District II
October 22, 2014
To:
Hon. Sandy A. Williams
Circuit Court Judge
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
Marylou Mueller
Clerk of Circuit Court
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
David A. Ambrosh
Kohn Law Firm
735 N. Water Street, Ste. 1300
Milwaukee, WI 53202-4106
Gordon R. Leech
Consumer & Employment Law Center of Wisconsin, S.C.
4701 N. Port Washington Road, Ste. 101
Milwaukee, WI 53212
You are hereby notified that the Court has entered the following opinion and order:
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Midland Funding, LLC v. Lyndon K. Steinhaus (L.C. # 2009CV565) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Lyndon K. Steinhaus appeals from
a circuit court order denying his petition for relief from judgment. Based on our review of the briefs and record, we conclude at
conference that this case is appropriate for summary disposition. See
Wis. Stat. Rule 809.21 (2011-12).[1] We affirm the order of the circuit court.
On July 15, 2009, Midland Funding, LLC filed suit
against Steinhaus for collection of a credit card debt. Midland served Steinhaus by publication in
Ozaukee county, which was his last known address. After he failed to respond, the circuit court
entered a default judgment in favor of Midland on December 7, 2009.
Nearly four years later, on October 30, 2013,
Steinhaus filed a petition for relief from judgment pursuant to Wis. Stat. § 806.07. In it, he maintained that the judgment was
void under the Wisconsin Consumer Act’s venue statute[2] because
Midland brought its suit in a county where Steinhaus did not reside. He further maintained that he was not aware of the suit until
a year earlier, when he saw the judgment on his credit report. Following a hearing on the matter, the
circuit court denied the petition. This
appeal follows.
A circuit court has wide discretion in determining
whether to grant relief from judgment under Wis.
Stat. § 806.07. See Miller v. Hanover Ins. Co., 2010 WI
75, ¶29, 326 Wis. 2d 640, 785 N.W.2d 493.
We review such a determination under the erroneous exercise of
discretion standard. Id. “We will not reverse a discretionary
determination … if the record shows that discretion was in fact exercised and
we can perceive a reasonable basis for the court’s decision. We generally look for reasons to sustain a
court’s discretionary determination.” Id.,
¶30 (citations omitted).
Here, Steinhaus brought his petition pursuant to Wis. Stat. § 806.07(1)(d) and (h),
which provide in relevant part:
(1) On motion and upon such terms as are just, the court … may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
….
(d) The judgment is void;
….
(h) Any other reasons justifying relief from the operation of the judgment.
A motion under § 806.07(1)(h) must be made “within a reasonable time.” Wis. Stat. § 806.07(2).
The circuit court denied Steinhaus’ petition for two
reasons. First, it was not convinced
that the Wisconsin Consumer Act’s venue statute applied to the case, as it
appeared that Steinhaus had been living out-of-state during the time period in
which he allegedly signed the credit card contract.[3] Second, it concluded that Steinhaus did not
file his petition within a reasonable time.
On appeal, Steinhaus contends that the circuit court
erred in denying his petition. He
complains that Midland
never offered the contract or evidence regarding when or where it was allegedly
signed. Additionally, he submits that he
took action to resolve the matter as soon as he discovered it and blames others
for the delay in filing the petition.
It is true that Midland failed to present the contract
or evidence regarding when or where it was allegedly signed. However, it was not Midland’s burden to show that
its case against Steinhaus was properly venued and that the circuit court had
jurisdiction to enter the default judgment.
Rather, it was Steinhaus’s burden to show that he was entitled to relief
from the default judgment under Wis.
Stat. § 806.07. See Connor v. Connor, 2001 WI 49, ¶28,
243 Wis. 2d 279, 627 N.W.2d 182.
Upon review of the record, we are not persuaded that Steinhaus
has demonstrated that the default judgment was void under the Wisconsin
Consumer Act’s venue statute. Moreover,
we agree with the circuit court that Steinhaus did not file his petition within
a reasonable time, as, by his own admission, he was aware of the judgment for
over a year before filing his petition. For
these reasons, we are satisfied that the circuit court properly exercised its
discretion in denying the petition.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals