Neylan v. Vorwald

• Citation: 121 Wis.2d 481,360 N.W.2d 537
• Decision Date: 08 November 1984
• Docket Number: Nos. 82-2051,82-2052,s. 82-2051
• Parties: Rosemary NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin, an insurance corporation, Defendants-Respondents, Kathleen NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin, an insurance corporation, Defendants and Third-Party Plaintiffs-Respondents, Rosemary Neylan and IMT Insurance Company, a foreign corporation, Third-Party Defendants.
• Court: Wisconsin Court of Appeals

Page 537

360 N.W.2d 537

121 Wis.2d 481

Rosemary NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin, an insurance corporation, Defendants-Respondents, Kathleen NEYLAN, Plaintiff-Appellant, v. Richard VORWALD and General Casualty Company of Wisconsin,

an insurance corporation, Defendants and

Third-Party Plaintiffs-Respondents,

Rosemary Neylan and IMT Insurance Company, a foreign

corporation, Third-Party Defendants.

Nos. 82-2051, 82-2052.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 19, 1983.

Opinion Released Nov. 8, 1984.

Opinion Filed Nov. 8, 1984.

Review Granted.

Charles E. Brady and Czajkowski & Queram, Prairie du Chien, for plaintiffs-appellants.

Roger J. Mueller and Hamilton & Mueller, S.C., Dodgeville, for defendants-respondents.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.

MARTHA J. BABLITCH, Judge.

These consolidated appeals are from identical orders denying the plaintiff-appellants' motion for trial and to set aside orders dismissing their related personal injury actions for want of prosecution. The orders of dismissal were entered, without notice to the parties or their counsel, more than four years before the motion was made. The parties received no notice that the orders had been entered, and continued trial preparation and settlement negotiations. Because we conclude that the orders of dismissal were void, and that the trial court abused its discretion in refusing to vacate them, we reverse.

The facts are undisputed. The actions arose out of a rear-end automobile collision occurring November 26, 1972. The plaintiffs, who are sisters residing in Iowa, commenced these actions on October 31, 1975. At that time they were represented by Attorney Robert R. Sheffer. The complaints allege that Kathleen Neylan was a passenger in an automobile, owned and operated by Rosemary Neylan when it was struck from behind by an automobile driven by defendant Richard Vorwald. Vorwald and his insurance company, General Casualty Company of Wisconsin, commenced a third party action against Rosemary and her insurer, IMT Insurance Company.

The orders dismissing the actions, bearing the judge's stamped signature, were entered on August 29, 1978. At that time the circuit court file in Rosemary's action, No. 1730-75, contained only a summons and complaint filed November 12, 1975, and an answer filed November 14, 1975. The file in Kathleen's action, No. 1731-75, contained the identical documents, together with others which pertained to both actions. ¹ The last of these was filed March 10, 1977. The actions had not been formally consolidated for trial. The parties' counsel were identical in each action.

No further documents of note were filed in Rosemary's action following the order of dismissal. Kathleen's file contains a notice of trial and certificate of readiness dated June 1, 1979, signed by Attorney Sheffer; a second request for production of documents dated June 25, 1979; a motion dated August 21, 1979 for an order requiring Kathleen to produce certain documents relating to her finances; and the motion for trial dated October 4, 1982 which is the subject of this appeal. ² Attorney Sheffer died in October 1979, more than a year after the orders dismissing the actions were entered. The appellants were represented at the October 20, 1982 hearing on the motion to vacate those orders by present counsel, who is apparently a member of the firm (or a successor firm) to which Attorney Sheffer belonged. ³

No evidence was adduced at the hearing. Present counsel represented without challenge that he had acquired responsibility for the files in January 1980, and that various written and telephonic communications between counsel, and between counsel and the court, had occurred since that time. He surmised that his firm's first indication that the orders of dismissal had been entered was in late 1979 or early 1980, when a secretary was instructed to conform the office files to the circuit court files. He did not indicate when he himself had learned of the orders, whether his clients were made aware of the orders, or why no earlier efforts had been made to set the orders aside.

