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COURT OF APPEALS DECISION DATED AND RELEASED November 7, 1995 |
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. 95-1624
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
EASTMORE REAL ESTATE,
a domestic
corporation,
Plaintiff-Respondent,
v.
THOMAS W. SEEKINS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
JACQUELINE SCHELLINGER, Judge. Affirmed.
SCHUDSON, J.[1] Thomas W. Seekins appeals from an order
denying his motion to reopen the default judgment entered against him. Seekins argues that the trial court erred in
finding that Eastmore Real Estate attempted with reasonable diligence to
personally serve Seekins with the small claims summons and complaint prior to
obtaining service by publication, pursuant to § 801.11, Stats.[2] The trial court denied Seekins's motion to
reopen, finding that Eastmore used reasonable diligence. This court concludes that the trial court
did not erroneously exercise its discretion by refusing to reopen the default
judgment and, therefore, the order is affirmed.
Section 799.29(1), Stats., gives a trial court discretion
to grant a motion to reopen a default judgment “upon notice and motion or
petition duly made and good cause shown.” (Emphasis added.) This
court will not reverse a default judgment or an order denying a motion to
reopen a default judgment unless the trial court erroneously exercised its
discretion. Gaertner v. 880 Corp.,
131 Wis.2d 492, 500, 389 N.W.2d 59, 62 (Ct. App. 1986). Additionally, the test for whether reasonable
diligence for personal service has been satisfied is dependant upon the facts
of each case. Heaston v. Austin,
47 Wis.2d 67, 73, 176 N.W.2d 309, 313 (1970).
Service by publication is authorized after the plaintiff, using due
diligence, exhausts information or “leads” reasonably calculated to effectuate
personal service. West v. West,
82 Wis.2d 158, 166, 262 N.W.2d 87, 90 (1978).
Resolution of this issue therefore presents a question of fact. Wisconsin Finance Corp. v. Garlock,
140 Wis.2d 506, 518, 410 N.W.2d 649, 654 (Ct. App. 1987). Accordingly, this court will affirm unless
the trial court's findings of fact are clearly erroneous. Id.
The relevant facts are
undisputed. Seekins vacated Eastmore's
premises and provided Eastmore with a forwarding address, which turned out to
be for a post office box. Eastmore
attempted to personally serve Seekins with a small claims summons and complaint
at the forwarding address, but discovered that the address was for a post
office box, registered to Donald Dimartino, 2426 N. Humboldt Blvd., #2. Nothing in the post office box listing
indicated any relationship between Dimartino and Seekins. Eastmore attempted personal service at the
post office box a second time before resorting to publication. Eastmore did not attempt service at
Dimartino's Humboldt Blvd. address.
The trial court noted:
I don't find anything wrong with the
service of process in this case.... So
I'm finding that was diligent since there was no forwarding address left
besides the post office box. I'm
finding this was the only reasonable place to serve.
I'm
finding since there was a copy of the summons and complaint mailed to the post
office box and that post office box was apparently a place this defendant was
getting mail, because it's attached to someone who he rents from, or he will be
using that as a post office box, I don't know why he never got a copy of the
summons and complaint. At least a good
faith effort was made to provide him real notice as opposed to published
notice, and it looks to me that everything was done and service was proper in
this case.
This court concludes
that Eastmore's attempts at personal service were sufficient for the trial
court to conclude that the standard of reasonable diligence prior to publication
was satisfied. Since Seekins left no
forwarding address other than the post office box, it was not unreasonable for
Eastmore to conclude that this was the only reasonable place to attempt to
personally serve Seekins. Thus, the
trial court could reasonably conclude that “reasonable diligence” did not
require Eastmore to attempt to personally serve Seekins at Dimartino's address
when it was not apparent that Dimartino had any relationship with Seekins. The totality of circumstances was sufficient
to support the trial court's conclusion that Eastmore acted with “reasonable
diligence.” Therefore, this court
concludes the trial court's denial of Seekins's motion to reopen the default
judgment entered against him was not an erroneous exercise of discretion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Section 801.11(1), Stats., provides, as material here:
801.11 Personal jurisdiction,
manner of serving summons for. 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 Persons....
(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:
....
(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.