Welty v. Heggy

• Citation: 369 N.W.2d 763,124 Wis.2d 318
• Decision Date: 18 April 1985
• Docket Number: No. 84-198,84-198
• Parties: Carl WELTY and Susan Welty, Plaintiffs-Respondents, v. David HEGGY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 763

369 N.W.2d 763

124 Wis.2d 318

Carl WELTY and Susan Welty, Plaintiffs-Respondents, v. David HEGGY, Defendant-Appellant.

No. 84-198.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 9, 1984.

Opinion Released April 18, 1985.

Opinion Filed April 18, 1985.

Review Denied.

Frank X. Kinast and Christopher G. Kinast, Beloit, for defendant-appellant.

Margaret Kemp-Williams and Grutzner, Byron, Holland & Vollmer, S.C., Beloit, for plaintiffs-respondents.

Before GARTZKE, P.J., DYKMAN, J. and BRUCE F. BEILFUSS, Reserve Judge.

BEILFUSS, Reserve Judge.

This is a consolidated appeal from a default judgment and an order denying defendant's motion to set aside that judgment. The judgment granted compensatory and punitive damages for defendant's intentional infliction of emotional distress and property damage.

The defendant contends on appeal that personal jurisdiction was not obtained over him because plaintiffs failed to exercise reasonable diligence in their service of process and in their attempts to obtain his post-office address for the mailing component of service by publication. The defendant further contends that the trial court abused its discretion by not setting aside the judgment pursuant to defendant's motion. We hold that the trial court acquired personal jurisdiction over the defendant and that the court did not abuse its discretion by denying relief from the judgment. We remand, however, for retrial on punitive damages because that controversy was not fully tried. Sec. 752.35, Stats.

This action was initiated in July of 1983 after a history of acrimonious and abusive conduct by the defendant toward the plaintiffs. The plaintiffs made repeated unsuccessful attempts to serve summonses on the defendant at his home. Inquiries were made to determine where the defendant might be served, with no results. The defendant testified he was outside Wisconsin from mid-July 1983 to January 1984, although several witnesses saw the defendant at his home at various times during this time period. The trial court found that defendant was seen at his residence during this time period, that he had intentionally evaded service of the summons and complaint, and that he had actual notice of this action.

The plaintiffs effected service by publication and mailing. Copies of the summons and complaint were mailed to the only four addresses of defendant known to the plaintiffs; they were all "return(ed) to sender" by the postal department.

The trial court held a default hearing, and judgment was entered for plaintiffs totaling $356,163.16 plus costs of $315.74 on December 12, 1983. Punitive damages constituted $200,000 of the total judgment. The defendant moved to set aside the judgment, pursuant to sec. 806.07(1), Stats., on January 14, 1984. This motion was denied, the court concluding that the defendant failed to show excusable neglect or reasonable prudence, that the punitive damages were not excessive, and that opening the judgment would be an injustice to the plaintiffs.

Personal Jurisdiction

The defendant contends that plaintiffs did not invoke the court's personal jurisdiction because of improper service of process under sec. 801.11, Stats. That section's prescriptions must be followed. Actual notice alone is insufficient:

[A]ctual notice alone does not settle the question. This court has held that when a statute prescribes how service is to be made, compliance with the statute is required for personal jurisdiction even where the defendant has actual notice of the summons and complaint. 519 Corp. v. Department of Transportation, 92 Wis.2d 276, 287, 284 N.W.2d 643 (1979); Danielson v. Brody Seating Co., 71 Wis.2d 424, 429, 238 N.W.2d 531 (1976). The question is, were the [statutory] provisions ... complied with.

Horrigan v. State Farm Ins. Co., 106 Wis.2d 675, 681, 317 N.W.2d 474, 477 (1982). Section 801.11 provides in relevant part:

A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:

(1) NATURAL PERSON. Except as provided in sub. (2) upon a natural person:

(a) By personally serving the summons upon the defendant either within or without this state.

....

(c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence.

The plain meaning of sec. 801.11(1) requires service under subsection (1)(a) to be attempted with reasonable diligence before an alternative method of service is employed. The defendant concedes "that plaintiffs exercised reasonable diligence to personally serve defendant within the State of Wisconsin" ¹ but contends that service "without this state" (sec. 801.11(1)(a)) was not attempted with reasonable diligence.

The supreme court has treated "reasonable diligence" as a finding of fact to be affirmed unless against the great weight and clear preponderance of the evidence. See West v. West, 82 Wis.2d 158, 165, 262 N.W.2d 87, 90 (1978); Span v. Span, 52 Wis.2d 786, 790, 191 N.W.2d 209, 212 (1971). ² This test is essentially the same as the clearly erroneous standard of sec. 805.17(2), Stats., which we now apply to findings made by the court. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct.App.1983). The basic facts regarding plaintiffs' diligence are undisputed, however, and the determination of appropriate service of process is therefore a question of law.

Although case law defining reasonable diligence is sparse, sec. 801.11, Stats., does require pursuit of "leads or information reasonably calculated to make personal service possible." West, 82 Wis.2d at 166, 262 N.W.2d at 90. Rock County deputy sheriffs made repeated attempts to personally serve the defendant at his Denture Lane home in the Town of Turtle from July through December 1983 ³. Several of the process servers knew the defendant, and knew he resided at the Denture Lane home. Inquiries regarding defendant's whereabouts were made of other deputies and Town of Turtle officers, but no other addresses were known. One of the deputies attempting service had previously inquired of the town clerk where the defendant might be found, and as a result was led to inquire at "Varney Printers" on Cross Street in Beloit, but was unable to serve the defendant. No one at Varney Printers had heard of the defendant.

The repeated attempts to serve the defendant at the Denture Lane home were reasonable in light of Mr. Welty's testimony that he observed things at the defendant's residence which led him to infer that the defendant was there at the time service was attempted. The plaintiffs saw cars parked in the driveway, clothes hung on the line, and lights on in the house. When such sightings occurred, plaintiffs phoned their attorney to suggest attempts at service. The defendant's presence was corroborated by other witnesses. Neighbors and Town of Turtle road workers personally observed the defendant at his Denture Lane home during the time service was attempted. The trial court found the defendant was seen at his residence during this period, and that the defendant intentionally evaded service. These findings of fact are not clearly erroneous.

Because the defendant was at his residence and repeated attempts at service were made, attempts to locate and serve the defendant outside the state might have been unnecessarily duplicative. But attempts to locate the defendant, through inquiries, were made to determine whether he was within or without the state. All information obtained indicated he would be found at Denture Lane. West suggests that under these circumstances, immediate family members should be contacted, 82 Wis.2d at 166-67, 262 N.W.2d at 90, but the record reveals nothing with regard to the existence of such family members. Although the plaintiffs did not contact the defendant's resident caretaker, he testified he did not know the defendant's whereabouts during the latter half of 1983. The defendant testified that no one knew his address while he was gone from the Beloit area.

Because of the plaintiffs' repeated attempts to serve the defendant while he was in the Beloit area, their efforts to discover his whereabouts and the lack of leads or information as to his whereabouts while outside the state, we conclude the plaintiffs exercised reasonable diligence to serve the defendant under sec. 801.11(1)(a), Stats.

The plaintiffs effected service by publication after failing to serve the defendant personally. The defendant contends that plaintiffs failed to serve him by publication properly because reasonable diligence was not exercised to obtain his post-office address. Section 801.11(1)(c), Stats., provides:

If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. [Emphasis added.]

The plaintiffs mailed a copy of the summons and complaint at the time of first publication to the four addresses of the defendant known to the plaintiffs. The plaintiffs' attempts to personally serve the defendant had not revealed any other...