Appendix — Heggy v. Welty

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SEP 6 1985

JOSEPH F. SPANIOL, JR. |

No. CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

DAVID HEGGY,

Petitioner,

vs.

CARL WELTY and SUSAN WELTY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO-THE COURT OF APPEALS

OF WISCONSIN

APPENDIX

FRANK X. KINAST

263 West Grand Avenue

Beloit, Wisconsin 53511

Tel No. (608) 362-6772

Attorney for Petitioner

y

4

Appendix Index

Judgment and Opinion of the

Wisconsin Court of Appeals from

Appendix for Petition for Review Al

Order of the Wisconsin Supreme

Court Denying Review A31

Default Judgment of the Circuit

Court of Rock County, Wisconsin,

dated December 10, 1983 A33

Findings of Fact and Conclusions of A37

Law of the Circuit Court of Rock County

Wisconsin, dated December 10, 1983

Decision of the Circuit Court of Rock

County Wisconsin, denying Defendant's

Motion to Set Aside the default judgment,

transcript of proceedings of April 6,

1984 A48

Order of the Circuit Court of Rock County,

Wisconsin, denying defendant's motion to

set aside the default judgment, dated

April 9, 1984 A&8

Excerpts from February 1, 1984

hearing on motion to vacate A90

Excerpts from Plaintiff's trial

court memorandum A95

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

Plaintiffs-Respondents

Ve

DAVID HEGGY,

Defendant-APPELLANT.

APPEAL from a judgment and order

of the circuit court for Rock County: J.

RICHARD LONG, Judge. Affirmed in part,

reversed in part and remanded.

Before Gartzke, P.J., Dykman, J.

and Bruce F. Beilfuss, Reserve Judge.

BEILFUSS, Reserve Judge. This is

_ a consolidated appeal from a default

judgment and an order denying defendant's

motion to set aside that judgment. The

judgment granted compensatory and punitive

damages for defendant's intentional

infliction of emotional distress and

property damage.

The defendant contends on appeal

that personal jurisdiction was not

obtained over him because plaintiffs

failed to exercise reasonable diligence in

their service of process and in their

attempts to obtain his post-office address

for the mailing component of service by

publication. The defendant further

contends that the trial court abused its

discretion by not setting aside the

judgment pursuant to defendant's mction.

We hold that the trial court acquired

personal jurisdiction over the defendant

and that the court did not abuse its

discretion by denying relief from the

judgment. We remand, however, for retrial

On punitive damages because that

controversy was not fully tried. Sec.

752.35, Stats.

This action was initiated in July

of 1983 after a history of acrimonious and

abusive conduct by the defendant toward

the plaintiffs. The plaintiffs made

repeated unsuccessful attempts to serve

summonses on the defendant at his home.

Inquiries were made to determine where the

defendant might be served, with no

results. The defendant testified he was

outside Wisconsin from mid--July 1983 to

January 1984, although several witnesses

saw the defendant at his home at various

times during this time period. The trial

court found that defendant was seen at his

residence during this time period, that he

had intentionally evaded service of the

summons and complaint, and that he had

actua], notice of this action.

The plaintiffs effected service by

publication and mailing. Copies of the

summons and complaint were mailed to the

Only four addresses of defendant known to

the plaintiffs; they were all "“return([ed]

to sender" by the postal department.

The trial court held a default

hearing, and judgment was entered for

plaintiffs totaling $356,163.16 plus costs

of $315.74 on December 12, 1983. Punitive

damages constituted $200,000 of the total

judgment. The defendant moved to set

aside the judgment, pursuant to sec.

806.07(1), Stats., on January 14, 1984.

This motion was denied, the court

concluding that the defendant failed to

show excusable neglect or reasonable

prudence, that the punitive damages were

not excessive, and that opening the

judgment would be an injustice to the

plaintiffs.

p 1 Juriadicti

The defendant contends that

plaintiffs did not invoke the court's

personal jurisdiction because of improper

service of process under sec. 801.11,

Stats. That section's prescriptions must

be followed. Actual notice alone is

insufficient:

[AJctual notice alone does not settle

the question. This court has held that

when a statute prescribes how service is

to be made, compliance with the statute

is required for personal jurisdiction

even where the defendant has actual

notice of the summons and complaint.

, 92 Wis.2d 276, 287,

Transportation

284 N.W.2d 643 (1979); Danielson v.

Brody Seating Co, 71 Wis.2d 424, 429 ,

238 N.W.2d 531 (1976). The question

is, were the [statutory] provisions...

complied with.

Horrigan v. State Farm Ins. Co., 106

Wis.2d 675, 681, 317 N.W.2d 474, 477

(1982). Section 801.11 provides in

relevant part:

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....

(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.

The plain meaning of sec. 801.11(1)

requires service under subsection (1) (a)

to be attempted with reasonable diligence

before an alternative method of service is

employed. The defendant concedes "that

plaintiffs exercised reasonable diligence

to personally service defendant within the

State of Wisconsin"? but contends that

service "without this state" (sec.

801.11(1)(a)) was not attempted with

reasonable diligence.

The supreme court has treated

"reasonable diligence" as a finding of

fact to be affirmed unless against the

great weight and clear preponderance of

the evidence. See West yv, West, 82

Wis.2d 158, 165, 262 N.W.2d 87, 90 (1978);

Span v. Span, 51 Wis.2d 786, 790, 191

N.W.2d 209, 212 (1971).* This test is

essentially the same as the clearly

erroneous standard of sec. 805.17(2),

Stats., which we now apply to findings

made by the court. Nol] _v. Dimiceli's,

Inc,., 114 Wis.2d 641, 643, 340 N.W.2d

575, 577 (Ct.App. 1983). The basic facts

regarding plaintiffs' diligence are

undisputed, however, and the determination

of appropriate service of process is

therefore a question of law.

Although case law defining

reasonable diligence is sparse, sec.

801.11, Stats., does require pursuit of

"leads or information reasonably

calculated to make personal service

possible." West, 82 Wis.2d at 166,

262 N.W.2d at 90. Rock County deputy

sheriffs made repeated attempts to

personally service the defendant at his

Denture Lane home in the Town of Turtle

from July through December 1983.°

Several of the process servers knew the

defendant, and knew him to reside at the

Denture Lane home. Inquiries regarding

defendant's whereabouts were made of other

deputies and Town of Turtle officers, but

no other addresses were known. One of the

deputies attempting service has previously

inquired of the town clerk where the

defendant might be found, and as a result

was led to inquire at "Varney Printers" on

Cross Street in Beloit, but was unable to

serve the defendant. No one at Varney

Printers had heard of the defendant.

The repeated attempts to serve the

defendant at the Denture Lane home were

reasonable in light of Mr. Welty's

testimony that he observed things at the

defendant's residence which led him to

infer that the defendant was there at the

time service was attempted. The

plaintiffs saw cars parked in the

driveway, clothes hung on the line, and

lights on in the house. When such

sightings occurred, plaintiffs phoned

their attorney to suggest attempts at

service. The defendant's presence was

corroborated by other witnesses.

Neighbors and Town of Turtle road workers

personally observed the defendant at his

Denture Lane home during the time service

was attempted. The trial court found the

defendant was seen at his residence during

this period, and that the defendant

intentionally evaded service. These

findings of fact arenot clearly erroneous.

Because the defendant was at his

residence and repeated attempts at service

were made, attempts to locate and serve

the defendant outside the state might have

been unnecessarily duplicative. But

attempts to locate the defendant, through

inquiries, were made to determine whether

he was within or without the state. All

information obtained indicated he would be

found at Denture Lane. West suggests

that under these circumstances, immediate

family members should be contacted, 82

Wis.2d at 166-67, 262 N.W.2d at 90, but

the record reveals nothing with regard to

the existence of such family members.

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Although the plaintiffs did not contact

the defendant's resident caretaker, he

testified he did not know the defendant's

whereabouts during the latter half of

1983. The defendant testified that no one

knew his address while he was gone from

the Beloit area.

Because of the plaintiffs'

repeated attempts to serve the defendant

while he was in the Beloit area, their

efforts to discover his whereabouts and

the lack of leads or information as to his

whereabouts while outside the state, we

conclude the plaintiffs exercised

reasonable diligence to serve the

defendant under sec. 801.11(1) (a), Stats.

The plaintiffs effected service by

publication after failing to serve the

defendant personally. The defendant

contends that plaintiffs failed to serve

him by publication properly because

A-1l

reasonable diligence was not exercised to

obtain his post-office address. Section

801.11(1)(c), Stats., provides:

If with reasonable diligence the

defendant cannot be served under par.

(a) or (b), service may be made under

ch. 985, and by mailing. [Jf the

: a :

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 mailing may be omitted

if the post-office address cannot be

ascertained with reasonable diligence.

[Emphasis added.]

The plaintiffs mailed a copy of

the summons and complaint at the time of

first publication to the ftur addresses of

the defendant known to the plaintiffs.

The plaintiffs' attempts to personally

serve the defendant had not revealed any

other addresses.

The defendant previously received

mail at at least one of the addresses used

A-12

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by the plaintiffs, a post-ff*ce box, but

had several months before «.icelled it

after a squabble with the post office. He

did not file a forwarding address in part

to avoid "junk mail." He also refused to

provide a mail receptacle at his home on

Denture Lane.

