STATEMENT OF THE CASE AND STATEMENT OF FACTStc "STATEMENT OF THE CASE AND STATEMENT OF FACTS"

     The summons and complaint in this action, filed on May 4, 1995, seek compensation for Dean Herlache's death.  [R. 1]^[1]  Dean^[2] suffered fatal injuries at work while he was using two three-ton vehicle stands distributed by Blackhawk Collision Repair, Inc. (hereinafter, Blackhawk).  [R. 1:4-5]  Heritage, Dean's employer's workman compensation carrier, paid medical bills, death benefits and other compensation pursuant to teh the Worker's Compensation Act (WCA)of 19??.  [R. 1:4]

     The claims against Blackhawk were settled for $325,000.00 at a December 12, 1996, mediation.  [R. 47:19; R. 48:21]  Heritage chose not to attend the mediation, even though it was held in Milwaukee, not far from Heritage's the office where the counsel of Heritage lives and works five days a week, 60 hours a week and also on most holidays and several sundays too.^[3]  [R. 47:19; R. 48:21] 

     Approximately one week after the mediation, counsel for Herlache and Heritage discussed distribution of the settlement proceeds.  [R. 48:3-4]  At that time, Heritage was aware of Herlache's proposed distribution of teh the settlement proceeds.  [R. 48:4]

     Herlache subsequently petitioned the trial court to approve and allocate the $325,000.00 settlement proceeds.  [R. 24]  At a January 16, 1997, hearing, which, Heritage, also, did not attend, teh the trial court approved the following allocation: 

     Settlement proceeds:                      $325,000.00

     Herlache's attorney fees

     and costs                                 $121,602.61

     Shawn's loss of society

     and companionship claim

     pursuant to §895.04, Stats.               $150,000.00

     Balance subject to §102.29, Stats.        $ 53,397.39

     One-third of balance to Herlache          $ 17,797.35

     Remainder to Heritage                     $ 35,600.04

[R. 47:62-64]  The trial court entered its order: approving the settlement and distribution of proceeds.  On January 27,24, 1997.  [R. 34]

     Heritage later sought reconsideration of the trial court's January 24, 1997, order.  [R. 35]  Following a hearing on February 13, 1997, the trial court entered its February 19, 1997, order denying Heritage's request for reconsideration.  [R. 42; R. 48:40-41] 

     The trial court found that Heritage failed to demonstrate that they didn’t appear at the January 16 hearing and object to the proposed allocation of settlement proceeds resulted from inexcusable neglect.  [R. 48:40]  The trial court further found that its January 24 order was consistent with §102.29, Stats.  Heritage filed its notice of appeal on March 7, 1997.  [R. 45]

STANDARD OF REVIEW

     The first issue raised in this appeal concerns the propriety of the trial court's refusal to reopen its final order pursuant to §806.07, Stats.  A trial court's disposition of a §806.07 motion is discretionary.  Marotz v. Marotz, 80 Wis.2d 477, 483, 259 N.W.2d 524 (1977).  The Court of Appeals must uphold a discretionary determination that is "demonstrably ... made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law."  Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981).  tc "STANDARD OF REVIEW

The first issue raised in this appeal concerns the propriety of the trial court's refusal to reopen its final order pursuant to §806.07, Stats.  A trial court's disposition of a §806.07 motion is discretionary.  Marotz v. Marotz, 80 Wis.2d 477, 483, 259 N.W.2d 524 (1977).  The Court of Appeals must uphold a discretionary determination that is \"demonstrably ... made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.\"  Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981).  "

     The second issue raised in this appeal concerns the interpretation and application of §102.29(1), Stats., to allocate the settlement proceeds.

This issue presents a question of law that this Court determines de novo.independently of the trial court's determinations.  Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 413, 500 N.W.2d 397 (Ct. App. 1993).

ARGUMENTtc "ARGUMENT"

     Heritage challenges the trial court's orders distributing the settlement proceeds in this case, based upon a claim that the trial court misapplied §102.29(1), Stats., as interpreted in Brewer v. Auto-Owners Ins. Co., 142 N.W.2d 864, 418 N.W.2d 841 (Ct. App. 1987), and Kottka v. PPG Industries, Inc., 130 Wis. 2d 499, 388 N.W.2d 160 (1986).  However, in making this assertion, Heritage ignores two realities:  (1) the trial court's first order distributing the settlement proceeds resulted from Heritage's own failure to appear at crucial stages in the proceedings; and (2) a proper application of §102.29 Stats., and Brewer actually results in less recovery to Heritage than under the trial court's orders.  Under these circumstances, this Court should could affirm the trial court's orders.  In the alternative, this Court should modify the trial court's first order to reflect the proper allocation of the settlement proceeds, which results in less recovery to Heritage, and affirm the order as modified.  But really the court should just leave the trial court’s order alone.

