Richards v. First Union Securities, Inc.
Richards v. First Union Securities, Inc.
Opinion of the Court
¶ 1. First Union Securities, Inc.
I. Facts
¶ 2. On July 23, 2002, Richards filed an action against First Union in part to recover investment losses as the result of alleged violations of the anti-fraud sections of the Wisconsin Uniform Securities Law. The affidavit of service indicates that on July 24 the process server served First Union at its office in Brookfield. According to a subsequent affidavit of the process
¶ 3. In September, First Union contacted Richards to inform him that there was a written agreement which required him to arbitrate his disputes. Richards consented to arbitration and First Union agreed to pay the arbitration filing fee. In addition, Richards agreed to an extension of time for First Union to answer or otherwise respond to the complaint. First Union failed to tender the arbitration filing fee or to file an answer. On October 29, Richards sent a letter to First Union stating that the court had issued a notice of dismissal and that if the arbitration fee was not paid by November 5, the offer to arbitrate would be withdrawn and the lawsuit would proceed. On November 12, Richards filed a motion for default judgment for failure to answer. The court entered default judgment against First Union.
¶ 4. One year later, on November 13, 2003, Richards sent a letter demanding payment of the judgment. When First Union failed to pay the amount owed, Richards began garnishment proceedings. First Union filed an answer to the garnishment on February 9, 2004, and a motion to reopen the default judgment on February 25 based in part on its claim of insufficient service of process.
¶ 5. After submitting its motion, First Union filed the affidavits of Wisniewski, the employee who accepted service, and Ronald McGrath, the branch manager of the Brookfield office. In her affidavit, Wisniewski stated that
¶ 6. The circuit court heard arguments on First Union's motion in April 2004. In a written decision, the circuit court denied the motion. The court wrote "the record clearly reflects that defects in personal service were waived."
II. Standard of Review
¶ 7. Granting, and granting relief from, a default judgment rests within the circuit court's discretion. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 63, 253 Wis. 2d 238, 646 N.W.2d 19; Holman v. Family Health Plan, 227 Wis. 2d 478, 483,
¶ 8. "The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction.. . ." Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 531 (1976). "Whether service of a summons is sufficient to obtain personal jurisdiction over a defendant involves the interpretation and application of a statute to undisputed facts and is reviewed as a question of law." Useni v. Boudron, 2003 WI App 98, ¶ 8, 264 Wis. 2d 783, 662 N.W.2d 672. The party seeking to vacate judgment has the burden of proving lack of effective service. Haselow v. Gauthier, 212 Wis. 2d 580, 587, 569 N.W.2d 97 (Ct. App. 1997).
III. Discussion
¶ 9. First Union maintains that the circuit court's refusal to vacate the default judgment and dismiss Richards' action was in error. As a preliminary matter, First Union challenges the circuit court's determination that it waived its defense of lack of personal jurisdiction. First Union then argues that based on the facts of record, Richards' service of process upon it was not in compliance with the statutory rules governing service
A. Waiver
¶ 10. The circuit court concluded that First Union waived the right to object to a lack of personal jurisdiction for want of proper service of process. It is difficult to discern from the record why the circuit court came to this conclusion and Richards does not argue this point on appeal.
¶ 11. As explained, proper service of a summons and complaint is required to confer personal jurisdiction on the court over the person served. Useni, 264 Wis. 2d 783, ¶ 12. Personal jurisdiction and a party's waiver of jurisdictional defenses are controlled by statute. Sacotte v. Ideal-Werk Krug & Priester Machinen-Fabrik, 119 Wis. 2d 14, 16, 349 N.W.2d 701 (Ct. App. 1984), aff'd, 121 Wis. 2d 401, 359 N.W.2d 393 (1984); see also Wis. Stat. §§801.11 and 802.06(8) (2003-04).
B. Sufficiency of Service of Process
¶ 12. Wisconsin Stat. §§ 180.0504(1) and 801.11(5) (a) specify, respectively, that a plaintiff may invoke personal jurisdiction over a foreign corporation by serving the corporation's registered agent or
[b]y personally serving the summons upon an officer, director or managing agent of the corporation or limited liability company either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
Richards did not exercise the option of serving First Union's registered agent. The dispute in this case is whether Richards' presentation of the summons and complaint to Wisniewski complied with either the direct personal delivery service option or the alternative service option.
1. Personal Delivery Service Option
¶ 13. First Union argued before the circuit court, as it does here, that Wisniewski was not an officer,
¶ 14. The record does not show that Wisniewski was an officer or director of First Union. In Carroll v. Wisconsin Power & Light Co., 273 Wis. 490, 494, 79 N.W.2d 1 (1956), our supreme court defined "managing agent" as "a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an over-all or part basis, i.e., everywhere or in a particular branch or district." The evidence is clear that Wisniewski possessed no such authority in her position in the back office of the First Union Brookfield office. Her authority was not general, but was limited to ensuring the proper completion of forms concerning customer transactions. Because Wisniewski was not an officer, director, or managing agent, she was not one within the class of persons upon whom corporate service could be made.
