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805.03 Failure to prosecute or comply with procedure statutes.

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805.03805.03Failure to prosecute or comply with procedure statutes.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). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.805.03 - ANNOT.History: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975). 805.03 - ANNOT.In order to demonstrate that a dismissal order based on failure to prosecute was an abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979). 805.03 - ANNOT.A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the "failure to prosecute" standard. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985). 805.03 - ANNOT.Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 405 N.W.2d 661 (Ct. App. 1987). 805.03 - ANNOT.Dismissal under this section is presumptively with prejudice. When the plaintiff failed to show "good cause" for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin v. Juneau Square, 139 Wis. 2d 112, 406 N.W.2d 764 (1987). 805.03 - ANNOT.The court of appeals' remand "for trial" after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle, 142 Wis. 2d 658, 420 N.W.2d 372 (Ct. App. 1987). 805.03 - ANNOT.When conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp. 162 Wis. 2d 261, 470 N.W.2d 859 (1991). 805.03 - ANNOT.Ordering a criminal defendant to pay the state's trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993). 805.03 - ANNOT.In cases that do not fit squarely within this statute, a trial court has certain inherent powers to sanction the parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co. 182 Wis. 2d 148, 513 N.W.2d 16 (Ct. App. 1994). 805.03 - ANNOT.A party's failure to appear at a scheduled hearing, after writing the court indicating that unless it heard otherwise from the court it would consider itself excused, was insufficient to excuse the party's appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co. 191 Wis. 2d 1, 528 N.W.2d 457 (Ct. App. 1995). 805.03 - ANNOT.The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 532, 535 N.W.2d 65 (Ct. App. 1995). 805.03 - ANNOT.Default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to the trial court's discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827. 805.03 - ANNOT.Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281. 805.03 - ANNOT.Counsel's egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1998), 97-3404. 805.03 - ANNOT.If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party's action or inaction provides adequate cause for sanctions against that party. But that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S. 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739. 805.03 - ANNOT.The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. WEPCO, 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944. 805.03 - ANNOT.Circuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, a trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before it. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915. 805.03 - ANNOT.The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and when a court does so, the limitations of fee awards under [former] s. 814.025 do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915. 805.03 - ANNOT.Because a guardian ad litem's allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court's authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minor's settlement proceeds was more firmly grounded in s. 785.03 (1) (a). Reed v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2211. 805.03 - ANNOT.It is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, 05-0189. 805.03 - ANNOT.There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of his medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186, 305 Wis. 2d 240, 738 N.W.2d 588, 06-0980. 805.03 - ANNOT.In light of the facts and the need of circuit courts to control their calendars to ensure the orderly administration of justice, the circuit court did not erroneously exercise its discretion when it determined that a civil defendant's violation of a scheduling order was "egregious" and grounds for entering default judgment when the defendant failed to attend the scheduling conference, file his witness list, file an itemization of damages in connection with his counterclaim, file a pretrial report, and attend the pretrial conference. East Winds Properties, LLC v. Jahnke, 2009 WI App 125, 320 Wis. 2d 797, 772 N.W.2d 738, 08-2453. 805.03 - ANNOT.When the trial court imposed sanctions because it found that a party had brought what was essentially a motion for reconsideration without any new evidence or evidence of manifest error of law by the trial court, that was a basis for the court to deny the motion for reconsideration. It was not a basis for an award of attorney fees without a finding of bad faith or egregious conduct. No statute authorizes sanctions for bringing a motion for reconsideration, and the trial court made no finding of misconduct nor does the record reveal misconduct. Lee v. Geico Indemnity Company, 2009 WI App 168, ___ Wis. 2d ___, 776 N.W.2d 622, 08-3125.
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  • 805.03

    805.03 Failure to prosecute or comply with procedure statutes. 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). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.

    805.03 - ANNOT.

    History: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975).

    805.03 - ANNOT.

    In order to demonstrate that a dismissal order based on failure to prosecute was an abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979).

    805.03 - ANNOT.

    A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the "failure to prosecute" standard. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).

    805.03 - ANNOT.

    Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 405 N.W.2d 661 (Ct. App. 1987).

    805.03 - ANNOT.

    Dismissal under this section is presumptively with prejudice. When the plaintiff failed to show "good cause" for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin v. Juneau Square, 139 Wis. 2d 112, 406 N.W.2d 764 (1987).

    805.03 - ANNOT.

    The court of appeals' remand "for trial" after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle, 142 Wis. 2d 658, 420 N.W.2d 372 (Ct. App. 1987).

    805.03 - ANNOT.

    When conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp. 162 Wis. 2d 261, 470 N.W.2d 859 (1991).

    805.03 - ANNOT.

    Ordering a criminal defendant to pay the state's trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993).

    805.03 - ANNOT.

    In cases that do not fit squarely within this statute, a trial court has certain inherent powers to sanction the parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co. 182 Wis. 2d 148, 513 N.W.2d 16 (Ct. App. 1994).

    805.03 - ANNOT.

    A party's failure to appear at a scheduled hearing, after writing the court indicating that unless it heard otherwise from the court it would consider itself excused, was insufficient to excuse the party's appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co. 191 Wis. 2d 1, 528 N.W.2d 457 (Ct. App. 1995).

    805.03 - ANNOT.

    The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 532, 535 N.W.2d 65 (Ct. App. 1995).

    805.03 - ANNOT.

    Default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to the trial court's discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827.

    805.03 - ANNOT.

    Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281.

    805.03 - ANNOT.

    Counsel's egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1998), 97-3404.

    805.03 - ANNOT.

    If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party's action or inaction provides adequate cause for sanctions against that party. But that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S. 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.

    805.03 - ANNOT.

    The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. WEPCO, 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944.

    805.03 - ANNOT.

    Circuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, a trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before it. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

    805.03 - ANNOT.

    The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and when a court does so, the limitations of fee awards under [former] s. 814.025 do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

    805.03 - ANNOT.

    Because a guardian ad litem's allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court's authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minor's settlement proceeds was more firmly grounded in s. 785.03 (1) (a). Reed v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2211.

    805.03 - ANNOT.

    It is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, 05-0189.

    805.03 - ANNOT.

    There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of his medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186, 305 Wis. 2d 240, 738 N.W.2d 588, 06-0980.

    805.03 - ANNOT.

    In light of the facts and the need of circuit courts to control their calendars to ensure the orderly administration of justice, the circuit court did not erroneously exercise its discretion when it determined that a civil defendant's violation of a scheduling order was "egregious" and grounds for entering default judgment when the defendant failed to attend the scheduling conference, file his witness list, file an itemization of damages in connection with his counterclaim, file a pretrial report, and attend the pretrial conference. East Winds Properties, LLC v. Jahnke, 2009 WI App 125, 320 Wis. 2d 797, 772 N.W.2d 738, 08-2453.

    805.03 - ANNOT.

    When the trial court imposed sanctions because it found that a party had brought what was essentially a motion for reconsideration without any new evidence or evidence of manifest error of law by the trial court, that was a basis for the court to deny the motion for reconsideration. It was not a basis for an award of attorney fees without a finding of bad faith or egregious conduct. No statute authorizes sanctions for bringing a motion for reconsideration, and the trial court made no finding of misconduct nor does the record reveal misconduct. Lee v. Geico Indemnity Company, 2009 WI App 168, ___ Wis. 2d ___, 776 N.W.2d 622, 08-3125.

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