Nekoosa Port Edwards State Bank v. McCarthy

Decision Date01 March 2012
Docket NumberNo. 2011AP668.,2011AP668.
Citation2012 WI App 52,340 Wis.2d 742,813 N.W.2d 248
CourtWisconsin Court of Appeals
PartiesNEKOOSA PORT EDWARDS STATE BANK, Plaintiff–Respondent, v. Veronika McCARTHY, Defendant–Appellant, Estate of Timothy D. McCarthy, M & I Bank of Madison, St. Joseph's Hospital, Capital One Bank (USA) NA and Discover Bank, Defendants.

OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Adams County: John P. Roemer, Jr., Judge. Affirmed and cause remanded.


Veronika McCarthy appeals, pro se, from a summary judgment of foreclosure granted to Nekoosa Port Edwards State Bank. McCarthy argues that the circuit court erroneously exercised its discretion in denying her request for a continuance of the summary judgment hearing based on the factors courts apply when considering a continuance request and based on Strook v. Kedinger, 2009 WI App 31, 316 Wis.2d 548, 766 N.W.2d 219, a case involving the right to an interpreter in court proceedings. She also argues that the circuit court erred in granting summary judgment to the Bank on its foreclosure action because she pled counterclaims that present disputed issues of material fact related to the merits of the summary judgment motion.

¶ 2 For the following reasons, we conclude that the court did not erroneously exercise its discretion in denying McCarthy's request for a continuance under the factors she cites or under Strook. We also conclude that the court properly granted summary judgment on the Bank's foreclosure action. We therefore affirm the judgment. However, we remand for further proceedings on McCarthy's counterclaims.


¶ 3 The Bank filed a summons and complaint for foreclosure against McCarthy and others, attaching copies of a mortgage note and corresponding real estate mortgage. Acting pro se, McCarthy answered and pled counterclaims. The Bank filed a motion for summary judgment on January 21, 2011, with an accompanying evidentiary affidavit and materials in support, and served these papers on McCarthy by mail on January 20. The Bank's motion provided notice that a hearing on the motion was scheduled for 1:00 p.m. on February 17, 2011, in Courtroom B in the Adams County Courthouse.

¶ 4 On February 13, McCarthy sent a letter to the court requesting a continuance of the hearing. McCarthy stated in the letter that she needed more time because she was involved in a trial in separate proceedings and because an attorney, who she did not identify by name, was willing to represent her in this foreclosure action and was tied up in the other trial. McCarthy also indicated in the letter that she had sent a letter dated February 3 requesting a Slovak language interpreter so that she could understand the proceedings. 1 The Bank objected in writing to a continuance, explaining that there had been no response to its summary judgment papers and also that court records appeared to reflect that the separate case referenced by McCarthy as the basis for the continuance had been moved to March.

¶ 5 McCarthy appeared, pro se, at the February 17 hearing. The court had arranged for a Slovak interpreter, who appeared by telephone. After making sure that McCarthy and the interpreter understood each other, the court made findings on the record qualifying the interpreter.2

¶ 6 McCarthy renewed her request for a continuance, explaining as she had in her letter that she needed more time to prepare because she had been involved in a recent trial in separate proceedings. McCarthy further explained that an attorney willing to represent her was unable to be present that day. The court denied McCarthy's request for a continuance and granted the Bank's motion for summary judgment on its foreclosure action. McCarthy appealed. We reference additional facts as necessary below.


¶ 7 Before reaching the merits of McCarthy's appeal, we address a preliminary matter regarding the finality of the judgment McCarthy appealed. The general rule is that only a final judgment or order is appealable as a matter of right. Wis. Stat. § 808.03(1) (2009–10).3 Although the parties have briefed this case as if the judgment of foreclosure is a final judgment, we conclude upon closer examination that the judgment is not final. While it is clear that the Bank moved for and received summary judgment on its mortgage foreclosure action, we find no indication in the record that the Bank moved for dismissal of or summary judgment on McCarthy's counterclaims, or that the circuit court dismissed any of those claims.4 In addition, we see no basis to conclude that the court's grant of summary judgment on the Bank's mortgage foreclosure action was an implicit dismissal of McCarthy's counterclaims. The counterclaims are not well pled, but they are pled well enough to raise, on their face, one or more issues that would not necessarily be barred by a judgment of foreclosure.5 We therefore conclude that McCarthy's counterclaims remain pending. Because the counterclaims remain pending, the judgment of foreclosure is not final. See Republic Capital Bank v. Luchini, 153 Wis.2d 656, 658, 451 N.W.2d 474 (Ct.App.1989) (“The judgment [of foreclosure] appealed from is not final because of the counterclaim yet to be resolved.”).

