Greenwald Family Limited Partnership v. Village of Mukwonago ( 2023 )

2023 WI 53SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP69-FT
COMPLETE TITLE: Greenwald Family Limited Partnership and Darwin
Greenwald,
Plaintiffs-Appellants-Petitioners,
v.
Village of Mukwonago,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
(2022 – unpublished)
OPINION FILED: June 21, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 20, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Lloyd Carter
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Joseph R. Cincotta and the Law Offices of Joseph
R. Cincotta, Shorewood. There was an oral argument by Joseph R.
Cincotta.
For the defendant-respondent, there was a brief filed by
Remzy D. Bitar, Adam J. Meyers, Gregory M. Procopio, and
Municipal Law & Litigation Group, S.C., Waukesha. There was an
oral argument by Remzy D. Bitar.
An amicus curiae brief was filed by Maria Davis and Claire
Silverman for the League of Wisconsin Municipalities.
2
2023 WI 53NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP69-FT
(L.C. No. 2020CV494)
STATE OF WISCONSIN : IN SUPREME COURT
Greenwald Family Limited Partnership and Darwin
Greenwald,
Plaintiffs-Appellants-Petitioners,
FILED
v. JUN 21, 2023
Village of Mukwonago, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioners, Greenwald
Family Limited Partnership and Darwin Greenwald (collectively,
Greenwald), seek review of an unpublished order of the court of
appeals that affirmed the circuit court's dismissal of the
defendant, Village of Mukwonago, due to improper service of a
No. 2021AP69-FT
notice of appeal.1 Greenwald contends that dismissal is not
appropriate in this special assessment appeal because it
satisfied the requirement of Wis. Stat. § 66.0703(12)(a)(2019-
20)2 to "serve a written notice of appeal upon the clerk."
¶2 Specifically, Greenwald advances that Wis. Stat.
§ 801.14(2) controls the manner of service that we must apply
here because the failure of Wis. Stat. § 66.0703(12)(a) to
define "serve" renders it ambiguous. The Village argues to the
contrary, contending that § 801.14(2) does not apply because the
clerk is not a "party" to the proceedings. It additionally
asserts that § 66.0703(12)(a) is unambiguous and requires strict
compliance such that Greenwald's failure to serve the clerk
mandates dismissal of the case.
¶3 We conclude that the clerk is not a party to the
proceeding, and thus Wis. Stat. § 801.14(2) does not apply.
Additionally, like the court of appeals, we determine that Wis.
Stat. § 66.0703(12)(a) is unambiguous. The statute's plain
meaning mandates service of written notice on the Village clerk,
which Greenwald did not accomplish. Therefore, Greenwald's
failure to comply with § 66.0703(12)(a) requires dismissal of
this action.
Greenwald Fam. Ltd. P'ship v. Village of Mukwonago, No.
1
2021AP69-FT, unpublished order (Wis. Ct. App. Feb. 16, 2022)
(summarily affirming the order of the circuit court for Waukesha
County, Lloyd Carter, Judge).
All subsequent references to the Wisconsin Statutes are to
2
the 2019-20 version unless otherwise indicated.
2
No. 2021AP69-FT
¶4 Accordingly, we affirm the decision of the court of
appeals.
I
¶5 In order to provide context for the legal questions
presented, we set forth an abbreviated recitation of the
underlying facts, describing the procedural steps that were
taken, and those not taken.
¶6 Greenwald owns properties in the Village of Mukwonago.
In 2019, the Village voted to create a special assessment
district and levied special assessments against properties
included within this district. At least one of Greenwald's
properties was located in the special assessment district.
¶7 Greenwald challenged the special assessment. Its
complaint alleged jurisdiction "pursuant to Wis. Stats. §
66.0703(12) governing the right to appeal special assessments
and other applicable law."
¶8 In commencing its challenge, Greenwald filed first a
summons and complaint in the circuit court. The next day,
Greenwald's attorney emailed the Village attorney and the clerk
of the Village. The email was addressed to the Village attorney
and asked if the attorney could "accept service for the
Village." The clerk was not included on any subsequent email
communications.
¶9 The Village attorney responded to Greenwald's
attorney, stating, "Yes we will admit service, please forward
that to me at this point[.]" Greenwald's attorney sent back an
email with copies of the summons and complaint, along with a
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No. 2021AP69-FT
template denominated "Admission of Service of Summons and
Complaint." The Village attorney signed this document, which
stated: "I am counsel for the Defendant Village of Mukwonago in
this action and have received and admit service of an
authenticated copy of the summons and complaint on behalf of the
Defendant," and emailed it back to Greenwald's attorney.
¶10 Weeks later, Greenwald's attorney again emailed the
Village attorney. This email message stated, "Attached is a
copy of a notice relative to the Special Assessment matter.
This is also being mailed to your office by regular mail."
Greenwald's attorney additionally attached a cover letter to
this email that stated:
Regarding this matter, I have enclosed a Notice of
Appeal to be provided to the Clerk of the Village in
accordance with Wis. Stats. 66.0703(12). Also a check
in the amount of $150.00 to serve as a bond for costs.
You have already admitted service of the actual court
filing and so I gather that the Clerk has actual
notice of [Greenwald]'s appeal of the special
assessment. Please let me know if the Village has any
objection to this filing. Or requires further action
by Plaintiff to be in compliance with the bond
requirement.
¶11 In response, the Village filed a motion to dismiss.3
It argued that because Greenwald did not serve a written notice
of appeal on the Village clerk, the circuit court lacked subject
matter jurisdiction or competency to proceed. The motion also
alleged that Greenwald failed to comply with the specific bond
3 Wis. Stat. §§ 801.04(1); 802.06(2)(a)2.
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No. 2021AP69-FT
requirements.4 Ultimately, the circuit court granted the motion
and dismissed the action.
