Connor v. Connor

• Decision Date: 18 May 2001
• Docket Number: No. 99-1042., No. 99-0157
• Citation: 627 N.W.2d 182,243 Wis.2d 279,2001 WI 49
• Parties: Anderson B. CONNOR and Thelma A. Connor, Plaintiffs-Respondents, v. Sara CONNOR, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

243 Wis.2d 279

2001 WI 49

627 N.W.2d 182

Anderson B. CONNOR and Thelma A. Connor, Plaintiffs-Respondents, v. Sara CONNOR, Defendant-Appellant-Petitioner.

Nos. 99-0157, 99-1042.

Supreme Court of Wisconsin.

Oral argument January 3, 2001.

Decided May 18, 2001.

For the defendant-appellant-petitioner there were briefs by Mark E. Sostarich and Petrie & Stocking S.C., Milwaukee, and oral argument by Mark E. Sostarich.

For the plaintiffs-respondents there was a brief by Ann E. Stevning-Roe and Juneau, Minder, Gross & Stevning-Roe, S.C., Marshfield, and oral argument by Ann E. Stevning-Roe.

¶ 1. WILLIAM A. BABLITCH, J.

Sara Connor (defendant) petitions us to review a decision of the court of appeals that denied her relief from a default judgment entered against her. The circuit court, Judge Robert A. Kennedy presiding, entered the default judgment against her because she failed to serve her answer to a complaint filed by Anderson B. and Thelma A. Connor (plaintiffs) within the statutory deadline and failed to show excusable neglect for her untimely answer. We conclude that the record does not support a finding of excusable neglect or any basis for relief to reopen the default judgment. Accordingly, we affirm the court of appeals' decision.

I. FACTS AND PROCEDURAL HISTORY

¶ 2. This lawsuit originated from a disagreement between the parties over property rights, specifically, a dispute over the use of a road. Both parties in this case owned property on the west side of and adjacent to Birch Lake in Forest County. The plaintiffs' property was located to the north of the defendant's property. The plaintiffs gained access to their property by traveling on a north-south road that ran along the western side of the lake. A section of this road crossed the defendant's property.

¶ 3. In the fall of 1997, the defendant asked the plaintiffs to use an alternative route. They refused. The defendant then blocked access to the road.

¶ 4. On June 10, 1998, the plaintiffs filed a three-count complaint against the defendant. All three counts were based on alleged violations of their easement rights to the road. The first cause of action alleged that the defendant had intentionally interfered with the plaintiffs' access to the easement road. The plaintiffs sought damages and permanent injunctive relief to prohibit the defendant from interfering with their use of the road. The remaining causes of action alleged (1) conversion or dispossession of property rights and (2) intentional interference with contractual rights. On that same date, the plaintiffs also filed a separate motion for temporary injunctive relief.

¶ 5. On June 15, 1998, the defendant received the summons, complaint and notice of motion for temporary injunction. The summons stated that the defendant was required to respond with a written answer within 45 days. The defendant retained Steven Polich as her attorney. Polich represented the defendant at a July 16, 1998, hearing on the plaintiffs' motion for temporary injunction. The circuit court granted the plaintiffs' motion on that date.

¶ 6. The statutory deadline for the defendant to serve her answer was July 30, 1998. The defendant, however, failed to meet this deadline. Instead, she mailed her answer to the plaintiffs on August 4, 1998, and filed the answer with the court on August 10, 1998. The defendant substituted attorney Mark Sostarich for Polich as her counsel and filed a substitution of counsel with the court on September 10, 1998.

¶ 7. In response to the defendant's answer, the plaintiffs filed a motion to strike the answer and a motion for default judgment. The plaintiffs asserted that they did not receive the defendant's answer until August 10, 1998, and that no extension of time to answer was ever requested by or granted to the defendant.

¶ 8. On November 12, 1998, the defendant filed a motion requesting the court to accept her answer. The defendant argued that the court should regard her answer as timely served because Polich had received an extension of time to serve the answer from Patrick Juneau, an attorney who worked at the same firm as the plaintiffs' counsel. An affidavit from Polich attested to this fact and was filed with the defendant's motion. In the alternative, the defendant argued that the court should accept the answer because any misunderstanding by Polich about the existence of such an agreement amounted to excusable neglect, requiring an enlargement of time to answer under Wis. Stat. § 801.15(2)(a)(1997-98).¹

¶ 9. The court held a hearing on the parties' motions on November 16, 1998. The court concluded that Polich's affidavit only stated that he understood that there was a courtesy extension agreement between the parties; it did not state that he ever asked for or received an extension. This lack of a clear agreement was a factor in the court's conclusion that there was insufficient evidence to support a finding of excusable neglect. The court also based its decision on the amount of time that Polich had to answer the complaint and Polich's active involvement in the case prior to the deadline. The court then denied the defendant's motion and granted the plaintiffs' motions. An order was issued on November 30, 1998. On that same date, the court entered judgment only on the first cause of action. The judgment granted permanent injunctive relief to the easement rights of the road and costs associated with this relief to the plaintiffs.

