Dismissal for failure to prosecute violated due process requirements when the petitioner had no actual or constructive notice that her conduct might result in dismissal before the motion to dismiss for failure to prosecute was filed. More than notice of a motion to dismiss for failure to prosecute and a hearing are required to provide due process. Before imposing a sanction as drastic as dismissal, advanced notice is required that a party's conduct might result in dismissal to satisfy due process requirements. Theis v. Short, 2010 WI App 108
, 328 Wis. 2d 162
, 789 N.W.2d 585
When a circuit court concludes that a party's failure to follow court orders, although unintentional, is “so extreme, substantial and persistent" that the conduct may be considered egregious, the circuit court may make a finding of egregiousness. Conversely, a party may also act in bad faith, which by its nature cannot be unintentional conduct. To find that a party acts in bad faith, the circuit court must find that the noncomplying party “intentionally or deliberately" delayed, obstructed, or refused to comply with the court order. Dane County Department of Human Services v. Mable K. 2013 WI 28
, 346 Wis. 2d 396
, 828 N.W.2d 198
Voluntary dismissal: effect thereof. 805.04(1)(1)
By plaintiff; by stipulation.
An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.
(2) By order of court.
Except as provided in sub. (1)
, an action shall not be dismissed at the plaintiff's instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.
(3) Counterclaim, cross claim and 3rd-party claim.
This section applies to the voluntary dismissal of any counterclaim, cross claim, or 3rd-party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.
(4) Costs of previously dismissed action.
If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.
Sup. Ct. Order, 67 Wis. 2d 585, 691 (1975); 2005 a. 253
; 2007 a. 20
; 2015 a. 55
Assessment of attorney fees as a condition of voluntary dismissal without prejudice was within the trial court's discretion. Dunn v. Fred A. Mikkelson, Inc. 88 Wis. 2d 369
, 276 N.W.2d 748
Voluntary dismissal with prejudice rarely entitles the defendant to an award of fees and costs. Bishop v. Blue Cross & Blue Shield, 145 Wis. 2d 315
, 426 N.W.2d 114
(Ct. App. 1988).
A condemnee may voluntarily dismiss an appeal to a circuit court under s. 805.04 without court order. Dickie v. City of Tomah, 160 Wis. 2d 20
, 465 N.W.2d 262
(Ct. App. 1990).
If any adverse party to an action files a responsive pleading prior to the time that the plaintiff attempts to dismiss the action under sub. (1), a voluntary dismissal without prejudice is no longer obtainable. Gowan v. McClure, 185 Wis. 2d 903
, 519 N.W.2d 692
(Ct. App. 1994).
The trial court did not abuse its discretion in granting the plaintiff's motion for dismissal without prejudice in order that the plaintiff could refile in an attempt to take advantage of a new statutory enactment. The prejudice this section protects against is that of putting the defendant through the expense of a lawsuit without being able to obtain a final determination on the merits, not from being disadvantaged by a legislative policy change. Estate of Rita Engebose v. Morraine Ridge Limited Partnership, 228 Wis. 2d 860
, 598 N.W.2d 584
(Ct. App. 1999), 98-3019
Sub. (1), the voluntary dismissal statute, does not apply in a CHIPS proceeding because it is different from and inconsistent with s. 48.24 (4), which is construed to provide that a district attorney may withdraw a CHIPS petition only with the approval of the court. Kenneth S. v. Circuit Court for Dane County, 2008 WI App 120
, 313 Wis. 2d 508
, 756 N.W.2d 573
If doubt exists regarding the finality of an order of dismissal, the court may look beyond the words “with prejudice" to determine if the dismissal was meant to be conclusive. Brye v. Brakebush, 32 F.3d 1179
Consolidation; separate trials. 805.05(1)(a)(a)
When actions which might have been brought as a single action under s. 803.04
are pending before the court, it may order a joint hearing or trial of any or all of the claims in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
When actions which might have been brought as a single action under s. 803.04
are pending before different courts, any such action may be transferred upon motion of any party or of the court to another court where the related action is pending. A conference involving both judges and all counsel may be convened on the record as prescribed by s. 807.13 (3)
. Transfer under this paragraph shall be made only by the joint written order of the transferring court and the court to which the action is transferred.
(2) Separate trials.
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to s. 803.04 (2) (b)
, may order a separate trial of any claim, cross claim, counterclaim, or 3rd-party claim, or of any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.