The trial court stated that the question before it was whether the orders of dismissal were valid. It observed that the new rules of civil procedure which took effect in January, 1976, had placed a duty on the court to move cases along, whereas the prior rules had placed that responsibility solely on the plaintiff. The trial court indicated that the orders of dismissal in these cases had been based solely on the contents of each file at the time the orders were entered. The court stated:

I don't know of any requirement ... other than good practice, that the Court has to give notice of dismissal of cases under the old rules of civil procedure and I know that it has been and still is the practice of many courts to dismiss cases wholesale without notice where no action has been taken within a certain period of time.

So, the Court had reason to dismiss these cases. The failure of the court to give notice or to hold a hearing or even to send copies of an order to counsel is not fatal to the order and therefore in reconsideration of the matter, at this time in 1982 is not appropriate and the request to set a trial date or to reopen the cases is denied.

We deem the issues to be:

1. Whether the orders of dismissal are void for want of notice;

2. Whether, if so, the trial court abused its discretion in refusing to vacate them.

The orders of dismissal cited no authority for the trial court's action. Circuit courts have both statutory and inherent power to dismiss stale cases. Trispel v. Haefer, 89 Wis.2d 725, 737, 279 N.W.2d 242, 247 (1979) (citing Hauer v. Christon, 43 Wis.2d 147, 154, 168 N.W.2d 81, 84-5 (1969)).

Section 805.03, Stats., governing sanctions for want of prosecution and failure to abide by pre-trial orders, provides:

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.

The statute does not expressly require the court to give notice before dismissing an action. The respondent reasons that no such notice need be given. That conclusion does not necessarily follow from the statute's silence.

The predecessor to sec. 805.03, Stats., was sec. 269.25, Stats. (1973). In its original form, the statute expressly allowed the court to dismiss "without notice" any action not brought to trial within five years after its commencement. See sec. 269.25 (1967). The statute was amended by the legislature in ch. 269, Laws of 1969, to provide that actions not brought to trial within four years after commencement could be dismissed "with notice."

In Lawrence v. MacIntyre, 48 Wis.2d 550, 180 N.W.2d 538 (1970), the court considered a case which arose under the five-year statute but was decided after the 1969 amendment. Noting the inherent power of courts to dismiss actions in the interest of orderly administration of justice, the supreme court stated that a trial judge need not wait for the expiration of the statutory period before ordering a dismissal where parties "have failed to use reasonable diligence in bringing their suits to trial." 48 Wis.2d at 555, 180 N.W.2d at 541. The court said, however, that in exercising its inherent discretion the trial court could not "omit the giving of notice."

Under the statute as it stood heretofore, no notice was required after the running of the five-year period. Under the new statute, ch. 269, Laws of 1969, we consider that sound judicial policy will require the giving of notice in all cases irrespective of whether the dismissal is pursuant to the statute after the running of the four-year period or prior thereto in the exercise of the court's inherent power.

48 Wis.2d at 555-56, 180 N.W.2d at 541.

Present section 805.03, Stats., was adopted by supreme court order, 67 Wis.2d 690, effective January 1, 1976, as part of the Wisconsin rules of civil procedure. This section governed the orders of August 29, 1978, because trial of these actions had not commenced prior to January 1, 1976. Sec. 801.01(3)(b), Stats. The Wisconsin rules were prepared by the judicial council and were "patterned after" the federal rules of civil procedure. Trispel v. Haefer, 89 Wis.2d at 736, 279 N.W.2d at 247.

There is no suggestion from the judicial council committee's note to section 805.03, Stats., that the "sound judicial policy" of giving notice enunciated in Lawrence was intended to be reversed or altered. To the contrary, the committee's note emphasizes the limited use which should be made of the extreme power to dismiss:

This section, generally based on Federal Rule 41(b), replaces s. 269.25. Because of the harshness of the sanction, a dismissal under this section should be considered appropriate only in cases of egregious conduct by a claimant. See Link v. Wabash R. Co. (1962), 370 U.S. 626 [82 S.Ct. 1386, 8 L.Ed.2d 734]; Latham v. Casey & King Corp. (1964), 23 Wis.2d 311, 127 N.W.2d 225.

Judicial Council Committee's Note, 1974, 67 Wis.2d 691.

The cases cited by the judicial council committee establish that an order of dismissal is subject to the due process clause of the fourteenth amendment to the United States Constitution. Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386,...