During the time of the mailing,

the defendant did receive mail at Varney

Printers in Beloit at 613 Cross Street.

Inquiries at this location by plaintiffs'

process server attempting service ina

previous action had resulted in no

information regarding the defendant. Only

a few people were informed of this

address, including the defendant's

caretaker, insurance agent, and his

attorney from previous actions.

It is not clear from the record

whether the plaintiffs knew the identity

of these people, or whether the plaintiffs

A-13

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were able to contact them. Under these

circumstances, "reasonable diligence” uid

not require that they be pursued for

defendant's post-office address.

The defendant contends that the

plaintiffs' attorney knew that defendant

was the principal beneficiary of his

father's estate and that a certain Beloit

bank was trustee of a trust created by

defendant's father, and also that the

plaintiffs' attorney knew the father's

personal representative at that bank, and

yet the plaintiffs' attorney purposely

avoided contacting the bank. Accepting

this as true, we hold that under these

circumstances reasonable diligence does

not require the pursuit of such a remote

source for either the post-office address

or location of the defendant. The bank,

in any event, knew only of the Denture

Lane address for the defendant and not of

A-14

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the alleged 613 Cross Street address.

The defendant also notes that

plaintiffs received a package from

defendant on November 26, 1983 bearing a

613 Cross Street return address. The

package arrived three months after

publication and mailing and was therefore

of no assistance to plaintiffs. In

addition, the plaintiffs believed the

"gift" to be a hoax. Mr. Welty referred

to the package as "booby-trapped," and

therefore something the defendant would

not put his true address on. Under these

circumstances no mailing to 613 Cross

Street was required. While the

plaintiffs' efforts to discover

defendant's post-office address might have

been more strenuous, we decline to hold

them not reasonably diligent.

The attempts at service and

mailing were generally hampered by the

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defendant's process dodging. The trial

court found the defendant to have

"intentionally evaded the service of the

summons and the complaint in this action."

This finding is supported by ample

testimony. The plaintiffs mailed copies

of the summons and complaint to the

addresses known for the defendant, made

inquiry as to other addresses, and could

have found the 613 Cross Street address

only through the exercise of extraordinary

diligence. We therefore hold under these

circumstances that plaintiffs complied

with sec. 801.11(1)(c), Stats.

The defendant contends here for

the first time that plaintiffs' attempts

at service fell short of due process

standards because "plaintiffs did not

truly desire to give actual notice of the

suit to defendant." Constitutional issues

raised for the first time on appeal are

rs eee Ate oct ill

generally not considered by this court.

; In Boeck vy. State Highway Comm., 36

| Wis.2d 440, 447-48, 153 N.W.2a 610, 614

(1967) the supreme court stated:

Plaintiffs on this appeal have for the

first time attacked the constitutional

adequacy of notice by mail under the

circumstances of this case. This court

has consistently taken the position that

it will not ordinarily consider

constitutional issues presented for the

first time on appeal.

att el, 927 Oe

Se i Rieter ty om i

Constitutional issues raised initially on

appeal may be addressed when in the

Satan Satin 5 lott

interests of justice or when there are

Siar ac

compelling reasons to do so, provided both

parties have briefed the issue which has

had full factual development below. See

In_Interest of Baby Girl K., 113 Wis.2d

429, 448, 335 N.W.2d 846, 856 (1983),

appeal dismissed, ___._ U.S. ___, 79

) L.Ed.2d 670 (1984); Sambs v.

Brookfield, 66 Wis.2d 296, 314, 224

N.W.2d 582, 592 (1975)

all 5 ml Sint SLAG ae ls EIR OO My Pr he

A-17

se at lel

Neither compelling reasons nor the

interest of justice require us to address

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defendant's constitutional claim, and we

therefore decline to addr.us it.

_ Defendant's constitutional argument is

essentially an attack on plaintiffs'

reasonable diligence which we already

resolved in plaintiffs' favor insofar as

' sec. 801.11(1), Stats., requires it. The

defendant was found to have actual notice

_ of the action to have purposely avoided

service. Testimony in the record supports

these findings, which are not clearly

erroneous. Under these circumstances we

decline to address the defendant's

constitutional argument.

Motion to Set Aside Judgment

The defendant moved for relief

from the default judgment under sec.

806.07(1)(h), Stats., which provides

relief for "[{a]ny other reasons" than

A-18

those enumerated in sec. 806.07(1)(a)-(g).

The defendant contends he was entitled to

relief because default judgments are

disfavored, evidence was improperly

admitted, the evidence was insufficient,

the damages were excessive, he acted

promptly for relief stating a meritorious

defense, and because he lacked actual

notice of the plaintiffs’ clain.

The trial court stated in the

hearing on defendant's motion that relief

under sec. 806.07(1)(h), Stats., should

not be granted where the movant failed to

show either a reasonable degree of

prudence or excusable neglect, citing

Hansher v,. Kaishian, 79 Wis.2d 374,

391, 255 N.W.2d 564, 573 (1977). The

trial court found that defendant refused

to accept mail at his residence, evaded

service of the summons and complaint, and

had actual notice of the pending action.

A-19

The court concluded that the defendant was

"neglectful, careless and inattentive in

this matter” and that he failed to

demonstrate he had “exercised a reasonable

degree of prudence.” The court denied the

motion.

Hansher required excusable

neglect or reasonable prudence because the

statutory grounds for relief alleged in

Hansher required such a showing.

Hansher did not address the "[a]ny

other reasons" standard for relief relied

on by the defendant. Hansher

construed a predecessor to sec.

806.07(1) (a), Stats., which authorized

relief tcon a judgment for "mistake,

inadvertence, surprise or excusable

neglect." See sec. 269.46(1), Stats.

(1973). A different subsection of sec.

269.46 (1973), subsection (3), which was

not construed in Hansher, contained a

A-20

counterpart to the sec. 806.07(1) (h)

catch-all provision on which defendant

premised his motion. Another subsection

of sec. 806.97(1) states excusable neglect

as a ground for relief but subsection (h)

simply requires any other reasons which

justify relief.

Section 806.07(1)(h), Stats., and

sec. °69.46(3), Stats. (1973), were

analogized in In Matter of Estate of

Smith, 82 Wis.2d 667, 672-73, 264 N.W.2d

239, 242 (1978). The court concluded the

catch-all provision conferred a broader

discretionary power than that under the

excusable neglect ground, 1a,,

and affirmed a decision to grant relief

from a judgment. The decision to grant

relief was premised on the trial court's:

determination that it had "failed to give

sufficient consideration to several

matters of evidence.... In effect, the

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judge stated that his original findings

and conclusions were based upon

insufficient consideration of the evidence

and of the law." Id, at 674, 264

N.W.2d at 242-43. Excusable neglect was

not anissue, thus implicitly suggesting a

distinction between the subsection (h)

"other reasons" and the subsection (a)

“excusable neglect.”

Federal decisions construing the

analogous federal rule 60(b) (6) > hold

the catch-all provision to be exclusive of

other enumerated grounds in the rule.°

The Wisconsin Supreme Court recently

stated that subsection (a) and (h) are

mutually exclusive, State ex rel, JLB.

vy. D,G.H., ___. Wis.2d . , 363

N.W.2d 419, 423 (1985), but noted that:

Since almost every conceivable ground

for relief may arguably come within

subsections (a) through (g), a strict

mutual exclusivity approach might render

subsection (h) Supeccsuvus. suvsection

A-22

(h) should be applied when the petition

alleging factors arguably within (a),

(b), or (c) also alleges extraordinary

circumstances that constitute equitable

reasons for relief.... finality is

important.... Subsection (h) should be

used only when the circumstances are

such that the sanctity of the final

juagment is outweighed by "the incessant

command of the court's conscience that

justice be done in light of al] the

facts."

States, 423 F.2d 73, 77 (5th Cir.),

cert. denied, 399 U.S. 927 (1970)

(emphasis in original).

'

Id. at , 363 N.W.2d at 425-6.

The defendant's excusable neglect

Or reasonable prudence may be relevant to

a motion under sec. 806.07(1)(h), Stats.,

insofar as they help establish or are

accompanied by extraordinary circumstances

justifying relief. The trial court's

emphasis on defendant's lack of excusable

neglect and reasonable prudence was

therefore not misplaced despite the

exclusivity of sec. 806.07(1)(h). The

"{a]ny other reasons" ground for relief

cannot operate to relieve a party from the

A-23

consequences of its purposeful avoidance

of a lawsuit. The supreme court noted in

Wis.2d at n.9, 363

M.L.~Ba,

N.W.2d at 428, the "preference for an

adversarial determination of the merits"

in federal case law, but acknowledged that

this preference is often negated by a

petitioner's conscious choice to permit

the action to proceed to judgment.

"Relief is frequently denied when the

petitioner had earlier made a fair and

deliberate choice at the time judgment was

rendered." Id. The seventh circuit's

decision in C,K.S. Engineers, Inc. v.

