COURT OF APPEALS 

DECISION 

DATED AND FILED

September 11, 2019 

Sheila T. Reiff 

Clerk of Court of Appeals 

 

NOTICE 

 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. 

Appeal No. 2018AP414 Cir. Ct. No. 2017CV470

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT II 

SCOTT CARRINGTON MATTHEW, 

 PLAINTIFF-APPELLANT, 

 V. 

ELITE TEAM AUTO BROKERS, LLC, EFRAIN COLORADO, ANA ELVIRA 

GARCIA AND CARLOS MIGUEL ORTEGA, 

 DEFENDANTS-RESPONDENTS, 

DIANA DEGRACIA CHIN, 

 DEFENDANT. 

 APPEAL from an order of the circuit court for Fond du Lac County: 

RICHARD J. NUSS, Judge. Affirmed. 

 Before Neubauer, C.J., Reilly, P.J., and Gundrum, J. 
No. 2018AP414 

2 

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Scott Carrington Matthew appeals an order (1) 

vacating a default judgment entered in Matthew’s favor against Elite Team Auto 

Brokers, LLC, its owners, and a manager (collectively, Elite) and (2) dismissing 

Matthew’s action without prejudice for lack of personal jurisdiction under WIS.

STAT. § 801.05 (2017-18).1 For the reasons that follow, we affirm. 

¶2 Matthew is a resident of Wisconsin. Using the internet, he 

purchased a vehicle from Elite from a car dealership located in Florida. According 

to Matthew’s complaint, he “was seeking a ‘pure’ southern car, entirely devoid of 

the rust so common due to the effects of Wisconsin winters.” He responded to 

Elite’s advertisement and wired the purchase price. Matthew did not inspect the 

vehicle prior to delivery, and he made arrangements with a separate company to 

transport the vehicle to Wisconsin. 

¶3 On November 14, 2017, Matthew filed a complaint alleging civil 

theft, fraud, and breach of contract in connection with the vehicle’s purchase. The 

complaint was served on November 16, 2017, along with a summons indicating 

that Elite had twenty days to respond. 

¶4 On December 14, 2017, Elite filed a motion asking the circuit court 

for an extension of time to file a response. Elite’s motion stated that it was mailed 

on December 5, 2017, its response was due on December 6, 2017, and it requested 

a forty-five day extension. Elite asserted that it resided in Florida and had not yet 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
No. 2018AP414 

3 

been able to retain counsel, and that the parties were attempting to settle the case 

which might require Elite to travel to Wisconsin. The circuit court denied the 

motion on the ground that it was filed after the time for answering had expired, 

and stated that Matthew was entitled to a default judgment. On December 19, 

2017, the circuit court entered default judgment against Elite. 

¶5 Elite retained Wisconsin counsel and on January 8, 2018, filed a 

motion to vacate the default judgment and to dismiss the complaint for lack of 

personal jurisdiction. The motion alleged that Matthew erroneously filed and 

served a twenty-day summons when WIS. STAT. § 801.09(2)(a)3.b. required a 

summons notifying Elite that it had forty-five days to respond because Matthew’s 

“complaint has causes of action sounding in tort.” The motion further alleged that 

the court lacked personal jurisdiction over Elite: 

Here, we have out of state defendants, doing business 

wholly within another state, who have not sought out 

business specifically in Wisconsin. Plaintiff went online to 

look at an add (sic) and he reached out and called the 

defendants in Florida. A Bill of Sale was e-mailed and 

Plaintiff signed and returned it to them in Florida. Plaintiff 

wired the purchase money to Florida. Plaintiff sent his own 

agent to take delivery of the vehicle in Florida. 

Finally, Elite’s motion and its attachments asserted that Matthew’s complaint 

omitted material facts bearing on the merits of his claims, including that the 

vehicle was purchased “AS-IS No Warranties.” 

¶6 At a hearing on January 16, 2018, the circuit court granted Elite’s 

motion to vacate the default judgment, explaining that subsequent information 

provided by Elite called into question the propriety of the court’s decision to 

terminate the case by default. Citing the twenty-day summons and potential issues 

regarding both personal jurisdiction and the merits of Matthew’s claims, the court 
No. 2018AP414 

4 

determined that the interests of justice and considerations of fairness “require[d] 

further judicial intervention.” 

¶7 After vacating the judgment, the circuit court turned to Elite’s 

motion to dismiss and stated it would allow Matthew more time “to present to the 

Court, by affidavit, in affidavit form, some basis that you believe these defendants 

justify your permitting the State of Wisconsin to be an appropriate jurisdiction for 

you to file your action.” The court explained that nothing in the record showed 

that Elite had contacts with Wisconsin sufficient to satisfy the statutory 

requirements for long-arm jurisdiction and that Elite’s attorney needed to know 

“where you’re coming from on this.” Matthew continued to argue that he had not 

received his day in court on the motion to vacate. The court again explained that it 

had made its decision to reopen on its “recogni[tion] that in the interests of justice, 

these—this case needs further reflection before somebody is held hostage on a 

judgment that they may not rightfully be entitled to.” 

