# Appendix — Heggy v. Welty

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 947

## Text

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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.

A-10

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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

trac ori aAhat tA

en ee ee ee mn
oA eo ig she

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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cei anne mee 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.

_——@3w Qn Ke ee er ee ae ewe wee ee we we wee ae aie es ee ee

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’
.
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0689%3A2. Public record. Not legal advice.