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.

(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, 145 Wis. 2d 315, 426 N.W.2d 114 (Ct. App. 1988).

A condemnee may voluntarily dismiss an appeal to a circuit court under s. 805.04 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 Rita Engebose v. Morraine Ridge Limited 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. Kenneth S. v. Circuit Court for Dane County, 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).