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COURT OF APPEALS DECISION DATED AND RELEASED August 15, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2461
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JAMES WIECHMANN,
D.B.A.,
Plaintiff,
v.
COLIN ILSLEY
and ROGER ILSLEY,
Defendants-Third Party
Plaintiffs-Appellants,
JED GROSSER,
Defendant,
KARL SCHREIBER,
Third Party Defendant-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County: FRANK T. CRIVELLO, Judge. Reversed and cause remanded with
directions.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Colin Ilsley and Roger Ilsley (Ilsleys)
appeal from an order dismissing with prejudice their third-party complaint
against Karl Schreiber. The Ilsleys
present one issue for our review—whether the trial court erroneously exercised
its discretion by granting Schreiber's motion to dismiss. They argue that the trial court's reason for
dismissing the complaint, that their third-party complaint was untimely filed
in violation of the court's scheduling order, did not rise to the level of
“egregious conduct” necessary to support such a dismissal. We agree with the Ilsleys and conclude that
there is no reasonable basis for the trial court's conclusion that the Ilsleys'
conduct was egregious. Accordingly, the
trial court erroneously exercised its discretion and we reverse the trial
court's order and remand the matter for further proceedings consistent with
this opinion.
In November 1993, James
Wiechmann (d/b/a Wiechmann Enterprises Unlimited), a landlord, filed a small
claims action for approximately $1,100 against his former tenants Colin Ilsley,
Jed Grosser, and Karl Schreiber. In
December 1993, the Ilsleys answered the small-claims complaint and filed a
counterclaim against Wiechmann for damages greater than the jurisdictional
limit for a small claims action.
Consequently, the action was moved to the circuit court.
At the time the action
moved to the circuit court, Schreiber had a pending motion to dismiss him as a
party because of Wiechmann's failure to serve upon him a copy of the original
complaint. At a status conference, the
parties stipulated to dismiss Schreiber as a party without prejudice, and the
trial court placed a scheduling order deadline of March 28, 1994, for the
filing of any third-party or cross-complaints. On March 9, 1994, the Ilsleys
sent a proposed order allegedly memorializing the events of the scheduling
conference. The proposed order stated
that any third-party complaint had to be filed and that any other parties had to
be joined by April 13, 1994, and that service of any third-party complaint had
to be made within sixty days from April 13, 1994. The Ilsleys never delivered a copy of the proposed order to
Schreiber; accordingly, upon hearing no objection from Schreiber, the trial
court signed the proposed order. The
Ilsleys filed the third-party complaint that is the subject of this appeal on
April 13, and served it on Schreiber on May 1, 1994.
Schreiber then filed a
motion to dismiss the third-party complaint and both claims were removed from
the small claims calendar.[1] After a hearing on the motion, the trial
court granted Schreiber's motion and dismissed the third-party complaint with
prejudice. The trial court concluded
that although the incorrect dates on the Ilsleys' proposed order “were not
submitted intentionally to fool the court,” dismissal was “an appropriate
sanction in this case.”
The trial court's
decision to dismiss an action is within its discretion, and we will not reverse
such a determination unless the trial court erroneously exercised its
discretion. Johnson v. Allis
Chalmers Corp., 162 Wis.2d 261, 273, 470 N.W.2d 859, 863 (1991). Dismissal is not an erroneous exercise of
discretion if the aggrieved party's conduct was egregious and without a clear
and justifiable excuse. Id. Dismissal as a sanction should be rarely
granted and is only appropriate where egregious conduct is shown. Milwaukee Constructors II v. Milwaukee
Metro. Sewerage Dist., 177 Wis.2d 523, 533, 502 N.W.2d 881, 884 (Ct.
App. 1993). The great majority of cases
which are properly sanctioned by dismissal involve a flagrant disregard of the
court's orders. Id. at
536 n.4, 502 N.W.2d at 886 n.4. We will
sustain the sanction of dismissal if there is a reasonable basis for the trial
court's determination that the party's conduct was egregious and there was no
“clear and justifiable excuse.” Johnson,
162 Wis.2d at 276‑77, 470 N.W.2d at 865.
We can locate no basis
for the trial court's determination that the Ilsleys' conduct was
egregious. The Ilsleys' counsel, in his
affidavit, stated that the erroneous dates that appeared in his proposed order
were made by “mistake and inadvertence.”
Further, the trial court also stated, before dismissing the complaint,
that it did not believe the dates were submitted intentionally. The court simply made a finding of these
errors and concluded that dismissal was an appropriate sanction. The trial court erroneously exercised its
discretion. Without a further
demonstration in the record explaining how the errors rise to the level of
egregious conduct necessary for granting a dismissal order, we conclude that
dismissal of the Ilsleys' third-party complaint was an inappropriate
sanction. Accordingly, the order of the
trial court is reversed and we remand the matter for further proceedings
consistent with this opinion.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.