On Point

COA clarifies ability of circuit court to enter default order for nonappearance in civil OWI matter

Lincoln County v. Kayla J. Ristau, 2024AP404, 8/25/26, District III (ineligible for publication); case activity

In a case interpreting a common scenario for some practitioners handling first offense OWIs, COA clarifies the ability of the circuit court to hold a defendant in default for nonappearance and reverses this default order.

Ristau was charged with a first-offense OWI. (¶3). She and her lawyer were sent a notice of hearing which informed her that she must appear in person at the final pretrial and jury trial. (Id.). However, that “notice did not contain any statement regarding possible sanctions for failing to appear on either date.” (Id.). 

When Ristau’s lawyer appeared without his client at the final pretrial, he was told that his client needed to appear in person. (¶4). Counsel disagreed and asserted that she had a constitutional right to appear by her attorney. (Id.). The circuit court held Ristau in default but withheld judgment pending a hearing to resolve the dispute regarding the availability of a default judgment under these circumstances. (Id.). At that hearing, Ristau’s lawyer again appeared without his client. (¶6). The circuit court made a finding that the hearing notice was not a “court order,” found that no court order had, in fact, been violated, and expressed its intention to vacate the prior default order but ordered Ristau to appear in person at the upcoming jury trial. (Id.). Ristau’s lawyer continued to assert that Ristau was under no such obligation to appear in person, would not be appearing in person and therefore invited the court to enter a default judgment if that was its intention. (¶7).

On appeal, COA agrees with Ristau “that the plain language of article I, section 21 of the Wisconsin Constitution, WIS. STAT. § 799.06(2), and SCR 11.02(1) generally gives Ristau, as well as similarly situated suitors and defendants, the discretion to appear in a civil matter by an attorney.” (¶19). That conclusion is further compelled by the Wisconsin Supreme Court’s decision in Sherman v. Heiser. (Id.). These provisions do not give “the court the discretion to choose whether a defendant in a civil matter may appear by an attorney . . . .” (Id.). While a person may be ordered to appear via subpoena, COA concludes the notice of hearing does not qualify as such. (¶21).

Notably, the County argues that the circuit court had the authority to enter default for violating a scheduling or pretrial order. (¶22). COA doesn’t reach that issue here as there was no such order for Ristau to violate. (Id.) COA therefore distinguishes Gaertner v. 880 Corp., finding there was no order specifically commanding Ristau, and not just her attorney, to appear and that Ristau was never given notice of the risk of default judgment. (¶26). The plain language of § 806.02(1) requires that “the defendant” be given notice; here, no such notice is apparent from the record. (¶27). In a footnote, COA explains that:

We suggest a better practice would have been to wait until the following day to see if Ristau complied with the court’s order before entering default judgment, thereby indisputably providing Ristau notice of possible default judgment a la STAT. § 805.03 and Gaertner, 131 Wis. 2d at 502-03, insomuch as her counsel would have been ethically obligated to inform and warn Ristau of the upcoming entry of default judgment if she did not appear that day.

(¶27 n. 14).