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COURT OF APPEALS DECISION DATED AND RELEASED October 17, 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. 95-2654-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
OMOWALE NUBIAN BLACK,
Plaintiff-Appellant,
v.
ELEANOR SWOBODA,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER CURIAM.[1] Omowale
Nubian Black appeals from an order dismissing his public records mandamus
action. The issues are whether the
trial court erroneously exercised its discretion in dismissing this action for
failure to prosecute, and whether the trial court erred in denying Black's
request for costs, fees and damages under § 19.37(2), Stats. We conclude
that the trial court properly exercised its discretion in dismissing the action
for Black's failure to prosecute and properly denied Black's request for costs,
fees and damages. Therefore, we affirm.
Black submitted a public
records request to Eleanor Swoboda, the Department of Corrections Deputy Legal
Custodian, for a videotape of his August 1992 cell extraction and all related
incident and conduct reports.[2] After waiting over eight months for a
response, Black filed a mandamus action.
In her answer, Swoboda admitted that she had forgotten about the
request, and produced certain incident reports[3]
and Black's conduct reports and related records.[4] She refused to produce the videotape for
security reasons, but advised Black's counsel that he could watch the videotape
at the Columbia Correctional Institution.[5]
Other than moving to
amend the pleadings to reflect his recent name change, Black took no action
until seven months later, when he objected to the trial court's placement of
this case on its dismissal calendar.[6] He claimed that he would move for an
alternative mandamus order within ten days.
He did not do so. Four months
after Black's objection, and almost one year after the action was filed,
Swoboda moved for dismissal for failure to prosecute.[7] See § 805.03, Stats. At the hearing
on Swoboda's dismissal motion, Black orally requested costs, fees and damages
under § 19.37(2), Stats.[8] The trial court denied that request and
dismissed the action for failure to prosecute under § 805.03, Stats.
We review a judgment of
dismissal for failure to prosecute for an erroneous exercise of
discretion. Johnson v. Allis
Chalmers Corp., 162 Wis.2d 261, 273, 470 N.W.2d 859, 863 (1991). Here, the record evidences inactivity. Black provides no reason for his one-year
delay in seeking an alternative mandamus order. Without a transcript of the hearing, we must assume that every
fact essential to the trial court's exercise of discretion is supported by the
record. Austin v. Ford Motor Co.,
86 Wis.2d 628, 641, 273 N.W.2d 233, 239 (1979). We will make that assumption.[9]
At the hearing on
Swoboda's dismissal motion, Black orally requested costs, fees and damages
under § 19.37(2), Stats.[10] Our review of the trial court's denial of
that request is dependent on statutory construction, which we review as a
question of law. Racine Educ.
Ass'n v. Racine Bd. of Educ., 129 Wis.2d 319, 325, 385 N.W.2d 510, 512
(Ct. App. 1986).
To recover costs and
fees, Black must demonstrate that he prevailed in "substantial part,"
namely, that the mandamus action could reasonably be regarded as necessary to
obtain the records. Section
19.37(2)(a), Stats.; Eau
Claire Press Co. v. Gordon, 176 Wis.2d 154, 160, 499 N.W.2d 918, 920
(Ct. App. 1993). Black requested three
categories of records: (1) the
videotape; (2) incident reports; and (3) his conduct reports. The only records produced which Black had
not previously received were approximately seven pages of incident reports, all
of which contained personally identifiable information. See § 19.35(1)(am), Stats.[11] Black did not pursue Swoboda's refusal to
produce the other incident reports, although he belatedly moved for an
alternative mandamus order for production of the videotape. However, the action was dismissed, which
rendered the belated motion moot.
The only records
produced that Black did not already have were seven pages of incident reports
and his attorney's right to view the videotape. Black's entire argument is that because he did not receive these
records until he filed his action, mandamus was necessary. However, the "allegedly prevailing
[requester] must assert something more than post hoc, ergo propter hoc." Racine, 129 Wis.2d at 326, 385
N.W.2d at 512. Furthermore, by seeking
an alternative mandamus order to obtain the videotape, Black admitted that he
had not prevailed. The alleged result
of this mandamus action was production of seven pages of incident reports,
which Black has not demonstrated have any significance, and a response
regarding the videotape, which Black has asserted is inadequate. Black has not persuaded us that he has
prevailed in substantial part. He is
not entitled to costs or fees.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[3] Swoboda produced only the incident reports which specifically related to Black. See § 19.35(1)(am), Stats.
[4] This mandamus action was unnecessary to produce most of these records because they had previously been given to Black.
[5] The Department of Corrections' policy precludes providing requesters with a copy of the tape to prevent an analysis of the correctional institution's security precautions, procedures and capabilities.
[6] Black's February 14, 1995 correspondence objecting to dismissal of this action is not in the appellate record. However, the substance of that correspondence is summarized in the affidavit of defendant's counsel supporting dismissal.
[9] Black contends that he was denied procedural due process of law because he was never notified of "[the trial court's] standards for identifying impermissible delay." Black contends his case is on point with Rupert v. Home Mut. Ins. Co., 138 Wis.2d 1, 405 N.W.2d 661 (Ct. App. 1987). We disagree. In Rupert, we held that the trial court's unanticipated sua sponte dismissal of the action violated due process. Id. at 8-9, 405 N.W.2d at 663-64. The trial court in Black's case removed the case from its dismissal calendar upon receipt of Black's objection. At that time, Black represented that he would seek an alternative mandamus order within ten days. However, he did not honor that representation. Four months later, Swoboda served Black with a motion delineating her dismissal theory for failure to prosecute. The trial court granted Swoboda's dismissal motion one month later. Black has not shown a denial of procedural due process of law.
[10] We are not persuaded that the trial court erred when it denied a request that was not reduced to writing and noticed, as required by § 802.01(2), Stats.
[11] Section 19.37(2)(b), Stats., provides actual damages for a violation of § 19.35(1)(am), Stats., upon a showing that the refusal was wilful or intentional. The only information in the record on Swoboda's refusal is her answer in which she claims that she forgot about the request. Because there is no evidence that her refusal was wilful or intentional, we deny the request for actual damages for the personally identifiable information Black sought.