Johnson v. Cintas Corp. No. 2

ANN WALSH BRADLEY, J.

¶ 52. {dissenting). It may be that in some instances, there is a "fine line" *524between fundamental and technical defects. Majority op., ¶ 27. However, this case falls squarely on the technical side of that line.

¶ 53. A straightforward application of the rules set forth in Hoesley1 and Parks2 to the facts of this case reveals that the summons and complaint contained a mere misnomer — a technical defect that does not deprive the circuit court of jurisdiction. The majority reaches the wrong result by dodging the applicable standards for mere misnomers, sidestepping precedent, and crafting an unreasonable and unnecessary new rule. Accordingly, I respectfully dissent.

I

¶ 54. The majority acknowledges that a mere misnomer in the summons and complaint does not deprive the circuit court of jurisdiction over the misnamed defendant. Majority op., ¶¶ 33-35 (citing Hoesley v. La Crosse VFW Chapter, 46 Wis. 2d 501, 175 N.W.2d 214 (1970)). Nevertheless, the majority barely pauses to consider whether the omission of the designation "No. 2" could be considered a misnomer. Rather, it leaps to the conclusion that Johnson named the wrong party: "the facts remain that Johnson named Cintas instead of Cintas No. 2 in his summons and complaint, and our courts recognize Cintas No. 2 as a legal entity that exists independently of [Cintas] its parent corporation." Id., ¶ 49.

¶ 55. The majority's dodge results in a new bright-line rule: When a plaintiff misnames a party and the misnomer happens to be the correct name of another legal entity, the defect is transformed from technical to *525fundamental.3 See id., ¶¶ 40-41. The majority appears to recognize that its new rule does not sit comfortably with Wisconsin case law, including Parks v. West Side Railway Co., 82 Wis. 219, 52 N.W. 92 (1892). Majority op., ¶ 41. Nevertheless, it concludes that, regardless of whether Cintas Corporation No. 2 held itself out to its employees as "Cintas Corporation," the amendment to correct the mistake in the complaint "did not have the effect of [] correcting the name of the right party" and instead, had the effect of bringing in a new party. Id., ¶ 41.

II

¶ 56. A mistake in the intended defendant's name is a technical defect, and it does not deprive the court of jurisdiction as long as the intended defendant was served and suffered no prejudice as a result of the misnomer.4 In one case, for example, the court determined that the plaintiffs mistake in naming "Thomas *526Rooney Post No. 1530, Veterans of Foreign Wars of the United States" as "La Crosse VFW Chapter, Thomas Rooney Post" was a mere misnomer. Hoesley, 46 Wis. 2d 501.

¶ 57. The Hoesley court explained the "general rule" of misnomers as follows: "[I]f the misnomer or misdescription does not leave in doubt the identity of the party intended to be sued, or, even where there is room for doubt as to identity, if service of process is made on the party intended to be sued, this misnomer or misdescription may be corrected by amendment at any stage of the suit, or even after judgment, and a judgment taken by default is enforceable." Id. at 502.

¶ 58. A straightforward application of this standard reveals that there was a misnomer in this case. Here, Johnson served the registered agent of his employer, Cintas Corporation No. 2, with an authenticated copy of the summons and complaint. In that summons and complaint, Johnson correctly identified the address of the defendant. However, the name on the summons and complaint read "Cintas Corporation" rather than "Cintas Corporation No. 2."5 The circuit court found no prejudice as a result of the misnomer, and it entered default judgment.

*527¶ 59. On its face, the omission of the designation "No. 2" appears to be nothing more than a mistake. Had the complaint named "Cintas Corporation No. 3," "Cintas #2 Corporation," or even "Sintas Corporation No. 2," there is little doubt that the error in naming would be considered a mere misnomer under Hoesley. Accordingly, the question would be whether the defendant was prejudiced by that mistake.

¶ 60. The wrinkle in this case is that there happens to exist a separate corporation with the name "Cintas Corporation." For the majority, that fact transforms an otherwise technical defect into one that is fundamental.6

Ill

¶ 61. The majority's new bright-line rule is contrary to precedent. In addition to contravening Hoesley, *528as discussed above, it is difficult to reconcile the majority's rule with Parks, 82 Wis. 219.

¶ 62. In that case, there existed two separate corporations: West Side Railway Co. and West Side Railroad Co. Id. at 219-20. The plaintiff mistakenly named West Side Railway Co. rather than the related West Side Railroad Co. Id. at 219. When Parks moved to amend the summons and complaint by striking "way" and replacing it with "road," West Side Railroad Co. objected. Id. at 221. It asserted that the amendment was "not a legitimate amendment of the name of the party, but the discharge of one party as defendant and the substitution of another." Id.

¶ 63. Despite the mistake and the existence of a separate corporation bearing the name West Side Railway Co., the Parks court refrained from concluding that an amendment to correct the name from Railway to Railroad would have the effect of bringing in a new party. Rather, it asserted that "[n]o doubt can be entertained that if there had been no corporation bearing the name of the West Side Railway' Company, the amendment would have been unobjectionable." Id. at 221-22. It concluded that the intended defendant was sued "with a slight mistake in name, which the court properly corrected" by amendment. Id. at 222.

