Village of Bay City v. David C. Meixner

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 19, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1323 Cir. Ct. No. 2018CV3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

VILLAGE OF BAY CITY,

PLAINTIFF-RESPONDENT,

V.

DAVID C. MEIXNER,

DEFENDANT-APPELLANT,

ROBERT L. LOBERG AND JAMES TURVAVILLE,

DEFENDANTS-RESPONDENTS.

APPEAL from orders of the circuit court for Pierce County:
RIAN RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1323

¶1 PER CURIAM. David C. Meixner appeals from the circuit court’s
grant of partial summary judgment, dismissing, as relevant to this appeal, all of
Meixner’s claims against Robert L. Loberg, the Village of Bay City’s (the Village)
attorney, and James Turvaville, the former Village Board President.1 In this real
estate dispute between Meixner and the Village, Meixner filed counterclaims
against the Village and purported third-party claims against Loberg and Turvaville
for their actions related to the dispute. The circuit court concluded that Loberg
and Turvaville were entitled to dismissal of Meixner’s claims due to his failure to
comply with the terms of WIS. STAT. § 893.80(1d) (2019-20),2 requiring notice of
injury and notice of claim.

¶2 Upon our independent review and after supplemental briefing by the
parties, we conclude that Meixner failed to properly commence a third-party
action against Loberg and Turvaville, and the circuit court therefore lacked
personal jurisdiction over them. Accordingly, we affirm the court’s dismissal of
Meixner’s claims against Loberg and Turvaville, but we do so on different
grounds.

BACKGROUND

¶3 The history of this case is protracted, but for our purposes, it began
on January 4, 2018, when the Village filed suit against Meixner to gain title to four
areas of land located in the Village. The Village claimed that the four disputed

1
For ease of reading, where necessary, we will refer to the Village, Loberg, and
Turvaville, collectively, as “Respondents.”
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. We acknowledge that the suit in this case was filed in 2018, but as the relevant statutes
have not been amended, we will reference the 2019-20 version.

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No. 2021AP1323

areas are public land, while Meixner argued that they belong to him. This issue is
not before us on appeal.

¶4 Meixner filed an answer to the Village’s suit on January 22, 2018,
denying its claims and asserting multiple counterclaims against the Village.
Meixner also initially filed claims against Loberg and ultimately amended his
claims to include Turvaville. He denominated his claims against Loberg and
Turvaville as counterclaims and later designated Loberg and Turvaville as
“counterclaim defendants” by simply adding them to the case caption. Meixner
filed multiple amendments to his pleadings, but the final claims against Loberg
and Turvaville included slander of title, defamation, trespass and damage to
property, and concealment and/or destruction of records.3 As we explain below,
given that Loberg and Turvaville were not plaintiffs in the case, any purported
claims against them are appropriately designated as third-party claims. It is these
third-party claims that are the subject of this appeal.

¶5 The Respondents moved for summary judgment on the Village’s
claims and on Meixner’s counterclaims. Meixner opposed the motion and filed
his own motion for summary judgment. After briefing, the circuit court held a
hearing on the cross-motions for summary judgment and granted the Respondents’
motion in part and, as relevant here, dismissed all Meixner’s “counterclaims”

3
Meixner’s concealment and/or destruction of records claim was dismissed by the
circuit court on summary judgment. Meixner does not appear to challenge the court’s dismissal
of that claim in his appellate briefing. Therefore, we will not further address that claim. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n
issue raised in the [circuit] court, but not raised on appeal, is deemed abandoned.”).

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against Loberg and Turvaville by an order dated June 16, 2021.4 The basis for the
court’s dismissal of Meixner’s “counterclaims” was his failure to comply with the
notice requirements under WIS. STAT. § 893.80(1d). Meixner appeals.5 We will
discuss further facts where pertinent to our analysis.

4
The circuit court granted summary judgment to the Village as to two of the disputed
areas of land. The court determined that there were questions of material fact precluding
summary judgment as to the remaining disputed areas. A jury trial was scheduled to begin
March 18, 2022, on those remaining issues.

