Trispel v. Haefer

Decision Date30 May 1979
Docket NumberNo. 76-678,76-678
Citation279 N.W.2d 242,89 Wis.2d 725
PartiesWalter TRISPEL, as special administrator of the Estate of Elsie E. Trispel, his mother, Deceased, Plaintiff-Appellant, v. Barbara HAEFER, Allstate Insurance Company, a Foreign Corporation, Kohl's Food Stores, Inc., a Domestic Corporation, and Continent Casualty Company, a Foreign Corporation, Defendants- Respondents.
CourtWisconsin Supreme Court

Eisenberg & Kletzke, Milwaukee, for plaintiff-appellant.

Ronald L. Piette and Craig W. Nelson, Milwaukee, for Barbara Haefer and Allstate Ins. Co.

Prosser, Wiedabach & Quale, S. C., Milwaukee (Douglas H. Starck, Milwaukee, of counsel), for Kohl's Food Stores, Inc., and Continental Casualty Co.

COFFEY, Justice.

The plaintiff-appellant is the special administrator of the estate of Elsie E. Trispel who died in December of 1974. Barbara Haefer, Kohl's Food Stores, Inc. and their respective insurers, Allstate and Continental Casualty Insurance companies are the defendants-respondents. The estate's wrongful death action alleges that on January 31, 1974 Barbara Haefer negligently struck Elsie Trispel with a shopping cart causing the 83 year-old woman to fall to the floor and hit her head. It is also alleged that Kohl's was in violation of the safe-place statute by maintaining unsafe and narrow aisleways and piling merchandise at the ends of the aisles, thus preventing Mrs. Trispel from seeing the shopping cart traffic rounding the corner.

The plaintiff-appellant's original complaint was served on April 2, 1976 and amended on June 21, 1976. The following day the court ordered the amended complaint against Kohl's Food Stores dismissed but granted the plaintiff-appellant leave to amend so as to make the complaint more definite and certain and stating a cause of action. A second amended complaint was then served on June 25, 1976. The court held a pre-trial conference on October 7, 1976, attended by the parties' respective counsel. In a letter memorandum order dated October 7, 1976 the trial court summarized the matters discussed and agreed upon at the pre-trial conference. The letter reflects that the court ordered the plaintiff-appellant to:

(1) post security bond without delay.

(2) submit authorization for the release of medical, doctor and hospital records by October 15, 1976.

(3) produce a medical report establishing a causal connection between the accident referred to in the complaint and the decedent's death no later than December 15, 1976.

(4) submit an itemized claim for pecuniary loss.

The pre-trial order also required that all discovery be completed by March 15, 1977 in order for the parties to prepare for the scheduled trial of May 31, 1977. Further, the order explicitly stated that "A motion to dismiss is contemplated and will be undoubtedly filed" and "There will be no deviation from this order except on proper motion."

On February 28, 1977 the defendants-respondents served a motion for dismissal for failure to comply with the pre-trial order concerning the plaintiff's failure to file a medical report and to post the security. The plaintiff-appellant then requested leave of the court to amend his complaint to remove all claims of damages for wrongful death and rely solely on a claim for pain and suffering. At a hearing on March 21, 1977 the plaintiff-appellant's attorney stated that the deceased's treating physician had been seriously ill and thus he was unable to provide the report as ordered. In an order dated March 29, 1977 the trial court denied the motion to amend the complaint for a third time and granted the defendants-respondents' motion to dismiss the action. The trial judge stated his reasoning for the order of dismissal was the plaintiff-appellant's "inexcusable failure to comply with the pre-trial order and belated attempt to shift the theory and nature of this action by the recently filed motion to amend the complaint."


1. Did the trial court abuse its discretion by not granting leave for the plaintiff-appellant to amend his complaint for the third time some 31/2 months after the final date for the production of evidence pursuant to the court's pre-trial order of October 7, 1976?

2. Did the trial court abuse its discretion in dismissing the plaintiff's action with prejudice in accordance with sec. 805.03, Stats.?

