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COURT OF APPEALS
DECISION
DATED AND FILED
June 1, 2011
A. John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Condor Capital Corporation,
Plaintiff-Respondent,
v.
Robert Lansing,
Defendant-Appellant,
Jolene Lansing,
Defendant.
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APPEAL
from an order of the circuit court for Shawano County: james
r. habeck, Judge. Affirmed in
part; reversed in part and cause remanded.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Robert Lansing appeals an order
denying his motion to reopen a replevin judgment. He argues that the judgment is void for two
reasons: (1) Condor Capital Corporation
failed to provide all of the notices listed in Wis.
Stat. § 425.205(1g)(a) (2009-10);
and (2) the action was not properly venued in Shawano County. We conclude that Wis. Stat. § 425.205(1g) does not apply. However, the court improperly denied the
motion to vacate the judgment based on the venue issue because an evidentiary
hearing was required to provide a factual basis to resolve the venue issue.
Background
¶2 Robert and Jolene Lansing purchased a vehicle in Pennsylvania using
credit granted by Condor Capital. In
2004, the Lansings defaulted on payments and, in
2006, Condor sent a notice of default and right to cure letter to the Lansings’ then address in Shawano, Wisconsin. The Lansings
and Condor then reached a payment agreement and, beginning in December 2006,
the Lansings made a series of payments, each
with an address located in Madison, Dane County, Wisconsin. The Lansings
also received written statements from Condor at their Madison address.
¶3 Nonetheless, when the Lansings
again missed payments, Condor filed a lawsuit in Shawano County
naming Robert and Jolene Lansing as defendants.
Condor’s process server was unable to locate the Lansings
at the Shawano address and was told by a neighbor that the Lansings had moved “a couple of months
ago.” Condor then filed an amended
summons that was mailed to the Lansings,
indicating a Shawano address for Robert and a Pennsylvania address for Jolene, and the
summons was published in a Shawano newspaper.
After the Lansings
failed to answer, Condor obtained a default judgment.
¶4 The Lansings learned of the judgment when their car was taken
and they were sued for a deficiency in Dane County. The Lansings
then filed a motion to reopen the Shawano judgment and the Dane County
action was stayed pending resolution of the motion. Condor opposed reopening the replevin
judgment, arguing that the mailed summons had never been returned to its
attorney and that it had numerous difficulties trying to find the Lansings. The circuit court focused on whether Condor
should be penalized for any wrongdoing, and whether there was proper service
and actual notice. It concluded that
Condor made reasonable efforts to locate the Lansings
and found no evidence that Condor “really knew that Mr. Lansing was in Madison.” The court observed that “apparently the
vehicle was not actually there [the Shawano
County address]” and found that Robert
Lansing “did reside somewhere else,” although the court did not specify that Lansing resided outside of Shawano County
at that time.
Discussion
¶5 Condor’s failure to provide some of the notices listed in Wis. Stat. § 425.205(1g)(a) does
not render the replevin judgment void.
That statute applies only when the creditor takes possession of a motor
vehicle under Wis. Stat. § 425.206(1)(d),
which only applies when the merchant avails itself of “self-help.” Condor indicates that it did not utilize the
self-help option, and Lansing’s
reply brief does not contradict that statement, in effect conceding the
point. Rather, Lansing argues that Condor was statutorily
required to provide the notices listed under § 425.205(1g) based on the
requirements of Wis. Stat. § 425.104. That argument was raised for the first time
in the Lansings’
reply brief. We do not consider issues
raised for the first time on appeal, see Terpstra v. Soiltest Inc., 63 Wis. 2d 585, 593,
218 N.W.2d 129 (1974), and particularly when an argument is made for the first
time in a reply brief. See Northwest
Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502
(Ct. App. 1995).
¶6 However, the court erred by denying the Lansings’ motion based on improper venue
without conducting an evidentiary hearing.
In a consumer action, a defect as to venue is a jurisdictional
defect. See Kett v. Community Credit Plan, 228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786
(1999). The circuit court’s focus on
Condor’s knowledge of the Lansings’
whereabouts and its efforts to serve them mistakenly equates personal
jurisdiction with appropriate venue. The
consumer act requires an action to be brought in a proper venue. To obtain venue in Shawano County,
the customer must reside there or the vehicle must be located there. See
Wis. Stat. § 421.401. While due diligence to locate a defendant can
justify a plaintiff’s service by publication, the consumer act makes no
exception to the venue requirement.
Condor’s knowledge or lack of knowledge of the Lansings’ correct address is irrelevant.
¶7 Robert Lansing submitted an affidavit with his motion to
vacate the default replevin judgment stating that he received a notice of the
right to cure and other written statements from Condor at his Madison
address. The affidavit implied, but did
not directly state, that neither of the Lansings
resided in Shawano County and that the vehicle was not in Shawano County at the time the action was
commenced. The Lansings’ attorney stated that Robert was
available to testify if the court found any gap in the affidavit. Because the court focused on issues that
relate to service of process instead of venue, the court made its ruling
without conducting an evidentiary hearing.
On the state of the record at this time, we cannot definitively say
whether either of the Lansings resided in Shawano County or where the vehicle was located
at the time the action was commenced.
Although the court found that the vehicle “apparently” was not “there”
[the specific Shawano County residence] and suggested that the Lansings were in Madison,
it did not take testimony or make conclusive findings to resolve the venue
issue. Therefore, we remand the matter
to the circuit court for an evidentiary hearing and findings as to where the Lansings resided and where
the vehicle was located at the time the action was commenced.
By the Court.—Order affirmed in part;
reversed in part and cause remanded. No
costs on appeal.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.