Rupert v. Home Mutual Insurance

Plaintiff-Appellant, RUPERT, Scott W. v. HOME MUTUAL INSURANCE COMPANY and Defendants-Respondents. Pire,

Catherine A. Appeals Court 11, 1986. September No. 85-2371. on Submitted briefs Decided March 1987. (Also 661.) reported in 405 N.W.2d joint plaintiff-appellant, briefs there were For the Eagle by Ralph Koopman River, and Thomas N W. Minocqua. Akey of defendants-respondents, there was a brief

For the Tinkham, Smith, Bliss, Patterson, E. John Bliss Wausau. & Hessert of Richards Myse, LaRocque P.J., Cane, JJ. and Before appeals Rupert CANE, an order dis- P.J. Scott against missing Mutual Insurance Home his action Company trial Pire. The court dis- and Catherine complaint it that Ru- because concluded missed prosecute pert the action. had failed argues Rupert violated his due that dismissal warning rights process he of what had no because failure to an action. conduct constituted agree dismissal While we that process diligently prosecute due under the violates case, court of this we determine that the trial has facts respond discretionary for to dismiss failure timely interrogatories that in a fashion. We conclude propriety discretion, of such of the exercise findings. depends however, factual Accord- on further proceedings. ingly, and remand for further we reverse Rupert against July 30, 1984, filed suit on Pire claiming damages caused a collision between the motorcycle riding driving. he was and the car she was Rupert Mutual, insurer, also named Home Pire’s as a August defendant. 9, Home Mutual filed an answer on Rupert request production 1984. filed a for of docu- August day, 13, on ments 1984. The next Home Rupert’s deposition. Mutual noticed Home Mutual complied Rupert’s request production with August 20, on documents day, 1984. On or about the same interrogato- Home Mutual served a set of written Rupert. ries on

The trial court’s case file reflected no further activity. Consequently, year August later, about a on 22, 1985, the trial court filed a "Notice of Intent informing Rupert Dismiss,” that unless he showed why cause toas his action should not be dismissed for diligently prosecute, it would be dismissed. hearing trial a scheduled show cause 4, 1985, for November 1985. On November more interrogatories than fourteen months after the had Rupert responses served, been filed set a to Home interrogatories. Mutual’s hearing

The November 11 revealed that parties’ attorneys corresponded had times several Rupert correspondence after filed suit. The reflected responses Home Mutual’s efforts to obtain to interrogatories. nearly year, Over the course of attorney postponed Rupert’s deposi- Home Mutual’s pending response interrogatories, tion his to the made requests responses, agreed several for to one thirty-day extension, and threatened to move the compel responses Rupert’s court to or dismiss action. Despite threat, Home Mutual’s it took no action to problem. Although discovery involve court in the rough Rupert’s attorney to at one time have claimed nothing happened responses, in the more the of draft independently filed its notice court the trial suit until of intent to dismiss. correspondence of the court heard evidence bearing possible testimony on to hear

but declined promptly Rupert’s to answer the failure for excuses interrogatories. stated, "I feel the The trial court dismissing justify in to the court is sufficient record making testimony.” any In its further this without hearing, ruling the court declared: at the of dismissal I think justified. of the action is think a I dismissal Statute, .,. this possible to under the it’s dismiss court, 805.03, power for of or inherent prosecute.1 to failure

Likewise, order of dismissal the court’s written plaintiffs Complaint should be dis- that "the stated it not its because had been missed on merits transcript pursued...Nowhere in the in its order or hearing explicitly rely on of the formal did court 804.12(4), discretionary Stats., to under its sec. interrogato- respond for to written dismiss failure required thirty days. ries within the Stats., 805.03, provides part: in 1 Section comply procedure prosecute with statutes. Failure to or any any for failure of For failure claimant to or procedure comply governing in actions or with the statutes civil court, obey any in which the action is order regard just, pending may are such in to the failure as make orders including authorized under s. but not limited orders 804.12(2)(a). operates Any under as an dismissal this section adjudication in order for the merits unless the court on specifies good cause shown recited dismissal otherwise order .... Rupert argues that the trial court erred dismissing his 805.03, Stats., action under sec. or authority, under the trial court’s inherent for failure prosecute. Rupert to ing contends that without fair warn- prosecute,

of what conduct constitutes failure to right process. the dismissal violated his to due We agree premised solely that a dismissal on failure to prosecute, under the case, facts of this violates due process. recognize

