806.07 Relief from judgment or order.

(1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

(b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15 (3);

(c) Fraud, misrepresentation, or other misconduct of an adverse party;

(d) The judgment is void;

(e) The judgment has been satisfied, released or discharged;

(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;

(g) It is no longer equitable that the judgment should have prospective application; or

(h) Any other reasons justifying relief from the operation of the judgment.

(2) The motion shall be made within a reasonable time, and, if based on sub. (1) (a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.

(3) A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under s. 48.91 (3) granting adoption of a child. A petition for termination of parental rights under s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.

History: Sup. Ct. Order, 67 Wis. 2d 585, 726 (1975); 1975 c. 218; 1997 a. 114.

There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian, 79 Wis. 2d 374, 255 N.W.2d 564 (1977).

A lawyer's failure to answer a complaint due to misplacing a client's papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske, 80 Wis. 2d 64, 257 N.W.2d 865 (1977).

The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to plaintiff's counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan, 81 Wis. 2d 463, 260 N.W.2d 700 (1977).

Section 805.17 (3) does not limit a trial court's discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith, 82 Wis. 2d 667, 264 N.W.2d 239 (1978).

A motion filed over 6 months after the entry of judgment was not filed within a “reasonable time" under sub. (2). Rhodes v. Terry, 91 Wis. 2d 165, 280 N.W.2d 248 (1979).

A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 Wis. 2d 407, 284 N.W.2d 674 (1979).

Neglect by both a lawyer and client was not “excusable." Charolais Breeding Ranches v. Wiegel, 92 Wis. 2d 498, 285 N.W.2d 720 (1979).

The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Association v. Barkwood Landscaping Co., Inc. 93 Wis. 2d 190, 286 N.W.2d 581 (1980).

Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council, 102 Wis. 2d 521, 307 N.W.2d 322 (Ct. App. 1981).

A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. Wisconsin Public Service Corporation v. Krist, 104 Wis. 2d 381, 311 N.W.2d 624 (1981).

New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R. A. S. v. J. M. 114 Wis. 2d 305, 338 N.W.2d 851 (Ct. App. 1983).

Sub. (1) (h) allows relief even if the claim sounds in par. (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H. 122 Wis. 2d 536, 363 N.W.2d 419 (1985).

The “reasonable time" requirement of sub. (2) does not apply to void judgments. Neyland v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).

An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc. 145 Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988).

An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc. 145 Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988).

A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau, 146 Wis. 2d 101, 430 N.W.2d 579 (Ct. App. 1988).

A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson, 157 Wis. 2d 490, 460 N.W.2d 166 (Ct. App. 1990).

A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under sub. (1) (h). Schwochert v. American Family Ins. Co. 166 Wis. 2d 97, 479 N.W.2d 190 (Ct. App. 1991). See also Schwochert v. American Family Insurance Co. 172 Wis. 2d 628, 494 N.W.2d 201 (1992).

A property division may be modified under s. 806.07, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 Wis. 2d 285, 493 N.W.2d 737 (Ct. App. 1992).

Sub. (1) (g) applies only to equitable actions. Nelson v. Taff, 175 Wis. 2d 178, 499 N.W.2d 685 (Ct. App. 1993).

A “reasonable time" to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C. 181 Wis. 2d 618, 511 N.W.2d 868 (Ct. App. 1994).

A bank that failed to file an answer due to mislaying papers was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 Wis. 2d 321, 525 N.W.2d 271 (Ct. App. 1994).

In determining whether to overturn a default judgment, the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 Wis. 2d 321, 525 N.W.2d 271 (Ct. App. 1994).

A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliot, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct. App. 1995).

Case law is not a “prior judgment" under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis. 2d 62, 533 N.W.2d 470 (1995).

The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Manufacturing, Inc. v. Midland Machinery, 205 Wis. 2d 650, 556 N.W.2d 437 (Ct. App. 1996), 95-3266.

An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin, 209 Wis. 2d 72, 561 N.W.2d 810 (Ct. App. 1997), 96-0827.

When the record demonstrates the circuit court's intention to send notice of an order, but it failed to do so and acknowledged the mistake, the court could effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp. 210 Wis. 2d 638, 563 N.W.2d 519 (1997), 96-1883.

To obtain relief under sub. (2) from a judgment obtained as the result of fraud on a court, the complaining party must have responded without inexcusable neglect, which includes unexplained delay in responding to the original action. Dekker v. Wergin, 214 Wis. 2d 17, 570 N.W.2d 861 (Ct. App. 1997), 96-3258.

To vacate a default judgment under sub. (1) (a), the moving party must set forth a meritorious defense, which is a defense good at law that would survive a motion for judgment on the pleadings. J.L. Phillips & Associates v. E&H Plastic Corp. 217 Wis. 2d 348, 577 N.W.2d 13 (1998), 96-3151.

It was error to define inadvertence under sub. (1) (a) so that virtually any failure on the part of an attorney to predict and appreciate the potential collateral legal consequences of his her own proposed settlement language would have been at least in part from inadvertence. Milwaukee Women's Medical Service, Inc. v. Scheidler, 228 Wis. 2d 514, 598 N.W.2d 588 (Ct. App. 1999), 98-1139.

A circuit court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of s. 806.07 (1) to apply, the court must find that the party opposing the default judgment must have a meritorious defense to the underlying action. Shirk v. Bowling, Inc. 2001 WI 36, 242 Wis. 2d 153, 624 N.W.2d 375, 98-3634.

The existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. A contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, 00-2365.

Orders and judgments subject to this section encompass all the findings of fact and conclusions of law the court makes in arriving at the order or judgment. Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132.

A court may act on its own motion under this section. When it does so, the parties must have notice and the opportunity to be heard. Gittel v. Abram, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132. See also Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279, 05-2935.

A circuit court may properly invoke this section to open the property division provisions of a divorce judgment incorporating a confirmed arbitrated award. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 01-3316.

The competing interests of finality and fairness coalesce when considering sub. (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J. 2004 WI App 58, 271 Wis. 2d 242, 677 N.W.2d 684, 03-1228.

Lack of competency is not jurisdictional and does not result in a void judgment. Accordingly, it is not true that a motion for relief from judgment on grounds of lack of circuit court competency may be made at any time. If a judgment is entered by a circuit court lacking competency and a competency challenge has been waived, sub. (1) (h) may provide an avenue for relief in an extraordinary case. Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, 03-0534.

In determining whether the party seeking relief from a default judgment has proven excusable neglect, the court should consider whether the moving party has acted promptly to remedy the default judgment, whether the default judgment imposes excessive damages, and whether vacatur of the judgment is necessary to prevent a miscarriage of justice. The court must also consider that the law favors the finality of judgments, and the reluctance to excuse neglect when too easy a standard for the vacatur of default judgments would reduce deterrence to litigation-delay. Mohns, Inc. v. TCF National Bank, 2006 WI App 65, 292 Wis. 2d 243, 714 N.W.2d 245, 05-0705.

The burden of proof is on the party seeking to set aside or vacate a default judgment when the question of proper service is involved. The evidence necessary to set aside the judgment is evidence sufficient to allow a reviewing court to determine that the circuit court's findings of fact were contrary to the great weight and clear preponderance of the credible evidence. Richards v. First Union Securities, Inc. 2006 WI 55, 290 Wis. 2d 620, 714 N.W.2d 913, 04-1877.

The discretionary authority afforded the circuit courts by sub. (1) (h) to vacate final judgments is to be used sparingly. The court should consider several factors, including whether: 1) the judgment was the result of the conscientious, deliberate, well-informed choice of the claimant; 2) the claimant received the effective assistance of counsel; 3) relief is sought from a judgment to which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; 4) there is a meritorious defense to the claim; and 5) there are intervening circumstances making it inequitable to grant relief. Allstate Insurance v. Brunswick Corporation, 2007 WI App 221, 305 Wis. 2d 400, 740 N.W.2d 888, 06-1705.

The vigor with which the supreme court denounces a previous decision is not a crucial consideration and itself does not demonstrate unique and extraordinary circumstances under sub. (1) (h). While a circuit court should consider factors bearing upon the equities of the case, the mind set of the supreme court is not such a factor. Allstate Insurance v. Brunswick Corporation, 2007 WI App 221, 305 Wis. 2d 400, 740 N.W.2d 888, 06-1705.

Sub. (1) (h) does not require a finding of excusable neglect. A circuit court is to consider the 5 interest of justice factors in determining whether extraordinary circumstances are present under sub. (1) (h) such that relief from a judgment, including a default judgment, is appropriate. Miller v. The Hanover Insurance Co. 2010 WI 75, 326 Wis. 2d 640, 785 N.W.2d 493, 08-1494.

A circuit court may not award a new trial to a convicted criminal defendant in the interest of justice under sub. (1) (g) or (h). Sections 974.02 and 974.06 were written to provide the primary statutory means of postconviction, appeal, and post-appeal relief for convicted criminal defendants. State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350, 08-0697.

When the circuit court's clear and acknowledged mistake deprives a party of its right to appeal, this section may provide a basis for vacating and reentering the order or judgment. Werner v. Hendree, 2011 WI 10, 331 Wis. 2d 511, 795 N.W.2d 423, 08-2045.

Sub. (1) can be used to reopen judgments confirming arbitration awards. Under s. 788.14 (3), a judgment confirming an arbitration award shall “have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action." Sands v. Menard, Inc. 2013 WI App 47, 347 Wis. 2d 446, 831 N.W.2d 805, 12-0286.

The fact that a party later regretted her stipulated bargain because her appellate attorney thought of arguments neither she nor her trial attorney considered before the stipulation was signed is not a “mistake." If anything, it is hindsight. But hindsight does not make a stipulation invalid under sub. (1). Ronald J. R. v. Alexis L. A., 2013 WI App 79, 348 Wis. 2d 552, 834 N.W.2d 437, 12-1300.

In deciding a motion under sub. (1) (h), the circuit court should examine the allegations accompanying the motion, assume they are true, and determine whether they present extraordinary or unique facts justifying relief under sub. (1) (h). The circuit court should consider whether unique or extraordinary facts exist that are relevant to the competing interests of finality of judgments and relief from unjust judgments. If the circuit court finds extraordinary or unique facts from the court's review of the motion materials, the court should hold a hearing to decide the truth or falsity of the allegations. Thoma v. Village of Slinger, 2018 WI 45, 381 Wis. 2d 311, 912 N.W.2d 56, 15-1970.

Too Late? Interests of Justice Trump Default Judgments. Nelson. Wis. Law. Nov. 2012.