We will not reverse a circuit court's damages determination if the record shows that the court exercised discretion and provides a reasonable basis for the court's decision.
How later courts described this case
- We will not reverse a circuit court's damages determination if the record shows that the court exercised discretion and provides a reasonable basis for the court's decision.
Written by the judges who cited it.
The opinion
SUNDBY, J.
(dissenting). Dismissal as a sanction has been appropriately termed "Draconian.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The Judicial Council Committee’s Note, 67 Wis. 2d 691 (1974), to sec. 805.03, Stats., is as follows: "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.”
Section 805.03, Stats., is patterned after Fed. R. Civ. Pro. 41(b). 1 Under Rule 41(b), dismissal with prejudice is appropriate when there is a clear record of delay or contumacious behavior such that the litigant can be charged with the behavior of the lawyer. Link v. Wabash R. Co., 370 U.S. 626, 634 (1962); Washington v. Walker, 734 F.2d 1237, 1238 (7th Cir. 1984).
*672 There is in this case no clear record of delay or contumacious behavior on the part of the appellants’ attorneys. Nor is there any hint of egregious conduct on the part of the claimants.
The appellant’s counsel represents that he was waiting for the trial court to give the parties notice of a scheduling conference. Counsel points out that after the first remand from our court, the trial court scheduled a pretrial conference, without the request of either party. Counsel assumed that on our second remand the trial court would follow its past practice. Counsel may also have been lulled by our mandate which reversed and remanded this case for trial. I do not believe that counsel had the right to expect that the trial court was going to take the laboring ore in prosecuting his clients’ case. See Marshall-Wis. v. Juneau Square, 139 Wis. 2d 112, 137 , 406 N.W.2d 764, 774 (1987) (duty to move forward with prosecution of the action remains with the party who began the lawsuit). But I do not believe that his innocent mistake is "egregious” conduct which justifies dismissing his clients’ action.
Section 805.03, Státs., may be used by a trial court engaged in judicial husbandry — clearing away the court’s records of "mere deadwood.” Hine v. Grant, 119 Wis. 332, 336 , 96 N.W. 796, 797 (1903). This case is hardly mere deadwood. It was tried once which ended with the trial court granting the respondents’ motion for a directed verdict. We held that was error. The trial court then granted the respondents’ motion for summary judgment. We held that was error. The appellants may be fatigued by their futile efforts to have their case heard on its merits, but I do not agree with the majority’s conclusion that they have slept away their day in court.
To the extent that decisions of the United States Court of Appeals show a pattern of construction they are persuasive authority in construing rules of Wisconsin Civil Procedure that are based on federal rules. Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175 , 179 n. 2, 311 N.W.2d 673, 675-76 (Ct. App. 1981).