We the trial court’s inherent discretion- power ary economy to control its docket with of time Casey King Corp., and effort. Latham v. 311, 314, & 23 Wis. 2d (1964). recognize 225, 127 N.W.2d 226 We duty, further power, the trial court’s under its inherent discourage protraction litigation of and to negligently abusively refuse its aid to those who or fail prosecute they 315, the actions commence. Id. at process guide However, N.W.2d at 227. due must discretionary the trial court’s to dismiss. The question power, then is not the existence of the court’s propriety dismissing provides but the where the law prosecute.” no boundaries for "failure to party Where a lacks actual notice of the conduct required diligently action, an fundamen- process require tal fairness and due that notice be given informing implications of the of his or Neylan Vorwald, 85, 90, her conduct. v. 124 Wis. 2d (1985). Neylan, 368 N.W.2d 651-52 In the trial apparently court dismissed without notice an inactive three-year-old hearing action. At a on the motion to parties presented dismissal, set aside the evidence showing although that the court’s records showed no activity, parties pursued through had settlement negotiations. telephonic Nonetheless, be- and written activity, file the trial court of the lack of cause not been that the action had concluded pursued. 88-89, 651. 368 N.W.2d at

Id. at Neylan upheld supreme the court court holding appeals’ court, trial that sec. of the reversal litigants provide with constructive 805.03 failed to knowledge time limits” a court will of the "outside prosecute. Neylan, 124 consider to constitute supreme 92-93, at 653. The at 368 N.W.2d Wis. 2d predecessor sec. 805.03 had noted that bringing provided five-year trial. limit for case to a (1963). 269.25, But because sec. 805.03 Section Stats. pursuing provide a definite time frame for an failed to judge that, action, the warned "what a feels court depend prosecute a case will on the a failure to be thinking, judge’s calendar, and the court’s individual Neylan, disposition.” 124 Wis. rate of case intake and justifies 93, instant case 2d at 368 N.W.2d at 653. The warning. Neylan Here the court unilateral- court’s year’s inactivity. ly one defined failure to as Rupert statutory basis, law, either in or case had no anticipate definition of "failure to the trial court’s prosecute.” process supreme court has held that due

Our warning requires adequate by at least a fair and penalties disobeying of to be invoked for rule or notice 316, Latham, 127 a court order. 23 Wis. 2d at N.W.2d County Latham, Circuit Court at 228. In a Milwaukee sponte party’s because a dismissed an action sua pretrial attorney Id. had failed to attend a conference. time, 313-14, at 127 at 226. At the the statute N.W.2d pretrial hearings governing pretrial practice made (1963). permissive. 269.65, However, a Section Stats. County supplementing Milwaukee Circuit Court rule required attorney sec. 269.65 ry attendance at mandato- pretrial jury all conferences for civil actions. While appellant pretrial the Latham received notice of the warning any conference, the notice contained no penalties appear. in the event counsel did not Id. at 314, 127 N.W.2d at 226. Latham held that the court’s hearing imposition dismissal without notice or on the penalty process. violated due Id. at N.W.2d at 228. hearing

The Latham court’s determination that a process apply would have due satisfied does not to the parties Latham, facts before us. In knew of the pretrial resulting hearing court-ordered A conference. required would have the disobedient to excuse knowing obey contrast, a court order. In hearing required Rupert in this case to excuse his violation of an unknown standard of conduct. Such a hearing affording process. falls short of due

