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Jensen v. McPherson11/13/2002
to be considered the special objects of the solicitude of the courts even after entry of judgment or final order. That statute states in pertinent part:
2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or mentally incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:
a. The minor or mentally incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
b. The personal representative of such minor or mentally incompetent at any time prior to the expiration of one year after the death of the minor or mentally incompetent. Id.
That is, in a case where the court finds after the entry of judgment or final order that a minor was not properly represented in the action or proceeding, the judgment or order shall be vacated on motion of the minor or the personal representative of the minor.
. McPherson makes three main arguments: (1) that Erik was a represented and participating party-plaintiff throughout the 1997 action and that "prior to the appointment of the guardian ad litem, Erik was represented by his general guardians (his parents) and the attorney who filed the 1997 action"; (2) that it was not necessary to have a guardian ad litem appointed to represent Erik during all stages of the litigation of the 1997 action in order for Erik to be deemed a party to the 1997 action; and (3) that the denial of the motion to dismiss Erik's 2001 action and the grant of Erik's motion to consolidate the 2001 action with the 1997 action should be reversed for the public policy reasons of preventing Erik and all minor parties from being allowed to circumvent the rulings of the circuit court by simply refiling his or her action through a guardian ad litem.
. Erik responds by arguing that (1) based on the pleadings, he was not properly named or pled as a plaintiff to the 1997 action; (2) the 1997 action failed to comply with Wis. Stat. ยง 803.01(3) because all of the decisions and orders in that action "were made without a guardian ad litem or general guardian and thus without Erik's interests being represented as is [mandatory under the statute]"; and (3) that the finding that Erik was not a party to the 1997 action does not offend public policy.
. First, we conclude that Erik was not properly named as a plaintiff in the complaint filed by his parents. The caption to the complaint identifies the plaintiffs as follows:
KATHLEEN JENSEN and BRADLEY JENSEN individually and as mother and father and next friend of ERIK JENSEN a minor, and the State Of Wisconsin Department of Health and Family Services (Emphasis added.)
It is not enough to list a person in the caption. Nowhere in the caption is Erik himself named as a plaintiff; rather, Erik's name appears only to explain why his parents were entitled to bring this suit.
. Furthermore, the allegations in the complaint itself reinforce our conclusion. The first numbered paragraph describes the "plaintiffs" in these terms:
1. That the Plaintiffs, Kathleen Jensen and Bradley Jensen are adult residents of the State of Wisconsin, who reside at 930 Ann Street, Genoa City WI 53128 and that Erik Jensen is their minor son born 5/18/96.
There is no separate paragraph that describes Erik or his interests in the 1997 litigation. Additionally, the complaint refers to Erik in perplexingly different ways. Occasionally he is referred to as "the fetus,
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