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COURT OF
APPEALS DECISION DATED AND
RELEASED September
19, 1996 |
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. 95-1974
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
WILLIAM
SCHLEICHERT,
DOROTHY
SCHLEICHERT and
JOHN
DOE,
Plaintiffs-Appellants,
v.
COLUMBIA
COUNTY,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Columbia County: DONN H. DAHLKE, Judge. Reversed and cause remanded.
Before
Dykman, P.J., Vergeront and Deininger, JJ.
DEININGER,
J. The plaintiffs appeal from an order dismissing their
complaint for failure to prosecute the action under § 805.03, Stats.
The sole issue is whether the trial court properly exercised its
discretion in determining that the plaintiffs' failure to advance the case
constituted egregious conduct. We
conclude that there is no reasonable basis to support the determination of
egregiousness and, accordingly, reverse the order.
BACKGROUND
The
basic facts are not in dispute. The
plaintiffs are presently or have been employed as deputy sheriffs for Columbia
County (County). They filed an action
on April 30, 1990, in Columbia County Circuit Court seeking additional regular
and overtime wages from the County.[1] Early on, there was activity in the case
centering on motions for summary judgment filed by both parties. An appeal from the trial court's decision on
these motions was denied, and the cause was remitted on September 4, 1992.
During
a hearing on motions on October 8, 1992, the trial court ordered depositions of
witnesses to take place the week of October 20, 1992 "unless the parties
can agree to a different schedule."
Counsel for the County, Robert Hesslink, attempted to schedule
depositions of the plaintiffs during that week, but plaintiffs' counsel
directed his clients not to attend the depositions. He was withdrawing from the case and did not want the plaintiffs
to attend the depositions without counsel.
The
trial court permitted the substitution of plaintiffs' counsel on February 3,
1993. Plaintiffs' new counsel, Jeff
Olson, contacted Hesslink for information on the status of the case. Although Hesslink initially suggested
scheduling depositions during the first week in March, he and Olson agreed to
postpone the depositions in order to pursue settlement negotiations.
After
forwarding a copy of the County's settlement offers, Hesslink wrote to Olson
and stated that unless the County had received a settlement counteroffer from
the plaintiffs by May 11, 1993, the County would go ahead and notice
depositions of the plaintiffs. After
contacting his clients and determining that there were questions regarding the
method used by the County to arrive at its settlement figures, Olson wrote to
Hesslink and proposed that the parties jointly engage the services of an
independent wage auditor and agree to be bound by the auditor's
evaluation. Hesslink rejected the proposal
in a letter dated June 8, 1993, and stated that unless the County received a
settlement proposal from the plaintiffs by July 6, 1993, he would proceed to
schedule the depositions.
Immediately
after the letter from Hesslink, Olson was seriously injured in an accident,
hospitalized for nine days and restricted to bed rest for two more weeks. Olson went back to work part-time by
mid-August and wrote to Hesslink, telling him that he (Olson) would try to get
some settlement figures to him by early September 1993. Olson did not communicate any settlement
offers by that time. Subsequently, in
early 1994, Olson decided that consultation with an expert wage auditor was
necessary and retained the services of a wage expert with whom he had worked
previously. In February 1994, Olson
sent Hesslink a letter requesting production of the original time records of
the plaintiffs. Olson sent two more
letters requesting the documents.
Hesslink replied in writing on April 1, 1994, stating that he would
produce the documents as soon as the plaintiffs complied with the outstanding
deposition order.
Olson
and Hesslink spoke on April 12, 1994, and agreed that they would put off formal
discovery in anticipation of further settlement efforts. Olson suggested that he would be able to
prepare the settlement offer from the plaintiffs without the original time
records in possession of the County.
Hesslink
wrote Olson on May 4 and July 14, 1994, to inquire about Olson's progress. Although Olson did not reply to Hesslink's
letters, he stated later in an affidavit that he was working with his clients
during this time to calculate settlement figures based on the records already
in the plaintiffs' possession.
