Background
Cerroni sued Hefty for unjust enrichment and conversion arising from a dispute over the administration of an estate and an investment portfolio. Hefty failed to timely file a responsive pleading. When Cerroni moved for default judgment, Hefty opposed and sought to enlarge the time to file an answer through attorney Nancy Thome’s office.
At the hearing, Hefty testified that after being served, he left the summons and complaint with Thome’s office. Hefty believed Thome already represented him because he had consulted with her on a separate, earlier matter regarding the same estate. Thome was out on a family emergency. Hefty admitted knowing of the response deadline but stated his work schedule was “very chaotic,” he was “forgetful on certain dates,” and he believed court deadlines could typically be postponed. He never followed up with Thome’s office after leaving the documents and never contacted the court.
The circuit court denied Hefty’s motion to enlarge time and granted default judgment, finding no excusable neglect. After the entry of default, Hefty retained new counsel and moved for relief under Wis. Stat. § 806.07(1). He presented evidence of cognitive testing showing “mild neurocognitive disorder” and a neurology referral. The circuit court again denied relief, observing that Hefty’s trial testimony showed he could follow the proceedings and respond appropriately, and concluding he simply lost track of time.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the circuit court’s denial of relief from the default judgment. On Hefty’s argument under § 806.07(1)(a) (excusable neglect), the court found that Hefty failed to develop an argument under the correct standard of review for discretionary decisions. He did not demonstrate that the circuit court failed to examine relevant facts, applied the wrong legal standard, or failed to employ a rational process. The appellate court noted that the circuit court’s findings—that Hefty’s assumption Thome already represented him was unreasonable, that he passively waited without follow-up, that he knew of the deadline but believed it could be postponed, and that he simply lost track of time due to work demands—were supported by the record.
On Hefty’s alternative argument under § 806.07(1)(h) (extraordinary circumstances), the court held the argument was forfeited. Although Hefty did not specify which subsection he relied on in his motion to the circuit court, at the hearing he explicitly argued this was “a classic case of excusable neglect,” demonstrating reliance only on subsection (1)(a). Hefty’s subsequent attempt to preserve the (1)(h) argument by reference to facts in his brief was insufficient; the forfeiture rule focuses on whether particular legal arguments were preserved, not whether general facts were presented.
Key Takeaways
- Leaving legal documents with an attorney’s office and passively waiting without follow-up does not constitute excusable neglect, particularly when the client knew of the deadline and failed to contact either the attorney or the court.
- A party’s general life circumstances (busy work schedule, forgetfulness about dates, mistaken belief that deadlines are flexible) do not excuse failure to respond to a summons and complaint.
- Evidence of a mild neurocognitive disorder is insufficient to overturn a default judgment when the party’s own courtroom demeanor and testimony demonstrate capacity to follow proceedings.
- Arguments for relief from judgment must be raised and developed in the circuit court with specificity; appellate courts will not address forfeited legal theories, even if supporting facts were presented below.
Why It Matters
This decision reinforces that Wisconsin courts apply a strict approach to excusable neglect in the default judgment context. The case illustrates that defendants cannot rely on attorney unavailability, personal disorganization, or undiagnosed or newly diagnosed cognitive conditions to escape the consequences of failure to respond. The requirement that Hefty actively follow up—either with his attorney or with the court—sets a meaningful obligation on litigants to take responsibility for their cases.
The opinion also demonstrates Wisconsin’s rigid forfeiture doctrine in appellate practice. By failing to explicitly raise the extraordinary circumstances argument under § 806.07(1)(h) before the circuit court, Hefty lost the ability to pursue it on appeal, even though the same facts underlay both theories. This serves as a cautionary note for practitioners drafting motions for relief: legal theories must be clearly identified and developed at the trial level or they are forever barred from appellate review.