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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                          This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
April 9, 2002
A party may file with the Supreme Court a
                                                                         Cornelia G. Clark                                  petition to review an adverse decision by the
                                                                         Clerk of Court of Appeals                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                            and RULE 809.62.
                                                                                                                            Cir. Ct. No.   98CV196
Appeal No.                                                               01-2864
STATE OF WISCONSIN                                                                                                          IN COURT OF APPEALS
DISTRICT III
BROOKE A. PTACEK,
PLAINTIFF-APPELLANT,
PFL LIFE INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFF,
V.
MINNESOTA FIRE AND CASUALTY COMPANY, JEREMY J.
FLEMING, CHARLES E. HILL, MATTHEW MAREK AND
MATTHEW WOLF,
DEFENDANTS-RESPONDENTS.
APPEAL  from  an  order  of  the  circuit  court  for  Pierce  County:
ROBERT W. WING, Judge.  Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.




No.   01-2864
¶1                                                                                    PER CURIAM.    Brook  Ptacek  appeals  an  order  dismissing  her
personal  injury  claim  against  Minnesota  Fire  and  Casualty Company,  Jeremy
Fleming, Charles Hill, Matthew Marek and Matthew Wolf for failure to prosecute.
Ptacek argues that:                                                                   (1) the circuit court erroneously exercised its discretion by
failing to determine whether Ptacek’s conduct was egregious; and  (2) she was
denied  due  process  because  she  had  no  prior  notice  regarding  what  would
constitute failure to prosecute and what penalties for that conduct would be.   We
conclude that the court implicitly found that Ptacek’s conduct was egregious.   We
further conclude that Ptacek waived her due process argument.    Therefore, we
affirm the order.
BACKGROUND
¶2                                                                                    On October 13, 1995, Ptacek was driving a vehicle owned by Larry
and Joan Schaack and insured by Minnesota Fire.   She was allegedly injured when
a vehicle driven by Troy Kemmerer collided with her vehicle at an intersection
near Prescott, Wisconsin.   Apparently, Kemmerer failed to stop at the intersection
because the stop sign was missing.   Ptacek subsequently settled with Kemmerer’s
insurance company, PFL Life Insurance Company.
¶3                                                                                    On September  28,  1998, Ptacek filed a complaint against Jeremy
Fleming, Charles Hill, Matthew Marek, and Matthew Wolf.  Ptacek alleged that on
the night before the accident, Fleming removed the stop sign from the intersection
and left it lying in a ditch.   According to Ptacek, Hill, Marek and Wolf were with
Fleming and saw Fleming remove the sign.   Ptacek also brought an underinsured
motorist claim against Minnesota Fire because it refused to pay the limits of the
underinsured benefits provided in its policy.
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No.   01-2864
¶4                                                                                        After filing the complaint, Ptacek conducted no written or deposition
discovery, nor did she file any motions with the circuit court.   The defendants
conducted some written discovery and took Ptacek’s deposition on July 13, 1999.
The defendants also sought summary judgment, arguing that Ptacek had signed a
general release relieving all torfeasors from liability.   The circuit court denied the
motion.
¶5                                                                                        Ptacek did write a letter to opposing counsel in 1999 and again in
2001, proposing mediation.   However, Ptacek never sought an order compelling
mediation.   Wolf and Marek each responded to Ptacek’s first letter by asking for a
settlement demand.   Ptacek did not reply to either request.
¶6                                                                                        On July 26, 2001, Minnesota Fire filed a motion to dismiss Ptacek’s
complaint for failure to prosecute.   Fleming, Hill, Marek, and Wolf joined in the
motion.   Ptacek argued that the issues regarding coverage were complicated and
that mediation would be in the best interests of the parties.   Ptacek stated that she
“tried to resolve this claim and move the case along.”
