*1 Taneceia Larry, Plaintiff-Appellant-Petitioner,
Derrick L. Harris, Defendant, Carlos Rutherford, Defendant-Respondent, Corporation ABC Insurance and Officer John Roe,
Defendants.
Supreme Court
No.
argument January
2005AP2935. Oral
July
—Decided
329 plaintiff-appellant-petitioner For the there were by Legal Group, briefs Robert J. Kasieta and Kasieta LLC, Madison, and A. Steven Porter and A. Steven argument by Porter, Madison, and oral A. Steven Porter. defendant-respondent by For the there was a brief Pings, Cermele, Jonathan Rachel L. & Cermele argument by Associates, S.C., Milwaukee, and oral Pings. Rachel L. by
An amicus curiae brief was filed Anne Berleman Kearney, Joseph Kearny, D. Milwaukee, and Thomas L. Shriner, Jr., Milwaukee, on behalf of themselves as members of the Wisconsin State Bar.
¶ 1. PATIENCE DRAKE ROGGENSACK, J. We appeals1 affirming review a decision of the court of sponte judg- circuit court's2 sua vacation of a default against ment defendant Carlos Rutherford and the sponte grant judgment circuit court's sua Rutherford's favor. We conclude that the circuit court erroneously vacating did not exercise its discretion in 806.07(1) the default because Wis. Stat. (2005-06)3 permits grant judg- a court to relief from a ment or an order. However, we also conclude that the sponte granted circuit court did err when it sua sum- mary judgment in Rutherford's favor because it failed 802.08(2). give prior required by notice Wis. Stat. 1 Harris, App 2007 WI 2dWis. N.W.2d 911.
2 The Honorable County Daniel A. Noonan of Milwaukee presided.
3All subsequent references to the Wisconsin Statutes are to version, the 2005-06 unless otherwise noted.
Accordingly, the and the cause to we reverse remand proceedings this for consistent with court further circuit opinion.
I. BACKGROUND presents law The this case stem from issues Larry's entry without into Taneceia home enforcement's alleged Three officers were to be a warrant. search during entry: present Harris, M'Johno Derrick in the Harris was named Foster and Carlos Rutherford.4 granted complaint, and court his motion for the circuit Larry's summary judgment dismissing claims, which Larry appeal. not Foster never sued. Ruther- did was appear a he defendant, also named but did not ford was in the circuit or circuit court. The otherwise answer judgment against originally granted Ru- default granted therford, but vacated that order and later vacating judgment appeals in his of favor. judg- against entering judgment and the of Rutherford ment in his favor.5 by Larry's are mentioned name Harris Rutherford officer but present, Foster referred as a third
complaint. is alleges that complaint, In which by name. contrast to Harris respective affidavits of present, three officers were only present they aver were the two officers and Foster during the search. disputed, their Many underlying appeal this are but facts appeal, inconsequential purposes this
irresolution is for considering Larry's merits of claims. we are not because Rather, considering only the circuit court are whether we Nevertheless, pre in our erroneously its discretion. exercised they facts, governing how of the we adhere to the law sentation summary judgment. a review viewed on review As are to be a disputed summary requires, we consider the See, non-moving party." light in the most favorable to the "facts *6 evening August ¶ 3. On the 26, 2002, of while Larry gas was at a station, she met a man whom she requested Larry agreed knew.6 He home, a ride and to They proceeded Larry's him drive as far as her house. Larry pulled drive-way, home, and as into the she police pull up noticed an unmarked vehicle behind her. Upon observing presence police, Larry's passen- ger police fled from her vehicle. Two officers7 exited gave they their chase, car and but did not catch him. ¶ Larry's 4. The officers returned to residence, Larry Larry where awaited them outside. consented to a search of her car. The officers found no contraband, but Larry alleges placed that the officers then her in hand- Larry's cuffs. One of the officers said he intended to enter Larry objected. home. She said that her five children asleep, were in the house, some of whom were and that watching Larry alleges her niece was them. that two of objection. the officers entered her home over her She also alleges that the officers conducted a search inside her waking "interrogating" home, which included babysitter. alleges children and their She further that participated [the] Rutherford "éither search or was present" during stop search, but failed to its occur- rence.
e.g.,
Co.,
DeHart v.
7,
Wis. Mut. Ins.
2007 WI
2d
Wis.
