COURT OF APPEALS DECISION DATED AND RELEASED January 11, 1996 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3226
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
MICHAEL SKAARER,
Plaintiff-Respondent,
v.
NANCY SKAARER, f/k/a
NANCY MILLER,
n/k/a NANCY BOLLIG,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Rock County:
PATRICK J. RUDE, Judge. Reversed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Nancy Bollig appeals from an order holding her in
contempt. Although she raises many
issues, we address only one: whether
the trial court had personal jurisdiction over Bollig. Because we conclude that the trial court did
not have personal jurisdiction, we reverse.
Section 801.11, Stats., sets forth the means by which a
court attains personal jurisdiction over a defendant. The statute provides:
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.
(b) If
with reasonable diligence the defendant cannot be served under par. (a), then
by leaving a copy of the summons at the defendant's usual place of abode ....
As the statute provides,
personal service must be attempted with "reasonable diligence" before
an alternative method of service can be employed. See also Heaston v. Austin, 47 Wis.2d 67, 73, 176
N.W.2d 309, 312 (1970). If the
defendant is not personally served and challenges the service, "the server
shall state in [an] affidavit when, where and with whom the copy was left, and
shall state such facts as show reasonable diligence in attempting to effect
personal service on the defendant."
Section 801.10(4)(a), Stats. (Emphasis added.) Whether "reasonable diligence" was exercised has, at
times, been treated as a question of fact, but it is actually a mixed question
of fact and law. What attempts were
made at service is a question of fact. Welty
v. Heggy, 124 Wis.2d 318, 324 n.2, 369 N.W.2d 763, 767 (Ct. App.
1985). The legal significance of those
attempts is a question of law. Id.
Bollig contends that the
process server did not exercise reasonable diligence in attempting to
personally serve her in the underlying action and that, therefore, the trial
court did not have personal jurisdiction over her.[1] After reviewing the issue, we concluded that
an evidentiary hearing was necessary to determine whether Bollig was properly
served. We remanded to the trial
court. The trial court's findings are
now before us. The trial court found
that "[the process server] used reasonable diligence in attempting to
serve [Bollig]." This is the only
finding that addresses reasonable diligence.
Although the trial court
characterizes its "reasonable diligence" finding as a factual
finding, the trial court did not state what attempts were made at service or
what facts underlie its conclusion that reasonable diligence was
exercised. The trial court simply
stated an ultimate fact--that "reasonable diligence" was exercised. This is a conclusion of law. Welty, 124 Wis.2d at 324 n.2,
369 N.W.2d at 767.
When a trial court has
not made findings of evidentiary or historical facts, we may: (1) affirm the judgment if clearly supported
by the preponderance of the evidence, (2) reverse if not so supported, or (3)
remand for the making of findings and conclusions. Walber v. Walber, 40 Wis.2d 313, 319, 161 N.W.2d
898, 901 (1968).
We have reviewed the
record for any evidence to support the trial court's legal conclusion that
reasonable diligence was exercised. The
only evidence in the record regarding service in the underlying action is an
affidavit from the process server in which he states: "I attempted to personally serve defendant, Nancy Skaarer
... and was unable to do so." The
affidavit does not state how or what steps the process server took to locate
Bollig before making substituted service.
Because the trial court did not find evidentiary facts which support its
conclusion that the process server exercised reasonable diligence in attempting
to serve Bollig, and because the record does not establish those facts, the
trial court lacked personal jurisdiction over Bollig in the underlying
action. Accordingly, we reverse the
order holding her in contempt.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.