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Thomas McJD
Thomas McJD, Attorney
Category: Business Law
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To bizlaw. I need you to review an Opinion and Order. Please respond so I can attach the

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To bizlaw. I need you to review an Opinion and Order. Please respond so I can attach the file.
Submitted: 1 year ago.
Category: Business Law
Expert:  Richard - Bizlaw replied 1 year ago.

bizlaw :

Hello, I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for. You can try to attach it now.

Customer:

I just need your comments of the Opinion and Order based on your knowledge of Wis. State Statutes as they would apply to the "5-day Notice" rule, and the provision for indemnification of corporate officers and directors. Here is the Opinion and Order:

Attachment: 2013-04-27_231035_decision_on_motion_for_summary_disposition_04-12-13.pdf

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Customer:

I have no idea if that worked. That is a .pdf file. I am going to resend the O&O in .jpg format:

Customer:

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Customer:

Here is page 2:

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Customer:

Here is page 3:

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Customer:

Let me know if you got this. If you know of a better procedure, tell me what that is. If you are allowed to give me an email address where I can attach files, then I know I can send you a .pdf file of the O&O.

Customer:

I can't seem to get this to "go". I have never fully understood how JustAnswer works from a communications standpoint. I see that you are currently "offline", so maybe that is why this will not "go". It looks like I have an option to "Save & Exit", but then I wouldn't know what to do next.

Customer:

Hitting "Reply" just gives me a new text window.

bizlaw :

I got the documents and read them. The critical finding of the court was that the judgment was based on intentional torts which would be a wilful misconduct for which indemnification would not be due. However, as I understand from the post whether you are entitled to indemnification is a separate proceeding so you would still have that option. However, at this point there is nothing you can do about the appellate decision because the court was acting within the rules. This is not a case where you did not get notice of the hearing, just not the five day notice. If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.

Customer:

Wait a minute. What about the concept of "due process of law"? As I understand it, I am entitled to a 5-day Notice so that I can prepare for the hearing. I tried to retain an attorney, but could not on such short notice. I was told that the hearing could not be legally held without a 5-day Notice. I want a "second opinion". Can you pass this question on to someone else on the Business Law panel???

Customer:

I still can't figure out how Just Answer works. When I hit "Reply", I get a new text window. Does my previous message get sent to you at the same time anyway????

bizlaw :

I will opt out and let another expert. Help you. On your due process, time limits can be altered by the court. I was on a summary judgment motion that has a notice period. It was done on two days notice in which I had to respond so it happens. I will opt out so do not respond.

Expert:  wendy-Mod replied 1 year ago.
Hi, I am a moderator for this topic. It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Wendy
Customer: replied 1 year ago.

Hi Wendy. It is quite important to me to know for sure whether a ruling that comes from a hearing that was held with less than a 5-day Notice is a legal ruling or not. I think it is not. The key comes down to what is the meaning of the second sentence in Wis. Stat. 801.15(4). I am sure that the fact that there was some notice, and there was an actual hearing held, that that does NOT make it legal. I never had the opportunity to be represented by counsel because the notice was too short, so that alone should make it illegal to allow courts to set notice times to less than the statutory requirement of 5 days minimum. I am NOT looking for an expert who will agree with me. I am looking for an expert who has an answer that makes sense. None of the answers I have heard so far make sense. I can wait to hear from an expert who fully understands the situation and can make sense of it.

Expert:  Fran-mod replied 1 year ago.
Hello,

It appears you have already received an answer to this question on your other post. Are you looking for a second opinion, or would you like me to close this one as a duplicate?
Customer: replied 1 year ago.