¶7                                                                                        The circuit court found that in the three years the case had been
pending, Ptacek had not “initiated anything with the court.”   Regarding mediation,
the  court  noted  that,  in  its  experience,                                            “mediation  never  takes  place  prior  to
discovery taking place.”   The court stated that “[u]nder the circumstances I don’t
see clear and justifiable excuse.”   As a result, the motion to dismiss was granted.
STANDARD OF REVIEW
¶8                                                                                        A motion to dismiss for failure to prosecute is addressed to the
sound discretion of the circuit court, and we will affirm the court's action unless it
is clearly shown that there was an unreasonable exercise of abuse of discretion.
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No.   01-2864
Prahl v. Brosamle,  142 Wis.  2d  658,  666,  420 N.W.2d  372  (Ct. App.  1987)
(citation omitted).   One seeking to “avoid such a dismissal must show a ‘clear and
justifiable’ excuse for the delay.”    Id.  (citation omitted).    While this has been
recognized as a strict standard, it is appropriate in light of the “duty” of trial courts
to  “refuse their aid to those who negligently or abusively fail to prosecute the
actions which they commence."    Trispel v. Haefer,  89 Wis.  2d  725,  733,  279
N.W.2d  242  (1979).    Because  dismissal  is  a  harsh  sanction,  the  remedy  is
appropriate "only in cases of egregious conduct by a claimant."   Id. at 732.
DISCUSSION
I.   EGREGIOUS CONDUCT
¶9                                                                                          Ptacek  argues  that  the  circuit  court  erroneously  exercised  its
discretion by applying the wrong legal standard.   Ptacek claims that a two-part
standard applies to discretionary dismissals.   Ptacek contends that dismissals for
failure to prosecute are only within the court’s discretion if the court expressly
finds that a  party’s conduct is:                                                           (1)  egregious; and  (2)  there  is  no clear  and
justifiable excuse for the conduct.
¶10    Here, the circuit court relied on Prahl and concluded that it would be
an abuse of discretion not to grant the motion to dismiss for failure to prosecute.
The court stated:
[W]here no justification for delay is shown it is an abuse of
discretion  not  to  dismiss  ….  Under  the  circumstances  I
don’t see clear and justifiable excuse, and therefore as I see
the law, I am required, it would be [an erroneous exercise]
of discretion not to grant the motion to dismiss.
¶11    In Prahl, we referenced the egregious conduct standard where a
plaintiff did nothing to advance a case for three years.   Even though the circuit
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No.   01-2864
court made  no  findings that the  conduct was egregious, we  concluded that a
“plaintiff who has invoked the judicial process to advance a claim … cannot sit
back for three years, waiting for someone else to take the initiative, and then be
heard to argue that the case should not be dismissed for lack of prosecution.”   Id.
at 670-71.
¶12    Contrary to Ptacek’s argument, the law does not require a circuit
court  to  make  an  explicit  finding  of  bad  faith  or  egregious  conduct  before
imposing a sanction.   See Monson v. Madison Family Inst., 162 Wis. 2d 212, 215
n.3, 470 N.W.2d 853 (1991).   It is sufficient if the record contains a reasonable
basis for a determination that the sanctioned conduct was egregious and that there
was no clear and justifiable excuse.   Id. at 215.   The failure of a court to utter
precise magic words does not result in reversible error if the circuit court made the
unmistakable  but implicit findings to the  same  effect.    Id. at  215 n.3  (citing
Englewood Apts. P’ship v. Grant & Co., 119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716
(Ct. App. 1984)).
¶13    In Monson, the supreme court upheld a circuit court’s dismissal that
was  based  on,  among  other  things,  the  plaintiff’s  failure  to  undertake  any
discovery during the twenty-one months between filing and dismissal.   Monson,
162 Wis. 2d at 221.   In a footnote, the court stated that “implicit in the circuit
court’s statements contained in the record is a finding that plaintiffs’ conduct in
this  case  was  egregious.    Therefore,  the  circuit  court’s  failure  to  label  the
plaintiffs’ conduct as ‘egregious conduct’ is immaterial.”   Id. at 215 n.3 (citation
omitted).
