Bernegger v. Elec. Registration Info. Ctr.

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Peter Bernegger, Plaintiff-Appellant-Cross-Respondent, v. Electronic Registration Information Center Inc., Defendant-Respondent-Cross-Appellant.

No. 2024AP168

Court of Appeals of Wisconsin, District IV

November 27, 2024

This opinion will not be published.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

APPEAL and CROSS-APPEAL from an order of the circuit court for Waupaca County No. 2023CV157: TROY L. NIELSEN, Judge.

Before Kloppenburg, P. J., Graham, and Nashold, JJ.

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).

PER CURIAM.

¶1 In this public records case, Peter Bernegger requested numerous documents from the Electronic Registration Information Center, Inc. ("ERIC"). ERIC refused to provide any documents to Bernegger, asserting that it is not an "authority" subject to Wisconsin's public records law, WIS. Stat. §§ 19.31-.39 (2021-22).^[1] Based on this response, Bernegger filed a petition (the "complaint") seeking a declaration of his rights with respect to the requested documents, a mandamus order directing ERIC to produce the requested documents, and punitive damages. After ERIC did not timely file an answer to the complaint, Bernegger filed a motion for default judgment. ERIC filed a brief opposing Bernegger's motion for default judgment arguing, in part, that the complaint fails to state a claim on which relief may be granted because ERIC is not an authority subject to the public records law. Separately, ERIC filed a motion to dismiss the complaint for improper service and lack of personal jurisdiction.

¶2 The circuit court denied ERIC's motion to dismiss for improper service. The court also denied Bernegger's motion for default judgment and dismissed the complaint on the ground that the complaint fails to state a claim on which relief may be granted, concluding that the complaint "does not contain allegations" showing that ERIC is a "quasi-governmental corporation" which is defined as an authority in Wisconsin's public records law. See WIS. STAT § 19.32(1) (defining an "authority" as including a "quasi-governmental corporation").

¶3 Bernegger appeals the circuit court's order denying his motion for default judgment and dismissing his complaint. Bernegger argues that the court erred by addressing his motion for default judgment without providing notice and an opportunity to be heard, and by considering material outside the complaint. Alternatively, Bernegger argues that the court erred when it denied his motion for default judgment and dismissed the complaint on the ground that the complaint fails to state a claim on which relief may be granted specifically that the complaint fails to contain allegations showing that ERIC is a quasi-governmental corporation subject to Wisconsin's public records law. ERIC cross-appeals arguing that the court erred in determining that ERIC was properly served and, accordingly, that it had personal jurisdiction over ERIC.

¶4 We conclude that Bernegger has forfeited his argument that the circuit court erred by addressing his motion for default judgment without providing notice and an opportunity to be heard. We further conclude, on our de novo review, that the complaint fails to state a claim on which relief may be granted because it fails to allege facts that, taken as true show that ERIC is a quasi-governmental corporation subject to Wisconsin's public records law. Because we conclude that the court's denial of the motion for default judgment and dismissal of the complaint were appropriate on this ground we need not address either Bernegger's argument that the court erred by considering material outside the complaint or ERIC's argument that it was not properly served, and we do not consider those arguments further. See Walgreen Co. v. City of Madison, 2008 WI 80, ¶2, 311 Wis.2d 158, 752 N.W.2d 687 (noting that when resolution of one issue is dispositive, we need not reach other issues raised by the parties). Accordingly, we affirm.

BACKGROUND

¶5 The following primarily procedural facts are undisputed.

¶6 Between November 2021 and May 2023, Bernegger sent eight emails to ERIC requesting documents pursuant to Wisconsin's public records law.^[2] ERIC either did not respond to Bernegger's emails or responded that ERIC is a nonprofit organization not subject to Wisconsin's public records law. On June 21, 2023, Bernegger filed a complaint seeking to enforce the public records law against ERIC, which Bernegger alleged is a nonprofit organization with an address in Washington, D.C. On June 28, 2023, Bernegger faxed written discovery requests, which included requests for admissions, to the fax number listed on ERIC's website.

