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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1049-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
J & W INSTRUMENTS,
INC.,
a Minnesota
Corporation,
Plaintiff-Respondent,
v.
TURBO INSTRUMENTS,
INC.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for St. Croix County:
ERIC J. LUNDELL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Turbo Instruments, Inc., appeals a postjudgment order
that denied its § 806.07, Stats.,
motion to vacate a $31,100.12 judgment in favor of J & W Instruments, Inc.[1] The trial court issued the judgment after
Turbo failed to respond to J & W's motion for judgment on the pleadings on
its lawsuit for breach of contract and Wisconsin Fair Dealership Law
violations. Turbo moved to vacate the
judgment on the ground that it never received notice of J & W's motion for
judgment on the pleadings and many other key J & W trial court
filings.
Turbo claimed that this
made its failure to respond the result of inadvertence, surprise, mistake, and
excusable neglect. Turbo also alleged
that J & W's original pleadings did not establish a substantive
legal right to judgment. The trial
court rejected Turbo's arguments, finding that Turbo had received all documents
in the original proceedings. On appeal,
Turbo argues that the trial court misjudged the evidence. We reject Turbo's arguments and affirm the
postjudgment order.
Turbo could reopen the
original proceedings if it showed inadvertence, surprise, mistake, or excusable
neglect. See § 806.07, Stats.
The trial court's decision was discretionary. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis.2d 62,
70, 533 N.W.2d 470, 473 (1995). Here,
the trial court correctly exercised its discretion. Its finding that Turbo received all documents was not clearly
erroneous. Fryer v. Conant,
159 Wis.2d 739, 744, 465 N.W.2d 517, 519-20 (Ct. App. 1990). For many documents, J & W submitted
direct testimony and office record entries specifically identifying documents
that J & W's counsel mailed to Turbo and the dates that counsel mailed
them. J & W also provided extensive
evidence of its counsel's standard office practice on document mailing and
litigation correspondence. This
evidence circumstantially proved that J & W's counsel's mailed and Turbo
received all documents. See State
ex rel. Flores v. State, 183 Wis.2d 587, 612, 516 N.W.2d 362, 370
(1994).
Further, Turbo executed
a certified mail return receipt that acknowledged receipt of one document. This supplied additional circumstantial
proof that Turbo received all documents J & W sent by ordinary mail. It verified that J & W had the
correct address for Turbo and that documents had found their way through the
U.S. postal system to Turbo. Taken together,
J & W's evidence permitted the trial court to reject Turbo's general
manager's categorical testimony that Turbo never received the documents. Despite Turbo's unqualified denial, the
trial court could rationally conclude from J & W's evidence that Turbo more
likely received the documents. As a
result, the trial court's finding was not clearly erroneous. In sum, the trial court had no duty to
reopen the merits of the lawsuit.
We also reject Turbo's
attempt to vacate the judgment on the ground that the trial court wrongly
granted J & W judgment on the pleadings, in violation of Wisconsin's rules
of civil procedure. See
§ 802.06(3), Stats. Turbo states that the trial court
erroneously disregarded a bona fide defense Turbo had raised in its answer to J
& W's complaint. Turbo also states
that J & W provided Turbo untimely notice of the precise amount of damages
it sought to recover, in violation of the procedural deadlines applicable to
motions for judgment on the pleadings, and committed other procedural
violations. According to Turbo, these
issues gave it a legal basis to collaterally attack the judgment by
postjudgment trial court motion. On the
untimely notice issue, Turbo partially relies on the decision in Stein v.
Illinois State Assistance Commission, 194 Wis.2d 775, 535 N.W.2d 101
(Ct. App. 1995).
Turbo's arguments seek
to use the merits of the judgment themselves as grounds to vacate the
judgment. Turbo's arguments essentially
seek to litigate the propriety of the trial court's decision, in the first
instance, to grant J & W judgment on the pleadings. These arguments can be raised only in an
appeal from the judgment. They supply
no basis to collaterally attack the judgment by postjudgment motion. Neither prejudgment bona fide defenses nor
prejudgment procedural defects provide grounds, by themselves, for a collateral
attack. In order to sustain a
collateral attack, Turbo needed to show one of the threshold factors under §
806.07 that would predicate a collateral attack, such as inadvertence,
surprise, mistake, or excusable neglect.
Inasmuch as Turbo did not show inadvertence, surprise, mistake,
excusable neglect, or some other collateral attack threshold factor, we and the
trial court have no obligation to consider these arguments further.
In addition, Stein
does not support Turbo's position. In Stein,
the plaintiff obtained a default judgment without providing the defendant any
notice of the specific amount of damages it sought to recover. The Stein court ruled that the
absence of prejudgment notice made the default judgment void and that the
defendant could collaterally attack the judgment on that basis. Here, Turbo claims that just as the Stein
plaintiff's failure to give prejudgment notice permitted a collateral attack, J
& W's decision to give untimely prejudgment notice likewise permitted a
collateral attack. We read Stein
differently. Stein
concerned the total failure of notice, not mere delay in notice. We see nothing in Stein
requiring courts to equate delayed prejudgment notice with no prejudgment
notice as a judgment nullifier. In
short, Turbo lost its chance to allege untimely prejudgment notice when it
failed to appeal the judgment.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.