805.03 Failure to prosecute or comply with procedure statutes. 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 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. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time. History: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975). In order to demonstrate that a dismissal order based on failure to prosecute is an abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979). A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the “failure to prosecute” standard. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985). Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 405 N.W.2d 661 (Ct. App. 1987). Dismissal under this section is presumptively with prejudice. When the plaintiff failed to show “good cause” for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis. 2d 112, 406 N.W.2d 764 (1987). The court of appeals’ remand “for trial” after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle, 142 Wis. 2d 658, 420 N.W.2d 372 (Ct. App. 1987). When conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991). Ordering a criminal defendant to pay the state’s trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993). In cases that do not fit squarely within this section, a trial court has certain inherent powers to sanction the parties, including the awarding of attorney fees. Schaefer v. Northern Assurance Co. of America, 182 Wis. 2d 148, 513 N.W.2d 615 (Ct. App. 1994). A party’s failure to appear at a scheduled hearing, after writing the court indicating that unless the party heard otherwise from the court the party would consider itself excused, was insufficient to excuse the party’s appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co., 191 Wis. 2d 1, 528 N.W.2d 457 (Ct. App. 1995). The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 535 N.W.2d 65 (Ct. App. 1995). A default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827. This section and s. 802.10 (7) apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281. Counsel’s egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404. If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party’s action or inaction provides adequate cause for sanctions against that party, but that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
805.03
TRIALS
The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944. Circuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, the trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before the court. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915. The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and, when a court does so, the limitations of fee awards under former s. 814.025, 1997 stats., do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915. Because a guardian ad litem’s allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court’s authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minor’s settlement proceeds was more firmly grounded in s. 785.03 (1) (a). Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210. 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, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, 05-0189. There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of the defendant’s medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186, 305 Wis. 2d 240, 738 N.W.2d 588, 06-0980. In light of the facts and the need of circuit courts to control their calendars to ensure the orderly administration of justice, the circuit court did not erroneously exercise its discretion when it determined that a civil defendant’s violation of a scheduling order was “egregious” and grounds for entering default judgment when the defendant failed to attend the scheduling conference, file a witness list, file an itemization of damages in connection with the defendant’s counterclaim, file a pretrial report, and attend the pretrial conference. East Winds Properties, LLC v. Jahnke, 2009 WI App 125, 320 Wis. 2d 797, 772 N.W.2d 738, 08-2453. When the trial court imposed sanctions because it found that a party had brought what was essentially a motion for reconsideration without any new evidence or evidence of manifest error of law by the trial court, that was a basis for the court to deny the motion for reconsideration. It was not a basis for an award of attorney fees without a finding of bad faith or egregious conduct. No statute authorizes sanctions for bringing a motion for reconsideration, and the trial court made no finding of misconduct nor does the record reveal misconduct. Lee v. Geico Indemnity Co., 2009 WI App 168, 321 Wis. 2d 698, 776 N.W.2d 622, 08-3125. Dismissal for failure to prosecute violated due process requirements when the petitioner had no actual or constructive notice that the petitioner’s 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, 09-1591. 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, 11-0825. While a circuit court may dismiss a civil action as a sanction for an attorney’s egregious conduct, the court must first consider the two prongs set out in Garfoot, 228 Wis. 2d 707 (1999), and find that 1) the client failed to act in a reasonable and prudent manner in monitoring the attorney’s conduct in the litigation and 2) the client had knowledge of, should have known, or was complicit in the attorney’s egregious conduct. Scudder v. Concordia University, Inc., 2025 WI App 13, 415 Wis. 2d 318, 18 N.W.3d 173, 23-2218. Sanctions, including the sanctions of dismissal or default judgment, must be proportionately and appropriately applied. They can be graduated to meet the circumstances and then increased when there is a further lack of compliance. They can be imposed against the attorney, the party, or both. But above all, they must be just. Scudder v. Concordia University, Inc., 2025 WI App 13, 415 Wis. 2d 318, 18 N.W.3d 173, 23-2218.
805.04
Voluntary dismissal: effect thereof. (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.
Updated 23-24 Wis. Stats.
2
(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. History: Sup. Ct. Order, 67 Wis. 2d 585, 691 (1975); 2005 a. 253; 2007 a. 20, 97; 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 (1979). Voluntary dismissal with prejudice rarely entitles the defendant to an award of fees and costs. Bishop v. Blue Cross & Blue Shield United of Wisconsin, 145 Wis. 2d 315, 426 N.W.2d 114 (Ct. App. 1988). A condemnee may voluntarily dismiss an appeal to a circuit court under this section 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 Engebose v. Moraine Ridge Ltd. Partnership, 228 Wis. 2d 860, 598 N.W.2d 584 (Ct. App. 1999), 98-3019. This section only applies to dismissals; it does not address vacating judgments. Once judgment is entered, there is no action to dismiss. Bank One Wisconsin v. Kahl, 2002 WI App 312, 258 Wis. 2d 937, 655 N.W.2d 525, 02-0835. 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. State ex rel. Kenneth S. v. Circuit Court, 2008 WI App 120, 313 Wis. 2d 508, 756 N.W.2d 573, 08-0147. 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 (1994).