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COURT OF APPEALS
DECISION
DATED AND FILED
February 10, 2009
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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Medical College of Wisconsin,
Plaintiff-Respondent,
v.
Karyn T. Missimer,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: mel
flanagan, Judge. Affirmed.
¶1 CURLEY, P.J. Karyn
T. Missimer appeals the order dismissing without prejudice the small claims
action filed against her by the Medical College of Wisconsin (Medical College). She submits that the trial court erroneously
exercised its discretion when it failed to dismiss the case with
prejudice. Because the record contains
no information that conclusively shows that the Medical College
itself acted in an egregious fashion or contributed to the events which led the
court to dismiss the case, this court affirms. See Industrial
Roofing Servs., Inc. v Marquardt, 2007 WI 19, ¶61, 299 Wis. 2d 81, 726 N.W.2d
898 (Imputing the attorney’s conduct to the client where the client is
blameless is an erroneous exercise of discretion.).
I. Background.
¶2 Missimer, an attorney, first learned of several outstanding
medical bills for her estranged husband in April 2006, when she was contacted
by a collection agency. Missimer
disputed whether she was responsible for the bills because she had filed for
divorce prior to the time her husband had incurred the bills, and they were
physically separated; she never agreed to pay the bills; and she had no
knowledge of them until the collection agency contacted her. When she was unable to resolve the bill, she
hired an attorney. After some negotiations, a settlement offer
was made to the Medical College’s attorney by Missimer’s attorney, but it was
rejected by the Medical
College.
¶3 Unbeknownst to Missimer, one month after the Medical College
rejected her settlement offer, the law firm representing the Medical College
started a small claims action against her and subsequently obtained a default
judgment for approximately $4515. Missimer
discovered the existence of the suit when she entered her name into the state’s
Consolidated Court Automation Programs (CCAP) system. Missimer brought a motion both to reopen the
default judgment, followed by a motion to have the matter dismissed with
prejudice. She also supplied the Medical College’s
lawyer with her new addresses.
¶4 Missimer discovered through documents in the court file that
although the small claims summons showed her address to be a post office box in
Butler, Wisconsin,
the process server chose to serve her at an old address where she had not lived
for two years. In addition, the process
server claimed in an affidavit that no forwarding address existed for her, and
that a check of both directory assistance and CCAP did not reveal any telephone
number or current address. Later, an
employee of the law firm, in an affidavit submitted to the court, claimed that
she had done an internet and CCAP search that revealed the post office box was
no longer a valid address for Missimer. As
a consequence, the law firm elected to proceed to serve her by
publication. The law firm then mailed a
copy of the summons and complaint and service by publication to her at the old
address, not the post office box the law firm listed in the complaint.
¶5 Further, although the law firm knew that an attorney
represented Missimer, the law firm did not contact Missimer’s lawyer to find
out her correct address. Missimer
testified at the hearing on her motion to reopen that the post office box was
still in existence at the time the lawsuit was commenced and it was regularly
checked. Missimer also explained to the court
that she was listed in the yellow pages, and that when she conducted an
internet search, it quickly revealed her whereabouts. The trial court granted Missimer’s motion to
reopen the case.
¶6 While the matter was pending in small claims court, the Medical College’s
law firm made several additional mistakes.
In responding by mail to two motions filed by Missimer, the law firm
addressed one of the letters to the wrong post office box, and neither mailing
had sufficient postage. Missimer had to
pay $1.25 in postage in order to obtain the documents. At the hearing, the trial court also learned
that Missimer had subpoenaed one of the Medical College’s
attorneys, who failed to honor the subpoena.
After hearing what had occurred with regard to service of the summons
and complaint, the trial court dismissed the case, but delayed determining if
it was to be with or without prejudice.
The trial court later signed an order stating that the dismissal was
without prejudice. This appeal follows.