Even
though off-record discussions and communications were taking place, no formal
action had occurred since February 1993, when plaintiffs' counsel was
substituted. On September 27, 1994,
the trial court, on its own motion, issued an order for dismissal pursuant to
§ 805.03, Stats., for
failure to prosecute.[2] Plaintiffs' counsel filed an objection and
an affidavit explaining that he had been in an accident and outlining the
off-record activities in the case. The
trial court wrote both parties in October 1994 stating that although "it
appears that there has been considerable movement in this case, and also Mr.
Olson had a serious medical problem," it had still issued a dismissal
because "none of this was apparent from the official court
file." The trial court also stated
that it had unsuccessfully attempted to contact the County's counsel, to see if
the County had "any objection to not dismissing the above
action." The County responded by
requesting that the order to dismiss remain in place because plaintiffs'
counsel had failed to diligently prosecute the action. The trial court held a hearing on the
dismissal order on January 6, 1995, and subsequently entered an order of
dismissal on August 7, 1995.
ANALYSIS
A
circuit court's decision to dismiss an action under § 805.03, Stats., is discretionary and will not
be disturbed unless the court has erroneously exercised its discretion. Johnson v. Allis Chalmers Corp.,
162 Wis.2d 261, 273, 470 N.W.2d 859, 863 (1991). A discretionary decision will be sustained if the circuit court
has examined the relevant facts, applied a proper standard of law and reached a
conclusion that a reasonable judge could reach using a demonstrated rational
process. Loy v. Bunderson,
107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).
It
is the plaintiff's responsibility to move a case to trial. A plaintiff may not rely on the circuit
court to prompt him or her to action or move a case to trial for him or
her. Prahl v. Brosamle,
142 Wis.2d 658, 670-71, 420 N.W.2d 372, 377 (Ct. App. 1987). In Prahl we explained:
"Courts are glutted with stale lawsuits, and the
responsibility of an attorney to his [or her] client, as well as to the
judicial system, requires that counsel be ready for trial in a reasonable
time. One of the principal causes for
delay in the trial courts is the failure of counsel to be in readiness when [a]
case is called for trial or [a] lack of vigor in moving [the] case to the trial
stage."
Id. at 670, 420 N.W.2d 377 (quoting Lawrence v. MacIntyre,
48 Wis.2d 550, 556, 180 N.W.2d 538, 541 (1970)).[3] Trial courts have a variety of measures they
can, in their discretion, employ to sanction dilatory plaintiffs, including
dismissal. See § 805.03, Stats.; § 804.12(2)(a), Stats.; § 802.10(3)(d), Stats.
However, we have stated that outright dismissal is "an extremely
drastic penalty that should be imposed only where such harsh measures are
necessary." Hudson Diesel,
Inc. v. Kenall, 194 Wis.2d 531, 542, 535 N.W.2d 65, 69 (Ct. App. 1995).
The
plaintiffs argue that the trial court should not have dismissed their complaint
because there is no reasonable basis on this record to support a determination
that their conduct was egregious. The
County, citing Prahl v. Brosamle, 142 Wis.2d 658, 420 N.W.2d 372
(Ct. App. 1987) and Schwab v. Baribeau Implement Co., 163 Wis.2d
208, 471 N.W.2d 244 (Ct. App. 1991), counters that the egregious conduct
standard is limited to dismissals for noncompliance with court orders, whereas
dismissals for failure to prosecute must be upheld unless the aggrieved party
can show a "clear and justifiable excuse" for a delay in
prosecution. Neither Prahl
nor Schwab supports the County's contention, since in both we
acknowledged the necessity for a finding of egregious conduct before dismissal
is warranted.
In
Prahl, the plaintiff "did absolutely nothing" to
advance his case for three years after we reversed a summary judgment and
remanded his case for trial. Prahl,
142 Wis.2d at 669, 420 N.W.2d at 377.
The trial court granted dismissal for failure to prosecute. In upholding the dismissal, we noted that
"because dismissal is a harsh sanction, the remedy is appropriate `only in
cases of egregious conduct by a claimant.'" Id. at 667, 420 N.W.2d 376 (quoting Trispel
v. Haefer, 89 Wis.2d 725, 732, 279 N.W.2d 242, 245 (1979)). We cited this same language in reaching a
similar result in Schwab.