On June 30, 2021, Meixner filed a petition for leave to appeal a nonfinal order in case
No. 2021AP1167-LV, seeking to appeal the circuit court’s grant of partial summary judgment to
the Village and the dismissal of Meixner’s counterclaims against the Village. We denied
Meixner’s petition for leave to appeal on December 10, 2021. Therefore, the issues pertaining to
the Village’s claims and Meixner’s counterclaims against the Village are not before us on appeal.

The circuit court’s June 16, 2021 order on the cross-motions for summary judgment was
amended on June 25, 2021, to clarify that the order was a final order for purposes of appeal with
respect to Meixner’s “counterclaims” against Loberg and Turvaville. On November 9, 2021, the
Village filed a petition to intervene in this appeal, explaining that “[t]here are commonalities of
law and fact between the Village’s defenses and [Loberg’s and Turvaville’s] defenses” and that if
we were to reinstate any of Meixner’s counterclaims against Loberg and Turvaville, it would also
reinstate the claim against the Village. Meixner opposed the motion. We granted the Village’s
petition to intervene in this matter by an order dated December 14, 2021.
5
As an initial matter, we note that the Village, in its response brief, lodged a “word
count objection” against Meixner’s brief-in-chief. According to the Village, “[i]n his ‘Statement
Requesting Oral Argument,’ Meixner improperly makes argument as to the propriety of the
Circuit Court’s holdings. Meixner also includes substantial argument in his ‘Statement of
Issues.’” The Village claims that “these instances should count against Meixner’s word count.”

Under WIS. STAT. RULE 809.19(8)(c)1., the portions of Meixner’s brief-in-chief
comprising the statement of the case, the argument section, and the conclusion “shall not exceed
50 pages if a monospaced font or handwriting is used, or 11,000 words if a proportional serif font
is used.” Meixner has certified that the length of his brief is 10,872 words, which places him in
technical compliance with the Rules of Appellate Procedure. We agree with the Village,
however, that the inclusion of substantive matters—including standards of review, lengthy
arguments, and record citations—within the statement of the issues and the statement requesting
oral argument is a violation of the spirit of the Rules of Appellate Procedure, if not an outright
violation. Although we admonish Meixner’s counsel for such conduct, we will consider the brief
in its entirety. Nevertheless, we remind counsel that we expect full compliance with the Rules of
Appellate Procedure, including RULE 809.19(8)(c)1., in the future.

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DISCUSSION

¶6 On appeal, the central issue as presented by the parties is whether
Meixner complied with the notice requirements of WIS. STAT. § 893.80(1d).6
Upon review, however, we concluded that supplemental briefing was necessary on
the issue of whether Meixner properly commenced a third-party action against
Loberg and Turvaville. See State v. Holmes, 106 Wis. 2d 31, 39-40, 315 N.W.2d
703 (1982) (holding that it is well recognized that courts may sua sponte consider
legal issues not raised by the parties). We requested that the parties address three
issues: (1) whether the circuit court had personal jurisdiction over Loberg and
Turvaville; (2) whether Loberg and Turvaville waived the defense of lack of
jurisdiction; and (3) if the court had personal jurisdiction over Loberg and
Turvaville, whether there was a basis for their individual liability, separate and
distinct from the Village, under the claims pled by Meixner.

¶7 Upon our review of the record on appeal and the parties’
supplemental briefing, we conclude that the circuit court lacked personal
jurisdiction over Loberg and Turvaville due to Meixner’s failure to comply with
the statutory requirements to commence a third-party action against either of them.
Meixner’s failure to properly commence an action against either Loberg or
Turvaville constitutes a fundamental defect, such that Loberg and Turvaville could
not waive the court’s lack of personal jurisdiction. Accordingly, we affirm the
court’s dismissal of Meixner’s claims against Loberg and Turvaville, albeit on

6
The notice requirements under WIS. STAT. § 893.80(1d) require both “notice of injury”
and “notice of claim” when an action is brought against certain governmental bodies. See Yacht
Club at Sister Bay Condo. Ass’n v. Village of Sister Bay, 2019 WI 4, ¶20, 385 Wis. 2d 158, 922
N.W.2d 95.

