District i
December 23, 2014
To:
Hon. Maxine A. White
Milwaukee County Courthouse
901 N. 9th Street
Milwaukee, WI 53233
John Barrett, Clerk
Milwaukee County Courthouse
901 N. 9th Street, Room G-8
Milwaukee, WI 53233
Matthew S. Pinix
Law Office of Matthew S. Pinix, LLC
1200 East Capitol Drive, Suite 220
Milwaukee, WI 53211
Cierra M.
You are hereby notified that the Court has entered the following opinion and order:
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In the Matter of a Change of Name for Khabira G.: Cierra M. v. Paris G. (L.C. #2013CV8195) |
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Before Curley, P.J., Kessler, J., and Thomas Cane, Reserve Judge.
Paris
G. appeals from a circuit court order changing the name of his daughter. The Respondent, Cierra M., did not file a
responsive brief. We conclude at
conference that this matter is appropriate for summary disposition. See Wis. Stat. Rule 809.21(1). Based on Cierra M.’s failure to file a
responsive brief, we summarily reverse the order. See Wis. Stat. Rule 809.83(2) (2011-12).[1] We remand with directions that the circuit
court enter appropriate orders reinstating the child’s former name.
On
January 7, 2014, Paris G. filed a notice of appeal from the November 22, 2013
circuit court order that changed the name of Paris G.’s minor daughter over his
objection. On January 15, 2014, Cierra
M. filed a motion in this court seeking an extension of time “to file a
response to the appeal.” (Capitalization
omitted.) By order dated January 17,
2014, we denied the motion as unnecessary, explaining that Paris G.’s brief had
not yet been filed. We advised Cierra M.
that we would issue a notice after Paris G.’s brief was filed.
On
March 28, 2014, we notified the parties that the circuit court record had been
filed, and on April 1, 2014, we notified the parties that Paris G.’s brief had
been filed.
On
May 12, 2014, we notified Cierra M. that her brief was delinquent and ordered
her to file her brief or seek an extension within five days. We received no response. On May 28, 2014, we sua sponte extended the time for Cierra M. to file her brief, to
June 18, 2014. Again, we received no
response.
On
June 19, 2014, Paris G. moved for summary reversal based on Cierra M.’s failure
to file a responsive brief. We denied
the motion, indicating that this court preferred to decide the case based on
“the benefit of full briefing.” See Cierra M. v. Paris G., No.
2014AP63, unpublished order at 1 (WI App Aug. 1, 2014) (hereafter, “Cierra
M.”). We continued:
However, the “[f]ailure to file a respondent’s brief tacitly concedes that the trial court erred,” State ex rel. Blackdeer v. Levis Township, 176 Wis. 2d 252, 260, 500 N.W.2d 339 (Ct. App. 1993), and allows this court to assume that the respondent concedes the issues raised by the appellant, see Charolais Breeding Ranches Ltd. v. FPC Securities Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979). We will not act as both advocate and judge, see State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992), by independently developing a litigant’s argument, see Gardner v. Gardner, 190 Wis. 2d 216, 239-40 n.3, 527 N.W.2d 701 (Ct. App. 1994).
If a respondent fails to brief an appeal, we may exercise our discretion and summarily reverse the circuit court, provided we determine that the respondent has abandoned the appeal or has acted egregiously or in bad faith. Raz v. Brown, 2003 WI 29, ¶18, 260 Wis. 2d 614, 660 N.W.2d 647; see also Blackdeer, 176 Wis. 2d at 259-60 (summary reversal is appropriate sanction for respondent’s violation of briefing requirements).
We conclude that a responsive brief is necessary to the resolution of this appeal. The failure to file such a brief constitutes an abandonment of the appeal. Therefore, pursuant to Raz, 260 Wis. 2d 614, ¶36, we are ordering the filing of a responsive brief. If a brief is not filed, this court will summarily reverse the judgment or order appealed from. See Wis. Stat. Rule 809.83(2) (2011-12).
Cierra M., No. 2014AP63, unpublished
order at 1-2 (emphasis added). We
extended the deadline for Cierra M. to file a responsive brief by fifteen days
and reiterated: “If the respondent’s
brief is not filed within that time period, the judgment or order appealed from
will be summarily reversed.” Id.
at 2.
Cierra
M. did not subsequently file a responsive brief or any motions with this
court. Consistent with our August 1,
2014 order, we now summarily reverse the circuit court’s name change order
based on Cierra M.’s abandonment of the appeal.
See Wis. Stat. Rule 809.83(2) (“Noncompliance
with rules. Failure of a person
to comply with a court order or with a requirement of these rules … is grounds
for … summary reversal.”) We remand with
directions that the circuit court enter appropriate orders reinstating the
child’s former name.
IT IS ORDERED that the circuit court’s order is summarily reversed and the cause is remanded with directions. See Wis. Stat. Rule 809.83(2).
Diane M. Fremgen
Clerk of Court of Appeals