2008
WI App 124
court of appeals of
published opinion
Case No.: |
2007AP838 |
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Complete Title of Case: |
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James Lister, Plaintiff-Appellant, v. Sure Dry Basement Systems, Inc., Defendant-Respondent, Rural Mutual Insurance Company and West Bend Mutual Insurance Company, Intervening
Defendants. |
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Opinion Filed: |
June 10, 2008 |
Submitted on Briefs: |
March 4, 2008 |
Oral Argument: |
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JUDGES: |
Wedemeyer, Fine and Kessler, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Daniel W.
Stevens and Rudolph J. Kuss of Law
Office of Daniel W. Stevens, of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of James J. Mathie, of |
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2008
WI App 124
COURT OF APPEALS DECISION DATED AND FILED June 10, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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APPEAL
from an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 KESSLER, J. James Lister appeals from an order dismissing his complaint after Lister twice failed to appear for his deposition and then failed to provide a court-ordered physician’s report as to his ability to travel to, and participate in, a deposition. We affirm.
BACKGROUND
¶2 James Lister filed a complaint on April 28, 2006, alleging that Sure-Dry Basement Systems, Inc. negligently repaired his basement, breached a contract for the same, and violated Wis. Admin. Code chs. ATCP 110 and 111 by misrepresenting that the repairs contracted for and performed would correct the problems in Lister’s house. The complaint further alleged that Sure-Dry failed to honor the warranty issued for the work, and that Sure-Dry “knew or should have known that it had no intention of honoring the warranty.” Sure-Dry filed its answer on June 21, 2006, denying all of the allegations.
¶3 In June 2006, West Bend Mutual Insurance Company moved to
intervene for a declaration as to its rights, duties and obligations under its
insurance policies issued to Sure-Dry. By
letter dated July 12, 2006, Rural Mutual Insurance Company filed a stipulation
and order to intervene in this action for the “purpose of determining any
rights, responsibility and/or coverages pursuant to polices of insurance issued
to [Sure-Dry].” On July 20, 2006, the
trial court signed the order allowing intervention and also ordered a stay
regarding the merits of Lister’s complaint until such declaration had been made
by the trial court. By stipulation and
order dated September 8, 2006,
¶4 A status conference was held on October 5 and thereafter
Lister’s deposition for coverage purposes was scheduled for November 2, 2006,
in
¶5 Lister continued to fail to communicate with his counsel
following the November 13 hearing, even after his counsel left voicemail
messages on his telephone, mailed information regarding the deposition to him
at his home address and unsuccessfully attempted, through a process server, to serve
Lister with a subpoena for the November 27 deposition. On the Friday before the scheduled Monday deposition
(the Friday following Thanksgiving), Lister’s counsel again left a voicemail
message regarding the upcoming deposition and this message was returned that same
day by Lister’s wife. During this call,
Lister’s counsel was advised for the first time that Lister had been in
¶6 Lister’s counsel immediately attempted to contact counsel for
Sure-Dry, both at his office and at his home, as well as counsel for
¶7 After Lister failed to appear for this second deposition in
By 12-15, you will have some documentation as to your
client’s condition as to why he can’t travel to deposition in
….
So I’m looking for something from a doctor that states
that he cannot travel to
….
[I]f there’s any type of limitations on Mr. Lister’s deposition, then the doctor has to set it forth…. [I]f he has some limitations, they have to be put forth by a medical doctor in that letter.
The trial court noted that this
physician report should be from a non-related physician and that since Lister
had been under treatment for cancer since 1999, and required constant oxygen,
he must have a physician in the
¶8 Lister’s counsel requested that Lister have two weeks, rather
than one, to obtain a report from a local physician regarding his need for
oxygen and his corresponding inability to travel to
¶9 Lister then filed a motion for reconsideration, attaching letters from Dr. Humiston regarding the time that Lister was in Mexico pursuing additional medical protocols in treatment of his bladder cancer. The trial court found that these additional letters were insufficient to meet the standard for bringing a motion for reconsideration, i.e., presenting newly discovered evidence or establishing a manifest error of law or fact, and denied the motion. Lister appeals.
DISCUSSION
¶10 We review a trial court’s imposition of sanctions under an
erroneous exercise of discretion standard.
Industrial Roofing Servs. v. Marquardt, 2007 WI 19, ¶41, 299
¶11 Sanctions are appropriate if the party acted egregiously. See
Garfoot
v. Fireman’s Fund Ins. Co., 228
Specifically, Wis. Stat. § 804.12(2)(a) and
§ 805.03 limit the sanctions
that circuit courts may impose for failure to prosecute and for failure to
comply with court orders to those that are “just.”[2]
Industrial Roofing Servs.,
299
¶12 In this case, Lister filed a complaint against Sure-Dry in
April 2006 and Sure-Dry filed an answer on June 21, 2006. Shortly thereafter,
¶13 After Lister’s counsel advised the trial court during the December
5, 2006 hearing that Lister was medically unable to travel to Oshkosh for his
deposition due to his portable oxygen circumstances, the trial court, aware of Lister’s
ability, one week before the scheduled deposition, to travel by road for three
days from
¶14 From our review of the record, we determine that the trial
court properly exercised its discretion.
The findings are not clearly erroneous, the proper law was applied to
those facts, and the trial court reached a rational conclusion. See
Industrial
Roofing Servs., 299
By the Court.—Order affirmed.
[1] Specifically, the trial court noted:
[Sure-Dry’s counsel] attempted to depose Mr. Lister not once but twice. Mr. Lister failed to appear not once but twice.
The court was advised that Mr. Lister couldn’t come to the deposition because he has limitations on his travel ability. I gave him the benefit of the doubt and I said give me a doctor’s letter that says you can’t travel.… I received nothing.
….
[Lister] is the plaintiff. He has to pursue this matter.… He left … the country. His attorney did not know where he was, and I understand he’s back in the country but he had left without telling [his counsel] where he was.
[I]f Mr. Lister wanted to pursue this matter he could have pursued this matter. To me it does not appear he really wants to pursue this matter. He has failed to appear at deposition not once but twice.
There’s no indication … that Mr. Lister is serious about this matter and he’s actively pursuing his rights. He’s failed to do so.
It’s not appropriate to keep these insurance companies and to keep Sure Dry Basement in as a defendant when the plaintiff doesn’t have too much interest in this lawsuit. I am dismissing the case with prejudice.
[2] Under Wis. Stat. § 804.12(2)(a) “If a party ... fails to obey an order to provide or permit discovery, [the court] may make such orders in regard to the failure as are just, [including] ... dismissing the action.” Section 805.03 provides:
For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of the court, the court ... may make such orders in regard to the failure as are just, including ... orders authorized under § 804.12(2)(a).
Industrial
Roofing Servs. v. Marquardt, 2007 WI 19, ¶43 n.7, 299
[3] From the record, it does not appear that Lister has ever provided this information.