Review granted in 'Larry v. Harris'

(2005AP2935)

This case examines the proper analysis for circuit courts to follow when handling a default judgment when the defendant never appears in the circuit court.

Some background: Taneceia Larry was present at a drug deal that occurred at a gas station in Milwaukee on Aug. 26, 2002. Larry knew, by sight but not by name, a man at the gas station, who asked for a ride home. Larry gave the man a ride to her house. When they arrived in front of Larry's home, an unmarked squad car containing Milwaukee Police officers Derrick Harris and M'Johno Foster pulled up behind Larry's car and the unidentified man fled on foot. Police gave chase but did not apprehend him. Larry consented to a search of her vehicle but not her home. Police said they planned to book Larry and entered the home without a warrant to check on five children who were under a babysitter's care. No charges were ever filed against Larry. She filed a lawsuit naming the two officers and a third, Carlos Rutherford, who arrived apparently as back up and to transport Larry to the police station.

The circuit court initially entered a judgment against Rutherford after he failed to file a timely response. Officer Harris answered the complaint and ultimately obtained summary judgment on the grounds that Larry's complaint did not state a valid claim. In addition to dismissing the action against Harris, the circuit court also vacated the order for default judgment against Rutherford and dismissed the complaint against him, even though he still did not appear in the case and ask to be dismissed. Larry asked the circuit court to reconsider, but the court concluded it could vacate the default judgment under Wis. Stat. § 806.07.

The Court of Appeals affirmed. [2007 WI APP 132] Larry has asked the Supreme Court to review an issue that does not appear to have been addressed in a previous state appellate court decision. The Supreme Court has also asked the parties to address whether the circuit court's default order constituted a final judgment. From Milwaukee County.

A decision by the Supreme Court could help clarify the law statewide on an issue that is likely to recur. From Dane County.