COURT OF
APPEALS DECISION DATED AND
RELEASED October
17, 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. 96-1484-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
SAGLER
MASONRY & CONCRETE,
Plaintiff-Respondent,
v.
JEFF
NETZER,
Defendant-Appellant.
APPEAL
from an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
VERGERONT,
J.[1] Jeff
Netzer appeals from the trial court order denying his motion to reopen a
default judgment entered in favor of Sagler Masonry & Concrete. We conclude that the trial court did not
erroneously exercise its discretion in entering the default judgment or in
denying the motion to vacate the default judgment and we therefore affirm. [2]
Sagler
filed a verified summons and complaint against Netzer in a small claims action
averring that Sagler put in a new basement wall; that he tried to contact
Netzer several times with no luck; that he put a lien on the property but it
was not valid because Netzer's house is in his parents' name; that Sagler
billed Netzer on November 8, 1994, and demanded $1,659.18. The summons and complaint advised Netzer
that he must appear at the time and place stated on the form, which was January
19, 1996, at 9:00 a.m. at the La Crosse County Courthouse, Room 308. The summons and complaint also stated: "if you do not appear, judgment may be
granted to the plaintiff. You may file
an answer and counterclaim, but this does not relieve you of your duty to
appear." Netzer appeared on the
return date and the parties were unable to resolve their dispute before a
mediator. A notice dated January 19,
1996, entitled "Notice of Hearing" was sent to Netzer's counsel. The notice scheduled a court trial for
February 14, 1996, at 9:00 a.m. and also stated that: "failure to serve and file the answer will result in a
default judgment. Answer due by January
31, 1996."
By
agreement of the parties, a new trial date was set--March 22, 1996, at 1:50
p.m. The court later changed the time
of the trial to 10:30 a.m. on March 22, 1996. Neither Netzer nor his counsel appeared at 10:30 on March 22,
1996. Apparently neither defendant nor
his counsel was advised that the trial was changed to an earlier time on March
22. Sagler did appear at 10:30 a.m. on
March 22 and his attorney stated he was ready to proceed with the trial. Because an answer had not yet been filed,
the court entered a default judgment based on the complaint. Netzer filed an answer shortly before 1:50
p.m. on March 22.
Netzer
subsequently moved to reopen the default judgment on the ground that his counsel
believed that the answer was timely filed[3]
and that he had a meritorious defense to the cause of action and the amount of
recovery being sought.
At
the hearing on the motion, Netzer's counsel explained that he had relied on
§ 799.20(1), Stats., which
provides that, "[o]n the return date of the summons or any adjourned date
thereof the defendant may answer, move to dismiss under s. 802.06(2) or
otherwise respond to the complaint."
He understood that the proceeding on March 22, 1996, was the return date
and that he had until 1:50 on that date to file an answer.
Netzer's
counsel also explained at the hearing and in his affidavit accompanying the
motion that he did not receive the notice of hearing setting the trial for
February 14 and an answer date on January 31 until February 7 because that
notice was first sent to his former office address, not his current one.[4]
The
trial court denied the motion. The
reasons for denial had nothing to do with the misunderstanding concerning
whether the trial was set for 10:30 or 1:50 on March 22. The trial court stated that the default
judgment had been granted because no answer was filed by January 31. Although the trial court apparently was
under the impression that Netzer acknowledged in his affidavit that he received
the notice dated January 19, 1996, we do not find support for that finding in
the record. Netzer's affidavits filed
with the motion do not indicate he received the notice. In his comments to the court at the hearing
on the motion to reopen, Netzer denied that he had received it. The name of Netzer's counsel is Randy Netzer
and that may account for the court's mistake.
As noted above, counsel stated that he received the January 19, 1996
notice from the court in the mail on February 7, 1996. The court went on to state that even if
there were some delay in Netzer's attorney receiving the notice, a motion to
extend the time limits for filing the answer should have been filed. The court also concluded that there had been
no showing of injustice or legitimate defense.
The court considered that Netzer's answer--alleging simply that Netzer
did not owe the money or owe all the money Sagler was asking for--did not
demonstrate a meritorious defense sufficient to relieve him from the default
judgment.
