By Kevin Murphy
For the Times
MADISON - A state appeals court ordered a new civil trial Thursday, May 31 for a former New Glarus Brewing Co. sales representative after finding that a Green County judge erroneously extended the company's deadline to request a jury trial.
NGBC prevailed in an April 2011 jury trial over a severance pay dispute brought by Carl Schoh, Albany, a former sales rep for the company. Schoh then appealed, contending that Circuit Judge James Beer granted the brewer a jury trial outside the time limits set in state law.
In his decision, District 4 Court of Appeals Judge Paul Higginbotham wrote that Beer improperly applied an excusable neglect exemption to NGBC's late request when no grounds existed.
"We agree with Schoh that a finding of excusable neglect was required, that the circuit court erred in finding excusable neglect, and that the error was not harmless," Higginbotham wrote in the 15-page opinion.
According to the opinion:
During a January 2010 scheduling conference, NGBC's attorney, Drew Cochran, was "surprised" when Schoh's attorney failed to request a jury trial because plaintiffs typically want a jury to hear their case. Without consulting the brewer, Cochran also didn't request a jury.
Within a day, Cochran brought his jury request and Beer scheduled another conference within a month. Over Schoh's objection, Beer then set the case for a jury trial. Beer's reasoning included:
"If (Cochran) was surprised and had not talked to his client about that, which is excusable because his client has the right to have an input into whether or not they have a jury trial. For that reason I'll find that to be excusable neglect. And also the rapidity of his request for a jury trial, that he immediately went and talked to his client about it. Now perhaps I'm wrong, but that's why we make decisions," Beer said.
Not according to the District 4 Court. The deadline Cochran missed is imposed by state law and failure to consult a client for their preference doesn't constitute excusable neglect, Higginbotham wrote.
Schoh's attorney, Tamara Packard, noted that Cochran shouldn't have been surprised because her client's suit didn't request a jury trial either in the complaint or the amended complaint.
Schoh didn't a want a jury trial because the contract and business issues in the case are complicated and probably would be best heard by a judge, Packard said. Also, jury trials are more expensive than a trial involving just a judge, she said. Schoh was assessed $2,761 in costs after losing at trial.
"We're very pleased the opinion as it validated our position ... which was met with very strenuous (pre-trial) opposition all along the way," Packard said.
Cochran said he hadn't spoke to his client and had no comment on the decision Thursday.
Deb Carey, brewery co-owner, said she was not concerned about the opinion.
"I'm not too concerned about it. The facts remain the same. We won last time with a jury. If it's a judge or a jury next time, we're confident of (a positive outcome)," she said.
The opinion returns the case to Green County where Packard said she'll request another judge.
For the Times
MADISON - A state appeals court ordered a new civil trial Thursday, May 31 for a former New Glarus Brewing Co. sales representative after finding that a Green County judge erroneously extended the company's deadline to request a jury trial.
NGBC prevailed in an April 2011 jury trial over a severance pay dispute brought by Carl Schoh, Albany, a former sales rep for the company. Schoh then appealed, contending that Circuit Judge James Beer granted the brewer a jury trial outside the time limits set in state law.
In his decision, District 4 Court of Appeals Judge Paul Higginbotham wrote that Beer improperly applied an excusable neglect exemption to NGBC's late request when no grounds existed.
"We agree with Schoh that a finding of excusable neglect was required, that the circuit court erred in finding excusable neglect, and that the error was not harmless," Higginbotham wrote in the 15-page opinion.
According to the opinion:
During a January 2010 scheduling conference, NGBC's attorney, Drew Cochran, was "surprised" when Schoh's attorney failed to request a jury trial because plaintiffs typically want a jury to hear their case. Without consulting the brewer, Cochran also didn't request a jury.
Within a day, Cochran brought his jury request and Beer scheduled another conference within a month. Over Schoh's objection, Beer then set the case for a jury trial. Beer's reasoning included:
"If (Cochran) was surprised and had not talked to his client about that, which is excusable because his client has the right to have an input into whether or not they have a jury trial. For that reason I'll find that to be excusable neglect. And also the rapidity of his request for a jury trial, that he immediately went and talked to his client about it. Now perhaps I'm wrong, but that's why we make decisions," Beer said.
Not according to the District 4 Court. The deadline Cochran missed is imposed by state law and failure to consult a client for their preference doesn't constitute excusable neglect, Higginbotham wrote.
Schoh's attorney, Tamara Packard, noted that Cochran shouldn't have been surprised because her client's suit didn't request a jury trial either in the complaint or the amended complaint.
Schoh didn't a want a jury trial because the contract and business issues in the case are complicated and probably would be best heard by a judge, Packard said. Also, jury trials are more expensive than a trial involving just a judge, she said. Schoh was assessed $2,761 in costs after losing at trial.
"We're very pleased the opinion as it validated our position ... which was met with very strenuous (pre-trial) opposition all along the way," Packard said.
Cochran said he hadn't spoke to his client and had no comment on the decision Thursday.
Deb Carey, brewery co-owner, said she was not concerned about the opinion.
"I'm not too concerned about it. The facts remain the same. We won last time with a jury. If it's a judge or a jury next time, we're confident of (a positive outcome)," she said.
The opinion returns the case to Green County where Packard said she'll request another judge.