Davis v. Nationsbank et al
| Decision Date | 30 January 2001 |
| Docket Number | 00-0705 |
| Citation | 241 Wis. 2d 571,624 N.W.2d 420 |
| Parties | 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. Brian E. Davis, Plaintiff-Appellant, v. Nationsbank, N.A., n/k/a Bank of America, Nationsbanc Mortgage Corp., n/k/a Bank of America Mortgage, and Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trusts(s) 1993-2, 1994-1 and 1995-1, as foreign corporations, Defendants-Respondents.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Milwaukee County: FRANCIS T. WASIELEWSKI, Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1.
Brian E. Davis appeals pro se from a grant of summary judgment in favor of Nationsbank, N.A., et al. Davis claims: (1)the trial court erred when it refused to grant default judgment in his favor after Nationsbank filed an untimely answer; (2)that the answer should have been struck; (3)the trial court erred in awarding damages to Nationsbank for defending against a default judgment sought against Bankers Trust Company; (4)Nationsbank and Bankers Trust Company have an agency relationship; (5)Nationsbank violated Wis. Stat. §223.12 (1997-98);1 (6)Nationsbank violated Wis. Stat. §943.30(1) by threatening and intimidating Davis; and (7)summary judgment should not have been granted. Because we resolve each of these claims in favor of upholding the judgment, we affirm.
¶2. In June 1998, Davis filed a summons and complaint against Nationsbanc Mortgage Corp. and Nationsbank, alleging that his mortgage-holder failed to timely mail him escrow checks for payment of property taxes on several properties he owned. He attempted to plead causes of action for breach of fiduciary duty, fraud, and a violation of Wis. Stat. §138.052(7s). Nationsbank was served with the summons and complaint on June 17, 1998.
¶3. On August 12, 1998, Nationsbank filed a motion to dismiss the complaint based on failure to state a claim. Davis filed a motion seeking default judgment for failure to file a timely answer. Nationsbank then filed a motion requesting an enlargement of time to file an answer, and argued that default judgment should not be granted because the failure to timely file an answer was the result of excusable neglect. At the hearing, the trial court found that Nationsbank's explanation for failure to timely file an answer constituted excusable neglect. As a result, the trial court denied Davis's motion seeking default judgment, and granted the motion to enlarge the time to file an answer. The trial court also granted Nationsbank's motion seeking to dismiss the complaint, but allowed Davis the opportunity to replead his cause of action for breach of fiduciary duty.
¶4. Davis filed an amended complaint. Nationsbank filed its answer. Davis filed a motion seeking to strike the answer. The trial court denied the motion after a hearing and again gave Davis an opportunity to file an amended complaint. Davis filed another amended complaint alleging four causes of action. Nationsbank filed a motion seeking summary judgment. At the hearing, the trial court agreed with Davis that a question of fact may exist on the breach of fiduciary duty claim, but granted summary judgment on the other three causes of action. The trial court instructed Davis that the remaining claim, as pled, was insufficient, and gave Davis another opportunity to "clean-up" the allegations.
¶5. Davis filed another amended complaint, adding Bankers Trust Company of California, N.A. as a party. Davis had recently learned that Bankers Trust was the owner of his mortgages. Davis also alleged that Nationsbank had conspired to violate 42 U.S.C.A. §1985(3) and Wis. Stat. §§943.30(1) and 223.12(4). These new claims were based on a letter sent to Davis's home offering him free accidental death insurance through Nationsbank, and on questions during Davis's deposition about his wife. Davis felt threatened by these events.
¶6. Bankers Trust did not respond to the amended complaint and Davis moved the trial court to grant default judgment against Bankers Trust. Nationsbank opposed the motion, arguing that Davis had failed to properly serve Bankers Trust and Bankers Trust was never named in a summons. The trial court agreed, denied Davis's motion seeking default, and granted Nationsbank's motion seeking frivolous costs in defending this matter. Nationsbank also filed a motion seeking to dismiss Davis's new claims alleging violations of the federal code and the Wisconsin statutes. The trial court granted these motions, leaving only Davis's breach of fiduciary duty claim.
¶7. In December 1999, Nationsbank filed a motion seeking summary judgment on Davis's last remaining claim. After a hearing, the trial court granted the motion and dismissed the case. Judgment was entered accordingly. Davis now appeals.
