State v. Jessica D. Smith

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 16, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP438 Cir. Ct. No. 2015FA6145

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

JESSICA D. SMITH,

RESPONDENT-RESPONDENT,

DWAYNE KYLE PEARSON,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
TIMOTHY M. WITKOWIAK, Judge. Affirmed.

Before Colón, P.J., Donald, and Geenen, JJ.
No. 2024AP438

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Dwayne Kyle Pearson, pro se, appeals an order
denying his motion for reconsideration regarding the issue of the circuit court’s
competency in this paternity matter. We affirm.

BACKGROUND

¶2 On September 17, 2015, the State commenced a child support action
against Pearson based on a voluntary paternity acknowledgement he signed with
the mother of his children, Jessica D. Smith. The summons and petition for child
support were electronically filed, together with an electronic transmittal letter
containing the signature of the attorney who was filing those documents.

¶3 In March 2017, Pearson filed a motion challenging the circuit court’s
personal jurisdiction, arguing that he was not properly served. He also challenged
the court’s subject matter jurisdiction, claiming that the State was not a real party
in interest; and he alleged there was insufficient evidence to demonstrate that
Smith had received public assistance through the State, the basis for the State’s
interest in the matter. The circuit court rejected those claims. Pearson appealed,
and this court affirmed. See State v. Smith, No. 2017AP1526, unpublished slip
op. (WI App May 21, 2019).

¶4 Other litigation followed over the next several years relating to the
amount of support and the placement of the children. Then in August 2023,
Pearson filed a motion to dismiss this matter, again challenging personal and
subject matter jurisdiction. His basis for that motion, however, was that the
summons and petition for support filed in September 2015 were defective due to

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the lack of the filing attorney’s signature on those documents. The circuit court
rejected his arguments, citing this court’s decision regarding jurisdiction, and
denied Pearson’s motion.

¶5 Pearson then filed a motion for reconsideration in November 2023,
stating that he had intended to challenge the circuit court’s competency, as
opposed to jurisdiction. The circuit court held a hearing on the motion in February
2024. At the hearing, the State explained that when the summons and petition in
this matter were filed, Milwaukee County had just started requiring documents to
be electronically filed, and the procedures in effect at that time required the filing
of a properly signed electronic transmittal letter together with the summons and
petition. The circuit court accepted this as being “sufficient” to find that it had not
lost competency, and denied Pearson’s motion for reconsideration. This appeal
follows.

DISCUSSION

¶6 “[A] circuit court is never without subject matter jurisdiction.”
Village of Trempealeau v. Mikrut, 2004 WI 79, ¶1, 273 Wis. 2d 76, 681 N.W.2d
190. However, the “failure to comply with a statutory mandate pertaining to the
exercise of subject matter jurisdiction may result in a loss of the circuit court’s
competency to adjudicate the particular case before the court.” Id., ¶9. Put
another way, the circuit court’s competency—its “power … to exercise its subject
matter jurisdiction in a particular case”—may be affected by its “noncompliance
with statutory requirements[.]” City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370
Wis. 2d 595, 882 N.W.2d 738 (citations and internal quotation marks omitted).

¶7 However, “challenges to circuit court competency may be forfeited”
if they are not timely raised. Id., ¶1. For example, in Booth, our supreme court

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held that a challenge of the circuit court’s competency based on errors in a
previously charged OWI count, which was not raised for 22 years, was not timely
and therefore was forfeited. Id., ¶¶1, 26. Similarly, in Mikrut our supreme court
rejected a competency claim that was “asserted … for the first time more than six
months after the judgment was upheld on appeal.” Id., 273 Wis. 2d 76, ¶31.
Whether a circuit court has lost competency, and whether any objection to
competency has been forfeited, are questions of law that this court reviews
de novo. Id., ¶7.

¶8 We conclude that Pearson has forfeited his claim regarding the
circuit court’s competency in this matter. He did not raise this claim until
November 2023, when he filed his motion for reconsideration.1 This was over
eight years after the summons and petition were filed, and approximately four and
one-half years after this court resolved his previous appeal in this matter.
Furthermore, additional litigation in the matter occurred throughout that time. As
our supreme court noted in Booth, such a “considerable delay in raising the issue
suggests an attempt to play fast and loose with the court system,” something that is
“frown[ed] upon” by the courts. Id., 370 Wis. 2d 595, ¶25.

1
By order dated July 23, 2024, this court determined it had jurisdiction over the order
denying Pearson’s motion for reconsideration in which he raised the circuit court’s competency.
However, we also concluded that we did not have jurisdiction over the order denying his motion
to dismiss filed in August 2023, in which he again challenged the circuit court’s personal and
subject matter jurisdiction, after determining that Pearson did not timely appeal the circuit court’s
order concerning those claims.

In his appellate briefs, Pearson appears to argue that he has not forfeited his competency
claim because it was preserved through his initial challenges to subject matter jurisdiction.
However, we note that Pearson argued the opposite in the jurisdictional memorandum he filed in
this matter on May 16, 2024, by order of this court, prior to this court making the jurisdiction
determination described above. In his memo, Pearson stated that the competency issue was a
“new issue.” We therefore reject his argument that he has not forfeited his competency claim
because it was previously preserved.

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No. 2024AP438

¶9 Moreover, even if Pearson’s competency claim was not forfeited, it
fails. The circuit court’s competency to proceed in a matter is implicated “[o]nly
when the failure to abide by a statutory mandate is ‘central to the statutory
scheme[.]’” Mikrut, 273 Wis. 2d 76, ¶10 (citation omitted).

¶10 The purpose of the statutory mandate requiring a signature on all
pleadings, set forth in WIS. STAT. § 802.05 (2023-24),2 has previously been
explained as “simply … plac[ing] a professional obligation on the attorney as an
officer of the court to satisfy himself [or herself] that there are grounds for the
action, defense or motion.” Gaddis v. LaCrosse Prods., Inc., 198 Wis. 2d 396,
405, 542 N.W.2d 454 (1996) (citations omitted). Our supreme court in Gaddis
found that this purpose was fulfilled when a signed complaint was filed with an
unsigned summons. Id. at 399, 405. The court deemed the unsigned summons to
be a “technical defect,” observing that the defendant had conceded it suffered no
prejudice as a result of the missing signature. Id. at 407-08. The court further
noted “Wisconsin’s tradition of avoiding dismissal of an action based on technical
errors and omissions[.]” Id. at 407.

¶11 The same logic is applicable here. In filing the signed electronic
transmittal letter with the summons and petition for support, the filing attorney
was satisfying his professional obligation by representing that there were sufficient
grounds for the action, in accordance with the electronic filing procedures in place
at the time. See id. at 405. To the extent his failure to sign the summons and
petition could be deemed a defect, it would be a technical defect. See id. at 407.
Pearson does not allege prejudice as a result of the lack of signatures of the

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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summons and petition, and the record does not demonstrate that Pearson suffered
any such prejudice given that he has proceeded with litigating this matter during
the many years since the summons and petition were filed. See id. at 407-08.

CONCLUSION

¶12 Therefore, Pearson’s claim that the circuit court did not have
competency to proceed in this matter is forfeited, as well as failing on the merits.
Accordingly, we affirm the circuit court’s order denying his motion for
reconsideration.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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