Anderson B. Connor v. Sara Connor
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2001 WI 49 SUPREME COURT OF WISCONSIN Case No.: 99-0157 & 99-1042 Complete Title of Case: Anderson B. Connor and Thelma A. Connor, Plaintiffs-Respondents, v. Sara Connor, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 234 Wis. 2d 150, 610 N.W.2d 511 (Ct. App. 2000-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: May 18, 2001 January 3, 2001 Circuit Forest Robert A. Kennedy JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Mark E. Sostarich and Petrie & Stocking S.C., Milwaukee, and oral argument by Mark E. Sostarich. For the plaintiffs-respondents there was a brief by Ann E. Stevning-Roe and Juneau, Minder, Gross & Stevning-Roe, S.C., Marshfield, and oral argument by Ann E. Stevning-Roe. 2001 WI 49 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-0157 & 99-1042 STATE OF WISCONSIN : IN SUPREME COURT Anderson B. Connor and Thelma A. Connor, FILED Plaintiffs-Respondents, MAY 18, 2001 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI Sara Connor, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. Affirmed and cause remanded to the circuit court. ¶1 WILLIAM A. BABLITCH, J. Sara Connor (defendant) petitions us to review a decision of the court of appeals that denied her relief from a default judgment entered against her. The circuit court, Judge Robert A. Kennedy presiding, entered the default judgment against her because she failed to serve her answer to a complaint filed by Anderson B. and Thelma A. Connor (plaintiffs) within the statutory deadline and failed to show excusable neglect for her untimely answer. We conclude that the record does not support a finding of excusable neglect or any basis for relief to reopen the default judgment. we affirm the court of appeals' decision. Accordingly, No. I. ¶2 This 99-0157 & 99-1042 FACTS AND PROCEDURAL HISTORY lawsuit originated from a disagreement between the parties over property rights, specifically, a dispute over the use of a road. Both parties in this case owned property on the west side of and adjacent to Birch Lake in Forest County. The plaintiffs' property defendant's property. was located to the north of the The plaintiffs gained access to their property by traveling on a north-south road that ran along the western side of the lake. A section of this road crossed the defendant's property. ¶3 In the fall of 1997, the defendant plaintiffs to use an alternative route. asked They refused. the The defendant then blocked access to the road. ¶4 On June 10, 1998, the plaintiffs filed a three-count complaint against the defendant. All three counts were based on alleged violations of their easement rights to the road. The first defendant had access the cause intentionally easement of action interfered road. injunctive The relief to alleged with the plaintiffs prohibit with their use of the road. that plaintiffs' sought the the damages defendant and from to permanent interfering The remaining causes of action alleged (1) conversion or dispossession of property rights and (2) intentional interference with contractual rights. same date, the plaintiffs also filed a separate On that motion for temporary injunctive relief. ¶5 On June 15, 1998, the defendant received the summons, complaint and notice of motion for temporary injunction. 2 The No. 99-0157 & 99-1042 summons stated that the defendant was required to respond with a written answer within 45 days. Polich as her attorney. The defendant retained Steven Polich represented the defendant at a July 16, 1998, hearing on the plaintiffs' motion for temporary injunction. The circuit court granted the plaintiffs' motion on that date. ¶6 The statutory deadline for the defendant to serve her answer was July 30, 1998. meet this deadline. The defendant, however, failed to Instead, she mailed her answer to the plaintiffs on August 4, 1998, and filed the answer with the court on August 10, 1998. Mark Sostarich for The defendant substituted attorney Polich as her counsel and filed a substitution of counsel with the court on September 10, 1998. ¶7 In response to the defendant's answer, the plaintiffs filed a motion to strike the answer and a motion for default judgment. The plaintiffs asserted that they did not receive the defendant's answer until August 10, 1998, and that no extension of time to answer was ever requested by or granted to the defendant. ¶8 On November 12, 1998, the defendant filed a motion requesting the court to accept her answer. The defendant argued that the court should regard her answer as timely served because Polich had received an extension of time to serve the answer from Patrick Juneau, an attorney who worked at the same firm as the plaintiffs' counsel. An affidavit from Polich attested to this fact and was filed with the defendant's motion. In the alternative, the defendant argued that the court should accept 3 No. the answer because any misunderstanding by 99-0157 & 99-1042 Polich about the existence of such an agreement amounted to excusable neglect, requiring an enlargement of time to answer under Wis. Stat. § 801.15(2)(a)(1997-98).1 ¶9 The court held a hearing on the parties' motions on November 16, 1998. only stated that The court concluded that Polich's affidavit he understood that there was a courtesy extension agreement between the parties; it did not state that he ever asked for or received an extension. This lack of a clear conclusion agreement was there was a insufficient excusable neglect. amount of factor time in the evidence to court's support a finding that of The court also based its decision on the that Polich had to answer the complaint and Polich's active involvement in the case prior to the deadline. The court then denied the defendant's motion and granted the plaintiffs' motions. An order was issued on November 30, 1998. On that same date, the court entered judgment only on the first cause of action. The judgment granted permanent injunctive relief to the easement rights of the road and costs associated with this relief to the plaintiffs. ¶10 The defendant then filed both a motion for reconsideration and a motion to reopen and vacate the judgment pursuant to Wis. Stat. § 806.07(1)(a), (b), (g) or (h). In her motion, she alleged in part that the judgment should be vacated 1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 4 No. in light of a second affidavit from Polich. 99-0157 & 99-1042 In the affidavit, Polich again alleged that the parties had in fact entered into a oral courtesy extension agreement and further stated that the basis for this agreement was so that Polich could conduct depositions of the plaintiffs before filing the answer. ¶11 In response, the plaintiffs submitted from their attorney, Ann Stevning-Roe. an affidavit Stevning-Roe admitted that Polich had contacted her about setting up depositions and that she agreed to make her clients available for deposition, but stated that nothing further had developed on this matter. She denied "[a]bsolutely the existence nothing was of any agreement, requested, stating discussed, that stated or granted regarding an extension to file Answers based upon the scheduling of depositions" and that "[a]t no time did Mr. Polich say anything regarding wanting to schedule depositions prior to filing an Answer in this matter." ¶12 During a March 29, 1999, hearing, the court denied both of the defendant's motions. In its decision, the court dismissed Polich's second affidavit as unbelievable and "selfserving." The court further stated that Polich should have sent out confirmation of the agreement and that he should have been aware that the answer was due because he was actively involved in the case prior to the deadline. An order to that effect was issued on April 7, 1999. ¶13 Two The court of appeals affirmed, and we accepted review. issues are presented: (1) whether the circuit court properly exercised its discretion in granting the plaintiffs' 5 No. 99-0157 & 99-1042 motion to strike the answer and motion for default judgment; and (2) whether denying the the court properly defendant's motion exercised for its discretion reconsideration and in her motion to vacate the default judgment. II. ¶14 ISSUE ONE: MOTION TO STRIKE AND DEFAULT JUDGMENT We examine two orders issued by the circuit court. The first order, entered on November 30, 1998, addressed four separate motions. Two of these motions a motion to strike the defendant's entire answer and a motion for default judgment were both properly brought by the plaintiffs in response to the defendant's untimely answer. See Martin v. Griffin, 117 Wis. 2d 438, 441-42, 344 N.W.2d 206 (Ct. App. 1984). The other two motions a motion to accept the answer and a motion to enlarge the time for defendant. serving an answer were then filed by the The defendant's motions are appropriately considered as one motion because they both essentially seek relief under Wis. Stat. § 801.15(2)(a) on the basis of excusable neglect. See Clark County v. B.T.U. Structures, Inc., 144 Wis. 2d 11, 1516, 422 N.W.2d 910 (Ct. App. 1988) (evidence of a courtesy extension agreement is excusable neglect). ¶15 The circuit court noted that it only needed to address the plaintiffs' motions in this case. The court did not err in this respect. It could proceed in this manner because, under either motions, whether party's excusable the neglect court was was required present. See to determine Leonard v. Cattahach, 214 Wis. 2d 236, 248-49, 571 N.W.2d 444 (Ct. App. 1997); Rutan v. Miller, 213 Wis. 2d 94, 101, 570 N.W.2d 54 (Ct. 6 No. App. 1997); Martin, 117 Wis. 2d at 442. 99-0157 & 99-1042 The court correctly applied the excusable neglect standard in this case. ¶16 Excusable neglect is not carelessness or inattentiveness. the same as neglect, Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982). Instead, it is "'that neglect which might have been the act of a reasonably prudent person under the same circumstances.'" Id. (quoting Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969)). the context of an untimely noncompliance with the neglect. answer, reasonable statutory period grounds constitutes In for excusable Id. ¶17 A circuit court has great relief based on excusable neglect. discretion in Id. at 467. granting In exercising this discretion, the court must consider whether the interests of justice would be served in its finding. Id. at 468. interests be failure of to justice require find excusable the court to neglect could result The aware that in default a a judgment and that the law generally disfavors default judgments and prefers a trial on the merits. Id. at 469. The court should interests a also balance other competing of default judgment, such as promoting prompt adjudication and encouraging quality legal representation. ¶18 regarding We will excusable not Id. disturb neglect discretion is clearly shown. a unless circuit an Id. at 471. court's