COURT OF APPEALS DECISION DATED AND FILED July 23, 2009 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Althea M. Patterson,
Defendant-Appellant. |
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APPEAL from an
judgment of the circuit court for
¶1 DYKMAN,
J.[1] Althea
Patterson appeals from a default judgment of conviction for a traffic violation. Patterson argues that the trial court
erroneously exercised its discretion in denying her motion to reopen the
default judgment.[2] See Wis.
Stat. § 345.36(2)(b). Additionally,
Patterson requests that we assign a substitute judge to her case upon remand,
pursuant to Wis. Stat. § 801.58(1)-(2)
and (7).[3] We conclude that the trial court erroneously
exercised its discretion in denying Patterson’s motion, but that this court is
not the proper forum in which to make a request for a substitute trial court
judge. Accordingly, we reverse and remand
to the trial court for the court to properly exercise its discretion in
determining whether to grant Patterson’s motion.
BACKGROUND
¶2 The
following facts are taken from court documents and communications between
Patterson and the trial court. On July 19,
2007, Patterson received a citation for violating Wis. Stat. § 346.57(4)(gm)[4] for traveling
eleven miles per hour over the speed limit on a freeway in
¶3 On
April 23, Patterson called the clerk of courts to request that her trial be
rescheduled. The clerk of courts told
her that she could not reschedule the trial over the phone. Patterson then decided to try to make the
court appearance despite her doctor’s orders to rest. Patterson was heavily medicated at the time
and had difficulties getting to the courthouse.
She therefore did not arrived in time for her trial. When Patterson arrived, the trial court had
already entered a second default judgment against her.
¶4 On
April 30, Patterson sent a written request to the judge presiding over her
trial to have the second default judgment reopened, proffering her recent
surgical procedure and unexpected difficulties in reaching the courthouse on
time as legitimate excuses for missing her trial. On May 1, the judge denied her request,
stating:
I would have gladly considered an adjournment request if made 48 [hours] prior to the court date, as stated on the notice. Witnesses were present on your trial date ready to go. I waited at least 10 minutes as I always do. Courts need to run on schedule to prevent chaos. This request is denied.
Patterson appeals.
STANDARD OF REVIEW
¶5 We
agree with the State that the proper standard for our review of Patterson’s
motion to reopen under Wis. Stat.
§ 345.36(2)(b) is the standard we have set for review of motions to open
judgments under Wis. Stat. § 806.07(1)(a),
which is similar in language and purpose to § 345.36(2)(b).[5] “Rulings on motions under § 806.07
are reviewed under an erroneous exercise of discretion standard.” Edland v. Wisconsin Physicians Serv. Ins.
Corp., 210
¶6 We
will find an erroneous exercise of discretion if: (1) the trial court did not exercise its
discretion, (2) an examination of the facts of record does not support the
conclusion that the trial court reached, or (3) the trial court applied an
improper legal standard to come to its conclusion. Finley v. Culligan, 201
DISCUSSION
A. Motion
to Reopen the Default Judgment
¶7 The
first issue is whether the trial court erroneously exercised its discretion in
denying Patterson’s motion to reopen the default judgment against her pursuant
to Wis. Stat. § 345.36(2)(b). Patterson argues
that the trial court erred in denying her motion to reopen the default judgment
because she had a valid reason for missing her trial. The State claims that the trial court
properly exercised its discretion in denying Patterson’s motion because it was
not satisfied with Patterson’s reasons for missing her trial.
¶8 We
first address the trial court’s on-the-record explanation of why it denied
Patterson’s motion. In denying
Patterson’s motion for post-judgment relief, the trial court cited a notice of
hearing sent to Patterson. That notice
states:
Failure to appear may result in assessment of witness and/or officer fees. A written change of plea must be received by the clerk of courts office at least 48 hours (2 business days) prior to the court trial date for additional fees not to be assessed. In any event, failure to appear will result in entry of a default judgment.[6]
¶9 The
trial court applied an incorrect legal standard in denying Patterson’s motion. In
its analysis, it cited the part of the notice regarding plea changes prior to
trial. Patterson’s Wis. Stat. § 345.36(2)(b) motion,
however, requested the court to grant her relief after the trial court entered default judgment because she missed
her trial. Thus, the notice she received
as to changing a plea prior to trial was not the correct legal standard in
evaluating whether to reopen the default judgment.