Netzer
first argues that the trial court erred in entering a default judgment because
the answer was timely served. There is
no merit to this contention. A personal
appearance on the return date is required in order to avoid a default judgment
unless a circuit court rule provides for answer by mail or telephone. Section 799.22(1), (2) and (4), Stats.
Section 799.06(2), Stats.,
permits a court to require that a written answer be filed in a particular
case. In this case, Netzer was advised
that a personal appearance was required at the return date but an answer was
not required by that date. However, the
notice issued on the return date, after mediation failed, clearly stated that
an answer had to be filed and served by January 31, 1996, or it would
result in a default judgment. The
return date was January 19, 1996. There
was no adjournment of the return date.
The January 19, 1996 notice does not refer to an adjourned return date
but only to the court trial, set for February 14, 1996, and to the due date for
filing the answer, January 31, 1996.
Section 799.20(1), Stats.,
relied on by Netzer, does not authorize the filing of a written answer on the
date of the court trial. Section
799.06(2) plainly permits the court to require a written answer after the
return date and before the trial, as the court did here. Netzer was therefore in default when the
court entered the default judgment on March 22. The court was authorized to do so under § 799.22(3).
Netzer
argues that even if his counsel erred in interpreting § 799.20(1), Stats., and the answer was not timely
filed, the default judgment should be set aside. The trial court may reopen a default judgment for good
cause. Section 799.29(1), Stats.
A decision to vacate a default judgment is within the sound discretion
of the trial court. See Martin
v. Griffin, 117 Wis.2d 438, 442, 344 N.W.2d 206, 209 (Ct. App.
1984). If the trial court considered
the facts of record and applied the correct law and reached a decision that a
reasonable judge could reach, we will not reverse a trial court's denial of a
motion to vacate a default judgment. See
id.
As
we have noted above, the trial court appears to have been mistaken that Netzer
received a notice of the answer date.
However, his counsel did receive the notice on February 7, 1996, but a timely answer was not filed until
March 22, 1996, and no extension was sought.
Although the court did not use the words "good cause," it is
evident from its decision that it decided there was not good cause for failing
to file a motion for an extension and promptly answer once counsel received the
notice. In Martin v. Griffin, we held that as a matter of law, it
is not excusable neglect to fail to file a timely answer even though there is a
good faith view that an answer was not required. Id. at 442-44, 344 N.W.2d at 209-10. The trial court here could reasonably decide
that trial counsel's misinterpretation of the statute and ignoring the plain
language of the notice do not constitute good cause.
Because
we conclude that the trial court correctly determined that there was no good
cause for defaulting, we need not reach the issue of whether the trial court
correctly determined that there was an insufficient showing of a meritorious
defense. See id.
at 444, 344 N.W.2d at 210.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] This appeal is
decided by one judge pursuant to § 752.31(2)(f), Stats. This appeal
has been expedited. Rule 809.17, Stats.
[2] In response to Netzer's statement that no
transcript was necessary, Sagler filed and served a designation of transcript,
designating transcripts of the court hearing granting default judgment and a
hearing on the motion to vacate the default judgment. When Netzer failed to file the transcripts as requested, Sagler
filed a motion with the trial court and the court ordered Netzer to furnish the
transcript as requested within twenty days if a statement could not be agreed
upon between the parties within ten days.
This order is not part of the record but Sagler makes this assertion in
his brief and Netzer did not file a reply brief. We may take assertions as true that are made in respondent's
brief and not disputed in a reply brief.
See Schlieper v. DNR, 188 Wis.2d 318, 322, 525
N.W.2d 99, 101 (Ct. App. 1994). The
circuit court approved transmittal of the record without the transcript from
the two hearings. Netzer, proceeding
pro se, has attached copies of the transcripts from the two hearings to his
brief. We agree with Sagler that Netzer
has failed to comply with the requirement that any decision appealed above be
part of the record on appeal. Section
809.15(1)5, 6 and 7, Stats. Nevertheless, since Netzer has filed the
transcripts and since Sagler has addressed the merits of the appeal, we choose
to decide this appeal on the merits.