Schwab, 163 Wis.2d at 215, 471 N.W.2d at 247.
Moreover,
subsequent to Prahl, the supreme court has held that a dismissal,
whether for failure to prosecute or failure to comply with a court order, is an
erroneous exercise of discretion in two situations: (1) if there is
no reasonable basis to support the circuit court's determination that the
aggrieved party's conduct was egregious or (2) if the
aggrieved party can establish a clear and justifiable excuse for the delay in
prosecuting the action. Monson v.
Madison Family Inst., 162 Wis.2d 212, 224, 470 N.W.2d 853, 858
(1991)(failure to prosecute); Johnson, 162 Wis.2d at 276, 470
N.W.2d at 864-865 (failure to obey court order).
The
County next argues that plaintiffs' "fail[ure] to comply with a court
order to appear for their depositions for over two years" was egregious conduct. The order to attend depositions was not part
of a scheduling or discovery order, nor was it a written order of any kind.[4] The following is the colloquy at the October
8, 1992, hearing regarding the scheduling of depositions:
THE COURT:
Depositions have been scheduled and they should be held at the time and
place they were scheduled unless the parties can agree to a different schedule.
MR. KAMMER [then plaintiffs' counsel]: I can tell you now that as to some of those
days--and I don't have my calendar in front of me--I'm not going to be
there. I have other things I have to
do. I can tell you that at least one of
my deponents is not going to be there either....
If you're ordering that he must be there at the
times that have been noticed, then we're going to have some real problems. If you're ordering that they be held at some
reasonable and mutually convenient time, we certainly will work with Mr.
Hesslink to get them scheduled.
THE COURT:
He indicated before that he would work around it.
MR. KAMMER:
That's fine, Judge.
THE COURT:
I'm starting out with the basic premise that it would be held at the
time and place that it was scheduled.
And like I say, both parties have common sense, and if there are
circumstances that arise and change, why you have to work around it.
....
Like I say, it's
not ironclad that they be held at that time, but that's the basic premise.
Shortly
after the hearing, Kammer notified Hesslink that he was withdrawing and that
neither he nor his clients would be appearing for depositions on October 20,
1992. He noted the court's order that
"these depositions be rescheduled to a time which is convenient for the
parties." After Attorney Olson's
entry into the case, Hesslink agreed to postpone the depositions in order to
explore settlement. On two occasions
during 1993, Hesslink stated in letters to Olson that he would notice the
depositions of the plaintiffs pursuant to the court's order if a
settlement offer was not forthcoming.
In March of 1994, Hesslink again referred to the depositions in
responding to Olson's request for wage and time records: "[W]e are willing to consider setting
up a mutually agreeable time to exchange the information as soon as your
clients comply with the outstanding court order to attend their
depositions." No depositions were
ever noticed, however.
In
Hudson Diesel, Inc. v. Kenall, 194 Wis.2d 531, 535 N.W.2d 65 (Ct.
App. 1995), the plaintiff failed to respond to a discovery request until the
defendant brought a motion for sanctions, and plaintiff's compliance thereafter
was inadequate. The trial court granted
a dismissal against the plaintiff for an "egregious violation of discovery
procedures." Id. at
541, 535 N.W.2d at 69. We reversed,
holding that where the trial court has not found that the delaying party
"intentionally or deliberately delayed, obstructed or refused the
requesting party's ... demand," a trial court can "only
order dismissal if [the plaintiff's] conduct was egregious." Id. at 543, 535 N.W.2d
69. We further held that an action
"can properly be characterized as egregious" where "the
noncomplying party's conduct, though unintentional, is ... extreme, substantial
and persistent." Id.