However,
6 The man has not been identified. complaint The implicates officers, actions three but does not make clear which pursued two Larry's passen officers ger. Nor does the complaint make clear which of the officers among alleged the three present performed to be subsequent actions described. part, Harris and Foster assert For their
only suit, to this entered Foster, never a who was Larry's Foster without a warrant. home. He did so for less than five he was in the home averred only some- to ensure that minutes, and that he entered age after the children there to look one of suitable was police Larry going taken to the station to be because was ensuring questioning.8 circuit court found that The for entry.9 purpose supervision proper of the child was spoke additionally he to an individual stated that Foster years old, he did be 16 or 17 but he estimated to whom spoke say the children. he whether nei- default when moved for *7 timely her com- nor Rutherford answered ther Harris plaint. respect court denied the motion with The circuit objected and served an answer. Harris after he to granted Larry's motion for However, the circuit court judgment against Rutherford. default summary judgment ¶ for Harris then moved 7. Larry's entry Larry, contending against into that the Larry at the drug buy occurred when was Apparently, a Larry of subsequent questioning The station. officers' service no involvement in it. to believe she had caused them as fact that appeals opinion appears of state The court home], [Larry's pictures, looked at entered officer who "[t]he doors, questions, them woke children and asked opened 2d 2. We babysitter." Larry, 301 Wis. questioned also finding of fact. however, made no such note, that the circuit court summary court, granting in decision circuit its Although the by Larry, it allegations made presented these events as judgment, affidavit, Foster they actually occurred. In his find that did not touch asserting he "did not Larry's allegation, contests or doors on open I did not drawers in the home and anything opinion, Later in its furnishings in the home." any of the respect. assertion this acknowledges Foster's appeals court of Id., qualified immunity protected
home was lawful and that liability. opposing him In from Harris's motion for summary judgment, Larry argued that because her by police home was entered without either a warrant or suspicion, entry presumptively reasonable was un- Moreover, lawful. she contended that Harris's affirma- qualified immunity tive defense of was frivolous. granted ¶ 8. The circuit court Harris's motion for summary judgment. Because the circuit court con- part cluded that actions Harris, on the Foster and scope Rutherford all fell within the of Harris's motion summary judgment, [them] for the court "treated in the although police same manner." The that, court found Larry's officers entered home without her consent and they purpose warrant, without a did so for the ensuring adequately supervised that her children were purpose uncovering and not for the "evidence or . . . activity." criminal granting summary judgment However, giving prior Larry,
Harris and without notice to sponte, judg- also, circuit court vacated the default against granted judgment ment Rutherford and dis- missing Larry's against claims Rutherford.10 moved the circuit court to reconsider the vacation of the judgment, default as well as the dismissal of her claims *8 against Rutherford.
10The nature Larry's against of the dismissal of claim clear, i.e., Rutherford say is not the circuit did it was "summary granting judgment" However, in favor of Rutherford. Larry characterizes the granting circuit court's action as Ruth summary erford judgment. Rutherford dispute does not that Accordingly, characterization. though we address it as granted summary circuit court judgment dismissing Larry's against claims Rutherford. on briefing Larry's The circuit court invited in of her Larry's support brief
motion to reconsider. letter, two sentences consisted of a six-sentence motion her argument: of which addressed asking your we are Honor to The court will recall court, sponte, in an order which the reconsider previously-entered of the De- reopening ordered the Summary Judgment against Judgment fault Defendant, defaulting of the all with- Plaintiff in favor defaulting any argument from the Defendant. out procedure and support can find no for this We request that it be respectfully reversed. brief, argu- submitted a subsequently reply also erred essence, by ascribing that the circuit court
ing, Harris pos- it concluded immunity the qualified to Rutherford as well. sessed for circuit court denied motion Larry's 11. The its reasoning
reconsideration. The court explained Rutherford and against the default vacating as to all officers: Larry's complaint in dismissing judgment should be found that the default [T]he Court no rea- Defendant Rutherford because against vacated hold officer for violation of son existed to liable Complaint. rights under her [Larry's] constitutional reasonable occurred here within a . . . The vacation summary judgment was default because the time after the Court determined the claims Court and before the improper. . .. by Plaintiff were findings dispute the Court's
. . Plaintiff does not . the constitution were not vio- rights her under no Clearly, the Court vacated the default because lated. Complaint under accord- could be held liable officer such, findings; the interests of ing Court's as to the to vacate the default. justice required the Court *9 Larry dispute ¶ 12. did not further the circuit grant summary judgment respect court's with Larry's Harris, decision, i.e., nor the basis for that rights constitutional were not violated and that qualified immunity applies. Larry appealed doctrine of judgment, the vacation of the default as as well entry judgment Rutherford's favor based on appear in Rutherford's failure to the circuit court. appeals The court of It affirmed. reasoned statutory authority grant that a circuit court has judgments long motion, relief from default on its own so provides party adversely as it affected with notice opportunity Larry Harris, and an to be heard. v. 2007 App 132, 1, 243, WI 301 Wis. 2d 733 N.W.2d911. The appeals by inviting briefing court of also concluded that Larry's gave reconsider, on motion to the circuit court opportunity and an sufficient notice to be heard. appeals Id. The court of decision did not address the summary judgment circuit court's decision. Larry petitioned review, for which we
granted.
