COURT OF APPEALS DECISION DATED AND RELEASED October 31, 1995 |
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. 95-0483
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
DAVID J. BONIN,
Plaintiff-Respondent,
v.
MUWONGE &
ASSOCIATES, S.C.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Reversed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Muwonge & Associates, S.C., appeals from the trial
court's order denying Muwonge & Associates' motion to vacate a default
judgment.
David Bonin, a
mechanical engineer, had provided consulting services to Muwonge &
Associates. Bonin billed the firm for
his services, but he did not receive payment.
He then filed suit. On the day
the trial was set to begin, counsel for defendant did not appear in court. The court then entered a default judgment in
favor of the plaintiff. Muwonge &
Associates sought to reopen the default.
The trial court denied the motion.
We reverse.
The facts before the trial
court are undisputed. Defendant's
counsel, Susan Kaye, did not appear for trial in Bonin's action against Muwonge
& Associates because she was detained in Children's Court for over three
and a half hours. Aware that her
appearance in Children's Court might create a conflict, Kaye notified the
attorney for the plaintiff and the trial court's clerk. Bonin's attorney agreed to an adjournment,
but the clerk would not accept the stipulation. Kaye then informed Emmanuel Muwonge, a partner at her law firm,
of the potential conflict. He told her
that he would be present at the time the case was set to begin. The night before the scheduled trial date,
however, Muwonge had a medical emergency relating to his sickle cell anemia and
was hospitalized. When he called the
trial court the day of trial, the trial court directed his staff to “tell Mr.
Muwonge, the case is going on right now, nobody's here, it's a default as far
as I'm concerned.” As noted, the trial
court denied Muwonge & Associates' motion to vacate the default judgment.
Whether to vacate a
default judgment is within the discretion of the trial court, and can only be
overturned on appeal if that discretion is misused. See Hansher v. Kaishian, 79 Wis.2d 374, 389,
255 N.W.2d 564, 572 (1977). “The
exercise of discretion must depend on facts that are of record or that are
reasonably derived ... and the basis of that exercise of discretion should be
set forth.” Howard v. Duersten,
81 Wis.2d 301, 305, 260 N.W.2d 274, 276 (1977).
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.
Excusable
neglect is “that neglect which might have been the act of a reasonably prudent
person under the same circumstances.” Hedtcke
v. Sentry Ins. Co., 109 Wis.2d 461, 468, 326 N.W.2d 727, 731 (1982)
(citation omitted). The trial court
denied Muwonge & Associates' motion to vacate because it concluded that the
firm did not meet the “burden of proving ... that its failure to appear for the
August 17, 1994 trial ... was the result of excusable neglect.”
In deciding whether
there is excusable neglect, under § 806.07(1)(a), Stats., a trial court must determine if there are “reasonable
grounds for the noncompliance.” Hedtcke,
109 Wis.2d at 468, 326 N.W.2d at 731. A
trial court should also “consider whether the person has acted promptly to
remedy his situation and whether vacation [sic] of the judgment is
necessary to prevent a miscarriage of justice.” Charolais Breeding Ranches, Ltd. v. Wiegel, 92
Wis.2d 498, 512, 285 N.W.2d 720, 727 (1979) (citation omitted). Additionally, the “law views default judgments
with disfavor and `prefers, whenever reasonably possible, to afford litigants a
day in court and a trial on the issues.'”
Hedtcke, 109 Wis.2d at 469, 326 N.W.2d at 731 (citation
omitted). Here, Kaye tried to alert the
trial court that she had a potential conflict.
After the trial court would not adjourn the case, Kaye arranged for
Muwonge to be in court. Unfortunately,
Muwonge became seriously and suddenly ill.
He did, however, contact the court to explain why he could not
appear. Kaye and Muwonge did everything
they could have done under the circumstances.
The trial court's failure to vacate the default judgment was
unreasonable and an erroneous exercise of its discretion.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.