Rupert v. Home Mut. Ins. Co.

• Decision Date: 03 March 1987
• Docket Number: No. 85-2371,85-2371
• Citation: 405 N.W.2d 661,138 Wis.2d 1
• Parties: Scott W. RUPERT, Plaintiff-Appellant, v. HOME MUTUAL INSURANCE COMPANY and Catherine A. Pire, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 661

405 N.W.2d 661

138 Wis.2d 1

Scott W. RUPERT, Plaintiff-Appellant, v. HOME MUTUAL INSURANCE COMPANY and Catherine A. Pire Defendants-Respondents.

No. 85-2371.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 11, 1986.

Opinion Released March 3, 1987.

Opinion Filed March 3, 1987.

Ralph W. Koopman, of Eagle River, and Thomas N. Akey, Minocqua, for plaintiff-appellant.

John E. Bliss, of Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, for defendants-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Scott Rupert appeals an order dismissing his action against Home Mutual Insurance Company and Catherine Pire. The trial court dismissed the complaint because it concluded that Rupert had failed to diligently prosecute the action. Rupert argues that the dismissal violated his due process rights because he had no warning of what conduct constituted failure to prosecute an action. While we agree that the dismissal for failure to diligently prosecute violates due process under the facts of this case, we determine that the trial court has discretionary power to dismiss for failure to respond to interrogatories in a timely fashion. We conclude that the propriety of the exercise of such discretion, however, depends on further factual findings. Accordingly, we reverse and remand for further proceedings.

Rupert filed suit against Pire on July 30, 1984, claiming damages caused by a collision between the motorcycle he was riding and the car she was driving. Rupert also named Home Mutual, Pire's insurer, as a defendant. Home Mutual filed an answer on August 9, 1984. Rupert filed a request for production of documents on August 13, 1984. The next day, Home Mutual noticed Rupert's deposition. Home Mutual complied with Rupert's request for production of documents on August 20, 1984. On or about the same day, Home Mutual served a set of written interrogatories on Rupert.

The trial court's case file reflected no further activity. Consequently, about a year later, on August 22, 1985, the trial court filed a "Notice of Intent to Dismiss," informing Rupert that unless he showed cause as to why his action should not be dismissed for failure to diligently prosecute, it would be dismissed.

The trial court scheduled a show cause hearing for November 11, 1985. On November 4, 1985, more than fourteen months after the interrogatories had been served, Rupert filed a set of responses to Home Mutual's interrogatories.

The November 11 hearing revealed that the parties' attorneys had corresponded several times after Rupert filed suit. The correspondence reflected Home Mutual's efforts to obtain responses to its interrogatories. Over the course of nearly a year, Home Mutual's attorney postponed Rupert's deposition pending his response to the interrogatories, made several requests for the responses, agreed to one thirty-day extension, and threatened to move the court to compel responses or dismiss Rupert's action. Despite Home Mutual's threat, it took no action to involve the court in the discovery problem. Although Rupert's attorney claimed at one time to have a rough draft of the responses, nothing more happened in the suit until the trial court independently filed its notice of intent to dismiss.

The court heard evidence of the correspondence but declined to hear testimony bearing on possible excuses for Rupert's failure to promptly answer the interrogatories. The trial court stated, "I feel the record is sufficient to justify the court in dismissing this without any further testimony." In making its ruling of dismissal at the hearing, the court declared:

I think a dismissal of the action is justified. I think ... it's possible to dismiss this under the Statute, 805.03, or by inherent power of the court, for failure to prosecute. ¹

Likewise, the court's written order of dismissal stated that "the plaintiff's Complaint should be dismissed on its merits because it had not been diligently pursued...." Nowhere in its order or in the transcript of the formal hearing did the court explicitly rely on its discretionary power under sec. 804.12(4), Stats., to dismiss for failure to respond to written interrogatories within the required thirty days.

Rupert argues that the trial court erred by dismissing his action under sec. 805.03, Stats., or under the trial court's inherent authority, for failure to prosecute. Rupert contends that without fair warning of what conduct constitutes failure to prosecute, the dismissal violated his right to due process. We agree that a dismissal premised solely on failure to prosecute, under the facts of this case, violates due process.

