Hefty v. Strickhouser
| Decision Date | 15 July 2008 |
| Docket Number | No. 2006AP1956.,No. 2006AP1094.,2006AP1094.,2006AP1956. |
| Citation | 752 N.W.2d 820,2008 WI 96 |
| Parties | Jeannie HEFTY d/b/a Heft-Kat Farm, Plaintiff-Appellant, v. Daniel R. STRICKHOUSER, Defendant-Respondent-Petitioner, ABC Insurance Company and ADM Alliance Nutrition Inc., Defendants. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by Paul E. Benson, Joseph Louis Olson, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Paul E. Benson and Joseph Louis Olson.
For the plaintiff-appellant there was a brief by Ward Richter, Sheila M. Sullivan, and Bell, Gierhart & Moore, S.C., Madison, and oral argument by Sheila M. Sullivan.
This is a review of an unpublished opinion and order of the court of appeals,1 which summarily reversed the Walworth County Circuit Court, Michael S. Gibbs, Judge.
¶ 2 The case requires us to review two discretionary decisions of the circuit court. Both decisions involve the circuit court's scheduling order, which incorporated by attachment a filing deadline for a summary judgment response that departed from the deadline in Wis. Stat. § 802.08(2).2 Judge Gibbs issued a scheduling order that had a then-existing Walworth County local circuit court rule appended to it. The rule required that a response to a summary judgment motion be filed and served within 20 days of service of the motion. Defendants ADM Alliance Nutrition, Inc. (Alliance) and Daniel Strickhouser3 filed a motion for summary judgment in accord with the court's scheduling order, but plaintiff Jeannie Hefty (Hefty) filed and served her response to the motion after the deadline. As a result, the court struck her response, dismissed her complaint with prejudice, and granted summary judgment to Strickhouser as a sanction for noncompliance. Hefty appealed.
¶ 3 The court of appeals reversed, concluding that the circuit court did not properly exercise its discretion when it failed to demonstrate on the record why deviation from the deadline of Wis. Stat. § 802.08(2) was necessary and appropriate, as required by the court of appeals' recent decision in Hunter v. AES Consultants, Ltd., 2007 WI App 42, ¶ 15, 300 Wis.2d 213, 730 N.W.2d 184 ().
¶ 4 We are asked to determine whether the circuit court properly exercised its discretion when it: (1) issued a scheduling order with deadlines different from Wis. Stat. § 802.08(2) without expressly indicating its reasoning on the record; and (2) sanctioned Hefty for failing to comply with the scheduling order by striking her response, which ultimately resulted in the dismissal of her suit with prejudice and summary judgment to Strickhouser.
¶ 5 We affirm the decision of the court of appeals, but on different grounds. The circuit court was not required to demonstrate on the record why its scheduling order deviated from § 802.08(2) to properly exercise its scheduling discretion under Wis. Stat. § 802.10. However, the circuit court erroneously exercised its discretion by entering a scheduling order that incorporated a void local rule and by striking Hefty's response as a sanction for untimely filing, which ultimately resulted in dismissal of her complaint with prejudice and summary judgment to Strickhouser. Accordingly, we affirm and remand.
¶ 6 The facts giving rise to the underlying civil suit have little to do with the issues before us. Nonetheless, they provide context and reveal the stakes involved in this procedural dispute.
¶ 7 Hefty owns a dairy farm in Elkhorn. In 2000 she entered into a contract with defendant Alliance through its disclosed agent, Daniel Strickhouser, who was to provide services to Hefty as a dairy cow nutritionist. Hefty engaged Mr. Strickhouser in this capacity for approximately two years. His advice regarding the management and control of feed and silage initially resulted in a large increase in milk production for Hefty's herd. In November 2002, however, milk production fell, allegedly due to Mr. Strickhouser's rationing of food and other nutrients. Hefty was forced to stop milking some of her herd to allow it to regain the strength and health necessary to maintain consistent milk production. Because of this decreased milking, Hefty allegedly suffered financial losses.
¶ 8 On February 3, 2004, Hefty sued Mr. Strickhouser and Archer-Daniels-Midland Company (ADM), Alliance's parent company, asserting a cause of action for negligence in providing dairy nutritionist services. On July 14, 2005, Hefty amended the complaint to assert causes of action for negligence, negligent misrepresentation, strict responsibility misrepresentation, intentional deceit misrepresentation, and breach of contract against Daniel Strickhouser, ADM, and Alliance. The circuit court dismissed all causes of action against ADM and dismissed Hefty's breach of contract claim against Mr. Strickhouser. Alliance remained a defendant to all five causes of action in the amended complaint.
