WI Court of Appeals rules S.C. amendment trumps local rules.

Byline: David Ziemer

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 accompanied by any affidavits or other documents. On the day of the hearing, Mehdian 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 Community 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT