Larry v. Harris
| Decision Date | 09 July 2008 |
| Docket Number | No. 2005AP2935.,2005AP2935. |
| Citation | 2008 WI 81,752 N.W.2d 279 |
| Parties | Taneceia LARRY, Plaintiff-Appellant-Petitioner, v. Derrick L. HARRIS, Defendant, Carlos Rutherford, Defendant-Respondent, ABC Insurance Corporation and Officer John Roe, Defendants. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner there were briefs by Robert J. Kasieta and Kasieta Legal Group, LLC, Madison, and A. Steven Porter and A. Steven Porter, Madison, and oral argument by A. Steven Porter.
For the defendant-respondent there was a brief by Jonathan Cermele, Rachel L. Pings, and Cermele & Associates, S.C., Milwaukee, and oral argument by Rachel L. Pings.
An amicus curiae brief was filed by Anne Berleman Kearney, Joseph D. Kearny, Milwaukee, and Thomas L. Shriner, Jr., Milwaukee, on behalf of themselves as members of the Wisconsin State Bar.
We review a decision of the court of appeals1 affirming the circuit court's2 sua sponte vacation of a default judgment against defendant Carlos Rutherford and the circuit court's sua sponte grant of judgment in Rutherford's favor. We conclude that the circuit court did not erroneously exercise its discretion in vacating the default judgment because Wis. Stat. § 806.07(1) (2005-06)3 permits a court to grant relief from a judgment or an order. However, we also conclude that the circuit court did err when it sua sponte granted summary judgment in Rutherford's favor because it failed to give the prior notice required by Wis. Stat. § 802.08(2). Accordingly, we affirm in part; reverse in part and remand the cause to the circuit court for further proceedings consistent with this opinion.
¶ 2 The issues this case presents stem from law enforcement's entry into Taneceia Larry's home without a search warrant. Three officers were alleged to be present during the entry: Derrick Harris, M'Johno Foster and Carlos Rutherford.4 Harris was named in the complaint, and the circuit court granted his motion for summary judgment dismissing Larry's claims, which Larry did not appeal. Foster was never sued. Rutherford also was a named defendant, but he did not appear or otherwise answer in the circuit court. The circuit court originally granted default judgment against Rutherford, but later vacated that order and granted judgment in his favor. Larry appeals the vacating of the judgment against Rutherford and the entering of judgment in his favor.5
¶ 3 On the evening of August 26, 2002, while Larry was at a gas station, she met a man whom she knew.6 He requested a ride home, and Larry agreed to drive him as far as her house. They proceeded to Larry's home, and as Larry pulled into the drive-way, she noticed an unmarked police vehicle pull up behind her. Upon observing the presence of police, Larry's passenger fled from her vehicle. Two police officers7 exited their car and gave chase, but they did not catch him.
¶ 4 The officers returned to Larry's residence, where Larry awaited them outside. Larry consented to a search of her car. The officers found no contraband, but Larry alleges that the officers then placed her in handcuffs. One of the officers said he intended to enter Larry's home. Larry objected. She said that her five children were in the house, some of whom were asleep, and that her niece was watching them. Larry alleges that two of the officers entered her home over her objection. She also alleges that the officers conducted a search inside her home, which included waking and "interrogating" the children and their babysitter. She further alleges that Rutherford "either participated in [the] search or was present" during the search, but failed to stop its occurrence.
¶ 5 For their part, Harris and Foster assert that only Foster, who was never a party to this suit, entered Larry's home. He did so without a warrant. Foster averred that he was in the home for less than five minutes, and that he entered only to ensure that someone of suitable age was there to look after the children because Larry was going to be taken to the police station for questioning.8 The circuit court found that ensuring proper child supervision was the purpose of the entry.9 Foster additionally stated that he spoke to an individual whom he estimated to be 16 or 17 years old, but he did not say whether he spoke to any of the children.
¶ 6 Larry moved for default judgment when neither Harris nor Rutherford timely answered her complaint. The circuit court denied the motion with respect to Harris after he objected and served an answer. However, the circuit court granted Larry's motion for default judgment against Rutherford.
