Douglas Kurtzweil v. Sawyer County Zoning Board of Appeals

2023 WI App 43

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP1577

Complete Title of Case:

STATE OF WISCONSIN EX REL. DOUGLAS KURTZWEIL,

PETITIONER-RESPONDENT,

V.

SAWYER COUNTY ZONING BOARD OF APPEALS,

RESPONDENT-APPELLANT.

Opinion Filed: July 25, 2023
Submitted on Briefs: May 23, 2023
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Thomas J. Duffy, Hayward.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Linda I. Coleman and John R. Carlson of Spears, Carlson &
Coleman, S.C., Washburn.
2023 WI App 43

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.
July 25, 2023
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. 2022AP1577 Cir. Ct. No. 2022CV46

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN EX REL. DOUGLAS KURTZWEIL,

PETITIONER-RESPONDENT,

V.

SAWYER COUNTY ZONING BOARD OF APPEALS,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Sawyer County:
JOHN P. ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 STARK, P.J. This case addresses the procedure that a litigant may
use to seek a certiorari remedy in the circuit court. The Sawyer County Zoning
Board of Appeals (“the Board”) appeals an order granting default judgment to
Douglas Kurtzweil. The court granted Kurtzweil default judgment after the Board
No. 2022AP1577

failed to timely respond to Kurtzweil’s complaint seeking certiorari review of the
Board’s denial of his appeal of a decision by the Sawyer County zoning and
conservation administrator (“the administrator”). The Board argues that no answer
or responsive pleading was required, and that by applying “regular civil procedure
rules to a certiorari proceeding,” the court “did not apply a proper standard of law.”

¶2 We conclude that Kurtzweil properly commenced this certiorari
action pursuant to WIS. STAT. § 801.02(1) and (5) (2021-22)1 by filing with the
circuit court a summons, a complaint, and, later, an amended complaint, and timely
serving the Board with authenticated copies of those documents. The Board failed
to file a timely answer or other responsive pleading. The court, therefore, did not
erroneously exercise its discretion by granting Kurtzweil’s motion for default
judgment against the Board. Accordingly, we affirm.

BACKGROUND

¶3 We take the following facts from Kurtzweil’s amended complaint.
Kurtzweil owns property in Sawyer County that is adjacent to a property known as
Old Arrow Resort. The Old Arrow Resort property consists of two cabins on a
single lot. These cabins predate a Sawyer County zoning ordinance “prohibiting
more than one habitable structure on a lot” and are therefore “legal nonconforming
structures.” The cabins were used sparingly from 1978 to 2017. Beginning in 2017,
the cabins were rehabilitated to be used as short-term rentals operated by a newly
incorporated entity, Old Arrow Resort, LLC.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2022AP1577

¶4 On July 20, 2021, Kurtzweil requested “a written determination from
the Sawyer County Zoning Department as to whether the rental of multiple dwelling
units on the Old Arrow Resort property constitutes use as a ‘resort’ under Sawyer
County Zoning Ordinances.” By letter dated September 24, 2021, the administrator
responded that “we do not think Old Arrow’s use falls within the definition of
‘resort.’” On October 22, 2021, Kurtzweil appealed this determination. Following
a hearing by the Board on April 26, 2022, the administrator’s deputy signed a notice
stating that “on April 26, 2022, the Sawyer County Board of Appeals denied”
Kurtzweil’s appeal.

¶5 On May 13, 2022, Kurtzweil filed a complaint in the Sawyer County
Circuit Court seeking various forms of relief, including an order granting a writ of
certiorari, injunctive relief, an order reversing the Board’s decision, and “such other
and further relief as the Court may deem proper.” On May 16, 2022, the deputy
administrator emailed Kurtzweil a document labeled “Decision,” dated April 27,
2022, that was purportedly signed by the Board chairperson on May 17, 2022.2
Kurtzweil then filed an amended complaint on May 24, 2022, seeking the same
relief as contained in the original complaint. The Board admitted service of the
summons, complaint, and amended complaint on June 1, 2022.