¶ 10. The defendant then filed both a motion for reconsideration and a motion to reopen and vacate the judgment pursuant to Wis. Stat. § 806.07(1)(a), (b), (g) or (h). In her motion, she alleged in part that the judgment should be vacated in light of a second affidavit from Polich. In the affidavit, Polich again alleged that the parties had in fact entered into a oral courtesy extension agreement and further stated that the basis for this agreement was so that Polich could conduct depositions of the plaintiffs before filing the answer.

¶ 11. In response, the plaintiffs submitted an affidavit from their attorney, Ann Stevning-Roe. Stevning-Roe admitted that Polich had contacted her about setting up depositions and that she agreed to make her clients available for deposition, but stated that nothing further had developed on this matter. She denied the existence of any agreement, stating that "[a]bsolutely nothing was requested, discussed, stated or granted regarding an extension to file Answers based upon the scheduling of depositions" and that "[a]t no time did Mr. Polich say anything regarding wanting to schedule depositions prior to filing an Answer in this matter."

¶ 12. During a March 29, 1999, hearing, the court denied both of the defendant's motions. In its decision, the court dismissed Polich's second affidavit as unbelievable and "self-serving." The court further stated that Polich should have sent out confirmation of the agreement and that he should have been aware that the answer was due because he was actively involved in the case prior to the deadline. An order to that effect was issued on April 7, 1999.

¶ 13. The court of appeals affirmed, and we accepted review. Two issues are presented: (1) whether the circuit court properly exercised its discretion in granting the plaintiffs' motion to strike the answer and motion for default judgment; and (2) whether the court properly exercised its discretion in denying the defendant's motion for reconsideration and her motion to vacate the default judgment.

II. ISSUE ONE: MOTION TO STRIKE AND DEFAULT JUDGMENT

[1]

¶ 14. We examine two orders issued by the circuit court. The first order, entered on November 30, 1998, addressed four separate motions. Two of these motions—a motion to strike the defendant's entire answer and a motion for default judgment—were both properly brought by the plaintiffs in response to the defendant's untimely answer. See Martin v. Griffin, 117 Wis. 2d 438, 441-42, 344 N.W.2d 206 (Ct. App. 1984). The other two motions—a motion to accept the answer and a motion to enlarge the time for serving an answer—were then filed by the defendant. The defendant's motions are appropriately considered as one motion because they both essentially seek relief under Wis. Stat. § 801.15(2)(a) on the basis of excusable neglect. See Clark County v. B.T.U. Structures, Inc., 144 Wis. 2d 11, 15-16, 422 N.W.2d 910 (Ct. App. 1988) (evidence of a courtesy extension agreement is excusable neglect).

[2]

¶ 15. The circuit court noted that it only needed to address the plaintiffs' motions in this case. The court did not err in this respect. It could proceed in this manner because, under either party's motions, the court was required to determine whether excusable neglect was present. See Leonard v. Cattahach, 214 Wis. 2d 236, 248-49, 571 N.W.2d 444 (Ct. App. 1997); Rutan v. Miller, 213 Wis. 2d 94, 101, 570 N.W.2d 54 (Ct. App. 1997); Martin, 117 Wis. 2d at 442. The court correctly applied the excusable neglect standard in this case.

[3, 4]

¶ 16. Excusable neglect is not the same as neglect, carelessness or inattentiveness. Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982). Instead, it is "`that neglect which might have been the act of a reasonably prudent person under the same circumstances.'" Id. (quoting Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969)). In the context of an untimely answer, reasonable grounds for noncompliance with the statutory period constitutes excusable neglect. Id.

[5, 6]

¶ 17. A circuit court has great discretion in granting relief based on excusable neglect. Id. at 467. In exercising this discretion, the court must consider whether the interests of justice would be served in its finding. Id. at 468. The interests of justice require the court to be aware that a failure to find excusable neglect could result in a default judgment and that the law generally disfavors default judgments and prefers a trial on the merits. Id. at 469....