Monson v. Madison Family Institute

• Court: Wisconsin Supreme Court
• Writing for the Court: CECI; SHIRLEY S. ABRAHAMSON
• Citation: Monson v. Madison Family Institute, 470 N.W.2d 853, 162 Wis.2d 212 (Wis. 1991)
• Decision Date: 05 June 1991
• Docket Number: No. 89-0314,89-0314
• Parties: Larry W. MONSON, Stephanie L. Monson, and Mary E. Monson, Plaintiffs-Appellants-Petitioners, v. MADISON FAMILY INSTITUTE, and St. Paul Fire and Marine Insurance Company, Frank Coogan, Molly Allison, Joyce Nourse, and Dr. Stanley Miezio, Defendants-Respondents.

Page 853

470 N.W.2d 853

162 Wis.2d 212

Larry W. MONSON, Stephanie L. Monson, and Mary E. Monson Plaintiffs-Appellants-Petitioners, v. MADISON FAMILY INSTITUTE, and St. Paul Fire and Marine Insurance Company, Frank Coogan, Molly Allison Joyce Nourse, and Dr. Stanley Miezio Defendants-Respondents.

No. 89-0314.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 27, 1991.

Decided June 5, 1991.

Jeffrey J. Grady and Grady Law Office, Madison, for plaintiffs-appellants-petitioners.

John A. Nelson and von Briesen & Purtell, S.C., Milwaukee, for defendants-respondents Dr. Stanley Miezio.

John W. Markson, David J. Pliner and Bell, Metzner, Gierhart & Moore, S.C., Madison, for defendants-respondents Madison Family Institute, St. Paul Fire & Marine Ins. Co., Frank Coogan, Molly Allison and Joyce Nourse.

CECI, Justice.

This case is before the court on petition for review of an unpublished decision of the court of appeals, dated March 15, 1990, which affirmed in part and vacated in part the judgment of the circuit court for Dane County, Michael N. Nowakowski, Circuit Judge. The circuit court granted the defendants' motion for summary judgment and the defendants' motion to dismiss for failure to prosecute pursuant to secs. 805.03 and 804.12(2)(a)3, Stats. ¹ The circuit court granted the defendants' motion for summary judgment because the plaintiffs only relied on the pleadings in response to the motion for summary judgment. Accordingly, there were no material issues of fact before the circuit court. The circuit court granted the motion to dismiss for failure to prosecute because of the plaintiffs' repeated failure to comply with court-ordered deadlines and their failure to move the case toward trial. ²

The court of appeals held that the circuit court properly granted the motion to dismiss for failure to prosecute. In so holding, the court of appeals reasoned that the dismissal was not an abuse of the circuit court's discretion because the plaintiffs' omissions were egregious and prejudiced the defendants. The court of appeals vacated the circuit court's grant of summary judgment because the dismissal for failure to prosecute completely disposed of the matter. The defendants did not seek review in this court of that part of the court of appeals decision which vacated the circuit court's grant of summary judgment.

One issue is presented by this review: whether the circuit court abused its discretion by dismissing the plaintiffs' claims for failure to prosecute. We hold that the circuit court did not abuse its discretion by dismissing the plaintiffs' claims because the record contains a reasonable basis for the circuit court's determination that the plaintiffs' conduct was egregious and that there was no clear and justifiable excuse for the plaintiffs' conduct. ³

The material facts relevant to this review are not in dispute. On March 25, 1987, the plaintiffs commenced an action against the defendant Madison Family Institute and its insurer, defendant St. Paul Fire and Marine Insurance Company (collectively Madison Family Institute), alleging, inter alia, negligent diagnosis and treatment of alcoholism and invasion of privacy by disclosure of said diagnosis.

On May 6, 1987, Madison Family Institute moved the circuit court to dismiss the plaintiffs' complaint for failure to state a claim upon which relief can be granted. ⁴ On September 15, 1987, the plaintiffs moved the circuit court to stay further proceedings on the motion to dismiss in order to allow them to amend their complaint. The plaintiffs contended that amendment of the complaint was necessary given newly discovered information which materially affected the merits of Madison Family Institute's motion to dismiss. On October 2, 1987, during a telephone conference, the court orally granted the plaintiffs' motion to stay proceedings on the motion to dismiss and ordered the plaintiffs to amend their complaint by October 23, 1987. ⁵

During the same telephone conference, the court also informed the parties that it would issue a preliminary scheduling order. On October 5, 1987, the court issued a preliminary scheduling order which, among other things, required all additional parties to be joined or impleaded within 60 days of the order and all interrogatories to be served at least 40 days prior to the pretrial conference set for January 13, 1988.