¶6 On July 28, 2022, Kurtzweil moved for a default judgment under WIS.
STAT. § 806.02 based on the Board’s “failure to provide an answer or otherwise

2
As Kurtzweil states in the amended complaint, the date of this signature “presumably is
in error.”

3
No. 2022AP1577

respond to the Plaintiff’s Complaint” within forty-five days of its admission of
service.3 The circuit court issued a notice of hearing for August 29, 2022.

¶7 On August 26, 2022, the Board filed a response to Kurtzweil’s motion
for default judgment. The Board argued that it “was not obligated to meet the
requirements of WIS. STAT. § 806.02 because Kurzweil’s [sic] action is a petition
for a writ of certiorari. It is not a complaint requiring a response and the joining of
issues.” The Board argued that the proper next step was for the circuit court to
“decide whether or not it will issue the writ requiring that the record be submitted
to the court for its consideration.” The Board contended that “[u]nless ordered by
the court, the [Board] is not required to file a responsive pleading.” The Board
appeared and made the same argument at the August 29, 2022 hearing.

¶8 The circuit court disagreed with the Board, explaining that although
using a summons and complaint to seek a writ of certiorari “may be
a … methodology that is … rarely used in Sawyer County,” nonetheless “it is a
methodology that is allowed in the rules of civil procedure.” The court further stated
that this methodology “require[s] a timely answer,” but “the time to … answer has
passed, and the defendants are clearly in default.” The court concluded that “based
on the methodology that the plaintiffs have used, they are entitled to default
judgment.”

¶9 In granting the default judgment, the circuit court noted that “the
defendant still has another avenue to pursue here if they want to” and that its
decision to grant the default judgment was “pending whatever might be coming.”

3
The affidavit supporting Kurtzweil’s motion for default judgment states that the Board
admitted service on June 15, 2022, which would mean that Kurtzweil filed for default judgment
only forty-four days after service. The June 15 date appears to be a typographical error, however,
because the Board’s admission of service is dated June 1, 2022.

4
No. 2022AP1577

Although the court stated that its decision was “a final order for appeal,” it also
stated that “obviously, if something else comes in, I will address it.” Instead of
pursuing any available relief in the circuit court, the Board filed a notice of appeal.

DISCUSSION

¶10 “A circuit court’s decision whether to grant default judgment is
reviewed under an erroneous exercise of discretion standard.” Binsfeld v. Conrad,
2004 WI App 77, ¶20, 272 Wis. 2d 341 679 N.W.2d 851 (citation omitted). “A
court properly exercises its discretion if it examines relevant facts, applies a proper
standard of law and, using a demonstrated rational process, reaches a conclusion
that a reasonable judge could reach.” Smith v. Golde, 224 Wis. 2d 518, 525, 592
N.W.2d 287 (Ct. App. 1999) (citation omitted).

¶11 “[T]he law views default judgments with disfavor and ‘prefers,
whenever reasonably possible, to afford litigants a day in court and a trial on the
issues.’” Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 469, 326 N.W.2d 727 (1982)
(citation omitted). “On the other hand, the circuit court should also be aware of the
party’s and society’s interest in prompt adjudication and ‘the probability that a
policy which excused or tolerated a lawyer’s neglect would foster delay in litigation’
and lower the quality of legal representation.” Id. (citation omitted).

¶12 On appeal, the Board contends that the circuit “court did not apply a
proper standard of law” when it granted default judgment. The Board argues that
“a responsive pleading is not required and is even discouraged at the initial stage of
a certiorari proceeding.”

¶13 We disagree with the Board’s argument that the circuit court did not
apply a proper standard of law. Specifically, WIS. STAT. § 801.02 sets forth the

5
No. 2022AP1577

available methods for filing “[a]n action seeking a remedy available by certiorari.”
Sec. 801.02(5). This provision states that such an action “may be commenced under
sub. (1).” Id. In turn, sub. (1) provides that

[a] civil action in which a personal judgment is sought is
commenced as to any defendant when a summons and
complaint naming the person as defendant are filed with the
court, provided service of an authenticated copy of the
summons and of the complaint is made upon the defendant
under this chapter within 90 days after filing.