¶ 8 Nonetheless, the parties have fully briefed the issues, and we conclude that permitting the appeal to move forward, on the topic of the summary judgment actually granted, would be fair to the parties, efficient, and “materially advance the termination of the litigation or clarify further proceedings in the litigation.” SeeWis. Stat. § 808.03(2)(a); Leavitt v. Beverly Enters., Inc., 2010 WI 71, ¶¶ 38–39, 326 Wis.2d 421, 784 N.W.2d 683 (recognizing that court of appeals has broad discretion to grant or deny leave to appeal). Therefore, we treat McCarthy's notice of appeal as a petition for leave to appeal and, on our own motion, order the petition granted. See Bratcher v. Housing Auth. of City of Milwaukee, 2010 WI App 97, ¶ 1 n. 1, 327 Wis.2d 183, 787 N.W.2d 418,review denied,2011 WI 1, 330 Wis.2d 441, 793 N.W.2d 70 (2010) (treating notice of appeal as petition for leave to appeal and granting leave to appeal on court's own motion); Caldwell v. Percy, 105 Wis.2d 354, 357 n. 3, 314 N.W.2d 135 (Ct.App.1981) (same). Having addressed this finality issue, we turn to the merits of McCarthy's arguments.

A. Continuance

¶ 9 McCarthy argues that the circuit court erroneously exercised its discretion in denying her request to continue the summary judgment hearing. As with any discretionary decision by the circuit court, our review is deferential:

“It is well established in Wisconsin that a continuance is not a matter of right.” Robertson–Ryan [ & Assocs., Inc. v. Pohlhammer], 112 Wis.2d [583,] 586[, 334 N.W.2d 246 1983] (citations omitted). The decision to deny a continuance is within the discretion of the trial court. Id. at 587, 334 N.W.2d 246. A circuit court's ruling on a motion for a continuance “will be set aside only if there is evidence of an [erroneous exercise] of discretion.” Id. “An [erroneous exercise] of discretion exists if the trial court failed to exercise its discretion or if there was no reasonable basis for its decision.” Id.

Rechsteiner v. Hazelden, 2008 WI 97, ¶ 92, 313 Wis.2d 542, 753 N.W.2d 496. Moreover, even when a circuit court's reasoning is not fully expressed, we may independently search the record to determine whether it provides a reasonable basis for the court's discretionary decision. Farrell v. John Deere Co., 151 Wis.2d 45, 78, 443 N.W.2d 50 (Ct.App.1989).

¶ 10 McCarthy argues that the circuit court erroneously exercised its discretion in denying the continuance because the court was required to grant the continuance under (1) factors typically considered when granting or denying a continuance, and (2) Strook, a case involving the right to the assistance of an interpreter in court proceedings. We disagree on both points.

1. Continuance Factors

¶ 11 In denying the continuance, the circuit court focused on the likelihood, in light of admissions McCarthy made, that McCarthy would be unable to submit evidence to prevent summary judgment on the Bank's foreclosure action. Those admissions included that McCarthy had missed ten months of mortgage payments, having stopped paying on the mortgage as of May 2010, purportedly as part of an attempt “to lower [her] monthly payment.” McCarthy also admitted that the real estate taxes on the property were not fully paid.

¶ 12 McCarthy does not argue that the circuit court erred in considering her admissions. Rather, she argues that the court should have granted the continuance based on other factors set forth in Mogged v. Mogged, 2000 WI App 39, 233 Wis.2d 90, 607 N.W.2d 662 (Ct.App.1999). Those factors are (1) the length of the delay requested; (2) whether the lead counsel has associates prepared to try the case in [lead counsel's] absence; (3) whether other continuances had been requested and received; (4) the convenience or inconvenience to the parties, witnesses and the court; and (5) whether the delay seems to be for legitimate reasons.” Id., ¶ 14 n. 9.

¶ 13 McCarthy's argument goes to factors (3) and (5). She points out that she had not previously requested a continuance for the summary judgment hearing. In addition, she asserts that she had a legitimate reason for delay and was not dilatory because she needed more time to prepare as a result of her involvement in a trial in separate proceedings, and because an attorney who was willing to assist her was unavailable. As already indicated, McCarthy offered these same explanations to the circuit court.

¶ 14 We disagree with McCarthy that the court erroneously exercised its discretion in denying her request for a continuance in light of these factors. Rather, the circumstances show that the court had a reasonable basis to conclude that McCarthy was dilatory and lacked a legitimate reason for a...

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