White Mountain Gypsum Co,, 726 F.2d

1202, 1206 (7th Cir. 1984) is persuasive:

[Rlule 60(b) is applied liberally in the

default judgment context only in the

exceptional circumstance where the

events contributing to the default

judgment have not been within the

meaningful control of the defaulting

party, or its attorney. Although a

default judgment is a harsh sanction and

the law does favor trials on the merits,

A-24

these considerations must be balanced

against the need to promote efficient

litigation and to protect the interests

of all litigants.

The circumstances leading to the default

judgment were "within the meaningful

) control of the defaulting party" who chose

: to permit the default. Further, the

' defendant's contentions for relief present

not exceptional circumstances, but instead

simply disputes with the trial court's

fact finding.

The standard governing the

discretionary authority to grant relief

under sec. 806.07, Stats., has been

analogized to an "interest of justice"

standard. See Conrad v. Conrad, 92

Wis.2d 407, 418, 284 N.W.2d 674, 679

(1979). The statute "must be liberally

construed to allow relief... ‘whenever

} such action is appropriate to accomplish

) justice.'" Id. (quoting Klapprott vy.

United States, 335 U.S. 601, 615 (Black,

J., concurring), modified, 336 U.S.

942 (1949)).

Opening the entire judgment would

not serve the ends of justice. The court

found that defendant purposely avoided

service, and had actual notice of the

action. The court also stated as a

finding of fact from the default hearing

the following:

I will say for the record that in the

view of this court I have practiced law

for thirty-one years and now I have been

a judge for four years, I have not seen

any conduct in the opinion of the court

more extreme and more outrageous

directed to peace-loving, fine people in

a manner specifically calculated not

only to destroy the property rights of

the plaintiffs but to destroy the very

lives and existence of the plaintiffs.

We conclude the trial court did not abuse

its discretion by denying defendant's sec.

806.07(1)(h), Stats., motion. However,

the punitive damages award must be

A-26

reconsidered because the record does not

reveal with reasonable certainty the

extent of the defendant's assets.

The trial court considered the

defendant's assets in assessing punitive

damages, including assets presumptively

devolving to the defendant from his

father's estate and trust. The trial

court ordered assets transferred from the

father's trust to satisfy the judgment

against the defendant, but neither the

plaintiffs nor the court knew the identity

of the trust's beneficiary or

beneficiaries.

The plaintiffs correctly contend

that the defendant's wealth is only one

factor for consideration in assessing

punitive damages. But where the

defendant's assets are considered,

reliance upon them must be rational and

premised on fact. We remand for retrial

A-27

solely on punitive damages because the

record reflects uncertainty on the assets

available to the defendant and the real

controversy has. therefore, not been fully

tried. Sec. 752.35, Stat.; See Hanz

Trucking, Inc., v. Harris Brothers Co,,

29 Wis.2d 254, 269, 138 N.W.2d 238, 246

(1965) (damages ordered retried because

issue not fully tried).

By the Court,--Judgment and

order affirmed in part and reversed in

part and claim remanded.

Inclusion in the official reports

is recommended.

A-28

APPENDIX

1 The defendant does not

argue that the plaintiffs lacked

reasonable diligence in serving him under

sec. 801.11(1)(b), Stats.

2 While the defendant's

motion to set aside the judgment was

explicitly made pursuant to sec. 806.07,

Stats., which generally involves the

exercise of trial court discretion,

West states that vacation of a

judgment allegedly void for lack of

personal jurisdiction involves

determinations of fact:

While under sec. 269.46(1), Stats. [now

sec. 806.07(1)(a)], we review the

exercise of the trial judge's

discretion, where a claim is made that a

judgment is void the question is simply

whether the finding of fact made with

respect to the validity or invalidity of

the judgment is contrary to the great

weight and clear preponderance of the

evidence.

West, 82 Wis.2d at 166, 262 N.W.2d at

90. West's conclusion is based in

part on the lack of “void judgment” as a

specified ground for relief under the

statute governing relief from judgments.

| Subsequent to West, void judgment was

added to sec. 806.07 as a basis for

relief. The inclusion of void judgment in

sec. 806.07 does not affect our standard

of review in this case because even were

the issue to be one of discretion, such

discretion would have to be exercised

A-29

consistent with sec. 801.11, Stats., and

the facts underlying the interpretation of

that statute. The question remains,

ultimately, one of fact as to attempts at

service, and law as to their legal

significance.

3 The trial court found that

several Rock County deputies made nineteen

attempts to serve the defendant.

-

City of Whitewater, 89 Wis.2d 19, 28 n.

4, 277 N.W.2d 827, 830 (1979).

3 Federal Rule 60(b) and sec.

806.07, Stats. are substantial

equivalents. Ennis v. Ennis, 88

Wis.2d 82, 91, 276 N.W.2d 341, 344

(Ct.App. 1979).

6

Klapprott v. United

States, 335 U.S. 601, 614-15 (Black, J.,

concurring) ("In simple English, the

ianguage of the ‘other reason' clause, for

all reasons except the five particularly

specified, vests power... to vacate

judgments"), modified, 336 U.S. 942

(1949); De Filippis v. United States,

567 F.2d 341, 343 (7th Cir. 1977) ("Rule

60(b) (6)... is separate from and exclusive

of the other five grounds specified in

Rule 60(b)");

, 43 F.R.D. 413, 415

(S.D.N.Y. 1967) (“the category created by

Rule 60(b)(6) is exclusive of the more

particularized reasons for setting aside a

default outlined in the Rule.”)

A-30

Office of the Clerk

SUPREME COURT

STATE OF WISCONSIN

Madison, June ll, 1985

TO: Margaret Kemp-Williams

Edward E. Grutzner

Grutzner, Byron, Holland

& Vollmer

312 W. Grand Avenue

Beloit, WI 53511

Frank X. Kinast

Christopher G. Kinast

263 W. Grand Avenue

Beloit, WI 53511

Hon. J. Richard Long

Rock County Circuit Court

250 Garden Lane

Beloit, WI 53511

The Court today announced an order in your

case as follows:

No. 84-198 Cari Welty and Susan Welty

vy. David Heggy

The court having considered

defendant-appellant-petitioner David

Heggy's petition for review of an adverse

decision of the court of appeals, district

IV, dated April 18, 1985,

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IT IS ORDERED the petition for

review is denied, with $50 costs to

plaintiffs-respondents.

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MARILYN L. GRAVES

Clerk of Supreme Court

Sc-105

A-32

STATE OF WISCONSIN, CIRCUIT COURT, BR. 5,

ROCK COUNTY

Carl Welty and

Susan Welty, JUDGMENT

Plaintiffs, Case No.

83 CV 938

V.

David Heggy,

Defendant.

The proofs of service show service upon

the defendant, David Heggy, by publication

and mailing.

The plaintiffs have filed their

affidavit of no answer that the defendant

is in default.

The court has taken testimony of the

plaintiffs by default on December 7 and

December 9, 1983. Plaintiffs have filed

their brief of the law. Exhibits were

received in and counsel for the plaintiffs

have argued their case to the court. The

9 court has filed its findings of fact and

conclusions of law in which it is directed

that judgment be entered accordingly.

Upon motion of Grutzner, Byron, Holland

& Vollmer, S.C., attorneys for plaintiffs,

It is adjudged that the plaintiffs, Carl

Welty and Susan Welty recover of the

defendant, David Heggy, the following:

Damages to real estate

and personal property $11,163.16

Personal injuries:

Carl Welty 75,000.00

Susan Welty 70,000.00

Punitive Damages:

Carl Welty 100,000.00

Susan Welty 100,000.00

Total Judgment $356,163.16

Three hundred fifty six thousand, one

hundred sixty three dollars and sixteen

cents, plus costs in the amount of Three

Hundred Fifteen and 74/100 Dol)ars, in

all Three Hundred Fifty-six Thousand,

Four Hundred Seventy-eight and 90/100

Dollars ($356,478.90).

Page 2

Judgment

Heggy v. Welty, Case No. 83 CV 938

The plaintiffs reside at Route One,

Highway X, Beloit, Wisconsin 535ll. The

occupation of Carl Welty is that of

professor biology retired, and author.

The occupation of Susan Welty is that of

author.

David Heggy resides at Route Une,

Highway X, Beloit, Wisconsin 535ll.

His present occupation is not known but

he has for many years been employed by

Eastern Airlines as a pilot.

It is adjudged pursuant to sec.

A-34

813.026, Stats., that Heritage Bank

Beloit, personal representative of the

Estate of Glen F. Heggy, deceased, and

trustee of the revocable intervivos

trust created by Glen F. Heggy, January

3, 1967, transfer sufficient of the

Estate of Glen F. Heggy, deceased and of

the trust of Glen F. Heggy and of the

property held jointly by Glen F. Heggy

and David Heggy, to satisfy this

judgment in full.

Edward Grutzner, Attorney for the

plaintiffs, Carl Welty and Susan Welty,

shall give notice of the judgment

forthwith to the Heritage Bank Beloit,

personal representative of the Estate of

Glen F. Heggy, deceased, and trustee of

the revocable intervivos trust created

by Glen F. Heggy, January 3, 1977.

