Helmut PRAHL, Dynatron Research Foundation, Inc., and Dynatron Research Corporation, Plaintiffs-Appellants, v. Bryan BROSAMLE, Forward Communications Corporation, Lieutenant Kuenning and County of Dane, Defendants-Respondents.
No. 87-1384
Court of Appeals
Submitted on briefs November 12, 1987.—December 17, 1987.
420 N.W.2d 372
† Petition to review denied.
For the defendants-respondents Bryan Brosamle and Forward Communications Corporation the cause
For the defendants-respondents Lieutenant Kuenning and County of Dane the cause was submitted on the brief of Lloyd J. Blaney and Dew, Blaney & Olson, of Madison.
Before Gartzke, P.J., Eich and Sundby, JJ.
EICH, J. Helmut Prahl, Dynatron Research Foundation, Inc., and Dynatron Research Corporation (collectively, Prahl) appeal from an order dismissing their complaint for failure to prosecute the action under
In May, 1976, Prahl sued television news reporter Bryan Brosamle and his employer, Forward Communications, together with Dane County and several of its law enforcement officers, for damages. The action arose out of Brosamle‘s coverage, with the county‘s permission, of the officers’ response to a complaint of guns being fired on Prahl‘s property. Prahl‘s lawsuit was grounded upon allegations of trespass, violation of civil rights, false imprisonment and battery, among other things. The case was tried to a jury in December, 1977, and the trial court directed a verdict dismissing the action at the close of Prahl‘s case.
Prahl appealed and we upheld the dismissal of all causes of action except the trespass claim. We remanded for a new trial on that issue alone. Prahl v. Brosamle, 98 Wis. 2d 130, 295 N.W.2d 768 (Ct. App. 1980). Brosamle then moved for summary judgment
When more than three years passed with no activity in the case, the trial court, on April 3, 1987, notified counsel that it was, on its own motion, scheduling the case for dismissal “for unreasonable neglect to proceed with the cause pursuant to
At the hearing, the court heard arguments of counsel and took the matter under advisement.1 On June 15, 1987, the court issued a memorandum decision concluding that the case was “stale” and should be dismissed pursuant to
I. IS DISMISSAL BARRED BY SECS. 808.08(1) AND (2) AND 808.09, STATS?
Prahl argues that after the supreme court denied the petition for review on March 5, 1984, he was not required to take any action to move the case toward trial because
Upon an appeal from a judgment or order an appellate court may reverse, affirm or modify the judgment or order as to any or all of the parties; may order a new trial; and, if the appeal is from a part of a judgment or order, may reverse, affirm or modify as to the part appealed from. In all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision.
In our November 23, 1983, decision, we reversed the trial court‘s order for summary judgment, holding that because the defendants’ affidavits did not establish a prima facie case for dismissal, the matter was inappropriate for pretrial summary disposition. As a result, our mandate read: “Judgment reversed. Matter remanded for trial.” After the supreme court denied the petition for review without comment, the record was remitted to the trial court pursuant to an order stating “the judgment... is reversed. Matter remanded for trial.”
Neither our mandate nor the remittitur “order[ed] a new trial” within the meaning of
That is what happened here. The summary judgment motion failed the third step in the analysis—the moving party‘s affidavits failed to establish a prima facie defense. As a result, the normal trial process could not be short-circuited by summary disposition and we remanded the case to the trial court with a mandate consistent with the rules governing summary judgments. That mandate did not order or direct that a trial date be set or that any particular action be taken by the trial court. To say that a remand “for trial” after reversal of a summary judgment unequivo
Finally, we do not believe that
II. ABUSE OF DISCRETION
A motion to dismiss for want of prosecution is addressed to the sound discretion of the trial court, and we will affirm the court‘s action unless “it is clearly shown that there was an abuse of discretion.” Zeis v. Fruehauf Corp., 56 Wis. 2d 486, 489, 202 N.W.2d 225, 226 (1972). One seeking to set aside such a dismissal must show a “‘clear and justifiable excuse’ for the delay.” Trispel v. Haefer, 89 Wis. 2d 725, 733, 279 N.W.2d 242, 245 (1979), quoting Taylor v. State Highway Comm., 45 Wis. 2d 490, 494, 173 N.W.2d 707, 711 (1970). While this has been recognized as a “strict standard,” it is said to be appropriate in light of the “‘duty’ of trial courts... to ‘refuse their aid to those who negligently or abusively fail to prosecute the actions which they commence.‘” Trispel at 733, 279 N.W.2d at 245, quoting Smith v. Carter, 141 Wis. 181, 184, 122 N.W. 1035, 1036 (1910). Finally, we note that because dismissal is a harsh sanction, the remedy is appropriate “only in cases of egregious conduct by a claimant.” Trispel at 732, 279 N.W.2d at 245, quoting Judicial Council Committee‘s Notes to
We will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court‘s decision. Howard v. Duersten, 81 Wis. 2d 301, 305, 260 N.W.2d 274, 276 (1977). The exercise of discretion is not the equivalent of unfettered decisionmaking, but to be sustained “must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16, 20 (1981). Generally, however, we will look for reasons to sustain a discretionary determination. In Matter of Adoption of R.P.R., 98 Wis. 2d 613, 619, 297 N.W.2d 833, 836 (1980).