¶12 Greenwald appealed and the court of appeals summarily
affirmed the circuit court's order. Greenwald Fam. Ltd. P'ship
v. Village of Mukwonago, No. 2021AP69-FT, unpublished order
(Wis. Ct. App. Feb. 16, 2022). The court of appeals unanimously
concluded that Wis. Stat. § 66.0703(12)(a) unambiguously
requires service of a written notice of appeal upon the clerk
and that Greenwald's failure to comply with this statute
requires dismissal of the complaint. It further disposed of
Greenwald's reliance on Wis. Stat. § 801.14(2) as misplaced
because "the Village clerk is not and never was a party" to this
case. Id. at 3. Greenwald petitioned for this court's review.
II
¶13 We are called upon to review the court of appeals'
decision summarily affirming the circuit court's order granting
the Village's motion to dismiss. Whether a motion to dismiss
was properly granted is a question of law that this court
reviews independently of the determinations rendered by the
circuit court and court of appeals. Town of Lincoln v. City of
Whitehall, 2019 WI 37, ¶21, 386 Wis. 2d 354, 925 N.W.2d 520.
¶14 This review requires us to interpret several Wisconsin
statutes. The interpretation of a statute presents a question
of law that we review independently of the determinations of the
Compliance with the statutory bond requirements, Wis.
4
Stat. § 66.0703(12)(a), is not at issue in this case and we do
not address it.
5
No. 2021AP69-FT
circuit court and court of appeals. Sw. Airlines Co. v. DOR,
2021 WI 54, ¶16, 397 Wis. 2d 431, 960 N.W.2d 384.
¶15 In our examination we employ tools of statutory
interpretation that provide guiding principles for our inquiry.
"[T]he purpose of statutory interpretation is to determine what
the statute means so that it may be given its full, proper, and
intended effect." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "We
assume that the legislature's intent is expressed in the
statutory language." Id.¶16 "In construing or interpreting a statute the court is
not at liberty to disregard the plain, clear words of the
statute." Id., ¶46. If the text of the statute is plain and
unambiguous, our inquiry may stop there. Id., ¶45.
III
¶17 It is clear from the plain language of Wis. Stat.
§ 66.0703(12)(a) that in order to file an appeal from a special
assessment, the clerk must be served.5 That much is not in
dispute. Rather, what is in dispute is the manner in which such
service may be achieved.
¶18 The Village argues service upon the clerk was not
accomplished here because nothing was ever actually served on
5From the outset, the dissent misstates the issue,
resulting in a skewed focus. In its very first paragraph, the
dissent states: "At issue is whether legal documents were
properly served on the Village." Dissent, ¶49. This is not the
issue. Rather, the issue is whether the clerk has been served
in a manner consistent with Wis. Stat. § 66.0703(12)(a).
6
No. 2021AP69-FT
the clerk. Greenwald, on the other hand, contends that service
was accomplished in a manner consistent with Wis. Stat.
§ 801.14(2) when it emailed the notice of appeal to the Village
attorney.
¶19 In resolving this case, we look first to the texts of
the relevant statutes and then address each of Greenwald's
arguments in turn. Ultimately, we determine, for the reasons
set forth below, that Wis. Stat. § 66.0703(12)(a) controls and
that Greenwald's failure to comply with its unambiguous mandate
requires dismissal of this action.
A
¶20 We begin our inquiry by examining the text of the
relevant statutes. The linchpin of Greenwald's argument is that
Wis. Stat. § 801.14(2) applies, providing the manner of service
that we must employ here. It reaches this assertion in part by
arguing that Wis. Stat. § 66.0703(12)(a) is ambiguous because
"serve" is not defined.
¶21 Accordingly, we set forth first the text of Wis. Stat.
§ 801.14(2). It provides in relevant part:
Whenever under these statutes, service of pleadings
and other papers is required or permitted to be made
upon a party represented by an attorney, the service
shall be made upon the attorney unless service upon
the party in person is ordered by the court.
§ 801.14(2) (emphasis added).
¶22 Next, we look to Wis. Stat. § 66.0703(12)(a), which
establishes the right of a person with an interest in land
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No. 2021AP69-FT
affected by the determination of a governing body to appeal the
determination to the circuit court:
A person having an interest in a parcel of land
affected by a determination of the governing body,
under sub. (8)(c), (10) or (11), may, within 90 days
after the date of the notice or of the publication of
the final resolution under sub. (8)(d), appeal the
determination to the circuit court of the county in
which the property is located. The person appealing
shall serve a written notice of appeal upon the clerk
of the city, town or village. . . .
§ 66.0703(12)(a) (emphasis added). Once the notice of appeal is
served on the clerk, the statute delineates tasks that the clerk
must undertake:
The clerk, if an appeal is taken, shall prepare a
brief statement of the proceedings in the matter
before the governing body, with its decision on the
matter, and shall transmit the statement with the
original or certified copies of all the papers in the
matter to the clerk of the circuit court.
Id.
¶23 In examining the text of the statutes, we keep in mind
that "[t]he plain meaning of statutory language is generally the
'"common," "ordinary," "natural," "normal," or dictionary
definition[ ]' of a term." Wilcox v. Est. of Hines, 2014 WI 60,
¶25, 355 Wis. 2d 1, 849 N.W.2d 280. Therefore, in our
examination, we may "consult a dictionary in order to guide our
interpretation of the common, ordinary meanings of words,"
Stroede v. Soc'y Ins., 2021 WI 43, ¶12, 397 Wis. 2d 17, 959
N.W.2d 305, as would the average reader.
8
No. 2021AP69-FT
B
¶24 Greenwald argues that Wis. Stat. § 801.14(2), which
applies to civil actions generally, controls the resolution of
this case. It contends that service was accomplished consistent
with that statute when it emailed the notice of appeal to the
Village attorney.
¶25 At the outset we observe that there is no directive in
Wis. Stat. § 66.0703(12)(a) that points to the application of
Wis. Stat. § 801.14(2). The legislature has in certain
instances specifically directed individuals to follow the
procedures laid out in chapter 801.
