2005P189 Industrial Roofing Services, Inc. v. Marquardt

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A court may not dismiss a claim as a sanction for discovery abuses, unless the party is culpable for the abuse.

“The concerns of the Johnson court for both equity and effective judicial administration remain central to this court’s analysis. However, we depart from the Johnson court’s conclusion that it would be inequitable to adopt a rule akin to the proffered rule or that it would necessarily result in ineffective and ‘toothless’ administration of justice. Accordingly, we determine that it is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney’s conduct to the client, where the client is blameless. To the extent that Johnson can be interpreted as concluding that the client’s conduct is irrelevant or that a dismissal with prejudice is warranted even when the client is blameless, then that part of Johnson is overruled.

“Even if the record supports the view that the client, Industrial, was not itself directly to blame for those failures, it does not follow that Industrial is without fault. Industrial’s fault lies in its failure to act in a reasonable and prudent manner when it knew or had reason to know that its attorney was failing to properly manage the case.

“Additionally, Industrial bears some responsibility for the dismissal with prejudice. The circuit court initially entered an order of dismissal without prejudice that stated explicitly the conditions under which it would enter a dismissal with prejudice. Industrial was aware of those conditions and the consequences of failing to pay $3,926.81 in attorney’s fees and re-file. Its failure to do so was neither reasonable nor prudent.”

Affirmed.

Court of Appeals, Bradley, J.

Attorneys: For Appellant: Johnson, Robert F., Milwaukee; Schlicht, Jane C., Milwaukee; Cranley, Paul D, Madison; For Respondent: Davis, Shepard A., Milwaukee