As indicated, Prahl did not file any affidavits in the trial court, nor has he provided us with a transcript of the proceedings at the hearing on the motions to dismiss. On the evidentiary record before us, then, it is undisputed that Prahl made no effort to move the case to trial between March 5, 1984, when the record was remitted to the trial court, and April 3,
The trial court‘s memorandum decision granting the motion to dismiss noted that, despite having “ample notice and opportunity... to effectuate further proceedings in this matter,” Prahl had failed to meet his obligation to prosecute the action. The court referred to a lapse of more than three years during which Prahl had failed to take “any affirmative steps toward the continuation of [the] action,” and concluded that the case was “stale” and thus subject to dismissal under
We are also satisfied that the court arrived at a reasonable result. First, Prahl‘s explanation for his
This court has held that a trial court has the power to compel a plaintiff to proceed with trial or take a dismissal on the merits. The obligation to bring his [or her] case to trial within a reasonable time lies with the plaintiff. It is the legislative, judicial and public policy of long-standing that actions should not be permitted to slumber indefinitely and it is within the inherent power of a court to fashion sanctions and penalties best calculated to aid the court in its control of the judicial business before it. Id. at 500, 227 N.W.2d at 102. [Citations omitted.]
A similar result obtained in Lawrence v. MacIntyre, 48 Wis. 2d 550, 180 N.W.2d 538 (1970), where the court upheld the dismissal of a case which had lain
Courts are glutted with stale lawsuits, and the responsibility of an attorney to his 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 his [or her] case is called for trial or his [or her] lack of vigor in moving his [or her] case to the trial stage. We conclude that it is within the inherent power of the court to dismiss cases... at any time it appears to the judge, in the exercise of his [or her] discretion, there has been undue delay or inexcusable neglect in advancing the case.
A judicial policy of sua sponte dismissing neglected and delayed cases is necessary for the viability of the judicial system. The responsibility of advancing a case on the calendar and preparing it for trial is upon the plaintiff‘s lawyer. It is not the responsibility of the judge. The judge‘s responsibility is to properly try cases that are ready for trial. He [or she] has the corollary and related responsibility of dismissing stale cases which clog judicial calendars.
We are satisfied that the dismissal in the present case was in the exercise of proper judicial discretion. It is the policy of this court to encourage the discretionary dismissal of stale lawsuits. Id. at 556, 180 N.W.2d at 541.
We agree, for delay is one of the basic impediments to the fair administration of justice. A plaintiff who has invoked the judicial process to advance a claim, especially in a trial court system stretched to its limits by those seeking its assistance, cannot sit back
By the Court.—Order affirmed.
SUNDBY, J. (dissenting). Dismissal as a sanction has been appropriately termed “Draconian.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The Judicial Council Committee‘s Note, 67 Wis. 2d 691 (1974), to
The appellant‘s counsel represents that he was waiting for the trial court to give the parties notice of a scheduling conference. Counsel points out that after the first remand from our court, the trial court scheduled a pretrial conference, without the request of either party. Counsel assumed that on our second remand the trial court would follow its past practice. Counsel may also have been lulled by our mandate which reversed and remanded this case for trial. I do not believe that counsel had the right to expect that the trial court was going to take the laboring ore in prosecuting his clients’ case. See Marshall-Wis. v. Juneau Square, 139 Wis. 2d 112, 137, 406 N.W.2d 764, 774 (1987) (duty to move forward with prosecution of the action remains with the party who began the lawsuit). But I do not believe that his innocent mistake is “egregious” conduct which justifies dismissing his clients’ action.