S.C. amendment trumps local rules

Listen to this article

A state statute — setting the time for filing briefs and affidavits on motions for summary judgment — preempts conflicting local court rules, the Wisconsin Court of Appeals held on Nov. 21.

David Christensen Trucking & Excavating, Inc., rented a commercial garage to Bijan Mehdian and two other co-tenants in 2003. Mehdian abandoned the property, and Christensen brought suit in Marathon County to recover unpaid rent and other damages.

On Feb. 22, 2005, Christensen filed a notice of motion and motion for summary judgment, together with a supporting brief and affidavit.

The notice indicated the date of the hearing was Apr. 4.

Mehdian did not file a response brief until March 29, four business days before the motion hearing, and the brief was not acc-ompanied by any affidavits or other documents. On the day of the hearing, Meh-dian finally filed an affidavit, as well as a “corrected” version of his response brief.

Christensen moved to strike all of Mehdian’s submissions as untimely, and Judge Dorothy L. Bain granted the motion, relying exclusively on Marathon County Cir. Ct. R. 4.20(1)(b), which requires parties opposing summary judgment to file their briefs and opposing affidavits 20 days prior to the hearing.

Considering only Christensen’s evidence, including a post-hearing affidavit concerning efforts to relet the property, the court granted summary judgment, awarded damages including rent through June 2005, and retained jurisdiction over the question of future rent through the lease term.

Mehdian appealed, and, in a decision by Judge Thomas Cane, the court of appeals affirmed the grant of summary judgment, but on different grounds. The court reversed in part, however, because the court considered the post-hearing evidence submitted by Christensen, without giving Mehdian opportunity to respond.

Preemption

The court held that sec. 802.08 trumps any local rules governing summary judgment motions.

The court acknowledged that, in Com-munity Newspapers, Inc. v. West Allis, 158 Wis. 2d 28, 33, 461 N.W.2d 785 (Ct. App. 1990), it held that circuit courts have inherent authority to adopt and apply local rules.

However, in 1992, the Supreme Court amended sec. 802.08(2), to preempt local rules and effectively overturn Community Newspapers. The Judicial Council Note to the rule states, “Requiring such affidavits to be served at least five days before the hearing is intended to preclude such local rules and promote uniformity of practice. Courts may require earlier filing by scheduling orders, however.”

In addition, a concurrence/dissent by Justice David T. Prosser in Phelps v. Physicians Ins. Co., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, states that the rule was enacted to preclude conflicting local rules.

At issue in Phelps were local rules governing the payment of the fee for a jury. Citing the Note, Prosser advocated adoption of a statewide rule for payment of jury fees similar to sec. 802.08, stating, “The court made the change [to sec. 802.08] to ‘preclude such local rules and promote uniformity of practice.’” Id., at par. 77.

The court of appeals thus concluded, “Justice Prosser’s opinion, together with the Judicial Council Notes, make clear that Wis. Stat. Sec. 802.08(2) was, in fact, amended to preclude local rules and to provide the very statewide remedy and uniformity of practice that Justice Prosser sought with regard to jury fee payment.”

Accordingly, the court held that Marathon County’s local rule is precluded because it conflicts with the uniform rule, and that the circuit court erred in relying on the local rule in refusing to consider Meh-dian’s response.

However, the court affirmed the result, because, even under sec. 802.08(2), Median’s submissions were untimely.

Even though the parties did not brief the issue, the court then continued, to address the standard for when a party seeks consideration of an untimely brief.

	Related Article Case Analysis

The court noted that, pursuant to sec. 801.15(2)(a), a party can seek enlargement of time only for excusable neglect, if the motion for enlargement is not filed until after expiration of the specified time.

Because Mehdian’s counsel’s only justification was communication problems between him and Mehdian, the court concluded that this was insufficient, and thus, the trial court properly exercised its discretion in not considering Mehdian’s brief.

Damages

Nevertheless, the court did reverse the award of damages.

Christensen’s initial affidavit did not indicate any efforts to mitigate damages by reletting or selling the property. After the hearing, the court allowed Christensen to file a supplemental affidavit, but not Mehdian, on this issue.

The court concluded that this was error, and remanded the case for a hearing on the determination of damages.

Click here for Case Analysis.