Sec. 801.02(1).

¶14 Here, the record demonstrates that Kurtzweil followed the procedure
set forth in WIS. STAT. § 801.02(1). On May 13, 2022, Kurtzweil filed a summons
and complaint naming the Board as defendant and then served the summons and
complaint (along with the amended complaint) on the Board on June 1, 2022, which
is within ninety days after filing. The Board makes no argument that Kurtzweil
failed to comply with § 801.02(1).

¶15 Instead, the Board argues that our case law “has been inconsistent in
its statements regarding required responses in certiorari proceedings.” The Board
further contends that “[s]ome cases go so far as to discourage a response before the
petition is granted.” We disagree with the Board’s assertion that our case law lacks
clarity regarding a defendant’s obligation to respond to a summons and complaint
that seeks a certiorari remedy.

¶16 We addressed this specific procedure used to seek a certiorari remedy
in Nickel River Investments v. City of La Crosse Board of Review, 156 Wis. 2d
429, 457 N.W.2d 333 (Ct. App. 1990). In that case, we explained that filing and
serving a summons and complaint is a permissible way to commence a certiorari
action under WIS. STAT. § 801.02(5). Nickel River, 156 Wis. 2d at 431-32. We

6
No. 2022AP1577

further explained that “[i]f a summons is personally served with a complaint
attached, the defendant has twenty or forty-five days (depending on the defendant)
to serve an answer.” Id. at 432. Based on Nickel River, the Board clearly had an
obligation to respond to a properly filed and served summons and complaint.

¶17 The Board argues that we muddied the waters with our decisions in
Merkel v. Village of Germantown, 218 Wis. 2d 572, 581 N.W.2d 552 (Ct. App.
1998), and State ex rel. Treat v. Puckett, 2002 WI App 58, 252 Wis. 2d 404, 643
N.W.2d 515. In Merkel, we stated that “[a] certiorari proceeding bears no
resemblance to a civil action brought to resolve a dispute between the parties; it
exists only to test the validity of judicial or quasi-judicial determinations, and it
neither contemplates nor authorizes the respondent to interpose any answers, denials
or defenses.” Merkel, 218 Wis. 2d at 580. In Treat, we stated that “in a certiorari
proceeding there is no answer or opposing pleading that ‘joins’ issues of fact or
law.” Treat, 252 Wis. 2d 404, ¶26 (citing Merkel, 218 Wis. 2d at 577). The Board
argues that these statements have introduced confusion regarding its obligation to
respond to Kurtzweil’s summons and complaint under Nickel River.

¶18 The Board is incorrect. Our statements in Merkel and Treat did not
create any confusion regarding the procedural obligations discussed in Nickel River.
Rather, the Board mistakenly reads the quoted language in isolation from the
procedural facts of both cases. Both Merkel and Treat involved petitioners who
initiated an action seeking a remedy of certiorari by serving a writ rather than by
using the process available under ordinary civil actions pursuant to WIS. STAT.
§ 801.02(1). See Merkel, 218 Wis. 2d at 576 (“Merkel commenced this action by
writ of certiorari.”); Treat, 252 Wis. 2d 404, ¶25 (“[A]fter resolving certain issues
regarding service of the writ, the court ordered the respondents to return the record
to the court within thirty days.” (emphasis added)). Thus, in both cases, our

7
No. 2022AP1577

discussion of “a certiorari proceeding” was focused on the method of commencing
an action seeking a certiorari remedy by writ. See § 801.02(5) (“An action seeking
a remedy available by certiorari … may be commenced … by service of an
appropriate original writ on the defendant named in the writ if a copy of the writ is
filed forthwith.”).