The plaintiffs failed to amend their complaint by October 23, 1987, as required by the circuit court's order of October 2, 1987. On December 4, 1987, the eve of the deadline set by the preliminary scheduling order for joining additional parties and serving interrogatories, the plaintiffs moved the circuit court to amend the preliminary scheduling order to permit the joinder of additional parties and to allow the service of interrogatories beyond the time set in the preliminary scheduling order of October 5, 1987. The plaintiffs argued that the extension was necessary due to new information produced by the plaintiffs' ongoing private investigation. The plaintiffs stated in their notice of motion and motion that a portion of the new information was discovered on December 3, 1987, the day before the motion was filed.

The pretrial conference was held on January 13, 1988. The plaintiffs failed to file the required pretrial conference statement. At the pretrial conference, the court granted the plaintiffs' motion to modify the preliminary scheduling order. The pretrial order granted the plaintiffs an extension until January 29, 1988, to amend the complaint and to implead and serve additional parties. The pretrial order also set the matter for trial on June 6, 1988. ⁶

The plaintiffs did not file their amended complaint until February 19, 1988, 21 days after the court's deadline. The amended complaint joined the following defendants: Frank Coogan, Molly Allison, Joyce Nourse, and Dr. Stanley Miezio (hereinafter, defendants Coogan and Allison will be included in the references to Madison Family Institute). However, Dr. Miezio was not served until April 18, 1988, nearly three months after the court's deadline to join additional parties. The plaintiffs' amended complaint added claims of breach of fiduciary duty, interference with parent/child relationship, and defamation.

On March 28, 1988, Madison Family Institute filed its answer to the plaintiffs' amended complaint which included, as an affirmative defense, a motion to dismiss for failure to state a claim. On April 29, 1988, the court heard the motion. The plaintiffs filed their brief in response to the motion late.

By order entered May 25, 1988, the circuit court dismissed all the claims against Madison Family Institute except Larry Monson's claims for defamation and invasion of privacy and Stephanie and Mary Monson's claims for negligent diagnosis and treatment. At the motion hearing, plaintiffs' counsel indicated to the court that he would dismiss defendant Nourse because he had not served her within 60 days of joining her as a party. The record shows that defendant Nourse was never dismissed from this action. The court sua sponte removed the case from the June 27, 1988, trial calendar due to the belated joining of Dr. Miezio as a defendant.

On May 27, 1988, defendant Dr. Miezio moved the court to dismiss the plaintiffs' claims against him. Dr. Miezio argued that Stephanie and Mary Monson's negligence claims and Larry Monson's defamation and invasion of privacy claims were barred by the applicable statute of limitations. Dr. Miezio further argued that the plaintiffs' remaining claims should be dismissed for failure to state a claim upon which relief may be granted--the same reason they were dismissed against Madison Family Institute.

On June 15, 1988, the circuit court heard Dr. Miezio's motions. By order dated June 27, 1988, the circuit court dismissed all the plaintiffs' claims against Dr. Miezio, except Larry Monson's claims for defamation and invasion of privacy, ⁷ and ordered the plaintiffs to "submit a Second Amended Complaint not later than July 1, 1988, specifically designating individual claims against [the] defendants."

The record shows that the circuit court required the plaintiffs to amend their complaint because, as plaintiffs' counsel appeared to concede, the complaint did not state the plaintiffs' claims with sufficient clarity to enable the defendants to defend against the action. Furthermore, the complaint did not clearly state which claims were being asserted against each defendant.

The plaintiffs never amended the complaint as required by the circuit court's order of June 27, 1988. On July 14, 1988, two weeks after the court's deadline for the plaintiffs to file a second amended complaint, Dr. Miezio's counsel wrote to plaintiffs' counsel to request that the complaint be amended or his client be dismissed from the action. In response, plaintiffs' counsel advised Dr. Miezio's counsel that he would be in contact with him the week of July 25, 1988.

The record shows that plaintiffs' counsel did not contact Dr. Miezio's counsel as promised. On September 1, 1988, two months after the court's deadline to file the second amended complaint, Dr. Miezio's counsel again wrote to plaintiffs' counsel, requesting the dismissal of his client or the filing of the amended complaint within one week. In the same letter, Dr. Miezio's counsel advised plaintiffs' counsel that "I will have to file an appropriate motion should you fail to either dismiss my client or replead the complaint...."

The record shows that the plaintiffs never amended their complaint. The record also shows that the plaintiffs never responded to a request for production of documents from Dr. Miezio's counsel dated May 4, 1988. ⁸

On October 5, 1988, Dr. Miezio moved the circuit court to dismiss the plaintiffs' action for failure to prosecute. On October 17, 1988, Dr. Miezio filed a motion for summary judgment. ⁹ The record shows that all the other defendants joined in Dr....