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COURT OF APPEALS DECISION DATED AND FILED December 5, 2002 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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Cir. Ct. No.
00-CV-267 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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Robert L. Perkins, Plaintiff-Appellant, v. Virginia L. Anderson, Defendant-Respondent. |
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APPEAL from an order of the circuit court for Portage County: Richard O. Wright, Judge. Affirmed.
Before Roggensack, Deininger and Lundsten, JJ.
¶1 PER
CURIAM. Robert Perkins appeals the order dismissing his action
against Virginia Anderson. His
complaint alleged that Anderson failed to disclose a material defect when he
purchased a home from her. The circuit
court dismissed the action as a sanction for Perkins’ failure to comply with an
order compelling discovery. We
affirm.
¶2 During
the course of this proceeding, Anderson served Perkins with interrogatories and
requests to produce documents. Perkins
answered some of the interrogatories but refused to answer others, including
requests to identify anybody living with him, to provide his and another
potential witness’s recent employment history and to state whether he had
certain repairs done to the house after purchasing it from Anderson. He also refused to produce the requested
documents.
¶3 Consequently,
Anderson moved to compel discovery and scheduled a hearing. Perkins failed to appear, for reasons that
do not appear in the record. In his
absence, the circuit court granted the motion to compel, and ordered Perkins to
comply with Anderson’s discovery request within ten days. The order warned that “[f]ailure to comply
with this Order will result in immediate dismissal of plaintiff’s action on its
merits and with prejudice.” Perkins did
not comply with the order nor provide any other response to it, and the circuit
court dismissed the action shortly after Perkins’ deadline expired.
¶4 Perkins
contends that the court erred by granting the motion to compel because the
information and documents he refused to provide were irrelevant. However, Perkins had the opportunity to
present that argument to the circuit court, but he failed to appear at the
scheduled hearing and made no attempt to explain why he did not appear. We will not conclude that a circuit court
erred based on arguments that were never presented to it. See Prill v. Hampton, 154
Wis. 2d 667, 678, 453 N.W.2d 909 (Ct. App. 1990).
¶5 Perkins
next contends that the circuit court’s order demonstrated a bias in favor of
Anderson. No facts of record support
that assertion. The circuit court has
authority to compel discovery, Wis.
Stat. § 804.12(1) (1999-2000),[1]
and authority to dismiss an action for failure to comply with a discovery
order. Wis. Stat. § 804.12(2)(a)3. The record demonstrates a reasonable exercise of that
discretionary authority in this case. See
Smith v. Golde, 224 Wis. 2d 518, 525, 592 N.W.2d 287 (Ct. App.
1999) (dismissal sanction under Wis.
Stat. § 804.12(2)(a)3 lies within circuit court’s discretion).
¶6 Finally, Perkins alleges error in the circuit court’s initial scheduling order, because it allowed Anderson more time to disclose expert witnesses than Perkins received. Unless an alleged error affects a party’s substantial rights we will disregard it. Wis. Stat. § 805.18(2). The different witness disclosure deadlines had no conceivable effect on the outcome of this proceeding.
By the Court.—Order affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.