Wisconsin Lawyer: Practice Tips: The Greatest Set of Motions You've Never Heard of:

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March 10, 2008

Practice Tips: The Greatest Set of Motions You've Never Heard of

Plaintiffs' attorneys who use, under the right set of circumstances, the relatively obscure motion for judgment on admitted claim or motion for an order to satisfy the admitted claim can achieve a good result, reduce the length of litigation, and save their clients time and money. Here's how.

Renee M. Mehl

Practice Tips

The Greatest Set of Motions You've Never Heard Of

by Renee M. Mehl

Most attorneys have never heard of - much less used - a motion for judgment on the admitted claim or a motion for an order to satisfy the admitted claim. More than one judge has told the author that he or she had to look up the statute to determine what kind of relief was being requested. In spite of their obscurity, these statutory devices have the potential to quickly resolve cases for plaintiffs' attorneys and to allow judges to enter judgment in early stages of litigation with little hesitation.

Wis. Stat. section 806.03 governs motions for judgments on the admitted claim and for orders to satisfy the admitted claim. The statute becomes applicable when the defendant makes an admission in the answer.

Admission in the Answer Triggers Two Scenarios

Wis. Stat. section 806.03 describes two scenarios triggered by an admission in the answer.¹

Renee M. Mehl, Marquette 2006 cum laude, is an associate at the commercial litigation firm of Kohner, Mann & Kailas S.C., Milwaukee. She litigates business and commercial finance matters before federal courts and the state courts of Illinois and Wisconsin. She thanks attorney Andrea L. Murdock for her assistance with this article.

In the first scenario, the defendant, in his or her answer, admits any part of the plaintiff's claim or sets up a counterclaim for an amount less than the plaintiff's claim. The answer contains no other defense to the action. If the defendant makes either type of admission, the plaintiff can file a motion for the clerk to enter judgment in either the amount admitted or the amount claimed in the complaint less the amount stated in the counterclaim. If the motion is granted and the amount is reduced to a judgment, the case is fully adjudicated because the plaintiff is entitled to only one judgment.²

In the second scenario, the defendant still admits part of the claim, but instead of filing a motion for judgment on the admitted claim, the plaintiff files a motion for an order to satisfy the admitted claim so that the case will proceed as to the balance of the claim if additional amounts are allegedly due and owing. However, the plaintiff can immediately enforce the order as to the admitted claim (as it could any other court-ordered judgment) through post-judgment collection efforts, such as a garnishment action.

Accordingly, the plaintiff may pursue the balance of the claim (that is, the part of the claim that was not admitted) only if the plaintiff files a motion for an order to satisfy the admitted claim.³

The glory for the plaintiff and the pitfall for the defendant is that there may be no defenses to the motions. In other words, judicial economy and common sense dictate that if one has admitted that an amount is due and owing, the labor of litigation as to that part of the claim is unnecessary. The defendant may thwart a quick victory by recanting its admission through an amendment under Wis. Stat. section 802.09; however, the defendant likely will not use this remedial measure in practice. First, a defendant that files a haphazard answer probably will not recognize its error, if at all, until after the amendment deadline set forth in section 802.09 or the deadline for amendments in the scheduling order has elapsed.⁴ Moreover, a strategy-minded plaintiff will not advise the defendant of the effect of its admission or file the motion until after these periods have elapsed. If the defendant attempts to amend outside the designated period, a court might find it difficult to conclude that justice requires giving the defendant an opportunity to recant its admission, especially when justice probably requires the defendant to face the consequences of an admitted debt.

Circumstances Giving Rise to the Motions

At first glance, the opportunity to file this motion may seem rare if not merely theoretical. In practice, however, the circumstances arise more often than one might think. For example, in one case, the plaintiff, an appliance distributor, filed a complaint stating that the defendant contractor owed the plaintiff $63,073.61 for goods sold and delivered.⁵ In the answer, the defendant stated that it "denies that the debt owed to plaintiff exceeds $50,000" in response to the paragraph of the complaint listing the amount due and owing. In this example, the plaintiff could have filed a motion for judgment in the admitted claim as to the amount the defendant admitted to owing: $50,000. Alternatively, the plaintiff could have filed a motion for an order to satisfy the admitted claim and then sought the remainder of the claim at trial.