The funds ordered transferred by the

Heritage Bank Beloit include the

property of the Estate of Glen F. Heggy,

deceased, which is subject to

administration, all assets held by the

Heritage Bank Beloit as joint property

of the defendant and his deceased

father, and all asets [sic] held by the

Heritage Bank Beloit in a revocable

lifetime trust created by the deceased,

Glen F. Heggy, January 3, 1967 and

subsequently amended on several

occasions regarding which the Heritage

Bank Beloit acted as trustee on the date

of death, and regarding which it is

still acting as trustee.

A-35

Dated: December 10, 1983

BY THE COURT:

(Signed)

J. Richard Long, Circuit Judge, Rock

County

A-36

STATE OF WISCONSIN, CIRCUIT COURT, BR. 5,

ROCK COUNTY

Carl Welty and FINDINGS

Susan Welty, OF FACT

Plaintiffs, CONCLUSIONS

OF LAW

Vv.

Case No.

David Heggy, 83 CV 938

Defendant.

This case came on for hearing before me

the Fonorable J. Richard Long, on December

7, and December 9, 1983. I find that this

court has jurisdiction over the defendant,

David Heggy.

I have received the trial brief of

Attorneys Grutzner, Byron, Hollard &

Vollmer. I have taken testimony and

received in evidence various documents and

other exhibits. Upon motion of Grutzner,

Byron, Holland & Vollmer, S.C., I make the

following:

FINDINGS OF FACT

1. Plaintiffs are husband and wife and

reside at Route 1, County Trunk X, Beloit,

Wisconsin. Carl Welty is presently 82

years of age and Susan Welty is presently

78 years of age. That the plaintiff, Carl

Welty, is a retired college professor. He

is an ornithologist and an author and that

Susan Welty was previcusly a college

professor, a teacher, and she is an

author.

A-37

2. Defendant resides at Ror’< l,

Denture Lane, Beloit, Wisconsin. His

current occupation is unknown but he has

been for many years and may now still be a

pilot for Eastern Airlines.

3. The defendant's residence property

is adjacent to and contiguous to the

plaintiffs’ residence property and bird

sanctuary.

4. Since July 14, 1980, and during such

times as the defendant has physically

resided in the home of his parents

adjacent to the Welty's property,

harassment of the Weltys has continued by

the defendant, David Heggy, without any

provocation by the Weltys.

5. David Heggy has intentionally caused

severe emotional distress and resultant

bodily harm to the Weltys by extreme and

outrageous conduct.

6. I find that the defendant, David

Heggy, has during the times relevant to

this action acted intentionally to cause

very severe emotional injury and distress

to the Weltys, as follows:

7. He has fired a gun during the day

and during the nighttime on many

occasions.

8. He has frequently set off

firecrackers.

9. He has made frequent phone calls to

the Weltys at all hours of the night and

early morning. Then, when the phone was

picked up, he would not speak but would

A-38

sometimes play a tape recorder or if the

phone was not answered by the Weltys he

would simply let the phone ring. On one

occasion the phone ragy as long as one

hour in the early morning. On other

occasions obscenities were spoken into

the phone.

10. The defendant has intentionally and

purposely pointed and aimed what

appeared to Mr. Welty to be a gun, at

him while Mr. Welty was working on his

Own property.

ll. The defendant has shot at and shot

a bullet through the Weltys' bedroom

window while they were sleeping in their

bedroom near the window.

12. On at least two different occasions

the defendant has pointed at Mr. Welty

what appeared to be a broom handle and

has shouted at him the word “bang” or

“bang bang.”

13. Through the spraying or herbicide

the defendant has intentionally and

purposely destroyed many trees belonging

to the Weltys, many shrubs belonging to

the Weltys, grasses upon the Welty

property, flowers of the Weltys, and

vegetables of the Weltys, until he has

essentially desolated a part of the

Welty property physically.

14. The defendant has on several

occasions destroyed the Welty mailbox.

15. The defendant has hung a toilet

seat from a tree in a location so as to

display the toilet seat prominently

toward the Welty property close to the

Welty property. David Heggy has

displayed several obscene signs near to

the fence facing the Welty property, one

sign appearing to be perhaps two feet by

three feet in size displaying an

obscenity toward the Weltys and this was

just not displayed once but it was, and

these signs were, displayed over periods

of time.

16. The defendant, David Heggy, has

intentionally and purposely played

excessively loud music which could be

heard from the Welty property so loud as

to disturb the reasonable tranquility of

the Weltys.

17. The defendant has intentionally

used some type of instrument to deliver

a high pitched sound easily audible from

the Welty property and so loud as to

destroy the desireable living qualities

of the Welty property.

18. The defendant Heggy has yelled at

both Mr. and Mrs. Welty. He has also

yelled at guests of the Weltys.

19. He has also stood on his own

property and near his fence but silently

stared at Mr. Welty in a manner to cause

any Ordinarily reasonable person to be

fearful.

20. The defendant has purposely caused

over 1,400 pieces of mail of various

types and subscriptions to be delivered

to them requiring them to cancel orders

for subscriptions, to write letters

telling people that property or items

had not been ordered trying to explain

to people that this was not mail that

A-40

should be coming to then.

21. I also find that the defendant

purposely placed a strobe light which

was Operated in the night toward the

Welty property disturbing their peace

and tranquility.

22. I also find that the defendant

placed nails in the driveway of the

Weltys and on another occasion placed

nails in the Weltys' driveway that were

particularly designed anc sharpened to

destroy the tires of any car that would

be using the Welty driveway.

23. The defendant fabricated and placed

sharp knife-like objects under the tires

of Mr. Welty's car in order to attempt

to blow out all four tires of the car.

24. The defendant designed and

purposely placed iron reinforcing rods

into the ground leaving them sticking up

about a foot out of the ground and

driving them into the ground about a

foot in order to attempt to damage Mr.

Welty's mower and, in fact, it did

damage the sickle bar on the mower.

25. I also find that the defendant has

caused to be delivered to the Weltys a

Christmas card that it does not appear

to the court was sent with sincerity and

was disturbing to the Weltys.

26. The defendant most recently sent to

the Weltys a Christmas gift that caused

the Weltys to be fearful of the contents

of the package and made them afraid to

open the package because they were not

sure of the contents which they believed

A-41

might have been explosives.

27. I find that the defendant purposely

sprayed Mr. Welty with a garden hose

when Mr. Welty was on his own property

and had caused no provocation of any

kind ever to the defendant.

28. The defendant mowed or caused to

have his lawn mowed at the late hours of

the night and the early hours of the

morning purposely to destroy the peace

and tranquility and disturb the sleep of

the Weltys and their guests.

29. The defendant purposely set fire to

a portion of the Welty property known as

the pine plantation or the pine woods.

30. The plaintiffs have shown that the

defendant's conduct was intentional. The

defendant behaved as he did for the

purpose of causing emotional distress to

each of these plaintiffs. I not only find

that this conduct was intentional but I

find that it was carefully planned. That

it was carefully executed and it was

specifically done in order to cause severe

emotional distress to each of the

plaintiffs. I find that the defendant's

conduct was not only intentional but that

it was extreme and outrageous.

31. I will say for the record that in

the view of this court I have practiced

law for thirty-one years and now I have

been a judge for four years, I have not

seen any conduct in the opinion of the

court more extreme and more outrageous

directed to peace-loving, fine people in a

manner specifically calculated not only to

A-42

4 destroy the property rights of the

plaintiffs but to destroy the very lives

and existence of the plaintiffs.

32. The plaintiffs' testimony and the

exhibits show that the defendant's conduct

was in fact a cause of substantial

emotional and psychological injury to each

of the plaintiffs and that as a result of

these injuries each of the plaintiffs have

suffered extreme disabling emotional

@ responses and injuries resulting from the

® defendant's conduct. For this finding I

@ refer specifically to the report of Dr.

@ Leigh Roberts regarding the examination

@ Dr. Roberts conducted upon these

plaintiffs.

33. At the time in life when because of

their age these individuals should be

Benjoying the sweetest years of their

existence the intentional conduct of the

defendant has caused each of them to be

@very apprehensive, to live in constant

fear, and on occasion to live in fear of

= death.

S 34. Mr. Welty's concentration for his

@work has been damaged. He finds that at

times his mind wanders because of the

unpleasant incidents involved. Both of

Bthe Weltys worry constantly about what

9will happen next.

35. The Weltys mourn the loss of what

@they describe as their pleasant green

@valley and their garden of Eden.

= 36. Mr. Welty at the time when what he

perceived to be a gun was pointed at hin

Band trained on him, woudered what it would

@feel like to be shot with pellets. He

A-43

perceived the gun to be a shotgun rather

than a rifle.

37. This conduct on the part of the

defendant has caused the Weltys to

experience outrage which peace-loving

people of this kind should be free from.

The plaintiffs are not the kind of people

that would become outraged except for

extreme provocation.

38. When Mr. Welty goes outside he

wears a blaze orange hat so that his

neighbor David Heggy can't claim he shot

Carl Welty because he mistook him for an

animal.

39. These plaintiffs are preoccupied

with thoughts of what next will happen to

@ their home.

40. The plaintiffs have documented

carefully the incidents and I find that

each of the documented incidents did in

fact occur. There is a chronology of

events in evidence and I find that those

events occurred as itemized therein.

