Mullen v. Braatz, 93-2076

• Decision Date: 26 October 1993
• Docket Number: No. 93-2076,93-2076
• Citation: 179 Wis.2d 749,508 N.W.2d 446
• Parties: Joseph MULLEN, Trace Mullen, and Steve Feldt, Plaintiffs-Appellants, v. Ronald BRAATZ, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 446

508 N.W.2d 446

179 Wis.2d 749

Joseph MULLEN, Trace Mullen, and Steve Feldt, Plaintiffs-Appellants, v. Ronald BRAATZ, Defendant-Respondent.

No. 93-2076.

Court of Appeals of Wisconsin.

Submitted on a Motion Aug. 27, 1993.

Opinion Released Oct. 26, 1993.

Opinion Filed Oct. 26, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Joseph Mullen, Trace Mullen and Steve Feldt (Mullen) appeal a judgment dismissing their complaint against Ronald Braatz. Braatz moves to dismiss the appeal, contending that we are without jurisdiction because the notice of appeal was not timely filed. Braatz contends that he mailed a notice of entry of judgment, thus shortening the time for filing a notice of appeal to forty-five days. He argues that it is immaterial whether Mullen actually received it because service is complete upon mailing.

We conclude that the presumption that mail sent is received is rebuttable. Therefore, service is complete upon mailing unless the recipient can demonstrate that the mailed notice was not actually received. This issue requires a factual determination whether Mullen actually received the notice of entry of judgment and we must remand the matter to the trial court for further proceedings.

Judgment was entered on May 7, 1993. On May 11, Braatz filed a notice of entry of judgment with the clerk of court and claims to have sent a copy to Mullen. On August 4, Mullen filed the notice of appeal with the trial court. Braatz moved to dismiss the appeal based upon his affidavit that he served the notice of entry of judgment by mail thus shortening the time for initiating an appeal to forty-five days. See sec. 808.04(1), Stats.

Mullen replied by various affidavits that he never received the notice of entry of judgment. His attorney of record attested that no notice of entry of judgment had been received. His counsel's legal secretary affirmed that she had no recollection of the notice being received. Also, an associate counsel attested that he reviewed all pleadings and correspondence and had not found the notice of entry of judgment or related correspondence.

Relying on Soquet v. Soquet, 117 Wis.2d 553, 345 N.W.2d 401 (1984), Braatz argues that because he mailed the notice of appeal, service is complete. Consequently, he concludes that any proof of non-receipt is immaterial. Braatz also relies on Boeck v. State Highway Comm'n, 36 Wis.2d 440, 153 N.W.2d 610 (1967), for the proposition that service is complete upon mailing and the addressee bears the risk of non-delivery.

Mullen does not dispute that the notice was mailed. Rather, Mullen argues that he is entitled to an opportunity to show whether it was received. Mullen contends that for the purposes of sec. 808.04(1), Stats., service is complete upon mailing unless the intended recipient can demonstrate that the notice was not received. We agree.

A timely notice of appeal is a prerequisite to our jurisdiction. Section 809.10(1)(b), Stats. With exceptions not relevant here, an appeal to the court of appeals must be initiated within forty-five days of entry of the judgment if written notice of entry of judgment is properly given, or ninety days if it is not. Section 808.04(1), Stats. To "give" notice of appeal has been held to be synonymous with "service" of the notice. Soquet, 117 Wis.2d at 557, 345 N.W.2d at 403. Under sec. 801.14(2), Stats., "[s]ervice by mail is complete upon mailing."

However, "[s]tatutes giving the right of appeal are liberally construed, and an interpretation which will work a forfeiture of that right is not favored." Soquet, 117 Wis.2d at 560, 345 N.W.2d at 404. Also, if a statute is open to more than one reasonable construction, the construction that will accomplish the legislative purpose and avoid unconstitutionality must be adopted. Madison Metro. Sewerage Dist. v. Stein, 47 Wis.2d 349, 357, 177 N.W.2d 131, 135-36 (1970).

The mailing of a letter creates a presumption that the letter was delivered, but such presumption may not be given conclusive effect without violating the due process clause. See Solberg v. Secretary of DH & SS, 583 F.Supp. 1095, 1097 (E.D.Wis.1984). A rebuttable presumption, which merely shifts to the challenging party the burden of presenting credible evidence of nonreceipt, is constitutional. Id. In Reeves v. Midland Cas. Co., 170 Wis. 370, 377, 174 N.W. 475, 477 (1919), our supreme court ruled that the proof of mailing raised a presumption of receipt and, together with testimony that the notice was not received, created a question of fact.

We do not read Boeck as broadly as Braatz suggests. Boeck held that the addressees bore the risk of nondelivery because "[t]he only reason they did not 'receive' the jurisdictional offer is because Mrs. Boeck refused to accept it from the postman." Id. 36 Wis.2d at 446, 153 N.W.2d at 613. Our supreme court concluded that the appellant could not complain of defective service by mail because service was effective upon mailing. Id. at 444-45, 153 N.W.2d at 612. In so holding, the court discussed rulings from various jurisdictions to the effect that service by mail is complete upon mailing. Id. at 445, 153 N.W.2d at 612-13. See also Carter v. McGowan, 524 F.Supp. 1119, 1121 (D.C.Nev.1981) (mailing to plaintiff at his last known address constituted service); Freed v. Plastic Packaging Materials, Inc., 66 F.R.D. 550, 551 (E.D.Pa.1975); 31A C.J.S. Evidence § 136 (1964); 58 Am.Jur.2d Notice § 34 (1989) (day of deposit is the effective date of mailing). Here, nothing in the record indicates that Mullen may have refused or avoided the delivery of the notice.

To the extent these authorities could be interpreted to permit a conclusive presumption, they cannot control. We must adopt a reasonable construction of a statute that will avoid unconstitutionality. Madison Metro., 47 Wis.2d at 357, 177 N.W.2d at 135-36. In United States v. Bowen, 414 F.2d 1268, 1273-77 (3d Cir.1969), the court of appeals discussed the effect of a presumption that mail sent is received, concluding that no legislature "may make the proof of one fact conclusive proof of another fact in any proceeding, civil or criminal, to the detriment of a private party." Id. at 1273.

The Legislature does not possess the power to declare what shall be conclusive evidence of a fact as such a declaration would be an invasion of the power of the judiciary.

Id. at 1275 (quoting Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E.2d 447, 450 (1936)). The court further stated:

This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.

Id. at 1275-76 (quoting Heiner v. Donnan, 285 U.S. 312, 329, 52 S.Ct. 358, 362, 76 L.Ed. 772 (1932)). The court emphasized that what was defective about the mail presumption was that it was conclusive that the mail was received. Bowen, 414 F.2d at 1276. A rebuttable presumption, which places the burden of proof on the non-recipient to show that the letter was not actually received, is constitutional. Id. at 1276-77.

We recognize that Bowen arose out of a criminal prosecution for failing to report for induction, but conclude that its reasoning applies to either a civil or criminal proceeding. First, it expressly says so. Id. at 1273. Second, it relies on authorities arising from civil as well as criminal proceedings. See id. at 1274-76.

Soquet, on which Braatz also relies, does not hold otherwise. In Soquet, the appellant's attorney received a letter from the...