Opinion
No. 2014AP408.
2014-12-2
MANCHESTER VILLAGE OWNERS ASSOCIATION, INC., Plaintiff–Respondent, v. Maria–Lucia A. CARDOSO, a/k/a M.-Lucia de A. Cardoso, Defendant–Appellant.
Cappon v. O'Day, 165 Wis. 486, 490–91, 162 N.W. 655 (1917). That is the case here, and therefore, we affirm.
Appeal from an order of the circuit court for Milwaukee County: Mary M. Kuhnmuench, Judge. Affirmed.
Before CURLEY, P.J., FINE and BRENNAN, JJ. ¶ 1 BRENNAN, J.
Maria–Lúcia Araújo Cardoso appeals from an order of the circuit court, granting the plaintiff's motion for default judgment and ordering a judgment of foreclosure. She contends that the circuit court: (1) erroneously exercised its discretion when it denied her request for a court-appointed attorney; (2) did not have personal jurisdiction over her; and (3) failed to consider whether Cardoso's failure to file a timely answer amounted to “excusable neglect” before entering the default judgment order. Because Cardoso's arguments are either entirely without merit or were not raised before the circuit court, thereby depriving us of a full factual record upon which to decide them, we affirm.
¶ 23 Due process requires that a court have personal jurisdiction over a defendant in a civil suit. Loppnow v. Bielik, 2010 WI App 66, ¶ 10, 324 Wis.2d 803, 783 N.W.2d 450. “Fundamental to that due process requirement is the provision of notice ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. (citation omitted). Wisconsin Stat. § 801.11 governs the circuit court's jurisdiction over and the service of process upon a defendant. It requires that personal service be attempted with “reasonable diligence” before an alternative method of service is utilized. See Loppnow, 324 Wis.2d 803, ¶ 10, 783 N.W.2d 450. Reasonable diligence is that diligence “ ‘which is reasonable under the circumstances and not all possible diligence which may be conceived.’ ” Haselow v. Gauthier, 212 Wis.2d 580, 589, 569 N.W.2d 97 (Ct.App.1997) (citation omitted). The statute authorizes publication as an alternative method of service where reasonable diligence has not succeeded. Wis. Stat. § 801.11(1)(c).
¶ 24 A defense of lack of personal jurisdiction and insufficiency of service is waived if not raised in a defendant's answer, in a motion filed before the answer, or in a responsive pleading. Wis. Stat. § 802.06(2), (8)(a). Additionally, where an appearance is made and relief is sought on other matters, a defendant's objection to lack of personal jurisdiction is waived. Artis–Wergin v. Artis–Wergin, 151 Wis.2d 445, 452, 444 N.W.2d 750 (Ct.App.1989).
¶ 25 Here, Cardoso failed to raise the issue of personal jurisdiction and insufficiency of service in her many filings to the court. Nor did she raise the issue when she appeared at the November 25 motion hearing, or in her purported answer. By failing to raise this issue as required by statute, Cardoso subjected herself to the court's jurisdiction and waived any issues regarding personal jurisdiction or service.
¶ 26 We reject Cardoso's claim in her reply brief that she did raise the issue of personal jurisdiction before the circuit court in her submissions to the court on October 31, 2013, November 5, 2013, and November 22, 2013. She admits that her references to jurisdiction and service were in “layman's terms,” stating in her submissions only that she was “unaware that the case had been started and had moved so far along,” that she was not mailed a copy of the complaint, and that she did not understand that the process server had attempted to serve her. Our review of the submissions reveals that Cardoso's statements were insufficient to signal to the court that she was raising the issue of personal jurisdiction or insufficiency of service. We note that she does not claim that she raised the issue in her alleged answer. Her subsequent appearance in court and filing of a purported answer waived any personal jurisdiction issue as noted above. See Wis. Stat. § 802.06(2), (8)(a). Consequently, we affirm.
III. Cardoso waived her right to raise the issue of “excusable neglect.”
¶ 27 Finally, Cardoso contends that the circuit court wrongfully granted MVOA's motion for default judgment because it did not account for her excusable neglect. In response, MVOA argues that Cardoso waived the issue of excusable neglect when she failed to raise the issue with the circuit court and that the record does not support Cardoso's claim of excusable neglect. We affirm.
¶ 28 Defendants have an “unequivocal duty” to timely answer a complaint. Estate of Otto v. Physicians Ins. Co. of Wis., Inc., 2008 WI 78, ¶ 56, 311 Wis.2d 84, 751 N.W.2d 805. The circuit court may enlarge the time for serving an answer “on motion for cause shown and upon just terms.” Wis. Stat. § 801.15(2)(a). But the court's power is limited: “If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.” Id.
¶ 29 Excusable neglect is the neglect that “ ‘might have been the act of a reasonably prudent person under the same circumstances.’ ” Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 468, 326 N.W.2d 727 (1982) (citation omitted). “It is ‘not synonymous with neglect, carelessness or inattentiveness.’ ” Id. (citation omitted). The burden of establishing excusable neglect is on the party seeking an enlargement of time for filing an answer or relief from a default judgment. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 50, 253 Wis.2d 238, 646 N.W.2d 19 (enlargement of time); Carmain v. Affiliated Capital Corp., 2002 WI App 271, ¶ 23, 258 Wis.2d 378, 654 N.W.2d 265 (relief from judgment).
¶ 30 A circuit court's decision to grant or deny a motion for enlargement of time is a discretionary one, Hedtcke, 109 Wis.2d at 467, 326 N.W.2d 727, as is the decision to grant or vacate a default judgment, Oostburg State Ba nk v. United Savings & Loan Ass' n, 130 Wis.2d 4, 11, 386 N.W.2d 53 (1986). We review such determinations under the erroneous exercise of discretion standard. Miller v. Hanover Ins. Co., 2010 WI 75, ¶ 29, 326 Wis.2d 640, 785 N.W.2d 493. We will not reverse a discretionary determination if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision. Id., ¶ 30. We generally look for reasons to sustain a discretionary determination. Id.
¶ 31 The problem we face in this case is that there is no discretionary decision to review. Again, the circuit court did not make findings of facts with respect to whether Cardoso's failure to timely file an answer was the result of “excusable neglect” because Cardoso did not file a motion in the circuit court requesting additional time to file her answer or otherwise argue that her failure to timely file an answer was the result of excusable neglect. “[A]s a matter of judicial policy, we decline to consider legal arguments that are posed for the first time on appeal and which were not raised in the [circuit] court.” Wisconsin Dep't of Taxation v. Scherffius, 62 Wis.2d 687, 696–97, 215 N.W.2d 547 (1974). The reasons for this position are longstanding and plain:
If the question had been raised below, the situation might have been met by the opposite party by way of amendment or of additional proof. In such circumstances, therefore, for the appellate court to take up and decide on an incomplete record questions raised before it for the first time would, in many instances at least, result in great injustice, and for that reason appellate courts ordinarily decline to review questions raised for the first time in the appellate court.
Cappon v. O'Day, 165 Wis. 486, 490–91, 162 N.W. 655 (1917). That is the case here, and therefore, we affirm.
Order affirmed.
Not recommended for publication in the official reports.