PJL Properties, LLC v. Lawrence P. Recla and June M. Recla

PJL Properties, LLC (solely owned by Peter J. Long)
appeals from an order denying a motion to reopen a small claims default
judgment. Long contends that the circuit court erred when it denied his motion to
reopen the judgment dismissing his claim and granting the counterclaim made by
June M. Recla and her son Lawrence. Long presents several issues on appeal,
challenging the circuit court's rulings on valid service of the Reclas' counterclaim,
the merits of the Reclas' counterclaim, and the timeliness of Long's motion to
vacate or reopen. We have reviewed the record supplied by Long, together with
the briefs of both parties, and we ascertain no error. Accordingly, we affirm the
order denying Long's motion to vacate or reopen the default judgment.

BACKGROUND

2 On May 7, 2004, Long filed a summons and complaint against the
Reclas for moving out of their apartment without giving proper notice and for
damaging the property. The Reclas filed a counterclaim against Long, asserting
that they gave proper notice to vacate the apartment and that the property damage
existed prior to their tenancy. The Reclas' counterclaim sought compensation for
their security deposit plus interest, travel expenses to court, lost wages, time to
prepare for court, and legal advice sought totaling $850.

3 Long failed to appear at a court-ordered mediation orientation on
June 24, 2004; therefore, the court commissioner entered a default judgment
dismissing Long's complaint and granting the Reclas' counterclaim. The notice of
entry of judgment, dated June 25, 2004, indicates that a copy was mailed to Long
at 320 E. Doty Ave, Neenah, WI 54956. Long filed his first motion to reopen on
July 12, 2004, explaining that the matter should be reopened because he had many
cases pending and had "mis-entered the mediation date in [his] calendar." The
court commissioner set a hearing date of August 5. Long again failed to appear
and his motion was denied.

4 Long took no further action until January 26, 2007, when he filed a
second motion to reopen. Long characterized his failure to appear at the August 5,
2004 hearing as "excusable neglect" and stated as follows: "Peter J. Long was
incarcerated at the time he was supposed to appear. We (sic) were never served
paperwork about garnishment…. [The Reclas] never gave 60 day notice. They
gave verbal commitment, then moved out in the middle of the night." The court
commissioner summarily denied this motion on February 2, 2007, holding that
Long failed to comply with WIS. STAT. § 799.29(1)(c), which requires a motion to
reopen to be filed within one year of a small claims default judgment.

5 Shortly thereafter, on February 21, 2007, Long filed a third motion,
this time moving the court "to vacate or reopen small claims judgment and order."

This was Long's first attempt to vacate as an alternative to reopening the judgment
and he now sought relief under WIS. STAT. § 806.07(1)(c) and (h).
SECTION 806.07 states in relevant part:

(1) On motion and upon such terms as are just, the court,
subject to subs. (2) and (3), may relieve a party … from a
judgment [or] order … for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

….

(c) Fraud, misrepresentation, or other misconduct of an
adverse party;

….

(2) The motion shall be made within a reasonable time,
and, if based on sub. (1)(a) or (c), not more than one year
after the judgment [or order] was entered ….

At a hearing on April 20, 2007, the court commissioner denied Long's motion.
The April 20 order is not in the record but appears on the small claims court record
summary; therefore, we know the motion was denied but we do not know why.2

It is the appellant's responsibility to provide this court with a complete record.
When an appellate record is incomplete in connection with an issue raised by the
appellant, we must assume that the missing material supports the ruling below.
See State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct.
App. 1986).

6 Long followed with another letter on May 21, advising the court of
his intent to appeal from the April 20 order and seeking review by a circuit court
judge. He enclosed a motion to vacate or reopen that was identical to the motion
he had filed in February. He requested that his motion be heard prior to an
upcoming garnishment hearing. Long's motion was heard in conjunction with the
garnishment hearing before a court commissioner and the motion was denied on
June 18.

7 On June 21, Long filed a "motion to appeal" the June 18 order. In
his motion, he invoked WIS. STAT. § 799.207, but did not explain the relevance.
He further asserted that his motion to reopen should be granted "pursuant to WIS.
2 The circuit court's June 28, 2007 order tracks the procedural history, but appears to tie
the January 26 motion to the April 20 hearing. However, the small claims court record summary
indicates that the hearing on April 20, 2007, was on Long's February 21 motion. The circuit
court's June 28 order states that Long's motion to reopen was "not timely," but that a motion
hearing was granted and held on April 20, 2007. The court goes on to say that "pursuant to
testimony and evidence presented at said hearing, [Long's] motion to reopen was denied."

STAT. § 806.07(1)(h)," which allows a court to grant relief from judgments based
upon "any other reason[] justifying relief from the operation of the judgment."
Long included a copy of his previous motion to vacate or reopen. The circuit
court reviewed the file and summarily denied the motion on June 28, 2007. The
court observed that Long had been granted three prior hearings on motions to
reopen, which were all denied, and had presented nothing new in his current
motion. It is from this order that Long now appeals.3

DISCUSSION

8 Long presents six issues for our review. Many of his issues would
require us to review the underlying default judgment rather than the order denying
his motion to reopen. For example, Long asks whether the Reclas' counterclaim
was timely and properly served, whether the counterclaim was otherwise
defective, and whether the counterclaim was frivolous or fraudulent. We have
jurisdiction to review only the order denying Long's motion to reopen, not the
default judgment itself. See WIS. STAT. § 799.29(1)(a).4 Accordingly, our review
is limited to the court order on the motion to vacate or reopen from which he has
appealed. The only issue before us is whether the circuit court properly exercised
its discretion when it denied Long's motion to reopen the default judgment.