I.    HERITAGE'S CHALLENGE OF THE TRIAL COURT'S ORDERS DISTRIBUTING THE SETTLEMENT PROCEEDS MUST FAIL.tc "I. HERITAGE'S CHALLENGE OF THE TRIAL COURT'S ORDERS DISTRIBUTING THE SETTLEMENT PROCEEDS MUST FAIL."

     Heritage complains that the trial court's January 24, 1997, order misapplies §102.29(1), Stats., and therefore improperly allocates the settlement proceeds between Herlache and Heritage.  However the January 24 order resulted from Heritage's own failure to appear at crucial stages in the proceedings in two respects:  (A) Heritage failed to appear at the hearing scheduled to address the proposed allocation, due to inexcusable neglect; and (B) Heritage chose not to participate in the prosecution or mediation of the action.

     Heritage also complains that the trial court's February 19, 1997, order improperly allocates to Dean's children some of the $150,000.00, which was designated as Shawn's loss of society and companionship claim.  However, as this amount is not subject to §102.29, Stats., Heritage lacks standing to object to its ultimate distribution.

     Becasue Because Heritage's own inexcusable failure neglect to appear resulted in the trial court's January 24 order, the trial court correctly concluded that Heritage is not entitled to relief from that order.  Additionally, Heritage lacks standing to object to the trial court's February 19 order.  Therefore, this Court should affirm the trial court's orders.

      A.    Heritage's Failure To Appear And Object To The Proposed Allocation Of Settlement Proceeds Resulted From Inexcusable Neglect. tc "A. Heritage's Failure To Appear And Object To The Proposed Allocation Of Settlement Proceeds Resulted From Inexcusable Neglect. " \l 2

     Heritage conveniently forgets that it failed to appear and object to the proposed allocation of settlement proceeds that formed the basis of the trial court's January 24 order.  This order was entered and became final, requiring Heritage to successfully assert a motion to reopen a final judgment or order pursuant to §806.07, Stats., before the trial court could address the merits of Heritages objection.^[4]  The trial court correctly concluded that Heritage failed to demonstrate sufficient grounds for reopening its January, 24, order. 

     Heritage claimed that its failure to appear and object to the proposed allocation of settlement proceeds resulted from excusable neglect.  Heritage has the burden of showing that it comes within the provisions of §806.07, Stats.  See, Padek v. Thornton, 3 Wis.2d 334, 338, 88 N.W.2d 316 (1958).  Whether Heritage has demonstrated excusable neglect is addressed to the trial court's discretion.  See, Marotz, 80 Wis.2d at 483.

     "Excusable neglect allowing relief from judgment is that neglect which might have been the act of a reasonably prudent person under the same circumstances, and is not synonymous with neglect, carelessness or inattentiveness."  Price v. Hart, 166 Wis.2d 182, 194-195, 480 N.W.2d 249 (Ct. App. 1991) (citation omitted).  Here, the trial court correctly exercised its discretion when it determined that Heritage's failure to appear and object to the proposed allocation did not result from excusable neglect.

     Heritage's counsel conceded neglect as the cause for his nonappearance and failure to object, and that he "should have been there [at the January 16 hearing]."  [R. 48:7]  He explained that he "was extremely busy during this period of time" and that "there might have been a misunderstanding between me and my secretary about what to do."  [R. 48:5, 6]  He further described the situation as "human error, shouldn't have happened, but it did."  [R. 48:7]

     This explanation of events demonstrates neglect, but not excusable neglect.  Rather, this explanation demonstrates mere inadvertence, and carelessness, and oversight, and lack of supervision or direction over the secretary and other staff by the attorney who is ultimately responsible.  Wisconsin courts have repeatedly held that misplacing documents and/or failing to take requisite action relating to those documents does not constitute excusable neglect.  See, Hedtcke v. Sentry Ins. Co., 326 N.W.2d 727 (1982); Gerth v. American Star Ins. Co., 166 Wis. 2d 1000, 1008, 480 N.W.2d 836 (Ct. App. 1992). 

     Moreover, Heritage submitted no affidavit to support its assertion that its failure to appear at the January 16 hearing was due to excusable neglect.  Heritage’s attorney committed malpractice and was just totally irresponsible for not showing up in any event Heritage just should have fired that guy and sued him instead of going after ths 2 kids in this case and trying to take money and food out of their mouth!  In fact, that attorney did the same thing on another case we had with him.  He is just lazy.  It is inexcusable. Thus, the trial court properly exercised its discretion when it determined that Heritage was guilty of inexcusable neglect, and refused to reopen its January 24 order.  Therefore, this Court should affirm the trial court's orders.