¶26 For example, Wis. Stat. § 74.37(2)(b)5., providing for
a claim for an excessive tax assessment, directs an individual
filing an appeal to serve a claim "on the clerk of the taxation
district, or the clerk of the county that has a county assessor
system, in the manner prescribed in s. 801.11(4)." See also
Wis. Stat. § 125.12(2)(d) (an individual seeking judicial review
of the revocation or suspension of an alcohol license must serve
pleadings "on the municipal governing body in the manner
provided in ch. 801"); Wis. Stat. § 893.80(1d)(a) (an individual
bringing a claim against a governmental body or officers,
agents, or employees is required to serve a written notice of
the claim under § 801.11). There is no such directive in
§ 66.0703(12)(a).
¶27 Admittedly, the legislature need not always explicitly
point to ch. 801 in order for it to apply and this opinion
should not be taken to invoke such a requirement. Nevertheless,
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No. 2021AP69-FT
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.
¶28 Having examined what Wis. Stat. § 801.14(2) does not
direct, we turn to examine its language and discern what it
actually directs: if a party to the proceeding is represented,
service on that party can be accomplished by service on the
attorney. § 801.14(2) ("Whenever under these statutes, service
of pleadings and other papers is required or permitted to be
made upon a party represented by an attorney, the service shall
be made upon the attorney unless service upon the party in
person is ordered by the court.").6 It follows that if the clerk
The dissent asserts in conclusory fashion that Wis. Stat.
6
§ 801.14(2) applies. See Dissent, ¶69. It advances that
"Wisconsin Stat. § 801.14(2) appears to require that Greenwald
serve the Village attorney, not the Village clerk." Id.
However, the dissent fails to address whether the municipal
clerk is a "party represented by an attorney," such that
§ 801.14(2) would require service upon the attorney here.
Absent the conclusion that the clerk is a party (a conclusion
the dissent does not reach), the dissent fails to explain how
§ 801.14(2) could apply.
In contrast to the conclusory assertion above, the bulk of
the dissent's statutory analysis applies § 801.11(4). The
obvious problem for the dissent is that Greenwald never briefed
or argued that statue below. Accordingly, neither the circuit
court nor the court of appeals considered it. We first see
§ 801.11 in Greenwald's reply brief in this court.
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No. 2021AP69-FT
of the Village is a party to this proceeding, then service of
the notice of appeal may be satisfied by serving the clerk's
attorney.
¶29 This begs the question: is the clerk a party to the
proceeding? The word "party" in the context of a legal
proceeding is commonly defined as "[a] person or group involved
in a legal proceeding as a litigant," Party, American Heritage
Dictionary of the English Language 1321 (3d ed. 1992), or "one
(as a person, group, or entity) constituting alone or with
others one of the sides of a proceeding, transaction, or
agreement." Party, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/party (last visited
June 12, 2023). Greenwald says yes, that the clerk is a party
"because the Clerk is part of the party at issue, the Village."
¶30 At oral argument, Greenwald's attorney repeatedly
returned to the language of Wis. Stat. § 66.0703(12)(a),
emphasizing that the written notice of appeal must be served
upon the clerk of the municipality. In its briefing, it also
attempted to draw support from Outagamie County v. Town of
Greenville, 2000 WI App 65, 233 Wis. 2d 566, 608 N.W.2d 414, to
emphasize the relationship between the clerk and the
Generally, "issues not raised or considered by the circuit
court will not be considered for the first time on appeal."
McKee Fam. I, LLC v. City of Fitchburg, 2017 WI 34, ¶32, 374
Wis. 2d 487, 893 N.W.2d 12. Similarly, "arguments raised for
the first time in reply briefs are generally not addressed'"
Paynter v. ProAssurance Wis. Ins. Co., 2019 WI 65, ¶108, 387
Wis. 2d 278, 929 N.W.2d 113.
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No. 2021AP69-FT
municipality. Greenwald highlighted a portion of a footnote
stating, "[c]ertainly, the better procedure is for an aggrieved
party to first file its notice of appeal with the circuit court
and then serve the notice on the appropriate party——here, the
town clerk." Id., ¶12 n.3. Greenwald appears to conclude based
on this footnote that the clerk is a "party" to this special
assessment challenge.
¶31 However, Greenwald reads too much into the use of the
word "party" in this footnote. It is readily apparent from the
quotation in Outagamie County that the term "party" there is
used in the colloquial sense, referring generally to an entity.
If, as Greenwald contends, clerks can be defined as parties
solely because they are part of the party at issue, then anyone
who is part of the Village could also be classified as a party
to the proceeding. Surely all municipal employees do not become
parties to legal proceedings against a municipality by virtue of
their employment.
¶32 Similarly, Greenwald also reads too much into the use
of the word "of" in Wis. Stat. § 66.0703(12)(a). The language
of § 66.0703(12)(a) requires service "upon the clerk of the
city, town or village." This language does not name the clerk
as a representative of the municipality. Rather, it merely
states the job title of the person who must be served.
¶33 Municipal clerks, while playing a vital role in the
functioning of local government, neither determine special
assessments nor impose or enforce special assessments.
Additionally, Greenwald asserts that the clerk is the
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No. 2021AP69-FT
"representative" or the "official representative" of the Village
body politic, but cites no authority for the proposition that in
this context the clerk is synonymous with the Village. Put
simply, the fact that the legislature designated the clerk as
the official upon whom a notice of appeal must be served does
not transform the clerk into a party to the lawsuit.
¶34 Indeed, Greenwald's preferred construction of the term
"party" in Wis. Stat. § 801.14(2) considerably broadens this
term. Such a construction would lead to conflicting statutory
obligations, resulting in confusion to the bar and public.
