Frank T. Whitehead v. Indianhead Food Distribution

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 30, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1368 Cir. Ct. No. 2019SC227

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

FRANK T. WHITEHEAD,

PLAINTIFF-APPELLANT,

V.

INDIANHEAD FOOD DISTRIBUTION AND CORBET PETERSEN,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Juneau County:
PAUL S. CURRAN, Judge. Affirmed.

¶1 KLOPPENBURG, J.1 Frank T. Whitehead moved the circuit court
for default judgment against Indianhead Food Distribution and Corbet Petersen.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1368

Whitehead argued that he was entitled to default judgment in his favor because
Indianhead and Petersen failed to file their answer to his small claims summons
and complaint by the time of the original return date, and the court commissioner
erroneously adjourned the return date to two weeks later. The circuit court denied
Whitehead’s motions and subsequently dismissed the case after a trial to the court.
On appeal, Whitehead challenges the court commissioner’s adjournment of the
return date and the circuit court’s denial of his motions for default judgment. As I
explain, I conclude that Whitehead fails to meet his burden to show that the circuit
court erroneously exercised its discretion and, therefore, I affirm.

BACKGROUND2

¶2 Whitehead commenced this action on March 18, 2019, by filing a
small claims summons and complaint against Indianhead and Petersen, the
Customer Satisfaction Coordinator for Indianhead. In his complaint, Whitehead
alleged strict liability and negligence claims arising from his becoming ill after

2
Whitehead provides no citations to the record in his statement of the case and facts, and
the argument sections in his briefs in many instances lack appropriate record citations as required
by WIS. STAT. RULE 809.19(1)(d)-(e). This is inappropriate even for a pro se litigant. See
Waushara Cty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992) (“Pro se appellants must
satisfy all procedural requirements, unless those requirements are waived by the court.”).
Whitehead also does not include an appendix containing the circuit court’s decision that he
appeals, as required by RULE 809.19(2)(a).

This is a high-volume court. State v. Bons, 2007 WI App 124, ¶21, 301 Wis. 2d 227, 731
N.W.2d 367. Compliance with the Rules of Appellate Procedure, particularly those rules
regarding accurate record citation, is not optional and is essential to the timely performance of our
duties. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964).
This court has no duty to scour the record to review arguments unaccompanied by adequate
record citation. Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741
N.W.2d 256.

Nevertheless, I have chosen to review the record and I analyze Whitehead’s arguments
based on that record despite these deficiencies in his briefing.

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consuming peanut butter sold by Indianhead. Indianhead and Petersen were
served with the summons and complaint on March 26 and 27, 2019, respectively.
The summons set a return date of April 15, 2019 at 12:30 p.m.

¶3 At 8:37 a.m. on April 15, 2019, when Whitehead appeared by letter
and Indianhead and Petersen had not yet appeared, the Juneau County Court
Commissioner adjourned the return date to April 29, 2019, to allow for Indianhead
and Petersen to file a written answer. Indianhead and Petersen filed an answer on
April 25, 2019. On April 29, 2019, the court commissioner set the case over for
trial in the circuit court.

¶4 In May 2019, Whitehead filed with the Juneau County Circuit Court
motions for default judgment and to strike the answer, based on the failure of
Indianhead and Petersen to have filed a written answer by the time of the original
April 15 return date. Indianhead and Petersen responded to the content of
Whitehead’s motions by letter to the court. On June 3, 2019, the court held a
telephone hearing on Whitehead’s motions. At the conclusion of the hearing, the
court denied Whitehead’s motions and set the case for a small claims court trial on
July 19, 2019.

¶5 At the trial on July 19, Whitehead presented his evidence, and the
circuit court dismissed the case.

¶6 Whitehead appeals.

DISCUSSION

¶7 Whitehead challenges the court commissioner’s adjournment of the
return date and the circuit court’s denial of his motions for default judgment.

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¶8 First, I clarify that the only decision properly before this court on
appeal is the circuit court’s denial of Whitehead’s motions for default judgment.
See State v. Trongeau, 135 Wis. 2d 188, 191-92, 400 N.W.2d 12 (Ct. App. 1986).
Circuit courts, not court commissioners, issue appealable orders. See id.; see also
Dane Cty. v. C.M.B., 165 Wis. 2d 703, 708-9, 478 N.W.2d 385 (1992) (a court
commissioner’s order is not equivalent to a final order or judgment of a circuit
court, and only a final order or judgment may be appealed as of right to this court
under WIS. STAT. § 808.03(1)). Accordingly, this court’s inquiry is necessarily
limited to whether the circuit court properly denied Whitehead’s motions for
default judgment.

