Walleser v. Walleser
| Docket Number | 2022AP971 |
| Decision Date | 29 June 2023 |
| Parties | Shirley Walleser, Plaintiff-Respondent, v. Kevin Walleser and Dr. Anne Marie E. Elwing, Defendants-Appellants. |
| Court | Wisconsin Court of Appeals |
Not recommended for publication in the official reports.
APPEAL from a judgment of the circuit court for Vernon County No 2021CV18: WILLIAM ANDREW SHARP, Judge.
Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.
¶1 Shirley Walleser filed a complaint in the circuit court against Kevin Walleser and Dr. Anne Marie Elwing, who own property that is adjacent to property owned by Shirley.[1] The complaint alleges that, in 2002 Shirley built structures that are partially on property owned by Shirley and partially on property owned by Kevin and Anne Marie, and that Shirley has since accessed those structures via a driveway that is also partially on her property and partially on Kevin and Anne Marie's property. The complaint requests that the circuit court order Kevin and Anne Marie to sell to Shirley the portion of their property on which parts of the structures and driveway are located. Kevin and Anne Marie did not answer the complaint within twenty days and Shirley subsequently filed a motion for default judgment. After receiving notice of the default Kevin and Anne Marie filed a motion to enlarge the time to answer the complaint, an answer with affirmative defenses and a counterclaim, and a motion to dismiss the complaint for failure to state a claim.
¶2 The circuit court denied Kevin and Anne Marie's motion to enlarge the time to answer the complaint and denied their motion to dismiss the complaint. The court also granted Shirley's motion for default judgment and ordered Kevin and Anne Marie to sell the property at issue to Shirley, as requested in the complaint. The court subsequently denied Kevin and Anne Marie's motion for reconsideration, which asserted that the complaint fails to join a necessary party. Kevin and Anne Marie appeal, arguing that the court erred in multiple respects.
¶3 We deem dispositive Kevin and Anne Marie's argument that the complaint fails to state a claim on which relief can be granted. Because we agree that the complaint fails to state a claim on which relief can be granted, we conclude that, under controlling case law, the circuit court erroneously granted Shirley's motion for default judgment and, accordingly we reverse the default judgment and remand to the circuit court to dismiss the complaint.[2]
¶4 Shirley filed her complaint against Kevin and Anne Marie in Vernon County circuit court on February 19, 2021. In the complaint Shirley alleged that, in 2002, Shirley built structures partially on property owned by her and partially on property owned by Kevin and Anne Marie, and that she accesses the structures via a driveway that is located on property owned partially by her and partially by Kevin and Anne Marie. Shirley sought relief in the form of an order directing that Kevin and Anne Marie sell to her, "at a price that is fair and reasonable, free and clear of all liens and encumbrances," the portions of Kevin and Anne Marie's property on which parts of the structures and driveway are located.
¶5 A deputy with the Vernon County Sheriff's Office personally served Kevin and Anne Marie with the summons and complaint on February 24, 2021. On April 9, 2021, after the statutory period to file an answer had elapsed,[3] Shirley filed a motion for default judgment and provided notice of the motion to Kevin and Anne Marie. On April 13, 2021, Kevin and Anne Marie filed an answer with affirmative defenses and a counterclaim, and a "Motion for Continuance of Default Judgment."
¶6 In September 2021, Kevin and Anne Marie filed a motion to dismiss the complaint under Wis.Stat. § 802.06 for failure to state a claim on which relief can be granted. At the same time, Kevin and Anne Marie also filed a motion to retroactively enlarge the time to answer the complaint from April 10, 2021, to April 13, 2021, under Wis.Stat. § 801.15(2), based on "excusable neglect as set forth in the accompanying affidavit." In the accompanying affidavit, Kevin averred that after he was served with the summons and complaint, he set it aside in his shop at the farm and then, for the next three to four weeks, worked many hours to prepare for the upcoming spring planting season and calving beef cows. He averred that, upon receipt of the motion for default judgment, he immediately contacted and met with an attorney.
