BROWN v. MR GROUP, 2004 WI App 122, 03-2309 (Ct.App. 2004)
Lisa J. Brown, Estate of Damon L. Brown, Jr., and Damon L. Brown, Sr.,
Plaintiffs. Waukesha County Department of Health & Social Services,
Subrogated-Plaintiff v. MR Group, LLC, Michael Fohl, Herrell Grading
Inc., a/k/a Herrell Trucking, Inc., and General Casualty Company of
Wisconsin, Defendants. Ralph W. Raush, Individually and d/b/a West Avenue
Real Estate, LLC, formerly d/b/a MR Group, LLC, a/k/a RWR Storage, and
d/b/a All One Storage, formerly d/b/a Lake & Country Storage of Muskego,
formerly d/b/a U-Lock Up Self Storage, Defendant-Appellant. Acuity, A
Mutual Insurance Company, Intervenor-Respondent. West Bend Mutual
Insurance Company, Defendant-Respondent.
Court of Appeals of Wisconsin.
Submitted on Memoranda: January 21, 2004.
Opinion Filed: May 26, 2004.
APPEAL from orders of the circuit court for Waukesha County: ROBERT G.
MAWDSLEY, Judge. Dismissed in part.
On behalf of the defendant-appellant, the cause was submitted on the
memorandum of James W. Hammes of Cramer, Multhauf & Hammes, LLP,
On behalf of the intervenor-respondent, the cause was submitted on the
memorandum of Michelle D. Wehnes of Simpson & Deardorff, S.C.,
Before Anderson, P.J., Nettesheim and Snyder, JJ.
¶ 1 PER CURIAM.
In this appeal, we hold that in order to confer jurisdiction on this
court, a notice of appeal filed by counsel on behalf of another must
contain the handwritten signature of an attorney authorized to practice
law in Wisconsin. Counsel cannot delegate the duty to affix a signature
on a notice of appeal to a person not authorized to practice law in
¶ 2 Ralph W. Raush appeals from a circuit court order denying him
coverage under his insurance policy with Acuity.[fn1] Raush's counsel's
name appears on the notice of appeal filed in the circuit court as a
handwritten signature with the initials "sad" appearing below counsel's
name. The signature's appearance suggests that counsel's name was affixed
by "sad." The notice of appeal might be defective for this reason.
Because a defective notice of appeal implicates our jurisdiction over
Raush's appeal from the Acuity order, we required the parties to file
memoranda addressing our jurisdiction. We also required Raush's counsel
to advise this court whether he personally signed the notice of appeal or
whether "sad" affixed his name to the notice of appeal. If "sad" affixed
counsel's name, we required counsel to advise whether "sad" was admitted
to practice law in Wisconsin on the date "sad" affixed counsel's name to
the notice of appeal.
¶ 3 In his memorandum, Raush's counsel advises that he directed "sad,"
his legal assistant, to affix his signature to the notice of appeal after
he prepared and reviewed it. Counsel argues that because he had the legal
capacity to cause the notice of appeal to be filed, the fact that he did
not sign the document should be deemed a technical, not a fundamental,
defect. Assuming that the technical defect can be corrected, counsel has
submitted an amended notice of appeal bearing his proper signature.[fn2]
¶ 4 Acuity, the insurer-respondent, argues that the notice of appeal is
fundamentally defective, and therefore we lack jurisdiction over this
appeal. Acuity asserts three grounds for its position: (1) counsel's
failure to sign the notice of appeal is not a technical defect, (2)
counsel's review of the notice of appeal does not satisfy the signature
requirement, and (3) the amended notice of appeal does not confer
¶ 5 To invoke this court's jurisdiction, the notice of appeal must be
correctly prepared. Jadair Inc. v. United States Fire Ins. Co.,
209 Wis.2d 187, 211, 562 N.W.2d 401 (1997). Whether a defect in the
notice of appeal is fundamental presents a question of law which we
decide independently. Town of Dunkirk v. City of Stoughton, 2002 WI App
280, ¶ 7, 258 Wis.2d 805, 654 N.W.2d 488.
