Lee v. GEICO Indemnity Co. , 321 Wis. 2d 698 ( 2009 )

¶ 41. KESSLER, J.

{concurring in part, dissenting in part). I concur with the majority's reversal of the sanctions imposed against GEICO for filing its postverdict motion in this case. However, I respectfully dissent from that portion of the majority opinion upholding sanctions against GEICO for violation of the scheduling order. It is undisputed, as the majority points out, that not only did Valarie Lee fail during the mediation to object to having a corporate representative from GEICO appear by telephone, she also completed the mediation on that day knowing that GEICO's representative was participating by telephone. In my view, Lee forfeited her right to seek sanctions against GEICO when she knowingly participated in the mediation without offering any objection to having GEICO's representative appear by telephone. See State v. Ndina, 2009 WI 21, ¶ 29, 315 Wis. 2d 653, 761 N.W.2d 612 (Forfeiture can occur where a party" 'fail[s] to make the timely assertion of a right.'") (citation omitted).

¶ 42. While the forfeiture rule is most often discussed in the context of trials, I believe it is appropriately applied here, where Lee failed to object to GEICO's representative's telephonic participation in a court-ordered mediation. Mediations are a common feature in litigation and often are rescheduled for innumerable reasons. There is no showing that rescheduling here was impossible. Lee's objection at the time would have allowed GEICO to cure its failure to appear personally, while preserving Lee's ability to seek appropriate sanctions. Although better practice would have been for GEICO to have obtained, in advance, either Lee's agreement to the telephone appearance or the trial court's approval to appear by telephone, it was unfair for Lee to remain silent in the face of a curable violation of the scheduling order and complain only when the efforts at settlement were unsuccessful. In doing so, she was allowed to "lie in the weeds by not objecting and then belatedly raise the issue when it was advantageous to do so." See State v. English-Lancaster, 2002 WI App 74, ¶ 15, 252 Wis. 2d 388, 642 N.W.2d 627; see also Ndina, 315 Wis. 2d 653, ¶ 30 (Forfeiture rule "prevents attorneys from 'sandbagging' opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.") Because I conclude that Lee forfeited her right to object to GEICO's telephonic participation, I would reverse the trial court's order imposing sanctions on GEICO for violation of the scheduling order.