II. Analysis.
¶7 Missimer argues that the trial court erroneously exercised
its discretion when it dismissed the case without prejudice. She submits that the actions of the Medical College
and its law firm were “egregious and suggest[] dishonesty, and threaten[] the
orderly administration of justice.” She recited
as proof the law firm’s inability to find her despite having her correct
address, its failing to contact her lawyer, and its later sloppy practices in
sending her mailings. She also was
skeptical of the explanations given by the law firm for its failure to
personally serve her. She challenged the
affidavits in the record submitted by the law firm stating she could not be
located because she had a listing in the telephone book, and an internet search
she conducted revealed her telephone number and an address where she could be
reached. She pointed out that many of
the law firm’s documents substantiating its earlier efforts to find her were
all dated in January 2008, not August or September 2007, when the search would
have taken place.
¶8 As to her argument that the conduct that transpired in her
case threatens the orderly administration of justice, Missimer points to the Medical College’s
lawyer’s disregard for a subpoena and its failure to respond to a discovery
request. While this court can appreciate
Missimer’s exasperation at the conduct of the law firm in trying to serve her,
and her suspicion that the law firm was attempting to obtain a default judgment
so that Missimer would be obligated to pay is understandable, but there is no
evidence in this record that proves that the Medical College participated in the
actions that transpired. Thus, this
court must affirm.
¶9 “The decision to impose sanctions and the decision of which
sanctions to impose, including dismissing an action with prejudice, are within
a [trial] court’s discretion.” Industrial
Roofing, 299 Wis.
2d 81, ¶41. “‘A discretionary decision
will be sustained if the [trial] court has examined the relevant facts, applied
a proper standard of law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.’” Id. (citation
omitted).
¶10 This case is governed by the holding in Industrial Roofing: “[W]e determine that it is an erroneous
exercise of discretion for a [trial] court to enter a sanction of dismissal
with prejudice, imputing the attorney’s conduct to the client, where the client
is blameless.” Id., ¶61. Missimer attributes the actions of the Medical College’s
lawyers in their attempt to obtain service of process in the small claims case
to the Medical College.
However, the only actions specifically attributable to the Medical
College are her contentions that it: (1)
changed the name on the medical bills from her husband’s name to her name; (2)
failed to send her verification that the patient listed on the medical bills was
actually her husband; (3) never responded to her discovery requests; and (4) is
a sophisticated client who repeatedly uses this particular law firm. This court concludes that these acts were insufficient
to rise to the level of egregious conduct that threatens the orderly
administration of justice.
¶11 No evidence that the Medical
College changed the name
on the medical bills can be found in the record. The documents in the record that alerted Missimer
to the existence of the debt reflect that the information came from a
collection agency, not the Medical
College. Additionally, there is nothing in the record
showing that Missimer dealt directly with the Medical College. Her earlier attempts at resolving the matter
were conducted with the collection agency, and the later attempts were
conducted with the Medical
College’s law firm. So too, her discovery requests of the Medical College were sent to its law firm. Moreover, no motion to compel discovery was
ever filed, and the request for discovery was moot after the trial court
granted the motion to dismiss. In sum,
nothing points to any involvement with the suit by the Medical College.
¶12 Missimer makes much of the failure of the Medical
College’s attorney to honor a subpoena
and claims she could have connected the Medical College
with the other acts, had she been able to cross-examine the attorney. However, Missimer failed to pursue her
request to have the lawyer present and to take testimony from her concerning
the Medical College’s level of interest and
knowledge of the case. Nor does the Medical College’s status as a sophisticated
client who has contracted with this particular law firm to do its collection
work, without more, trump the admonition that attorney conduct cannot be
imputed to the client if the client is blameless.
¶13 Finally, Missimer asks this court to remand the matter to the trial
court to flesh out her argument that the Medical College’s
conduct was egregious. However, she
never requested the trial court for a hearing to take additional testimony on
the matter, and, by filing her appeal, she has waived this issue. Pursuant to State v. Rogers, 196 Wis. 2d 817,
828-29, 539 N.W.2d 897 (Ct. App. 1995), failure to raise specific challenges in
the trial court waives the right to raise them on appeal. Consequently, this court affirms the order of
dismissal without prejudice.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4. (2007-08).