¶7 On August 15, 2023, by which time ERIC had not filed an answer to the complaint or responded to Bernegger's discovery requests, Bernegger filed a motion for default judgment against ERIC along with a supporting brief and ten exhibits. After filing a special notice of appearance, ERIC filed a brief in opposition to Bernegger's motion for default judgment, arguing that Bernegger failed to satisfy the standards for default judgment because: (1) Bernegger failed to properly serve ERIC; and (2) ERIC is not an authority subject to Wisconsin's public records law, and, therefore, the complaint fails to state a claim on which relief may be granted.

¶8 On September 29, 2023, ERIC filed a notice of motion and motion to dismiss the complaint for improper service and lack of personal jurisdiction, along with a supporting affidavit. The notice of motion indicated that the motion was scheduled for a hearing on October 19, 2023. Bernegger filed a brief in opposition to the motion, along with supporting affidavits and exhibits, arguing that he complied with the requirements for service on a foreign corporation set forth in Wis. STAT. § 801.11(5)(a). Bernegger and ERIC each also filed a motion for leave to file additional documents. Each party opposed the other's motion for leave. Bernegger also filed a "notice" in which he asserted that his requests for admission were deemed admitted.

¶9 At the motion hearing on October 19, 2023, the circuit court told the parties that it would "work through" all of the motions that had been filed, not just ERIC's motion to dismiss for improper service. Neither party objected to this manner of proceeding. The court first heard argument from Bernegger and ERIC on their respective motions for leave to file additional documents and granted both motions. The court next heard argument on ERIC's motion to dismiss for improper service and took that matter under advisement. The court then addressed Bernegger's motion for default judgment. Both parties made arguments for or against the motion. ERIC focused its argument on its contention that the complaint fails to state a claim on which relief may be granted because ERIC is not a quasi-governmental corporation subject to Wisconsin's public records law. Bernegger asserted that ERIC is a quasi-governmental corporation. Both parties referenced facts not alleged in the complaint. The court took the motion for default judgment under advisement as well.

¶10 In January 2024, the circuit court issued a written order addressing the motions that it had taken under advisement. The court denied ERIC's motion to dismiss for improper service, concluding that Bernegger properly served ERIC under WIS. STAT. § 801.11(5). The court denied Bernegger's motion for default judgment and dismissed the complaint on the ground that the complaint fails to state a claim on which relief may be granted, accepting ERIC's arguments that the complaint "does not contain allegations" showing that ERIC is a quasi-governmental corporation subject to Wisconsin's public records law. Specifically, the court explained: "If the Court accepts ERIC's arguments" that the complaint "does not contain allegations [on which relief] can be granted as a matter of law," then "the case should also be dismissed as [the complaint] would fail to state a claim [on] which relief may be granted." The court did not address Bernegger's "notice" that his requests for admission were deemed admitted.

¶11 This appeal and cross-appeal follow.

DISCUSSION

¶12 As stated, we address in this opinion Bernegger's arguments that the circuit court erred by: (1) addressing his motion for default judgment without providing notice and an opportunity to be heard, and (2) then denying his motion for default judgment and dismissing the complaint based on its conclusion that the complaint "does not contain allegations" showing that ERIC is a quasi- governmental corporation subject to Wisconsin's public records law and, therefore, fails to state a claim on which relief may be granted.^[3]

¶13 We first explain our conclusion that Bernegger has forfeited his argument that the circuit court erred by addressing his motion for default judgment without providing notice and an opportunity to be heard. We next explain our conclusion that the court properly denied the motion for default judgment and dismissed the complaint because the complaint fails to allege facts sufficient to establish that ERIC is a quasi-governmental corporation within the meaning of Wisconsin's public records law, and, therefore, the complaint fails to state a claim under WIS. STAT. §§ 19.31-.39.

I. Forfeiture

¶14 To repeat, Bernegger argues that the circuit court erred in addressing his motion for default judgment without providing notice and an opportunity to be heard. However, as we explain, Bernegger did not object, despite being given several opportunities to do so, when the court proceeded to address the motion for default judgment after the parties had exchanged briefs in support...