We recognize the trial court's inherent discretionary power to control its docket with economy of time and effort. Latham v. Casey & King Corp., 23 Wis.2d 311, 314, 127 N.W.2d 225, 226 (1964). We recognize further the trial court's duty, under its inherent power, to discourage protraction of litigation and to refuse its aid to those who negligently or abusively fail to prosecute the actions they commence. Id. at 315, 127 N.W.2d at 227. However, due process must guide the trial court's discretionary power to dismiss. The question then is not the existence of the court's power, but the propriety of dismissing where the law provides no boundaries for "failure to prosecute."

Where a party lacks actual notice of the conduct required to diligently prosecute an action, fundamental fairness and due process require that notice be given informing the party of the implications of his or her conduct. Neylan v. Vorwald, 124 Wis.2d 85, 90, 368 N.W.2d 648, 651-52 (1985). In Neylan, the trial court dismissed without notice an apparently inactive three-year-old action. At a hearing on the motion to set aside the dismissal, the parties presented evidence showing that although the court's records showed no activity, the parties had pursued settlement through telephonic and written negotiations. Nonetheless, because of the lack of file activity, the trial court concluded that the action had not been diligently pursued. Id. at 88-89, 368 N.W.2d at 651.

The supreme court in Neylan upheld the court of appeals' reversal of the trial court, holding that sec. 805.03 failed to provide litigants with constructive knowledge of the "outside time limits" a court will consider to constitute failure to prosecute. Neylan, 124 Wis.2d at 92-93, 368 N.W.2d at 653. The supreme court noted that the predecessor to sec. 805.03 had provided a five-year limit for bringing a case to trial. Section 269.25, Stats. (1963). But because sec. 805.03 failed to provide a definite time frame for pursuing an action, the court warned that, "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." Neylan, 124 Wis.2d at 93, 368 N.W.2d at 653. The instant case justifies the Neylan court's warning. Here the court unilaterally defined failure to prosecute as one year's inactivity. Rupert had no basis, either in statutory or case law, to anticipate the trial court's definition of "failure to prosecute."

Our supreme court has held that due process requires at least a fair and adequate warning by court rule or notice of penalties to be invoked for disobeying a court order. Latham, 23 Wis.2d at 316, 127 N.W.2d at 228. In Latham, a Milwaukee County Circuit Court dismissed an action sua sponte because a party's attorney had failed to attend a pretrial conference. Id. at 313-14, 127 N.W.2d at 226. At the time, the statute governing pretrial practice made pretrial hearings permissive. Section 269.65, Stats. (1963). However, a Milwaukee County Circuit Court rule supplementing sec. 269.65 required attorney attendance at mandatory pretrial conferences for all civil jury actions. While the Latham appellant received notice of the pretrial conference, the notice contained no warning of any penalties in the event counsel did not appear. Id. at 314, 127 N.W.2d at 226. Latham held that the court's dismissal without notice or hearing on the imposition of a penalty violated due process. Id. at 316, 127 N.W.2d at 228.

The Latham court's determination that a hearing would have satisfied due process does not apply to the facts before us. In Latham, the parties knew of the court-ordered pretrial conference. A resulting hearing would have required the disobedient party to excuse its knowing failure to obey a court order. In contrast, the hearing in this case required Rupert to excuse his violation of an unknown standard of conduct. Such a hearing falls short of affording due process.

While sec. 805.03 fails to define the outside limits of "failure to prosecute," the statute governing calendar practice provides a basis for the trial court to create these limits. Section 802.10(2), Stats., provides:

Unless excepted under sub. (1), all actions and special proceedings are deemed ready for trial one year after the summons and complaint are filed. Within 60 days after the expiration of one year, the court shall by order set dates for a pretrial conference and for trial. [Emphasis added].

By setting pretrial conference and trial dates, the court defines diligent prosecution of an action. ² After one year has passed, a plaintiff may reasonably assume that the court will set these dates within sixty days. It is unreasonable that a plaintiff, anticipating receiving pretrial conference and trial dates, should instead receive a notice of intent to dismiss. Here, rather than setting the required dates, and thus providing the plaintiff with an outside limit of conduct expected for diligently pursuing its action, the trial court moved to dismiss the one-year-old suit.

The dissent suggests that by deeming an action "ready for trial one year after the summons and complaint are filed," sec. 802.10(2) implies that the trial court has discretion to dismiss if a plaintiff cannot show that it has...