¶35 We are in accord with the admonition advanced in the
helpful amicus curiae brief of the League of Wisconsin
Municipalities that warns of the confusion that would result
from Greenwald's statutory interpretation:
Construing "party" under § 801.14(2) to include a
clerk simply by virtue of being a municipal officer
tasked with receiving the notice of appeal will
completely redefine and substantially broaden the term
"party," and place the mandatory requirements of §§
801.14(2) and § 66.0703(12)(a) directly in conflict.
Such a broad definition would lead to confusion and
potentially open a Pandora's box of competing
obligations.
¶36 Ultimately, we conclude that the clerk is not a party
to the proceeding and thus Wis. Stat. § 801.14(2) does not
apply. Such application would broaden the term "party" and
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No. 2021AP69-FT
place the two statutory provisions in conflict, causing
unnecessary confusion.7
C
¶37 We turn next to Greenwald's claims of ambiguity. It
argues that Wis. Stat. § 66.0703(12)(a) is ambiguous because
"serve" is not defined. Accordingly, it advances that if
procedural language is ambiguous, it must be liberally construed
to permit a determination on the merits. See DOT v. Peterson,
226 Wis. 2d 623, 633, 594 N.W.2d 765 (1999).
¶38 In examining Wis. Stat. § 66.0703(12)(a)'s plain
language, several requirements are readily apparent from the
text. First, a person seeking an appeal under § 66.0703(12)(a)
must file within 90 days after the date of notice or publication
of the final resolution. Second, and most importantly for our
purposes, the text indicates that one of the steps required for
appeal is serving a written notice of appeal "upon the clerk."
This requirement is important because, as the statute continues,
the clerk must commence with administrative tasks related to the
appeal: preparing a brief statement of the proceedings and
transmitting the statement with all relevant materials to the
7 The Village additionally contends that Wis. Stat.
§§ 66.0703 and 801.14 conflict and that because § 801.14 is
general and § 66.0703 is more specific, the latter must control.
See Belding v. Demoulin, 2014 WI 8, ¶17, 352 Wis. 2d 359, 843
N.W.2d 373 ("In the event of 'a conflict between a general and a
specific statute, the latter controls.'"). However, because we
conclude that the clerk is not a party, and Wis. Stat. § 801.14applies to parties only, it is not necessary to reach this
argument.
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No. 2021AP69-FT
clerk of the circuit court. These obligations are unambiguous
and readily discernable by anyone examining the text of the
statute.
¶39 The fact that "serve" is not defined does not compel a
finding of ambiguity. "[A] statute is ambiguous if it is
capable of being understood by reasonably well-informed persons
in two or more senses." Kalal, 271 Wis. 2d 633, ¶47. Our goal in
statutory interpretation is to ascertain the meaning of a
statute. Id. It is not to search for ambiguity. Id. The
statute unambiguously requires service of a notice of appeal
upon the clerk, meaning that something must be presented or
delivered to the clerk. That did not happen here and therefore
Greenwald's argument in favor of liberal construction due to
ambiguity is unavailing.
¶40 Greenwald turns to the rules of civil procedure
because, it claims, "[i]nitiating a circuit court challenge to a
special assessment" is unclear and that filing and service of a
summons and complaint is equivalent to filing and service of the
notice of appeal. It relies on Mayek v. Cloverleaf Lakes
Sanitary Dist. #1, 2000 WI App 182, 238 Wis. 2d 261, 617 N.W.2d
235, for this assertion of ambiguity.
¶41 In Mayek, the plaintiff challenged a special
assessment by filing a summons and complaint with the circuit
court and, importantly, served it on the clerk. Id., ¶2. The
defendant argued that the plaintiff's actions in serving the
clerk with the summons and complaint did not pass muster because
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No. 2021AP69-FT
a summons and complaint is not the same as a notice of appeal.
Id., ¶3.
¶42 The court of appeals concluded that Wis. Stat.
§ 66.60(12) (1997-1998),8 the predecessor statute to
§ 66.0703(12)(a), was ambiguous. Id., ¶5. The language was
determined to be ambiguous because "[a]lthough § 66.60(12)(a)
sets forth a process to initiate an appeal of a special
assessment, it does not fully describe that
process. Specifically, it does not prescribe how the appeal is
to be filed in the circuit court." Id. (internal citation
omitted). Thus, plaintiff's construction of the statute was
reasonable and his "summons and complaint challenging an
assessment constitute[d] a notice of appeal for purposes of
complying with Wis. Stat. § 66.60(12)." Id., ¶25.
¶43 However, Mayek is inapplicable to the situation at
hand. In Mayek, the plaintiff actually served the summons and
complaint on the clerk. Id., ¶2. In this case, Greenwald
served the summons and complaint on the Village attorney only.
Although, as explained in Mayek, there may be ambiguity
describing how the appeal is to be filed in the circuit court,
there is no ambiguity in describing the requirement that the
The statute at issue, Wis. Stat. § 66.0703(12)(a), was
8
renumbered and amended in 1999. 1999 Wis. Act 150, § 532.
According to the legislative drafting file, amendments to
chapter 66 were "nonsubstantive, editorial changes that
modernize the language," and "primarily a technical project to
make ch. 66 more useful to those who refer to it." Drafting
File, 1999 Wis. Act 150, Legislative Reference Bureau, Madison,
Wis.
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No. 2021AP69-FT
clerk must be served with a notice of appeal. As expressed
above, serving the Village attorney here does not constitute
serving the clerk. Hence, although the Mayek plaintiff
fulfilled his statutory obligations to serve the clerk,
Greenwald did not.
D
¶44 Finally, we turn to Greenwald's remaining argument
that because the Village attorney initially admitted service of
the summons and complaint, the attorney was then obligated to
accept delivery of future filings.9 The Village rebuts this
argument by asserting that even though the Village attorney
admitted service of the summons and complaint, he did so on
behalf of the Village governing body and not the clerk.
¶45 We agree that the Village attorney's act of admitting
service after the first email does not obviate Greenwald's
statutory obligation pursuant to Wis. Stat. § 66.0703(12)(a) to
serve a notice of appeal upon the clerk in this special
assessment appeal. The Village attorney's response to the first
email did not in any way imply that he represented the clerk.
