COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0657
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
SCOTT
HILL AND KATHY HILL, HUSBAND AND WIFE,
Plaintiffs-Appellants,
v.
JOSEPH
A. PUCCIO AND ANTHONY R. PUCCIO,
INDIVIDUALLY
AND D/B/A BAIT RIGS TACKLE
COMPANY,
A WISCONSIN PARTNERSHIP,
Defendants-Respondents,
SUSAN
PUCCIO, AND WESTERN SURETY COMPANY, A
FOREIGN
INSURANCE COMPANY,
Defendants.
APPEAL
from an order of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
Before
Eich, C.J., Vergeront and Roggensack, JJ.
VERGERONT,
J. Scott and Kathy Hill appeal from an
order granting relief from an order and money judgment in their favor against
Joseph Puccio, Anthony Puccio, Susan Puccio and the Western Surety Company
(collectively "the Puccios").
The sole issue on appeal is whether the Puccios' motion for relief from
the judgment and order was timely filed.
We conclude that it was and therefore affirm.
This
action began with the Hills' complaint against the Puccios arising out of a
contract dispute between the parties.
The parties entered into a settlement agreement before trial, on
September 8, 1994. Under that
agreement, the Puccios were to pay $34,000 in two installments, the first
installment of $22,000 due by October 15, 1994, and the balance of $12,000 due
by September 7, 1995. The action
against the Puccios was to be dismissed with prejudice. The agreement also provided that if either
payment was not made by the specified date, "time being expressly of the
essence," the Hills could apply to the court to vacate the dismissal order
and, upon the Hills' application, the court "shall enter a money judgment
against the Puccios." If the first
payment was not made as agreed, the money judgment was to be in the amount of
$37,000 plus $2,300 in statutory costs; if the second was not made as agreed,
the judgment was to be $40,000 less any payment already made. On September 9, 1994, the court entered an
order dismissing the action pursuant to the settlement.
The
Puccios failed to make the second payment by September 7, 1995. On September 20, 1995, the Hills filed a
petition to vacate the dismissal and for a money judgment in the amount of
$18,000 (since the Puccios had already paid $22,000) plus prejudgment interest
of $2,242.85. The Hills state in their
brief that a proposed judgment accompanying the petition was signed by the
court. That judgment is not part of the
record. However, the Puccios do not
dispute the Hills' assertion about the judgment in their brief and the trial
court's order makes a finding that the proposed order and money judgment were
signed by the court on September 21, 1995, but not filed with the clerk of
court. We therefore assume that is what
happened.
Apparently
the reason the signed money judgment was not filed with the clerk of court is
that on the same day the court signed it, the court received a letter from the
Puccios' counsel opposing the petition and stating an intention to file a
motion in response. On October 1,
1995, the Puccios moved for relief under § 806.07(1)(a), Stats.[1] They requested that the due date for the
$12,000 be extended to the date on which the Hills' counsel received tender of
that amount by cover of letter mailed September 22, 1995. They also requested that, if the proposed
money judgment had been entered, it be vacated and the dismissal order
reinstated. Joseph Puccio's affidavit
accompanying the motion averred that he mistakenly saved a copy of a draft of
the settlement agreement to remind him of the due date rather than saving the
final agreement; that draft stated that October 7, 1995, was the due date for
the second payment.
Based
on the affidavits of the parties, briefs and arguments, the court determined
that Joseph Puccio's failure to pay the $12,000 by September 7, 1995, was an
excusable mistake, made by him as agent for the other defendants, and that upon
discovery of the mistake the Puccios promptly paid the amount due and sought
relief under § 806.07, Stats. The court concluded that the Puccios' motion
under § 806.07 was from the order and judgment rendered on September 21, 1995,
but not yet entered[2] and also
concluded that the motion was timely because it was brought within one year of
that date and within a reasonable time.
The court decided, "[i]n the exercise of [its] discretion" to
relieve the Puccios from the rendered but not entered order and money judgment
dated September 21, 1995.