Sup. Ct. Order, 67 Wis. 2d 585, 692 (1975); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2005 a. 253
; 2007 a. 97
Judicial Council Note, 1988: Sub. (1) (b) is amended by allowing conferences regarding consolidation of actions to be conducted by telephone conference. [Re Order effective Jan. 1, 1988]
The trial court's order to bifurcate the issues of liability and damages and to try the separate issues before separate juries contravened sub. (2) and cannot be reconciled with the requirement of s. 805.09 (2) that the same five-sixths of the jury must agree on all questions necessary to sustain a verdict. Waters v. Pertzborn, 2001 WI 62
, 243 Wis. 2d 703
, 627 N.W.2d 497
A court in which an action is pending may appoint a referee who shall have such qualifications as the court deems appropriate. The fees to be allowed to a referee shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court, as the court may direct. The referee shall not retain the referee's report as security for compensation; but if the party ordered to pay the fee allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.
A reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.
The order of reference to the referee may specify or limit the referee's powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee's report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before the referee and to do all acts and take all measures necessary or proper for the efficient performance of duties under the order. The referee may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The referee may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may personally examine them and may call the parties to the action and examine them upon oath. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.
When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to the parties and the referee, may apply to the court for an order requiring the referee to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas. If without adequate excuse a witness fails to appear to give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in ss. 885.11
When matters of accounting are in issue, the referee may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the referee directs.
The referee shall prepare a report upon the matters submitted by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. The referee shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
In an action to be tried without a jury the court shall accept the referee's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instruction.
In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee's findings upon the issues submitted are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
The effect of a referee's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a referee's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
Sup. Ct. Order, 67 Wis. 2d 585, 693 (1975); 1975 c. 218
The findings of a referee have the effect of findings of fact by a trial court and are to be upheld unless they are contrary to the great weight and clear preponderance of the evidence. Thus, in this case, the trial court properly refused to admit additional evidence on an issue of fact that the referee was appointed to resolve. Kleinstick v. Daleiden, 71 Wis. 2d 432
, 238 N.W.2d 714
The order of reference in this case impermissibly delegated to the referee judicial power vested by Art. VII. s. 2, of the Wisconsin Constitution in Wisconsin's unified court system. Constitutional judges can take no power from the legislature to subdelegate their judicial functions. Referees may share in judicial labor but cannot assume the place of the judge. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26
, 374 Wis. 2d 26
, 892 N.W.2d 267
Article VII. s. 8, of the Wisconsin Constitution provides that “the circuit court shall have . . . such appellate jurisdiction in the circuit as the legislature may prescribe by law." The legislature has not granted the circuit courts appellate jurisdiction over rulings by referees. A provision in a circuit court order of reference that the circuit court's review of the referee's rulings be based on the referee's erroneous exercise of discretion contravened the constitution, statutes, and rules regarding circuit court and appellate court authority and practice. Insofar as the order of reference authorized the referee to supervise pretrial discovery disputes, the order did not contravene the state constitution's vesting of judicial power in a unified court system. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26
, 374 Wis. 2d 26
, 892 N.W.2d 267
A referee's fees increase the costs of litigation and may have a chilling effect on litigants. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26
, 374 Wis. 2d 26
, 892 N.W.2d 267
While a referee's conclusion on a legal issue is a recommendation only, the referee's challenged findings of fact are to be accepted unless clearly erroneous. Because, in this case, the evidentiary record supporting the amended report was not provided to the circuit court, the court was unable to determine whether the referee's amended findings were against the great weight and clear preponderance of the evidence. Thus, the circuit court erred when it spontaneously accepted the referee's amended report without addressing the defendant's objection or even considering the referee's findings of fact or reviewing the factual evidence supporting those findings. Associated Bank, N.A. v. Brogli, 2018 WI App 47
, 383 Wis. 2d 756
, 917 N.W.2d 37
Issuance and service.
Subpoenas shall be issued and served in accordance with ch. 885
. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
(2) Subpoena requiring the production of material. 805.07(2)(a)(a)
A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01 (2) (a)
, those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The person responding need not produce the same electronically stored information in more than one form.
If information inadvertently produced in response to a subpoena is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(3) Protective orders.
Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
The subpoena shall be in the following form:
State of Wisconsin
The State of Wisconsin, To ....:
Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o'clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., .... (year)
Attorney for [identify party]
(or other official title)
For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].
(5) Substituted service.
A subpoena may be served in the manner provided in s. 885.03
except that substituted personal service may be made only as provided in s. 801.11 (1) (b)
and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in s. 801.11 (5) (a)
(6) Motion hearing procedure.
