2008 WI 81
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Supreme Court of |
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Case No.: |
2005AP2935 |
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Complete Title: |
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Taneceia Larry, Plaintiff-Appellant-Petitioner, v. Derrick L. Harris, Defendant, Carlos Rutherford, Defendant-Respondent, ABC Insurance Corporation and Officer John Roe, Defendants. |
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REVIEW OF A DECISION OF THE COURT OF APPEALS 2007 WI App 132 Reported: 301 (Ct. App. 2007-Published) |
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Opinion Filed: |
July 9, 2008 |
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Submitted on Briefs: |
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Oral Argument: |
January 17, 2008
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Source of Appeal: |
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Court: |
Circuit |
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County: |
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Judge: |
Daniel A. Noonan
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Justices: |
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Concurred: |
ABRAHAMSON, C.J., concurs (opinion filed). |
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Concur & Dissent |
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Dissented: |
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Not Participating: |
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Attorneys: |
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For the plaintiff-appellant-petitioner there were briefs
by Robert J. Kasieta and Kasieta Legal Group, LLC,
For the defendant-respondent there was a brief by Jonathan Cermele, Rachel L. Pings, and
An amicus curiae brief was filed by Anne Berleman Kearney, Joseph D. Kearny,
2008 WI 81
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Affirmed in part; reversed in part and the cause is remanded to the circuit court for further proceedings consistent with this opinion.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a
decision of the court of appeals[1]
affirming the circuit court's[2]
sua sponte vacation of a default judgment against defendant
Carlos Rutherford and the circuit court's sua sponte grant of
judgment in
I. BACKGROUND
¶2 The issues this case presents stem from law enforcement's entry
into Taneceia Larry's home without a search warrant. Three officers were alleged to be present
during the entry: Derrick Harris,
M'Johno Foster and Carlos Rutherford.[4] Harris was named in the complaint, and the
circuit court granted his motion for summary judgment dismissing Larry's claims,
which Larry did not appeal. Foster was
never sued.
¶3 On the evening of August 26, 2002, while Larry was at a gas station, she met a man whom she knew.[6] He requested a ride home, and Larry agreed to drive him as far as her house. They proceeded to Larry's home, and as Larry pulled into the drive-way, she noticed an unmarked police vehicle pull up behind her. Upon observing the presence of police, Larry's passenger fled from her vehicle. Two police officers[7] exited their car and gave chase, but they did not catch him.
¶4 The officers returned to Larry's residence, where Larry awaited
them outside. Larry consented to a
search of her car. The officers found no
contraband, but Larry alleges that the officers then placed her in
handcuffs. One of the officers said he
intended to enter Larry's home. Larry
objected. She said that her five
children were in the house, some of whom were asleep, and that her niece was
watching them. Larry alleges that two of
the officers entered her home over her objection. She also alleges that the officers conducted
a search inside her home, which included waking and "interrogating"
the children and their babysitter. She
further alleges that
¶5 For their part, Harris and Foster assert that only Foster, who was never a party to this suit, entered Larry's home. He did so without a warrant. Foster averred that he was in the home for less than five minutes, and that he entered only to ensure that someone of suitable age was there to look after the children because Larry was going to be taken to the police station for questioning.[8] The circuit court found that ensuring proper child supervision was the purpose of the entry.[9] Foster additionally stated that he spoke to an individual whom he estimated to be 16 or 17 years old, but he did not say whether he spoke to any of the children.
¶6 Larry moved for default judgment when neither Harris nor
Rutherford timely answered her complaint.
The circuit court denied the motion with respect to Harris after he
objected and served an answer. However,
the circuit court granted Larry's motion for default judgment against
¶7 Harris then moved for summary judgment against Larry, contending that the entry into Larry's home was lawful and that qualified immunity protected him from liability. In opposing Harris's motion for summary judgment, Larry argued that because her home was entered by police without either a warrant or reasonable suspicion, the entry was presumptively unlawful. Moreover, she contended that Harris's affirmative defense of qualified immunity was frivolous.
¶8 The circuit court granted Harris's motion for summary judgment. Because the circuit court concluded that actions on the part of Harris, Foster and Rutherford all fell within the scope of Harris's motion for summary judgment, the court "treated [them] in the same manner." The court found that, although police officers entered Larry's home without her consent and without a warrant, they did so for the purpose of ensuring that her children were adequately supervised and not for the purpose of uncovering "evidence or . . . criminal activity."