The
Hills do not challenge the trial court's determination of excusable
neglect. Their challenge is to the
court's determination on the timeliness of the Puccios' motion. The Hills contend that the one-year time
period for bringing a motion under § 806.07(1)(a), Stats., should run from September 9, 1994, the date on which
the court entered the settlement agreement and dismissal order.[3] We conclude the trial court correctly
determined that the motion was for relief from the September 21, 1995 money
judgment, and therefore timely.
The
conduct that formed the basis of the Puccios' claim of excusable neglect was
the retention of a non-final draft as a reminder of the date of payment. This conduct led to the failure to pay the
second installment by September 7, 1995, which led to the Hills' petition for a
money judgment and to the rendering of the money judgment. There is nothing in the wording of
§ 806.07(1), Stats., that
would prohibit the Puccios' from moving for relief from that judgment simply
because the manner of obtaining that judgment was the subject of a prior
settlement agreement. The terms of the
settlement order might well be relevant to determining whether relief from the
judgment should be granted. But the
Hills state that they are not disputing the determination of excusable neglect
and are only challenging the timeliness of the motion.[4]
The
Hills argue that the Puccios' motion for relief demonstrates that they were
seeking modification of the settlement.
It is true that the Puccios' motion sought court action with respect to
both the settlement and the money judgment, but, at the hearing on their
motion, the Puccios' counsel stated that they were seeking relief from the
money judgment. The wording of the
motion did not preclude the Puccios from focusing only on the money judgment at
the hearing and does not preclude the trial court from deciding that they seek
relief from the money judgment and may properly do so.
The
Hills also point out that relief from the money judgment does not afford the
Puccios complete relief because, while the Puccios have obtained a vacation of
the money judgment and a reinstatement of the order of dismissal, they are
still in default of the settlement agreement.
The Hills reason that as long as the settlement agreement remains
unmodified, they can bring another motion to vacate the dismissal order and
obtain a money judgment for the Puccios' failure to comply with the
settlement. Even if the Puccios could
also have sought relief from the settlement and even if that would have
provided them a "fuller" remedy than relief from the money judgment
alone--issues which we do not decide--it does not follow from those
propositions that the Puccios cannot seek relief under § 806.07, Stats., from the money judgment. As for whether the Hills could in the future
obtain a money judgment against the Puccios for failure to comply with the
settlement since the settlement has not been modified, that issue is not before
us.
Since
the Puccios sought relief from the money judgment under § 806.07(1)(a), Stats., and since nothing in
§ 806.07 precludes them from doing so, we conclude that the time limit for
bringing the motion runs from the date the money judgment was rendered.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[1] Section 806.07, Stats., provides in part:
(1) On motion and
upon such terms as are just, the court may relieve a party or legal representative
from a judgment, order or stipulation for the following reasons:
(a) Mistake,
inadvertence, surprise, or excusable neglect;
...
(2) The motion
shall be made within a reasonable time, and, if based on sub. (1) (a) or (c),
not more than one year after the judgment was entered or the order or
stipulation was made....
[2] A judgment is rendered by the court when it
is signed by the judge or by the clerk at the judge's direction; a judgment is
entered when it is filed in the office of the clerk of court. Section 806.06(1)(a) and (b), Stats.
The Hills do not contend that the distinction between rendering and
entering a judgment is relevant to this appeal.
[3] The settlement agreement was signed on
September 8, 1994. It was contained in
the same document as the order for dismissal, which simply dismissed the action
with prejudice and costs based on the settlement agreement. The order was signed on September 9, 1994,
and the entire document was then filed with the clerk of courts on that
date. We assume the focus of the Hills' argument is on the settlement
agreement, not the order of dismissal based on that agreement.
[4] In their reply brief, the Hills argue that
the court's determination of excusable neglect is inconsistent with the terms
of the settlement that "time is of the essence," and that the court
is, in effect, excusing a breach of the settlement agreement. This appears to be inconsistent with the
statement in the Hills' first brief that they are not challenging the
determination of excusable neglect, and inconsistent with their statement that
the only issue is the timeliness of the § 806.07, Stats., motion. We do
not consider matters raised for the first time in a reply brief. See Schaeffer v. State
Personnel Comm'n, 150 Wis.2d 132, 144, 441 N.W.2d 292, 297 (Ct. App.
1989).