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COA sows confusion over summary judgment deadline for TPR cases

Barron County DHS v. M.S., 2020AP1257, District 3, 12/17/20, (1-judge opinion, ineligible for publication); case activity

If we were quarantining in Vegas, we’d bet this case is heading to SCOW.  The briefs are confidential but the main issues appear to be: whether the summary judgment deadline in §802.08(1) governs TPR cases; whether a court may extend that deadline for good cause; and how those rules apply to the facts of this case. The COA sows confusion by stating that it has conducted “independent research” suggesting that, despite SCOW precedent and the parties’ agreement, §802.08(1) doesn’t actually apply. It then applies §802.08(1).

The rules of civil procedure govern TPR proceedings unless Chapter 48 prescribes a different procedure. Wis. Stat. §801.01(2).; Steven V. v. Kelley H., 2004 WI 47, ¶32, 271 Wis. 2d 1, 678 N.W.2d 856 (summary judgment procedure under §802.08 is available in the grounds phase of a TPR case).

Section 802.08(1) provides that “a party may, may within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under 802.10 move for summary judgment . . . ” Section 802.10(1) states that it does not apply to an action under Chapter 48.

In this case, the Department filed a TPR petition against “Mark” alleging that he had abandoned his daughter, “Laura.”  Over 9 months later, in preparation for trial, the court held a telephone conference and ordered pretrial motions or motions in limine to filed within 5 weeks.  Almost 5 weeks later, the Department moved for summary judgment.

Because the Department blew the 8-months deadline, Mark argued that §802.08(1) precluded consideration of the summary judgment motion and highlighted issues of material fact. The Department countered that it complied with the telephonic order or alternatively that order provided good cause to miss the 8-month deadline.

The court of appeals agreed with Mark that §802.10 does not apply to a pretrial order and that §802.08 does not give the circuit court direct authority to enlarge the summary judgment deadline. However, circuit courts have inherent authority to control their dockets. See Hefty v. Strickhouser, 2008 WI 96, ¶31, 312 Wis. 2d 530, 752 N.W.2d 820. See also § 802.10 (which does not apply to TPRs).  Opinion, ¶16.  Circuit courts also have authority to grant relief for “excusable neglect”under § 801.15(2)(a) and Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 468, 326 N.W.2d 727 (1982). Opinion, ¶17.

The Department never moved to enlarge the 8-months deadline, and the circuit court never found excusable neglect. No problem. The court of appeals searched the record for the Department. It never said why the Department blew the 8-months deadline. But held that its neglect became excusable after the fact when the circuit court gave 5 weeks for pre-trial motions or motions in limine . Opinion, ¶¶17-20.

The court of appeals’ lengthy footnote 4 creates the afore-mentioned confusion. It notes that the parties agreed that nothing in Chapter 48 gave the circuit court authority to hear the summary judgment motion outside the 8-month time period, but it disagreed with them and their understanding of Steven V. It noted that §48.297(1) provides: “Any motion which is capable of determination without trial of the general issue may be made before trial.” Also §48.297(2) states in part: “Other motions capable of determination without trial may be brought any time before trial.” These are fair points but then why not order simultaneous letter briefs within 10 days so the parties could address the matter?

As for the merits, the Department argued that Mark had abandoned Laura because a court had placed her outside the home and he failed to visit or communicate with her for a period of 3 months or longer. See WIS. STAT. § 48.415(1)(a)2. Mark countered with an affidavit explaining he had been incarcerated different times for a total of a year, including the period alleged by the Department. He sent a letter to Laura. He sent a letter to her mother to give to her. He talked with Laura many times over her mom’s phone during the period specified by the Department. He had tried to reach Laura directly by phone but had been unsuccessful.  Opinion, ¶¶36-37.

The circuit court found no genuine issue of material fact, and the court of appeals affirmed, because Mark’s averments were too general. He did not indicate specific dates of communication so allegedly no reasonable factfinder would return a verdict for him. Opinion, ¶39.

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