COURT OF APPEALS

DECISION

DATED AND FILED

August 10, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP799 Cir. Ct. No. 2021CV77

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

B.G. DURITE CONCRETE, INC.,

 PLAINTIFF-RESPONDENT,

 V.

BRYAN BAGSTAD,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Waupaca County: 

VICKI L. CLUSSMAN, Judge. Affirmed. 

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Bryan Bagstad appeals an order that denied 

Bagstad’s motion for relief from a default judgment granted to B.G. Durite 
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Concrete, Inc., based on Bagstad’s failure to timely answer Durite’s complaint. 

Bagstad contends that the circuit court erroneously exercised its discretion by 

denying Bagstad’s motion for relief from the default judgment under WIS. STAT.

§ 806.07(1)(a) and (h) (2021-22).

1

 For the reasons explained in this opinion, we 

conclude that the circuit court properly exercised its discretion by denying the 

motion for relief from the judgment. We affirm.

Background

¶2 On March 26, 2021, Durite filed a complaint against Bagstad to 

recover alleged unpaid amounts for services it provided. The summons and 

complaint, which were served on Bagstad on March 27, 2021, stated that Bagstad 

was required to file an answer within twenty days or judgment could be granted 

against him. Bagstad failed to file an answer to the complaint. On May 14, 2021, 

Durite moved for default judgment based on Bagstad’s failure to file an answer. 

On May 17, 2021, the circuit court granted default judgment to Durite. 

¶3 On July 21, 2021, Bagstad moved for relief from the default 

judgment. Bagstad averred that he received the summons and complaint on 

March 27, 2021, but that he set it aside because he was busy working on his house 

and he expected to receive a subsequent notice to appear in court. He argued that 

his failure to timely answer the complaint was therefore due to mistake, 

inadvertence, or excusable neglect under WIS. STAT. § 806.07(1)(a). 

Alternatively, he argued that relief from the judgment was warranted in the 

interest of justice under § 806.07(1)(h). The circuit court denied Bagstad’s 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP799

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motion, determining that Bagstad had failed to meet any of the requirements for 

relief from judgment under § 806.07(1). Bagstad appeals. 

Discussion

¶4 Under WIS. STAT. § 806.07(1), “the court ... may relieve a party ... 

from a judgment ... for the following reasons: (a) Mistake, inadvertence, surprise, 

or excusable neglect; ... or (h) Any other reasons justifying relief from the 

operation of the judgment.” We review a circuit court’s decision on a motion to 

vacate a judgment under § 806.07 for an erroneous exercise of discretion. Sukala 

v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. A 

court properly exercises its discretion if it examines the relevant facts, applies a 

proper standard of law, and, using a demonstrated rational process, reaches a 

conclusion a reasonable judge could reach. Franke v. Franke, 2004 WI 8, ¶54, 

268 Wis. 2d 360, 674 N.W.2d 832. 

¶5 Bagstad contends that the circuit court erroneously exercised its 

discretion by failing to properly apply the law for deciding a motion for relief from 

judgment under WIS. STAT. § 806.07(1). He contends that the court failed to 

expressly consider the five interest of justice factors for relief under 

§ 806.07(1)(h), see Miller v. Hanover Insurance Co., 2010 WI 75, ¶36, 326 

Wis. 2d 640, 785 N.W.2d 493, and failed to expressly assume the facts as asserted 

in Bagstad’s motion for relief in Bagstad’s favor, see State ex rel. M.L.B. v. 

D.G.H., 122 Wis. 2d 536, 557, 363 N.W.2d 419 (1985). Additionally, he points 

out that courts must consider that § 806.07(1) is remedial in nature and should be 

liberally construed; that “the law prefers, whenever reasonably possible, to afford 

litigants a day in court and a trial on the issues”; and that “default judgments are 

regarded with particular disfavor.” See Miller, 326 Wis. 2d 640, ¶31.
No. 2022AP799

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¶6 We assume without deciding that Bagstad is correct that the circuit 

court erred by failing to set forth an analysis of the factors for relief under WIS.