II. DISCUSSION A. Standard of Review open
¶ 15. Whether to a default is com court, mitted to discretion of the circuit which we under the review erroneous exercise of discretion stan e.g., Physicians See, dard. Corp., v. Edland Wis. Serv. Ins. (1997); 210 Wis. 2d 519 N.W.2d Dugenske Dugenske, 64, 68, 80 Wis. 2d 257 N.W.2d (1977). erroneously A circuit court does not exer cise its if discretion its decision is based on the facts application legal record and on the aof correct stan- *10 Hartung, Hartung 58, 66, 306 102 Wis. 2d dard. (1981). N.W.2d authority court's to vacate a de 16. A circuit summary judgment grant judgment derives
fault
and
§§
Stat.
806.07 and
from
statutes. Wis.
Wisconsin
statutory interpretation
questions of
802.08. We review
benefiting
independently,
from the discussions of
but
appeals. Marder v.Bd.
court and the court of
the circuit
Regents
Sys.,
WI 159,
Univ. Wis.
286 Wis. 2d
B. Wisconsin Stat. judgment Opening the default authority open a default A circuit court's judgment Stat. 806.07. is derived from statute. Wis. 806.07(1) a circuit conditions under which Section lists open may and a default exercise its discretion judgment. provides: It (1) and judgment from or order. On motion
Relief court, just, subject to subs. upon such terms as are (2) (3), may legal representative or relieve a following stipulation for the judgment, from a order or reasons:
(a) inadvertence, Mistake, surprise, or excusable neglect;
(b) entitles a Newly-discovered evidence which 805.15(3); party to a new trial under s.
(c) Fraud, misconduct misrepresentation, or other party; of an adverse
(d) void; judgment is The
(e) satisfied, judgment The has been released or discharged;
(f) judgment upon judgment A prior which the is vacated; based has been reversed or otherwise (g) longer equitable It no is prospective application; should have or (h) Any justifying other relief from the reasons operation judgment. of the previously recognized ¶ 18. We have that Wis. *11 § Stat. 806.07 seeks to strike balance between the judiciary's achieving in interest fair resolutions of dis- putes policy favoring finality judgments. and the § Edland, Indeed, 2d at Wis. 644. 806.07 serves enhancing interests, both "fairness in the administra- justice by authorizing tion of a circuit court to vacate judgments equitable grounds." on various Id. judgment
¶ Here, 19. the circuit court vacated the against Rutherford on its motion under Stat. own Wis. § grounds, equitable prior on 806.07 but without notice parties considering the to that it was such relief from judgment. Our first are tasks to determine whether: (1) sponte the court's sua vacation of Rutherford's (2) judgment, providing default and the court's an opportunity parties for the to be heard after it had judgment, the so, vacated rather than before it did proper constituted exercises of discretion. sponte
a. Sua vacation of default may ¶ 20. The relief that be accorded under Wis. § sought by parties; Stat. 806.07 need not be of the one may pursuant a court act on its 806.07, own motion to the notice of its the court long provides parties as as Abram, to be heard. Gittel opportunity action and an 27, 255 767, 649 2d N.W.2d 661. Wis. App 2002 WI ¶ Gittel, Ruth naming In Persha executed a will Nickolas Abram, representative who was also Persha's personal Id., 1. beneficiary. the as his sole probate proceedings, ¶ will, sister, Gittel, challenged arguing Persha's Mary it the will was invalid because was that part of Abram's undue influence. Id. Because the product by that the will was tainted circuit court concluded incompetent, influence and that the testator was undue Id., 7-8. it refused to will. probate ¶¶ Abram to the court's award of costs objected ¶ Gittel, hearing and the court held a on and fees Id., 8, 10. At hearing Abram's motion. ¶¶ it to do planned notice to the that prior parties without so, the court vacated the of its order portion Id., of undue influence. product declared the will reconsideration, 11. Gittel filed a motion for which denied, authority it had the indicating its order to Wis. Stat. original pursuant vacate 806.07(l)(h). Id., held in Gittel that a 22. The court appeals its is authorized to relief from own grant circuit court *12 under of Wis. Stat. authority orders sua sponte did not 806.07, provide § but that the circuit court Id., 24, notice its action. with the of parties requisite ¶¶ did not The of "Gittel have appeals explained, 29. court specific to be heard on the opportunity notice and the 806.07, § under Wis. Stat. authority issue of the court's § until the court did not refer to 806.07 because Gittel's motion for reconsideration denying written order Id., 29. hearing."11 without ¶
11 concluded, however, ultimately that Gittel was The court action. It so concluded prejudiced by the circuit court's
339
agree
¶ with Gittel that circuit courts are
We
authority
grant relief from their
vested with the
to
judgments,
motion under
Stat.
on their own
Wis.
recognized
of
806.07. We have
a wide swath
contexts
permitted
courts are
to act on their
which Wisconsin
e.g.,
Denomie,
See,
81,
2005
own motion.
Howell v.