erroneous decision exercise of An erroneous exercise of discretion will result "[i]f the record indicates that the circuit court failed to exercise its discretion, if the facts of 7 No. 99-0157 & 99-1042 record fail to support the circuit court's decision, or if this court's review of the record indicates that the circuit court applied the wrong legal standard . . . ." Id. at 471-72. If the circuit court enumerates its reasons for finding excusable neglect, we "will focus on the facts of record to determine whether they support the court's reasons." ¶19 properly Upon review, exercised its we conclude discretion Id. at 471. that in the finding circuit that court excusable neglect was not present and in granting default judgment. The reasons articulated by the court provide a reasonable basis for this determination and are supported by the record. ¶20 One reason articulated by the court was that Polich's affidavit did not provide clear evidence of an oral courtesy extension understood agreement. that there The affidavit was an only agreement stated based that Polich on prior communications with Juneau and their "mutual cooperation."2 2 Polich's affidavit stated in relevant part as follows: 2. In May, 1998, Attorney Patrick J. Juneau of the law firm of Juneau, Minder, Gross & Stevning-Roe, S.C. wrote to me an [sic] informed me that he would be representing Andy and Thelma Connor with regard to their claims of purported blocked access to a road which they contended they had easement rights to. I had numerous conversations and communications with Mr. Juneau and established a highly cooperative working relationship with him. 3. I worked with Mr. Juneau in an effort to amicably resolve the matter, and when it could not be so resolved, worked with him regarding the scheduling of an injunction hearing and the manner in which this case would be brought before the Court's attention. Based upon our communications and our mutual 8 This No. 99-0157 & 99-1042 assertion, the court determined, was insufficient to support a finding of a clear agreement. At that time, the record also contained an affidavit from Juneau, which denied the existence of the agreement3 and alleged that, on a prior occasion when an adjournment was necessary, the parties entered into a written agreement. This evidence supports the conclusion agreement for an extension of time to answer existed. that no Thus, the court correctly concluded that the alleged agreement could not constitute a basis for excusable neglect. ¶21 The defendant argues that this finding by the court essentially concluded that the courtesy extension agreement was unenforceable because it writing. was not in writing or confirmed in This is an incorrect interpretation of the circuit court's decision. The court only concluded that the affidavit did not reflect a clear agreement between the parties; it did not conclude that the agreement was unenforceable because it was cooperation, it was my understanding that I had been granted a reasonable time to answer after the hearing regarding the Injunction on July 16, 1998 and that, in fact, I answered just four days beyond the statutory time. 3 Juneau's affidavit stated in relevant part: 6. Subsequent to turning the file over to Attorney Stevning-Roe for litigation, your affiant had no discussions with Mr. Polich regarding response times for answer in this proceeding. Your affiant never made any reference or had any discussion with Mr. Polich regarding the time to answer so there is absolutely no basis for him to construe that there was an extension of a time to answer granted by your affiant since there was absolutely no discussion that took place regarding the same. 9 No. not in writing. the agreement 99-0157 & 99-1042 In fact, the only mention the court made about not being in writing confirm such extensions in writing. agreement had to be in writing. was that most attorneys It did not state that the Indeed, courtesy agreements that are not reduced to writing may be enforceable in certain instances. See Rutan, 213 Wis. 2d at 102. Here, however, the parties disputed the existence of the agreement; therefore, the court was forced to make agreement even existed. previous warning agreements be determination as to whether the Certainly, this case reemphasizes our that, should a as a matter reduced to of good writing practice, with such additional See Oostburg State Bank v. United notification to the court. Savings & Loan Ass'n, 130 Wis. 2d 4, 13, 386 N.W.2d 53 (1986). ¶22 Also, with respect to the courtesy extension agreement, the defendant argues that the court erred by failing to acknowledge that Polich's misunderstanding of the agreement may have constituted excusable neglect. this hearing, there was no However, at the time of evidence no notes, confirmation letters, or other documentation from Polich to indicate that he misunderstood that there was an agreement. Further, the record did not contain any testimony from Polich to indicate that he ever asked for an extension or that Juneau ever misled him into thinking that an extension was granted. Indeed, the defendant could have provided additional evidence to the court on this and other factors; however, she decided to rest her case on Polich's affidavit without seeking a continuance for an evidentiary hearing where Polich could have appeared and given testimony. 10 No. 99-0157 & 99-1042 Polich was not present because of a scheduling conflict. Thus, in light of the lack of evidence showing any misunderstanding, the court did not err in failing to find excusable neglect based on this alleged misunderstanding. ¶23 Another reason articulated by the court was that the defendant had reasonable time to serve the answer. In particular, the court noted that the defendant had 14 days in which to file from the time of the temporary injunction hearing to the statutory deadline and concluded that this amount of time was sufficient to file an answer. The defendant argues that this factor was outside the scope of the court's analysis for excusable neglect. She asserts that the court's focus should have been on whether there was a justifiable explanation for the untimely answer, not on whether there was adequate time to serve the answer. ¶24 However, in this case, the defendant made this time frame an issue when it entered Polich's affidavit into evidence, which alleged: "[I]t was my understanding that I had been granted a reasonable time to answer after the hearing regarding the Injunction on July 16, 1998 and that, in fact, I answered just four days beyond the statutory time." In an apparent response to this statement, the court concluded that the time between the hearing and the statutory deadline was a reasonable time to answer, implying that the defendant did not need extra time in which to answer. court concluded, provide any in reason The time to answer was reasonable, the light as to of the why 11 he fact could that not Polich answer did not by the No. deadline. 99-0157 & 99-1042 Thus, because the defendant made this time period an issue, the court acted properly in considering it and using it as a basis for rejecting the defendant's excusable neglect argument. ¶25 Based on the above, we conclude that the record supports the circuit court finding that the defendant failed to show excusable neglect and that it appropriately entered the default judgment. The defendant contends that the court erred because it failed to consider policy reasons weighing against default judgment in its determination. aware of these factors at the The court, however, was hearing. In particular, the defendant informed the court that it had broad discretion in granting motions to enlarge the time to answer and that the law generally treats default judgment as an extreme measure. The fact its that the court did not specifically articulate consideration of these policy factors does not mean that it was not cognizant of these factors before granting the plaintiffs' motions. III. ¶26 The court acted properly. ISSUE TWO: RECONSIDERATION AND VACATING JUDGMENT We next review the court's order that denied the defendant's motion for reconsideration and denied her motion to vacate the judgment pursuant to Wis. Stat. § 806.07(1). In her motion for reconsideration, the defendant argued that the court erred by considering the time between the temporary injunction hearing and the statutory deadline as a factor for excusable neglect. However, as we concluded above, the court did not err 12 No. in this respect, and we will not revisit 99-0157 & 99-1042 this issue. Our analysis is limited to the motion to vacate the judgment. ¶27 A circuit court's decision to grant or deny a motion under Wis. Stat. § 806.07(1) is reviewed subject to an erroneous exercise of discretion standard. State ex rel. M.L.B. D.G.H., 122 Wis. 2d 536, 541-42, 363 N.W.2d 419 (1985). v. In its exercise of discretion, the court "must attempt to strike the appropriate balance between that consistently considerations the countervailing pull at either end policy of the default judgment spectrum." J.L. Phillips & Assocs. v. E & H Plastic 348, Corp., 217 Wis. 2d 359, 577 These considerations were mentioned above. N.W.2d 13 (1998). In short, we balance the competing values of finality and fairness in the resolution of a dispute. ¶28 The State ex rel. M.L.B., 122 Wis. 2d at 542. defendant sought § 806.07(1)(a), (b), (g) and (h). relief under Wis. Stat. This statute provides: 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); . . . . (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. Wis. Stat. § 806.07(1)(a), (b), (g) & (h). construed liberally because Phillips, 217 Wis. 2d at 359. of its remedial This statute is nature. J.L. The defendant bears the burden to 13 No. prove that the requisite conditions 99-0157 & 99-1042 existed. Hansher v. Kaishian, 79 Wis. 2d 374, 389, 255 N.W.2d 564 (1977). ¶29 In her motion, the defendant argued that relief was warranted based on the following: (1) Polich's misunderstanding of the courtesy extension agreement constituted excusable neglect; (2) the information provided by Polich in his second affidavit constituted newly discovered evidence; and (3) application of the judgment was not equitable. The defendant did relief not specifically enumerate any basis for under subsection (h) in her motion. ¶30 We first review whether the circuit court properly exercised its discretion by denying relief under subsection (a). We conclude that it did. The defendant presented Polich's second affidavit as a basis for relief under this subsection. In it, Polich alleged that he delayed filing the answer because he wanted to first conduct depositions of the plaintiffs before filing the answer. Polich asserted that he and the plaintiffs' attorney reached an agreement that an answer would not have to be filed until the depositions were taken. As stated above, the plaintiffs' attorney specifically denied that any such agreement was reached between the parties. ¶31 During the hearing on the motion, the court dismissed Polich's affidavit as "self-serving." believe Polich's assertion that the It stated that it did not parties had reached an agreement to allow the defendant to file her answer after the depositions. Polich's sworn We regard statements this conclusion based 14 on the as a court's dismissal finding of that No. Polich lacked credibility. 99-0157 & 99-1042 We uphold this ruling by the circuit court because it is the ultimate arbiter of the credibility of a witness. Homa v. East Towne Ford, Inc., 125 Wis. 2d 73, 80 n. 7, 370 N.W.2d 592 (Ct. App. 1985). After the court rejected this explanation by Polich, the court was basically presented with the same facts and explanations presented by the defendant at the first hearing. As a result, the court could properly exercise its discretion and deny relief under subsection (a) because the record would again support a finding by the court that excusable neglect was not present. ¶32 The defendant argues that the court erred in several respects in reaching this determination. First, she contends that the court again erred by basing its decision on the fact that oral courtesy extension agreements are unenforceable unless they are in writing or confirmed in writing. did not make any such finding. Again, the court Instead, the court only noted that there was a lack of any documentation in the record and that, in practice, there would have normally been confirmation letters sent. documentation The court certainly may consider the lack of in making agreement existed. a requirement that a determination as to whether an Such consideration must not be construed as courtesy extension agreements must be in writing. ¶33 to Second, the defendant contends that the court failed reconcile the conflicting affidavits in this case to determine whether an oral courtesy extension agreement existed or whether the affidavits showed substantial confusion between 15 No. 99-0157 & 99-1042 the parties as to the existence of an agreement to support a finding of excusable neglect. However, the court resolved the various conflicts in the affidavits by dismissing the affidavits of Polich and relying on affidavits submitted by the plaintiffs. This decision was a proper determination of credibility. In light of the remaining testimony, the court did not erroneously exercise its discretion agreement had not been by concluding reached or that that any an other extension basis for excusable neglect was present. ¶34 Third, the defendant argues that the court failed to consider and articulate interests of justice factors in denying the motion to vacate the judgment. In particular, the defendant asserts that the court should have considered such factors as the drastic consequences of the default judgment in this case, the meritorious defenses presented in the answer, and the lack of any prejudice to the plaintiffs from the late answer. Again, however, the court was made aware of these factors during the hearing and made its decision in light of these relevant interests. ¶35 Fourth and finally, the defendant contends that the court erred by imputing the negligence of Polich to her in this case. She argues that Polich's negligence took on many forms, including that he was ineffective at the temporary injunction hearing, that he failed to secure a written courtesy extension agreement, and that he failed to provide her with affidavits to prepare for hearings in a prompt 16 manner. According to the No. 99-0157 & 99-1042 defendant, Polich's conduct was so egregious in this case that the judgment must be vacated. ¶36 "A court is not bound to impute to a client everything his lawyer does or omits to do." Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 514, 285 N.W.2d 720 (1979). However, "[m]istakes, ill advice, or other failures of a lawyer may constitute excusable neglect on the part of the client, when the client has acted as a reasonable and prudent person in engaging a lawyer of good reputation, has relied upon him to protect his rights, and has made reasonable inquiry concerning the proceedings." Id. "In deciding whether to impute the negligence of the lawyer to the client, the trial court must exercise its 'equitable between the parties.'" powers to secure substantial justice Id. (quoting Paschong v. Hollenbeck, 13 Wis. 2d 415, 424, 108 N.W.2d 668 (1961)). ¶37 steps to The defendant protect her asserts that position, she took including all reasonable forwarding the complaint immediately to her attorney, attending the temporary injunction hearing, and substituting counsel when she believed that Polich was ineffective. On this issue, however, we agree with the conclusion reached by the court of appeals. court noted, although the defendant decided to As the substitute Sostarich for Polich as counsel, the record does not reflect that she made any reasonable inquiry into the status of the case before firing Polich to secure her position in the litigation. As a result, without any such inquiry, we conclude that it is 17 No. reasonable to impute any alleged negligence 99-0157 & 99-1042 on the part of Polich in failing to file the answer to the defendant.4 ¶38 Finally, we examine the court's respect to subsections (b), (g) and (h). determination with On these subsections, the circuit court failed to set forth any specific reasons for its denial for relief. Regardless, we