Schaefer v. Riegelman

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

(dissenting).

¶ 39. I agree that the original summons and complaint at issue in the present case contain a defect and that the second summons and complaint are not perfect. However, I disagree with the majority that the defects are of sufficient magnitude to justify dismissal of the action. Therefore, I dissent.

¶ 40. When the purpose and intent of a statute have been fulfilled, defects in its fulfillment are technical in nature.1 The statute in the present case, Wis. Stat. § 802.05(l)(a), states, in relevant part, that every pleading shall be subscribed with the handwritten signature of at least one attorney of record. The purpose and intent of Wis. Stat. § 802.05(1) (a) are to place *516a professional obligation on attorneys to satisfy themselves that there are grounds for an action.2

¶ 41. The purpose and intent of Wis. Stat. § 802.05 were fulfilled in the present case because both Attorney Fishel and Attorney Weinstein bound themselves to the rules of professional conduct by their actions. Unlike the majority, which concludes that it is unclear whom to hold responsible, I conclude that both Attorney Weinstein and Attorney Fishel were subject to the Wisconsin rules of professional conduct to ensure accountability for their conduct as attorneys in Wisconsin and to provide the protection afforded to litigants by the subscription requirement.

¶ 42. In the present case, the summons and complaint dated August 16, 1999, were not filed unsigned, nor were they merely "signed" using a rubber stamp.3 Rather, the summons and complaint were signed by not one, but two, attorneys. Attorney Fishel, licensed to practice law in Minnesota, subscribed Attorney Weinstein's name in her (Attorney Fishel's) own handwriting. Attorney Fishel did so with the knowledge, authorization, and express authority of Attorney Wein-stein, who was licensed to practice law in Wisconsin. That signature begins this saga.

¶ 43. To allow Attorney Fishel to correct the defect by refiling the documents, Wisconsin Attorney Tourek moved the circuit court on August 31, 1999, to admit Attorney Fishel and Attorney Gleekel pro hac *517vice. The circuit court granted Attorney Fishel and Attorney Gleekel leave to appear as counsel for Schaefer.4

¶ 44. On September 16, 1999, Attorney Fishel submitted an amended summons and complaint. She subscribed the summons in her own handwriting and showed her pro hac vice status, attaching the original complaint, signed by her on behalf of Attorney Wein-stein. According to the majority opinion, the fact that the original complaint still had the original signatures is a fatal defect.

¶ 45. While I agree with the majority that Attorney Weinstein's failure to personally subscribe the original summons and complaint was a defect under Wis. Stat. § 802.05 and that the amended summons would have been "tidier" had it been accompanied by a newly *518signed complaint, these defects should not deprive the circuit court of personal jurisdiction.5

¶ 46. This court traditionally avoids dismissing actions based on nonprejudicial technicalities.6 There is no evidence in the present case that the claims were frivolous or improper or that any prejudice resulted. The defendants in the present case were doubly or triply protected. Two attorneys (and maybe even three attorneys) were responsible to the defendants for any misconduct.

¶ 47. The majority seems offended that the attorneys could not get it right a second time and failed to try a third time. I agree that the resubmission may be viewed as imperfect. But what's the big deal?

¶ 48. . This case is much ado about nothing. It is really a trivial pursuit. It elevates form over substance, resulting in a litigant being thrown out of court.

¶ 49. For the reasons set forth, I cannot join this opinion.

¶ 50. I am authorized to state that Justices ANN WALSH BRADLEY and DAVID T. PROSSER join this opinion.

See, e.g., Dungan v. County of Pierce, 170 Wis. 2d 89, 98-99, 486 N.W.2d 579 (Ct. App. 1992).

McMillan-War ner Mut. Ins. Co. v. Kauffman, 159 Wis. 2d 588, 593, 465 N.W.2d 201 (Ct. App. 1990).

See Novak v. Phillips, 2001 WI App 156, ¶ 27, 246 Wis. 2d 673, 631 N.W.2d 635, which the majority now overrules to the extent that the court of appeals held that a rubber stamp subscription was a technical rather than fundamental defect.

Supreme Court Rule 10.03(4) states:

A judge in this state may allow a nonresident counsel to appear in his or her court and participate in a particular action or proceeding in association with an active member of the state bar of Wisconsin who appears and participates in the action or proceeding. Permission to the nonresident lawyer may be withdrawn by the judge granting it if the lawyer by his or her conduct manifests incompetency to represent a client in a Wisconsin court or by his or her unwillingness to abide by the rules of professional conduct for attorneys and the rules of decorum of the court.

This pro hac vice representation began on August 31,1999, and did not date back to the original documents to remedy the defective signature on the original documents. Majority op. at ¶ 9; Transcript, Motion Hearing June 27, 2000, Record 32-17.

Attorney Fishel and Attorney Gleekel remained as counsel of record for Schaefer, with their last filing, dated August 8, 2000, being a motion to the circuit court to reconsider its decision.

The statutes are clear that the defect in the summons and complaint does not deprive the circuit court of subject matter jurisdiction. Wisconsin Stat. § 801.04(1) provides: "Nothing in chs. 801 to 847 affects the subject matter jurisdiction of any court of this state."

Gaddis v. La Crosse Products, 198 Wis. 2d 396, 407-08, 542 N.W.2d 454 (1996).