While sec. 805.03 fails to define outside limits prosecute,” governing of "failure to the statute calen- practice provides dar a basis for the trial court to 802.10(2), provides: Stats., create these limits. Section (1), excepted Unless under sub. all and actions special proceedings ready are deemed for trial one year complaint after the summons and are filed. days expiration Within 60 after the year, of one the shall by pretrial court order set dates for a [Emphasis conference and for trial. added.] By setting pretrial dates, conference and trial the diligent prosecution court defines of an action.2 After impracticable, party may 2 Ifthese dates are a show cause to passed, plaintiff a year may reasonably one has court set these dates within sixty assume that the will plaintiff, anticipating It is unreasonable that a days. dates, receiving pretrial conference and trial should Here, a notice of intent to dismiss. instead receive dates, setting required rather than and thus plaintiff with an outside limit of conduct providing action, expected pursuing for its the trial diligently court moved to dismiss the suit. one-year-old suggests deeming

The dissent that an action for trial one after the summons and "ready year 802.10(2) filed,” complaint implies are sec. that if plaintiff trial court has discretion to dismiss a it pursued cannot show that has the action think argument within that We this demands year. 802.10(2) language. too much of the Section statutory "deeming” is silent as to the effect of an action ready (2) place for trial. We read sub. on the merely duty dates, specified period, trial court to set within a pretrial "Deeming” conference and trial. an action gives legislative for trial voice to a ready simply presumption year that after one an action should have progressed point to the where the court can intelli- Here, gently duty required exercise to set the dates. dates, attempt required the record shows no to set the nor does the record show that Rupert would have been unprepared pretrial for a conference or trial. We agree governing cannot that a statute trial practice imputes calendar to the trial court the 802.10(2), amend the order. Section Stats. Once the court sets a date, 802.11, Stats., pretrial required conference sec. defines sanctions, potential including conduct as well as dismissal.

10 impose penalty only to the severe of dismissal one year after an action’s commencement. 802.10(2) any

Moreover, is as sec. silent to conse- quences ready if an action is not for trial within one 802.10(3)(d), year. governing contrast, In sec. sched- uling specifically conferences, makes violation of scheduling subject penalties orders under sec. significant 805.03, Stats. find We absence of a (2). provision in sub. similar statutory entirety. We must view a in section State, 6, 12, 734, 64 Omernik v. (1974). Wis. 2d 218 738 N.W.2d comprehensive specifically Where a statute grants power respect in one section and is silent with power legislative another, to that we must assume a intent to exclude the exercise of under the Larson, latter section. See State ex rel. Harris v. 64 (1974). 521, 527, Wis. 2d 339 N.W.2d (2) legislature’s silence in sub. reveals an intent 802.10(2). penalties exclude sec. 805.03 from sec. 802.10(2), "deeming” ready Section an action for trial filing, year satisfy one from does not the fair and adequate warning required process. by due suggesting litigant may idly

We are not that a sit awaiting year pretrial for the first of a lawsuit Rather, conferences and trial dates. we hold that imposing dismissal, before a sanction as drastic as required. empow- advanced notice is The federal rule ering trial courts to dismiss for failure to require explore has been construed to the court to less prior drastic alternatives 24 Am. dismissal. See Jur. (1983).3 2d sec. 49 Dismissal Several alternatives are prose 3We view federal decisions on dismissal for failure persuasive authority cute as because sec. 805.03 is based on Fed. R. accomplish goal available to the trial court to diligent prosecution the of example, of claims. For sec. 802.10(3)permits scheduling the court to call a confer- ninety days ence within Further, of an action’s commencement. preliminary conference, even absent a courts litigant are able to advise each at the time a lawsuit is any penalties. filed of local rules and although However, neither the trial court nor sec. provided Rupert 805.03 with sufficient constructive or required actual notice of the conduct to avoid dismis- prosecute, Rupert sal for failure to it remains that respond took than more fourteen months to to a set of interrogatories. holding written Our that a dismissal year filing for failure to within one of requires advance actual or constructive notice of applicable imply standards does not that a court is powerless impose penalties party’s delay to for a in responding discovery requests. to A trial court has the discretionary to dismiss for failure to answer interrogatories timely 804.12(4), in a fashion. Section requires Stats. Because such an exercise of discretion finding egregious conduct, however, we remand findings Rupert’s promptly respond on interrogatories. the 804.08(1)(b), provides part: Stats.,

Section in party upon whom interrogatories the have been served shall copy answers, serve a of the and objections if any, within 30 days after the service of interrogatories .... The may allow a longer shorter or party time. The submitting the interrogatories may move for an order under s. 41(b). Neylan, 95, 99, Civ. P. See 124 Wis. 2d at 368 N.W.2d at 656.