9 The granting of a default judgment is within the circuit court's
discretion. Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11,
386 N.W.2d 53 (1986). Likewise, a court has wide discretion in determining
whether to reopen a judgment, and the circuit court's decision will not be
disturbed unless there has been an erroneous exercise of that discretion. See
Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977). We will
affirm a circuit court's exercise of discretion if it has applied the proper law to the
established facts and if there is any reasonable basis for the circuit court's ruling.
See State v. Alsteen, 108 Wis. 2d 723, 727, 324 N.W.2d 426 (1982). An appellate
court will generally look for reasons to sustain a discretionary determination.
Steinbach v. Gustafson, 177 Wis. 2d 178, 185, 502 N.W.2d 156 (Ct. App. 1993).
Nonetheless, we are mindful that the law prefers to afford litigants their day in
court and a trial on the issue. See Dugenske, 80 Wis. 2d at 68.

10 Long's trouble began when he failed to appear for a mediation
orientation and, as a result, the default judgment against him was entered. The
court's decision to dismiss Long's claim against the Reclas is directly supported
by WIS. STAT. § 799.22(1). Furthermore, judgment on the Reclas' counterclaim
against Long is supported by § 799.22(2). Because the default judgment was
properly granted, Long has the burden to show that he is entitled to relief. See
Carmain v. Affiliated Capital Corp., 2002 WI App 271, 23, 258
Wis. 2d 378, 654 N.W.2d 265.

11 The order before us rests its reasoning on prior orders denying
Long's multiple motions to reopen the judgment.5 Long's first motion to reopen,
filed July 12, 2004 (less than a month after the default judgment was entered), was
denied because Long failed to appear in support of his motion at the hearing on
August 5. Had he appeared, he would have had to demonstrate "good cause" to
reopen the default judgment. See WIS. STAT. § 799.29(1).

12 Long filed his next motion to reopen in January 2007. In a letter to
the court, he explained that he had been incarcerated on the date of the August 5,
2004 hearing and sought another opportunity to make his case. The court
commissioner summarily denied this motion on grounds that it did not comply
with WIS. STAT. § 799.29(1)(c), which requires a notice of motion be made within
twelve months after entry of judgment.

13 Long's subsequent motions were denied because they were
untimely. Long offers two arguments challenging the court's use of the twelve
month time limit for his motions. First he argues that he never received notice of
the default judgment and therefore he is relieved of the statutory time constraint.
We note, however, that at the bottom of the notice of entry of judgment is a
section titled "Distribution" showing that the notice was mailed to PJL Properties
LLC c/o Peter J Long at the address on Doty Street in Neenah. Long argues that
the court should have known of his incarceration because he directed that all legal
correspondence should be mailed to him at his new address. Nonetheless, the
record shows that the first time Long contacted the court to update his address was
in a letter dated January 25, 2007, over two-and-one-half years from the date the
notice of the default judgment was mailed. The small claims court record
summary confirms that Long first notified the court of his address change from
Doty Street to the Stanley Correctional Institution in January 2007. Furthermore,
as the Reclas point out, Long's motion to reopen filed on July 12, 2004, mentions
the default judgment and therefore demonstrates that Long had knowledge of the
judgment at that time. Long's "lack of notice" argument fails.

14 Long also asserts that his incarceration is a "disability" under WIS.
STAT. § 893.16, which extends the time period in which a party may sue. This
issue is new on appeal and therefore we do not address it. See Wirth v. Ehly, 93
Wis. 2d 433, 443, 287 N.W.2d 140 (1980),6 superseded by statute on other
grounds, Wilson v. Waukesha County, 157 Wis. 2d 790, 797, 460 N.W.2d 830
(Ct. App. 1990).

15 Finally, although Long does not make this distinction, we note that a
motion to reopen and a motion to vacate are treated differently in the statutes.
WISCONSIN STAT. § 799.29(1)(c) time requirements apply to motions to reopen a
default judgment for good cause shown. Motions to vacate are controlled by WIS.
STAT. § 806.07(1)(d), and a party may move to vacate a void judgment at any
time. See Neylan v. Vorwald, 124 Wis. 2d 85, 97, 100, 368 N.W.2d 648 (1985)
(void judgments may be expunged at any time, the "reasonable time" requirement
of § 806.07 does not apply). Long never sought relief under § 806.07(1)(d) and
never argued that the judgment was void.7

16 In summary, Long has not persuaded us that the circuit court erred in
denying his motion. Long's failure to appear at his mediation orientation and his
failure to appear or notify the court of his incarceration before his August 5 motion
hearing provide adequate grounds for the default judgment and the refusal to
reopen that judgment. Furthermore, his attempts to revisit the merits of the case
two years after the entry of judgment were untimely. Long's challenges to the
merits of the original small claims action are not relevant to this appeal.

Therefore, to the extent that we have not addressed an argument made in Long's
appeal, the argument is deemed rejected.

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