Carlson Heating, Inc. v. Onchuck

• Decision Date: 08 September 1981
• Docket Number: No. 81-235,81-235
• Citation: 311 N.W.2d 673,104 Wis.2d 175
• Parties: CARLSON HEATING, INC., a domestic corporation, Plaintiff-Appellant, v. Dale ONCHUCK, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 673

311 N.W.2d 673

104 Wis.2d 175

CARLSON HEATING, INC., a domestic corporation, Plaintiff-Appellant, v. Dale ONCHUCK, Defendant-Respondent.

No. 81-235.

Court of Appeals of Wisconsin.

Submitted on Briefs July 14, 1981.

Opinion Released Sept. 8, 1981.

Opinion Filed Sept. 8, 1981.

Michael F. Roe and Melby & Schiek, S. C., Rhinelander, for plaintiff-appellant.

Douglas T. Fox and Onchuck & Fox, Phillips, for defendant-respondent.

Before FOLEY, P. J., and DEAN and CANE, JJ.

CANE, Judge.

Carlson Heating, Inc., appeals from a judgment dismissing its complaint seeking payment for labor and materials furnished to Dale Onchuck. The trial court dismissed the complaint after Carlson's counsel failed to comply with a pretrial order requiring him to furnish Dale Onchuck with a list of all lay and expert witnesses intended to be called at trial. Onchuck timely furnished his list of lay and expert witnesses to Carlson's counsel.

Carlson raises two issues on appeal:

I Does the trial court have the authority at the time of pretrial to order the parties to exchange the names of the lay witnesses they intend to call at trial?

II Did the trial court abuse its discretion by entering its order prohibiting Carlson from offering any testimony at the trial and dismissing the complaint upon its merits?

At a July 10, 1980, pretrial conference, the court ordered that the parties exchange, by October 15, 1980, a list of all lay and expert witnesses they intended to call at trial. The court's written order further provided:

"Failure to comply with the terms of this order shall be considered cause for imposing sanctions which may include dismissal, default judgment, contempt, money terms, orders limiting or barring the presentation of testimony or introduction of evidence at trial, or a combination thereof, or any such added and further sanctions as the Court may deem appropriate."

On November 17, 1980, Onchuck, not having received any list of witnesses, filed and served his motions for sanctions against Carlson for its failure to designate witnesses in compliance with the pretrial order. A hearing on this motion was scheduled for December 1, 1980. During the interim, Carlson's counsel again did not name his lay witnesses to be called at the trial.

At the December hearing, counsel for Carlson stated that he had not been aware of the order requiring him to disclose the identity of the lay witnesses since his partner had participated in the pretrial conference. In addition, he had not read the pretrial order until receiving the November 17, 1980, motions. Counsel stated that he had not intended to call any expert witnesses and had inadvertently failed to realize that the required disclosure included lay witnesses.

The trial court found that counsel's failure to comply with the pretrial order was not a justifiable excuse and granted Onchuck's motions barring Carlson from calling any witnesses or presenting any testimony to support the claims made in the complaint. Because Carlson could not prove its claim without witnesses, the court dismissed the complaint with prejudice.

I

On this appeal, we first determine whether the pretrial order requiring the parties to furnish a list of the lay witnesses they intended to call at trial is proper and lawful. The authority of trial courts to make such a rule has been discussed at legal seminars in Wisconsin, but has received little attention in the appellate courts. Consequently, the practice of trial courts to order the exchange of the names of lay witnesses varies widely throughout the courts in Wisconsin.

Carlson contends that the trial court had no authority to require the names of lay witnesses to be exchanged and, therefore, the order of dismissal should be set aside.

Section 802.11(1), Stats., ¹ provides in part:

In all contested civil actions ... the judge shall ... direct the attorneys for the parties to appear before the judge for a pretrial conference to determine whether an order should be entered on any or all of the following matters:

....

(d) Limitation of the number of expert witnesses and the exchange of the names of expert witnesses;

....

(m) Such other matters as may aid in the disposition of the action.

Carlson argues that since Rule 802.11(1)(d) expressly provides for the exchange of names of expert witnesses, the power of the trial court to order exchange of lay witnesses' names is specifically excluded. In support of this contention, Carlson cites Gottlieb v. City of Milwaukee, 90 Wis.2d 86, 279 N.W.2d 479 (Ct.App.1979). The decision supports the rule of legislative interpretation that a statute, which expresses one thing, is exclusive of another. That rule, however, does not apply here.

Rule 802.11(1)(m) provides that the judge may enter an order on such other matters as may aid in the disposition of the action. It was clearly not the intent of the supreme court to restrict the power of the trial judge to the items listed specifically. The Judicial Council Committee's Note (1974), reprinted in W.S.A. § 802.10, at 864 (West 1976), stated: "Sub. (2)(a) is more explicit than s. 269.65 in listing the matters which should be considered at the pretrial conference. The expanded list should not be considered exhaustive." The rule's specific reference to the exchange of names of expert witnesses does not restrict the power of the trial court from ordering the exchange of lay witnesses' names.

Although there are no Wisconsin cases deciding this issue, this particular rule is substantially the same as Fed.R.Civ.P. 16, which Wisconsin followed when adopting its rules of civil procedure. Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939 (5th Cir. 1964), is helpful to our decision of this issue. ²

Wirtz involved the construction of a local rule promulgated pursuant to Fed.R.Civ.P. 16. Rule 16 sets forth a list of items to be considered similar to our Rule 802.11(1)(a) through (m). Rule 16 provides for the limitation of the number of expert witnesses, as does our rule, but is silent on the court's authority to order disclosure of names of lay witnesses. The last item under Rule 16 is identical in language to Wisconsin's Rule 802.11(1)(m).

In Wirtz, the trial court had dismissed a complaint when the Secretary of Labor failed to furnish a list of all witnesses pursuant to a pretrial order. The Fifth Circuit Court of Appeals concluded that the trial court had the inherent power to prescribe a rule requiring the exchange of names of all witnesses for the conduct of the court's business.

In this case, we determine that at the time of pretrial, the trial court has both the inherent power and the authority under Wisconsin Supreme Court Rule 802.11(1)(m) to order the parties to exchange names of lay witnesses they intend to call at trial. Wisconsin has abandoned the concept of "trial by ambush" where neither side of the lawsuit knows until the actual day of trial what the other side will reveal in the way of witnesses or facts. The former system may have been one of great sport and mystery, but is hardly defensible as a means to determine the truth. Adequate preparation for trial by counsel with full knowledge of the facts before them will result not only in a more orderly trial, but in many cases will result in counsel...