Prahl v. Brosamle

• Decision Date: 17 December 1987
• Docket Number: No. 87-1384,87-1384
• Citation: 142 Wis.2d 658,420 N.W.2d 372
• Parties: Helmut PRAHL, Dynatron Research Foundation, Inc., and Dynatron Research Corporation, Plaintiffs-Appellants, v. Bryan BROSAMLE, Forward Communications Corporation, Lieutenant Kuenning, and County of Dane, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 372

420 N.W.2d 372

142 Wis.2d 658

Helmut PRAHL, Dynatron Research Foundation, Inc., and Dynatron Research Corporation, Plaintiffs-Appellants, v. Bryan BROSAMLE, Forward Communications Corporation Lieutenant Kuenning, and County of Dane Defendants-Respondents.

No. 87-1384.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 12, 1987.

Opinion Released Dec. 17, 1987.

Opinion Filed Dec. 17, 1987.

Review Denied.

John P. Koberstein, Madison, for plaintiffs-appellants.

John M. Moore and Jean M. Wiencek and Bell, Metzner & Gierhart, S.C., Madison, for defendants-respondents Bryan Brosamle and Forward Communications Corp.

Lloyd J. Blaney and Dew, Blaney & Olson, Madison, for defendants-respondents Lieutenant Kuenning and Dane County.

Before GARTZKE, P.J., and EICH and SUNDBY, JJ.

EICH, Judge.

Helmut Prahl, Dynatron Research Foundation, Inc., and Dynatron Research Corporation (collectively, Prahl) appeal from an order dismissing their complaint for failure to prosecute the action under sec. 805.03, Stats. The issues are: (1) whether secs. 808.08(1) and (2) and 808.09, Stats., preclude dismissal as a matter of law; and (2) if not, whether the trial court abused its discretion in so ordering. We answer both questions in the negative and affirm.

In May, 1976, Prahl sued television news reporter Bryan Brosamle and his employer, Forward Communications, together with Dane County and several of its law enforcement officers, for damages. The action arose out of Brosamle's coverage, with the county's permission, of the officers' response to a complaint of guns being fired on Prahl's property. Prahl's lawsuit was grounded upon allegations of trespass, violation of civil rights, false imprisonment and battery, among other things. The case was tried to a jury in December, 1977, and the trial court directed a verdict dismissing the action at the close of Prahl's case.

Prahl appealed and we upheld the dismissal of all causes of action except the trespass claim. We remanded for a new trial on that issue alone. Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (Ct.App.1980). Brosamle then moved for summary judgment on grounds that there could be no trespass as a matter of law because it was common custom and practice for newspeople to follow police onto private property while covering newsworthy events. The trial court granted the motion and dismissed the action. Prahl appealed, and we again reversed, this time ruling that summary judgment was improper because Brosamle's affidavits failed to establish a prima facie defense. Prahl v. Brosamle, 116 Wis.2d 694, 343 N.W.2d 826 (Ct.App.1983). Brosamle then petitioned the supreme court for review. The petition was denied on March 5, 1984, and the case was remanded "for trial." 117 Wis.2d 787, 349 N.W.2d 86.

When more than three years passed with no activity in the case, the trial court, on April 3, 1987, notified counsel that it was, on its own motion, scheduling the case for dismissal "for unreasonable neglect to proceed with the cause pursuant to 805.03, Wis.Stats." The notice set a hearing date for the motion and directed any party wishing to oppose dismissal to file a memorandum and supporting affidavits prior to the hearing. Prahl's counsel telephoned the court to request a "scheduling conference." and the court clerk issued a "notice of court date" setting a new hearing date for "pretrial and motion to dismiss." Defendants Brosamle and Forward Communications filed their own motion to dismiss for failure to prosecute, together with a memorandum of law and an affidavit stating that there had been no activity in the case--no discovery, not even any communications or correspondence between counsel--over the past three years. Prahl's counsel responded on May 20, 1987, with a letter to the court stating that he had not taken any action in the case because of his belief that the case had been awaiting scheduling by the court. He opposed Brosamle's motion to dismiss on grounds that: (1) secs. 808.08 and 808.09, Stats., place the burden for moving forward after remand on the trial court, not counsel; (2) that opposing counsel's statement in his affidavit that there had been no communications between counsel since 1984 was incorrect in that some oral "settlement discussions" had occurred; and (3) no one would be "hurt" if the case were ordered to trial. Prahl did not file an affidavit or other evidentiary materials.