Importantly, the email that Greenwald's attorney sent asked the
Village attorney if he would "accept service for the Village."
9 At oral argument several avenues of potential relief were
advanced by the court. Specifically suggested were the timeline
of filing a notice of appeal, see Wis. Stat. § 66.0703(12)(a),
as well as ethical obligations to refrain from contact with a
person represented by counsel. See SCR 20:4.2. However,
because those theories were neither briefed here nor argued
below, we do not address them.
17
No. 2021AP69-FT
The Village attorney accepted service of the summons and
complaint on behalf of the defendant Village only. He never
told Greenwald's attorney that he was accepting such service on
behalf of the clerk as well. Thus, § 66.0703(12)(a) still
requires Greenwald to serve a written notice of appeal upon the
clerk, which it did not accomplish.
¶46 Requiring compliance with procedural statutes can
sometimes yield difficult results. Yet "[c]ompliance with the
statutory provisions prescribing the manner for proceeding in
the circuit court serves the public policy of maintaining an
orderly and uniform way of conducting court business." Aiello
v. Village of Pleasant Prairie, 206 Wis. 2d 68, 72, 556 N.W.2d
697 (1996).
¶47 In sum, we conclude that the clerk is not a party to
the proceeding, and as such, Wis. Stat. § 801.14(2) does not
apply. Additionally, like the court of appeals, we determine
that Wis. Stat. § 66.0703(12)(a) is unambiguous. The statute's
plain meaning mandates service of written notice on the Village
clerk, which Greenwald did not accomplish. Therefore,
Greenwald's failure to comply with § 66.0703(12)(a) requires
dismissal of this action.
¶48 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2021AP69-FT.akz
¶49 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I
dissent because the majority incorrectly concludes that Darwin
Greenwald and Greenwald Family Limited Partnership (collectively
"Greenwald") cannot challenge the levying of a special
assessment against Greenwald's property because its attorney
sent the pertinent service documents to the Village's attorney,
as instructed, rather than to the clerk. At issue is whether
legal documents were properly served on the Village. The facts
of this case are fairly unremarkable in that it is undisputed
the Village attorney, who asked to be served the documents and
who accepted service of the documents, was served. Greenwald
initially notified, in the same email, both the Village clerk
and the Village attorney that Greenwald had filed suit and
inquired who should be served with the documents. Specifically,
Greenwald, through counsel, asked them both if the Village
attorney "can accept service for the Village." The Village
attorney replied to Greenwald alone, removing the clerk from the
email, and said he "will admit service" for the Village. The
Village clerk was also not included on future emails, including
the emails that served the legal documents.1 Now the Village
argues that its attorney is not authorized to accept service,
despite the attorney specifically accepting and admitting
service for the Village. It was the attorney who removed the
1It is undisputed that Greenwald thereafter sent the
Village attorney both a summons and complaint and a document
titled "notice of appeal," all within the 90-day statutory time
limit. Either set of documents can serve as a notice of appeal
to the Village, and the Village attorney received both.
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clerk from the email, indicating to Greenwald's counsel that
further communication with the clerk was to go through Village
counsel. Attorneys accept service on behalf of their clients on
a regular basis. This is nothing new.
¶50 To determine how to properly "serve" the Village under
Wis. Stat. § 66.0703(12)(a), one must look to Wis. Stat. ch. 801
governing service in civil cases. Under Wis. Stat. § 801.11(4),
personally serving the president or clerk is an option for
serving a municipality. But the Village was represented by
counsel, who agreed to accept service, and Greenwald was
therefore not wrong to serve the Village attorney under Wis.
Stat. § 801.14(2). In fact, that statute may require that the
attorney be served instead of the clerk. At a minimum, there is
flexibility in the service requirements under the relevant
statutes. As further example, one may instead serve whoever "is
apparently" able to receive process. § 801.11(4)(b). It is
difficult to see how that is not satisfied by service on the
Village's attorney. One may also serve a municipality "by some
other method" with the responding party's written consent. Wis.
Stat. § 801.18(5)(d). Again, given that the Village attorney
asked for and accepted service on behalf of the Village, how
isn't that satisfied? Greenwald successfully served the Village
under either of these provisions. The Village attorney branded
himself as the person "apparently" able to receive process. His
email accepting service also constituted consent on behalf of
the Village to accept service in the manner it was received. As
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a result, Greenwald properly served the Village in conformance
with § 66.0703(12)(a), and its lawsuit should proceed.
¶51 The majority, nonetheless, concludes Greenwald's claim
must be dismissed because it was the Village attorney instead of
the non-attorney Village clerk who received the documents. The
majority opinion departs from the law and common sense. Serving
the Village attorney, like serving the Village clerk, here
constitutes service of the Village itself. The Village
attorney, like the Village clerk, represents the Village to
receive process. Not every village may be in a position to have
a known attorney who can accept service, and the statutes
provide a process for serving villages without attorneys. But
that process is not exclusive. Greenwald properly served the
Village, relying on counsel's acceptance of service. Do we
really expect lawyers to serve counsel and also serve
represented parties for fear that counsel will later somehow
argue that they were not qualified to accept service for their
client? The majority does. I would not. Importantly, the law
does not dictate such a result.
I. FACTUAL BACKGROUND
¶52 On March 17, 2020, Greenwald filed a complaint in
Waukesha County circuit court challenging the Village of
Mukwonago's special assessment of Greenwald's property.
According to the complaint, Greenwald owns "properties located
in or adjacent to the Village of Mukwonago." The complaint
alleged that in 2019, the Village established a special
assessment district that included several of Greenwald's
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properties. The Village mailed Greenwald a notice of the final
resolution on January 16, 2020. Greenwald alleged the Village's
special assessment was unlawful because "[t]he planned
improvements are not needed or wanted by [Greenwald] and more
importantly will not benefit [its] properties," and because the
Village "impose[d] [the] special assessment against properties
located [in] and governed by the Town of Mukwonago, not the
Village."