¶19 Merkel and Treat are not applicable here, where Kurtzweil
commenced the action by filing and serving a summons and complaint in
accordance with WIS. STAT. § 801.02(1).4 Therefore, those decisions do not create
any confusion regarding our statement in Nickel River that a defendant served with
a summons and complaint must answer in accordance with the applicable rules of
civil procedure. See Nickel River, 156 Wis. 2d at 432.

¶20 In further support of its argument that no responsive pleading was
required, the Board also cites Consolidated Apparel Co. v. Common Council of
Milwaukee, 14 Wis. 2d 31, 109 N.W.2d 486 (1961). In that case, our supreme court
stated that “unlike an answer to a complaint [the return to the writ] does not consist

4
The Board also cites two unpublished decisions, State ex rel. Fisher v. Hayes,
No. 2018AP1379, unpublished slip op. (WI App Nov. 19, 2019), and State ex rel. Bates v. Hayes,
No. 2020AP943, unpublished op. and order (WI App Dec. 22, 2021). Fisher is an unpublished per
curiam opinion, and Bates is a summary disposition order. Under the Rules of Appellate Procedure,
neither of these decisions may be cited as precedent or authority—not even for their persuasive
value. See WIS. STAT. RULE 809.23(3)(a)-(b). We caution counsel for the Board that future
violations of the Rules of Appellate Procedure may result in sanctions. See WIS. STAT. RULE
809.83(2).

Regardless, Kurtzweil correctly points out that, like State ex rel. Treat v. Puckett, 2002
WI App 58, 252 Wis. 2d 404, 643 N.W.2d 515, both unpublished cases that the Board cites are
distinguishable because they each involved a prisoner who filed a petition for a writ of certiorari,
not a summons and complaint. Moreover, we caution the Board against relying on cases involving
prisoner litigation, due to the specific procedural rules that govern these types of actions. See WIS.
STAT. § 801.02(7)(a)2. (specifying additional procedural requirements for “any person who is
incarcerated, imprisoned, or otherwise detained in a correctional institution or who is arrested or
otherwise detained by a law enforcement officer”).

8
No. 2022AP1577

of denials and affirmative defenses.” Id. at 37. However, this statement from
Consolidated Apparel is not helpful to the Board because that case was decided at
a time when “[a]ctions for certiorari … were excluded from the summons and
complaint procedure specified in WIS. STAT. § 801.02(1).” See Tobler v. Door
County, 158 Wis. 2d 19, 24, 461 N.W.2d 775 (1990).

¶21 In Tobler, our supreme court explained that the legislature amended
the relevant statutes in 1981 to render “extraordinary writs unnecessary and allow
extraordinary remedies to be reached via the provisions used for ordinary civil
actions.” Id. (citing Judicial Council Committee Note, 1981, WIS. STAT. § 781.01).
The court further “expound[ed] upon the obvious meaning of the legislature’s
action” by quoting the 1981 Judicial Council Committee notes, which in turn stated
that these legislative changes “make[] the remedy available by one of the
extraordinary writs also available by a final judgment or a provisional remedy in an
ordinary action in circuit court.” Id. (quoting Judicial Council Committee Note,
1981, § 781.01). Because the summons and complaint method of seeking a writ of
certiorari was not available in 1961, Consolidated Apparel’s procedural discussion
is not instructive.

¶22 In its reply brief, the Board makes the additional argument that our
“various opinions regarding certiorari proceedings have been confusing and
inconsistent” regarding whether there are two or three different methods for seeking
a certiorari remedy.5 “[W]e need not address issues or arguments raised for the first
time in a reply brief.” Dane Cnty. Dep’t of Hum. Servs. v. J.R., 2020 WI App 5,
¶40, 390 Wis. 2d 326, 938 N.W.2d 614 (2019) (citation omitted). However, we do

5
We note that in its opening brief the Board expressed no confusion about the fact that
WIS. STAT. § 801.02(5) sets forth “three manners” for commencing a certiorari action.