2. Alternative Service Option
¶ 15. Having determined that Richards did not use the direct personal delivery service option, we turn to the question of whether Richards' presentation of the summons and complaint to Wisniewski satisfied the alternative service option. Whether a party has complied with the alternative service option under Wis. Stat. § 801.11(5)(a) presents two questions: (1) Objectively, was the location where the summons and corn-
¶ 16. First Union submits that the first prong of the alternative service option was not satisfied because McGrath, the "branch manager" for the First Union Brookfield office, was not an officer, director or managing agent and Wisniewski was not "apparently in charge" of the Brookfield office. Richards responds that McGrath was both an officer and a managing agent at First Union. However, because Richards' argument concerning McGrath's status as an officer of the corporation was based entirely on a stricken portion of the record and we find no other evidence to support this contention, we will address in more detail only the question of whether McGrath was a managing agent.
¶ 17. In Carroll, the case in which our supreme court set forth the definition of "managing agent," the court addressed the issue of whether a "generating-station manager" of one of several generator plants
The evidence is clear that [the station manager] possessed no such authority with reference to his employment by the corporation .... His authority was not general, but was limited to the management of the physical operation of the plant and its maintenance, and some physical service at smaller plants of the company.
Id. at 494.
¶ 18. Applying Carroll to the present factual scenario, we conclude that McGrath was not a managing agent of First Union. Our conclusion rests on McGrath's affidavit, as there is no other evidence in the record regarding his position that is of assistance. McGrath's affidavit is silent with regard to the exact nature of the work he performs, the nature of his authority, the scope of his duties, and his precise position within First Union's corporate structure. From the affidavit, we know only that he was the "branch manager" in charge of the First Union Brookfield office. However, as Carroll teaches, the mere title of an employee's position within a corporation does not make
¶ 19. Richards makes a tempting argument that as branch manager McGrath assumed the responsibility of ensuring compliance with state and federal securities laws and, therefore, he possessed the general authority required to satisfy the definition of "managing agent." However, the scant evidence in the record prevents us from drawing such a conclusion.
¶ 20. It may be true that both state and federal securities laws require securities broker dealers to have on file written supervisory procedures designed to prevent and detect violations and that such procedures must include the names of individuals delegated the supervisory responsibilities within the corporation. See Wis. Admin. Code §§ DFI-Sec 4.04(7)(c) and 4.05(2) (Nov. 2003);
¶ 22. There is simply not sufficient evidence to convince us that McGrath had general supervisory authority with regard to the business affairs of First Union. Therefore, service of process upon Wisniewski, regardless of whether she was in charge of the Brook-field office at the time of service, did not constitute proper service of the office of an officer, director or managing agent. See Bar Code Res., 229 Wis. 2d at 292; Hagen, 262 Wis. 2d 113, ¶ 24.
¶ 23. Wisconsin compels strict compliance with the rules of statutory service, even though the consequences may appear to be harsh. Useni, 264 Wis. 2d 783, ¶ 13. Our supreme court has held that service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, despite actual knowledge by the defendant. Id. A judgment rendered where the court lacks personal
By the Court. — Order reversed.
First Union Securities, Inc. is now known as "Wachovia Securities, Inc." We, like the parties and the trial court, will refer to the defendant as First Union.
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
In Bar Code Resources, a Division of Allen Management, Inc. v. Ameritech Information Systems, Inc., 229 Wis. 2d 287, 290-91, 599 N.W.2d 872 (Ct. App. 1999), we referred to the two service options as the "direct personal delivery service option" and the "alternative service option." For continuity and ease of reference, we will use these phrases here.
All references to the Wisconsin Administrative Code are to the November 2003 version unless otherwise noted.
Unless otherwise noted, all references to the Code of Federal Regulations are to the 2005 version.
Dissenting Opinion
¶ 24. (dissenting). The key issue in this case is whether First Union's branch office was a proper place to serve process on First Union. Everyone agrees that process is effectively served when left with someone apparently in charge of a managing agent's office. The only question here then is whether McGrath, the branch manager, was such an agent. The majority voids Richards' default judgment against First Union because "the scant evidence in the record" makes it impossible to ascertain McGrath's precise job description and authority. See majority op., ¶¶ 18-22. The court errs manifestly in two respects. First, Richards has no duty to prove McGrath is a managing agent. Rather, First Union must prove McGrath is not such a person. Second, securities regulations confer certain duties on branch managers as a matter of law. These legally derived powers and responsibilities bring McGrath within the definition of "managing agent," irrespective of whether the factual record hears out his exercise of those functions. Moreover, what sparse evidence the record does contain tends to support McGrath's authority as a managing agent. For these reasons, I respectfully dissent.
¶ 26. In order for First Union to properly meet its obligation to prove ineffective service, it must offer more than McGrath's conclusory declaration that he does not qualify as a managing agent. His bald assertion does not substitute for evidence, as the majority suggests, just because the record is otherwise lacking. To the contrary, First Union must present facts that sufficiently demonstrate why his position as branch manager does not make him a managing agent. Without this showing, First Union cannot prove that the branch office where McGrath works was the wrong place to serve process.