¶14    Here, the record supports a finding of egregious conduct.   Ptacek
wrote two letters dated two years apart and never followed up on them.   Opposing
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No.   01-2864
counsel sought a settlement demand before agreeing to mediation, but Ptacek did
not reply.   Ptacek never sought an order to mediate.   She never sought discovery.
She never initiated any court activity after filing the action.   Both the court’s stated
reasons and the record support the conclusion that Ptacek egregiously failed to
prosecute her complaint by sitting idle for three years.
¶15    When the court reviewed the record, it found that the plaintiff had
not prosecuted her case in three years:
[D]efendants  scheduled  a  …  deposition  of  the  plaintiff.
Defendant  has  scheduled  a  summary  judgment  motion.
The defendants submitted one medical authorization.   The
defendants   in   this   case   submitted   a   motion   for
reconsideration.    And  the  defendants  have  submitted  a
motion for dismissal.   And in the three years the case has
been pending the plaintiff has not initiated anything with
the court.
The circuit court considered and rejected Ptacek’s argument that she had pursued
mediation instead because “mediation never takes place prior to discovery taking
place.”
¶16    Ptacek  cites  Trispel  and  Johnson  v.  Allis  Chalmers  Corp.,  162
Wis. 2d  261,  470 N.W.2d  859  (1991), to argue that a circuit court must find
egregious conduct before it can dismiss a case.    Her reliance on Trispel and
Johnson, however, is misplaced.   Those cases involved a dismissal for failure to
comply with a court order, not a failure to prosecute.   Trispel, 89 Wis. 2d at 729;
Johnson,  162 Wis.  2d at  270.   Trispel and Johnson are clear that in order to
demonstrate that the court erroneously exercised its discretion when it entered an
order of dismissal under WIS. STAT. § 805.03, no matter what the grounds, the
aggrieved party must show “a clear and justifiable excuse” for the delay.   Trispel,
89 Wis. 2d at 733.   That Ptacek has not done.
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No.   01-2864
¶17    It is firmly established that in order to demonstrate that a dismissal
order based upon the failure to prosecute was an abuse of discretion, the aggrieved
party must show a “clear and justifiable excuse.”   Id.   The circuit court’s finding
that Ptacek had no clear and justifiable excuse for delay is unchallenged.   Ptacek
does not even attempt to argue that she had a clear and justifiable excuse for
delaying the prosecution of her case.
¶18    We conclude that the circuit court’s finding of egregious conduct is
implicit.   We further conclude that the record contains a reasonable basis for such
a determination and also for the circuit court's dismissal.
II.   PRIOR NOTICE
¶19    Ptacek argues that she was denied due process when the circuit court
dismissed  the  case  for  failure  to  prosecute  because  she  had  no  prior  notice
regarding what would constitute failure to prosecute and what the penalties for that
conduct would be.
¶20    We generally do not review an issue raised for the first time on
appeal.    Segall v. Hurwitz,  114 Wis.  2d  471,  489,  339 N.W.2d  333  (Ct. App.
1983).   Although this rule is one of judicial administration and not jurisdiction, we
have declined to review issues raised for the first time on appeal unless there is
reason to do so.    See id. at  489-90.    In the specific context of a due process
challenge,  our  supreme  court  has  declined  to  review  the  issue  because  the
appellant did not raise it before the circuit court.   Hopper v. City of Madison, 79
Wis. 2d 120, 137, 256 N.W.2d 139 (1977).   In Hopper, our supreme court found
that the circuit court “had no opportunity to pass” on the issue and that the “facts
and circumstances” of the case did not justify review.  Id.
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No.   01-2864
¶21    Here, the record reveals that Ptacek never indicated to the circuit
court that her due process rights had been violated.   Therefore we conclude that
Ptacek raises the issue for the first time on appeal.   As a result, we do not address
her argument.
By the Court.—Order affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)5.
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