Similarly,
we here conclude that there is no reasonable basis to support the trial court's
determination that plaintiffs' failure to appear for depositions and their
delay in advancing the case constitutes egregious conduct of the type required
for a dismissal under § 805.03, Stats. Here, the trial court did not find that the
plaintiffs deliberately obstructed or refused to meet the County's demand. The plaintiffs assert, and the County does
not dispute, that the two parties twice agreed to put off formal discovery
while the plaintiffs attempted to arrive at settlement figures. Although the County could have noticed the
depositions any time after October 1992, it did not do so. The record falls short of a showing that plaintiffs
"intentionally or deliberately delayed, obstructed or refused the
requesting party's demands." Hudson
Diesel, 194 Wis.2d at 543, 535 N.W.2d at 69.
Nor
can the plaintiffs' behavior be characterized as "extreme, substantial and
persistent." Id. In Monson v. Madison Family Institute,
162 Wis.2d 212, 470 N.W.2d 853 (1991),
for example, the supreme court concluded that the plaintiffs' behavior was
clearly "egregious" where the plaintiffs repeatedly failed to meet
deadlines set by the court, failed to give any response to the defendant's
request for production of documents, conducted no discovery for nearly two
years, filed its brief opposing a first motion to dismiss late and failed to
respond in any way to a second motion to dismiss except to appear at the
hearing. Monson, 162
Wis.2d at 221, 223, 470 N.W.2d at 857.
We conclude that the plaintiffs' pace of prosecution, while
procrastinatory, does not rise to the level of extreme, substantial, and
persistent misconduct.
We
do not endorse plaintiffs' conduct in this case. Although Olson's accident may have justifiably delayed progress
on the case to some extent, the trial court correctly noted that the period of
time for which Olson was incapacitated was relatively short compared to the
period of time for which no meaningful progress occurred in the case. See Lawrence v. MacIntyre,
48 Wis.2d 550, 554, 180 N.W.2d 538, 540 (1970) (attorney's illness not an
excuse where illness over for more than a year before the dismissal order was
entered). Since the substitution of
counsel in February 1993, plaintiffs neither managed to complete any formal
discovery nor produce any settlement offers.
They failed to respond to the County's two requests for information for
nearly six months.
We
stress that we do not wish to discourage trial courts from using their
discretionary power to sanction plaintiffs who have been remiss or derelict in
fulfilling their obligation to bring their cases to trial. We do not accept plaintiffs' suggestion that
a trial court's failure to enter a scheduling order immunizes plaintiffs from
sanctions under § 805.03, Stats.,
and § 804.12(2), Stats. We simply conclude that on the facts of this
case, where the plaintiffs were engaged in some, even if minimal, efforts to
advance the case, the "harsh sanction" of dismissal was too
drastic. See Johnson,
162 Wis.2d at 274, 470 N.W.2d at 864.
Further, we conclude that in light of the indications that some progress
was being made in the case (which the trial court itself noted in its October 20,
1994 letter to counsel), the court should have first determined whether less
severe sanctions could be used to remedy the plaintiffs' conduct. See Hudson Diesel, 194
Wis.2d at 545, 535 N.W.2d at 70 (where plaintiff's behavior was unintentional,
trial court should determine whether less severe sanctions will remedy any
discovery problems).
Because
we conclude that there is no reasonable basis to support a determination that
the plaintiffs' conduct was egregious, we reverse the order.[5]
By
the Court.—Order reversed and
cause remanded.
Not
recommended for publication in the official reports.
[1] The plaintiffs' complaint was originally
filed in Dane County on November 22, 1989, but venue was transferred to Columbia
County upon the County's motion in April 1990.
[2] Section 805.03, Stats., states in relevant part:
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 court, the court in which the action is pending may
make such orders in regard to the failure as are just, including but not
limited to orders authorized under s. 804.12(2)(a) [discovery].
[3] The plaintiffs argue that, under Wisconsin's
"new" rules of civil procedure, some part of the burden for bringing
cases promptly to trial rests on the trial court. While we agree that the rules, revised in 1976, contemplate a
more active role for trial judges in the scheduling process, the primary responsibility
for ensuring that a case progresses remains on the plaintiff. See Marshall-Wisconsin Co. v.
Juneau Square Corp., 139 Wis.2d 112, 136, 406 N.W.2d 764, 774 (1987)
("This court has thus repeatedly stated that it is the plaintiff's burden
to proceed with the prosecution of the action within a reasonable period of
time.")