¶ 64. The majority attempts to distinguish Parks on the ground that West Side Railway Co. maintained only a "nominal existence." Majority op., ¶ 41. It is not clear, however, why this distinction would make any difference. Under the majority's analysis, "the facts remain that [Parks] named [West Side Railway] instead of [West Side Railroad] in his summons and complaint, and our courts recognize [West Side Railroad] as a legal entity that exists independently of [West Side Railway]." See id., ¶ 49.

*529IV

¶ 65. Additionally, when the majority's new rule is tested against analogous scenarios, it creates unreasonable and unnecessary results. Imagine a plaintiff who, intending to sue John Smith Sr., serves him with a summons and complaint that mistakenly omits the designation, "Sr." When considered in light of Hoesley, the omission would appear to be nothing more than a misnomer.

¶ 66. Nevertheless, under the majority's analysis, it would appear that John Smith Sr. could successfully claim that the misnomer was a fundamental defect merely by opening a telephone book and locating a man named "John Smith." Under the majority's analysis, John Smith Sr. could assert that an amendment to correct his name had the effect of bringing him in as a new party.

¶ 67. I expect that the majority would not countenance such an unreasonable result. Perhaps the majority would distinguish this scenario on the ground that there is no relationship between John Smith Sr. and the John Smith in the telephone book. If so, this hypothetical reveals what is truly at stake.

¶ 68. Corporate separateness is a shield that protects a corporation from the liabilities of separate but related entities. Here, however, the majority transforms the shield of corporate separateness into a sword. Under the majority's analysis, a corporation can use the name of a related entity as a trade name, induce plaintiffs to name that trade name in the summons and complaint, fail to answer the complaint, and then escape any consequence for the default by claiming lack of jurisdiction. The law should not sanction such an abuse of the principles of corporate separateness and legal process.

*530¶ 69. Ultimately, I conclude that the majority's new rule is wholly unnecessary, given that existing law is well equipped to handle any confusion or lack of notice that results from a misnomer. If a plaintiff serves but misnames the defendant, the plaintiff who made the mistake has the burden to prove that the defendant was not prejudiced as a result. Am. Family Mut. Ins. Co. v. Royal Ins. Co. of Am., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992). If the defendant has truly been confused by the misnomer, then the plaintiff will fail to meet its burden on prejudice, and the circuit court will conclude that it lacks jurisdiction over the defendant.

¶ 70. Because the majority dodges the applicable standards regarding mere misnomers, sidesteps precedent, and crafts an unreasonable and unnecessary new rule, I respectfully dissent.

¶ 71. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

Hoesley v. La Crosse VFW Chapter, 46 Wis. 2d 501, 175 N.W.2d 214 (1970).

Parks v. West Side Ry. Co., 82 Wis. 219, 52 N.W. 92 (1892).

The majority's new rule mirrors the rule proposed by Cintas Corporation No. 2 during oral argument: "If there is only one entity in the world that could possibly be referred to by that misnomer, that is [the] Hoesley [case], and [the summons and complaint are] not [fundamentally] defective. If in fact there is another entity ..., if there is another one just like that, it may well be [fundamentally] defective."

In a different context, this court has acknowledged that a slight mistake in naming a defendant does not necessarily cause that defendant any confusion about whether it was the party against which the plaintiff intended to file suit. See Tews v. NHI, LLC, 2010 WI 137, ¶¶ 74-76, 330 Wis. 2d 389, 793 N.W.2d 860. In Tews, the plaintiff mistakenly named "WE Energies" and "Wisconsin Energy Corporation" rather than "Wisconsin Energy Power Company," the correct name of the intended defendant. Id., ¶ 1. It finally amended its complaint to name Wisconsin Energy Power Company, but only after the statute of limita*526tions had expired. Id., ¶ 20. The parties presumed that the effect of the amendment was to add a new party, and accordingly, the court did not address whether the mistake in naming could be considered a mere misnomer. When an amendment adds a new party, the intended defendant's statute of limitations defense will be defeated under Wis. Stat. § 802.09(3) (the relation-back statute) if the intended defendant received fair notice of the claim within the period of limitations. Id., ¶ 2.

In full, the summons and complaint named the defendant as follows: "CINTAS CORPORATION a domestic corporation 9828 South Oakwood Park Drive Franklin, WI 53132."

The majority cites to Bulik v. Arrow Realty, Inc. of Racine, 148 Wis. 2d 441, 434 N.W.2d 853 (Ct. App. 1988) and American Family Mutual Insurance Co. v. Royal Insurance Co. of America, 167 Wis. 2d 524, 481 N.W.2d 629 (1992), to bolster its analysis. Majority op., ¶ 40. Nevertheless, these cases are not about misnomers, and accordingly, neither case governs the outcome here.

In Bulik, the defect was the failure to name the defendant in the original summons at all. The plaintiff was injured when she fell in the parking lot of a store operated by Zayre Corporation. 148 Wis. 2d at 443. She intended to file suit against Zayre and Arrow Realty, the corporation that maintained the grounds. Nevertheless, the summons named only "Zayre Corporation, a domestic corporation, et al." Id. at 443-44. It did not name Arrow. Id. Accordingly, there was no "misnomer" in Bulik that could be construed as a technical defect.

Likewise, in American Family, there was no defect in naming the defendant. Rather, the defendant was correctly named in a summons and complaint, but the summons and complaint were not authenticated as required by statute. 167 Wis. 2d at 527.