¶ 6 When a notice of appeal is not signed by an attorney when an attorney
is required, the notice of appeal is fundamentally defective and cannot
confer jurisdiction on this court. Jadair, 209 Wis.2d at 211-12. A person
not admitted to practice law has no authority to sign a pleading on
behalf of another to invoke this court's jurisdiction. See id. at 212. A
fundamentally defective notice of appeal cannot be cured by the filing of
an amended notice of appeal which is not otherwise timely vis-à-vis the
order or judgment appealed from. Id. at 211-12.
¶ 7 Jadair, a notice of appeal case, recognizes the importance of the
WIS. STAT. § 802.05(1)(a)[fn3] subscription requirement for a pleading.
Jadair, 209 Wis.2d at 211-12. Section 802.05(1)(a) requires an attorney
of record to sign the pleading in the attorney's own name. Schaefer v.
Riegelman, 2002 WI 18, ¶ 17, 250 Wis.2d 494, 639 N.W.2d 715. In
Schaefer, the court held that a complaint was fundamentally defective
because a Wisconsin attorney permitted an attorney not admitted to
practice law in Wisconsin to affix his name to the complaint. Id., ¶ 33.
In holding that the complaint was fundamentally defective, the court
noted that an attorney cannot delegate the § 802.05(1)(a) subscription
requirement to another. Schaefer, 250 Wis.2d 494, ¶ 19.
¶ 8 In Dunkirk, the court applied Schaefer and held that a summons and
complaint signed by an attorney who was suspended from the practice of
law were fundamentally defective. Dunkirk, 258 Wis.2d 805, ¶ 18.
¶ 9 To avoid the conclusion that the notice of appeal in this case is
fundamentally defective and does not confer jurisdiction on this court,
Raush's counsel relies on State v. Seay, 2002 WI App 37, 250 Wis.2d 761,
641 N.W.2d 437, review denied by State v. Tillman, 2002 WI 121,
257 Wis.2d 116, 653 N.W.2d 889 (Wis. Sept. 3, 2002) (No. 00-3530). Based
on Seay, counsel argues: (1) we have jurisdiction over the appeal
notwithstanding the signature defect and (2) an amended notice of appeal
with a proper signature confers jurisdiction on this court.
¶ 10 We held in Seay that the failure of a pro se litigant to sign a
notice of appeal is not a fatal defect as long as the signature is later
supplied. Seay, 250 Wis.2d 761, ¶¶ 1, 10; see also Ziebell v. Ziebell,
2003 WI App 127, ¶ 8 n. 2, 265 Wis.2d 664, 666 N.W.2d 107, review
denied, 2004 WI 1, ___ Wis.2d ___, 673 N.W.2d 692 (Wis. Nov. 17, 2003)
(No. 02-2552). While the notice of appeal in Seay was unsigned, in this
case, the notice of appeal bears the signature of counsel affixed by
counsel's legal assistant. This signature raises the specter of the
unauthorized> <practice> <of> <law> condemned in Jadair. See Seay, 250 Wis.2d 761,
¶ 6. Counsel cannot reasonably claim that Seay applies here.
¶ 11 Counsel erroneously relies on Novak v. Phillips, 2001 WI App 156,
246 Wis.2d 673, 631 N.W.2d 635, overruled by Schaefer, 250 Wis.2d 494,
¶ 33, for the proposition that he should be permitted to correct the
defective notice of appeal by filing an amended notice of appeal. In
Novak, the court of appeals held that an attorney's rubber-stamped
signature on the summons and complaint was a technical defect which could
be corrected. Novak, 246 Wis.2d 673, ¶ 24. However, the Schaefer court
overruled this result and held that a rubber-stamped signature is a
fundamental, not a technical, defect. Schaefer, 250 Wis.2d 494, ¶ 33.