¶9 The decision to deny a motion for default judgment is reviewed
under the erroneous exercise of discretion standard. Shirk v. Bowling, Inc., 2001
WI 36, ¶15, 242 Wis. 2d 153, 624 N.W.2d 375. This court sustains such a
decision if the circuit court examined the relevant facts, applied a proper standard
of law, and used a demonstrated rational process to reach a conclusion that a
reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320
N.W.2d 175 (1982).

¶10 The circuit court provided two reasons for its denial of Whitehead’s
motions. First, the court explained that the provisions of WIS. STAT. ch. 801 on
which Whitehead based his motions do not apply to small claims actions. Second,
the court explained that the statutory provision that does apply, WIS. STAT.
§ 799.22(2), provides that the court commissioner may enter judgment against a
defendant who does not appear by the return date; that the word “may” is
permissive, not directory; and that Whitehead failed to provide any support for his
argument that it was error for the court commissioner to have adjourned the return
date to two weeks later when Indianhead and Petersen had not yet answered by the

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time of the original return date. Accordingly, the court denied Whitehead’s
motions.

¶11 I now address in turn each of Whitehead’s arguments that the circuit
court erred, as best I can discern them.

¶12 First, Whitehead appears to argue that the circuit court erred because
it did not exercise any discretion at all in reviewing Whitehead’s motions for
default judgment. However, that argument fails because the transcript shows that
the court did exercise its discretion. The court explained why the law regarding
the provisions of WIS. STAT. ch. 801 on which Whitehead relied does not apply to
a court commissioner’s adjournment of the return date in a small claims action,
and Whitehead does not argue that the court’s explanation was wrong. The court
also considered that Whitehead presented no showing why the court commissioner
erred in entering its adjournment order and therefore the court concluded that
under applicable law it could not discern any basis for disturbing that order.

¶13 Second, while Whitehead does not argue that the circuit court
disregarded facts showing why the court commissioner erred in adjourning the
return date, he appears to argue that the court misapplied the law. Specifically, he
appears to argue that under the law, the court commissioner had no authority to
adjourn the return date and was required to enter judgment against Indianhead and
Petersen. However, the circuit court’s decision is consistent with the applicable
law. Small claims procedure is governed by WIS. STAT. ch. 799. Pertinent here,
under WIS. STAT. § 799.20(1), “On the return date of the summons or any
adjourned date thereof the defendant may answer, move to dismiss under
s. 802.06(2) or otherwise respond to the complaint.” (emphasis added). This
statute acknowledges the authority of the court commissioner to set an adjourned

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date. See also WIS. STAT. § 799.207(1)(b) (providing in pertinent part that, if there
is not time available for a hearing on the return date or if, for any of the other
“reasons stated in this paragraph, the matter cannot be heard on the return date, an
adjourned date shall be set.”). Under WIS. STAT. § 799.22(2), “If the defendant
fails to appear on the return date or on the date set for trial, the court may enter a
judgment upon due proof of facts which show the plaintiff entitled thereto.”
(emphasis added). Taken together, the statutes permit the court commissioner to
adjourn the return date when Indianhead and Petersen had not yet appeared by the
original return date. See Shirk, 242 Wis. 2d 153, ¶15 (stating that the use of the
word “may” indicates that there is no requirement to take the action at issue); see
also State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (we interpret statutory language “in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” In sum, Whitehead fails to show that the circuit court
misapplied the law.

¶14 Third, Whitehead points to a Juneau County Small Claims
Procedures and Information document which states, “If the defendant fails to file
an answer on time, the Court Commissioner will enter a ‘default judgment’ against
the defendant.” Whitehead does not appear to contest that the defendants filed an
answer before the adjourned return date; instead, he asserts that Indianhead and
Petersen were “late” because they did not file an answer by the original return
date. Therefore, according to Whitehead, the Juneau County procedures mandated
that the court commissioner enter a default judgment against Indianhead and
Petersen. However, Whitehead has forfeited this argument because he did not
raise it before the circuit court and, therefore, I reject this argument on this basis.

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State Farm Mut. Auto. Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358 Wis. 2d
379, 856 N.W.2d 633 (“Arguments raised for the first time on appeal are generally
deemed forfeited.”).