Hi Fran-mod. What I am looking for is an answer that makes sense. I know that may seem like an odd reply from me, but it reflects exactly how I feel about it. I don't care if the answer is good or bad for me, but it has to make sense. What I need is an accurate, detailed, explanation of the true meaning of Wis. Stat. 801.15(4). An "English major" might be able to explain it better than a lawyer, because it is just a collection of words that mean something. What I have been hearing so far is some kind of faulty interpretation that, perhaps, is what most attorneys and judges think the statute means. But, the statute is a "shorthand" version of one the basic tenets of "due process of law" -- the statutory requirement for a 5-Day Notice (minimum) before a hearing can be held. Sure, there are some limited exceptions to the 5-Day Notice rule, but I don't think they apply to an ordinary civil lawsuit like what I am involved with. If someone can tell me that my interpretation of the words is correct, but that lawyers and judges do not use that interpretation, that would be a satisfactory answer to me (if it is true). So, I am still looking for an answer that I can believe in.

Expert:  Thomas McJD replied 1 year ago.

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

Due process is certainly a concern. While the statute allows the time limit to be lessened by order of the court on an ex parte motion, the court still has no authority to shorten the time period to such an extent that there is no opportunity to be heard. When a party is not represented by an attorney, then due process concerns are more closely scrutinized than when an attorney does already represent the party.

As such, there is certainly an issue. However, I cannot say one way or another whether you might ultimately be successful if you filed a petition for review of the appellate court decision. Yes, there is a due process concern, but whether there was a due process violation turns on exactly how much notice you had, whether you could have extended the hearing date to give you time to respond and be heard, whether other factors show that you did have an opportunity to respond, etc. etc.

So, while there is a concern, it's impossible to determine your chances of success.

If you haven't let the appeals time limit expire, you could file a petition for review with the supreme court. This is usually 14 days from when the appellate court denied your request.

https://docs.legis.wisconsin.gov/statutes/statutes/809/VI/62

You might also have the ability to file a claim in federal court for review of the state court decision based on violation of due process -- a US constitutional right.

 

Now, keep in mind that what you're are arguing is not consistent with what the court is saying. Yes, you are correct that the motion at issue cannot be held ex parte. However, a separate request regarding enlargement or shortening of the 5-day period can be held ex parte. That's exactly what the court is saying in its opinion. It's not talking about the motion at issue -- it's talking about the ex parte request to shorten the 5-day period. That request is separate from the motion that had to be heard.

Customer: replied 1 year ago.

Dear TMcJD. Thank you so much for replying to my question. You have hit upon exactly what the confusion is about, without actually understanding my interpretation of Wis. Stat. 801.15(4). I like the way you phrased it, and I will explain my understanding using your terms.


 


The "motion at issue" is the motion to have the court make some kind of ruling. An "ex parte motion" is, as I understand it, a motion to have the court make some kind of emergency ruling such as in cases of child neglect, spousal abuse, or impending tree cutting, etc. An "ex parte motion" DOES NOT mean a motion filed by only one side in a dispute, because virtually all motions are filed that way. An "ex parte motion" is an exception to the rule, and does not apply in ordinary civil cases.


 


So, my understanding of sentence two of Wis. Stat. 801.15(4) is that it is a modifier to sentence one. It says that an order to shorten the statutory notice time can ONLY be granted for cause shown in cases where the "issue motion" can be heard ex parte, or, in other words, then the "issue motion" is an "ex parte motion".


 


That explanation is different from yours. Which is correct? I think my understanding is correct because it preserves "due process of law", whereas your understanding undermines "due process of law". What do you think?

Expert:  Thomas McJD replied 1 year ago.
No, you're reading things into the statute unfortunately.

The rule states that 5 days' notice must be given unless otherwise ordered by the court. It then states that such an order (an order to shorten or enlarge the time) "may for cause shown be made on ex parte motion."

This means that a separate request by a party may be made to the court to shorten or enlarge the period. This separate request has nothing to do with the underlying issues in the case. It's only a request concerning the time for notice on that underlying motion or underlying issues.

Ex parte is a latin term that simply means by one party. There are many types of motions, applications and requests that may be heard ex parte -- one party files and the judge decides that motion, application or request without also involving the other party. This does apply in regular civil cases for certain types of motion, applications and requests, including a request to shorten or enlarge the required notice.