WI
(concluding
¶ 19,
130,
282
2d
698 N.W.2d621
Wis.
may inquire,
appeals
motion,
on its
the court of
own
filed); City
claim has been
Sun
whether a frivolous
of
Davis,
738,
19,
Prairie v.
226 Wis. 2d
595 N.W.2d635
(1999) (recognizing
power
courts
the inherent
judgments);
Peterson,
v.
104 Wis. 2d
vacate void
State
(1981) (holding
616, 628, 312
that a circuit
N.W.2d784
motion);
may
pleadings
amend
on its own
State v.
(1978)
Hanson,
237,
212
233,
85 Wis. 2d
270 N.W.2d
(stating
"may
that a circuit court
on its own motion
testimony
[a case]
reopen
in order make
for further
complete
equity
a more
record in the interests of
justice"); Behning
Mfg. Co.,
2d
Star Fireworks
57 Wis.
(1973) (concluding
183, 188, 203 N.W.2d655
that circuit
may,
grant
motion,
courts
on their own
a new trial
justice).12
recognition
the interests of
The wide
sponte comports
act
courts' abilities to
with the
identify
argument
regarding
because
did not
Gittel
authority
circuit court's
that she could have made to the circuit
Abram,
appeal.
court that she could not make on
Gittel v.
2002
113,
29,
767,
App
255
2d
649
WI
Wis.
N.W.2d
12
note, well,
previously
We
as
that we have
observed that a
authority
"apparently
part
circuit court
has
to rescind at least
806.07(1)(h)
long
its order and decision under Wis. Stat.
as
as
Morford,
parties
adequate
both
have
notice." State v.
2004 WI
n.45,
Although
2d
Wis.
strue authority. sponte under its sua act hearing Notice and b. sponte actions ¶ above, sua As we recounted 26. 806.07(1) § permissible if the court Stat. under Wis.
are oppor- parties provides and an notice of its action ¶ tunity 27. The Gittel, 255 2d heard. Wis. to be the circuit court had that court in Gittel concluded adequate parties provided vacated its notice when it prod- declaring will was that Persha's initial order ¶ The circuit court Id., undue influence. uct of during hearing portion a on of its order that withdrew assignment objection to the circuit court's Abram's grounded in ¶¶ was 8, 11. Abram's motion Id., costs. allocating theory erred in the circuit court had that concluding that the had erred because the court costs product ¶ Id., At the influence. of undue was the will hearing, opening asked the circuit court motion of the requesting attorney the court if he was Abram's relating portion to undue of its order reconsider the affirmatively. attorney Id., answered influence, and the although appeals that, concluded 10. The court question undue counsel about to Abram's circuit court's attorney gave that it was some notice influence Gittel's reconsidering previous perhaps order, had Gittel its may vacate that the circuit court insufficient notice portion have notice Id., 29. Gittel did not of its order. pursuant acting sponte sua the circuit court was § to 806.07 circuit court referred until the 806.07 Id. for reconsideration. of Gittel's motion its denial sharp to the here stand in contrast 27. The facts though court acted on the circuit facts in Gittel. Even prior or notice to its motion without own Gittel, the circuit had in defendant, as the circuit court provided here, court opportunity unlike Gittel, the circuit court in an parties by inviting for the to be heard briefing Although giving prior on the issues. notice to a sponte by action a circuit court under Wis. Stat. preferable, Larry argue 806.07 is does not that she was prejudiced by the late notice.13 Furthermore, she did objecting vacating submit a letter brief the default judgment, complete reply as well as a more brief. The arguments court considered her and then issued a opinion addressing written them. Under these circum- *15 permitted Larry opportu- stances, the circuit court an nity to be heard. vacating judgment,
¶ In 28. the default the circuit court related that all the officers were accused sub- stantially complaint. the same conduct under the The explained given summary judgment court the ma- regard terials submitted to Harris's motion for sum- mary judgment, Larry's rights it was clear that had not by opined been violated the officers' conduct. The court judgment its decision to vacate the default was equity, explained, based on as it further "no could officer Complaint according be held liable under the to the findings; justice required Court's such, as the interests added.) (Emphasis the Court to vacate the default." 13Contrary to the suggestion, we do concurrence/dissent's depart from requiring the rule in Gittel notice of a sua sponte pursuant action to Wis. Stat. 806.07. Concurrence/ dissent, 54. required; prior Notice is preferable. notice is Although the circuit court here give prior did not notice in regard vacating judgment to the against Rutherford, default give court did an opportunity fully to address the vacation of the judgment default in regard to upon Larry's Rutherford motion addition, for reconsideration. In provided Larry the court with notice and an opportunity to be heard in hearing advance of its summary Harris's motion for judgment based on the same alleged against conduct as was Rutherford. no exercise of discretion. 29. see erroneous We power sponte sua under Wis.