@These events were intentional acts of the

@defendant Heggy designed and created

specifically to cause extreme emotional

@harm to these plaintiffs.

} 41. Both of the plaintiffs are

@emotionally strong persons but they have

been subjected to extreme emotional

@stress. Their sleep has been interfered

#with on many occasions.

— 42. The psychological injury which has

occurred to each of them is a permanent

@disabling psychological injury. It is

@something that they cannot and will not

A-44

get over as long as they live.

43. The acts of the defendant has

caused the plaintiffs to fear leaving

their home for short trips. When they

have had to be away from their home they

have had to leave people behind to guard

their property. They were required to

give up a long trip to the northwest and

southwest because of the intentional acts

of the defendant.

44. The plaintiffs have been humiliated

in front of their friends by the acts of

the defendant.

45. I find tnrat all of the injuries to

Carl Welty and all of the injuries to

Susan Weity were caused by the intentional

acts of the defendant David Heggy and that

those acts were done by design. They were

intentional. They were extreme. They

were Outrageous. They were in fact the

cause of the injuries to the plaintiffs

and the plaintiffs' emctional response and

injury is extremely disabling.

46. I find the evidence in this case to

be clear, satisfactory and convincing. I

am convinced to a reasonable certainty of

the facts as I have found them.

47. I will award for the damages to the

gardens the sum of $1,819.54. For damages

to trees $8,000.00 For damages to the

pine plantation $1,250.00. For damages to

the sickle bar $93.62, in all Eleven

Thousand, One Hundred Sixty~-three and

16/100 Dollars ($11,163.16).

48. With respect to compensatory

damages for the injury to Carl Welty I

A-45

ill award the sum of Seventy-five

Whousand Dollars ($75,060.00).

49. To Susan Welty, who has not had to

@take the steps to try to undo the mail

Wsituation I award for compensatory damages

sfor injury to her person the sum of

q Seventy Thousand Dollars ($70,000.00).

50. For punitive damages in favor of

Carl Welty and against the defendant,

David Heggy, I will award the sum of One

Hundred Thousand Dollars ($100,000.00).

51. To Susan Welty for punitive damages

against David Heggy, I will award the sum

of One Hundred Thousand Dollars

($100,000.00).

52. I will also award to the plaintiffs

their taxable costs and disbursements of

@ this action.

And I make the following:

CONCLUSIONS OF LAW

1. Plaintiffs are entitled to judgment

against defendant, David Heggy

accordingly.

2. The plaintiffs satisfied the Court

by affidavit that the defendant, David

Heggy, is interested, as heir in the

estate of his father, Glen F. Heggy,

deceased, and that the property of David

Heggy, liable to execution is probably

insufficient to satisfy this judgment.

3. Plaintiffs are entitled to judgment

pursuant to sec. 813.026 Stats., adjudging

an

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the transfer of sufficient of the interest

of David Heggy in the estate of his

father, Glen F. Heggy, deceased, to

satisfy this judgment.

4. Edward Grutzner, Attorney for the

plaintiffs, Carl Welty and Susan Welty,

shall give notice of the judgment

forthwith to the Personal Representative

of the Estate of Glen F. Heggy, deceased,

Heritage Bank, Beloit.

5. The funds ordered transferred by the

Heritage Bank Beloit include the property

of the estate of Glen F. Heggy, deceased,

which is subject to administration, all

assets held by the bank as joint property

of the defendant and his deceased father,

and all assets held by the Heritage Bank

Beloit in a revocable lifetime trust

created by the deceased, Glen F. Heggy,

January 3, 1967 and subsequently amended

on several occasions regarding which the

Heritage Bank Beloit acted as trustee on

the date of death, and regarding which it

is still acting as trustee.

Let judgment be entered accordingly.

Dated: December 10, 1983.

BY THE COURT:

(Signed)

J. Richard Long, Circuit Judge

A-47

MR. FRANK KINAST: I should say this,

and just, I'm sorry, Mr. Grutzner, and the

Court, you know, actually when you -- when

you look at this case in «he total

picture, you got an intelligent person, no

guestion about it, Finding of Fact Number

3 by the Court. David Heggy is a very

intelligent person. That was the Finding

of Fact in the initial case. Now, you've

got a very intelligent person who a year

ago, as I said earlier, hired a lawyer for

a minor case. It would be absurd, or it

would be preposterous to think here is a

man who is sued for a half million

dollars, he's aware of it, and he doesn't

even hire a lawyer. And so as I say, in

the total picture, it woud be absurd to

conclude that this defendant was aware of

| this lawsuit until December of 1983.

| THE COURT: Thank you.

MR. GRUTZNER: Would the Court tape --

A-48

I've turned this on so I don't have to

order a transcript.

THE COURT: This case is before the

Court on the 6th day of April, 1984, for

decision on the motion of the defendant,

David Heggy. And that motion is dated

January 14th, 1984. And that motion is to

set aside the judgment entered in this

action and all subsequent proceedings

thereon, and to let the defendant defend

the same and file and serve his answer on

such terms as may be just, all pursuant to

Section 806.07(1) of the Wisconsin

Statutes. And as has been made clear to

the Court by the attorney for Mr. Heggy,

the motion is based particularly and

singularly upon Section 806.07(1) (h) of

the Wisconsin Statutes.

The plaintiffs, Carl Welty and Susan

Welty, have appeared by their attorneys,

Edward Grutzner and Margaret

A-49

Kemp-Williams, of Grutzner, Byron, Holland

and Vollmer, a Service Corporation.

And the defendant has appeared in person

and by his attorneys, Frank X. Kinast and

Christopher Kinast.

On this motion testimony was taken on

January 23rd and February 14th, 1984. And

counsel have served and filed their briefs

and their proposed Findings of Fact and

Conclusions of Law.

Upon the entire record and the file in

this matter, I mak. the following Findings

of Fact:

First, that the plaintiff, Carl Welty,

is 82 years old and a retired college

professor, ornithologist and author.

The plaintiff, Susan Welty, is 79 years

old, a former teacher and an author.

The defendant, David Heggy, is 51 years

of age. He was a commercial airlines

® pilot for 30 years, is now retired, and is

A-50

obviously an intelligent and knowledgeable

person.

The defendant, David Heggy, has

continuously resided in the State of

Wisconsin from 1978 to the present time.

He has resided in the only house that is

on a street called Denture Lane on Highway

X, Route 1, Beloit, Wisconsin, within the

Town of Turtle, Rock County, Wisconsin.

The defendant's property is contiguous

to the plaintiffs' property. And the

plaintiffs have resided at their same

address continuously as the Court recalls

at least prior to 1978, and as the Court

recalls it was even earlier than the

1970's.

The poll list of the Town of Turtle for

3 the spring election on April 5, 1983,

showed that the defendant, David Heggy,

| had a post-office address of Route l,

4 Beloit, Wisconsin, and was a resident of

A-51

the Town of Turtle, Rock County,

Wisconsin, residing at Route 1, County

Highway X, Denture Lane, Ward 4, Beloit,

Wisconsin.

The records of the Wisconsin Motor

Vehicle Department show that the

defendant, David Heggy, on May 6th, 1982,

gave his address as Rural Route 1, Beloit,

Wisconsin, and on November 1, 1982, as 613

Cross Street, Beloit, Wisconsin.

The defendant Heggy, as a partner in a

business known as Rock Landscaping, on

July 26th, 1982, registered a 1979

@ Mercedes-Benz automobile in the name of

| Rock Landscaping stating that the vehicle

@ was kept at the Town of Turtle, Rural

Route 1, Beloit, Wisconsin 53511, which

was a personal car driven by the

@ defendant.

| On February 21, 1980, the defendant

Heggy registered a 1980 Honda four-door

A-52

automobile in the name of Rock Landscape,

certifying David Heggy of Denture Lane,

Beloit, Wisconsin, as the owner.

A witness by the name of Gary E.

Polglaze is an insurance agent, and he

issued a homeowner's policy of insurance

to the defendant Heggy by which he insured

the defendant's residence at Route l,

Denture Lane, Beloit, Rock County.

This action was filed in Court on

July 13, 1983.

John Torpy, a deputy sheriff for Rock

County for 13 years, beginning on July 29,

1983, made eleven attempts at different

times uf day to serve the defendant with

the summons and complaint in this action at

his residence. Officer Torpy on one

occasion found a shopper newspaper in the

mailbox and once left his business card in

the mailbox and i.:: a window next to the

door at the residence. Each time he had

to climb the fencegate to get to the house

door. He rang the doorbell. He walked

around the house once. He checked with

the Town of Turtle officers and with other

officers in the sheriff's department to

see if they could give a further address,

but he could learn no further address. He

learned of no other address for Mr. Heggy

through those inquiries. Between August

29 and September 8, 1983, he made five

more attempts: to serve the summons and

complaint personally upon the defendant.

Joseph Sprecher, a Rock County sheriff,

Cr deputy sheriff, for two and a half

years, testified that he knew Mr. Heggy,

and he attempted twice to serve the

defendant in July of 1983 at the

defendant's home. Mr. Heggy had

previously advised Sprecher to knock on

the door and step back from the door so

Heggy could see who was at the door.