¶9 However, in granting summary judgment to Harris and without giving
prior notice to Larry, the circuit court also, sua sponte,
vacated the default judgment against Rutherford and granted judgment dismissing
Larry's claims against
¶10 The circuit court invited briefing on Larry's motion to reconsider. Larry's brief in support of her motion consisted of a six-sentence letter, two sentences of which addressed her argument:
The court will recall we are asking your Honor to reconsider an order in which the court, sua sponte, ordered the reopening of the previously-entered Default Judgment and Summary Judgment against the Plaintiff in favor of the defaulting Defendant, all without any argument from the defaulting Defendant.
We can find no support for this procedure and respectfully request that it be reversed.
Larry also subsequently
submitted a reply brief, arguing, in essence, that the circuit court erred by
ascribing the qualified immunity that it concluded Harris possessed to
¶11 The circuit court denied Larry's motion for reconsideration. The court explained its reasoning in vacating
the default judgment against
[T]he Court found that the default judgment should be vacated against Defendant Rutherford because no reason existed to hold any officer liable for violation of [Larry's] constitutional rights under her Complaint. . . . The vacation occurred here within a reasonable time after default because the summary judgment was before the Court and the Court determined the claims by Plaintiff were improper. . . .
. . . Plaintiff does not dispute the Court's findings that her rights under the constitution were not violated. Clearly, the Court vacated the default because no officer could be held liable under the Complaint according to the Court's findings; as such, the interests of justice required the Court to vacate the default.
¶12 Larry did not further dispute the circuit court's grant of summary
judgment with respect to Harris, nor the basis for that decision, i.e., that
Larry's constitutional rights were not violated and that the doctrine of
qualified immunity applies. Larry
appealed the vacation of the default judgment, as well as the entry of judgment
in Rutherford's favor based on
¶13 The court of appeals affirmed.
It reasoned that a circuit court has statutory authority to grant relief
from default judgments on its own motion, so long as it provides the party
adversely affected with notice and an opportunity to be heard. Larry v. Harris, 2007 WI App 132, ¶1, 301
¶14 Larry petitioned for review, which we granted.
II. DISCUSSION
A. Standard of Review
¶15 Whether to open a default judgment is committed to the discretion
of the circuit court, which we review under the erroneous exercise of
discretion standard. See, e.g.,
Edland v. Wis. Physicians Serv. Ins. Corp., 210
¶16 A circuit court's authority to vacate a default judgment and to
grant summary judgment derives from
B.
1. Opening the default judgment
¶17 A circuit court's authority to open a default judgment is derived
from statute.
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.
¶18 We have previously recognized that Wis. Stat. § 806.07 seeks to strike
a balance between the judiciary's interest in achieving fair resolutions of
disputes and the policy favoring finality of judgments. Edland, 210
¶19 Here,
the circuit court vacated the judgment against
a. Sua sponte vacation of default
judgment
¶20 The
relief that may be accorded under Wis. Stat. § 806.07 need not be sought
by one of the parties; a court may act on its own motion pursuant to
§ 806.07, as long as the court provides the parties notice of its action
and an opportunity to be heard. Gittel
v. Abram, 2002 WI App 113, ¶27, 255
¶21 Abram objected to the court's award of costs and fees to Gittel,
and the court held a hearing on Abram's motion.
¶22 The court of appeals held in Gittel that a circuit court is
authorized to grant relief from its own orders sua sponte under
the authority of Wis. Stat. § 806.07,
but that the circuit court did not provide the parties with the requisite
notice of its action.
¶23 We agree with Gittel that circuit courts are vested with the
authority to grant relief from their judgments, on their own motion under Wis.
Stat. § 806.07. We have recognized a wide swath of contexts
in which
¶24 In addition, the plain language of Wis. Stat. § 806.07(1) does not foreclose the court from acting sua sponte under the statute's authority. When interpreting a statute, we look to its language, and if that language conveys a "plain, clear statutory meaning," we construe the statute according to that meaning. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656). Section 806.07(1) provides in part: "On motion and upon such terms as are just, the court[] . . . may relieve a party . . . from a judgment . . . ." Because the language of the statute provides that a court may relieve a party from judgment, without qualifying that the relief may be granted only upon a motion brought by one of the parties, the statute does not restrict the court from acting on its own motion.