¶8 Matthew told the court he had nothing to add “because my 

understanding is that the long-arm statute raises a presumption of due process and 

lack of minimum contacts is a defense that has to be raised.... So, I believe I’m 

entitled to the presumption and they’ve made an appearance and, so, they’ve 

waived jurisdiction.” The circuit court again explained, 

there are issues here that I don’t think it’s right for a Court 

just to turn its head on that and say too bad, so sad, I filed, 

they’re barred, they appeared, game over. There is an 

interest of justice side of everything that we do and we 

want to make sure that, in the end, what is done is what, in 

fact, is fair. 

The court reiterated that it would give Matthew additional time to demonstrate that 

Elite “has substantial activity in the State of Wisconsin” or face dismissal. 
No. 2018AP414 

5 

Matthew maintained that he disagreed with the court’s position and would not be 

adding further evidence to establish the court’s jurisdiction over Elite. The circuit 

court dismissed the complaint on Elite’s motion, without prejudice. 

¶9 On appeal, Matthew makes a number of overlapping and repetitive 

arguments that are hard to follow. For clarity, we address the circuit court’s 

predicate decision to vacate the default judgment before we address the dismissal 

of Matthew’s complaint. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 

564, 261 N.W.2d 147 (1978) (we are not required to address appellate arguments 

in the manner in which a party has structured the issues). To the extent we do not 

address one of Matthew’s arguments, that argument is deemed rejected. Id. (“An 

appellate court is not a performing bear, required to dance each and every tune 

played on appeal.”). 

The circuit court properly exercised its discretion in vacating the default 

judgment. 

¶10 WISCONSIN STAT. § 806.07 provides the terms under which a court 

may relieve a party from a judgment, including a catch-all provision which allows 

a party to seek relief for “[a]ny other reasons justifying relief from the operation of 

the judgment,” see § 806.07(1)(h), based on the existence of extraordinary 

circumstances, see Miller v. Hanover Ins. Co., 2010 WI 75, ¶¶32, 34, 326 Wis. 2d 

640, 785 N.W.2d 493. Such circumstances exist where “the sanctity of the final 

judgment is outweighed by the incessant command of the court’s conscience that 

justice be done in light of all the facts.” Id., ¶35 (quoting Sukala v. Heritage Mut. 

Ins Co., 2005 WI 83, ¶12, 282 Wis. 2d 46, 698 N.W.2d 610). The catch-all 

provision “gives the trial court broad discretionary authority” and “is to be 

liberally construed to provide relief from a judgment whenever appropriate to 
No. 2018AP414 

6 

accomplish justice.” Miller, 326 Wis. 2d 640, ¶33 (citations omitted). In 

determining whether to afford relief from a judgment, the circuit court bears in 

mind the competing interests of finality and fairness and considers a wide range of 

factors including: 

whether the judgment was the result of the conscientious, 

deliberate and well-informed choice of the claimant; 

whether the claimant received the effective assistance of 

counsel; whether relief is sought from a judgment in which 

there has been no judicial consideration of the merits and 

the interest of deciding the particular case on the merits 

outweighs the finality of judgments; whether there is a 

meritorious defense to the claim; and whether there are 

intervening circumstances making it inequitable to grant 

relief. 

Id., ¶36 (quoting Sukala, 282 Wis. 2d 46, ¶11). 

¶11 We review a circuit court’s decision to vacate a default judgment 

under the erroneous exercise of discretion standard. Miller, 326 Wis. 2d 640, ¶29. 

We will not reverse a discretionary determination if the record shows that 

discretion was in fact exercised and we can perceive a reasonable basis for the 

court’s decision. Id., ¶30. We generally look for reasons to sustain a discretionary 

determination. Id.

¶12 The circuit court properly exercised its discretion in vacating the 

default judgment. It applied the proper legal standard, employing an “interests of 

justice analysis” and determining that principles of fairness outweighed the 

interest in finality. The court considered proper and relevant factors, including 

that Elite was located in Florida and filed a pro se extension motion in response to 

a misleading summons; the judgment was entered without counsel and based on a 

perceived procedural default; Elite’s postjudgment motion provided new 

information that cast doubt on the merits of Matthew’s claims and his likelihood 
No. 2018AP414 

7 

of ultimate success; and Elite’s motion called into question whether the circuit 

court had personal jurisdiction over it as a nonresident defendant. Further, Elite 

acted quickly to remedy the situation. The court’s decision was demonstrably 

reasonable. 

The circuit court properly dismissed the complaint on jurisdictional 

grounds. 

¶13 Whether a court has personal jurisdiction over an out-of-state 

defendant is a question of law subject to de novo review. Marsh v. Farm Bureau 

Mut. Ins. Co., 179 Wis. 2d 42, 52, 505 N.W.2d 162 (Ct. App. 1993). The 

question involves a two-step inquiry. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 

¶8, 245 Wis. 2d 396, 629 N.W.2d 662 (citation omitted). The court first 

determines if the statutory requirements for long-arm jurisdiction are satisfied. Id. 