At the hearing, the court heard arguments of counsel and took the matter under advisement. ¹ On June 15, 1987, the court issued a memorandum decision concluding that the case was "stale" and should be dismissed pursuant to sec. 805.03, Stats., and Neylan v. Vorwald, 124 Wis.2d 85, 368 N.W.2d 648 (1985). ²

I. IS DISMISSAL BARRED BY SECS. 808.08(1) AND (2) AND 808.09, STATS?

Prahl argues that after the supreme court denied the petition for review on March 5, 1984, he was not required to take any action to move the case toward trial because secs. 808.08(1) and (2) and 808.09, Stats., place that burden on the trial court. Section 808.08 provides that after an appeal is decided by the court of appeals and the record is remitted to the trial court: "(1) [i]f the trial judge is ordered to take specific action, the judge shall do so as soon as possible"; and "(2) [i]f a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar." Section 808.09 provides as follows:

Upon an appeal from a judgment or order an appellate court may reverse, affirm or modify the judgment or order as to any or all of the parties; may order a new trial; and, if the appeal is from a part of a judgment or order, may reverse, affirm or modify as to the part appealed from. In all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision.

In our November 23, 1983, decision, we reversed the trial court's order for summary judgment, holding that because the defendants' affidavits did not establish a prima facie case for dismissal, the matter was inappropriate for pretrial summary disposition. As a result, our mandate read: "Judgment reversed. Matter remanded for trial." After the supreme court denied the petition for review without comment, the record was remitted to the trial court pursuant to an order stating "the judgment ... is reversed. Matter remanded for trial."

Neither our mandate nor the remittitur "order[ed] a new trial" within the meaning of sec. 808.09, Stats., for no trial had been held at that time. The case had been decided by the trial court on summary judgment, and we reversed because not all of the procedural requirements for summary judgment had been met.

Nor do we consider that the mandate or remittitur "ordered [the trial judge] to take specific action" within the meaning of sec. 808.08(1), Stats. The purpose of summary judgment procedure is to determine whether a dispute can be resolved without a trial. Bulgrin v. Madison Gas & Electric Co., 125 Wis.2d 405, 407, 373 N.W.2d 47, 49 (Ct.App.1985). Our analysis of summary judgment cases involves a multi-step process. We look first to the complaint to see whether a claim is stated and, if so, to the answer to see whether it joins the issue. If it does, we turn to the moving party's affidavits to ascertain whether they state a prima facie claim for relief, or, if the moving party is the defendant, a prima facie defense. If they do, we next examine the opposing affidavits to satisfy ourselves that no material facts or inferences are in dispute. Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476-77 (1980). Only if all these questions are answered in the affirmative is summary judgment appropriate. If any "test" along the way is failed, summary judgment must be denied and the case sent back for further proceedings in the trial court.

That is what happened here. The summary judgment motion failed the third step in the analysis--the moving party's affidavits failed to establish a prima facie defense. As a result, the normal trial process could not be short-circuited by summary disposition and we remanded the case to the trial court with a mandate consistent with the rules governing summary judgments. That mandate did not order or direct that a trial date be set or that any particular action be taken by the trial court. To say that a remand "for trial" after reversal of a summary judgment unequivocally mandates the court to schedule and hold a trial, or take other affirmative action, ignores both the legal and practical realities of summary judgment procedure. It is conceivable, for example, that, upon further discovery, the parties might discern other grounds for further summary judgment motions. They might agree to submit the cause on stipulated facts or to a referee for resolution of factual disputes, thus avoiding trial altogether. Under the circumstances of this case, the remand "for trial" is neither an order for new trial nor an order requiring the trial court to take "specific action" within the meaning of secs. 808.08(1) and (2), Stats.

Finally, we do not believe that sec. 808.09, Stats., which requires trial courts to "proceed in accordance with the [appellate court's] judgment or decision," compels a different result. We ruled that because the legal requirements were not met, summary disposition was inappropriate and the case should be put back into the trial process. The remittitur simply implemented that ruling.

II. ABUSE OF DISCRETION

A motion to dismiss for want of prosecution is addressed to the sound discretion of the trial court, and we will affirm the court's action unless "it is clearly shown that there was an abuse of discretion." Zeis v. Fruehauf Corp., 56 Wis.2d 486, 489, 202 N.W.2d 225, 226 (1972). One seeking to set aside such a dismissal must show a " 'clear and justifiable excuse' for the delay." Trispel v. Haefer,...