¶25 In sum, we reaffirm Gittel's conclusion that courts have the power to act sua sponte under the provisions of Wis. Stat. § 806.07. The interests underlying § 806.07 parallel the interests that we have held permit courts to act sua sponte. In addition, we construe the plain language of § 806.07 to permit a court to act sua sponte under its authority.
b. Notice and hearing
¶26 As we recounted above, sua sponte actions are
permissible under Wis. Stat. § 806.07(1)
if the court provides the parties notice of its action and an opportunity to be
heard. Gittel, 255
¶27 The facts here stand in sharp contrast to the facts in Gittel. Even though the circuit court acted on its own motion without prior notice to Larry or any defendant, as the circuit court had in Gittel, the circuit court here, unlike the circuit court in Gittel, provided an opportunity for the parties to be heard by inviting briefing on the issues. Although giving notice prior to a sua sponte action by a circuit court under Wis. Stat. § 806.07 is preferable, Larry does not argue that she was prejudiced by the late notice.[13] Furthermore, she did submit a letter brief objecting to vacating the default judgment, as well as a more complete reply brief. The court considered her arguments and then issued a written opinion addressing them. Under these circumstances, the circuit court permitted Larry an opportunity to be heard.
¶28 In vacating the default judgment, the circuit court related that all the officers were accused of substantially the same conduct under the complaint. The court explained that given the summary judgment materials submitted in regard to Harris's motion for summary judgment, it was clear that Larry's rights had not been violated by the officers' conduct. The court opined that its decision to vacate the default judgment was based on equity, as it further explained, "no officer could be held liable under the Complaint according to the Court's findings; as such, the interests of justice required the Court to vacate the default." (Emphasis added.)
¶29 We see no erroneous exercise of discretion. The court had the power to act sua sponte
under Wis. Stat. § 806.07,
and it thoroughly explained the legal and equitable bases for its decision to
vacate the default judgment. In
addition, Larry was given an opportunity to be heard and the written decision
of the circuit court shows it carefully considered her arguments. Accordingly, the circuit court did not
erroneously exercise its discretion in sua sponte vacating the
default judgment against
2. Larry's position
¶30 Larry advances two arguments in her opposition to the circuit
court's vacation of the default judgment.
First, although Larry acknowledges that the court's grant of default
judgment was interlocutory rather than final, Larry maintains that the default
judgment amounted to a finding that
¶31 Larry's first argument is inherently contradictory. Because, as Larry concedes, the circuit
court's order was interlocutory, Larry has no basis on which to claim that she
was entitled to rely on the order of default judgment as one that would remain
undisturbed unless
¶32 Larry next argues that the affirmative defense of qualified immunity is insufficient to support relief from a default judgment under Wis. Stat. § 806.07(1)(h). Larry contends that, in the absence of any of the circumstances listed in subparts (a) through (f) of § 806.07(1) that permit relief to be granted, the circumstances here are not sufficiently "extraordinary" to permit Rutherford relief under subpart (h) alone. Larry asserts that State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 363 N.W.2d 419 (1985), requires courts reviewing decisions under subpart (h) to first determine whether the party seeking relief has asserted extraordinary circumstances, and, second, if so, to hold a hearing to determine whether the asserted extraordinary circumstances actually are present.
¶33 Larry's arguments are misplaced.
She does not discern the difference between the order issued in M.L.B.
and the order issued here. The holding
in M.L.B. was predicated on a final decision of the circuit
court, not an interlocutory decision, as is the case here.[14] Accordingly, the two-part process described
in M.L.B. does not apply here.
Subpart (h) of
¶34 Larry contests the circuit court's conclusion that
¶35 The circuit court concluded that the complaint alleged that all the officers were engaged in substantially the same conduct and that under the undisputed facts presented to the court at Harris's motion hearing, that conduct did not violate Larry's constitutional rights. The circuit court concluded that all of the officers' actions were discretionary and taken in the course of their official duties as community caretakers. Therefore, all of the officers were entitled to immunity as a matter of law. Accordingly, the facts were sufficiently established for the court to conclude that the doctrine of qualified immunity protected all of the officers from liability.
