¶6 At a hearing on May 2, 2022, the circuit court granted the Village's motion and denied Tudor's request for attorney fees and costs. Among its reasons for granting the dismissal, the court emphasized that the Village sought a dismissal with prejudice which, "[a]bsent something significant," generally is not accompanied by an award of costs and fees under Bishop v. Blue Cross & Blue Shield United of Wisconsin, 145 Wis.2d 315, 426 N.W.2d 114 (Ct. App. 1988). The court also observed that Tudor had not shown that she "complied with the procedures outlined in the statute for frivolousness," an apparent reference to Wis.Stat. § 802.05.
The significance of the "with prejudice"/"without prejudice" distinction is that an award of attorneys' fees generally does not accompany a voluntary dismissal with prejudice, where the defendant is protected from the risk of further litigation. See Bishop v. Blue Cross & Blue Shield United of Wis., 145 Wis.2d 315, 317-18, 426 N.W.2d 114 (Ct. App. 1988). ¶12 Third and finally, the circuit court concluded the Trust was entitled to its attorneys' fees and costs incurred in connection with several motions during the litigation:
In the former case, the defendant continues to be exposed to the risk of further litigation." Bishop v. Blue Cross & Blue Shield United of Wis., 145 Wis. 2d 315, 318, 426 N.W.2d 114 (Ct. App. 1988); see also Jason B. v. State, 176 Wis. 2d 400, 406, 500 N.W.2d 384 (Ct. App. 1993) (quoting Black's Law Dictionary 469 (6th ed. 1990)) ("'Dismissal without prejudice,' by definition, permits 'the complainant to sue again on the same cause of action.'"). The previous foreclosure was dismissed without prejudice. So, Butchers were exposed to the risk of future litigation regarding the foreclosure of their real estate.
For instance, we have said that when a dismissal without prejudice is granted, the defendant continues to be exposed to the risk of further litigation. Bishop v. Blue Cross Blue Shield, 145 Wis.2d 315, 318, 426 N.W.2d 114, 116 (Ct.App. 1988). The danger or prejudice sought to be avoided is the damage to the defendant resulting from being taken to court and put to expense without the chance of having the suit determined in his or her favor.
In dismissals with prejudice, the defendant is protected from the risk of further litigation as to those claims. SeeBishop v. Blue Cross BlueShield, 145 Wis.2d 315, 318, 426 N.W.2d 114, 116 (Ct.App. 1988). Under § 805.04(2), STATS., the court may grant dismissal of a plaintiff's claims "upon such terms and conditions as the court deems proper." Here, the court did not deem costs to be a proper condition of the dismissal.
Section 805.04(2), STATS., provides that the trial court may approve a voluntary dismissal request, "upon such terms and conditions as the court deems proper." Those terms may include dismissal with prejudice. Bishop v. Blue Cross BlueShield, 145 Wis.2d 315, 319, 426 N.W.2d 114, 116 (Ct.App. 1988) (citing Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986), for its interpretation of the federal counterpart to § 805.04(2)). Here, over the course of three years, the Kidds had done nothing to prosecute the matter.