      B.    Heritage Lacks Standing To Complain Regarding The Amount Or Terms Of Settlement. tc "B. Heritage Lacks Standing To Complain Regarding The Amount Or Terms Of Settlement. " \l 2

     Heritage next complains that Shawn's loss of society and companionship claim should not have been valued at $150,000.00, the maximum amount allowable under §895.04, Stats.  However, Heritage lacks standing to complain regarding the amount or terms of the settlement.

     Heritage chose not to participate in the prosecution of Herlache's action, and also choose not to attend the mediation session that resulted in settlement of the claims.  While Heritage's nonparticipation does not affect it’s their right to it’s its statutory share of the settlement proceeds, Heritage cannot complain about the terms or amount of the settlement.  See, Elliott, 176 Wis. 2d at 416.

     The record demonstrates that the parties to the settlement agreed that Shawn's loss of society and companionship claim would be valued at $150,000.00, and her personal loss of income claim would be valued at $25,000.00.  [R. 47:5, 10-13; R. 48:18-19, 22, 27-28, 34-35] Pursuant to Elliott, Heritage waived any objection to these terms by choosing not to participate in the action or settlement negotiations.  Therefore, the trial court's January 24 order should be affirmed by this court.

II.   THE TRIAL COURT'S MISAPPLICATION OF BREWER BENEFITTED HERITAGE.tc "II. THE TRIAL COURT'S MISAPPLICATION OF BREWER BENEFITTED HERITAGE."

     ....

CONCLUSION tc "CONCLUSION "

     The trial court correctly exercised its discretion when it determined that Heritage failed to demonstrate sufficient grounds to justify relief from its January 24 order.  For this reason, the trial court's orders should be affirmed.

     Dated at Green Bay, Wisconsin, this ____ day of May, 2000. 

                       _______________________________________

                       Hinkus Pinkus, State Bar No.: 209090

                       Attorney for Defendant-Respondent,

                       Blackhawk Collision Repair, Inc.

POST OFFICE ADDRESS:

3000 Cherry Tree Lane

P.O. Box 10597

Green Bay, WI  54307-0597

TELEPHONE NUMBER: (920)555

AFFIDAVIT OF SERVICE BY MAILING

STATE OF WISCONSIN           )

                                              )     ss.

COUNTY OF BROWN  )

          The undersigned, being first duly sworn, says that a true copy of the Brief of Defendant-Respondent, Blackhawk Collision Repair Inc, f/k/a Blackhawk Automotive, Inc., was served upon the hereinafter named attorney by enclosing the same in an envelope, postage paid for first class handling, which bore the sender's name and return address and which was addressed to each such attorney at his/her respective post office address, and which was deposited in a United States post office depository in Green Bay, Wisconsin, on April 28, 2003:

Mr. William Doorknob                                       Mr. John Doe

Doorknob Law Firm, S.C.                                  Doe Ray Me Law Offices, LLC.

1234 Blueberry Hill Lane                                   5678 Wonderland Court

Green Bay, WI  54305                                      Green Bay, WI 54301

__________________________________________________

A. Witness

Subscribed and sworn to before me

this 28^th  day of April, 2003.

_________________________________

Bernard J. Brazeau

Notary Public, State of Wisconsin

My commission expires: September 2003.

TABLE OF CONTENTS

TABLE OF CONTENTS                                                                                                                i

TABLE OF AUTHORITIES                                                                                                            ii

STATEMENT OF THE CASE AND STATEMENT OF THE FACTS                                                    2-3

STANDARD OF REVIEW                                                                                                             3-4

ARGUMENT                                                                                                                                4

I.  HERITAGE'S CHALLENGE OF THE TRIAL COURT'S ORDERS DISTRIBUTING THE SETTLEMENT PROCEEDS MUST FAIL.                                                                                                                                          5

          A.  Heritage's Failure To Appear And Object To The Proposed Allocation Of Settlement Proceeds Resulted From Inexcusable Neglect.                                                                                                                    5-7

          B.  Heritage Lacks Standing To Complain Regarding The Amount Or Terms Of Settlement.      8

II.        THE TRIAL COURT'S MISAPPLICATION OF BREWER BENEFITTED HERITAGE.                 8

CONCLUSION                                                                                                                             8-9

AFFIDAVIT OF SERVICE BY MAILING                                                                                         10                                                                  

i
TABLE OF AUTHORITIES

Wisconsin Cases Cited

Brewer v. Auto-Owners Ins. Co., 142 N.W.2d 864, 418 N.W.2d 841 (Ct. App. 1987).                      4

Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 413, 500 N.W.2d 397 (Ct. App. 1993).          4,8

Gerth v. American Star Ins. Co., 166 Wis. 2d 1000, 480 N.W.2d 836 (Ct. App. 1992).                     7

Hartung v. Hartung, 102 Wis.2d 58, 306 N.W.2d 16 (1981).                                                          4

