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Excusable Neglect Case Analysis

The decision is clearly contrary to both statute and long-standing precedent.

The full text of sec. 801.15(2)(a), which the court neglects to state, is as follows: “When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.”

The commentary to the statute states, “Sub. (2)(a) simplifies practice by doing away with the requirement that an affidavit accompany a motion for enlargement of time, even when the motion is made before the expiration of the period sought to be enlarged.”

By the plain terms of the final two sentences of the statute, and the commentary to the statute, it is self-evident that, although a motion for enlargement of time prior to expiration of that time need not be accompanied by an affidavit, a motion, with affidavit, is still necessary if the motion is filed after the time for doing the act has passed.

In the case at bar, there was no motion at all, much less an affidavit. The defendants merely responded to a motion filed by the plaintiffs two days before trial. Thus, the defendants failed to comply with the statute, and the trial court acted properly in refusing to hold a jury trial, regardless of whether the neglect was excusable or not.

Furthermore, even if the defendants’ neglect in paying the jury fee timely was excusable, the case law is abundantly clear that it is not sufficient that a party show that its failure to perform an act timely was due to excusable neglect. Instead, the party must also show that it both filed a motion for enlargement and performed the act within a reasonable time.

In Millis v. Raye, 16 Wis.2d 79, 113 N.W.2d 820 (1962), the court interpreted the former sec. 269.45(2), which provided: “After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; except the time for appeal.”

The court held, “The statutory words ‘excusable neglect’ refer to the failure to act with respect to applying for an extension of time within which to serve the bill of exceptions as well as to the failure to serve the bill.” Millis, 113 N.W.2d at 822.

This holding was reaffirmed by the Wisconsin Supreme Court in Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 326 N.W.2d 727 (1982), interpreting sec. 801.15(2)(a).

The court of appeals cited to Hedtcke with approval, and purported to follow that case, but the court actually nakedly repudiated it without explanation.

In Hedtcke, the Supreme Court stated, “Attorneys should note that the Wisconsin Supreme Court has held in Millis v. Raye, that an enlargement of time will be allowed after the time has run only when the initial failure to do the act was the result of excusable neglect and there has been no inexcusable delay in moving for enlargement.

Thus, the excusable neglect provision, by interpretation, has been made to apply to the time within which the motion for enlargement of time is made (emphasis added).” Hedtcke, 109 Wis.2d at 469, fn. 3.

Later, the court observed, “As this court stated in Millis v. Raye, supra, 16 Wis.2d at 83, 113 N.W.2d 820, “[t]he statutory words ‘excusable neglect’ refer to the failure to act with respect to applying for an extension of time within which to serve the bill of exceptions as well as to the failure to serve the bill.” Hedtcke, 109 Wis.2d at 477.

Thus, it is clear that it was insufficient for the defendants to show that there was excusable neglect in paying the jury fee timely.

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First, the defendants were required by statute to file a motion for enlargement, with accompanying affidavit, stating the reason for the untimeliness. A standard form is readily available at 4 Wisconsin Practice Series, sec. 5.2.

Second, the defendants were required to show that any neglect in filing the motion to enlarge time to act was excusable. Because the defendants never filed any motion at all, but merely responded to a motion by the plaintiff two days before the trial, it is patently obvious that “excusable neglect,” as that term is used in sec. 801.15(2)(a), and interpreted in Millis and Hedtcke, cannot possibly have been demonstrated in this case.

Admittedly, the court of appeals held in Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis.2d 622, 489 N.W.2d 697 (Ct.App.1992), that it would treat a party’s late payment of the jury fee, and its opposition to a motion for a court trial, as if those actions are the equivalent of a motion for enlargement.

However, this merely means that Chitwood was incorrectly decided, too; the case has never been cited by the Supreme Court, at all, much less with approval. It does nothing t
o justify its decision in the face of plainly contrary Supreme Court precedent in Millis and Hedtcke, and unambiguous statutory text.

– David Ziemer

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David Ziemer can be reached by email.

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