The statute is a presumption by the state legislature that 5-days' notice is required to comport with due process -- but it's also giving the court wiggle room to shorten or enlarge the period (ex parte). That's what the statute says -- that an order to enlarge or shorten the time may be made on ex parte motion. However, when the court exercises that authority, it cannot do it in such a way that a party is deprived of due process.
Customer: replied 1 year ago.

Hi TMcJD. Thanks again for your comments. We are now getting very close to a consensus on what Wis. Stat. 801.15(4) means. You must agree that my interpretation preserves "due process", whereas your interpretation undermines it, right? Also, the term "ex parte motion" means a motion that can be heard ex parte. It DOES NOT mean that the motion was filed by only one side. The instances of an "ex parte motion are very, very limited, and it surely would not apply to a motion to shorten the statutory notice period in an ordinary civil case. I have studied the meaning of "ex parte motion" from many sources and conclude that it is an "issue motion" where there is eminent danger to life, limb, or property. Nowhere did I ever see that an "ex parte motion" could simply be a request by one side, without the other side present, to shorten the notice time for an "issue motion". Do you still disagree with me?

Expert:  Thomas McJD replied 1 year ago.

No, my explanation does not undermine due process. Every motion is filed by one side. Then some motions may be heard ex parte (with only one side present). Yes, the statute itself clearly states that a motion to shorten or enlarge the time may be heard ex parte. There is absolutely no room for debate on that -- it is clear and explicit from the rule.

 

But as previously noted, although the court may shorten the notice period on an ex parte motion to shorten, it cannot make the period so short that it violates due process. That might mean that 1-day is sufficient. It might mean 2 days is sufficient. Or it might mean the court can't shorten the period because it determines that at least 5 days is sufficient. It depends on all the circumstances. If you feel you didn't have an opportunity to respond and were deprived of due process, you can make that argument, but you cannot argue that the court doesn't have authority to shorten the period of time on an ex parte motion to shorten because it does have that authority.

Customer: replied 1 year ago.

Dear TMcJD. Wow, we are so close to a mutual understanding. It really has come down to what is the meaning of, "on ex parte motion". If you could, for one minute, imagine that "on ex parte motion" means that if the "issue motion" is an "ex parte motion" then the notice time can be reduced by court order, otherwise it can not, then you and I are would be in perfect agreement.


 


You must agree that if a 5-Day Notice is an important part of "due process", then my interpretation preserves the 5-Day Notice concept, whereas your interpretation undermines it. If you can't agree with that statement, then I believe you are of closed mind, and are of no value to me.


 


Please slow down and think carefully about what I am saying.

Expert:  Thomas McJD replied 1 year ago.

I disagree and I have provided the reasoning and statutory language that backs up the only reasonable interpretation there is of the statute. You're not reading it objectively as it is written.

The statute is clear. The motion to be heard and a motion for enlargement or shortening are two separate motions. The motion regarding time can be heard ex parte. It is irrelevant whether the motion to be heard on substantive (rather than procedural matters) can be heard ex parte or not.

I'm sorry that the law is not what you would like it to be, but I can't simply agree with you because that is what you would like. I must tell you what the law actually is.

You noted that you weren't looking for someone to agree with you -- just explain the law, which I have done. I would very much appreciate it if you could leave me a positive rating as I have provided an answer to your question as you requested and spent great effort in providing you correct and accurate information. I wish I could have given you the answer you wanted, but that's not the law. Please don't shoot the messenger.

Customer: replied 1 year ago.

Dear TMcJD. I can't believe that you are telling me, and I quote, "the only reasonable interpretation there is of the statute" is that "on ex parte motion" means a new motion to reduce the notice time when it clearly COULD mean that the "issue motion" must be one that is an "ex parte motion (that is, one that can be heard with only one party present).


 


You seem to be telling me that there can be "ex parte motions" made and heard in an ordinary civil case where only one side presents the motion and the judge hears the motion and makes a ruling with only one side present to provide facts and argument. That is utter nonsense.