¶7 In December 2021, the circuit court held a motions hearing and, in a subsequent written order, denied the motion to enlarge the time to answer and rejected the answer, affirmative defenses, and counterclaim submitted by Kevin and Anne Marie. The court also denied Kevin and Anne Marie's motion to dismiss the complaint for failure to state a claim on which relief can be granted, which is the ruling that we reverse in this appeal, for reasons explained below. In the same order, the court granted Shirley's motion for default judgment and scheduled a hearing to determine which specific property Kevin and Anne Marie would be required to convey to Shirley and the compensation to be paid by Shirley for that property.
¶8 Before the hearing to determine the specific property to be conveyed and the compensation for the conveyance, Kevin and Anne Marie filed a motion for reconsideration in which they asserted that the complaint failed to join a mortgagor of the property as "an indispensable and necessary party" under Wis.Stat. § 803.03. At the hearing, the circuit court denied the motion for reconsideration and received evidence regarding the property to be conveyed and the compensation to be paid. After the hearing, the court entered judgment requiring Kevin and Anne Marie to convey to Shirley the property as described in a survey presented at the hearing for $3,000 in compensation, free and clear of all liens and encumbrances except real estate taxes for the year of conveyance. Kevin and Anne Marie appeal.
¶9 As noted, we conclude that the only issue necessary to resolve this appeal is whether the circuit court erroneously entered default judgment based on its determination that the complaint states a claim on which relief can be granted.
We first summarize the applicable standard of review and legal principles, next provide additional pertinent background, and then explain our conclusion that the complaint fails to state a claim on which relief can be granted, thereby requiring reversal of the default judgment and dismissal of the complaint.
¶10 The granting of a default judgment is submitted to the circuit court's exercise of discretion. Martin v Griffin, 117 Wis.2d 438, 442-43, 344 N.W.2d 206 (Ct. App. 1984). However, this court reviews de novo the legal question of whether a complaint states a claim on which relief can be granted. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis.2d 665, 849 N.W.2d 693. "In a default motion, the complainant must show that the complaint was timely served and filed and that the complaint contains allegations sufficient in law to state a claim for relief against the defendant." Davis v. City of Elkhorn, 132 Wis.2d 394, 398-99, 393 N.W.2d 95 (Ct. App. 1986). "A default judgment will not stand if the complaint lacks allegations sufficient in law to state a cause of action."[4]Chetek State Bank v. Barberg, 170 Wis.2d 516, 523, 489 N.W.2d 385 (Ct. App. 1992). This is because "[t]he fact that a party may be in default cannot confer a right to judgment upon a claim not recognized by law." Davis, 132 Wis.2d at 399; see also Johnson v. Grzadzielewski, 159 Wis.2d 601, 612, 465 N.W.2d 503 (Ct. App. 1990) ()
¶11 "Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom," in favor of the party against whom the motion is brought. Data Key Partners, 356 Wis.2d 665, ¶19 (citation omitted); Preston v. Meriter Hosp., Inc., 2005 WI 122, ¶13, 284 Wis.2d 264, 700 N.W.2d 158. This court does not add facts when analyzing the sufficiency of the complaint, nor does this court accept as true any legal conclusions it states. Data Key Partners, 356 Wis.2d 665, ¶¶19, 21.
¶12 To survive a motion to dismiss, a complaint "must allege facts that, if true, plausibly suggest a violation of applicable law." Id., ¶21; see also Wis. Stat. § 802.02(1)(a) () The "substantive law drives what facts must be pled." Data Key Partners, 356 Wis.2d 665, ¶2. "[W]e will dismiss a complaint if, '[u]nder the guise of notice pleading, the complaint before us requires the court to indulge in too much speculation leaving too much to the imagination of the court.'" John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, ¶36, 284 Wis.2d 307, 700 N.W.2d 180 (quoted source omitted).
¶13 The interpretation and application of statutes are also questions of law that we review independently of the circuit court. Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶9, 400 Wis.2d 417, 970 N.W.2d 1. When interpreting a statute, our analysis begins with the statutory text. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. We give the words used by the legislature their "common, ordinary and accepted meaning[.]" Id. In addition, statutory language must be interpreted "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably to avoid absurd or unreasonable results." Id., ¶46. "Previous cases construing a statute...
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