Motions under sub. (3)
may be heard as prescribed in s. 807.13
Sup. Ct. Order, 67 Wis. 2d 585, 697 (1975); 1979 c. 110
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 155
; 1993 a. 112
; Sup. Ct. Order No. 95-09
, 195 Wis. 2d xiii (1996); 1997 a. 250
; 1999 a. 85
; 2005 a. 253
; Sup. Ct. Order No. 09-01
, 2010 WI 67, filed 7-6-10, eff. 1-1-11; Sup. Ct. Order No. 12-03
, 2012 WI 114, 344 Wis. 2d xxi.
Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Judicial Council Note, 1995: Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them.
Judicial Council Note, 2010: The amendments to s. 805.07 (2) are modeled on F.R.C.P. 45(a) and (d). Portions of the Committee Note of the federal Advisory Committee on Civil Rules are pertinent to the scope and purpose of s. 805.07 (2): Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information.
Rule 45(a)(1)(B) is also amended, as is Rule 34(a), to provide that a subpoena is available to permit testing and sampling as well as inspection and copying. As in Rule 34, this change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information. [Re Order effective Jan. 1, 2011]
Judicial Council Note, 2012:
Sup. Ct. Order No. 12-03
states that “the Judicial Council Notes to Wis. Stat. ss. 804.01 (2) (c), 804.01 (7), 805.07 (2) (d), and 905.03 (5) are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
Sub. (2) (d) is modeled on Fed. R. Civ. P. 45(d)(2)(B), which was amended in 2007 to adopt the wording of Rule 26(b)(5)(B), the so-called “clawback" provision of the federal rules.
Subsection (3) only authorizes the court to quash a subpoena to compel production of tangible things, not a subpoena to compel attendance of a witnesses. State v. Gilbert, 109 Wis. 2d 501
, 326 N.W.2d 744
The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood, marriage or adoption to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
(2) Number of jurors.
A sufficient number of jurors shall be summoned in the action so that the number applicable under s. 756.06
remains after the exercise of all peremptory challenges to which the parties are entitled under sub. (3)
. The court may order that additional jurors be selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.
(3) Peremptory challenges.
Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under sub. (2)
(4) Jury view.
On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.
Sup. Ct. Order, 67 Wis. 2d 585, 698 (1975); 1975 c. 218
; 1977 c. 318
; 1977 c. 447
; 1983 a. 226
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); 1999 a. 162
Judicial Council Note, 1983: Sub. (2) is amended by replacing the concept of “alternate" jurors with a provision allowing the court to order the impaneling of additional jurors. The panel is then reduced to the proper size by lot immediately prior to final submission of the cause. These changes are intended to promote an attentive attitude and a collegial relationship among the members of the jury.
The first sentence of prior sub. (3) is moved to sub. (2) for more logical placement in the statutes. The reference to “alternate" jurors in the final sentence is changed to “additional" jurors to reflect the modification of sub. (2). [Bill 320S]
Effective date note
Judicial Council Note, 1996:
This proposal changes ``impaneled" to ``selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. Adding the last sentence [to (2)] is intended to allow courts to keep additional jurors to replace any juror who might not be able to complete deliberations. Deliberations would begin anew with the additional juror in place [Re SCO No. 96-08
The mere expression of a predetermined opinion of guilt during voir dire does not disqualify the juror per se. Hammill v. State, 89 Wis. 2d 404
, 278 N.W.2d 821
The disproportionate representation of a group in one array is insufficient to establish systematic exclusion. State v. Pruitt, 95 Wis. 2d 69
, 289 N.W.2d 343
(Ct. App. 1980).
Unless the defendant consents, it is reversible error for the trial court to substitute an alternate juror for a regular juror after jury deliberations have begun. State v. Lehman, 108 Wis. 2d 291
, 321 N.W.2d 212
The trial court's deliberate, though well-intended, removal of a class or group for cause without examination of individuals in the group was improper. State v. Chosa, 108 Wis. 2d 392
, 321 N.W.2d 280
The trial court, sitting as the trier of fact, committed an error of law in making and relying on an unrequested, unannounced, unaccompanied, and unrecorded view of an accident scene in assessing evidence produced at trial. American Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560
, 356 N.W.2d 175
When a juror incompletely responds to material questions on voir dire, a new trial is warranted if it is shown that it is more likely than not that the juror was biased against the moving party. State v. Wyss, 124 Wis. 2d 681
, 370 N.W.2d 745
(1985). But see State v. Faucher, 227 Wis. 2d 700
, 596 N.W.2d 770
, for a review of this case to apply new terminology regarding juror bias.