from an order of the circuit court for Washington County: No.
2016CV628 JAMES G. POUROS, Judge. Affirmed in part; reversed
in part and cause remanded.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
Nancy Zelman appeals pro se from the circuit court's
grant of summary judgment to the Town of Erin, Plan
Commission of the Town of Erin and Town Board of the Town of
Erin (collectively "Respondents"). Zelman claims
the court erred in granting summary judgment on the bases
that the Town is not a proper party and her amended
certiorari complaint was not timely filed. We agree the Town
is not a proper party and was properly dismissed, but we
conclude the amended complaint was timely filed and,
therefore, summary judgment was improperly granted in favor
of the Plan Commission and Town Board. Thus, we affirm in
part, reverse in part, and remand to the circuit court for
On May 2, 2016, the Plan Commission approved a conditional
use permit (CUP) for Zelman's neighbor to open a wine
business. Zelman appealed that decision to the Town Board.
During a September 19, 2016 hearing on the appeal, at which
Zelman was present, two members of the board voted in favor
of a motion to deny the CUP and two members voted against the
motion, resulting in a failure of the motion.
According to an affidavit of Zelman, between September 19,
2016, and October 10, 2016, she "spoke in person, or via
telephone" to the clerk for the Town, "continually
requesting a copy of the final CUP"
and was informed by [the clerk] that said CUP was not
finalized and signed by all required parties. That Town Board
Chair Dennis Kenealy (who also serves as Chair of Defendant
Plan Commission), signed said CUP on 22 September, 2016. See
Plaintiff's Exhibit #13). [Zelman] was also informed by
[the clerk] that Chair Kenealy could not allow said CUP to be
filed with and be recorded in the Office of the Register of
Deeds for Washington County, Wisconsin until the applicant
… would come in to the Town of Erin office, and sign
said CUP.… [The applicant's] signature was not
obtained until 3 October, 2016 (see Plaintiff's Exhibit
13); and that the Secretary of the Defendant [Plan]
Commission did not sign said CUP until 6 October 2016 (see
Plaintiffs Exhibit 13). [Zelman] was also told by [the
clerk], sometime before 6 October, 2016 ... the need for some
clarification of some facts and "discrepancies"
pertinent to said CUP .... That [the clerk] informed [Zelman]
at each conversation that there was no final CUP to forward
[Zelman]. Then [the clerk] personally called [Zelman] on or
about 10 October, 2016 and informed [Zelman] that the CUP had
now been finalized and signed by all required parties, and
had been forwarded to the Register of Deeds, Washington
County, Wisconsin for recording, and that [Zelman] could come
in to the Erin Town Hall and have a copy of said CUP made,
when said recorded CUP was received back by the Town of Erin
clerk. [Zelman] called the Register of Deeds of Washington
County, Wisconsin on 11 October, 2016 and was told that said
CUP was duly recorded on 10 October, 2016 and [Zelman] then
went directly to the Register of Deeds of Washington County,
Wisconsin and obtained a certified copy of said CUP on 11
13 of Zelman's affidavit is a copy of the CUP recorded by
the register of deeds. As Zelman stated in her affidavit, it
was signed by Kenealy on September 22, the applicant on
October 3, and the secretary of the Plan Commission on
October 6, and was recorded with the register of deeds for
the county on October 10.
On October 12, 2016, Zelman filed a certiorari action naming
the Town of Erin as the only defendant. Following the filing
of a motion to dismiss by the Town, asserting Zelman had
named the wrong party in that the "Town" had not
issued the CUP, Zelman filed an amended complaint on November
9, 2016, adding the Plan Commission and Town Board as
defendants. Respondents filed another motion to dismiss,
arguing the amended complaint was not timely under WIS. Stat.
§ 68.13(1) (2015-16) because it had been filed more than
thirty days after the September 19, 2016 Town Board vote on
the motion to deny the CUP. The circuit court converted the
motions into ones for summary judgment and afforded the
parties opportunity to submit additional materials. The court
subsequently granted Respondents' motions on the bases
they asserted. Zelman appeals.
We review de novo a grant of summary judgment, applying the
same standards as the circuit court. Smith v. Dodgeville
Mut. Ins. Co., 212 Wis.2d 226, 232, 568 N.W.2d 31 (Ct.
App. 1997). Summary judgment is appropriate where there are
no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Green Spring
Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816
Zelman argues the circuit court erred in dismissing her claim
against the Town on the basis that it was not a proper party.
Respondents disagree, asserting Zelman's amended
complaint fails to state a claim upon which relief may be
granted as to the Town because the Town was not a proper
party in that it "issued no decisions or determinations
in the instant case." Respondents are correct.
Whether Zelman's amended complaint fails to state a claim
against the Town upon which relief may be granted because the
Town is not a proper party, see M & I Marshall &
Ilsley Bank v. Town of Somers, 141 Wis.2d 271, 285, 414
N.W.2d 824 (1987) (holding that appellant "failed to
state a claim upon which relief may be granted" because
it "failed to name the proper party"), is a legal
question we review independently, see John Doe 1 v.
Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303
Wis.2d 34, 734 N.W.2d 827.
Relying on our decision in Acevedo v. City of
Kenosha, 2011 WI.App. 10, ¶¶1, 6, 331 Wis.2d
218, 793 N.W.2d 500 (2010), the circuit court here properly
dismissed Zelman's action against the Town. The plaintiff
in Acevedo originally filed a certiorari action
against only the municipality, the city, pursuant to
Wis.Stat. § 68.13(1). That provision states:
Any party to a proceeding resulting in a final determination
may seek review thereof by certiorari within 30 days of
receipt of the final determination. The court may affirm or
reverse the final determination, or remand to the decision
maker for further proceedings consistent with the court's
city moved to dismiss on the ground that the complaint failed
to state a claim upon which relief could be granted because
the city was not a proper party. The city asserted the
plaintiff instead should have named the city's zoning
board of appeals as the defendant because it was the board
that had affirmed an interpretation of the city's zoning
ordinance by the zoning administrator that was detrimental to
the plaintiff. Acevedo, 331 Wis.2d 218,
¶¶1, 6. The plaintiff subsequently amended her
complaint to add the board as a defendant. Id. The
circuit court eventually granted the city's motion to
dismiss it as a party. Id., ¶1.
On appeal, we expressed:
Certiorari is an extraordinary remedy by which courts
exercise supervisory control over inferior tribunals,
quasi-judicial bodies and officers. Certiorari is used to
test the validity of decisions made by administrative or
quasi-judicial bodies. The scope of certiorari extends to
questions of jurisdiction, power and authority of the
inferior tribunal to do the ...