Neylan v. Vorwald

Decision Date29 May 1985
Docket Number82-2052,Nos. 82-2051,s. 82-2051
Citation124 Wis.2d 85,368 N.W.2d 648
PartiesKathleen NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin, an insurance corporation, Defendants and Third-Party Plaintiffs-Respondents-Petitioners, Rosemary Neylan and IMT Insurance Company, a foreign corporation, Third-Party Defendants. Rosemary NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin, an insurance corporation, Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

Roger J. Mueller, Dodgeville, argued, for petitioners; Patrick J. Fiedler and Hamilton & Mueller, S.C., Dodgeville, on brief.

Charles E. Brady, Prairie du Chien, argued, for plaintiffs-appellants; Czajkowski & Brady, Prairie du Chien, on brief.

STEINMETZ, Justice.

The issues in this case are whether a trial court, upon its own motion, may dismiss actions for failure to prosecute without giving actual notice to any party, and secondly, since such dismissals were ordered in this case, were the judgments void. If they are void, must they be set aside upon motion brought pursuant to sec. 806.07, Stats., 1 and what, if any, time limits might restrict the bringing of such motions.

These two related cases were consolidated by stipulation for purposes of appeal. Appeals were taken from orders entered by the Crawford county circuit court, the Honorable Michael Kirchman, denying plaintiffs' motions to set aside orders dismissing their actions entered by the court on August 29, 1978, without prior or subsequent actual notice. Both cases are actions for personal injuries arising out of an automobile accident which occurred in Crawford county, Wisconsin on November 26, 1972, between Rosemary Neylan's and Richard Vorwald's vehicles. Kathleen Neylan, an attorney licensed and practicing law in the state of Iowa, was a passenger in an auto being driven by her sister, Rosemary Neylan, at the time of the accident.

Kathleen Neylan's action (No. 82-2051) was commenced with service of summons and complaint on October 31, 1975, against Richard Vorwald and his insurer, the General Casualty Company of Wisconsin. An answer was filed on November 14, 1975. A third-party summons and a third-party complaint were filed by the defendant on December 16, 1975, against Rosemary Neylan and her insurer, IMT Insurance Company. A notice of appearance was filed on behalf of the third-party defendants on January 7, 1976. Depositions were taken on November 17, 1976. The defendant requested the production of certain documents from the plaintiff on February 14, 1977. A stipulation amending the caption of the third-party summons and complaint was filed on March 10, 1977. The next activity of record was the court's order of August 29, 1978, dismissing the action.

On June 1, 1979, the plaintiff filed a notice of trial and certificate of readiness. Plaintiff's attorney subsequently died. On June 25, 1979, the defendant filed a second request for the production of documents. On August 21, 1979, the defendants filed a motion for an order requiring plaintiff to produce the documents previously requested and reasonable costs and attorney fees to cover the cost of the motion. The record does not show this motion was ever heard. More than four years after the order dismissing the action was entered, on October 4, 1982, plaintiff, by her new attorney, filed a motion for an order establishing a date and time for trial and an order to set aside the order dismissing the action.

Rosemary Neylan's action (No. 82-2052) was also commenced on October 31, 1975, with an answer filed on November 18, 1975. The next document of record was the court's order dismissing the action on August 29, 1978. As in Kathleen Neylan's case, on October 4, 1982, plaintiff filed a motion to set aside the order dismissing the action. On October 18, 1982, a hearing was held on both Kathleen and Rosemary Neylan's motions and on October 20, 1982, an order denying the motions was entered.

At the hearing on October 20, plaintiffs' counsel, attempting to show this case had not been lacking in prosecution, referred to letters and telephone calls between counsel, most of which did not involve the court. 2 Despite these events, the court concluded the cases were not active and characterized the question as whether the dismissal orders were valid.

The trial judge gave two reasons for denying Kathleen and Rosemary Neylan's motions to set aside the orders dismissing the actions: (1) The new Rules of Civil Procedure 3 place the duty upon the court to advance the prosecution of cases, and (2) by examining the record, the trial court concluded this case was not actively prosecuted.

