In Re The Estate Of Sara A. Short

328 Wis.2d 162

789 N.W.2d 585

2010 WI App 108

In re the ESTATE OF Sara A. SHORT, deceased.Sonya Theis, Claire Jackson, Ed Sholtes and Diane Sholtes, Appellants,

v.John H. Short, John W. Short and Julie A. Short, Respondents. ^†

No. 2009AP1591.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 22, 2010.

Opinion Filed July 1, 2010.

COPYRIGHT MATERIAL OMITTED.

On behalf of the appellants, the cause was submitted on the briefs of Jennifer M. Krueger and Richard W. Pitzner of Murphy Desmond S.C., Madison.

On behalf of the respondents, the cause was submitted on the brief of Thomas R. Glowacki and Mark T. Johnson of Hill, Glowacki, Jaeger & Hughes LLP, Madison.

Before DYKMAN, P.J., LUNDSTEN and HIGGINBOTHAM, JJ.

DYKMAN, P.J.

¶ 1 Sonya Theis appeals from an order dismissing her petition for administration of her mother's estate. ¹ Theis argues that the circuit court erred in dismissing her petition under Wis. Stat. § 805.03 (2007-08) ² or the court's inherent authority. Specifically, Theis contends that her conduct was not egregious; that if her conduct was egregious, she had a clear and justifiable excuse for that conduct; and that the dismissal violates her constitutional due process rights because she had no notice that her conduct might result in dismissal of her petition. We conclude that the court properly exercised its discretion in determining that Theis's conduct was egregious and without a justifiable excuse, but that dismissal of the action did not comport with procedural due process requirements. Accordingly, we reverse.

Background

¶ 2 The following undisputed facts are taken from the circuit court record. Theis's mother, Sara Short, died on March 27, 2002. In December 2002, Theis filed a petition for formal administration of Sara Short's estate with the Jefferson County Register in Probate. ³ Theis claimed that Sara Short's will, which was also filed with the probate court, was the product of undue influence by Sara Short's husband, John Short (Short). ⁴

¶ 3 On September 15, 2003, the circuit court dismissed the petition without prejudice, because Theis had not pled her undue influence claim with sufficient particularity. ⁵ Theis filed a second petition for formal administration of Sara Short's estate on October 30, 2003. On July 19, 2004, the circuit court, Judge Gempeler presiding, dismissed the petition with prejudice, finding that the earlier dismissal was on the merits and the petition failed to allege undue influence with sufficient particularity. Theis appealed, and on July 28, 2005, we reversed the circuit court's order and remanded for further proceedings. The case was remitted to the circuit court on September 1, 2005.

¶ 4 On September 15, 2005, Theis contacted the circuit court and discovered that Reserve Judge Becker was assigned to this action, based on Judge Gempeler's absence from the bench. In April 2006, Theis deposed Short. Theis then took no action on the case until June 2007, when the parties resumed discussing depositions. Theis took additional depositions in August 2007. ⁶ No further action was taken until January 2008, when Theis took additional depositions. ⁷ In October 2008, Theis's counsel wrote the register in probate requesting a status conference in this case; in November 2008, counsel for Theis contacted the register in probate to request assignment of a new judge. ⁸ Counsel made additional requests for judicial assignment and a status conference in December 2008 and January 2009. On January 12, 2009, the circuit court, Judge Davis presiding, scheduled a status conference for February 12, 2009.

¶ 5 On February 11, 2009, Short moved to dismiss this action for failure to prosecute. On February 26, 2009, the court held a hearing on Short's motion. It determined that Theis had failed to prosecute the case, that her conduct was egregious, and that she had no justifiable excuse for her conduct. On March 19, 2009, the court entered an order dismissing Theis's petition for failure to prosecute the action. Theis appeals.

Standard of Review

¶ 6 We review a circuit court's decision to dismiss an action for failure to prosecute under Wis. Stat. § 805.03 or its inherent authority for an erroneous exercise of discretion. See Taylor v. State Highway Comm'n, 45 Wis.2d 490, 493-94, 173 N.W.2d 707 (1970). “We will affirm the trial court's exercise of discretion unless it fails to properly apply the law or makes an unreasonable determination under the existing facts and circumstances.” Hudson Diesel, Inc. v. Kenall, 194 Wis.2d 531, 542, 535 N.W.2d 65 (Ct.App.1995). “Therefore, ... we will sustain the sanction of dismissal if there is a reasonable basis for the circuit court's determination that the noncomplying party's conduct was egregious and there was no clear and justifiable excuse for the party's noncompliance.” Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 276-77, 470 N.W.2d 859 (1991), overruled on other grounds by Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, 299 Wis.2d 81, 726 N.W.2d 898 (citation omitted). Moreover, “[o]nce these factors are established, it is within the circuit court's discretion to dismiss the action.” Id. at 277, 470 N.W.2d 859. However, “[w]hether a party was afforded due process is a legal question that we review de novo.” Xerox Corp. v. DOR, 2009 WI App 113, ¶ 12, 321 Wis.2d 181, 772 N.W.2d 677.