¶8. Davis argues that the trial court erroneously exercised its discretion when it found that Nationsbank's explanation for the untimely filed answer constituted excusable neglect. We disagree.
¶9. Under Wis. Stat. §801.15(2)(a) a trial court's decision to grant a motion to extend the time to answer is highly discretionary. Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 467, 326 N.W.2d 727 (1982). Our review is limited to whether the trial court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion. Doersching v. Funeral Directors, 138 Wis. 2d 312, 328, 405 N.W.2d 781 (Ct. App. 1987).
¶10. Wisconsin Stat. §801.15(2)(a) provides that a trial court may extend the time in which an act is required if the court finds that the failure to act in a timely manner was the result of excusable neglect. Excusable neglect is defined as "`that neglect which might have been the act of a reasonably prudent person under the same circumstances.'" Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969) (citation omitted). It is "not synonymous with neglect, carelessness or inattentiveness." Id.
¶11. Here, Nationsbank offered the testimony of Project Analyst NickieL. Heady, who stated that she was on vacation when the summons and complaint were placed on her desk, and did not discover the documents until June29, 1998. She averred that the documents did not contain a date of service, and she assumed that they were served on the day she discovered them. She also testified that this customary practice of handling complaints has never failed in the past. The trial court accepted this explanation in finding that the conduct was excusable neglect. The trial court also indicated that it could not enter default judgment in favor of Davis because he had failed to plead a legally cognizable claim. We cannot conclude that the trial court's decision was erroneous, particularly because Davis has failed to include in the record the transcript of the hearing relative to this issue. Accordingly, we are obligated to assume that every fact necessary to sustain the trial court's decision is contained in the record. See Duhame v. Duhame, 154 Wis. 2d 258, 269, 453 N.W.2d 149 (Ct. App. 1989).
¶12. Davis next contends that the trial court erred when it refused to strike Nationsbank's answer. We do not agree.
¶13. Although the demurrer has been abolished as an instrument of Wisconsin civil procedure, Wis. Stat. §802.01(3) motions to strike an answer and dismiss a claim, serve the function of the common law general demurrer. 3W. Harvey, Rules of Civil Procedure §2101 at 164 (West's Wis. Prac. Series 1975);Lumbermens Mut. Cas. Co. v. Royal Indem. Co., 10 Wis. 2d 380, 382-83, 103 N.W.2d 69 (1960). Such motions admit the truth of all properly pleaded material facts and all reasonable inferences deriving from them, although legal conclusions and unreasonable inferences need not be accepted. Sipplev. Zimmerman, 39 Wis. 2d 481, 489, 159 N.W.2d 706 (1968). The motions must fail if the facts alleged would constitute a defense (in the case of a motion to strike) under any theory of law recognized in Wisconsin. See Kellerv. Welles Dept. Store of Racine, 88 Wis. 2d 24, 28-29, 276 N.W.2d 319 (Ct. App. 1979).
¶14. The pleading challenged by a motion to strike should be liberally construed with a view to achieving substantial justice. Halker v. Halker, 92 Wis. 2d 645, 650, 285 N.W.2d 745 (1979). Accordingly, a defense should not be struck unless the facts alleged in the answer could form no basis for any theory of defense under Wisconsin law. Id.
¶15. At the trial court hearing on this motion, Davis argued that he wanted Nationsbank's answer struck because it admitted that he had a valid claim. Striking an answer on that basis is improper procedurally, and inconsistent with the facts presented in the answer. Davis, however, presents a different argument in his appeal on this issue. He argues that the answer should have been struck because it contains lies and misrepresentations. Davis fails to cite any legal authority to support this proposition. We could reject his claim on this basis alone. See State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980).
¶16. We conclude that the trial court did not err when it denied Davis's motion to strike. Davis's attack focuses on his belief that Nationsbank was lying with respect to the corporate status, structure and relationship among the various entities involved with Davis's mortgages. Even if we were to assume Nationsbank acted improperly in this respect, a liberal construction of the answer requires us to reject Davis's request. The answer contains sufficient facts which, if true, present a valid defense under Wisconsin law.
¶17. Davis next argues that the trial court erred when it awarded...
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