The had the to act court legal thoroughly explained and 806.07, and it Stat. equitable its to vacate the default for decision bases Larry given opportunity judgment. addition, an In was circuit heard decision of the to be and written arguments. carefully her it considered Accord- shows erroneously ingly, exercise its the circuit court did not vacating judgment sponte default discretion against Rutherford. Larry's position arguments Larry oppo- in her advances two the default to the circuit court's vacation of
sition although Larry acknowledges judgment. that the First, interlocutory grant judgment of default was court's final, than maintains that default rather finding that Rutherford was amounted entitling Larry damages. Larry liable, contends that rely order unless she was entitled to on court's good appeared or Rutherford later showed cause *16 Larry's neglect failing excusable for to answer com- Larry argues plaint. Second, that the affirmative de- qualified immunity of that circuit as- fense qualify as is insufficient to an cribed Rutherford required "extraordinary relief circumstance" for from 806.07(l)(h). Accordingly, § judgment under Wis. Stat. erroneously Larry that the circuit court exer- contends judgment by vacating a cised its discretion default against appeared had and entered a defendant who extraordinary showing had no that circum- who made Larry's complaint. his failure to answer stances caused availing. argument is Neither
344
Larry's
argument
inherently
¶ first
is
contra
dictory.
Larry
Because,
concedes,
as
the circuit court's
interlocutory, Larry
order was
has no basis on which to
rely
claim that she was entitled to
on the
order
judgment
default
as one
would remain undisturbed
appeared
unless Rutherford
to contest it. An interlocu
tory
may
judgment
order
remain in doubt until
is final.
See Maxcy Simonson,
658,
v.
130
Wis.
110 N.W.803
(1907).
many years,
For
Wisconsin law has
an
defined
interlocutory order
one in
as
which "the substantial
rights
parties
of the
involved in the action remain
[on occasion]
undetermined and
when the cause is
DOR,
retained
further
for
action." Pasch v.
58
2dWis.
(1973).
346, 354,
¶ are does She not discern the difference between the order issued holding M.L.B. the order issued here. The M.L.B. predicated court, was on a decision of circuit final
345 interlocutory decision, as is the case here.14 an not Accordingly, process two-part in M.L.B. the described (h) apply Subpart Stat. not Wis. does here. 806.07(1) permits a from a court to relieve justifying "[a]ny judgment or an order for other reasons operation judgment." As have of the we relief from the fully explained, set the circuit court out circum- justified equitable relief from the default stances that judgment. conclusion contests the circuit court's protected immunity. by qualified She Rutherford is
that court could determine that contends that the circuit not qualified immunity protected by without Rutherford is development relating par- to of facts Rutherford's entry ticipation in the into her home. that the com- 35. The circuit court concluded engaged
plaint alleged that all the officers were substantially the same conduct and that under undisputed presented at facts to the court Harris's
14 D.G.H., 536, 537, In rel. 122 2d 363 State ex M.L.B. Wis. (1985), sought agreement D.G.H. relief from an N.W.2d signed accepted declaring he court him the had and that the had The had father of M.L.B.'s child. Id. at 537-38. submitted at adjudging a final order D.G.H. as the father. Id. time, unemployed, years was old at the was was D.G.H. represented by counsel had no blood test taken to confirm later, years Id. at D.G.H. discov parenthood. his 540-41. Four provided agency ered that M.L.B. had a state false statements parenthood about of her child. Id. at that cast doubt D.G.H.'s addition, 541. In a blood test revealed D.G.H. was not statements, father. Id. Weheld that the false which had induced father, designated along be agree with D.G.H. circumstances, extraordinary collection of other constituted justified granting D.G.H. relief under Wis. circumstances that 806.07(1)(h). Stat. Id. at 553-54. *18 hearing, Larry's
motion that conduct did not violate rights. constitutional The circuit court concluded that discretionary all of the officers' actions were and taken community in the course their official duties as Therefore, caretakers. all the officers were entitled to immunity Accordingly, as a matter of law. the facts were sufficiently established for the court to conclude that qualified immunity protected the doctrine of all of the liability. from officers Larry Furthermore, does not contest that entry her lawful; into home was nor does she protected
contest that Harris are and Foster from by liability qualified immunity and the conduct ascribed complaint largely to Rutherford in the mirrored the Therefore, conduct ascribed to Harris. the circuit court erroneously by vacating did not exercise its discretion judgment against pursuant the default Rutherford, § 806.07(l)(h), Wis. Stat. due to the common conduct complaint from which the arose. Summary Judgment
C. properly ¶ 37. Wenext consider whether granted judgment dismissing in favor of Rutherford Larry's complaint. very We adhere to the narrow for- Larry presented issue, mulation this as it in her petition question for The review. we are asked to is as answer follows: granted a against
When default has been defendant, developed no evidence has been or submit- defaulting defendant, regarding defaulting ted summary judgment, has not moved for and the defaulting party defenses, has raised no affirmative can summary judgment a trial court enter in that defendant's favor? erred circuit court contends upon summary judgment granting its to Rutherford response, circumstances. In