The court of appeals held the dismissal orders were void for lack of prior notice, and because they were void, the trial court was required to set them aside even though the motion to vacate was brought four years after the orders were entered. 4

In Link v. Wabash Railroad Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962), the Supreme Court held that on the record of that case it could not find an abuse of discretion for the district court's dismissal of the action based on petitioner's counsel's failure to appear at a duly scheduled pretrial conference. However, the Court stated on the subject generally that:

"It is true, of course, that 'the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.' Anderson National Bank v. Luckett, 321 U.S. 233, 246 [64 S.Ct. 599, 606, 88 L.Ed. 692]. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct."

In this regard, the Court in Link stated it may not be necessary to provide actual notice and a hearing where the party has constructive notice through other means, orders or rules of the court as to what the specific consequences of his conduct may be. In this case, because sec. 805.03, Stats., by its language does not provide the constructive notice required under Link, actual notice to the parties of the court's dismissal for failure to prosecute is required.

The present rule governing this case is sec. 805.03, Stats., 5 which was adopted by supreme court order, 67 Wis.2d 690, 6 as part of the Wisconsin Rules of Civil Procedure. The Wisconsin rules were prepared by the judicial council and were patterned after the Federal Rules of Civil Procedure. 7

Prior to sec. 805.03, Stats., the statute governing dismissal for want of prosecution was sec. 269.25, 1969. 8 Prior to sec. 269.25 (1969), the statute read as follows: "The court may without notice dismiss any action or proceeding which is not brought to trial within five years after its commencement" and there was no requirement of actual notice in this earlier version. (Emphasis added.)

Prior to 1969, when sec. 269.25, Stats., did not require actual notice to be given before dismissal of an action, the statutory five-year period served as constructive notice to litigants that the sanction of dismissal would be imposed if the action was not brought to trial within five years of commencement. The prescribed five-year period in which the trial must be commenced and the subsequent dismissal sanction served as sufficient due process protection under the reasoning set out in Link. When actual notice is not given, Link requires constructive notice be given by informing the litigants of the implications of their conduct. Section 269.25 gave that constructive notice to litigants by setting a specific dismissal sanction after five years, if the action was not brought to trial.

When amended in 1969, sec. 269.25, Stats., required actual notice of dismissal and the time for prosecution was lessened to four years. The present rule, sec. 805.03, does not state any time limit within which trial must proceed after commencement of the action and therefore does not import any constructive knowledge to litigants or their counsel of the outside time limits a court will consider as being a "failure to prosecute," nor does it provide that actual notice be given. Where no constructive notice is given, fundamental fairness and due process require that a litigant be given actual notice before a court enters a dismissal without the notice and motion of any party. Otherwise, what a judge feels to be a failure to prosecute a case will depend on the individual judge's thinking, the court's calendar, and rate of case intake and disposition. Section 805.03 alone imports no knowledge in advance to litigants of what is expected in prosecuting a case in a particular trial court to avoid dismissal consequences under the provisions of sec. 804.12(2)(a) and particularly sec. 804.12(2)(a)3. 9

The other part of sec. 805.03, Stats., deals with the failure of a party to comply with statutes governing procedure in civil actions or to obey any order of a court. Such conduct requirement is precise and ascertainable by a party and therefore subject to the sanctions of sec. 804.12(2)(a), Trispel v. Haefer, 89 Wis.2d 725, 736, 279 N.W.2d 242 (1979).

Because none of the parties were aware of the dismissal by the trial court, approximately eleven months after the court's action, in June, 1979, counsel for plaintiffs filed a certificate that the case was ready for trial. In addition, during the pendency of the actions, without any involvement with the court, the parties held depositions and disagreed about the discovery of certain information regarding the income of plaintiff, Kathleen Neylan.

Latham v. Casey & King Corp., 23 Wis.2d 311, ...

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