STAT. § 806.07(1)(h) and by failing to expressly consider the facts set forth in 

Bagstad’s motion for relief in Bagstad’s favor. However, this court will search the 

record for reasons to sustain a circuit court’s discretionary determination. See

Long v. Long, 196 Wis. 2d 691, 698, 539 N.W.2d 462 (Ct. App. 1995). When a 

circuit court fails to expressly consider the five interest of justice factors under 

§ 806.07(1)(h), “we will independently review the record to determine whether 

there is a basis for the proper exercise of discretion, including whether the record 

provides a reasonable basis for the court’s decision.” Miller, 326 Wis. 2d 640, 

¶¶47-60. We recognize that default judgments are generally disfavored. In this 

case, however, we conclude that the record supports the court’s decision to deny 

the motion for relief from the default judgment as a proper exercise of its 

discretion. 

¶7 Bagstad argues that the circuit court erred by denying him relief 

under WIS. STAT. § 806.07(1)(a) (court may relieve party from judgment based on 

mistake, inadvertence, surprise, or excusable neglect). He asserts the following as 

establishing that his failure to answer the complaint was due to mistake, 

inadvertence, or excusable neglect. Bagstad received the summons and complaint, 

but set them aside because he was busy at the moment working on his house. He 

did not answer the complaint because he expected to receive a court date. He did 

not read the notice that default could be entered against him. Subsequently, 

Bagstad received Durite’s motion for default judgment that stated that a court date 

would be set on the motion, reinforcing Bagstad’s belief that he would receive a 

court date to assert a defense. However, default judgment was entered without a 
No. 2022AP799

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hearing. Bagstad then retained counsel and promptly filed a motion for relief from 

the judgment. 

¶8 Bagstad argues that those facts amount to a “mistake” according to 

the common dictionary definition of the word, that is, an “error arising from 

ignorance,” see Webber v. Quaw, 46 Wis. 118, 122, 49 N.W. 830 (1879) (quoted 

source omitted), or “‘error or ... fault resulting from defective judgment, deficient 

knowledge, or carelessness,’” see Wisconsin Central Ltd. v. DOR, 2000 WI App 

14, ¶11, 232 Wis. 2d 323, 606 N.W.2d 226 (quoted source omitted). Bagstad 

argues that his mistake was a reasonable one for a non-lawyer to make. Therefore, 

he contends, the court erroneously exercised its discretion by denying him relief 

from the judgment based on mistake, inadvertence, or excusable neglect. We are 

not persuaded. 

¶9 We have explained that “[n]ot every mistake is sufficient per se to 

entitle a moving party to relief” under WIS. STAT. § 806.07(1)(a). State v. Schultz, 

224 Wis. 2d 499, 502, 591 N.W.2d 904 (Ct. App 1999). Rather, a circuit court 

may reopen a judgment based on a mistake only if the mistake was “justifiable” 

and “excusable under the circumstances.” Id. Thus, “[w]hether a mistake is 

excusable is encompassed within the meaning of ‘excusable neglect,’” that is, 

“that neglect which might have been the act of a reasonably prudent person under 

the circumstances.” Id. (quoted source omitted). Accordingly, the inquiry is 

whether Bagstad’s mistake “is of a kind that a reasonably prudent person might 

have made under the circumstances.” See id. We conclude that it is not.

¶10 Bagstad received a complaint that stated an answer was required 

within twenty days or judgment could be granted against him. A reasonably 

prudent person served with that complaint would have read the complaint to see 
No. 2022AP799

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what action was required and would have taken some action within the twenty 

days stated in the complaint. A reasonably prudent person would not have simply 

set aside the complaint without taking any action. Being too busy due to work on 

one’s house is not a valid excuse or reasonable under the circumstances. 

¶11 Additionally, we are not persuaded that the subsequent motion for 

default judgment rendered Bagstad’s failure to timely answer the complaint 

reasonable under the circumstances. By the time Bagstad received the motion for 

default judgment, the time to answer the complaint had already passed. 

Accordingly, the motion for default judgment could not have contributed to 

Bagstad’s decision not to file a timely answer to the complaint. Because 

Bagstad’s failure to timely answer the complaint was not reasonable under the 

circumstances, the court was not required to find that the facts in Bagstad’s motion 

for relief established mistake, inadvertence, or excusable neglect under WIS. STAT.