¶53 Greenwald's response to the Village's motion to
dismiss included several emails Greenwald exchanged with Village
officials. On March 18, 2020, Greenwald sent an email with the
subject line, "RE: GFLP et al v. Village 20-CV-494 – Special
Assessment" to the Village attorney and the Village clerk.
Another attorney, who also represented the Village, was copied
on the email. The email states, "[A]ttached are copies of a new
case file[d] yesterday regarding the Chapman Blvd Special
Assessment. Please let me know if you can accept service for
the Village."
¶54 The Village attorney replied to Greenwald's email two
days later, stating, "Yes we will admit service, please forward
that to me at this point." The Village attorney copied the
other attorney for the Village on this reply email, but he
removed the Village clerk from the email. The Village clerk was
not included on any further emails.
¶55 Greenwald's attorney replied by email on March 23,
2020. He sent copies of the summons and complaint along with a
template for admission of service. The Village attorney signed
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the admission of service and returned it to Greenwald the next
day. The admission states, "I am counsel for the Defendant
Village of Mukwonago in this action and have received and admit
service . . . on behalf of the Defendant." The Village attorney
also signed the admission, listed his title as "Attorney for
Defendant," and included his state bar number.
¶56 On April 9, 2020, Greenwald sent a notice of appeal to
the Village attorney both by mail and email. It included a
cover letter confirming that the Village clerk received notice
and requesting that the Village attorney notify Greenwald of any
deficiencies. In lieu of filing a responsive pleading, the
Village filed a motion to dismiss based on Greenwald's failure
to personally serve the Village clerk a notice of appeal.
II. STANDARD OF REVIEW
¶57 This case presents a question of statutory
interpretation, which we review de novo. Nowell v. City of
Wausau, 2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852.
"[S]tatutory interpretation 'begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.'" State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting
Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612
N.W.2d 659). "Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. "[S]tatutory language is
interpreted in the context in which it is used; not in isolation
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but as part of a whole; in relation to the language of
surrounding or closely-related statutes . . . ." Id., ¶46.
¶58 "Statutes are closely related when they are in the
same chapter, reference one another, or use similar terms."
State v. Reyes Fuerte, 2017 WI 104, ¶27, 378 Wis. 2d 504, 904
N.W.2d 773.
Any word or phrase that comes before a court for
interpretation is . . . part of an entire corpus
juris. So, if possible, it should no more be
interpreted to clash with the rest of that corpus than
it should be interpreted to clash with other
provisions of the same law.
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 252 (2012).
III. ANALYSIS
¶59 The law does not require that the Village clerk be
served even though the Village attorney represented that he
would accept service for the Village. The issue in this case is
whether Greenwald satisfied its obligation to "serve a written
notice of appeal upon the clerk of the . . . [V]illage" under
Wis. Stat. § 66.0703(12)(a). The statute provides in relevant
part,
A person having an interest in a parcel of land
affected by a determination of the governing body,
under sub. (8)(c), (10) or (11), may, within 90 days
after the date of the notice or of the publication of
the final resolution under sub. (8)(d), appeal the
determination to the circuit court of the county in
which the property is located. The person appealing
shall serve a written notice of appeal upon the clerk
of the city, town or village and execute a bond to the
city, town or village in the sum of $150 with 2
sureties or a bonding company to be approved by the
city, town or village clerk, conditioned for the
faithful prosecution of the appeal and the payment of
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all costs that may be adjudged against that person.
The clerk, if an appeal is taken, shall prepare a
brief statement of the proceedings in the matter
before the governing body, with its decision on the
matter, and shall transmit the statement with the
original or certified copies of all the papers in the
matter to the clerk of the circuit court.
§ 66.0703(12)(a). The statute prescribes the procedures
property owners must follow in order to challenge special
assessments. "Procedural statutes are to be liberally construed
so as to permit a determination upon the merits of the
controversy if such construction is possible." Kincyl v.
Kenosha County, 37 Wis. 2d 547, 555-56, 155 N.W.2d 583 (1968).
¶60 There are no exacting requirements as to the form the
notice of appeal must take, but a summons and complaint can
serve as a notice of appeal.2 Mayek v. Cloverleaf Lakes Sanitary
Dist. No. 1, 2000 WI App 182, ¶¶8-9, 238 Wis. 2d 261, 617
N.W.2d 235. The statute requires that a property owner must
"serve" a notice of appeal, but it does not answer how one
achieves service. It does not require any one method. Nowhere
does Wis. Stat. ch. 66 define the term "serve," nor does it
establish procedures for accomplishing service. Though "serve"
is a common term in legal parlance,3 it is further defined
elsewhere. Specifically, the procedures for service are
For this reason, any distinction between Greenwald's email
2
sending the summons and complaint, and the email sending the
notice of appeal, is immaterial.
See Serve, Black's Law Dictionary 1643 (11th ed. 2019)
3
("[t]o make legal delivery of (a notice or process)"; "[t]o
present (a person) with a notice or process as required by
law"); Serve, The American Heritage Dictionary of the English
Language 1649 (3d ed. 1992) ("[t]o deliver or present (a writ or
summons)"; "[t]o present such a writ to").
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prescribed in Wis. Stat. ch. 801 concerning commencement of an
action and venue.4
¶61 Upon examining Wis. Stat. ch. 801, it becomes clear
why Wis. Stat. § 66.0703(12)(a) states a property owner must
serve a notice of appeal upon the clerk of the municipality.5
Wisconsin Stat. § 801.11(4) states the manner for serving a
summons for "political corporations or bodies politic,"
including counties, towns, cities, technical college districts,
school districts and boards, and villages. Under § 801.11(4),
one serves a political corporation or other body politic "by
personally serving any of the specified officers, directors, or
agents." For actions against a village, the statute specifies
"the president or clerk thereof." Id. Not every village may
have an attorney, but every village does have a president and a
clerk. See Wis. Stat. §§ 61.24-25.
¶62 This illuminates why Wis. Stat. § 66.0703(12)(a)
states property owners "shall serve a written notice of appeal
upon the clerk of the city, town or village." It is because
service upon the clerk is itself service upon the municipality.
Wisconsin Stat. § 801.11(4) says as much, equating service upon
4 Speaking out both sides of its mouth, the majority
recognizes "the legislature need not always explicitly point to
ch. 801 in order for it to apply," yet claims Wis. Stat.
§ 66.0703's "lack of a directive informs [its] discussion."
Majority op., ¶27. The term "serve" is a part of the whole
corpus juris, and we should not do violence upon our consistent
and coherent system of laws by ignoring that fact.
5 Interestingly, the majority does not engage or quarrel
with the reasoning I employ. It merely jumps to my conclusions
and says it disagrees. See majority op., ¶¶17 n.5, 28 n.6.
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the clerk with service upon the municipality. After all,
municipalities are not themselves natural persons who may
themselves receive personal service. They are creatures of
statute. See City of Madison v. Town of Fitchburg, 112
Wis. 2d 224, 240, 332 N.W.2d 782 (1983) ("It is well settled
that a municipality[ is] a creature of the
legislature . . . ."). Municipalities rely on the people who
serve their communities as local officials, and they cannot
interact with outside entities unless it is through those
officials. Oconto Co. v. Jerrard, 46 Wis. 317, 328, 50 N.W. 591(1879) ("The state acts through its municipalities, and the
municipalities act through their officers."). Here, the
attorney operates as the attorney for the Village and therefore
as an attorney for the clerk to the extent the clerk acts as a
representative for the Village. Serving the attorney a notice
of appeal therefore achieves service upon the clerk as a
representative of the Village.
¶63 The court of appeals in Mayek, 238 Wis. 2d 261,
discussed the notice of appeal in such a fashion even if it did
not rule on the issue. While explaining that "serving a summons
and complaint challenging the assessment constitutes a notice of
appeal" under Wis. Stat. § 66.0703(12)(a), id., ¶7, the court
repeatedly described such service as service upon the
municipality. The court said the property owner "reasonably
treated his complaint as a notice of appeal and served it on the
district's clerk as the method of obtaining service on the
district." Id., ¶8 (emphasis added).
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¶64 Even if a municipal clerk is not a party to the
litigation, a clerk receiving service in a suit against the
municipality clearly acts on behalf of the municipality while
performing that ministerial function. The majority's assertion
to the contrary——that a municipality's clerk is not a
representative of the municipality——flatly ignores how
Wisconsin's municipalities operate and the roles local officials
play while acting on behalf of those municipalities. See
majority op., ¶¶32-33. The majority's artificial distinction
between serving a municipality's clerk and serving a
municipality may create unintended consequences, such as service
upon a clerk being deemed insufficient to affect service upon
the municipality. The reality is that by serving the municipal
clerk, like serving the attorney, one serves the municipality.
Thus, the question is whether Greenwald served the Village in a
manner permitted under the Wisconsin Statutes.
¶65 Wisconsin Stat. § 801.11(4) provides that personally
serving the Village clerk is a permissible method for serving
the Village. However, there is flexibility. There are a number
of situations where directly serving the clerk is either not
necessary or not permitted.
¶66 For one, serving a village under Wis. Stat. § 801.11is permissive, whereas service upon the attorney for a
represented party under Wis. Stat. § 801.14 is fairly read as
mandatory. Section 801.11 begins, "A court of this state having
jurisdiction of the subject matter and grounds for personal
jurisdiction . . . may exercise personal jurisdiction over a
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defendant by service of a summons as follows" (emphasis added).
However, service upon the attorney for a represented party
appears to be mandatory. Section 801.14(2) states, "Whenever
under these statutes, service of pleadings and other papers is
required or permitted to be made upon a party represented by an
attorney, the service shall be made upon the attorney unless
service upon the party in person is ordered by the court"
(emphasis added). In other words, if a municipality is
represented by counsel, that arguably must take precedence over
other forms of service, and a claimant should serve the
municipality through its attorney. There is seemingly only one
exception to this rule: "unless service upon the party in
person is ordered by the court." Id. There is no exception for
serving a municipal clerk. If the statute did provide an
exception permitting service under § 801.11, it would likely say
so. That statute is referenced in § 801.14(1) regarding parties
in default, but no similar reference exists in § 801.14(2).
Section 801.14(2) instead discusses situations where "an
attorney . . . has consented in writing to accept service by
electronic mail," which is exactly what happened in this case.
These all indicate that Greenwald properly served the Village by
delivering the summons and complaint to the Village attorney.
¶67 Even if it were the case that service must be affected
through a municipal clerk, the statutes provide alternatives to
serving the clerk directly. Wisconsin Stat. § 801.11(4)(b)
lists one such alternative. It states, "In lieu of delivering
the copy of the summons to the person specified, the copy may be
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left in the office of such officer, director or managing agent
with the person who is apparently in charge of the office." Id.
(emphasis added). We examined this language in Keske v. Square
D Co., 58 Wis. 2d 307, 206 N.W.2d 189 (1973).6 The process
server in Keske attempted to serve a corporation. Upon arriving
at the main reception area, the receptionist stated the person
who could receive service was unavailable. Id. at 309. The
process server was instead "specifically directed to serve" a
different individual who "appeared to be in charge." Id. at
313-14. We explained the statute's "use of the word
'apparently' can only refer to what is apparent to the person
actually serving the summons." Id. at 313. Even though the
person who received process testified he was not "in charge" of
the office, this was unimportant because of the circuit court's
finding that he "appeared to be in charge." Id. at 313-14.
These provisions also suggest that service on the Village is not
as strict as the majority suggests.
