### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP414 Cir. Ct. No. 2017CV470 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S COTT C ARRINGTON M ATTHEW ,
P LAINTIFF -A PPELLANT ,

V .
E LITE T EAM A UTO B ROKERS , LLC, E FRAIN C OLORADO , A NA E LVIRA G ARCIA AND C ARLOS M IGUEL O RTEGA ,
D EFENDANTS -R ESPONDENTS ,
D IANA D E G RACIA C HIN ,
D EFENDANT .

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 W IS . S TAT . R ULE 809.23(3).
¶1 PER CURIAM. Scott Carrington Matthew appeals an order (1) vacating a default judgment entered in Matthew’s favor against Eli te Team Auto Brokers, LLC, its owners, and a manager (collectively, Elit e) and (2) dismissing Matthew’s action without prejudice for lack of personal jurisdict ion under W IS

. S TAT

. § 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, e ntirely 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 sepa rate 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 indicat ing that Elite had twenty days to respond.
¶4 On December 14, 2017, Elite filed a motion asking the circuit cour t for an extension of time to file a response. Elite’s motion stat ed that it was mailed on December 5, 2017, its response was due on December 6, 2017, and it reques ted 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 th e 2017-18 version unless otherwise noted.No. 2018AP414

3 been able to retain counsel, and that the parties were atte mpting to settle the case which might require Elite to travel to Wisconsin. The circuit cour t denied the motion on the ground that it was filed after the time for answeri ng had expired, and stated that Matthew was entitled to a default judgment. On D ecember 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 erroneousl y filed and served a twenty-day summons when W IS

. S TAT

. § 801.09(2)(a)3.b. required a summons notifying Elite that it had forty-five days to respond bec ause Matthew’s “complaint has causes of action sounding in tort.” The motion furt her 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 Ma tthew’s complaint omitted material facts bearing on the merits of his claim s, 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 cl aims, the courtNo. 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 belie ve these defendants justify your permitting the State of Wisconsin to be an appr opriate jurisdiction for you to file your action.” The court explained that nothing in the re cord showed that Elite had contacts with Wisconsin sufficient to satisfy the statutory requirements for long-arm jurisdiction and that Elite’s attorney ne eded 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 i t had made its decision to reopen on its “recogni[tion] that in the i nterests of justice, these—this case needs further reflection before somebody is hel d 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.... S o, I believe I’m entitled to the presumption and they’ve made an appearance and, so, t hey’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 t o 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 El ite. The circuit court dismissed the complaint on Elite’s motion, without prejudice.
¶9 On appeal, Matthew makes a number of overlapping and repetiti ve arguments that are hard to follow. For clarity, we address the circuit court’s predicate decision to vacate the default judgment before we add ress 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 argument s 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 reje cted. Id. (“An appellate court is not a performing bear, required to dance e ach and every tune played on appeal.”).
The circuit court properly exercised its discretion in vacatin g the default judgment.

¶10 W ISCONSIN S TAT

. § 806.07 provides the terms under which a court may relieve a party from a judgment, including a catch-all p rovision which allows a party to seek relief for “[a]ny other reasons justifying rel ief 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 t he final judgment is outweighed by the incessant command of the court’s consc ience 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 ap propriate toNo. 2018AP414

6 accomplish justice.” Miller , 326 Wis. 2d 640, ¶33 (citations omitted). In determining whether to afford relief from a judgment, the circui t 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 judgm ent under the erroneous exercise of discretion standard. Miller , 326 Wis. 2d 640, ¶29. We will not reverse a discretionary determination if the rec ord shows that discretion was in fact exercised and we can perceive a reasona ble 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 vacat ing the default judgment. It applied the proper legal standard, employing a n “interests of justice analysis” and determining that principles of fairnes s outweighed the interest in finality. The court considered proper and relevant f actors, including that Elite was located in Florida and filed a pro se extension mot ion in response to a misleading summons; the judgment was entered without counsel and b ased on a perceived procedural default; Elite’s postjudgment motion provided new information that cast doubt on the merits of Matthew’s claims and his likelihoodNo. 2018AP414

7 of ultimate success; and Elite’s motion called into question whe ther the circuit court had personal jurisdiction over it as a nonresident defendant. F urther, Elite acted quickly to remedy the situation. The court’s decision was dem onstrably
reasonable.
The circuit court properly dismissed the complaint on jurisdicti onal 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 jurisdicti on are satisfied. Id

. If so, then the court considers whether the exercise of long-arm j urisdiction satisfies the nonresident’s constitutional due process rights. Id . The plaintiff bears “the minimal burden of establishing a prima facie thre shold showing” that both the statutory and the constitutional requirements are satis fied. Id . (citation omitted).
¶14 We agree with Elite that Matthew has not set forth the stat utory requirements necessary for long-arm jurisdiction under W IS

. S TAT

. § 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 advertise ment and correspondence with Matthew—constitute “substantial and not isola ted” 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 long

arm jurisdiction under W IS

. S TAT

. § 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 t he defendant without regard to where delivery to carrier occurred.” By its plain l anguage, paragraph (5)(e) does not apply. Matthew did not receive the vehicle in Wisc onsin 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 mac hinery “to Wisconsin pursuant to the parties’ contract” and “sent a technici an to Wisconsin to
install the machine.” Capitol Fixture , 147 Wis. 2d at 162. Capitol Fixture is materially distinguishable and does not support Matthew’s positi on. 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 extens ion motion that did not object to personal jurisdiction, or (2) “wait[ing] 53 days befor e raising an objection to jurisdiction, thus making the objection untimely by 33 days.”
W ISCONSIN S TAT

. § 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 dismi ssed before Elite filed its answer, or “responsive pleading,” and the jurisdic tional objection was filed as part of Elite’s motion to dismiss, which was fi led before the judgmentNo. 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 t hat because his complaint alleged civil theft, a statutory claim, Elite was only entitled to a twentyday summons. See W IS

. S TAT

. § 801.09(2)(a)1. We fail to see how this argument relates to the propriety of the order for dismissal. Regardle ss, Matthew did not make this argument in the circuit court and, in fact, took the positi on 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 for ty-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 hi s 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 “a ppearance” and affirmative request for relief constitutes a waiver of personal jurisdi ction. In Artis-Wergin , the husband was not properly served, but he sent a letter through a legal ser vices’ officer requesting affirmative relief, namely, a six-month stay under the Soldiers’ and Sailor s’ Civil Relief Act of 1940. Id . at 448. After the stay expired, he challenged the manner of servic e. Id . at 451-52. This court held that he waived the objection by entering an appearance and seek ing 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 latt er of which implicates constitutional due process protections. Further, the circuit cour t in this matter did not treat Elite’s extension motion as an appearance—it denied the requested relief and def aulted Elite.No. 2018AP414

10 This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.