance of any issue going to the merits of the case. If, after such a hearing on the objection, the court decides that it has jurisdiction, the case may proceed on the merits; if the court decides that it lacks jurisdiction, the defendant shall be given the relief required by such decision.

801.08(2) (2) Factual determinations made by the court in determining the question of personal jurisdiction over the defendant shall not be binding on the parties in the trial of the action on the merits.

801.08(3) (3) No guardian or guardian ad litem may, except as provided in this subsection, waive objection to jurisdiction over the person of the ward. If no objection to the jurisdiction of the court over the person of the ward is raised pursuant to s. 802.06 (2), the service of an answer or motion by a guardian or guardian ad litem followed by a hearing or trial shall be equivalent to an appearance and waiver of the defense of lack of jurisdiction over the person of the ward.

801.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); 1979 c. 110 s. 60 (7); Sup. Ct. Order, 101 Wis. 2d xi.

801.08 Note Judicial Council Note, 1981: The last sentence of sub. (1) has been repealed because it erroneously implied that non-final orders deciding jurisdictional questions were appealable as of right. This has not been true since ch. 187, Laws of 1977 repealed s. 817.33 (3) (f), Wis. Stats. (1975) and created s. 808.03 (1), Wis. Stats. (1977). Heaton v. Independent Mortuary Corp. 97 Wis. 2d 379, 294 N.W.2d 15 (1980). [Re Order effective July 1, 1981]

801.08 Annotation A jurisdiction dispute may not be resolved on motion. Merco Distributing Corp. v. O&R Engines, Inc., 71 Wis. 2d 792, 239 N.W.2d 97 (1976).

801.08 Annotation An order denying a motion to dismiss for lack of personal jurisdiction is appealable by permission under s. 808.03 (2). Heaton v. Independent Mortuary Corp., 97 Wis. 2d 379, 294 N.W.2d 15 (1980).

801.08 Annotation An order denying a motion to dismiss based on jurisdiction under sub. (1) is not a final order and is not appealable as of right under s. 808.03 (1). Grulkowski v. DOT, 97 Wis. 2d 615, 294 N.W.2d 43 (Ct. App. 1980).

801.08 Annotation The trial court erred in denying the plaintiff’s request for an evidentiary hearing. The plaintiff has no burden to prove jurisdictional facts prior to a hearing. Henderson v. Milex Products, Inc., 125 Wis. 2d 141, 370 N.W.2d 291 (Ct. App. 1985).

801.08 Annotation Conducting pretrial discovery does not constitute “going to the merits of the case” under sub. (1) and does not waive an objection raised under s. 802.06 (2). Honeycrest Farms, Inc. v. Brave Harvestore Systems, Inc., 200 Wis. 2d 256, 546 N.W.2d 192 (Ct. App. 1996), 95-1789.

801.09 801.09 Summons, contents of. The summons shall contain:

801.09(1) (1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, the standardized description of the case classification type and associated code number as approved by the director of state courts and the names and addresses of the parties to the action, plaintiff and defendant.

801.09(2) (2) A direction to the defendant summoning and requiring defendant to serve upon the plaintiff’s attorney, whose address shall be stated in the summons, either an answer to the complaint if a copy of the complaint is served with the summons or a demand for a copy of the complaint. The summons shall further direct the defendant to serve the answer or demand for a copy of the complaint within the following periods:

801.09(2)(a) (a)

801.09(2)(a)1. 1. Except as provided in subds. 2. and 3., within 20 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.

801.09(2)(a)2. 2. If the defendant is the state or an officer, agent, employee, or agency of the state, as to that defendant, within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.

801.09(2)(a)3. 3. Within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant, if any of the following applies:

801.09(2)(a)3.a. a. A defendant in the action is an insurance company.

801.09(2)(a)3.b. b. Any cause of action raised in the complaint is founded in tort.

801.09(2)(b) (b) Within 40 days after a date stated in the summons, exclusive of such date, if no such personal or substituted personal service has been made, and service is made by publication. The date so stated in the summons shall be the date of the first required publication.

801.09(3) (3) A notice that in case of failure to serve an answer or demand for a copy of the complaint within the time fixed by sub. (2), judgment will be rendered against the defendant according to the demand of the complaint. The summons shall be subscribed with the handwritten signature of the plaintiff or attorney with the addition of the post-office address at which papers in the action may be served on the plaintiff by mail, plaintiff’s or attorney’s telephone number, and, if by an attorney, the attorney’s state bar number, if any. If the plaintiff is represented by a law firm, the summons shall contain the name and address of the firm and shall be subscribed with the handwritten signature and state bar number, if any, of one attorney who is a member or associate of such firm. When the complaint is not served with the summons and the only relief sought is the recovery of money, whether upon tort or contract, there may, at the option of the plaintiff, be added at the foot a brief note specifying the sum to be demanded by the complaint.

801.09(4) (4) There may be as many authenticated copies of the summons and the complaint issued to the plaintiff or counsel as are needed for the purpose of effecting service on the defendant. Authentication shall be accomplished by the clerk’s placing a filing stamp indicating the case number on each copy of the summons and the complaint.

801.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); Sup. Ct. Order, 67 Wis. 2d viii; 1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi; Sup. Ct. Order, 171 Wis. 2d xxv; 1993 a. 365, 486; 1997 a. 133, 187; 2001 a. 16; 2005 a. 442.