804.12(1) any objection other respect with to or interrogatory. failure to answer an 804.12(4), provides part: Stats., in Section objections ... If a fails ... to serve answers or 804.08, interrogatories under after submitted s. interrogatories, proper service ... the court pending may motion in which action is on regard failure as are make such orders others, may it action just, among any and take (2)(a)1, 2 3. authorized under sub. and under actions authorized include dismissal sec. 804.12(2)(a)3, Stats. provide

Because the constructive notice statutes interrogatories thirty failure to answer may within that days 804.12(4), under result in dismissal sec. we process require does advance conclude that due not penalties parties. However, the a dismissal notice of grounds represent proper on these must also a exer- case, the trial court did not cise of discretion. In this findings necessary to an exercise of discre- make tion. penalty only is a that should be

Dismissal drastic egregious party. imposed a in cases conduct of Trispel 725, 732, 242, 2d 279 N.W.2d Haefer, v. 89 Wis. (1979). supreme upheld Trispel, In our court a 245 pretrial obey after a failed to a dismissal Although discovery warned order. the order itself of possible Trispel sanction, as a held that sec. dismissal of the action a 805.03 also contained sufficient notice party’s comply may with take after a pretrial 736, 247. 279 at orders. Id. at N.W.2d

13 upheld Likewise, this court a dismissal for failure pretrial comply discovery Engle with a order in Community Apartments Partnership wood Limited v. Co., 34, 39-40, Alexander Grant & Wis. 2d (Ct. 1984). App. Englewood, 716, 718-19 N.W.2d In we hearing noted that the trial court held a on the explicit findings party’s dismissal and made that the "dilatory,” displayed "pattern conduct had been had approach.” abuse,” and had reflected a "cavalier hearing party’s After conduct, excuses for its unjustified. court found the conduct We noted that although finding the trial court had not made a implicit faith,” such, "bad as bad faith was in its findings. finding We held that a of bad faith was necessary invoking penalty of dismissal. Id. at 39 n. 349 N.W.2d at 719 n. 3.

Here, we cannot conclude that the trial court implicitly Rupert’s found, otherwise, or that conduct egregious. Apparently, had been because it mistaken- ly authority statutory believed its arose from or prosecute, inherent to dismiss for failure to testimony trial court declined to hear on circum- allegedly preventing Rupert promptly stances replying from interrogatories.

to the The term "discretion” contemplates reasoning process depends a that on reasonably facts in the record or derived from the yields logic record, and a conclusion based on and proper legal Shuput Lauer, standards. v. 109 Wis. 2d (1982). 164, 177-78, 321, 325 N.W.2d 328 In order to properly discretion, exercise its the trial court must explicit finding regarding Rupert’s make an conduct proper legal based on the record and standards.

14 Thus, whether trial court must consider justifiable Rupert "clear and excuse” can demonstrate Taylor delay. Highway Comm’n, 45 v. State for the (1970). 707, 494-95, 490, 173 711 2d N.W.2d Wis. dealing Moreover, note that cases with discretion- we ary standards to dismissals mention a number other weighing of a the blameworthiness be considered party’s include to what extent a conduct. These factors by prejudiced party another’s has been discovery requests, respond to what extent another to discovery delays, party acquiesced whether in the has compel discovery to or to has moved another prosecute, the case and whether dismiss for failure Neylan v. of a court order. See involves disobedience Vorwald, 537, 481, 491-92, 360 N.W.2d 121 Wis. 2d (Ct. 1984), App. 124 Wis. 2d aff’d, 541-42 (1985). N.W.2d the cause for reverse and remand

We therefore Rupert’s dilatory justified findings conduct of whether 804.12(4). discretionary under sec. dismissal By and cause remand- reversed the Court.—Order opin- proceedings with this further consistent ed for ion. por- (dissenting).