¶36 Furthermore, Larry does not contest that the entry into her home
was lawful; nor does she contest that Harris and Foster are protected from
liability by qualified immunity and the conduct ascribed to Rutherford in the
complaint largely mirrored the conduct ascribed to Harris. Therefore, the circuit court did not
erroneously exercise its discretion by vacating the default judgment against
C. Summary Judgment
¶37 We
next consider whether the court properly granted judgment in favor of
When a default judgment has been granted against a defendant, no evidence has been developed or submitted regarding the defaulting defendant, the defaulting party has not moved for summary judgment, and the defaulting party has raised no affirmative defenses, can a trial court enter summary judgment in that defendant's favor?
¶38 Larry
contends that the circuit court erred in granting summary judgment to
¶39 In
Wisconsin, the availability of summary judgment is statutory.
(1) Availability. A party may, within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under s. 802.10, move for summary judgment on any claim, counterclaim, cross-claim, or 3rd-party claim which is asserted by or against the party. Amendment of pleadings is allowed as in cases where objection or defense is made by motion to dismiss.
(2) Motion. Unless earlier times are specified in the scheduling order, the motion shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing. (Emphasis added.)
¶40 It
is significant that Wis. Stat. § 802.08(2) sets forth the procedural
conditions for granting summary judgment.
Unless a scheduling order specifies otherwise, § 802.08(2) mandates
that a motion for summary judgment be served at least 20 days before a
hearing on that motion. In raising and granting
summary judgment on its own motion, the circuit court did not provide the
parties 20 days' advance notice of its motion, as required by § 802.08(2).[16]
¶41 State
courts outside our jurisdiction have held that a trial court may grant summary
judgment sua sponte, but only if the court adheres to the
conditions under which summary judgment may be granted. See, e.g., Awada v. Shuffle
Master, Inc., 173 P.3d 707, 712 n.26 (
¶42 In
Soebbing, the Nevada Supreme Court held that the trial court erroneously
exercised its discretion in granting summary judgment sua sponte,
because it did not give the parties the requisite notice contained in Nev. R.
Civ. P. 56(c).
¶43 A court's sua sponte grant of summary judgment
without complying with the statutory prior notice requirement deprives parties
of an opportunity to bring forth all of their evidence. See, e.g., Del Hayes &
Sons, Inc. v. Mitchell, 230 N.W.2d 588, 591-92 (
¶44 Our
decision should not be read to leave the circuit court hamstrung on remand,
without any authority to grant judgment in favor of
III. CONCLUSION
¶45 In sum, we conclude that the circuit court did not erroneously
exercise its discretion in vacating the default judgment it had granted against
Rutherford because
¶46 Accordingly, we affirm in part; reverse in part and remand the cause to the circuit court for further proceedings consistent with this opinion.
By the Court.—The decision of the court of
appeals is affirmed in part; reversed in part and the cause is remanded to the
circuit court for further proceedings consistent with this opinion.
¶47 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I
agree with the majority opinion that "a court may act on its own motion
pursuant to [Wis. Stat.] § 806.07, as long as the court provides the
parties notice of its action and an opportunity to be heard."[19] I
write separately because the majority opinion erroneously concludes that the
circuit court in the instant case gave the plaintiff notice of its action and
the opportunity to be heard when acting on its own motion under Wis. Stat. § (Rule) 806.07.
¶48 The
circuit court in the instant case acted "on its own motion under Wis.
Stat. § 806.07 . . . without prior notice to the parties that it
was considering such" action.[20] Because the circuit court did not give the
plaintiff notice that the circuit court would act on its own motion under Wis.
Stat. § 806.07 to vacate
the order for a default judgment in the plaintiff's favor, the plaintiff
obviously had no opportunity to be heard on the matter prior to the court's
action. The circuit court granted the
motion under Wis. Stat. § 806.07 at the same time that it raised it.
¶49 Although
acknowledging that the circuit court failed to provide notice to the plaintiff
and an opportunity to be heard prior to acting on its own motion under Wis.
Stat. § 806.07, the
majority opinion concludes that the circuit court (retroactively) supplied the
requisite notice and opportunity to be heard when the plaintiff moved for
reconsideration of the circuit court's decision and the circuit court invited
briefs from the parties. Majority op., ¶27.
¶50 The plaintiff's opportunity to be heard upon her motion for reconsideration cannot substitute for an opportunity to be heard prior to the decision which the plaintiff moved the circuit court to reconsider. With respect to her motion for reconsideration, the plaintiff, as the moving party, carried a burden that she would not have carried if given a timely opportunity to be heard before the circuit court acted on its own motion under Wis. Stat. § 806.07.