own motion under these object Larry did before the contends that State In the the issue is waived.15 circuit court and therefore quali- alternative, contends that Rutherford's the State immunity the circuit court's fied grant suffices render *19 appropriate. judgment in Under the his favor
of agree very issue, of our review of this we narrow focus Larry. with availability summary
¶ Wisconsin, the 39. In Statutory § judgment statutory. is Wis. Stat. 802.08. begins language. interpretation the with statute's language Kalal, If of the 2d the 271 Wis. plain, meaning apply is then we is clear and its statute controversy meaning us. Id. Section that to the before part: provides in 802.08 relevant (1)Availability. may, partyA within 8 months of the complaint or within the time filing of a and summons 802.10, s. move for scheduling in a order under set claim, counterclaim, summary judgment cross- on by claim, 3rd-party asserted or or claim which is disagree with the State's assertion waived We summary issuing the court erred in argument the circuit support favor. In of her motion to judgment in Rutherford's asking reconsider, "The court will recall we are Larry wrote: court, the your to reconsider an order which Honor previously-entered sponte, reopening the Default ordered Judgment against Judgment Summary and the Plaintiff added.) (Emphasis defaulting Defendant...." favor of the summary Larry objected entry before the appeals. court of circuit court and briefed the issue Accordingly, Larry preserved the issue for our review. against party. pleadings Amendment of is allowed as in objection cases where or defense by is made motion to dismiss.
(2) Motion. Unless earlier times specified are in the order, scheduling the motion shall be served at least 20 days the time hearing and the before fixed for adverse affidavits, shall serve opposing any, if at days least 5 before the time fixed hearing. for the added.) (Emphasis 802.08(2) significant § It is that Wis. Stat. procedural sets granting forth the conditions for sum- mary judgment. scheduling specifies Unless a order 802.08(2) otherwise, mandates that a motion for sum- mary judgment days be served at least 20 before hearing raising granting on that In motion. sum- mary judgment motion, on its own the circuit court did provide parties days' advance notice of its 802.08(2).16 required by motion, as jurisdiction 41. State courts outside our have may grant summary judgment held that a trial court *20 sponte, only sua but if the court adheres to the condi summary judgment may granted. tions under which be e.g., See, Master, Inc., Awada v. 173 P.3d Shuffle (Nev. 2007). Supreme 712 n.26 The Nevada Court has " although that, observed trial courts have the 'inherent power summary judgment sponte,' to enter sua power subject requirements [Nevada's is to the of rule procedure governing summary judgment.]" for civil Id. (quoting Soebbing Carpet Barn, Inc., 847 P.2d (Nev. 1993)). summary judgment 735 Nevada's civil procedure 56(c), proce- rule, Nev. R. Civ. E sets forth 20-day This requirement notice significantly is different 806.07, from Wis. Stat. requires notice, which but does not set prior a time hearing to the when notice given. must be requirements that be met before a court
dural must procedural require- summary judgment.17 grants Those response, motion, and ments "the service of a include pass of time that must before a a minimum amount hearing on motion can be conducted." Id. Soebbing, Supreme
¶ 42. Court held In the Nevada erroneously in that the trial court exercised its discretion summary judgment sponte, granting it sua because did give parties requisite the notice contained Nev. not the 56(c). After the moved R. Civ.E Id. at 735-36. defendant summary judgment, plaintiff amend the moved to his for granted complaint. Id. at 733. The court first amended immediately plaintiffs However, Id. thereaf- the motion. granted with re- ter, the court the defendant's motion complaint, spect plaintiffs it, and the first amended sponte, summary judgment plaintiffs granted the sua on yet-to-be-filed complaint. at amended Id. second provide plaintiff Because trial court did 56(c) requires days' E before full ten notice Nev. R. Civ. summary may granted, sponte grant its sua be dismissing plaintiffs summary judgment second of complaint of constituted an erroneous exercise amended discretion. See id. at 735-36. summary judg- grant sponte 43. A court's complying statutory prior
ment requirement deprives notice without with
parties opportunity bring of an 56(c) part: provides Rule R. E in relevant Nev. Civ. (c) judg- Proceedings [summary Thereon. The Motion and days ment] be served at least 10 before the time fixed motion shall summary judgment responses hearing. for for the Motions setting each fact thereto shall include a concise statement forth disposition is material of the motion which the claims to the issue, citing particular portions genuinely is not or *21 admission, affidavit, deposition, interrogatory, answer, pleading, or upon other which the relies. evidence
350 e.g., Hayes See, Sons, forth all of their evidence. Del & (Minn. 1975). Mitchell, Inc. 230 N.W.2d 591-92 provide The circuit court the case before us did not parties days prior provide 20 notice, or otherwise parties scheduling specifying a order a shorter time period it within which intended to decide whether to 802.08(2) grant summary judgment, § as Wis. Stat. re quires. granted summary judg Instead, the circuit court against Larry prior ment result, without notice. As a apprised was not that she had come forward Accordingly, with all of her evidence. circuit because the granting judgment court's action in in favor of Ruther 20-day ford on its own motion was inconsistent with the prior required by summary judgment notice Wisconsin's erroneously granted summary statute, the circuit court Soebbing, Accord, for Rutherford. P.2d at 735-36.