Understandably, the use of this unambiguous statute rarely has been an issue at the appellate level, yet the following cases demonstrate its utility. In E.C. Styberg Engineering Co. v. Consumer Steel & Supply Co.,⁶ the Wisconsin Court of Appeals applied section 806.03 in an action in which the defendant admitted to the entire claim but stated that it was entitled to a credit based on a deficient pre-termination notice. The court of appeals affirmed judgment in the amount admitted plus simple interest less the credit requested.⁷ In Stan's Lumber Inc. v. Fleming,⁸ the trial court found that the defendant admitted an amount due and owing of $8,790.73 in the answer but left the jury to resolve the issues related to the remainder of the claim. Therefore, the section 806.03 motion functioned like a motion for partial summary judgment. Any issues related to the admitted part of the claim were adjudicated, thereby limiting the issues for the jury.

Carefully Choose Which Motion to File

In choosing which motion to file, the plaintiff must carefully weigh the alternatives. By filing a motion for judgment on the admitted claim when only part of the claim is admitted, the plaintiff sacrifices its right to litigate the remainder of the claim. However, the plaintiff might choose to take immediate steps to enforce the judgment and save itself the burden and expense of further litigation when the outcome is unknown. On one hand, if the plaintiff chooses to file a motion for an order to satisfy the admitted claim (and the plaintiff succeeds), the plaintiff might save the difference between the cost of litigating the case and the remaining amount of the claim. On the other hand, the plaintiff has not sacrificed its rights to the entire claim and can recoup some of its losses through enforcement of the order. At any rate, the motions share one advantage: The defendant may become very motivated to negotiate a settlement if either motion is filed.

Limitations to Using the Motions

Like all good things for plaintiffs' attorneys, there are limitations to the use of these statutory devices. The admitted statement must be in the answer - an admission in response to an interrogatory, for example, will not suffice. Moreover, the complaint must set forth a liquidated sum of money that arises out of an express contract. The ideal factual situation is a lawsuit for goods sold and delivered, because the plaintiff easily can determine the liquidated sum. There might be other circumstances in which this statutory device could be used if a fixed sum can be set forth in the complaint without forfeiting any part of the client's claim, such as a suit to recover on a breach of a promissory note.

Clearly, plaintiffs' attorneys cannot use these motions in every matter, but they can keep this handy tool tucked away for use when the right circumstances arise. By using this tool, plaintiffs' attorneys can obtain a judgment or at the very least decisive leverage over a defendant and also can earn the gratitude of their clients for saving them time and money.

Endnotes

¹For a detailed examination of the importance of the form and distinction between each motion, see E.C. Styberg Engineering Co. v. Consumer Steel & Supply Co., 118 Wis. 2d 85, 347 N.W.2d 167 (Ct. App. 1984). In this case, plaintiff's counsel moved for judgment on the admitted claim although counsel meant to preserve the remainder of the claim. When the Wisconsin Court of Appeals affirmed the trial court's entry of judgment, counsel learned the hard way that the distinction provided for in the statute is an important one.Id. at 91-92.

²See Seller v. Union Lumbering Co.,36 Wis. 398, 401 (1874) ("There is no such thing now as an interlocutory judgment in a case; the only judgment authorized being one that finally disposes of and determines the right of the parties.")

³For a sample of forms for the motion, judgment, and order, see Jay Grenig & Nathan Fishbach, Wisconsin Practice Series §§ 85.1-.24 (3d ed. 2007).

⁴Although Wis. Stat. section 802.09 provides that parties can amend their pleadings as of right within six months after the summons and complaint are filed, the deadline for amending pleadings is much sooner in practice. In many Wisconsin counties, scheduling conferences are held shortly after the answer is filed. At those conferences, the deadlines set to amend the pleadings are brief to avoid delay. Milwaukee County courts, for example, set scheduling conferences within 60 days from the date of the filing of the summons and complaint. See Milwaukee County Circuit Ct. Rule 333. At those conferences, judges might not grant any additional time for amendments.

⁵See Kennedy Hahn v. Sullivan, No. 07-CV-352 (Wis. Cir. Ct. Ozaukee County)

⁶118 Wis. 2d 85, 86-89, 347 N.W.2d 167 (Ct. App. 1984).

⁷Id.

⁸196 Wis. 2d 554, 561-63, 538 N.W.2d 839 (Ct. App. 1995). Note that the court of appeals stated that the trial court granted "judgment" on the admitted claim; however, this is not a correct statement of what transpired. Because the trial court allowed the plaintiff to proceed as to the balance of the claim at trial, the trial court actually granted a motion for an order to satisfy the admitted claim. However, it is clear that the plaintiff reserved its rights as to the reminder of the claim; thus, the mischaracterization had no practical effect on the resolution of the case.

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