¶51 I concur in the mandate, however, because I conclude that the circuit court's error is not prejudicial under the circumstances of the instant case. I would follow Gittel v. Abram, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, in which the court of appeals held that although the circuit court erred in failing to provide Gittel with notice and the opportunity to be heard on the issue of the court's authority under Wis. Stat. § 806.07, the circuit court's error was not prejudicial because the court of appeals reviewed all of Gittel's arguments de novo and decided them against Gittel.[21]
¶52 For the reasons set forth, I concur in the mandate but write separately.
¶53 LOUIS
B. BUTLER, JR., J. (concurring
in part, dissenting in part). I
agree with the majority that the circuit court erred in sua sponte granting summary
judgment in Rutherford's favor because it failed to give the notice required by
Wis. Stat. §§ 806.07(1)
and 802.08(2) before granting summary judgment to a defaulting party who never
appeared in the action. See
majority op., ¶¶22-26, 44.
However, I disagree with the majority's
holding that the circuit court did not also err in sua sponte vacating the
default judgment against Rutherford pursuant to Wis. Stat. § 806.07(1), despite the
lack of prior notice to the parties before vacating the default judgment. See id., ¶¶19-29. With
¶54 The majority correctly cites Gittel v. Abram, 2002 WI App 113, ¶27, 255 Wis. 2d 767, 649 N.W.2d 661, as holding that before a circuit court grants relief from its own orders sua sponte under Wis. Stat. § 806.07, it must provide parties with requisite notice of its actions, along with an opportunity to be heard. Majority op., ¶¶20, 22. However, I cannot go along with the majority's attempt to distinguish Gittel by contending that because in the case at hand Larry had an opportunity to be heard ex post facto, the requirements identified in Gittel were met. See majority op., ¶¶27-29.
¶55 The majority glosses over the fact that notice was not given by the
judge before sua sponte vacating the default judgment. The majority states that "[a]lthough
giving prior notice to a sua sponte action by a circuit court under Wis. Stat. § 806.07 is preferable,
Larry does not argue that she was prejudiced by the late notice." Majority op., ¶27. This
description of prior notice as merely "preferable" contradicts the
majority's acknowledgement that notice is a requirement, with Gittel
stating that "a court has the authority to raise an issue sua sponte if it
gives the litigants notice that it is considering the issue and an opportunity
to argue." Gittel, 255
¶56 Furthermore, Gittel establishes that when a court acts on
its own motion under Wis. Stat. § 806.07,
"parties must have [both] notice and the opportunity to be
heard." Gittel, 255
¶57 Not only is this an incorrect articulation of the rule described in Gittel, but in attempting to distinguish Gittel, the majority misportrays the facts of both Gittel and the present case. The majority suggests that in this case, but not in Gittel, the parties were given the opportunity to brief the issue, which then sufficed as notice. Majority op., ¶27 & n.13. However, a careful reading of Gittel leads to a different conclusion. In both this case and in Gittel, any "opportunity to be heard" took place only after the parties filed motions for reconsideration objecting to the court's sua sponte order that had already been issued without notice or opportunity to be heard at that point in time.
¶58 In Gittel, the court held that the specific reason Gittel's
right to notice was violated was "because the court did not refer to [Wis.
Stat.] § 806.07 until the
written order denying Gittel's motion for reconsideration without a
hearing." Gittel, 255
¶59 Finally,
the majority treats the individual parties in this case as interchangeable,
implying that because advance notice was given by the circuit court that it was
considering summary judgment against Harris, then such notice included vacating
default judgment as to Rutherford as well, even though the notice did not
mention Rutherford. Although the alleged
conduct of two parties may be the same, that does not mean that every legal
filing, notice or order mentioning one automatically incorporates another party
not named, particularly when the unnamed individual has never made a single
appearance in court. See Estate
of Otto v. Physicians Ins. Co., 2008 WI ___, ¶¶9, 13, ___
¶60 The
majority's statement that "Larry does not argue that she was prejudiced by
the late notice," majority op., ¶27,
does not remedy the problem. Whether or
not Larry has specifically argued that any prejudice resulted from the late
notice, this court should not undermine the legal requirements of prior notice
along with an opportunity to be heard as prerequisites for a court to sua
sponte vacate a default judgment order, or any other order under Wis. Stat. § 806.07.