Discussion

¶ 7 Theis argues that the circuit court erroneously exercised its discretion in dismissing her action for administration of Sara Short's estate. Theis contends that her conduct was not egregious and thus did not support dismissal for failure to prosecute under Wis. Stat. § 805.03. See Trispel v. Haefer, 89 Wis.2d 725, 732, 279 N.W.2d 242 (1979) (“Because of the harshness of the sanction, a dismissal under [§ 805.03] should be considered appropriate only in cases of egregious conduct by a claimant.” (citation omitted)). Theis also argues that, even if the trial court properly determined that her conduct was egregious, she had a clear and justifiable excuse for her delay, and therefore dismissal was unjustified. See Johnson, 162 Wis.2d at 276, 470 N.W.2d 859 (“[I]f the noncomplying party shows a clear and justifiable excuse for his [or her] conduct, then dismissal is improper.” (citation omitted)). Finally, Theis argues that dismissal of her probate action for failure to prosecute under § 805.03 or the court's inherent authority violates her constitutional due process rights because she had no notice that this case was subject to dismissal based on her actions. ⁹ See Rupert v. Home Mut. Ins. Co., 138 Wis.2d 1, 7, 405 N.W.2d 661 (Ct.App.1987) (“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.”). We conclude that the circuit court did not erroneously exercise its discretion in determining that Theis's conduct was egregious and lacked a justifiable excuse. However, we also conclude that Theis did not have notice that her conduct could result in the court dismissing her action, and therefore dismissal violated Theis's due process rights.

¶ 8 Theis argues first that her conduct in failing to prosecute this action was not egregious, and thus the court erroneously exercised its discretion in dismissing her action for administration of her mother's estate. See Monson v. Madison Family Inst., 162 Wis.2d 212, 223-24, 470 N.W.2d 853 (1991) (dismissal for failure to prosecute is an erroneous exercise of discretion if party's conduct was not egregious). She contends that under Wis. Stat. § 856.11, the circuit court, not Theis, had the burden to schedule a hearing after this case was remitted to the circuit court in September 2005. ¹⁰ See § 856.11 (“When a petition for administration is filed, the court shall set a time for proving the will, if any, for determination of heirship and for the appointment of a personal representative.”). Theis argues that here, the delay between remittitur and a hearing was due to Judge Gempeler's illness and consequent absence from the bench, and thus cannot be attributed to Theis. See Hadley v. State, 66 Wis.2d 350, 363, 225 N.W.2d 461 (1975) (“[W]here the delay is the result of overcrowded courts or lack of judicial manpower, such circumstances must rest with the government rather than with the defendant.” (citation omitted)). Theis also contends that Short shared the burden to prosecute this action because he had an interest in proving that Sara Short was competent to execute her will; that the delay in scheduling a status conference was attributable to court administration confusion because this is a Jefferson County case being heard in Waukesha County; and that her action is not egregious because she has abided by all court orders in this case.

¶ 9 Short responds that the circuit court properly determined that Theis's conduct was egregious. He contends that the court properly relied on the long periods of delay in this case, which the court called “extremely unusual” and “conspicuously bad and extreme.” Short also argues that Theis, as the petitioner, bears the burden of moving the case forward, rather than the court or Short. ¹¹ See Marshall-Wisconsin Co., Inc. v. Juneau Square Corp., 139 Wis.2d 112, 136-37, 406 N.W.2d 764 (1987) (“[I]t is the plaintiff's burden to proceed with prosecution of the action within a reasonable period of time. It is not the judge's duty or the clerk's duty to see to it that trial proceeds swiftly, nor is it opposing counsel's duty to expedite litigation.” (citations omitted)). Short contends that Wis. Stat. § 856.11 does not shift the burden of moving the case forward onto the court, but merely provides that when the petition is filed, the court must set a hearing, which the court did in this case. Finally, Short asserts that Theis's argument that Judge Gempeler's absence from the bench and c...