¶ 9 On July 19, 2005, Walworth County Circuit Judge James L. Carlson sent counsel for the parties an order for scheduling information under Wis. Stat. § 802.10(3).4 The order included a scheduling questionnaire that was to be completed by the parties and returned to the clerk of courts, who would then send copies to all the parties. The order stated that "answers [to the questionnaire] will be referred to by the court in the setting of the time and date requirements mentioned in Wis. [Stat. § ]802.10(3)(a)." The questionnaire included the question: .
¶ 10 Counsel for Strickhouser indicated on the completed form that he intended to file a motion for summary judgment by circling "Yes" and specifying "[m]otion for summary judgment" in the blank space.
¶ 11 On August 3, 2005, Judge Gibbs entered a scheduling order, which was forwarded to counsel for the parties. The order5 included several deadlines related to the case, including one for filing a motion for summary judgment. The order indicated that a "[m]otion for judgment on pleadings/summary judgment must be filed by 02/01/2006." Below this language, the following appears: "(SEE ATTACHED SHEET FOR MOTION PROC[E]DURE)". The sheet attached to the scheduling order was part of then-existing Walworth County local circuit court rules. The attached rule was entitled "Standard Summary Judgment Procedure." The fourth of seven points in the rule read:
4. Upon service of the motion for summary judgment, within 20 days, any party opposing a pending motion shall serve and file:
a. A response to the moving party's Proposed Undisputed Facts[,] and
b. A response to the moving party's Proposed Conclusions of Law, and
c. A brief in opposition to the motion for summary judgment, and
d. Any supporting papers, pursuant to sec. 802.08(3), Wis. Stats. that the party chooses to submit.
¶ 12 The scheduling order stated that "[f]ailure to abide by this scheduling order may result in sanctions being imposed— See [Wis. Stat. §§ ]802.10(3)(d); 805.03; 802.10(7) and [Wis. Stat. ch.] 785."
¶ 13 The record reflects that the parties exchanged barbs early in this litigation. In a filing opposing Hefty's motion for leave to amend her first complaint, Strickhouser alleged that Hefty failed to provide the court or the defendants with a copy of the amended complaint. In August 2005 Hefty filed a motion for sanctions against Strickhouser for failure to comply with discovery requests under Wis. Stat. § 804.12. In September 2005 Strickhouser filed a response opposing this motion and alleging that Hefty was similarly delinquent in meeting discovery deadlines. As noted above, Strickhouser was successful in moving the court to dismiss portions of Hefty's amended complaint.
¶ 14 On February 1, 2006, Strickhouser filed a motion for summary judgment, which was served on Hefty via regular mail on February 6, 2006. The notice of motion provided to Hefty indicated that the motion would be heard by Judge Gibbs on March 13, 2006. Pursuant to the rule attached to Judge Gibbs' August 3, 2005, scheduling order, Hefty's response to the defendants' motion for summary judgment was due to be filed and served 20 days after service, namely, by March 1, 2006.6 Hefty filed her response to Strickhouser's motion for summary judgment on March 6, 2006. She served it on Strickhouser via facsimile at 5:58 p.m. that day.
¶ 15 On March 9 Strickhouser filed a motion to strike Hefty's untimely summary judgment response papers.
¶ 16 On March 13 Judge Gibbs held a hearing regarding Strickhouser's motions to strike Hefty's response papers and for summary judgment. At the hearing, counsel for Hefty indicated that he "simply followed [Wis. Stat. § 802.08(2)]" when he determined that the date he filed and served the response was timely. Judge Gibbs then commented that the "scheduling order dated August 3, 2005, has attached to it and very specifically outlines standard summary judgment procedures" including that a "response to the motion for summary judgment must be filed within twenty days." Judge Gibbs also stated:
We don't write [scheduling orders] for fun. We don't write these for our health. We write these to be followed. There's a slight trend that I've noticed lately. People don't follow scheduling orders and basically their arguments [are], well, nobody got hurt. Well, that's not the reason we do it. We do it for orderly administration of justice and this is clearly beyond the time of the—beyond the twenty days. It's thirty-eight days, roughly.[7] Well, with February in there, it's not quite so tight, but,...
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