¶61 For the above reasons, although I agree the majority's mandate
reversing the court of appeals, rather than remand for further proceedings
consistent with the default judgment against
[1] Larry v. Harris,
2007 WI App 132, 301
[2] The Honorable Daniel A.
Noonan of
[3] All subsequent references to the Wisconsin Statutes are to the 2005-06 version, unless otherwise noted.
[4] Harris and Rutherford are mentioned by name in Larry's complaint. Foster is referred to as a third officer present, but not by name. In contrast to the complaint, which alleges that three officers were present, the respective affidavits of Harris and Foster aver that they were the only two officers present during the search.
[5] Many facts underlying
this appeal are disputed, but their irresolution is inconsequential for
purposes of this appeal, because we are not considering the merits of Larry's
claims. Rather, we are considering only
whether the circuit court erroneously exercised its discretion. Nevertheless, in our presentation of the
facts, we adhere to the law governing how they are to be viewed on a review of
summary judgment. As a review of a
summary judgment requires, we consider the disputed "facts in the light
most favorable to the non-moving party."
See, e.g., DeHart v.
[6] The man has not been identified.
[7] The complaint implicates the actions of three officers, but does not make clear which two officers pursued Larry's passenger. Nor does the complaint make clear which of the officers among the three alleged to be present performed the subsequent actions described.
[8] Apparently, a drug buy occurred when Larry was at the service station. The officers' subsequent questioning of Larry caused them to believe she had no involvement in it.
[9] The court of appeals
opinion appears to state as fact that "[t]he officer who entered [Larry's
home], looked at pictures, opened doors, woke the children and asked them
questions, and also questioned the babysitter." Larry, 301
[10] The nature of the
dismissal of Larry's claim against Rutherford is not clear, i.e., the circuit
court did not say it was granting "summary judgment" in favor of
[11] The court ultimately
concluded, however, that Gittel was not prejudiced by the circuit court's
action. It so concluded because Gittel
did not identify any argument regarding the circuit court's authority that she
could have made to the circuit court that she could not make on appeal. Gittel
v. Abram, 2002 WI
App 113, ¶29, 255
[12] We note, as well, that
we have previously observed that a circuit court "apparently has authority
to rescind at least part of its order and decision under Wis. Stat. § 806.07(1)(h) as long
as both parties have adequate notice."
State v. Morford, 2004 WI 5, ¶55 n.45, 268
[13] Contrary to the
concurrence/dissent's suggestion, we do not depart from the rule in Gittel
requiring notice of a sua sponte action pursuant to Wis. Stat. § 806.07. Concurrence/dissent, ¶2. Notice is
required; prior notice is preferable.
Although the circuit court here did not give prior notice in
regard to vacating the default judgment against Rutherford, the court did give
an opportunity to fully address the vacation of the default judgment in regard
to
[14] In State ex rel.
M.L.B. v. D.G.H., 122
[15] We disagree with the
State's assertion that Larry waived the argument that the circuit court erred
in issuing summary judgment in
[16] This 20-day notice requirement is significantly different from Wis. Stat. § 806.07, which requires notice, but does not set a time prior to the hearing when notice must be given.
[17] Rule 56(c) of Nev. R. Civ. P. provides in relevant part:
(c) Motion and Proceedings Thereon. The [summary judgment] motion shall be served at least 10 days before the time fixed for the hearing. Motions for summary judgment and responses thereto shall include a concise statement setting forth each fact material to the disposition of the motion which the party claims is or is not genuinely in issue, citing the particular portions of any pleading, affidavit, deposition, interrogatory, answer, admission, or other evidence upon which the party relies.
[18] Our decision does not
prohibit
[19] Majority op., ¶20 (citing Gittel v.
Abram, 2002 WI App 113, ¶27,
255
I also agree with the majority opinion that the circuit court erroneously granted summary judgment on its own motion to the defendant Rutherford without complying with the procedural requirements under Wis. Stat. § 802.08(2). I do not address the summary judgment issue in this separate opinion.
[20] Majority op., ¶19. See also majority op., ¶27 ("[T]he circuit court acted on its own motion without prior notice to Larry or any defendant[.]").
[21] See Gittel v.
Abram, 2002 WI App 113, ¶29,
255