Backus Electric, Inc. v. Petro Chemical Systems, Inc.

2013 WI App 35, 829 N.W.2d 516, 346 Wis. 2d 668, 2013 WL 513913, 2013 Wisc. App. LEXIS 124
CourtCourt of Appeals of Wisconsin
DecidedFebruary 13, 2013
DocketNo. 2011AP3004
StatusPublished
Cited by3 cases

This text of 2013 WI App 35 (Backus Electric, Inc. v. Petro Chemical Systems, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Backus Electric, Inc. v. Petro Chemical Systems, Inc., 2013 WI App 35, 829 N.W.2d 516, 346 Wis. 2d 668, 2013 WL 513913, 2013 Wisc. App. LEXIS 124 (Wis. Ct. App. 2013).

Opinion

GUNDRUM, J.

¶ 1. Old Republic Insurance Company appeals from a default judgment entered against it after it failed to timely answer an amended complaint by Backus Electric, Inc. Old Republic argues that, as surety for co-defendant Petro Chemical Systems, Inc. (PCS), it cannot be held liable unless PCS is first found liable on the underlying subcontract between PCS and Backus. Alternatively, Old Republic contends the circuit court failed to properly exercise its discretion when it granted Backus's default judgment motion. We disagree on both points and affirm.

BACKGROUND

¶ 2. Backus commenced a contract action against PCS and subsequently filed and served an amended complaint (complaint) naming Old Republic and Manitowoc County as additional defendants. In relevant part, [671]*671the complaint alleges: PCS was hired as general contractor to perform work on the Manitowoc County Airport; PCS and Backus entered into a subcontract for Backus to perform electrical work related to the project; PCS and Old Republic entered into a contract in which Old Republic agreed to act as surety for PCS to guaranty PCS's performance and payment for, among other things, amounts due Backus under the subcontract; and PCS wrongfully terminated its subcontract with Backus and denied Backus's requests for payment for work Backus performed. The complaint further alleges PCS, Manitowoc County, and Old Republic owe Backus $25,313.11, and demands judgment against the three, jointly and severally, for that amount.

¶ 3. PCS and Manitowoc County timely answered the complaint. PCS's answer included a denial of allegations related to its liability as well as that of Old Republic. Old Republic did not timely answer, and Backus moved for default judgment against it. Two weeks later, the circuit court held a hearing on the motion. Minutes before the hearing, counsel for Old Republic1 filed a notice of appearance and a letter contending that "[djefault judgment may not be granted" because, as a surety, Old Republic's liability "is entirely derivative of the liability of PCS" and PCS had not yet been proven liable. At the hearing, the court considered the parties' arguments, but adjourned the hearing for several weeks to give it time to further consider the arguments and to review case law cited by Old Republic.

¶ 4. Between the first and second hearing, and weeks after the deadline for timely answering the [672]*672complaint, Old Republic filed an answer, without moving for an extension of time to do so. Backus moved to strike the answer. At the conclusion of the second hearing, the circuit court implicitly struck Old Republic's answer and granted Backus's motion for default judgment. The court entered judgment against Old Republic for the amount demanded in the complaint. Old Republic appeals. Additional facts are set forth as necessary.

DISCUSSION

¶ 5. Old Republic acknowledges it is in default, but contends the circuit court nonetheless erred in entering judgment against it because, as surety for PCS, its liability is entirely derivative of PCS's liability, and, therefore, it cannot be found liable to Backus unless PCS is first found liable. Related to this argument, Old Republic suggests that, even though it failed to file a timely answer on its own behalf, default judgment should not have been entered against it because PCS's answer denied both PCS's liability and that of Old Republic. Old Republic alternatively contends that even if it was subject to default judgment, the court erroneously entered judgment because it failed to properly exercise its discretion.

¶ 6. Backus responds that the issue is not one of derivative liability but rather one of default — Old Republic was required to file its own timely answer to the complaint, and it did not do so. Backus also points out that Old Republic has never moved for an extension of time to properly file its answer. Quoting heavily from our supreme court's decision in Estate of Otto v. Physicians Insurance Co. of Wisconsin, 2008 WI 78, 311 [673]*673Wis. 2d 84, 751 N.W.2d 805, Backus argues that (1) "the effect of a defendant's default is to make available the remedy of a judgment by default" and (2) there is no exemption "as a matter of law from the provisions of the default judgment statute" for a surety who has not joined issue as it was statutorily required to do. See id., ¶¶ 49, 50. We agree with Backus that the issue is one of default and conclude the circuit court did not err in granting default judgment against Old Republic.

¶ 7. Whether to grant a motion for default judgment is addressed to the sound discretion of the circuit court. Id., ¶ 29. In reviewing a court's decision, however, we decide independently questions of law imbedded in its exercise of discretion. Id. Here, Old Republic's contention that it cannot be held liable unless the underlying principal, PCS, is first found liable is a question of law. Our supreme court's interpretation of relevant statutes in Otto answers this question.

¶ 8. Otto involved a medical malpractice complaint against a professional liability insurer and its co-defendant insureds in which the insurer failed to timely answer the complaint. The insureds, however, did timely answer, denying their own liability and that of the insurer. Arguing against default judgment, the insurer contended that, despite its own default, it remained entitled to a trial on the issue of its and its insureds' liability to the plaintiff because its insureds' timely answer included a denial of the insurer's liability. Id., ¶ 12.

¶ 9. In affirming the circuit court's grant of default judgment against the insurer, the Otto court thoroughly analyzed statutory provisions also applicable to the present case; thus we need not repeat the [674]*674analysis. Reviewing Wis. Stat. §§ 802.02 (2011-12)2 (governing pleadings)3 and 806.02 (governing default judgment),4 the Otto court concluded that, with limited exceptions not applicable here, averments in a com[675]*675plaint are deemed admitted when not denied by a defendant in an answer. Otto, 311 Wis. 2d 84, ¶¶ 42, 47-49, 54-56. The court further clarified that a party must answer on its own behalf; it will not suffice to avoid default judgment that another party has denied liability on behalf of a nonanswering defendant. Id,., ¶¶ 48-49, 53-54, 120.

¶ 10. The Otto court also concluded that Wis. Stat. §§ 802.06(1) (stating that "a defendant shall serve an answer within [specifying times] ....") and 802.09(1) (stating that "[a] party shall plead in response to an amended pleading within [specifying times]....") establish that a defendant has an "unequivocal duty to serve its answer timely to the complaint served against it." Otto, 311 Wis. 2d 84, ¶ 56 & n.28 (emphases in Otto). The court further recognized the importance of these provisions by reiterating that "[c]ourts ought to have authority to impose a serious sanction" for failure to timely answer a complaint. Id. (quoting Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 29, 253 Wis. 2d 238, 646 N.W.2d 19).

¶ 11. The Otto court drew heavily from an earlier case involving an insurer's default, Martin v. Griffin, 117 Wis.

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Bluebook (online)
2013 WI App 35, 829 N.W.2d 516, 346 Wis. 2d 668, 2013 WL 513913, 2013 Wisc. App. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/backus-electric-inc-v-petro-chemical-systems-inc-wisctapp-2013.