COURT OF APPEALS DECISION DATED AND FILED April 20, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from a judgment of the
circuit court for
¶1 BRUNNER, J.[1] Dawn
Martinson, a/k/a Dawn Green, appeals a default judgment entered against her in
a small claims action.[2] She contends the circuit court lacked
personal jurisdiction due to improper service.
We conclude Martinson was properly served and affirm.
BACKGROUND
¶2 This
case has a convoluted procedural history.
Advantage Employment Service, LLC, filed a small claims action against
Carl Green and Wessman Estate, LLC, seeking $3,108.91 allegedly due under a lawn
maintenance contract. Green contested
his liability. The court scheduled a
final hearing for April 17, 2009.
¶3 Meanwhile,
Advantage filed amended pleadings adding Martinson—Green’s wife—as a defendant
based on her ownership interest in Wessman.
Advantage was unable to accomplish personal service of the summons and
complaint. The sheriff’s department
attempted service at the couple’s residence, but neither Green nor Martinson
answered the door. On the March 12,
2009, return date, the court granted an adjournment for publication and
authorized the filing of an amended complaint, with a revised return date of
April 9, 2009. Advantage attempted
service by certified mail, but the letter was returned unopened. Publication was completed on March 26, 2009.
¶4 Neither
Martinson, nor Green, nor a representative from Wessman appeared at the April 9
return date. A default judgment was
entered against Martinson and Wessman. A
final decision as to Green was delayed until the trial date on April 17, 2009. Two days before Green’s hearing, Martinson
petitioned to reopen the judgment against her.
The court commissioner denied her motion.
¶5 Advantage
failed to appear on April 17 and Green was dismissed from the suit. Green demanded a trial despite the dismissal,
purporting to act on his own behalf as well as that of Martinson and Wessman. A de novo review hearing was set for May 15,
2009.
¶6 At
the May 15 hearing, Martinson sought to reopen the judgment, claiming Advantage
improperly served her by certified mail.
Martinson argued she was unavailable for signature delivery but would
have received any letter sent by regular mail.
The court found that Advantage properly served the summons and complaint
pursuant to Wis. Stat. § 799.12. Martinson appeals.
DISCUSSION
¶7 The
decision to grant or deny a motion to reopen is one within the circuit court’s
discretion. See Kovalic v. DEC Int’l,
186
¶8 Martinson
claims the circuit court never obtained personal jurisdiction due to defective
service and, consequently, the judgment is void. A court gains jurisdiction over the parties
to a lawsuit only by valid personal or substituted service of the summons and
complaint. See Wis. Stat. § 801.04. In the absence of personal or substituted
service, service may be made by mailing and publication. Wis.
Stat. §§ 799.12(4), 801.11(1)(c).
There is no dispute Advantage published a Class 1 notice pursuant to
§ 799.12(6). However, Martinson
argues the circuit court should have applied the general service statute,
§ 801.11, rather than the statute governing service in small claims
actions, § 799.12. Specifically, she contends Advantage was
required to publish a Class 3 notice pursuant to Wis. Stat. § 801.11(1)(c).
¶9 We
reject this argument. Wisconsin Stat. § 799.12(1) states
that all provisions of Wis. Stat. ch. 801
apply “[e]xcept as otherwise provided in this chapter.” Section 799.12(6) allows service under Wis. Stat. § 801.11(1)(c) or
service by publication of a Class 1 notice.
Thus, Martinson’s claim that Advantage was required to publish a Class 3
notice is meritless.
¶10 Martinson
also argues service was improper because the mailing was done by certified mail
and not regular mail. Wisconsin Stat. § 799.12(6)(b)
refers to a “mailing” generally and does not specify whether the mailing is to
be done by certified or regular mail. A
statute, however, must be construed in light of its purpose. Patterson v. Board of Regents, 103
¶11 Martinson
raises myriad other issues, including that Advantage failed to exercise
reasonable diligence to personally serve her; that Advantage failed to mail a
copy of the summons “at or immediately prior to … publication” as required by Wis. Stat. § 799.12(6)(b); and
that the certified mailing failed to comply with § 799.12(6)(b) because it
did not include a notice of publication.
Martinson failed to present any of these arguments to the circuit court
and we deem them waived. See Tomah-Mauston
Broad. Co. v. Eklund, 143
¶12 Advantage
argues it is entitled to costs, fees, and reasonable attorney fees for a
frivolous appeal. See Wis. Stat. Rule 809.25(3). It claims Martinson knew or should have known
the appeal was “without any reasonable basis in law or equity.” See
Wis. Stat. Rule 809.25(3)(c)2. This case’s complex procedural posture
requires that we deny Advantage’s request because of the difficulty in
determining what Martinson knew or should have known.
By the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge
pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are
to the 2007-08 version unless otherwise noted.
[2] To avoid confusion, we refer to Dawn Martinson,
a/k/a Dawn Green, as “Martinson” throughout this opinion.
[3] Kovalic v. DEC International, 186