COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 27, 1996 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1866-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
LAURA ROBERSON and
ROSALINE ROBERSON,
Plaintiffs-Appellants,
v.
DONALD JESSUP and
ABC INSURANCE COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN J. DIMOTTO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Laura Roberson and her daughter Rosaline
Roberson appeal from a circuit court judgment dismissing their personal injury
case for their failure to comply with the terms of the circuit court's
scheduling order. Because the circuit
court did not err in its exercise of discretion in dismissing this case, we
affirm.
BACKGROUND
Laura Roberson allegedly
slipped and fell outside the front door of her daughter's apartment in the city
of Milwaukee on February 16, 1990. When
Rosaline Roberson attempted to assist her mother, she allegedly also fell. The two women subsequently filed a complaint
against Donald Jessup, Rosaline's landlord, claiming that they each suffered
personal injuries as a result of their respective falls on the ice accumulated
in front of Jessup's apartment building.
On June 29, 1993, the
trial court issued a scheduling order pursuant to § 802.10(3)(b), Stats.
In part, the scheduling order required the Robersons to provide their
witness list to Jessup no later than October 1, 1993. The deadline passed without the Robersons' compliance. In August 1994, the Robersons' counsel
contacted Jessup's counsel seeking his consent to the Robersons' desire to file
a belated witness list. Jessup's
counsel declined to grant Robersons' counsel his consent. Shortly thereafter, Robersons' counsel
contacted the trial court and scheduled a hearing on a motion to amend the
scheduling order. Despite scheduling
the matter for hearing, Robersons' counsel did not file or serve the
motion. The trial court held its
hearing on October 5, 1994. Robersons'
counsel did not appear or cancel the date.
In light of these circumstances, the trial court, on its own motion,
denied the Robersons' putative request for relief.
On January 3, 1995, more
than a month after the scheduling order's discovery cut-off date and only two
weeks before the trial date, Robersons' counsel contacted Jessup's counsel
regarding dates on which Jessup and a physician would be available for
deposition. Jessup's counsel refused to
consent to the proposed depositions and on January 5 filed a motion in
limine, requesting the trial court to enter an order prohibiting the
Robersons from calling any witnesses at trial.
The trial court subsequently contacted both parties, informing them that
the motion in limine would be heard on January 17. When neither the Robersons nor their counsel
appeared at the hearing, the matter was postponed, eventually to March 2,
1995. At the March 2 hearing, the
Robersons' counsel requested leave to file a motion to amend the scheduling
order. The trial court granted the
Robersons leave and scheduled a hearing to hear the motion in limine and
the motion to amend on March 27, 1995, the lawsuit's new trial date. The Robersons again did not file or serve a
motion to amend the scheduling order.
At the March 27 hearing,
the trial court heard arguments on Jessup's motion in limine and the
Robersons' oral motion to set a new scheduling order. The trial court construed Jessup's motion as one to dismiss the
case. The trial court granted the
motion, finding that the "plaintiffs' day in Court has been forfeited by
the egregious conduct of plaintiff[s] and plaintiff[s'] counsel without any
justifiable excuse [for] ignoring the scheduling order in this particular
case."
DISCUSSION
Trial courts have the
authority to impose sanctions, including the dismissal of claims for a party's
failure to obey a scheduling order.
Secs. 805.03, 804.12(2)(a)3, and 802.10(3)(d), Stats. However, where
dismissal is imposed for a failure to comply with a scheduling order, the trial
court must make a finding of egregious conduct. Johnson v. Allis-Chalmers Corp., 162 Wis.2d 261,
276, 470 N.W.2d 859, 865 (1991).
At the same time, a
party may not obtain relief from an order requiring discovery by a certain date
after the date has expired unless the party is able to demonstrate that
its failure to seek relief from the order prior to that date was the result of
"excusable neglect." See
§ 801.15(2)(a), Stats.; Schneller
v. St. Mary's Hosp. Medical Center, 162 Wis.2d 296, 310, 470 N.W.2d
873, 878 (1991). Additionally, a party
may not be relieved of the consequences resulting from its failure to comply
timely with a discovery order unless that party is able to demonstrate "a
clear and justifiable excuse" for that failure. Johnson, 162 Wis.2d at 280, 470 N.W.2d at 866. See also Carlson Hearing, Inc. v.
Onchuck, 104 Wis.2d 175, 181-82, 311 N.W.2d 673, 676-77 (Ct. App.
1981).
Whether a sanction is
appropriate and the choice of sanction to be imposed are issues subject to
trial court discretion. Johnson,
162 Wis.2d at 273-75, 470 N.W.2d at 863-64.
We will sustain a discretionary determination that is a reasonable
product of a demonstrated rational mental process based upon facts of record
and the applicable law. Hartung
v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981). "Because ‘the exercise of discretion is
not the equivalent of unfettered decision-making,'" the record must
reflect the trial court's "reasoned application of the appropriate legal
standard to the relevant facts in the case." Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 471,
326 N.W.2d 727, 732 (1982).
We hold that the trial
court's order did not result from an erroneous exercise of discretion. The trial court cataloged the Robersons'
failure to comply with its order or file a request for relief. These findings of fact sustained the trial
court's conclusion that the Robersons repeatedly failed to heed the trial
court's deadlines and ignored the court's orders and hearing dates "with
impunity, particularly where they have no reasonable explanation for the conduct." The court termed the case a "mess
because plaintiff[s'] counsel has failed to comply with the scheduling order,
which clearly denoted what the sanction would be for failing to comply with the
scheduling order." Those sanctions
indicated on the trial court's scheduling order included dismissal under sec.
805.03, Stats. In light of the record,
we conclude that the trial court properly exercised its discretion when it
concluded that the Robersons' failure to comply with the scheduling order was
egregious in character and without justifiable excuse.
We are aware of the
harsh effect of the trial court's order barring Walter's expert witnesses from
testifying on his behalf at trial. Yet,
"[t]he general control of the judicial business before it is essential to the
court if it is to function." Latham
v. Casey & King Corp., 23 Wis.2d 311, 314, 127 N.W.2d 225, 226
(1964). Accordingly, we conclude that
the trial court properly exercised its discretion in firmly enforcing its
orders to protect the integrity of its scheduling conference and orders to
facilitate the case before it.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.