9
No. 2022AP1577

so here in order to dispel any suggestion that our case law has created confusion
regarding the permissible ways to commence an action seeking a certiorari remedy.

¶23 As the Board notes, several of our published decisions expressly state
that there are three procedures that may be used to commence an action seeking a
certiorari remedy. See Tobler 158 Wis. 2d at 25 (“[U]nder the plain language of
[WIS. STAT. §] 801.02(5), there are three methods by which a certiorari review ‘may
be commenced’: (1) ‘under sub. (1),’ by use of a summons and complaint; (2) ‘by
service of an appropriate original writ’; or (3) ‘by filing a complaint … … if service
of … … the complaint and of an order … … is made upon the defendant.’” (quoting
§ 801.02(5)); Nickel River, 156 Wis. 2d at 431 (“Section 801.02(5) … specifies
three procedures to commence a certiorari action.”); Koenig v. Pierce Cnty. Dep’t
of Hum. Servs., 2016 WI App 23, ¶19, 367 Wis. 2d 633, 877 N.W.2d 632
(“[Section] 801.02(5) sets forth three procedures a party may use to commence a
certiorari action.”).

¶24 The Board argues that we incorrectly stated that there were only two
procedures in State ex rel. DNR v. Walworth County Board of Adjustment, 170
Wis. 2d 406, 489 N.W.2d 631 (Ct. App. 1992). In that case, we stated that the
appellant “correctly observes that there are two different procedures which can be
used to commence certiorari review—a complaint procedure and a writ procedure.”
Id. at 415. However, in the very next sentence, we explained that

the complaint procedure can be pursued by one of two
alternate methods: the complaint and summons method, in
which the respondent has sixty days to answer; or, the
complaint and court order method, which is used when the
time for service or the time for the respondent’s answer
needs to be shortened.

10
No. 2022AP1577

Id. at 415-16. Thus, our decision clearly identified the three methods available for
commencing a certiorari action under WIS. STAT. § 801.02(5). We also specified
that “the complaint and summons method” requires a timely response.6 Walworth
Cnty., 170 Wis. 2d at 416.

¶25 That leaves only Schwochert v. Marquette County Board of
Adjustment, 132 Wis. 2d 196, 201, 389 N.W.2d 841 (Ct. App. 1986), in which we
incorrectly stated that “certiorari actions may be commenced in one of two ways—
by obtaining and serving an original writ or by filing and serving a complaint and
order.” As the Board acknowledges, however, we explicitly withdrew this dictum
four years later. See Nickel River, 156 Wis. 2d at 431 n.2. We therefore fail to see
a good faith basis for the Board’s argument that Schwochert remains a source of
confusion thirty-three years later.

6
We note that this reference to a sixty-day period appears to conflict with our prior
statement that “the defendant has twenty or forty-five days (depending on the defendant) to serve
an answer.” Nickel River Invs. v. City of La Crosse Bd. of Rev., 156 Wis. 2d 429, 432, 427 N.W.2d
333 (Ct. App. 1990). We need not resolve this potential discrepancy here because the Board’s only
contention in the circuit court was that it did not need to file an answer at all, “[u]nless ordered by
the court.” The Board never suggested that it should be given more time to answer, even though
the circuit court gave the Board the opportunity to make that argument.

11
No. 2022AP1577

CONCLUSION

¶26 Kurtzweil commenced this certiorari action by using one of the three
procedures available under WIS. STAT. § 801.02(5): by using ordinary civil
procedure and filing and serving a summons, complaint and amended complaint.
We therefore conclude that the circuit court applied a proper standard of law when
it determined that the Board was required to respond to Kurtzweil’s complaint. The
Board does not suggest that the court erroneously exercised its discretion in any
other manner when it entered default judgment based on the Board’s failure to
respond. We therefore affirm the court’s order granting default judgment to
Kurtzweil.

By the Court.—Order affirmed.

12