may conduct our own examination of the record to determine whether the circuit court properly exercised its discretion and whether the facts provide support for the court's decision. Homa, 125 Wis. 2d at 79. Hedtcke, 109 Wis. 2d at 471; We note that remand to the circuit court for an evidentiary hearing may be warranted in some cases where the defendant's claim sets forth a basis for relief and a hearing is necessary to determine the truth of the allegations. See State ex rel. M.L.B., 122 Wis. 2d at 553-54. However, in this case, we make our determination based solely on the record in light of the fact that the defendant effectively waived any right to an evidentiary hearing during the motion hearing. The waiver occurred when the defendant rejected the court's repeated 4 The defendant filed a motion after oral argument requesting that this court allow supplemental briefing and take judicial notice that Polich was not a licensed attorney in Wisconsin at the time that he represented the defendant. However, during the hearing on the motion to vacate the judgment, the defendant specifically represented to the court that Polich was in fact a licensed attorney in Wisconsin. The defendant does not provide any compelling reason to this court for her failure to discover this information before the hearing in the circuit court. Accordingly, we deny the defendant's motion. 18 No. inquiries as to whether an adjournment 99-0157 & 99-1042 for an evidentiary hearing was necessary. ¶39 support On review, we first conclude that the record does not a finding that Polich's second affidavit "newly discovered evidence" under subsection (b). failed to present any evidence to establish constituted The defendant the elements of "newly discovered evidence," particularly that the information "did not arise from lack of diligence in seeking to discover it." the See Wis. Stat. § 805.15(3)(b). affidavit contained As the plaintiffs argued, information that the defendant have likely discovered before the first hearing. could Thus, in light of this failure to prove these elements, it was not an erroneous exercise of discretion for the court to deny relief under this subsection. ¶40 this We also conclude that subsection (g) does not apply in case. This subsection specifically requires a person seeking relief from the judgment to show that the prospective application of the judgment "is no longer equitable." under the clear circumstances is language of specifically statute, contemplated judgment no longer equitable. Wis. 2d at 543-44. this a which Thus, change in makes the See State ex. rel M.L.B., 122 The defendant did not allege any such change in circumstances, and as a result, the court did not err by failing to grant relief under this subsection as well. ¶41 relief Finally, we conclude that the court properly denied to subsection, the defendant relief is under subsection warranted 19 only (h). when Under this "extraordinary No. circumstances" considers are the present. following Id. at factors 552. in 99-0157 & 99-1042 A circuit determining court whether extraordinary circumstances exist: whether the judgment was the result of the conscientious, deliberate and well-informed choice of the claimant; whether the claimant received the effective assistance of counsel; whether relief is sought from a judgment in which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; whether there is a meritorious defense to the claim; and whether there are intervening circumstances making it inequitable to grant relief. Id. at 552-53. ¶42 The defendant never clearly articulated its reason for seeking relief hearing on under this the motion to subsection. vacate the However, judgment, during the the defendant argued that she should be entitled to relief from the judgment because the permanently entry of impaired judgment her in this property. case She inequitably contended that and any remedy available such as an ineffective assistance of counsel claim against Polich would not alleviate the impairment of her property. We It would only lead to compensation for the property. construe this argument as one seeking relief based on extraordinary circumstances, but conclude that in this case this argument does not provide a basis for relief. ¶43 judgment Certainly, should be the effects considered by of the entry the court; of however, default simply because the entry of judgment impairs or affects property does not warrant a finding of 20 extraordinary circumstances. No. Extraordinary circumstances limited cases. may exist only 99-0157 & 99-1042 in extreme and This case does not present such extraordinary circumstances. IV. ¶44 CONCLUSION In sum, the circuit court did not abuse its discretion in granting default judgment or in denying the motion to vacate the judgment. The defendant failed to present sufficient evidence of excusable neglect or of any basis for relief under Wis. Stat. § 806.07(1). As a result, we affirm the court of appeals' decision upholding the orders and judgment issued by the circuit court. In addition, because the record does not indicate that the circuit court ever made a determination as to the amount of costs to be awarded to the plaintiffs, we remand to the circuit court for a determination on this issue. By the Court. The decision of the court of appeals affirmed, and the cause is remanded to the circuit court. 21 is No. 1 99-0157 & 99-1042
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