A-54

Officer Sprecher knew of no other address

for Mr. Heggy.

Chadwick A. Kelley, a Rock County deputy

sheriff for 16 years, had previously in

1982 attempted to serve Mr. Heggy

unsuccessfully at his residence. Officer

Kelley had gone in 1982 to the office of

the Town Clerk of the Town of Turtle, and

then to what he called as Vance, but which

was obviously Varney Printing, located on

Cross Street in Beloit. He there talked

to the manager who told Officer Kelley

that he had never heard of Heggy. Kelley

was unable to serve Heggy at the printing

shop. He made several unsuccessful

attempts to reach Heggy by phone in 1982.

In this action he attempted to serve Heggy

on August 2nd, 3rd, and 4th, 1983, at his

residence but was unsuccessful. He knew

of no other address for Mr. Heggy.

Jimmy Brandenberg, a Rock County deputy

A-55

sheriff for 18 years, who knew Mr. Heggy,

unsuccessfully attempted to serve the

summons and complaint on Mr. Heggy at his

residence in December of 1983 three times.

He learned of no other address for the

defendant.

The plaintiff, Carl Welty, called his

attorney, Edward Grutzner, each time he

saw activity at the Heggy property in

order that Mr. Grutzner could be alert to

alert the sheriff to serve Mr. Heggy.

These times were on August 1, August 7 and

August 16 and September 18, 1983.

I find that the plaintiffs exercised due

diligence in attempting to serve the

defendant personally with the summons and

the complaint in this action and were

unable to do so.

At the time of the first publication of

4 the summons in this action on August 25,

1983, the plaintiffs mailed copies of the

A-56

summons and the complaint to the

defendant, David Heggy, at the following

. four addresses:

David Heggy, P.O. Box 938, Beloit,

Wisconsin 5351li;

David Heggy, Route 1, Denture Lane,

Beloit, Wisconsin 53511;

David Heggy, Route 1, Highway X, Beloit,

Wisconsin 53511;

David Heggy, Route 1, Box 250, Denture

Lane, Beloit, Wisconsin 53511; which were

all of the addresses then known to the

plaintiffs and the plaintiffs' attorneys.

The defendant, David Heggy, refused to

provide a mail receptacle at his home

residence, and, therefore, he did not and

could not receive mail addressed to his

residence.

The defendant Heggy had used Post Office

Box Number 938 at Beloit, Wisconsin Post

Office but discontinued using that post

A-57

office box in April or May of 1983. David

Heggy did not place a forwarding order or

leave a forwarding order for mail with the

Beloit Post Office.

Norma Woodman, the Town Clerk of the

Town of Turtle, produced the town poll

list which showed that David Heggy resided

at Route 1, Beloit, Town of Turtle, where

he was registered to vote, and that Route

1, Beloit, was his mailing address.

Bonnie Wetter, a Vice-President and

Trust Officer of the Heritage Bank of

Beloit and Heritage Trust Company, handled

the Estate of Glen Heggy, the deceased

father of the defendant, David Heggy. For

many years she wrote to David Heggy many

times at Denture Lane and never knew any

‘other address for David Heggy.

The defendant, David Heggy, used the

following addresses in 1983:

Denture Lane, Beloit, Wisconsin 53511;

A-58

Route 1, Beloit, Wisconsin 53511;

P.O. Box 938, Beloit, Wisconsin 53511;

Route 1, Highway X, Beloit, Wisconsin

53511;

Route 1, Box 250, Denture Lane, Beloit,

Wisconsin.

The defendant for approximately two

years had instructed certain people, but

only certain people, to use a mailing

address for him of 613 Cross Street,

Beloit, Wisconsin, which was the street

address of Varney Printers. David Heggy

never lived at 613 Cross Street, Beloit,

Wisconsin, and that address is not the

address of a residence but a commercial

printing establishment.

John Varney, the owner of Varney

Printers at 613 Cross Street, Beloit,

Wisconsin, received mail at that address

addressed to David Heggy and placed it in

a box. That mail was picked up

A-59

occasionally every couple of weeks or

every month by David Heggy, or every month

Or every six weeks by David Carpenter, a

person employed by Mr. Heggy.

The plaintiffs had no other known

address for the defendant, David Heggy,

other than his residence, until they

received a package on November 26, 1983,

postrarked from Minneapolis, Minnesota,

with a 613 Cross Street return address,

which they believed to be fictitious.

The defendant, David Heggy, has refused

to accept mail at his residence. Copies

of the summons and complaint sent by the

_ plaintiffs to the defendant, David Heggy,

“ ae

addressed to his residence have been

. returned to the attorney for the

plaintiffs marked, “Return to Sender, Not

' Deliverable as Addressed, No Forwarding

' Order on File, No Receptacle to Receive

Mail on Route l, Denture Lane, P. O. Box

A-60

0 SARE Oe

“

aa

Closed."

The defendant testified that he received

no mail addressed to him at any address

from July 13th, 1983, until January 9th,

1984; that during that time he had no

telephone communication with anyone in the

Beloit area; that during the period of

time from July 13, 1983, until July 9,

1984 --

MR. GRUTZNER: You misspoke, you meant

January

MR. FRANK KINAST: January, I think,

Judge.

THE COURT: I'm sovry, I'll start again.

During the period of time from July 13,

1984 -- strike that. During the period of

time from July 13, 1983, until January 9

of 1984, he was never in the State of

Wisconsin. If this testimony is true,

mail addressed to him at 613 Cross Street,

Beloit, Wisconsin, in care of Varney

A-61

Printers would not ’ ve reached him during

the pendency of this action. And I will

comment in a minute upon mail addressed to

him by an attorney by the name of John

Porgerding that he testified that he did

not receive until he returned to Beloit in

January of 1984.

From this evidence I find that the

plaintiffs exercised due diligence in

mailing copies of the summons and

complaint to the defendant in this action.

The defendant, David Heggy, filed an

affidavit in support of his motion to

vacate the judgment that he was not in the

State of Wisconsin from July 13, 1983,

until January 7, 1984.

The defendant, David Heggy, testified at

the hearing on January 23rd and February

14th that he was not in the State of

Wisconsin from July i3, 1983, until

January 9th , of 1984.

A-62

From the credible evidence 1] find that

the defendant, David Heggy, was seen at

his residence during the pendency of the

action.

3 Miles Carson -- strike that. Miles

| Carlson, a near neighbor of Heggy, who

knew Heggy and had known him for many

years, saw David Heggy in the first half

of October of 1983 when David Heggy was

unlocking his front gate. Mr. Carlson

passed while jogging within a car length

of David Heggy. Carlson believed that he

saw Heggy previously in the summer after

July of 1983 when Heggy was on his lawn

and Carlson was running or driving.

Carlson identified Heggy in the courtroom,

Carlson also testified that within an hour

of having seen Mr. Heggy, he told his wife

that he had seen David Heggy.

Melvin McCabe, a Town of Turtle employee

for eight years, who worked on the roads

A-63

in the Town of Turtle, and who knew Heggy

for three or four years, saw David Heggy

after August 8, 1983, and before October

of 1983, when the defendant was mowing his

lawn at his residence on his garden

tractor. David Heggy and Mr. McCabe waved

at each other at a distance of 20 to:30

feet while McCabe was on a slow-moving

mower.

Leroy Laursen, a Town of Turtle highway

department worker for fifteen years, and

who knew David Heggy, saw David Heggy in

August or early September of 1983 and

passed within 20 yards of Heggy, who was

then mowing the grass at the shoulder of

the road in front of his residence.

David Heggy employed a caretaker named

David Carpenter in 1983. He was 24 years

old. He was employed to look after and

maintain his residence on Denture Lane.

Carpenter has worked for Heggy

A-64

continuously from 1978 to the present.

Parts of his deposition were read into

evidence, the deposition taken on December

30th, 1983. His testimony and parts of

that deposition show that David Carpenter

in about September of 1983 met with David

Heggy and Suzanne Hall, a woman with whom

Heggy has lived for several years. They

met at the Ace Tavern in South Beloit,

Illinois, Carpenter brought the mail to

David Heggy and sat with only Heggy and

Suzanne Hall in a booth in the tavern,

which was quiet and uncrowded. Neither

David Heggy, Suzanne Hall nor David

Carpenter were intoxicated.

David Carpenter had learned before the

meeting of the lawsuit filed by the Weltys

by reading about it in the newspapers

either in the legal section or in an

article regarding the action, and then

knew of the pending legal action. David

A-65

ES Ae Fables ieee CB Se Bt min at Er

Carpenter told David Heggy and Suzanne

Hall of the pending lawsuit brought

against David Heggy by the plaintiffs.

David Carpenter had read it in the papers

and he had -- and Suzanne Halli said, "Yes,

we know about it.” David Heggy was there

present and heard that conversation and

did not deny the response given by Suzanne

Hall.

David Carpenter never did any washing or

laundry at the Heggy home. In S@pcember

of 1983 when David Carpenter spoke to

David Heggy and Suzanne Hali, Carpenter

knew Of no other action pending against

David Heggy, except the action brought by

the Weltys whom Carpenter knew.