B. Request for a Substitute
Judge
¶10 Patterson
requests that we substitute the trial court judge assigned to her case upon
remand. Wisconsin Stat. § 801.58(7) gives any party involved in
a case that has been remanded to the trial court for further proceedings an
unqualified right to request a substitute trial court judge. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County,
2000 WI 30, ¶13, 233 Wis. 2d 428, 608 N.W.2d 679. As defined by the Wisconsin Supreme Court,
“further proceedings” refers to those actions on remand that allow the trial court
to exercise discretion.
¶11 If
she wishes to do so, Patterson may obtain a substitute trial court judge by
properly filing her request. Wisconsin Stat. § 801.58(1)
requires a party who desires a substitute judge to file a written request with
the clerk of courts. Because we remand
Patterson’s case to the trial court for further proceedings, should she wish to
do so, Patterson must file a request for a substitute trial court judge within twenty
days of the remittitur of this case in the trial court.[7] See Wis. Stat. § 801.58(7).
¶12 Accordingly,
we reverse the trial court’s denial of Patterson’s motion to reopen the default
judgment against her and remand this case to the trial court for Jefferson
County for consideration of the motion under the proper legal standard. Additionally, we deny Patterson’s request for
a substitute trial court judge.
By
the Court.—Judgment reversed and cause remanded for further proceedings
consistent with this opinion.
Not recommended for publication in
the official reports. See Wis.
Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(g) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Because
Patterson is appealing pro se, we liberally construe her complaint. See
bin-Rilla
v.
(2) If a defendant fails to appear at the date set under sub. (1), the court shall either:
….
(b) Deem the nonappearance a plea of no contest and enter judgment accordingly.... If the defendant moves to open the judgment within 20 days after the date set for trial, and shows to the satisfaction of the court that the failure to appear was due to mistake, inadvertence, surprise, or excusable neglect, the court shall open the judgment, reinstate the not guilty plea, and set a new trial date.
[3]
(1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case….
(2) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under sec. 751.03….
….
(7) If upon appeal from a judgment ... the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal ... was taken.
[4] Wisconsin Stat. § 346.57 provides, in pertinent part:
(4) Fixed limits. In addition to complying with the speed restrictions imposed by subs. (2) and (3), no person shall drive a vehicle at a speed in excess of the following limits unless different limits are indicated by official traffic signs:
….
(gm) Sixty-five miles per hour on any freeway or expressway.
[5] Wisconsin Stat. § 806.07 provides, in pertinent 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[.]
[6] The notice sent to Patterson explains the possible consequences of failing to appear for trial, citing to Wis. Stat. §§ 802.10(7) and 805.03. Section 802.10 gives the trial courts the authority to schedule court trials and subsec. (7) states that “[v]iolations of a scheduling or pretrial order are subject to ... [§] 805.03.” Section 805.03 provides the sanctions that a trial court may impose on parties who fail to prosecute a case or fail to comply with procedure statutes.
[7] Remittitur refers to the filing of the remanded case with the trial court. Delayed remittitur allows a party dissatisfied with the holding of the court of appeals the chance to petition the supreme court to review the court of appeals decision or to move for reconsideration in the court of appeals. Pursuant to Wis. Stat. § 809.26(1), unless a party files a petition for review or a motion for reconsideration, remittitur should occur thirty-one days after the filing of the court of appeals decision. Therefore, a party seeking to have a substitute trial court judge assigned should wait thirty-one days after the date of a court of appeals decision and then file a request with the trial court within the subsequent twenty days.