¶ 44. Our decision should not be read to leave the hamstrung circuit court remand, on without author- ity grant judgment favor Rutherford. To the contrary, granting judgment may in favor of Rutherford appropriate, given be that Harris and are the Rutherford objects substantially allegations similar factual invok- ing qualified immunity However, the same defense. we granting summary judgment, that in stress circuit courts procedural requirements must adhere to either the 802.08(2), days prior Wis. Stat. for 20 notice, or of a scheduling specifying period order a shorter time within summary judgment may granted.18 which be Provided they 802.08(2), adhere to the strictures of circuit have courts wide discretion to determine a whether plaintiffs claim can survive as a matter of law. prohibit filing Our decision does not Rutherford from summary judgment
motion for on remand.
III. CONCLUSION the circuit court ¶ conclude that sum, In we vacating erroneously its discretion exercise did not granted against Rutherford it had the default judgment statute, Wis. from relief because Wisconsin's 806.07(1), § permits However, action. we such an Stat. it when circuit court did err that the also conclude sponte granted summary judgment in Rutherford's by required give the notice it failed to favor because 802.08(2). § Wis. Stat. Accordingly, the
¶ and remand we reverse proceedings con- for further the circuit court cause to opinion. this sistent with appeals
By of the court of decision the Court.—The to the circuit is remanded and the cause is reversed opin- proceedings this consistent with for further court ion. {concur-
¶ ABRAHAMSON, C.J. S. 47. SHIRLEY majority opinion ring). agree that "a court the I with Stat.] [Wis. pursuant may to motion act on its own parties long provides § notice the the court 806.07, as as opportunity I be heard."1 write its action and an erroneously majority opinion separately the because gave in the instant case circuit court concludes that the opportunity plaintiff the its action and notice of acting under Wis. on its own motion be heard when (Rule) § 806.07. Stat. 1 Abram, App (citing 2002 WI Majority op., Gittel 661). 767, 2d 255 Wis. N.W.2d circuit court majority opinion that the agree with the
I also on own motion to summary judgment its erroneously granted proce- complying with the without the defendant Rutherford 802.08(2). not § I do under Wis. Stat. requirements dural opinion. separate summary judgment issue this address court in instant case acted 48. The circuit . . "on its own motion under Wis. Stat. 806.07 . with- parties considering prior that it was out notice to give such" action.2 Because the circuit court did plaintiff that the act on its notice circuit would motion under Wis. Stat. 806.07 to vacate own *23 plaintiffs favor, in the the order for a default plaintiff obviously opportunity had no to be heard on prior circuit the matter to the court's action. The court § granted the motion under Wis. Stat. 806.07 at same time that it raised it. Although acknowledging
¶ 49. that the circuit plaintiff provide and an court failed to opportunity notice to acting prior to be heard on its own majority opinion 806.07, the motion under Wis. Stat. (retroactively) supplied concludes that the circuit court requisite opportunity notice and to be heard when plaintiff for reconsideration of the circuit moved briefs from court's decision and the circuit court invited parties. Majority op., ¶ upon plaintiffs opportunity ¶ 50. The to be heard for an her motion for reconsideration cannot substitute prior opportunity to be heard to the decision which plaintiff circuit to reconsider. With moved the plaintiff, respect reconsideration, the to her motion for moving party, carried a burden that she would as the given timely opportunity if to be not have carried the circuit court acted on its own motion heard before under Wis. Stat. 806.07.