[W]e now overrule Novak to the extent that the court
of appeals held that the subscription defect was
technical rather than fundamental. As we have stated,
the purpose of requiring a handwritten signature, made
by the attorney of record, is not only to clarify who
is accountable for an invalid claim, but also to
guarantee that an attorney who is familiar with the
procedural and substantive laws of this state has read
the claims and has made an assessment of the claims'
validity. Authorizing rubber-stamped signatures or
allowing someone who is not licensed to practice law
in Wisconsin to sign a pleading runs counter to this
guarantee. To hold that a failure to meet the
subscription requirement is merely technical
jeopardizes judicial economy, erodes attorney
accountability, and lessens the essential protection
that the subscription requirement affords to
Schaefer, 250 Wis.2d 494, ¶ 33 (emphasis added).
¶ 12 Raush's counsel argues that because he had the legal capacity to
draft and file the notice of appeal, Jadair and Dunkirk can be
distinguished as cases in which persons not authorized to practice law in
Wisconsin signed the pleading. We reject this distinction. Jadair and
Dunkirk focus on the execution of the pleading, not on its preparation,
and clearly state that a person not authorized to practice law should not
sign a pleading on behalf of another. Jadair, 209 Wis.2d at 211-12;
Dunkirk, 258 Wis.2d 805, ¶ 18. Counsel's argument gives short shrift to
the WIS. STAT. § 802.05(1)(a) subscription requirement and potentially
creates a situation where fact-finding may be required on the question of
whether the attorney actually prepared the notice of appeal and engaged
in the "deliberate process by which the lawyer guarantees the validity of
a claim." Schaefer, 250 Wis.2d 494, ¶ 30. This would be a poor
allocation of judicial resources, and it injects unnecessary uncertainty
into the filing of pleadings.
¶ 13 Regardless of counsel's legal capacity to draft the notice of appeal
and cause it to be filed, the notice of appeal in this case was not
signed by a person authorized to practice law in Wisconsin. WISCONSIN
STAT. § 802.05(1)(a) does not permit counsel to delegate to a person not
authorized to practice law in Wisconsin the function of affixing
counsel's signature to the notice of appeal. Schaefer, 250 Wis.2d 494,
¶ 19. The Schaefer court's concerns regarding the § 802.05(1)(a)
subscription requirement combined with the Jadair court's prohibition on
the <unauthorized> <practice> <of> <law lead us to the conclusion that the
notice of appeal in this case is fundamentally defective and cannot be
corrected by the filing of an untimely amended notice of appeal. See
Jadair, 209 Wis.2d at 212. We do not have jurisdiction over Raush's
appeal from the order denying him coverage under his Acuity policy.
¶ 14 Although we dismiss Raush's appeal from the Acuity order, his appeal
relating to West Bend Mutual Insurance Company continues.
By the Court. — Appeal dismissed in part.
[fn1] Raush also appeals from a circuit court order denying him coverage
under his policy with West Bend Mutual Insurance Company. The West Bend
notice of appeal is not defective, and the West Bend appeal is unaffected
by this opinion.
[fn2] The notice of appeal from the July 2003 Acuity order was filed on
September 2, 2003. The amended notice of appeal was filed on January 6,
2004. There is no question that the amended notice of appeal was filed
outside of the period for commencing an appeal. See WIS. STAT. § 808.04(1)
(2001-02). Therefore, the amended notice of appeal cannot confer
jurisdiction unless the original notice of appeal can be corrected. All
references to the Wisconsin Statutes are to the 2001-02 version unless
[fn3] WISCONSIN STAT. § 802.05(1)(a) provides, in pertinent part:
Every pleading, motion or other paper of a party
represented by an attorney shall contain the name,
state bar number, if any, telephone number, and
address of the attorney and the name of the attorney's
law firm, if any, and shall be subscribed with the
handwritten signature of at least one attorney of
record in the individual's name. . . . The signature
of an attorney or party constitutes a certificate that
the attorney or party has read the pleading, motion or
other paper; that to the best of the attorney's or
party's knowledge, information and belief, formed
after reasonable inquiry, the pleading, motion or
other paper is wellgrounded in fact and is warranted
by existing law or a good faith argument for the
extension, modification or reversal of existing law;
and that the pleading, motion or other paper is not
used for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the
cost of litigation. If a pleading, motion or other
paper is not signed, it shall be stricken unless it is
signed promptly after the omission is called to the
attention of the pleader or movant.