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No. 2021AP1323

different grounds. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530
N.W.2d 16 (Ct. App. 1995) (we may affirm on different grounds than those relied
on by the circuit court).

¶8 Meixner’s introduction of Loberg and Turvaville into this lawsuit
was procedurally defective from the beginning, as he failed to comply with the
statutory requirements to commence a third-party action against either of them.
Instead, on January 22, 2018, Meixner filed an answer to the Village’s summons
and complaint, titled “Answer, Affirmative Defenses and Counterclaims.” Neither
Loberg nor Turvaville were named parties in the Village’s complaint; yet,
Meixner’s answer asserted counterclaims against the Village as well as
“counterclaims” against Loberg. Confusingly, although not named in a
counterclaim heading, Meixner also made allegations against Turvaville for
slander of title in the January 22 pleading. Neither Loberg nor Turvaville were
listed in the pleading caption.

¶9 The Village then replied to Meixner’s counterclaims, alleging,
among other things, that the circuit court lacked personal jurisdiction over Loberg
due to “failure of proper service of process.” In response, Meixner personally
served Loberg and Turvaville with copies of his “Answer, Affirmative Defenses
and Counterclaims” and an unauthenticated summons on June 4, 2018, and
June 11, 2018, respectively.7 The summons was dated May 31, 2018. The

7
After our order requesting supplemental briefing from the parties, Meixner moved this
court for permission to submit the certificates of service for Loberg and Turvaville from his
“counterclaims” that were not filed with the circuit court. We first denied his motion to include
materials outside the record in the appendix to his brief, but after Loberg and Turvaville
responded with no objection to the motion, we withdrew our prior order and granted Meixner’s
request. Meixner’s appendix to his supplemental brief included, among other things, copies of
the certificates of service and the unauthenticated summons.

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No. 2021AP1323

unauthenticated summons included in Meixner’s appendix lists Loberg in the
caption, but he was added as a “Counterclaim Defendant.” No such denomination
exists under our state statutes. Further, Turvaville was not listed at all in the
caption of the summons provided to this court. Neither Loberg nor Turvaville
were listed in the caption in any pleadings filed in the case until September 16,
2019. At no time did Meixner file a third-party summons or complaint with the
court, nor did he serve Loberg or Turvaville with authenticated copies of those
documents.

¶10 WISCONSIN STAT. § 803.05(1) governs third-party practice and
provides in pertinent part that

[a]t any time after commencement of the action, a
defending party, as a 3rd-party plaintiff, may cause a
summons and complaint to be served upon a person not a
party to the action who is or may be liable to the defending
party for all or part of the plaintiff’s claim against the
defending party, or who is a necessary party under [WIS.
STAT. §] 803.03.

WISCONSIN STAT. § 801.02(1) sets forth the applicable procedure to commence an
action with the filing of a summons and complaint:

A civil action in which a personal judgment is sought is
commenced as to any defendant when a summons and a
complaint naming the person as defendant are filed with the
court, provided service of an authenticated copy of the
summons and of the complaint is made upon the defendant
under this chapter within 90 days after filing.[8]

8
“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.” WIS. STAT. § 801.09(4).
Further, the ninety days to serve the defendant may not be extended, even upon a showing of
good cause. WIS. STAT. § 801.15(2)(a).

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No. 2021AP1323

Thus, both filing of the summons and complaint with the court as well as service
of an authenticated summons and complaint are required to initiate the third-party
action. See also WIS. STAT. §§ 801.02(4), 893.02. A Wisconsin court obtains
personal jurisdiction over a defendant by proper service of a summons upon the
defendant. See WIS. STAT. §§ 801.05, 801.11; Hagen v. City of Milwaukee
Emp.’s Ret. Sys. Annuity and Pension Bd., 2003 WI 56, ¶¶12-13, 262 Wis. 2d
113, 663 N.W.2d 268.