John Borgerding, a Beloit attorney who

had previously represented Mr. Heggy,

wrote about this lawsuit to David Heggy on

October 25, 1983. He signed the letter,

stamped and addressed the envelope, and he

|

;

|

;

:

himself placed it in the mail addressed to

613 Cross Street, Beloit, in care of

Varney Printers, because he had been told

by Heggy to write him at that address.

Mr. Borgerding never received the letter

back. That letter read in part: "You

have been sued by Welty for a total of

$500,000 for the alleged harassing things

he claims you did. At this point unless

you take remedial steps immediately, you

could lose plenty."

David Heggy has intentionally evaded the

service of the summons and the complaint

in this action at his residence in

Wisconsin.

The defendant, David Heggy, has in the

past evaded service of process.

Between August 24 and September 6th,

1982, Rodney Magneson, a part-time police

. officer of the Town of Turtle, who could

recognize Heggy on sight, saw Heggy.

A-67

Magneson then in a squad car and in

police uniform saw Heggy in the yard near

his home and stopped the police car in

Heggy's drive in an attempt to serve a

bench warrant on Mr. Heggy. Magneson got

out and climbed the gate while Heggy

walked toward and entered the house.

Magneson walked to the house and knocked

on the front door, which Suzanne Hall

opened. Magneson was, however, not able

at that time to serve the bench warrant

on Heggy, because David Heggy would not

come to the door.

Over a period of years Bonnie Wetter,

the Trust Officer previously mentioned,

sent letters to the defendant Heggy at

Denture Lane, which were never returned.

Deputy Sheriff Chad Kelly was unable to

serve an order for Bonnie Wetter on Yeggy

on February 25, 1982. Bonnie Wetter hired

the sheriff to serve papers on Heggy March

12, 1982, but he was not successful in

serving Heggy. David Heggy refused to

communicate with Bonnie Wetter over a

period of years.

Richard Walsh was told by David Heggy in

the summer of 1981 that on one evening,

either an officer, a sheriff or a deputy

Or constable had knocked on Heggy's

residence door and David Heggy ran out the

back door, walked down the railroad tracks

and caught a ride to South Beloit,

Illinois, because David Heggy did not want

to see the officer.

Other facts indicate that the defendant,

David Heggy, was present when service of

the summons and complaint in this action

was attempted.

On August 16, 1983, colorful women's

laundry was on the Heggy clothesline. The

caretaker had not placed the laundry

there. He testified that he'd never did

A-69

laundry at the Heggy residence.

On one occasion an automobile was

observed in the driveway by Deputy Sheriff

Torpy with a flat tire, and the next day

the tire appeared to be fixed.

While David Heggy and Suzanne Hall

testified that they had stayed at the

Totem Lodge in Sioux Narrows, Ontario,

Canada, from August 8 to November 29,

1983, and the owner of that establishment

testified likewise, there were charter

flights from Sioux Narrows to Kenora and

International Falls, and from there to

O'Hare Field in Chicago. And it was

testified, and it is clear from the

evidence, that a person registered at the

Totem Lodge, because of its locavion and

arrangement, coula stay out of sight for a

week Or so and no person see the

individual involved.

The Court did obtain personal

A-70

jurisdiction over the defendant because

the evidence shows that the defendant was

served by publication and mailing pursuant

to Section 801.11(1)(c). That statute

provides in part:

"..., service may be made by publication

of the summons as a class 3 notice,...

and py 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 -- cannot be ascertained with

reasonable diligence."

"The service of a summons in a manner

prescribed by statute is a condition

precedent to a valid exercise of personal

A-71

jurisdiction, notwithstanding actual

knowledge by the defendant.” And then

there are some citations. And that is a

quote taken from the case of Span

y.Span, 52 786, at page 789, a 1971

decision of the Wisconsin Supreme Court.

And from the case of West v. West,

reported at 82 Wis.2d 158, and I will read

from page 166, a 1978 decision of the

Wisconsin Supreme Court,

",.. One who seeks substituted service

by publication must first exhaust with

due diligence any leads or information

reasonably calculated to make personal

service possible."

And then from the case of Beneficial

Finance Company v. Lee, 37 Wis.2d 263,

and I will read from page 269, 1967

decision,

A-72

"'For a court to obtain jurisdiction

over a person, a summons must be served

as provided by the statutes. Slipshod

and haphazard attempts to serve are not

sufficient.'"

In this case the statement is made that

the Heggy -- that the Weltys should have

learned of the Cross Street address and

made a mailing to the Cross Street

address. But David Heggy only disclosed

that address to persons whom he wanted to

know the address. And the address was

never disclosed at any time until a

package was received in late November of

1983 after the mailing had already been

made.

Further than that, the testimony is

undisputed that even though the summons

and complaint had been mailed to Mr. Heggy

at that address, he wouldn't have received

it, because mail addressed to him at that

address he himself testified that he did

not receive from sometime in July until he

came back to Beloit in early January of

1984.

In this regard I make the following

Conclusions of Law:

That the Court had jurisdiction over the

defendant, David Heggy, at the time it

rendered judgment.

David Heggy at all times pertinent to

this action did reside at Denture Lane,

Highway X, Route 1, Turtle Township,

Beloit, Rock County Wisconsin.

And that the plaintiffs did exercise

reasonable diligence --

MR. GRUTZNER: May I turn that? (Pause)

Thank you.

THE COURT: -- to serve the summons and

complaint personally pursuant to Section

801.11(1)(c) of the Statutes.

A-74

And, finally, that the plaintiffs

exercised reasonable diligence to mail a

copy of the summons and complaint to the

_ defendant's post office address pursuant

to Section 801.11(1)(c) of the Wisconsin

Statutes.

Reasons do not exist in this case

justifying relief from the operation of

the judgment under Section 806.07(1) (h) of

the Wisconsin Statute. That statute

provides in part:

"Relief from judgment or order. (1) On ~

motion and upon such terms as are just,

the court may relieve a party from a

judgment, order or stipulation for the

following reasons:"

And subsection (h) provides:

"Any other reasons justifying relief

from the operation of the judgment.”

A=-W75

",..Section 806.07(1)(h) of the Statutes

gives the court broad discretionary

authority to grant relief from a

judgment.... That section is based on

Federal Civil Procedure Rule Number 60.

Federal cases interpreting that

provision indicate that it must be

liberally construed to allow relief from

judgments ‘whenever such action is

appropriate to accomplish justice.'"

And that is a citation taken from the case

of Conrad vy. Conrad, reported at 92

Wis.2d 407, and the citation -- or the

quote is at page 418, a 1979 decision of

the Wisconsin Supreme Court.

Our Supreme Court in the case entitled

In the Matter of the Estate of Smith,

reported at 82 Wis.2d 667, at page 674, in

1978 stated:

"... The scope of Section 806.07(1) (h)

A-76

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is analyzed in Graczyk, The New .

Wi in Bul € Civil i

Chapters 805-807, 59 Marquette Law

Review 671, 727 (1976). Therein the

author stated:

"'The former rule limited the number of

circumstances under which a motion to

vacate a judgment could be sought. The

new rule considerably expands this list,

while subsection (1)(h) gives the court

wide discretion to entertain the motion

for other justifiable reasons.'"

In the case of Hedtcke v. Sentry Ins.

Co., reported at 109 Wis.2d 461, at page

471, a 1982 decision of the Wisconsin

Supreme Court, Justice Abrahamson, writing

for the Court, stated:

"Because 'the exercise of discretion

is not the equivalent of unfettered

A-77

e¢ enies’

decision-making,' the record on appeal

must reflect the circuit court's

reasoned application of the appropriate

legal standard to the relevant facts in

the case.” And then a citation. "This

court has described the role of the --

the roles of the circuit court and the

appellate tribunal with respect to

issues within the discretion of the

circuit as follows:

"'The trial court must undertake a

reasonable inquiry and examination of

the facts as the basis of its decision.

The exercise of discretion must depend

on facts that are of record or that are

reasonably derived by inference from the

record and the basis of that exercise of

discretion should be set forth. This

court will not find an abuse of

discretion if the record shows that

discretion was in fact exercised and if

A-78

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the record shows that there is a

reasonable basis for the trial court's

determination.'" And then a citation.

From the case of Charolais Breeding

Ranches v. Wiegel, a 1979 decision of

the Wisconsin Supreme Court reported at 92

Wis.2d 498, and I read from page 512, the

Court states:

"Factors favoring upholding a denial of

a motion to vacate a judgment are... a

policy in favor of the finality of

judgments, and probability that a policy

which excused or tolerated... neglect'",

Or in this case obvious conduct to avoid

service of process through reasonable

and diligent efforts, “*'would foster

delay in litigation...'"

And then from the case of Hansher vy,

Kaishian, reported at 79 Wis.2d 374, at

A-79

page 391, a 1977 decision:

",...A reasonable degree of prudence

should be required whichever of the

statutory grounds are relied upon to

justify relief."

In a recent case, the case of CKS

Engi I bed whi :

Company, decided January 30, 1984, and

this is Case Number 83-1609 of the United

States Court of Appeals for the Seventh

Circuit, Judge Flaum writing for the Court

said in part:

"On 5-20-82 another attorney appeared

for the defendants and moved that the

default judgment be vacated under

Federal Rule of Civil Procedure 60(b).