¶ 27. The "scant evidence in the record" convincingly demonstrates First Union's failure to meet its burden. For that reason alone, Richards should prevail. At the very least, if the majority has concerns about the lack of factual information, it should remand the case back to the circuit court to make the proper findings. Instead, it improperly shifts the burden to Richards.
¶ 29. Securities and Exchange Commission, General Rules and Regulations, Securities Exchange Act of 1934, 17 C.F.R. § 240.17a-3 mentions several functions performed by principals that suggest a high degree of "general control, authority, judgment, and discretion . . . either on an overall or part basis." See Carroll v. Wisconsin Power & Light Co., 273 Wis. 490, 494, 79 N.W.2d 1 (1956) (defining "managing agent"). Federal law requires all brokers and dealers in securities to keep certain documents. Sec. 240.17a-3(a). These documents include:
[a] record listing each principal of a member, broker or dealer responsible for establishing policies and procedures that are reasonably designed to ensure compliance with any applicable federal requirements or rules of a self-regulatory organization of which the member, broker or dealer is a member that require acceptance or approval of a record by a principal.*548 documenting that the member, broker or dealer has complied with, or adopted policies and procedures reasonably designed to establish compliance with, applicable federal requirements and rules of a self-regulatory organization of which the member, broker or dealer is a member which require that advertisements, sales literature, or any other communications with the public by a member, broker or dealer or its associated persons be approved by a principal.
[a]n account record including the customer's or owner's name, tax identification number, address, telephone number, date of birth, employment status (including occupation and whether the customer is an associated person of a member, broker or dealer), annual income, net worth (excluding value of primary residence), and the account's investment objectives .... The account record shall indicate whether it has been signed by the associated person responsible for the account, if any, and approved or accepted by a principal of the member, broker or dealer.
Sec. 240.17a-3(a)(17)(i)(A) (emphases added).
¶ 30. Wisconsin securities regulations also suggest that branch managers have a broad degree of general authority over their particular branches. Wisconsin Admin. Code § DFI-Sec 4.04(7) (c) requires every branch office, upon opening, to file certain information, including the name of the supervisor at that office. Like the federal regulations, Wis. Admin. Code § DFI-Sec. 4.05(2) also requires a complete set of written supervisory procedures to be kept at every branch office, along with a system for implementing them. These procedures and implementation system are designed to prevent and detect any violations of Wisconsin securities
¶ 31. These various regulations plainly reveal that principals, including branch managers, have the authority, and often the duty, to approve accounts, to implement measures that comply with applicable securities regulations, and to approve advertisements, sales literature, and other communications to the public. These functions make a branch manager of a securities broker or dealer far different from the plant manager in Carroll. That individual's functions were limited to physical operation and maintenance of the plant, essentially making sure that machinery ran properly. Carroll, 273 Wis. at 494. A branch manager's duties, by contrast, reveal a broad degree of supervisory and policy making authority as well as the power to act for the company in a representative capacity vis-á-vis the public. Cf. also Black's Law Dictionary 1230-31 (8th ed. 2004) (defining a principal as "[o]ne who authorizes another to act... as an agent" or "who has primary responsibility on an obligation.").
¶ 32. The majority admits that the responsibilities required by applicable securities regulations impose fiduciary duties on principals. Yet, it questions "whether the carrying out of such fiduciary obligations can be equated with the general supervisory authority over the business affairs of a corporation required for a 'managing agent' under Carroll." Majority op., ¶ 21. I
¶ 33. Despite the scant information in the record, it does contain evidence that McGrath, acting in his capacity as branch manager, exercised some of the authority applicable securities regulations delegate to principals. The record contains, for example, an agreement between Richards and First Union's predecessor, Blunt Ellis & Loewi. The form contains a signature line marked "branch approval" with a box reserved for the branch office manager's signature. The fact that the branch manager signed the form is consistent with federal regulations that confer upon branch managers and other principals the authority to approve accounts.
¶ 34. Moreover, as the above discussion indicates, someone at each branch office has the responsibility to ensure compliance with securities regulations. Consistent with that mandate, McGrath admits in his affidavit, "I am the person in charge of the Brookfield Branch office ... I was also the person in charge of the Brook-field Branch office during the entire year of 2002." It simply is not reasonable to assume without solid evidence to the contrary that someone other than "the
¶ 35. First Union should not be allowed to defeat the default judgment in Richards' favor. Securities regulations expressly recognize branch managers as principals endowed with certain authority. The functions enumerated in these laws are consistent with the broad general authority of a managing agent. First Union essentially argues that although McGrath has the title "branch manager," he does not have any of the legally imposed fiduciary duties that securities regulations assign to a "branch manager." Perhaps First Union uses different terminology to describe various positions within its structure than that used in the securities regulations and has assigned a role equivalent to "branch manager" to someone other than McGrath. However, I do not see how this court can accept such a position without some factual basis. If we are not going to send the case back to the circuit court for appropriate fact finding in this regard, we should affirm. Because the majority instead misallocates the burden of proof to Richards, I must dissent.
Reference
- Full Case Name
- Gary Richards, Plaintiff-Respondent, v. First Union Securities, Inc., Defendant-Appellant
- Cited By
- 5 cases
- Status
- Published