¶11 “[O]ur courts have recognized a distinction between service that is
fundamentally defective, such that the court lacks personal jurisdiction over the
defendant in the first instance, and service that is merely technically defective.”
Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶26, 339 Wis. 2d 493, 811 N.W.2d
756 (citing American Fam. Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533,
481 N.W.2d 629 (1992)). “[W]here the defect is technical, the court has personal
jurisdiction only if the complainant can show the defendant was not prejudiced,
and, where the defect is fundamental, no personal jurisdiction attaches regardless
of prejudice or lack thereof.” American Fam., 167 Wis. 2d at 533.

¶12 In American Family, our supreme court held that failure to comply
with the requirements of WIS. STAT. § 801.02(1) constitutes a fundamental defect,
depriving the circuit court of personal jurisdiction regardless of prejudice to the
defendant. American Fam., 167 Wis. 2d at 533-34; Hagen, 262 Wis. 2d 113, ¶13
(“Failure to obtain personal jurisdiction over the defendant by statutorily proper
service of process is a fundamental defect fatal to the action, regardless of
prejudice.”); see also Bendimez v. Neidermire, 222 Wis. 2d 356, 361, 588 N.W.2d
55 (Ct. App. 1998) (“Wisconsin requires strict compliance with its rules of
statutory service, even though the consequences may appear to be harsh.”). The
burden of proving a party is subject to the jurisdiction of the court is on the party

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asserting jurisdiction. Danielson v. Brody Seating Co., 71 Wis. 2d 424, 427-28,
238 N.W.2d 531 (1976). Whether a defect in a summons and complaint is
fundamental such that it deprives the circuit court of personal jurisdiction is a
question of law that we review independently. See Burnett v. Hill, 207 Wis. 2d
110, 121, 557 N.W.2d 800 (1997); Bulik v. Arrow Realty, Inc. of Racine, 148
Wis. 2d 441, 444, 434 N.W.2d 853 (Ct. App. 1988).

¶13 Here, we conclude that Meixner failed to comply with the
requirements of WIS. STAT. § 801.02(1) for several reasons. First, Meixner did not
file a third-party summons and complaint with the circuit court. Even if we could
consider Meixner’s “Answer, Affirmative Defenses and Counterclaims” as a
“third-party complaint,” there is still no dispute that Meixner failed to file a third-
party summons with the court.

¶14 Second, while Meixner eventually served Loberg and Turvaville,
that service was defective as the summons served was not an authenticated copy of
a summons filed with the circuit court. Third, Meixner did not serve Loberg or
Turvaville with an authenticated summons and third-party complaint within ninety
days of filing. Rather, Loberg and Turvaville were personally served with the
“Answer, Affirmative Defenses and Counterclaims” and an unauthenticated
summons 133 and 140 days, respectively, from the filing of the purported
“third-party complaint.” Accordingly, Meixner did not properly commence a
third-party action in this case by service of a summons and complaint pursuant to
WIS. STAT. §§ 803.05(1) and 801.02(1). That defect is fundamental; thus, the
court did not have personal jurisdiction over Loberg and Turvaville. The legal
effect of Meixner’s failure to comply with the statutes is that no third-party action
was commenced against Loberg and Turvaville.

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¶15 In his supplemental briefing, Meixner claims that Loberg and
Turvaville waived the defense of lack of personal jurisdiction pursuant to WIS.
STAT. §§ 801.06 and 802.06(8) by appearing in the case. We disagree that
§§ 801.06 or 802.06(8) are applicable under the circumstances.9 Section 801.06
provides in pertinent part:

A court of this state having jurisdiction of the subject
matter may, without a summons having been served upon a
person, exercise jurisdiction in an action over a person with
respect to any counterclaim asserted against that person in
an action which the person has commenced in this state and
also over any person who appears in the action and waives
the defense of lack of jurisdiction over his or her person as
provided in [§] 802.06(8).

Under § 802.06(8), a defense of lack of jurisdiction is waived if it is not included
in a responsive pleading or in a motion.