If so, then the court considers whether the exercise of long-arm jurisdiction 

satisfies the nonresident’s constitutional due process rights. Id. The plaintiff 

bears “the minimal burden of establishing a prima facie threshold showing” that 

both the statutory and the constitutional requirements are satisfied. Id. (citation 

omitted). 

¶14 We agree with Elite that Matthew has not set forth the statutory 

requirements necessary for long-arm jurisdiction under WIS. STAT. § 801.05. With 

regard to § 801.05(1)(d), nothing in the record supports Elite’s “engage[ment] in 

substantial and not isolated activities within this state.” Matthew, himself, does 

not argue that Elite’s minimal contacts—its internet advertisement and 

correspondence with Matthew—constitute “substantial and not isolated” activity 

in Wisconsin for purposes of § 801.05(1)(d). 
No. 2018AP414 

8 

¶15 Instead, Matthew maintains that he made a prima facie case for longarm jurisdiction under WIS. STAT. § 801.05(5)(e), which allows for personal 

jurisdiction in actions “relat[ing] to goods, documents of title, or other things of 

value actually received by the plaintiff in this state from the defendant without 

regard to where delivery to carrier occurred.” By its plain language, paragraph 

(5)(e) does not apply. Matthew did not receive the vehicle in Wisconsin from 

Elite as his carrier, not Elite’s, received it in Florida. Matthew provides no onpoint legal authority to support his contention that he received the vehicle in 

Wisconsin. Matthew’s apparent reliance on Capitol Fixture & Woodworking 

Group v. Woodma Distribs., Inc., 147 Wis. 2d 157, 432 N.W.2d 647 (Ct. App. 

1988), is misplaced. In Capitol Fixture, the court determined that § 801.05(5)(e) 

was satisfied where Woodma, the nonresident defendant, delivered machinery “to 

Wisconsin pursuant to the parties’ contract” and “sent a technician to Wisconsin to 

install the machine.” Capitol Fixture, 147 Wis. 2d at 162. Capitol Fixture is 

materially distinguishable and does not support Matthew’s position. Therefore, 

we need not reach the due process inquiry. 

¶16 We also reject Matthew’s contention that Elite “waived” any

objection to personal jurisdiction either by (1) filing an extension motion that did 

not object to personal jurisdiction, or (2) “wait[ing] 53 days before raising an 

objection to jurisdiction, thus making the objection untimely by 33 days.” 

WISCONSIN STAT. § 802.06(8)(a). provides that the defense of lack of personal 

jurisdiction is waived only if it is omitted from a motion made under § 802.06(7) 

or if “[t]he defense is neither made by motion under this section nor included in a 

responsive pleading.” Sec. 802.06(8)(a)1.- 2. Here, the case was dismissed before 

Elite filed its answer, or “responsive pleading,” and the jurisdictional objection 

was filed as part of Elite’s motion to dismiss, which was filed before the judgment 
No. 2018AP414 

9 

was reopened. Under the plain language of the statute, Elite’s objection was not 

“waived,” and the cases on which he relies are inapt.2 

¶17 Finally, Matthew asserts for the first time on appeal that because his 

complaint alleged civil theft, a statutory claim, Elite was only entitled to a twentyday summons. See WIS. STAT. § 801.09(2)(a)1. We fail to see how this argument 

relates to the propriety of the order for dismissal. Regardless, Matthew did not 

make this argument in the circuit court and, in fact, took the position both orally, 

at the hearing, and in his written circuit court brief, that if Elite had filed a 

responsive pleading within forty-five days instead of waiting “53 days,” the 

problem would have been avoided. Further, the statute requires a forty-five day 

notice when any cause of action in the complaint sounds in tort. 

Sec. 801.09(2)(a)3.b. Matthew does not minimally discuss the nature of his 

second cause of action. 

 By the Court.—Order affirmed. 

 

2

 For example, Matthew cites Artis-Wergin v. Artis-Wergin, 151 Wis. 2d 445, 444 

N.W.2d 750 (Ct. App. 1989), for the proposition that a party’s “appearance” and affirmative 

request for relief constitutes a waiver of personal jurisdiction. In Artis-Wergin, the husband was 

not properly served, but he sent a letter through a legal services’ officer requesting affirmative 

relief, namely, a six-month stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940. Id. at 

448. After the stay expired, he challenged the manner of service. Id. at 451-52. This court held 

that he waived the objection by entering an appearance and seeking affirmative relief. Id. at 453. 

However, requesting a routine extension motion is not comparable to requesting the affirmative 

statutory stay sought in Artis-Wergin, nor are the protections of the long-arm defense akin to the 

protections of personal service of process. The purpose of personal service is to ensure proper 

notice; by his appearance, the husband in Artis-Wergin demonstrated that he received notice. See 

id. at 452-53 (noting that an appearance is “equivalent to personal service”). Waiving a defect in 

notice is not comparable to waiving the right to a convenient forum, the latter of which implicates 

constitutional due process protections. Further, the circuit court in this matter did not treat Elite’s 

extension motion as an appearance—it denied the requested relief and defaulted Elite. 
No. 2018AP414 

10 

 This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.