¶68 Additionally, Wis. Stat. § 801.18(5)(d) is seemingly
even more expansive. It concerns service of "[i]nitiating
documents," which include a summons and complaint and notice of
appeal. § 801.18(1)(j), (5)(d). It requires that initiating
documents "shall be served by traditional methods," which simply
"means those methods of filing and serving
Wisconsin Stat. § 801.11(5)(a) uses the same language with
6
regard to service upon domestic or foreign corporations or
limited liability companies. The statute has since been
renumbered from its previous version, Wis. Stat. § 262.05 (1972-
73).
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documents . . . provided under statutes and local rules."
§ 801.18(1)(m), (5)(d). However, such service by "traditional
methods" is required "unless the responding party has consented
in writing to accept electronic service or service by some other
method." § 801.18(5)(d). Section 801.18(5)(d) therefore
permits service through methods other than those "provided under
statutes" so long as "the responding party has consented in
writing." That is the case here.
¶69 Greenwald properly served the Village under any one of
these statutes. Wisconsin Stat. § 801.14(2) appears to require
that Greenwald serve the Village attorney, not the Village
clerk. The Village attorney said to do so and admitted service.
In the admission of service, the Village attorney confirmed the
Village was represented by counsel in this matter, stating, "I
am counsel for the Defendant Village of Mukwonago in this
action." The Village attorney signed his name above his title,
"Attorney for Defendant," and provided his state bar number,
clearly conveying that he was operating as the Village's legal
representation in that litigation. Under these circumstances,
Greenwald's counsel was between a rock and a hard place. 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. An attorney
is expected to communicate through counsel, not directly with
the other lawyer's client. The majority opinion creates
unnecessary conflict and uncertainty for lawyers who should be
able to accept service for their clients.
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¶70 The Village attorney's actions also make sense in
light of the rules of professional conduct, which prohibit
lawyers from "communicat[ing] about the subject of the
representation with a person the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or
a court order." SCR 20:4.2(a). This includes, "[i]n the case
of a represented organization, . . . communications with a
constituent of the organization . . . whose act or omission in
connection with the matter may be imputed to the organization."
Id. ABA cmt.7. It is at least reasonable to conclude, under
this rule, that once the Village attorney identified himself as
the Village's representative, Greenwald's attorney could not
contact the Village clerk. When the Village attorney replied to
Greenwald's attorney's initial email, the Village attorney
removed the Village clerk from the conversation. As a
constituent of the Village, the clerk could not be contacted or
directly served by Greenwald's counsel. By removing the Village
clerk from the email conversation, the Village attorney
communicated to Greenwald's counsel that there was no reason to
contact the clerk, and all communication should go through the
attorney. That was confirmed by the admission of service.
¶71 Even if Greenwald was permitted to directly serve the
Village clerk, the Village attorney had the apparent ability to
receive service under Wis. Stat. § 801.11(4)(b). Greenwald's
initial email, which included the Village clerk, asked for
confirmation that the Village attorney can receive service. The
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Village attorney confirmed that he will admit service, and he
did not keep the Village clerk on the email chain. In doing so,
the Village attorney directed Greenwald to himself rather than
the Village clerk as a person capable of receiving service on
behalf of the Village. The Village attorney's representations
rendered him "apparently in charge of the office" such that he
could receive service on behalf of the Village. Permitting the
Village to benefit from any apparent misdirection would "produce
a situation whereby a process server becomes a participant in a
game of 'hide 'n seek' at the mercy of secretaries or anyone
else who chooses to prevent him from accomplishing his task."
Keske, 58 Wis. 2d at 315. This is not a result our service
statutes condone.
¶72 Finally, Greenwald would have properly served the
Village under Wis. Stat. § 801.18(5)(d). The Village, acting
through the Village attorney, consented to receive process in
the manner it was served. Over email, the Village attorney told
Greenwald, "Yes we will admit service, please forward that to me
at this point." "[T]he [village] attorney may bind the
municipality to the same extent that any attorney may bind his
or her client. A [village] attorney is clothed with sufficient
apparent authority to bind a client for services that are
routinely and directly connected with the representation. . . ."
10 McQuillian Mun. Corp. § 29:20 (3d ed. 2022) (footnotes
omitted) ("[T]he universally accepted generalization in this
matter is that the city attorney has power to institute court
actions and defend actions against the municipality . . . .");
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see also 64 C.J.S. Municipal Corporations § 1148 (2023) ("A city
attorney may bind the municipality to the same extent that an
attorney may bind a client, absent limitations."). Acting
through the Village attorney, an individual whose job is to
speak for the Village in litigation matters, the Village gave
Greenwald written consent to serve the Village in the manner it
did. It cannot be the case——and is not the case under the law——
that Greenwald's action must be dismissed for relying on this
representation.
IV. CONCLUSION
¶73 I conclude that Greenwald properly served the Village
in accordance with Wis. Stat. § 66.0703(12)(a). To determine
how to properly "serve" the Village under § 66.0703(12)(a), one
must look to Wis. Stat. ch. 801 governing service in civil
cases. Under Wis. Stat. § 801.11(4), though personally serving
the clerk is the default for serving a municipality, the Village
was represented by counsel and Greenwald was in compliance with
the statute in serving the Village attorney under Wis. Stat.
§ 801.14(2). Even if personal service upon the Village clerk
were required, there is flexibility. One may instead serve
whoever "is apparently" able to receive process.
§ 801.11(4)(b). One may also serve a municipality "by some
other method" with the responding party's written consent. Wis.
Stat. § 801.18(5)(d). Greenwald successfully served the Village
under either of these provisions too. The Village attorney
branded himself as the person "apparently" able to receive
process. The Village attorney's email accepting service also
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constituted consent on behalf of the Village to accept service
in the manner it was received. As a result, Greenwald properly
served the Village, and its lawsuit should proceed.
¶74 For the foregoing reasons, I respectfully dissent.
¶75 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
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1