Expert:  Thomas McJD replied 1 year ago.
No, it's not nonsense. It's the law.

Let's say you have a breach of contract case or negligence case. That's a civil case. Then let's say you have a motion for summary judgment on the issues of your case.

Then let's say you file a separate motion for shortening the notice requirements to less than 5 days. The court cannot hear the motion for summary judgment ex parte. Both parties must have the opportunity to respond. It's a matter of substantive law.

However, the court can hear the motion to shorten the notice requirements ex parte. That's a procedural law matter.
Customer: replied 1 year ago.

Dear TMcJD. I fully understand your example. That example clearly shows what the problem is with your interpretation of Wis. Stat. 801.15(4). You believe that one party can file a motion for summary judgment, which will have a hearing date at least 5 days out, but can also file another motion that will be heard "ex parte" to shorten the hearing date notice to less than 5 days for the hearing on the motion for summary judgment. Total nonsense.


 


The interpretation that I have offered to you is the reasonable and proper one. That is, only if the "issue motion" can be heard ex parte can you have a shortened notice period. That makes sense since the other party will not be at the hearing anyway, and it has to do with an emergency situation requiring some kind of temporary injunction. It would make absolutely no sense to have a shortened notice period for a hearing on a motion for summary judgment.


 


If the Appellate Court, in my case, eventually stays with their O&O that the Circuit Court could make a ruling from a hearing that had only a 3-day Notice, then I will conclude that the "wheels have come off" the justice system in Wisconsin, and that "due process of law" is a meaningless concept. In the end, I expect to prevail on this issue.

Expert:  Thomas McJD replied 1 year ago.

Well, please keep in mind I'm only telling you what the law is no matter how absurd it might seem.

 

The issue with your appeal seems to be that you argued the court could not shorten the notice period ex parte, which it can do. What should have been argued is that such a shortened notice period in your particular case deprived you of due process, which the court may well have given some credit and consideration to.

Customer: replied 1 year ago.

Dear TMcJD. I appreciate that you continue to have a discussion with me. I will soon give you a good review. Here is the last thing that I will ask you to do: Please give me a precise definition of what "ex parte motion" means in the second sentence of Wis. Stat. 801.15(4). If we can agree on that meaning, we will have closure on this issue.

Expert:  Thomas McJD replied 1 year ago.
Black's law dictionary defines "ex parte" as follows: "Done or made at the instance and for the benefit of one party only, and without notice to, argument by, any person adversely interested."

Black's law dictionary defines "ex parte motion" as follows: "A motion made to the court without notice to the adverse party; a motion that a court considers and rules on after hearing from fewer than all sides."

In your case, the motion for summary judgment or substantive motion before the court may not be possible to be held ex parte. However, the motion for shorten the notice period is a motion that may be held ex parte because the statute allows it, which is very, very common with procedural matters (such as notice requirements) rather than substantive matters. It's rare in substantive matters and generally limited to emergency circumstances, as you noted.
Customer: replied 1 year ago.

Dear TMcJD. Thanks for that. I will give you a good report on the next opportunity to do that, and we will close this question.


 


I talked to a local attorney today and he recommended going to the Legislative Reference Bureau in Madison to see what history there is on the meaning of Wis. Stat. 801.15(4). I will do that later today. I still believe the original intent of Sentence #2 was to modify Sentence #1 so that only for motions that could be heard ex parte could the court shorten the statutory notice time for good cause shown. The lawyer I talked to said that he combines his request for a shortened notice time with the "issue motion" whenever it makes sense to have a shortened notice time. There was no logical reason to have a shortened notice time in my case because this is a case that has been going on for over 6 years now.

Expert:  Thomas McJD replied 1 year ago.
Thanks. I look forward to a positive rating -- I would be grateful. Please let me know if I can help in the future and good luck on this issue. Thanks again.
Thomas McJD, Attorney
Category: Business Law
Satisfied Customers: 6512
Experience: Experienced in Corps, LLCs, Partnership, etc.
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