¶ I mandate, however, I in the because concur prejudicial that the circuit court's error is not conclude ("[T]he Majority op., majority op., 19. See also 27¶ notice to prior circuit court acted on its own motion without defendant!.]"). or of the instant case. I would under the circumstances App Abram, 2002 WI 255 Wis. 2d follow Gittel v. appeals 661, in held 767, 649 N.W.2d which the court of although failing the circuit court erred in opportunity provide notice and the to be Gittel with authority of the court's under Wis. heard on the issue prejudi § 806.07, the Stat. circuit court's error was appeals all cial because the court of arguments reviewed of Gittel's against de novo and decided them Gittel.3 forth, I concur in the 52. For the reasons set separately. but mandate write (concurring BUTLER, JR., 53. LOUIS B. J. in majority part, dissenting pari). agree I with the summary sponte granting the circuit court erred give judgment in it failed to Rutherford's favor because 806.07(1) §§ required by the notice Wis. Stat. 802.08(2) granting summary judgment before to a de- faulting party appeared in the action. who never See *24 majority op., disagree ¶¶ 23-26, However, 37-44. I with majority's holding that the circuit did not also the court vacating against sponte judgment err the default 806.07(1), § pursuant despite Rutherford to Wis. Stat. prior parties vacating the the lack of notice to before the judgment. ¶¶ id., default See 20-29. With Rutherford appearing being as a and no notice never given advance
by prior vacating judg- to the the court default vacating ment, I find the court's order default just prior notice to be as erroneous as its order without granting summary judgment prior without notice. majority correctly
¶ Abram, 54. The cites Gittel v. App ¶ 113, 27, 767, 2002 WI 255 Wis. 2d 649 N.W.2d holding grants 661, as that before a circuit court relief 3 Abram, See 113, 29, Gittel App 2002 255 Wis. 2d WI ¶ 767, 661. 649 N.W.2d
354 sponte under Wis. Stat. orders sua from its own parties requisite provide notice of with 806.07, it must opportunity along heard. an to be actions, with its along go Majority op., ¶¶ However, I cannot 20, 22. distinguish by attempt majority's to Gittel with Larry contending at hand had in the case that because post require- opportunity facto, ex to be heard an majority op., met. See identified Gittel were ments ¶¶ 27-29. majority glosses no-
¶ over the fact that The sponte by judge given before sua tice was vacating majority judgment. The states that the default " by giving prior sponte [although action notice to a sua preferable, Stat. 806.07 is circuit court under Wis. by argue prejudiced the late that she was does not description prior Majority op., ¶ 27. This notice." majority's merely "preferable" contradicts notice as requirement, acknowledgement notice is a with authority stating to raise an that "a court has the Gittel litigants sponte gives notice that it is if it issue sua argue." opportunity considering and an the issue (citing Holmes, Gittel, 767, 24 State v. Wis. 2d (1982)). A 40-41, 2d 315 N.W.2d 106 Wis. requirement just "preferred." requirement A is is not required. that when a Furthermore, establishes Gittel § 806.07, under Stat. acts on its own motion Wis. opportunity [both]
"parties and the must have notice (emphasis Gittel, 2d 255 Wis. be heard." added). incorrectly collapses majority these two The parties arguing requirements one, that because into *25 "oppor- majority as describes in this case had what the tunity requirement was heard," be then the notice to majority op., ¶ & n.13. satisfied as well. See only ¶ 57. Not is this an incorrect articulation of attempting Gittel, the rule described guish but in distin- to majority misportrays Gittel, the the facts both present majority suggests Gittel and the case. The that parties given Gittel, case, in this but not in the were opportunity issue, to brief the which then sufficed as Majority op. ¶ However, notice. 27 & n. 13. a careful reading of to a Gittel leads different conclusion. In both any "opportunity Gittel, this and in case to be heard" place only parties took after the filed motions for recon- objecting sponte sideration to the court's sua order that already opportunity had been issued without notice or point heard at that be time. specific Gittel, In 58. the court held that right reason Gittel's notice was violated was "because [Wis. Stat.] § the court did not refer to 806.07 until the denying written order Gittel's motion for reconsidera- hearing." Gittel, tion without a Similarly, 255 Wis. 2d case, in this it was not until after the order already brought had been vacated and herself requirements of Wis. Stat. 806.07 to the attention of through the circuit court her letter brief and reconsid- Larry's eration motion that the court denied motion for hearing. reconsideration without a Finally, majority ¶ treats the individual parties interchangeable, implying in this case as given by because advance notice was the circuit court considering summary judgment against it was vacating Harris, then such notice included default though as well, to Rutherford as even majority op., notice did not mention Rutherford. See Although alleged ¶ 27 & n.13. conduct of two parties may every same, be the that does not mean that legal filing, mentioning notice or order one automati- cally incorporates particu- named, another *26 larly has never made a individual the unnamed when Physi single appearance See Estate Otto court. ¶¶ 9, 13, 311 Wis. 2d Co., cians Ins. 2008 WI summary judgment given that If notice is N.W.2d805. the notice is silent Harris, as to but considered will be judgment respect vacating to Ruth with default as to Larry requiring the notice was to assume that erford, hardly others not mentioned to refer to also meant "adequate notice." constitutes "Larry majority's does The statement prejudiced by argue notice," the late that she was remedy problem.
majority op., ¶ 27, does not argued any specifically has or not Whether prejudice notice, late this court from the resulted legal requirements prior undermine the should not prereq- along opportunity heard as to he notice with an sponte vacate a default a court to sua uisites for judgment Stat. order under Wis. order, or other § 806.07. although agree reasons, I 61. For the above appeals, reversing
majority's the court mandate proceedings consistent further rather than remand for being against Rutherford with the default default reinstate the vacated, court should instead this part, respectfully judgment. concur I therefore part. dissent in