The plaintiff-appellant has alleged that the trial court abused its discretion in refusing to grant leave "to conform his pleadings to his proof." The plaintiff-appellant, in fact, has misstated the issue as the action has not been tried and thus no proof has been presented. However, the issue in the present case is not simply whether it was an abuse of discretion to deny the plaintiff-appellant leave to amend his complaint; but whether a party should be permitted to amend his pleading for a third time after an absolute failure to comply with a pre-trial order, despite a specific warning of a potential dismissal motion prompted by the plaintiff-appellant's questionable allegations in the original and amended complaints. It is noted from the record that the pre-trial order reflected a concern with the discovery and proof aspects of the plaintiff-appellant's wrongful death claim and thus required the plaintiff-appellant to submit a medical report before December 15, 1976 establishing the causal connection between the accident and Mrs. Trispel's death.

The amendment of pleadings is provided in sec. 802.09, Stats., and reads as follows:

"Sec. 802.09(1) (1975). Amendments. A party may amend his pleading once as a matter of course at any time prior to the entry of the scheduling order provided in s. 802.10(1). Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; And leave shall be given freely when justice so requires. . . . At any stage of the action, the court may Allow amendment of any process or proceeding if justice requires it." (emphasis supplied.) 1

Traditionally, Wisconsin case law and the statutes have granted a trial judge broad discretion in determining whether to permit an amendment of the pleadings. The prior statute dealing with the amendment of pleadings, sec. 269.44, Stats., allowed pleadings to be amended "upon such terms as may be just."

This court recognizes the statutory intent in sec. 802.09 (1975) allowing a one-time amendment of the pleadings before the scheduling order and further providing for an amendment only by leave of the court where justice requires, or written consent of the adverse party. In Celmer v. Quarberg, 56 Wis.2d 581, 592, 203 N.W.2d 45, 51 (1973) the court noted the deference accorded to a trial court's determination granting or denying leave to amend, stating "(a) mendments to pleadings are within the discretion of the trial court and a case will not be reversed on account of (that court's ruling) thereon unless there has been a manifest abuse of discretion." Thus, in order for the instant case to merit reversal the appellant must clearly show that the trial court's refusal to permit an amendment of the pleadings was a manifest abuse of discretion.

However, in this case, the liberal attitude toward granting leave for the amendment of pleadings must be balanced against the court's concern for the orderly administration of justice. Thus, we examine the question of whether or not the court abused its discretion in dismissing the appellant's complaint for failure to comply with the pre-trial orders including the required production of a medical report establishing the causal connection between the alleged fall and Mrs. Trispel's death.

The trial court granted respondents' motion for dismissal pursuant to sec. 805.03, Stats., which reads:

"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 the 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." (Emphasis supplied.)

Authoritative commentaries in review of sec. 805.03 sanctions point out that a dismissal of an action for failure to comply with a pre-trial order should rarely be granted. The Judicial Council Committee's Notes accompanying the statute state that ". . . 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." W.S.A. sec. 805.03 at p. 414 (1974). In Graczyk, "Wisconsin Rules of Civil Procedure, Chapters 805-07 . . ." 59 Marq.L.Rev. 671, 675 (1976) it is further stated:

"Although the section allows dismissal for non-compliance with even the most trivial procedural . . . orders, a dismissal with prejudice should be granted only in extreme circumstances."

The appellant argues that the dismissal was an abuse of discretion for two reasons: first, there was good cause for his failure to comply with the pre-trial order for production of the medical report and; second, that his due process right to notice was violated as he was not informed that his failure to comply with the pre-trial order could result in a dismissal of the action.

In making the claim that there was good cause for his noncompliance, the appellant argues that it was impossible for him to produce the medical report because of the serious illness of Mrs. Trispel's treating physician. Thus, he challenges the trial court's assertion that there was no reasonable ground for his failure to comply with the court order.

The principle is firmly established that in order to demonstrate that a dismissal order based upon the failure to prosecute was an abuse of discretion, the aggrieved party must...

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