Hedtcke v. Sentry Ins. Co., 326 N.W.2d 727 (1982).                                                                    7

Kottka v. PPG Industries, Inc., 130 Wis. 2d 499, 388 N.W.2d 160 (1986).                                     4

Marotz v. Marotz, 80 Wis.2d 477, 259 N.W.2d 524 (1977).                                                          3,6

Padek v. Thornton, 3 Wis.2d 334, 88 N.W.2d 316 (1958).                                                            6

Price v. Hart, 166 Wis.2d 182, 480 N.W.2d 249 (Ct. App. 1991).                                                  6

Wisconsin Statutes Cited

§102.29                                                                                                                                   3, 4,5,

§806.07                                                                                                                                   3, 6

§895.04                                                                                                                                   3, 8

ii

Rule Broken Down

809.19 Rule (Briefs and appendix).

(1) BRIEF OF APPELLANT.

          The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:

          (a)        1. A table of contents with page references of the various portions of the brief, including headings of each section of the argument,

                      2.  a table of cases arranged alphabetically,

                      3.  statutes and other authorities cited with reference to the pages of the brief on which they are cited.

          (b) A statement of the issues presented for review and how the trial court decided them.

          (c)        1.   A statement with reasons as to whether oral argument is necessary

                      2.  A statement as to whether the opinion should be published and, if so, the reasons therefore.

          (d) A statement of the case, which must include:

                      1.  a description of the nature of the case;

                      2.  the procedural status of the case leading up to the appeal;

                      3.  the disposition in the trial court;

                      4.  a statement of facts relevant to the issues presented for review, with appropriate references to the record.

          (e) An argument,

                      1.  arranged in the order of the statement of issues presented.

                      2.  The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefore, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and SCR 80.02.

          (f) A short conclusion stating the precise relief sought.

          (g) Reference to an individual by first name and last initial rather than by his or her full name when the record is required by law to be confidential.

          (h) The signature of the attorney who files the brief; or, if the party who files the brief is not represented by an attorney, the signature of that party.

          (i) Reference to the parties by name, rather than by party designation, throughout the argument section.

(2) APPENDIX. The appellant’s brief shall include a short appendix providing relevant trial court record entries, the findings or opinion of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court’s reasoning regarding those issues. The appendix shall include a table of contents.  If the record is required by law to be confidential, the portions

of the record included in the appendix shall be reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

(9) BRIEF COVERS. Each brief or appendix shall have a front and back cover.

The front cover shall contain

          1.  the name of the court,

          2.  the caption and number of the case,

          3.  the court and judge appealed from,

          4.  the title of the document,

          5.  and the name and address of counsel filing the document.

(9 continued) Except as provided in s. 809.81(8), the caption shall include the full name of each party in the circuit court and shall designate each party so as to identify each party’s status in the circuit court and in the appellate court, if any. The covers of the appellant’s brief shall be blue; the respondent’s, red; a combined respondent–cross–appellant’s, red with a blue divider page; a combined reply–cross–respondent’s, gray with a red divider page; a guardian ad litem’s, yellow; a person other than a party, green; the reply brief, gray; and the appendix, if separately printed, white. In the event the supreme court grants a petition for review of a decision of the court of appeals, the covers of the briefs of each party shall be the same color as the cover of that party’s briefs filed in the court of appeals. In the supreme court, “petitioner” shall be added to the party designation of the petitioner,

and the respondent’s party designation shall remain the same as in the court of appeals.

809.43 Rule (Number of briefs). (1) A person shall file 10 copies of a brief and appendix in the court of appeals, or the number that the court directs, and shall serve 3 copies on each party. If the opposing party is not represented by counsel, only one copy need be served on that party.

(3) RESPONDENT’S BRIEF. (a) 1. The respondent shall file a

brief within the later of any of the following:

a. Thirty days after the date of service of the appellant’s brief,

and 3 additional days under s. 801.15 (5) (a) if service is accomplished

by mail.

b. Thirty days after the date on which the court accepts the

appellant’s brief for filing.

c. Thirty days after the date on which the record is filed in the

office of the clerk.

2. The brief must conform with sub. (1), except that the statement

of issues and the statement of the case may be excluded.

(b) The respondent may file with his or her brief a supplemental

appendix in conformity with sub. (2).

(4) REPLY BRIEF. (a) The appellant shall file a reply brief, or

statement that a reply brief will not be filed, within the later of:

1. Fifteen days after the date of service of the respondent’s

brief, and 3 additional days under s. 801.15 (5) (a) if service is

accomplished by mail; or

2. Fifteen days after the date on which the court accepts the

respondent’s brief for filing.

(b) The reply brief under par. (a) shall comply with sub. (1) (e)

and (f).

(5) CONSOLIDATED AND JOINT APPEALS. Each appellant in consolidated