Denial of this motion is affirmed. Rule

60(b) is applied liberally in the

defauit judgment context only if the

A-80

events contributing to the default

judgment have not been within the

meaningful control of the defaulting

party. For a default judgment to be an

effective deterrent against

irresponsible conduct in litigation,

relief from a default judgment under

Rule 60(b) must be perceived as an

exceptional remedy."

In that case, and he stated:

"The large amount of the judgment,

$660,000 does not require reversal

absent a good excuse for the default."

In this case from the evidence I find

that the defendant, David Heggy, has not

shown excusable neglect.

The defendant has refused to accept his

mail at his residence.

The defendant has not shown that neglect

A-81

which might deen the acts of a reasonably

prudent person under the same or similar

circumstances.

The defendant has intentionally and

purposefully evaded service of the summons

and the complaint in this action.

The defendant was present at his home at

least twice during the pendency of this

action, and the defendant was told by his

employee in September of 1983 of the

pendency of this action.

The defendant has not acted in a

reasonable manner and has purposely made

personal service and service by mailing

through reasonable diligence impossible.

The defendant has been neglectful,

careless and inattentive in this matter,

and he has not demonstrated that he has

exercised a reasonable degree of prudence

on his own part.

As a matter of fact, I think to set

aside this judgment instead of doing

justice would do a grave injustice to the

plaintiffs in this action, and the

interests of justice would not be ser ..u

by setting aside the judgment unde. che

provisions of Section 806.07(1)(h) of the

Wisconsin Statutes.

Finally, the judgment of the trial Court

was based upon the evidence presented, and

the damages awarded were not excessive.

I would point out that while I have only

been a Judge for some four and a half

years, Or approximately something over

four years, I was a trial attorney for

some 30 years and also taught at the

University of Wisconsin Law School and

have been active in legal education in

Wisconsin for some considerable perisd of

time and now am active in judicial

education. So I feel the Court has some

knowledge of the trial and the evidence

that was presented in this matter and the

amount of damages that should have been

awarded.

The record contains no errors in the

admission of evidence, because the trial

Court clearly understood the three

Statutes of Limitations involved and

correctly applied those statutes to the

evidence.

The causes of action or claims against

the defendant, David Heggy, are grounded

upon allegations of a continuous course of

intentional conduct, and, thus, all acts

in the continuum comprised the causes of

action and were admissaJle.

The circumstantial and indirect evidence

of the commission of the acts by David

Heggy for which there were no eye witnesses

were proved by the greater weight of the

credible evidence to a reasonable

certainty.

Extreme, disabling emotional response,

an injury suffered by the plaintiffs, was

proved by the testimony of the

psychiatrist, Doctor Roberts, who in the

Knowledge of the Court has had long

experience in the field of forensic

psychiatry.

The punitive damage awards were not

excessive in view of the extreme

outrageous, and I underscore the words

outrageous and intentional, nature of the

defendant's conduct, and the severe

emotional distress suffered by these

plaintiffs.

Carl Welty is 82 years old. Susan Welty

is 79 years of age. A retrial of this

action would place an unwarranted and

unnecessary burden upon them and would

place the Court in the position of aiding

one who has purposely thwarted the legal

process. The piaintiffs would be

A-85

prejudiced by the Court setting aside this

judgment.

There has been no miscarriage of

justice. The Findings of Fact made by the

Court, dated December 10, 1983, are not

erroneous. There is no evidence in the

record which would indicate that a jury

verdict would or should be for a lesser

amount than was awarded by the Court.

The defendant's motion has been brought

pursuant to, and I realize solely upon the

provisions of Section 806.07(1)(h) of the

Wisconsin Statutes, and not upon Section

806.07(1) (a) of the Statutes as has been

stated and agreed to by counsel and the

Court.

Based upon this decision and the Court's

reasoning, the defendant's motion to set

aside the judgment grounded upon Section

806.07(1)(h) is denied.

Mr. Grutzner, I will direct that you

A-86

draw an Order denying *'.: defendant's

motion. And that concludes the Court's

decision in this matter.

STATE OF WISCONSIN, CIRCUIT COURT, BR. 5,

ROCK COUNTY

Carl Welty and

Susan Welty, ORDER

Plaintiffs, Case No.

83 CV 938

Vv.

David Heggy,

Defendant.

The defendant, David Heggy, has served

and filed his motion, dated January 14,

1984, in which he requests that the court

set aside the judgment entered in this

action, dated December 10, 1983, and all

subsequent proceedings, to let the

defendant defend the action, to file and

serve his answer, on such terms as may be

just, all pursuant to sec. 806.07(1)

Stats. Counsel for defendant at the

commencement of the hearing stated the

motion more specifically was brought

pursuant to paragraph 806.07(1)(h) Stats.

and not any other paragraph of Subsection

806.07(1) Stats.

Testimony was taken January 23, and

February 14, 1984. Counsel for both

parties have filed briefs of the law and

proposed findings of fact and conclusions

of law. On April 6, 1984, counsel argued

the case before me.

The court in open court announced its

decision containing its findings of fact

A-88

and conciusions of law.

Upon motion of Edward Crutzner,

Attorney for the plaintiffs, it is

Ordered that the motion of the

defendants, pursuant to Sec. 806.07(1) (h)

Stats., to set aside the judgment dated

December 10, 1983, is denied. Motion

costs of $50.00 are allowed the

plaintiffs.

Dated: April 9, 1984.

BY THE COURT:

(Signed)

J. Richard Long, Circuit Judge

Branch 5, Rock County, Wisconsin

A-89

on Motion to Vacate [pp. 185ff.]

COURT: ... I would direct your attention

to Vol. 62 of American Jurisprudence,

2d under the heading Process, Sec. 69.

And I will read just briefly from that.

"The general doctrine that a personal

judgment upon constructive or substituted

service of process upon a nonresident

defendant who does not appear is contrary

to due process of law, and is valid

neither in the state where rendered nor in

any other state in which its enforcement

may be sought, does not necessarily

preclude the recovery of a personal

judgment against a resident of the state

upon substituted or constructive service

of process. The rule as laid down in

Pennover vy. Neff, is confined to

personal judgments against non residents

of the state, and in the great majority of

A-90

the cases presenting the question the

Courts have declined to apply the doctrine

to personal judgments against residents of

the state or domestic corporations, but

for the most part have sustained the

validity of a personal judgment recovered

against a resident or a domestic

corporation upon substituted or

constructive service of process where he

or it couldnot be personally served within

the state, and notice was given in such

manner that the reasonable probabilities

were that the defendant would receive

notice of the pending action or proceeding

before a judgment or decree was rendered

agaist him." And then from

page--paragraph 70. It states, "When

authorized by statute, jurisdiction to

render a personal judgment may be based

up[on] publication on a defendant who is a

resident of and within the state, when he

A-91

cannot be found therein because he

conceals himseif to avoid the service of

process. The fact that a person served by

publication is in fact a resident of the

state and might have been served there is

insufficient to avoid a decree, where the

statute provides for service by

publication on a resident, as well as ona

nonresident, if not found after diligent

search and inguiry." And then from

section 71 which is headed "Effect of

defendant's absence from state. It is not

guite generally recognized that the fact

that the defendant was without the state

at the time of the substituted service by

leaving a copy of the summoms at his usual

place of abode in the state does not

invalidate the service for the purpose of

the rendition of a judgment in personam.

As the Supreme Court of the United States

has pointed out the authority of a state

A—O%

Over one of its citizens is not terminated

by the mere fact of his absence from the

state. The state which accords him

privileges and affords protection to him

and his property by virtue of his domicil

may also exact reciprocal duties. One

such incident of domicil is amenability to

Suit within the state even during sojourns

without the state, where the state has

provided and employed a reasonable method

of apprising such an absent party of the

proceedings against him." And then

finally from page or paragraph 73,

"Publication and mailing. According to

the prevailing view, a personal judgment

may be rendered against a resident of the

state who has been notified by means of

service by publication and provided it

appears that actual personal service couid

not be made. The general ruie is

especially true where the statute in

A-93

addition to authorizing the service by

publication, requires it to be mailed to

the defendant's address, some decisons

going apparently to the extent of

requiring such mailing in order to impart

validity to the service by publication."

A-94

i or Plaintiffs’ ;

Memorandum [pp. 3ff., 20ff.]

At 62 Am Jur 2d, Process § 69,

reads in part as follows:

"§69. Generally.

The general doctrine that a personal

judgment upon constructive or

substituted service of process upon a

nonresident defendant who does not

appear is contrary to due process of

law, and is valid neither in the state

where rendered nor in any other state in

which its enforcement may be

sought, does not necessarily

| preclude the recovery of a personal

| judgment against a resident of the state

upon substiguted Or constructive service

of process. The rude as laid down

in Pennoyer v. Neff,~ is confined to

personal judgments against nonresidents

of the state, and in the great

majority of the cases presenting the

question, the courts have declined to

apply the doctrine to personal judgments

against residents of the state or

domestic corporations, but for the most

part have sustained the validity of a

personal judgment recovered against a

resident or a domestic corporation upon

substituted or constructive service of

| process where he or it could not be.

personaily served within the state,

A-95