COURT OF APPEALS DECISION DATED AND FILED July 1, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 KESSLER, J. Vladimir and Izolda
Kalugin appeal from a default judgment granted in favor of Manchester Village
Owners Association, Inc. (“
BACKGROUND
¶2 At the outset, we note that counsel for the Kalugins asserts that the Kalugins are Russian immigrants with limited English speaking ability and no ability to read English. Although the Kalugins did not file affidavits asserting these facts and never appeared in court, we will assume for purposes of this opinion that these representations are correct.
¶3 The Kalugins purchased a condo unit in
¶4 According to
¶5 The fourth letter, dated September 27, 2006, gave the
Kalugins forty-eight additional hours to contact
¶6 The fifth letter, dated October 19, 2006, was sent directly
from
¶7 The Kalugins failed to respond to any of the letters or file
the necessary paperwork. On November 7,
2006,
¶8 According to
¶9 There are assertions in the record that the Kalugins on their
own, and then through counsel, attempted to negotiate a settlement of the
attorney fees with
¶10 The next court filing in this matter occurred on April 10,
2007, when
¶11 On May 7, 2007, counsel for the Kalugins filed a notice of appearance.[2] Counsel asked for the motion hearing to be rescheduled to allow time to file a brief opposing the default judgment and a motion to extend time to file an answer. The hearing was rescheduled for June 7, 2007.
¶12 On May 29, 2007, the Kalugins’ attorney filed a document
entitled “Defendant’s [sic] Opposition to Plaintiff’s Motion for Default
Judgement [sic] and Defendant’s [sic] Motion to Enlarge Time to File Answer Pursuant
to Sec. 801.15(2)(a) Wis. Stats.” The
filing included assertions about why the Kalugins failed to respond to the
litigation and to the requests to complete the paperwork. It asserted that the Kalugins do not speak or
read English, that Izolda Kalugin is very ill and is unable to leave her home,
and that
¶13 On June 1, 2007,
¶14 On June 6, 2007, the day before the scheduled hearing on
¶15 On Monday, June 11, 2007, at 8:41 a.m., the case was called. Neither the Kalugins nor their counsel
appeared. The court granted
¶16 According to the court docket notes, counsel for the Kalugins appeared at 8:50 a.m. The notes state:
Court was hearing a different matter at this time, but went off the record to inform [counsel] that his case had already been heard and a Default Judgment was granted against his clients. [Counsel] informed the Court that he called and left a message that he was running late. Court informed [counsel] that today’s court date was scheduled per his request and he should have been here on time. The Default Judgment stands.
¶17 The next day, the Kalugins filed a notice of appeal. They did not file a Wis. Stat. § 806.07 motion seeking relief from judgment. In August and September 2007, they moved to modify the record on appeal (by adding affidavits not filed before the default judgment was granted) and to stay enforcement of the judgment pending the appeal. The trial court denied those motions.
DISCUSSION
¶18 The Kalugins argue that the trial court erroneously exercised
its discretion when it: (1) denied the
Kalugins’ motion to enlarge time to file their answer; and (2) granted
¶19 In response,
¶20 The parties argue the merits of the default judgment and the
motion to enlarge time to answer.
However, we need not reach those issues, because we conclude the
Kalugins waived their right to challenge the judgment, and the nonfinal orders
entered prior to it, by failing to file a Wis.
Stat. § 806.07 motion seeking relief from the judgment.[4] See Olson
v. Dunbar, 149
¶21 “A decision to vacate a default judgment is addressed to the
discretion of the trial court.”
¶22 In addition, because we deem the Kalugins’ challenge to the default judgment waived by the Kalugins’ failure to move to reopen the judgment, we decline to address the Kalugins’ challenge to the denial of their motion to enlarge time to answer. See id. at 218-19 (dismissing a variety of issues where party failed to seek relief from default judgment in the trial court).
¶23 The Kalugins also seek reversal pursuant to Wis. Stat. § 752.35, which permits us to grant relief if we are convinced “that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.” We conclude that relief is not justified in this case. Any failure to proceed to a factfinding hearing in this case lies with the Kalugins, who failed to file an answer for nearly six months after they were served.
¶24 The court is sympathetic to the practical problems faced by
immigrants to our country who do not, on their arrival, understand, speak, read
or write English. The parents and
grandparents of many current residents of
¶25 The Kalugins argue that justice has miscarried because they
have been ordered to pay $4,288.50 in attorney fees, costs and
disbursements. Yet the Kalugins were
notified, on more than one occasion, prior to the commencement of the lawsuit,
that they would be responsible for attorney fees associated with filing suit to
compel them to sign the requisite condominium documents. At the outset, those fees were surely less
than $4,288.50, but
¶26 The only remaining issue is that of appellate attorney
fees.
By the Court.—Judgment affirmed and cause remanded with directions.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] This was a different attorney than the one who attempted to negotiate a settlement for the Kalugins in January 2007.
[3] Both parties interpret the trial court’s comments as a denial of the motion to enlarge time to answer. We agree with this interpretation.
[4]
Relief from judgment or order. (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
(b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15 (3);
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
(d) The judgment is void;
(e) The judgment has been satisfied, released or discharged;
(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
(g) It is no longer equitable that the judgment should have prospective application; or
(h) Any other reasons justifying relief from the operation of the judgment.
(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. A motion based on sub. (1) (b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.