Service upon agent in lieu of service upon individual permissible.

• Author: Ziemer, David

Byline: David Ziemer

Service upon an agent in lieu of personal service on the individual is permissible, where the process server served a person claiming to be the defendant's agent, pursuant to sec. 801.11(1)(d), the Wisconsin Court of Appeals held on Nov. 4.

On June 5, 2002, Mared Industries, Inc., filed a complaint against "Alan Mansfield, individually, and d/b/a Diamond Blade Warehouse," alleging breach of contract and intentional interference with contractual relations.

Mansfield is the president of Diamond Blade Warehouse, Inc., an Illinois corporation, with a warehouse facility in Buffalo Grove, Illinois.

On June 10, 2002, William K. Monsen, an Illinois process server, delivered two authenticated copies of the summons and complaint to Michael Levy, an employee of Diamond Blade Warehouse, at the Buffalo Grove facility.

Monsen maintains that Levy told him that he was authorized to accept service on behalf of both Mansfield and Diamond Blade Warehouse. Neither Mansfield nor Diamond Blade Warehouse, Inc.'s registered agent was served personally.

Mansfield's and Mared's attorneys spoke on the telephone afterwards to discuss the case, but no answer was ever filed by Mansfield's attorney. After the time for filing expired, Mared moved for default judgment, and the motion was granted by Milwaukee County Circuit Court Judge Maxine A. White.

Mansfield then filed a motion to reopen the default judgment, alleging that neither Mansfield nor Diamond Blade Warehouse was properly served. The court granted the motion as to Mansfield, but denied it as to Diamond Blade.

The court concluded that the service on Diamond Blade Warehouse was sufficient, because omission of corporate status from service papers does not defeat jurisdiction, because amendments can be made to the pleadings at any time to indicate corporate status.

Mared then moved to amend and appropriately identify the corporate defendant as "Diamond Blade Warehouse, Inc." Diamond Blade Warehouse then moved the court to reconsider the denial of its motion to reopen the default judgment.

The trial court partially vacated its earlier order, and granted Diamond Blade Warehouse's motion to reopen and vacate the default judgment. Ultimately, the trial court dismissed the action in its entirety, concluding that neither party was properly served.

Mared appealed, and the court of appeals affirmed the dismissal of the action against Diamond Blade, in a decision by Judge Patricia S. Curley, but reversed as to...