¶ 7 Harris then moved for summary judgment against Larry, contending that the entry into Larry's home was lawful and that qualified immunity protected him from liability. In opposing Harris's motion for summary judgment, Larry argued that because her home was entered by police without either a warrant or reasonable suspicion, the entry was presumptively unlawful. Moreover, she contended that Harris's affirmative defense of qualified immunity was frivolous.
¶ 8 The circuit court granted Harris's motion for summary judgment. Because the circuit court concluded that actions on the part of Harris, Foster and Rutherford all fell within the scope of Harris's motion for summary judgment, the court "treated [them] in the same manner." The court found that, although police officers entered Larry's home without her consent and without a warrant, they did so for the purpose of ensuring that her children were adequately supervised and not for the purpose of uncovering "evidence or ... criminal activity."
¶ 9 However, in granting summary judgment to Harris and without giving prior notice to Larry, the circuit court also, sua sponte, vacated the default judgment against Rutherford and granted judgment dismissing Larry's claims against Rutherford.10 Larry moved the circuit court to reconsider the vacation of the default judgment, as well as the dismissal of her claims against Rutherford.
¶ 10 The circuit court invited briefing on Larry's motion to reconsider. Larry's brief in support of her motion consisted of a six-sentence letter, two sentences of which addressed her argument:
The court will recall we are asking your Honor to reconsider an order in which the court, sua sponte, ordered the reopening of the previously-entered Default Judgment and Summary Judgment against the Plaintiff in favor of the defaulting Defendant, all without any argument from the defaulting Defendant.
We can find no support for this procedure and respectfully request that it be reversed.
Larry also subsequently submitted a reply brief, arguing, in essence, that the circuit court erred by ascribing the qualified immunity that it concluded Harris possessed to Rutherford as well.
¶ 11 The circuit court denied Larry's motion for reconsideration. The court explained its reasoning in vacating the default judgment against Rutherford and in dismissing Larry's complaint as to all officers:
[T]he Court found that the default judgment should be vacated against Defendant Rutherford because no reason existed to hold any officer liable for violation of [Larry's] constitutional rights under her Complaint.... The vacation occurred here within a reasonable time after default because the summary judgment was before the Court and the Court determined the claims by Plaintiff were improper....
... Plaintiff does not dispute the Court's findings that her rights under the constitution were not violated. Clearly, the Court vacated the default because no officer could be held liable under the Complaint according to the Court's findings; as such, the interests of justice required the Court to vacate the default.
¶ 12 Larry did not further dispute the circuit court's grant of summary judgment with respect to Harris, nor the basis for that decision, i.e., that Larry's constitutional rights were not violated and that the doctrine of qualified immunity applies. Larry appealed the vacation of the default judgment, as well as the entry of judgment in Rutherford's favor based on Rutherford's failure to appear in the circuit court.
¶ 13 The court of appeals affirmed. It reasoned that a circuit court has statutory authority to grant relief from default judgments on its own motion, so long as it provides the party adversely affected with notice and an opportunity to be heard. Larry v. Harris, 2007 WI App 132, ¶ 1, 301 Wis.2d 243, 733 N.W.2d 911. The court of appeals also concluded that by inviting briefing on Larry's motion to reconsider, the circuit court gave Larry sufficient notice and an opportunity to be heard. Id. The court of appeals decision did not address the circuit court's summary judgment decision.
¶ 14 Larry petitioned for review, which we granted.
¶ 15 Whether to open a default judgment is committed to the discretion of the circuit court, which we review under the erroneous exercise of discretion standard. See, e.g., Edland v. Wis. Physicians Serv. Ins. Corp., 210 Wis.2d 638, 643, 563 N.W.2d 519 (1997); Dugenske v. Dugenske, 80 Wis.2d 64, 68, 257 N.W.2d 865 (1977). A circuit court does not erroneously exercise its discretion if its decision is based on the facts of record and on the application of a correct legal standard. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981).
¶ 16 A circuit court's authority to vacate a default judgment and to grant summary judgment derives from Wisconsin statutes. Wis. Stat. §§ 806.07 and 802.08. We review questions of statutory interpretation independently, but benefiting from the discussions of the circuit court and the court of appeals. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.
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