801.09 Cross-reference Cross-reference: See s. 802.06 (1) for a provision giving the state 45 days to serve an answer.

801.09 Note Judicial Council Note, 1983: Sub. (2) (a) is amended by applying the extended response time for state officers and agencies to state agents and employees as well. The extended time is intended to allow investigation of the claim by the department of justice to determine whether representation of the defendant by the department is warranted under s. 893.82 or 895.46, Stats. [Re Order effective July 1, 1983]

801.09 Annotation When a defective summons does not prejudice the defendant, non-compliance with sub. (2) (a) is not jurisdictional error. Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, Inc., 86 Wis. 2d 369, 272 N.W.2d 407 (Ct. App. 1978). See also Flanagan v. Stumble Inn LLC, 2023 WI App 31, 408 Wis. 2d 532, 992 N.W.2d 867, 22-0584.

801.09 Annotation Failure to name a party in the summons means that the court has no authority over that party regarding the case. Prejudice need not be shown. Bulik v. Arrow Realty, Inc., 148 Wis. 2d 441, 434 N.W.2d 853 (Ct. App. 1988).

801.09 Annotation An unsigned summons served with a signed complaint is a technical defect, which in the absence of prejudice does not deny the trial court personal jurisdiction. Gaddis v. La Crosse Products, Inc., 198 Wis. 2d 396, 542 N.W.2d 454 (1996), 94-2121.

801.09 Annotation A stamped reproduction of a signature does not satisfy sub. (3), and correcting the signature a year after receiving notice of the defect is not timely under former s. 802.05 (1) (a), 1999 stats. The error must be promptly corrected, or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips, 2001 WI App 156, 246 Wis. 2d 673, 631 N.W.2d 635, 00-2416. But see Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, 00-2157.

801.09 Annotation A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, 00-2157.

801.09 Annotation Default judgment entered immediately after the trial court permitted amendment of the pleadings to correct the defendant’s name was void because the original summons and complaint named the wrong corporate entity, the defendant’s parent. The general rule is that, if a misnomer or misdescription does not leave in doubt the identity of the party intended to be sued or, even when there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit, and a judgment taken by default is enforceable. However, if the amendment is to bring in a new party, it will be refused. Johnson v. Cintas Corp., 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549.

801.09 Annotation A wholly owned subsidiary of a corporation is a legal entity that exists independently of the parent. The failure to name the subsidiary in a summons and complaint when the subsidiary was the correct party constituted a fundamental defect that precluded the circuit court of personal jurisdiction over the subsidiary, regardless of whether or not the defect prejudiced the subsidiary. It was irrelevant that the summons and complaint was served upon the registered agent for the subsidiary and the subsidiary might have had knowledge that it was meant to be a party. Johnson v. Cintas Corp., 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549.

801.09 Annotation When a defect in a summons is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced. When a defect is fundamental, no personal jurisdiction attaches regardless of prejudice. In this case, the summons incorrectly indicated that the answers were due in 20 days, as opposed to 45 days. That error was a mere technical defect and, absent prejudice to the defendants, would not result in a dismissal on the basis of a lack of personal jurisdiction. Flanagan v. Stumble Inn LLC, 2023 WI App 31, 408 Wis. 2d 532, 992 N.W.2d 867, 22-0584.

801.09 Annotation That the plaintiff’s publication summons in this case used the updated caption from the amended complaint was of no legal significance. Wisconsin law requires only that the publication summons be substantially in the form detailed in s. 801.095 (4). The updated caption reflected the correct state of the parties at the time of publication and service, and the defendants did not point to any confusion or prejudice they could possibly have suffered by use of an accurate caption, which included each of them, while omitting other persons no longer being pursued in the litigation. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.095 801.095 Summons form. The summons shall be substantially in one of the forms specified in subs. (1) to (4). The applicable form depends on the type of service and on whether a complaint is served with the summons, in accordance with s. 801.09. The forms are:

801.095(1) (1) Personal service; complaint attached.

STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY

A. B.

Address

City, State Zip Code File No. ....

, Plaintiff

vs. S U M M O N S

C. D.

Address .... (Case Classification Type): .... (Code No.)

City, State Zip Code

, Defendant

THE STATE OF WISCONSIN, To each person named above as a Defendant:

You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is attached, states the nature and basis of the legal action.

Within (20) (45) days of receiving this summons, you must respond with a written answer, as that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you.

If you do not provide a proper answer within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.

Dated: ...., .... (year)

Signed: .... ....

A. B., Plaintiff

or

E. F., Plaintiff’s Attorney

State Bar No.: ....

Address: ....

City, State Zip Code: ....

Phone No: ....

801.095(2) (2) Personal service; no complaint attached.

STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY

A. B.

Address

City, State Zip Code File No. ....

, Plaintiff

vs. S U M M O N S

C. D.

Address .... (Case Classification Type): .... (Code No.)

City, State Zip Code

, Defendant

THE STATE OF WISCONSIN, To each person named above as a Defendant:

You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you.

Within (20) (45) days of receiving this summons, you must respond with a written demand for a copy of the complaint. The demand must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you.

If you do not demand a copy of the complaint within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.

Dated: ...., .... (year)