Greenwald Family Limited Partnership v. Village of Mukwonago

2023 WI 53

• Court: Wisconsin Supreme Court
• Decided: June 21, 2023
• Docket: 2021AP000069-FT
• Status: Published

Opinion

2023 WI 53

SUPREME 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REVIEW OF DECISION OF THE COURT OF APPEALS (2022 – unpublished)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 53 NOTICE 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, Samuel A. Christensen 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Greenwald), seek review of an unpublished order of the court of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 3 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.

4 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

7 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, 9 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.

10 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

¶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.

11 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 12 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

13 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. § 801.14 applies to parties only, it is not necessary to reach this argument.

14 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

15 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. 16 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

By the Court.—The decision of the court of appeals is

affirmed.

18 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.

1 No. 2021AP69-FT.akz

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

2 No. 2021AP69-FT.akz

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

3 No. 2021AP69-FT.akz

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

4 No. 2021AP69-FT.akz

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

5 No. 2021AP69-FT.akz

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 6 No. 2021AP69-FT.akz

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").

7 No. 2021AP69-FT.akz

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.

8 No. 2021AP69-FT.akz

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).

9 No. 2021AP69-FT.akz

¶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. § 801.11

is 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

10 No. 2021AP69-FT.akz

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

11 No. 2021AP69-FT.akz

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).

12 No. 2021AP69-FT.akz

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.

13 No. 2021AP69-FT.akz

¶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

14 No. 2021AP69-FT.akz

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 . . . .");

15 No. 2021AP69-FT.akz

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

16 No. 2021AP69-FT.akz

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.

17 No. 2021AP69-FT.akz