MYSE, from that I dissent J. holding opinion majority that the dismissal tion of Rupert’s failing prosecute due violative of was provides rights. process sanctions for 805.03 Section Among failing prosecute is the sanctions a claim. question in this case is of the action. dismissal ordering its discretion finding the court abused whether Rupert upon had that based dismissal during the sixteen claim his failed elapsed filing months that from the of the action to the date the court ordered the action dismissed. opinion majority

The does not discuss the court’s determining exercise of its discretion in whether appropriate dismissal was under the facts of this case. majority Rather, concludes that order Rupert’s process rights dismissal violated due because prose- he was not warned advance that to failure holding cute his claim could result in dismissal. This is specifically 805.03, made in the face of sec. which provides failing prosecute, for dismissal for and sec. proceedings 802.10, Stats., which states that all are ready year deemed for trial one after summons and complaint are filed. acknowledges majority that a dismissal for diligent prosecution recognized

lack of statutory is in both majority requires,

and case law. The how- diligence ever, that lack of be defined in advance process requirements. conform with due There is no objective measure as to what constitutes a basis for dismissing failing a claim for any objective more than there is an measure as to showing what is sufficient to avoid a sanction for the diligence. failure of Each must be determined on an individual case basis and cannot be reduced to me- applicable chanical formulas that are to all cases that published can be in advance. recognized

It is well that a trial court has inher- power failing prosecute. ent to dismiss a case for In majority, Neylan, the case cited 124 Wis. 2d at (quoting Latham, 368 N.W.2d at 653 23 Wis. 2d at 226), 314, 127 N.W.2d at the court noted: It is considered well established that a court has the inherent to resort to a dismissal of an of orderly action in the interest of administration general justice. judicial The control of the business it is to the court if it is to function. before essential power, inherent in its "Every court has exercisable discretion, sound consistent within the Constitu- statutes, disposition tion and to control of causes economy on its docket with of time and effort.” majority upon Neylan The Latham and in relies support holding. misplaced. of its Such reliance is requirement These cases deal with notice as a process of due given and mandate that an affected be opportunity why notice and an to show cause as the majority’s court should not dismiss a case. The conclu- consequences possible sion that notice must be of given in in advance is nowhere to be found the cases anywhere cited nor else in the laws of Wisconsin. appears majority’s Indeed, to hold the decision scheduling every that, order, in the absence of a litigant nothing year sixty is entitled to do for one and 802.10(2). days under sec. The court is then to schedule pretrial the conference at which time court must litigant’s his deal with a point pretrial claim. I designed out that conference is controversy,

to review the issues reach stipulations issues, so as to narrow the review the during legal questions trial, and that will be raised attempt parties. efforts conciliation between Such pretrial impossible if, conference is are at the time the nothing prepare litigants held, done have trial. charged duty

Trial courts have been with the expedite Trispel, 89 Wis. 2d at the trial of cases. See majority 733-34, 245-46. has 279 N.W.2d at impor- trial bench an wrested from the hands of the obligation supervise discharge tant tool in the of prompt disposition its calendars so toas ensure pending litigation. Rupert essentially

The record discloses that did nothing during to advance his claim a sixteen-month period. hearing why At the held the court as to Rupert dismissed, matter should not be no offered explanation prosecute. light for his failure to In facts, these the trial court cannot be said to have by ordering abused its discretion dismissal. reasons, For the above I conclude that a trial court has the to dismiss for failure to determining, a claim and that in so the. matter is left to the trial court’s sound discretion and judgment. Here, the trial court did not abuse its directing discretion dismissal.

Case Details

Case Name: Rupert v. Home Mutual Insurance

Court Name: Court of Appeals of Wisconsin

Date Published: Mar 3, 1987

Citation: 405 N.W.2d 661

Docket Number: 85-2371

Court Abbreviation: Wis. Ct. App.