¶16 Citing Pulchinski v. Strnad, 88 Wis. 2d 423, 276 N.W.2d 781
(1979), and Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984), Loberg
and Turvaville argue that “the waiver provisions of [WIS. STAT. §] 802.06(8) do
not apply in a situation such as this one where an action is considered not to be
pending since it has not been properly commenced.” In Pulchinski, the plaintiff—
concerned that the statute of limitations on her claim would soon expire—filed a
summons in the circuit court and served the summons on the defendants.
Pulchinski, 88 Wis. 2d at 425. The plaintiff, however, did not file a complaint
within the limitations period, and after the court initially granted the motion to
9
We also note that Loberg was the only third-party defendant against whom Meixner
made a “counterclaim” in his January 22, 2018 “Answer, Affirmative Defenses and
Counterclaims.” Loberg and the Village alleged a lack of personal jurisdiction over Loberg in
their answer. Thus, there was no waiver. Although Turvaville was mentioned in the January 22
pleading, there was never an actual “counterclaim” made against Turvaville. Turvaville cannot
be deemed to have waived a jurisdictional defense in an action that was not pending against him.

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enlarge the time within which to file the complaint, it later reversed course and
granted a motion to dismiss on statute of limitations grounds. Id. at 425-26.

¶17 Our supreme court affirmed, explaining that “[t]he failure to file the
complaint with the summons was more than noncompliance with the procedure
statutes. It was a failure to commence the action in the manner prescribed by court
rule for the purpose of tolling the statute of limitations, and therefore there was no
action pending.” Id. at 427. In response to the plaintiff’s argument that
defendants’ failure to appear at a hearing on a motion to enlarge the time to file the
complaint waived their right to seek dismissal of the action, the court concluded
that waiver was inapplicable: “Because there was no action pending and the
statutes define the obligations of the defendants when an action is pending, there
was no obligation to raise the defense at the time plaintiffs brought their motion
for enlargement of time, and thus no waiver.” Id. at 429-30.

¶18 Similarly, in Hester, the question was also whether the plaintiff
commenced a personal injury action within the statute of limitations. Hester, 117
Wis. 2d at 363. There, the defendants were personally served with a summons and
complaint, but the summons and complaint had not been filed with the court prior
to service and were, therefore, not authenticated. Id. at 427-28. Despite learning
that the summons and complaint had not been filed with the court or authenticated,
the defendants served the plaintiff with an answer without raising lack of personal
jurisdiction as a defense. Id. at 428. Our supreme court, relying on Pulchinski,
concluded that “the effect of the plaintiff’s failure to file a summons and
complaint prior to service was that no action was commenced prior to the running
of the statute of limitations. The jurisdiction of the court was never invoked.”
Hester, 117 Wis. 2d at 640-41. On the issue of waiver, the court explained that

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the plaintiff did not commence an action pursuant to the
Wisconsin statutes before the statute of limitations had run;
therefore, there was no pending action. The waiver
provisions of [WIS. STAT. §] 802.06 only apply when an
action is pending. Since there was no pending action, the
defendants had no duty to raise any defenses and, therefore,
there was no waiver.

Hester, 117 Wis. 2d at 643 (citation omitted).

¶19 Similar to Puchinski and Hester, here, the circuit court’s jurisdiction
over Loberg and Turvaville was never invoked. As addressed above, Meixner
failed to comply with the provisions of WIS. STAT. §§ 803.05(1) and 801.02(1) to
properly commence a third-party action against Loberg and Turvaville. That
failure was a fundamental defect that deprived the court of personal jurisdiction.
Loberg and Turvaville therefore had no duty to raise a lack of personal jurisdiction
defense, and, thus, there was no waiver.10

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

10
As we have determined that the circuit court lacked personal jurisdiction over Loberg
and Turvaville due to Meixner’s failure to commence an action against them, and as that issue is
dispositive, we do not address the question of whether there is a separate basis for Loberg and
Turvaville to be held personally liable separate and distinct from the Village. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not
address all issues if one is dispositive).

12