¶15 Fourth, Whitehead argues that the circuit court should have granted
his motions for default judgment against Indianhead and Petersen for their failure
to answer before the original return date, because they failed to show good cause
or excusable neglect for their failure to answer by the time of the initial return
date. He also faults the circuit court for failing to determine whether Indianhead
and Petersen acted egregiously or in bad faith, citing Kleinsmith v. Menard, Inc.,
2000 WI App 161, ¶5, 238 Wis. 2d 92, 617 N.W.2d 676, in support of his
argument. However, Kleinsmith restates the language in WIS. STAT. § 799.22,
that a court may enter a default judgment in favor of the plaintiff if the defendant
fails to answer. See also WIS. STAT. § 799.206 (providing the same for a circuit
court commissioner). Again, use of the word “may” indicates only that default
judgment may be entered, not that it must be. Whitehead cites no law supporting
the proposition that a court commissioner must enter a default judgment, and may
not adjourn a return date, absent a showing of good cause or excusable neglect or a
showing that the party did not act egregiously or in bad faith, and I reject his
arguments on that basis. See Industrial Risk Insurers v. American Eng’g
Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82
(“Arguments unsupported by legal authority will not be considered, and we will
not abandon our neutrality to develop arguments.” (internal citation omitted)).

¶16 For the same reason, I reject Whitehead’s fifth, related argument that
Indianhead and Petersen were obligated, and therefore failed, to obtain permission
from the court commissioner for an adjourned hearing date. Specifically, the case
on which Whitehead primarily relies, Hedtcke v. Sentry Ins. Co., 109 Wis. 2d

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461, 326 N.W.2d 727 (1982), does not support his argument because it addresses
the circuit court’s authority to enlarge the time to file an answer under WIS. STAT.
ch. 801, not to adjourn a return date under WIS. STAT. ch. 799. See Hedtcke, 109
Wis. 2d at 470 (addressing whether the circuit court properly exercised its
discretion to enlarge the time for filing an answer under WIS. STAT.
§ 801.15(2)(a)). Moreover, WIS. STAT. § 799.207(1)(b) refutes Whitehead’s
argument that the court commissioner may not adjourn a return date absent any
request by the parties to do so. As referenced above, that statute provides that

a decision shall be rendered by the circuit court
commissioner on the return date if there is time available
for a hearing, the parties do not intend to call witnesses,
and the parties agree to such a hearing. If for any of the
reasons stated in this paragraph, the matter cannot be heard
on the return date, an adjourned date shall be set.

§ 799.207(1)(b).

¶17 More generally, the legal basis for Whitehead’s arguments
throughout his briefing is related to a defendant’s failure to timely file an answer
under certain provisions of WIS. STAT. § ch. 801, but, as explained above, he does
not develop any argument that the circuit court’s explanation regarding why those
provisions of ch. 801 do not apply here is wrong.

¶18 Finally, Whitehead makes three blanket assertions unsupported by
any developed argument. One, he asks that this court review the record for plain
error, “even though … not specifically raised by” him. However, it is not this
court’s role to act as his advocate. See Jensen v. McPherson, 2004 WI App 145,
¶6 n.4, 275 Wis. 2d 604, 685 N.W.2d 603 (“It is not this court’s responsibility to
sift and glean the record in extenso to find facts supporting [the party’s]
argument.”); State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App.

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1992) (this court “cannot serve as both advocate and judge”). Two, Whitehead
states that he appeals “(THE WHOLE) final judgment” entered by the circuit court
on July 19, 2019. However, he makes no argument about the judgment of
dismissal and, therefore, I do not consider this statement further. See Associates
Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d
915, 656 N.W.2d 56 (the court may decline to consider conclusory and
undeveloped arguments that are not adequately briefed). Three, Whitehead
requests discretionary reversal pursuant to WIS. STAT. § 752.35, “in the interest of
justice.” However, Whitehead fails to show that this is an “exceptional case”
warranting discretionary reversal. See State v. Schutte, 2006 WI App 135, ¶62,
295 Wis. 2d 256, 720 N.W.2d 469 (“We exercise our authority to reverse in the
interest of justice under WIS. STAT. § 752.35 sparingly and only in the most
exceptional cases.”).

¶19 I have addressed Whitehead’s assertions as best I understand them.
To the extent that Whitehead may intend to make other arguments that I do not
directly address, I reject them on the grounds that they are inadequately briefed
and lack discernable potential merit. See Pettit, 171 Wis. 2d at 646-47 (the court
of appeals need not address the merits of inadequately developed arguments).

CONCLUSION

¶20 For the reasons stated, I affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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