§ 806.07(1)(a). 

¶12 Bagstad also argues that the circuit court erred by failing to grant 

him relief under the catch-all provision of WIS. STAT. § 806.07(1)(h). He contends 

that all of the interest of justice factors weigh in his favor, entitling him to relief. 

See Miller, 326 Wis. 2d 640, ¶36 (listing factors a court must consider in 

determining whether to grant relief from judgment under § 806.07(1)(h)). We are 

not persuaded.

¶13 Relief from a default judgment may be granted under WIS. STAT.

§ 806.07(1)(h) only “when extraordinary circumstances are present justifying 

relief in the interest of justice.” Miller, 326 Wis. 2d 640, ¶35. “The party seeking 

relief bears the burden to prove that extraordinary circumstances exist.” Id., ¶34. 
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A court must consider the following factors in considering whether to grant relief 

under § 806.07(1)(h):

whether the judgment was the result of the conscientious, 

deliberate and well-informed choice of the claimant; 

whether the claimant received the effective assistance of 

counsel; whether relief is sought from a judgment in which 

there has been no judicial consideration of the merits and 

the interest of deciding the particular case on the merits 

outweighs the finality of judgments; whether there is a 

meritorious defense to the claim; and whether there are 

intervening circumstances making it inequitable to grant 

relief.

Miller, 326 Wis. 2d 640, ¶36 (quoted source omitted). We consider each factor 

and conclude that, while some of the factors do or may weigh in Bagstad’s favor, 

the circuit court was not required to grant relief from the judgment. 

¶14 Bagstad received the complaint informing him that an answer was 

required within twenty days or default judgment could be entered against him. 

Bagstad chose to set the complaint aside, with the excuse being that he was 

working on his house, rather than even attempting to file an answer. This may be 

viewed as a deliberate and conscientious choice not to file a timely answer. 

Bagstad was not represented by counsel when he received the complaint and failed 

to answer, so that factor is neutral. There was no judicial consideration of the 

merits before default judgment was entered, so that factor weighs in Bagstad’s 

favor. Additionally, Bagstad has asserted that he has a meritorious defense to the 

claim; we accept that assertion for purposes of this opinion and consider that 

factor to weigh in Bagstad’s favor. There do not appear to be any intervening 

circumstances making it inequitable to grant relief, and we consider that factor to 

weigh in Bagstad’s favor as well.
No. 2022AP799

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¶15 Bagstad argues that the five interest of justice factors weigh in his 

favor, requiring reversal. However, the five interest of justice factors are not 

exclusive. State v. Sprosty, 2001 WI App 231, ¶20, 248 Wis. 2d 480, 636 N.W.2d 

213. Rather, courts must “consider factors relevant to the competing interests of 

finality of judgments and relief from unjust judgments,” which would include—

but not be limited to—the five interest of justice factors. M.L.B., 122 Wis. 2d at

552. Ultimately, WIS. STAT. § 806.07(1)(h) applies only when there are 

“extraordinary circumstances that constitute equitable reasons for relief.” M.L.B., 

122 Wis. 2d at 549-50.

¶16 We conclude that on these facts the circuit court properly exercised 

its discretion by denying relief under WIS. STAT. § 806.07(1)(h). 

Section 806.07(1)(h) “should be used sparingly.” M.L.B., 122 Wis. 2d at 550. A

party is entitled to relief under § 806.07(1)(h) “only when the circumstances are 

such that the sanctity of the final judgment is outweighed by ‘the incessant 

command of the court’s conscience that justice be done in light of all the facts.’” 

M.L.B., 122 Wis. 2d at 550 (quoted source omitted). Here, we accept that the 

interest of justice factors weigh in Bagstad’s favor, as set forth above. Ultimately, 

however, the only reason Bagstad has asserted for his failure to timely answer the 

complaint is that he set the complaint aside because he was busy working on his 

house. We conclude that Bagstad has not met his burden of proving that 

extraordinary circumstances exist requiring the circuit court to grant relief from 

the judgment. See id.

By the Court.—Order affirmed.

This opinion will not be published. See WIS.

STAT. RULE 809.23(1)(b)5.